State of WV v. Helmick
Annotate this Case
IN THE SUPREME COURT OF APPEALS OF WEST
VIRGINIA
September 1997 Term
_____________
No. 23785
_____________
STATE OF WEST VIRGINIA,
Appellee
v.
BRIAN HELMICK,
Appellant
____________________________________________________________________
Appeal from the Circuit Court of Harrison
County
Honorable Thomas A. Bedell, Judge
Criminal Action No. 95-F-23-2
AFFIRMED
____________________________________________________________________
Submitted: September 10, 1997
Filed: October 3, 1997
James E. Hawkins, Jr.,
Esq. Darrell
V. McGraw, Jr. Esq.
Buckhannon, West
Virginia Attorney
General
Attorney for the
Appellant Molly
M. McGinley, Esq.
Assistant
Attorney General
Charleston,
West Virginia
Attorneys
for the Appellee
JUSTICE MAYNARD delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. "
' "A new trial will not be granted on the ground of newly-
discovered evidence unless the case comes within the following
rules: (1) The evidence must appear to have been discovered since
the trial, and, from the affidavit of the new witness, what such
evidence will be, or its absence satisfactorily explained. (2) It
must appear from facts stated in his affidavit that plaintiff was
diligent in ascertaining and securing his evidence, and that the
new evidence is such that due diligence would not have secured it
before the verdict. (3) Such evidence must be new and material,
and not merely cumulative; and cumulative evidence is additional
evidence of the same kind to the same point. (4) The evidence
must be such as ought to produce an opposite result at a second
trial on the merits. (5) And the new trial will generally be
refused when the sole object of the new evidence is to discredit
or impeach a witness on the opposite side." Syllabus, State
v. Frazier, 162 W.Va. [9]35, 253 S.E.2d 534 (1979), quoting, Syl.
pt. 1, Halstead v. Horton, 38 W.Va. 727, 18 S.E. 953 (1894).'
Syl. Pt. 1, State v. King, 173 W.Va. 164, 313 S.E.2d 440
(1984)." Syllabus Point 1, State v. O'Donnell, 189 W.Va.
628, 433 S.E.2d 566 (1993).
2. "A
new trial on the ground of after-discovered evidence or newly
discovered evidence is very seldom granted and the circumstances
must be unusual or special." Syllabus Point 9, State v.
Hamric, 151 W.Va. 1, 151 S.E.2d 252 (1966).
3. Under
Rule 801(d)(2)(E) of the West Virginia Rules of Evidence, a
declaration of a conspirator, made subsequent to the actual
commission of the crime, may be admissible against any
co-conspirator if it was made while the conspirators were still
concerned with the concealment of their criminal conduct or their
identity.
4. An
error in admitting hearsay evidence is harmless where the same
fact is proved by an eyewitness or other evidence clearly
establishes the defendant's guilt.
Maynard, Justice:
The defendant
below, appellant, Brian Helmick, was charged with conspiracy to
commit murder in the October 23, 1994 shooting death of Michael
W. Hart, Jr. Following a jury trial on April 3 to April 5, 1995
in the Circuit Court of Harrison County, West Virginia, the
defendant was found guilty and sentenced to a prison term of one
to five years. On appeal to this Court, the defendant assigned
three errors seeking reversal of his conviction. For the reasons
that follow, we affirm the conviction.
I.
FACTS
Shortly before midnight on Sunday, October 23, 1994 in Clarksburg, West Virginia, Michael W. Hart, Jr. was killed as a result of a shotgun blast to his back. When police arrived a few minutes after the shooting, they found Hart lying in the road in front of the SuperAmerica convenience store, where he worked. As a result of the ensuing police investigation, the defendant, Brian Helmick, along with Lee Allen and Jason Henthorne were charged with conspiracy to commit murder in Hart's death. Counsel for the co-defendants moved for, and the circuit court granted, separate trials for each of the co-defendants.
At the
defendant's April 1995 trial, the State offered six witnesses.
