State v. Golden

Decision Date08 November 1985
Docket NumberNo. 16240,16240
PartiesSTATE of West Virginia v. Robert Lee GOLDEN, Jr.
CourtWest Virginia Supreme Court

Syllabus by the Court

"An alleged spontaneous declaration must be evaluated in the light of the following factors: (1) The statement or declaration must relate to the main event and must explain, elucidate, or in some way characterize that event; (2) it must be a natural declaration or statement growing out of the event, and not a mere narrative of a past, completed affair; (3) it must be a statement of fact and not the mere expression of an opinion; (4) it must be a spontaneous or instructive utterance of thought, dominated or evoken by the transaction or occurrence itself, and not the product of premeditation, reflection, or design; (5) while the declaration or statement need not be coincident or contemporaneous with the event, it must be made at such time and under such circumstances as will exclude the presumption that it is the result of deliberation; and (6) it must appear that the declaration or statement was made by one who either participated in the transaction or witnessed the act or fact concerning which the declaration or statement was made." Syllabus point 2, State v. Young, --- W.Va. ---, 273 S.E.2d 592 (1980).

Douglas A. Cornelius, Bridgeport, for appellant.

Janet Frye Steele, Asst. Atty. Gen., Charleston, for appellee.

PER CURIAM:

This is an appeal from a final order of the Circuit Court of Taylor County, entered June 14, 1983, which sentenced the appellant, Robert Lee Golden, Jr., to a term of life imprisonment as an habitual criminal after he was convicted of the crime of first degree sexual abuse, a felony. We find error in the appellant's underlying conviction, and we reverse the judgment of the circuit court on that ground.

The underlying felony charge arose from an incident which allegedly occurred on November 15, 1982. The appellant had just moved into a trailer located behind the home of his maternal grandmother, Mary Haller, in Philippi, Barbour County. The complainant, the appellant's twenty-year-old first cousin, lived nearby and had spent the afternoon shopping with Mrs. Haller, who was also her maternal grandmother. 1 The appellant and the complainant had not seen each other for several years when they met at Mrs. Haller's home on that afternoon. The cousins talked together for a while at Mrs. Haller's house and visited the appellant's mother, Betty Harris, who lived across the street, before going together to the appellant's trailer. The complainant asserted that while inside the trailer, the appellant attacked her and attempted, unsuccessfully, to force her to have sexual relations with him.

It appears that no complaint was immediately filed against the appellant. In February 1983, however, the complainant was subpoenaed to testify before the Grand Jury of Barbour County, which returned an indictment charging the appellant with first degree sexual abuse. The appellant's motion for a change of venue was granted on April 12, 1983, and the proceedings were removed to Taylor County.

At the appellant's trial, which began on May 2, 1983, the complainant's testimony as to what occurred inside the trailer was not contradicted by any direct evidence. There was substantial conflict among the witnesses, however, as to the demeanor and actions of the complainant after she left the trailer. The witnesses for the State, primarily the complainant, her mother and her father, testified that the complainant was upset and crying and accused the appellant of attempting to rape her. The witnesses for the defense, namely Betty Harris, Mrs. Haller and Rose Harris, the appellant's sister-in-law, testified that the complainant was calm and even gleeful after she left the appellant's trailer and made no complaint of an assault by the appellant until much later in the evening. Relying on these conflicts in the evidence, the defense attempted to show that the complainant had fabricated the charge against the appellant.

On May 4, 1983 the jury returned a verdict finding the appellant guilty. The State subsequently filed an information alleging that the appellant had twice previously been convicted of felonies, 2 and a trial on the recidivist charge was had before a jury on June 6, 1983. The appellant was found guilty, and, by order entered June 14, 1983, the circuit court sentenced him to a term of life imprisonment.

The appellant raises numerous assignments of error relating to his prosecution on the sexual abuse charge. We are primarily concerned, however, with certain evidentiary errors alleged to have been committed by the trial court. Specifically, the court allowed the State to introduce evidence of certain extrajudicial statements which the appellant asserts should have been excluded as hearsay.

The appellant first complains of certain testimony of Irene Thompson, the complainant's mother. The evidence showed that Mrs. Thompson had telephoned her daughter at Mrs. Haller's house several times on the day in question and asked the complainant to come home. Mrs. Thompson testified that when her daughter did not arrive, she had become apprehensive and had driven to the home of Mrs. Haller. Mrs. Thompson testified that when she arrived, Rose Harris came running down the street from Betty Harris' house in an excited state, approached Mrs. Thompson and told her that the appellant had tried to rape the complainant. Rose Harris testified at trial and denied having made any such statement to Mrs. Thompson.

