State v. Bohon, 30014.

• Decision Date: 08 May 2002
• Docket Number: No. 30014.,30014.
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Gypsy Buck BOHON, Defendant Below, Appellant.

565 S.E.2d 399

211 W.Va. 277

STATE of West Virginia, Plaintiff Below, Appellee, v. Gypsy Buck BOHON, Defendant Below, Appellant.

No. 30014.

Supreme Court of Appeals of West Virginia.

Submitted February 26, 2002.

Decided May 8, 2002.

Concurring Opinion of Justice Maynard July 3, 2002.

S. Sean Murphy, Esq., S. Sean Murphy, L.C., James B. Zimarowski, Esq., Morgantown, for Appellant.

Darrell V. McGraw, Jr., Attorney General, Heather D. Foster, Assistant Attorney General, Charleston, for Appellee. McGRAW, Justice.

This is an appeal by Gypsy Buck Bohon from an order of the Circuit Court of Monongalia County sentencing him to 40 years in the State Penitentiary for second degree murder. The sentence was imposed after the appellant had plead conditionally guilty to the crime charged.

On appeal, the appellant contends that he was, in effect, compelled to plead guilty because the trial court improperly denied his motion in limine to prohibit the prosecution from introducing certain evidence. The evidence which he sought to exclude consisted of prior trial testimony given by Roy Benny Helmick, another individual implicated in, and indicted for, the murder with which the appellant was charged. Other evidence which he sought to exclude consisted of certain statements which the appellant made to his wife, statements which he claims were confidential under the marital privilege statutes, and which were not, thus, properly admissible into evidence.

In the present appeal, the appellant claims that the circuit court's in limine rulings were erroneous and that, if the circuit court had properly excluded the evidence, he would not have plead guilty to the crime charged. He claims that under the circumstances, his conviction should be set aside.

I.

FACTS

On March 26, 1998, Brian Steven Crihfield was brutally murdered in his trailer in Monongalia County, West Virginia. A subsequent investigation of the case suggested that Roy Benny Helmick and the appellant Gypsy Buck Bohon were the perpetrators of the crime, and they were subsequently indicted for the crime.

Roy Benny Helmick was tried before the appellant, and during his trial he gave testimony potentially implicating the appellant.

Prior to the appellant's trial, Roy Benny Helmick took the position that he would not testify at the appellant's trial, and that he would invoke his Fifth Amendment right against self-incrimination if called as a witness. Because of this, the State proposed to read Mr. Helmick's prior trial testimony during the appellant's trial. Before the appellant's trial began, the appellant's attorney moved in limine that the court prohibit the prosecution from reading this testimony. The trial court denied the motion.

The State also indicated it intended to introduce certain remarks which the appellant had made to his wife and which the wife, and the appellant himself, had later communicated to third parties. These communications had originally been made by the appellant to his wife in the presence of the parties' eight-month-old child. The appellant moved that the trial court prohibit the admission of the remarks because, he claimed, they constituted privileged communication under the marital privilege statutes. A question arose as to whether the statements were confidential in light of the fact that they were made in the presence of another person, the parties' child. The State also argued that the appellant had communicated the same facts to others, and that by telling others, he had surrendered his right to invoke the marital privilege. The court ruled that the remarks were admissible.

After the circuit court denied the appellant's motions to prohibit the introduction of the remarks made by Benny Roy Helmick and the remarks made by the appellant to his wife, the appellant, as has been previously stated, plead guilty to second degree murder.¹

In the present appeal, the appellant claims that the circuit court erred in refusing to prohibit the prosecution from introducing the remarks which were the subject of his in limine motion, and that the circuit court's ruling, in effect, forced him to plead guilty.

II.

STANDARD OF REVIEW

In the present case, the issues raised by the appellant involve the legal correctness of the in limine rulings made by the trial court. In Syllabus Point 1 of State v. Paynter, 206 W.Va. 521, 526 S.E.2d 43 (1999), this Court stated:

"Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syllabus point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).

III.

