Steven Stockton
Assistant Attorney General
State of West Virginia
Charleston, West Virginia
Counsel for Appellee
Edward L. Bullman
Shaffer & Shaffer
Madison, West Virginia
Counsel for Appellant
This Opinion was delivered PER CURIAM.
1. "Under Rule 801(d)(1)(A) of the West Virginia Rules of
Evidence, a witness's prior inconsistent statement is not hearsay
and may be used as substantive evidence if it meets certain
prerequisites. First, the statement must have been given under
oath subject to the penalty of perjury at a trial, hearing, or
other proceeding, or in a deposition. Second, the statement must
be inconsistent with the witness's testimony at trial, and the
witness must be subject to cross-examination." Syl. Pt. 1, State
v. Collins, 186 W. Va. 1, 409 S.E.2d 181 (1990).
2. "A prior statement of a witness, even if given under oath,
during the course of a police interrogation is not a statement made
subject to the penalty of perjury or during a trial, hearing, or
other proceeding as required by Rule 801(d)(1)(A) of the West
Virginia Rules of Evidence." Syl. Pt. 2, State v. Collins, 186 W.
Va. 1, 409 S.E.2d 181 (1990).
3. "While a specific foundation need not initially be made to
impeach a witness with a prior inconsistent statement, the witness
must be informed of the general nature of his prior inconsistent
statement, and be afforded the opportunity to explain or deny the
same. There is also a right, if requested, on the part of his
counsel to see any prior written statement or to have disclosed the
contents of a prior inconsistent oral statement during the course
of interrogation. All of the above is subject to the sound
discretion of the trial court." Syl. Pt. 5, Addair v. Bryant, 168
W. Va. 306, 284 S.E.2d 374 (1981).
4. "Where the witness cannot recall the prior statement or
denies making it, then under W. Va. R. Evid. 613(b), extrinsic
evidence as to the out-of-court statement may be shown--that is,
the out-of-court statement itself may be introduced or, if oral,
through the third party to whom it was made. However, the
impeached witness must be afforded an opportunity to explain the
inconsistency." Syl. Pt. 4, State v. Schoolcraft, 183 W. Va. 579,
396 S.E.2d 760 (1990).
5. "'Where improper evidence of a nonconstitutional nature is
introduced by the State in a criminal trial, the test to determine
if the error is harmless is: (1) the inadmissible evidence must be
removed from the State's case and a determination made as to
whether the remaining evidence is sufficient to convince impartial
minds of the defendant's guilt beyond a reasonable doubt; (2) if
the remaining evidence is found to be insufficient, the error is
not harmless; (3) if the remaining evidence is sufficient to
support the conviction, an analysis must then be made to determine
whether the error had any prejudicial effect on the jury.'
Syllabus Point 2, State v. Atkins, 163 W. Va. 502, 261 S.E.2d 55
(1979), cert. denied, 445 U.S. 904, 100 S. Ct. 1081, 63 L.E.2d 320
(1980)." Syl. Pt. 6, State v. Smith, 178 W. Va. 104, 358 S.E.2d
188 (1987).
