State v. Lewis

534 S.E.2d 740, 207 W. Va. 544, 2000 W. Va. LEXIS 57
CourtWest Virginia Supreme Court
DecidedJune 23, 2000
DocketNo. 26560
StatusPublished
Cited by4 cases

This text of 534 S.E.2d 740 (State v. Lewis) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Lewis, 534 S.E.2d 740, 207 W. Va. 544, 2000 W. Va. LEXIS 57 (W. Va. 2000).

Opinion

PER CURIAM:

This is an appeal by Avery Desmond Lewis from an order of the Circuit Court of Monroe County sentencing him to from two to ten years in the State Penitentiary for malicious wounding. On appeal, he claims that the trial court should have granted him a mistrial because mention of the fact that a witness had taken a polygraph examination was made during trial. He also claims that the State failed to provide him with a copy of the statement made by the witness during that examination. The appellant further asserts that the evidence adduced during trial was insufficient to support a jury finding that he used a weapon to injure the victim and, that consequently, there was insufficient evidence to support the ultimate verdict in the case. In conjunction with this, the appellant claims that the trial court erred in giving an instruction regarding the inference of malice which may arise from the use of a deadly weapon.

I.

FACTS

The evidence in this ease shows that on the night of October 24, 1997, the appellant became involved in a fight with Henry Wright in the parking lot of the Cash Market in Union, West Virginia. During the fight,. Wright sustained severe lacerations to the left side of his face and later drove himself to the emergency room at the Greenbrier Valley Hospital. When he arrived at the hospital, he was hemorrhaging severely. He had wounds which were approximately six inches long and which appeared to go to the bone.

Dr. Ray Jones, the surgeon who treated Wright, found that Wright’s auricular and temporal arteries had been lacerated, that the maxillary muscle to the jaw had been cut and that there was possible nerve damage. Dr. Jones observed no bruising and concluded that a sharp object, such as a knife, had caused the injuries because a blunt object would have crushed the tissue surrounding the wounds. Since a question arose as to whether the appellant’s fingernails could have caused the lacerations, Dr. Jones concluded: “The lacerations made on Mr. Wright were not made by a fingernail.”

The appellant was subsequently indicted for malicious wounding, and a jury trial was conducted on May 5-6, 1998. At the conclusion of that trial, the jury found the appellant guilty of the charge of malicious assault.

In the course of investigating the case, the State had questioned the appellant’s cousin, Kimberly Goins, who was present at the time of the fight and who was present with the appellant after the fight. The State had also administered a polygraph examination to Ms. Goins. During the polygraph examination, Ms. Goins testified that she saw a little silver knife in the appellant’s hand at an apartment after the fight. She also testified that the appellant had stated that he had “cut” the victim.

At the appellant’s trial, the prosecution asked no questions regarding the polygraph exam administered to Ms. Goins. The fact that it had been administered was raised during the cross-examination of Ms. Goins by the appellant’s attorney. Specifically, during the cross-examination, defense counsel asked Ms. Goins if any type of immunity had been offered to her for her testimony. The testimony proceeded as follows:

A. They was just saying that — they just told me if I didn’t tell the truth that we both could be in trouble, like because somebody cut him. One of us had to cut him.
[547]*547Q. And so basically, if you don’t come and tell something that the police wanted, then you could be charged, is that what you interpret that to be?
A. That we both could be charged.
Q. And that would include you, wouldn’t it?
A. Yes.
Q. Whereas, if you came and testified against Avery, they wouldn’t bring criminal charges against you, would they?
A. Just if I told the truth about what happened.
Q. How are they supposed to know what the truth is? You gave one statement here that doesn’t tell anything about this knife.
MR. MOHLER [Prosecutor]: Objection, argumentative.
THE COURT: Overruled.
BY MR. DETCH [Defense Counsel]:
Q. You didn’t make any statement about that knife until the police told you that they would not criminally charge you, did you?
A. I didn’t make a statement about the knife until I took the lie detector test.
MR. MOHLER: Your Honor, may we approach the bench?
THE COURT: Counsel approach the bench.
(Discussion held off the record between Court and counsel at the bench.)
THE COURT: Ladies and gentlemen, there are certain words we don’t use in Court, things we don’t talk about. If you are in a civil case involving a ear wreck, you don’t talk about insurance. If you are in a criminal ease, you don’t talk about lie detectors. They aren’t considered reliable. The witness made some comment to the effect about a lie detector. You should disregard that remark entirely and not consider the fact that she made reference to taking a lie detector test as either adding or detracting from any credibility she might otherwise have. Put that out of your mind entirely.
Young lady, don’t make any further mention to such a procedure.

Later, during the trial of the ease, the State called as a witness Trooper Michael A. Smith who had investigated the incident giving rise to the indictment against the appellant. Again the prosecution asked no questions about the polygraph examination administered to Ms. Goins. When Trooper Smith was cross-examined, however, the following occurred:

BY MR. DETCH [Defense Counsel]:
Q. Officer, when did the authorities first learn from Miss Kimberly Goins there had been a knife used?
A. When?
Q. Yes.
A. Miss Goins indicated to me there was a knife used — the date is on the second statement. She gave me two statements in the same day about that evening. The second statement, counsel, I believe you have a copy of it, it was on a Wednesday. Was that the 29th? Don’t quote me on the date. •
Q. How many — was this last statement she gave a third statement?
A. Third statement?
Q. Would it have been the third statement?
A. The third statement that she gave was a statement given to a polygraph examiner. She gave me two statements on one day and then she submitted to a polygraph.
MR. DETCH: I have no further questions.

Defense counsel at this time made no objection to Trooper Smith’s mention of the polygraph examination, and no additional cautionary instruction was given by the Court.

After the jury was excused, defense counsel moved for a mistrial based on the polygraph testimony. The prosecution took the position that the jury had not been tainted by the brief references of the polygraph, both of which had been elicited by defense counsel.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State of West Virginia v. Christopher L. L.
West Virginia Supreme Court, 2014
State of West Virginia v. George J.
West Virginia Supreme Court, 2013
State v. A.O.
965 A.2d 152 (Supreme Court of New Jersey, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
534 S.E.2d 740, 207 W. Va. 544, 2000 W. Va. LEXIS 57, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lewis-wva-2000.