DISCUSSION

The appellant's first claim on appeal is that the circuit court erred in denying his in limine motion that the State be prohibited from reading the testimony previously given by Benny Roy Helmick at Mr. Helmick's own trial. The appellant essentially argues that prior to trial, it was clear that Roy Benny Helmick intended to invoke his Fifth Amendment right against self-incrimination and would not testify. He claims that under the circumstances, Mr. Helmick would not have been available for cross-examination, that to allow the reading of Mr. Helmick's prior trial testimony would violate the appellant's own Sixth Amendment right to confrontation, and that the circuit court's in limine ruling was, therefore, erroneous.

In its brief, the State confesses error on this point. The brief states:

In the absence of the right to cross-examine or a functional substitute sufficient to ensure the reliability of former testimony, the Appellant's rights would be violated under the confrontation clause of Article III, § 14 of the West Virginia Constitution and the Sixth Amendment to the United States Constitution.

The State also goes on to say:

After long and thoughtful consideration, the State concedes that there was error in this case arising from the above assignment of error and that reversal of the Appellant's conditional guilty plea is warranted.

After examining the question, this Court notes that in Syllabus Point 1 of State ex rel. Grob v. Blair, 158 W.Va. 647, 214 S.E.2d 330 (1975), the Court stated: "The fundamental right to confront one's accusers, which contemplates the opportunity of meaningful cross-examination, is guaranteed by Article III, Section 14 of the West Virginia Constitution." The Court also agrees with the State's confession of error in the present case and concludes that the trial court did err in refusing to grant the in limine motion relating to the testimony of Benny Roy Helmick because the reading of such testimony, in the absence of Mr. Helmick himself, would deprive the appellant of the opportunity to cross-examine Mr. Helmick. Under the circumstances, the appellant's conviction, and his guilty plea, must be set aside.

The appellant's second claim is that the trial court erred in denying his motion to exclude the testimony relating to his communications with his spouse. Two West Virginia statutes, W. Va.Code 57-3-3 and W. Va. Code 57-3-4, create marital testimonial privileges in West Virginia. In State v. Bradshaw, 193 W.Va. 519, 457 S.E.2d 456 (1995), this Court indicated that the two statutes are distinct and must be analyzed separately. The first statute creates what is referred to as the spousal testimony privilege and indicates that a husband or wife shall not be allowed or compelled to testify in a proceeding against the other except in the case of a prosecution for an offense committed by one against the other or in a case against the child, father, mother, sister, or brother of either of them. The spousal testimony privilege is not the privilege in issue in the present case. The privilege involved in the present case is the second privilege, a privilege created by W. Va.Code 57-3-4. That statute provides that:

Neither husband nor wife shall, without the consent of the other, be examined in any case as to any confidential communication made by one to the other while married, nor shall either be permitted, without such consent, to reveal in testimony after the marriage relation ceases any such communication made while the marriage existed.

This is the so-called marital confidence privilege. See, State v. Bradshaw, id.

In State v. Bradshaw, id., the Court indicated that for this so-called marital confidence privilege to exist, it is necessary that a statement made by one spouse to the other be a confidential communication. In Bradshaw, the Court further stated that: "The test for determining whether acts or conduct of a spouse constitutes [sic] confidential communication [for the purposes of the marital confidence privilege] is `whether the act or conduct was induced by or done in reliance on the confidence of the marital relation, i.e., whether there was an expectation of confidentiality.'" Id. at 536, 457 S.E.2d at 473. The Court went on to mention the prior holding by this Court in State v. Bailey, 179 W.Va. 1, 365 S.E.2d 46 (1987), and to recognize that there is a presumption that all communication between spouses is confidential and that if the State wishes to introduce such communication, it was incumbent upon the State to prove that the communication was not confidential. Further, in State v. Bradshaw, id., the Court pointed out that confidentiality is to be tested from the perspective of the communicator, not the communicatee.

The trial court in the present case determined that the communications by the appellant to his wife were not covered by the marital confidence privilege for two reasons. Specifically, the court found that there was no expectation of confidentiality at the time the statements were made and that the privilege did not thus apply, and the court also found that both parties had waived the marital confidence privilege by afterwards communicating the essence of the remarks to third parties. Specifically, the trial court stated:

The privilege that we are addressing

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