State v. Ray
| Decision Date | 16 December 1982 |
| Docket Number | No. 14929,14929 |
| Citation | 171 W.Va. 383,298 S.E.2d 921 |
| Parties | STATE of West Virginia v. Melvin RAY. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. "An alleged spontaneous declaration must be evaluated in light of the following factors: (1) The statement or declaration 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).
2. Where the testimony of the victim of a sexual offense is corroborated to some degree, it is not reversible error to refuse a cautionary instruction that informs the jury that they should view such testimony with care and caution.
3. Syllabus Point 4, State v. Helmick, 169 W.Va. 94, 286 S.E.2d 245 (1982).
4. Where the law does not give the jury the right to recommend mercy in order to obtain a more lenient sentence, if the jury recommends mercy, this recommendation is treated as surplusage and does not affect the validity of its verdict.
5. "Where there is a combination and conspiracy between two or more persons to commit a crime, if the act of one done in carrying out the common purpose and design terminate in a criminal result ... all are liable." Syllabus Point 2, in part, State v. Wisman, 93 W.Va. 183, 116 S.E. 698 (1928).
James E. Roark, Pros. Atty., and Frances W. McCoy, Asst. Pros. Atty., Charleston, for appellee.
William S. Steele, Preiser & Wilson, Charleston, for appellant.
This is an appeal by Melvin Ray from an order of the Circuit Court of Kanawha County sentencing him to from ten to twenty years in the State Penitentiary for first degree sexual assault. The defendant makes a number of assignments of error which relate to the reception of evidence, the instructions in the case, the trial court's handling of the jury, and the sufficiency of the evidence presented. After examining the record, we conclude that the trial court committed no reversible error, and we affirm the defendant's conviction.
The defendant, Melvin Ray, and his brother, Roger Ray, were charged with sexually assaulting a seventeen-year-old female in St. Albans on December 9, 1977. During the defendant's trial, the State introduced evidence showing that on the day in question the victim was enticed into an automobile by the defendant and his brother, both of whom she knew. According to the victim, after she entered the car, Roger Ray displayed a pistol to her and threatened her with harm if she refused to participate in sexual acts.
She was driven to the vicinity of the St. Albans City Park where the defendant threatened to kill her and throw her body in the grass. Thereafter, she performed oral sex on the defendant. The entire event occurred between approximately 11:00 and 11:40 a.m. The victim was observed entering the car shortly before the incident by a girlfriend. Another person, a Mr. Heim, saw her on the street at approximately 11:40 a.m., immediately after the incident. He testified that she was extremely upset, that her face was flushed, and that her eyes were red.
Within five to ten minutes after being released from the car, the victim arrived at her home where she told her stepmother what had happened. Her stepmother described the victim's appearance as being emotionally distraught, shaking all over with tears in her eyes. Her stepmother also stated that as the victim related her story she was "stuttering and trying to find words." The stepmother was unable to report the incident to the authorities immediately because she was caring for an ill child.
At approximately 10:30 that evening, the victim was examined by a physician who could not find physical evidence of the sexual contact, though he indicated that because of the lapse of time and because of the victim's liquid intake since the time of the incident he did not expect to find such evidence.
In the course of the trial, the defendant introduced alibi evidence tending to show that he could not have committed the crime charged.
On appeal the defendant argues that the trial court erred in allowing the stepmother to testify over objection, as to what she was told by the victim. He argues that the testimony was inadmissible under the hearsay rule.
Our rule is that spontaneous exclamations may be admitted into evidence during the trial of a case under the res gestae or spontaneous declaration exception to the hearsay rule. The admission of such evidence is allowed under the assumption that a person stimulated by the immediacy of an exciting event and acting under the influence of that event will lack the reflective capacity essential for fabrication. We discussed the exception in considerable detail in State v. Young, 166 W.Va. 309, 273 S.E.2d 592 (1980), and in Syllabus Point 2 of Young, we adopted a six factor test which had been previously set out in Ward v. Raleigh County Park Board, 143 W.Va. 931, 105 S.E.2d 881 (1958):
"An alleged spontaneous declaration must be evaluated in light of the following factors: (1) The statement or declaration 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."
We believe that in the case before us the victim's statement to her stepmother constituted an admissible spontaneous declaration under the test set out in Syllabus Point 2 of State v. Young, supra. The statement was made by one who was the victim of the crime, and it related to that event in that it described and explained what happened. It did not involve a mere expression of opinion. The testimony indicates that the victim was pale and shaking. She was obviously under the influence of the event and we believe that the statement was made at a time and under circumstances which exclude the view that it was made as a result of deliberation.
This situation is analogous to State v. Mahramus, 157 W.Va. 175, 180, 200 S.E.2d 357, 360 (1973), where the victim of a sexual assault was attacked in a clubhouse. After the assault, she was driven to a house where she reported the event to one of the occupants who subsequently testified to her remarks at trial, which we held to be admissible:
Two of the defendant's assignments of error relate to the question of whether the victim's testimony was corroborated. First, the defendant argues that the trial court erred in giving State's Instruction No. 6. That instruction referred to corroborating facts and circumstances testified to by other witnesses. The defendant argues that, in fact, only one witness, the victim, testified to facts about the crime. He argues, in effect, that there was no corroborating evidence and that the giving of the instruction was thus improper. The defendant also argues that the trial court erred in refusing to give Defendant's Instruction No. 12 which stated that if the jury believed that the case against the defendant rested only on the testimony of the victim, then they should scrutinize her testimony with care.
Recently, in State v. Payne, 167 W.Va. 252, 280 S.E.2d 72, 77 (1981), we discussed the corroboration rule in regard to evidence of the defendant's identity in a sexual charge where such identification was based upon the uncorroborated testimony of the victim. After citing our earlier cases of State v. Garten, 131 W.Va. 641, 49 S.E.2d 561 (1948), and State v. Perry, 41 W.Va. 641, 24 S.E. 634 (1896), we concluded in Syllabus Point 5 of Payne, supra:
"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...
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