Joanna I. Tabit
Deputy Attorney General
Charleston, West Virginia
Attorney for the Appellee
Mark G. Sargent
Attorney for the Appellant
JUSTICE BROTHERTON delivered the Opinion of the Court.
JUSTICE NEELY dissents and reserves the right to file a dissenting opinion.
JUSTICE MILLER concurs and reserves the right to file a concurring opinion.
SYLLABUS BY THE COURT
1. "Where a counsel's performance, attacked as
ineffective, arises from occurrences involving strategy, tactics
and arguable courses of action, his conduct will be deemed
effectively assistive of his client's interest, unless no
reasonably qualified defense attorney would have so acted in the
defense of an accused." Syllabus point 21, State v. Thomas, 157
W.Va. 640, 203 S.E.2d 445 (1974).
2. "A statement is not hearsay if the statement is
offered against a party and is his own statement, in either his
individual or a representative capacity." Syllabus point 1,
Heydinger v. Adkins, ___ W.Va. ___, 360 S.E.2d 240 (1987).
3. In order for a trial court to determine whether to grant a party's request for additional physical or psychological examinations, the requesting party must present the judge with evidence that he has a compelling need or reason for the additional examinations. In making the determination, the judge should consider: (1) the nature of the examination requested and the intrusiveness inherent in that examination; (2) the victim's age; (3) the resulting physical and/or emotional effects of the examination on the victim; (4) the probative value of the examination to the issue before the court; (5) the remoteness in time of the examination to the alleged criminal act; and (6) the evidence already available for the defendant's use.
The appellant, Denzil Delaney, appeals from the verdict
of the Circuit Court of Calhoun County, which found the appellant
guilty on six counts of sexual assault. The appellant was
sentenced to thirty-to-fifty years in the State penitentiary, fined
$10,000, and ordered to pay restitution for medical and counseling
expenses incurred by the victims.
Denzil Delaney was married to Joyce Nicholas. He lived
with his wife and their daughter, Patty, on a farm in Orma, Calhoun
County, West Virginia. Also living with Denzil and Joyce Delaney
were Joyce's parents and Joyce's two young sisters, Emma and Missy
The first of the alleged sexual assaults which form the
basis of this case occurred in January, 1983, when the appellant
assaulted seven-year-old Emma Nicholas after feeding the hogs.
Later that summer, he again allegedly assaulted Emma while she was
sleeping in her parents' bed. Next, in the summer of 1984, the
appellant took Emma outside early one morning and again sexually
assaulted her. He then gave her a handful of change and told her
not to tell anyone.
In June, 1985, the appellant allegedly assaulted Emma's
eight-year-old sister, Missy, while she was in her bedroom. Again,
the appellant gave her a handful of change and told her not to tell
anyone what he had done.
On July 21, 1985, Emma, Missy, and Patty Delaney, the
appellant's daughter, told the appellant's wife, Joyce, that Denzil
had been making them pull their clothes down. The appellant denied
the allegation and accused the girls of lying. In July, 1988,
Patty claimed that the appellant sexually assaulted her. A second
sexual assault happened later that month. After both occasions, he
gave her money and told her not to tell anyone.
After hearing that the appellant had molested Patty,
Missy and Emma again decided to tell someone what had happened.
Missy constructed a diary, in which she wrote, on July 18, 19, and
20, 1988, what had happened to her, Emma, and Patty. She also drew
sketches of the appellant, portraying him as the devil. Missy
placed the diary on the kitchen table on July 19, 1988, hoping that
her mother, Missouri Nicholas, would read it. Her mother did not
see it. Missy then copied one of the pages from the diary onto a
separate piece of paper and gave it to a friend to give to her
mother. Word got back to Missy's older sister, Robin McCumbers,
who told the appellant's wife what the girls had said. The
appellant's wife, Joyce, then ordered the appellant to pack his
clothes and leave. He moved to his mother's home in Pennsylvania.
On July 21, 1988, Joyce Delaney and Missouri Nicholas
took the three girls to the State Police headquarters in
Grantsville, where all three girls gave statements to Trooper
Garrett. On July 22, 1988, they were examined by Dr. Kathryn
Grant. Based upon the statements given, Trooper Garrett
investigated the appellant and filed criminal complaints against
him in Calhoun County Magistrate Court. The appellant waived
extradition, returned to West Virginia, and was incarcerated in the
Calhoun County jail.
