State v. Audia

• Decision Date: 11 March 1983
• Docket Number: No. 15212,15212
• Citation: 171 W.Va. 568,301 S.E.2d 199
• Court: West Virginia Supreme Court
• Parties: , 52 A.L.R.4th 943 STATE of West Virginia v. Anthony AUDIA.

Page 199

301 S.E.2d 199

171 W.Va. 568, 52 A.L.R.4th 943

STATE of West Virginia v. Anthony AUDIA.

No. 15212.

Supreme Court of Appeals of West Virginia.

March 11, 1983.

[171 W.Va. 570] Syllabus by the Court

1. "In determining whether an out-of-court identification of a defendant is so tainted as to require suppression of an in-court identification a court must look to the totality of the circumstances and determine whether the identification was reliable, even though the confrontation procedure was suggestive, with due regard given to

such factors as the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." Syl. pt. 2, State v. Gravely, 171 W.Va. 428, 299 S.E.2d 375 (1982), quoting, syl. pt. 3, State v. Casdorph, 159 W.Va. 909, 230 S.E.2d 476 (1976)

2. "Widespread publicity, of itself, does not require change of venue, and neither does proof that prejudice exists against an accused, unless it appears that the prejudice against him is so great that he cannot get a fair trial." Syl. pt. 1, State v. Gangwer, 169 W.Va. 177, 286 S.E.2d 389 (1982).

3. Where a prospective juror is one of a class of persons represented by the prosecuting attorney at the time of trial, but there has been no actual contact between that juror and the prosecutor, the existence of the attorney-client relationship alone is not prima facie grounds for disqualification of that juror.

4. "The true test as to whether a juror is qualified to serve on the panel is whether without bias or prejudice he can render a verdict solely on the evidence under the instructions of the court." Syl. pt. 1, State v. Wilson, 157 W.Va. 1036, 207 S.E.2d 174 (1974).

5. "Even though a trial judge does not make a finding on the issue of a criminal defendant's competency to stand trial within five days after the filing of a report by one or more psychiatrists or a psychiatrist and a psychologist, the defendant may request a hearing on that issue under W.Va.Code, 27-6A-1(d) [1977], at any reasonable time prior to trial." Syl. pt. 2, State v. Church, 168 W.Va. 408, 284 S.E.2d 897 (1981).

6. "It is a matter within the sound discretion of the trial judge whether investigative services are necessary under W.Va.Code, 51-11-8, and the exercise of such discretion will not constitute reversible error unless the trial judge abuses such discretion." Syl. pt. 6, State v. Less, 170 W.Va. 259, 294 S.E.2d 62 (1982).

7. "In order for photographs to come within our gruesome photograph rule established in State v. Rowe, 163 W.Va. 593, 259 S.E.2d 26 (1979), there must be an initial finding that they are gruesome." Syl. pt. 6, State v. Buck, 170 W.Va. 428, 294 S.E.2d 281 (1982).

8. Subject to certain exceptions, pretrial discovery in a criminal case is within the sound discretion of the trial court.

J. Burton Hunter, III, Weston, William C. Thurman, Buckhannon, for appellant.

Chauncey H. Browning, Jr., Atty. Gen. and Silas B. Taylor, Asst. Atty. Gen., for appellee.

McHUGH, Justice:

Anthony Audia appeals his conviction by a jury of armed robbery in the Circuit Court of Lewis County, for which he was sentenced to 25 years in the penitentiary. A careful examination of the record reveals no errors requiring reversal of his conviction. Accordingly, we affirm the judgment of the circuit court.

Audia and his co-indictee, Thurman Franklin Dye, were charged with the armed robbery of Clyde Cowgar, the owner of a general store in Crawford, Lewis County, on April 12, 1979. The two men were tried separately, resulting in convictions in both cases. The evidence in each case was substantially the same, involving many of the same witnesses. As we have recently affirmed Dye's conviction, ¹ we refer to that opinion for a more detailed description of the facts.

