State v. Murray

CourtSupreme Court of West Virginia
Citation180 W.Va. 41,375 S.E.2d 405
Decision Date10 November 1988
Docket NumberNo. 18017,18017
PartiesSTATE of West Virginia, Plaintiff Below, Appellee, v. Gary MURRAY, defendant Below, Appellant.

Page 405

375 S.E.2d 405
180 W.Va. 41
STATE of West Virginia, Plaintiff Below, Appellee,
Gary MURRAY, defendant Below, Appellant.
No. 18017.
Supreme Court of Appeals of West Virginia.
Nov. 10, 1988.

Page 407

[180 W.Va. 43] Syllabus by the Court

1. "Rule 803(2) of the West Virginia Rules of Evidence correctly contains the heart of the hearsay exception that was formerly called a spontaneous declaration and which is now termed the excited utterance exception to the hearsay rule. The more detailed treatment of this exception contained in Syllabus Point 2 of State v. Young, 166 W.Va. 309, 273 S.E.2d 592 (1980), is helpful to further refine the contours of the rule." Syllabus Point 1, State v. Smith, 178 W.Va. 104, 106, 358 S.E.2d 188, 190 (1987).

2. "An alleged spontaneous declaration must be evaluated in light of the following factors: (1) The statement or declaration made must relate to the main event and must explain, elucidate, or in some way characterize that event; (2) it must be a natural declaration or statement growing out of the event, and not a mere narrative of a past, completed affair; (3) it must be a statement of fact and not the mere expression of an opinion; (4) it must be a spontaneous or instinctive utterance of thought, dominated or evoked by the transaction or occurrence itself, and not the product of premeditation, reflection, or design; (5) while the declaration or statement need not be coincident or contemporaneous with the occurrence of the event, it must be made at such time and under such circumstances as will exclude the presumption that it is the result of deliberation; and (6) it must appear that the declaration or statement was made by one who either participated in the transaction or witnessed the act or fact concerning which the declaration or statement was made." Syllabus Point 2, State v. Young, 166 W.Va. 309, 273 S.E.2d 592 (1980).

3. Out-of-court statements made by the victim of a sexual assault may not be introduced by a third party unless the statements qualify as an excited utterance under Rule 803(2) of the West Virginia Rules of Evidence.

4. A prompt complaint made by the victim of a sexual offense is admissible independently of its qualifications as an excited utterance. However, the details of

Page 408

[180 W.Va. 44] the event or the name of the perpetrator is ordinarily not admissible.

5. Under Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988), and State ex rel. Grob v. Blair, 158 W.Va. 647, 214 S.E.2d 330 (1975), the right to confrontation assured by the Sixth Amendment and W.Va. Const. art. III, § 14 is violated where a witness testifies at trial and the defendant is denied the opportunity to confront the witness face-to-face.

6. Rule 608(b) of the West Virginia Rules of Evidence limits the admissibility of evidence of specific instances of conduct for the purpose of attacking the credibility of a witness. Such evidence may not be proved extrinsically, but may be inquired into by cross-examination of the witness. Furthermore, the evidence is admissible only if probative of truthfulness or untruthfulness.

7. Rule 16(a)(1)(C) of the West Virginia Rules of Criminal Procedure limits a defendant's discovery of documents and tangible objects to those which are within the possession, custody, and control of the State.

8. An instruction which cautions the jury that a charge of sexual assault or abuse is easy to make and difficult to defend should not be given.

9. " 'Instructions in a criminal case which are confusing, misleading or incorrectly state the law should not be given.' Syllabus Point 3, State v. Bolling, 162 W.Va. 103, 246 S.E.2d 631 (1978)." Syllabus Point 4, State v. Neary, 179 W.Va. 115, 365 S.E.2d 395 (1987).

10. "Where there is no evidentiary dispute or insufficiency on the elements of the greater offense which are different from the elements of the lesser included offense, then the defendant is not entitled to a lesser included offense instruction." Syllabus Point 2, State v. Neider, 170 W.Va. 662, 295 S.E.2d 902 (1982).

David C. Smith, Johnston, Holroyd & Gibson, Princeton, for Gary Murray.

Charles G. Brown, III, Atty. Gen., for appellee.

MILLER, Justice:

The defendant, Gary Murray, was convicted in McDowell County Circuit Court of first degree sexual assault of a minor child. He contends that the court improperly admitted extrajudicial statements made by the child approximately two weeks after the assault. We find the admission of the statements to be erroneous and prejudicial, and reverse the conviction.


