State v. Stewart

• Decision Date: 20 December 1977
• Docket Number: No. 13744,13744
• Citation: 161 W.Va. 127,239 S.E.2d 777
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Allen Eugene STEWART.

Page 777

239 S.E.2d 777

161 W.Va. 127

STATE of West Virginia v. Allen Eugene STEWART.

No. 13744.

Supreme Court of Appeals of West Virginia.

Dec. 20, 1977.

Syllabus by the Court

1. "A witness can be impeached by statements made by him out of court only when such statements are contradictory to his testimony. If there is no substantial variance between such statements and his testimony, statements cannot be introduced for purposes of impeachment." Syllabus point 19 of State v. Price, 92 W.Va. 554, 115 S.E. 393 (1922).

2. A new trial on the basis of newly-discovered evidence will generally be refused when the sole object of the new evidence is to discredit or impeach a witness on the opposite side. However, when the newly-discovered impeachment evidence comes within the following rules, a new trial will be granted: (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) The facts must appear in his affidavit that the party 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) The evidence must be new and material, and not merely cumulative. (4) The evidence must be such as ought to produce an opposite result at a second trial on the merits.

Hague, Rudolph, Hague & Lantz, Eugene T. Hague and George E. Lantz, Parkersburg, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., Dennis M. Abrams, Asst. Atty. Gen., Charleston, for defendant in error.

McGRAW, Justice:

This is an appeal from a final order of the Circuit Court of Jackson County, by which order the circuit court entered judgment on a jury verdict finding the defendant guilty of delivery of a controlled substance. The defendant was sentenced to a term of one to five years in the West Virginia Penitentiary.

The undisputed facts are as follows:

On February 27, 1974, the regular Grand Jury for Jackson County, West Virginia, returned an indictment against the defendant, Allen Eugene Stewart, charging him with delivery of a controlled substance to D. M. Caldwell. Defendant entered a plea of not guilty to this indictment.

On July 1, 1974, defendant filed motions for particular information and for discovery. The State responded to the defendant's motion by stating that the alleged crime occurred on October 10, 1973; that the persons present at the time and place of the alleged crime were Trooper D. M. Caldwell; and that "an individual by the name of Dennis Ketchum, address unknown, may have been present." The State said that the witnesses it intended to call at the trial were Jeffrey Miller and R. C. Murphy. The defendant also filed a motion to disqualify the prosecuting attorney, Joseph C. Hash, Jr., as well as any of his present assistants on the ground that Mr. Hash had counseled with the defendant since the return of the indictment. An order was entered disqualifying the prosecuting attorney, Joseph C. Hash, Jr., and his present assistants. Philip E. D'Orazio, Assistant Prosecuting Attorney of Wood County, West Virginia, was appointed special prosecuting attorney, and on December 2, 1974, the State filed a "Supplemental Answer to Defendant's Motion for Particular Information" which added to the list of persons present at the time and place of the alleged crime a Richard Blackburn and an infant child. Three days later the State filed another "Supplemental Answer" stating that the witnesses it intended to call at trial were Trooper D. M. Caldwell, S. W. Kanick and Dennis Ketchum, rather than Jeffrey Miller and R. C. Murphy.

The case was set for trial on March 24, 1975, at which time a jury trial was conducted, and a deadlock jury resulted. Thereafter, the defendant filed a motion, with exhibits, to dismiss the indictment on the ground that the disqualified prosecuting attorney had interfered with the prosecution of the case since his disqualification, or in the alternative, to continue the trial. Both motions were overruled, and on July 14 and 15, 1975, a second jury trial was conducted and a verdict of guilty resulted.

At trial the defendant attempted to impeach the credibility of the witness Caldwell by using the testimony of Joseph C. Hash, Jr., to show an inconsistent statement of Caldwell with regard to persons purportedly present at the scene of the alleged crime. The trial court disallowed this evidence.

At the conclusion of the State's case, the defendant moved to declare a mistrial on the basis of the "confusing, erroneous and misleading" discovery responses that had been furnished to the defendant prior to the trial. This motion was overruled. Shortly thereafter the defendant filed a motion to set aside the jury verdict and award a new trial, assigning eleven separate grounds in support thereof. The motion was overruled by the trial court, whereupon the defendant moved the court to refer the matter to its probation officer for a presentence investigation and to place the defendant on probation. This motion for probation was denied, final judgment of conviction was entered, sentence of one to five years in the West Virginia Penitentiary was imposed, but a stay to allow the defendant an opportunity to appeal to this Court was granted.

