State v. Wakefield
| Decision Date | 18 November 2015 |
| Docket Number | No. 14–0968.,14–0968. |
| Parties | STATE of West Virginia, Plaintiff Below, Respondent v. Richard WAKEFIELD, Defendant Below, Petitioner. |
| Court | West Virginia Supreme Court |
James T. Kratovil, Esq., Kratovil Law Offices PLLC, Charles Town, WV, for the Petitioner.
Brandon H. Sims, Esq., Assistant Prosecutor, Jefferson County Prosecutor's Office, Charles Town, WV, for the Respondent.
Petitioner Richard Wakefield, defendant below, appeals his convictions of two counts of sexual assault in the second degree and two counts of sexual assault in the third degree for which he was effectively sentenced to not less than ten nor more than twenty-five years in prison. Petitioner asserts four assignments of error alleging that the circuit court erred in the following respects: 1) in allowing the State to present an expert witness on the issue of GHB1 intoxication because the science behind the expert's testimony does not meet the Daubert standard; 2) in not allowing the Petitioner to introduce evidence or question the State's witness, Billy Carper, on what activity if any took place immediately prior to P.L.2 going into the house where she was allegedly assaulted; 3) in allowing the jury to consider both second degree sexual assault and third degree sexual assault based on the same act in violation of double jeopardy principles; and 4) in violating the Petitioner's confrontation clause rights by allowing the bailiff to have a conversation with a juror on February 12, 2014, about a potential witness. Having fully considered the parties' arguments, the record before us on appeal, and applicable legal precedent, we affirm the circuit court's order.
On February 18, 2014, at the conclusion of a three-day jury trial, the Petitioner was convicted of all four counts of Jefferson County Indictment 13–F–63, which charged him with two counts of sexual assault in the second degree and two counts of sexual assault in the third degree. Following a sentencing hearing on July 14, 2014, the circuit court, by order entered July 16, 2014, sentenced the Petitioner to an effective sentence of not less than ten nor more than twenty-five years in the penitentiary.3 Thereafter, following a hearing on August 4, 2014, and by order entered August 6, 2014, pursuant to West Virginia Code § 62–12–26, the court further ordered that the Petitioner be subject to the mandatory minimum of two years of supervised release following his release from incarceration. It is from these convictions and sentences that the Petitioner now appeals.
The evidence adduced at trial was that on June 10, 2012, the Petitioner, the alleged victim, P.L., and a third person, Billy Carper, met at Glory Days restaurant in Ranson, Jefferson County, for an early dinner. After an evening spent together, the Petitioner allegedly sexually assaulted P.L. inside Mr. Carper's house in the early morning hours of June 11, 2012.
At the time he allegedly committed the sexual assault of P.L., the Petitioner was a 56–year–old police officer with the Department of Homeland Security who worked with Mr. Carper at the Mount Weather facility in Loudoun and Clarke Counties in Virginia. The Petitioner and his wife resided in Titusville, Pennsylvania, but he commuted to Virginia several days each week residing at the barracks at Mount Weather. During the months preceding the sexual assault, the bunk rooms at Mount Weather were renovated, so when he was in the area for work, the Petitioner began to stay with his co-worker, Mr. Carper, who had a guest room. Thereafter, the Petitioner began to regularly stay at Mr. Carper's residence whenever he was in the area, including on weekends when he was not working. Mr. Carper, a native of the Jefferson County area, took the Petitioner to dinner and local bars in the area.
Mr. Carper introduced the Petitioner to P.L. on an evening prior to the night of the alleged sexual assault. The three planned to meet for an early dinner on June 10, 2012, at Glory Days. The men arrived first around 4:00 p.m., and ate and drank two beers while watching a NASCAR race on television. P.L., a 25–year–old co-worker at Mr. Carper's second job, joined the men later, sometime after 5:00 p.m. P.L. ate an appetizer and drank a beer.
