State v. Hatfield

S.E.2d 670 Virginia STATE West Ray HATFIELD.

Robert

No. 17519. Appeals of

Supreme Court of Virginia.

West

Dec. Justice Brotherton

Opinion of 29, 1989.

June evidence at showed that 25, 1985, D.,

June appellant the lured 16- a male, year-old black into in his vehicle Beckley by falsely identifying himself aas relative of a teacher known to D. and offer- ing to teen-ager obtaining assist employment. pretext visiting On the his sister, the appellant drove D. to a church parking lot and offered him to $300.00 him right.” “treat When D. suspi- became cious, the appellant a drew knife from his pocket, held it to D.’s throat and ordered D. appellant to remove his trousers. The then laid knife on the dashboard began and unzipping pants. grabbed his own D. knife and escaped struggle. after a appellant 2, 1985, on July was arrested released was on bond. August 5, appellant ap- M.,

proached female, 20-year-old white general a tavern in area that appellant he first met D. The identified himself as an out-of-state truckdriver and $1,000.00 offered M. to good “show him a time” at a local M. motel. refused and attempted appellant to by going avoid the laundry nearby next door and then to a However, apartment complex. appel- Taylor, Gen., Deputy Atty. B. Silas M., followed his way lant forced into her for State. by holding car knife to her throat and Thompson, for Hatfield. her appel- Jack drove across town. When the began her, making lant advances towards McGRAW, Justice: M. wrestled the from him knife and threw from the car. subsequently She was appeal appellant, an This is Rob- Hatfield, police able to attract the attention of a Ray ert from a final order of the appellant. officer who arrested Raleigh County sentencing Circuit Court him term of life imprisonment to a as an September In appellant was following criminal habitual convictions charged by separate indictments with two of the crime of abduction with intent to counts of abduction intent to defile appellant defile. contends that 61-2-14(a) (1984 of W.Va.Code violation § unconstitutionally abduction statute Replacement Vol.).1 The indictments were vague and that the trial court erred in subsequently consolidated for trial in the denying his motion for trials on Raleigh County. Circuit Court of underlying find offenses. merit in assertion, pretrial At a conference the latter and reverse the conducted 17, 1985, judgment of the on that December moved circuit court ground. sepa- severance of 61-2-14(a) person, person provides, pertinent 1. W.Va.Code or to cause the to be married part: person or defiled another ... shall and, guilty upon felony, person conviction Any away person, there- who takes another of, against penitentiary person per- shall be confined or detains another son’s will, marry years. less with intent to or defile the than three nor more then ten ly element appel- understood to be an essential each indictment. The rate trial on with intent of abduction moved dismiss the indictments lant also Miller, 61-2-14(a) defile. ground that W.Va.Code § People v. n. 3 also trial S.E.2d unconstitutionally vague. The Moore, 91, 294 Cal.App.2d Cal.Rptr. 16 motions, and on both 196 the trial court denied 737, (1961); 79 30, Montgomery, v. Iowa 1985. State on commenced December (1890); v. 183 Selby, 45 N.W. 292 State 2, 1986, jury the found the January (1981); 273, N.J.Super. 443 1076 Peo A.2d ap- The appellant guilty charges. on both 114, LoVerde, ple v. 7 N.Y.2d 195 N.Y.S.2d aside the verdict pellant’s motion to set 835, 164 Botha, (1959); 102 State v. N.E.2d denied, informa- was and the State filed an (1904); 289, Fitzgerald 27 Utah 75 P. 731 being an charging appellant tion the with 615, Commonwealth, 223 Va. 292 S.E.2d trial, Following jury habitual criminal. a denied, 1228, (1982), 103 798 459 U.S. cert. guilty recid- of the was found (1983). Al 1235, 469 S.Ct. 75 L.Ed.2d and, 1985, sen- charge ivist in March was though spoken directly had not to we impris- term of life tenced to an enhanced charged issue the time of the offenses penitentiary. onment in the state here, meaning it evident that the of is in context settled term “defile” this was I. long ago. Stephen, also 4 S. Commen See appellant’s first The contention (16th ed. England taries Laws of 61-2-14(a), appeal set is that W.Va.Code § 1914). Moreover, record in this case ting of forth the offense abduction of shows the defense was well aware that defile, unconstitutionally vague intent is to meaning of the at trial. Accord term “de it does define the word because not ingly, say that we cannot abduction Reed, 1 of syllabus point file”. In sufficiently give statute not definite to 558, (1981), 313 276 S.E.2d ordinary intelligence person a fair notice of “ ‘A statute must be set stated: criminal prohibited of the conduct. Rose give out with sufficient definiteness to 243, Locke, 48, L.Ed.2d 423 U.S. 96 S.Ct. 46 intelligence person ordinary of fair notice (1975); People Loignon, 160 Cal. 185 contemplated prohibited that conduct 412, (1958); App.2d 325 P.2d 541 provide adequate statute and to stan (La.1977). Holstead, So.2d 493 354 1, adjudication.’ Syl. pt. dards for 111], Flinn, 208 538 W.Va. S.E.2d [158 II. (1974).” assignment appellant’s principal has defined The term “defile” been error, court is that trial as follows: ordering in erred two indictments tried of; together. Virginia Rule 13 West corrupt perfection purity or to To permits joint Rules of Criminal Procedure debase; unclean; ceremonially to make charged indict offenses pollute; sully; dishonor. State ments if such could been Kasnett, 77, have App.2d 30 283 Ohio single joined in a indictment.2 The test for 636, debauch, deflower, To N.E.2d 638. same consolidation of indictments chastity corrupt or of a woman. The test utilized for of offenses under necessarily imply not force or term does 8(a): ravishment, previous nor does connote immaculateness. may charged Two or more offenses be (5th 1979). in the same indictment or information Dictionary Black’s Law 380 ed. separate count for each if the purpose A motivation is common- sexual or may joint except provides: the court order W.Va.R.Crim.P.13 felony than trial of more one defendant in a two or more indict- order objects. case defendant or the state if a or to be tried ments or information both [sic] offenses, procedure prosecu- shall be same as if together if the and the defendants if one, single under or tion were indictment more have been there is than could joined single information information. in a indictment or

