STATE of West Virginia v. Arthur Dale COLLINS.
No. 18795.
Supreme Court of Appeals of West Virginia.
June 22, 1990.
409 S.E.2d 181
MILLER, Justice
Dissenting Opinion of Justice Workman Aug. 2, 1991.
Roger W. Tompkins, Atty. Gen., Joanna I. Tabit, Asst. Atty. Gen., Charleston, for State.
MILLER, Justice:
The defendant, Arthur Dale Collins, was convicted of first degree murder by a Greenbrier County Circuit Court jury in May, 1987. He was sentenced to life imprisonment without mercy. The defendant assigns four primary errors: (1) the State‘s use of prior inconsistent statements by two witnesses, Tim Kelly and Lana Workman; (2) the failure to prove venue of the crime in Greenbrier County; (3) the involuntariness of the defendant‘s confession because he was not promptly presented before a magistrate; and (4) prosecutorial misconduct at trial. We find reversible error was committed in the use of the prior inconsistent statements; therefore, we reverse the defendant‘s conviction and remand the case for a new trial.
I. FACTS
On April 26, 1984, the body of Sarah Marshall was found in a laurel thicket near
After the body was identified, the state police began interviewing acquaintances of the victim. The police interviewed the defendant‘s sister, Lana Hudson;1 Danny Workman; and the defendant‘s mother, Nadine Collins. All three witnesses gave statements.
The State‘s case revealed that Sarah Marshall was originally from Greenbrier County and had moved to the Washington, D.C. area in 1976. During the end of March, 1984, the victim and Rick Marshall2 visited Ronceverte, West Virginia, and decided to move back on April 10, 1984. Shortly after returning to Greenbrier County, Sarah became reacquainted with Lana Workman, Danny Workman, and the defendant. Between April 10 and April 14, the victim, Rick, Danny, Lana, and the defendant spent a significant amount of time together partaking of marijuana, PCP, and alcohol.
On April 14, 1984, at approximately 7:00 p.m., the victim and the defendant left the victim‘s apartment to attempt to purchase some cocaine in Hinton, West Virginia. At Sarah‘s request, Lana stayed with Rick at the apartment to look after the victim‘s children. Sarah and the defendant drove to Hinton in Rick Marshall‘s 1969 Chevrolet.
At trial, the defendant‘s statement was introduced. In that statement, the defendant indicated that after he and the victim arrived in Hinton, he went into a bar and asked where he might be able to buy cocaine. Some patrons in the bar said that there had been two black men in a van in town earlier in the day who were selling cocaine. The defendant then proceeded to another beer garden and was given the same information. Sarah and the defendant decided to wait in the car to see if the men in the van would return.
Approximately fifteen minutes later, a brown van pulled up in front of the second bar. According to the defendant‘s statement, after Sarah spoke with the men in the van, she returned to the car and told the defendant that the men had some cocaine to sell in their apartment on the west side of town. Sarah decided to go with the men to their apartment, and the defendant was to wait in the car until Sarah returned. When Sarah had not returned approximately two hours later, the defendant concluded that he had been abandoned and decided to drive to Virginia Beach, Virginia.
In his statement, the defendant said that he arrived at Virginia Beach about daylight and stayed there for two or three hours. While at the beach, the defendant picked up two hitchhikers who wanted to go to District Heights, Maryland, and because he had friends in that area, the defendant agreed to give them a ride. The defendant remained in Maryland until April 23, 1984, when he decided to go to Florida with two hitchhikers he met in Maryland. The defendant and one of the hitchhikers, Tim Kelly, arrived at Kelly‘s sister‘s apartment in Tampa, Florida, at approximately 2:00 a.m. on April 25, 1984.
II. ADMISSIBILITY OF A PRIOR INCONSISTENT STATEMENT
A.
1. Rule 801(d)(1)(A) of the West Virginia Rules of Evidence
In October, 1985, the police questioned Tim Kelly at his home in Elmira, New
At trial, Mr. Kelly recanted these earlier statements when called as a State‘s witness.3 He testified that the defendant did not tell him he had killed Sarah Marshall. Mr. Kelly admitted that he had made the prior statement, but he explained that he had lied because the police had put him under extreme pressure. The prosecutor read portions of the prior statement into evidence and extensively questioned Mr. Kelly about the inconsistencies between it and his trial testimony. Defense counsel neither objected to the admission of the statement into evidence nor requested that the judge give a cautionary instruction to the jury.
There are two rules of evidence which apply to the use of a witness‘s prior inconsistent statement, i.e.,
Prior to the adoption of
“The orthodox rule with regard to prior inconsistent statements is that such statements cannot be accorded any value as substantive evidence. The reasoning which justifies this rule is that a prior out-of-court statement has not been made in the presence or hearing of the party against whom it is sought to be used and was not elicited under circumstances which permitted exploration of the witness‘s perception, memory, or prejudice. Therefore, under the orthodox rule, the only authorized use of a prior statement is to neutralize contrary testimony at trial. Jaggie v. Davis Colliery Co., 75 W.Va. 370, 84 S.E. 941 (1914); Wilson v. McCoy, 86 W.Va. 103, 103 S.E. 42 (1920); State v. Carduff, [142 W.Va. 18, 93 S.E.2d 502 (1956) ].” 159 W.Va. at 246, 220 S.E.2d at 661.
