State v. Harman
| Decision Date | 16 September 1980 |
| Docket Number | No. 14758,14758 |
| Citation | 165 W.Va. 494,270 S.E.2d 146 |
| Parties | STATE of West Virginia v. Donald Asa HARMAN. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. In a criminal case, the admissibility of testimony implicating another person as having committed the crime hinges on a determination of whether the testimony tends to directly link such person to the crime, or whether it is instead purely speculative. Consequently, where the testimony is merely that another person had a motive or opportunity or prior record of criminal behavior, the inference is too slight to be probative, and the evidence is therefore inadmissible. Where, on the other hand, the testimony provides a direct link to someone other than the defendant, its exclusion constitutes reversible error.
2. The constitutional right against self-incrimination does not extend to prevent the physical appearance of a person at trial.
3. Under the Sixth Amendment to the United States Constitution and Article III, Section 14 of the West Virginia Constitution, the defendant has a constitutional right to have compulsory process for obtaining witnesses in his favor, and disallowance of a subpoena to bring a material witness before the jury constitutes reversible error.
4. A subpoena duces tecum is available against third parties in both civil and criminal cases upon an adequate description of the material sought. Furthermore, it is necessary to show that the material is relevant to an issue in the case and that its proof is not otherwise practicably available.
5. Evidence of psychiatric disability may be introduced when it affects the credibility of a material witness' testimony in a criminal case. Before such psychiatric disorder can be shown to impeach a witness' testimony, there must be a showing that the disorder affects the credibility of the witness and that the expert has had a sufficient opportunity to make the diagnosis of psychiatric disorder.
6. Where cross-examination of a witness is directed at developing his bias or hostility against a party to the case, the party offering the witness is entitled to rehabilitate him. In this connection, the underlying reasons for the bias or hostility may be shown if they legitimately serve to rehabilitate the witness and are not simply used as a means of introducing inflammatory matter into the case.
Hugh Rogers, Kerens, for appellant.
Chauncey H. Browning, Atty. Gen., Gregory W. Bailey, Asst. Atty. Gen., Charleston, for appellee.
Donald Asa Harman was convicted in the Circuit Court of Randolph County of the offense of breaking and entering. He appeals on four grounds: (1) that he was denied the right to cross-examine the investigating officer regarding evidence that another person may have committed the offense; (2) that he was denied the right to call an alleged accomplice to the witness stand; (3) that the court refused to order the production of the psychiatric records of the State's principal witness; and (4) that the State introduced prejudicial evidence of other unrelated offenses. For the reasons set forth below, we reverse.
The breaking and entering occurred on January 17, 1978, at Teter's Grocery Store in Job, Randolph County. George Teter, the owner of the store, testified that he was awakened at 2:00 a.m. by the store burglar alarm. From his home, which is located diagonally across the road from the store, he observed a person leave the store and walk down the road.
After notifying the State Police, Mr. Teter attempted to follow the suspect. He was accompanied by his daughter and son-in-law, Lora Mae and Michael Mullenex. Along the roadside, they found two garbage bags filled with merchandise from the store. A passing automobile aroused their suspicion, and the Mullenexes pursued it in their vehicle.
After following the automobile for some distance, Michael Mullenex fired several warning shots at the vehicle. The pursued vehicle stopped and one of its two occupants stepped out and fired shots in return. The Mullenexes then abandoned their pursuit, but had noted that the vehicle was a Pontiac, approximately a 1970 model, with Ohio license number K 494 H.
Cheryl Lou Musgrave, a former girlfriend of the defendant, testified at trial that the defendant had related to her his participation in the offense shortly after its commission. She reported this information to the police department in Youngstown, Ohio, where she was then residing.
Police investigation revealed that the defendant's wife owned an automobile similar to the one observed at the scene of the offense, except that his wife's car was a Buick rather than a Pontiac, and its Ohio license number was K 494 W, which differed by one letter from the license plate reported at the scene.
