State v. Blake

• Decision Date: 11 October 1996
• Docket Number: No. 23458,23458
• Citation: 197 W.Va. 700,478 S.E.2d 550
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Eugene BLAKE, Defendant Below, Appellant.

Page 550

478 S.E.2d 550

197 W.Va. 700

STATE of West Virginia, Plaintiff Below, Appellee, v. Eugene BLAKE, Defendant Below, Appellant.

No. 23458.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 11, 1996.

Decided Oct. 11, 1996.

Syllabus by the Court

1. Three requirements must be satisfied before admission at trial of a prior inconsistent statement allegedly made by a witness: (1) The statement actually must be inconsistent, but there is no requirement that the statement be diametrically opposed; (2) if the statement comes in the form of extrinsic evidence as opposed to oral cross-examination of the witness to be impeached, the area of impeachment must pertain to a matter of sufficient relevancy and the explicit requirements of Rule 613(b) of the West Virginia Rules of Evidence--notice and an opportunity to explain or deny--must be met; and, finally, (3) the jury must be instructed that the evidence is admissible only to impeach the witness and not as evidence of a material fact.

2. Generally, a witness who testifies to certain matters cannot be impeached by showing his or her failure on a prior occasion to disclose a material fact unless the disclosure was omitted under circumstances rendering it incumbent or natural for the witness to state it.

3. When a prior inconsistent statement is offered to impeach a witness and the claimed inconsistency rests on an omission to state previously a fact now asserted, the prior statement is admissible if it also can be shown that prior circumstances were such that the witness could have been expected to state the omitted fact, either because he or she was asked specifically about it or because the witness was then purporting to render a full and complete account of the accident, transaction, or occurrence and the omitted fact was an important and material one, so that it would have been natural to state it.

4. Assessments of harmless error are necessarily content-specific. Although erroneous evidentiary rulings alone do not lead to automatic reversal, a reviewing court is obligated to reverse where the improper exclusion of evidence places the underlying fairness of the entire trial in doubt or where the exclusion affected the substantial rights of a criminal defendant.

5. The criteria to be used in deciding the retroactivity of new constitutional rules of criminal procedure are: (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards. Thus, a judicial decision in a criminal case is to be given prospective application only if: (a) It established a new principle of law; (b) its retroactive application would retard its operation; and (c) its retroactive application would produce inequitable results.

Victor S. Woods, Assistant Attorney General, Charleston, for Appellee.

George Castelle, Chief Public Defender, Charleston, for Appellant.

CLECKLEY, Justice:

The defendant below and appellant herein, Eugene Blake, appeals his October 17, 1985, convictions for first degree murder and two counts of third degree sexual assault. ¹ The defendant raises several assignments of error, which we address below. We order a new trial on the murder conviction and affirm the sexual assault convictions.

I. FACTUAL AND PROCEDURAL BACKGROUND

On October 26, 1984, the body of thirteen-year-old Mary Ann Hope Helmbright was found about seventy-five feet from a road in a wooded area in Monongalia County, just north of Morgantown. The victim died of a gunshot wound to the back of the head.

According to the testimony of sixteen-year-old JoAnn Wiseman, a friend of the victim, she and the victim skipped school on Tuesday, October 23, 1984, and spent most of the day watching television. At about 6:00 p.m., as the victim and Ms. Wiseman were "set[ting] by the bakery down on Main Street" in Wheeling, they saw the defendant drive by. The two girls, who knew the defendant, "hollered" for him and, when he returned to where they waited, they asked him to get them drunk. The defendant agreed and told them he would pick them up at Ms. Wiseman's residence at 8:00 p.m.

The defendant picked the girls up at 8:00 p.m. and drove them to the local Super X drugstore where he purchased two bottles of wine. The defendant then parked behind a school, where the three talked and the victim and Ms. Wiseman drank from their bottles of wine. Ms. Wiseman recalled that at one point the defendant reached into his glove compartment and a revolver fell out. The defendant told the girls he carried the gun with him for protection. The defendant, the victim, and Ms. Wiseman stayed at the school for a half hour to an hour, and the defendant then drove Ms. Wiseman and the victim to Rosa's Cantina parking lot where he let them out some time between 9:00 and 9:30 p.m.

