State v. Beck

• Decision Date: 17 July 1981
• Docket Number: No. 14549,14549
• Citation: 167 W.Va. 830,286 S.E.2d 234
• Parties: , 31 A.L.R.4th 103 STATE of West Virginia v. Harry Edgar BECK.
• Court: West Virginia Supreme Court

Page 234

286 S.E.2d 234

167 W.Va. 830, 31 A.L.R.4th 103

STATE of West Virginia v. Harry Edgar BECK.

No. 14549.

Supreme Court of Appeals of West Virginia.

July 17, 1981.

Syllabus by the Court

1. "A present hostile sentiment against an accused, extending throughout the entire county in which he is brought to trial, is good cause for removing the case to another county." Syllabus Point 2, State v. Sette, W.Va., 242 S.E.2d 464 (1978).

2. An indictment charging a statutory offense need not use the precise language of the statute. It is sufficient if the indictment language is substantially equivalent to the statutory language.

3. "The true test as to whether a juror is qualified to serve on the panel is whether without bias or prejudice he can render a verdict solely on the evidence under the instructions of the court." Syllabus Point 1, State v. Kilpatrick, W.Va., 210 S.E.2d 480 (1974).

4. Where the accused takes the stand or produces witnesses who testify as to his previous good character in defense of the charge against him, he or they may be cross-examined concerning other criminal charges, offenses and convictions as well as other matters which may demonstrate his bad character.

5. A conviction for any sexual offense may be obtained on the uncorroborated testimony of the victim, unless such testimony is inherently incredible, the credibility is a question for the jury.

6. In a criminal trial, a relevant item of evidence may be admitted without the necessity of proving a complete chain of custody, if the offered item possesses characteristics which are fairly unique and readily identifiable, and if the substance of which the item is composed is relatively impervious to change. The trial court is viewed as having broad discretion to admit merely on the basis of testimony that the item is the one in question and is in a substantially unchanged condition.

7. The appropriateness of a life recidivist sentence under our constitutional proportionality provision found in Article III, Section 5, will be analyzed as follows: We give initial emphasis to the nature of the final offense which triggers the recidivist life sentence, although consideration is also given to the other underlying convictions. The primary analysis of these offenses is to determine if they involve actual or threatened violence to the person since crimes of this nature have traditionally carried the more serious penalties and therefore justify application of the recidivist statute.

W. Craig Broadwater, Riley, Yahn & Cooey, Robert Fitzsimmons, Fitzsimmons & Parsons, Wheeling, for plaintiff in error.

Chauncey H. Browning, Atty. Gen., James F. Wallington, Asst. Atty. Gen., Charleston, for defendant in error.

MILLER, Justice:

Harry Edgar Beck was convicted in the Circuit Court of Brooke County of sexual assault in the first degree. Upon his conviction, the State proceeded with a recidivist hearing, resulting in the imposition of a mandatory life sentence under W.Va.Code, 61-11-18.

The appellant challenges both the underlying conviction and the recidivist sentence, on the basis of (1) the denial of his motion for a change of venue; (2) the refusal to quash the indictment which contained non-statutory language; (3) the impaneling of three jurors who were challenged for cause; (4) a ruling that a defense psychiatrist, if called, would be subject to cross-examination regarding the appellant's other criminal offenses; (5) a verdict based solely on the uncorroborated testimony of the victim; (6) a break in the chain of custody of evidence at the recidivist hearing; and (7) a challenge to the recidivist sentence as constituting cruel and unusual punishment.

The appellant was indicted in June of 1977 on several counts of sexual assault and sexual abuse involving his 10-year-old stepdaughter. ¹ The State proceeded to trial on Count 1 of the indictment, which charged the commission on April 24, 1977, of sexual assault in the first degree for engaging in "oral sex with another person ... who was then incapable of consent because she was then less than eleven years of age," in violation of W.Va.Code, 61-8B-3.

Following psychiatric examination and a hearing regarding mental competency, the appellant was found to be competent to stand trial under W.Va.Code, 27-6A-2. An additional pretrial hearing was held regarding the appellant's motion for a change of venue based upon allegations of hostile pretrial publicity throughout the community. Following the hearing, the motion was denied and the case proceeded to trial before a jury.

