State v. Crabtree

Decision Date11 October 1996
Docket NumberNo. 23408,23408
Citation482 S.E.2d 605,198 W.Va. 620
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia, Plaintiff Below, Appellee v. James L. CRABTREE, Defendant Below, Appellant.

1. "Prior trial testimony is admissible as an exception to the hearsay rule under Rule 804(b)(1) of the West Virginia Rules of Evidence. Therefore, impeachment by reason of an inconsistent statement is available under Rule 806 of the West Virginia Rules of Evidence." Syl. Pt. 2, State v. Hall, 174 W.Va. 787, 329 S.E.2d 860 (1985).

2. A statement or conduct by a declarant that is inconsistent with his or her hearsay statement that is admitted pursuant to Rule 806 of the West Virginia Rules of Evidence is not subject to the traditional requirement of affording the declarant an opportunity to explain or deny the inconsistency.

3. " 'An appellant or plaintiff in error will not be permitted to complain of error in the admission of evidence which he offered or elicited, and this is true even of a defendant in a criminal case.' Syl. Pt. 2, State v. Bowman, 155 W.Va. 562, 184 S.E.2d 314 (1971)." Syl. Pt. 1, State v. Compton, 167 W.Va. 16, 277 S.E.2d 724 (1981).

4. A witness should give responsive answers to questions of counsel, and answers that are not responsive may be stricken on motion of the examining party especially if the unresponsive answer contains inadmissible evidence. Unresponsive answers, or those that are responsive but broader than the question, should not be viewed as the responsibility of the questioner. On the other hand, a responsive answer, one that is reasonably within the scope of the question, even though prejudicial, should not be stricken as unresponsive.

5. "In a criminal proceeding, the defendant's absence at a critical stage of such proceeding is not reversible error where no possibility of prejudice to the defendant occurs." Syl. Pt. 3, State ex rel. Redman v. Hedrick, 185 W.Va. 709, 408 S.E.2d 659 (1991).

6. The first inquiry under the "plain error rule" codified in Rule 52(a) of the West Virginia Rules of Criminal Procedure is whether "error" in fact has been committed. Deviation from a rule of law is error unless it is waived. Waiver is the intentional relinquishment or abandonment of a known right. When there has been such a knowing waiver, there is no error and the inquiry as to the effect of the deviation from a rule of law need not be determined.

7. Rule 16(a)(1)(C) of the West Virginia Rules of Criminal Procedure requires that upon the request of the defendant the State shall permit the defendant to inspect tangible objects that are material to the preparation of the defendant's defense. The right of inspection under this rule includes the right to have the defendant's own expert examine the tangible evidence that the State contends was used or possessed by the defendant at the time of the commission of the crime.

8. A criminal defendant who desires to analyze an article or substance in the possession or control of the State under Rule 16 of the West Virginia Rules of Criminal Procedure should file a motion setting forth the circumstances of the proposed analysis, the identity of the expert who will conduct such analysis, and the expert's qualifications and scientific background. The trial court may then, in its discretion, provide for appropriate safeguards, including, where necessary, the performance of such tests at the State laboratory under the supervision of the State's analyst.

9. "A person convicted of a felony may not be sentenced pursuant to W. Va.Code, 61-11-18, -19 [1943], unless a recidivist information and any or all material amendments thereto as to the person's prior conviction or convictions are filed by the prosecuting attorney with the court before expiration of the term at which such person was convicted, so that such person is confronted with the facts charged in the entire information, including any or all material amendments thereto. W. Va.Code, 61-11-19 [1943]." Syl. Pt. 1, State Philip W. Morrison II, Special Prosecuting Attorney, Winfield, for Appellee.

[198 W.Va. 624] v. Cain, 178 W.Va. 353, 359 S.E.2d 581 (1987).

Jerry Blair and Richard Vital, Huntington, for Appellant.

CLECKLEY, Justice:

The defendant below and appellant herein, James L. Crabtree, appeals his conviction for recidivism and the underlying convictions for malicious wounding and battery. The defendant contends the trial court committed several errors which justify reversal of the recidivism conviction and the malicious wounding and battery convictions.