While incarcerated, the appellant made several phone
calls to Joyce, by then his ex-wife, and his ex-father-in-law,
Denver Nicholas. Denver Nicholas visited the appellant at the jail
at the appellant's request. At that time, the appellant allegedly
confessed to sexually assaulting the three girls and indicated
that, although he wanted to plead guilty, he was not permitted to
do so because he was not represented by counsel at that time.
During the next visit, Denver Nicholas reported that the appellant
asked him to have the girls recant their statements, but Denver
refused. When the appellant called his ex-wife, Joyce, she spoke
with the appellant while her sister, Robin, listened on the
extension. At that time, the appellant confessed that he had
sexually assaulted the girls, but stated that he wanted the girls
to lie because he didn't want to go to jail for it.
Trial began in the Circuit Court of Calhoun County on
July 11, 1989. Denver Nicholas, Robin McCumbers, and Joyce
Nicholas testified to the appellant's alleged confessions. Dr.
Katherine Grant, the physician who examined the three victims on
July 22, 1988, also testified that Patty, the appellant's daughter,
had physiological symptoms that were normal for a mature woman
having sexual intercourse, but not for a five-year-old girl. Dr.
Grant also examined Missy and Emma, but the examination revealed no
physiological indications of recent sexual intercourse. However,
Dr. Grant stated that the physical signs of sexual intercourse
could recede within as little as six months. Also testifying was
Pamela Rockwell, a sexual assault counselor for the Charleston-based Family Services. Ms. Rockwell had counseled Missy, Emma, and
Patty on several occasions prior to trial. Ms. Rockwell testified
that the three girls displayed symptoms of children who had been
sexually assaulted or abused.
Following the closing statements, the jury found the
appellant guilty on all six counts. Accordingly, the trial court
sentenced him to thirty-to-fifty years in the State penitentiary,
fined him $10,000, and ordered him to pay for the medical and
counseling expenses incurred by the three girls. It is from the
conviction that the appellant files this appeal.
The appellant presents twenty-four separate allegations
of error to this Court for review. This Court will address only
those assignments of error which have some substance and merit
discussion. The remaining assignments of error, which we believe
to be meritless, will not be addressed in this opinion.
Initially, we note that the appellant's argument that he
had ineffective assistance of counsel at the trial level is
erroneous. A review of the transcript reveals that the appellant's
trial counsel, who is also his appellate counsel, did all things
reasonable and necessary to defend his client. In State v. Thomas,
157 W.Va. 640, 203 S.E.2d 445 (1973), this Court set the standards
for determining ineffective assistance of counsel:
Where a counsel's performance, attacked as ineffective, arises from occurrences involving strategy, tactics and arguable courses of action, his conduct will be deemed effectively assistive of his client's interest, unless no reasonably qualified defense attorney would have so acted in the defense of an accused.
Id. at syl. pt. 21. Further, the Thomas Court ruled that "[o]ne
who charges on appeal that his trial counsel was ineffective and
that such resulted in his conviction, must prove the allegation by
a preponderance of the evidence." Id. at syl. pt. 22. As we can
find no evidence that the trial counsel's performance resulted in
the appellant's conviction or that no reasonably qualified defense
attorney would have so acted, we do not find ineffective assistance
The appellant next argues that the trial court erred when
it allowed Joyce Nicholas, the appellant's ex-wife, to testify
regarding his acts and statements which occurred while they were
still married. The appellant argues that his ex-wife's testimony
should have been limited to acts alleged to have been committed
against their daughter, Patty, and that the marital privilege would
prevent her from testifying regarding Emma and Missy.
West Virginia Code § 57-3-3 (1931) explains the marital
privilege against acting as a witness against a spouse:
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 . . . . (Emphasis added.)
In this case, the charged sexual assaults were against their child
and against the wife's two younger sisters. Thus, the marital
privilege is not applicable to this case by the specific language
of W.Va. Code § 57-3-3.
