State v. Adkins

• Citation: 289 S.E.2d 720,170 W.Va. 46
• Decision Date: 26 March 1982
• Docket Number: No. 14667,14667
• Parties: STATE of West Virginia v. Douglas ADKINS.
• Court: Supreme Court of West Virginia

Page 720

289 S.E.2d 720

170 W.Va. 46

STATE of West Virginia v. Douglas ADKINS.

No. 14667.

Supreme Court of Appeals of West Virginia.

March 26, 1982.

Syllabus by the Court

1. "Where under prior case law a criminal defendant was entitled to be indicted as an aider and abettor in order to be convicted as such, well established prohibitions against ex post facto changes in either procedural or substantive criminal law require that the defendant be allowed the benefit of the common law rule in effect at the time she was tried." Syl. pt. 2, State v. Petry, 153 W.Va. 154, 273 S.E.2d 346 (1980).

2. Syllabus point 2 of State ex rel. Dowdy v. Robinson, 154 W.Va. 263, 257 S.E.2d 167 (1979), was overbroad and is hereby overruled.

3. A witness at a criminal trial may testify that he, the witness, and not the defendant was responsible for the crime for which the defendant is on trial.

4. "Confessions elicited by law enforcement authorities from persons suspected of crimes who because of mental condition cannot knowledgeably and intelligently waive their right to counsel are inadmissible." Syl. pt. 1, State v. Hamrick, 160 W.Va. 673, 236 S.E.2d 247 (1977).

5. "A trial judge's failure to make a finding on the issue of a criminal defendant's competency to stand trial within five days after the filing of a report by one or more psychiatrists or a psychiatrist and a psychologist in compliance with W.Va.Code, 27-6A-1(d) [1977], will not be considered to be reversible error requiring a new trial absent prejudice to the defendant resulting from such failure." Syl. pt. 1, State v. Church, 168 W.Va. 408, 284 S.E.2d 897 (1981).

6. "There exists in the trial of an accused a presumption of sanity. However, should the accused offer evidence that he was insane, the presumption of sanity disappears and the burden is on the prosecution to prove beyond a reasonable doubt that the defendant was sane at the time of the offense." Syl. pt. 2, State v. Milam, W.Va., 260 S.E.2d 295 (1979).

7. Evidence regarding sexual predilections or conduct is not admissible at trial unless it is clearly relevant.

David Hill, Hurricane, for plaintiff in error.

Chauncey H. Browning, Atty. Gen. and S. Clark Woodroe, Asst. Atty. Gen., Charleston, for defendant in error.

McHUGH, Justice:

This case is before this Court on an appeal from a final order of the Circuit Court of Lincoln County, entered on August 4, 1978, denying the defendant Douglas Adkins' motion to set aside the verdict and award him a new trial. Douglas Adkins was convicted after a jury trial of the crime of first degree murder of Idona Baker. We find it necessary to reverse the judgment of the Circuit Court of Lincoln County on the basis of one of the errors assigned and address other errors assigned on this appeal that may recur at any possible retrial of the defendant. Relevant facts appear in context in the opinion.

I

The defendant assigns as error the trial judge's refusal to direct a verdict of acquittal due to variance between the indictment and proof in the case. He argues that he was indicted as a principal in the first degree and that the evidence adduced at trial, taken in the light most favorable to the State, proved only that he was an aider and abettor.

Adkins was indicted by a Lincoln County grand jury on the form indictment for murder provided by W.Va.Code, 62-9-3 [1931]. At his trial, however, the only evidence placing him at the scene of the crime, or otherwise indicating his involvement in the crime, was his own confession. Adkins told the police that he had shot at the victim and missed. He said that he then gave the gun to one of his cohorts, David Mooney, who shot and killed Idona Baker. The defendant argues that this proof, at most, showed him to be an aider and abettor, not a principal in the first degree.

In State v. Bennett, 157 W.Va. 702, 203 S.E.2d 699 (1974), this Court held, at syllabus point 9: "An accused who is indicted solely as a principal in the first degree is entitled to a directed verdict of acquittal upon proof by the State that he was only a principal in the second degree." That case was, however, overruled in State v. Petry, 166 W.Va. 153, 273 S.E.2d 346 (1980), where this Court held:

1. With regard to all cases in which the trial shall commence after the date on which this opinion is handed down by this Court the prior common law rule requiring that aiders and abettors or accessories before the fact be indicted as such is abolished and, hereafter, a general indictment as a principal in the first degree shall be sufficient to sustain a conviction as an aider and abettor or as an accessory before the fact.