At trial the State's case consisted primarily of the testimony of the 10-year-old child, who testified in some detail that, at the appellant's direction, she performed an act of oral intercourse upon him. The State's only other witness in its case-in-chief was the child's mother, who testified that two days later her daughter reported the incident to her. There was no further direct evidence regarding the event in question. The defense consisted of a number of alibi witnesses who testified that the appellant was elsewhere at the time the alleged offense was committed.

I.

The appellant's first issue on appeal is based on the trial court's denial of his motion for a change of venue. The motion raised the claim of extensive hostile publicity surrounding the arrest of the appellant upon the present charge, and additional publicity about the appellant's arrest later on an unrelated charge of sexual assault for the alleged rape of a woman in Ohio County.

The appellant's evidence at the hearing on the motion for a change of venue consisted of newspaper articles regarding the appellant's alleged offenses, and the testimony of seven friends and relatives regarding their observations of adverse publicity and hostile sentiment. Although counsel for the appellant read a portion of one newspaper article into the record, ² the remainder of the articles have not been included in the record on appeal and are thus unavailable for consideration.

In response, the State called six witnesses selected at random from the list of potential jurors of Brooke County. Upon examination, all six acknowledged some familiarity with the case based upon their exposure to news reports. Four of the six expressed the view that they would be able to set aside their impressions from the news reports and render an unbiased verdict based solely on the evidence introduced at trial.

On appeal, the appellant argues that additional support for a change of venue was subsequently provided at trial when, in selecting the jury panel upon voir dire examination, 40% of the potential jurors expressed some bias towards the appellant. The State points out, however, that the bias of a number of these potential jurors was based on the nature of the offense and the age of the victim--factors not directly related to the adverse media publicity. The State also observes that only 9 of 45 (20%) expressed bias attributable to publicity. ³

Our test for when a change of venue is warranted is: "A present hostile sentiment against an accused, extending throughout the entire county in which he is brought to trial, is good cause for removing the case to another county." Syllabus Point 2, State v. Sette, W.Va., 242 S.E.2d 464 (1978); Syllabus Point 2, State v. Dandy, 151 W.Va. 547, 153 S.E.2d 507 (1967); Syllabus Point 1, State v. Siers, 103 W.Va. 30, 136 S.E. 503 (1927). In State v. Sette, this Court reversed a refusal to change venue where the defendant introduced newspaper articles, transcriptions of radio broadcasts, the results of a telephone public opinion poll, and demonstrated that nearly fifty percent of the jurors summoned were disqualified on the basis of a belief in guilt that they were unable to discard.

Here, we do not find that the trial court abused its discretion in failing to grant a change of venue. The record before us does not demonstrate widespread hostile media publicity. The testimony of the appellant's witnesses when viewed against the generality of the questions asked and the lack of specific identification of particular hostile publicity does not demonstrate present hostile community sentiment against the appellant. Furthermore, of the forty-five jurors drawn, there were nine who had some prior knowledge of the facts and revealed a fixed bias that necessitated their disqualification. This is contrasted with the situation in Sette, where nearly fifty percent of the jurors were disqualified for bias.

While we have indicated in Sette that the "failure to grant a change of venue in the face of widespread prejudicial pretrial publicity constitutes an abuse of discretion," W.Va., 242 S.E.2d at 470, this principle does not mean that the juror's actual response to pretrial publicity cannot be considered. Here, the record before us does not contain anything regarding the scope of publicity beyond a portion of a newspaper article. Even if we were to assume that there were a number of other articles exhibited to the trial court, the fact remains that the jurors' answers on voir dire demonstrate that they were able to make the unqualified assertion that they could determine the issues based solely on the evidence. Having some knowledge of the case does not automatically disqualify a juror, as the United States Supreme Court has stated in Murphy v. Florida, 421 U.S. 794, 799-800, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589, 594-95 (1975):

"Qualified jurors need not, however, be totally ignorant of the facts and issues involved.

" 'To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.' [Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751,...