State v. Cokeley
| Decision Date | 29 June 1976 |
| Docket Number | No. 13616,13616 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virgina v. Jerry S. COKELEY. |
Syllabus by the Court
1. 'In a criminal case where the state confesses error, urges that the judgment be reversed and that the defendant be granted a new trial, this Court, upon ascertaining that the errors confessed are reversible errors and do in fact constitute cause for the reversal of the judgment of conviction, will reverse the judgment and grant the defendant a new trial.' Syl. State v. Goff, W.Va., 221 S.E.2d 891 (1976).
2. A witness, other than the owner, may give his opinion as to the value of stolen property only if he is qualified by special knowledge of and experience with the particualr species of property.
3. 'In the trial of a criminal case, the refusal of a trial court to give to the jury, when requested to do so, an instruction or charge that the defendant is presumed to be innocent of the charge laid against him in the indictment on which he is being tried, is prejudicial to the defendant, and constitutes reversible error.' Point 8, Syl. State v. Foley, 131 W.Va. 326, 47 S.E.2d 40 (1948).
4. The defendant in a criminal trial has an absolute right to inspect the notes upon which a witness for the state relied to refresh his recollection and must be given a reasonable opportunity to prepare cross-examination of the witness.
5. When there is nothing to indicate that there was any improper or disqualifying relationship between any juror and a witness who was called to testify during a trial, it is not error for a trial court, in the interest of avoiding a disruption of the proceedings, to refuse to allow an inquiry of the jury analogous to voir dire during the course of trial.
6. A trial court may admonish or rebuke counsel during the trial if counsel's action requires it. However, it is improper and prejudicial error for the trial court to threaten counsel with contempt in the presence of the jury for attempting to offer evidence which the court deemed inadmissible but which was offered in good faith.
7. Instructions that are repetitious or are not supported by the evidence should not be given to the jury by the trial court.
8. A unanimous verdict instruction which is couched in such language as to invite the jury to disagree is properly refused.
9. It is error for a trial court to refuse to allow counsel to state on the record what he proposes to prove when an objection to evidence has been sustained.
LaVerne Sweeney, Grafton, for plaintiff in error.
Chauncey H. Browning, Jr., Atty. Gen., Fredric J. George, Asst. Atty. Gen., Charleston, for defendant in error.
This is an appeal by Jerry S. Cokeley from a final judgment of the Circuit Court of Barbour County, entered on a jury verdict finding him guilty of grand larceny.
At the October, 1974 term of the Grand Jury of the Circuit Court of Barbour County, an indictment was returned against one William L. Eddy and the defendant, jointly charging them with the taking of 238 pounds of copper, valued at $200.00, from theDexcar Queen Coal Company, a corporation. Upon his plea of not guilty, the defendant was tried before a jury of the circuit court on December 3, 1974.
According to the State's evidence, at about three o'clock in the afternoon of September 10, 1974, two persons were observed on property owned by the Dexcar Queen Coal Company. Because of the circumstances, employees of the company became suspicious and investigated. William Eddy was apprehended by the mine superintendent and two other employees as he was attempting to remove several burlap bags of copper wiring which had been removed from mine equipment at the site. The second man, who could not be identified, escaped. At the trial, William Eddy testified that the defendant, Jerry Cokeley, was his accomplice in the theft.
Investigating officers found a 1960 Plymouth automobile near the point at which Eddy was apprehended. The automobile was registered to Lorraine Cokeley, the defendant's wife. A motor vehicle registration card for another automobile, bearing the name of the defendant, was found in the Plymouth.
The State called several witnesses to establish the value of the copper wire. These witnesses estimated the wire to be worth between $100 and $200. All evidence introduced to prove the value of the property was objected to by the defendant.
In support of an alibi defense, Cokeley testified that he had been with Eddy during the morning of September 10, 1974 but that they had parted company, Eddy having taken the car which belonged to the defendant's wife. Other witnesses called on behalf of the defense tended to corroborate Cokeley's account that he was neither with Eddy nor near the place of the offense at the time of its commission.
On the evidence developed, the jury returned a verdict against Cokeley of guilty of the offense as charged. Following the denial of post-trial motions, the trial court sentenced the defendant to incarceration for a period of one to ten years.
