*1
Berger,
3 J.
& M.
IV.
generally
Weinstein
See
607(03), 607(54)
Evidence M
Weinstein’s
CONCLUSION
(1976
Supp.1990).
&
reasons,
foregoing
we reverse
For
613(b)
have utilized Rule
We
judgment of
of Mar-
the Circuit Court
impeachment of
cases where an
a
other
County.
ion
sought by
prior
is
a
inconsistent
witness
Schoolcraft,
statement.
State v.
Reversed.
574,
(1990);
King, 183 W.Va.
requirements of Rule of West apply
Virginia Rules Evidence cases seeks to a criminal defendant intro
where
a
duce extrinsic evidence of witness’s bias.
(1) prior The statement must be a incon- witness; (2) The sistent statement of the No. 19436. opportunity witness must be afforded an Supreme Appeals of deny Court of explain having made the state- Virginia. ment; (3) West party must opposing and be interrogate opportunity afforded Dec. 1990. concerning witness the statement. Here, accorded the witness was never cross-examination to be asked Moreover, supposed it her is
about bias. record
unclear from made vouch the defen-
by defense counsel whether testify that there
dant’s brother would part prior on the inconsistent statement Riley showing against the
of Ms. bias de-
fendant.19 reasons, cannot say
For these we the trial its discretion in court abused
refusing this evidence.20 witness, Nancy vengeful- Riley, Specifically, as her counsel vouched the record as as well
19.
ness.”
follows:
Yesterday
"MR. HINTON:
in cross-exami-
argues
the trial
20. The
also
court
Nancy Riley
she did
nation
indicated
refusing to
erred in
allow the defendant's broth
pre-
make certain
and Mr. [S.]
statements
testify
recanting
she,
fact,
about
er to
the victim
pared
testify
to the statements
sexually
her. Prior to the
father
abused
broth
Part
that counsel
did make.
of the defense
wife,
testimony, the
er's
defendant's
his sister-in-
has indicated to
is that Welfare
law,
the victim
Nancy Riley,
testified about
inconsist
Department,
particularly
story
vengeful
encies in T.S.’s
аnd her denial
has had a
toward the defen-
attitude
and,
fact,
properly
assault. Such evidence was
excluded
dant James
she has taken the
[SJ
Brown,
it was
State v.
and stretched
because
cumulative.
interview
it
[T.S.]
[S.S.]
(1988);
up
things
State v.
in her
syllabus
point.
that:
the record on this
S.E.2d
vouched
is,
object
the law in all cases
“The
cited,
As indicated
the authorities
juries
impaneled
try the
are
which
question
real
raised
the defendant’s as-
issue,
responsible
to secure men for that
signment relating
process
to due
is not
wholly
from
duty whose minds are
free
possibility
there is a mere
that the
whether
prejudice
against the
or
either for or
bias
jurors
prejudiced,
biased or
were
but
accused_”
Syl. pt.
part,
State v.
prejudice
whether actual bias or
has been
Hatfield, 48 W.Va.
37 S.E.
on the record.
shown
delay
impaneling
While the
between
jurors
prospective
To insure that
might
of trial
the time
prejudice,
free from
the Court
аre
bias
suggest
possibility
prejudice
intrud-
recognized
parties
have wide lati
has
ing,
attempt
the defendant made no
engaging
tude in
in voir dire examination
court,
show the trial
and has made no
Peacher,
jurors.
supra.
such
Court,
attempt
delay
to show this
that the
However,
questions
the resolution of
relat
prejudice.
caused actual bias or
He has
ing
qualification
jurors
to the
is left to
*5
particular juror
no
identified
who was al-
of
not
the discretion
the trial court and will
legedly
prejudicial
biased or
as a result of
appeal,
be disturbed on
absent an abuse of
delay;
any juror
the
he has not shown how
Crouch, supra. Fur
discretion. State v.
delay;
was affected as a result of the
and
ther,
showing
jury
in the
of
that a
absence
any
juror
he has not shown
contact
a
impartial,
appellate
not
an
court
was
delay
the
which could have resulted
not
the
exercised
should
disturb
discretion
prejudice. Finally,
the record fails to
determining
ques
trial court in
the
the
17, 1988,
August
prior
that on
show
eligibility
tion of
of the
of the
members
trial,
showing
an
made
effort to elicit a
jury to serve and should not reverse its
prejudice.
of
bias,
finding
jurors
that the
were free from
circumstances,
Under the
this Court can-
partiality
compe
prejudice, and
and were
pro-
not
that the
court erred in
find
trial
142
Carduff,
tent to serve. State v.
ceeding
jury
to trial with the
which had
18,
(1956).
