State v. Payne

Decision Date30 June 1981
Docket NumberNo. 14334,14334
Citation167 W.Va. 252,280 S.E.2d 72
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia v. Robert PAYNE.

John R. Frazier, Princeton, for P. E.

Chauncey H. Browning, Jr., Atty. Gen., Thomas N. Trent, Asst. Atty. Gen., Charleston, for D. E.

Syllabus by the Court

1. "In the trial of the 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." Syl. pt. 1, State v. McAboy, 236 S.E.2d 431 (W.Va.1977).

2. "A defendant in a criminal case is entitled to testify on his own behalf and so long as he does not place his character and reputation in issue, he is entitled to assurance by the court that no prior conviction, save convictions by perjury or false swearing, would be revealed on cross examination." Syl. pt. 2, State v. McKinney, 244 S.E.2d 808 (W.Va.1978).

3. "Where improper evidence of a non-constitutional 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." Syl. pt. 2, State v. Atkins, 261 S.E.2d 55 (W.Va.1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1081, 63 L.Ed.2d 320 (1980).

4. "Jurors who on voir dire of the panel indicate possible prejudice should be excused, or should be questioned individually either by the court or by counsel to precisely determine whether they entertain bias or prejudice for or against either party, requiring their excuse." Syl. pt. 3, State v. Pratt, 244 S.E.2d 227 (W.Va.1978).

5. 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.

6. In certain circumstances evidence of the flight of the defendant will be admissible in a criminal trial as evidence of the defendant's guilty conscience or knowledge. Prior to admitting such evidence, however, the trial judge, upon request by either the State or the defendant, should hold an in camera hearing to determine whether the probative value of such evidence outweighs its possible prejudicial effect.

7. "When a general savings statute specifically provides for the application of mitigated penalties upon the election of the affected party, he is entitled to choose the law under which he wishes to be sentenced." Syl. pt. 2, State ex rel. Arbogast v. Mohn, 260 S.E.2d 820 (W.Va.1979).

McHUGH, Justice:

The appellant, Robert Payne, was convicted in the Circuit Court of Mercer County of the crime of statutory rape. The case is before this Court on an appeal from a final order of the Circuit Court of Mercer County, entered on September 2, 1976, sentencing the defendant to imprisonment in the West Virginia Penitentiary and denying the defendant's motion to set aside the verdict and award him a new trial.

In 1973 the prosecuting witness in this case, who was then 13 years old, resided in Princeton, West Virginia, with her parents. On March 28, 1973, the prosecuting witness was alone in the front yard of her parents' home, at about 8:15 P.M., when someone grabbed her from behind and threatened to kill her if she screamed. Her assailant forced the prosecuting witness to accompany him to a secluded area where the rape allegedly occurred.

The defendant, Robert Payne, was indicted for the offense of statutory rape by the July, 1973, term of the Mercer County Grand Jury. His first trial, in July, 1974, resulted in a mistrial after the jury was unable to reach a verdict. The defendant was convicted after a second trial which ended on August 11, 1976. The defendant's motion to set aside the verdict and award him a new trial was denied, and he was sentenced, by an order entered on September 2, 1976. From that order he filed a petition for an appeal.

On this appeal the defendant assigns, among others, the following errors: (1) the trial court's failure to grant his motion to suppress evidence of prior criminal convictions and failure to assure the defendant that, if he testified in his own defense, no such convictions could be brought out on cross-examination; (2) the trial court's refusal to strike a member of the jury panel for cause upon a motion made by the defendant; (3) the trial court's refusal to give jury instructions offered by the defendant on the issue of identification; (4) the trial court's admission of evidence that the defendant had failed to appear for a previously scheduled trial, had forfeited bond, that a capias had been issued for him, and that extradition proceedings had been instituted to return him to this State; and (5) the trial court's failure to allow the defendant to elect between alternate sentences under the "savings statute."

I. PRIOR CONVICTIONS

The defendant, prior to his trial, moved to suppress any evidence of his prior criminal record. The trial court denied the motion. The motion was renewed at the close of the State's case and was again denied. At that time the court was informed that the defendant would not take the stand in his own behalf. The trial judge advised the defendant that he had the right to take the stand on his own behalf but did not assure the defendant that no prior criminal conviction would be used against him should he elect to testify.

The defendant relies upon State v. McAboy, 236 S.E.2d 431 (W.Va.1977), and State v. McKinney, 244 S.E.2d 808 (W.Va.1978), in assigning the trial court's action as error. In McAboy we held:

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

State v. McAboy, supra, at Syl. pt. 1.

In State v. McKinney, supra, we extended the holding of McAboy to those situations where the threatened use of prior criminal convictions on cross-examination prevents the defendant from taking the stand in his own behalf:

A defendant in a criminal case is entitled to testify on his own behalf and so long as he does not place his character and reputation in issue, he is entitled to assurance by the court that no prior convictions, save convictions by perjury or false swearing, would be revealed on cross examination.

State v. McKinney, supra, at Syl. pt. 2.

State v. McAboy, supra, was, by its terms, to be applied retroactively to cases "in the trial courts or in the appellate process where the point has been specifically preserved." 236 S.E.2d at 437. The State, on this appeal, concedes that this case falls within the limited retroactivity contained in McAboy. The State only argues here that the error below was harmless. We cannot agree.

The harmless error rule was set forth by this Court in Syl. pt. 2, State v. Atkins, 261 S.E.2d 55 (W.Va.1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1081, 63 L.Ed.2d 320 (1980):

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.

This analysis was applied to a State v. McAboy type situation in State v. Toppings, 272 S.E.2d 463 (W.Va.1980). The case presently before us is different from Toppings in that here the defendant did not take the stand as a result of the trial court's refusal to suppress evidence of prior convictions. In Toppings the defendant did take the stand and was questioned about a prior conviction. We held, there, that the error was not harmless because of the probable prejudicial effect that the evidence of prior convictions had on the jury.

In this case, it is not evidence introduced by the State that is assigned as error; the assigned error is that the defendant, in effect, was denied his right to testify in his own behalf. The defendant has not assigned insufficiency of the evidence as error. Applying the State v. Atkins supra, analysis to this situation, therefore, requires a determination of whether the court's action in preventing the defendant from taking the stand prejudiced the jury. We think it did.

The defendant's first trial on this charge resulted in a hung jury. The main difference between the first trial and the one from which this appeal is taken is that the defendant testified at his first trial. Because he did not testify at this second trial, the defendant was not able to offer an explanation for his failure to appear at his second trial at the time it was originally scheduled, see section IV, infra, nor was he able to contradict the identification testimony offered by the State, see, section III, infra. In light of these considerations, the trial court's action in violation of the defendant's McAboy and McKinney rights was prejudicial error.

II. THE JURY ...

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