State v. Spicer

• Decision Date: 14 July 1978
• Docket Number: No. 13885,13885
• Parties: STATE of West Virginia v. Roger Dale SPICER.
• Court: West Virginia Supreme Court

Page 922

245 S.E.2d 922

162 W.Va. 127

STATE of West Virginia v. Roger Dale SPICER.

No. 13885.

Supreme Court of Appeals of West Virginia.

July 14, 1978.

Syllabus by the Court

1. Other criminal act evidence admissible as part of the res gestae or same transaction introduced for the purpose of explaining the crime charged must be confined to that which is reasonably necessary to accomplish such purpose.

2. In a prosecution for armed robbery, evidence that the defendant abducted the victim at knifepoint is admissible to prove the crime charged, and evidence that the defendant raped the victim during the same transaction is also admissible to the extent necessary to explain or prove the crime charged in the indictment.

3. Where the prosecution improperly introduces evidence of other criminal acts as part of the res gestae or same transaction beyond that reasonably required to accomplish the purpose for which it is offered, and makes remarks concerning such other crime evidence in argument for the purpose of inflaming the jury, the conviction will be reversed on the ground that the defendant was denied the fundamental right to a fair trial.

Michael F. Gibson, Johnston, Holroyd & Gibson, Princeton, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., William D. Highland, Asst. Atty. Gen., Charleston, for defendant in error.

McGRAW, Justice:

The defendant, Roger Dale Spicer, was convicted in the Circuit Court of Mercer County for the armed robbery of some three dollars and was sentenced to confinement in the penitentiary for a term of twenty years. A petition for writ of error and supersedeas was granted from a final order denying the defendant's motion to arrest and set aside the verdict and grant a new trial. We reverse the judgment of the circuit court and remand the case for a new trial on the ground that the trial was so permeated, from beginning to end, with evidence of criminal acts not charged in the indictment, and prosecutorial comments relating thereto, that the defendant was prejudiced and denied his fundamental right to a fair trial.

There are three assignments of error to the trial court judgment which may be briefly stated as follows: (1) the evidence of collateral criminal acts, though not totally inadmissible, was so extensive and excessive that it prejudiced the defendant and denied him a fair trial; (2) the trial court erred in not directing a verdict of acquittal at the close of the State's case in chief because venue was not proven beyond a reasonable doubt; and (3) that the trial court erred in granting, over objection, an instruction for the State advising the jury that only a verdict of guilty of armed robbery or not guilty could be returned.

In order to discuss the defendant's first assignment of error, it is necessary to discuss the nature and extent of the evidence introduced on the armed robbery charge. In opening the statement, the State advised the jury that they would hear evidence "not only of fear but of a full night of terror," because the defendant had twice raped the armed robbery victim. Similarly, the State indicated that $3.00 was a "small sum of money actually, considering all that occurred . . . ."

The State's first witness in its case in chief, the alleged armed robbery victim, testified that she had been abducted at knife point from a parking lot near a store where she had gone one evening to purchase medicine for one of her children; that she was warned if she tried anything she would be left in a ditch with her guts cut out; that she was driven against her will in her own vehicle to a remote area, where she was twice raped (she testified in great detail concerning the rapes, including an aborted effort to force her to perform oral sodomy on the accused); that the defendant closed the knife just prior to the first act of intercourse; that she did what the defendant required of her only because she was afraid that otherwise she would be killed; that following the initial act of intercourse, the defendant removed from her purse some three dollars; and that it was because of fear that she made no objection to the money being taken from her wallet.

Defense counsel made timely objections at trial and at the pretrial stage to the introduction of evidence relating to the abduction and rape evidence. After calling the woman to whose home the victim had gone for help shortly after being released, and two police officers who testified about the defendant's arrest and his oral admission, the State called two doctors who, based on their examination of the victim shortly after the alleged armed robbery, testified that scientific tests they performed established that the victim had engaged in intercourse within the time period she was allegedly raped. The testimony of the doctors was strenuously objected to on the grounds that it was immaterial, irrelevant, and highly prejudicial.

The defendant's principal objection concerns the admissibility of the evidence given by the two doctors. Following an in camera hearing, the trial court ruled the evidence admissible on the grounds that the defense had mentioned the occurrence of rape in opening statement and on cross-examination of the victim, and, in any case, if it was error to admit sperm test results, it wouldn't make it any worse. The State adamantly argued for admissibility on the ground that such evidence was necessary to corroborate the victim's testimony. The defense argued that the victim's testimony had been corroborated by the testimony of other witnesses, particularly the testimony of the woman residing in the house where the victim had sought refuge. She testified that the victim cried nearly thirty (30) minutes she was at her home, and that she had said "the worse has happened."

During closing argument, the prosecution told the jury that "(H)owever much time he (Spicer) spends in the penitentiary will never give Mary (the victim) back what she lost that night, and I don't mean three dollars. It will never repay her. . . ." The jury returned a verdict of guilty after deliberating for slightly more than one hour.

I

The defendant does not contend that the evidence of an abduction at knife point and rape is totally inadmissible and could not be mentioned at trial. It is conceded that these criminal acts are so interrelated to the crime charged that they are admissible under the fourth exception to the general prohibition against other criminal act evidence set forth in State v. Thomas, W.Va., 203 S.E.2d 445, 455 (1974). ¹ That concession was compelled by the law of this state which has long recognized a res gestae or same transaction exception to the rule that evidence of other crimes is inadmissible. ² In State v. Spencer, 97 W.Va 325, 125 S.E. 89 (1924), the Court held, in a trial for violating the prohibition laws, that evidence showing the defendant when arrested was armed with a deadly weapon was admissible as part of the res gestae. Accord, White v. People, 177 Colo. 386, 494 P.2d 585 (1972) (en banc) (in forcible rape trial not error to admit evidence tending to establish kidnapping, assault, and sodomy); Greentree v. State, Ind., 351 N.E.2d 25 (1976) (in rape trial not error to admit testimony of sodomy and robbery where committed contemporaneously); Grinnell v. State,230 So.2d 555 (Miss.1970) (in involuntary manslaughter trial not error to mention deaths of other occupants of car); Cavett v. State, 505 S.W.2d 289 (Tex.Cr.App.1974) (in robbery by assault trial not error to admit evidence of robbery and rape committed by continuous assault so as to be part of same transaction).

Nonetheless, the defense contends the excessive employment or "shotgunning" of evidence relating to rape which was immaterial, irrelevant, and highly prejudicial denied him a fair trial. For its part, the State confesses error on this assignment of error stating in its brief that the defendant's trial "was so permeated by evidence of rape put on by the prosecution and by references to rape by the prosecutor, that he was, in reality, tried for rape under the guise of an armed robbery indictment, and thus was denied due process by not having been given notice of the charge against which he had to defend himself."

Although the court obviously does not countenance an indictment for one offense and a trial on another, the appropriate inquiry is whether the defendant has been denied a fair trial as a result of the evidence and prosecutorial comments thereon.

We reject the contention that the doctors' testimony was necessary to corroborate the victim's testimony or that the defendant invited error. First, the record indicates the victim's testimony was corroborated otherwise and second, even if the State needed to corroborate the victim's testimony, a less prejudicial route...