109 denied, cert. Cir.1970), 879, charged, felonies or F.2d whether 883, 924, both, 401 U.S. S.Ct. 27 L.Ed.2d or misdemeanors are Federal (1971) Miller, Wright and 1 & A. offenses based C. or similar character. All Procedure (1969 Practice and & or two on the same act or transaction Bibby, United States Supp.1976). or transactions connected more acts denied, cert. (6th Cir.1985), constituting parts com- 752 F.2d 1116 1183, plan mon scheme or shall U.S. Cupo v. United or information indictment same cert. offense, (1966), U.S.App.D.C. count each whether denied, misdemeanors or both. felonies or S.Ct. Kivette v. United L.Ed.2d 549 Eye, 177 671,

See State v. 355 S.E.2d W.Va. cert. (5th Cir.1956), 230 749 F.2d Mitter, v. 531, State (1987); 921 168 W.Va. denied, 419, 935, 2 78 355 U.S. S.Ct. (1981). interpreting 285 S.E.2d 376 Courts (1958).5 L.Ed.2d 418 Neither must the of equivalent provision of the Federal fenses be identical in nature. have Rules of Criminal Procedure3 held 8(a) Rule is not limited to crimes of the 8(a) liberally that is to be construed in Rule United v. Montes- States “same” character but covers those also joinder. favor of Cardenas, character, (11th Cir.1984); of “similar” means 746 F.2d 771 which Wirsing, United v. “[njearly corresponding; resembling in States 719 F.2d 859 United v. Arm (6th Cir.1983); alike; States many having respects; somewhat strong, United (9th Cir.1980); In general F.2d 951 Webster’s New 621 likeness.” Cir.1977), McGrath, (2d States v. (2d Dictionary ed.). 558 F.2d 1102 one ternational As denied, rt. 1064, out, 434 98 pointed requiring pre U.S. S.Ct. has too ce 1239, See (1978). 1 L.Ed.2d 765 C. identity 55 cise an of between the character Wright, Federal Practice and Procedure: give “would fail to effect to offenses (2d 1982). Criminal ed. 141 succeeding the word ‘similar’ the word elementary ‘same’ and thus violate an Here, it is contended that two Ed statutory of rule construction.” properly indictments were consolidated for Squier, wards v. 758, (9th 178 F.2d 759 the offenses were “of the because Cir.1949). A same or similar character.”4 of number Werner, 922, offenses United States v. held 620 F.2d 926 jurisdictions have that United States v. Hutch (2d Cir.1980). need related to other to be “of not be each ings, 751 cert. de (8th Cir.1984), 230 the same or similar character” within the F.2d nied, 8(a) 829, 92, permits 474 106 S.Ct. 88 L.Ed.2d meaning of the Rules. U.S. “[R]ule Tillman, 470 States v. (1985); United joinder against one 75 denied, 410 (3rd Cir.1972), cert. character’, 142 ‘of the or similar even F.2d same 968, 1451, 702 wholly U.S. 93 S.Ct. where those offenses arise out (1973). lapse of time separate, Mere between unconnected transactions....” Satterfield, United v. States render 548 commission of the offenses does not denied, v. Frank cert. United States 1341, (9th Cir.1977), joinder improper. 439 1344 lin, See also (8th Cir.1971). 128, 840, L.Ed.2d 452 F.2d 926 U.S. 99 S.Ct. 58 138 Pierce, Roselli, 432 United States v. citing United States v. (1978), F.2d 1474 733 8(a) provides: fenses are based on the same act or transaction 3. Fed.R.Crim.P. scheme, join part plan, are common or or may be Two or more offenses 8(a). mandatory der is under W.Va.R.Crim.P. sepa- or same indictment information 258, Duskey, S.E.2d State 178 W.Va. 358 rate count for each if charged, or misdemeanors whether felonies both, are of the or similar character same or are based on the or transaction or same act Quinn, F.2d 256 5. But see States on two or more acts or connect- transactions (7th 1966), holding violations Cir. constituting parts ed of common arising of the same of the same statute out plan. scheme or plan were a common scheme or transaction or Rule, or similar within joinder not "of same character" note that under our this Where, ground meaning permissive. of Rule of- 422, Cir.1984); Rogers, Halper, 590 F.2d United States United States (2d Cir.1978). v. Toda See United States (8th Cir.1984); 732 F.2d 625 United States ro, (W.D.N.Y.). F.Supp. (5th Cir.), Hatcher, cert. 423 F.2d 1086 848, 35, denied, 400 U.S. Moreover, joinder or even where (1970); Moore, Moore’s L.Ed.2d 86 8 J. proper consolidation of offenses is under ¶ (2d 1985). 