State v. James Edward S.

• Decision Date: 12 December 1990
• Docket Number: No. 19577,19577
• Citation: 184 W.Va. 408,400 S.E.2d 843
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. JAMES EDWARD S.

Page 843

400 S.E.2d 843

184 W.Va. 408

STATE of West Virginia v. JAMES EDWARD S.

No. 19577.

Supreme Court of Appeals of West Virginia.

Dec. 12, 1990.

[184 W.Va. 409] Syllabus by the Court

1. The Confrontation Clause contained in the Sixth Amendment to the United States Constitution provides: "In all criminal prosecutions, the accused shall ... be confronted with the witnesses against him." This clause was made applicable to the states through the Fourteenth Amendment to the United States Constitution.

2. The two central requirements for admission of extrajudicial testimony under the Confrontation Clause contained in the Sixth Amendment to the United States Constitution are: (1) demonstrating the unavailability of the witness to testify; and (2) proving the reliability of the witness's out-of-court statement.

3. In order to satisfy its burden of showing that the witness is unavailable, the State must prove that it has made a good-faith effort to obtain the witness's attendance at trial. This showing necessarily requires substantial diligence.

4. Where there is a lack of evidence in the record demonstrating the State's good-faith efforts to secure the witness for trial, the prosecution has failed to carry its burden of proving unavailability.

5. Even though the unavailability requirement has been met, the Confrontation Clause contained in the Sixth Amendment to the United States Constitution mandates the exclusion of evidence that does not bear adequate indicia of reliability. Reliability can usually be inferred where the evidence falls within a firmly rooted hearsay exception.

6. Under the requirements of the Confrontation Clause contained in the Sixth Amendment to the United States Constitution, evidence offered under the residual hearsay exceptions contained in Rule 803(24) and Rule 804(b)(5) of the West Virginia Rules of Evidence is presumptively unreliable because it does not fall within any firmly rooted hearsay exception, and, therefore, such evidence is not admissible. If, however, the State can make a specific showing of particularized guarantees of trustworthiness, the statements may be admissible. In this regard, corroborating evidence may not be considered, and it must be found that the declarant's truthfulness is so clear that cross-examination would be of marginal utility.

7. In assessing whether a statement is reliable, a trial court must make a record to support its decision on admissibility. Where no such record is made, the reliability test has not been satisfied.

8. "A witness may be cross-examined regarding bias, prejudice or expected favor or any other fact which might affect his credibility." Syllabus Point 5, State v. Jones, 161 W.Va. 55, 239 S.E.2d 763 (1977), overruled on other grounds, State v. Petry, 166 W.Va. 153, 273 S.E.2d 346 (1980).

9. Bias is a term used in the common law of evidence to describe the relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party. Bias may be induced by a witness's like, dislike, or fear of a party, or by the witness's self-interest.

10. The requirements of Rule 613(b) of the West Virginia Rules of Evidence apply to cases where a defendant seeks to introduce extrinsic evidence of bias to impeach a witness's trial testimony. Three criteria must be met before evidence of a witness's prior statement can be admitted to contradict the denial of bias:

(1) The statement must be a prior inconsistent statement of the witness; (2) The witness must be afforded an opportunity to explain or deny having made the statement; and (3) The opposing party must be afforded an opportunity to interrogate the witness concerning the statement.

Mark D. Nigh, Philippi, for James E.S.

Roger W. Tompkins, Atty. Gen. and Constance Tsokanis, Asst. Atty. Gen., Atty. General's Office, Charleston, for the State.

MILLER, Justice:

James Edward S. ¹ was convicted by a jury in Marion County of incest in violation

                [184 W.Va. 411] of W.Va.Code, 61-8-12 (1986), 2 was sentenced to five-to-ten years of imprisonment, and was fined $5,000.  Two principal errors are asserted on appeal.  The first is that the trial court erroneously admitted hearsay evidence under Rule 803(24) of the West Virginia Rules of Evidence (W.Va.R.Evid.).  The second alleged error is that the trial court refused to permit the impeachment of a State's witness by extrinsic evidence of bias. 3  We agree that reversible error was committed on the first ground
                

I. FACTS

In March, 1987, the defendant was indicted for incest with his fourteen-year-old daughter, T.S. Specifically, T.S. contended that the defendant had sexual intercourse with her in July, 1986. The family consisted of the defendant, his wife, their two daughters, T.S. and S.S., and four sons. In 1986, the Department of Human Services (DHS) began investigating the family situation because of observations made of the two girls at school. Eventually, in January, 1987, all of the children were removed from the home.

