State v. Holland

• Decision Date: 15 July 1987
• Docket Number: No. 17320,17320
• Citation: 364 S.E.2d 535,178 W.Va. 744
• Parties: STATE of West Virginia v. James F. HOLLAND.
• Court: West Virginia Supreme Court

Page 535

364 S.E.2d 535

178 W.Va. 744

STATE of West Virginia v. James F. HOLLAND.

No. 17320.

Supreme Court of Appeals of

West Virginia.

July 15, 1987.

Petition for Rehearing Aug. 3, 1987.

Rehearing Denied Nov. 10, 1987.

Syllabus by the Court

1. "A judgment of conviction will not be reversed because of improper remarks made by a prosecuting attorney in his opening statement to a jury which do not clearly prejudice the accused or result in manifest injustice." Syllabus Point 1, State v. Dunn, 162 W.Va. 63, 246 S.E.2d 245 (1978).

2. "A motion for a new trial on the ground of the misconduct of a jury is addressed to the sound discretion of the court, which as a rule will not be disturbed on appeal where it appears that defendant was not injured by the misconduct or influence complained of." Syllabus Point 7, in part, State v. Johnson, 111 W.Va. 653, 164 S.E. 31 (1932).

3. "In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done." Syllabus Point 1, State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978).

David Johnson, Asst. Atty. Gen., for appellant.

Richard H. Brumbaugh, Gerald M. Titus, Jr., Brumbaugh & Titus, Spencer, for appellee.

PER CURIAM:

The defendant, James F. Holland, was arrested on November 27, 1984 and charged with driving under the influence of alcohol, second offense. He was tried in magistrate court without a jury and was convicted and sentenced to eight months in jail. The defendant appealed his conviction to the Circuit Court of Calhoun County under W.Va.Code, 50-5-13 [1984]. On September 18, 1985, he was convicted by a jury of first offense driving under the influence of alcohol and was sentenced to sixty (60) days in the county jail and fined $100.

The defendant was arrested after he was involved in a single-car accident on U.S. Route 33 in Millstone, West Virginia. The investigating officer, Trooper Charles McDonald, testified that when he arrived at the scene of the accident the defendant and his wife were lying on the ground wrapped in blankets. When he asked who was driving the car the defendant responded affirmatively. Trooper McDonald testified that there was a strong odor of alcohol about the defendant. In addition, he noticed that the defendant's speech was slurred and his eyes were glassy. Trooper McDonald testified that it was "quite obvious" the defendant was under the influence of alcohol.

Shortly after the accident, the defendant and his wife were transported to Roane General Hospital. At the hospital Trooper Gary Williams asked Mrs. Holland what happened. He was interrupted by the defendant who told the trooper that he, not his wife, was driving the car. Trooper Williams testified that as he moved closer to the defendant he noticed a strong odor of alcohol. In addition, the defendant's speech was loud and boisterous, his face was flushed and he looked "quite intoxicated."

The State's remaining evidence was from two eyewitnesses to the accident, neither of whom saw who was driving the car and from Trooper Phillip Lantz who testified that the defendant was the same person he arrested and charged with driving under the influence of alcohol in 1981.

The defendant testified that he had been in an establishment known as the Millstone Inn just before the accident and that he had been there since morning and had had "a lot" to drink. He denied, however, that he was driving the car when the accident occurred. He testified that his wife had picked him up at the Millstone Inn because he had been drinking and was driving him home when the accident occurred. ¹ The defendant did not deny telling Trooper McDonald that he was the driver of the automobile. He testified that he made the statement even though it was false to protect his wife who had no driver's license. Mrs. Holland substantiated the defendant's story that she was driving the car. In addition, Michael Goodrich testified that the defendant and his wife gave him a ride from the Millstone Inn to his car on the night of the accident and Mrs. Holland was driving the car.