Defense counsel objected to the introduction of this testimony on the ground that it was inadmissible hearsay. An in camera hearing was conducted at which the State asserted that the extrajudicial statement of Rose Harris was admissible as original evidence or, in the alternative, under the spontaneous declaration exception to the hearsay rule. The trial court allowed the testimony to come in on these grounds.

Clearly, if Rose Harris' extrajudicial statement was, in fact, hearsay, it was not admissible as a spontaneous declaration.

An alleged spontaneous declaration must be evaluated in the light of the following factors: (1) The statement or declaration must relate to the main event and must explain, elucidate, or in some way characterize that event; (2) it must be a natural declaration or statement growing out of the event, and not a mere narrative of a past, completed affair; (3) it must be a statement of fact and not the mere expression of an opinion; (4) it must be a spontaneous or instructive utterance of thought, dominated or evoken by the transaction or occurrence itself, and not the product of premeditation, reflection, or design; (5) while the declaration or statement need not be coincident or contemporaneous with the event, it must be made at such time and under such circumstances as will exclude the presumption that it is the result of deliberation; and (6) it must appear that the declaration or statement was made by one who either participated in the transaction or witnessed the act or fact concerning which the declaration or statement was made. (Emphasis added.)

Syllabus point 2, State v. Young, --- W.Va. ---, 273 S.E.2d 592 (1980). See also State v. Ray, --- W.Va. ---, 298 S.E.2d 921 (1982); Bowman v. Barnes, --- W.Va. ---, 282 S.E.2d 613 (1981); Ward v. Raleigh County Park Board, 143 W.Va. 931, 105 S.E.2d 881 (1958). The extrajudicial statement at issue here cannot be viewed as a spontaneous declaration because the declarant was neither a participant in nor a witness to the alleged assault upon the complainant.

Moreover, Mrs. Thompson testified that Rose Harris was told of the alleged assault by Betty Harris who, in turn, had been told by the complainant. Consequently, the statement would constitute at least triple hearsay. The general rule is that multiple hearsay evidence is admissible into evidence only if each level of hearsay comes within a recognized exception to the exclusionary rule. See Fed.R.Evid. 805; State v. McGann, 132 Ariz. 296, 645 P.2d 811 (1982); People v. Perez, 83 Cal.App.3d 718, 148 Cal.Rptr. 90 (1978); State v. Evans, 169 N.W.2d 200 (Iowa 1969); Commonwealth v. Gil, 393 Mass. 204, 471 N.E.2d 30 (1984); State v. Reagan, 654 S.W.2d 636 (Mo.App.1983); State v. Martinez, 188 Mont. 271, 613 P.2d 974 (1980); Boyer v. State, 91 Wis.2d 647, 284 N.W.2d 30 (1979). See also W.Va.R.Evid. 805 (effective February 1, 1985). There was no evidence adduced to show that the other levels of hearsay were admissible as exceptions to the hearsay rule. Accordingly, the statement, if hearsay, was clearly inadmissible.

However, not all extrajudicial statements constitute hearsay.

Hearsay has been defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed.R.Evid. 801(c); Anderson v. United States, 417 U.S. 211, 219, 94 S.Ct. 2253, 2260, 41 L.Ed.2d 20 (1974). On the other hand, a statement is not hearsay when it is used only to prove that the prior statement was made and not used to prove the truth of that statement. (Footnote omitted)

State v. Greenlief, --- W.Va. ---, 285 S.E.2d 391, 394 (1981).

Where it becomes relevant to show that a certain statement or declaration was made, regardless of the truth or falsity of the statement or declaration itself, such proof is not hearsay and should be admitted. It is evidence of what, in some of the books, is termed a "verbal fact."

Syl.pt. 4, State v. Corbin, 117 W.Va. 241, 186 S.E.179 (1936). See also State v. Gangwer, --- W.Va. ---, 286 S.E.2d 389 (1982); Keller v. Wonn, 140 W.Va. 860, 87 S.E.2d 453 (1955).

The State contends that Rose Harris' extrajudicial statement was not offered to prove the truth of the matter asserted, but rather, to show that the statement was, in fact, made. The evidence...

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