State v. Richey, 15235

CourtSupreme Court of West Virginia
Citation171 W.Va. 342,298 S.E.2d 879
Docket NumberNo. 15235,15235
PartiesSTATE of West Virginia v. Clyde H. RICHEY.
Decision Date15 December 1982

2. "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." Syllabus 3. "In the absence of any substantial countervailing factors, where a new rule of criminal law is made of a nonconstitutional nature, it will be applied retroactively only to those cases in litigation or on appeal where the same legal point has been preserved." Syllabus Point 3, State v. Gangwer, 168 W.Va. 190, 283 S.E .2d 839 (1981).

Point 6, State v. Payne, 167 W.Va. 252, 280 S.E.2d 72 (1981).

4. Several basic rules exist as to cross-examination of a witness. The first is that the scope of cross-examination is coextensive with, and limited by, the material evidence given on direct examination. The second is that a witness may also be cross-examined about matters affecting his credibility. The term "credibility" includes the interest and bias of the witness, inconsistent statements made by the witness and to a certain extent the witness' character. The third rule is that the trial judge has discretion as to the extent of cross-examination.

5. "The usual method of impeaching the credibility of a witness as one who will not tell the truth and is unworthy of belief is to show the bad general reputation of the witness for truth and veracity in the community where she lives, by impeaching witnesses who know that reputation." Syllabus Point 3, in part, State v. Driver, 88 W.Va. 479, 107 S.E. 189 (1921).

6. Where the exact age is not required to be proved, the defendant's physical appearance may be considered by the jury in determining age but there must be some additional evidence suggesting the defendant's age.

7. Where a defendant moves to exclude members of the public from observing his jury trial, the ultimate question is whether, if the trial is left open, there is a clear likelihood that there will be irreparable damage to the defendant's right to a fair trial.

8. A trial court has considerable discretion as to matters involving the length of a recess or temporary adjournment of a trial.

9. We have generally defined hearsay as where a witness testifies in court with regard to out-of-court statements of another for the purpose of proving the truth of the matter asserted.

10. "The giving of confusing or incomplete instructions does not constitute reversible error where a reading and consideration of the instructions as a whole cure any defects in the complained of instructions." Syllabus Point 4, State v. Stone, 165 W.Va. 266, 268 S.E.2d 50 (1980).

McIntyre, Haviland & Jordan and James B. McIntyre, Charleston, for appellant.

James E. Roark, Pros. Atty., and Frances W. McCoy, Asst. Pros. Atty., Charleston, for appellee.

MILLER, Chief Justice:

This is an appeal from the criminal conviction adjudging the defendant-appellant, Clyde H. Richey, guilty of sexual assault in the third degree and placing him on probation. The defendant was found to have sexually molested a fourteen-year-old boy in a Charleston motel. The defendant was serving as a member of the West Virginia House of Delegates and the victim was a legislative page. The particular facts surrounding the incident and the events at trial are recited only as they are relevant to the issues on appeal.

The defendant asserts several assignments of error. After careful consideration of each, we find no reversible error and affirm the judgment of the trial court.


The first assignment of error is the trial court's denial of the defendant's motion to dismiss the indictment on the grounds of prejudicial prosecutorial delay in obtaining the indictment. The crime allegedly occurred on February 22, 1979, and the grand jury indictment was returned on June 19, 1979. The defendant was not arrested prior In State v. Maynard, 170 W.Va. 40, 289 S.E.2d 714 (1982), we found that a three-month delay between the commission of the offense and the filing of the charges did not result in violating the defendant's due process rights. The evidence against the defendant was acquired in the course of an undercover operation and we viewed the State as having a need for some delay to prevent exposure of its undercover informers and to analyze the evidence. See also State v. Ayers, 168 W.Va. 137, 282 S.E.2d 876 (1981).

                to the returning of the indictment.  He claims that the delay was prejudicial in that investigative facts could not be gathered.  In State ex rel. Leonard v. Hey, W.Va., 269 S.E.2d 394 (1980), we held that where eleven years elapsed between the identification, location and connection of the defendant with the criminal act and his formal accusation, there was prima facie prejudice that violated his constitutional due [171 W.Va. 346] process rights. 1  In Syllabus Point 2 of Leonard, supra, we spoke to the situation where a less extensive pre-indictment delay is involved:  "The effects of less gross delays upon a defendant's due process rights must be determined by a trial court by weighing the reasons for delay against the impact of the delay upon the defendant's ability to defend himself."