Relevant to this appeal, one of the witnesses, Charlene Foster,
testified that about one week to ten days prior to Hart's
shooting, the defendant Helmick, Allen, and Henthorne were
together at her apartment. According to Foster, the three talked
about how they hated Hart, ultimately formulating a plan in which
they would hide behind a fence surrounding the SuperAmerica where
Hart worked and shoot him in the back when he came out to check
the soft drinks. Foster testified that the defendant and
Henthorne left her apartment to telephone SuperAmerica to see if
Hart was working that night. When it was discovered that Hart was
not working, the alleged plan of the three to shoot Hart was
temporarily foiled.
Another
witness, John Goots, testified, over the objection of defense
counsel, to the acrimonious relationship between Henthorne and
Hart. He also testified, again over the objection of defense
counsel, that the day following Hart's murder, Henthorne admitted
to killing Hart with a 12-gauge shotgun by shooting through the
fence beside SuperAmerica while Hart was stacking Cokes.
Finally, Amy Below testified that she drove Henthorne to the SuperAmerica the night of Hart's murder, on an apparent quest to purchase more beer for a party they were both attending. According to Below, she was sitting in her
car around the corner from SuperAmerica waiting for Henthorne
to return when she heard a loud bang and saw Henthorne running
back to the car, looking scared, with shotgun in hand. Apparently
at this time Below realized that she was an unwitting accomplice
to the crime. She testified that she then drove Henthorne to his
house and he took the shotgun inside.
The defendant,
who was the only witness the defense presented, denied
involvement in or any knowledge of a conspiracy to kill Hart. He
admitted that he, Allen, and Henthorne were at Foster's apartment
on the night she indicated, but that it was Foster who initiated
a discussion regarding Hart, and no one discussed killing Hart
that night. According to the defendant, he did leave Foster's
apartment with Henthorne for the purpose of calling SuperAmerica
to see if Hart was working. However, he contends the reason for
Henthorne's call was to affect a reconciliation with Hart.
According to the defendant's brief, Lee Allen was acquitted of the charge of conspiracy to commit murder in an August 1995 trial. The defendant also stated that, in addition to the witnesses who testified in his trial, C. Michael McDonald, Henthorne, and Allen testified at Allen's trial. According to the defendant, McDonald, a former beau of Charlene Foster, testified that Foster advised
him that it was her idea to murder Hart. McDonald also
testified that he had personally witnessed a gun in Foster's
apartment, which Foster claimed to be her own, but that is
inconsistent with Foster's testimony. At the defendant's trial,
Foster testified she did not own guns or allow them in her
apartment. Henthorne, who had earlier pleaded guilty to Hart's
murder, testified that there was no plan or scheme to kill Hart,
and that he murdered Hart without the assistance of anyone.
Further, he corroborated McDonald's testimony that it was Foster
who suggested killing Hart and not Allen, as Foster had
testified. Finally, according to the defendant, Allen testified
that to the best of his knowledge Hart's murder was unplanned. He
further testified that neither he nor the defendant assisted in
Hart's murder. He added that Foster's account of the alleged
conspiracy was not the truth.
Shortly after Allen's acquittal, the defendant moved for a new trial based on newly discovered evidence pursuant to Rule 33 of the West Virginia Rules of Criminal Procedure. This motion was based on the testimony of McDonald, Allen, and Henthorne at Allen's trial. By order of September 15, 1995, the circuit court denied the defendant's motion for a new trial based on the testimony of Allen and Henthorne, concluding that "none of the criteria for a new trial as set forth in Rule 33 of the West Virginia Rules of Criminal Procedure had been met[.]" Specifically, the court found:
a) Trial
counsel for the defendant did not present either Lee Allen or
Jason Henthorne as witnesses at trial, and no subpoena was issued
for their attendance at trial.
b) Trial counsel
elected not to provide the testimony of Lee Allen or Jason
Henthorne at the trial of the defendant, Brian Helmick.
c) There is no
indication that trial counsel attempted to interview the
co-defendants, Lee Allen or Jason Henthorne.
d) That there is
a (sic) reasonable likelihood the testimony of Lee Allen or
Jason Henthorne ought to produce an opposite result since Lee
Allen's testimony at his trial was subject to scrutiny, and the
testimony of Jason Henthorne at the trial of Lee Allen was
unbelievable.See footnote 1 1
In an order
entered on November 9, 1995, the court also denied the
defendant's motion for a new trial based on the testimony of
McDonald at Allen's trial, by stating:
a) The defendant
has failed to show that the admission of the testimony of J.
