Neely, Justice:
This is a criminal appeal from the Circuit Court of Monongalia County in which the appellant, Laurence Hugh Sette, was convicted of being an accessory before the fact to murder in the first degree. The appellant allegedly procured the murder of his wife by inducing a young woman, Kathy West, to kill her. There are numerous errors which require that we reverse the conviction and order a new trial.
The appellant’s wife was murdered on April 1, 1975 in Monongalia County, West Virginia. At that time the appellant was the manager of a McDonald’s Restaurant located on University Avenue, Morgantown, West Virginia, where he had been employed for approximately one year. Kathy West had obtained employment at the McDonald’s Restaurant, and soon thereafter became sexually involved with the appellant. This sexual relationship had been in progress for almost a year when the appellant’s wife was shot twice in the head in the middle of the night while sleeping in her own bedroom.
Kathy West testified at the trial that the appellant wanted to marry her, and would have married her had he not already been married. According to Miss West, the appellant convinced her that his wife would not give him a divorce, or that a divorce would ruin him financially, and thus the plot to murder the wife arose. Miss West testified that the appellant devised the intricate plot, “the perfect crime,” in which neither of the plotters-would be caught by the police. The appellant, in allaying Miss West’s fears, went so far as to tell her that her juvenile status would save her from punishment in the unlikely event she were caught. The plot consisted of the following: the appellant would be at work during the actual murder; he would leave his car for Miss West to use; he would leave the basement door of his house unlocked; he would leave a loaded rifle in the house; Miss West, who was already familiar with the appellant’s house, would proceed from the basement to the second floor where the appellant’s wife would be asleep in her
own bed and kill her; the rifle would be taken to a nearby bridge and thrown into the river; and, Miss West would misdirect the police at every turn, if she were questioned by them.
According to Miss West’s testimony, everything went as planned. On April 26, 1975, after becoming bewildered by the appellant’s actions, and being emotionally exhausted from the continuous need to lie, Miss West confessed to the murder. In the confession, she implicated the appellant as the mastermind behind the murder of Mrs. Sette. Miss West was allegedly promised no leniency, plea bargain, or immunity.
The appellant was arrested on April 26, 1975 and was charged with being an accessory before the fact to the murder. He denied the charge, but did admit to a torrid sexual relationship with Miss West. The appellant testified at trial that he had severed his amorous relationship with Miss West prior to the murder, but then admitted that the two had met after the murder and had engaged in sexual relations, as if nothing had changed.
The case was tried on July 10 through July 12, 1975 in the Circuit Court of Monongalia County and on July 14, 1975 the jury returned a verdict of guilty, as charged in the indictment, with a recommendation of mercy.
The appellant assigns and argues five points of error. He contends first, that he was denied a fair trial by the court’s refusal to grant either a continuance or change of venue upon proper and timely motions. Second, he argues that the trial court erred by refusing to supply his trial counsel with a copy of the confession which the police obtained from Kathy West, who was the chief prosecution witness. Third, he asserts that the trial court erred in permitting the prosecutor, over timely objection, to introduce evidence that the appellant and Miss West had engaged in oral sex. Fourth, he contends that the trial court erred in refusing to allow the appellant to adduce testimony from a witness, Denman Kelley, concerning his encounter with Kathy West in the
county jail. Apparently, Mr. Kelley would have testified that Miss West told him the appellant had nothing to do with the crime charged. Fifth, and finally, he maintains that the trial court erred in allowing the introduction of photographs showing the dead victim and the scene of the crime which were gruesome and only tended to prove a fact already stipulated, namely that the victim had been shot. We shall handle the assignments of error
seriatim
in separate sections.
I
The trial of Laurence Sette was voted the top news story of Morgantown, West Virginia, according to an article which appeared on December 28, 1975 in the
Dominion Post,
a newspaper of general circulation which is published in Morgantown. It was undisputed that the trial was preceded by substantial, pervasive, and inflammatory publicity, and that almost fifty percent of the jurors summoned for jury duty were disqualified because they had formed a conclusion concerning the case which they were unable to discard. Defense counsel carefully noted that in virtually all instances the reason for disqualification was apparently a belief in guilt, and defense counsel moved for a change of venue and for a continuance if the change of venue motion were denied. The court declined to grant either motion in spite of the appellant’s counsel’s strenuous argument for a change of venue, which included the presentation of a telephone public opinion poll conducted by a professor at West Virginia University indicating that a pervasive hostile climate toward the appellant existed in Monongalia County.