On or about December, 1975, defendant filed a written motion, with exhibits, to reconsider probation, to vacate the judgment on the grounds of fraud and failure of the State to disclose exculpatory evidence, and to set aside the verdict and award a new trial on the ground of newly-discovered evidence.

Incident to these motions and upon the request of defendant, the trial court ordered that "the official transcript of the testimony of Dennis O. Ketchum, given in this Court on November 3, 1975, in connection with criminal case no. 1029 and the official transcript of the proceedings in this Court on December 5, 1974, in connection with the case of State of West Virginia vs. Brian Bashow, no. 852, be filed and made a part of the record in this case."

None of the matters testified to by Ketchum set out below were known by defendant or his counsel until a transcript of Ketchum's testimony was made available to them on or about November 21, 1975.

On December 19, 1975, the trial court denied the motion to reconsider probation and overruled the motions to vacate judgment and award a new trial.

I

Defendant's initial assignment of error is that the trial court erred in denying a defense motion to either dismiss the indictment or in the alternative to grant a continuance on the grounds that Joseph C. Hash, Jr., the previously disqualified prosecuting attorney, became involved in the prosecution of this case. For example, defendant argues that, "During the first trial of this case in March of 1975, it was shown clearly that Hash had interviewed, subsequent to his disqualification, the state's paid informer, Dennis Ketchum, concerning his knowledge and recollection of the incident which forms the basis for the indictment" and refers this Court to page 69 of the record submitted to us on appeal. Page 69 of the record before us is a copy of the second page of the defendant's July 7, 1975, post-trial motion to dismiss the indictment wherein he alleged to the court below that the above-mentioned interview took place.

It is fundamental in this state that this Court, in deciding a case before it, cannot consider errors that are not documented in the record. See, e. g., Mahoney v. Walter, W.Va., 205 S.E.2d 692 (1974). The general rule is that, "On error, the appellate review of a ruling of the circuit court is limited to the very record made there." Syllabus point 1 of Hartman v. Corpening, 116 W.Va. 31, 178 S.E. 430 (1935). This rule was applied in the similar case of State v. Comstock, 137 W.Va. 152, 70 S.E.2d 648 (1952), where the defendant alleged, but failed to document, that the grand jury was irregularly constituted since a jury commissioner was appointed by one without authority to do so. Since the defendant's claim that Prosecuting Attorney Hash improperly intervened in the case does not fairly arise from the record, we cannot consider it.

II

The defendant further asserts that discovery responses furnished to the defendant were incorrect and misleading in that they were inconsistent with the evidence brought forth at the trial by the State and cites as error the trial court's failure to grant a mistrial.

This Court formulated the test regarding noncompliance with a pre-trial discovery order in the case of State v. Cowan, 156 W.Va. 827, 835, 197 S.E.2d 641, 646 (1973):

Whether the failure to disclose is a fatal non-compliance with a pre-trial order depends on its prejudicial effect on the preparation and presentation of the defendant's case.

In the case at bar, the witnesses called at trial were D. M. Caldwell, S. W. Kanick and Dennis Ketchum. Caldwell and Kanick testified, while Ketchum invoked his fifth amendment privilege against self-incrimination and refused to testify. At the end of the trial, the defendant's motion to declare a mistrial was overruled by the trial court.

We find that the State, through its response to discovery and subsequent amendments thereto, gave the defendant at least three months prior to the trial the names of the witnesses that it called at trial. This is not a case where the defendant was surprised with matters brought forth at trial of which he had no knowledge. We find that the furnishing of an ultimately accurate list of witnesses three months before trial did not sufficiently prejudice the defendant's case so as to warrant appellate relief.

III

The defendant also assigns as error the trial court's refusal to allow him to impeach the credibility of the state's main witness by introducing evidence of a prior inconsistent statement. Trooper Caldwell, who was the lone prosecuting witness as to the alleged transaction, testified...