Per Curiam:
This case is before the Court upon the November 26, 1990,
final order of the Circuit Court of Logan County sentencing the
Defendant to life imprisonment without the possibility of parole
for first degree murder, sixty years imprisonment for aggravated
robbery, an indeterminate sentence of not less than one nor more
than fifteen years for burglary, and a $100 fine for trespass, with
all terms of imprisonment to be served consecutively. The
Defendant makes the following assignments of error: 1) the trial
court violated the prohibition against double jeopardy in allowing
the jury to find the Defendant guilty of both aggravated robbery
and first degree murder of the same victim; 2) the trial court
committed error by failing to hold a hearing as required by Watson
v. Black, 161 W. Va. 46, 239 S.E.2d 664 (1977), on the Defendant's
request for a new court-appointed counsel; 3) the trial court erred
in allowing evidence of alleged flight including, the Defendant's
use of a disguise several years prior to the charged offense; 4)
the trial court erred in allowing circumstantial evidence to go to
the jury without a proper circumstantial evidence instruction; 5)
the trial court erred in permitting the prosecuting attorney to
read the statement of a witness, James Maynard, in closing argument
when the statement was not admitted into evidence during the
trial;See footnote 1 6) the Defendant was denied effective assistance of counsel
at trial by the failure of defense attorney to object to the State
reading during closing argument the statement of a witness not
previously admitted into evidence; 7) the trial court erred in
failing to instruct the jury that, upon continuing their
deliberations, they should not surrender well-founded convictions
conscientiously held when the court had been informed by the jury
that they were divided nine to three for conviction; 8) the trial
court committed error by failing to properly instruct the Defendant
about his right to testify and failing to obtain a knowing and
intelligent waiver of that right on the record; 9) the trial court
erred in allowing the State, during closing argument, to
impermissibly comment on the Defendant's failure to testify or
offer evidence. We find that the trial court erred in permitting
the prosecuting attorney to read James Maynard's statement in
closing argument without a cautionary instruction; however, we find
this error to be harmless in light of the overwhelming evidence
against the defendant, and accordingly affirm the decision of the
Circuit Court of Boone County.
James Matthews testified that on August 3, 1987, he became
concerned about his neighbor, Calvin Tomblin, because he had not
seen Tomblin all day and Tomblin's garage door was
uncharacteristically left open. Matthews then went over to his
neighbor's home and upon looking in the garage, he discovered a
"white piece of bradish cloth or mine tarp" with blood on it, a
baseball bat with blood on it, Tomblin's Bible with blood on it and
blood on the garage door. Matthews called the West Virginia State
Police, who began an investigation.
Trooper Harper testified that at the scene he discovered a
pair of broken glasses with bloodstains on them next to the Bible
and ascertained that Tomblin's vehicle was missing. Trooper Harper
also testified that his investigation revealed that the last person
known to have seen Tomblin alive was Marie Sargent.
Sargent testified that she saw Tomblin on August 2, 1987.
According to Sargent's testimony, she and Tomblin had recently
become engaged to marry. Sargent testified that, to her knowledge,
the Defendant did not know the victim. However, Sargent had known
the Defendant approximately two years prior to her engagement to
Tomblin. She met the Defendant when he came to her house because
his hands were frostbitten and she helped him. Sargent testified
that she stopped taking care of the Defendant approximately one
month prior to Tomblin's disappearance, which also was about the
same time she began seeing Tomblin, and that approximately three
weeks before Tomblin's disappearance, the Defendant had telephoned
Sargent and said that "if he couldn't have [her] nobody else
could."
The burned automobile belonging to Tomblin was found on August
5, 1987 at Sweetwater, a remote area of Wayne County, pursuant to
a tip. Teresa Prince, an acquaintance of the Defendant, testified
that she saw the Defendant and a male passenger driving a car in
the same vicinity where the victim's burned car was found on August
2, 1987. While Prince positively identified the Defendant as one
of the two individuals riding in the car on that date, she could
not identify the passenger as the man reportedly hid his face.
Trooper Harper testified that on August 14, 1987, he received
a tip that Raymond Spaulding and Loretta Brewer, Spaulding's
girlfriend, might have information regarding Tomblin's automobile.
Trooper Harper testified that after interviewing both of these
individuals, he recovered a battery and an automatic jack from
Spaulding's car, both of which had been removed from the victim's
car prior to burning it. The battery, jack and Spaulding's car
were seized at this time.
Spaulding testified at trial that the Defendant approached him
on August 2, 1987, and asked him to install a water pump on the
Defendant's car. While the Defendant was waiting for a ride, he
mentioned to Spaulding "that he had a car that needed a[n]
insurance job done [on it]." When the Defendant's ride failed to
come, the Defendant asked Spaulding for a ride to his girlfriend's
house. Before Spaulding dropped the Defendant at the requested
destination,See footnote 2 the Defendant asked Spaulding if he would return
later and take him and his girlfriend to Sweetwater, West Virginia.
