State v. Caudill

• Decision Date: 30 March 1982
• Docket Number: No. 14918,14918
• Citation: 289 S.E.2d 748,170 W.Va. 74
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Clifford T. CAUDILL.

Page 748

289 S.E.2d 748

170 W.Va. 74

STATE of West Virginia v. Clifford T. CAUDILL.

No. 14918.

Supreme Court of Appeals of West Virginia.

March 30, 1982.

Syllabus by the Court

1. Evidence relating to a crime that a defendant is accused of committing, other than that charged in the indictment for which he is on trial, is not generally admissible to prove the offense for which the accused is on trial.

2. "Where the prosecution improperly introduces evidence of other criminal acts as part of the res gestae or same transaction beyond that reasonably required to accomplish the purpose for which it is offered, and makes remarks concerning such other crime evidence in argument for the purpose of inflaming the jury, the conviction will be reversed on the ground that the defendant was denied the fundamental right to a fair trial." Syl. pt. 3, State v. Spicer, 162 W.Va. 127, 245 S.E.2d 922 (1978).

3. In a criminal trial an accomplice may testify as a witness on behalf of the State to having entered a plea of guilty to the crime charged against a defendant where such testimony is not for the purpose of proving the guilt of the defendant and is relevant to the issue of the witness-accomplice's credibility. The failure by a trial judge to give a jury instruction so limiting such testimony is, however, reversible error.

Preiser & Wilson, John W. Swisher and Franklin S. Fragale, Jr., Charleston, for appellant.

Chauncey H. Browning, Atty. Gen., and Robert P. Howell, Asst. Atty. Gen., Charleston, for appellee.

McHUGH, Justice:

This case is before this Court on an appeal from an order of the Circuit Court of Boone County, entered on December 9, 1977, sentencing the defendant, Clifford T. Caudill, to 186 years imprisonment in the West Virginia State Penitentiary at Moundsville. The defendant was convicted on an indictment which charged the crime of armed robbery. ¹

On this appeal the defendant assigns six errors. It is only necessary, however, for the resolution of this appeal to consider two of the errors assigned: (1) the trial court's admission of evidence of other crimes committed by the defendant; and (2) the testimony of the defendant's accomplices that they had entered pleas of guilty to the charges of armed robbery and kidnapping.

I

The defendant Clifford T. Caudill, Wes Finley, Jr., and William Wesley York robbed the Hawkins Jewelry Store in Madison, West Virginia, on May 30, 1977. The proprietors of the store, Aubrey and Alberta Hawkins, were held at gunpoint during the robbery by Caudill and York. Finley waited in the defendant's car in an alley behind the jewelry store.

After robbing the store, Caudill and York forced Mr. and Mrs. Hawkins to accompany them as they fled. They put Mr. and Mrs. Hawkins in the back seat of the defendant's car and left Madison on a highway known as Corridor G. Shortly thereafter the Hawkins were placed in the trunk of the car and held captive. On June 3, 1977, they were found dead near Jellico, Tennessee.

According to the defendant's brief, on June 30, 1978, Caudill entered pleas of guilty to the first degree murders of Aubrey and Alberta Hawkins in Campbell County, Tennessee. He was given two life sentences to run concurrently with the sentence in this case.

II

Three indictments were returned against the defendant by a Boone County grand jury. The State, however, elected to bring Caudill to trial only on an indictment charging him with armed robbery.

At Caudill's trial the prosecuting attorney began his opening statement by telling the jury about the robbery at the Hawkins Jewelry Store. He then began to tell the jury about the abduction of Mr. and Mrs. Hawkins. The defense counsel objected. After a short bench conference, the trial judge ruled that evidence relating to the abduction and murder of Mr. and Mrs. Hawkins would be admissible because of the propinquity of such acts to, and their interrelationship with, the robbery charged in the indictment. The prosecuting attorney then continued his opening statement by telling the jury in detail about the kidnappings and murders.

During the course of the defendant's armed robbery trial the State, over vigorous defense objections, introduced a great mass of testimony and evidence relating to the kidnappings and murders. The evidence, among other things, included testimony by Tennessee policemen, testimony by York and Finley, and a confession given by Caudill detailing his part in the abduction and murder of Mr. and Mrs. Hawkins. A major portion of the evidence and testimony taken at Caudill's trial related to the two crimes of kidnapping and murder for which he, ostensibly, was not on trial.