At the time Spadafore was decided, there was substantial criticism of the orthodox rule, and we also recognized the rule‘s limitations. Accordingly, we traced the evolution of
“In a criminal case prior out-of-court statements made by a witness cannot be admitted into evidence for the truth of the matter asserted unless they were made under oath in a judicial atmosphere during the taking of a deposition or at a former trial and were subject at that time to cross-examination by the opposing party‘s counsel.”
In 1985, with our ratification of the
Moreover, a majority of state courts have either adhered to the orthodox rule or have modified it as we have to permit a few limited exceptions. See, e.g., Varner v. State, 497 So.2d 1135 (Ala.Crim.App.1986); Reynolds v. State, 254 Ark. 1007, 497 S.W.2d 275 (1973); State v. Butler, 207 Conn. 619, 543 A.2d 270 (1988); State v. Drapeau, 97 Idaho 685, 551 P.2d 972 (1976); People v. Gant, 58 Ill.2d 178, 317 N.E.2d 564 (1974); State v. Denis, 384 So.2d 419 (La.1980); State v. Franco, 365 A.2d 807 (Me.1976); Ali v. State, 314 Md. 295, 550 A.2d 925 (1988); Commonwealth v. Daye, 393 Mass. 55, 469 N.E.2d 483 (1984); People v. Hallaway, 389 Mich. 265, 205 N.W.2d 451 (1973); Moffett v. State, 456 So.2d 714 (Miss.1984); State v. Gomes, 116 N.H. 113, 352 A.2d 713 (1976); State v. Dick, 27 Ohio St.2d 162, 56 O.O.2d 101, 271 N.E.2d 797 (1971); State v. Isaac, 477 A.2d 62 (R.I.1984); State v. O‘Brien, 318 N.W.2d 108 (S.D.1982); McFarlin v. State, 214 Tenn. 613, 381 S.W.2d 922 (1964); State v. Dragon, 128 Vt. 568, 268 A.2d 913 (1970); Williams v. Commonwealth, 193 Va. 764, 71 S.E.2d 73 (1952). See generally Annot., 30 A.L.R.4th 414 (1984 & Supp. 1989).
The State, while acknowledging this weighty authority, urges us to follow the few jurisdictions that permit a prior incon-
We decline to accept the State‘s position. It would require us to overrule Spadafore and its progeny. It would force us to ignore the plain language of
2. Rule 801(d)(1)(A) Requirements
The next question is whether Mr. Kelly‘s sworn statement to the police met the requirement under
The reason courts are reluctant to include police interrogations within the meaning of “other proceeding” was aptly explained by the Florida court in Delgado-Santos v. State, 471 So.2d at 78:
“Investigative interrogation is neither regulated nor regularized; it contains none of the safeguards involved in an appearance before a grand jury and does not otherwise even remotely resemble
that process; and it has no quality of formality and convention which could arguably raise the interrogation to a dignity akin to that of a hearing or trial.”
Accordingly, we hold 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
B.
Rule 607—Impeachment By Prior Inconsistent Statement
The right to impeach a witness under
The admonition in Kopa is echoed throughout federal cases, typical of which is United States v. Johnson, 802 F.2d 1459, 1466 (D.C.Cir. 1986), where the Court of Appeals stated:
“Impeachment evidence is to be used solely for the purpose of impeachment, and it may not be ‘employed as a mere subterfuge to get before the jury evidence not otherwise admissible.’ United States v. Morlang, 531 F.2d 183, 190 (4th Cir.1975). Accord United States v. Webster, 734 F.2d 1191, 1192 (7th Cir.1984); United States v. Miller, 664 F.2d 94, 97 (5th Cir.1981), cert. denied, 459 U.S. 854, 103 S.Ct. 121, 74 L.Ed.2d 106 (1982); United States v. DeLillo, 620 F.2d 939, 946 (2d Cir.), cert. denied, 449 U.S. 835, 101 S.Ct. 108, 66 L.Ed.2d 41 (1980); Whitehurst v. Wright, 592 F.2d 834, 839-40 (5th Cir.1979). This type of bootstrapping is impermissible, and it is ‘an abuse of the rule, in a criminal case, for the prosecution to call a witness that it [knows will] not give it useful evidence, just so it [can] introduce hearsay evidence against the defendant....’ United States v. Webster, supra, 734 F.2d [1191] at 1192 [7th Cir.1984].”
There is also general agreement that because impeachment by a prior inconsistent statement may not be employed as a mere subterfuge to get inadmissible evidence in front of the jury, a trial court has a duty to analyze the reason why a party wants to impeach its own witness. E.g., United States v. Johnson, supra; United States v. Frappier, 807 F.2d 257 (1st Cir. 1986), cert. denied, 481 U.S. 1006, 107 S.Ct. 1629, 95 L.Ed.2d 203 (1987); United States v. Sebetich, 776 F.2d 412 (3d Cir.1985), cert. denied, 484 U.S. 1017, 108 S.Ct. 725, 98 L.Ed.2d 673 (1988); United States v. Morlang, supra; United States v. Dye, 508 F.2d 1226 (6th Cir.1974), cert. denied, 420 U.S. 974, 95 S.Ct. 1395, 43 L.Ed.2d 653 (1975); United States v. Webster, supra; United States v. Peterman, 841 F.2d 1474 (10th Cir.1988), cert. denied, 488 U.S. 1004, 109 S.Ct. 783, 102 L.Ed.2d 774 (1989); Balogh‘s of Coral Gables, Inc. v. Getz, 798 F.2d 1356 (11th Cir.1986); State v. Graham, 200 Conn. 9, 509 A.2d 493 (1986); State v.
