State v. Wilson

• Decision Date: 05 March 1974
• Docket Number: No. 13337,13337
• Citation: 157 W.Va. 566,202 S.E.2d 828
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. John WILSON, 111.

Page 828

202 S.E.2d 828

157 W.Va. 566

STATE of West Virginia v. John WILSON, 111.

No. 13337.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 2, 1973.

Decided March 5, 1974.

Syllabus by the Court

1. 'To warrant a change of venue in a criminal case, there must be a showing of good cause therefor, the burden of which rests upon defendant, the only person who, in any such case, is entitled to a change of venue. The good cause aforesaid must exist at the time application for a change of venue is made. Whether, on the showing made, a change of venue will be ordered, rests in the sound discretion of the trial court; and its ruling thereon will not be disturbed, unless is clearly appears that the discretion aforesaid has been abused.' Point 2, Syllabus, State v. Wooldridge, 129 W.Va. 448, 40 S.E.2d 899 (1946).

2. 'Where the record of a criminal trial shows that the cumulative effect of numerous errors committed during the trial prevented the defendant from receiving a fair trial, his conviction should be set aside, even though any one of such errors standing alone would be harmless error.' Point 5, Syllabus, State v. Smith, W.Va., 193 S.E.2d 550 (1972).

Franklin D. Cleckley, Morgantown, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., Richard E. Hardison, Deputy, Gen., Betty L. Caplan, Asst. Atty. Gen., Charleston, for defendant in error.

CAPLAN, Chief Justice:

At the January Term, 1972, of the Circuit Court of Monongalia County, the grand jury thereof returned an indictment charging the defendant, John Wilson, III, with the crime of possession and delivery of a controlled substance known as heroin. Upon trial, the jury returned a verdict of guilty as charged in the indictment. Thereafter, the defendant moved the court to set aside the jury verdict and grant him a new trial. That motion was denied and on May 8, 1972, the court entered judgment on the verdict, sentencing the defendant to confinement in the state penitentiary for a term of one to fifteen years. Upon the petition of the defendant a writ of error and supersedeas was granted by this Court.

The record reveals that on November 20, 1971, Terry Murray, twenty-two years of age, was in the employ of the City of Morgantown as a special investigator. In this employment it was his duty to investigate the reported sale and use of drugs in that area. Specifically, he was assigned to make purchases of illegal drugs and to report such purchases to the police.

In that capacity, Terry Murray, on November 20, 1971, approached John Wilson III, at an apartment at 312 Cobun Avenue in Morgantown. Murray testified that shortly after he was admitted to the apartment, the defendant asked him if he wanted to buy some 'junk'. When he asked the price thereof, the defendant took him into the bedroom and produced four packets of a white powdery substance which he said he would sell for twnety dollars. Murray further testified that he gave the defendant twenty dollars and took the four packets, placing them in his trouser pocket. He said that he later marked each packet, indicating the date of purchase, from whom he made the purchase and the price he paid therefor. He then delivered the packets to Patrolman McCabe, a member of the Morgantown Police Department, who, after placing his identifying marks thereon, turned them over to Trooper J. R. Rogers of the West Virginia Department of Public Safety. For the purpose of obtaining a chemical analysis of the contents of the packets, Trooper Rogers personally delivered them to Sergeant R. S. White, a chemist for the Criminal Identification Bureau Laboratory in Charleston.

The defendant testified, denying that he made any sale to Terry Murray and affirmatively stating that on November 20, 1971, at the time the sale of heroin was alleged to have been made, he was at his home at 163 Walnut Street in the City of Morgantown.

Subsequently, on December 4, 1971, defendant Wilson and others were placed under arrest, being charged with the sale of a controlled substance, namely, heroin. Upon indictment and arraignment, the defendant, on January 5, 1972, entered a plea of not guilty and a jury trial was set. On January 17, 1972, prior to the trial, the defendant filed numerous motions, all of which were overruled by the court. On January 20, 1972, a jury was impaneled and the trial proceeded to verdict, which, as aforesaid, was returned against the defendant.

One of the principal assignments of error relied upon by the defendant on this appeal is that the court committed reversible error by denying his motion for a change of venue. The law with respect to a change of venue is succinctly stated in Point 2 of the Syllabus of State v. Wooldridge, 129 W.Va. 448, 40 W.E.2d 899 (1946), as follows:

To warrant a change of venue in a criminal case, there must be a showing of good cause therefor, the burden of which rests upon defendant, the only person who, in any such case, is entitled to a change of venue. The good cause aforesaid must exist at the time application for a change of venue is made. Whether, on the showing made, a change of venue will be ordered, rests in the sound discretion of the trial court; and its ruling thereon will not be disturbed, unless it clearly appears that the discretion aforesaid has been abused.

Accord: State v. Dandy, 151 W.Va. 547, 153 S.E.2d 507 (1967); State v. Pietranton, 140 W.Va. 444, 84 S.E.2d 774 (1954); and State v. Loveless, 142 W.Va. 809, 98 S.E.2d 773 (1957).

As provided in Article III, Section 14 of the Constitution of West Virginia, an accused, 'for good cause shown', may petition for and obtain a change of venue. Basically, the good cause alluded to in the constitution which the defendant must prove is that he cannot get a fair trial in the county where the offense was alleged to have been committed. Therefore, the underlying consideration is whether the...