State v. Starr, 13483

CourtSupreme Court of West Virginia
Citation158 W.Va. 905,216 S.E.2d 242
Docket NumberNo. 13483,13483
PartiesSTATE of West Virginia v. Ralph E. STARR.
Decision Date24 June 1975

Syllabus by the Court

1. A prosecutor's misstatement of the law in closing argument, made after the trial court has properly charged the jury on the legal principles applicable to the case, does not constitute reversible error unless the accused is prejudiced.

2. Where the State's case against one accused of the crime of accessory before the fact was based primarily on circumstantial evidence, the prosecutor's statement in closing argument, made over objection, that knowledge was not an essential element of the crime, was highly prejudicial to the accused and constituted reversible error.

3. Proffered instructions which do not correctly state the law, which are at variance with the charge in the indictment, which are not supported by the evidence, or which are abstract, are erroneous and should be refused.

4. Although it is a well-settled policy that the Supreme Court of Appeals normally will not rule upon unassigned or imperfectly assigned errors, this Court will take cognizance of plain error involving a fundamental right of an accused which is protected by the Constitution.

5. The State must prove, at least by a preponderance of the evidence, that confessions or statements of an accused which amount to admissions of part or all of an offense were voluntary before such may be admitted into the evidence of a criminal case.

Steptoe & Johnson, Robert M. Steptoe, Jr., Clarksburg, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., Richard E. Hardison, Deputy Atty. Gen., David P. Cleek, Asst. Atty. Gen., Charleston, for defendant in error.

HADEN, Chief Justice:

This is an appeal and supersedeas granted on the petition of Ralph E. Starr who was convicted in the Circuit Court of Harrison County for being an accessory before the fact to the crime of robbery by force. See W.Va.Code 1931, 61--11--7.

On the evening of June 8, 1972, two masked men forced the manager of the Garden Fresh Market in Shinnston into his car at gunpoint and made him drive out to a country road where they robbed him. Earlier, several State and local police officers had placed the area under surveillance, after receiving a tip that a crime would be committed at the market. The police observed Ralph Starr drive past the market several times during the 'stake-out.' Then Starr was seen to drive into the market's parking area and let out the two men who, shortly thereafter, masked themselves, abducted the store manager and drove off in the manager's vehicle.

The police attempted to follow the store manager's car and to apprehend the robbers, but lost them in traffic. While traveling nearby side roads in search of the vehicle carrying the manager and his abductors, the officers came upon Starr in his automobile. They stopped and arrested him. The unidentified robbers, however, were never found.

At trial, the manager also was unable to identify the robbers and acknowledged, in response to questioning, that the robbers said nothing which would indicate they had an accomplice or that they were to be picked up by a 'getaway' car. No other testimony of the manager implicated Starr in the robbery. The defendant testified that the identity of the robbers was unknown to him; that the occasion for their presence with him at the time and place of the crime was that they were hitchhiking; that they had accompanied him from Clarksburg to Shinnston; and that they had exited his car when he stopped to phone his wife at a pay-telephone at the Garden Fresh Market lot. Starr denied any knowledge of the two men's intentions to rob the store manager. In the State's case in chief, however, an incriminating statement made by the defendant after arrest was admitted over Starr's objection. Therein the defendant responded to a question concerning the whereabouts of the robbers with the rejoinder that 'he was to meet his friends back at the store to get his money.' On this appeal, Starr assails both the validity and voluntariness of that statement.

From the foregoing it is apparent that Ralph Starr's conviction was based primarily on circumstantial evidence. That alone, however, furnishes no basis for reversal of the judgment against him.

In his petition the appellant asserts that he was prejudiced because the trial court erred: (1) in permitting the prosecutor to argue that the State, in order to obtain a conviction, was not required to prove that the defendant knowingly aided and abetted the commission of an armed robbery; (2) in confusing the jury by giving two State instructions which attempted to define 'beyond a reasonable doubt;' and (3) in refusing to give one of defendant's instructions which stated that criminal intent is an essential element of the crime of being an accessory before the fact.

Pertinent to the first assignment of error, the defense attorney had stated in his final argument:

'That is not the question, the question is whether he intended to aid them or whether he knew he was aiding them . . .. Ralph isn't charged with aiding and abetting, he is charged with knowingly aiding and abetting, intentionally aiding and abetting and the evidence must show this intent and this knowledge.'

