State v. Barker, 16616

• Court: Supreme Court of West Virginia
• Writing for the Court: PER CURIAM; BROTHERTON
• Citation: 176 W.Va. 553,346 S.E.2d 344
• Parties: STATE of West Virginia v. James Edward BARKER, Sr.
• Docket Number: No. 16616,16616
• Decision Date: 27 June 1986

Page 344

346 S.E.2d 344

176 W.Va. 553

STATE of West Virginia v. James Edward BARKER, Sr.

No. 16616.

Supreme Court of Appeals of

West Virginia.

June 27, 1986.

Syllabus by the Court

1. "The defendant has a right under Article III, Section 14 of the West Virginia Constitution to be present at all critical stages in the criminal proceeding; and when he is not, the State is required to prove beyond a reasonable doubt that what transpired in his absence was harmless." Syl. pt. 6, State v. Boyd, 160 W.Va. 234, 233 S.E.2d 710 (1977).

2. " 'A warrantless seizure of property in plain view is constitutionally permissible provided three requirements are met: "(1) the police must observe the evidence in plain sight without benefit of a search [without invading one's reasonable expectation of privacy], (2) the police must have a legal right to be where they are when they make the plain sight observation and, (3) the police must have probable cause to believe that the evidence seen constitutes contraband or fruits, instrumentalities or evidence of crime." Syllabus Point 3, in part, State v. Stone, 165 W.Va. 266, 268 S.E.2d 50 (1980).' Syllabus Point 7, State v. Moore, 165 W.Va. 837, 272 S.E.2d 804 (1980)." Syl. pt. 2, State v. Boswell, 170 W.Va. 433, 294 S.E.2d 287 (1982).

3. " 'The essential elements of the offense created by [ W.Va.Code, 61-3-18 [1931] ] are: (1) The property must have been previously stolen by some person other than the defendant; (2) the accused must have bought or received the property from another person or must have aided in concealing it; (3) he must have known, or had reason to believe, when he bought or received or aided in concealing the property, that it had been stolen; and (4) he must have bought or received or aided in concealing the property with a dishonest purpose.' State v. McGraw, 140 W.Va. 547, 550, 85 S.E.2d 849, 852 (1955)." Syl. pt. 6, State v. Hall, 171 W.Va. 212, 298 S.E.2d 246 (1982).

4. "In a prosecution under Code, 61-3-18, for buying or receiving stolen goods, a jury must find beyond a reasonable doubt that the accused acted with a 'dishonest purpose' before it can find him guilty of the offense, and the accused is entitled to have the jury properly instructed on the question of his intent." Syl. pt. 4, State v. Basham, 159 W.Va. 404, 223 S.E.2d 53 (1976).

Harry G. Deitzler, Wood County Pros. Atty., Parkersburg, for appellant.

Frank Helvey, Public Legal Services, Charleston, for appellee.

PER CURIAM:

The appellant, James Edward Barker, was charged by indictment with receiving stolen goods. W.Va.Code, 61-3-18 [1931]. ¹ Following a jury trial, he was convicted of grand larceny. ² Judgment was entered upon the jury's verdict, and the appellant was sentenced to a term of not less than one nor more than ten years in the West Virginia State Penitentiary.

The appellant assigns as error: (1) communication between the trial judge and the jury, during deliberation, outside the presence of the appellant and his counsel; (2) ineffective assistance of counsel evidenced by the failure to move for the suppression of certain evidence; (3) failure of the trial judge to fully instruct the jury on the elements of the offense charged; and (4) insufficiency of the evidence to sustain the conviction. For the reasons appearing below, we reverse the conviction and remand the case for a new trial.

I

On the morning of November 4, 1983, James Utt parked his four-wheel-drive pickup truck near the Pocatalico exit of Interstate 77 in Kanawha County and went to work. When he returned that evening the truck was gone. Utt reported to the state police that the truck had been stolen.

One week later, Corporal J. M. Richards, of the West Virginia Department of Public Safety, observed the appellant driving a large dump truck with a dealer's license plate, ³ number DUC 624, heading west on Route 47 in Wood County. The truck was hauling doors and nose clips ⁴ of two pickup trucks. These vehicle parts projected above the sides of the dump bed. Believing the driver to be in violation of W.Va.Code, 17A-6-13(a) [1967], which prohibits the use of Class D and Class D-U/C special plates on work or service vehicles, Richards directed the appellant to pull over. As the truck stopped, a passenger exited from the vehicle and departed. The appellant and Richards disagreed at trial on whether the passenger walked or ran from the scene.

