WEST VIRGINIA RECORD

CHARLESTON – Valerie Whittaker failed to persuade the West Virginia Supreme Court of Appeals that she killed in self defense, but the Justices failed to banish shadows of doubt.

Although they affirmed Whittaker's voluntary manslaughter conviction April 5, they delivered a cry of pain rather than a clear decision.

"We sympathize with the plight in which Ms. Whittaker found herself after her numerous attempts to seek help from law enforcement authorities were unsuccessful," the unsigned opinion declared.

They encouraged other branches of government to renew their commitment to the safety, security and dignity of victims of domestic abuse.

This uncertain opinion didn't really attract a majority.

Among five Justices, only Chief Justice Robin Davis and Brent Benjamin endorsed the expression of sympathy.

Spike Maynard reserved the right to file a concurring opinion.

Larry Starcher and Joseph Albright reserved the right to file dissenting opinions, apparently accepting a claim of self defense.

Whittaker has served time and made parole. She shot Jerry Calvin Mills from 17 feet away in her home in 2003. She hit him between the eyes.

Seven days earlier, she had obtained a protective order against him at Mercer County Courthouse, and she had obtained three previous protective orders against him.

After she shot Mills, she put a gun in his hand and called State Police. She met police at a landmark, and they drove her to her home. On the way, she made a statement.

At her home, she made statements that police recorded. They drove her to their barracks where she made more statements.

They drove her to Princeton for arraignment. On the way, she made more statements.

A grand jury indicted her on a charge of first degree murder.

Circuit Judge John Frazier held trial in 2004, and State Police testified about all the statements Whittaker made.

At the end her attorney, David Smith of Bluefield, moved for judgment of acquittal based on self defense. Frazier denied it.

Jurors rejected first degree murder and found Whittaker guilty of voluntary manslaughter.

In 2005, Frazier sentenced her to 10 years, but he gave her credit for a year and a half she had already spent in custody.

Smith asked the Supreme Court of Appeals to reverse the verdict. He argued that Frazier should have granted his motion for acquittal.

He said Frazier limited testimony of Whittaker's witnesses, refused to admit Whittaker's evidence and should not have allowed police to testify about statements they did not record.

Frazier then ordered that Whittaker stay at Southern Regional Jail rather than the penitentiary while she appealed her conviction. She made parole this Feb. 9. Five days later, Justices heard oral arguments on her appeal.

Smith represented Whittaker. Deputy attorney general Dawn Warfield represented the state.

The April 5 majority opinion found that, "the State presented evidence sufficient to deny Ms. Whittaker's motion for judgment of acquittal. ...

"She admitted that Mr. Mills did not have a gun in his hand at that moment and that she later placed one in his hand to bolster her self-defense claim.

"In any event, determinations as to the credibility of witnesses are matters for the jury to resolve, not matters to be decided by either the trial court or this Court."

They wrote that jurors reduced the charge from murder to manslaughter.

"The absence of malice distinguishes the crime of voluntary manslaughter from the crime of murder," they wrote, adding that Frazier properly excluded hearsay testimony on Whittaker's state of mind from two aunts and a pastor.

They wrote that Whittaker's statement to an aunt hours before the shooting was too remote in time to be relevant to her state of mind.

The rest of Smith's arguments only irritated the Justices.

They declared they found no merit in his objections on evidence, and they derided his argument that if police had taped all her statements they might have preserved statements that exculpated her.

They also wrote that she did not argue that she made exculpatory statements.

"We decline to decide whether there is a state constitutional right for a criminal suspect to have his or her confession or interrogation recorded," they wrote. "This Court will not decide abstract issues where there is no controversy."