| Robert C. Stone, Jr., Esq. Martinsburg, West Virginia Attorney for the Appellant | Debra M. H. McLaughlin, Esq. Morgan County Prosecuting Attorney Berkeley Springs, West Virginia Attorney for the Appellee |
Per Curiam:
This case is before this Court upon the appeal
of Denver A. Youngblood, Jr. from his convictions in the Circuit Court of Morgan
County, West Virginia, by a jury, of two counts of sexual assault, two counts
of brandishing a firearm, one count of wanton endangerment involving a firearm
and one count of indecent exposure. The convictions arose from the allegations
of the State that Youngblood, in July 2000, abducted three young women and twice
sexually assaulted one of them. Pursuant to the final order of the Circuit Court
entered on October 3, 2003, Youngblood was directed to serve penitentiary and
jail terms for a combined sentence of not less than 26 years and 90 days nor
more than 60 years and 90 days. According to the Docketing Statement filed with
this Court, Youngblood is currently incarcerated in the Eastern Regional Jail
in Martinsburg, West Virginia.
This Court has before it the petition for
appeal, all matters of record and the briefs and argument of counsel. Although
appellant Youngblood brings into consideration a number of assignments of error
in challenging his convictions, this Court concludes, for the reasons stated
below, that those assignments are without merit. Accordingly, the final order
of the Circuit Court entered on October 3, 2003, is affirmed.
Nevertheless, at the conclusion of the trial,
the jury returned the following verdict: Count 1, guilty of sexual assault in
the first degree, a felony, relating to the assault upon Katara N. at Youngblood's
residence; Count 2, guilty of sexual assault in the second degree, a felony,
relating to the assault upon Katara N. at the Pitner residence; Counts 3 and
4, guilty of brandishing a firearm, misdemeanors, relating to the waving of the
revolver at Katara N. and Kimberly K. in Youngblood's vehicle; Count 5, guilty
of wanton endangerment involving a firearm, a felony, relating to waiving the
revolver at Wendy S. in Youngblood's vehicle; and Count 6, guilty of indecent
exposure, a misdemeanor, relating to the sexual assaults upon Katara N.
Thereafter, the Circuit Court denied appellant
Youngblood's post-trial motions and pursuant to the order of October 3, 2003,
sentenced Youngblood to: (1) 15 to 35 years for sexual assault in the first degree,
(2) 10 to 25 years for sexual assault in the second degree, (3) 1 year each for
the brandishing and wanton endangerment convictions and (4) 90 days for the indecent
exposure conviction. The sentences were ordered to be served consecutively, except
for the brandishing and wanton endangerment convictions. Those counts were ordered
to be served concurrently with each other but consecutively with the other convictions.
The appeal to this Court was granted in June
2004.
In Dennis, this Court affirmed the
ruling of the trial court and stated:
After carefully reviewing the
record, we cannot say that the trial court abused its discretion in finding that
the prior acts constituted intrinsic evidence, not subject to Rule 404(b) analysis.
While the acts were not part of a “single criminal episode” or “necessary
preliminaries” to the charged offenses, it is difficult to conclude that
the evidence was not necessary “to complete the story of the crimes on trial” or
otherwise provide context to the crimes charged.
_ W.Va. at _ , 607 S.E.2d at 458.
In so holding, this Court, in Dennis,
relied, in part, upon syllabus point 1 of State v. Spicer, 162 W.Va. 127,
245 S.E.2d 922 (1978), which holds: “Other criminal act evidence admissible
as part of the res gestae or same transaction introduced for the purpose
of explaining the crime charged must be confined to that which is reasonably
necessary to accomplish such purpose.” State v. Hutchinson, 215 W.Va.
313, 321, 599 S.E.2d 736, 744 (2004); syl. pt. 4, State v. Hager, 204
W.Va. 28, 511 S.E.2d 139 (1998); syl. pt. 2, State v. McGhee, 193 W.Va.