Michael McDonald ought to produce an opposite result in a new
trial since Mr. McDonald's testimony would be introduced to
impeach the credibility of the State's witness. That witness'
credibility was fully and adequately tested in the trial in this
matter.
b) The defendant
admits that the sole purpose for the introduction of the
testimony of Mr. McDonald is to impeach a witness who testified
on behalf of the State. A new trial is generally refused when the
sole purpose of the new evidence is to discredit or impeach on
the opposite side.
On appeal, the
defendant requests that this Court reverse his conviction and
remand his case for a new trial.
II.
DISCUSSION
First, the
defendant asserts that the trial court erred in refusing his
motion for a new trial based upon newly discovered evidence.
According to Rule 33 of the West Virginia Rules of Criminal
Procedure (1981)See
footnote 2 2 , "[t]he court on motion of a
defendant may grant a new trial to him if required in the
interest of justice." "The question of whether a new
trial should be granted is within the discretion of the trial
court and is reviewable only in the case of abuse." State
v. Crouch, 191 W.Va. 272, 275, 445 S.E.2d 213, 216 (1994)
(citation omitted).
It is
well-settled that,
"
'A new trial will not be granted on the ground of
newly-discovered evidence unless the case comes within the
following rules: (1) The evidence must appear to have been
discovered since the trial, and, from the affidavit of the new
witness, what such evidence will be, or its absence
satisfactorily explained. (2) It must appear from facts stated in
his affidavit that plaintiff was diligent in ascertaining and
securing his evidence, and that the new evidence is such that due
diligence would not have secured it before the verdict. (3) Such
evidence must be new and material, and not merely cumulative; and
cumulative evidence is additional evidence of the same kind to
the same point. (4) The evidence must be such as ought to produce
an opposite result at a second trial on the merits. (5) And the
new trial will generally be refused when the sole object of the
new evidence is to discredit or impeach a witness on the opposite
side.' Syllabus, State v. Frazier, 162 W.Va. [9[35, 253 S.E.2d 534 (1979), quoting, Syl. pt. 1, Halstead v. Horton, 38 W.Va.
727, 18 S.E. 953 (1894)." Syl. Pt. 1, State v. King, 173
W.Va. 164, 313 S.E.2d 440 (1984).
Syllabus Point 1, State v. O'Donnell, 189 W.Va. 628, 433 S.E.2d 566 (1993).
"If any of the foregoing five essential requirements is not
satisfied or complied with, a new trial will not be granted on
the ground of newly discovered evidence." State v. Crouch,
191 W.Va. 272, 276, 445 S.E.2d 213, 217 (1994) (citations
omitted). In addition, "[a] new trial on the ground of
after-discovered evidence or newly discovered evidence is very
seldom granted and the circumstances must be unusual or
special." Syllabus Point 9, State v. Hamric, 151 W.Va. 1,
151 S.E.2d 252 (1966).
It is the defendant's contention that the testimony of McDonald, Henthorne, and Allen at Allen's trial satisfies all five of the criteria stated above.
Essentially, the defendant argues that, despite a thorough
investigation, it was not until four months after his trial that
his counsel become aware of McDonald and his testimony. Also,
because counsel for both Henthorne and Allen advised the
defendant's counsel that neither co-defendant would be available
to testify at the defendant's trial due to Fifth Amendment
considerations, their testimony was not available at the
defendant's trial even with the exercise of due diligence. The
defendant asserts further that this new testimony would challenge
the credibility of Charlene Foster, the State's key witness
without whom it could not have prevailed, in a way that was not
done at the defendant's trial. According to the defendant, this
new evidence would then lead to an opposite result at a second
trial. This assumption is indicated by the fact that this same
evidence brought about Allen's acquittal. The defendant concludes
that he did not receive a fair trial due to the unavailability of
McDonald, Henthorne, and Allen. After a careful review of the
record in this case, we must disagree with the defendant.
