State v. Wayne, 13768

• Decision Date: 11 July 1978
• Docket Number: No. 13768,13768
• Parties: STATE of West Virginia v. William Ellsworth WAYNE.
• Court: West Virginia Supreme Court

Page 838

245 S.E.2d 838

162 W.Va. 41

STATE of West Virginia v. William Ellsworth WAYNE.

No. 13768.

Supreme Court of Appeals of West Virginia.

July 11, 1978.

Syllabus by the Court

1. Specific performance of a plea bargain is an available remedy only when the party seeking it demonstrates that he has relied on the agreement to his detriment and cannot be restored to the position he held before the agreement.

2. "Prior out-of-court statements may be used to impeach the credibility of a witness and a prior inconsistent statement may be introduced concerning any specific matter about which the witness has testified at trial; however, where the witness does not testify contrary to his prior statement but demonstrates an absence of memory, such prior statement must be used sparingly to demonstrate lack of integrity in the witness or the reason for surprise to the party which calls him, but these legitimate purposes may not be used as a ruse for introducing inadmissible evidence." Syllabus pt. 2, State v. Spadafore, W.Va., 220 S.E.2d 655 (1975).

3. "Instructions unsupported by evidence are properly refused." Syllabus pt. 5, State v. Wilson, 145 W.Va. 261, 114 S.E.2d 465 (1960).

4. In a case in which a jury may return a verdict of first degree murder, the defendant is entitled to any instruction on the interrelationship between a recommendation of mercy and parole which correctly states the law; however, when a court gives an instruction on this subject which correctly states the law and to which the defendant does not object, the defendant may not later assign such instruction as error.

James M. Bradley, Jr., Parkersburg, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., Paul T. Farrell, Asst. Atty. Gen., Charleston, for defendant in error.

NEELY, Justice:

Appellant, William Ellsworth Wayne, was convicted of first degree murder by a jury in the Circuit Court of Wood County. The conviction was based on the felony murder statute, W.Va.Code, 61-2-1 (1923) and the jury found that Wayne, while attempting to rob Felder's grocery store, shot and killed Arthur Herman Felder, the proprietor. We affirm.

I

Appellant contends that the trial court should have accepted his proffered guilty plea to second degree murder pursuant to a plea bargaining agreement with the prosecuting attorney. Although the facts are not fully developed on the record, it appears that the prosecuting attorney withdrew his alleged offer to accept a plea to second degree murder, although appellant thought it had been accepted.

While we recognize a plea bargain agreement may be specifically enforced in some instances, Brooks v. Narick, W.Va., 243 S.E.2d 841 (1978), that remedy is not available unless the party seeking specific performance demonstrates he has relied on the agreement to his detriment and cannot be restored to the position he held before the agreement. However, mere negotiation cannot be transformed into a consummated agreement merely by an exercise of the defendant's imagination. While we do not require that a plea bargain agreement be written, although that is the far better course, we do require substantial evidence that the bargain was, in fact, a consummated agreement, and not merely a discussion. ¹ Court approval, whether formal or informal is advised. ² Call v. McKenzie, W.Va., 220 S.E.2d 665 (1975).

The record in this case is devoid of any development of facts surrounding the alleged plea bargain. No written bargain appears in the record; the terms of the alleged agreement are not developed; the defendant has given no evidence of reliance; and, the defendant has not shown that his position was irrevocably altered. Therefore, the trial court did not err in refusing to enforce what was apparently more of a discussion of a plea than an actual agreement.

II

Appellant assigned as error the trial court's refusal to permit the defense the opportunity to impeach its own witness, Russell Everett Byers. Apparently Mr. Byers had made a statement to the police that another person had told him that this other person, i. e., extra judicial declarant, had seen two persons running from Felder's grocery store, which evidence would have been inconsistent with the prosecution's theory that the defendant entered and left the store alone. On direct examination, Mr. Byers testified that he remembered making a statement to the police but did not remember what he said. The defense attempted to use the prior statement to impeach Mr. Byers, but the State objected and the objection was sustained.

The general rule is that one may not impeach his own witness absent entrapment, hostility or surprise. State v. Blankenship, 137 W.Va. 1, 69 S.E.2d 398 (1952). Appellant has not demonstrated and it does not appear from the record that any entrapment, hostility, or surprise was present. We are not persuaded that the traditional distinction in the criminal law between a "State" witness and a "defense" witness has much substance when its effect is to cause relevant testimony to be excluded. In fact, all witnesses are "court" witnesses and abstract rules concerning when a witness may be declared "hostile" and cross examined, other than to avoid leading questions, do very little to further the administration of justice. "The ascertainment of truth is the purpose of every trial; and rules of evidence which thwart that purpose or which tend toward rendering a correct determination of the issue more uncertain are inherently unsound." State v. Wolfe, 109 W.Va. 590 at 593, 156 S.E. 56 at 58 (1930). Criminal trials are not games of forfeits nor exercises in techniques of ambush. Woodall v. Laurita, 156 W.Va. 707, 195 S.E.2d 717 (1973). Recognition of the artificial nature of these rules has been implicitly demonstrated by the fact that the case law shows the exceptions have eaten the rules. ³

Nonetheless, in the case before us the witness did not testify against the defendant, nor did he say anything which could be "impeached." He merely testified that he could not remember, a condition concerning his state of mind at the trial which could not be impeached. We reached this exact issue in State v. Spadafore, W.Va., 220 S.E.2d 655 (1975) where we said:

The orthodox rule which regard to prior inconsistent statements is that such statements cannot be accorded any value as substantive evidence. The reasoning which justifies this rule is that a prior out-of-court statement has not been made in the presence or hearing of the party against whom it is sought to be used and was not elicited under circumstances which permitted exploration of the witness's perception, memory, or prejudice. Therefore, under the orthodox rule, the only authorized use of a prior statement is to neutralize contrary testimony at trial. Id., 220 S.E.2d at 661.

Consequently, the trial court acted properly in thwarting the defendant's effort to introduce the witness's prior statement as substantive evidence through the guise of impeachment.

III

State's Instruction No. 1, which was given, said:

The offense charged in the indictment in this case is murder in the first degree. One of three verdicts may be returned by you under the indictment. They are (1) guilty of murder of the first degree; (2) guilty of murder of the first degree with a recommendation of mercy; (3) not guilty.

Appellant contends that the lower court should have instructed the jury concerning second degree murder and proffered Defendant's Instruction No. 18:

If you have a reasonable doubt as to the grade of the offense of which the Defendant, William Ellsworth Wayne, may be guilty you shall resolve that doubt in his favor and find him guilty of the lower grade, and if you have a reasonable doubt as to whether he is guilty of any offense you must resolve that doubt in his favor and find him not guilty.

The court properly refused to give Defendant's Instruction No. 18. While it is reversible error for a trial court to refuse to instruct a jury on lesser offenses charged in the indictment if there is any evidence in the record to prove such lesser offenses, ...