A number of courts, both state and federal, have required the balancing test in
In several cases, we have required the trial court to use the
“When the State seeks to cross-examine a defendant in a criminal case regarding previous convictions for the purpose of testing his credibility, the trial court is required to consider the probative value thereof measured against the risk of substantial danger of undue prejudice to the accused and is further required to instruct the jury properly regarding the limited purpose of the question and the limited purpose for which the jury may consider it.”12
Therefore, where impeachment of a witness is sought by way of a prior inconsistent statement under
Moreover, it is apparent from McGee that the trial court has an obligation
“In a criminal trial an accomplice may testify as a witness on behalf of the State to having entered a plea of guilty to the crime charged against a defendant where such testimony is not for the purpose of proving the guilt of the defendant and is relevant to the issue of the witness-accomplice‘s credibility. The failure by a trial judge to give a jury instruction so limiting such testimony is, however, reversible error.”
See also State v. Mullens, 179 W.Va. 567, 371 S.E.2d 64 (1988).
Other jurisdictions are divided on whether a trial court must sua sponte give an instruction that evidence of a prior out-of-court statement used to impeach the witness‘s credibility cannot be considered as substantive evidence. Several courts have agreed with our position that such an instruction should be given by the trial court even in the absence of a request. People v. McClure, 779 P.2d 864 (Colo.1989); People v. Wilson, 43 Ill.App.3d 583, 2 Ill.Dec. 104, 357 N.E.2d 81 (1976); State v. Whitfield, 253 La. 679, 219 So.2d 493 (1969); People v. Welch, 16 A.D.2d 554, 229 N.Y.S.2d 909 (1962); State v. Vargas, 420 A.2d 809 (R.I.1980). Cf. Channel v. State, 592 P.2d 1145 (Wyo.1979) (failure to give cautionary instruction sua sponte regarding limited purpose of admission of defendant‘s prior conviction is reversible error). Other jurisdictions, without discussing the sua sponte rule, have held that the refusal of an offered instruction on this point will constitute reversible error. E.g., Brooks v. United States, 448 A.2d 253 (D.C.App.1982); People v. Dickerson, 30 Mich.App. 447, 186 N.W.2d 850 (1971); State v. Bottoms, 260 S.C. 187, 195 S.E.2d 116 (1973); Hall v. Commonwealth, 233 Va. 369, 355 S.E.2d 591 (1987); Irby v. State, 60 Wis.2d 311, 210 N.W.2d 755 (1973). Finally, as we explain in the next section, several courts have addressed the question under the plain error doctrine.
C.
Plain Error
A number of courts have considered whether the failure to give a cautionary instruction is so prejudicial as to affect the substantial rights of the defendant. Our general test for “plain error” is in
“The plain error doctrine contained in
Rule 30 andRule 52(b) of the West Virginia Rules of Criminal Procedure is identical. It enables this Court to take notice of error, including instructional error occurring during the proceedings, even though such error was not brought to the attention of the trial court. However, the doctrine is to be used sparingly and only in those circumstances where substantial rights are affected, or the truth-finding process is substantially impaired, or a miscarriage of justice would otherwise result.”15
In United States v. Sisto, 534 F.2d 616 (5th Cir.1976), the Fifth Circuit addressed a situation similar to the case at bar where a prosecution witness testified about a prior inconsistent statement made by a key defense witness. After reviewing case law involving circumstances in which a trial court‘s failure to give a sua sponte cautionary instruction was plain error, the Fifth Circuit distilled the following general rule:
“Plain error appears only when the impeaching testimony is extremely damaging, the need for the instruction is obvious, and the failure to give it is so prejudicial as to affect the substantial rights of the accused.” 534 F.2d at 623, quoting United States v. Garcia, 530 F.2d 650 (5th Cir.1976). (Citations omitted).
“As the question implies, the plain error standard in this situation dictates reversal only if we are in doubt as to what the jury‘s verdict would have been had the proper instruction been given.” Sisto, 534 F.2d at 624. Other federal courts of appeals, as well as state courts, adhere to this rule. E.g., United States v. Johnson, supra; Jones v. United States, 385 F.2d 296 (D.C.Cir.1967); United States v. Hogan, 763 F.2d 697 (5th Cir.1985), rev‘d on other grounds on reh‘g, 779 F.2d 296 (5th Cir. 1986); United States v. Lester, 491 F.2d 680 (6th Cir.1974); United States v. Lipscomb, 425 F.2d 226 (6th Cir.1970); United States v. Ragghianti, supra; United States v. Tavares, 512 F.2d 872 (9th Cir. 1975); Gordon v. United States, 466 A.2d 1226 (D.C.App.1983); People v. Taglia, 113 Ill.App.3d 260, 68 Ill.Dec. 879, 446 N.E.2d 1276 (1983).
