State v. Ellis
| Decision Date | 20 December 1977 |
| Docket Number | No. 13734,13734 |
| Citation | 239 S.E.2d 670,161 W.Va. 40 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia v. Donald Lee ELLIS, Jr. |
Syllabus by the Court
1. "The declarations or admissions of a participant in a conspiracy, made after the conspiracy has terminated, are not admissible in evidence against a co-conspirator of the person making the declarations or admissions." Syllabus point 1, State v. Price and Bruce, 114 W.Va. 736, 174 S.E. 518 (1934).
2. Syllabus point 5 of State v. Bennett, W.Va., 203 S.E.2d 699 (1974) is overruled to the extent that it does not place within the trial court's discretion the question of whether appropriate jury instructions can cure the inadvertent admission into evidence of an alleged co-conspirator's or accomplice's acknowledgement of his conviction of or plea of guilty to the same offense for which the defendant is being tried.
3. It is a proper exercise of trial court discretion to deny a defendant's motion for mistrial, based on the mention at trial of the fact of an alleged co-conspirator's or accomplice's conviction of or plea of guilty to the same offense for which the defendant is being tried, in circumstances where the trial's continuation will not result in actual prejudice to the defendant.
4. Under W.Va.Code, 60A-1-101(f) (1971), "constructive transfer" of a controlled substance means the transfer of a controlled substance belonging to an individual or under his control by some other person or agency at the instance or direction of the individual accused of such constructive transfer.
5. A trial judge's public statements that he believes sound public policy requires persons convicted of drug-related offenses be sentenced to the penitentiary do not create such a bias or prejudice against a particular defendant to justify disqualification of the judge.
H. Truman Chafin, Williamson, for plaintiff in error.
Chauncey H. Browning, Jr., Atty. Gen., Richard L. Earles, Asst. Atty. Gen., Charleston, for defendant in error.
Appellant Donald Lee Ellis, Jr. was convicted by a jury in the Circuit Court of Mingo County of delivering a controlled substance, namely marijuana. The sale allegedly occurred while appellant and another young man, John David Browning, were together in appellant's automobile.
According to the State's evidence, appellant and Mr. Browning met a State Police undercover agent and an informer while driving in and around Gilbert. The four of them then went to a parking lot where Mr. Browning, at the instance and direction of appellant, transferred marijuana belonging to the appellant to the undercover agent for $30.00.
The principal assignment of error is that the prosecuting attorney stated in opening argument that Mr. Browning had already pled guilty to an indictment arising from the same criminal incident in which appellant was involved. Upon calling Mr. Browning to the stand, the prosecuting attorney did indeed ask whether Mr. Browning had pled guilty to the same criminal offense. Appellant made a timely objection and, citing as authority State v. Bennett, W.Va., 203 S.E.2d 699 (1974), moved for a mistrial because of the presentation of evidence of an admission or plea of guilty by a co-conspirator after the conspiracy had ended.
After the motion for a mistrial was made, the appellant, court, and attorneys retired to chambers. During their deliberations it became apparent that Mr. Browning was less than 18 years of age and had been indicted for two incidents of delivering a controlled substance; however, he had not pled guilty to the charges stemming from the criminal offense for which appellant was being tried.
The court, in an effort to cure the error, permitted the prosecuting attorney to reopen his direct examination of Mr. Browning to bring out that Mr. Browning only believed that he had pled guilty to the charges stemming from the criminal offense for which appellant was being tried, while in truth he had pled to unrelated charges. It was conclusively demonstrated to the jury that Mr. Browning had not pled guilty to delivery of a controlled substance under the facts involving the appellant, but that he would be happy to do so, and thought that he had done so.
We find that the intent of the prosecution was to introduce Mr. Browning's plea of guilty for general purposes as a co-conspirator after the conspiracy had ended. 1 While the State attempted to cure the error by demonstrating that Mr. Browning had not pled guilty to the offense in issue, the result of all the efforts to cure the error was merely to bring out that Mr. Browning was guilty of the offense charged, leaving the clear impression that appellant was guilty by association. Most importantly, the original error was not an unintentional blunder, but an intentional attempt to implicate appellant through guilt by association.
Our decision in State v. Bennett, supra was a little broad in holding that an inadvertent admission into evidence of the fact of an alleged co-conspirator's or accomplice's...
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... ... Page 767 ... [185 W.Va. 336] accused of such constructive transfer." Syl. pt. 4, in part, State v. Ellis, 161 W.Va. 40, 239 S.E.2d 670 (1977) (interpreting the very similar 1971 predecessor to W.Va.Code, 60A-1-101(g) [1983] ). Accordingly, a physician, dentist or other practitioner makes a "constructive delivery" of a controlled substance to a purported patient by having a pharmacist make an actual ... ...
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