164, 455 S.E.2d 533 (1995). In Hutchinson, this Court held that Rule 404(b)
did not apply where the “other bad acts” of the defendant, which included
threatening to kill various people shortly before the fatal shooting of the victim,
constituted intrinsic
evidence and were admitted to complete the story culminating in the victim's
death. 215 W.Va. at 321, 599 S.E.2d at 744. (See
footnote 6)
Here, the “other act” of appellant
Youngblood cannot be viewed in isolation. Youngblood's alleged pointing of the
revolver at Pitner precipitated from Kimberly K. and Wendy S. knocking on the
bedroom door and stating that Pitner was leaving in the vehicle. As indicated
above, both Kimberly and Wendy saw the revolver in Youngblood's possession as
he then left the bedroom. Thereafter, Youngblood allegedly used the revolver
in the presence of the three women to prevent Pitner from driving away. Pitner
did not testify at
trial, and it is, therefore, unknown what his intent was in attempting to leave
the Youngblood residence. Nevertheless, after Youngblood stopped Pitner, the
five ultimately drove to Pitner's residence where, according to the evidence
of the State, Katara was sexually assaulted for the second time.
Manifestly, the testimony of the pointing
of the revolver at Pitner was reasonably necessary within the meaning of State
v. Spicer, supra, to help explain the events resulting in the indictment
against Youngblood. The testimony served to “complete the story” of
an extended criminal transaction. Consequently, Rule 404(b) did not apply, and
the Circuit Court's admission of the testimony concerning the pointing of the
revolver at Pitner was “protected by the parameters of sound discretion.” Parker
v. Knowlton Construction Company, 158 W.Va. 314, 329, 210 S.E.2d 918, 927
(1975). (See footnote 7)
The Circuit Court indicated that it also
had no previous knowledge that the stun belt was to be employed. Nevertheless,
the Court ruled that Youngblood would be required to wear the stun belt during
the voir dire process because: (1) a large number of people had reported for
jury service, and space in the courtroom was limited, (2) the stun belt was underneath
Youngblood's jacket and not readily apparent to those in the courtroom and (3)
in addition to the charges set for trial, Youngblood was facing a felony murder
charge in an
unrelated case. The Circuit Court further ruled, however, that Youngblood would
not be required to wear the stun belt during the remainder of the trial. (See
footnote 9) As the Circuit Court explained:
First of all, we became aware
of it this morning when [the bailiff] . . . described that this was a part of
his security packet this morning. * * * [Youngblood] is wearing a nice dark business
suit and a tie and white shirt, and I understand the procedure outlined to me
by [the bailiff], he was allowed to come to the courtroom just with you [his
counsel] so that he would not project any degree of custody. * * * [T]his use
of this stun belt in that limited setting, I believe, is very justifiable just
given the crush of the public and the fact that everybody is intermingling and
that the voir dire box is right next to the seat of the defendant, and persons
walk right through the heart of the well of the court. * * * [Youngblood] is
faced with not only this prosecution, which is two counts of first degree sexual
assault which carry with them upon conviction heavy penalties, he also stands
charged and pending trial for a count of felony murder [.] * * * So it was very
much a crush of people and a very busy morning [during voir dire], yet the defendant
was able to be there totally unimpeded by any security measures that would be
obvious to any observer. I could see no sign of a security device upon the person
of the defendant. I am sure none of the jurors were able to ascertain as much. (See
footnote 10)
When the number of people in the courtroom
substantially lessened following the voir dire process, the Circuit Court ruled
that Youngblood would not be required to wear the stun belt during the remainder
of the trial.
Syllabus point 3 of State v. Brewster,
164 W.Va. 173, 261 S.E.2d 77 (1979), states: “A criminal defendant has the
right, absent some necessity relating to courtroom security or order, to be tried
free of physical restraints.” Syl., State v. Holliday, 188 W.Va.
321, 424 S.E.2d 248 (1992); syl. pt. 2, State v. Billups, 179 W.Va. 353,
368 S.E.2d 723 (1988); syl. pt. 1, State v. McKinney, 178 W.Va. 200, 358
S.E.2d 596 (1987). As the opinion in Brewster states:
It cannot be doubted that physical
restraints on a defendant at trial may create a substantial prejudice against
him. Not only may physical restraints suggest to the jury that the defendant
is a dangerous and violent person, but they may also suggest that he has engaged
in past criminal acts and may lead the jury to infer that he is capable of having
committed the crime for which he is being tried.