At the outset, we note that the defendant failed to produce for the record affidavits of the new witnesses concerning the exact nature of the new evidence. Instead, the defendant represented the content of the testimony of the three new witnesses in his motion and memorandum of law below and in his brief to
this Court.See footnote 3
3 The absence of such affidavits limits this Court's
ability to review the basis of the trial court's ruling on this
issue. As noted above, the trial court found, in part, that
"there is [no] reasonable likelihood the testimony of Lee
Allen or Jason Henthorne ought to produce an opposite result
since Lee Allen's testimony at his trial was subject to scrutiny,
and the testimony of Jason Henthorne at the trial of Lee Allen
was unbelievable."See
footnote 4 4 We can find nothing in the record that
causes us to conclude that the trial court abused its discretion
in making this finding.
Also, we are not convinced that due diligence was exercised to secure the testimony of Henthorne and Allen. In the defendant's memorandum of law in support of his motion for a new trial based upon newly discovered evidence, the defendant states: both counsel for Defendant Henthorne and Defendant Allen advised Defendant Helmick's trial counsel upon inquiry that neither of their clients would be available to testify at the
Helmick trial due to Fifth Amendment considerations. Defense
counsel for Helmick did not offer Defendant Henthorne or
Defendant Allen at trial due to this unequivocal posture taken by
the Defendants' counsel.
We believe, however, that something more is required in order
to show due diligence in such situations. The trial court found
on this issue that Allen and Henthorne were not presented as
witnesses at the defendant's trial, no subpoena was issued for
their attendance at the trial, and "there is no indication
that trial counsel attempted to interview the co-defendants, Lee
Allen or Jason Henthorne." Without further evidence of due
diligence, we find no reason to disagree with the trial court on
this issue.
In addition,
we believe Allen's testimony is cumulative of the defendant's
testimony at his trial.
To
be cumulative, newly-discovered evidence must not only tend to
prove facts which were in evidence at the trial, but must be of
the same kind of evidence as that produced at the trial to prove
these facts. If it is of a
different kind, though upon the same issue, or of the same
kind on a different issue, the new evidence is not cumulative.
Syllabus Point 2, State v. O'Donnell, 189 W.Va. 628, 433 S.E.2d 566 (1993). The defendant testified that he neither
participated in or was aware of any plans to kill Hart. Likewise,
Allen apparently testified that neither he nor the defendant
assisted, aided, or encouraged the murder of Hart. This simply
amounts to the denial by another alleged co-conspirator of the
existence of the conspiracy. It is, therefore, simply the same
kind of evidence upon the same issue.
Further, we believe that the trial court did not abuse its discretion in denying the defendant's motion for a new trial based on McDonald's testimony at Allen's trial. Although conceding that the primary purpose of McDonald's testimony is to impeach Foster's testimony, the defendant relies on State v. Stewart, 161 W.Va. 127, 239 S.E.2d 777 (1977) where this Court recognized that, under certain circumstances, newly discovered evidence consisting solely of impeachment testimony may be sufficient to warrant a new trial where all the other elements of the newly discovered evidence test are met. In Stewart the newly discovered evidence not only impeached the State's principal witness, but also provided support for the defendant's alibi defense. In that case, this Court concluded that such evidence could well produce an opposite result at a new trial.
We find that the
newly discovered evidence in this case falls short of the Stewart
standard. According to the defendant, McDonald testified at
Allen's trial that Foster told him it was her idea to murder Hart
and he had personally seen a gun in Foster's apartment. This
contradicts Foster's testimony that she does not own a gun. A
review of the record in this case reveals that this evidence was
fully and adequately brought out in Foster's cross-examination
and in the defendant's testimony. Because there is nothing new or
material in McDonald's testimony, it is simply cumulative of the
defendant's own testimony and Foster's cross-examination.
