State v. Judy

• Decision Date: 22 July 1988
• Docket Number: No. 17268,17268
• Citation: 179 W.Va. 734,372 S.E.2d 796
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Kenneth B. JUDY.

Page 796

372 S.E.2d 796

179 W.Va. 734

STATE of West Virginia v. Kenneth B. JUDY.

No. 17268.

Supreme Court of Appeals of

West Virginia.

July 22, 1988.

Rehearing Denied Sept. 22, 1988.

Syllabus by the Court

1. "The double jeopardy clause of the Fifth Amendment prohibits the prosecution of a single conspiracy as two or more conspiracies under a general conspiracy statute merely because two separate substantive crimes have been committed." Syllabus Point 7, State v. Johnson, --- W.Va. ---, 371 S.E.2d 340 (88).

2. "The following factors are normally considered under a totality of circumstances test to determine whether one or two conspiracies are involved: (1) time; (2) persons acting as co-conspirators; (3) the statutory offenses charged in the indictments; (4) the overt acts charged by the government or any other description of the offenses charged which indicate the nature and the scope of the activity which the government sought to punish in each case; and (5) places where the events alleged as part of the conspiracy took place. These factors are guidelines only. The essence of the determination is whether there is one agreement to commit two crimes, or more than one agreement, each with a separate object." Syllabus Point 8, State v. Johnson, 179 W.Va. 619, 371 S.E.2d 340 (88).

3. "Volunteered admissions by a defendant are not inadmissible because the procedural safeguards of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) were not followed, unless the defendant was both in custody and being interrogated at the time the admission was uttered." Syllabus Point 2, State v. Rowe, 163 W.Va. 593, 259 S.E.2d 26 (1979).

4. " 'The delay in taking a defendant to a magistrate may be a critical factor [in the totality of circumstances making a confession involuntary and hence inadmissible] where it appears that the primary purpose of the delay was to obtain a confession from the defendant.' Syllabus Point 6, State v. Persinger, 169 W.Va., 121 286 S.E.2d 261 (1982), as amended." Syllabus Point 1, State v. Guthrie, 173 W.Va. 290, 315 S.E.2d 397 (1984).

5. " 'The granting of a continuance is a matter within the sound discretion of the trial court, though subject to review, and the refusal thereof is not ground for reversal unless it is made to appear that the court abused its discretion, and that its refusal has worked injury and prejudice to the rights of the party in whose behalf the motion was made.' Syl. pt. 1, State v. Jones, 84 W.Va. 85, 99 S.E. 271 (1919)." Syllabus Point 1, State v. Davis, 176 W.Va. 454, 345 S.E.2d 549 (1986).

6. "[W]here there has been either a joinder of separate offenses in the same indictment or the consolidation of separate indictments for the purpose of holding a single trial, the question of whether to grant a motion for severance rests in the sound discretion of the trial court." Syllabus Point 6, in part, State v. Mitter, 168 W.Va. 531, 285 S.E.2d 376 (1981).

7. "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 (1979).

Larry Garrett, Karen L. Garrett, Garrett & Garrett, Moorefield, for Judy.

Atty. Gen., Mary Beth Kershner, Asst. Atty. Gen., Charleston, for the State.

PER CURIAM:

Kenneth B. Judy appeals his conviction by a jury in the Circuit Court of Pendleton County for burglary, grand larceny, breaking and entering, petty larceny, and four counts of conspiracy. ¹ He raises numerous assignments of error on appeal. We affirm in part, reverse in part, and remand for resentencing.

I.

On March 14, 1985, in the early afternoon, Calvin and Helen Borror's home was burglarized. Approximately $19,000 was taken from a safe located in the home. Joseph Hanson, Wesley Eye, Steve Eckard, and the defendant were charged with burglary and grand larceny and conspiracy to commit each of these offenses. Mr. Hanson and Mr. Eye entered the Borror dwelling while Mr. Eckard waited in their car. The defendant allegedly acted as a lookout. He lived across the road from the Borror's country store, located four miles from their home. While the others committed the burglary, the defendant watched the store to alert them if the Borrors left the store.

