State v. Armstrong, No. 17614

CourtSupreme Court of West Virginia
Writing for the CourtMcHUGH
Citation179 W.Va. 435,369 S.E.2d 870
PartiesSTATE of West Virginia v. Keith ARMSTRONG.
Decision Date22 April 1988
Docket NumberNo. 17614

Page 870

369 S.E.2d 870
179 W.Va. 435
STATE of West Virginia
v.
Keith ARMSTRONG.
No. 17614.
Supreme Court of Appeals of
West Virginia.
April 22, 1988.

[179 W.Va. 436]

Page 871

Syllabus by the Court

1. "There are certain scientific tests that have been widely used over a long period of time, such that their general acceptance in the scientific community can be judicially noticed." Syl. pt. 8, State v. Clawson, 165 W.Va. 588, 270 S.E.2d 659 (1980).

2. The general reliability of bite-mark evidence as a means of positive identification is sufficiently established in the field of forensic dentistry that a court is authorized to take judicial notice of such general reliability without conducting a hearing on the same.

3. The trial court is vested with sound discretion to permit a witness to testify in narrative form, rather than by question and answer.

4. "It is not reversible error to refuse to give instructions offered by a party that are adequately covered by other instructions given by the court." Syl. pt. 20, State v. Hamric, 151 W.Va. 1, 151 S.E.2d 252 (1966).

5. "Although this Court may, under Rule 30 of the West Virginia Rules of Criminal Procedure, notice plain error in the giving of an erroneous instruction (in the absence of a proper and timely objection[179 W.Va. 437]

Page 872

at trial), this Court will not ordinarily recognize plain error under such circumstances, even of constitutional magnitude, where the giving of the erroneous instruction did not substantially impair the truth-finding function of the trial." Syl. pt. 2, State v. Hutchinson, --- W.Va. ---, 342 S.E.2d 138 (1986).

6. The jury, during deliberations, may use an exhibit, admitted into evidence, according to its nature and within the bounds of the evidence at trial in order to aid the jury in weighing the evidence, and the jury may make a more critical examination of an exhibit than was made during the trial.

John A. Rollins, Lewis, Ciccarello & Friedberg, Rebecca A. Betts, King, Betts & Allen, Charleston, for Keith Armstrong.

Silas Taylor, Deputy Atty. Gen., Charleston, for State of W. Va.

McHUGH, Chief Justice:

This case is before this Court upon the appeal of Keith Armstrong, the appellant and defendant below, from a conviction of aggravated robbery in the Circuit Court of Kanawha County, West Virginia. Having reviewed the petition for appeal, all matters of record, including exhibits, and the briefs and oral argument of counsel, we find no reversible error and affirm the judgment of conviction.

I

In the early morning, pre-dawn hours of March 21, 1985, the assistant manager of the Fifth Quarter Restaurant in Charleston, West Virginia, Harold James, and a temporary cleaning man, Larry Summey, were confronted inside the restaurant by an individual wearing two ski masks and armed with a handgun. The gunman, in an obviously muffled voice, directed Mr. James to open the safe. The robber spoke little and indicated his directions mostly with gestures. Apparently familiar with the many keys and the layout of the restaurant, he then placed Mr. James and Mr. Summey in the meat locker and took approximately $7,800 from the safe inside the manager's office, the door to which had previously been locked. The robber then located the switch panel and turned off all the outside lights.

About twenty minutes later, Mr. James and Mr. Summey opened the locker from the inside by releasing an emergency mechanism and contacted the police after determining the gunman was gone.

Later that morning, shortly after the police had left the scene, Mr. James found a wet paper towel in the restaurant's trash can below the cashier's stand. The paper towel was on top of the trash and appeared to have been chewed. Mr. James contacted the police, who gave the paper towel to the State Medical Examiner, Dr. Irvin M. Sopher. Dr. Sopher, who has doctorate degrees and experience in both medicine and dentistry, made casts of what appeared to be teeth impressions on the paper towel.

