State v. Green

• Decision Date: 13 November 1979
• Docket Number: No. 14140,14140
• Citation: 163 W.Va. 681,260 S.E.2d 257
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. James Lee GREEN.

Page 257

260 S.E.2d 257

163 W.Va. 681

STATE of West Virginia v. James Lee GREEN.

No. 14140.

Supreme Court of Appeals of West Virginia.

Nov. 13, 1979.

Dissenting Opinion Nov. 16, 1979.

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 of false swearing, but it is impermissible to impeach his credibility through any other prior convictions." Syllabus Point 1, State v. McAboy, W.Va., 236 S.E.2d 431 (1977).

2. "Where a defendant elects to place his good character and reputation in issue at a criminal trial, prior convictions may then be introduced to impeach character and reputation." Syllabus Point 2, State v. McAboy, W.Va., 236 S.E.2d 431 (1977).

3. A grossly erroneous mis-statement by counsel or court about the areas of conduct or criminal record that a defendant can be cross-examined about if he elects to testify in his behalf, which mis-statement may be reasonably considered to have deterred him from testifying, is reversible error.

4. A conviction for rape may be had on the uncorroborated testimony of the female, and unless her testimony is inherently incredible her credibility is a question for the jury.

5. Remarks made by the State's attorney in closing argument which make specific reference to the defendant's failure to testify, constitute reversible error and defendant is entitled to a new trial.

John R. Frazier, Princeton, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., Gregory W. Bailey, Asst. Atty. Gen., Charleston, for defendant in error.

HARSHBARGER, Justice:

James Lee Green was found guilty by a Mercer County jury, of second degree sexual assault on twenty-six year old Margaret Ann McClung. Sentenced to serve five to ten years in our penitentiary, his appeal alleges: (1) the trial court erred when it told him that if he testified the State could attack his character, and then did not correct his lawyer's advice to him in the court's presence, that if he testified the State could introduce prior convictions other than for perjury or false swearing, (2) the court should have directed acquittal because of lack of evidence of guilt, (3) our sexual assault statute prohibiting a victim from being questioned about her previous sexual conduct, is unconstitutional, (4) the court should have given a defense instruction that a rape victim must exercise every means within her power to resist penetration, and (5) the State's closing argument was inflammatory.

Ms. McClung lived in Bluefield, West Virginia, where the alleged rape occurred December 12, 1976, between 7:00 and 8:00 p. m. Petitioner's co-defendant, James Stepney, occupied an apartment next to Ms. McClung's.

She testified that she knew Stepney but did not know Green, and when the two men came to her door and Green said he wanted to talk to her about his cousin, she let them in.

Once inside her apartment, Green sat in a rocking chair near her bedroom door, and Stepney sat on a couch. They asked for coffee and she served them, and shortly thereafter, Green went to her rest room which was accessible only through the bedroom. When he left the bathroom, he stopped in the bedroom and told Ms. McClung to come in, that he wanted to talk to her about his cousin.

She refused, but walked to the rocking chair. "There was a piece of soap or something on the floor, I forget now, I bent over to pick it up. And when I bent over to pick it up, Green hollered at me, and I am nervous. And he grabbed me and throwed me on the bed, and he started ripping my clothes off of me." She testified that he forcibly raped her despite her resistance, that he tore her undergarments, struck her, and choked her when she tried to reach a telephone to call police.

She testified that after Green put his clothes on, he summoned Stepney who also forcibly raped her. Green stayed in the room and again had sexual intercourse forcibly with her after Stepney returned to the living room. Then Ms. McClung ordered the men to leave and they did; but Green returned briefly, held a knife to her throat and threatened to harm her if she called police. After they left, McClung bathed, called a male friend whose name she could not recall, and later that evening he took her out to talk.

The next day after advice by other friends she reported the incident to Bluefield's city police. She was examined by a doctor at Bluefield Sanitarium. Test results were negative.

One officer testified that he noticed red marks on her neck when he first interviewed her about the event. He said the marks looked like "friction marks" but "the skin wasn't broken." Police secured her clothing worn on December 12, for possible laboratory examination; but oddly it was neither examined nor introduced into evidence.