Therefore, we agree with the trial court that the defendant has
failed to show that such evidence ought to produce an opposite
result at a second trial on the merits.
In sum, we
believe that the "newly discovered" evidence in this
case does not satisfy several of the five essential requirements
for the granting of a new trial. We also believe the "newly
discovered" testimony is not so unusual or special that it
would produce an opposite result. Accordingly, we find that the
trial court committed no error in denying the defendant's motion
for a new trial.
Second, the defendant asserts that the trial court committed reversible error in admitting hearsay in the form of a co-conspirator's post-conspiracy confession to the underlying murder. This assignment of error concerns the testimony at the
defendant's trial of John Goots who testified that Henthorne
confessed to Hart's murder. It is the defendant's contention that
the statement at issue does not fall within the co-conspirator
exemption to the hearsay rule, because it was made after the
termination of the conspiracy, and, therefore, was inadmissible
hearsay.
Generally,
out-of-court statements made by someone other than the declarant
while testifying are not admissible unless: 1) the statement is
not being offered for the truth of the matter asserted, but for
some other purpose such as motive, intent, state-of- mind,
identification or reasonableness of the party's action; 2) the
statement is not hearsay under the rules; or 3) the statement is
hearsay but falls within an exception provided for in the rules.
Syllabus Point 1, State v. Maynard, 183 W.Va. 1, 393 S.E.2d 221 (1990).
Rule 801(d)(2)(E) (1994) of the West Virginia Rules of Evidence
provides that "a statement is not hearsay if . . . [t]he
statement is offered against a party and is . . . a statement by
a co-conspirator of a party during the course and in furtherance
of the conspiracy." Long before the codification of the West
Virginia Rules of Evidence it was established that "[t]he
declarations or admissions of a participant in a conspiracy, made
after the conspiracy has terminated, are not admissible in
evidence against a coconspirator of the person making the
declarations or admissions." Syllabus Point 1, State v.
Price, 114 W.Va. 736, 174 S.E. 518 (1934), overruled by State
v. Adkins, 162 W.Va. 815, 253 S.E.2d 146 (1979), overruled by State
v. Lassiter, 177 W.Va. 499, 354
S.E.2d 595 (1987).See footnote 5 5 This is in line with Rule 801(d)(2)(E) inasmuch as, to be
admissible, the co-conspirator's statement must have been made
in the course of the conspiracy.See footnote 6 6 In State v.
Jarrell, 191 W.Va 1, 7, 442 S.E.2d 223, 229 (1994) this Court
held that tape-recorded statements to the police, made by a
co-conspirator to commit murder after the death of the intended
victim, cannot be admitted under Rule 801(d)(2)(E) because the
statements "quite clearly were not made 'during the course
and in furtherance of the conspiracy.'"
The
"usual rule" for determining what behavior was
"during the course" of the conspiracy is whether the
behavior "was made while the plan was in existence and
before its complete execution or termination."
State v. Yslas, 139 Ariz. 60, 63, 676 P.2d 1118, 1121 (1984), quoting J. Weinstein and M. Berger, 4 Weinstein's Evidence ¶ 801(d)(2)(e), p. 176 (1981); See also United States v. Tombrello, 666 F.2d 485, 490 (11th Cir. 1982), cert. denied, 456 U.S. 994
(1982) (". . . co-conspirators' hearsay statements made
after the termination of the conspiracy are not
admissible[.]"); State v. Willis, 559 N.W.2d 693 (Minn.
1997). Although some courts hold that a conspiracy terminates for
the purpose of the Rule 801(d)(2)(E) analysis "when the
substantive crime for which the co-conspirators are being tried
is either attained or defeated," State v. Darby, 123 Ariz.
368, 372, 599 P.2d 821, 825 (1979) (citation omitted); see also
United States v. Smith, 520 F.2d 1245 (8th Cir. 1975), we are
persuaded by those jurisdictions that hold that "[a]
conspiracy to commit a crime does not necessarily end with the
commission of the crime." Syllabus Point 1, State v.
