State v. Miller

513 S.E.2d 147, 204 W. Va. 374, 1998 W. Va. LEXIS 250
CourtWest Virginia Supreme Court
DecidedDecember 14, 1998
Docket25168
StatusPublished
Cited by7 cases

This text of 513 S.E.2d 147 (State v. Miller) 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. Miller, 513 S.E.2d 147, 204 W. Va. 374, 1998 W. Va. LEXIS 250 (W. Va. 1998).

Opinions

PER CURIAM:

In April of 1997, the appellant, Penny Gail Miller, was convicted in the Circuit Court of McDowell County of the first-degree murder of her former husband, David Stinson. The jury did not recommend mercy, and the appellant was consequently sentenced to life imprisonment without the possibility of parole.

[377]*377Penny Gail Miller did not shoot David Stinson. Stinson was shot to death in February of 1996 by his and the appellant’s teenaged son, Christopher Stinson. Christopher Stinson pled guilty as an adult to second-degree murder in his father’s death. The appellant was convicted of first-degree murder based on her being a principal in the second degree (or aider and abettor) in the shooting of David Stinson.

The appellant has assigned and briefed a number of alleged errors in the conduct of her trial. She is supported in her argument in the instant appeal with an able brief from the amici curiae, the West Virginia Coalition Against Domestic Violence and the West Virginia Chapter of the National Organization of Women.

Upon our review of those asserted errors that were properly preserved at the appellant’s trial for review upon a direct appeal, we find that they are not meritorious and therefore do not warrant the reversal of the appellant’s conviction. We decline to invoke the plain error doctrine to review those errors that were not properly preserved for direct appellate review. Consequently, we affirm the judgment of the circuit court.

I.

The evidence at trial showed that the appellant, Penny Gail Miller, a 36-year-old woman, had experienced nearly 2 decades of physical and mental abuse at the hands of David Stinson.

The appellant’s expert witness, forensic clinical psychologist Dr. Leroy A. Stone, testified that diagnosing the appellant with Post-Traumatic Stress Disorder was “a very easy call.” It was. “almost a textbook case.” The appellant had “many years of exposure to severe, life threatening, physical abuse, also, psychological abuse from [David Stin-son].” Moreover, Dr. Stone testified that the facts supporting the clinical diagnosis of Post-Traumatic Stress Disorder were particularly convincing because, “ — in this particular ease, there was a great deal of official documentation that was created by other community resources in the past that supported what [the appellant] had to say ... I had from her a documented personal history that was ... far more extensive than I’ve seen in, maybe, ninety-nine percent of my cases.”

The State’s expert witness, a clinical psychologist and West Virginia University professor, Dr. William Fremouw, also testified at the appellant’s trial that psychological testing of the appellant “confirm[ed] that she has Post-Traumatic Stress Disorder arising from her abusive relationship with her ex-husband.” Dr. Fremouw said, “I feel that she was a battered woman” and “I believe that she really does have Post-Traumatic Stress Disorder.”

The relationship between the appellant and David Stinson began when she dropped out of school in the 8th grade1 to be with David. “He really didn’t want me going to school,” thé appellant told the jury, “so, I quit to be with him.” They had a baby, and the appellant married David Stinson when she was 18. “I think on the third day we were married, he beat on me, and I filed [for divorce], but I dropped it. I loved David, and I didn’t want to be apart from him.” The marriage lasted only 2 years, but the appellant subsequently remarried David Stinson. Their second marriage lasted more than a decade. They had two children: Christopher Lee, and David Cheyenne, who is a year younger than Christopher.

When asked at trial why she remarried David Stinson, the appellant testified that she was afraid “Welfare” would take her children away from her if she did not remarry him. However, Patricia England, an advocate director of Stop Abusive Family Environments (S.A.F.E.), to whom the appellant went for help on a number of occasions, testified that the appellant had told Ms. England that the appellant had also remarried David Stinson out of fear:

I asked her ... when she came back in to ... file another [domestic violence] petition ... why she had remarried him. She had told me then that when she was divorced from David she never knew when he was going to pop up, when he was going [378]*378to be outside, or when he was just going to walk into the home, or — but, as long as she was married to him, she always knew where he was. He was right there and she would know where — when to expect the next hit.

“I wasn’t allowed to lay out in the sun or wear shorts,” the appellant testified, “but I’d been laying out in the sun while David was gone, and I had a bathing suit top on, and I walked over to the bridge, ... and David started beating on me .... He slapped me down, and he beat on me pretty bad that day, and I went off the bridge.” The appellant fell 40 feet; the evidence was equivocal as to whether she was pushed or jumped off the bridge. She “was in the hospital for a long time, and when I came to, I had broken hips.”

On another occasion, the appellant testified that David Stinson severely cut the appellant’s fingers with a butcher knife. The appellant testified:

... as I pulled in [to a convenience store parking lot], David jumped across the fence with a butcher knife in his hand, and he had hid behind my car ... and ... David come to me, and had the knife to my throat and he was hollering at [a] man to come out and watch him cut my throat.
I put my hands around the knife, and he just jerked it out of my hands. He cut three fingers and a thumb. They took him — the state police took him, or the counties — they took him to the Steven’s Clinic Hospital and made him watch them sew me up. I had lost blood and was in body shock. David stood there and laughed.

Other evidence of physical and psychological abuse of the appellant by David Stinson that was presented to the jury included: his beating the appellant’s head into a concrete wall; his attacking the appellant with a two-by-four with protruding nails; his forcing the appellant to have sex with him; his coming home drunk and destroying “every stick of furniture” in the house, television sets, VCRs and other electrical appliances; his destroying the appellant’s car with “hammers, rocks,” “removing the alternator,” “bust[ing the] window out with a lug wrench” and by “defecat[ing] into the car;” “... he would come in and beat on me if he got mad at somebody for something down the road.... ”

When the appellant and David Stinson were separated, David stalked her. Their son Christopher Stinson testified, “He would hang around, watch her, kind of like, a spy or something;” the appellant “wasn’t even allowed to have [her] own friends.” In May, 1993 the appellant filed a petition for a restraining order, alleging “threats, staring at her, name calling.”

The appellant frequently sought help and protection from David Stinson’s abuse. Patricia England testified that between February of 1990 and October of 1995, the appellant had 10 contacts with S.A.F.E. The record of these contacts all involved activities such as seeking restraining orders, filing contempt charges, divorce hearings, and hospitalization due to physical abuse. Dr. Fremouw told the jury that the appellant once escaped to a “shelter in the State of Tennessee as a result of the hands of domestic violence of her husband.”

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State v. Miller
513 S.E.2d 147 (West Virginia Supreme Court, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
513 S.E.2d 147, 204 W. Va. 374, 1998 W. Va. LEXIS 250, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-miller-wva-1998.