Three persons testified for Green. A Bluefield police officer said he took a statement from the victim which was introduced. Two residents of Ms. McClung's apartment building testified that they did not remember any screaming or unusual noises coming from her apartment that evening.

I.

Green did not testify. The trial court told him that if he took the witness stand he would put his character in issue, thus allowing the State to impeach him with evidence of his bad character; and the court failed to correct his lawyer's pronouncement that evidence of other offenses could be introduced if Green testified. ¹

State v. McAboy, W.Va., 236 S.E.2d 431 (1977) applies. Its syllabus points state:

"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.

"2. Where a defendant elects to place his good character and reputation in issue at a criminal trial, prior convictions may then be introduced to impeach character and reputation."

Neither Green's attorney nor the trial judge properly informed him about the consequences of his testifying. The inaccurate information given him was certainly reversible error.

II.

Green alleges that the jury's verdict is contrary to the law and evidence basically because there was almost no corroboration of the victim's testimony about the assault and the evidence was insufficient to support his conviction.

We have not discussed corroboration since State v. Beacraft, 126 W.Va. 895, 30 S.E.2d 541 (1944), where we stated that "(A) conviction for rape may be had on the uncorroborated testimony of the female, and unless her testimony is inherently incredible, her credibility is a question for the jury." Id. at 899, 30 S.E.2d at 544.

Corroboration is not necessary in most states. We reaffirm State v. Beacraft, supra, that a forcible rape conviction is possible upon the victim's testimony alone. ²

III.

Is that portion of our sexual assault law which limits defendants from presenting evidence of a victim's previous sexual conduct, constitutional? W.Va.Code, 61-8B-12 provides:

(a) In any prosecution under this article in which the victim's lack of consent is based solely on his incapacity to consent because he was below a critical age, evidence of specific instances of the victim's sexual conduct, opinion evidence of the victim's sexual conduct and reputation evidence of the victim's sexual conduct shall not be admissible. In any other prosecution under this article, evidence of specific instances of the victim's prior sexual conduct with the defendant shall be admissible on the issue of consent: Provided, that such evidence heard first out of the presence of the jury is found by the judge to be relevant.

(b) In any prosecution under this article evidence of specific instances of the victim's sexual conduct with persons other than the defendant, opinion evidence of the victim's sexual conduct and reputation evidence of the victim's sexual conduct shall not be admissible: Provided, that such evidence shall be admissible solely for the purpose of impeaching credibility, if the victim first makes his previous sexual conduct an issue in the trial by introducing evidence with respect thereto.

Green argues that this law violates his right to confront witnesses by restricting cross-examination of his accusers; ³ that the statute is overbroad; and that the alternative to its unconstitutionality should be a case-by-case evaluation of such evidence a defendant seeks to introduce.

The argument that the trial court's interpretation of the law was unconstitutionally overbroad because Green was prevented from examining the victim about other sexual acts with him and his co-defendant has no merit. A rape victim's previous sexual conduct with other persons has very little probative value about her consent to intercourse with a particular person at a particular time. That portion of the law which prohibits such evidence is constitutional.

As to whether he was prevented from examining Ms. McClung about prior sexual relations between them, the record does not support any claim by him that there was such a relationship. At conference in chambers, defense counsel agreed with the prosecuting attorney that no evidence of prior sexual conduct would be introduced, when the prosecutor stated he would not introduce the co-defendant's statement which referred to previous voluntary sexual relations with the victim. There is no evidence that Green wanted to introduce evidence of prior sexual relations between himself and Ms. McClung.

Most rape shield statutes that have been judicially examined provide for balancing Sixth Amendment claims against a victim's privacy rights. The common vehicle to decide this balancing is an In camera hearing by the trial court. A typical statute containing this device was upheld in People v. McKenna, Colo., 585 P.2d 275, 279 (1978):

The statute provides specific means by which a defendant may make a formal offer of proof, and a full In...