Spaulding agreed to this request. Spaulding later returned with
his girlfriend to the same place he had left the Defendant earlier
that day. After waiting for a while, they finally met the
Defendant on the road. The Defendant was driving what was later
identified as Tomblin's automobile, without any girlfriend.
Both Spaulding and Brewer testified that they noticed that the
Defendant had blood on him. The Defendant proceeded to take a jack
out of the trunk of Tomblin's car and give it to Spaulding. Brewer
testified that the Defendant also had a baseball bat with blood on
it and a gun in his possession. According to both Spaulding and
Brewer, the Defendant told them that he had been in a fight with
some men who were trying to get his money. Spaulding testified
further that the Defendant told them that the car he was driving
belonged to his girlfriend's father and that he wanted to get rid
of it. At this point in time, nothing was done to the car except
that it was abandoned in the woods near Sweetwater.
The threesome went to Spaulding's home where the Defendant
proceeded to clean up and change clothes.See footnote 3 The Defendant then
asked Spaulding to take him back to Corridor G so that he could see
a man who owed him some money. According to Spaulding, while he
and Brewer were driving the Defendant back to Corridor G, the
defendant had Spaulding pull off the CorridorSee footnote 4 and wait while he
went and collected the money. The Defendant was gone for about an
hour before returning with a bag of money from which he gave
Spaulding approximately sixty dollars. Spaulding and Brewer then
proceeded to take the Defendant home. Spaulding testified that
during the trip, the Defendant again suggested that the couple
return to Wayne County to strip his girlfriend's father's car.
Spaulding and Brewer both testified that after driving the
Defendant home, they returned to the wooded area near Sweetwater
where the Defendant had left the vehicle. Spaulding then removed
the battery before pouring gasoline on the interior of the car and
igniting it.
After taking a statement from Spaulding, the state police
began a search of the area located near Corridor G where Spaulding
testified he had dropped off the Defendant on the night of August
2, 1987. On August 15, 1987, the state police found Tomblin's
badly decomposed body. Trooper Harper testified that they also
found the victim's billfold, without any money,See footnote 5 next to the
victim.
Dr. Irvin Sopher, a forensic pathologist and Chief Medical
Examiner for the State, testified that Tomblin's death was "due to
both . . . blunt force injuries to the head and . . . [a] gun shot
wound" to the head. Dr. Sopher further testified that the blunt
force trauma could have been inflicted by a baseball bat like the
one found in Tomblin's garage.
Following the discovery of Tomblin's body, a warrant was
obtained for the Defendant's arrest on August 15, 1987. Trooper
Harper testified that they initially attempted to serve the warrant
on the Defendant at his home, but were unable to do so because of
his absence. Trooper Harper received information from a friend of
the Defendant's, James Maynard, that the Defendant might have gone
to Ohio to try and break his son out of prison. Upon verifying
that the Defendant's son was in an Ohio prison, Trooper Harper
requested that the Ohio authorities help locate the Defendant. The
Defendant was arrested in Ohio in late September 1987.
At trial, the State presented the testimony of James Maynard.
Maynard testified that on August 2, 1987, the Defendant offered him
$500 to burn a car. Maynard also testified that on August 2, 1987,
the Defendant was in possession of a pistol like one described in
Maynard's statement. Maynard testified that the Defendant showed
him the $500 on August 2, 1987. Maynard also testified that on
August 2, 1987, the Defendant had in his automobile a baseball bat
like the one recovered from Tomblin's garage. Maynard further
testified that the automobile the Defendant sought to burn belonged
to the person the Defendant wanted to "get."
Most of Maynard's testimony was consistent with a prior
statement he had given to police on August 17, 1987. At trial,
however, one inconsistency developed. In that statement, he said
that the Defendant had told him that "he was going to get Calvin
Tomblin," but at trial he remembered the name as Calvin Kline.