Ordinarily the question of a change of venue is reposed in the sound discretion of the trial court; that discretion, however, was clearly abused in this case by the trial court’s denial of the motion for a change of venue.
State v. Wilson,
W.Va., 202 S.E.2d 828 (1974);
State v. Wooldridge,
129 W.Va. 448, 40 S.E.2d 899 (1946). The case was in no respect an ordinary murder of the type which fills scores of volumes of the West Virginia
Reports. A young and apparently beautiful woman was allegedly murdered by the mistress of the victim’s husband; both conspirators had been engaged in a torrid sexual relationship. Facts like these produce sensational journalism in and of themselves. In addition the public interest in the killing provided an irresistible invitation to the prosecuting attorney and law enforcement officers to try the case in the media.
It would almost have been necessary for a resident of Monongalia County to be both blind and deaf for him not to have heard the sordid details of the case and to have formulated at least a tentative opinion. In most instances we can assume a prospective juror would hold a
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Neely, Justice:
This is a criminal appeal from the Circuit Court of Monongalia County in which the appellant, Laurence Hugh Sette, was convicted of being an accessory before the fact to murder in the first degree. The appellant allegedly procured the murder of his wife by inducing a young woman, Kathy West, to kill her. There are numerous errors which require that we reverse the conviction and order a new trial.
The appellant’s wife was murdered on April 1, 1975 in Monongalia County, West Virginia. At that time the appellant was the manager of a McDonald’s Restaurant located on University Avenue, Morgantown, West Virginia, where he had been employed for approximately one year. Kathy West had obtained employment at the McDonald’s Restaurant, and soon thereafter became sexually involved with the appellant. This sexual relationship had been in progress for almost a year when the appellant’s wife was shot twice in the head in the middle of the night while sleeping in her own bedroom.
Kathy West testified at the trial that the appellant wanted to marry her, and would have married her had he not already been married. According to Miss West, the appellant convinced her that his wife would not give him a divorce, or that a divorce would ruin him financially, and thus the plot to murder the wife arose. Miss West testified that the appellant devised the intricate plot, “the perfect crime,” in which neither of the plotters-would be caught by the police. The appellant, in allaying Miss West’s fears, went so far as to tell her that her juvenile status would save her from punishment in the unlikely event she were caught. The plot consisted of the following: the appellant would be at work during the actual murder; he would leave his car for Miss West to use; he would leave the basement door of his house unlocked; he would leave a loaded rifle in the house; Miss West, who was already familiar with the appellant’s house, would proceed from the basement to the second floor where the appellant’s wife would be asleep in her
own bed and kill her; the rifle would be taken to a nearby bridge and thrown into the river; and, Miss West would misdirect the police at every turn, if she were questioned by them.
According to Miss West’s testimony, everything went as planned. On April 26, 1975, after becoming bewildered by the appellant’s actions, and being emotionally exhausted from the continuous need to lie, Miss West confessed to the murder. In the confession, she implicated the appellant as the mastermind behind the murder of Mrs. Sette. Miss West was allegedly promised no leniency, plea bargain, or immunity.
The appellant was arrested on April 26, 1975 and was charged with being an accessory before the fact to the murder. He denied the charge, but did admit to a torrid sexual relationship with Miss West. The appellant testified at trial that he had severed his amorous relationship with Miss West prior to the murder, but then admitted that the two had met after the murder and had engaged in sexual relations, as if nothing had changed.
The case was tried on July 10 through July 12, 1975 in the Circuit Court of Monongalia County and on July 14, 1975 the jury returned a verdict of guilty, as charged in the indictment, with a recommendation of mercy.