There is no question that Mr. Kelly‘s prior statement that the defendant confessed to the killing was extremely damaging to the defendant‘s case. Indeed, the State had no other evidence which directly bore on the defendant‘s guilt.17 This error was further compounded when the prosecutor referred to Mr. Kelly‘s prior inconsistent statements on several occasions during closing argument. In so doing, the prosecutor referred to the prior statements as substantive evidence rather than mere impeachment material. Courts have found this practice compounds the impeachment error. E.g., United States v. Hogan, supra; United States v. Gilliam, 484 F.2d 1093 (D.C.Cir.1973); Everett v. State, 530 So.2d 413 (Fla.App.1988); People v. Robinson, 189 Ill.App.3d 323, 136 Ill.Dec. 744, 545 N.E.2d 268 (1989), appeal denied, 129 Ill.2d 570, 140 Ill.Dec. 678, 550 N.E.2d 563 (1990); Brown v. State, 556 So.2d 338 (Miss.1990); State v. Gordon, 391 S.W.2d 346 (Mo.1965); People v. Gale, 138 A.D.2d 401, 525 N.Y.S.2d 685 (1988). Without Mr. Kelly‘s prior statement, the State‘s case was totally circumstantial, and we believe that the admission of it without a limiting instruction substantially impaired the truth-finding process. Even if we did not have a sua sponte rule, we conclude that the trial court committed plain error by not giving a cautionary instruction to the jury.
D.
The State also sought to impeach another of its witnesses, Lana Workman, with her prior inconsistent statement.
This impeachment accomplished several prejudicial points against the defendant. First, it indicated that the victim had broken off with the defendant, thus suggesting his motive for murder. Second, it provided the only geographic link of the defendant to the place where the body was found, which was outside of Talcott, West Virginia.20 This point was emphasized by the prosecutor in his closing argument. Finally, the defendant argues in his brief that it was also done to inflame two black jurors because the mother‘s prior statement referred to black men as “niggers.”
As discussed in Section II(B), supra, the right to impeach a witness under
A rather analogous situation existed in United States v. Fay, 668 F.2d 375 (8th Cir. 1981), where a witness had told a friend that her daughter made a statement to her that she was going to fight the defendant. This witness was sought to be impeached by calling her friend to repeat the out-of-court statement. This impeaching witness was not permitted to testify, as the court found that her testimony would be hearsay within hearsay. She would be repeating the mother‘s hearsay statement which contained the daughter‘s hearsay statement. The appeals court held the impeachment was properly rejected.
A similar pattern was present in United States v. Crouch, 731 F.2d 621 (9th Cir. 1984), cert. denied, 469 U.S. 1105, 105 S.Ct. 778, 83 L.Ed.2d 773 (1985), where the government impeached its own witness with a prior statement the witness made to an F.B.I. agent, even though the government knew that the witness had repudiated the prior statement. In the prior statement, the witness said she received a telephone call from the defendant in which he implicated himself in the robbery for which he was being tried. The Ninth Circuit identified the statement as hearsay and, after acknowledging
State courts have formulated similar rules and have concluded that when a prosecutor attempts to impeach a witness under
In view of the foregoing, we find that the State‘s impeachment of its own witnesses was reversible error. In the case of Lana Workman, it was particularly egregious because of the multiple levels of hearsay.
III. OTHER ERRORS
A. Prosecutorial Misconduct
The defendant further claims that the prosecutor engaged in misconduct during his closing argument when he called four of the witnesses liars. We discussed this issue in some detail in State v. England, supra, where we pointed out that a prosecutor is not a mere partisan. To the contrary, he “assumes a quasi-judicial role and is required to set a tone of fairness and impartiality[.]” 180 W.Va. at 350, 376 S.E.2d at 556, citing Syllabus Point 3, in part, State v. Boyd, 160 W.Va. 234, 233 S.E.2d 710 (1977). We summarized several guidelines in Syllabus Points 7 and 8 of England:
“7. A prosecutor may argue all reasonable inferences from the evidence in the record. It is unprofessional conduct for the prosecutor intentionally to misstate the evidence or mislead the jury as to the inferences it may draw.
“8. ‘It is improper for a prosecutor in this State to “assert his personal opinion as to the justness of a cause, as to the credibility of a witness ... or as to the guilt or innocence of the accused....” ABA Code DR 7–106(C)(4) in part.’ Syllabus Point 3, State v. Critzer, 167 W.Va. 655, 280 S.E.2d 288 (1981).”
We also observed that “most cases reversed due to prosecutorial comment on
In this case, the prosecutor, in his closing argument, on numerous occasions either directly stated that the witness was lying or intimated to that effect. For example, when referring to the testimony of Lana Workman, the prosecutor said: “Here‘s a very suspicious woman. Why lying—Lana—Lying Lana said she saw her that morning in this car with her feet upon the ground ...” We also find egregious the prosecutor‘s remark that “[y]ou know, Shakespeare once said—and I think he took this out of the Bible. He said, ‘O, what tangled webs we weave when first we practice to deceive.’ Thank God that criminals do that, so that we can tell what tangled webs they‘re weaving. And I am going to tell you right now, I saw at least three (3) people in this case—and probably, four (4) or more—that absolutely thought the oath to tell the truth meant nothing at all.”
We need not decide whether such statements amount to plain error because this case is being reversed on other grounds. But see State v. Moss, 180 W.Va. 363, 376 S.E.2d 569 (1988) (prosecutor‘s remarks during closing argument so egregious that they constituted plain error). See also Wilson v. People, 743 P.2d 415 (Colo.1987) (prosecutor‘s comments that defendant‘s wife lied at trial constituted plain error). Moreover, the fact that a witness may be impeached by a prior inconsistent statement or gives testimony at variance with the State‘s witnesses does not give the prosecutor the absolute right to brand the witness a liar in his closing argument.