The primary issue for resolution in this case is whether
Maynard's out-of-court statement was properly admitted and used at
trial. The Defendant argues that it was plain error for the trial
court to permit the State to read a statement of a witness in a
closing argument that was not admitted into evidence during the
trial. The State, however, contends the statement was properly
admitted and argues that it was not error for the trial court to
allow its reading in closing.
The witness was questioned by the State concerning the
inconsistency, but the written statement itself was not offered or
admitted into evidence while either Maynard or the officer who took
the statement were on the witness stand. At the close of the
State's case-in-chief, however, the prosecutor "move[d] for the
admission of all the exhibits in this case that have not been
already admitted into evidence." The trial court granted this
motion without objection by the Defendant.
Thus, the statement clearly was admitted into evidence. In
determining whether the statement was properly admitted at trial,
it is helpful to examine the exchange that occurred between the
State and Maynard concerning his prior statement to the police.See footnote 6
Following is the exchange that occurred:
(By the prosecuting attorney)
Q: I want to ask you a question
concerning the statement you gave to
the police. Who did you give it to?
A: That officer [Trooper Harper] right there.
(witness indicating.)
. . . .
Q: When and where did you give that
statement?
A: He pulled me over one day and there was
three or four of them in the car and they
took my statement right there.
. . . .
Q: Would you mark this?
(Whereupon the item referred to, was marked
for the purpose of identification as
Plaintiff's Exhibit Number 69.)
. . . .
A: (Witness reviewing document)
It is the statement I made to him.
(witness indicating)
Q: . . . Does it appear to be a true
copy of the statement that you gave?
A: . . . Yeah.
Q: I would like you to read that statement
now for the purpose of seeing if it
refreshes your recollection as to who Sam
[the defendant] told you on that occasion
that he wanted to get?
A: Well, he said something about Calvin
Kline but he didn't go into any
details or nothing.
Q: Do you remember that now?
A: Yes, sir, I read it and it refreshed
my memory.
Q: Read the statement again for the
purpose of refreshing your
recollection as to the last name of
this Calvin that you have just
testified about?
A: Do what now?
Q: . . . Do you remember the last name of
Calvin that Sam Moore gave to you on that
occasion?
A: No.
Q: Well, read the statement.
A: I can't read.
At this point, the jury was excused while the statement was
read to Maynard in order to refresh his memory. Upon the jury's
return, the prosecutor asked Maynard if the reading of the
statement refreshed his memory and Maynard responded that it did;
however, Maynard still stated that he remembered Calvin's last name
as being Kline. The State propounded no further questions and the
defense did not question the witness.
The prosecutor began his closing argument by reading in its
entirety the prior statement which Maynard made to the police in
which he stated that "Sam told me that he wanted to burn the car
and [that] he was going to get Calvin Tomblin." The issue of the
propriety of the admission and use of Maynard's pre-trial statement
must be examined in both the context of the law regarding
substantive and impeachment evidence.
Maynard's statement was not properly admissible as substantive
evidence. West Virginia Rule of Evidence 801(d)(1)(A) provides:
A statement is not hearsay if - -
(1) Prior Statement by Witness. -- The
declarant testifies at the trial or hearing
and is subject to cross-examination concerning
the statement, and the statement is (A)
inconsistent with his testimony, and was given
under oath subject to the penalty of perjury
at a trial, hearing, or other proceeding, or
in a deposition. . . .
In syllabus point 1 of State v. Collins, this Court held that:
Under Rule 801(d)(1)(A) of the West
Virginia Rules of Evidence, a witness's prior
inconsistent statement is not hearsay and may
be used as substantive evidence if it meets
certain prerequisites. First, the statement
must have been given under oath subject to the
penalty of perjury at a trial, hearing, or
other proceeding, or in a deposition. Second,
the statement must be inconsistent with the
witness's testimony at trial, and the witness
must be subject to cross examination.
