State v. Lively

697 S.E.2d 117, 226 W. Va. 81, 2010 W. Va. LEXIS 78
CourtWest Virginia Supreme Court
DecidedJune 16, 2010
Docket34856
StatusPublished
Cited by13 cases

This text of 697 S.E.2d 117 (State v. Lively) 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. Lively, 697 S.E.2d 117, 226 W. Va. 81, 2010 W. Va. LEXIS 78 (W. Va. 2010).

Opinions

PER CURIAM:

This case is before the Court upon an Order entered August 11, 2008, by the Circuit Court of McDowell County, West Virginia, resentencing the Defendant, Charles J. Lively, to life with a recommendation of mercy based upon the jury conviction for the felony murder of Dr. Ebb K. (“Doe”) Whitley, Jr. The Defendant was also convicted of first degree arson as the underlying felony supporting the felony murder conviction; however, no additional sentence for the arson conviction was imposed by the trial court.1 The Defendant argues that the trial court erred: 1) by allowing the admission of a statement of a confidential informant because the statement was hearsay and violated the Confrontation Clause; 2) by failing to order the State to disclose to the Defendant the identity of the alleged confidential informant and any exculpatory evidence or information relevant to credibility or for impeachment in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); 3) by allowing the State to admit other crimes evidence under West Virginia Rule of Evidence 404(b), because such evidence created extreme unfair prejudice against the Defendant and had no or only slight probative [87]*87value; 4) by instructing the jury regarding the concerted action principle because the evidence did not support the theory; 5) by failing to set aside the verdict due to insufficient evidence for the jury to convict the Defendant for first degree arson; 6) by permitting the State to publish a statement of Brian Salyers that, even if portions of it were properly admissible, included irrelevant and improper opinion testimony and discussions of unfairly prejudicial alleged bad acts and character evidence concerning the Defendant, Tommy Owens, and others;2 and 7) by permitting cumulative errors during the trial which resulted in an unfair trial requiring reversal. Based upon a review of the parties’ briefs, their respective arguments, the record, and all other matters before the Court, the decision of the trial court is affirmed.

I. Facts and Proceedings Below

On March 15, 2005, Dr. Whitley died as a result of asphyxiation due to smoke inhalation and thermal burns over ninety percent of his body3 that he suffered in a house fire at his residence in Iaeger, West Virginia. Firefighters found his body on the floor by his bed in his second floor bedroom. At the time of his death, Dr. Whitley was seventy years old and was nearly paralyzed, unable to walk and with little use of his hands, after falling in his home in 2000. Despite his physical condition, he by all accounts remained independent and continued to run a pain clinic, which was located next door to his Iaeger residence.

The victim actually had two residences in the Iaeger area, the one in Iaeger where he died, and another located outside of Iaeger on Coon Branch Mountain, where he had been residing with his wife until about a week prior to his death. At that time, Dr. WTiitley decided to move out of his Coon Branch home because he was unhappy. Dr. Whitley had informed his sons, Jack and Jeff, that he wanted to move to his Iaeger home. Before his sons returned to Iaeger to move their father, Dr. Whitley moved in with Kathy Lively,4 the Defendant’s mother. Ms. Lively testified that she had worked for Dr. Whitley for twenty-six years and her primary job was his nurse; however, she had also helped care for him. As part of her job duties, Ms. Lively was a signatory on Dr. Whitley’s bank account; wrote prescriptions; had the keys to Dr. Whitley’s home in Iaeger, the clinic, Dr. Whitley’s private office, and the drug sample room; saw patients; and controlled the payroll. There was testimony from another clinic employee, Louise Christian, that Ms. Lively wrote prescriptions for the Defendant, who would frequent the clinic three or four times a week, and she also gave him injections of medications. Ms. Lively also would write prescriptions in her own name and have Ms. Christian give her the medications. Ms. Lively, however, testified that Dr. Whitley had total power at the office and that she would not do anything without his approval.

Additionally, during the week that Dr. Whitley stayed with the Livelys, the Defendant testified that he helped take care of him, including running errands for him, pre[88]*88paring meals for him, and sitting with him. According to the Defendant, Dr. 'Whitley agreed to pay the Defendant fifty dollars a week, so the Defendant quit his logging job.

The weekend prior to Dr. Whitley’s death, just several days after he moved into Kathy Lively’s home, Dr. "Whitley’s sons returned to move him to his home in Iaeger. Jack stated that his father was upset and anxious when he arrived at the Lively home, while Jeff stated that his father looked seared. He testified that his father did not have any type of close relationship with the Defendant. Instead, according to Jack, his father told him that he was glad to get away from the Lively home, because Dr. Whitley and the Defendant had “got into it,” and Dr. Whitley was afraid that the Defendant was going to hit him.

In conjunction with moving their father back to Iaeger, Dr. Whitley’s sons contacted Sherry Addair and arranged for her to move in to the home with their father and take care of him. Ms. Addair was expected to come to the home either Tuesday night, March 15, or Wednesday morning, March 16.

While Jack left to reten to his home on Sunday, after moving his father into his Iaeger home, Jeff remained until Monday, March 14. Prior to Jeffs leaving on Monday, Dr. Whitley reassigned the administrative duties at his clinic, removing Ms. Lively’s name from the clinic’s bank accounts,5 taking her keys, and prohibiting her from writing prescriptions without them being initialed by Ms. Christian. Ms. Lively and Dr. Whitley got into a heated argument at the doctor’s home, in front of Jeff, Ms. Christian, and the local bank president, Jim Sizemore. Even though the evidence was that Ms. Lively and the doctor were known to argue, on this occasion, both Jeff and Ms. Christian testified that Ms. Lively threatened Dr. Whitley, stating “I’ll kill you, you SOB[,]” and that “he wasn’t going to do this to her____ She’d took care of him for 25 years. And that she’d kill him, that he wasn’t going to do this.” Ms. Lively, however, testified that she never threatened to kill Dr. Whitley and that Dr. Whitley’s reassignment of all of her administrative duties, including having to have all prescriptions she wrote initialed by another employee did not bother her in the least.

Before Jeff left to return to his home, he asked both Ms. Christian and Shirley Cline, another employee of the clinic, to bring breakfast and cheek on his father on Tuesday morning, March 15. Ms. Christian was the last person to see the doctor on Monday evening. She left his home about 7:00 p.m. and locked the front door. The testimony was that Ms. Lively was one of only a few people that knew that Dr. Whitley would be alone on Monday evening. Also, Ms. Lively knew that Dr. Whitley had no phone service in his home as the phone company had not yet reestablished service.

During the trial, Tim Butler testified that he was driving to work the next morning between 8:00 a.m. and 8:15 a.m., when he passed Dr. Whitley’s house as he did every morning. Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
697 S.E.2d 117, 226 W. Va. 81, 2010 W. Va. LEXIS 78, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lively-wva-2010.