B. Proof of Venue
The defendant also asserts that the State failed to prove venue. In Syllabus Point 5, in part, of State v. Burton, 163 W.Va. 40, 254 S.E.2d 129 (1979), we held that “[t]he State in a criminal case may prove the venue of a crime by a preponderance of the evidence[.]” Moreover, venue does not need to be established by direct testimony, but can be proved by circumstantial evidence. Burton, 163 W.Va. at 58, 254 S.E.2d at 140.
The evidence at the defendant‘s trial sufficiently met this standard. The victim‘s body was found in Greenbrier County. The chief medical examiner testified that the cause of death was strangulation by a shoe string. Located at the scene were the victim‘s shoes, one of which had the shoe string missing. The shoe string used to strangle the victim and the shoe string found in the other shoe matched. This evidence, coupled with the medical examiner‘s testimony, sufficiently proved that venue was proper in Greenbrier County.
C. Prompt Presentment
Finally, the defendant claims that the police did not promptly present him before a magistrate following his arrest. As we stated in Syllabus Point 4 of State v. Humphrey, 177 W.Va. 264, 351 S.E.2d 613 (1986):
“Ordinarily the delay in taking an accused who is under arrest to a magistrate [or neutral judicial officer] after a confession has been obtained from him does not vitiate the confession under our prompt presentment rule.”
As aptly summarized by the Rhode Island Supreme Court in State v. Johnson, 119 R.I. 749, 756-57, 383 A.2d 1012, 1117 (1978), and quoted with approval in State v. Humphrey, 177 W.Va. at 270, 351 S.E.2d at 618:
“‘In short, delay, if it is to render a confession inadmissible, must have been operative in inducing the confession, and obviously only the detention that precedes a confession can have that effect. See United States v. Mitchell, 322 U.S. 65, 70, 64 S.Ct. 896, 898, 88 L.Ed. 1140, 1143 (1944); United States v. Seohnlein, 423 F.2d 1051, 1053 (4th Cir.1970); Bailey v. United States, 117 U.S.App.D.C. 241, 243-45, 328 F.2d 542, 544-46 (1964); State v. Traub, 151 Conn. 246, 249-50, 196 A.2d 755, 757 (1963).‘”
After arresting the defendant, the police transported him directly to police headquarters. The defendant waived his Miranda rights and then made a statement regarding his use of Rick Marshall‘s car, which had been reported stolen. Immediately thereafter, the defendant agreed to discuss the murder of Sarah Marshall. Once again, the defendant waived his Miranda rights and then gave a detailed statement regarding his whereabouts on April 14, 1984. At trial, the defendant testified that his statement was given voluntarily.
Any delay in presenting the defendant before a neutral judicial officer occurred after he had given his statement. In light of the foregoing, we find that any delay in presenting the defendant before a neutral judicial officer was not operative in inducing the defendant‘s statement, and, therefore, the trial court did not commit reversible error in refusing to suppress the statement.
IV.
For the foregoing reasons, the judgment of the Circuit Court of Greenbrier County is reversed, and we remand the case for a new trial.
Reversed and remanded.
WORKMAN, Justice, dissenting:
On first glance, the majority opinion seems logically analyzed and well-written. One must look at the record in the case and actually read the cases relied upon, however, in order to see what a gloss job the majority has had to create in order to reach its desired result.
First, the opinion mischaracterizes the state‘s position when it says that the state urges that the prior statement of witness Kelly should have been admitted as substantive evidence. It is clear that the state‘s primary argument on this issue is that portions of the witness’ prior inconsistent statement were properly admitted for impeachment purposes, not as substantive evidence.1 It is equally clear that what transpired in this case was plain and simple impeachment of a witness through a prior inconsistent statement, a time-honored concept in the our judicial system.
Before discussing the law relating to use of prior inconsistent statements of witnesses as impeachment, it is necessary to expand on the facts, since the majority was skillfully selective in limiting the factual presentation to those which supported its desired result.
The majority implies that the state knew that witness Kelly was going to recant his prior statement and put him on the stand solely to get that statement in as substantive evidence under the guise of impeachment. Although the state may have known2 that the witness would recant that very limited portion of his statement concerning the defendant‘s admission that he killed the victim, it is clear from a reading of Kelly‘s entire testimony that he still gave a great deal of other perfectly proper and clearly admissible direct evidence on behalf of the state. His direct testimony went on for some nineteen pages before the inconsistency occurred and included a great deal of testimony concerning the defendant‘s actions soon after the crime. The majority would suggest that the witness was placed on the stand for the sole purpose of permitting the jury to hear his recantation and then admitting the prior inconsistency as substantive evidence. The record shows otherwise.
Historically, a witness’ in-court testimony can be impeached by a prior inconsistent oral or written statement, State v. Price 92 W.Va. 542, 115 S.E. 393 (1922); State v.
A review of Kelly‘s entire testimony demonstrates his prior statement was used for impeachment. The following portion of Kelly‘s testimony illustrates the type of impeachment that occurred:
(By the prosecuting attorney):
Q: Now, you gave an affidavit up in New York, did you not, under oath concerning the events of the evening?
A: Yes.
....
