State v. Barker

364 S.E.2d 264, 178 W. Va. 736, 1987 W. Va. LEXIS 663
CourtWest Virginia Supreme Court
DecidedDecember 18, 1987
DocketNo. 17234
StatusPublished
Cited by1 cases

This text of 364 S.E.2d 264 (State v. Barker) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Barker, 364 S.E.2d 264, 178 W. Va. 736, 1987 W. Va. LEXIS 663 (W. Va. 1987).

Opinion

PER CURIAM:

Artie Barker was convicted of sexual assault in the first degree, a violation of W.Va.Code, 61-8B-3 [1984] and received a sentence of ten to twenty years imprisonment by the Circuit Court of Monongalia County. After a thorough review of the record, we affirm.

The victim in this case was ten-years-old at the time she was sexually assaulted by the appellant, who was 44 years old. The victim’s accusations against the appellant were first made on August 30, 1984, while she was a patient at the West Virginia University Hospital. She had been admitted for evaluation of a rash on her neck and suspected seizures. When she also appeared to be quite depressed the victim was seen by a psychiatrist who then made a referral to psychologist Nancy Todd, the coordinator of the hospital’s child abuse program. During her visits with Todd, the victim, for the first time, explained that she had been sexually assaulted by the appellant.

The victim was then examined by Dr. Donald W. Cox, who was chairman of the Department of Obstetrics and Gynecology at West Virginia University and a member of the child abuse team. Dr. Cox testified that he found no physical evidence of sexual assault, but stated that this was his usual finding in all but 10% of the children he examined as suspected victims of sexual assault. His examination did not rule out possible penetration of the outer area of the female sex organ. Dr. Cox’s examination also revealed the presence of Gardner-ella organisms in the victim. Dr. Cox noted that this organism is ordinarily found only in “sexually active” women, and is considered a sexually transmitted disease, rarely found in children of the victim’s age.

During appellant’s trial, Nancy Todd, an expert witness for the prosecution, was exempted from sequestration and allowed to remain in the courtroom throughout the trial in order to provide emotional support for the victim. The prosecution first asked the trial court to exempt the victim’s mother from its order to sequester witnesses, but when appellant objected, Todd was proposed as an alternate support for the child. The appellant also objected to her presence, but when faced with the choice of either Todd or the victim’s mother, the appellant stated a preference for Todd.

Todd began her testimony by detailing her credentials as an expert. She testified that at the time she met the victim she was the coordinator of the Child Protection Team as an employee of the Department of Pediatrics of the West Virginia University Hospital. At the time of trial she was an instructor in the Department of Psychology and expected to receive her Ph.D degree in psychology later that year. Over a three-year period as coordinator, Todd interviewed over 300 children who had been sexually abused, received specialized training in interviewing such children and served as a consultant in three states, testifying in at least 20 sexual abuse trials in West Virginia.

Without objection from the appellant, the trial court ruled that Todd was qualified to testify as an expert witness in the area of sexual abuse and assault of children. She had also interviewed and counseled the victim.

The appellant now asserts that the trial court abused its discretion in refusing to sequester Todd during the trial, and also erred by allowing the witness, Todd, to testify after the victim.

The question as to which witnesses may be exempt from a sequestration of witnesses ordered by the court lies within the discretion of the trial court, and unless the trial court acts arbitrarily to the prejudice of the rights of the defendant the exercise of such discretion will not be disturbed on appeal.

Syl. pt. 4, State v. Wilson, 157 W.Va. 1036, 207 S.E.2d 174 (1974). See also syl. pt. 5, [738]*738State v. Hoke, 76 W.Va. 36, 84 S.E. 1054 (1915). In Wilson we specifically permitted an exemption of a police officer from sequestration in order to assist the prosecutor in the examination of witnesses. An extension of this holding was recently stated in State v. Banjoman, 178 W.Va. 311, 316, 359 S.E.2d 331, 336 (1987): “We recognize, ... as have other jurisdictions, that it has become increasingly common to designate government agents other than police officers to represent the State and to aid in the prosecution of cases in which they have investigated.” In Banjoman, we upheld the trial court’s ruling that a West Virginia Department of Welfare investigator could assist the prosecutor in a case involving charges of welfare fraud and also testify in the case. We found that the investigator’s testimony was not influenced by the testimony of other witnesses and that the investigator’s exemption from sequestration did not prejudice the defendant.

In the case now before us we hold that the trial court did not abuse its discretion in exempting Nancy Todd from the sequestration order. Todd’s presence provided emotional support for the victim, who was only eleven years old. This Court has recognized that a child who is the victim of sexual abuse is a candidate for special attention in this regard. See, e.g., Burdette v. Lobban, 174 W.Va. 120, 323 S.E.2d 601 (1984); State v. Jones, 178 W.Va. 519, 362 S.E.2d 330 (1987).

Rule 615 of the West Virginia Rules of Evidence, which became effective on February 1,1985, provides for sequestration of witnesses upon the request of a party.

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Related

State v. Haid
721 S.E.2d 529 (West Virginia Supreme Court, 2011)

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Bluebook (online)
364 S.E.2d 264, 178 W. Va. 736, 1987 W. Va. LEXIS 663, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-barker-wva-1987.