Patsy Morrison was found severely beaten on the morning of June 24, 1993, at the Guyan boat docks in Huntington, West Virginia. Discovered next to her body was a bloody stick to which were attached pubic hairs later matched to the victim's. Based on Ms. Morrison's identification of the defendant as her assailant, the defendant was arrested and charged with malicious wounding and two counts of second degree sexual assault. 1

Ms. Morrison testified at trial that the defendant was one of several people with whom she had been drinking on the evening of June 23, 1993. She further testified that the defendant's wife appeared at the boat docks several times over the course of several hours to try to persuade the defendant to go home. At about 11:15 or 11:30 p.m., the others in the group left, leaving the victim and the defendant alone. Shortly thereafter, the defendant's wife again arrived in her car and the defendant went to speak with her. Ms. Morrison testified that she decided to leave when she heard the defendant and his wife arguing. She testified additionally that as she walked away, she heard someone run up behind her and then heard the defendant say: "You son-of-a-bitches ain't getting by with this." The victim was then hit on the back of the head. According to her testimony, the victim had no memory of anything until the next morning when a police officer asked her who had beaten her.

The defendant's theory at trial was that he was on his way to the home his friend, Billy Joe Workman, at the time the crime was committed. This theory was actually the defendant's second alibi since he had originally told the police that he was at another friend's house, but later recanted this alibi after that friend admitted that the defendant had not been at her house on the night of the crime.

At the preliminary hearing Mr. Workman testified that the defendant woke him at his home at about 11:45 on June 23, 1993, and stayed at his house for about an hour and a half. The preliminary hearing statement of Mr. Workman was read into the record at trial, as he died before the trial. During a bench conference, the prosecutor informed the trial court and defense counsel that he would be calling Karen Spoor, the defendant's parole officer at the time the crime was committed, to say that Mr. Workman told her the defendant did not reach his house until 2:00 in the morning. The defendant objected to the introduction of Mr. Workman's statement to Ms. Spoor on the grounds that such statement was hearsay and because Mr. Workman was not available for cross-examination. The trial court ruled the statement was admissible and that a limiting instruction would be given to inform the jury that the testimony was offered for impeachment purposes only. 2

Ms. Spoor testified on direct examination at trial that she spoke with Mr. Workman before his death to find out whether the defendant had visited him at his home, which would have been a violation of the defendant's parole. On cross-examination, the State elicited from Ms. Spoor that Mr. Workman During trial, defense counsel made a motion for the trial court to pay for independent forensic testing of the stick found next to the victim. The State contended that the stick was used as a weapon to sexually assault the victim, both anally and vaginally. Upon being apprised that the pubic hairs found on the stick had been matched to those of the victim by the West Virginia State Police forensic laboratory, the trial court denied the motion.

[198 W.Va. 625] told her that the defendant arrived at Mr. Workman's home between 2:00 and 2:30 the morning after the crime. On redirect, defense counsel asked Ms. Spoor if she was relying only on her memory of what Mr. Workman told her as to the time of the defendant's arrival at his home. She replied that her information had been corroborated by Paula Gardner, who was Mr. Workman's parole officer. Over defense counsel's objection, Ms. Spoor explained that Ms. Gardner told her that Mr. Workman said he went to bed at midnight and the defendant arrived at his house well after midnight.

During jury deliberations, the trial judge received the following written question from the jury: "Will you differentiate between sexual assault, sexual abuse and battery for us?" The judge asked trial counsel if there were any objections to him going into the jury room and giving the jury the three instructions requested. Neither counsel objected, but defense counsel remarked he had never seen that procedure before used. The judge responded he would have the jury return to the courtroom if defense counsel preferred, but he did not want to inconvenience the jury and planned to take the court reporter with him to the jury room and have a transcript made. Defense counsel did not object to that procedure. Later the jury sent a second message requesting the same instructions be read to them again, to which there was again no objection. However, no record was made of the proceedings in the jury room between the judge and the jury.

The defendant was convicted of malicious wounding and one count of battery as a lesser included offense of one of the sexual assault counts. An information for recidivism was filed by the State charging that the defendant had been found guilty of four...

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