State v. Collins, 18795

• Decision Date: 22 June 1990
• Docket Number: No. 18795,18795
• Citation: 186 W.Va. 1,409 S.E.2d 181
• Parties: STATE of West Virginia v. Arthur Dale COLLINS.
• Court: West Virginia Supreme Court

Page 181

409 S.E.2d 181

186 W.Va. 1

STATE of West Virginia v. Arthur Dale COLLINS.

No. 18795.

Supreme Court of Appeals of West Virginia.

June 22, 1990.

Dissenting Opinion of Justice Workman

Aug. 2, 1991.

Syllabus by the Court

1. Under Rule 801(d)(1)(A) of the West Virginia Rules of Evidence, a witness's 2. A prior statement of a witness, even if given under oath, during the course of a police interrogation is not a statement made subject to the penalty of perjury or during a trial, hearing, or other proceeding as required by Rule 801(d)(1)(A) of the West Virginia Rules of Evidence.

[186 W.Va. 3] prior inconsistent statement is not hearsay and may be used as substantive evidence if it meets certain prerequisites. First, the statement must have been given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition. Second, the statement must be inconsistent with the witness's testimony at trial, and the witness must be subject to cross-examination.

3. Rule 607 of the West Virginia Rules of Evidence allows a party, including the one who called the witness, to impeach a witness by a prior inconsistent statement.

4. Rule 607 of the West Virginia Rules of Evidence does not free either party to introduce otherwise inadmissible evidence into trial under the guise of impeachment.

5. The balancing test in Rule 403 of the West Virginia Rules of Evidence should be used to determine whether impeachment evidence should be barred because its prejudicial effect outweighs its impeachment value.

6. "The plain error doctrine contained in Rule 30 and Rule 52(b) of the West Virginia Rules of Criminal Procedure is identical. It enables this Court to take notice of error, including instructional error occurring during the proceedings, even though such error was not brought to the attention of the trial court. However, the doctrine is to be used sparingly and only in those circumstances where substantial rights are affected, or the truth-finding process is substantially impaired, or a miscarriage of justice would otherwise result." Syllabus Point 4, State v. England, 180 W.Va. 342, 376 S.E.2d 548 (1988).

7. "A prosecutor may argue all reasonable inferences from the evidence in the record. It is unprofessional conduct for the prosecutor intentionally to misstate the evidence or mislead the jury as to the inferences it may draw." Syllabus Point 7, State v. England, 180 W.Va. 342, 376 S.E.2d 548 (1988).

8. " 'It is improper for a prosecutor in this State to "assert his personal opinion as to the justness of a cause, as to the credibility of a witness ... or as to the guilt or innocence of the accused...." ABA Code DR 7-106(C)(4) in part.' Syllabus Point 3, State v. Critzer, 167 W.Va. 655, 280 S.E.2d 288 (1981)." Syllabus Point 8, State v. England, 180 W.Va. 342, 376 S.E.2d 548 (1988).

9. "Ordinarily the delay in taking an accused who is under arrest to a magistrate [or neutral judicial officer] after a confession has been obtained from him does not vitiate the confession under our prompt presentment rule." Syllabus Point 4, State v. Humphrey, 177 W.Va. 264, 351 S.E.2d 613 (1986).

J. Michael Anderson, Rainelle, William E. King, Lewisburg, for Arthur Dale Collins.

Roger W. Tompkins, Atty. Gen., Joanna I. Tabit, Asst. Atty. Gen., Charleston, for State.

MILLER, Justice:

The defendant, Arthur Dale Collins, was convicted of first degree murder by a Greenbrier County Circuit Court jury in May, 1987. He was sentenced to life imprisonment without mercy. The defendant assigns four primary errors: (1) the State's use of prior inconsistent statements by two witnesses, Tim Kelly and Lana Workman; (2) the failure to prove venue of the crime in Greenbrier County; (3) the involuntariness of the defendant's confession because he was not promptly presented before a magistrate; and (4) prosecutorial misconduct at trial. We find reversible error was committed in the use of the prior inconsistent statements; therefore, we reverse the defendant's conviction and remand the case for a new trial.

I. FACTS

On April 26, 1984, the body of Sarah Marshall was found in a laurel thicket near After the body was identified, the state police began interviewing acquaintances of the victim. The police interviewed the defendant's sister, Lana Hudson; ¹ Danny Workman; and the defendant's mother, Nadine Collins. All three witnesses gave statements.

