State v. McGee

• Decision Date: 21 December 1976
• Docket Number: No. 13606,13606
• Citation: 230 S.E.2d 832,160 W.Va. 1
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Martha Ann McGEE.

Page 832

230 S.E.2d 832

160 W.Va. 1

STATE of West Virginia v. Martha Ann McGEE.

No. 13606.

Supreme Court of Appeals of West Virginia.

Dec. 21, 1976.

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.

Catsonis & Linkous, Leo Catsonis and Thomas L. Linkous, Charleston, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., E. Leslie Hoffman, III, Asst. Atty. Gen., Charleston, for defendant in error.

WILSON, Justice.

Although appellant Martha Ann McGee (defendant below) urges numerous errors in support of her contention that we should reverse her conviction by a jury in the Circuit Court of Mineral County, on June 21, 1974, of the crime of delivery of marijuana, we reverse and award a new trial solely on the ground that the trial court, over her objection, permitted the State to cross-examine her regarding possible previous offenses which may or may not have been committed by her.

The skeletal facts giving rise to the charge of delivery of marijuana are found in the testimony of Mike Kuykendall, an undercover agent. He testified that on August 22, 1973, he purchased from defendant several grams of marijuana and that the defendant made the delivery to him and received payment from him while he, the defendant and other persons were riding around in his car.

The defendant took the stand in her own behalf. She and other witnesses presented by her say that someone other than defendant tossed the marijuana from the back to the front of the car and that money was passed to the back seat of the car. Neither defendant nor any of her witnesses identified the person who tossed the marijuana from the back seat to the front seat or the person who passed the money back or the person who received it.

There is much confusion in the evidence regarding how many people were in the car, who they were, where they were sitting and what transpired. Neither the defendant nor the State made any vigorous effort to dispel the vagueness which characterized the testimony of all the witnesses.

After the trial, however, defendant made a motion, supported by three affidavits, for a new trial based on newly discovered evidence, and one of the errors assigned on this appeal is the failure of the trial court to grant that motion. Two of these affidavits were submitted by persons who had testified in behalf of the defendant at the trial. The third affidavit is of no consequence. One of the affiants who had been a defense witness at trial would apparently now testify that the sale and delivery of the marijuana at the time in question was made to Kuykendall by a person named James (Buckeye) Lampson. The other affiant who appeared as a defense witness at the trial would apparently now testify that Lampson told her that he was the one who sold the marijuana to Kuykendall and begged her not to incriminate him with testimony to that effect.

The significance of these affidavits is emphasized by the fact that James (Buckeye) Lampson was also a witness presented by the defendant at the trial and refused to answer a question regarding how the marijuana got into the front seat of the car on the ground that his answer might tend to incriminate him.

On this appeal, no effort is made on behalf of the defendant to explain why defendant failed to elicit this information from affiants when they testified at trial. We are gravely disturbed by this circumstance. Perhaps it will suffice for us to sound an admonitory note reminding all concerned that only candor and full disclosure ultimately serve the ends of justice.

This Court has carefully and fully enunciated the requirements which must be met before a new trial will be granted on the ground of newly discovered evidence, as follows:

'. . . (1) The evidence must appear to have been discovered since the trial, and, from the affidavit of the new witness, what such evidence will be, or its absence satisfactorily explained. (2) It must appear from facts stated in his affidavit that . . . (the movant) was diligent in ascertaining and securing his evidence, and that the new evidence is such that due diligence would not have secured it before the verdict. (3) Such evidence must be new and material, and not merely cumulative; and cumulative evidence is additional evidence of the same kind to the same point. (4) The evidence must be such as ought to produce an opposite result at a second trial on the merits. (5) And the new trial will generally be refused when the sole object of the new evidence is to discredit or impeach a witness on the opposite side.' ¹

The appellant here has failed to demonstrate that the material matters referred to in the affidavits were discovered after the trial. Furthermore, there is a failure to show that these matters could not have been discovered by due diligence before trial. Indeed, there is a strong suggestion that either the matters were in fact known before trial and not presented, or there was a total absence of diligence in ascertaining them.

Under these circumstances, we are compelled to conclude that there was no error in the refusal of the trial court to grant a new trial based on a claim of newly discovered evidence.

There are other assignments of error which are without merit, but since they have been fairly raised, briefed and argued, we are required to dispose of them and will do so before addressing ourselves to the error justifying reversal.

The defendant asserts on this appeal that the record fails to show that she entered her plea of not guilty in person. It is true that it is reversible error if the record fails to show in a felony case that the prisoner was present in person in court and entered his plea in person. See State v. Moore, 57 W.Va. 146, 49 S.E. 1015 (1905). However, that requirement is clearly satisfied in this case. The record of May 17, 1974, shows the following: the defendant was in court in person and by one of her attorneys; she announced that she was ready to plead to the indictment; the indictment was read to her in open court; 'the defendant, for her plea thereto, says that she is Not guilty'; and the defendant in person endorsed on said order, 'I agree' and signed her name 'Martha McGee.' The transcript of the proceedings of May 17, 1974, clearly indicates that when the order of that day was presented to the court, the court not only noted the presence of the defendant but required her to read the order and indicate her agreement to it by her signature.

In this case, there is more than a presumption of the regularity of the court proceedings. See Smith v. Boles, 150 W.Va. 1, 146 S.E.2d 585 (1965). The court's order and the transcript of the proceedings clearly show the fact of regularity. The court performed its duty in every respect required by law.

On this appeal, the defendant carefully selects language which avoids asserting that she did not enter her plea in person. The record demonstrates that she did enter her plea in person and we accordingly find no error.

The defendant next assigns as error the fact that the court gave to the jury forms of verdict which permitted the jury only to find the defendant either guilty as charged or not guilty. The defendant contends that possession of marijuana is a lesser included offense under a charge of delivery of marijuana and should have been included in the forms of verdict which the jury might return.

We need not discuss the question of whether possession of marijuana is a lesser included offense under a charge of the felonious delivery of marijuana. The record in this case clearly demonstrates that the court was of the opinion that possession was indeed a lesser included offense and specifically called to the attention of the attorney for the defendant that a lesser included offense was not embraced in the proposed forms of verdict submitted by the prosecution. The attorney for the defendant rejected the court's apparent willingness to modify the forms of verdict to include one which would have permitted the jury to make a finding with reference to the lesser included offense of possession.

We cannot permit the defendant now to take advantage of the error, if any, which was knowingly invited by her attorney. See State v. Bosley, W.Va., 218 S.E.2d 894 (1975); and State v. Riley, 151 W.Va. 364, 151 S.E.2d 308 (1966).

The defendant also assigns as error the court's unsolicited interruption of defense counsel during final argument for the purpose of correcting him. Defense counsel was arguing to the jury that the prosecuting witness Kuykendall had testified that he paid defendant with 'two $20.00 bills.' The trial judge corrected defense counsel and asserted that Kuykendall had said 'two...