When questioned about the Borror burglary, Mr. Hanson informed the State police that he, Mr. Eckard, and the defendant had entered the Weaver Cabinet Shop on the night they planned the Borror burglary and had taken two light bulbs for a dusk-to-dawn light. Mr. Hanson said that the trio had entered the shop in response to the defendant's suggestion to look for cabinets.

The July, 1985 indictment included counts for breaking and entering the Weaver Cabinet Shop, petty larceny, conspiracy to commit these substantive offenses, and conspiracy to commit grand larceny, for the plan to take cabinets. The defendant was tried on the Borror and Weaver charges in the same proceeding. The co-conspirators were tried separately.

II.

The defendant first contends his four conspiracy convictions violate well settled double jeopardy principles. ² We recently addressed this issue in State v. Johnson, 179 W.Va. 619, 371 S.E.2d 340 (1988). There, the defendant and a friend planned a break-in at a market owned by the friend's family. While the defendant waited in a car, the friend entered the market and stole approximately $500 from the cash drawer. The defendant was convicted of breaking and entering, larceny, and two conspiracies. We determined that the defendant had entered into only one conspiracy, and reversed one of the conspiracy convictions. We stated the general rule in Syllabus Point 7:

"The double jeopardy clause of the Fifth Amendment prohibits the prosecution of a single conspiracy as two or more conspiracies under a general conspiracy statute merely because two separate substantive crimes have been committed."

Whether there is one conspiracy, or multiple conspiracies, is a question of fact to be determined under the totality of the circumstances. We summarized in Syllabus Point 8 of Johnson the appropriate factors to be considered:

"The following factors are normally considered under a totality of circumstances test to determine whether one or two conspiracies are involved: (1) time; (2) persons acting as co-conspirators; (3) the statutory offenses charged in the indictments; (4) the overt acts charged by the government or any other description of the offenses charged which indicate the nature and the scope of the activity which the government sought to punish in each case; and (5) places where the events alleged as part of the conspiracy took place. These factors are guidelines only. The essence of the determination is whether there is one agreement to commit two crimes, or more than one agreement, each with a separate object."

We conclude as a matter of law that the defendant's multiple conspiracy convictions were improper under Johnson. There were at most two conspiracies--a conspiracy to commit the Borror break-in and the conspiracy to commit the Weaver break-in. While the break-ins involved the commission of two or more crimes, each sprung from one conspiracy.

Applying the Johnson factors, we note that the preparatory discussions for each break-in occurred at one time and place and involved the same conspirators. Moreover, the "overt acts" in furtherance of the conspiracies were identical to the substantive crimes for which the defendant was indicted. We thus hold that, consistent with double jeopardy principles, the defendant could be convicted of only two conspiracies. We reverse the remainder of the defendant's conspiracy convictions, and remand the case with directions to resentence the defendant.

III.

The defendant also cites as error the admission into evidence of the deposition of Mr. Hanson. On the first day of trial, the State called Mr. Hanson to testify. When he did not appear, the State moved to admit his pretrial deposition under Rule 804(b)(1), W.Va.R.Evid., ³ and represented that Mr. Hanson was unavailable to testify. It is the defendant's position that Mr. Hanson was not "unavailable," as the State did not undertake reasonable measures to secure his attendance at trial.

The confrontation clause of the Sixth Amendment requires that "the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant." Ohio v. Roberts, 448 U.S. 56, 65, 100 S.Ct. 2531, 2538, 65 L.Ed.2d 597, 607 (1980). As Roberts went on to explain: "[A] witness is not 'unavailable' for purposes of the ... exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial." 448 U.S. at 74, 100 S.Ct. at 2543, 65 L.Ed.2d at 613. (Citations omitted; emphasis in original).

This constitutional mandate is codified in Rule 804(a)(5), W.Va.R.Evid., which provides, in part: " 'Unavailability as a witness' includes situations in which the declarant ... is absent from the hearing and the proponent of his statement has been unable to procure his attendance ... by process or other reasonable means." The requirement that the State reasonably attempt to produce a hearsay declarant is consistent with our prior case law. State v. R.H., 166 W.Va. 280, 273 S.E.2d 578 (1980); State v. Sauls, 97 W.Va. 184, 124 S.E. 670 (1924).

We believe the record strongly supports the conclusion that the State's efforts to secure Mr. Hanson's attendance at trial were reasonable. First, Mr....