[186 W.Va. 4] Mount Vernon Road in Greenbrier County. The body was fully clothed and covered by a quilt. The State Medical Examiner's office performed an autopsy on the body and determined that the cause of death was strangulation. In addition, the victim's head had been bludgeoned, which had caused severe fractures of the skull and hemorrhaging of the brain. In his report, the chief medical examiner, Irvin M. Sopher, M.D., estimated the date of death as April 24, 1984, but at trial, he testified that the date of death could have been considerably earlier.

The State's case revealed that Sarah Marshall was originally from Greenbrier County and had moved to the Washington, D.C. area in 1976. During the end of March, 1984, the victim and Rick Marshall ² visited Ronceverte, West Virginia, and decided to move back on April 10, 1984. Shortly after returning to Greenbrier County, Sarah became reacquainted with Lana Workman, Danny Workman, and the defendant. Between April 10 and April 14, the victim, Rick, Danny, Lana, and the defendant spent a significant amount of time together partaking of marijuana, PCP, and alcohol.

On April 14, 1984, at approximately 7:00 p.m., the victim and the defendant left the victim's apartment to attempt to purchase some cocaine in Hinton, West Virginia. At Sarah's request, Lana stayed with Rick at the apartment to look after the victim's children. Sarah and the defendant drove to Hinton in Rick Marshall's 1969 Chevrolet.

At trial, the defendant's statement was introduced. In that statement, the defendant indicated that after he and the victim arrived in Hinton, he went into a bar and asked where he might be able to buy cocaine. Some patrons in the bar said that there had been two black men in a van in town earlier in the day who were selling cocaine. The defendant then proceeded to another beer garden and was given the same information. Sarah and the defendant decided to wait in the car to see if the men in the van would return.

Approximately fifteen minutes later, a brown van pulled up in front of the second bar. According to the defendant's statement, after Sarah spoke with the men in the van, she returned to the car and told the defendant that the men had some cocaine to sell in their apartment on the west side of town. Sarah decided to go with the men to their apartment, and the defendant was to wait in the car until Sarah returned. When Sarah had not returned approximately two hours later, the defendant concluded that he had been abandoned and decided to drive to Virginia Beach, Virginia.

In his statement, the defendant said that he arrived at Virginia Beach about daylight and stayed there for two or three hours. While at the beach, the defendant picked up two hitchhikers who wanted to go to District Heights, Maryland, and because he had friends in that area, the defendant agreed to give them a ride. The defendant remained in Maryland until April 23, 1984, when he decided to go to Florida with two hitchhikers he met in Maryland. The defendant and one of the hitchhikers, Tim Kelly, arrived at Kelly's sister's apartment in Tampa, Florida, at approximately 2:00 a.m. on April 25, 1984.

II.

ADMISSIBILITY OF A PRIOR INCONSISTENT STATEMENT

A.

1. Rule 801(d)(1)(A) of the West Virginia Rules of Evidence

In October, 1985, the police questioned Tim Kelly at his home in Elmira, New At trial, Mr. Kelly recanted these earlier statements when called as a State's witness. ³ He testified that the defendant did not tell him he had killed Sarah Marshall. Mr. Kelly admitted that he had made the prior statement, but he explained that he had lied because the police had put him under extreme pressure. The prosecutor read portions of the prior statement into evidence and extensively questioned Mr. Kelly about the inconsistencies between it and his trial testimony. Defense counsel neither objected to the admission of the statement into evidence nor requested that the judge give a cautionary instruction to the jury.

[186 W.Va. 5] York, about any information he might have regarding Sarah Marshall's death. Although Mr. Kelly had been questioned by the police on several occasions in the past, this was the first time he gave any incriminating evidence against the defendant. In a sworn affidavit, Mr. Kelly stated that one evening, while he and the defendant were in Florida, they went to a bar. En route, the defendant told Mr. Kelly that the cops would probably be after him. Later in the evening, Mr. Kelly asked the defendant if he had killed his girlfriend. After hesitating a few minutes, the defendant admitted that: "Yeah, I killed her. But the only reason I did was before someone else got her."

There are two rules of evidence which apply to the use of a witness's prior inconsistent statement, i.e., Rule 607 and Rule 801(d)(1)(A). ⁴ Under Rule 801(d)(1)(A), a prior inconsistent statement is not hearsay and may be used as substantive evidence if it meets certain prerequisites. First, the statement must have been "given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition." Second, the statement must be inconsistent with the witness's testimony at trial, and the witness must be subject to cross-examination. ⁵

Prior to the adoption of Rule 801(d)(1)(A), we considered whether a prior inconsistent statement could be used as substantive evidence in State v. Spadafore, 159 W.Va. 236, 220 S.E.2d 655 (1975). In Spadafore, we acknowledged that we had in the past adhered to the "orthodox rule," which prohibits...