The defendant cites ten assignments of error for reversal, several of which will be treated together. The State has confessed error on two of the assignments. Nevertheless, all of the assignments will be examined since this Court has made it clear that confessions of error do not automatically entitle a party to a reversal. It must be ascertained that the errors confessed are supported by law and constitute cause for reversal of the judgment. State v. Goff, W.Va., 221 S.E.2d 891 (1976); Petition of Hull, W.Va., 222 S.E.2d 813 (1976). This principle is clearly stated in the Syllabus of the Goff case as follows:
'In a criminal case where the state confesses error, urges that the judgment be reversed and that the defendant be granted a new trial, this Court, upon ascertaining that the errors confessed are reversible errors and do in fact constitute cause for the reversal of the judgment of conviction, will reverse the judgment and grant the defendant a new trial.'
I
The first issue raised by the defendant concerns the admission of evidence offered by the State to prove the value of the stolen copper wire. The State called five witnesses to prove the value of the wire but the trial court appears to have excluded the statements of three of the witnesses on the grounds that their testimony was inadmissible hearsay. The evidence allowed by the court to establish value was testimony by police officers based on information which the officers had obtained from other persons. The persons from whom the officers had obtained their information were not called as witnesses. In one instance a witness appeared to have some personal knowledge of value but the basis of such knowledge was not established. The appellant asserts that this latter evidence was inadmissible hearsay and should have been excluded along with the other.
It is improper to prove value of property by resort to the testimony of a witness whose only knowledge of value was obtained from a third party. Cofflin v. State, 230 Md. 139, 186 A.2d 216 (1962); Wadley v. Commonwealth, 98 Va. 803, 35 S.E. 452 (1900). While normally the owner of stolen property may testify as to its value because he is deemed qualified to give an opinion concerning the value of the things which he owns, Commonwealth v. Warlow, 237 Pa.Super. 120, 346 A.2d 826 (1975); State v. Anderson 20 Ariz.App. 309, 512 P.2d 613 (1973), a witness, other than the owner, may give his opinion as to value only if he is qualified by special knowledge of and experience with the particular species of property. Bonds v. State, 247 Ind. 260, 214 N.E.2d 796 (1966); People v. George, 398 Ill. 318, 76 N.E.2d 60 (1947).
All of the witnesses who testified as to the value of the stolen copper wire predicated their opinions in whole or in part on representations made to them by third persons. Although the record indicates that some of the witnesses may have had personal knowledge upon which they based their estimates, there was no development of the foundation for the asserted knowledge. Therefore, all evidence with regard to the value of the property involved was of doubtful competency and, inasmuch as this case must be retried, the value should be proved by a witness or witnesses who have acquired, by their dealings, some personal knowledge of copper or copper wire and its market value.
II
The second error assigned, and the first confessed by the State, is that the trial court failed to instruct the jury on the presumption of innocence of the defendant. Four instructions were offered by the defendant dealing with the presumption, three of which were refused outright and the fourth amended by the trial court to exclude language relating to the presumption. It is a fundamental right of a defendant to have the jury instructed as to the presumption of innocence and we have repeatedly held it to be reversible error for a trial court to fail to do so. State v. Pietranton, 140 W.Va. 444, 84 S.E.2d 774 (1954); State v. Foley, 131 W.Va. 326, 47 S.E.2d 40 (1948); State v. Boggs, 129 W.Va. 603, 42 S.E.2d 1 (1946). The law applicable to this issue is set out in the 8th Syllabus point of the Foley decision:
'In the trial of a criminal case, the refusal of a trial court to give to the jury, when requested to do so, an instruction or charge that the defendant is presumed to be innocent of the charge laid against him in the indictment on which he is being tried, is prejudicial to the defendant, and constitutes reversible error.'
On this unequivocal rule, we conclude that the appellant's second assignment of error is well taken and properly confessed by the State and constitutes a proper ground for reversal of the judgment entered below.
III
As his third assignment of error, the appellant draws this Court's attention to the refusal of the trial court to permit his attorney to examine a report from which a state trooper testified...
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