Rules of Evidence. defendant’s ments of error testimony centers on the In the more recent case of State v. Ed- Barber, Miss Jamie a rebuttal witness for L., ward Charles prosecution the State. The asked her S.E.2d 123 the Court examined a whether she had ever seen the defendant situation where a mother testified to extra- wearing boxer shorts. Defense counsel ob judicial statements made her son involv- jected to the testimony ground on the ing sexual assaults. testimony The relevancy. The trial court overruled the principally explain adduced why the motion. Defense counsel then said: “Your mother took the psychologist. children to a honor, goes it to the motion that the Court It was not admitted for purpose before,” has ruled on apparent refer proving the truth of the matter asserted. ence to a motion appeal, limine. On children were in court and defendant claims that the testified. The evidence consti Court concluded that tuted evidence of testimony other bad acts on part was admissible and that the trial court did not of the defendant admitting err it. In and that the trial reach- court ing conclusion, it, this improperly the Court allowed stated: view of the rule in restricting limine testimony. such
It extremely important recognize *7 trial, the defendant’s each child trial, court, Prior to response trial present, court, testified in and was to the defendant’s motion in limine had by cross-examined defense counsel. Fur- ruled: thermore, neither the mother nor the hereby is ADJUDGED and OR- “[I]t psychologist added anything substantive DERED that Defendant’s Motion be testimony. the children’s It would granted and that the State shall not grave cause us proprie- concern as to the present any evidence in this case of other ty testimony of the mother’s if the chil- charged similar acts not in the indictment gave dren sketchy a barebones or ac- D..., with C... any uncharged nor other occurred, count of what and then the persons misconduct with other than C... permitted expand mother was upon D..., any nor other evidence of similar add detail and substance to such testimo- bad acts the defendant for which he is ny through extra-judicial the children’s charged in this indictment.” statements. Such was not the case here. Judge Berger Weinstein and Professor In the motion in limine the defendant had have written that availability “[t]he moved that precluded State be from the declarant at trial vitiates the main adducing evidence that: “the defendant rule, hearsay concern of the which is the any committed per- criminal acts with other any lack of opportunity adversary for the sons for which he has not chаrged been to cross-examine the absent declarant.” and ... evidence of wrongful other present alleged acts, This Court wrongful believes that the case acts or similar to sufficiently is similar to that of charged State v. those which he is with.”
425 Horton, 160 view, testimony 264 S.E.2d about In this Court’s (1980), that: complains does not the defendant which rule limine. scope of the an party
fall within If offers evidence to which sustained, motion and rule in impact party, clear of the in or- objection The is rejection exclude evidence of other of the evi- preserve was to der to limine analogous wrongs. place The appeal, acts and error on must criminal dence as shorts, being the record or dis- wearing rejected and even evidence on boxer shorts, not, is close the evidence would have wearing seen boxer absent what shown, prevents to do so display, a criminal act and and the failure some lascivious reviewing the appellate an court from analogous to the criminal acts for is not appeal. charged. matter on the defendant was which party preserve The failure of trial, In the of the defense course essentially precludes this rejected evidence attempted question Deborah F. counsel rejec- determining whether the Court from Tankersley, another witness called error. tion constitutes reversible See State State, against regarding prejudice bias and S., v. James Edward the defendant. The trial court refused to (W.Va.1990); Horton, S.E.2d 843 Horton v. appeal, the de allow the examination. On Id.; Messinger, 163 W.Va. State v. trial court’s refusal fendant claims that the Joe, 105 W.Va. S.E.2d 587 State v. to allow the cross-examination violated S.E. Amеndment to con right under the Sixth failed In the the defendant against a witness front and cross-examine preserve record and failed to to vouch the him. In the the evidence otherwise. absence attorney argues that his determine vouching, this Court cannot Tankersley, as intended to show that Ms. ruling prejudicial, court’s whether the employee Department of Human ruling syllabus point and in line with the Services, police officer had worked with the Horton, supra, the Court 1 of Horton v. and that she had investigated this case who effectively pre- it has been believes that shаre information cooperate refused to question reviewing from cluded prior to trial.2 defense counsel presented by the defendant. trial, the conclusion of Regarding objections such this At on third- defendant offered an instruction stated, syllabus point 1 of Horton Court Colosi, By that. Mr. assignment this the Court: We’ll sustain of error on 2. The defendant’s following grows going beyond range point cross examina- and the Court out this is Tankersley by defense counsel: of Ms. restricting tion it now. Honor, Department