Wagner v. Hedrick

• Decision Date: 18 April 1989
• Docket Number: No. 18478,18478
• Court: West Virginia Supreme Court
• Parties: William Anthony WAGNER v. Jerry C. HEDRICK, Warden, West Virginia Penitentiary.

Page 286

383 S.E.2d 286

181 W.Va. 482

William Anthony WAGNER v. Jerry C. HEDRICK, Warden, West Virginia Penitentiary.

No. 18478.

Supreme Court of Appeals of West Virginia.

April 18, 1989.

Rehearing Denied July 20, 1989.

Dissenting Opinion Aug. 2, 1989.

Syllabus by the Court

1. "The Fourth Amendment of the United States Constitution, and Article III, Section 6 of the West Virginia Constitution protect an individual's reasonable expectation of privacy." Syl. pt. 7, State v. Peacher, 167 W.Va. 540, 280 S.E.2d 559 (1981).

2. Although injured persons being treated in a hospital emergency room are entitled to Fourth Amendment protections, the degree of privacy they are reasonably entitled to expect may be diminished by the circumstances under which they are brought into the hospital.

Jane Moran, Williamson, for William Anthony Wagner.

Charles G. Brown, III, Atty. Gen., Charleston, for Jerry C. hedrick.

BROTHERTON, Chief Justice:

The petitioner, William Anthony Wagner, was convicted of first degree felony murder by a Mingo County Circuit Court jury on January 8, 1983. He was sentenced to life imprisonment with a recommendation of mercy. Wagner now assigns as error (1) the admission of evidence discovered during a warrantless search of his clothing while he was being treated in a hospital emergency room, and (2) the admission of testimony regarding a letter allegedly written by him without requiring the production of the actual letter. ¹ We find no reversible error and affirm Wagner's conviction for the reasons set forth below.

I.

The body of Dwight Truman Elswick was found in the early morning hours of July 21, 1982, at his work site, a Norfolk and Western shack adjacent to the railroad tracks in Williamson, West Virginia. Co-workers were first alerted to his circumstances when an unidentified plea, "Somebody come to me," was transmitted over the railroad yard's radio system at 12:57 a.m. Elswick's body was discovered minutes later, lying face down on the floor of the shack, with the radio microphone near his hand and his back pants pockets turned inside out. Subsequent investigation revealed that Elswick was killed by a shot from a .38 caliber revolver and that he was robbed of a substantial amount of money and a 1903 ten dollar gold piece. There were no witnesses to his killing and no evidence was found at the scene that indicated the identity of Elswick's assailant.

Later that day, at approximately 9:24 p.m., the petitioner, William Anthony Wagner, and his traveling companion, Chatwan Smith, were involved in a motorcycle accident in Logan, West Virginia. State Police Trooper S.M. Pinion arrived at the scene at 9:40 p.m. He secured the accident victims' personal effects--consisting of two duffle bags and motorcycle helmets--by putting them in the trunk of his cruiser. Pinion stated that he did not look through the duffle bags, but kept them solely for the purpose of "safekeeping." A wrecker was also called to the accident scene and arrived at approximately 10:15 p.m. After helping to load the motorcycle onto the back of this wrecker/pick-up truck, Pinion went to Logan General Hospital in order to complete an accident report and check on the condition of the victims.

According to Trooper Pinion's testimony, he arrived at the hospital to find an extremely chaotic emergency room which was packed with people. Wagner was in a bed in the emergency room, apparently conscious but also intoxicated and in extreme pain. Smith was in a nearby bed, but they were separated by a curtain between them. Dr. Patricia Lewis, the emergency room physician who treated Wagner that night, testified that he suffered a compressed fracture of the spine and also had a fractured clavicle. She indicated that he was lethargic and in a great deal of pain, and that his blood alcohol level was .170. Chatwan Smith sustained fractured ribs in the accident and the doctor indicated that she was also "incapacitated."

Pinion attempted to identify the victims in order to complete his accident report, asking those present, in general, "Does anybody have any identification?" He stated that he looked for a hospital admissions sheet but could not find one. Joyce Dean, a supervisor at Logan General Hospital, testified at the suppression hearing that at approximately 10:25 p.m., Wagner provided her with information she needed to fill out the emergency room record, which she said should have been on a desk in the emergency room. Dean said that Wagner seemed to be coherent, but that when she wrote down the admissions data she put a question mark by his name because he appeared uncertain or hesitant about giving it to her. Pinion testified that he directed questions to Wagner, but concluded that Wagner either couldn't answer questions or didn't want to answer questions because of the pain he was in.

