STATE of West Virginia ex rel. O.C. SPAULDING, Prosecuting Attorney for Putnam County, Relator, v. Honorable Clarence L. WATT, Judge of the Circuit Court of Putnam County, and Mark J. McClelland, Respondents.
No. 21304.
Supreme Court of Appeals of West Virginia.
Submitted Sept. 2, 1992. Decided Sept. 17, 1992.
423 S.E.2d 217
In Syllabus Point 2 of State ex rel. Spaulding v. Watt, supra, we stated the legal basis for the writ of prohibition: “The State may seek a writ of prohibition in this Court in a criminal case where the trial court has exceeded or acted outside of its jurisdiction. Where the State claims that the trial court abused its legitimate powers, the State must demonstrate that the court‘s action was so flagrant that it was deprived of its right to prosecute the case or deprived of a valid conviction. In any event, the prohibition proceeding must offend neither the Double Jeopardy Clause nor the defendant‘s right to a speedy trial. Furthermore, the application for a writ of prohibition must be promptly presented.” Syllabus point 5, State v. Lewis, [188 W.Va. 85, 422 S.E.2d 807].
Mark A. Sorsaia, Asst. Pros. Atty. of Putnam County, Winfield, for relator.
Gregory J. Campbell, Charleston, for respondent Mark J. McClelland.
MILLER, Justice:
This is an original proceeding in prohibition. On July 21, 1992, we issued a rule, returnable on September 2, 1992. This proceeding represents the second time in recent months that these parties have appeared before this Court. The relator asks us to order the respondent, the Honorable Clarence L. Watt, Judge of the Circuit Court of Putnam County, to revoke the post-conviction bail of Mark J. McClelland.
In March of 1990, Mr. McClelland was convicted of nine counts of sexual assault in the first degree involving his five-year-old stepdaughter and his seven-year-old stepson. Mr. McClelland subsequently filed a motion for a new trial on the basis of newly discovered evidence. In November of 1991, the trial court granted that motion, and Mr. McClelland was freed on post-conviction bail.
Thereafter, the State sought a writ of prohibition in this Court to prevent the new trial. We granted the writ, holding that there was insufficient evidence to warrant a new trial and that the trial court had exceeded its legitimate powers in granting the motion. State ex rel. Spaulding v. Watt, 188 W.Va. 96, 422 S.E.2d 818 (1992).1
The State subsequently brought a motion before the circuit court to revoke bail on
Mr. McClelland argues that the circuit court was not precluded from granting him bail because he was not convicted of a crime involving violence to a person. In particular, Mr. McClelland was convicted of first degree sexual assault pursuant to
“(a) A person is guilty of sexual assault in the first degree when:
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“(2) Such person, being fourteen years old or more, engages in sexual intercourse or sexual intrusion with another person who is eleven years old or less.”
Unlike the crime of first degree sexual assault defined in
Mr. McClelland asserts that because the State prosecuted him under
In State v. Steele, 173 W.Va. 248, 314 S.E.2d 412 (1984), we discussed the procedure for obtaining post-conviction bail in this Court under
It appears that our post-conviction bail statute is unique. Statutes in other jurisdictions which preclude bail in certain circumstances fall into three general categories. One category of statute provides a list of specific crimes for which post-conviction bail is not authorized.7 The second type of statute conditions an award of post-conviction bail upon the length of the sentence imposed.8 Finally, there is a hybrid statute which determines whether bail is authorized by looking at both a list of specific crimes and the severity of the sentence imposed.9 See generally Annot., 28 A.L.R.4th 227 (1984) (right of defendant to bail pending appeal).
Perhaps as a result of the specificity of bail statutes in other jurisdictions, we have not encountered a case which discusses the meaning of “violence to a person” in the context of post-conviction bail exclusions. However, the California courts have addressed a similar issue in the context of a sentence enhancement statute. In People v. Hetherington, 154 Cal.App.3d 1132, 201 Cal.Rptr. 756 (1984), the court considered a statute which provided for an enhanced sentence upon conviction of a “violent felony.” The statute defined the term “violent felony” as including sexual acts against children under the age of fourteen. The defendant was convicted under the portion of the child molestation statute which did not require proof of forcible compulsion.
In determining whether this was a violent felony for purposes of the enhancement statute, the court in Hetherington initially focused on the interplay between these statutes. The court held that the legislature had expressly stated in the enhancement statute that “‘these specified crimes merit special consideration when imposing a sentence to display society‘s condemnation for such extraordinary crimes of violence against the person.’ (Italics added.)” 154 Cal.App.3d at 1139-40, 201 Cal.Rptr. at 760. The court then analyzed the phrase “violence against the person” to determine whether the enhancement statute applied only to crimes involving physical violence:
“We consider it significant that the statute refers simply to ‘violence’ rather than than to ‘physical violence,’ ‘physical injury’ or ‘bodily harm.’ The statute‘s unadorned language indicates the Legislature intended to impose increased punishment...not only for certain felonies which are ‘violent’ in a physical sense but also for other selected felonies which cause extraordinary psychological or emotional harm.” 154 Cal.App.3d at 1140, 201 Cal.Rptr. at 760.