Sheldon, 51 Ohio St.2d 68, 364 N.E.2d 1152 (1977), vacated on
other grounds, 438 U.S. 909 (1978). Instead, under Rule
801(d)(2)(E) of the West Virginia Rules of Evidence, "a
declaration of a conspirator, made subsequent to the actual
commission of the crime, may be admissible against any
co-conspirator if it was made while the conspirators were still
concerned with the concealment of their criminal conduct or their
identity." Syllabus Point 2, Id. (citation omitted).
In such circumstances, however, the co-conspirator's statement must still, in some way, further the aims of concealing the conspiracy. See State v. Daniels, 92 Ohio App.3d 473, 636 NE.2d 336 (1993) (letter written by one co-conspirator to another nine months after object of conspiracy was accomplished which suggested how to testify in order to win an acquittal was held admissible under Rule
801(d)(2)(E)); State v. Shelton, supra. (co-conspirator's
statement "[c]ome and get that shotgun" made after the
victim's death held admissible). However, "[i]t is
generally held a mere narrative statement serving no future or
immediate purpose of the conspiracy does not satisfy the
requirement, whether communicated to outsiders or to another
conspirator." State v. Anders, 483 S.E.2d 780, 783
(S.C.App. 1997) (citations omitted). The statement at issue
appears to be of the latter kind. Although Henthorne's statement
was made while the conspirators were apparently still concerned
with concealment, we fail to see how it could, in any way,
further the aims of concealment. Indeed, Henthorne's admission to
someone not involved in Hart's murder, is clearly inimical to the
continued concealment of the conspiracy. Therefore, we find that
the statement was not properly admissible under Rule
801(d)(2)(E).
We believe, however, that the admission of the statement was not reversible error because it could properly have been admitted under the statement against interest hearsay exception provided for by Rule 804(b)(3) of the West Virginia Rules of Evidence. See footnote 7 7 "An appellate court is not limited to the legal grounds
relied upon by the circuit court, but it may affirm or reverse
a decision on any independently sufficient ground that has
adequate support." Murphy v. Smallridge, 196 W.Va. 35,
36-37, 468 S.E.2d 167, 168-169 (1996). The trial court's reason
for allowing the admission of the testimony at issue is not clear
from the record. It appears from the record that the State
originally sought the admission of the statement under Rule
804(b)(3) before asserting that it was admissible under
801(d)(2)(E), although neither party discussed Rule 804(b)(3) in
its brief to this Court. Regardless of the trial court's reason,
we believe that Rule 804(b)(3) provides for the admission of the
statement.
In addition, even if the admission of the statement at issue was error we believe it was harmless. Generally, an error in admitting hearsay evidence is harmless where the same fact is proved by an eyewitness or other evidence clearly establishes the defendant's guilt. See State v. Maynard, 183 W.Va. 1, 393 S.E.2d 221 (1990); State v. Smith, 181 W.Va. 700, 384 S.E.2d 145 (1989) ; People v. Robinson, 874 P.2d 453 (Colo.App. 1993); United States v. McCoy, 721 F.2d 473 (4th Cir. 1983), cert. denied, 466 U.S. 940 (1984); U.S. v. Williams, 41 F.3d 192 (4th Cir. 1994), cert. denied, 514 U.S. 1056 (1995). In the present case, the statement at issue is cumulative of Amy Below's testimony. Below testified that on the night of Hart's murder she drove Henthorne to his house where he retrieved a gun case, and then drove him to SuperAmerica, stopping a short distance away. She further testified that while waiting for Henthorne to return from SuperAmerica, she heard a loud bang and saw Henthorne run back to her car carrying a shotgun. She then drove Henthorne back to his home and he took the shotgun inside. Also, the State produced sufficient evidence of the existence of a conspiracy to murder Hart, and that Henthorne and the defendant were a part of that conspiracy. In addition, we note that the hearsay statement at issue does not implicate the defendant in the murder of Hart, and does not contradict the defendant's own testimony that he did not know who killed Hart. Therefore, we conclude that, even if the admission of Henthorne's statement was error, it was harmless error.