The appellant assigns and argues five points of error. He contends first, that he was denied a fair trial by the court’s refusal to grant either a continuance or change of venue upon proper and timely motions. Second, he argues that the trial court erred by refusing to supply his trial counsel with a copy of the confession which the police obtained from Kathy West, who was the chief prosecution witness. Third, he asserts that the trial court erred in permitting the prosecutor, over timely objection, to introduce evidence that the appellant and Miss West had engaged in oral sex. Fourth, he contends that the trial court erred in refusing to allow the appellant to adduce testimony from a witness, Denman Kelley, concerning his encounter with Kathy West in the
county jail. Apparently, Mr. Kelley would have testified that Miss West told him the appellant had nothing to do with the crime charged. Fifth, and finally, he maintains that the trial court erred in allowing the introduction of photographs showing the dead victim and the scene of the crime which were gruesome and only tended to prove a fact already stipulated, namely that the victim had been shot. We shall handle the assignments of error
seriatim
in separate sections.
I
The trial of Laurence Sette was voted the top news story of Morgantown, West Virginia, according to an article which appeared on December 28, 1975 in the
Dominion Post,
a newspaper of general circulation which is published in Morgantown. It was undisputed that the trial was preceded by substantial, pervasive, and inflammatory publicity, and that almost fifty percent of the jurors summoned for jury duty were disqualified because they had formed a conclusion concerning the case which they were unable to discard. Defense counsel carefully noted that in virtually all instances the reason for disqualification was apparently a belief in guilt, and defense counsel moved for a change of venue and for a continuance if the change of venue motion were denied. The court declined to grant either motion in spite of the appellant’s counsel’s strenuous argument for a change of venue, which included the presentation of a telephone public opinion poll conducted by a professor at West Virginia University indicating that a pervasive hostile climate toward the appellant existed in Monongalia County.
Ordinarily the question of a change of venue is reposed in the sound discretion of the trial court; that discretion, however, was clearly abused in this case by the trial court’s denial of the motion for a change of venue.
State v. Wilson,
W.Va., 202 S.E.2d 828 (1974);
State v. Wooldridge,
129 W.Va. 448, 40 S.E.2d 899 (1946). The case was in no respect an ordinary murder of the type which fills scores of volumes of the West Virginia
Reports. A young and apparently beautiful woman was allegedly murdered by the mistress of the victim’s husband; both conspirators had been engaged in a torrid sexual relationship. Facts like these produce sensational journalism in and of themselves. In addition the public interest in the killing provided an irresistible invitation to the prosecuting attorney and law enforcement officers to try the case in the media.
It would almost have been necessary for a resident of Monongalia County to be both blind and deaf for him not to have heard the sordid details of the case and to have formulated at least a tentative opinion. In most instances we can assume a prospective juror would hold a
tentative opinion that the appellant was guilty, both because of the nature of the publicity surrounding the case and because of most people’s natural tendency to grasp for any solution to an unsolved crime of major significance in the community. Social pressure to conclude a case and punish the guilty bears heavily upon jurors, just as it does upon judges, who constantly work under the tension of having to reconcile the accused’s
legal rights with the community’s right to impose just sanctions on criminals.
Communications are rapid throughout West Virginia, and news of the slaying would probably have appeared in the media of every county to which venue could have been changed; nonetheless, there would not have been in many other places the same daily repetition of the facts which so indelibly impressed the case upon any potential Monongalia County jury. All government officials, and particularly those who are elected, have an inveterate need for self-congratulation, possibly because congratulation is so little forthcoming from other quarters. In this case the statements of numerous police officers and the prosecuting attorney would have led any reasonable newspaper reader or TV viewer to believe that the case were open and shut, while in fact the evidence was quite contradictory and basic fairness required a high level of impartiality on the part of jurors. There is precedent, although not in West Virginia, where the issue has not recently been raised in the context of a spectacular case, that failure to grant a change of venue in the face of widespread prejudicial pretrial publicity constitutes an abuse of discretion.
