State v. Goodmon

• Decision Date: 18 December 1981
• Docket Number: No. 14989,14989
• Citation: 290 S.E.2d 260,170 W.Va. 123
• Parties: STATE of West Virginia v. Roundtree Riley GOODMON.
• Court: West Virginia Supreme Court

Page 260

290 S.E.2d 260

170 W.Va. 123

STATE of West Virginia v. Roundtree Riley GOODMON.

No. 14989.

Supreme Court of Appeals of West Virginia.

Dec. 18, 1981.

[170 W.Va. 124] Syllabus by the Court

1. "A change of venue will be granted in West Virginia when it is shown that there is 'a present hostile sentiment against an accused, extending throughout the entire county in which he is brought to trial....' Syl. pt. 1, State v. Siers, 103 W.Va. 30, 136 S.E. 503 (1927)." Syl. pt. 1, State v. Peacher, 167 W.Va. 540, 280 S.E.2d 559 (1981).

2. "It is a well-established rule of appellate review in this state that a trial court has wide discretion in regard to the admissibility of confessions and ordinarily this discretion will not be disturbed on review. Syl. pt. 2, State v. Vance, 162 W.Va. 467, 250 S.E.2d 146 (1978).

3. "A trial court's decision regarding the voluntariness of a confession will not be disturbed unless it is plainly wrong or clearly against the weight of the evidence." Syl. pt. 3, State v. Vance, 162 W.Va. 467, 250 S.E.2d 146 (1978).

4. 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[170 W.Va. 125] is inadmissible as evidence in the State's case in chief.

5. "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 interests, unless no reasonably qualified defense attorney would have so acted in the defense of an accused." Syl.pt. 21, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).

James E. Spurlock, Huntington, for appellant.

Chauncey H. Browning, Jr., Atty. Gen., Marianne K. Hoover, Asst. Atty. Gen., Charleston, for appellee.

McHUGH, Justice:

The case is before this Court on an appeal from an order of the Circuit Court of Lincoln County, entered on May 22, 1979, sentencing the defendant, Roundtree Riley Goodmon, to life without mercy in the West Virginia State Penitentiary at Moundsville. That order also denied the defendant's motion to set aside the verdict and award him a new trial. The defendant was convicted of the crime of first degree murder of Anna Lee White. Mrs. White was murdered in the kitchen of her home in Leet, West Virginia, on January 11, 1979. She was stabbed ten times in the head, neck, chest and back. She was also shot once in the head with a .22 caliber pistol.

On this appeal the defendant assigns and argues four errors: (1) the trial judge's denial of a motion for a change of venue; (2) the trial judge's denial of a motion to suppress one confession and the trial judge's admission of two other confessions for purposes of impeachment; (3) the trial judge's denial of a motion to suppress the knife allegedly used in the slaying; and (4) counsel appointed at trial did not render effective assistance. ¹

I CHANGE OF VENUE

The defendant argues that the trial judge erred in denying his motion for a change of venue. In support of that argument the defendant points to two similarities between Widespread pre-trial publicity is not enough, by itself, to justify a change of venue. State v. Hamric, 151 W.Va. 1, 151 S.E.2d 252 (1966). "A change of venue will be granted in West Virginia when it is shown that there is 'a present hostile sentiment against an accused, extending throughout the entire county in which he is brought to trial....' Syl. pt. 1, State v. Siers, 103 W.Va. 30, 136 S.E. 503 (1927)." Syl. pt. 1, State v. Peacher, 167 W.Va. 540, 280 S.E.2d 559 (1981). The burden is on the defendant to show that there is such prejudice against him that he cannot receive a fair trial in the county where venue originally lies. State v. Wilson, 157 W.Va. 566, 202 S.E.2d 828 (1974); State v. Riley, 151 W.Va. 364, 151 S.E.2d 308 (1966). The defendant in the case before us did not meet that burden. The trial judge, therefore, did not abuse his discretion when he denied the defendant's motion for a change of venue. See State v. Dandy, 151 W.Va. 547, 153 S.E.2d 507 (1967).