Q: And isn‘t it true in that affidavit you said, “A couple of days later on Friday evening on payday we were riding ten (10)-speed bicycles to a bar called the Silver Dollar in Tampa, Florida“?
A: Yes.
Q: You said, “when all of a sudden Collins said the cops would, ‘probably be after me.’ He then got real quiet. I didn‘t press him for what he meant.” Is that true?
A: Yes.
Q: So it was on the bicycles going to the bar?
A: No.
Q: What you‘re saying is, you lied in your affidavit?
A: That‘s what I‘m saying.
Q: Then it says that you spend about three (3) hours drinking. Is that true?
A: We spend many hours drinking, every night.
Q: And you said you was drinking beer and Art was drinking mixed drinks. Is that true?
A: Most of the time Art would have mixed drinks. I would drink beer.
....
Q: And the affidavit, under oath, “I was playing pool and Art got drunk.”
A: Right.
....
Q: ... And you said, “on the way home I asked him did he kill his girlfriend and he didn‘t answer right away.” That‘s what you told the police under oath in October of ‘85, isn‘t that correct?
A: That‘s right.
Q: “And about five (5) minutes he finally said ‘Yea, I killed her. But the only reason I did was before someone else got her.‘”
A: That‘s right.
Q: “I also remember that Art told me that his girlfriend had left a hotel of motel with a couple of niggers in the van, but he did not go into details about this.” Is that correct?
A: That is correct.
....
Q: Then you went on to say you really didn‘t believe it because he had been nice to you?
A: That‘s right.
Q: And now today you are going to say to the jury what you told them in October was all a lie, aren‘t you?
A: Yes, I am.
The same is true regarding witness Lana Workman. Witness Workman gave a statement to the police only three days after the victim‘s body was discovered and prior to the police having any evidence implicating her brother in the murder. During her questioning, the police showed her the quilt which covered the victim‘s body, and she stated she had observed the quilt earlier that day in Rick Marshall‘s 1969 Chevrolet, the same car in which the appellant fled after allegedly murdering Sarah Marshall. Three years later, once she appreciated the gravity of her brother‘s situation and the significance of the quilt‘s placement at the crime scene, witness Workman suddenly “remembered” that Rick Marshall had brought the quilt into the apartment after repairing a flat tire.
Pertinent portions of Ms. Workman‘s testimony demonstrate that impeachment was what transpired:
(By the prosecuting attorney)
Q: And what happened when you got back to the apartment then?
A: I believe that‘s when Art and Danny and Sarah, we were all there; and Art asked Rick if he wanted—the tire that he had repaired, he wanted to put back on the car, or it was flat or something. And Art asked him if he want to—if he wanted him to help him, and he said, “No, I can do it myself.” And he used this blanket, this quilt here, to lay on the ground because he didn‘t want to get dirty. And after he used the quilt, after they were through—I believe they did help him—but, after they were through, he brought it back into the apartment and threw it beside the kitchen table.
Q: Now Lana, you never told the police any such story, did you?
A: No, sir, I didn‘t.
Q: And of course, nobody asked you did they?
A: No, they did not.
....
Q: Now isn‘t it the truth, that the blanket was used when the tire was taken off by Danny Workman, your now husband, and Rick Marshall, before you ever got there and took for repair—
Mr. Anderson: (interrupting) Your honor, I‘m going to object. The question is leading, and it appears to be cross-examining his own witness.
....
Q: Let me ask you this: Did you give the State Police a statement about this case on the three (3) days after the body was discovered, on April 29th 1984?
A: I‘m not sure of the date, sir.
....
Q: Can you dispute the fact that‘s when you gave a statement to them [on 4-29-84]? You did give one, didn‘t you?
A: Yes, I guess I did.
Q: (interrupting) Listen to me: whether you told the State Police on that occasion right after you had made the statement, “Now that I see the blanket the State Police has that was found on Sarah‘s body, it appears to be the same one I saw in Rick‘s car while I was with him.” Did you say that?
A: Yes, I did.
Q: And did you not then say, “we drove straight back to the apartment. I would say this was about 6:00 p.m. on Saturday, 4-14-84.” Did you not say that?
A: I guess I did say that.
Q: And did you not say, “when we arrived at the apartment no one was there“?
A: Well then, that‘s the way it was then.
Q: Did you not also say, “After twenty minutes about twenty minutes after we arrived at the apartment Sarah, Art and Sarah‘s two children arrived at the apartment“?
A: Okay, yes.
Q: “They had been at the apartment about fifteen (15) minutes when Sarah asked Rick, well, are you going to go to the market?’ Rick said, ‘Hell no, I‘m not going to the’ “—I‘m sorry, ” ‘the laundry‘“, ” ‘Hell, no, I‘m not going to the laundry this late‘“. Did you tell them that?
A: Yes, I did.
Q: That Sarah said, “well, I need to go to the store and get the baby some food, and I need some money“. Did you not tell them that?
A: Yes, I did.
Q: Now where in this, anywhere, do you say anything about seeing Rick Lewis—Rick Marshall, Rick Weelas, whatever he is, bring the blanket back in the room after the tire has been changed?
A: I was under the influence of PCP, and I guess that I just—it didn‘t cross my mind.
Q: You are telling me, at the time on the 29th when you talked to the State Police, that you were under the influence of some kind of drug when you gave this statement?
