State v. Bolling

• Decision Date: 14 July 1978
• Docket Number: No. 13850,13850
• Citation: 162 W.Va. 103,246 S.E.2d 631
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Gerald Lee BOLLING.

Page 631

246 S.E.2d 631

162 W.Va. 103

STATE of West Virginia v. Gerald Lee BOLLING.

No. 13850.

Supreme Court of Appeals of West Virginia.

July 14, 1978.

Syllabus by the Court

1. "In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done." Syllabus Point 1, State v. Starkey, W.Va., 244 S.E.2d 219 (1978).

2. "Conviction for a crime may be had upon the uncorroborated testimony of an accomplice; but in such case the testimony must be received with caution and the jury should, upon request, be so instructed. . . . " Syllabus Point 1, State v. Humphreys, 128 W.Va. 370, 36 S.E.2d 469 (1945).

3. Instructions in a criminal case which are confusing, misleading or incorrectly state the law should not be given.

4. Before prosecutorial error can occur under the doctrine of suppression of evidence, it must be shown that the evidence suppressed would be relevant to an issue at the criminal trial.

5. Under the provisions of W.Va.Code, 51-7-1 and -2, all proceedings in the criminal trial are required to be reported; however, the failure to report all of the proceedings may not in all instances constitute reversible error.

Hebert H. Henderson, Huntington, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., David F. Greene, Asst. Atty. Gen., Charleston, for defendant in error.

MILLER, Justice:

Gerald Lee Bolling was convicted of arson under W.Va.Code, 61-3-5, by the burning of his wife's insured automobile, a 1974 Oldsmobile, with intent to injure or defraud the insurer. He assigns several errors which, for reasons set out herein, we deem insufficient to warrant a reversal of the case.

His first assignment, that the evidence was insufficient to support the jury verdict, is without merit. The legal standard for testing the sufficiency of the evidence to support a guilty verdict in a criminal trial was discussed in State v. Starkey, W.Va., 244 S.E.2d 219 (1978), where the following rule is stated in the first syllabus:

"In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done."

The record discloses that the State's chief witness, James Vornholt, testified he was present when the defendant burned the car after pouring gasoline on it. Vornholt had followed the defendant from Huntington to an isolated area in Wayne County where the car was burned. Vornholt drove a rental car, which the defendant had leased earlier that day.

Vornholt testified that on the afternoon prior to the fire he helped the defendant remove a number of items of personal property from the car. Among these were a radio-telephone, calculator and briefcase, which items were similar to those listed by the defendant on his claim to the insurance company.

The insurance adjuster who handled the claim testified he paid $9,425.39 on behalf of the insurance company. Approximately $4,000.00 of this amount was due the finance company.

The defendant testified he had been with Vornholt on the evening in question, but denied burning the car. He stated that he had parked his wife's car in downtown Huntington and proceeded to visit some bars with Vornholt and another friend. At around 1:00 a. m., he left his friends to go home, and when he went to his wife's car it was missing. At first he thought his friends were playing a joke on him, but when he learned they were not, he called the police to report the car as stolen. Several days later the police located the burned car.

He admitted renting a car, but stated this was because he and his friend Vornholt did not want to be seen driving in the defendant's wife's car when they were out without their wives, who had taken the Vornholt children to an amusement park for the afternoon and evening.

Most of the State's evidence rested on the testimony of Vornholt, an admitted accomplice who was co-indicted for the same crime. In our jurisdiction, as in a majority of others, a conviction can be obtained on the uncorroborated testimony of an accomplice. In State v. Humphreys, 128 W.Va. 370, 381, 36 S.E.2d 469, 474 (1945), the rule is stated along with its cautionary qualifications:

"The principle that, though a conviction may be had upon the uncorroborated testimony of an accomplice, such testimony must be received with caution, and that the jury in a criminal case, upon request, should be so instructed, is based on sound reason and is sustained by the decisions of the appellate courts in many jurisdictions."

The trial court did give a cautionary instruction on the accomplice's testimony. We hold that there is sufficient evidence to support the jury verdict.

The defendant next urges that it was error to reject his tendered Instruction No. 4, which would have told the jury that since Vornholt was called by the State and did not waive his immunity against self-incrimination, he could not thereafter be prosecuted. ¹ The record discloses that Vornholt was called by the State and testified freely about the events leading up to and including the burning of the car. He made no assertion of his privilege against self-incrimination, and consequently there was no effort on the part of the State to seek immunity under W.Va.Code, 57-5-2. See State v. Abdella, 139 W.Va. 428, 82 S.E.2d 913 (1954); State v. Simon, 132 W.Va. 322, 52 S.E.2d 725 (1949).

The basic flaw in the defendant's tendered instruction is that it is premised on an erroneous statement of fact and principle of law. Factually, the witness Vornholt did not assert his privilege against self-incrimination when he testified, and there was no showing that he had received statutory immunity. Thus, the legal conclusion in the instruction "that by testifying he gained immunity" is wrong. We have consistently held that instructions in a criminal case which are confusing, misleading or which incorrectly state the law should not be given. State v. Belcher, W.Va., 245 S.E.2d 161 (1978); State v. Travis, 139 W.Va. 363, 81 S.E.2d 678 (1954); State v. Blankenship, 137 W.Va. 1, 69 S.E.2d 398 (1952).

Defendant's next assignment of error is that the State suppressed exculpatory evidence. This argument is based on affidavit given after the trial by Betty Rowe to defense counsel. She had been subpoenaed by both the State and the defense, but was not called by either side to testify at the trial. In her affidavit, she stated that Tim Salmons, whom the State had subpoenaed for trial but who also was not called upon to testify, had made statements to her which were inconsistent with the statement he had given to the prosecuting attorney. The exact nature of the inconsistencies is not given in the affidavit and the record does not contain the statement given by Salmons to the prosecutor. ²

From the record the best that can be said is that Betty Rowe was subpoenaed by the defendant in order to discredit testimony the State was expected to offer through Salmons. When the State elected not to use Salmons, the defense was not able to use Rowe. ³

The duty of the State to turn over exculpatory evidence to a criminal defendant was discussed at some length in Wilhelm v. Whyte, W.Va., 239 S.E.2d 735 (1977). As demonstrated by both United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), and Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972), the outer boundaries of this doctrine are still not fully charted. We are not aware of any case, however, where the doctrine has been successfully asserted upon facts analogous to the ones here considered. See Annot., 34 A.L.R.3d 16 (1970).

The suppression claim is not based on a claim of concealment by the prosecution of evidence tending to exculpate the defendant that could have been brought out through questioning of the witness Salmons. Nor is the situation analogous to that in Agurs and Moore, where a witness was used by the State and the claim was made that the prosecutor suppressed material which the defense could have utilized to impeach the witness' testimony. The high-water mark of the defendant's claim is that he was denied an opportunity to impeach a State's witness who was not called to testify.

The core of the doctrine of suppression of evidence is that it must relate to some evidence that would be relevant to an issue at the trial. In the absence of the State's offering Salmons as a witness, there was no issue of credibility on which impeachment testimony could be introduced. ⁴

Finally, the defendant asserts that the prosecuting attorney made several prejudicial remarks to the jury in his closing argument and, as a result of the court reporter's failure to take down the closing arguments, prejudicial error occurred.

The question of what portions of a criminal trial should be recorded by a court reporter is a subject of increasing judicial attention. ⁵ Of primary concern is the need to have an adequate record for appellate review. The federal courts have solved the problem by rather uniformly interpreting the federal act on court reporters, 28 U.S.C. § 753, to require in criminal cases the reporting of all proceedings had in open court. ⁶ However, a reversal for failure...