State v. Angel

• Decision Date: 17 November 1970
• Docket Number: No. 12866,12866
• Citation: 154 W.Va. 615,177 S.E.2d 562
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Lennis ANGEL.

Page 562

177 S.E.2d 562

154 W.Va. 615

STATE of West Virginia v. Lennis ANGEL.

No. 12866.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 22, 1970.

Decided Nov. 17, 1970.

Syllabus by the Court

1. The State and Federal Constitutions prohibit only unreasonable searches and seizures and there are numerous situations in which a search and seizure warrant is not needed, such as an automobile in motion, searches made in hot pursuit, searches around the area where an arrest is made, things that are obvious to the senses, and property that has been abandoned, as well as searches and seizures made that have been consented to.

2. Code, 62--1A--2, as amended, merely authorizes search warrants for the three categories of property contained in the statute and does not prohibit or eliminate search warrants for other evidence of the commission of a crime, or forbid reasonable searches without warrants for such evidence.

3. If officers are lawfully present and observe what is then and there immediately apparent, no search warrant is required in such instance, and the testimony by the officers with regard to the evidence which they observed is entirely proper.

4. When a motion is made by defendant's attorney to have a defendant examined by a psychiatrist, the state or judge can assume that a plea of insanity will be made, and it is entirely proper for the court to order a similar examination under the provisions of Code, 62--3--9, as amended.

5. Where a defendant relies on insanity as a defense to the commission of a crime and is examined by a psychiatrist, it is proper to use as evidence the testimony of the psychiatrist in connection with the examination, and the evidence of a psychiatrist who testifies on behalf of the defendant in connection with such matter may be rebuted by evidence of a psychiatrist testifying on behalf of the state.

6. In order to have objections to instructions considered on appeal it is necessary under the provisions of Trial Court Rule VI(c) governing such matter for the party objecting to the giving or refusing of instructions by a trial court to state distinctly the matter to which he objects and the ground for his objection in the trial court.

Samuel D. Lopinsky, Chester Lovett, Charleston, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., George E. Lantz, Deputy Atty. Gen., Willard A. Sullivan, Cheryl A. Wheeler, Asst. Attys. Gen., Charleston, for defendant in error.

BERRY, Judge:

This is an appeal by the defendant, Lennis Angel, from a judgment of February 18, 1969, of the Circuit Court of Kanawha County, West Virginia, affirming a judgment of the Intermediate Court of Kanawha County entered July 24, 1968, on a jury verdict which had found the defendant guilty of murder in the first degree without recommendation for mercy.

The defendant was indicted at the January, 1967, term of the Intermediate Court of Kanawha County for the murder of Frances Voiles, a twelve year old girl who had been a baby sitter for the two children of the defendant at his residence in the City of Nitro when last seen alive.

A writ of error was granted by this Court on September 15, 1969, and a motion by the defendant to file typewritten briefs was granted June 23, 1970. The case was submitted for decision on arguments and briefs of the parties at the September, 1970, Regular Term of this Court. The errors assigned by the defendant are numerous and relate to the objections that were made throughout the trial of this case which were continuously made and no doubt prolonged the trial and resulted in a lengthy record.

In order to understand the matters involved in this appeal it is necessary to review the evidence introduced during the trial, both on behalf of the state and of the defendant.

On November 19, 1966, around 4:30 a.m. some person reported to the Nitro City Police that a body was lying near the Nitro High School. After the report was received two Nitro City Policemen, Charles Sisk and Sergeant Johnson, went to the reported scene and found the dead body of a young girl lying doubled up with some of her clothes missing and the rest disarranged. Her body bore numerous stab wounds. The testimony of a pathologist, Dr. Willis D. Garrard, who examined her body later that morning, showed that she had 46 stab wounds covering many areas of her body, and that the wounds were inflicted within a comparatively short time. He testified that her death was caused as the result of two or three deep stab wounds which penetrated the chest and back in the area of the heart and lungs.

