State v. Ramey

• Decision Date: 11 March 1975
• Docket Number: No. 13315,13315
• Citation: 212 S.E.2d 737,158 W.Va. 541
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Fletcher Hartsel RAMEY.

Page 737

212 S.E.2d 737

158 W.Va. 541

STATE of West Virginia v. Fletcher Hartsel RAMEY.

No. 13315.

Supreme Court of Appeals of West Virginia.

March 11, 1975.

Syllabus by the Court

1. Article III, Section 5 of the West Virginia Constitution and W.Va.Code 1931, 57--3--6, as such protect an accused giving testimony as a witness, must be read and applied in Pari materia.

2. Under W.Va.Code 1931, 57--3--6, an accused who voluntarily takes the stand in a criminal case may be compelled to give testimony against himself on cross-examination Only 'as to all matters relevant to the issue.'

3. The only judicially recognized exception to the statutory requirement of 'relevancy' upon cross-examination of the accused is that the accused's prior Convictions of unrelated crimes may be raised by the State to test the credibility of the accused as a witness; and when the accused makes a timely objection or limiting request, the jury must be instructed that such convictions are raised for the sole purpose of testing credibility.

4. When the accused becomes a witness in his own defense, otherwise 'collateral' matters involving other convictions, charges and offenses may be admissible against the accused if such are demonstrated to be logically connected with and Relevant to a material issue involving the offense being tried. Accordingly, this type of evidence is admissible if it tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others; or (5) the identity of the person charged with the commission of the crime on trial. State v. Thomas, W.Va., 203 S.E.2d 445 (1974).

5. 'In a criminal trial, the state cannot introduce evidence, not connected with the crime for which the accused is being tried, for the purpose of showing his bad character, until the accused has first put his own character in issue by attempting to prove a previous good character. Point 1, Syllabus, State v. Graham, 119 W.Va. 85, 191 S.E. 884.' Syllabus point 5., State v. McArdle, W.Va., 194 S.E.2d 174 (1973).

6. Under the established rule that evidence will be considered strictly upon the ground of its relevancy to the purpose for which it is sought to be introduced, this Court will not justify the admissibility of otherwise collateral evidence by Sua sponte recognition of an unasserted theory of admissibility where such theory was neither proffered to nor considered by the trial court.

7. The test as to whether proffered evidence is relevant or collateral in the matter of impeachment of a witness is whether the cross-examining party would be entitled to prove it in support of his case.

8. It is the policy of the law that matters which are collateral to material issues of a criminal trial shall not obfuscate the main issues of the case or be introduced for the purpose of prejudicing the defendant by making him respond to a separate criminal charge; accordingly, absent a proper foundation for the introduction of an otherwise collateral matter, the court, in the exercise of sound discretion, should refuse such proffer.

9. 'Where the defendant in a criminal case has been cross-examined on irrelevant, immaterial or collateral matters, his answers are binding on the cross-examiner, and such answers may not be contradicted.' Syllabus point 1., State v. Simmons, 148 W.Va. 340, 135 S.E.2d 252 (1964).

10. 'Where, in a criminal trial, the court, over the objection of the defendant, permits the State to ask the defendant a question, the effect of which is to accuse him of a crime other than that for which he is being tried, and the defendant denies the accusation, it is reversible error to allow the State to introduce testimony seeking to contradict the answer of the defendant.' Syllabus point 2., State v. Simmons, 148 W.Va. 340, 135 S.E.2d 252 (1964).

11. 'In the exercise of discretion to admit or exclude evidence of collateral crimes and charges, the overriding considerations for the trial court are to scrupulously protect the accused in his right to a fair trial while adequately preserving the right of the State to prove evidence which is relevant and legally connected with the charge for which the accused is being tried.' Syllabus point 16., State v. Thomas, W.Va., 203 S.E.2d 445 (1974.)

Charles T. Bailey, Logan, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., Richard E. Hardison, Deputy Atty. Gen., Betty L. Caplan, Asst. Atty. Gen., Charleston, for defendant in error.