See, Sheppard v. Maxwell,
384 U.S. 333 (1966);
Estes v. Texas,
381 U.S. 532 (1965);
Rideau v. Louisiana,
373 U.S. 723 (1963):
Irvin v. Dowd,
366 U.S. 717 (1961). In West Virginia, however, “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 1, syllabus,
State v. Siers,
103 W.Va. 30, 136 S.E. 503 (1927), adopted as point 2, syllabus,
State v. Dandy,
151 W.Va. 547, 153 S.E.2d 507 (1967). From the widespread prejudicial pretrial publicity revealed in the record we can almost infer the existence at the time of trial of a present hostile sentiment against the accused, Laurence Sette, extending throughout Monongalia County; certainly, on the basis of all the facts before us, we can say such hostile sentiment did exist. Accordingly we hold that under the facts of this case the failure to
grant a change of venue is in and of itself a sufficient ground for reversal.
II
The primary prosecution witness was the appellant’s mistress, Kathy West, who made numerous inconsistent statements to the police during the course of their investigation. Finally, about April 26, 1975, Miss West signed a written confession which implicated the appellant as the mastermind of the murder plot. The appellant’s counsel made a timely motion to review this written confession for cross-examination purposes before Miss West took the witness stand. He renewed his motion several times during her examination, but at each point the trial judge refused to permit defense counsel to review the confession.
We are utterly at a loss to understand why a trial judge would withhold from counsel a prior statement made by the State’s most important witness. The trial judge examined the statement in chambers and concluded that it contained nothing which would exculpate the appellant, and that there was no reason to provide the statement to the defense. We have read the statement, which was subsequently made a part of the record upon a motion for a new trial, and agree with the trial judge that there was no exculpatory material in it. Accordingly, it need not have been disclosed under
Brady v. Maryland,
373 U.S. 83 (1963) and its progeny,
Moore v. Illinois,
408 U.S. 786 (1972);
Harrington v. California,
395 U.S. 250 (1969);
Giles v. Maryland,
386 U.S. 66 (1967).
While it is true that some prior West Virginia cases have appeared to limit defense discovery to those items specifically listed in
W.Va. Code,
62-1B-2 [1965], our recent case of
State v. Dudick,
W. Va., 213 S.E.2d 458 (1975), which incorporated part of the policy of
Jencks v. United States,
353 U.S. 657 (1957) and the later federal codification of the
Jencks
rule in 18 U.S.C. § 3500 into the common law of this State, implied that criminal discovery should not be limited, absent compelling reasons
for its limitation. Miss West did not use her written confession to refresh her recollection on the stand, and thus did not bring the factual situation under consideration squarely within the rule of
State v. Dudick, supra.
Nonetheless, the liberal discovery policy of
Dudick
applies, as any inconsistency between the witness’s testimony on the witness stand and her prior written statement would have been useful to the defense in cross examination. We hold today that, absent compelling circumstances, once a prosecution witness has testified, a defendant upon proper motion is entitled to have, for the purpose of cross-examination, any written statements of the witness in the State’s possession. Furthermore, the defendant must be given a reasonable opportunity to study the statements and prepare cross-examination. While we recognize that
Brady v. Maryland, supra,
has been interpreted to allow the judge to determine whether material is exculpatory, we find that defense counsel is the better party in whom to repose this responsibility, insofar as the use of arguably inconsistent prior statements for cross-examination purposes is concerned.
Ill
Over vehement objection of appellant’s counsel (in addition to a previous motion in
limine
made in chambers) the court permitted the State to introduce evidence of the collateral and unrelated felony of participation in oral sex between the appellant and Miss West during their affair.
As the State had ample evidence to demonstrate a sexual relationship between the appellant and Miss West, the introduction of this evidence had no probative value whatsoever on the primary issue in the case, namely whether the appellant plotted with Miss West to commit the murder.
While it can be argued that the intensity of a sexual attachment has some bearing on the strength of the motive, we find the argument unconvincing, particularly as the prejudicial effect of this testimony far outweighed any possible probative value.
Standing alone, the error would probably have been harmless, but it was nonetheless error and is the type of classic over-trying of a case which routinely results in the reversal of an otherwise perfectly valid conviction. We do not find the introduction of this evidence error because it concerned another, unrelated felony; if the state had been able to demonstrate that this had any reasonable bearing upon the intensity of the emotional relationship and, therefore, upon the strength of the motive, it would have been admissible testimony. However the state did not even attempt to make such a connection, so we can only assume that it was introduced exclusively for its prejudicial effect.