The prosecutor in rebuttal explained to the jury:

'I think that Counsel for the Defense is somewhat confused when he speaks to you about the charge in the indictment. There is no charge of knowingly aiding and abetting. We don't have to show that Ralph Starr knew what he was doing, because that is not a part of the indictment . . . (Objection; no ruling indicated) We have to show what the facts are. We don't have to show by our evidence that Starr knew what he was doing. We have to show what Starr did, what the evidence was and the result of that and from then on, is he guilty or innocent?'

It is indisputable that knowledge is an essential element of the crime charged. The element of knowledge is implicit in every circumstance defining the crime:

'An accessory before the fact is a person who being absent at the time and place of the crime, procures, counsels, commands, incites, assists, or abets another person to commit the crime . . ..' Part Syllabus point 2., State ex rel. Brown v. Thompson, 149 W.Va. 649, 142 S.E.2d 711 (1965).

In fact, the State concedes in its brief that a person may not be punished as an accessory before the fact, if it is not shown that the criminal act was done knowingly. The Attorney General contends, however, that the purport of the prosecutor's closing argument was to tell the jury that they could infer knowledge on defendant's behalf from other evidence. If such was the prosecutor's intent, it certainly was not stated clearly.

The State further argues that the jury was well aware of the knowledge requirement, because three instructions given by the court included this requirement; that the jury cannot be presumed to have disregarded these instructions; and that, assuming the prosecutor's remarks were improper, there was no indication that the jury was misled or confused or that such error contributed to the conviction, citing State v. Britton, W.Va., 203 S.E.2d 462 (1974). The Britton decision does not sustain the State's position. That case merely recognized the rule of harmless constitutional error, but applied the standard that the State must show that such error was harmless beyond a reasonable doubt or that there was no reasonable possibility that the error complained of might have contributed to the conviction. The principle applied in Britton has no application to the error assigned here.

There are many West Virginia cases dealing with improper remarks or conduct of a prosecuting attorney. See, e.g.: State v. Bowman, W.Va., 184 S.E.2d 314 (1971); State v. Gory, 142 W.Va. 5, 93 S.E.2d 494 (1956); State v. Loveless, 140 W.Va. 875, 87 S.E.2d 273 (1955); State v. Lewis, 133 W.Va. 584, 57 S.E.2d 513 (1949); State v. Simon, 132 W.Va. 322, 52 S.E.2d 725 (1949); State v. Cutlip, 131 W.Va. 141, 46 S.E.2d 454 (1948); State v. Taylor, 130 W.Va. 74, 42 S.E.2d 549 (1947); State v. Beacraft, 126 W.Va. 895, 30 S.E.2d 541 (1944); State v. Seckman, 124 W.Va. 740, 22 S.E.2d 374 (1942); State v. Cook, 94 W.Va. 166, 117 S.E. 777 (1923); State v. Huff, 80 W.Va. 468, 92 S.E. 681 (1917); State v. Jarrell, 76 W.Va. 263, 85 S.E. 525 (1915); State v. Mooney and Friday, 49 W.Va. 712, 39 S.E. 657 (1901); State v. Shawn, 40 W.Va. 1, 20 S.E. 873 (1894); State v. Shores, 31 W.Va. 491, 7 S.E. 413 (1888). None, however, directly concern a prosecutor's misstatement of the law in closing argument which occurs after the trial court has properly charged the jury on the legal principles applicable to the case. This is the problem at issue.

The general principles applicable to the situation are broadly stated in 23A C.J.S. Criminal Law § 1110 (1961):

'Misstating law. It is error, or at least improper, for the prosecuting attorney in his argument to misstate the law applicable to the case, and the court may at any time interrupt counsel to correct his statement of the law or may do so in the charge. However, as long as the prosecuting attorney's argument is not contrary to the instructions given by the court, he is not bound to reach correct or sound conclusions as to the law; and, in the absence of prejudice to the accused, the fact that the prosecuting attorney argues an erroneous proposition of law is not such error as to warrant a reversal.' Id. at 219--20.

As indicated by the textual statement, the test for error is whether the misstatements were prejudicial to the accused. See and compare: State v. Bail, 140 W.Va. 680, 88 S.E.2d 634 (1955); State v. Lewis, 133 W.Va. 584, 57 S.E.2d 513 (1949).

A Virginia decision has addressed the issue. In Cox v. Commonwealth, 140 Va. 513, 125 S.E. 139 (1924), that court held that it was 'highly prejudicial' error for the prosecutor to misstate...

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