State v. Spadafore, 13503

• Decision Date: 16 December 1975
• Docket Number: No. 13503,13503
• Citation: 220 S.E.2d 655,159 W.Va. 236
• Parties: STATE of West Virginia v. John Richard SPADAFORE.
• Court: West Virginia Supreme Court

Page 655

220 S.E.2d 655

159 W.Va. 236

STATE of West Virginia v. John Richard SPADAFORE.

No. 13503.

Supreme Court of Appeals of West Virginia.

Dec. 16, 1975.

Syllabus by the Court

1. In a criminal case prior out-of-court statements made by a witness cannot be admitted into evidence for the truth of the matter asserted unless they were made under oath in a judicial atmosphere during the taking of a deposition or at a former trial and were subject at that time to cross-examination by the opposing party's counsel.

2. Prior out-of-court statements may be used to impeach the credibility of a witness and a prior inconsistent statement may be introduced concerning any specific matter about which the witness has testified at trial; however, where the witness does not testify contrary to his prior statement but demonstrates an absence of memory, such prior statement must be used sparingly to demonstrate lack of integrity in the witness or the reason for surprise to the party which calls him, but these legitimate purposes may not be used as a ruse for introducing inadmissible evidence.

3. As a general rule, West Virginia courts are not permitted to comment on the weight of the evidence; however, there is an exception entitling the defendant to an instruction that the uncorroborated testimony of a co-conspirator should be received with great caution when such testimony has a tendency to Inculpate the accused.

4. The State is not entitled to an instruction that the uncorroborated testimony of a co-conspirator should be received with great caution when such testimony has a tendency to Exonerate the accused.

Paul E. Parker, Jr., Fairmont, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., Betty Caplan, Fredric J. George, Asst. Attys. Gen., Charleston, for defendant in error.

NEELY, Justice:

This is a factually complicated criminal case in which the defendant was convicted of stealing a bulldozer from a construction site. There are numerous assignments of error which are relevant only upon the retrial of this case and with which the Court will deal Seriatim in the footnotes; however, there are two significant assignments of error which warrant reversal and which are of general importance to the development of the criminal law of this State.

The first general question presented concerns the degree to which a witness's prior out-of-court statement may be used as substantive evidence to prove the truth of the matter asserted in the out-of-court statement, and the second general question presented concerns whether the State is entitled to a cautionary instruction that the evidence of a possible co-conspirator which would tend to Exonerate the defendant should be received with great caution, in the same manner that the defendant is entitled to a similar instruction in the case of a co-conspirator whose uncorroborated evidence would tend to Inculpate the defendant.

In 1968, Clement Brothers Construction Company was building part of Interstate 79 in Marion County and at the conclusion of the working day on Friday, September 6, 1968 several pieces of heavy site. On Monday morning, September 9, a site. On Monday morning, September, 9, a 977--K Caterpillar end-loader or Traxcavator was missing. The machine was reported as stolen, and later that day the police found the bulldozer in the possession of Frank Chisler, a Monongalia County contractor. Chisler told the police that he had sent two of his men with a lowboy trailer to pick up the machine at the request of two men who had offered to sell it to him. Chisler then identified the defendant from photographs exhibited to him by the police. ¹ The police then gave Chisler $15,000.00 in marked currency and instructed him to complete the transaction.

On September 11, the defendant, John Richard Spadafore, and his brother, Donald Spadafore, arrived at Chisler's office in Daybrook, Monongalia County. When they left the office, they were met by police who arrested them and searched their persons. The police seized a purported bill of sale and a bag containing the marked currency. ²

The Spadafore brothers were taken into custody, booked, and released on bond. The two brothers were ordered to be tried separately, and in May 1972, a jury found the defendant's brother not guilty. The defendant was tried in November 1972, upon a plea of not guilty, but was convicted of grand larceny and this appeal was prosecuted from the final order of the circuit court affirming the criminal court conviction.