2. Where under prior case law a criminal defendant was entitled to be indicted as an aider and abettor in order to be convicted as such, well established prohibitions against ex post facto changes in either procedural or substantive criminal law require that the defendant be allowed the benefit of the common law rule in effect at the time she was tried.

Syl., State v. Petry, supra. State v. Petry, by its terms, does not apply to the case presently before us because the trial in this case commenced prior to the decision in that case. The defendant's assignment of error must, therefore, be analyzed under State v. Bennett, supra.

In State v. Bennett the defendant was convicted of attempted armed robbery. The indictment in the case charged him as the sole perpetrator of the crime. The proof at trial, however, showed Bennett to have been an aider and abettor. The theory underlying this Court's reversal of Bennett's conviction was that the indictment did not provide valid notice under W.Va.Const. Art. III, § 14, of the "character of the accusation with which he is charged." 157 W.Va. at 708, 203 S.E.2d at 703.

This Court, in State v. Bennett, also considered the defendant's argument that the trial court erred in refusing to grant his motion for an acquittal at the close of the State's case. It was noted: "This point is so interconnected with the charge of 'material variance' that it perhaps represents a difference almost without distinction. Nevertheless, the court should have directed a verdict of acquittal also upon this assignment." 157 W.Va. at 710, 203 S.E.2d at 704. This Court, however, went on to note:

Code 1931, 61-11-14 permits the State to take additional prosecutorial action against the defendant Bennett. (Citations omitted). However, as to the charge for which the defendant was convicted, he has been once placed in jeopardy and he is entitled to be discharged from further prosecution as the alleged perpetrator of the crime of attempted armed robbery....

Id. W.Va.Code, 61-11-14 [1931], provided:

A person acquitted of an offense, on the ground of a variance between the allegations and the proof of the indictment or other accusation, or upon an exception to the form or substance thereof, may be arraigned again upon a new indictment or other proper accusation, and tried and convicted for the same offense, notwithstanding such former acquittal.

State v. Bennett, therefore, held that although the defendant was entitled to a judgment of acquittal on the charge that he perpetrated the crime of attempted armed robbery, he could be retried under a new indictment for the crime of aiding and abetting an attempted armed robbery.

State v. Petry, supra, which overruled State v. Bennett, specifically held "that the defendant be allowed the benefit of the common law rule in effect at the time she was tried." In the case before this Court State v. Bennett requires us to find that the trial judge erred in refusing to grant the defendant's motion for a directed verdict of acquittal due to a variance between indictment and proof. State v. Bennett, however, would also allow a new indictment and trial of the defendant for aiding and abetting the murder of Idona Baker even though retrial on the charge of being the perpetrator of the crime would be prohibited. This would be the end of our consideration of this assignment of error but for the intervening case of State ex rel. Dowdy v. Robinson, 163 W.Va.154, 257 S.E.2d 167 (1979).

In State ex rel. Dowdy v. Robinson the defendant was first charged by indictment with having burglarized a building at 220 2nd Street in Huntington. At his first trial the judge granted a motion for acquittal after the proof offered by the State showed that the actual location of the building which was broken into was 220 22nd Street. Dowdy was then indicted again and the new indictment recited the correct street address. Dowdy sought a writ of prohibition in this Court to prevent a retrial under the second indictment. The majority of this Court held, in syllabus point 2 of that case: " W.Va.Code, 61-11-14 [1923] is unconstitutional because it provides for multiple prosecutions of the same defendant for the same offense after an acquittal in contravention of U.S. Const. Amend. V and W. Va. Const., art. 3, § 5." State ex rel. Dowdy v. Robinson was not discussed in State v. Petry, supra. The holding in State ex rel. Dowdy v. Robinson initially appears to prevent the retrial of the defendant in this case under the State v. Bennett decision. Closer examination and reconsideration of those cases leads us, however, to reject that result.

The majority's holding in the second syllabus point of State ex rel. Dowdy v. Robinson was explained in the text as follows:

This statute allows multiple prosecutions of the same defendant for the same offense and expressly provides for a second prosecution after an acquittal in violation of U.S. Const. Amend. V and W.Va. Const., art. 3, § 5 and, therefore, is unconstitutional. As we said earlier, different action by the trial judge, e.g. striking the street number from the indictment or granting a mistrial for manifest necessity, might have avoided a successful plea of double jeopardy in the second trial. Law, however, is a technical creature and the Supreme Court has accorded magic to...