Briefly, appellant's assignments of error may be grouped into seven categories: (1) improper identification procedures; (2) denial of a fair and impartial trial; (3) denial of an evidentiary hearing on his competency to stand trial; (4) refusal to quash the indictment or direct a verdict for the appellant; (5) denial of expenses for a private investigator; (6) admission of gruesome

photographs of the victim; and (7) denial of certain discovery motions. ²

I THE IDENTIFICATIONS

At trial, five witnesses placed the appellant in the store at the time of the robbery. Of these witnesses, four had been shown a photographic array, and two had been present at a line-up from which they identified the appellant prior to trial. No testimony about these previous identifications was elicited at trial. However, the appellant contends that the in-court identifications deprived him of due process of law and should not have been permitted, in that they were tainted by an unduly suggestive photo array and an unduly suggestive line-up conducted when the appellant was without benefit of counsel.

We have examined the photographs in the array, and testimony about the procedure used in presenting it, and are of the opinion that the photographic identification procedure was not suggestive. We have also examined photographs of the line-up participants and testimony about procedures used with it, and conclude that the line-up was not suggestive. In each case, the police were successful in locating individuals who approximated the descriptions given by witnesses, and who were similar in appearance to the appellant. There is no testimony that the witnesses were coached in their choices, and the record indicates that each was certain of his identification of the appellant as one of the perpetrators.

With regard to the absence of counsel at the line-up, it appears from the record that adversary judicial criminal proceedings had been instituted against the appellant, so that the subsequent line-up identification constituted a violation of his right to counsel. See State v. Gravely, 171 W.Va. 428, 299 S.E.2d 375 (1982). However, since none of the witnesses testified to his pretrial identification of the appellant at trial, the admission of the in-court identifications of appellant by two witnesses who had viewed the line-up is governed by the standards set forth in syllabus point 3 of State v. Casdorph, 159 W.Va. 909, 230 S.E.2d 476 (1976), and quoted in syllabus point 2 of Gravely, supra:

"In determining whether an out-of-court identification of a defendant is so tainted as to require suppression of an in-court identification a court must look to the totality of the circumstances and determine whether the identification was reliable, even though the confrontation procedure was suggestive, with due regard given to such factors as the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation."

The witnesses who identified appellant at trial after having seen the line-up were Oscar Galford, a customer who was also attacked during the robbery, and Merle Waugh, a woman who lived nearby. Mrs. Waugh had seen the appellant and Dye in the store earlier in the afternoon, and had seen them return to the store just before the robbery occurred.

The record shows that both witnesses had ample opportunity to observe the appellant on the day of the crime, and each had given accurate descriptions of the men to police prior to viewing the line-up. Neither demonstrated any uncertainty about the identification of appellant at the line-up, which was conducted the day after the robbery. Considering all the factors in Casdorph, supra, we conclude that the trial court did not err, and did not deprive the appellant of due process of law by admitting the in-court identifications of appellant by Galford and Waugh.

We note that the appellant was also positively identified at trial by the victim and another witness to the crime, who did not view the line-up. In addition, one of appellant's companions on the day of the robbery placed him in the store at the time of the crime and corroborated the testimony of other witnesses about appellant's activities on that day. Two other witnesses placed the appellant in the getaway car earlier in the day. Finally, the appellant admitted on the stand his participation in the robbery, maintaining that he was coerced by Dye into assisting him. Since appellant was not denied due process of law by the admission of these in-court identifications, we find no merit in his contention that they forced him to confess his involvement in the crime.

II THE FAIR TRIAL QUESTION

The appellant claims that the trial court deprived him of his right to a fair and impartial trial by denying his motions for a change of venue based on prejudicial pretrial publicity, and refusing to dismiss a prospective juror for cause.

A. CHANGE OF VENUE

The appellant's first motion for a change of venue was heard on February 11, 1980, six weeks before trial. Evidence presented at the hearing showed that the robbery had received extensive coverage by the media, which continued through the time of the hearing. Four representatives of various news media testified that although it would be difficult to find twelve jurors in Lewis County who had never heard of the robbery, they were not aware of any hostile sentiment in the community toward the defendants. Two of them testified that this case may have received more publicity than similar criminal cases because of numerous legal actions brought by the defendants against law enforcement officers. On oral argument, the appellant conceded that the trial court properly denied the motion, finding no showing of a present hostile sentiment in...