Linda F.J. 1 is the daughter of Anita B.J. and Billy D.J. Linda was, at all times relevant to this case, nine years of age. She lived in the rural community of Switchback with her mother and the defendant.

On May 22, 1986, a secretary at Linda's elementary school in Switchback was informed that Linda was having difficulty in the restroom. She entered the restroom and saw Linda seated on a commode crying and in pain. When she inquired what was wrong, Linda responded: "Gary did this to me." Linda explained that while her mother was hospitalized some twelve days before, the defendant put a blanket over her head, pulled down her underwear, and "stuck his finger up in [her]." The secretary removed Linda's underwear and detected a heavy brown discharge and a foul odor.

Linda was accompanied to the office of the school principal, where she repeated her accusations. A protective service worker from the Department of Human Services was immediately summoned to the school. Linda reported to the worker that the defendant put his "thing," or penis, approximately one inch into her vagina. Linda was admitted to the hospital, where she was determined to suffer from gonorrhea and scabies, a contagious skin disorder. The defendant was arrested that day.

Page 409

[180 W.Va. 45] The defendant was tried in September 1986. The State's case-in-chief was built principally on the testimony and extrajudicial statements of Linda, the child victim. The school principal and protective service worker were permitted to testify concerning Linda's statements made at the school on May 22, 1986. Furthermore, a deputy sheriff summarized the details of a statement he obtained from Linda in the course of his investigation of the case. Each of these witnesses repeated Linda's accusation that the defendant committed the assault and described, in Linda's own words, the circumstances of the assault. These statements came from interviews with Linda some two weeks after the sexual assault.

The defense theory of the case was that the assault was committed by Linda's father, Billy D.J. Some evidence offered by the defendant tended to show that Billy neglected Linda's needs and physically abused her. It was also shown that Linda had made a similar accusation of sexual assault against Billy prior to the defendant's arrest. Linda's mother stated that Linda was frequently untruthful and that she had recanted her accusations against the defendant. The defendant also offered evidence that he did not suffer from gonorrhea or scabies.


The State cites three bases to sustain the admission of Linda's extrajudicial statements. First, the State contends that the statements were, by definition, not hearsay. Specifically, it is said that the statements were not offered for their truth, but to show that such statements were made and that the witnesses responded reasonably to what Linda said.

This same argument was made, and rejected, in State v. Golden, 175 W.Va. 551, 336 S.E.2d 198 (1985). In Golden, an extrajudicial statement that directly implicated the defendant was admitted on the theory that it provided a basis or foundation for explaining the testimony of State witnesses. We held without citing any authority that the statement might be relevant for that purpose, but that it was prejudicial in that it "went to the ultimate issue of [the] case." 175 W.Va. at 555, 336 S.E.2d at 202. Since the prejudicial effect of the statement "far outweighed its probative value," it should have been excluded. 175 W.Va. at 555, 336 S.E.2d at 202 (citing State v. Peacher, 167 W.Va. 540, 280 S.E.2d 559 (1981)).

Certainly, Golden cannot be read to sanction some new hearsay exception called "foundation testimony." We made it clear in Golden that the statement was not a "verbal act" as discussed in State v. Greenlief, 168 W.Va. 561, 285 S.E.2d 391 (1981), which allows proof of a prior statement without regard to its truth or falsity. See McCormick on Evidence § 249 (3rd ed.1984); F. Cleckley, Handbook on Evidence for West Virginia Lawyers § 8.3(G) (2d ed. 1986). It is obvious that Linda's extrajudicial statements were admitted to prove the truth of the matters asserted, i.e., the circumstances surrounding the sexual assault and the identity of the perpetrator.

Thus, we believe Golden controls the outcome here. Linda's statements at the school and to the deputy sheriff directly implicated the defendant as the perpetrator of the assault. Each of the State witnesses repeated the substance of Linda's accusations. The limited relevance of the statements was clearly overborne by the substantial potential for prejudice.

The State also contends that, assuming Linda's statements were hearsay, they were admissible as excited utterances. An excited utterance is defined by Rule 803(2) of the Rules of Evidence as "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." The theory on which the excited utterance exception rests is that "a guarantee of reliability surrounds statements made by one who participates in or observes a startling event, provided they are made while under the stress of excitement." State v. Smith, 178 W.Va. 104, 109, 358 S.E.2d 188, 193 (1987). We discussed the contours of the exception in Syllabus Point 1 of Smith:

Page 410

[180 W.Va. 46] "Rule 803(2) of the...

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