State v. Toppings

272 S.E.2d 463, 166 W. Va. 40, 1980 W. Va. LEXIS 611
CourtWest Virginia Supreme Court
DecidedDecember 2, 1980
DocketNo. 14144
StatusPublished
Cited by1 cases

This text of 272 S.E.2d 463 (State v. Toppings) 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. Toppings, 272 S.E.2d 463, 166 W. Va. 40, 1980 W. Va. LEXIS 611 (W. Va. 1980).

Opinion

Per Curiam:

The appellant, Nolan Ervin Toppings (hereinafter appellant or defendant), was convicted by a jury of entering without breaking in the Circuit Court of Logan County and now appeals from a June 14, 1977, final order overruling his post-trial motion to set aside the verdict and grant a new trial.

Although the appellant assigns numerous errors in support of his contention that this Court should reverse his conviction, we reverse and award a new trial exclusively on the ground that the State was permitted to impeach the defendant’s credibility by cross-examining him regarding a previous burglary conviction in violation of our pronouncement in State v. McAboy, 160 W.Va. 497, 236 S.E.2d 431 (1977).

The State concedes that appellant’s McAboy rights were violated by requiring him to testify on cross-examination that he had been previously convicted of burglary. The state argues, however, that reversal is not required because the error was harmless, citing State v. Atkins, 163 [42]*42W.Va. 502, 261 S.E.2d 55 (1979). The State contends that in view of the evidence at trial, the error in admitting the defendant’s prior conviction must have played little or no part in the State’s case and must have had a minimal impact on the jury. They also point out that the prosecution was not allowed to embellish on the conviction by specifying details and that the jury was instructed the prior conviction could only be considered in regard to the defendant’s credibility as a witness. We are unable to agree with the State that the error must have had little or no impact on the jury.

In Atkins this Court traced the history and evolution of the harmless error doctrine and formulated the analytical framework for applying the harmless error rule which we must apply to the evidentiary error in this case. Its second syllabus reads:

Where improper evidence of a non-constitutional nature is introduced by the State in a criminal trial, the test to determine if the error is harmless is: (1) the inadmissible evidence must be removed from the State’s case and a determination made as to whether the remaining evidence is sufficient to convince impartial minds of the defendant’s guilt beyond a reasonable doubt; (2) if the remaining evidence is found to be insufficient, the error is not harmless; (3) if the remaining evidence is sufficient to support the conviction, an analysis must then be made to determine whether the error had any prejudicial effect on the jury.

We now apply this test to the instant case. When the inadmissible evidence is removed from the State’s case and the remaining admissible evidence is viewed in the most favorable light, it is clear that there was sufficient evidence adduced to convince impartial minds of the guilt of the defendant beyond a reasonable doubt. Syl. pt. 1, State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978) (standard of review for sufficiency of evidence on appeal). As our review of the evidence later in this opinion demonstrates, there was direct evidence that the defendant removed boxes from the house in question and placed them in his car. This property, later identified as being stolen from the house, [43]*43was found in the defendant’s car. Since we conclude the remaining evidence is sufficient to support the conviction, the question that must be addressed is whether the McAboy error had a prejudicial effect on the jury.

Atkins, supra, identifies several pertinent considerations in making the admittedly difficult harmless error evaluation, including the remoteness of the prior conviction, whether a limiting instruction was given, whether the prior conviction was singled out or emphasized, and the quality of the State’s proof. An appraisal of the prejudicial impact of a McAboy violation on the jury also requires us to consider the probative value of the erroneously admitted criminal conviction on the defendant’s credibility as well as the risk of substantial prejudice to the accused by its admission. We begin our inquiry with a review of the evidence adduced at trial.

The theft offense occurred at a vacant Logan County residence located in the small residential community of Big Creek, Logan County, at about 10:00 p.m. on August 13, 1974, some two and one-half years prior to the trial. The principal State’s witnesses were a man and his teenage son who resided next door to the vacant residence. The son testified that as he was returning home that night he heard noises coming from the vacant residence. He informed his father and together they proceeded to the front porch of their house to investigate what was occurring. Both witnesses testified that they heard noises and saw a light coming from the house; that their house sat back from the road farther than the vacant house, giving them a restricted view of the building such that they could not actually see the front of the house and could only see a portion of the porch; that they saw’ the legs of two persons coming out a front window in the house; that they saw two men standing on the porch but were unable to identify them at this point; that the two men then ran across the street, carrying boxes and perhaps a suitcase, and turned and continued running past the front of their house to a car parked forty or fifty feet on the far side of their property; that as the two men were in front of their house they were able to identify them as being the defendant and his [44]*44brother; and that they also recognized the car as belonging to the defendant.

Although these witnesses testified they saw the defendant and his car at the scene of the crime, their testimony did not go unchallenged. Both witnesses testified in a previous trial involving the appellant’s brother. Their former testimony was used by defense counsel to impeach their credibility. The conflicts in their present and former testimony weakened the force of their testimony. For example, both witnesses testified they were able to see the feet of the individuals as they came out of a window in the house, but they did not so testify at the first trial. Indeed, one of the witnesses testified previously that he could not see anyone come out the window from where he was standing. Both witnesses were also impeached concerning what they saw being taken from the house. And one witness said he saw the defendant only once that night, but in the first trial he said he saw the defendant twice.

The trial testimony also raises a question as to whether their identification was accurate. The distance between the eyewitnesses and the defendant at the point where they indicated recognizing him was at least forty to fifty feet away. It was dark in a small rural community without significant lighting. One defense witness described the area around the vacant house as being “real dark.” From the testimony of the eyewitnesses it appears that neither of them had a frontal view of the individuals. In fact, one of the witnesses admitted telling defense counsel that he did not see the faces of the individuals who ran from the next-door residence, but attempted to explain away his prior inconsistent statement to the defendant’s lawyer by saying he did not know who the attorney represented at the time he made the statement.

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Related

State v. Payne
280 S.E.2d 72 (West Virginia Supreme Court, 1981)

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Bluebook (online)
272 S.E.2d 463, 166 W. Va. 40, 1980 W. Va. LEXIS 611, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-toppings-wva-1980.