The defendant contends that the court erred in allowing the prosecuting attorney to comment upon his refusal to take a breathalyzer test. The comment was made during the State's opening statement when the prosecutor told the jury that there would be no scientific evidence presented: "There will be no evidence of any breathalyzer test. There will be no evidence of any blood test or any urine analysis or anything of that nature." The prosecutor informed the jury that the State's case would, instead, be based upon testimony of the defendant's appearance, manner and statements. He continued: "There will also, we anticipate, be evidence of the defendant's refusal to take a test such as I've just enumerated to ..." The defendant objected to this last comment and moved for a judgment of acquittal or in the alternative, for a mistrial. The court overruled the defendant's motions.

In syllabus point 1 of State v. Adams, 162 W.Va. 150, 247 S.E.2d 475 (1978), we stated that "[a] criminal defendant's refusal to take tests to determine his state of intoxication per W.Va.Code, 17C-5A-1 cannot be commented upon or introduced into evidence by the state at his trial for driving while intoxicated." Were State v. Adams still the law, clearly the defendant would prevail on this point. However, in State v. Cozart, 177 W.Va. 400, 352 S.E.2d 152, 157 (1986), we reconsidered our holding in Adams and held that "in certain circumstances, evidence of a defendant's refusal to take a breathalyzer test will be admissible in a criminal trial for driving under the influence of alcohol as evidence of the defendant's guilty conscience or knowledge...."

The defendant argues that our holding in State v. Cozart, supra, should not be applied to the instant case because he did not receive the benefit of the procedural protections set out in Cozart. ² In addition, he contends that the effect of a remark made during opening statements informing the jury of a defendant's refusal to take a breathalyzer is more pronounced than when the jury hears the information from a testifying witness as was the case in both Cozart and Adams.

Whether evidence of the defendant's refusal to take a breathalyzer test would have been admissible under the principles of State v. Cozart is not at issue. Here, there was no refusal evidence; there was a comment made by a prosecuting attorney in his opening statement and he prefaced his remarks by telling the jury that nothing he was about to say was to be construed or taken as evidence.

This case should be judged by the well-settled law pertaining to opening statements by prosecuting attorneys. That law was set forth in syllabus point 1 of State v. Dunn, 162 W.Va. 63, 246 S.E.2d 245 (1978), where we stated:

A judgment of conviction will not be reversed because of improper remarks made by a prosecuting attorney in his opening statement to a jury which do not clearly prejudice the accused or result in manifest injustice.

Although the prosecutor's comment may have been improper because the defendant was not afforded the procedural protections in Cozart, we cannot say that the defendant was clearly prejudiced by it or that it resulted in manifest injustice to him. The trial court found that any error as a result of the prosecutor's statement was harmless error. We must agree. The State produced two witnesses who testified that the defendant was intoxicated on the night of the accident, and by the defendant's own admission, he had had "a lot" to drink. The principal issue at trial centered on who was driving the car, not on whether the defendant was intoxicated. Under the circumstances, and in the absence of a showing of prejudice or manifest injustice, the verdict will not be set aside on this basis.

The defendant also contends that the court erred in allowing the State to introduce evidence that he was convicted in 1981 for driving under the influence of alcohol. The defendant complains of the evidence on the grounds that the State failed to provide him with certain exhibits relating to that offense which were introduced into evidence, and the State failed to disclose that Trooper Phillip Lantz, the arresting officer in the defendant's 1981 conviction, would be called as a witness to testify about the prior conviction.

The defendant was charged with second offense driving under the influence of alcohol. He was informed of the charge and should have known that the State would present proof of his prior conviction. In point of fact, the only document admitted into evidence concerning the 1981 conviction was the final judgment order and Trooper Lantz testified only about the prior arrest. Under the circumstances, we fail to see how non-disclosure of such evidence hampered the preparation or presentation of defendant's case. More importantly, the defendant was not convicted of second offense driving under the influence of alcohol. Since the challenged evidence went only to the second offense issue, if there was error at all, it was harmless error. We have held that "[a] verdict of guilty in a criminal case will not be reversed by this Court because of error committed by the trial court, unless the error is prejudicial to the accused." Syl. pt. 2, State v. Blaney, 168 W.Va. 462, 284 S.E.2d 920 (1981).

The defendant contends that the trial court erred by admitting into evidence two statements made by the defendant before he was advised of his Miranda rights. When Trooper McDonald arrived at the scene of...