Filed: February 17, 1994
Kristen L. Keller
Chief Deputy Prosecuting Attorney
of Raleigh County
Beckley, West Virginia
Attorney for the Appellee
H. L. Kirkpatrick, III
Ashworth & Kirkpatrick
Beckley, West Virginia
Attorney for the Appellant
JUSTICE BROTHERTON delivered the Opinion of the Court.
1. West Virginia Code § 57-3-3 (1966) prohibits adverse testimony from a witness-spouse against another, absent consent, in a criminal trial.
2. "The Confrontation Clause contained in the Sixth
Amendment to the United States Constitution provides: 'In all
criminal prosecutions, the accused shall . . . be confronted with
the witnesses against him.' This clause was made applicable to the
states through the Fourteenth Amendment to the United States
Constitution." Syllabus point 1, State v. James Edward S., 184
W.Va. 408, 400 S.E.2d 843 (1990).
3. "The Sixth Amendment to the United States
Constitution guarantees an accused the right to confront the
witnesses against him. The Sixth Amendment right of confrontation
includes the right of cross-examination." Syllabus point 1, State
v. Mullens, 179 W.Va. 567, 371 S.E.2d 64 (1988).
4. "'"The question of the competency of a witness to testify is left largely to the discretion of the trial court and its judgment will not be disturbed unless shown to have been plainly abused resulting in manifest error." Point 8, Syllabus, State v. Wilson, 157 W.Va. 1036, 207 S.E.2d 174 (1974).' Syl. Pt. 3, State v. Butcher, 165 W.Va. 522, 270 S.E.2d 156 (1980)."
Syllabus point 2, State v. Merritt, 183 W.Va. 601, 396 S.E.2d 871 (1990).
The appellant, Harry Gene Jarrell, was convicted of
first-degree murder for his role as a participant in the drowning
death of his brother-in-law, Jackie Dale Smith. He now appeals
from the March 26, 1992, order of the Circuit Court of Raleigh
County, West Virginia, which sentenced him to life in prison
without the possibility of parole.
The body of forty-one-year-old Jackie Dale Smith was
found in Lake Stephens in Raleigh County, West Virginia, on July
20, 1989. The appellant and his sister, Ann Smith, were both
indicted for the murder of her husband. The Smiths were first
married in the mid 1970's. Jackie Dale Smith was disabled in a
coal mine accident shortly thereafter, and the couple divorced
after fourteen years of marriage in October, 1988. They remarried
on June 29, 1989. Twenty days later, Jackie Dale Smith was found
In its prosecution of the case, the State theorized that
Ms. Smith had long considered killing her husband, and eventually
enlisted her brother's assistance in committing the crime. At
trial, several witnesses testified about conversations with Ms.
Smith in which she discussed killing her husband either by drowning
The most damaging testimony against the appellant came
from his former close friend, Matt Strogen, who stated that the
appellant offered to pay him $30,000.00 if he would help him kill
his brother-in-law. According to Strogen, he agreed to help the
appellant commit the murder in July, 1989. The appellant and
Strogen had several conversations in which they discussed how to
kill Smith but make it look like an accident. Strogen testified
that on the night of the murder, he and the appellant went to Lake
Stephens and began to fish. They were joined by the decedent and
his wife, Ann, at around midnight. The decedent also began to
fish, and, at some point, Strogen pushed him into the water.
Neither the decedent nor Strogen could swim. The appellant
apparently helped to keep the decedent submerged in the water.
Smith's truck and fishing gear were left at the scene, and his body
was discovered at approximately 8:00 p.m. the following day.
Strogen left the Beckley, West Virginia, area soon after
Smith's murder and was subsequently arrested on drug charges in
Texas. When he was paroled in July, 1990, two members of the
Raleigh County Sheriff's Department were waiting to return Strogen
to West Virginia to face nine outstanding felony charges related to
copper theft. These officers later testified that during the ride
from the prison to the airport, Strogen confessed to the murder of
Jackie Dale Smith.
