State v. Woodall

• Decision Date: 06 July 1989
• Docket Number: No. 18662,18662
• Citation: 385 S.E.2d 253,182 W.Va. 15
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Glen Dale WOODALL.

Page 253

385 S.E.2d 253

182 W.Va. 15

STATE of West Virginia v. Glen Dale WOODALL.

No. 18662.

Supreme Court of Appeals of West Virginia.

July 6, 1989.

[182 W.Va. 18] Syllabus by the Court

1. Under W.Va.R.Evid., Rule 702, expert testimony concerning generally recognized tests is presumptively admissible and the burden of excluding such testimony is upon the side seeking exclusion. However, when a test is novel or not generally accepted, that circumstance alone meets the threshold requirement of rebutting any presumption of admissibility under Rule 702 and, therefore, with regard to tests that are not generally accepted the burden of proof that the test is reliable remains on the proponent.

2. When senior appellate courts have concluded that a test is generally accepted by the scientific community, a trial court may take judicial notice of a test's reliability.

3. The reliability of DNA typing analysis is now generally accepted in this jurisdiction when such test is properly conducted by qualified personnel.

4. When a scientific test made after trial has proved so inconclusive as to be irrelevant, any error in not ordering the test initially is rendered harmless.

5. The touchstone for admitting any out-of-court identifications is the reliability of the identification, considering the length of time since the crime, the level of certainty given by the victim, the opportunity during the crime to observe the trait in question, and the degree of attention to the trait during the crime.

6. "Kidnapping has not been committed when it is incidental to another crime. In deciding whether the acts that technically constitute kidnapping were incidental to another crime, courts examine the length of time the victim was held or moved, the distance the victim was forced to move, the location and environment of the place the victim was detained, and the exposure of the victim to an increased risk of harm." Syl. Pt. 2, State v. Miller, W.Va. , 336 S.E.2d 910 (1985).

7. The defendant's double jeopardy rights are not violated by convictions of separate counts of sexual assault, based on repeated violations of the victim within a relatively short period, when there is conclusive evidence of elapsed time between separate violations.

8. Severe prison sentences, including life without parole, for serious crimes against the person, are not cruel or unusual punishment.

9. When the trial judge hears that jurors may have discussed the case among themselves, and he interviews them, admonishes them, and concludes that they can determine the facts fairly, it is not error for him to refuse a mistrial.

10. "If circumstantial evidence concurs in pointing to the accused as the perpetrator of the crime, he may properly be convicted." Syl. Pt. 4, State v. Phillips, W.Va. , 342 S.E.2d 210 (1986).

11. "In certain circumstances evidence of the flight of the defendant will be admissible in a criminal trial as evidence of the defendant's guilty conscience or knowledge." Syl. Pt. 6, State v. Payne, 167 W.Va. 252, 280 S.E.2d 72 (1981).

12. "The admissibility of evidence as rebuttal is within the sound discretion of the trial court, and the exercise of such discretion does not constitute ground for reversal unless it is prejudicial to the defendant." Syl. Pt. 4, State v. Massey, W.Va. , 359 S.E.2d 865 (1987).

Jeffrey L. Hall, Asst. Atty. Gen., Charleston, for State of W.Va.

Rudolph L. DiTrapano, Lonnie C. Simmons, DiTrapano & Jackson, Charleston, for Glen Dale Woodall.

NEELY, Justice:

On 22 January 1987, at about 1:15 p.m., a woman was abducted at knife point from the parking lot of the Huntington Mall in Barboursville, West Virginia by a man wearing a ski mask. The masked assailant forced the victim to shut her eyes throughout While driving the car, the assailant had the victim raise her arms. He tore and cut her clothing and fondled her breasts. He ordered her to spread her legs. When she refused, he forced them apart, saying, "Spread your legs, bitch, and do what I tell you to and you won't get hurt. I'm only going to keep you a few minutes and then I'll let you go." He ordered her up and jerked her skirt aside. He hacked the victim's underwear with a knife and fingered her genitals. Holding the knife to her genitals, the assailant threatened to cut her up. "You don't think I'll do it, do you, bitch?" The victim pled for mercy. Driving on a few minutes, the attacker then forced the victim to fellate him, again holding a knife to her throat. Angered at her attitude, he jerked her up into her seat. The victim sought solace in prayer. Her attacker accosted her, "What are you doing, bitch? You talk to me. What are you up to?" He again forced fellatio. While that continued he cut the victim's skirt and fingered her rectum, then her vagina. Claiming she didn't enjoy his attacks, he made her sit again with her head in her lap.