See also People v. Stephenson, 160 Cal.App.3d 7, 206 Cal.Rptr. 444 (1984) (child molestation a violent felony).
There is, we believe, sound logic to this reasoning. As in Hetherington, the word “violence” in our post-conviction bail statute is not limited by the adjective “physical.” There can be no dispute that even in the absence of any significant physical trauma, sexual assaults on young children result in severe emotional and psychological harm.
In summary, we decline to resolve the question presented here solely on the ground that physical violence is not an element of the crimes of which Mr. McClelland was convicted. The fact that the State elected to prosecute first degree sexual assault under
For these reasons, we conclude that the offense of first degree sexual assault under
The trial court exceeded its legitimate powers in denying the State‘s motion to revoke bail under the circumstances of this case. We, therefore, grant the writ of prohibition prayed for, and direct the respondent judge to revoke Mr. McClelland‘s post-conviction bail.
Writ awarded.
NEELY, Justice, dissenting:
Mr. McClelland may well be a mean and nasty fellow who is guilty of the distasteful crime of statutory rape of his stepdaughter and his stepson. As I have pointed out before, however, when courts decide “easy” cases such as this one, they make bad law. See State v. Delaney, 187 W.Va. 212, 417 S.E.2d 903 (1992) (Neely, J., dissenting); Charlton v. Charlton, 186 W.Va. 670, 413 S.E.2d 911 (1991) (Neely, J., dissenting). In its holding today, the majority yields to the mass hysteria surrounding today‘s crime of fashion: sexual abuse of one‘s own children.
It is a deplorable fact that transgressions which used to be considered immoral are now shrugged off as not that important: drug use, promiscuity, marital infidelity, abandoning one‘s family, divorce for light or transient causes, and bearing children out of wedlock. We are no longer “judgmental” about these moral lapses; we merely provide “treatment” whenever the social services lobby can get a transgression covered by Medicaid. Sexually abusing one‘s own children is truly the only moral offense left that shocks us.
It is true that in some cases, perhaps even this one, parents or step-parents do indeed molest their children. However, the hysteria surrounding this crime has grown beyond imagination. From the Elizabeth Morgan-Eric Foretich case in the Washington, D.C., area1 to the celebrated accusations of Mia Farrow against Woody Allen surrounding their seven-year-old child Dylan, to the frequency of such charges in divorce actions today,2 the mere accusa-
Indeed, like witchcraft, child sexual abuse charges can seldom be proven conclusively one way or the other. There is certainly no way to disprove such an accusation unless the accused was absent beyond the seas during the entire relevant period. However, proving such an accusation is equally difficult. Traditionally, courts have developed the rules of evidence and presumptions of innocence in order to protect us all from unjust accusation and unfounded convictions. However, we have also had a disturbing willingness to set aside these rules when we “know” what really is going on. In Salem, Massachusetts, in 1695, they relaxed the burden of proof for witchcraft to mere tales told by children about how they dreamed someone was trying to steal their souls.3 Even more disturbing was the way the U.S. Supreme Court gave in to mass hysteria during World War II and ratified the interment of Japanese Americans solely because of their ancestry in Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944). Such cases do little to inspire confidence in the rule of law.
In yielding to the mass hysteria surrounding the charges of sexual abuse of children, we have lowered the standards of proof in order to obtain convictions at the expense of justice. For example, in State v. Delaney, 187 W.Va. 212, 417 S.E.2d 903 (1992), the majority required the normal standard of proof, expert qualifications of the examining and treating physician, and full and fair cross-examination of witnesses, in order to prove physical injuries. However the “expert” psychological testimony (the damning evidence in the case where the “expert” testified that the assaults actually occurred) was not given the same level of scrutiny:
On the other hand, the “expert” psychological testimony was provided by Ms. Pamela Rockwell, a sexual assault counselor with a bachelor‘s degree. Ms. Rockwell testified from her meetings with the victims that their behavior was consistent with having been sexually assaulted. However, she did not inquire into the children‘s backgrounds concerning other possible causes for their behavior; she did not talk to their teachers; and she did not talk to anyone who knew them before the assaults. She also testified that in her line of work she is basically an advocate for victims. This is ridiculous! [Emphasis original]
State v. Delaney, 187 W.Va. 212, 218, 417 S.E.2d 903, 909 (1992) (Neely, J., dissenting). Yet the majority commanded that such evidence was indeed admissible, and now such unreliable evidence has become the fuel that drives our system toward convictions and away from impartial adjudication according to ancient, time-tested criteria for truth-finding.4
The majority, with today‘s decision, has perverted a statute grotesquely simply to add additional punishment to a crime of fashion.
What was the rationale for selecting these cases? Obviously, the purpose of the statute was to keep exceedingly dangerous people off the streets.
This post-conviction bail statute must be construed narrowly against the state, for bail should not be readily foreclosed. If we hold that “use of violence” under
Just as in Korematsu, the majority opinion today is a bending of judicial integrity to the winds of popular opinion. And just like Korematsu, future commentators will look back and wonder how a court could ever allow itself to stray so far from its own principles. Accordingly, I dissent.