Near the area where the body was found the officers also found a hunting knife and scabbard and the knife appeared to have blood on it. The identity of the girl was not established until almost noon on the day her body was found when her grandfather and other relatives identified the girl at the hospital where the pathologist was examining her. Although the victim was only twelve years of age, she was large for her age and the pathologist estimated her weight at about 135 pounds. Samples of the victim's blood and hair were given to the police by the pathologist.

After the body was found the police called Mayor W. W. Alexander of Nitro and Clarence A. Palmer, Captain of the Police of Nitro, who proceeded to the scene. Later the mayor called the county coroner and the state police. Two state troopers, John Rapp and F. L. Kyle, who were patrolling in that area, went to the funeral home to which the body had been taken before it was transported to the hospital for examination. Trooper R. L. Hurt was called into the case about 7:00 a.m. from his home.

Later in the morning the mayor received a telephone call from an unknown source to the effect that blood stains were visible on the sidewalk and around the front of the defendant's house. Mayor Alexander, together with two other men who happened to be in his office at the time, proceeded to the defendant's house and was met at the door by the defendant and his father who invited him into the house. The mayor observed what appeared to be blood stains outside the house, and after he entered the house found numerous similar stains on the walls, floor, window sills and some of the furnishings. The defendant's wife, mother and other persons were present at that time. The evidence is uncontradicted that the defendant invited the mayor into his house.

The mayor talked with the defendant and his father and mentioned the identity of the dead girl, which the mayor at that time was aware of. The moyor testified that he did not at that time suspect the defendant and that he was merely investigating the matter because of the telephone call made to him in connection therewith, although he himself did not have police authority. The mayor discussed the situation with the defendant who told him that he had left the Angel home about 11:00 p.m. on the night before and that at that time there was a boy named Butch Reedy with the Voiles girl, that he felt the Reedy boy was the guilty party and wanted to help the police solve the matter as quickly as possible. The defendant's wife was not at home at the time and apparently did not come home until about 3 o'clock a.m. The two young children were at home with their father when their mother returned. While in the house the mayor observed that the floor had been recently cleaned. Another witness testified later in the trial that it was obvious some changes had been made in the house, because there were no rugs nor curtains present, and that he observed a greenish powder residue on the linoleum at some places similar to that left by Comet cleanser, a can of which was later found in the house.

The mayor told the defendant the police would want to examine the house, and the evidence introduced by the state is that the defendant readily agreed and either gave or had the key to the house given to the mayor for that purpose. The only conflict with regard to this matter contained in evidence offered by the state is to the effect that the defendant's father gave the key to the mayor without the express consent of the defendant. However, if it did so happen the defendant was present at the time this was done and made no objection.

The mayor, acting on the offer of cooperation by the defendant, suggested that the family might go to the father's home while the police were conducting their investigation to which suggestion the defendant agreed. The mayor also told the defendant he would have the police take him to the city hall where he could make a statement if he so desired. The mayor called the police, and the defendant and his family went to the home of his parents. The mayor locked the door to the defendant's house and left with the key.

Soon thereafter two city police officers arrived at the home of the defendant's father and talked with the defendant who apparently took the officers to his home where he showed them blood stains in or around the house. On a later visit they observed the defendant's car which was parked nearby and noticed what appeared to be blood stains on the back seat. Officer Rumbaugh testified that he told the defendant he would like to examine his car including the interior of the trunk. The defendant gave them permission to look into the trunk and gave the police the keys. They found blood stains on the latch and interior, as well as some on a set of hubcaps which were on the floor of the trunk, and one observed that a portion of the floor mat was missing. They did not remove anything at that time. The police officers then asked the defendant if he would come to the Nitro police headquarters with them, but informed him that he did not have to go. The defendant said he wanted to go and the officers stated that at that time they advised him of his sonstitutional rights. A city councilman by the name of Dye was requested by the police to bring the defendant's car to the city hall, which he did. Dye had also looked...