186 W. Va. at 1, 409 S.E.2d (1990); accord, Syl. Pt. 1, State v.
Moore, 186 W. Va. 23, 409 S.E.2d 490 (1990). We also held in
Collins that "[a] prior statement of a witness, even if given under
oath, during the course of a police interrogation is not a
statement made subject to the penalty of perjury or during a trial,
hearing, or other proceeding as required by Rule 801(d)(1)(A) of
the West Virginia Rule of Evidence." 186 W. Va. at 3, 409 S.E.2d
at 183, Syl. Pt. 2.
Thus, Maynard's statement fails to meet the requirements
necessary to be admitted as substantive evidence pursuant to West
Virginia Rule of Evidence 801(d)(1)(A), because although it was
inconsistent with the witness's testimony at trial, and the witness
was subject to cross-examination, it was a statement given "during
the course of police interrogation." Collins, 186 W. Va. at 3,
409-S.E.2d at 183." Therefore, it is not a "statement made subject
to the penalty of perjury or during a trial, hearing, or other
proceeding, or in a deposition," and was not properly admitted at
trial under West Virginia Rule of Evidence 801(d)(1)(A).
West Virginia Rule of Evidence 613 provides the following:
(a) Examining Witness Concerning Prior
Statement. - In examining a witness concerning
a prior statement made by him, whether written
or not, the statement need not be shown nor
its contents disclosed to him at that time,
but on request the same shall be shown or
disclosed to opposing counsel.
(b) Extrinsic Evidence of Prior Inconsistent
Statement of Witness. - Extrinsic evidence of
a prior inconsistent statement by a witness is
not admissible unless the witness is afforded
an opportunity to explain or deny the same and
the opposite party is afforded an opportunity
to interrogate him thereon, or the interests
of justice otherwise require. This provision
does not apply to admissions of a party-opponent as defined in Rule 801(d)(2).
In Addair v. Bryant, 168 W. Va. 306, 284 S.E.2d 374 (1981),
this Court summarized the impact that West Virginia Rule of
Evidence 613 had on the introduction of extrinsic evidence of a
prior inconsistent statement for impeachment purposes. In syllabus
point 5 of Addair, we held that
While a specific foundationSee footnote 7 need not
initially be made to impeach a witness with a
prior inconsistent statement, the witness must
be informed of the general nature of his prior
inconsistent statement, and be afforded the
opportunity to explain or deny the same.
There is also a right, if requested, on the
part of his counsel to see any prior written
statement or to have disclosed the contents of
a prior inconsistent oral statement during the
course of interrogation. All of the above is
subject to the sound discretion of the trial
court.
Id. at ___, 284 S.E.2d at 376.
We again interpreted West Virginia Rule of Evidence 613 in
syllabus point 4 of State v. Schoolcraft, 183 W. Va. 579, 396
S.E.2d 760 (1990). In Schoolcraft, this Court held that
[w]here the witness cannot recall the prior
statement or denies making it, then under W.
Va. R. Evid. 613(b), extrinsic evidence as to
the out-of-court statement may be shown - that
is, the out-of-court statement itself may be
introduced or, if oral, through the third
party to whom it was made. However, the
impeached witness must be afforded an
opportunity to explain the inconsistency.
Id.
In the present case, the record is clear that the statement
was admissible for impeachment purposes. The witness was informed
of the prior inconsistent statement and was given ample opportunity
to explain or deny the inconsistency. Moreover, the Defendant's
counsel certainly could have interrogated the witness regarding the
inconsistency. Thus, the State could have properly admitted
Maynard's inconsistent statement for impeachment purposes pursuant
to West Virginia Rule of Evidence 613 except for the failure of
both the State and the trial court to comply with this Court's
decision in Collins, 186 W. Va. at 1, 409 S.E.2d at 181 (1990).
See 186 W. Va. at 23, 409 S.E.2d at 490.