IV
The appellant attempted to adduce evidence from Den-man Kelley concerning an encounter between Mr. Kelly
and Kathy West while both were inmates in the Monon-galia County jail. The proffered testimony was to the effect that Kathy West, while sobbing, announced to Mr. Kelley that the appellant had nothing to do with the murder. The State argues that the appellant failed to lay a proper foundation for the introduction of this testimony because defense counsel did not examine Kathy West about the alleged statement during cross examination. We disagree that such a foundation was essential as a precondition to the admission of this evidence, which was highly probative of the most important secondary fact in issue, namely whether Kathy West was a liar. The statement which the defense sought to introduce was a prior inconsistent statement of the State’s star witness, which under traditional rules of evidence was admissible for impeachment purposes.
See State v. Spadafore,
W.Va., 220 S.E.2d 655 (1975);
State v. Carduff,
147 W.Va. 18, 93 S.E.2d 502 (1956).
V
Finally the appellant asserts that the trial court erred by admitting into evidence photographs showing the dead victim and the area surrounding the room where she was murdered. Upon examining the photographs in question we do not find that they are overwhelmingly gruesome (except to the extent that a young woman murdered in her bed is inherently gruesome) and we find that the circumstances surrounding the crime would have some bearing upon whether the jury decided, in the event of conviction, to return a verdict with a recommendation of mercy.
While the introduction of photographs portraying a crime, the circumstances of which are basically stipulated, is always risky because the prejudicial effect may be so far in excess of any legitimate probative value as to preclude their admission, the State does have a right to emphasize the fact of the crime to the jury in as graphic a manner as possible.
The seriousness of the crime is
one of those factors which focuses the attention of the jury and is frequently relevant to the issue of whether a recommendation of mercy is in order. In the case before us we find the photographs were introduced for the legitimate purpose of emphasizing the seriousness of the crime and that their admission was not error.
The Court’s Observations
In conclusion the Court would observe that the reversal of this case is due largely to the failure of both prosecution and police officials to follow the most fundamental of common sense rules, namely to have no comment of any sort on any subject before trial, and also in part to the trial court’s overly solicitous regard for the State’s case.
Prosecutors and police officers who are concerned with results, rather than the appearance of spectacular police work or unremitting prosecutorial zeal, should never discuss a pending case with the press at any stage of the proceedings before the final jury verdict. While the press has a first amendment right to cover criminal investigations and trials,
Nebraska Press v. Stuart,
427 U.S. 539 (1976) they do not have a right to statements from the State’s agents. Prosecutors and police officers who discuss cases with the press merely invite changes of venues or appellate court reversals.
The members of this Court have reviewed literally hundreds of criminal records and we are unanimously of the opinion that the proper way to try a criminal case is to be responsive to all reasonable defense requests. With the exception of motions for changes of venue or contin
uances in circumstances which do not disclose the pervasive hostility demonstrated in this case, and the granting of which would obviously grind the entire process to a halt, there is hardly a discovery motion, proffer of testimony, motion to suppress inflammatory testimony or exhibits, or any other motion which the defendant can make, except those for which there are no good faith legal arguments, which if granted will have any effect adverse to the State upon the outcome of a criminal case. Juries are basically intelligent and can usually separate the guilty from the innocent.
There are some circuits in this State in which there are almost no reversals of criminal trials, and that is because the trial judge grants every reasonable request relating to discovery, rulings in
limine,
evidence, and other discretionary matters during the trial. We are now not speaking of pretrial constitutional challenges to the sufficiency of the process by which the defendant is brought to trial, nor constitutional challenges to the admissibility of the State’s evidence. We are talking about discretionary motions during the course of trials, the granting of almost all of which would greatly enhance the ability of a conviction to withstand appellate review.
For the reasons set forth above the judgment of the Circuit Court of Monongalia County is reversed and the case is remanded for a new trial.
Reversed and remanded for a new trial.