State v. McAboy, 13687

• Citation: 236 S.E.2d 431,160 W.Va. 497
• Decision Date: 05 July 1977
• Docket Number: No. 13687,13687
• Court: Supreme Court of West Virginia
• Parties: STATE of West Virginia v. Jackie Lee McABOY.

Page 431

236 S.E.2d 431

160 W.Va. 497

STATE of West Virginia v. Jackie Lee McABOY.

No. 13687.

Supreme Court of Appeals of West Virginia.

July 5, 1977.

Dissenting Opinion July 15, 1977.

Syllabus by the Court

1. In the trial of a criminal case, a defendant who elects to testify may have his credibility impeached by showing prior convictions of perjury or false swearing, but it is impermissible to impeach his credibility through any other prior convictions.

2. Where a defendant elects to place his good character and reputation in issue at a criminal trial, prior convictions may then be introduced to impeach character and reputation.

Chauncey H. Browning, Jr., Atty. Gen., Fredric J. George, Deputy Atty. Gen., Charleston, for defendant in error.

Nelson, Hager & Pancake, David M. Pancake, Huntington, for plaintiff in error.

MILLER, Justice:

The defendant, Jackie Lee McAboy, appeals his second degree murder conviction and assigns as principal error that the trial court committed reversible error when it permitted the State to attempt to impeach his credibility by questioning him as to a prior felony conviction.

We agree and hold that evidence of prior convictions to impeach the credibility of a defendant in a criminal trial is henceforth not permissible, except as hereinafter noted. ¹

Originally, this Court followed the rule that prior criminal convictions could not be used to impeach the defendant's credibility when he took the witness stand. State v. Webb, 99 W.Va. 225, 128 S.E. 97 (1925); State v. White, 81 W.Va. 516, 94 S.E. 972 (1918). The rationale as given in Webb was:

"Many persons have been convicted of crimes and misdemeanors engendered by heat of passion and inconsiderate action, infirmities in human nature which are more or less prevalent in all. We can see no reason why such convictions would affect the credibility or veracity of such a person who is being tried for a subsequent and wholly unconnected offense. Undoubtedly the evidence that defendant had previously served a term in the penitentiary was prejudicial to him, and was influential in the finding of the verdict." (99 W.Va. at 230, 128 S.E. at 99)

In State v. Friedman, 124 W.Va. 4, 18 S.E.2d 653 (1942), this principle was abandoned by the Court based on a misconception of the purpose of the 1931 revision to W.Va.Code, 57-3-6. ² This revision added the words ". . . and if he so voluntarily becomes a witness he shall, as to all matters relevant to the issue, be deemed to have waived his privilege of not giving evidence against himself and shall be subject to cross-examination as any other witness; . . ."

Friedman referred to the 1931 Revisers' Note under W.Va.Code, 57-3-6, as indicating that the revision was to bring our State in line with the "better view", citing Wigmore, Evidence § 2276 (2nd ed. 1923). The Revisers' Note, however, contained no statement that the statutory revision was to change the law on impeachment of credibility by prior conviction.

Section 2276 of Wigmore did not deal with prior convictions, but related to the proper scope of cross-examination where the defendant voluntarily takes the stand. The core of the problem was whether a defendant could voluntarily take the stand, testify as to certain events, and then invoke the privilege against self-incrimination if the prosecutor sought to cross-examine as to additional facts. The question was one of waiver and Section 2276 in Wigmore dealt entirely with the extent of the waiver of the privilege against self-incrimination. It extensively surveyed the various rules evolved by the courts under statutes similar in purpose to ours, which were designed to remove the harsh common law rule that a criminal defendant could not give testimony in his own behalf.

Wigmore's view on the most appropriate rule as to waiver where the defendant voluntarily takes the stand was that:

". . . waiver extends to all matters relevant to the issue, (emphasis in the original) meaning thereby to exclude 'collateral' matters, i. e. facts merely affecting credibility; . . ." (Supra at 917-918)

Our statute before the 1931 revision simply stated that ". . . the accused shall, at his or her own request (but not otherwise) be a competent witness on such trial and examination." W.Va.Code 1923, Chapter 152, Section 19. It did not specify the extent of the waiver of the privilege against self-incrimination. The Revisers' Note under W.Va.Code, 57-3-6 (1931), after citing Wigmore, stated:

"There are several rules in the United States as to how far, if at all, an accused waives his privilege by voluntarily taking the stand. The law on this point in W.Va. is not very clear. This provision is intended to remove any doubt as to what is the W.Va. law in this respect."