The appellant next argues that the statements made by him
to Denver and Joyce Nicholas while in jail were hearsay and thus,
should have been held inadmissible by the court below. We
disagree. Rule 801(d)(2)(A) of the West Virginia Rules of Evidence
holds that admissions by a party opponent do not fall within the
hearsay rule. In syllabus point 1 of Heydinger v. Adkins, 178
W.Va. 463, 360 S.E.2d 240 (1987), this Court stated that "[a]
statement is not hearsay if the statement is offered against a
party and is his own statement, in either his individual or
representative capacity." We believe the statements were properly
admitted by the trial court.
The appellant next contends that his constitutional right
to due process was violated when the Circuit Court of Calhoun
County denied his request to order court appointed experts access
to the victims for physical and psychological examinations. The
appellant was permitted both medical and psychological experts to
interpret the examinations that had already been performed upon the
three girls, but denied the opportunity to have the three girls re-examined by another physician and psychologist.
While we agree that a defendant has a right to present
evidence on his own behalf and to confront adverse witnesses, pre-trial discovery is generally within the discretion of the trial
court. Syl. pt. 8, State v. Audia, 171 W.Va. 568, 301 S.E.2d 199
(1983); see also, State v. Fortner, 182 W.Va. 345, 387 S.E.2d 812
(1989). This Court has held that the decision whether to require
a psychiatric evaluation prior to determining a child's capacity to
testify is within the trial court's discretion. Burdette v.
Lobban, 174 W.Va. 120, 323 S.E.2d 601, 602 (1984). However, the
Court has also ruled that "the traditional challenge to the
competency of minors . . . does not require a psychological
profile." State v. McPherson, 179 W.Va. 612, 371 S.E.2d 333, 339-40 (1988).
The State counters that the court must balance the
defendant's right to discover possible evidence against the
victims' privacy interests in ordering another physical
examination. The State urges this Court to adopt a balancing test
in order to determine whether additional examinations would be
required, pointing to the test developed in State v. Ramos, 553
A.2d 1059 (R.I. 1989).See footnote 1 In Ramos, the Supreme Court of Rhode
Island adopted "a compelling need or reason" test, stating that:
The practice of granting physical examinations of criminal witnesses must be approached with utmost judicial restraint and respect for an individual's dignity. In determining whether to order an independent medical examination, the trial justice should consider (1) the complainant's age, (2) the remoteness in time of the alleged criminal incident to the proposed examination, (3) the degree of intrusiveness and humiliation associated with the procedures, (4) the potentially debilitating physical effects of such an examination, and (5) any other relevant considerations.
Id. at 1062.
Although less specific than the Ramos test, Alaska
utilizes a similar balancing test in determining whether the trial
court was correct. In Moor v. State, 709 P.2d 498 (Alaska App.
1985), the Alaska Court of Appeals required a strong showing of
materiality on the part of the requesting party before it would
reverse a trial court's decision not to grant a psychiatric
evaluation of a prosecution witness. Id. at 508. In making the
decision, the court weighed the defendant's right to a fair trial
and to challenge the veracity of the prosecution witnesses against
the witness' right to privacy and the risk that such crimes would
go unreported if witnesses were subject to harassment. Id. The
Alaska court concluded that the defendant's offer of proof was
inadequate and the trial court's denial of the evaluation would be
upheld where the defendant's evidence showed the victim had
discussed possible imaginary sexual activity with friends.
We believe the guidelines established in Ramos are a reasonable method of balancing the defendant's need for the examinations against the victim's right to privacy. Thus, in order for a trial court to determine whether to grant a party's request for additional physical or psychological examinations, the requesting party must present the judge with evidence he has a
compelling need or reason for the additional physical or
psychological examinations. In making the determination, the judge
should consider (1) the nature of the examination requested and the
intrusiveness inherent in that examination; (2) the victim's age;
(3) the resulting physical and/or emotional effects of the
examination on the victim; (4) the probative value of the
examination to the issue before the court; (5) the remoteness in
time of the examination to the alleged criminal act; and (6) the
evidence already available for the defendant's use.