Richards asked the appellant if he had a bill of sale for the truck parts. The appellant testified that he told Richards he did not have the bills of sale with him. Richards testified that the appellant said he had no bills of sale.

Richards climbed into the dump bed and examined the truck parts. He discovered that the serial numbers had been removed from the doors. Richards then asked the appellant to drive to state police headquarters. The appellant gave consent, in writing, to a search of his home and some buildings on property he owned in Wood County. During a search of the property, police discovered more truck parts. James Utt later identified one of the nose clips being hauled by the appellant and various parts found on appellant's property as belonging to his missing truck. Using authenticated photographs, Utt identified these truck parts at the trial. He also testified that, in his opinion, the truck had a fair market value of $4500 at the time it was stolen.

The appellant admitted purchasing most of the parts, including the front end, doors, and bed, but denied knowing that the parts came from a stolen truck. He also denied any knowledge of how a truck cab, identified by Utt, came to be on his property. The appellant testified that he did not notice that the serial number was missing from the door nor did he examine the truck parts for the presence of a serial number. The appellant further testified that he paid $400 for the nose clip and assorted other parts.

After deliberating for about two hours, the jury informed the bailiff that they were "hopelessly deadlocked." The bailiff found the trial judge presiding over a hearing in an unrelated matter and told him about the jury's problem. The judge, without informing the appellant or counsel, sent a message to the jury to continue deliberating. The jury reached the verdict, finding the appellant guilty of grand larceny, about 45 minutes later.

Just before announcing the verdict, the judge informed the appellant and counsel about what transpired during the jury's deliberations. At the request of appellant's counsel, the events surrounding the judge's communication with the jury were placed on the record.

II

The appellant's first contention is that the communication between the trial judge and the jury constituted reversible error, in that his right of presence and right to effective representation of counsel were violated. It should be noted that appellant's trial counsel did not immediately challenge the propriety of the communication. Rather, he made a record of the events and subsequently attacked the communication in a timely motion for a new trial. See W.Va.R.Crim.P. 33.

In syllabus point 6 of State v. Boyd, 160 W.Va. 234, 233 S.E.2d 710 (1977), this Court held:

The defendant has a right under Article III, Section 14 of the West Virginia Constitution to be present at all critical stages in the criminal proceeding; and when he is not, the State is required to prove beyond a reasonable doubt that what transpired in his absence was harmless.

The right of an accused to be present at every stage of a criminal trial is also protected by W.Va.R.Crim.P. 43. In Sisler v. Hawkins, 158 W.Va. 1034, 1039-40, 217 S.E.2d 60, 64 (1975), we recognized "that due process of law under the Federal Constitution requires that a defendant be accorded the right to be present in person or by counsel at every stage of his trial."

In State v. Smith, 156 W.Va. 385, 390, 193 S.E.2d 550, 554 (1972), we said "[t]he passing of writings or notes between the court and jury is not proper." The note referred to in Smith was written following receipt of a note from the jury informing the trial judge that the jury could not reach a verdict. The trial judge advised the jury to continue deliberating. Additional circumstances contributing to a prejudicial atmosphere surrounding the jury's deliberations in that case were: (1) a conversation between the bailiff and the jury and (2) the refusal of the trial judge to poll the jury.

We believe, in the case now before us, that the conduct of the trial judge in communicating with the jury, in the absence of the appellant and his counsel, was improper. As we said in State v. Smith, supra, "the court should have called the jury back into the courtroom and there, in the presence of the defendant, given its further instructions." However, because we are reversing the conviction on the ground of instructional error, it is unnecessary to make any further determination of whether the trial court's conduct was harmless. However, see Rushen v. Spain, 464 U.S. 114, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983), where it was held that an ex parte communication between the trial judge and the jury may be harmless, even though the constitutional rights to assistance of counsel and presence may be implicated.

III

The appellant next contends that his counsel was ineffective in failing to move to suppress the fruits of the search of his truck. Upon a review of the record, we conclude that the state police did not conduct an illegal search because the truck parts being hauled by the appellant were in "plain view." Therefore, appellant's counsel was not ineffective when he failed to make a suppression motion.

"A warrantless seizure of property in plain view is constitutionally permissible provided three requirements are met: '(1) the police must observe the evidence in plain sight without benefit of a search [without invading one's reasonable expectation of privacy], (2) the police must have a legal right to be where they...