State v. Richards
| Decision Date | 23 November 1993 |
| Docket Number | No. 21564,21564 |
| Citation | 190 W.Va. 299,438 S.E.2d 331 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia, Plaintiff Below, Appellee, v. Ronzel RICHARDS, Defendant Below, Appellant. |
Syllabus by the Court
1. "Character Evidence Generally.--Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except: (1) Character of the Accused--Evidence of a pertinent trait of his character offered by an accused, or by the prosecutor to rebut the same; ..." Part, Rule 404(a), West Virginia Rules of Evidence.
2. The West Virginia Rules of Evidence contemplate that rebuttal evidence be introduced only to rebut actual evidence previously introduced, and the simple mention of character issues during an opening statement does not lay a proper foundation for, or open the door for, the introduction of otherwise inadmissible character evidence on rebuttal.
3. Syllabus point 2, State v. Woodson, 181 W.Va. 325, 382 S.E.2d 519 (1989).
4. The State may not seek a W.Va.Code § 62-12-2 enhancement of a defendant's sentence for use of a firearm in the commission of the crime charged unless it has previously given the defendant notice of the intention to enhance in the manner outlined in syllabus point 2 of State v. Johnson, 187 W.Va. 360, 419 S.E.2d 300 (1992).
5. Syllabus point 2, State v. Johnson, 187 W.Va. 360, 419 S.E.2d 300 (1992).
Frank W. Helvey, Jr., Appellate Public Defender, Charleston, for appellant.
Jacquelyn I. Custer, Asst. Atty. Gen., Charleston, for appellee.
This is an appeal by Ronzel Richards from an order of the Circuit Court of Calhoun County sentencing him to two concurrent terms of from two to ten years in the State penitentiary for the malicious wounding of his brother and his nephew. On appeal, the defendant claims that the circuit court erred in allowing the prosecution to show that he had committed collateral crimes and that the court denied him a fair trial by refusing to permit him to adduce evidence on the bad reputation and habits of the victims. He also claims that the court committed a number of errors relating to the enhancement of his sentence for his use of a firearm in the commission of the crimes charged. After reviewing the questions presented, this Court agrees that the trial court committed reversible error. Accordingly, the defendant's conviction is reversed, and he is awarded a new trial.
The charges against the defendant grew out of a shooting incident which occurred on May 3, 1991. On that day, the defendant was plowing a garden on property owned by his parents. The garden was adjacent to a parcel of land owned by the defendant's nephew, Boyd Richards.
There had been an on-going dispute over where the boundary line ran between the defendant's parents' property and the Boyd Richards' property, and while the defendant was plowing his parents' garden on May 3, 1991, his nephew jumped up on his tractor and struck or "pecked" him on the arm and complained that he was plowing across the boundary line. According to the defendant, the nephew, Boyd Richards, dumped a beer on him and told him that he "was not plowing no more of this garden." The defendant replied that he was going to finish plowing even if he had to "go off this hill and get a shotgun."
After this incident, the defendant stopped the tractor and walked to his parents' house to get a shotgun. The defendant told his parents that he was "taking a shotgun on the hill ... I am not going to let them beat me halfway to death up there." His mother begged him to call the police. The defendant, nonetheless, loaded the shotgun and returned to the garden area. On the way, he fired a shot into the side of an outbuilding and advised Boyd Richards and Boyd's father, Charles Richards, who was in front of Boyd's trailer, to "leave me alone ... I plan to finish this garden ... You people are going to have to kill me to stop me."
As the defendant began to resume plowing, he observed a beer bottle rolling toward his tractor tire. He picked it up and tossed it into Boyd Richards' yard. According to the defendant, he also heard Charles Richards shout, "Hit him in the head." The defendant had a plastic plate in his head as the result of a previous injury, and according to his testimony, he was fearful that a blow to this plate might be fatal. He, therefore, turned toward Boyd Richards and lifted his shotgun. He testified that he observed Boyd with his arm drawn back. He then fired the shotgun in Boyd's direction. Both Boyd and Charles Richards were struck and injured by the shot.
The defendant was subsequently charged with, and tried by a jury on, two counts of malicious wounding.
During his opening statement at the defendant's trial, defense counsel stated that he would prove that the victims of the shooting, Boyd Richards and Charles Richards, were recognized as known drunks and troublemakers with violent tempers. He also stated that he would prove that the defendant's reputation was that of "a peaceful ... and law abiding citizen[,] not the sort of person who would without provocation shoot someone, much less his brother and nephew." He portrayed the defendant as "the mainstay of his family" who had "been a stable husband and father."
At the close of the opening statement, the prosecutor approached the bench and argued that defense counsel, by his opening remarks, had put the defendant's reputation in issue. Without discussion, the trial court agreed, and prior to the commencement of the second day of trial, the court, in an in camera hearing, ruled that the State could bring the defendant's criminal record, if any, into evidence.
The defendant was the first witness to testify in his own defense, and during a recess following his direct testimony, defense counsel informed the court that he had learned that the defendant had twice been convicted of possession of stolen property, once in 1969 in Tennessee, and once in 1975 in Ohio and objected to, or moved that the court exclude, the introduction of these crimes. The court ruled that the evidence was admissible.
During cross-examination of the defendant, the prosecutor elicited evidence of the convictions, and later, during closing argument, the prosecutor told the jury that defense counsel had failed to inform the jury during his opening statement that the defendant had been in prison "at least, two times and had ..., at least, two felony convictions." The prosecutor also said during rebuttal:
Did they tell you in opening statement that he had a prison record, that he had committed felonies, numerous felonies, and he'd been in prison in two other states or did I have to bring it out on cross examination of the Defendant.
The defendant's first contention on appeal is that the trial court erred in allowing the State to introduce the collateral crime evidence. It is apparent from the record, as well as from the arguments of the parties on appeal, that this contention involves the question of whether defense counsel interjected the defendant's character into evidence when, during his opening statement, he indicated that the defendant was a peaceful and law-abiding citizen. The State argues that defense counsel's remarks laid the proper foundation for the admission of collateral crime evidence.
The West Virginia Rules of Evidence allow the introduction of collateral crime evidence to rebut evidence of a particular trait of character offered by the accused. Specifically, Rule 404(a) provides, in relevant part:
Character Evidence Generally.--Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
(1) Character of the Accused--Evidence of a pertinent trait of his character offered by an accused, or by the prosecutor to rebut the same; ...
West Virginia's Rule 404 is modelled on the corresponding Rule of Federal Evidence, and this Court has rather consistently followed decisions under the Federal Rule in interpreting and applying the West Virginia rule.
Regarding Federal Rule 404, J.B. Weinstein, Weinstein's Evidence, § 494 (1992), states:
Rule 404 restates the common law rule which bars the prosecution from the circumstantial use of bad character in the first instance, but allows the accused to introduce evidence of good character. The inconsistency seeks to protect a defendant from being convicted merely of "being bad." The accused has an absolute right to introduce character evidence, although the trial court, in its discretion, may limit the scope of the proof, as by limiting the number of witnesses; or by controlling the order of proof.
* * * * * *
The prosecution may come forward with evidence rebutting good character only when the accused has called character witnesses to testify to his character.
In line with this proposition, if the defendant had called a witness or witnesses who...
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