State v. Deskins

• Decision Date: 06 April 1989
• Docket Number: No. 18529,18529
• Citation: 181 W.Va. 112,380 S.E.2d 676
• Parties: STATE of West Virginia v. David DESKINS.
• Court: West Virginia Supreme Court

Page 676

380 S.E.2d 676

181 W.Va. 112

STATE of West Virginia v. David DESKINS.

No. 18529.

Supreme Court of Appeals of West Virginia.

April 6, 1989.

Syllabus by the Court

1. " 'Where a person who has been accused of committing a crime makes a voluntary statement that is inadmissible as evidence in the State's case in chief because the statement was made after the accused had requested a lawyer, the statement may be admissible solely for impeachment purposes when the accused takes the stand at his trial and offers testimony contradicting the prior voluntary statement knowing that such prior voluntary statement is inadmissible as evidence in the State's case in chief.' Syllabus Point 4, State v. Goodmon, 170 W.Va. 123, 290 S.E.2d 260 (1981)." Syllabus Point 1, State v. Randle, 179 W.Va. 242, 366 S.E.2d 750 (1988).

2. " 'The true test as to whether a juror is qualified to serve on the panel is whether without bias or prejudice he can render a verdict solely on the evidence under the instructions of the court.' Syl. pt. 1, State v. Wilson, 157 W.Va. 1036, 207 S.E.2d 174 (1974). Syllabus Point 4, State v. Wade, 174 W.Va. 381, 327 S.E.2d 142 (1985)." Syllabus Point 3, State v. Brown, 177 W.Va. 633, 355 S.E.2d 614 (1987).

3. " 'Jurors who on voir dire of the panel indicate possible prejudice should be excused, or should be questioned individually either by the court or by counsel to precisely determine whether they entertain bias or prejudice for or against either party, requiring their excuse.' Syllabus Point 3, State v. Pratt, 161 W.Va. 530, 244 S.E.2d 227 (1978)." Syllabus Point 5, State v. Beckett, 172 W.Va. 817, 310 S.E.2d 883 (1983).

4. " 'As a general rule photographs of persons, things, and places, when duly verified and shown by intrinsic evidence to be faithful representations of the objects they purport to portray, are admissible in evidence as aids to the jury in understanding the evidence; and whether a particular photograph or groups of photographs should be admitted in evidence rests in the sound discretion of the trial court and its ruling on the question of the admissibility of such evidence will be upheld unless it clearly appears that its discretion has been abused.' Syl. pt. 1, Thrasher v. Amere Gas Utilities Co., 138 W.Va. 166, 75 S.E.2d 376 (1953), appeal dismissed, 347 U.S. 910, 74 S.Ct. 478, 98 L.Ed. 1067 (1954)." Syllabus Point 2, State v. Dunn, 162 W.Va. 63, 246 S.E.2d 245 (1978).

5. "In certain circumstances evidence of the flight of the defendant will be admissible in a criminal trial as evidence of the defendant's guilty conscience or knowledge. Prior to admitting such evidence, however, the trial judge, upon request by either the State or the defendant, should hold an in camera hearing to determine whether the probative value of such evidence outweighs its possible prejudicial effect." Syllabus Point 6, State v. Payne, 167 W.Va. 252, 280 S.E.2d 72 (1981).

6. "When a trial court grants a pre-trial discovery motion requiring the prosecution to disclose evidence in its possession, non-disclosure by the prosecution is fatal to its case where 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 disclosure hampers the preparation and presentation of the defendant's case." Syllabus Point 2, State v. Grimm, 165 W.Va. 547, 270 S.E.2d 173 (1980).

7. "A prosecution witness who has purportedly been afforded immunity from prosecution pursuant to W.Va.Code, 57-5-2 [1931], and who testifies against a defendant in a criminal proceeding is the only person who may assert the protection of that statute in regard to that grant of immunity. The defendant, however, in that criminal proceeding may not assert irregularities in regard to the granting of that immunity from prosecution." Syllabus Point 3, State v. Pennington, 179 W.Va. 139, 365 S.E.2d 803 (1987).

8. "An instruction to the jury is proper if it is a correct statement of the law and if sufficient evidence has been offered at trial to support it." Syllabus Point 8, State v. Hall, 171 W.Va. 212, 298 S.E.2d 246 (1982).

