State v. Maynard

• Decision Date: 30 March 1990
• Docket Number: No. 19135,19135
• Citation: 393 S.E.2d 221,183 W.Va. 1
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. John R. MAYNARD.

Page 221

393 S.E.2d 221

183 W.Va. 1

STATE of West Virginia v. John R. MAYNARD.

No. 19135.

Supreme Court of Appeals of

West Virginia.

March 30, 1990.

Syllabus by the Court

1. Generally, out-of-court statements made by someone other than the declarant while testifying are not admissible unless: 1) the statement is not being offered for the truth of the matter asserted, but for some other purpose such as motive, intent, state-of-mind, identification or reasonableness of the party's action; 2) the statement is not hearsay under the rules; or 3) the statement is hearsay but falls within an exception provided for in the rules.

2. " 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." W.Va.R.Evid. 401.

3. " 'Where improper evidence of a nonconstitutional nature is introduced by the State in a criminal trial, the test to determine if the error is harmless is: (1) the inadmissible evidence must be removed from the State's case and a determination made as to whether the remaining evidence is sufficient to convince impartial minds of the defendant's guilt beyond a reasonable doubt; (2) if the remaining evidence is found to be insufficient, the error is not harmless; (3) if the remaining evidence is sufficient to support the conviction, an analysis must then be made to determine whether the error had any prejudicial effect on the jury.' Syllabus Point 2, State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979), cert denied, 445 U.S. 904, 100 S.Ct. 1081, 63 L.E.2d 320 (1980)." Syl. Pt. 6, State v. Smith, 178 W.Va. 104, 358 S.E.2d 188 (1987).

4. "Where the State's case is based upon the uncorroborated and uncontradicted identification testimony of a prosecuting witness, it is error not to instruct the jury upon request that, if they believe from the evidence in the case that the crime charged against the defendant rests alone on the testimony of the prosecuting witness, then the jury should scrutinize such testimony with care and caution." Syl. Pt. 5, State v. Payne, 167 W.Va. 252, 280 S.E.2d 72 (1981).

5. " 'Instructions that are repetitious or are not supported by the evidence should not be given to the jury by the trial court.' Syllabus Point 7, State v. Cokeley, W.Va. , 226 S.E.2d 40 (1976)." Syl. Pt. 6, State v. Meadows, 172 W.Va. 24, 304 S.E.2d 831 (1983).

G. Patrick Jacobs, Bickley, Jacobs & Barkus, Charleston, for John R. Maynard.

Roger Tompkins, Atty. Gen., Joanna Tabit, Asst. Atty. Gen., Charleston, for State of W.Va.

WORKMAN, Justice:

This case is before the Court upon the appeal of John R. Maynard. It arises from a December 4, 1987 jury verdict in Kanawha County, in which the defendant was found guilty of aggravated robbery by use of a firearm of the Village Chevron located in the Kanawha City area of Charleston, West Virginia. The defendant raises three assignments of error: (1) the trial court committed reversible and prejudicial error by allowing Detectives Young and Lanham to testify concerning an anonymous phone call which implicated John Maynard in the robbery of the Village Chevron on December 10, 1986; (2) the trial court committed reversible and prejudicial error by refusing to give two instructions offered by the defendant regarding the identification of the assailant by the victim when said identification was the key issue in the trial; and (3) the trial court committed reversible and prejudicial error by refusing to give an instruction offered by the defendant regarding a situation in which two inferences, both equally plausible, could have been drawn from the evidence in the case. We find that the lower court committed no reversible error in its rulings pertaining to the above-mentioned assignments and therefore affirm the defendant's conviction.

On December 10, 1986, at approximately 9:30 p.m. Sandra Rambaugh was working at the Village Chevron, a convenience store, when a man walked up to the counter where she was counting change and demanded money while brandishing a handgun. The victim described the man as a white male, approximately six feet tall and thin, weighing about one hundred and fifty to one hundred and sixty pounds. She also testified that he was very pale with a very pointed face, a prominent Adam's apple, blue eyes and blonde or light-colored hair. Rambaugh further described him as having a mustache and that his teeth were misaligned, crooked or "sort of pointed."