164 W.Va. at 180, 261 S.E.2d at 81-82.
On the other hand, as long recognized, the
use of physical restraints or other security precautions, not ordinarily required
during a criminal trial, may be warranted in certain circumstances where the
safety of the participants and the public would otherwise be
compromised. The employment of such restraints and precautions rests within
the sound discretion of the circuit court, subject to this Court's admonitions
in the past that the circuit court conduct an evidentiary hearing, in advance
of trial, to determine whether the circumstances of the case justify greater
than normal security measures. In Brewster, for example, this Court
remanded the case to the trial court for an evidentiary hearing “to determine
if there were sufficient facts to warrant trying the defendant in handcuffs.” 164
W.Va. at 183, 261 S.E.2d at 83. See also, syl. pt. 3, State v. Allah
Jamaal W., 209 W.Va. 1, 543 S.E.2d 282 (2000), holding that whether to
physically restrain a witness for the defendant at trial is within the discretion
of the circuit court; State v. Holliday, supra, discussing when
physical restraints are justified and emphasizing the role of the evidentiary
hearing; and syl. pt. 6, State v. Peacher, 167 W.Va. 540, 280 S.E.2d
559 (1981), recognizing circuit court discretion concerning courtroom security
and holding that an evidentiary hearing should be conducted in that regard.
In State v. Linkous, 177 W.Va. 621,
355 S.E.2d 410 (1987), prospective jurors were in the courtroom just before the
beginning of the defendant's murder trial. The defendant arrived in the courtroom
handcuffed to another prisoner, and the handcuffs were taken off. Consequently,
the defendant's attorney moved for a new jury panel, asserting that the existing
panel would be prejudiced by having seen the defendant in handcuffs. The trial
court in Linkous, however, denied the motion. Upon appeal, this Court
affirmed, noting as follows:
This case involves only an initial
appearance in handcuffs which were removed shortly after he was brought into
the courtroom. Most courts that have dealt with this question conclude that ordinarily
it is not reversible error nor grounds for a mistrial to proceed to try a criminal
defendant with a jury panel that may have seen him in handcuffs for a brief period
of time prior to trial. (citations omitted)
177 W.Va. at 624, 355 S.E.2d at 413. Tracking the above language, syllabus
point 2 of Linkous holds: “Ordinarily, it is not reversible error
nor grounds for a mistrial to proceed to try a criminal defendant with a jury
panel that may have seen him in handcuffs for a brief period of time prior
to trial.” State v. Carey, 210 W.Va. 651, 658, 558 S.E.2d 650,
657 (2001); State v. Billups, supra, 179 W.Va. at 355-56, 368
S.E.2d at 725-26.
In the case now to be determined, we are
concerned that neither Youngblood's counsel nor the prosecutor nor the Judge
were told by law enforcement personnel prior to the proceedings that Youngblood
would be wearing the stun belt. Although Youngblood's counsel stated to the Circuit
Court that his client's suit jacket appeared to be somewhat “puffed out,” the
record indicates that the presence of the stun belt was first made known through
the disclosure of the bailiff immediately prior to voir dire. Such undisclosed
actions by law enforcement personnel undermine the authority of a circuit court
to exercise its
discretion upon the necessity of the physical restraint in judicial proceedings
before it. As this Court noted in State v. Peacher, supra, the
discretion concerning the employment of physical restraints and various security
precautions during a criminal trial “is the court's and must be exercised,
not delegated ” 167 W.Va. at 560, 280 S.E.2d at 573. Moreover, as this
Court said in Brewster: “Since the preliminary decision to use
physical restraints is ordinarily made by the custodial authorities, the State
must share the burden of advising the court on this issue in advance of the
trial, so that a proper record can be made.” 164 W.Va. at 182 n. 5, 261
S.E.2d at 82 n. 5.
Nevertheless, without compromising the above
principles, this Court is of the opinion that the circumstances herein do not
warrant the granting of relief to appellant Youngblood. Here, after conducting
two in camera hearings, the Circuit Court concluded that Youngblood would
wear the stun belt during the voir dire process and not during the remainder
of the trial. In so ruling, the Circuit Court did not simply adopt the plan of
the custodial authorities. Instead, the Court placed upon the record: (1) a description
of Youngblood's clothing, (2) the Court's observation that the stun belt was
not readily apparent under his suit jacket and (3) the fact that Youngblood was
facing an unrelated charge of felony murder in addition to the charges for which
he was indicted in this case.