The prosecuting attorney, in his closing argument to the jury, referred repeatedly to the kidnappings and murders. The prosecuting attorney concluded his argument to the jury, and the case, by telling the jury that the State had proved beyond a reasonable doubt that Caudill was guilty of armed robbery as charged in the indictment. He then added, "[N]ot only the one [crime] he is charged with, but a bunch more."

Evidence relating to a crime that a defendant is accused of committing, other than that charged in the indictment for which he is on trial, is not generally admissible to prove the offense for which the accused is on trial. State v. Hudson, 128 W.Va. 655, 37 S.E.2d 553 (1946). There are, however, exceptions to that general rule.

The exceptions permitting evidence of collateral crimes and charges to be admissible against an accused are recognized as follows: the evidence is admissible if it tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others; and (5) the identity of the person charged with the commission of the crime on trial.

Syl. pt. 12, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).

The State argues in the case before us that the extensive evidence relating to the kidnapping and murder of Mr. and Mrs. Hawkins was properly admitted at the defendant's trial under the fourth exception listed in syllabus point 12 of State v. Thomas, supra. This Court discussed that exception in State v. Spicer, 162 W.Va. 127, 245 S.E.2d 922 (1978). The defendant in Spicer was on trial for robbery. The State introduced evidence showing that the defendant stole $3.00 from his victim. However, he also abducted his victim at knifepoint and raped her twice. Evidence of the rapes was admitted at the defendant's trial. The victim testified about the sexual assault. The State also presented two doctors who testified that their examination and tests confirmed the victim's testimony regarding the rape.

In Spicer it was "conceded that these criminal acts [the abduction and rape] are so interrelated to the crime charged that they are admissible under the fourth exception to the general prohibition against other criminal act evidence set forth in State v. Thomas ...." 162 W.Va. at 131, 245 S.E.2d at 925. The defendant, however, argued that he was denied a fair trial by the excessive use of, and reference to, the evidence of the rape. We held, in the syllabus of that case:

1. Other criminal act evidence admissible as part of the res gestae or same transaction introduced for the purpose of explaining the crime charged must be confined to that which is reasonably necessary to accomplish such purpose.

....

3. Where the prosecution improperly introduces evidence of other criminal acts as part of the res gestae or same transaction beyond that reasonably required to accomplish the purpose for which it is offered, and makes remarks concerning such other crime evidence in argument for the purpose of inflaming the jury, the conviction will be reversed on the ground that the defendant was denied the fundamental right to a fair trial.

State v. Spicer, supra. In so holding we observed:

The prosecution in the case at bar ... was not content with merely eliciting the sordid details of the rapes. The opening and closing statements made unnecessary references thereto. The latter statement, in particular, placed improper emphasis on such evidence, and was apparently calculated to inflame the jury .... The rape evidence was admitted indiscriminately, took up much of the trial time, and created a substantial danger of prejudice. This, combined with the remarks of the prosecution, particularly in closing argument, was prejudicial and denied [the defendant] the fundamental right to a fair trial.

162 W.Va. at 133-134, 245 S.E.2d at 926, 927.

While the case before us is very similar to State v. Spicer, there is one major difference. In this case it is not conceded that the murders are so interrelated to the crime charged as to come within the fourth exception of syllabus point 12 of State v. Thomas, supra. ² In Spicer the abduction and rape occurred "contemporaneous with, as a part of, the crime charged." C. Torcia, Wharton's Criminal Evidence 540 (13th ed. 1972). In the case before us the two murders occurred approximately 28 hours after the robbery. In Spicer the evidence of the rape and abduction tended to show an element of the crime charged--the force used to commit the robbery. In the case before us the evidence of the murders did not show anything about the armed robbery charged in the indictment.

The evidence relating to the murders in this case was not necessary to show motive, intent, the identity of the person charged or the absence of mistake or accident. The murders were not contemporaneous with the robbery. The murders were not so interrelated with the robbery so as to be "necessary to prove or to explain the crime charged." Ibid. The evidence relating to the murders did not tend to establish "a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others." State v. Thomas, supra. The...