                his case and State v. Sette, 161 W.Va. 384, 242 S.E.2d 464 (1978)--widespread pre-trial publicity and the sexual nature of the crime.  In Sette, the defendant was accused of having his mistress murder his wife.  In the case before us the defendant was accused of murdering his girlfriend's sister after she rejected his sexual advances.  The defendant, however, ignores a crucial distinction between his case and State v. Sette, supra.   In Sette nearly fifty percent of the persons summoned for jury duty had formed a conclusion about the case.  In the case presently before us only one juror expressed doubt about her ability to fairly decide the case on the evidence presented at trial.  She was immediately excused
                

II THE CONFESSIONS

The police first talked to Roundtree Riley Goodmon on January 17, 1979. At that time the defendant volunteered to take a polygraph test and to answer further questions. Troopers B. R. Lester and D. M. Ratliff went to the defendant's home at 6:30 p. m. on the evening of January 19, 1979. The defendant voluntarily accompanied the troopers to the State Police barracks in Hamlin. Upon their arrival at the barracks, the troopers left the defendant alone in one of the offices while they questioned another witness. At 9:00 p. m. Trooper Lester came out of the office where he was questioning the other witness and advised the defendant of his rights. He read from the Miranda form to the defendant and then gave him the form to read himself. The defendant told Trooper Lester that he understood his rights and signed a waiver form.

Troopers Lester and Ratliff started questioning the defendant at midnight. Sometime between 2:00 a. m. and 3:00 a. m. on the morning of January 20, 1979, the defendant asked to be allowed to talk to his girlfriend. The troopers complied with the request and placed a long distance telephone call. In the course of that telephone call the defendant confessed to his girlfriend, in the presence of the troopers, that he had killed her sister, Anna Lee White.

At approximately 3:10 a. m. the troopers began to take a written confession from the defendant. Very shortly after they began the written statement the defendant asked to be taken to see his girlfriend. The troopers acceded to his request and left the Hamlin barracks at 3:35 a. m. They proceeded to the home the defendant shared with his girlfriend in Chapmanville. Once they arrived at the home the defendant pointed out the spot where he had buried the knife with which he had stabbed Anna Lee White. The troopers recovered the knife. In the presence of the troopers, the defendant was then allowed to talk to his girlfriend in the back of the trooper's cruiser. He again confessed to the murder.

On their way back to Hamlin the defendant asked the troopers to stop at a bridge in Danville. The defendant said he had thrown the gun with which he shot Anna Lee White into the river from the bridge. Upon their arrival back in Hamlin the troopers finished transcribing the defendant's statement. The defendant signed the On January 21, 1979, Troopers Lester and Ratliff questioned the defendant at the Cabell County jail. He again signed a waiver form and the troopers took a second written statement which the defendant signed. They also taped their interview with him.

statement at 8:05 a. m. At 9:00 a. m. the defendant was arraigned before a magistrate. He requested, at that time, that a lawyer be appointed for him. After the arraignment the defendant was taken to the Cabell County jail.

The trial judge held a hearing on the defendant's motion to suppress the confessions on March 14, 1979. The trial judge, at that time, reserved ruling on the question. On May 7, 1979, the first day of the defendant's trial, the trial judge ruled that the two written statements and the tape recorded statement had been made knowingly, intelligently and voluntarily. He ruled that the two written statements were admissible. He reserved ruling on the admissibility of the tape recorded statement.

On May 10, 1979, the trial judge heard argument of counsel on whether the tape recorded statement was admissible. At the close of the argument he held the tape recorded statement to be admissible.

On the following day, May 11, 1979, the trial judge, the defense attorney, and the prosecutor discovered for the first time that the defendant, when he was arraigned on January 20, 1979, had requested that a lawyer be appointed for him. Upon making that discovery, the prosecutor stated that he no longer intended to introduce the second written statement and the tape recorded statement into evidence. Because there had been testimony about the fact that these statements had been made, the defense requested an instruction to the jury explaining why the second written confession and the tape recorded statement were not being introduced into evidence. ² The trial judge indicated that he would give such an instruction. The first written confession was admitted into evidence during the State's case in chief.

The defendant testified on his own behalf on May 14, 1979. On direct examination he was asked about the second written confession and the tape recorded statement. He testified that the statements were made under duress. ³

On redirect examination of the defendant, the following exchange occurred Q. I asked you today, earlier this morning, where you were on January 11?

A. Right.

Q. And you answered me, is that true?

A. That's true.

Q. On the 17th, when the police asked you, did you answer?

A. The same way I did this morning.

Q. And...