Moreover, the Circuit Court stated on the
record that Youngblood entered the courtroom without shackles and without law
enforcement officers in close proximity to him and that, therefore, the stun
belt had served to preclude the jury from making improper inferences about Youngblood
in terms of the security measures utilized at trial. Finally, the Circuit Court
commented, at length, about the relative smallness of the courtroom where the
trial would be conducted and the security problems it posed in the face of 68
individuals reporting for jury service that morning plus other individuals present
that day.
Although an evidentiary hearing should have
been conducted as requested by Youngblood's counsel, this Court concludes that,
in view of the reasons set forth by the Circuit Court during the in camera hearings,
the limited wearing of the stun belt herein did not rise to the level of an abuse
of the Circuit Court's discretion. Accordingly, this assignment of error is without
merit. (See footnote 11)
Syl. pt. 8, State v. Young, 173 W.Va. 1, 311 S.E.2d 118 (1983). See
also, W.Va. R. Evid. 901 concerning authentication and identification of
evidence.
The next assignment concerns the Circuit
Court's limits on Youngblood's cross- examination of Katara N. with regard to
her psychological counseling records. Specifically, in 2002, Katara received
counseling services from psychologist Bridget Magnetti at Eastridge Health Systems
in Martinsburg, West Virginia. The Circuit Court reviewed the records in camera,
and disclosed portions of the material to the State and Youngblood's counsel.
Youngblood's counsel then moved that he be permitted to cross-examine Katara
from the records to show: (1) that, to receive attention, she once lied to her
boyfriend by telling him that she was pregnant, (2) that she had worked as an
exotic dancer and (3) that she had a history of displaying manipulative behavior.
In addition, Youngblood's counsel expressed his intent to call Ms. Magnetti during
the trial to testify that Katara's manipulative behavior was the result of a
mental disorder.
When Katara N. took the stand, the Circuit
Court allowed Youngblood's counsel, on cross-examination, to bring out testimony
concerning the faking of the pregnancy. However, the Circuit Court ruled that
no cross-examination of Katara would be permitted as to her working as an exotic
dancer or as to her history of manipulative behavior as reflected in the counseling
records. Moreover, the Circuit Court ruled that Youngblood would not be
permitted to call Bridget Magnetti as a witness because Ms. Magnetti had never
specifically diagnosed Katara with any disorder relating to manipulative behavior.
Syllabus point 4 of State v. Carduff,
142 W.Va. 18, 93 S.E.2d 502 (1956), holds: “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. 12, State v. McIntosh, 207 W.Va. 561, 534 S.E.2d 757 (2000); syl.
pt. 1, State v. Allman, 182 W.Va. 656, 391 S.E.2d 103 (1990). See also,
W.Va. R. Evid. 611.
Here, the evidence indicates that Katara
N. did not become an exotic dancer until two years after the alleged offenses
in this case occurred. Therefore, evidence of her exotic dancing was irrelevant
and would, possibly, have been prejudicial at trial. Moreover, as the Circuit
Court stated, no specific diagnosis of any disorder relating to Katara's alleged
manipulative behavior had ever been made. Thus, there was no basis upon which
to cross- examine Katara from her counseling records, or to call Ms. Magnetti
as a witness, on that point. As the brief of the State filed with this Court
states: “Katara [N.'s] mental health records only contained information
regarding a counseling course, with no actual diagnosis which might affect Katara
[N.'s] credibility contained within those records [.]”
Consequently, this Court finds no error with regard to Youngblood's contentions
relating to Katara N.'s counseling records. (See
footnote 12)
Youngblood also assigns as error the failure
of the Circuit Court to grant his motion for a judgment of acquittal with regard
to Count 2 which charged sexual assault in the second degree. As W.Va. Code,
61-8B-4 (1991), states, in part, a person is guilty of sexual assault in the
second degree when such person “engages in sexual intercourse or sexual
intrusion with another person without the person's consent, and the lack of consent
results from forcible compulsion [.]” The phrase “forcible compulsion” is
defined in W.Va. Code, 61-8B- 1 (2000), as including: “Threat or
intimidation, expressed or implied, placing a person in fear of immediate death
or bodily injury to himself or herself or another person or in fear that he or
she or another person will be kidnapped [.]” Here, the offense of sexual
assault in the second degree allegedly occurred in a bedroom at the Pitner residence.
