State v. Cowan
| Decision Date | 10 July 1973 |
| Docket Number | No. 13205,13205 |
| Citation | 197 S.E.2d 641,156 W.Va. 827 |
| Parties | STATE of West Virginia v. George R. COWAN. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
After a trial court grants a pre-trial discovery motion requiring the prosecution to disclose evidence in its possession including any statements by the defendant, failure of the prosecution to disclose a letter written by the defendant even though obtained by it during the trial is grounds for a new trial when such non-disclosure is prejudicial. The non-disclosure is prejudicial where the defense is surprised on a material issue and where the failure to make the letter available hampers the preparation and presentation of defendant's case.
Kennad L. Skeen, Larry L. Skeen, Ripley, for plaintiff in error.
Chauncey H. Browning, Jr., Atty. Gen., Richard E. Hardison, Deputy Atty. Gen., James S. Arnold, Asst. Atty. Gen., Charleston, for defendant in error.
This case involves an appeal by the defendant, George R. Cowan, from a final order of the Circuit Court of Jackson County, by which order the circuit court entered judgment upon a jury verdict finding the defendant guilty of armed robbery. The defendant was sentenced to a term of ten years in the West Virginia Penitentiary.
The defendant alleges several errors were committed during the trial of the case, but on final submission for this review, he advances only two alleged errors. One relates to the denial by the trial court of a self-defense instruction, and the second concerns the prosecution's use on cross-examination of a letter written by the defendant. The prosecuting attorney obtained the letter during the course of the trial, and did not make it available to the defense counsel, although a motion had been made and granted under provisions of Code, 1931, 62-1B--2, as amended, for disclosure of any of defendant's written statements.
The defendant was found guilty of the armed robbery of Dana Munday. The alleged robbery occurred on August 16, 1971. Dana Munday, 70 years of age, lived in a mobile home in Sandyville, Jackson County. Sometimes cleaning Munday's mobile home and on occasion spending the night there was Freda Taylor, an 18-year-old girl, uneducated to the point she could not read. On the day of the alleged robbery, Munday and Freda Taylor travelled together in this car to Parkersburg. He was to visit briefly with his son there.
After visiting his son in the morning, he and Freda Taylor visited in the City of Parkersburg and some time in the afternoon ended up in a bar. Shortly prior to that Munday had met Sandra Starkey, a 14-year-old girl, and asked her to return with him for a party in Jackson County. While she and her aunt, who was with her, took the offer under consideration, Munday and Taylor went to the bar.
Inside the bar Munday eventually approached a group of young men and a young woman in a booth; among them was the defendant, George Cowan, a 21-year-old man. He apparently asked George Cowan and the young lady with him to come to Jackson County for a party and, not succeeding, asked Cowan if he would attend such a party with Munday, Taylor and Sandra Starkey. Although Cowan did not at that time know either of the young girls, he finally agreed. Munday found Sandra and the four of them travelled to Sandyville. They stopped twice during the automobile trip; once to purchase wine and another time to purchase beer, Munday paying for all of the refreshments. During the drive, the young ladies traded places so that Freda Taylor was riding with George Cowan and Sandra Starkey was in the front seat with Dana Munday. Freda Taylor and George Cowan struck up an amorous relationship.
There is some conflict of evidence as to the exact course of events in the mobile home, but a fair summary of the evidence places George Cowan and Freda Taylor fairly quickly in the bedroom of the mobile home; whereas, Munday and the young Starkey girl remained in the front room. Cowan and Taylor were in the bedroom for half an hour and engaged in sexual intercourse. Munday showed Sandra Starkey a rifle he kept in the bedroom. He put the rifle back in the closet after showing it to her. According to Starkey's testimony, he attempted to get her to kiss him and to join him in watching the other couple, both of which requests she refused.