The appellant and his sister, Ann Smith, were each
convicted of first-degree murder in connection with Smith's
drowning death. On appeal, the appellant now assigns several
errors and asks this Court to set aside the jury verdict and award
him a new trial.
First, the appellant argues that the trial court
committed prejudicial error when it allowed the prosecution to read
his wife's grand jury testimony to the jury at his trial. However,
a careful review of the record and consideration of the historical
purposes and societal interests behind marital privileges leads
this Court to conclude that there was no error in this instance.
The appellant contends that by reading Barbara Jarrell's
grand jury testimony into evidence at his trial, the prosecution
violated the adverse spousal immunity privilege, W.Va. Code § 57-3-
3 (1966), which "prohibits not only the testimony of a spouse but
even the calling of the spouse as a witness." State v. Evans, 170
W.Va. 3, 287 S.E.2d 922, 925 (1982). West Virginia Code § 57-3-3
(1966) prohibits adverse testimony from a witness-spouse against
another, absent consent, in a criminal trial:
In criminal cases husband and wife shall be allowed, and, subject to the rules of evidence governing other witnesses, may be compelled to testify in behalf of each other, but neither shall be compelled, nor, without the consent of the other, allowed to be called as a witness against the other except in the case of a prosecution for an offense committed by one against the other, or against the child, father, mother, sister or brother of either of them.
In addition, a confidential communications privilege is found in
W.Va. Code § 57-3-4, which states that "[n]either husband nor wife
shall, without the consent of the other, be examined in any case as
to any confidential communication made by one to the other while
married, nor shall either be permitted, without such consent, to
reveal in testimony after the marriage relation ceases any such
communication made while the marriage existed."See footnote 1
In Trammel v. United States, 445 U.S. 40, 100 S.Ct. 906,
63 L.Ed.2d 186 (1980), the United States Supreme Court limited the
federal marital privilege against adverse spousal testimony. The
Court held that only the witness-spouse has the privilege to refuse
to testify adversely: the witness cannot be compelled to testify,
nor be foreclosed from testifying. In Evans, supra, this Court
noted the impact of the Trammel decision:
Under the Federal Rules of Evidence testimonial privileges are "governed by the principles of the common law as they may be interpreted . . . in the light of reason and experience." Fed.R.Evid. 501. Hence, the Supreme Court in Trammel was free to modify the privilege against spousal testimony as long as "reason and experience" supported such a change. However, that change only affects cases conducted in jurisdictions in which the Federal Rules of Evidence or the common law rules concerning privileges apply . . . [I]n this Court . . . the contents of the privilege against spousal testimony are controlled by W.Va. Code, 57-3-3 . Should "reason and experience" dictate a change in that statute, it is up to our Legislature to draft and pass appropriate modifications.
287 S.E.2d at 924. Although this decision does not impact upon our
statute, the Trammel Court addressed the historical context of the
development of marital privileges and considered the continued
viability of such privileges. The Court noted that support for the
privilege against adverse spousal testimony had eroded since the
District Court decision in Hawkins v. United States, 358 U.S. 74,
79 S.Ct. 136, 3 L.Ed.2d 125 (1958), which "left the federal
privilege for adverse spousal testimony where it found it,
continuing 'a rule which bars the testimony of one spouse against
the other unless both consent.' [Hawkins, 358 U.S.] at 78."
Trammel, 445 U.S. at 46.See footnote 2 In Trammel, the United States Supreme
Court emphasized that:
It is essential to remember that the
Hawkins privilege is not needed to protect
information privately disclosed between
husband and wife in the confidence of the
marital relationship -- once described by this
Court as "the best solace of human existence."
