State v. Delaney
| Decision Date | 01 June 1992 |
| Docket Number | No. 19837,19837 |
| Citation | 187 W.Va. 212,417 S.E.2d 903 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia, Plaintiff Below, Appellee, v. Denzil DELANEY, Defendant Below, Appellant. |
1. "Where a counsel's performance, attacked as ineffective, arises from occurrences involving strategy, tactics and arguable courses of action, his conduct will be deemed effectively assistive of his client's interest, unless no reasonably qualified defense attorney would have so acted in the defense of an accused." Syllabus point 21, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).
2. "A statement is not hearsay if the statement is offered against a party and is his own statement, in either his individual or a representative capacity." Syllabus point 1, Heydinger v. Adkins, 178 W.Va. 463, 360 S.E.2d 240 (1987).
3. In order for a trial court to determine whether to grant a party's request for additional physical or psychological examinations, the requesting party must present the judge with evidence that he has a compelling need or reason for the additional examinations. In making the determination, the judge should consider: (1) the nature of the examination requested and the intrusiveness inherent in that examination; (2) the victim's age; (3) the resulting physical and/or emotional effects of the examination on the victim; (4) the probative value of the examination to the issue before the court; (5) the remoteness in time of the examination to the alleged criminal act; and (6) the evidence already available for the defendant's use.
Joanna I. Tabit, Deputy Atty. Gen., Charleston, W.Va., for appellee.
Mark G. Sargent, Spencer, W.Va., for appellant.
The appellant, Denzil Delaney, appeals from the verdict of the Circuit Court of Calhoun County, which found the appellant guilty on six counts of sexual assault. The appellant was sentenced to thirty-to-fifty years in the State penitentiary, fined $10,000, and ordered to pay restitution for medical and counseling expenses incurred by the victims.
Denzil Delaney was married to Joyce Nicholas. He lived with his wife and their daughter, Patty, on a farm in Orma, Calhoun County, West Virginia. Also living with Denzil and Joyce Delaney were Joyce's parents and Joyce's two young sisters, Emma and Missy Nicholas.
The first of the alleged sexual assaults which form the basis of this case occurred in January, 1983, when the appellant assaulted seven-year-old Emma Nicholas after feeding the hogs. Later that summer, he again allegedly assaulted Emma while she was sleeping in her parents' bed. Next, in the summer of 1984, the appellant took Emma outside early one morning and again sexually assaulted her. He then gave her a handful of change and told her not to tell anyone.
In June, 1985, the appellant allegedly assaulted Emma's eight-year-old sister, Missy, while she was in her bedroom. Again, the appellant gave her a handful of change and told her not to tell anyone what he had done.
On July 21, 1985, Emma, Missy, and Patty Delaney, the appellant's daughter, told the appellant's wife, Joyce, that Denzil had been making them pull their clothes down. The appellant denied the allegation and accused the girls of lying. In July, 1988, Patty claimed that the appellant sexually assaulted her. A second sexual assault happened later that month. After both occasions, he gave her money and told her not to tell anyone.
After hearing that the appellant had molested Patty, Missy and Emma again decided to tell someone what had happened. Missy constructed a diary, in which she wrote, on July 18, 19, and 20, 1988, what had happened to her, Emma, and Patty. She also drew sketches of the appellant, portraying him as the devil. Missy placed the diary on the kitchen table on July 19, 1988, hoping that her mother, Missouri Nicholas, would read it. Her mother did not see it. Missy then copied one of the pages from the diary onto a separate piece of paper and gave it to a friend to give to her mother. Word got back to Missy's older sister, Robin McCumbers, who told the appellant's wife what the girls had said. The appellant's wife, Joyce, then ordered the appellant to pack his clothes and leave. He moved to his mother's home in Pennsylvania.
On July 21, 1988, Joyce Delaney and Missouri Nicholas took the three girls to the State Police headquarters in Grantsville, where all three girls gave statements to Trooper Garrett. On July 22, 1988, they were examined by Dr. Kathryn Grant. Based upon the statements given, Trooper Garrett investigated the appellant and filed criminal complaints against him in Calhoun County Magistrate Court. The appellant waived extradition, returned to West Virginia, and was incarcerated in the Calhoun County jail.