The defendant countered this evidence with an alibi defense and an attempt to discredit the reliability of Cheryl Musgrave's testimony. The alibi defense was the testimony of the defendant and five witnesses to the defendant's presence in Youngstown at the time of the commission of the offense. The attack on Cheryl Musgrave's testimony consisted of eliciting a history of psychiatric illness and suggesting ill will as a motive to incriminate the defendant, based on his recent termination of their relationship and his reconciliation with his wife.
The jury returned a verdict of guilty of breaking and entering. In a subsequent recidivist proceeding, the defendant was sentenced to life imprisonment.
The defendant's first claim on appeal is that he was denied the right to cross-examine the State's investigating officer regarding evidence that another person may have committed the offense. The matter arose after the State had called a Trooper Persinger, who testified regarding his investigation at the scene of the crime and his examination of the defendant's wife's vehicle. Council for the defendant chose to defer cross-examination and to call the officer later as a witness for the defense. Upon objection from the prosecuting attorney, the trial court explained that the defense had the option of immediate cross-examination or later direct examination of the officer as a hostile witness. Defense counsel chose direct examination as a hostile witness. 1
During the presentation of the defense's case, Trooper Persinger was called as a hostile witness. The prosecuting attorney objected to treating the officer as a hostile witness without first establishing that he was, in fact, hostile.
In an in camera discussion, defense counsel withdrew his request to treat the officer as a hostile witness and offered to conduct a direct examination. The trial court then inquired into the subject matter of the intended questioning. Defense counsel explained that he intended to cover aspects of Trooper Persinger's investigation that suggested the commission of the offense by someone other than the defendant. 2 The trial court ruled that this line of inquiry was immaterial, and refused to permit Trooper Persinger to be questioned by defense counsel.
We need not resolve the issue of whether the defense attorney could cross-examine Trooper Persinger, either as a hostile witness or as his own witness. The essential claim of error lies in the trial court's decision that the line of inquiry sought to be pursued-that another person may have committed the crime-was not relevant.
The issue of the admissibility of evidence of the guilt of someone other than the defendant was recently brought before this Court in State v. Frasher, W.Va., 265 S.E.2d 43, 51(1980), where the Court stated:
We held the exclusion of testimony in Frasher to be proper because it showed only that another individual was also embezzling automobile license tax funds, but this was not inconsistent with the defendant's separate embezzlement.
On the other hand, the defense in the present case was attempting to demonstrate not that someone committed the offense in addition to the defendant, but that someone committed it instead of him. In such a situation, the admissibility of testimony implicating another person as having committed the crime hinges on a determination of whether the testimony tends to directly link such person to the crime, or whether it is instead purely speculative. Consequently, where the testimony is merely that another person had a motive or opportunity or prior record of criminal behavior, the inference is too slight to be probative, and such evidence is therefore inadmissible. E. g., People v. Romero, 593 P.2d 365 (Colo.App.1978); Brown v. United States, 409 A.2d 1093 (D.C.App.1979); Fortson v. State, 379 N.E.2d 147 (Ind.1978); State v. Williams, 575 S.W.2d 838 (Mo.App.1978); State v. Gaines, 283 N.C. 33, 194 S.E.2d 839 (1973). Where, on the other hand, the testimony provides a direct link to someone other than the defendant, its exclusion constitutes reversible error. Pettijohn v. Hall, 599 F.2d 476 (1st Cir. 1979), cert. denied, 444 U.S. 946, 100 S.Ct. 308, 62 L.Ed.2d 315; United States v. Robinson, 544 F.2d 110 (2d Cir. 1976), cert. denied, 434 U.S. 1050, 98 S.Ct. 901, 54 L.Ed.2d 803 (1978); Commonwealth v. Graziano, 368 Mass. 325, 331 N.E.2d 808 (1975); State v. Hawkins, ...
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