State v. Zaccagnini

• Decision Date: 29 September 1983
• Docket Number: No. 15726,15726
• Citation: 308 S.E.2d 131,172 W.Va. 491
• Parties: STATE of West Virginia v. Rudy ZACCAGNINI, Jr.
• Court: West Virginia Supreme Court

Page 131

308 S.E.2d 131

172 W.Va. 491

STATE of West Virginia v. Rudy ZACCAGNINI, Jr.

No. 15726.

Supreme Court of Appeals of West Virginia.

Sept. 29, 1983.

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 on the 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.' Point 2, syllabus, State v. Wooldridge, 129 W.Va. 448, 40 S.E.2d 899 (1946)." Syllabus Point 1, State v. Sette, 161 W.Va.384, 242 S.E.2d 464 (1978).

2. " 'A present hostile sentiment against an accused, extending throughout the entire county in which he is brought to trial, is good cause for removing the case to another c ounty.' Point 2, syllabus, State v. Dandy, 151 W.Va. 547, 153 S.E.2d 507 (196 7), quoting point 1, syllabus, State v. Siers, 103 W.Va. 30, 136 S.E. 503 (1927)." Syllabus Point 2, State v. Sette, 161 W.Va. 384, 242 S.E.2d 464 (1978).

3. "A common law privilege is accorded the government against the disclosure of the identity of an informant who has furnished information concerning violations of law to officers charged with the enforcement of the law. However, disclosure may be required where the defendant's case could be jeopardized by nondisclosure." Syllabus Point 1, State v. Haverty, 165 W.Va.164, 267 S.E.2d 727 (1980).

4. "Where the government has an obligation to identify its undercover informant or agent, its failure to do so will not ordinarily be error if the defense was already aware of the informant's identity." Syllabus Point 2, State v. Haverty, 165 W.Va. 164, 267 S.E.2d 727 (1980).

5. "For evidence of the guilt of someone other than the accused to be admissible, it must tend to demonstrate that the guilt of the other party is inconsistent with that of the defendant." Syllabus Point 5, State v. Frasher, 164 W.Va.572, 265 S.E.2d 43 (1980).

6. Although a witness' testimony has been contradicted by testimony from another witness, this does not mean that his reputation for truth and veracity has been impeached, such that there is an automatic right to put on character witnesses to testify on the issue of truth and veracity.

7. "We have generally defined hearsay as where a witness testifies in court with regard to out-of-court statements of another for the purpose of proving the truth of the matter asserted." Syllabus Point 9, State v. Richey, 171 W.Va.342, 298 S.E.2d 879(1982).

8. Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.

Franklin D. Cleckley, Morgantown, Frank C. Mascara, Fairmont, for appellant.

Charles E. Anderson, Pros. Atty., and Jay Montgomery Brown, Asst. Pros. Atty., Fairmont, for appellee.

MILLER, Justice:

This is an appeal by Rudy Zaccagnini, Jr., from an order of the Circuit Court of Marion County sentencing him to three consecutive terms in the state penitentiary for delivery of LSD, possession of LSD with intent to deliver, and possession of cocaine with intent to deliver. The defendant claims that the trial court committed reversible error in denying his motion for change of venue, and in refusing to grant a continuance when it became apparent that the prosecution intended to call a previously unidentified informant as a witness. The defendant also contends that the court erred in making certain evidentiary rulings and in sentencing him to multiple terms for crimes growing out of the same transaction. After a careful examination of the record and the law, we find that no reversible error was committed.

On September 9, 1981, Ronald "Frog" Burroughs, who was acquainted with the defendant, entered the People's General Store in Fairmont which was operated by the defendant and purchased three sheets of LSD stamps from the defendant. Burroughs, at the time, was working in concert with police officers as an undercover agent. The police who were standing outside the store were able to observe much of the transaction. After Burroughs emerged from the store, the officers obtained a warrant to search the premises. They also obtained warrants for the arrest of the defendant and two other people who, they believed, aided and abetted him. When they arrested the defendant they found a small amount of cocaine on his person. They also found marked money which they had previously provided Burroughs for the purchase of the drugs. Additionally, inside the People's General Store, they seized a case containing 2100 LSD stamps and a quantity of cocaine.