Stein v. Bowman, 13 Pet., at 223. Those
confidences are privileged under the
independent rule protecting confidential
marital communications. Blau v. United
States, 340 U.S. 332 (1951); . . . . The
Hawkins privilege is invoked, not to exclude
private marital communications, but rather to
exclude evidence of criminal acts and of
communications made in the presence of third
Id. at 51. The Court concluded that:
Our consideration of the foundations for
the privilege and its history satisfy us that
"reason and experience" no longer justify so
sweeping a rule as that found acceptable by
the Court in Hawkins. Accordingly, we
conclude that the existing rule should be
modified so that the witness-spouse alone has
a privilege to refuse to testify adversely;
the witness may be neither compelled to
testify nor foreclosed from testifying. This
modification -- vesting the privilege in the
witness-spouse -- furthers the important
public interest in marital harmony without
unduly burdening legitimate law enforcement
Id. at 53.
We find that no marital privileges are applicable to the
circumstances presented in the case now before us. Barbara Jarrell
did not provide adverse testimony against her husband, nor did she
betray any private marital communications. The portion of Barbara
Jarrell's grand jury testimony that was read to the jury was quite
clearly directed towards ascertaining co-defendant Ann Smith's role
in her husband's death. Barbara Jarrell mentioned her own husband,
the appellant herein, only once in the grand jury testimony that
was read by the prosecution at his trial. Even this was simply an
indirect reference to him being among those present at the Smith's
home early on the night of the murder.
QUESTION: . . . Who else was at Jackie Dale Smith's house on the night of July 19, 1989?
ANSWER: When I left?
QUESTION: When you left.
ANSWER: Jackie was home, Ann was home, the
kids were home -- well, William and Harry was
there, Matt was there, my husband Harry was
there, my daughter Christine was there and, of
course, my baby was there, she was with me, --
oh, and some of the neighborhood boys were
there. (Emphasis added.)
The only thing this testimony established about the appellant,
Barbara Jarrell's husband, was that he was present at the Smith
residence early on the night in question. Others were present
there that night as well, and thus the mere knowledge of his
presence cannot be considered privileged information.See footnote 3
As a general rule, we would agree that the grand jury
testimony of a witness-spouse should not be read into evidence at
trial, in lieu of live testimony, in situations in which a spouse
has invoked the adverse spousal testimony privilege. However, the
reasons for disallowing the grand jury testimony are not compelling
in this case. The testimony in the record makes it quite clear
that Barbara Jarrell was called before the grand jury primarily for
the purpose of providing evidence against her sister-in-law, Ann
Smith, and not her own husband. There was nothing adverse to him
in the testimony that was read at his trial. The marital privilege
is not absolute. When the witness-spouse's testimony is not
adverse to the defendant-spouse, such testimony does not
necessarily fall within the protection of the marital privilege.See footnote 4
Therefore, we conclude that the fact that Barbara Jarrell's grand
jury testimony was read at her husband's trial does not warrant
reversal in this instance.
Next, the appellant argues that the trial court erred
when it permitted the prosecutor to read the grand jury testimony
of the appellant's sister, Charlotte Sharp, to the jury at his
trial. The appellant urged the court to declare Ms. Sharp
incompetent to testify. The record shows that when the prosecution
called Ms. Sharp to the stand, defense counsel immediately
questioned her competency, and counsel for both parties approached
the bench for a conference. Defense counsel stated, "I understand
that she's receiving Social Security disability based on a mental
disability, and I have real problems with her ability to testify."
The prosecution responded by telling the trial court that "when she
appeared before the grand jury . . . originally she was claiming to
be insane, and a couple of hours in jail cured her . . . if she is
deemed unavailable for mental incompetency, then I think the court
has ruled that if we think it's a fake, then we would be entitled
to introduce to the jury her grand jury testimony and read to the
jury her [Nov. 5, 1990] statement to the police . . . if she's
An in camera hearing followed, during which the State
asked that Ms. Sharp be declared an unavailable witness. The trial
judge initially ruled that she was mentally competent to testify,
but he reversed himself almost immediately, referring to Ms.
