State v. Banjoman

• Citation: 178 W.Va. 311,359 S.E.2d 331
• Decision Date: 15 May 1987
• Docket Number: No. 16351,16351
• Court: Supreme Court of West Virginia
• Parties: STATE of West Virginia v. Delia A. BANJOMAN.

Page 331

359 S.E.2d 331

178 W.Va. 311

STATE of West Virginia v. Delia A. BANJOMAN.

No. 16351.

Supreme Court of Appeals of

West Virginia.

May 15, 1987.

Petition for Rehearing Filed

June 12, 1987.

Petition for Rehearing Refused

July 16, 1987.

Syllabus by the Court

1. "The question as to which witnesses may be exempt from a sequestration of witnesses ordered by the court lies within the discretion of the trial court, and unless the trial court acts arbitrarily to the prejudice of the rights of the defendant the exercise of such discretion will not be disturbed on appeal." Syllabus Point 4, State v. Wilson, 157 W.Va. 1036, 207 S.E.2d 174 (1974).

2. " 'It is within the judicial discretion of the trial court to permit a witness for the state, who is familiar with the facts on which the prosecuting attorney relies to establish the guilt of the accused, to be present in court during the trial to aid him in conducting the examination of other witnesses.' Point 5, syllabus, State v. Hoke, 76 W.Va. 36 [84 S.E. 1054 (1915) ]." Syllabus Point 5, State v. Wilson, 157 W.Va. 1036, 207 S.E.2d 174 (1974).

3. "A jury verdict may not ordinarily be impeached based on matters that occur during the jury's deliberative process which matters relate to the manner or means the jury uses to arrive at its verdict." Syllabus Point 1, State v. Scotchel, 168 W.Va. 545, 285 S.E.2d 384 (1981).

4. The cross-examination of a defendant's character witnesses with regard to questions as to the witness's knowledge of specific instances of the defendant's misconduct is confined by certain limitations. There must initially be, by way of an in camera hearing, a disclosure of the proposed specific misconduct questions. The State must produce documents or witnesses from which the court may determine whether there is a good faith basis in fact that the misconduct actually occurred and would have been known to some degree in the community. A second limitation requires that the specific misconduct impeachment relate to facts which would bear upon the character traits that have been placed in issue by the character testimony on direct examination. Finally, the court must make the ultimate determination as to whether the probative value of the defendant's specific incident of misconduct, which is to be the subject of the cross-examination, outweighs its prejudicial value.

5. Once the court determines at the in camera hearing that the specific-misconduct cross-examination of a character witness may proceed, the jury should be informed that its purpose is to test the credibility of the character witness and it is not to be considered as bearing on the defendant's guilt in the present trial.

6. "Where improper evidence of a nonconstitutional nature is introduced by the State in a criminal trial, the test to determine if the error is harmless is: (1) the inadmissible evidence must be removed from the State's case and a determination made as to whether the remaining evidence is sufficient to convince impartial minds of the defendant's guilt beyond a reasonable doubt; (2) if the remaining evidence is found to be insufficient, the error is not harmless; (3) if the remaining evidence is sufficient to support the conviction, an analysis must then be made to determine whether the error had any prejudicial effect on the jury." Syllabus Point 2, State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1081, 63 L.Ed.2d 320 (1980).

7. Old-age, survivors, and disability insurance benefits, under 42 U.S.C. §§ 401, et seq., paid to minor children living in the applicant's household are includible as income for purposes of determining the applicant's eligibility for Aid to Families with Dependent Children benefits under 42 U.S.C. §§ 601, et seq.

8. "An instruction for a statutory offense is sufficient if it adopts and follows the language of the statute, or uses substantially equivalent language and plainly informs the jury of the particular offense for which the defendant is charged." Syllabus Point 8, State v. Slie, 158 W.Va. 672, 213 S.E.2d 109 (1975).

Mary Beth Kershner, Asst. Atty. Gen., for appellant.

Wm. R. DeHaven, Martinsburg, for appellee.

MILLER, Justice:

Delia A. Banjoman was convicted of welfare fraud in violation of W.Va.Code, 9-5-4, ¹ and received a sentence of one to five years on November 8, 1982. She assigns several trial errors including: (1) the exemption of a welfare investigator from a witness sequestration order; (2) the refusal to disqualify a juror alleged to have been biased and to have answered falsely during voir dire; (3) a ruling whereby the State was permitted to cross-examine character witnesses with regard to the defendant's prior misconduct; and (4) the refusal to instruct the jury that certain government benefits are not treated as income in determining eligibility for other welfare programs. We conclude that the trial court committed no reversible error and, therefore, we affirm.