By Q. of Human to state the rea- You work for the Mr. Colosi: Your *8 do, you still don’t know whether gо Services. I is a into this is that she son I want you investigation this but at the time of witness, though a rebuttal witness. even she’s Department of Human Servic- worked for Colosi, By Court: Mr. rebuttal witnesses es, you? didn't put on to rebut certain evidence are restricted Yes, A. sir. during in chief and the Court examination joint investiga- you Q. conducted a And I think coming any question up at doesn't recall Deputy Hicks? tion in this case. the evidence time investigation my for the own A. I conducted By witness’s Colosi: But even a rebuttal Mr. Department. issue, they are and motive are in character accompanied yоu? Deputy Q. Hicks And not? times for interviews. A. At Q. No, By Court: Sir. information, your And he had access prejudice? By Bias and Mr. Colosi: didn’t he? respect, By it's not. Court: Not in that my some of information A. At times I shared No, sir. required their inves- it was with him when tigation. get just for By I want to it clear Mr. Colosi: question like to the witness the record. I’d Deputy you Q. took statements And even involving prejudice of bias and about factors Hicks? witness, ruling like the Court's and would I did not. A. No. go into that. I’m allowed to Honor, as to whether object. This is By I Mr. Bell: Your No, not. By Court: Sir. You’re scope going of the evidence. far from the abuse, first-degree prоvides ing sexual assault which he believed was degree sexual first-degree in that: included offense a lesser The trial court refused to assault. guilty
sexual in person A is of sexual assault instructed the instruction and give degree this the first when: third-degree sexual abuse was erroneous. was his case only on give an instruction He trial court’s first-degree sexual abuse. dicial On argues that essentially appeal, the defendant error. and that the trial first-degree rejection of his instruction on third-degree lesser included offense on it constituted sexual assault court’s refusal to claims that the sexual abuse preju- provides: tablishing W.Va.Code, 61-8B-3(a)(2). The statute es- A person third course or sexual intrusion with old or (2) person [******] Such degree who more, engages in sexual abuse person, being guilty is when eleven of sexual abuse in the third years subjects fourteen sexual old or less. another another degree in the years inter- the lat- person to sexual contact without Neider, In consent, such lack of consent ter’s when this Court exam 295 S.E.2d incapacity to con- is due to the victim’s a lesser included question ined the of when being reason of less than sixtеen sent required in was a crimi offense instruction years old. held that when the nal case. The Court in W.Va,Code, 61-8B-9(a). has not shown conflict greater elements of the proof as to the An examination of the statutes shows part are not of the lesser offense that first-degree to convict for sexual as- offense, in he is not entitled to such an sault, prove the State must three elements Neider, point 1 of syllabus In struction. required for which are distinct from those the Court stated: third-degree of sexual abuse. conviction determining par- “The test of whether a prove the time The State first must that at is a lesser included of- ticular offense the commission of the crime the victim must fense is that the lesser offense be years age. In younger was than twelve impossible it is to commit the such that present it was an uncontested having first com- greater offense without younger was than twelve at fact C.D. An offense is mitted the lesser offense. Secondly, charged. of the crimes the time if re- lesser included offense it not a prove the State must the defendant quires the inclusion of an element years age was fourteen or more at greater Sylla- offense.” required he committed the crime. This fact time Louk, bus Point present also uncontested case. 285 S.E.2d prove type must Finally, the State conduct sexual intercourse or sexual on to set forth The Court then went first-degree sexual intrusion to establish governs the syllabus point 2 the rule which third-degree assault. For sexual sexual sylla- case. In that question abuse, subjected the defendant must have point, the Court stated: bus sexual contact. the victim to evidentiary dispute or there is no Where proffered the elements of the neither evidence insufficiency on The defendant *9 from greater offense which are different defense which would tend nor asserted of- engaged of the lesser included that he in sexual con- the elements to indicate fense, defendant is not entitled of sexual intercourse or sexual then the tact instead Instead, suggested he included offense instruction. that to a lesser intrusion. activity any type in engaged no sexual case, defendant was present In the the victim. with the assault, first-degree sexual charged with Neider, v. State indicated in where to a As he claims that he was entitled аnd by a defendant would the defense raised instruction on third- lesser included offense acquittal on the entitle him to an both govern- degree sexual abuse. The statute
427
offenses, he is not
greater
by wearing badges
and lesser
enti-
association
in a court-
throughout
room
a trial
jury
tled to
instruction on the lesser
constituted reversi-
a
ble error where fourteen
twenty
This
that the de-
offense.