Sharp's continuing bizarre and uncooperative behavior as
"cooperative incompetence." It appears that although the trial
judge had stated that "I believe that she's competent to get on the
stand . . . I have nothing here to indicate that she isn't" and
that "I think the Court has no grounds but to make a determination
that she's competent to testify," he changed his mind after Ms.
Sharp continued to be unresponsive to the court's instruction. The
following exchange, which took place in the courtroom after the in
camera hearing but before Ms. Sharp was set to begin testifying,
was obviously the proverbial "last straw:"
THE COURT: Well, whatever; whatever the question, just answer yes or no. Don't volunteer.
THE WITNESS: But that would be so convenient,
THE COURT: Just a minute. Don't mention
something that happened somewhere else, just
the questions that are asked. Do you
THE WITNESS: I don't understand the last part
of it. But what I do understand is certain
people that needs punished for what they did
THE COURT: Well, that's not --
THE WITNESS: -- and they are going to walk
away and not be punished, and they're not
here, they're around, they're in the
prosecutor's office --
THE COURT: Well --
THE WITNESS: -- and they are damn good liars
[DEFENSE COUNSEL]: Charlotte --
THE WITNESS: They are a liar and a half -- I
THE COURT: In view of this, I believe I'll just let them read the stuff. I don't believe we could do that. I mean, I've tried your way and it's just not working.
It was at this point that the judge stated that "[h]er incompetency
is not as to her mental incompetency but as to her cooperative
incompetence . . . ." Then, over defense objections, the trial
court permitted the State to read Ms. Sharp's prior grand jury
testimony, as well as previous trial testimony, instead of allowing
her to testify in person before the trial jury.
The appellant now contends that reading Ms. Sharp's prior
testimony to the jury violated his constitutional rights because he
was denied the right to confront a witness against him. We agree,
and find reversible error on this point. "The Confrontation Clause
contained in the Sixth Amendment to the United States Constitution
provides: 'In all criminal prosecutions, the accused shall . . .
be confronted with the witnesses against him.' This clause was
made applicable to the states through the Fourteenth Amendment to
the United States Constitution." Syllabus point 1, State v. James
Edward S., 184 W.Va. 408, 400 S.E.2d 843 (1990). "The Sixth
Amendment to the United States Constitution guarantees an accused
the right to confront the witnesses against him. The Sixth
Amendment right of confrontation includes the right of cross-
examination." Syllabus point 1, State v. Mullens, 179 W.Va. 567,
371 S.E.2d 64 (1988).
The State maintains that the appellant was at fault here
because defense counsel did not avail itself of the opportunity to
cross-examine Ms. Sharp after the State had read her prior
testimony to the jury. However, we agree with the position
advanced by the appellant, which is, quite simply, that a witness
cannot be deemed incompetent to testify for one side but competent
for the other and therefore available for cross-examination. It is
apparent from the record that the trial court was uncertain about
exactly how to characterize Ms. Sharp's behavior and whether to
actually label her as an "unavailable" or "incompetent" witness.
However, irrespective of how the trial court wavered in this
regard, the bottom line is that she was not allowed to testify in
person before the trial jury, but the prosecution was nonetheless
permitted to read testimony into the record that was arguably just
as bizarre and unreliable as anything she might have said on the
This Court has recognized that "'"[t]he question of the
competency of a witness to testify is left largely to the
discretion of the trial court and its judgment will not be
disturbed unless shown to have been plainly abused resulting in
manifest error." Point 8, Syllabus, State v. Wilson, 157 W.Va.
1036, 207 S.E.2d 174 (1974).' Syl. Pt. 3, State v. Butcher, 165
W.Va. 522, 270 S.E.2d 156 (1980)." Syllabus point 2, State v.
