State v. Harriston, 13933

• Decision Date: 10 April 1979
• Docket Number: No. 13933,13933
• Citation: 253 S.E.2d 685,162 W.Va. 908
• Parties: STATE of West Virginia v. Steven Charles HARRISTON.
• Court: West Virginia Supreme Court

Page 685

253 S.E.2d 685

162 W.Va. 908

STATE of West Virginia v. Steven Charles HARRISTON.

No. 13933.

Supreme Court of Appeals of West Virginia.

April 10, 1979.

Syllabus by the Court

1. "It is within the judicial discretion of the trial court to permit a witness for the state, who is familiar with the facts on which the prosecuting attorney relies to establish the guilt of the accused, to be present in court during the trial to aid him in conducting the examination of other witnesses. Point 5, syllabus, State v. Hoke, 76 W.Va. 36 (84 S.E. 1054)." Point 5, syllabus, State v. Wilson, W.Va., 207 S.E.2d 174 (1974).

2. If a state witness is excluded from sequestration he or she ordinarily should be called first to ensure, as far as possible, that the witness will not be educated by testimony of other witnesses, which, of course, is the harm sequestration seeks to prevent.

3. It is not reversible error for a trial judge, who presided at a deposition proceeding, to exclude from the reading of the report of those proceedings to the jury, his own remarks that were merely introductory to the interrogation by counsel of the deposing witness.

4. Where a trial judge questioned deposing witness at a proceeding over which he presides, and there was no objection to his inquiries at the time nor later when the testimony elicited from the witness was proposed to be read to a jury, and the questions were to clarify the witness' testimony after questioning by counsel, we will not find the questioning to be reversible error.

Brown H. Payne, Beckley, Franklin D. Cleckley, Morgantown, for petitioner.

Chauncey H. Browning, Jr., Atty. Gen., Michael G. Clagett, Asst. Atty. Gen., Charleston, for defendant.

HARSHBARGER, Justice:

After having been tried by a jury which could not agree, Steven Harriston was again tried, and convicted by a jury in the Circuit Court of Mingo County of delivery of marijuana and sentenced to one to five years in the penitentiary.

The State's evidence was that he sold a quantity of the substance to Trooper Faulknier, a state police undercover agent.

I.

Did the court err in allowing Faulknier to be excluded from witness sequestration? The government moved for sequestration of witnesses, asking at the same time that the trooper be allowed to remain and "assist the State." Defendant's objection was overruled on the basis of State v. Wilson, W.Va., 207 S.E.2d 174 (1974).

Sequestration has never been a matter of absolute right in this State. ¹ We last addressed the question in the Wilson case. There the defendant was convicted of voluntary manslaughter and appealed, contending Inter alia, that it was error for the court to exclude police officers from the sequestration of the witnesses. The pertinent Wilson Points are:

4. The question as to which witnesses may be exempt from a sequestration of witnesses ordered by the court lies within the discretion of the trial court, and unless the trial court acts arbitrarily to the prejudice of the rights of the defendant the exercise of such discretion will not be disturbed on appeal.

5. "It is within the judicial discretion of the trial court to permit a witness for the state, who is familiar with the facts on which the prosecuting attorney relies to establish the guilt of the accused, to be present in court during the trial to aid him in conducting the examination of other witnesses." Point 5, syllabus, State v. Hoke, 76 W.Va. 36 (84 S.E. 1054).

6. The rule with regard to excluding police officers from a sequestration of witnesses is that it is not error to do so if the testimony of such police officers is not crucial to the state's case and not prejudicial to the defendant.

Petitioner would have us adopt the further standard expressed in James v. State, 143 Ga.App. 696, 240 S.E.2d 149 (1977), to refine Wilson. ²

The burden of showing an exception (where the witness is needed to advise the district attorney, or where the absence of an official witness would impair the efficiency of the court) is on the state. If that burden is carried, the witness should then be sworn first in order that his testimony be taken before he has the unfair advantage of hearing the other witnesses for the state . . . (and) failure to do so or offer a sufficient reason for not doing it is reversible error. (Citations omitted) 240 S.E.2d at 150.

The State contends that one officer should be allowed to remain in the courtroom, excluded from sequestration, to assist the prosecution.

