State v. Sette

• Decision Date: 28 March 1978
• Docket Number: No. 13806,13806
• Citation: 242 S.E.2d 464,161 W.Va. 384
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Laurence Hugh SETTE.

Page 464

242 S.E.2d 464

161 W.Va. 384

STATE of West Virginia v. Laurence Hugh SETTE.

No. 13806.

Supreme Court of Appeals of West Virginia.

March 28, 1978.

Syllabus by the Court

1. "To warrant a change of venue in a criminal case, there must be a showing of good cause therefor, the burden of which rests on the defendant, the only person who, in any such case, is entitled to a change of venue. The good cause aforesaid must exist at the time application for a change of venue is made. Whether, on the showing made, a change of venue will be ordered, rests in the sound discretion of the trial court; and its ruling thereon will not be disturbed, unless it clearly appears that the discretion aforesaid has been abused." Point 2, syllabus, State v. Wooldridge, 129 W.Va. 448, 40 S.E.2d 899 (1946).

2. "A present hostile sentiment against an accused, extending throughout the entire county in which he is brought to trial, is good cause for removing the case to another county." Point 2, syllabus, State v. Dandy, 151 W.Va. 547, 153 S.E.2d 507 (1967), quoting point 1, syllabus, State v. Siers, 103 W.Va. 30, 136 S.E. 503 (1927).

3. Unless there are compelling circumstances which dictate to the contrary, a criminal defendant, upon proper motion, is entitled, for the purpose of cross-examination, to have any written statements in the State's possession made by a prosecution witness who has testified against the defendant; furthermore, the defendant must be given a reasonable opportunity to study the statements and prepare cross-examination.

4. In a criminal case a motion to exclude evidence of collateral crimes, on the ground that the prejudicial effect of the evidence of such crimes outweighs its probative value, is addressed to the sound discretion of the trial court and its rulings will be upheld unless there is a clear showing that its discretion has been abused.

5. Prior inconsistent statements of prosecution witnesses in a criminal case are admissible for impeachment purposes without the need to lay any particular foundation for their admission.

6. "While photographs may, as a general rule, be introduced in evidence to depict scenes material to some issue therein, whether a particular photograph, or groups of photographs, should be admitted in evidence, rests in the sound discretion of the trial court; and its rulings thereon will be upheld unless there is a clear showing that its discretion has been abused." Point 4, syllabus, State v. Wooldridge, 129 W.Va. 448, 40 S.E.2d 899 (1946).

Tomasky & Friend, Morgantown, Irving Anolik, New York City, for appellant.

Chauncey H. Browning, Jr., Atty. Gen., Gregory E. Elliott, Asst. Atty. Gen., Charleston, for appellee.

NEELY, Justice:

This is a criminal appeal from the Circuit Court of Monongalia County in which the appellant, Laurence Hugh Sette, was convicted of being an accessory before the fact to murder in the first degree. The appellant allegedly procured the murder of his wife by inducing a young woman, Kathy West, to kill her. There are numerous errors which require that we reverse the conviction and order a new trial.

The appellant's wife was murdered on April 1, 1975 in Monongalia County, West Virginia. At that time the appellant was the manager of a McDonald's Restaurant located on University Avenue, Morgantown, West Virginia, where he had been employed for approximately one year. Kathy West had obtained employment at the McDonald's Restaurant, and soon thereafter became sexually involved with the appellant. This sexual relationship had been in progress for almost a year when the appellant's wife was shot twice in the head in the middle of the night while sleeping in her own bedroom.

Kathy West testified at the trial that the appellant wanted to marry her, and would have married her had he not already been married. According to Miss West, the appellant convinced her that his wife would not give him a divorce, or that a divorce would ruin him financially, and thus the plot to murder the wife arose. Miss West testified that the appellant devised the intricate plot, "the perfect crime," in which neither of the plotters would be caught by the police. The appellant, in allaying Miss West's fears, went so far as to tell her that her juvenile status would save her from punishment in the unlikely event she were caught. The plot consisted of the following: the appellant would be at work during the actual murder; he would leave his car for Miss West to use; he would leave the basement door of his house unlocked; he would leave a loaded rifle in the house; Miss West, who was already familiar with the appellant's house, would proceed from the basement to the second floor where the appellant's wife would be asleep in her own bed and kill her; the rifle would be taken to a nearby bridge and thrown into the river; and, Miss West would misdirect the police at every turn, if she were questioned by them.

