State v. Bosley, 13574
| Decision Date | 28 October 1975 |
| Docket Number | No. 13574,13574 |
| Citation | 218 S.E.2d 894,159 W.Va. 67 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia v. William R. BOSLEY. |
Syllabus by the Court
1. 'A judgment will not be reversed for any error in the record introduced by or invited by the party asking for reversal.' Point 21, Syllabus, State v. Riley, 151 W.Va. 364, 151 S.E.2d 308.
2. The appellate review of a ruling of a circuit court is limited to the very record there made and will not take into consideration any matter which is not a part of that record.
Howard P. Shores and H. R. Athey, Keyser, for plaintiff in error.
Chauncey H. Browning, Jr., Atty. Gen., Richard E. Hardison, Deputy Atty. Gen., David P. Cleek, Asst. Atty. Gen., Charleston, for defendant in error.
The defendant, William R. Bosley, was indicted by the grand jury attending the Circuit Court of Grant County at its April Term, 1974. Therein he was charged with the offense of driving a vehicle in said county while under the influence of intoxicating liquor. On April 16, 1974, at the conclusion of the trial on said charge, the jury returned a verdict of guilty and the defendant was subsequently sentenced to six months in jail, was assessed a fine in the sum of $100.00 and his license to drive a vehicle was revoked for a period of six months. Upon the refusal of the court to set aside the jury verdict and grant a new trial, the defendant prosecuted this appeal.
On November 2, 1973 at approximately 11:30 P.M. the defendant, while driving his 1953 Willys Jeep on South Main Street in the City of Petersburg, West Virginia, was arrested by two city police officers on the charge of driving a vehicle while under the influence of intoxicating liquor. According to the testimony of one of the arresting officers the defendant's vehicle 'jerked through the traffic light and was over in the center of the road towards our side of the road.' He testified that the vehicle stopped approximately fifty feet south of the traffic light and that defendant Bosley was the driver thereof. In addition to the two city police officers, a deputy sheriff was also present at the time of the arrest. All three officers testified that the defendant had a strong odor of alcohol 'about his breath', that he staggered and that he had to be helped from his vehicle to the police cruiser. All three stated that they believed that the defendant was intoxicated.
The arresting officer testified that he informed the defendant of his rights and then took him to the police station where he called a state trooper for the purpose of permitting the defendant to take a breathalyzer test. The state policeman testified that although he offered the defendant such test the defendant refused and would not cooperate in any degree.
Defendant Bosley took the stand and testified that he was a retired coal miner, that he had knee trouble which affected his ability to walk properly and that he had black lung and arthritis. During his account of the arrest he seemed confused as to what had taken place. He denied that he was given his rights and also denied that he had been offered a breathalyzer test. This latter denial appeared in the record despite the fact that the trooper testified from a rather lengthy report wherein he related that he questioned the defendant, had offered him a breathalyzer test and that defendant refused such test. The defendant further denied that he was intoxicated and said that 'I drank maybe two or three beers or something like that.' He related that he did not remember being questioned by the state policeman.
Giving rise to the principal assignment of error in this case is the following testimony. During the cross examination of Paul William Keplinger, one of the police officers present at the time of the arrest of this defendant, counsel for the defendant asked 'How many times did you stop him?' That witness replied 'Twice.' On redirect examination by the prosecuting attorney of witness Keplinger the following questions and answers appear in the record:
Q. Paul, Mr. Athey says or asked you if you ever stopped this defendant before and you said twice?
A. Yes sir.
Q. The time that we're talking about now was one time. What was the other time that you stopped him?
A. I don't remember the date but it was for the same reason. He was charged with DWI.
Immediately following these questions and answers Mr. Athey, counsel for the defendant, moved for a mistrial, contending that such testimony put the defendant's character into issue before 'any type of his character' was attempted to be proven by the defendant. The court, noting that the defendant had 'asked for it', overruled the motion and an exception was taken.
On this appeal the following assignments of error are relied upon:
1. That the Court erred in permitting the character of the Defendant to be attacked by the State before the Defendant had placed his character into issue.
2. That the Court erred in permitting the State to introduce evidence of other crimes committed by the Defendant and which introduction also attacked the Defendant's character as the State did not justify such evidence as being relevant to the proof of its case in chief.
3. That the Court erred in permitting the Prosecuting Attorney in his closing arguments to make the following statement, 'The defendant, William R. Bosley has already had his break in that he was previously arrested upon a charge of driving while under the influence and said charge was reduced to a plea of reckless driving' and which remarks of the Prosecuting Attorney tended to prejudice, bias and inflame the minds of the jurors against the Defendant, William R. Bosley.
Since the first two assignments of error are interrelated they will be considered together. The defendant contends that he was entitled to a mistrial by reason of the police officer's testimony quoted above. He asserts that his character was thereby attacked before he had placed his character in issue and further that this testimony constituted the introduction of evidence of the commission of another crime not relevant to the proof of the state's case.
In the circumstances of this case as revealed by the record we disagree with the position of the defendant and find it to be without merit. We are fully aware of and are in total agreement with the principles enunciated in the decisions cited by the defendant for the general proposition, as related in State v. Seckman, 124 W.Va. 740, 22 S.E.2d 374 (1942), 'The State can not introduce evidence 'not connected with the crime for which the accused is being tried, for the purpose of showing his bad character, until the accused has first put his own character in issue by attempting to prove a previous good character. " See also State v. McArdle, W.Va., 194 S.E.2d 174 (1973); State v. Light, 127 W.Va. 169, 31 S.E.2d 841 (1944); ...
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