dissenting:
Once again, the majority of this Court concludes that prior inconsistent statements were treated as substantive evidence, when in fact a reading of the record reflects the prior statements were used as good old-fashioned impeachment.
The majority opinion goes one step further to find that, absent the prior inconsistent statements, there was no direct evidence, except the testimony of Steven P., to support the two convictions of delivery to Steven P. and Bill C. A reading of the record does not support this conclusion either.
The majority opinion is reminiscent of the old story about the lawyer who said “I’ll work for any hourly rate, no matter how low, as long as I can keep the hours.”
Like the lawyer who was willing to be creative in his timekeeping, any legal writer can write a convincing opinion if he can take broad poetic license in establishing the basic premises upon which to build.
The casual reader of the majority opinion will certainly find that it appears well-reasoned and convincing; and one may accept it as such if one accepts these broad statements upon which it is premised:
The state introduced the written statements of ... three youths into evidence, and these statements were treated as substantive evidence ...
******
... without the prior inconsistent statements, the only substantive evidence that the state had to establish the delivery to Steven P. and Bill C. was the testimony of Steven P.
The problem with the majority opinion is that these conclusory statements upon which all that follows is based are made without any discernible review of the record.
A review of the record will in fact reflect clearly that the prior statements were used as impeachment, and that there was indeed other substantive direct evidence which support the jury’s convictions.
USE OF INCONSISTENT PRIOR STATEMENTS
As to the issue of the use of prior inconsistent statements, this dissent is based primarily on the same reasoning enunciated in the dissent to State v. Collins, 186 W.Va. 1, 15, 409 S.E.2d 181, 195 (1990).
It is also important to note that during the in camera hearing on defendant’s motion for directed verdict, the lower court stated the following with regard to the reason the prior statements were admitted:
Those written statements can be used to impeach, and effectively impeach, but whether or not they are substantive evidence standing alone that would warrant a conviction when the witness is saying something entirely different I have grave *30question about, and if that’s all you had count one would fly out the window _ (emphasis added).
Quite clearly, those prior statements were admitted by the court for their impeachment value only. The record reflects that this was also abundantly clear to the defendant’s attorney who during the same in camera hearing stated “[i]f we do not accept the prior statements as substantive evidence, there is then today an overwhelming amount of evidence that contradicts the testimony given by Steven P.” Defense counsel could have requested a limiting instruction, but failed to do so.
In addition, the lower court did properly instruct the jury at the close of the evidence as to witness credibility and the nature of impeachment:
You are the sole judges of the credibility of the witnesses and the weight of the evidence. As used in these instructions, “the credibility of a witness” ■ means the truthfulness or lack of truthfulness of the witness. “The weight of the evidence” means the extent to which you are or are not convinced by the evidence.
The number of witnesses testifying on one side or the other or an issue is not alone the test of the credibility of the witnesses and the weight of the evidence. If warranted by the evidence, you may believe one witness against a number of witnesses testifying differently. The tests are: How truthful is the witness and how convincing is his or her evidence in the light of all the evidence and circumstances shown.
In determining the credit and weight you will give to the testimony of any witness who has testified before you, you may consider, if found by you from the evidence: The good memory or lack of memory of the witness; the interest or lack of interest of the witness in the outcome of the trial; the demeanor and manner of testifying of the witness, the opportunity and means, or lack of opportunity and means, of having knowledge of the matters concerning which the witness testified; and the reasonableness or unreasonableness of such testimony.
From these considerations and all other conditions and circumstances appearing from the evidence, you may give to the testimony of the witness such credit and weight as you believe it entitled to receive.
If you believe that any witness in this case has knowingly testified falsely as to any material fact, you may, after considering and weighing the testimony of such witness, disregard the whole of the testimony of such witness or give it, or any part thereof, such weight and credit as you believe it to be entitled to receive.
The only additional commentary on this issue with regard to the instant case is that the prior statements here were not used sparingly, as they were in Collins and as the majority contends is required under State v. Spadafore, 159 W.Va. 236, 220 S.E.2d 655 (1975). However, as was pointed out in the Collins dissent, Spadafore dealt with a witness who claimed in court that he couldn’t remember making the pri- or statement. Despite the fact that there was no inconsistent testimony in court, the Court in Spadafore seemed to go on to apply the concepts enunciated therein to all out-of-court statements. They swept too broad a brush if that case is now being used for the proposition that prior inconsistent statements cannot be used to fully impeach in-court testimony. As discussed in the Collins dissent, the modern trend is to broaden, not restrict, the use of out-of-court statements if the declarant is present and available for cross-examination.
EVIDENCE SUPPORTING CONVICTIONS
When the majority claims that absent the prior statements there was no substantive evidence (except Steven P.’s) to support the jury’s verdict, one wonders if the drafter of the opinion read the transcript.