While incarcerated, the appellant made several phone calls to Joyce, by then his ex-wife, and his ex-father-in-law, Denver Nicholas. Denver Nicholas visited the appellant at the jail at the appellant's request. At that time, the appellant allegedly confessed to sexually assaulting the three girls and indicated that, although he wanted to plead guilty, he was not permitted to do so because he was not represented by counsel at that time. During the next visit, Denver Nicholas reported that the appellant asked him to have the girls recant their statements, but Denver refused. When the appellant called his ex-wife, Joyce, she spoke with the appellant while her sister, Robin, listened on the extension. At that time, the appellant confessed that he had sexually assaulted the girls, but stated that he wanted the girls to lie because he didn't want to go to jail for it.
Trial began in the Circuit Court of Calhoun County on July 11, 1989. Denver Nicholas, Robin McCumbers, and Joyce Nicholas testified to the appellant's alleged confessions. Dr. Kathryn Grant, the physician who examined the three victims on July 22, 1988, also testified that Patty, the appellant's daughter, had physiological symptoms that were normal for a mature woman having sexual intercourse, but not for a five-year-old girl. Dr. Grant also examined Missy and Emma, but the examination revealed no physiological indications of recent sexual intercourse. However, Dr. Grant stated that the physical signs of sexual intercourse could recede within as little as six months. Also testifying was Pamela Rockwell, a sexual assault counselor for the Charleston-based Family Services. Ms. Rockwell had counseled Missy, Emma, and Patty on several occasions prior to trial. Ms. Rockwell testified that the three girls displayed symptoms of children who had been sexually assaulted or abused.
Following the closing statements, the jury found the appellant guilty on all six counts. Accordingly, the trial court sentenced him to thirty-to-fifty years in the State penitentiary, fined him $10,000, and ordered him to pay for the medical and counseling expenses incurred by the three girls. It is from the conviction that the appellant files this appeal.
The appellant presents twenty-four separate allegations of error to this Court for review. This Court will address only those assignments of error which have some substance and merit discussion. The remaining assignments of error, which we believe to be meritless, will not be addressed in this opinion.
Initially, we note that the appellant's argument that he had ineffective assistance of counsel at the trial level is erroneous. A review of the transcript reveals that the appellant's trial counsel, who is also his appellate counsel, did all things reasonable and necessary to defend his client. In State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1973), this Court set the standards for determining ineffective assistance of counsel:
Where a counsel's performance, attacked as ineffective, arises from occurrences involving strategy, tactics and arguable courses of action, his conduct will be deemed effectively assistive of his client's interest, unless no reasonably qualified defense attorney would have so acted in the defense of an accused.
Id. at syl. pt. 21. Further, the Thomas Court ruled that "[o]ne who charges on appeal that his trial counsel was ineffective and that such resulted in his conviction, must prove the allegation by a preponderance of the evidence." Id. at syl. pt. 22. As we can find no evidence that the trial counsel's performance resulted in the appellant's conviction or that no reasonably qualified defense attorney would have so acted, we do not find ineffective assistance of counsel.
The appellant next argues that the trial court erred when it allowed Joyce Nicholas, the appellant's ex-wife, to testify regarding his acts and statements which occurred while they were still married. The appellant argues that his ex-wife's testimony should have been limited to acts alleged to have been committed against their daughter, Patty, and that the marital privilege would prevent her from testifying regarding Emma and Missy.
West Virginia Code § 57-3-3 (1931) explains the marital privilege against acting as a witness against a spouse:
In criminal cases husband and wife shall be allowed, and, subject to the rules of evidence governing other witnesses, may be compelled to testify in behalf of each other, but neither shall be compelled, nor, without the consent of the other, allowed to be called as a witness against the other except in the case of a prosecution for an offense committed by one against the other, or against the child, father, mother, sister or brother of either of them.... (Emphasis added.)
In this case, the charged sexual assaults were against their child and against the wife's two younger sisters. Thus, the marital privilege is not applicable to this case by the specific language of W.Va.Code § 57-3-3.
The appellant next argues that the statements made by him to Denver and Joyce Nicholas while in jail...
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