13, ed. Rule 8 or the trial court order Federal Practice Rule 8.05[4] 14(a) pursuant trials to Rule hand, for allow- the other the reason ground that such or consolida offenses, ing joinder or consolidation Clements, prejudicial.6 tion is judicial economy namely promotion 463, 600, denied, W.Va. 334 S.E.2d cert. trials, multiple of needless avoidance 165, S.Ct. 88 L.Ed.2d 137 are compelling not as where the offenses Mitter, W.Va. similar but unrelated. grant 285 S.E.2d at 383. The decision to pursuant sepa- motion for severance to Rule all that can be said of two When 14(a) is a matter within the sound discre they rate offenses is that are of the tion of the trial court. State v. McFar character,” “same or similar the custom- land, 332 S.E.2d 217 ary justifications joinder (efficiency Mitter, 168 W.Va. at economy) largely disappear. Where- and S.E.2d at 383. joinder as the of offenses on the “based Mitter, recognized In same act or transaction” or prejudice may circumstances which arise based “on two or more acts or transac- proper joinder from an otherwise of of- together constituting tions connected fenses: parts plan” of a common scheme or prob Courts that have addressed the from the reasonable and desirable both recognized joinder lem have or con government’s per- and the defendant’s may prejudice solidation the defendant spective, the same said cannot be for jury may because the tend to cumulate joinder of offenses of the “same or sim- the evidence of the various offenses and situations, In ilar character.” the former convict the all defendant on government put should not to the be theory he is a bad individ proving essentially task of what is weigh ual sepa rather than the evidence once, same set of facts more than and rately on each offense. From the de spared the defendant should be the task standpoint, multiple fense trial on of defending against more than once may fenses make it difficult to establish same, essentially what are or at least charges. defenses to individual connected, charges. See United States Furthermore, may inhibit the defen McGrath, (2d F.2d [558 ability testify dant’s own behalf circumstance, Cir.1977)]. In the latter testify if he wishes about some of the however, only likely by time saved charges about others. Cross v. joinder of or similar character” “same (D.C.App. spent selecting offenses is the time 1964); States, 331 F.2d Drew v. United jury, perhaps spent the time exam- (D.C.App.1964); Wright, Federal whole, ining character witnesses. On the (1969). Practice and Procedure § joined “trials” on also, State, Meade v. 85 So.2d 613 (Fla.1956); are distinct. 8 Moore’s Fed- Hadjis v. Iowa Dist. Court of ¶ (Iowa 8.05[2], County, eral Practice at 8-19. Linn 275 N.W.2d 763 14(a) provides: inspec- 6. W.Va.R.Crim.P. for the state to deliver to the court for any tion in camera statements or confessions appears If it that a defendant or the state is prejudiced by joinder by of offenses in an in- made the defendant or other relevant in- joinder dictment or information or which the to intro- formation state intends together, may for trial the court order an at duce in evidence the trial. election or provide trials of the counts or substantially provi- This rule is similar to justice requires. whatever other relief 14, governing sions of Fed.R.Crim.P. severance ruling In on a motion a defendant for of offenses. attorney severance the court order the