I.

The evidence at trial indicated that the defendant was a lifelong resident of Charles Town, West Virginia. During the mid-1960s, she had two children, Dawn and Roxanne, by Luke Alfred French. In 1967, Mr. French died and the defendant applied for old-age, survivors, and disability insurance (OASDI) ² benefits on behalf of his two children. Monthly benefit checks were paid to her as representative payee for the children after approval of her OASDI application in or about November, 1967. ³ In September, 1970, the defendant married Roy D. Banjoman and had one daughter, Charnell, by that marriage. Mr. Banjoman and the defendant separated in 1975 and he apparently provided no further support for her or her children.

On May 19, 1980, the defendant applied for benefits under the Aid to Families with Dependent Children (AFDC) ⁴ program at the Jefferson County branch of the West Virginia Department of Welfare (DOW). ⁵ Warren Hess, a DOW employee, took her application and testified generally to the procedure he used in reviewing the application papers with her and in obtaining the requested information.

Each application begins with a short paragraph advising the applicant of possible criminal penalties for obtaining benefits by fraud. ⁶ Mr. Hess testified he read this paragraph aloud to the defendant and she signed and dated an acknowledgment. Mr. Hess then initiated a question-and-answer dialogue in which he read each provision of the application and recorded the defendant's oral response. When they discussed questions dealing with income and resources which were available to the household, Mr. Hess stated he specifically advised her that this included government benefits such as unemployment compensation and social security. After the requested information had been obtained, the defendant reviewed the completed application and certified that the answers were true and accurate to the best of her knowledge by signing it.

According to Mr. Hess, during the application process the defendant identified her two oldest children as Dawn and Roxanne Lindsey, and stated that their absent parent was a Luke F. Lindsey. She also provided Warrenton, Virginia, as Mr. Lindsey's last known address. Section M of the application, titled "OTHER INCOME," requested an itemization of all revenue sources other than wages for all members of the household. There was no mention of the OASDI benefits under Section M or in any of her other responses.

Jo Calkens, another DOW witness, testified that in September, 1980, the defendant reported to the DOW that she had begun employment at an area nursing home. Her hourly wage was reported to be $3.10 and she was scheduled to work between sixteen and twenty hours per week. Five months later, the defendant injured her hand and advised Bonnie Mason, a DOW case worker, that she would be temporarily unable to work. Shortly afterwards, she delivered to the DOW a pay stub dated March 30, 1981. She advised a DOW worker that she had returned to work and the stub represented her first pay. Work records subsequently obtained from her employer revealed that she had not reported two paychecks received in February and March, 1981.

On December 2, 1980, the defendant reapplied for AFDC benefits according to Mr. Hess, who again took the application. On her second application, she listed her oldest daughters as Dawn and Roxanne French and named Luke Alfred French as their absent parent. She gave no indication that Mr. French was deceased and once again gave Warrenton, Virginia, as the last known address. Her only source of income itemized under Section M was the wages from her part-time employment.

On March 31, 1981, the DOW learned of the OASDI benefits paid to the defendant through the aid of BENDIX, a data cross-listing system. Ms. Mason telephoned the defendant to inquire whether she was receiving any such benefits and the defendant strenuously denied having received them. Ms. Mason verified with the United States Department of Health and Human Services that the defendant had obtained OASDI benefits. It was learned that after each of her two applications to the DOW for AFDC benefits, the defendant had received monthly OASDI checks payable in her maiden name, Delia Lindsey. These checks were mailed to an address in Charles Town she had vacated six years before. Following the call from Ms. Mason, the defendant called the next day to inform the DOW that she was leaving the State to assume full-time employment in Maryland, but refused to identify the employer or to provide her new address. She also requested the termination of her AFDC benefits.

Francis Lantz, who oversaw the investigation by the DOW, testified that the amount of income unreported by Ms. Banjoman totaled $7,855.90, resulting in an overpayment of benefits in the amount of $4,431.04.

II.

After the jury had been impaneled, the defendant moved to sequester all of the State and defense witnesses. This motion was promptly granted. The State...