State v. Burton, No. 13948

• Court: Supreme Court of West Virginia
• Writing for the Court: MILLER
• Citation: 163 W.Va. 40,254 S.E.2d 129
• Parties: STATE of West Virginia v. Thomas R. BURTON.
• Docket Number: No. 13948
• Decision Date: 10 April 1979

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254 S.E.2d 129 163 W.Va. 40 STATE of West Virginia
v.
Thomas R. BURTON. No. 13948. Supreme Court of Appeals of West Virginia. April 10, 1979.

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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

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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. In order to assert an attorney-client privilege, three main elements must be present: (1) both parties must contemplate that the attorney-client relationship does or will exist; (2) the [163 W.Va. 41] advice must be sought by the client from the attorney in his capacity as a legal adviser; (3) the communication between the attorney and client must be intended to be confidential.

3. The privilege against self-incrimination extends not only to those questions which, if answered, would in themselves support a conviction, but also to those disclosures that might furnish a link in the chain of evidence or lead to evidence which could be used in the criminal prosecution.

4. A trial judge in a criminal case has a right to control the orderly process of a trial and may intervene into the trial process for such purpose, so long as such intervention does not operate to prejudice the defendant's case. With regard to evidence bearing on any material issue, including the credibility of witnesses, the trial judge should not intimate any opinion, as these matters are within the exclusive province of the jury.

5. The State in a criminal case may prove the venue of the crime by a preponderance of the evidence, and is not required to prove the same beyond a reasonable doubt.

Jones, Williams, West & Jones, John S. Kaull, Clarksburg, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., Leonard B. Knee, Asst. Atty. Gen., Charleston, for defendant in error.

MILLER, Justice:

The defendant, Thomas R. Burton, appeals his rape conviction in the Circuit Court of Taylor County under our prior statute, W.Va.Code, 61-2-15. ¹ He urges five [163 W.Va. 42] principal errors: (1) the State failed to prove he was the perpetrator of the crime; (2) the court permitted testimony from an attorney over the defendant's claim of the attorney-client privilege; (3) the court erred in permitting a State's witness to invoke the Fifth Amendment privilege as to a prior criminal conviction; (4) the court prejudiced the defendant's case by making adverse comments before the jury; (5) the State failed to prove the venue of the crime.

For the reasons set out below, we affirm the conviction.

I IDENTITY ISSUE

In order to understand the defendant's claim that there was insufficient evidence to establish his identity, it is necessary to set out the salient facts surrounding the crime as developed in the State's case. In treating claims of evidentiary insufficiency on the part of the State's case, we utilize the rule in the first syllabus of State v. Starkey, W.Va., 244 S.E.2d 219 (1978):

"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

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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 crime occurred at a bar in Grafton shortly after 1:00 a. m. on January 9, 1976. The defendant was at the bar around midnight and had engaged in conversation with the manager of the bar, Mrs. Duckworth, and the [163 W.Va. 43] victim, a waitress. He advised Mrs. Duckworth that he had to get a check cashed but would be back. Shortly after this, the defendant left the bar.

A State's witness, Carrie Bray, testified that about 1:00 a. m. on January 9, 1976, the defendant came to her apartment to talk with her boyfriend, Charles Jones. She did not hear their conversation, but after about 15 minutes Jones left with Burton. Before leaving, Jones borrowed $3.00 and a pair of her nylon stockings.

Around 1:15 a. m., Mrs. Duckworth was looking out the window of the bar and saw the defendant drive into a parking area and get out of his car. There appeared to be no one with him. When he came into the bar, no one else was present except Mrs. Duckworth and the waitress. The defendant ordered a drink and talked with Mrs. Duckworth.

After he had been at the bar a short time, the defendant started to leave. Upon going to the front door and opening it, he was confronted by a man wearing a stocking over his face and carrying a gun, who ordered him back into the bar. The gunman stated that it was a hold-up, told the defendant and the two women to lie down on the floor, and then went behind the bar and extracted the money from the cash register.

