State v. McCormick

• Decision Date: 11 December 1981
• Docket Number: No. 14563,14563
• Citation: 290 S.E.2d 894,168 W.Va. 445
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. James E. McCORMICK.

Page 894

290 S.E.2d 894

168 W.Va. 445

STATE of West Virginia v. James E. McCORMICK.

No. 14563.

Supreme Court of Appeals of West Virginia.

Dec. 11, 1981.

Rehearing Denied Feb. 23, 1982.

Syllabus by the Court

1. "An appellant or plaintiff in error will not be permitted to complain of error in the admission of evidence which he offered or elicited, and this is true even of a defendant in a criminal case." Syl. pt. 1, State v. Compton, W.Va., 277 S.E.2d 724 (1981), quoting, Syl. pt. 2, State v. Bowman, 155 W.Va. 562, 184 S.E.2d 314 (1971).

2. "A judgment of conviction will not be reversed because of improper remarks made by a prosecuting attorney to a jury which do not clearly prejudice the accused or result in manifest injustice." Syl. pt. 2, State v. Brewster, W.Va., 261 S.E.2d 77 (1979).

Daugherty & Tantlinger and George A. Daugherty, Charleston, for plaintiff.

Chauncey H. Browning, Jr., Atty. Gen., and Gregory W. Bailey, Deputy Atty. Gen., Charleston, for defendant.

PER CURIAM:

James McCormick appeals from a final judgment of the Circuit Court of Putnam County which overruled his motion to set aside the verdict and grant a new trial, and sentenced him to a term in the penitentiary after a jury found him guilty of armed robbery.

The appellant seeks reversal of the final judgment because of "the injection of homosexuality into his trial." The appellant contends that certain remarks of the prosecutor were grounds for a mistrial. Among the remarks complained of were certain questions asked of defense witness Amos Allen:

"Q. Now, how would you describe, Amos how would you describe your relationship with Jim?

"A. Just real close friends. You can tell secrets to him.

"Q. Lovers?"

There was an objection and a motion for a mistrial which was denied.

It is uniformly held that it is reversible error to allow the State to inject the subject of homosexuality into a trial when it is irrelevant and unrelated to the charge against the accused. Annot., 54 A.L.R.3rd 897 § 3(a) (1974). The record in this case, however, demonstrates that the subject of homosexuality was first raised by the appellant's counsel during voir dire when he asked the prospective jurors if their view of the case would be influenced if they found out that the appellant and several of the witnesses were homosexuals. Counsel then alluded to the same matter in his opening statement and asked the jury to pay particular attention to the testimony of the witnesses and to examine any possible motive they might have for testifying against the appellant. He told the jury that they would hear testimony which indicated "that arguments were had and jealousies arose" between the State's chief witness, Bobby Carroll, and the appellant, and that Bobby Carroll made a threat to "get back at" the appellant. The questioning of potential jurors regarding their attitudes about homosexuality appears to have been a part of defense counsel's strategy, as were his references to the jealousies arising from the relationships of the appellant and the witnesses as a possible motive for testimony adverse to the appellant.

From our review of the record, we conclude that the prosecution did not unduly emphasize homosexuality, but touched on it only in the context in which it had been raised by the appellant, i. e., to indicate that just as the jealousies of homosexual relationships could be a motive for testimony adverse to the appellant, they could also be the motive for testimony favorable to the appellant.

This situation is analogous to those cases in which one party injects into the case a theory in argument, which might otherwise be improper, and in effect invites a response. In these instances such a response will not be deemed prejudicial error. See, 58 Am.Jur.2d New Trial § 64 (1971); Annot., 33 A.L.R.2d 459...