9. " 'It is not error to refuse to give an instruction to the jury, though it states a correct and applicable principle of law, if the principle stated in the instruction refused is adequately covered by another instruction or other instructions given.' Syl. pt. 2, Jennings v. Smith, 165 W.Va. 791, 272 S.E.2d 229 (1980), quoting, syl. pt. 3, Morgan v. Price, 151 W.Va. 158, 150 S.E.2d 897 (1966). Syl. pt. 2, McAllister v. Weirton Hospital Co., 173 W.Va. 75, 312 S.E.2d 738 (1983)." Syllabus Point 4, Jenrett v. Smith, 173 W.Va. 325, 315 S.E.2d 583 (1983).

10. "In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done." Syllabus Point 1, State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978).

11. "Circumstantial evidence will not support a guilty verdict, unless the fact of guilt is proved to the exclusion of every reasonable hypothesis of innocence; and circumstances which create only a suspicion of guilt but do not prove the actual commission of the crime charged, are not sufficient to sustain a conviction." Syllabus Point 2, State v. Dobbs, 163 W.Va. 630, 259 S.E.2d 829 (1979).

J.C. Powell and Dennis Lewis, Hardman and Powell, Parkersburg, for David Deskins.

Harry G. Deitzler, Pros. Atty. Wood County, Parkersburg, for the State.

PER CURIAM:

Donald Deskins appeals from a jury verdict in the Circuit Court of Wood County finding him guilty of the murder of Donald Quinby and sentencing him to the State Penitentiary for life with a recommendation of mercy. Mr. Deskins made several confessions to the police; two of which were used during cross-examination to impeach his testimony. Among his assignments of error, Mr. Deskins argues his statements, made after he had requested the assistance of counsel, should have been suppressed for all purposes. We find no merit in his assignments of error and affirm his conviction.

I

Donald Quinby was shot and killed on February 27, 1985 in a secluded area outside Parkersburg, West Virginia. Mr. Deskins and Michael E. Cadwallader were connected to the murder by certain circumstantial evidence. ¹ Before February 27 1985, both had been seen with the victim; on February 27, 1985, both had purchased a shotgun, the murder weapon. Two empty pop cans, one with Mr. Deskins's fingerprints, were found at the murder scene. Later on February 27, 1985, Mr. Deskins used the victim's credit card to purchase gas for the victim's car outside Huntington, West Virginia. After February 27, 1985, Mr. Deskins invited some of his friends to join him and Mr. Cadwallader on a vacation trip to Florida using the victim's car. Mr. Deskins continued to use the victim's car and credit cards on the Florida trip.

In Florida, Mr. Deskins and Mr. Cadwallader separated and Mr. Deskins remained in the Daytona Beach area until June 30, 1985, when he was arrested on unrelated charges. After his arrest and before his return to West Virginia, Mr. Deskins made three statements to the police without the presence of counsel. The first confession, made on June 30, 1985, was suppressed for all uses because the trial court ruled it involuntary. The second confession, the result of police initiated questioning, was made on July 2, 1985 after Mr. Deskins requested assistance of counsel at his arraignment on July 1, 1985 and when his "waiver sheet" also indicated his desire for counsel. The trial court held that the second confession was admissible only to cross-examine or impeach. The third confession, made on July 19, 1985, although held admissible by the court, was used only for impeachment purposes.

Mr. Deskins contends that the trial court violated his constitutional rights when he admitted his second and third confessions for the limited purpose of impeachment. Neither statement was admitted into evidence in the State's case-in-chief. Mr. Deskins, testifying in his own defense, mentioned both statements briefly on direct examination. Mr. Deskins testified that although part of one statement was untrue, the rest of the statements were substantially accurate. In his own defense, Mr. Deskins contended that Mr. Cadwallader, acting alone and without his knowledge or consent, shot and killed Mr. Quinby and then threatened him if he did not follow Mr. Cadwallader's instructions. Mr. Deskins's credibility was a major consideration during the trial and the prosecutor used both statements to impeach his credibility.

On appeal Mr. Deskins argues that since both statements were taken in violation of his rights under the fifth and sixth amendments of the U.S. Constitution, the confessions should have been suppressed for all purposes including impeachment.

In Syllabus Point 1, State v. Randle, 179 W.Va. 242, 366 S.E.2d 750 (1988) we, again, reiterated that a voluntary confession can be used for impeachment purposes.

"Where a person who has been accused of committing a crime makes a voluntary statement that is inadmissible as evidence in the State's case in chief because the statement was made after the accused had requested a lawyer, the statement may be admissible solely for impeachment purposes when the accused takes the stand at his trial and offers testimony contradicting the prior voluntary statement knowing that such prior voluntary statement is inadmissible as evidence in the State's case in chief." Syllabus Point 4, State v. Goodmon, 170 W.Va. 123, 290 S.E.2d 260 (1981)...