At trial the State easily established the ownership, title and value of the bulldozer, that it was on the construction site on September 6, 1968, and absent from that site on September 9. The circumstances at trial which raised the first principal assignment of error concerning the use of an out-of-court statement to establish the truth of the matter asserted in that statement arose during direct examination of a witness named John Boyce. Boyce was in the scrap and salvage business and had been indicted as an accessory before the fact to the taking of the bulldozer, but the indictments against him had been dismissed for failure of the State to prosecute within three terms of court.

Boyce testified that he had discussed the sale of certain bankrupt property, including heavy machinery, with Frank Chisler; however, Boyce denied that he had related Chisler's interest in buying a bulldozer to the defendant or his brother. A statement Boyce had given to the police on September 11, 1968, provided differently, however, and at trial the State claimed surprise and was allowed to impeach Boyce using much of the substance of the prior statement to discredit Boyce's lack of memory. At no time did Boyce testify to a set of facts which was contrary to his prior out-of-court statement, but he consistently asserted a lack of memory which resulted in his not testifying at all concerning the transactions which were necessary for the State to prove its case.

The next State's witness, James Barr, had been an employee of Frank Chisler during September 1968. Barr testified that Chisler had directed him to haul a bulldozer after dark on September 4, 1968 and that he and another employee, Joe Postlewait, drove Chisler's lowboy trailer to Boyce's house where they were to meet two unidentified men. Barr and Postlewait drank coffee with Boyce and his wife until the two men arrived about an hour later; however, for some unexplained reason they did not pick up the bulldozer that night.

According to Barr, Chisler called him again several days later and instructed him to pick up the machinery with another employee, Loren Bane. Barr and Bane drove the lowboy trailer to Boyce's place again where they met one of the men Barr had seen at Boyce's on the first evening. They then drove to the Country Inn in Fairmont and waited twenty minutes until the arrival of the same two men whom Barr had met the previous night at Boyce's. A third unidentified man whom Barr had not seen before accompanied them. All of them then went to the construction site where Bane and Barr loaded the bulldozer onto the trailer while two of the other men stayed in the car and the third man walked around as a lookout using a walkie-talkie. Barr and Bane were instructed to drive the machinery through Monongalia County to a hollow behind Frank Chisler's garage for which they were each paid $50.00. The machinery was delivered as instructed and Barr testified that he never saw the two men after that night, except at the jail.

Larry Strowsnyder, another employee of Frank Chisler, was the next witness for the State who testified that on September 7, 1968, he was at Frank Chisler's garage, and that he went to Blacksville for coffee with a man waiting to see Chisler. Strowsnyder was also present at Chisler's when the defendant and his brother were arrested and he thought that one of the two men arrested had accompanied him to Blacksville for coffee.

Frank Chisler was then called to the stand for the State. He said that he was asked by John Boyce in late August 1968 if he would be interested in buying a bulldozer. Several days later, Chisler said the defendant came to his home. Chisler then identified the defendant in court as the man who had come to his home and further testified that several days later the defendant and his brother came to his office, whereupon Barr took the lowboy trailer and returned with the bulldozer. On Monday, September 9, Chisler testified that a deputy came to his office and asked that Chisler call the Marion County Sheriff's office about the machinery. Later that day the Sheriff himself arrived at Chisler's to view the bulldozer and Chisler told the police at that time that the defendant had discussed a price of $15,000.00 in cash. Chisler went to the office of the Sheriff of Marion County where he identified the defendant from a group of photographs tendered to him. The police then gave him the $15,000.00 in marked currency and instructed him to return to his office and complete the transaction. The Spadafore brothers came as arranged, accepted the money, and gave a purported bill of sale. As the defendant and his brother left the office they were met by police and were arrested with the money in hand.

Chief Deputy Dodd testified that he had participated in the arrest and that he had seized a purported bill of sale in the course of the search incident to the arrest. Dodd testified that Chisler had identified the defendant and his brother as 'the two men he had dealt with on this end-loader.' ³

After the State rested, the defense put on the defendant's wife and mother-in-law for alibi testimony, and then called Loren Bane to the stand. Bane admitted that he and Barr had followed two men to the construction site at Chisler's direction where they drove the bulldozer onto the lowboy and then drove it back to Chisler's garage. Bane testified that the defendant was not 'any one of the men that accompanied him'...