State v. Carrico, 21299

• Decision Date: 11 February 1993
• Docket Number: No. 21299,21299
• Citation: 427 S.E.2d 474,189 W.Va. 40
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Appellee, v. Susan A. CARRICO, Appellant.

Page 474

427 S.E.2d 474

189 W.Va. 40

STATE of West Virginia, Appellee, v. Susan A. CARRICO, Appellant.

No. 21299.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 13, 1993.

Decided Feb. 11, 1993.

Syllabus by the Court

1. "It is the government's duty to proceed with reasonable diligence in its investigation and preparation for arrest, indictment and trial. If it fails to do so after discovering sufficient facts to justify indictment and trial, it violates this due process right." State ex rel. Leonard v. Hey, --- W.Va. ----, ----, 269 S.E.2d 394, 398 (1980).

2. "It is the three-term rule, W.Va.Code, 62-3-21 [1959], which constitutes the legislative pronouncement of our speedy trial standard under Article III, Section 14 of the West Virginia Constitution." Syl.Pt. 1, Good v. Handlan, 176 W.Va. 145, 342 S.E.2d 111 (1986).

3. If a conviction is validly obtained within the time set forth in the three-term rule, W.Va.Code 62-3-21 [1959], then that conviction is presumptively constitutional under the speedy trial provisions of the Constitution of the United States, Amendment VI, and W.Va. Constitution, Art. III, § 14.

4. "The three regular terms of a court essential to the right of a defendant to be discharged from further prosecution, pursuant to provisions of the Code, 62-3-21, as amended, are regular terms occuring [sic] subsequent to the ending of the term at which the indictment against him is found. The term at which the indictment is returned is not to be counted in favor of the discharge of a defendant." Syl. pt. 1, State ex rel. Smith v. DeBerry, 146 W.Va. 534, 120 S.E.2d 504 (1961).

5. Three criteria must be met before evidence of a witness' prior statement may be admitted under Rule 613(b) of the West Virginia Rules of Evidence to impeach that witness' trial testimony: (1) The statement must be a prior inconsistent statement of the witness; (2) The witness must be afforded an opportunity to explain or deny having made the statement; and (3) The opposing party must be afforded an opportunity to interrogate the witness concerning the statement.

Mario J. Palumbo, Michael J. Basile, Office of Atty. Gen., Charleston, for appellee.

George A. Stolze, Huntington, for appellant.

NEELY, Justice:

Early in the morning of 17 December 1985 the house that Susan Carrico, appellant, had lived in with her children suffered extensive fire damage. The fire chief who responded to the fire, as well as the investigator hired by the insurance company, concluded that the fire was "suspicious". The fire had started in the upper portions of the furnace, not in the burning element. Furthermore, there were additional points of origin upstairs that were not connected with the furnace. However, the sheriff's department had little information as to who set the fire, and determined that there was not enough evidence to proceed against any person at that time.

In April, 1988, Sheriff's Deputy Jim Scheidler discovered that appellant's son had bragged to two of his friends, John David Miller and Michael Ray Nimmo, about setting the fire at the behest of his mother, the Appellant. At this point, Deputy Scheidler felt he had enough evidence to prosecute appellant successfully, and turned the case over to the prosecutor. The State brought the matter before the grand jury, and the grand jury indicted appellant for first degree arson under W.Va.Code 61-3-1 [1935] on 5 May 1988. The case was docketed for trial on 31 August 1988. The Court granted two continuances of the case on motions by the prosecution and one continuance on joint motion. Trial, then, was scheduled for 15 March 1989. At that time, the circuit court refused to grant another continuance to the state when the state advised the court that crucial photographic evidence had been misplaced, but the court did allow the state to nolle prosequi the charges without prejudice. On 5 May 1989, at the next term of court, appellant was re-indicted on the arson charge and charged with the additional offense of burning insured property under W.Va.Code 61-3-5 [1935]. In August, 1989, a jury trial was held, and appellant was convicted on both counts.

Appellant now appeals alleging several errors: prejudicial pre-indictment delay; prejudicial post-indictment delay; improper admission of prejudicial hearsay testimony; improper cross-examination of the appellant; improper denial of appellant's motion for a directed verdict; and cumulative error. We find no error and affirm.

I.