HI Slavski, consolidating for trial two 245 erred in 1979); indict- Commonwealth charging him (1926) against [(1923)]; ments 140 N.E. Mass. 61-2-14(a). of W.Va.Code Pa.Super. with violations Tracey, Commonwealth Annot., 8 A.2d 622 ' correctly majority syllabus point In Am.Jur. Trial A.L.R.2d 835 more joinder of two or points out that 67§ for trial is within the discretion indictments 543-544, 285 S.E.2d at 383. 168 W.Va. at are of when the offenses of the trial court where, increases danger prejudice The of- or similar character. the same here, or consolidation initial as though the acts joined can even fenses character of un on the similar premised they the same if are connected are not See United States related offenses. part of a common or constitute (9th Cir.1986); Lewis, F.2d 1318 Unit plan. scheme or Pierce, 1477; F.2d at Unit ed States majority opin- The facts set forth 430; 590 F.2d at Halper, Unit ed States plan. clearly ion show a common scheme Foutz, 540 F.2d 733 Cir. ed States area, place The acts took ¶ Moore, 1976); supra 8 J. 14.03[1]. involved, was for knife was and the motive opinion that the dan are of the gratification. majority cites sexual out ger prejudice authorities, length, state and federal to the State of a weighed the convenience the consolidation of two which allow for sep clearly single trial. The offenses were very indictments for the same reason distinct, not so similar arate and and were granted trial court the State’s motion crime that evidence of one would nature in the instant case. consolidation separate trial for admissible at a have been majority discusses W.Va.R.Crim.P. 404(b). More other. W.Va.R.E. 14(a), permits a trial court to order which over, offenses themselves the nature of the grounds that separate trials on the preju substantially increased the risk of might prejudiced. In this States, 381 Bridges v. dice. court, using the discretion case the trial denied, 439 (D.C.App.1977),cert. A.2d 1073 8(a), granted by consolidat- indictments. This Court has ed the two that the Accordingly, we conclude court, said on occasions that a trial and com court its discretion abused exercising its discretion under when denying ap error mitted reversible rules, clearly not be reversed unless will of the of motion for severance pellant’s However, wrong. we find no discussion fenses at trial. any would indi- majority facts which prejudiced defendant was cate that the III. indictments; nor did joinder of the two herein, judg- reasons stated For the judge majority show that the trial Raleigh Court of Coun- ment of the Circuit majority wrong. I am confident the clearly reversed, the case is remanded ty is only to confuse the issue opinion will serve trials. new consolidated indictments can be of when Reversed and remanded. under Rule and re- dissents Justice BROTHERTON reasons, I dissent. For the above dissenting opinion. right to file a serves the BROTHERTON, Justice, concurring m dissenting part:

part, opinion find- majority

I concur with 61-2-14(a), setting forth

ing W.Va.Code § intent to

the offenses abduction

defile, constitutional, dissent from the trial

majority’s conclusion

Case Details

Case Name: State v. Hatfield

Court Name: West Virginia Supreme Court

Date Published: Jun 29, 1989

Citation: 380 S.E.2d 670

Docket Number: 17519

Court Abbreviation: W. Va.