State v. Sparks

• Decision Date: 15 December 1982
• Docket Number: No. 15519,15519
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Hobert SPARKS.

Page 857

298 S.E.2d 857

171 W.Va. 320

STATE of West Virginia v. Hobert SPARKS.

No. 15519.

Supreme Court of Appeals of West Virginia.

Dec. 15, 1982.

Syllabus by the Court

1. "A new trial will not be granted on the ground of newly-discovered evidence unless the case comes within the following rules: (1) The evidence must appear to have been discovered since the trial, and, from the affidavit of the new witness, what such evidence will be, or its absence satisfactorily explained. (2) It must appear from facts stated in his affidavit that plaintiff was diligent in ascertaining and securing his evidence, and that the new evidence is such that due diligence would not have secured it before the verdict. (3) Such evidence must be new and material, and not merely cumulative; and cumulative evidence is additional evidence of the same kind to the same point. (4) The evidence must be such as ought to produce an opposite result at a second trial on the merits. (5) And the new trial will generally be refused when the sole object of the new evidence is to discredit or impeach a witness on the opposite side." Syllabus, State v. Frazier, 162 W.Va. 935, 253 S . E.2d 534 (1979), quoting, syl. pt. 1, Halstead v. Horton, 38 W.Va. 727, 18 S.E. 953 (1894).

2. "It is error to give instructions to the jury, even though they state correct propositions of law, when there is no evidence to support some of the hypotheses which they contain." Syl. pt. 7, State v. Morris, 142 W.Va. 303, 95 S.E.2d 401 (1956).

3. "It is a well-established rule of appellate review in this state that a trial court has wide discretion in regard to the admissibility of confessions and ordinarily this discretion will not be disturbed on review." Syl. pt. 2, State v. Vance, 162 W.Va. 467, 250 S.E.2d 146 (1978).

4. "A party who is surprised by unfavorable testimony given by his own witness may interrogate such witness as to previous inconsistent statements made by him." Syl. pt. 5, State v. Ferguson, 165 W.Va. 529, 270 S.E.2d 166 (1980), quoting, syl. pt. 2, State v. Swiger, 105 W.Va. 358, 143 S.E. 85 (1928).

5. "A judgment of conviction will not be reversed because of improper remarks made by a prosecuting attorney to a jury which do not clearly prejudice the accused or result in manifest injustice." Syl. pt. 5, State v. Ocheltree, 170 W.Va. 68, 289 S.E.2d 742 (1982).

Janet F. Steele, Asst. Atty. Gen., Charleston, for appellee.

William E. Kiger, Parkersburg, for appellant.

PER CURIAM:

Hobert Sparks appeals from his conviction by a jury of first degree arson in the Circuit Court of Pleasants County, for which he received two to twenty years in the penitentiary. Finding no error in the proceedings below, we affirm the conviction.

On July 29, 1980, a house owned by Gale and Elizabeth Flowers was destroyed by fire. Appellant and his brother, Raymond, lived about 1 1/4 miles from the Flowers residence. On August 19, 1980, the appellant went to the St. Mary's detachment of the West Virginia State Police and volunteered his assistance in finding the arsonist.

On August 25, 1980, three State Police officers questioned the appellant at a church near his home. Appellant first denied any knowledge about the fire; however after conversations with two officers, he gave them a written, signed statement in which he confessed to setting the fire. Appellant was indicted by the Pleasants County grand jury for first degree arson on September 8, 1980.

Trial was before a jury on October 6 and 7, 1980. An in camera hearing was held concerning the appellants' oral and written statements, after which the court ruled that the statements were voluntary and would be admitted into evidence. No eyewitnesses placed the appellant at the scene of the fire; the chief evidence against him was his confession and the testimony of his 64-year-old brother, Raymond Sparks. Raymond testified that some days before the fire, appellant told him he had a notion to burn the Flowers place down. He said that when appellant left on the evening of the fire to go to the home of a friend, he took a book of matches with him.

The evidence showed that the fire started some time before midnight on July 29, 1980. Philip Farson, a young friend of the appellant's, testified that the appellant was at his house that night, and had left after dark, between 10:00 and 11:00 p.m.