Herewith is a summary of what the state established by direct testimony given in court by the witnesses:
Bill C. testified that the defendant was at the defendant’s home with the boys on the night of the alleged offenses, and at that time the boys drank the defendant’s liquor *31and smoked marijuana, although in fairness Bill also testified (inconsistently with his prior statement) the defendant was in another room when the marijuana was smoked.
Orville R.’s direct in-court testimony also placed the defendant at the scene with the boys, indicated that the defendant provided them with alcohol, that the boys then took up a collection of funds with which the defendant went out to buy them beer, verified the presence and use of marijuana, and that Steve, Bill and the defendant smoked it together.
Michael S. testified in court that the defendant was at his home with the boys at the time of the alleged offenses. Michael also indicated that marijuana was smoked at that time, that two joints of marijuana were rolled and passed around, that the defendant handled the joints and puffed from the first one. Michael further testified that the defendant got a bottle of alcohol from the rear bedroom, brought it into the living room and provided it to the boys. He also testified that the defendant went out and got three cases of beer.
If this isn’t direct, substantive evidence, what is? Real life isn’t like “Perry Mason” where someone in the courtroom actually jumps up and confesses. This was solid, substantive evidence, especially when considered together with Steven P.’s testimony.
Perhaps the most vehement point of this dissent, however, is that even the majority acknowledges that Steven P. testified in court that the delivery was made to him by the defendant. That evidence was unrefut-ed and yet the conviction for delivery to Steven P. was also reversed.
All the majority seems to rely upon in reversing is that the cumulative effect of (1) a discussion the judge had with the juvenile witnesses out of the presence of the jury, (2) the use of prior inconsistent statements, and (3) the prosecutor’s comments concerning the witnesses’ credibility denied the appellant his constitutional right to a fair trial and constituted plain error.
Furthermore, Steven P. testified that, after receiving the marijuana from the defendant, he (Steven P.) handed it to Bill C. At the close of the state’s evidence the court refused the defendant’s motion for a directed verdict on the basis that this testimony of Steven P. alone would support a constructive delivery to Bill C.
ACTIONS OF JUDGE AND PROSECUTOR
This was not a perfect trial. No trial ever is. But it is ludicrous to believe the prosecutor’s comments and the judge’s actions were a proper basis for overturning these convictions, especially the one relating to Steven P.
After the third youth took the stand and began to recant his earlier statement to police, the judge excused the jury and took the boys into chambers, on the record, whereupon he began to engage in a Dutch Uncle lecture. It is apparent that the judge was upset over the fact that there was so much changing of stories on the part of these young men. He lectured them on testifying truthfully, threatened an investigation, and concluded by ordering them “[b]oys, I expect — whatever the truth is, I want the truth.” The judge did not suggest to them which version of their story he considered the truth. The jury heard none of this.
Now, had James resumed his testimony and recanted his recantation, one might reasonably conclude that the judge’s little lecture improperly influenced the testimony. But the fact is that the judge’s comments did not alter James’ testimony in the least. In fact, James gave the least incriminating evidence of any of the boys.
While the lower court’s lecture on truth-telling during the course of a witness’ testimony may have been questionable, the record is clear that it did not affect the witness’ testimony and the jury heard none of it. How the majority found that it in any way enhanced the prejudicial effect of the use of the prior statements is incomprehensible.
Lastly, the prosecutor’s comments and argument weren’t even made the subject of an assignment of error. Obviously, how*32ever, if a witness’ in-court testimony is impeached by a prior inconsistent statement, the state has a right to attack the credibility and integrity of the testimony that was impeached. This Court permitted the prosecutor to call the defendant a liar in State v. Dietz, 182 W.Va. 544, 390 S.E.2d 15 (1990). Certainly it can’t be more egregious to argue that an ordinary witness is lying than it is to call a criminal defendant a liar.
One suspects the bottom line of all this is that the majority thought the circuit court went a little too hard on this defendant, and decided to cut him a break. The judge did impose a rather stringent sentence— consecutive terms of one to five years each, an enhancement under West Virginia Code § 60A-4-406, fines of $30,000, along with a six-month sentence for the misdemeanor charge to be served concurrently, resulting in a cumulative sentence of four to twenty years. The harshness of the sentence was also raised as an assignment of error, but not dealt with by the majority.
As the state points out, however, “The Supreme Court of the United States, in Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980) and Hutto v. Davis, 454 U.S. 370, 102 S.Ct. 703, 70 L.Ed.2d 556 (1982), has virtually proscribed review of any sentence length where the sentence is within the statutorily decreed range.” It is also significant that this was a high school teacher and coach distributing drugs to minors. A more stringent sentence certainly is merited when one placed by society in a position of authority and influence as a teacher and role model for youth uses that position to encourage the use of drugs.
For the foregoing reasons, I dissent, and I am authorized to state that Justice BROTHERTON joins me in this dissent.