The gunman then ordered the women tied and placed in the ladies' restroom. The women stated that from the restroom they could hear furniture being moved and the jukebox being played. At one point, the defendant came into the restroom and told the women the gunman was "acting crazy." The defendant was not tied, and the gunman yelled at him to get out of the restroom.

The waitress testified she heard the two men whispering, and shortly thereafter that the gunman came into the restroom and took her into the main room. She was told to find Mrs. Duckworth's purse and car keys. At this time, she observed that the defendant was lying on the floor but was not tied. She was then blindfolded and after again hearing whispering and with her hands still [163 W.Va. 44] tied, someone put a toboggan cap over her head and cut off her blouse and slacks. Within 15 to 20 minutes, she was twice sexually assaulted. After the assaults, she was placed in the men's restroom.

At some point after the victim had been taken from the ladies' restroom, Mrs. Duckworth was brought out by the gunman. Before he blindfolded her, she observed the defendant standing untied in the hallway. Mrs. Duckworth was then placed back in the restroom. In about one-half hour, the gunman again took her out of the restroom, told her to get her car keys, and removed the blindfold. She gave the gunman her car keys. She stated that at this time the defendant was at the end of the bar. As the gunman started to leave, he told the defendant to get some things that were on the bar, including some bottles of whiskey, and the defendant responded, "You don't want this," to which the gunman replied, "Don't we want to get a little drunk?" The gunman and the defendant left the bar shortly afterwards.

The State also produced Roy Myers, who was in jail with the defendant, and who testified that during the course of a conversation with him the defendant admitted having been involved in a robbery of the bar and having had sexual relations with a girl at the bar, who was tied up.

Additionally, an attorney called in the State's case testified, over the defendant's objection, that while visiting a client in the jail he had talked with the defendant in the presence of other prisoners. The defendant made some general inquiries concerning the elements of the crime of rape. The attorney

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indicated that one of the prisoners asked the defendant whether she was "worth it," and the defendant replied he thought so.

The crime in this case is forcible rape, which we have customarily defined as carnal knowledge of a female by force, or against her will, by a male person not her husband. State v. Huffman, 141 W.Va. 55, 87 S.E.2d 541 (1955); State v. Schilansky, 105 W.Va. 549, 143 S.E. 307 [163 W.Va. 45] (1928); State v. Tippens, 91 W.Va. 504, 113 S.E. 751 (1922). There is no question that the State established through the testimony of the victim that while tied, she had been forced against her will to be carnally known by a male person.

The defendant places a great deal of reliance on State v. Harrison, 98 W.Va. 227, 127 S.E. 55 (1925), where a rape conviction was overturned because of the insufficiency of the evidence. There, no one saw the rape. The victim had passed out and could not testify that she had been sexually assaulted. Witnesses placed the defendant near the victim at one point during the evening. The evidence in the present case is much more comprehensive.

Here, the corpus delicti was established by direct evidence that someone committed forcible rape on the victim. The primary area of dispute was the identity of the person committing the crime. This latter element is generally held not to be a part of the corpus delicti, since this term means proof that the crime occurred and that somebody's criminality was the source of the crime, as distinguished from non-criminal sources, e. g., accident or natural causes. State v. Holland, 149 W.Va. 731, 143 S.E.2d 148 (1965); 29 Am.Jur.2d Evidence § 149; 7 J. Wigmore, Evidence (3rd ed. 1940) § 2072; W. LaFave & A. Scott, Criminal Law (1972), at 16.

There is no doubt that the defendant's identity was an essential element of the State's burden of proof, even though it was not part of the corpus delicti. Proof of the defendant's identity was by both direct and circumstantial evidence. Both the victim and Mrs. Duckworth testified that the defendant was present at the scene both before and after the rape. He was not tied during that time, further indication of access. The State also had the testimony of the witness Myers, that the...