A: No—not when I gave the statement. I‘m not telling you that. That‘s not what I‘m telling you.
A: When the State Police was questioning me, I had written down my statement on a legal pad, and I did go over my statement, and everything I said in there is true....
The court did state during the impeachment of Ms. Workman in the presence of the jury: “He has a right to Cross-Examine the witness because of her attitude, and he has a right to impeach the witness under Rule 607.”
Finally, after dismissing the jury the court gave the following explanation as to why he allowed the prosecutor to impeach his witness:
The Court: With respect to the objections that he was impeaching his own witness, Rule 607 says as follows: “Who may impeach the credibility of a witness, may be impeached by any party, including the party calling them.” And she clearly, under the old Rule prior to the Rules of Evidence, could have been impeached because she has shown her hostility to the State and could have been impeached and Cross-Examined in that basis.
When all of Lana Workman‘s testimony is reviewed, it is obvious that the state was demonstrating the many inconsistencies between her prior statement and her testimony at trial in an attempt to impeach her credibility, to attack the integrity of her in-court-inconsistencies, and not solely to admit substantive evidence subversively.
The reasoning process the majority undertakes in order to determine this was not proper impeachment can only be characterized as mental gymnastics.
They first leap from the context of the impeachment of a witness by use of prior inconsistent statement into the context of a criminal defendant himself being impeached by use of prior crimes or wrongdoing. These are horses of a vastly different color.
The majority cites State v. McGee, 160 W.Va. 1, 230 S.E.2d 832 (1976), overruled on other grounds, State v. McAboy, 160 W.Va. 497, 236 S.E.2d 431 (1977) for the propositions that (1) a
Using the McGee case as basis for its reasoning, however, is like comparing apples with oranges. In McGee, the defendant, appealing from his conviction for delivery of marijuana, argued that the trial court erred in allowing the defendant‘s credibility to be impeached by previous convictions. 160 W.Va. at 8-9, 230 S.E.2d at 836-37. This Court reversed, finding that the trial court erred in allowing the state to impeach the defendant in this manner. Further, this Court held in the syllabus that:
When the State seeks to cross-examine a defendant in a criminal case regarding previous convictions for the purpose of testing his credibility, the trial court is required to consider the probative value thereof measured against the risk of substantial danger of undue prejudice to the accused and is further required to instruct the jury properly regarding the limited purpose of the question and the limited purpose for which the jury may consider it.
Id. 160 W.Va. at 9, 230 S.E.2d at 833.
Clearly, the impeachment of a criminal defendant himself through evidence of oth-
As we stated in McAboy, 160 W.Va. 497, 508, 236 S.E.2d 431, 437, overruled in part on other grounds, State v. Kopa, 173 W.Va. 43, 311 S.E.2d 412 (1983).
The difference between the two rules is measured by ultimate penalty arising from the possible prejudice. With a witness, the use of a prior conviction to impeach credibility may result in some loss of credibility in the eyes of the jury and attendant personal embarrassment. With the defendant, the prejudicial effort of a prior conviction may result in an unwarranted conviction.
Certainly, impeachment of ordinary witnesses with prior inconsistent statements should not enjoy the same level of caution and protection as the impeachment of defendants themselves.
Next, as to the
There is also absolutely nothing in the record to support the majority‘s conclusion that no such balancing test was performed. The trial judge had heard some nineteen pages worth of Kelly‘s direct testimony before the recantation of the earlier statement occurred. In the context of that testimony, it is not difficult to mentally perform the balancing test and to determine that the state was clearly entitled to impeach the witness with his prior inconsistent statement. Likewise, the witness in cross-examination by the defense counsel, was given full opportunity to explain the inconsistency, and the matter of his credibility became a jury issue.
It smacks of an ivory tower outlook to suggest that each time a trial court must weigh the probative value against the potential for unfair prejudice of evidence, that its failure to stop the proceedings and hold a hearing thereon proves that such a balancing test was not done.
The next really incredible leap the majority makes is to impose the requirement upon the trial court that it sua sponte instruct the jury regarding the limited purpose for which it may consider evidence of a prior inconsistent statement. In all our cases dealing with impeachment of ordinary (non-defendant) witnesses through prior inconsistent statements, no such requirement has ever been imposed.
Professor Cleckley in his Handbook on Evidence for West Virginia Lawyers, supra § 3.9(F) at p. 137, points out that
If evidence is properly admissible for one purpose but not for another, or where testimony is admissible as to one party but not as to another, failure to ask for an instruction limiting the jury‘s consideration of the evidence to its proper sphere waives the contention that the jury improperly considered the evidence.
In addition,
When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence
to its proper scope and instruct the jury accordingly. (emphasis added)
No request for such a limiting instruction was made in the instant case.
Furthermore, a general instruction regarding credibility and describing the nature of impeachment of witnesses was given by the court in its instructions at the close of the evidence, and a specific instruction was given at the time of Lana Workman‘s testimony.5
In State v. Fellers, 165 W.Va. 253, 267, 271 S.E.2d 738 (1980), the State called a witness who had given an unsworn, written statement to a state trooper following the defendant‘s arrest and two weeks after the crime had been committed. The prosecutor moved to have the witness declared a hostile witness because her testimony at trial was inconsistent with the prior written statement. The prosecutor then asked the witness if she recalled making the written statement to the trooper, to which she indicated that she did not. The State then called the trooper to the stand and permitted the trooper, over the defendant‘s hearsay objections, to read a portion of the witness’ prior statement to the jury. In upholding that decision, this Court held that the statements were not admitted as a ruse to introduce impermissible evidence, but instead were used only to contradict and neutralize the in-court statement made by the witness.