In Collins, this Court held that "the trial court has an obligation to instruct the jury that the impeaching testimony may only be considered as bearing on the witness's credibility and not as substantive evidence." 186 W. Va. at 9-10, 409 S.E.2d at 189-90.
Here, the trial court failed to give a limiting instruction that
the statement was admitted for impeachment purposes only.
Consequently, what effectively occurred, absent the instruction,
was that otherwise properly admissible impeachment evidence was
admitted improperly as substantive evidence. See id. at 3, 409
S.E.2d at 183, Syl. Pt. 4.
Rule 52(a) of the West Virginia Rules of Criminal Procedure provides that "[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." The harmless error doctrine was interpreted by this Court in syllabus point 6 of State v. Smith, 178 W. Va. 104, 358 S.E.2d 188 (1987) (quoting Syl. Pt. 2, State v. Atkins, 163 W. Va. 502, 261 S.E.2d 55 (1979), cert. denied, 445 U.S. 904 (1980)) as follows:
'Where improper evidence of a
nonconstitutional nature is introduced by the
State in a criminal trial, the test to
determine if the error is harmless is: (1)
the inadmissible evidence must be removed from
the State's case and a determination made as
to whether the remaining evidence is
sufficient to convince impartial minds of the
defendant's guilt beyond a reasonable doubt;
(2) if the remaining evidence is found to be
insufficient, the error is not harmless; (3)
if the remaining evidence is sufficient to
support the conviction, an analysis must then
be made to determine whether the error had any
prejudicial effect on the jury.'
Accord Syl. Pt. 3, State v. Edward Charles L., 183 W. Va. 641, 398
S.E.2d 123 (1990); Syl. Pt. 3, State v. Maynard, 183 W. Va. 1, 393
S.E.2d 221 (1990).
In the present case, we find no reversible error was committed
since without Maynard's prior inconsistent statement, there was
more than sufficient evidence to warrant a guilty verdict by the
jury. The evidence included the Defendant's statement to Marie
Sargent, the victim's girlfriend, that "if he couldn't have . . .
[her] nobody else could;" the testimony of Teresa Prince that she
saw the Defendant and an unidentified male passenger driving the
victim's car in the same vicinity where the victim's burned car was
found on the last day the victim was seen alive; and the testimony
of Raymond Spaulding and Loretta Brewer who placed the Defendant at
the scene of the crime the day it was committed, and who both saw
the Defendant with blood on him, saw the Defendant burn his
clothes, and received a battery and an automatic jack from the
Defendant which belonged to the victim. Additionally, Spaulding
and Brewer burned the victim's car, and connected the Defendant to
the various crime scene areas. Finally, Brewer testified to seeing
the bloody baseball bat and gun which were the murder weapons. In
light of the plethora of other evidence linking the Defendant with
the commission of the crime, the particular statement made by
Maynard cannot seriously be considered to have had any prejudicial
effect on the jury's consideration of the issues in this case.
Based upon the foregoing opinion, the decision of the Circuit
Court of Boone County is affirmed.
Footnote: 1Based upon a review of the record, we only find it necessary to address this assignment of error.
Footnote: 2This house was later determined to be the victim's home.
Footnote: 3The record indicates that the Defendant left his clothes at Spaulding's home until the next day when he went back and burned them with a pile of trash in Spaulding's backyard.
Footnote: 4The description of the area where Spaulding let the Defendant out matched the area where Tomblin's body was later found, according to the record.
Footnote: 5Evidence introduced at trial indicated that the victim always carried a large sum of money on his person.
Footnote: 6It is important to note that Maynard's in-court testimony was consistent with his pre-trial statement in all respects until this exchange occurred.
Footnote: 7As pointed out in F. Cleckley, Handbook on Evidence for West Virginia Lawyers § 4.2(B), at 162 (2d ed. 1986), while "[r]ule 613 abolishes the rule of 'show the witness the writing' . . .[,] [a]ll that is required is that the witness be given 'an opportunity to explain or deny the statement' and that the opposite party be given an opportunity to interrogate the witness on the statement before introduction."