Merritt, 183 W.Va. 601, 396 S.E.2d 871 (1990). We find that the
trial court abused its discretion in this instance when it
permitted the prosecution to read Ms. Sharp's prior testimony to
the jury. She was available to testify and was never declared
incompetent. As a result of this rather strange set of
circumstances, we must conclude that the appellant's Sixth
Amendment rights were violated. For this reason, this case must be
We will only briefly address the appellant's final
assignment of error, in which he argues that the Confrontation
Clause was also violated when the trial court allowed co-defendant
Ann Smith's numerous tape-recorded statements to the police to be
played to the jury. The appellant contends that because the police
officer's conversations with Ms. Smith were recorded after Jackie
Dale Smith's death, they cannot be admitted as evidence under a
hearsay exception as statements made "during the course and in
furtherance of the conspiracy," W.Va.R.Evid. 801(d)(2)(E).See footnote 5 We
agree that the tape-recorded conversations were inadmissible.
Their relevance is questionable, and Ms. Smith's statements to the
police quite clearly were not made "during the course and in
furtherance of the conspiracy." Moreover, the record does not
support the contention that her lengthy conversations with the
police were "expressly introduced . . . as lies," as the
prosecution attempts to claim in order to avoid the hearsay rule.
For the reasons set forth above, we hereby reverse the
March 26, 1992, order of the Circuit Court of Raleigh County, West
Virginia, and remand this case to that court for action consistent
with this opinion.
Footnote: 1An informative background discussion on modern marital privileges is found in Steven M. Gofman, Note, "Honey, The Judge Says We're History": Abrogating The Marital Privileges Via Modern Doctrines of Marital Worthiness, 77 Cornell L. Rev. 843, 846-849 (1992). See also Anne N. DePrez, Note, Pillow Talk, Grimgribbers and Connubial Bliss: The Marital Communications Privilege, 56 Ind. L. J. 121 (1980), in which the author discussed the marital communication privilege as it is applied in most jurisdictions and argues that "the privilege is more of a hindrance to the efficient administration of justice than an effective device safeguarding the institution of marriage." Id. at 123.
Footnote: 2For further discussion of the impact of the Trammel decision, see generally Jeffrey Eugene Jones, Note, Federal Marital Privileges in a Criminal Context: The Need for Further Modification since Trammel, 43 Wash. & Lee L.Rev. 197 (1986), and Tom A. Glassberg, Note, Adverse Spousal Privilege: Dead or Alive?, 63 Wash. U. L. Q. 509 (1985), in which the author states that "commentators interpret Trammel to allow only a witness spouse to invoke the adverse spousal privilege. If the witness spouse is willing to testify, the defendant spouse cannot prevent such testimony." However, the author of this note argues that "Trammel does not extend that far. Instead, courts should grant the defendant spouse the right to challenge the voluntariness of adverse spousal testimony, thereby restoring some semblance of the spousal privilege." Id.
Footnote: 3Similarly, in Fuller v. Fuller, 100 W.Va. 309, 130 S.E. 270 (1925), this Court explained that "a communication between husband and wife, in the known presence and hearing of a third person capable of comprehending what is being said, is not so confidential as to be a privileged communication, . . . and either the husband or wife or the third person who was present may testify in regard thereto." Id. at 271.
Footnote: 4For a discussion of how courts have defined adverse testimony, see Barbara Gregg Glenn, Comment, The Deconstruction of the Marital Privilege, 12 Pepp. L. Rev. 723, 755 (1985). The author states that:
Not all testimony that is situationally adverse to the witness' spouse falls within the protection of the marital privilege. The privilege is not absolute, and a witness- spouse may be compelled to answer certain questions, even in a grand jury investigation where the spouse is a target. The Fifth Circuit Court of Appeals ruled in In re Grand Jury Proceedings [664 F.2d 423 (5th Cir. 1981), cert. denied, 455 U.S. 1000 (1982)] that the witness-spouse could be required to answer "'objective' questions containing no reference to her husband . . . neither calculated to, nor capable of incriminating her husband."
Footnote: 5Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." W.Va.R.Evid. 801(c).