Subsequently, at the November Term of the Circuit Court of Marion County, the defendant was indicted for: (1) delivery of LSD; (2) possession of LSD with intent to deliver; and, (3) possession of cocaine with intent to deliver.

I.

The defendant's first assertion is that the trial court erred in denying the motion for a change of venue. In State v. Sette, 161 W.Va. 384, 242 S.E.2d 464 (1978), we discussed the circumstances under which a change of venue should be granted and stated in Syllabus Points 1 and 2:

"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 on the 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.' Point 2, syllabus, State v. Wooldridge, 129 W.Va. 448, 40 S.E.2d 899 (1946).

"2. 'A present hostile sentiment against an accused, extending throughout the entire county in which he is brought to trial, is good cause for removing the case to another county.' Point 2, syllabus, State v. Dandy, 151 W.Va. 547, 153 S.E.2d 507 (1967), quoting point 1, syllabus, State v. Siers, 103 W.Va. 30, 136 S.E. 503 (1927)."

See State v. Gangwer, 169 W.Va. 177, 286 S.E.2d 389 (1982); State v. Peacher, 167 W.Va. 540, 280 S.E.2d 559 (1981).

Additionally, we have rather consistently recognized that widespread publicity alone does not require a change of venue, nor does proof that prejudice exists against the accused. The critical question is whether the prejudice against the accused is so great that he cannot get a fair trial. State v. Gangwer, supra; State v. Boyd, 167 W.Va. 385, 280 S.E.2d 669 (1981); State v. Peacher, supra; State v. Pratt, 161 W.Va. 530, 244 S.E.2d 227 (1978).

The defense counsel attempted to demonstrate that the defendant could not receive a fair trial by introducing affidavits and newspaper articles and by voir dire examination of the veniremen. The bulk of the affidavits were forms containing the same general language which was conclusionary in nature. The substance of the affidavits was that because of the publicity about the defendant, in the affiant's view, the defendant could not obtain a fair trial. ¹ Such affidavits and copies of published articles often are relevant evidence on a change of venue issue. However, we have generally held that affidavits which only state the opinion of the affiant that local prejudice exists will not alone support the granting of a change of venue. State v. Riley, 151 W.Va. 364, 151 S.E.2d 308 (1966); State v. Douglass, 41 W.Va. 537, 23 S.E. 724 (1895).

Most of the newspaper articles gave factual accounts of the events surrounding the defendant's arrest. ² One indicated that officers had obtained warrants to examine the defendant's business records and income tax returns. Others reported that chemical analysis indicated that items seized at the People's General Store contained LSD, that the defendant was indicted, and that his motion for a continuance was denied. Photographs were printed showing the People's General Store after the police search and also showing items confiscated.

The principal statement of opinion was contained on the editorial page of the September 13, 1981, issue of the The Fairmont Times-West Virginian. That article referred to a drug arrest but made no mention of the defendant by name and concluded: "We are also encouraged that the public will view the arrests as an indication that the drug problem is solvable. That in itself would be a giant step forward."

Significantly, the majority of the articles appeared within a month of the defendant's arrest. Less than one column inch of newspaper coverage was given to him after the month of his arrest. It does not appear from the exhibits filed that his name was mentioned by the newspaper in the month before his trial.

At the commencement of the trial on February 9, 1982, some five months after his arrest, the court permitted defense counsel to question the panel. In response to the voir dire, ten jurors of twenty-three who were initially called were excused for cause. Those jurors either expressed some knowledge of the case or were otherwise equivocal about their ability to render an impartial verdict based on the evidence. ³ We do not believe from the entire record surrounding the motion for a change of venue that the court abused its discretion in refusing the defendant's motion for a change of venue.

II.

The defendant's second claim is that the trial court erred in refusing to grant a continuance, on the afternoon before the trial, when the prosecution first disclosed the name and its intention to use informant Burroughs as a witness for...