Prior to trial, the State filed a motion to allow Nancy Riley, a social worker employed by DHS, to testify about out-of-court statements made to her by the victim's sister, S.S. The trial court conducted an in camera hearing on the motion and ruled that S.S. would have to testify on her own behalf. ⁴ Four days prior to trial, the State renewed its motion because S.S. had allegedly run away and the State was unaware of her whereabouts. The trial court reversed its earlier ruling and found: "[A] hearsay statement under the residual exception, West Virginia Rules of Evidence 803(24), presented by Nancy Riley, will be admissible, as the statement meets the requirements of said exception and the State has given adequate notice[.]" The defendant's objection to this ruling was preserved in the order. Defense counsel renewed his objection at trial when Ms. Riley testified about the hearsay statements of S.S.

At trial, Ms. Riley testified that S.S. told her that the defendant had sexually abused T.S. On appeal, the defendant contends that admission of this testimony violated Rule 803(24) and his constitutional rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution.

II. THE CONFRONTATION CLAUSE

The Confrontation Clause contained in the Sixth Amendment to the United States Constitution provides: "In all criminal prosecutions, the accused shall ... be confronted with the witnesses against him." This clause was made applicable to the states through the Fourteenth Amendment to the United States Constitution. E.g., Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). This provision creates a strong preference for live testimony; however, admission of reliable out-of-court statements are not categorically prohibited. "First, in conformance with the Framers' preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case (including cases where prior cross-examination has occurred), the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant....

[184 W.Va. 412] In Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), the United States Supreme Court explained the two central requirements for admission of extrajudicial testimony under the Confrontation Clause: (1) demonstrating the unavailability of the witness to testify; and (2) proving the reliability of the witness's out-of-court statement. ⁵

"The second aspect operates once a witness is shown to be unavailable. Reflecting its underlying purpose to augment accuracy in the factfinding process by ensuring the defendant an effective means to test adverse evidence, the Clause countenances only hearsay marked with such trustworthiness that 'there is no material departure from the reason of the general rule.' Snyder v. Massachusetts, 291 U.S. , at 107 [54 S.Ct. 330, 333, 78 L.Ed. 674 (1934) ]." 448 U.S. at 65, 100 S.Ct. at 2538-39, 65 L.Ed.2d at 607. (Citations omitted; footnote omitted).

We have applied the Sixth Amendment right of confrontation in a number of cases, most of which addressed situations where the defendant was unable to cross-examine a witness who was present at trial. See State v. Mullens, 179 W.Va. 567, 371 S.E.2d 64 (1988) (accomplice took Fifth Amendment and prosecutor read his confession); State v. Eye, 177 W.Va. 671 , 355 S.E.2d 921 (1987) (court refused to allow defendant to cross-examine a witness regarding bias). Cf. Naum v. Halbritter, 172 W.Va. 610, 309 S.E.2d 109 (1983) (dictum as to inability to use dead witness's testimony).

In several other cases, we have, without reference to the Confrontation Clause, discussed the admissibility of testimony given at a former trial or preliminary hearing where the declarant is currently unavailable to testify. See, e.g., State v. Hall, 174 W.Va. 787, 329 S.E.2d 860 (1985); State v. Jacobs, 171 W.Va. 300, 298 S.E.2d 836 (1982); ⁶ State v. Goff, 169 W.Va. 744, 289 S.E.2d 467 (1982); State v. R.H., 166 W.Va. 280, 273 S.E.2d 578 (1980), overruled on other grounds, State ex rel. Cook v. Helms, 170 W.Va. 200, 292 S.E.2d 610 (1981); State v. Dawson, 129 W.Va. 279, 40 S.E.2d 306 (1946); State v. Sauls, 97 W.Va. 184, 124 S.E. 670 (1924). ⁷ A.

Rule of Necessity

The initial showing under the Confrontation Clause of the unavailability of a witness was discussed in some detail in Ohio v. Roberts, supra. The Supreme Court held that in order to satisfy its burden of showing that the witness is unavailable, the State must prove that it has made a good-faith effort to obtain the witness's attendance at trial. This showing necessarily requires substantial diligence:

"The basic litmus of Sixth Amendment unavailability is established: '[A] witness is not "unavailable" for purposes of ......