According to Youngblood, the State relied
upon the theory that he forced Katara N. to perform oral sex upon him at the
Pitner residence by threatening not to drive her home. Youngblood asserts that
that evidence, even if true, was not sufficient to sustain his conviction under
Count 2 because such a threat cannot constitute “forcible compulsion” as
a matter of law.
Appellant Youngblood, however, inaccurately
describes the State's theory. In comments made to the Circuit Court during the
trial and in final argument, the prosecutor argued that forcible compulsion under
Count 2 was shown, not only by evidence that Youngblood threatened not to drive
Katara home, but also by evidence that Katara was aware throughout the events
in question that Youngblood had a revolver. Katara specifically testified that,
in addition to seeing the weapon earlier, Youngblood had the revolver out while
at the Pitner residence. Thus, this Court is of the opinion that, considering
the presence of the weapon in addition to the threat not to drive Katara home,
the evidence of the State concerning forcible compulsion was sufficient with
regard to Youngblood's conviction of sexual assault in the second degree.
As syllabus point 1 of State v. Guthrie,
194 W.Va. 657, 461 S.E.2d 163 (1995), states:
The function of an appellate
court when reviewing the sufficiency of the evidence to support a criminal conviction
is to examine the evidence admitted at trial to determine whether such evidence,
if believed, is sufficient to convince a reasonable person of the defendant's
guilt beyond a reasonable doubt. Thus, the relevant inquiry is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime proved beyond
a reasonable doubt.
Syl. pt. 2, State v. Rogers, 209 W.Va. 348, 547 S.E.2d 910 (2001). See
also, syl. pt. 1, State v. Jackson, 215 W.Va. 188, 597 S.E.2d 321
(2004).
The final assignment of error raised by appellant
Youngblood concerns the failure of the Circuit Court to grant him a new trial
based upon newly discovered evidence.
Following the trial, Youngblood's investigator
uncovered the existence of a one-page, handwritten note apparently left at the
Pitner residence by one or more of the three women. The note, addressed to Joseph
Pitner, is full of obscenities and states that the women vandalized certain items
in the Pitner home. The note says, for example, that detergent was poured in
the milk and that unclean material was put in the ice cream. In the margin of
the note was a statement to appellant Youngblood indicating that “Katara
said thanks” for the oral sex performed upon her (in contrast to, as the
State's evidence suggested, the oral sex performed upon Youngblood). According
to Youngblood, the note was exculpatory, would have influenced the jury and should
have warranted the granting of a new trial.
In September 2003, the Circuit Court conducted
an evidentiary hearing concerning the note and concluded that it was, in effect,
impeachment evidence which would not justify the granting of a new trial. Specifically,
the Circuit Court stated that the apparent purpose of the note was to insult
Pitner and Youngblood and that its import was not exculpatory with regard to
Youngblood's actions toward Katara N. As the Circuit Court stated: “The
Court would however in looking at the note not see it as an act of gratitude
or thankfulness for receipt of sexual attention but sees it as rather a spiteful
or vindictive act or in this rather bitter irony a get-back for an offense is
what the note appears to read.”
A review of the record confirms that the
author of the note was never determined. Inasmuch as it refers to Katara N. in
the third-person, the note was apparently written by either Kimberly K. or Wendy
S., or both. Nor, contrary to the note, does the record contain evidence suggesting
that Youngblood performed oral sex upon Katara N. Accordingly, this Court cannot
say that the Circuit Court abused its discretion in denying Youngblood a new
trial upon the basis of the note. As stated in the syllabus point of State
v. Frazier, 162 W.Va. 935, 253 S.E.2d 534 (1979):
“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 Point 1, Halstead v. Horton, 38 W.Va. 727, 18 S.E.
953 (1894) [overruled, in part, on other grounds in State v. Bragg,
140 W.Va. 585, 87 S.E.2d 689 (1955)].
Syl. pt. 1, State v. Crouch, 191 W.Va. 272, 445 S.E.2d 213 (1994); syl.
pt. 1, State v. O'Donnell, 189 W.Va. 628, 433 S.E.2d 566 (1993).