After taking $173.00, the man disappeared on foot. The money was never recovered. The police appeared on the scene almost immediately after Rambaugh's call for help.

Subsequently, an anonymous phone caller contacted a Charleston Police Department detective and implicated the defendant in the robbery of the convenience store. Based on the phone call, a photograph of the defendant was placed in a book of photographs containing the pictures of ninety-two other white males. This book was shown to Rambaugh who immediately identified the defendant as the robber. Later, she was shown a second photographic array of six white males which contained a more recent photograph of the defendant. The victim again identified the defendant's photograph as the man who committed the robbery. ¹

Other evidence presented at trial against the defendant consisted of footprint photographs which were discovered at the crime scene and clothing and work boots found on the defendant upon his arrest.

The defendant introduced evidence, including his own testimony, which attempted to establish that he was attending a party with his sister, her boyfriend and his brother at the time of the robbery. The defendant's attorney on cross-examination further attacked the description given by Rambaugh of the culprit at both the suppression hearing and in court during the trial. ² Finally, the defendant stressed through his own testimony and through witnesses called in his behalf, what he considered to be major characteristics which the victim should have noticed but didn't, including the partial dental plate, tatoos and an earring.

I.

The defendant's first assignment of error regards the testimony of two detectives concerning an anonymous phone call. ³ At trial, both Detectives Lanham and Young were permitted to testify that Detective Lanham had received an anonymous phone call from an elderly lady who implicated the defendant in the Village Chevron robbery. ⁴ The trial court held that:

the rules permit as far as hearsay evidence, sufficient hearsay to show motive as to why a party acted as he did. That's perfectly proper under those rules of evidence. I'm excluding details that would buttress and enhance the believability of any hearsay statement and limiting the hearsay to the mere fact that the call came in, a call came implicating--a call came in that implicated the defendant.

The appellant contends that the statements concerning the anonymous phone call are hearsay and fail to fall within any exception to that rule. Additionally, appellant asserts that not only was the testimony concerning the call highly prejudicial and irrelevant, but also there was no way to cross-examine an anonymous phone caller. The state contends that the trial court properly allowed testimony of the police officers regarding the anonymous phone call to be introduced in evidence since the testimony was not being offered for the truth of the matter asserted, but for the limited purpose of showing a motive for the officers' conduct in including the defendant's picture in the book of photographs shown to the victim.

Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." W.Va.R.Evid. 801(c). Generally, out-of-court statements made by someone other than the declarant while testifying are not admissible ⁵ unless: 1) the statement is not being offered for the truth of the matter asserted, but for some other purpose such as motive, intent, state-of-mind, identification or reasonableness of the parties action ⁶; 2) the statement is not hearsay under the rules ⁷; or 3) the statement is hearsay but falls within an exception provided for in the rules. See W.Va.R.Evid. 803 & 804.

In the present case, the rationale for permitting the officers to testify is that the anonymous phone caller's statement implicating the defendant was necessary to show the motive or reasonableness of the police officers' actions in including the defendant's photograph in the group shown to the victim. In other words, the statement is not hearsay since it is not being offered for the truth of the matter asserted. This application is not unlike that found in the case of State v. Paun, 109 W.Va. 606, 155 S.E. 656 (1930). In Paun, the defendant was convicted of unlawfully selling liquor. The defendant sold the liquor to a deputy sheriff in a pool room owned by the defendant. The deputy testified that he attempted to purchase whiskey from the defendant after being informed that the liquor was being sold at the pool room. 155 S.E. at 657. This Court held that "[t]he hearsay rule excludes such testimony only when offered 'as evidence of the truth of the matter asserted'; and does not operate against such testimony offered for the mere purpose of explaining previous conduct." Id. (citing 16 C.J. Criminal Law § 1233); see also State v. Corbin, 117 W.Va. 241, 186 S.E. 179 (1936).

There are basically two problems involved when attempting to successfully argue that the anonymous phone caller's information regarding the defendant is not hearsay. First, in analyzing Officer Young's testimony there is a potential hearsay within hearsay problem. ⁸ Specifically Young testified in response to questioning by the prosecutor regarding how Maynard became a suspect as follows:

Q: After talking with Mrs. Rambaugh on the 11th day of...