HADEN, Chief Justice:

This is an appeal and supersedeas granted on the petition of Fletcher Hartsel Ramey who was convicted in the Circuit Court of Logan County for the felonious possession of forty-two counterfeit twenty-dollar bills with the intent to utter the same. See West Virginia Code of 1931, Chapter 61, Article 4, Section 6.

When arrested, a lawful search revealed the counterfeit bills on Ramey's person. Although sharply conflicting, other direct evidence was introduced which proved to the satisfaction of the jury that he had purchased counterfeit bills at less than face amount on one or more occasion from another person under federal conviction for a similar offense. No evidence, however, was introduced at trial to demonstrate that the appellant had uttered or attempted to utter or pass the bogus currency.

The primary issue of this appeal is whether the trial court erred to Ramey's prejudice in permitting the State to introduce extensive testimony tending to prove that the appellant was intoxicated when arrested for possession of the counterfeit money. This testimony came into the trial when the State cross-examined Ramey after he had taken the stand in his own defense and when the State introduced further rebuttal testimony to the defendant's case.

Ramey contends here that the introduction of the intoxication evidence against him constituted proof of a separate, unrelated criminal offense, or impeachment of his testimony on a collateral matter, either of which constituted prejudicial error. The State counters that such testimony was relevant and 'was introduced to show that defendant had perhaps spent more money than he said he had, thereby tending to disprove his testimony on direct that he had found the counterfeit money after he had been in the Ranch House.', a tavern located near Omar, Logan County. In other words, the State contends that the intoxication evidence was connected and tended to support the charge of the indictment that appellant possessed counterfeit money with intent to utter it.

The trial occurrences giving rise to this issue are as follows: In the course of Ramey's explanation of his defense that he had discovered the money on the front seat of his car, placed there by someone unknown while the automobile was parked outside the 'Ranch House', he recounted that he had travelled extensively on the day of the arrest on business and social errands in Logan and Mingo Counties, and made stops at several restaurants and taverns. During the day, he said he had consumed two beers. When pressed on cross-examination, Mr. Ramey conceded that he had consumed the proverbial 'approximately two beers' but then proceeded to specify that he had drunk only one beer at the Ranch House tavern and the second beer at the White Tower, an establishment at Henlawson, Logan County, where he was arrested. The matter of drinking was not pursued further on cross-examination. The State then adduced rebuttal evidence by re-calling the two arresting officers to the stand. These officers, Troopers Johnson and Allen of the Department of Public Safety, testified that when they arrested the defendant, and for a period of time thereafter, he appeared to them to be visibly drunk or intoxicated. Allen then gave testimony that he had induced Ramey into taking a breathalyzer test by challenging Ramey to prove that he was not drunk. Under these circumstances, Ramey appears to have consented to the conduct of that particular test. Trooper Johnson gave extensive testimony as to how the breathalyzer test was conducted and the results of that test which demonstrated that Ramey's blood alcohol registered 17/100ths of 1% Of alcohol content.

We note, parenthetically, that had this been a trial for a criminal offense charging an allegedly intoxicated person with the operation of a motor vehicle prohibited by W.Va.Code 1931, 17C--5--2(a), as amended, such alcoholic content in the blood would have been Prima facie evidence that the tested person was under the influence of intoxicating liquor. We also note that Ramey was not subsequently charged with any driving offense warranting the introduction of such evidence against him, nor did the State adduce conclusory testimony premised upon this evidence that Ramey was drunk in fact. It left that inference to the jury. What the State did conclude, through the expert testimony of Corporal R. G. Barber, a chemist with the Department of Public Safety, was that a man of Ramey's size would have consumed approximately eight bottles of West Virginia beer necessarily to have caused a .0017 reading from the breathalyzer test, if such test had been conducted accurately.

Ignoring the accuracy of the test and its results, appellant contends that the mere introduction of the breathalyzer evidence against him in a criminal trial on a charge unrelated to those prescribed in Code 17C--5A is prejudicial error. We believe that contention has no merit. For the sake of argument, we would agree with appellant that the results of such a test or his refusal to submit to the test could not be used in trial against him, unless he was charged with a driving offense cognizable under Chapter 17C, Article 5A of the Code. Inasmuch however, as Ramey appeared to have consented to the test in this instance, we must judge its competence as evidence in this trial by determining whether it was...