The two girls returned to Ms. Wiseman's apartment at approximately 11:00 p.m., where they joined Ms. Wiseman's twenty-year-old sister, Tina Lewis. The three left the apartment shortly before midnight and unexpectedly found the defendant parked in front. According to Ms. Wiseman, the defendant asked if they "wanted to go back out and drink." After making a call to her boyfriend from a pay phone across the street, Ms. Wiseman declined the defendant's invitation and went inside to bed, leaving the victim and Ms. Lewis talking with the defendant. Ms. Lewis testified the defendant gave her a forty-ounce beer to drink and then drove her and the victim to a package store in Ohio where he bought a bottle of wine for the victim. The three of them drove around for a while until Ms. Lewis asked to be driven back to Wheeling. The defendant dropped her off at about 1:25 a.m. on the morning of October 24, 1984. Before Ms. Lewis got out of the truck, she heard the victim ask the defendant to drop her off at a friend's house in North Wheeling.

The bartender at the Silver Fox bar, ² John Burdette, testified that on the morning of October 24, 1984, he saw the victim and the defendant emerge from the backroom of the bar some time between 1:30 and 2:00 a.m., although he did not see the two enter the bar. ³ The victim sat at the bar while the defendant went behind the bar to fix drinks for himself and the victim. Mr. Burdette noted that both appeared angry and the defendant "said something to the effect of bitch or whore or something like that." The defendant and the victim left the bar through the front door about ten or fifteen minutes after they emerged from the backroom. ⁴ On October 24, 1984, William Harvey was driving on Chaplin Road between 11:00 a.m. and 1:00 p.m. and, as he looked into the woods for deer, he noticed a blue object which he thought was a bag of garbage. Two days later, as the victim's body, wearing a blue jacket and blue jeans, was being retrieved from the woods, Mr. Harvey identified it as the "blue object" he had seen from the road.

At trial, Lynn Inman, a forensic biologist, testified she found seminal fluid on vaginal and anal swabs collected from the victim. Fluid found on the victim's underpants contained genetic markers for blood type A, consistent with the defendant's blood type. ⁵ The medical examiner testified small lacerations were found at the victim's vaginal inlet and on the edge of her rectum, indicating there had been forceful vaginal sexual intercourse and at least attempted forceful penetration into her rectum. Sperm found in the victim's vagina, some of which were intact and well preserved, indicated to the medical examiner that they were deposited a short time before the victim's death. According to the medical examiner, the time of death of the victim was consistent with the early morning hours of October 24, 1984.

II. DISCUSSION

The defendant makes several challenges to his conviction. ⁶ Despite the numerous issues raised, we limit our disposition of this appeal to the questions of whether the circuit court committed reversible error by excluding impeachment evidence in the form of a prior inconsistent omission of a crucial State's witness and whether the trial court erred by not advising the defendant of his right to testify. We find the exclusion of the impeachment evidence was erroneous, and such error requires the murder conviction to be reversed. Our further review of the record indicates the remaining issues are lacking in merit or have not been adequately preserved on this record.

III. ANALYSIS

A. Exclusion of Prior Inconsistent Statement

The defendant contends the trial court erroneously refused to permit impeachment of a key witness by the use of prior inconsistent statements. During a polygraph examination on November 20, 1984, John Burdette, a witness for the State, denied any knowledge of the victim's death. ⁷ Previously, Ross Gray told police that John Burdette told him that as the defendant was leaving the Silver Fox bar with the victim on the morning of October 24, 1984, the defendant said, "Take a good look at this young, pretty c--t. It will be the last time you see her pretty face." Because Mr. Burdette's polygraph chart indicated he was withholding information, and because of Ross Gray's statement, Mr. Burdette was brought back to State Police Headquarters for further questioning on December 12, 1984. During that interview, Mr. Burdette admitted he had not been truthful and that he did indeed hear the defendant make the statement reported by Mr. Gray. At trial, Mr. Burdette testified the defendant did make the parting statement on the morning he was last seen with the victim. The defendant sought to present as prior inconsistent statements "[t]he questions and answers of the [polygraph] test without putting them in the context of a [polygraph] test or mentioning it." The trial court refused to allow the testimony on the basis that questions in a polygraph setting are framed differently than those in an ordinary interview.

A...