West Virginia has no statute of limitations affecting felony prosecutions. Despite this fact, appellant claims that the two year delay between the time of the arson, 17 December 1985, and the time of the first indictment, 5 May 1988, violated her constitutional rights to due process. See United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752, reh'g denied, 434 U.S. 881, 98 S.Ct. 242, 54 L.Ed.2d 164 (1977); Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970); State ex rel. Leonard v. Hey, --- W.Va. ----, 269 S.E.2d 394 (1980). However:

There is no constitutional right to be arrested. The police are not required to guess at their peril the precise moment at which they have probable cause to arrest a suspect, risking a violation of the Fourth Amendment if they act too soon, and a violation of the Sixth Amendment if they wait too long. Law enforcement officers are under no constitutional duty to call a halt to a criminal investigation the moment they have minimum evidence to establish probable cause, a quantum of evidence which may fall far short of the amount necessary to support a criminal conviction.

Hoffa v. United States, 385 U.S. 293, 310, 87 S.Ct. 408, 417, 17 L.Ed.2d 374 (1966), reh'g denied, 386 U.S. 940, 87 S.Ct. 970, 17 L.Ed.2d 880 (1967). Immediately after the fire, the sheriff did not have the evidence necessary to link appellant to the fire conclusively. There were several possible suspects, none of which at the time clearly stood out over the others.

Two years after the fire, however, two friends of appellant's son came forward to the authorities and discussed the son's admissions to them that he assisted his mother in setting fire to their house. At that point, the prosecutors had the evidence necessary to prosecute appellant, and quickly proceeded to obtain an indictment.

As we held in State ex rel. Leonard v. Hey:

It is the government's duty to proceed with reasonable diligence in its investigation and preparation for arrest, indictment and trial. If it fails to do so after discovering sufficient facts to justify indictment and trial, it violates this due process right.

--- W.Va. ----, ----, 269 S.E.2d 394, 398 (1980). In this case, as soon as the government obtained enough evidence to justify indictment and trial, the prosecution promptly obtained an indictment. Consequently the pre-indictment delay did not violate the due process rights of appellant.

II.

Once an indictment has been returned against a defendant, "[i]t is the three-term rule, W.Va.Code, 62-3-21 [1959], which constitutes the legislative pronouncement of our speedy trial standard under Article III, Section 14 of the West Virginia Constitution." Syl. Pt. 1, Good v. Handlan, 176 W.Va. 145, 342 S.E.2d 111 (1986). ¹ However, in other cases discussing the right to a speedy trial we have focused on the standards enunciated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972):

A determination of whether a defendant has been denied a trial without unreasonable delay requires consideration of four factors: (1) the length of the delay; (2) the reasons for the delay; (3) the defendant's assertion of his rights; and (4) prejudice to the defendant. The balancing of the conduct of the defendant against the conduct of the State should be made on a case-by-case basis and no one factor is either necessary or sufficient to support a finding that the defendant has been denied a speedy trial.

Syl. pt. 2, State v. Foddrell, 171 W.Va. 54, 297 S.E.2d 829 (1982).

It is clear that West Virginia is free to adopt protections of its own, so long as West Virginia does not diminish federal rights. Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975); State ex rel. McLendon v. Morton, 162 W.Va. 431, 249 S.E.2d 919 (1978). W.Va. Constitution, Art. III, § 14 and the sections of the W.Va.Code, namely 62-3-21 [1959] and 62-3-1 [1981] meet or exceed the Barker standards on every prong: the three-term rule, W.Va.Code 62-3-21 [1959] provides that a post-indictment delay cannot be much longer than a year without an act on the defendant's part to extend the term between indictment and trial (under the Barker test, much longer periods have been upheld as constitutional); the three-term rule operates no matter whether the defendant asks for a trial (as opposed to the Barker standard where such a request is an important consideration); the "one-term" rule of W.Va.Code 62-3-1 [1981] ² prevents extreme prejudice against a defendant for delay, for if an event that may cause prejudice is impending and the defendant moves for a trial within one term of court, the prosecution will need to show a high level of "good cause" to persuade the court to continue the case. West Virginia's panoply of speedy trial protections guarantee defendants more rights across the board than the balancing factors of the Barker test.

Accordingly, if a conviction is validly obtained within the three-term rule, W.Va.Code 62-3-21 [1959], then that conviction is presumptively constitutional under the speedy trial right guaranteed by the Constitution of the United States, Amendment VI, and W.Va. Constitution, Article III, § 14.

In this case, appellant was initially indicted on 5 May 1988, just after the beginning of the May term of court in Cabell County. When counting terms for purposes of the three-term rule, the term in which the defendant is indicted is not counted as one of the three terms. As we held in syl. pt. 1,...