After P.L. finished eating, the three drove in their separate cars to Mr. Carper's residence where the men showered and changed to go out for the evening. Approximately 45 minutes to an hour later, the three left Mr. Carper's residence in the Petitioner's vehicle. The three traveled to the Vista lounge where P.L. ate another appetizer and drank part of a beer. According to P.L., "we weren't there for very long, just long enough to eat." The three then went to the Turf in Charles Town, but decided not to stay because the jukebox was broken. From the Turf, the three went to Doc's bar, also in Charles Town, where they remained for several hours over the rest of the evening. P.L. drank several drinks while at Doc's, but testified that she did not finish all of them. During direct examination, P.L. testified:
Mr. Carper testified that P.L. did not appear to be intoxicated close to the time they left Doc's. P.L. herself testified that she did not feel intoxicated that night, was not slurring her words, had no trouble with balance or walking, and was never slumped over the bar or table. The three left Doc's around 1:00 a.m. P.L. testified that she recalled the Petitioner asking her and Mr. Carper if they were ready to leave, that she grabbed her phone, keys and purse, "and I remember walking out the door, and that is the last thing I remember."
According to P.L., her next memory was when "[she] woke up and [the Petitioner] was attempting to have sex with [her]." P.L. testified that she could clearly see the Petitioner because there was a light on in another room which provided sufficient illumination that "[she] knew exactly who it was." She testified that the Petitioner performed oral sex on her, after which he engaged in vaginal intercourse. P.L. stated that throughout this period, she "tried very hard to make [herself] move and [she] couldn't." Nor could she speak or verbally communicate. She testified that she felt helpless and described her experience by stating, "[i]magine trying so hard to force yourself to move and you can't do it no matter what force to move, trying so hard to make yourself stop, to say stop, and you can't even make yourself say stop." P.L. further described her physical symptoms during the Petitioner's sexual assault of her by stating, "[i]t was like being outside your body watching everything happen, but you can feel everything, you can feel every little touch, but at the same time not being able to do anything to make it stop." P.L. testified that at some point in the night while the Petitioner was present with her, she was "throwing up violently and uncontrollably not from nausea just violently, violently throwing up feeling like your stomach was being ripped out." However, she was unsure whether she was sick before or after the sexual assault.
P.L. testified that when she awoke in the morning, she was disoriented and wearing different clothing than she wore out the night before, including a pair of men's athletic shorts. She testified that she felt different than if she had a hangover. She stated, "[w]ell, normally when somebody is sick with alcohol, you're nauseous or have a headache, you know, when you're becoming intoxicated, you can feel that, I didn't have anything like that." She walked downstairs from the bedroom where she woke up and sought out Mr. Carper, with whom she stayed intermittently crying and sleeping for several hours. After several hours, she informed Mr. Carper that the Petitioner had sexually assaulted her during the night in the upstairs bedroom.
Mr. Carper testified that he and P.L. confronted the Petitioner about the sexual assault that morning. Initially Mr. Carper asked the Petitioner if "anything happened" upstairs during the night. The Petitioner responded, "not that I know of." Mr. Carper testified that the Petitioner did not deny that he sexually assaulted P.L., but instead repeatedly stated he was sorry and that he did not remember what happened. Upon further questioning by Mr. Carper, the Petitioner gave a detailed description of being with P.L. in the guest room. Mr. Carper testified that the Petitioner told him he was with P.L. "up until the point that she got sick and he was rubbing her back, then it seemed, he blacked out, then he woke up and walked downstairs, so it looks like there was some sort of gap there that he was not recalling." Mr. Carper testified that he confronted the Petitioner a second time later on June 11, 2012, and during this second conversation the Petitioner said, "I don't know how this could have happened," and "I might as well eat my gun." Mr. Carper also testified that the Petitioner twice told him, "I don't know why you don't just take me out right now." Throughout this period, the Petitioner was shaking violently. At one point, the Petitioner also stated he needed to call his wife and tell her "what happened."
In the afternoon before leaving Mr. Carper's residence with his...
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