[182 W.Va. 19] the attack. Repeatedly threatening to kill her, the assailant drove the victim in her own car around Cabell County. The victim could not identify the environs through which they drove.

Stopping the car, the attacker forced the victim to her knees. He threatened her again, "You better shut up, bitch, because I'll kill you. I've killed someone before and I'll do it to you." He sodomized her and then raped her. He then forced her into the back seat of the car, had her lie on her stomach, and sodomized her. He then raped her again. Biting the victim on the back, the attacker dismounted and had the victim get in the front seat and compose herself. He again threatened, "I'm going to have to kill you because I know you saw me."

The assailant searched the victim's purse, taking all her money ($5.00) and her watch. He again forced fellatio. The victim briefly opened her eyes, noting that the attacker wore brown pants and that he was uncircumcised. Cursing her, the assailant then let her out of the car. He claimed a friend was following who would hurt her if she opened her eyes; he knew who she was, he said, and his friend would kill her if she called the police.

When she finally opened her eyes, the victim was alone on a roadside. She sought help from a woman nearby. It was then 2 p.m. Forty-five minutes had passed since the abduction began.

Another woman was held in the same terror a few weeks later, on 16 February 1987. At 3 p.m. she entered her car in the Huntington Mall parking lot and then got out again to scrape ice from the windscreen. As she reentered the car, a man jumped her, struck her, and forced her into the passenger seat. He told her to shut up and close her eyes. "If you know who I am or if you see me, I'll kill you," he threatened. He rummaged through her pocketbook, accosted her by name, and asked her personal questions. He claimed to be acting for a friend revenging some slight by the victim.

The attacker bound the victim's eyes and hands with tape. He seized the gold wristwatch she wore. The victim was able to see slightly with her right eye, and observed that the assailant drove her car out of the parking lot and onto Interstate 64 East. On the way he pulled open the victim's clothing and fingered her vagina. He forced the victim to fellate him, then he struck her and pushed her back to the passenger side of the car. As the car slowed to a stop at the Milton exit, the victim tried to unlock the door to escape. The attacker struck her to the floor, and yelled that he would kill her if she tried to escape.

The assailant drove into a secluded spot and parked to "wait" for his "buddy" in a van (he said). He took off the victim's clothes, climbed atop her and raped her. After a bit, he forced her to climb on top of him, maneuvering within the car, and raped her again. He turned the victim on her stomach and again raped her. He then flipped her over onto her back and again raped her.

The assailant had the victim put on her clothes, and began driving the car. He told her, "You'll not live to see another day. You won't see anything else." He stopped the car, claiming his "buddy's van" was there. He taped the victim's hands to the gearshift, then took some time wiping the car interior and effects with paper towels he found there. He left her. She counted to sixty several times, then looked up to see that she had been returned to the Huntington Mall. About an hour had passed since she had first been abducted. She drove herself to a hospital.

Glen Dale Woodall stands convicted of nineteen criminal counts arising from these two attacks on women in the Huntington area. Counts one through seven charged first degree sexual assault as to the first victim, ¹ count eight charged first degree sexual abuse as to the first victim, ² count nine charged kidnapping of the first victim, ³ and count ten charged aggravated robbery of the first victim. ⁴ Counts eleven through fifteen charged first degree sexual assault of the second victim. Counts sixteen and seventeen charged first degree sexual abuse of the second victim, count eighteen charged kidnapping of the second victim, and count nineteen charged aggravated robbery of the second victim.

At trial, the victims' accounts of the crimes were largely undisputed, and the major issue was the identity of the assailant. The defendant's case consisted largely of alibi testimony, which the jury rejected. The prosecution's case consisted primarily of circumstantial evidence, which, taken together, the jury found convincing.

The evidence against Mr. Woodall included blood analysis of the defendant, compared to semen samples recovered from the victims; body hair and beard hair from the defendant compared to hair recovered from the car where victim one was attacked; an out-of-court voice identification of the defendant by victim two; a partial visual identification by victim two; a distinctive smell about the assailant noted by both victims, found also at the defendant's workplace; victim two's identification of the assailant's hair color, compared to the...