Finally, we
note that in his brief to this Court, the defendant also raises
as an assignment of error that "[t]he trial court committed
reversible error in admitting inadmissible hearsay statements to
show prior bad acts of the Defendant." However, the
defendant did not argue or brief this assignment of error nor
direct our attention to relevant portions of the record. This
Court previously stated in Syllabus Point 6 of Addair v. Bryant,
168 W.Va. 306, 284 S.E.2d 374 (1981) that "[a]ssignments of
error that are not argued in the briefs on appeal may be deemed
by this Court to be waived." Therefore, this assignment of
error is considered abandoned.
III.
Conclusion
For the
foregoing reasons, the judgment of the Circuit Court of Harrison
County is affirmed.
Affirmed.
Footnote: 1 1 It is obvious from the context of this order that the trial court's finding here contains a typographical error and should read "[t]hat there is no reasonable likelihood the testimony of Lee Allen or Jason Henthorne ought to produce an opposite result since Lee Allen's testimony at his trial was subject to scrutiny, and the testimony of Jason Henthorne at the trial of Lee Allen was unbelievable."
Footnote: 2 2 Rule 33 of the West Virginia Rules of Criminal Procedure was amended by order entered June 14, 1995 and the amendment became effective September 1, 1995. Because the defendant's motion for a new trial was prior to September 1, 1995, we will cite to the 1981 Rule.
Footnote: 3 3 In addition, attached to the defendant's brief to this Court are photocopies of two articles from the August 3 and 4, 1995 editions of The Clarksburg Exponent concerning Allen's trial and containing summaries of testimony at the trial.
Footnote: 4 4 See footnote 1.
Footnote: 5
5 Syllabus Point
2, State v. Adkins, 162 W.Va. 815, 253 S.E.2d 146 states:
Syl.
pt. 1 of State v. Price and Bruce, 114 W.Va. 736, 174 S.E. 518
(1934) and syl. pt. 2 of State v. Bennett, W.Va., 203 S.E.2d 699 (1974) are expressly overruled because they are over-broad
and in that regard incorrectly state the law. The proper rule
concerning admissions and confessions of co- conspirators in the
trial of another conspirator is that the admission or confession
of an accomplice standing alone, may not be introduced into
evidence against another accomplice as an admission against
interest; however, one accomplice may testify against another
accomplice about the events surrounding the crime with which the
defendant accomplice is charged, about the defendant accomplice's
part in that crime, about events leading up to the formation of
the conspiracy, and about the part the testifying accomplice
played in the conspiracy, (including any incidental admissions)
so long as the defendant accomplice has an opportunity to
cross-examine the testifying accomplice and the testifying
accomplice is called by the State for the purpose of giving
detailed testimony and not for the purpose alone of demonstrating
that the testifying accomplice has either confessed or pled
guilty to participating in the crime with which the defendant
accomplice is charged.
Adkins was
overruled by State v. Lassiter, 177 W.Va. 499, 506 354 S.E.2d 595, 602 (1987) in which the Court stated:
In the years since we decided Adkins we have
adopted Rule 801(d)(2)(E), and the Supreme Court has
decided Ohio v. Roberts, supra, and United States v. Inadi, 475 U.S. 387, 106 S. Ct. 1121, 89 L. Ed. 2d 390 (1986). In light of
these more recent authorities, and to the extent that Adkins is
inconsistent with these authorities, Adkins is now expressly
overruled.
Footnote: 6 6 Even though State v. Price, supra was decided before the West Virginia Rules of Evidence were adopted, it remains "a source of guidance" in evidentiary matters. Reed v. Wimmer, 195 W.Va. 199, 205, 465 S.E.2d 199, 205 (1995).
Footnote: 7
7 Rule 804(b)(3)
of the West Virginia Rules of Evidence (1994) states:
(b) Hearsay exceptions.--- 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 the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless he or she believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
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