State v. Fitch

• Decision Date: 11 March 1980
• Docket Number: No. 14064,14064
• Citation: 263 S.E.2d 889,164 W.Va. 337
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Leslie A. FITCH.

Page 889

263 S.E.2d 889

164 W.Va. 337

STATE of West Virginia v. Leslie A. FITCH.

No. 14064.

Supreme Court of Appeals of West Virginia.

March 11, 1980.

Syllabus by the Court

1. "In the trial of a criminal case, a defendant who elects to testify may have his credibility impeached by showing prior convictions of perjury or false swearing, but it is impermissible to impeach his credibility through any other prior convictions." Syl. pt. 1, State v. McAboy, W.Va., 236 S.E.2d 431 (1977).

2. "Where improper evidence of a nonconstitutional nature is introduced by the State in a criminal trial, the test to determine if the error is harmless is: (1) the inadmissible evidence must be removed from the State's case and a determination made as to whether the remaining evidence is sufficient to convince impartial minds of the defendant's guilt beyond a reasonable doubt; (2) if the remaining evidence is found to be insufficient, the error is not harmless; (3) if the remaining evidence is sufficient to support the conviction, an analysis must then be made to determine whether the error had any prejudicial effect on the jury." Syl. pt. 2, State v. Atkins, W.Va., 261 S.E.2d 55 (1979).

3. "An aider and abettor, known in the law as a principal in the second degree, cannot be convicted upon an indictment found against him solely as a principal in the first degree." Syl. pt. 7, State v. Bennett, W.Va., 203 S.E.2d 699 (1974).

Pauley, Curry & Thaxton and James M. Sturgeon, Jr., Charleston, for P. E.

Chauncey H. Browning, Atty. Gen., Lawrence R. Frail, Asst. Atty. Gen., Charleston, for D. E.

NEELY, Chief Justice:

This is an appeal from a grand larceny conviction in the Circuit Court of Kanawha County. Defendant was apprehended near the door of a department store with a transparent bag full of unpurchased merchandise. A juvenile who accompanied him to the store and who had an identical, transparent bag also full of unpurchased merchandise, dropped his bag and ran away, but shortly afterwards was apprehended on the street. The security officer took the defendant to a separate room where the officer emptied the bags and commingled the contents. At trial no evidence was admitted which would have distinguished the contents of defendant's bag from that of the juvenile. Evidence was admitted of a prior conviction, and both court and counsel failed to instruct the jury on possible lesser offenses.

Appellant asserts that his possession of unpurchased merchandise in a transparent bag while still within the store was not evidence of larceny. Defendant further asserts that there was no evidence proving that he had in his possession merchandise of a value greater than fifty dollars, and the fact that the merchandise from his bag and the juvenile's together was valued at $127.19 is not sufficient evidence to prove beyond a reasonable doubt that he is guilty of grand larceny. ¹ Appellant further argues that the Court erred in failing to instruct the jury on possible lesser offenses and that the Court committed reversible error in allowing testimony concerning a prior unrelated conviction.

I

In State v. McAboy, W.Va., 236 S.E.2d 431 (1977), this Court held that evidence of prior, unrelated convictions is inadmissible and amounts to reversible error except in two situations. If the defendant introduces evidence of his own good character, evidence of a prior conviction may be used in rebuttal. Second, if a defendant testifies on his own behalf, a prior conviction for perjury or stating a false claim may be introduced to impeach his credibility. These exceptions do not apply in this case since the previous conviction was for unarmed robbery and defendant introduced no evidence of his own good character. This case falls, therefore, squarely within the scope of McAboy. Further, we expressly provided in McAboy that its ruling would apply to all pending cases where the error was preserved on appeal.

The State contends that even though the evidence of a prior offense was inadmissible under McAboy, its admission would not amount to reversible error because the error was harmless under the test established in State v. Atkins, W.Va., 261 S.E.2d 55 (1979). Atkins created an exception to the rule of automatic reversal consisting of two parts: first, the inadmissible evidence must be removed from the State's case and a determination made concerning whether the remaining evidence is sufficient to convince impartial minds of the defendant's guilt beyond a reasonable doubt and if the remaining evidence is insufficient then the error is not harmless; second, if the evidence is sufficient an analysis must be made to determine whether the error had any prejudicial effect.

In Atkins the evidence that the defendant was guilty of second degree murder was overwhelming eyewitnesses observed the defendant shoot the victim several times in the back. Here, the evidence is largely circumstantial since, although the defendant had already passed the cash registers, he was still within the store. In weighing the prejudicial effect of a prior conviction under the second prong of the Atkins, supra test it is admittedly difficult to separate the analysis of prejudice from the inquiry into the sufficiency of evidence. In Atkins the prejudicial effect was negligible because the prior convictions consisted of contributing to the delinquency of a minor and a manslaughter charge some eighteen years earlier. In the case before us, however, the prior conviction was for unarmed robbery in the same county five years earlier, which had to be prejudicial since the prior conviction was closely related both in time and nature. To ask the jury not to be prejudiced by such a prior conviction, no matter how many limiting instructions are given, is an impossible request. The best evidence that the introduction of the prior conviction was unduly prejudicial is provided by the presiding judge who was clearly troubled by the introduction of the conviction for unarmed robbery. ² We hold, therefore, that the introduction of evidence of a prior conviction was reversible error.

II

The State argued below that the appellant and his accomplice acted in concert, and therefore, that there is no need to prove whether the appellant actually had the requisite $50 worth of stolen items. Under our law it is required that the indictment give the defendant full information of the character of the accusation with which he is charged. When the State attempts to prove an offense that is not charged in the indictment, the conviction cannot stand. State v. Bennett, W.Va., 203 S.E.2d 699 (1974); State v. Zitzelsberger, 129 W.Va. 229, 39 S.E.2d 835 (1946); State v. Myers, 118 W.Va. 397, 190 S.E. 678 (1937). Thus, the prosecution's instruction No. 4 stating that a person aiding or encouraging a principal offender may be prosecuted as such is in error. The State relies on Harrison v. Commonwealth, 210 Va. 168, 169 S.E.2d 461 (1969), which held that if offenders act in concert it is not necessary to prove which of the two actually committed the offense; however, in Virginia the prosecution is not required to elect whether it will prosecute the defendant on a charge of aiding or abetting or of being a principal in the first degree. Va.Code, 18.1-11 (1950). West Virginia, on the other hand, has always recognized and observed the distinction among criminal actors. State v. Jones, W.Va., 239 S.E.2d 763 (1977); State ex rel. Muldrew v. Boles, 151 W.Va. 1033, 159 S.E.2d 36 (1967); State v. Powers, 91 W.Va. 737, 113 S.E. 912 (1922). A principal in the second degree is an aider or abettor who is actually or constructively present during the commission of a felony, State ex...