According to Miss West's testimony, everything went as planned. On April 26, 1975, after becoming bewildered by the appellant's actions, and being emotionally exhausted from the continuous need to lie, Miss West confessed to the murder. In the confession, she implicated the appellant as the mastermind behind the murder of Mrs. Sette. Miss West was allegedly promised no leniency, plea bargain, or immunity.

The appellant was arrested on April 26, 1975 and was charged with being an accessory before the fact to the murder. He denied the charge, but did admit to a torrid sexual relationship with Miss West. The appellant testified at trial that he had severed his amorous relationship with Miss West prior to the murder, but then admitted that the two had met after the murder and had engaged in sexual relations, as if nothing had changed.

The case was tried on July 10 through July 12, 1975 in the Circuit Court of Monongalia County and on July 14, 1975 the jury returned a verdict of guilty, as charged in the indictment, with a recommendation of mercy.

The appellant assigns and argues five points of error. He contends first, that he was denied a fair trial by the court's refusal to grant either a continuance or change of venue upon proper and timely motions. Second, he argues that the trial court erred by refusing to supply his trial counsel with a copy of the confession which the police obtained from Kathy West, who was the chief prosecution witness. Third, he asserts that the trial court erred in permitting the prosecutor, over timely objection, to introduce evidence that the appellant and Miss West had engaged in oral sex. Fourth, he contends that the trial court erred in refusing to allow the appellant to adduce testimony from a witness, Denman Kelley, concerning his encounter with Kathy West in the county jail. Apparently, Mr. Kelley would have testified that Miss West told him the appellant had nothing to do with the crime charged. Fifth, and finally, he maintains that the trial court erred in allowing the introduction of photographs showing the dead victim and the scene of the crime which were gruesome and only tended to prove a fact already stipulated, namely that the victim had been shot. We shall handle the assignments of error seriatim in separate sections.

I

The trial of Laurence Sette was voted the top news story of Morgantown, West Virginia, according to an article which appeared on December 28, 1975 in the Dominion Post, a newspaper of general circulation which is published in Morgantown. It was undisputed that the trial was preceded by substantial, pervasive, and inflammatory publicity, and that almost fifty percent of the jurors summoned for jury duty were disqualified because they had formed a conclusion concerning the case which they were unable to discard. Defense counsel carefully noted that in virtually all instances the reason for disqualification was apparently a belief in guilt, and defense counsel moved for a change of venue and for a continuance if the change of venue motion were denied. The court declined to grant either motion in spite of the appellant's counsel's strenuous argument for a change of venue, which included the presentation of a telephone public opinion poll conducted by a professor at West Virginia University indicating that a pervasive hostile climate toward the appellant existed in Monongalia County.

Ordinarily the question of a change of venue is reposed in the sound discretion of the trial court; that discretion, however, was clearly abused in this case by the trial court's denial of the motion for a change of venue. State v. Wilson, W.Va., 202 S.E.2d 828 (1974); State v. Wooldridge, 129 W.Va. 448, 40 S.E.2d 899 (1946). The case was in no respect an ordinary murder of the type which fills score of volumes of the West Virginia Reports. A young and apparently beautiful woman was allegedly murdered by the mistress of the victim's husband; both conspirators had been engaged in a torrid sexual relationship. Facts like these produce sensational journalism in and of themselves. In addition the public interest in the killing provided an irresistible invitation to the prosecuting attorney and law enforcement officers to try the case in the media. ¹

It would almost have been necessary for a resident of Monongalia County to be both blind and deaf for him not to have heard the sordid details of the case and to have formulated at least a tentative opinion. In most instances we can assume a prospective juror would hold a tentative opinion that the appellant was guilty, both because of the nature of the publicity surrounding the case and because of most people's natural tendency to grasp for any solution to an unsolved crime of major significance in the community. Social pressure to conclude a case and punish the guilty bears heavily upon jurors, just as it does upon judges, who constantly work under the tension of having to reconcile the accused's legal rights with the community's right to impose just sanctions on criminals.

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