Mr. James and Mr. Summey described the gunman's clothing as including blue jeans with bleach spots down one leg, and stated the gunman was approximately six feet tall with a medium build. Mr. James further testified that he saw the color around the gunman's eyes and identified him as a black man. 1

According to Mr. James and Mr. Summey, the gun the robber was carrying had a cherry colored handle and was the size of a .357 magnum. Mr. James stated that prior to the robbery he had seen the same type of gun in the possession of Lonnie McClanahan, an employee of the restaurant. Mr. McClanahan testified that he had purchased a .357 magnum, with a cherry colored grip, from the appellant in October or November of 1984, and had loaned the gun to the appellant about eleven days prior to the robbery. The appellant stated he had borrowed the gun for a weekend camping trip. Mr. McClanahan further

Page 873

[179 W.Va. 438] stated that the appellant never returned the gun to him. 2

About a month prior to the robbery the appellant had been discharged from his employment as a kitchen worker for the Fifth Quarter Restaurant. Ivan Lee, who had worked with the appellant at the restaurant, testified in rebuttal to the appellant's alibi defense that the appellant told him, Mr. Lee, four to five days before the robbery at the restaurant that he, the appellant, would "like to knock it over for the bad things they done [sic] to me."

Upon the motion of the Prosecuting Attorney for Kanawha County, West Virginia, the Circuit Court of Kanawha County ("the trial court") authorized casts of the appellant's teeth to be made, for the purpose of comparison with the casts of the teeth impressions taken from the wet paper towel found in the restaurant's trash can.

At trial the State established that Dr. Sopher, in addition to being a qualified forensic pathologist, was, based upon his training and experience, qualified to give testimony as an expert witness in the field of forensic dentistry, also known as forensic odontology. Dr. Sopher had, inter alia, authored a leading book in the field of forensic odontology, entitled Forensic Dentistry, published in 1976. 3 Dr. Sopher testified that bite-mark comparisons were accepted, reliable techniques and that he had been involved as an expert witness in about thirty to forty criminal cases nationwide involving bite-mark comparisons. In those cases he had been called overall by the defendant almost as frequently as by the prosecution.

In this case Dr. Sopher testified that he had utilized two of the accepted comparison techniques. First, he visually compared the wax bite impressions taken from the casts of the appellant's teeth with the casts of the teeth impressions taken from the paper towel. Second, he compared, in overlay fashion, the enlarged photographic negatives of the appellant's teeth impressions with the enlarged photographic negatives of the teeth impressions on the paper towel. His analysis in this case disclosed that there were eight upper front teeth and seven lower front teeth impressions on the paper towel, a large number of teeth impressions for bite-mark comparisons because most bites are by front, not rear, teeth. The paper towel made an excellent medium for registering and preserving teeth impressions, much better than in any other bite-mark case in which Dr. Sopher had been involved.

While showing the jury the bite-mark evidence, Dr. Sopher testified that each person's teeth structure and alignment are unique; that the appellant's teeth were irregularly aligned and several were crooked, and that such irregularity facilitates confirmation of the match between a suspect's teeth and a bite mark; and that an examination of each tooth indicates an exact, perfect match between the appellant's teeth and the bite-mark pattern on the paper towel, with no incompatibility. Dr. Sopher therefore concluded with a reasonable degree of dental certainty that "the bite-mark pattern in the towel is that of the teeth of Keith Armstrong, to the exclusion of all other individuals."

Page 874

[179 W.Va. 439] The trial court had authorized the appellant to obtain the services of Dr. Lowell J. Levine, from the State of New York, another leading authority in the field of forensic dentistry. Dr. Levine examined Dr. Sopher's pretrial report on the bite-mark comparisons in this case. Although Dr. Levine was included in the appellant's list of potential witnesses at trial, the appellant did not call Dr. Levine or any other expert as a witness.

The appellant presented an alibi defense at trial. One of his neighbors testified that she observed that the appellant was at his apartment sometime between 11:00 p.m. and midnight on the evening before the robbery. This testimony tended to contradict the State's theory that the appellant, a former employee of the restaurant, had slipped unnoticed into the restaurant before the doors were closed at 11:30 p.m. and had hidden himself above the ceiling tiles in the men's room. The appellant's neighbor also testified, though, that the appellant had a separate outside entrance to his apartment and that she remembered seeing the appellant only briefly the one unspecified time between 11:00 p.m. and midnight. The appellant lived about two miles from the restaurant.