Later, in Kopa, 173 W.Va. at 43, 311 S.E.2d at 412, the Court addressed the propriety of allowing the prosecution to impeach its own witness with a prior inconsistent statement that was unsworn and which the prosecution knew would be refuted at trial. At the defendant‘s trial, his girlfriend recanted a portion of a statement she had previously made to the police. The trial court then permitted the prosecution to impeach the witness’ testimony with her prior inconsistent statement over the defendant‘s objection. The Court concluded that the trial court did not err when it allowed the prosecution to impeach its own witness with a prior inconsistent statement and limited the statement‘s value to the credibility of the witness.
One must admire the skillful manner in which the majority makes subtle mischaracterizations and then uses them as tiny little building blocks with which to construct major new principles of law. For example, the majority misstates the factual foundation of the Spadafore case. See State v. Spadafore, 159 W.Va. 236, 220 S.E.2d 655 (1975). From the majority opinion: “Prior to the adoption of
Even under the Spadafore principles, however, the lower court in the instant case did not abuse its discretion in the use it permitted of the witnesses’ prior statements. They were used sparingly to demonstrate the lack of integrity of the in-court testimony which was impeached.6
The modern weight of authority views cross-examination regarding prior inconsistent statements as being sufficient to overcome the dangers of hearsay. An instructive discussion of this issue appears in F. Cleckley, Handbook on Evidence for West Virginia Lawyers § 4.2(B) (2nd ed. Michie 1986), at p. 166-167:
Research regarding human memory indicates several advantages prior inconsistent statements have over trial testimony. Studies show that the ability to remember an incident declines as time passes. Witnesses are more prone to forget facts supporting propositions with which they disagree. Prior inconsistent statements also may be made before a motive for perjury has arisen and perhaps are less likely to be untruthful.
An instruction to jurors to use a prior inconsistent statement only for assessing the declarant‘s credibility but not for the truth of the matter asserted is, at best, confusing. The repetitive effect the instruction has of calling attention to the statement probably cannot do other than highlight the matter in the minds of jurors, thereby making them more inclined to rely on the statement than to disregard it.
The weight of authority appears to reject the orthodox rule and to view cross-examination of the declarant at trial as sufficient to combat the dangers of hearsay. The Model Code of Evidence and the Uniform Rules of Evidence both allow inconsistent statements as substantive evidence, the inconsistent statement must have been made under oath, in a proceeding, and subject to the penalty of perjury—has been criticized for disregarding both the benefits of allowing inconsistent statements to be considered as substantive evidence and the adequa-
inconsistent statements actually can be admitted extrinsically for impeachment purposes when a
cy of cross-examination of the witnesses at trial.
Nineteen American jurisdictions allow prior inconsistent statements of a witness to be used substantively where the witness is available for cross-examination. Other jurisdictions admit prior inconsistent statements as substantive evidence under other limitations. Only a handful now refuse to permit such statements to be used substantively. Experience in other jurisdictions has not taught that such practices result in abuse. When the declarant is available for cross-examination, enough of the dangers of hearsay and unreliability are absent to justify the substantive use of prior inconsistent statements in civil cases.
The law of evidence should not be a game to see how many angels can dance on the head of a pin, or a series of meaningless hoops that one must jump through while tossing all common sense to the wind. The principles governing evidence should be aimed at assuring that only evidence with indicia of reliability and integrity is heard by the trier of fact.
The United States Supreme Court took such a practical approach in California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970) where the defendant was convicted of furnishing marijuana to a minor on the basis of evidence of prior inconsistent statements made by the minor both at the time of the preliminary hearing and to a police officer after the minor claimed at trial that he couldn‘t remember his previous statements. The Court was confronted with the issue of whether the defendant‘s constitutional right of confrontation was violated by use of the prior inconsistent statements as substantive evidence. Id. at 152, 90 S.Ct. at 1932. Specifically the Court in addressing the issue of whether the prior statement was given under oath stated:
if the declarant is present and testifying at trial, the out-of-court statement for all practical purposes regains most of the lost protections. If the witness admits
witness claims not to remember a prior statement.
the prior statement is his, or if there is other evidence to show the statement is his, the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness. Thus, as far as the oath is concerned, the witness must now affirm, deny, or qualify the truth of the prior statement under the penalty of perjury; indeed, the very fact that the prior statement was not given under a similar circumstance may become the witness’ explanation for its inaccuracy—an explanation a jury may be expected to understand and take into account in deciding which, if either of the statements represents the truth.
Id. at 158-59, 90 S.Ct. at 1935.7
In this case, however, the trial judge would have needed a crystal ball to comport with what the majority would require. The majority opinion is a boon to the criminal element. In the future, those individuals who fraternize with criminals—indeed even those who work in tandem with others in criminal pursuits—may safeguard against being called to offer testimony against a criminal defendant by doing two simple things: (1) give the police a true account of what you know about the crime and (2) be sure and let the prosecutor know you plan to recant before you take the stand. This decision will make honest criminal investigatory work more difficult than ever.
Based upon the foregoing, I dissent.