State v. Wood

CourtSupreme Court of West Virginia
Citation167 W.Va. 700,280 S.E.2d 309
Docket NumberNo. 14611,14611
PartiesSTATE of West Virginia v. David Robert WOOD.
Decision Date17 July 1981

Syllabus by the Court

"The extent of the cross-examination of a witness is a matter within the sound discretion of the trial court; and in the exercise of such discretion, in excluding or permitting questions on cross-examination, its action is not reviewable except in case of manifest abuse or injustice." Syl. pt. 4, State v. Carduff, 142 W.Va. 18, 93 S.E.2d 502 (1956).

C. Blaine Myers, Parkersburg, for Wood.

Chauncey H. Browning, Atty. Gen., Marianne K. Hoover, Asst. Atty. Gen., Charleston, for the State.

PER CURIAM:

This is an appeal by David Robert Wood from a final judgment of the Circuit Court of Wood County, overruling his motion to set aside the verdict and grant a new trial and sentencing him to the state penitentiary upon a jury verdict of breaking and entering.

Wood advances three arguments in his brief in this appeal. The chief ground relied on is that the trial court so restricted his right to cross-examine the State's key witnesses that he was denied his right to effective cross-examination. Second, he contends the prosecutor's conduct in eliciting testimony that a co-indictee had pled guilty to his role in the crime and in referring to that fact in closing argument was improper and constitutes reversible error. Finally, Wood's counsel argues that he was ineffective in his representation at trial because he failed to timely object to improper closing argument and failed to move for a mistrial. We affirm.

Wood was indicted along with Shirl J. Lipscomb for the February 19, 1978 breaking and entering of a TV and appliance store located in Parkersburg, West Virginia. The State's primary witnesses were the co-indictee, Lipscomb, and another alleged participant in the crime, Darrell Wade. Both testified that Wood was present and participated in the breaking and entering, but their testimony is substantially conflicting as to the details surrounding the commission of the crime. Lipscomb testified that he remained outside as a lookout and that Wood and Wade entered the building. Wade, on the other hand, testified that he remained outside as a lookout and that the defendant and Lipscomb entered the building. Lipscomb and Wade disagreed on the number of persons who participated in the crime, on who kicked the door down in order to gain entrance, on who went inside and carried out the appliances, on the number of items actually taken, on where the items were physically placed in the car, on whose car was actually used, and on who left the scene of the crime in the car. In closing argument, Wood's counsel dealt heavily on the conflicting testimony.

The restriction of defense counsel's cross-examination primarily involved matters that occurred after the commission of the crime. One of the coparticipants, Wade, had indicated at the defendant's preliminary hearing that he along with other coparticipants had gone back to the same appliance store some three days later and had stolen additional items. At trial, Wade was asked by defense counsel if this occurred and denied that it had. Defense counsel wanted to impeach Wade's denial by having his attorney testify from his notes taken at the preliminary hearing and by asking the store manager if a second breaking and entering had occurred. The court declined this line of inquiry on the basis it was evidence of a collateral crime.

The trial court also refused inquiry of Wade as to what was done with the merchandise stolen in the first breaking and entering, which defense counsel claims would have shown that the defendant did not assist in the disposing of the merchandise. Finally, the court did...

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20 cases
  • State v. Davis
    • United States
    • Supreme Court of West Virginia
    • March 25, 1986
    ...pt. 7, State v. Driver, 88 W.Va. 479, 107 S.E. 189 (1928).15 See also Syl. pt. 10, State v. Gum, supra note 13; Syl., State v. Wood, 167 W.Va. 700, 280 S.E.2d 309 (1981); Syl. pt. 18, Long v. City of Weirton, 158 W.Va. 741, 214 S.E.2d 832 (1975); Syl. pt. 1, State v. Charlot, 157 W.Va. 994,......
  • State v. Gum, 15673
    • United States
    • Supreme Court of West Virginia
    • November 10, 1983
    ...... Page 36 . the exercise of such discretion, in excluding or permitting questions on cross-examination, its action is not reviewable except in the case of manifest abuse or injustice.' Syl. pt. 4, State v. Carduff, 142 W.Va. 18, 93 S.E.2d 502 (1956)." Syl., State v. Wood, 167 W.Va. 700, 280 S.E.2d 309 (1981). .         11. "Where improper evidence of a nonconstitutional nature is introduced by the State in a criminal trial, the test to determine if the error is harmless is: (1) the inadmissible evidence must be removed from the State's case and a ......
  • State v. Richey
    • United States
    • Supreme Court of West Virginia
    • December 15, 1982
    ...Virginia Lawyers §§ 20, 21 (1978). The third rule is that the trial judge has discretion as to the extent of cross-examination. State v. Wood, 167 W.Va. 700, 280 S. E.2d 309 (1981); State v. Charlot, 157 W.Va. 994, 206 S.E.2d 908 The specific area involved in the present case is whether a w......
  • State v. Pancake
    • United States
    • Supreme Court of West Virginia
    • September 21, 1982
    ...... See Fed.R.Evid. 402. See generally, Annot., Constitutionality of "rape shield" statute restricting use of evidence of victim's sexual experiences, 1 A.L.R.4th 283 (1980 and Supp.). The assessment of relevance of any evidence is a trial judge's responsibility. See State v. Wood, 167 W.Va. 700, 280 S.E.2d 309 (1981); State v. Gangwer, 168 W.Va. 190, 283 S.E.2d 839 (1981); State v. Cox, 162 W.Va. 915, 253 S.E.2d 517 (1979); Ward v. Smith, 140 W.Va. 791, 86 S.E.2d 539 (1955). Accord, State v. Howard, Utah, 544 P.2d 466, 470 (1975). See also Turley v. State, Ala.App., ......
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