Court believes
jury
members of the
venire knew of the
defendant,
by
he en-
fense raised
the
that
organization’s
goals.
activities and
gaged
activity
in no sexual
with the victim
whatsoever,
have entitled him to an
would
Obviously,
distinguishing
feature be-
acquittal
greater
on both the
and lesser
Richey
tween the
and Franklin cases was
jury
offenses if the
had
his evi-
believed
the fact
in
presence
the one case the
apparently
jury
dence. The
did not believe
goals
promi-
and
of the individuals were
guilty.
that evidence and found him
In
jury
clearly
nent and clear to the
aimed
defense,
influencing
case,
view of the nature of the
the
jury.
at
the
In the other
presence
correctly
goals
the
of the students
lower court
concluded that he was
were far less clear and the intent to influ-
not entitled to the lesser included offense
jury
apparent.
ence the
was less
requested.
instruction which he
case,
In
present
relating
the evidence
During closing arguments in the
weeping
to the victim’s
tended to show that
case, C.D.,
prosecutrix,
in
sat
the front
solitary girl weeping silently
there was a
and,
jury
according
in front of the
row
apparently
the courtroom. She
disturbed
defendant, openly wept.
The defen
one,
apparently
no
and defense counsel
did
argues
weeping
dant
that this
was the re
weeping
not know оf the silent
until an
flagrant attempt by
sult of a
the State to
unidentified
him
informant told
about it.
sympathy
jury
elicit
from the
and was de
There is also evidence that the defendant’s
signed
pressure
jury
to return a
during closing
child cried
the courtroom
guilty.
verdict of
arguments.
judge
himself stated that
Defense counsel
for a mistrial
moved
anything
he did not hear
that disturbed the
on,
going
of what
and the trial
basis
nothing
court and that he knew of
unusual
appeal,
court denied the motion. On
going
judge,
on in the court. The
argues
that the trial court’s re-
making
ruling,
indicated that he had
grant
contrary
fusal to
mistrial was
right
public
against
balanced the
to a
trial
by
impar-
a trial
the defendant’s
creating potential disruption in the
factors
jury
tial
and was erroneous.
disrup-
courtroom. He concluded that the
and,
tion was nonexistent or minimal
there-
In
Richey,
State v.
fore, refused to declare a mistrial.
(1982), the
S.E.2d 879
Court discussed
recognized
This
has
that the deci-
question
presence
Court
of when
activi-
grant
sion to
a mistrial and the conduct of
spectators
in a courtroom
ties of
general
are
the sound
a trial
within
prejudice
trial
the defendant’s
would
judge.
discretion of the trial
See State v.
case,
defendant,
rights.
In that
who
Armstrong, 179 W.Va.
MILLER, Justice, dissenting:
My goes to the in-court testimony dissent
of the victim’s mother who recited what daughter being had told her about sex-
ually abused the defendant. This con-
versation occurred some three weeks after majority incident. The holds these relying
statements to be admissible L.,
State v. Edward Charles
my length dissent to that I set out at
why I such believe statements are not ad- Simply put,
missible. the statements are
hearsay placed and cannot be under
exception hearsay to the rule.
Margie Ann HOLBROOK ASSOCIATES, INC.,
POOLE and The Virginia Rights
West Human
Commission.
No. 19178.
Supreme Appeals Court of Virginia.
West
Dec. 1990.