Obviously, the Revisers who prepared the amendment to this particular section and the Note under it were addressing themselves to the extent that a defendant waives his constitutional privilege against self-incrimination when he voluntarily takes the witness stand. As the Revisers observed, prior to the 1931 amendment there was a question as to the extent the privilege against self-incrimination could be waived where the defendant voluntarily took the stand. In State v. Miller, 75 W.Va. 591, 84 S.E. 383 (1915), this Court stated:

"The prisoner himself was required over the objection of his attorney, to admit acts of degradation, wholly irrelevant to the issue. Since he was a party as well as a witness, we think the objection of his attorney was the equivalent of a claim of privilege on his part, and the court should have sustained the objections and excluded the questions. State v. Hill, 52 W.Va. 296, 298, 43 S.E. 160; State v. Prater, 52 W.Va. 132, 43 S.E. 230." (75 W.Va. at 594, 84 S.E. at 384)

We find it to be of some significance that W.Va.Code, 57-3-5, which authorizes convicts to give testimony, expressly provides that ". . . the fact of conviction may be shown in evidence to affect his credibility." This section was liberalized by the revision of the 1931 Code. Its predecessor precluded a convict from testifying except by leave of court and then only if he had been punished or pardoned. In the case of a perjury conviction, there was an absolute bar against his testimony. W.Va.Code 1923, Chapter 152, Section 17. ³

Had the Revisers or the Legislature truly intended to change the law on impeachment by prior conviction as it existed before 1931, language similar to that found in W.Va.Code, 57-3-5, could have been added to W.Va.Code, 57-3-6. It is also apparent that the purpose of the revision to W.Va.Code, 57-3-6, was to clarify the waiver problem and was not intended to change the law with regard to the use of prior convictions for impeachment of defendant's credibility.

While Friedman changed the law, based upon a misconception of the purpose of the revision to W.Va.Code, 57-3-6, the Court had some misgivings as to the prejudicial effect prior convictions might have upon the jury:

"Of course, the trial judge, if requested to do so, should inform the jury that the cross-examination as to former convictions does not relate to the question of guilt or innocence, but only to the question of credibility. Due to the doubtful effect upon the jury, we do not think the trial judge should assume the initiative." (124 W.Va. at 8, 18 S.E.2d at 655)

This nagging suspicion of the inherent prejudice involved in permitting a defendant to have his credibility attacked or impeached by cross-examination as to prior convictions has haunted this Court to the present day.

In State v. McGee, W.Va., 230 S.E.2d 832 (1976), because of the prejudice arising from the use of prior convictions to test credibility, a significant restriction was placed on such right as evidenced in the Syllabus by the Court:

"When the State seeks to cross-examine a defendant in a criminal case regarding previous convictions for the purpose of testing his credibility, the trial court is required to consider the probative value thereof measured against the risk of substantial danger of undue prejudice to the accused and is further required to instruct the jury properly regarding the limited purpose of the question and the limited purpose for which the jury may consider it."

Justice Wilson, writing for the Court in McGee, made this comment about the danger in permitting impeachment of credibility by prior conviction:

"We are not unaware of the contention that such a rationale is pure sophistry and that the State, under the guise of testing credibility, relies upon the hope that the jury, in spite of being instructed by the court as to the purpose for which the evidence is admissible, will nonetheless consider the revelation of other convictions as indicating guilt in the case being tried." (230 S.E.2d at 837)

Impeachment of the defendant's credibility by showing prior criminal convictions is but a part of a larger area of impeachment of character and reputation in order to destroy credibility.

This Court has consistently followed the majority view that a defendant's character and reputation may not be attacked merely because he voluntarily takes the witness stand. ⁴ In order for character impeachment to be proper, the defendant must affirmatively introduce evidence of his good character. State v. McArdle, W.Va., 194 S.E.2d 174 (1973); State v. Seckman, 124 W.Va. 740, 22 S.E.2d 374 (1942); State v. Graham, 119 W.Va. 85, 191 S.E. 884 (1937); State v. Grove, 61 W.Va. 697, 703, 57 S.E. 296 (1907).

A certain consistency is attained in limiting the use of prior convictions for the purpose of attacking the defendant's credibility (when such convictions have no relevancy to credibility), since this rule is then harmonized with the broader rule relating to impeachment of a defendant's reputation or character.

When we look to other jurisdictions we find that often the rule regarding the use of prior convictions to impeach the defendant has been the result of legislative,...