Although the trial court below does not state specific
and detailed reasons for denying the request, we believe that it
followed, in essence, the test enunciated in Ramos. In light of
the victims' tender ages, the intrusiveness and humiliation
associated with a gynecological examination of the three young
girls, and the remoteness in time from the incidents in question to
the proposed examinations, the court was correct in denying the
request for a physical examination. Most persuasive to this Court
is the fact that the State's expert testified that physical
symptoms of sexual assault can dissipate in as little as six
months. It has been several years since the dates of the alleged
assaults. Thus, any evidence the appellant hopes to obtain from
these tests would have long ago disappeared. In balancing the
appellant's need against the consideration of the victims' ages,
the intrusiveness of the examinations, and the remoteness of time,
we conclude that there would be no probative value of such physical
examinations at this point. Thus, the trial court was correct in
denying additional physical examinations of the three victims.
The appellant's request for a psychological evaluation
likewise fails. In many cases with similar circumstances, the
trial court would be justified in allowing the examination. In
this case, however, despite the appellant's professed need, he did
little more than ask for the evaluation. Under the six part test
set forth above, the appellant failed to present any reason,
compelling or otherwise, to justify the examination. Given the
effect of a probing mental interrogation on children of their
tender years, we believe the trial court was correct in ruling
that, in essence, the probative value to the appellant was
outweighed by the trauma and intrusiveness to the victims. The
appellant had available to him a psychologist to assist with the
evaluation and cross-examination of the State's expert testimony.
The appellant's counsel cross-examined the State's witness
extensively on perceived failures in her treatment and questioning
of the children's background.See footnote 2 Since we cannot find that the
appellant's need is greater or more compelling than the burden it
would impose on the victims, the trial court did not abuse its
discretion in denying the appellant's request.See footnote 3
The appellant's remaining assignments of error are
without merit and are not addressed by the Court in this opinion.
Accordingly, we affirm the verdict of the Circuit Court of Calhoun
Footnote: 1Other jurisdictions have adopted some form of the "compelling need or reason" test in determining whether a request for an additional physical examination should be granted. See People v. Chard, 808 P.2d 351 (Colo. 1991), cert. denied ___ U.S. ___, 112 S.Ct. 186, 116 L.Ed.2d 147 (1991); State v. Farr, 558 So.2d 437 (Fla.App. 1990); State v. Drab, 546 So.2d 54 (Fla.App. 1989); People v. Beauchamp, 483 N.Y.S.2d 946 (N.Y.Supp. 1985); Lanton v. State, 456 So.2d 873 (Ala.Crim.App. 1984), cert. denied 471 U.S. 1095, 105 S.Ct. 2314, 85 L.Ed.2d 834 (1985); State v. Glover, 273 N.E.2d 367 (Ill. 1971).
A balancing test has also been applied in cases in which psychological testing was requested. See People v. Chard, 808 P.2d 351 (Colo. 1991); State v. LeBlanc, 558 So.2d 507 (Fla.App. 1990); State v. Nelson, 453 N.W.2d 454 (Neb. 1990); People v. Graham, 434 N.W.2d 165 (Mich.App. 1988); Moor v. State, 709 P.2d 498 (Alaska App. 1985); State v. Filson, 613 P.2d 938 (Idaho 1982).
Footnote: 2Ms. Rockwell qualified as an expert at trial. She testified that she had a bachelors degree with fifteen hours toward her masters degree and approximately ninety hours of continuing education specializing in childhood sexual abuse. At the time of trial, she had been employed by the Sexual Assault Program at the Charleston-based Family Services for five and one-half years and in social services for another two years. She testified that she had treated approximately 400-450 children as victims of sexual assault, with ages ranging from three years through teenagers. Ms. Rockwell also stated that she received training in California, Chicago, and Washington, D.C. No objection was made by the appellant's counsel at the time of her testimony.
Footnote: 3We also note the appellant's argument that the testimony of the rape counselor expert was improper is erroneous. In syllabus point 7 of State v. Edward Charles L., ___ W.Va. ___, 398 S.E.2d 123 (1990), this Court held that:
Expert psychological testimony is permissible
in cases involving incidents of child sexual
abuse. An expert may state an opinion as to
whether the child comports with the
psychological and behavioral profile of a
child sexual abuse victim, and may offer an
opinion based on objective findings that the
child has been sexually abused . . . .
As a result, we believe that the testimony of Ms. Rockwell was proper.