When the defendant Cowan re-entered the living room from the bedroom, the victim, Munday, was still attempting to have the young Starkey girl engage in an amorous relationship, but she was still refusing his advances. Cowan told Munday to leave the girl alone. Munday, according to his own testimony, then said he would take her home and Munday started for the bedroom. According to Starkey's testimony, 'Dana started for the bedroom and I hollered, 'George, there is a gun in there'.' Cowan testified,
The evidence is clear that, holding a kitchen knife against the victim's head, Cowan ordered Sandra Starkey to take his car keys and his billfold. He then tore the telephone from the wall and left the mobile home, taking the two girls with him. Altogether, taken from the victim were his car keys, $30.00 in cash, the beer and the wine from the refrigerator, and the rifle from the bedroom.
Several months prior to the trial in the case, defendant, by counsel, moved under the provisions of Code, 1931, 62--1B--2, as amended, to examine and copy evidence including any written and recorded statements made by the defendant. The trial court granted the motion and ordered: 'That defendant's counsel, within a reasonable time, be furnished with a complete list of all witnesses, including their addresses, And any statements, either oral or written, made by the defendant, intended to be used by the Prosecuting Attorney of Jackson County, West Virginia, or to be subpoenaed by the said Prosecuting Attorney against the defendant in any trial under the above indictment.' (Italics supplied.)
The trial was on November 3, 1971, and the State presented part of its evidence in the morning. During the noon recess, the prosecuting attorney came into the possession of a letter written by the defendant Cowan to Sandra Starkey, while both were in their respective cells in the county jail. After the noon recess, the State called four additional prosecution witnesses and rested. The defense then called the defendant as the first witness. After the direct examination, the prosecuting attorney immediately on cross-examination inquired as to whether the defendant had written the letter in question, reading it in its entirety in the presence of the jury. The defendant admitted that he had written the letter, which reads as follows:
The defense counsel made a general objection to the use of the statement and, at the conclusion of the defendant's testimony, moved for a mistrial on the basis that the prosecuting attorney had not furnished the letter to him prior to its use. The defense contended this was in violation of the court's pre-trial order requiring the prosecuting attorney to furnish evidence, including written statements intended to be used at the trial. The court overruled the motion; the case was completed, and a verdict of guilty returned by the jury.
While it is not inconceivable in a given factual situation that there could be a proper defense of self-defense to a prosecution for armed robbery, such a possibility strains the imagination. Under no interpretation of the evidence in the case at hand can be armed robbery of Dana Munday be justified on the theory of self-defense. The trial court certainly acted properly in denying the instruction based on such theory.
The only contention then with which we must deal is that relating to the use by the prosecuting attorney of George Cowan's handwritten letter without first having revealed its existence and contents to defense counsel. The appellant and the State, in presenting this issue,...
To continue reading
Request your trial
-
State v. Meadows, 15601
...and presentation of the defendant's case." See also State v. Trail, 163 W.Va. 352, 255 S.E.2d 900, 904 (1979); State v. Cowan, 156 W.Va. 827, 197 S.E.2d 641 (1973). Therefore, the relevant inquiry in the present case focuses upon prejudice to the appellant resulting from either surprise con......
-
State v. Hatfield
...16, 38 (1970)." See also State v. Grimm, W.Va., 270 S.E.2d 173 (1980); Wilhelm v. Whyte, W.Va., 239 S.E.2d 735 (1977); State v. Cowan, 156 W.Va. 827, 197 S.E.2d 641 (1973); State v. McArdle, 156 W.Va. 409, 194 S.E.2d 174 Here, the failure of the State to communicate to defense counsel the o......
-
State v. Petry
...fully and plainly informed of the charges against him, in light of our liberalized rules regarding criminal discovery, State v. Cowan, 156 W.Va. 827, 197 S.E.2d 641 (1973); State v. McArdle, 156 W.Va. 409, 194 S.E.2d 174 (1973), and in light of the United States Supreme Court pronouncement ......
-
State v. Haverty
...Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). See also Wilhelm v. Whyte, W.Va., 239 S.E.2d 735 (1977); State v. Cowan, 156 W.Va. 827, 197 S.E.2d 641 (1973); State v. McArdle, 156 W.Va. 409, 194 S.E.2d 174 (1973).4 For a further discussion of the scope of compulsory process, s......