The jury returned a verdict of guilty. The trial court denied the appellant's motion for a new trial and subsequently sentenced the appellant to thirty years in the state penitentiary.

II

ADMISSIBILITY OF BITE-MARK EVIDENCE

The appellant did not challenge Dr. Sopher's qualifications as a forensic dentist and did not question the reliability of the bite-mark comparison techniques utilized in this particular case. The appellant did, however, move for an in camera hearing for the State to establish the reliability and general acceptance by forensic dentists of bite-mark comparisons in general. The appellant sought a ruling that such an in camera hearing was a necessary...

To continue reading

Request your trial
22 practice notes
  • Wilt v. Buracker, No. 21708
    • United States
    • Supreme Court of West Virginia
    • May 31, 1994
    ...period of time, such that their general acceptance in the scientific community can be judicially noticed." See also State v. Armstrong, 179 W.Va. 435, 369 S.E.2d 870 (1988); State v. Barker, 179 W.Va. 194, 366 S.E.2d 642 (1988). As we stated in Syllabus Point 8 of Clawson, where the scienti......
  • State v. Plumley, No. 18518
    • United States
    • Supreme Court of West Virginia
    • July 12, 1989
    ...order of evidence introduction does not constitute error unless it is an abuse of the trial court's discretion. See State v. Armstrong, 179 W.Va. 435, 369 S.E.2d 870 (1988) (form of witness's testimony within trial court's sound discretion); Holmes, supra, (recall of witness within trial co......
  • State v. Derr, No. 22101
    • United States
    • Supreme Court of West Virginia
    • November 18, 1994
    ...given by the court.' Syl. pt. 20, State v. Hamric, 151 W.Va. 1, 151 S.E.2d 252 (1966)." Syllabus Point 4, State v. Armstrong, 179 W.Va. 435, 369 S.E.2d 870 (1988). 16 Moreover, in Syllabus Point 2 of State v. Hobbs, 178 W.Va. 128, 358 S.E.2d 212 (1987), we stated that " '[i]t is error to gi......
  • Reager v. Anderson, No. 17123
    • United States
    • Supreme Court of West Virginia
    • July 22, 1988
    ...for determining whether judicial notice can be taken of the reliability of the scientific or technical evidence. State v. Armstrong, 179 W.Va. 435, n. 4, 369 S.E.2d 870, 874 n. 4 (1988) (and authorities cited there). Therefore, according to this view, a scientific or technical expert's test......
  • Request a trial to view additional results
22 cases
  • Wilt v. Buracker, No. 21708
    • United States
    • Supreme Court of West Virginia
    • May 31, 1994
    ...period of time, such that their general acceptance in the scientific community can be judicially noticed." See also State v. Armstrong, 179 W.Va. 435, 369 S.E.2d 870 (1988); State v. Barker, 179 W.Va. 194, 366 S.E.2d 642 (1988). As we stated in Syllabus Point 8 of Clawson, where the scienti......
  • State v. Plumley, No. 18518
    • United States
    • Supreme Court of West Virginia
    • July 12, 1989
    ...order of evidence introduction does not constitute error unless it is an abuse of the trial court's discretion. See State v. Armstrong, 179 W.Va. 435, 369 S.E.2d 870 (1988) (form of witness's testimony within trial court's sound discretion); Holmes, supra, (recall of witness within trial co......
  • State v. Derr, No. 22101
    • United States
    • Supreme Court of West Virginia
    • November 18, 1994
    ...given by the court.' Syl. pt. 20, State v. Hamric, 151 W.Va. 1, 151 S.E.2d 252 (1966)." Syllabus Point 4, State v. Armstrong, 179 W.Va. 435, 369 S.E.2d 870 (1988). 16 Moreover, in Syllabus Point 2 of State v. Hobbs, 178 W.Va. 128, 358 S.E.2d 212 (1987), we stated that " '[i]t is error to gi......
  • Reager v. Anderson, No. 17123
    • United States
    • Supreme Court of West Virginia
    • July 22, 1988
    ...for determining whether judicial notice can be taken of the reliability of the scientific or technical evidence. State v. Armstrong, 179 W.Va. 435, n. 4, 369 S.E.2d 870, 874 n. 4 (1988) (and authorities cited there). Therefore, according to this view, a scientific or technical expert's test......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT