State v. Welker, 17128

• Court: Supreme Court of West Virginia
• Citation: 357 S.E.2d 240,178 W.Va. 47
• Decision Date: 28 April 1987
• Docket Number: No. 17128,17128
• Parties: STATE of West Virginia v. Diana L. WELKER.

Page 240

357 S.E.2d 240

178 W.Va. 47

STATE of West Virginia v. Diana L. WELKER.

No. 17128.

Supreme Court of Appeals of

West Virginia.

April 28, 1987.

Rehearing Denied June 3, 1987.

Syllabus by the Court

1. "Circumstantial evidence will not support a guilty verdict, unless the fact of guilt is proved to the exclusion of every reasonable hypothesis of innocence; and circumstances which create only a suspicion of guilt but do not prove the actual commission of the crime charged, are not sufficient." Syl. Pt. 2, State v. Dobbs, 163 W.Va. 630, 259 S.E.2d 829 (1979).

2. "In a criminal case, the admissibility of testimony implicating another person as having committed a crime hinges on a determination of whether the testimony tends to directly link such person to the crime, or whether it is instead purely speculative. Consequently, where the testimony is merely that another person had a motive or opportunity or prior record of criminal behavior, the inference is too slight to be probative, and the evidence is therefore inadmissible. Where, on the other hand, the testimony provides a direct link to someone other than the defendant, its exclusion constitutes reversible error." Syl. Pt. 1, State v. Harman, 165 W.Va. 494, 270 S.E.2d 146 (1980).

3. Hearsay testimony not falling within any exception recognized by the West Virginia Rules of Evidence is inadmissible.

Dina M. Mohler, Asst. Pros. Atty., for appellant.

Roger P. Forman, Michael Crane, Charleston, for appellee.

NEELY, Justice:

On 25 April 1985, a Cabell County jury convicted Diana Welker of the premeditated murder of her four-year-old daughter Patricia. On appeal Mrs. Welker raises several assignments of error. Because we find three of Mrs. Welker's assignments meritorious, we reverse and remand for a new trial.

I

At about 7:30 p.m. on 15 February 1984, Mrs. Welker and her live-in boyfriend, David Adkins, reported the disappearance of four-year-old Patricia Welker to the State Police. Mrs. Welker claimed not to know the whereabouts of Patricia, but offered several hypotheses, all of which she knew to be false. After the police had searched for Patricia for a week without success, Mrs. Welker confessed to Corporal Robert Estep of the State Police that she and David Adkins had, on 15 February 1984, placed Patricia's dead body into the Kanawha River.

In her statement, Mrs. Welker claimed that, on 15 February 1984, she had left Patricia at home in a perfectly healthy and normal condition. Mrs. Welker had gone out to attend appointments with her lawyer and her counselor at about 1:00 p.m. on 15 February 1984, and returned at about 4:00 p.m. Upon her return, Mrs. Welker stated, she found Patricia dead.

Mrs. Welker stated that she and David Adkins took Patricia's body down to the Kanawha River at about 7:00 p.m. on 15 February 1984. When Mrs. Welker was asked why she had reported Patricia missing Mrs. Welker stated, "because I was scared, I thought they would accuse me of doing something to Patricia." Mrs. Welker indicated in her statement that she had spanked Patricia "a little too hard" on the evening of 14 February 1984. Mrs. Welker stated that she had hit Patricia with her open hand on her buttocks and lower back, which areas were badly bruised by the beating.

At trial, several witnesses testified that Patricia Welker and David Welker, Mrs. Welker's infant son, had been neglected and abused in the past. Dr. David Allie testified that David Welker had been brought to the emergency room at Thomas Memorial Hospital on 24 December 1983 by David Adkins and Mrs. Welker. Dr. Allie found David Welker to be very dehydrated, listless, unresponsive, thin and battered. The inside of David's mouth was so dry that the lining of the mouth was cracked and bleeding. The child was severely undernourished, and was bruised on his arms, legs and buttocks. David had open sores on his genitals and a laceration on his head. David was subsequently treated by other doctors for a fractured leg, a broken nose, and a fractured jaw.

Arnold Scarberry testified that he had observed Diana Welker striking and cursing Patricia with little or no provocation on several occasions. Mr. Scarberry also testified that David Welker often appeared filthy and undernourished. Mr. Scarberry further testified that he had at various times observed bruises on David Welker's head, chest and arms, bite marks on David Welker's leg, and burns on David Welker's legs and genitals.

Kim Turley testified that Diana Welker cursed Patricia when Patricia wanted attention or food, that Diana was unkind to David, that Diana had whipped both children, and that Diana had whipped Patricia with a belt on several occasions.

Ralph Welker, the estranged husband of Diana, and the father of Patricia and David, testified that he had seen Diana whip Patricia with a belt, and had had to intervene during one such beating because Diana was going "too far." Mr. Welker further testified that while he and Diana were living together and David Welker was young, he had discovered welts on his son's buttocks while changing his diaper. However, Dr. Ward Harshbarger, David Welker's treating physician, testified that, when David had been hospitalized eight months earlier for a lung infection (before Mrs. Welker had met Mr. Adkins), he had shown no signs of abuse.

Several other witnesses offered testimony essentially corroborating the testimony recited above. Although there was no direct evidence that Diana had actually killed Patricia, there was substantial circumstantial evidence from which a jury might reasonably have inferred that Diana Welker had maliciously and premeditatedly caused her daughter's death.

II

Appellant's most serious assignment of error concerns the refusal of the trial court to admit testimony that would have tended to exculpate her. On 18 April 1985, about three weeks into the trial, counsel for Mrs. Welker informed the trial court in chambers that they had reason to believe that David Adkins had confessed to a Mrs. Louise Morrison that he had killed Patricia Welker. It appears that a Mrs. Claytor had informed counsel for Mrs. Welker that Mrs. Morrison had told her of David Adkins' confession. When counsel contacted Mrs. Morrison directly, Mrs. Morrison told counsel that she had made a commitment to David Adkins not to divulge the substance of their conversation. Mrs. Morrison expressed a reluctance to testify regarding her conversation with David Adkins, and counsel apparently intended to subpoena her.

As represented by counsel for Mrs. Welker, Mrs. Morrison's testimony would have revealed that: David Adkins had confessed to killing Patricia Welker; Diana had not been home at the time of the slaying; David Adkins was angry with Patricia for getting between him and the television; Patricia's eyes had popped out of her head, she had foamed at the mouth, and her little legs had kicked against the wall; and David Adkins had watched Patricia Welker die.

The trial court ruled that Mrs. Morrison's testimony regarding David Adkins' statements to her were inadmissible hearsay. We disagree. Rule 804(b) of the West Virginia Rules of Evidence states:

The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: * * * (3) Statement against Interest.--A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man [person] in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissable [admissible] unless corroborating circumstances clearly indicate the trustworthiness of the statement.

We find that the testimony of Mrs. Morrison, had it been similar to that which was represented by counsel, would have fallen squarely within this exception to the hearsay rule. The statement clearly tended to subject David Adkins to criminal liability, and tended to exculpate Diana Welker. Moreover, corroborating circumstances clearly indicate the trustworthiness of the statement. There was substantial evidence on the record tending to show that David Adkins is a man of loathsome character eminently capable of such an act. Moreover, as we shall discuss below, there was substantial probative and admissible evidence regarding David Adkins' sordid past that was kept from the jury.

We held in Syllabus Point 2 of State v. Dobbs, 163 W.Va. 630, 259 S.E.2d 829 (1979):

Circumstantial evidence will not support a guilty verdict, unless the fact of guilt is proved to the exclusion of every reasonable hypothesis of innocence; and circumstances which create only a suspicion of guilt but do not prove the actual commission of the crime charged, are not sufficient to sustain a conviction.

As we stated above, the prosecution presented substantial circumstantial evidence from which the jury could have inferred Mrs. Welker's guilt. However, the substance of Mrs. Morrison's potential testimony raises the reasonable hypothesis that David Adkins, and not Diana Welker, killed Patricia Welker. The jury was entitled to hear this testimony, evaluate its credibility, and weight it against the evidence tending to prove the guilt of Diana Welker. Until Mrs. Morrison's testimony has been heard and evaluated, Diana Welker's conviction for first degree murder cannot be sustained.

III

Appellant's second assignment of error concerns the refusal of the trial court to admit into evidence portions of David Adkins' psychiatric records and the testimony of other witnesses regarding David Adkins' past behavior. This evidence tended to show that: Mr. Adkins has a history of physical and sexual abuse of children; Mr. Adkins suffers from visual and auditory hallucinations; Mr. Adkins interprets these...