Here, the record is silent as to any specific facts that would demonstrate why the approximate three-month delay has prejudiced the defendant. The motion to dismiss was filed on December 17, 1979, six months after the returning of the indictment, and asserted only general grounds. 2 While Leonard, supra, created a prima facie ground of prejudice for an extreme or gross delay, the general rule is that where there is a delay between the commission of the crime and the return of the indictment or the arrest of the defendant, the burden rests initially upon the defendant to demonstrate how such delay has prejudiced his case if such delay is not prima facie excessive.

Justice Marshall in writing for the majority in United States v. Lovasco, 431 U.S. 783, 790, 97 S.Ct. 2044, 2048-49, 52 L.Ed.2d 752, 759 (1977), 3 made this summary based on United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), in regard to the requirement of proof of prejudice: "Thus Marion makes clear that proof of prejudice is generally a necessary element but not sufficient element of a due process claim and that the due process inquiry must consider the reason for the delay as well as the prejudice to the accused." In Arnold v "Under the more lenient due process standard applicable to this period, proof of actual prejudice is necessary before a claim of pre-indictment delay is ripe for adjudication. United States v. Lovasco, supra, [431 U.S. 783] at 789-790, 97 S.Ct. 2044 [at 2048-2049, 52 L.Ed.2d 752]; United States v. Mays, 549 F.2d 670, 675 (9 Cir.1977). There has been no showing of any actual prejudice to Arnold arising from the one-year delay between the commission of the crime and his first arrest."

McCarthy, 566 F.2d 1377, 1382 (9th Cir.1978), this concept was expressed as follows:

See also United States v. Mays, 549 F.2d 670 (9th Cir.1977); Scott v. State, 263 Ark. 669, 566 S.W.2d 737 (1978); Smith v. United States, 414 A.2d 1189 (D.C.App.1980); People v. Lawson, 67 Ill.2d 449, 10 Ill.Dec. 478, 367 N.E.2d 1244 (1977); State v. Rountree, 106 N.J.Super. 135, 254 A.2d 337 (1969); State v. Rogers, 70 Wis. 160, 233 N.W.2d 480 (1975).

We conclude that the defendant has failed to demonstrate any facts which would show prejudice by the delay.


The defendant claims that the trial court erred in giving the State's flight instruction. This instruction was based on evidence that the defendant after learning of the indictment, consulting with a lawyer, and being advised of the date set for his arraignment, left the State. He did not return until three weeks after the arraignment date. While a capias was issued, he returned and answered the indictment before he could be located and served. The defendant claims that the giving of the flight instruction endorsed the State's position that the defendant's flight was circumstantial proof of his guilt.

In State v. Payne, 167 W.Va. 252, 280 S.E.2d 72, 79-80 (1981), we made an extensive review of the flight instruction question and summarized situations in which courts have permitted the use of a flight instruction:

"That evidence of flight is admissible upon a criminal trial is an almost universal rule. Courts which have addressed the more specific question have also, generally, held that jumping bail, issuance of a capias, extradition proceedings and failure to appear for trial are admissible as evidence of flight. In general, the time of the flight does not have to be immediately after the commission of the crime in order for the evidence to be admissible. We do not here consider the case where the defendant was not aware that he was a suspect in the case." (Footnotes omitted)

Payne also authorized the use of an in camera hearing to enable the trial court to develop the facts surrounding the flight issue in order to determine if a flight instruction was appropriate.

"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...

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