Most jurisdictions and authorities agree that sequestration of witnesses is a matter within the discretion of the trial court, ³ and is reviewable only upon a showing of abuse of that discretion or manifest injustice to the defendant. ⁴ At least one state has held that such discretion is not reviewable, ⁵ and another that where sequestration is granted and then violated, there is reversible error only upon a showing of prejudice. ⁶

The majority rule automatically excludes law enforcement officers from sequestration orders, either by statute or judicial tradition. ⁷ Grace v. State, Del.Supr., 314 A.2d 169 (1973). See also, Ratliff v. State, Fla.Dist.Ct.App., 256 So.2d 262 (1972) (police officers excluded because they are disinterested in the outcome of the case). However, some courts have specifically stated that police officers are not exempt from sequestration merely because of their position, Nickerson v. State, 22 Md.App. 660, 325 A.2d 149 (1974) and Allen v. State, Tex.Cr.App., 536 S.W.2d 364 (1976). The rule has been qualified somewhat by the Massachusetts Court in Commonwealth v. Clark, 3 Mass.App. 481, 334 N.E.2d 68 (1975) where the court approved the exemption of an investigating officer only when his presence was essential to the management of the case.

Following the majority rule, as we did in Wilson, we find that the trial court in this case did not abuse its discretion by excepting Trooper Faulknier from its sequestration order.

"The primary purpose of the rule . . . (sequestration) is to insure, as far as possible, that one witness shall not be taught, schooled or prompted by another's testimony; its application avoids an artificial harmony of testimony and may also avoid the outright manufacture of testimony." (Citations omitted) Nickerson v. State, 22 Md.App. 660, 669, 325 A.2d 149, 154 (1974).

Trooper Faulknier was the state's first witness and thereby gained no education from testimony of other state witnesses. We agree with James v. State, supra, insofar as it approves the policy of having the excepted police officer testify first. See also, United States v. Frazier, 417 F.2d 1138 (4th Cir. 1969), ⁸ Cert. denied, 397 U.S. 1013, 90 S.Ct. 1245, 25 L.Ed.2d 427 (1970). As long as the officer testifies first, there is no rationale for not excluding him from sequestration.

II.

The second issue is whether the court erred by allowing only a part of a proceeding during which was taken a deposition by a former court reporter, Mrs. Hall, to be read to the jury.

Her deposition was taken because she had physical evidence, the marijuana from petitioner's first trial, in her possession when she moved to Charlottesville, Virginia, and kept it there until the state commenced preparation for the second trial. Before she testified on chain of custody of the marijuana, the trial judge who presided at the deposition summarized his recollection of what had happened in the case prior to the deposition date. At the trial, defense counsel objected to reading only the witness' testimony without the judge's narrative.

We find no error in the trial judge's ruling that excluded from being read to the jury in his own introductory comments during the deposition proceeding. In fact, their inclusion would have, it seems to us, given inordinate weight and buttressed the deposer's testimony, and may well have been error. He was not a witness, not sworn, and his remarks were merely to "set the stage" for the proceedings and had no probative value at all.

III.

The third issue involves the authenticity of the marijuana itself. Mrs. Hall testified in her deposition that after the first trial she put the evidence in a notebook and put a rubber band around the notebook. She then put the notebook in a filing cabinet. When she was moving to Virginia, she put the notebooks from the file into cardboard boxes and she and her husband carried them to their car trunk and locked it. She opened the trunk once to get a tool box on the way to Virginia but closed and locked it again immediately. The boxes remained in the trunk with the car parked on a street for approximately three days before she and her husband carried them into their new house. She unpacked them and put them in a new file cabinet to which she had the only key. While the boxes were in the trunk of the car, her husband also had keys to the trunk, but she had specifically instructed him not to open it. She testified that when she got the exhibit ready to mail for trial, it was in the same condition that she left it. Mr. Maynard, the prosecuting attorney, testified as to what happened to the marijuana after he received it from Mrs. Hall by certified mail.

We find the chain adequately proved by the State. State v. Johnson, W.Va., 201 S.E.2d 309 (1973).

IV.

The fourth question is whether the court assumed the role of prosecutor in questioning Mrs. Hall during her deposition. State v. Perkins, 130 W.Va. 708, 45 S.E.2d 17 (1947) deals with this question.

We have reviewed this record, including the portion of the deposition by Mrs. Hall that defendant complains about. At the In camera hearing during which the mechanics were decided upon for introducing the deposition, and objections were made by defense counsel to those portions of the deposition proceedings record that he deemed should or should not be read, he wanted the entire deposition read, as he argues in his second assignment of error here. No objection at all was made then to including in that part...