Wagner's clothing had been removed and placed in a basket underneath his bed. Pinion removed the pants and looked in the pockets for I.D., but found only dollar bills, some change, and a gold coin. Attaching no particular significance to the gold coin, he put everything back into the basket. A few minutes later, a nurse handed him Wagner's drivers license. Pinion became suspicious upon seeing an Ohio drivers license, as he recalled that the motorcycle had cardboard tags on it indicating that its Rhode Island tags had been stolen. Pinion proceeded to call the State Police office in Logan, and he asked that an NCIC check be run on "William A. Wagner." At this point, Dispatcher Buzz Keesee informed Pinion that the Williamson city police had issued an APB for an "Anthony Wagner" at around 9:00 p.m. and that he was wanted in connection with the robbery and murder of a railroad worker in Williamson. Pinion asked for more details and awaited a phone call from someone who could provide additional information.

Concerned that Wagner might have a gun, Pinion informed a doctor that two people being treated in the emergency room may have been involved in a robbery and murder in Williamson. Pinion was told that the woman, Chatwan Smith, had a roll of money she wouldn't let loose of, even though a nurse had tried to secure it. Pinion told a doctor they had better attempt to get the money because it may be connected with the robbery. A doctor finally took the money from Ms. Smith and handed it to Pinion, who counted $2,750.00 in hundreds and fifties.

A few minutes later, Pinion received a phone call from Corporal B.L. Baker, who was in Williamson and who filled Pinion in on the details of Elswick's death and Wagner's possible connection to the crime. The police believed it was Wagner who had bought a motorcycle earlier that day from Trooper John Zirkle, who was off duty and not in uniform, paying him $1,500.00 in one hundred dollar bills for it. Police suspected that Wagner had robbed Elswick of between $5,000.00 and $7,000.00, as well as a gold coin. Pinion then told Baker that he had observed a ten dollar gold piece in Wagner's pants pocket when he was looking for I.D. Both Baker and Pinion considered Wagner to be a suspect at this point. Baker told Pinion to secure the gold coin and the money and that he (Baker) would be over to the hospital the next day. They discussed obtaining a search warrant but concluded that because Pinion was the only police personnel at the hospital at such a late hour and because Pinion was unaware of the extent of Wagner's injuries and was afraid he might attempt to dispose of the coin, taking the coin without a warrant was the "practical thing to do under the circumstances."

After his conversation with Corporal Baker, Pinion felt that he had probable cause to arrest Wagner, indicating that "if he had tried to get up, I would have detained him." He subsequently removed the contents of Wagner's pants pockets. Pinion told hospital personnel to keep Wagner in a secured room that night. The two duffle bags, helmets, and other personal effects belonging to Wagner and Chatwan Smith were placed in a plastic bag and locked in the evidence room at the state police barracks in Logan that night.

At 3:50 p.m. on July 22, 1982, Corporal Baker applied to Magistrate Johnny Mendez for a warrant to search the duffle bags. The warrant indicated that the police were looking for a wallet, money, identification cards, or papers belonging to Dwight T. Elswick and a .38 caliber revolver that may have killed him. As grounds for probable cause for issuance of a warrant, the warrant stated "that the bags listed are the property of William A. Wagner and may contain property stolen of Dwight T. Elswick and may contain evidence of the crime due to the oral statement from Trooper S.M. Pinion that William A. Wagner had in his possession a gold coin belonging to Dwight Elswick."

Upon obtaining the search warrant, Trooper Pinion unlocked the evidence room for Corporal Baker and turned over the money retrieved from Chatwan Smith as well as the gold coin--a 1903 series ten dollar gold piece--which had been placed in an envelope and remained in Pinion's possession until he turned it over to Baker. In the duffle bag Baker found a .38 caliber revolver with six cartridges in the cylinder of the weapon. Later that evening, at around nine or ten o'clock, Wagner was officially placed under arrest and informed of his Miranda rights. ²

Prior to trial, an extensive suppression hearing was held at which Trooper Pinion, Corporal Baker, the defendant Wagner, Chatwan Smith, and ten hospital employees testified as to the events occurring in the Logan General Hospital emergency room on July 21, 1982. After hearing the arguments of counsel, the court ruled on various motions, including the defendant's motion to suppress the gold coin and all evidence obtained as a result of the gold coin. The court stated that the first search of the defendant's pockets presented the real issue to be addressed as the subsequent seizure of the coin occurred after Trooper Pinion had probable...