Appellant denied setting fire to the house. He said that he made the statements to the officers because they promised him that if he paid money damages for the property, nothing more would be said about it and the matter would be kept out of court. Both officers admitted that there was some discussion about civil liability and damages, but denied making any promises to him. The appellant offered a jury instruction on the voluntariness of his confession, which was refused. After 1 1/2 hours of deliberation, the jury found him guilty of first degree arson.

On February 20, 1981, appellant filed a motion for a new trial based upon newly discovered evidence: Philip Farson had confessed to burning down the Flowers' house. An evidentiary hearing was held before Special Judge Frank J. DePond, who denied the motion on the grounds that the new evidence would not produce a different result.

The appellant seeks a new trial, assigning as error (1) the denial of his motion for a new trial based upon newly discovered evidence; (2) the refusal of his instruction on the voluntariness of his confession; (3) the admission into evidence of his written statement; (4) improper impeachment and the use of leading questions by the State with its own witness; and (5) improper remarks by the prosecutor during closing argument.

I

On February 14, 1981, Philip Farson signed a statement in which he confessed to setting fire to the Flowers' house. The appellant filed a motion for a new trial, based upon this newly discovered evidence which, he claims, would probably have produced a different result.

In the syllabus of State v. Frazier, 162 W.Va. 935, 253 S.E.2d 534 (1979), we reaffirmed our established standard for the determination of such motions:

" 'A new trial will not be granted on the ground of newly-discovered evidence unless the case comes within the following rules: (1) The evidence must appear to have been discovered since the trial, and, from the affidavit of the new witness, what such evidence will be, or its absence satisfactorily explained. (2) It must appear from facts stated in his affidavit that plaintiff was diligent in ascertaining and securing his evidence, and that the new evidence is such that due diligence would not have secured it before the verdict. (3) Such evidence must be new and material, and not merely cumulative; and cumulative evidence is additional evidence of the same kind to the same point. (4) The evidence must be such as ought to produce an opposite result at a second trial on the merits. (5) And the new trial will generally be refused when the sole object of the new evidence is to discredit or impeach a witness on the opposite side.' Syllabus Point 1, Halstead v. Horton, 38 W.Va. 727, 18 S.E. 953 (1894)."

We have also observed that "[a] new trial on the ground of after-discovered evidence or newly discovered evidence is very seldom granted and the circumstances must be unusual or special." Syl. pt. 9, State v. Hamric, 151 W.Va. 1, 151 S.E.2d 252 (1966).

The record of the evidentiary hearing on appellant's motion reveals that after his conviction, the appellant was confined in the Pleasants County Jail. Philip Farson was arrested on arson charges on December 8, 1980, and the two men were confined either in the same cell, or in adjoining cells, for some time. Although Farson said they never discussed the fire, he did ask the appellant to call his attorney for him. Appellant's attorney then came to the jail and took a written confession from Farson, which was witnessed by a deputy sheriff.

Against his attorney's advice, Farson testified that he set fire to the Flowers' house, and that the appellant was nowhere near the property. He was, however, uncertain about details of the incident, most notably the time of the year that the fire occurred. His testimony showed that he and the appellant were close friends and neighbors; he was twenty-four years old, and had known the appellant all of his life. Before making his confession, Farson had on at least two occasions specifically denied setting the Flowers fire, when questioned by police and the fire marshal's investigator.

Farson was examined by psychologists in connection with his competency to stand trial on the other arson charges. One of the psychologists testified that although they discussed the arson charges, Farson never admitted that he had set any other fires. The psychologist found Farson to be functionally retarded, and susceptible to making major errors in judgment; however he concluded at the time of his evaluation that Farson was competent to stand trial. In his opinion, Farson was easily influenced and impressionable, and that helping a close friend, even to the extent of confessing to a crime, would be consistent with his type of behavior. Finally, he thought it was "highly likely" that Farson could be acting under the control of, or at the suggestion of, the appellant.

The special judge considered the close relationship between Farson and the appellant, his prior inconsistent statements about his involvement in the Flowers fire, and the indefiniteness of his testimony. He could not give much weight to Farson's testimony, and concluded that the confession would be offset by his inconsistent statements. He found, therefore, that it would not produce any different result at a new trial, and overruled the motion.

In light of the fact that Farson testified for the appellant at trial, we find it difficult to believe that this evidence could not have been discovered before trial, by the exercise of due diligence on the part of the appellant. We are...