State v. Bennett

• Decision Date: 30 March 1983
• Docket Number: No. 15101,15101
• Citation: 172 W.Va. 123,304 S.E.2d 28
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Allen C. BENNETT.

Page 28

304 S.E.2d 28

172 W.Va. 123

STATE of West Virginia v. Allen C. BENNETT.

No. 15101.

Supreme Court of Appeals of West Virginia.

March 30, 1983.

Rehearing Denied July 5, 1983.

[172 W.Va. 125] Syllabus by the Court

1. "The general rule is that where there is a delay between the commission of the crime and the return of the indictment or the arrest of the defendant, the burden rests initially upon the defendant to demonstrate how such delay has prejudiced his case if such delay is not prima facie excessive." Syl. pt. 1, State v. Richey, 171 W.Va. 342, 298 S.E.2d 879 (1982).

2. "A common law privilege is accorded the government against the disclosure of the identity of an informant who has furnished information concerning violations of law to officers charged with the enforcement of the law. However, disclosure may be required where the defendant's case could be jeopardized by nondisclosure." Syl. pt. 1, State v. Tamez, 169 W.Va. 382, 290 S.E.2d 14 (1982), quoting, syl. pt. 1, State v. Haverty, 165 W.Va. 164, 267 S.E.2d 727 (1980).

3. "Even though there is an impermissibly suggestive pretrial photographic array, an in-court identification could be made if the identifying witness has a reliable basis for making an identification of the defendant which basis is independent of the tainted pretrial identification procedures." Syl. pt. 5, State v. Harless, 168 W.Va. 707, 285 S.E.2d 461 (1981).

4. "A verdict will not be set aside for any irregularity in drawing, summoning or impaneling a jury unless properly objected to before the swearing of the jury or unless it is shown that the party making the objection was injured thereby." Syl. pt. 3, State v. Hankish, 147 W.Va. 123, 126 S.E.2d 42 (1962).

5. "A judgment of conviction will not be reversed because of improper remarks made by a prosecuting attorney to a jury which do not clearly prejudice the accused or result in manifest injustice." Syl. pt. 5, State v. Ocheltree, 170 W.Va. 68, 289 S.E.2d 742 (1982).

6. "Sentences imposed by the trial court, if within statutory limits and if not based on some unpermissible factor, are not subject to appellate review." Syl. pt. 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982).

S. Clark Woodroe, Asst. Atty. Gen., Charleston, for appellee.

Steven M. Askin, Askin & Burke, Martinsburg, for appellant.

PER CURIAM:

Allen C. Bennett appeals his conviction by a jury in the Circuit Court of Jefferson County for delivery of a controlled substance, for which he was sentenced to one to five years in the penitentiary. Upon careful examination of the record we find no significant error in the proceedings below, and affirm the judgment of the trial court.

The events leading to this charge occurred on June 25, 1977. Around 3:00 p.m. an undercover State trooper, T.L. Kirk, was taken by an unidentified informant to a trailer court near Charles Town. Kirk was introduced by the informant to the appellant, in the living room of a trailer there. After the informant left the room, Kirk asked the appellant if he had any marijuana. The officer was shown a bag, and paid $35 for about an ounce.

On January 17, 1978 appellant was indicted by the Jefferson County Grand Jury for delivery of a controlled substance. He was arrested in the State of Florida on a minor charge in April, 1978 and waived extradition to West Virginia. After numerous hearings on pre-trial motions and discovery, trial before a jury was held on March 1-2, 1979.

The State presented two witnesses: Trooper Kirk, who testified to the transaction and identified the appellant; and Sgt. White, a chemist who identified the substance as marijuana. The appellant denied making the sale, and could not say where he was on the day in question. His roommate during that period testified that they did not live in a trailer; however, he did not know where the appellant was on that day, either. The jury found appellant guilty as charged.

Appellant now seeks reversal of this conviction, presenting thirteen assignments of error. He principally relies upon only eight: prejudicial pre-indictment delay; refusal to disclose the name of the confidential informant; the in-court identification; expert opinion as to the weight and identity of the substance; refusal to disclose the grand jury testimony of Trooper Kirk; improper jury selection; prosecutorial misconduct; and the court's recommendation that he serve a minimum three years of his one-to-five-year sentence. We find no merit in his remaining contentions, ¹ and shall not address them.

PRE-INDICTMENT DELAY

The appellant contends that he was prejudiced by the nearly seven-month delay in obtaining the indictment, in that he was unable to account for his whereabouts on the day in question. He maintains that the trial court should have required that the State explain its reasons for the delay, and should have sustained his motion to quash the indictment.

In State ex rel. Leonard v. Hey, W.Va., 269 S.E.2d 394 (1980), we held that a delay of eleven years between the crime and the indictment was presumptively prejudicial. In syllabus point 2, however, we said:

"The effect of less gross delays upon a defendant's due process rights must be determined by a trial court by weighing the reasons for delay against the impact of the delay upon the defendant's ability to defend himself."

In State v. Ayers, 168 W.Va. 137, 282 S.E.2d 876 (1981), we found that a four-month delay was not prejudicial, even though the defendant contended that he was unable to account for his activities on the night in question. In State v. Maynard, 170 W.Va. 40, 289 S.E.2d 714 (1982), the defendant was convicted of delivery of a controlled substance as the result of an undercover operation. We held that a three-month delay was reasonable, in light of the State's need to prevent the exposure of its undercover operatives and to analyze the evidence.

Finally, in our very recent case of State v. Richey, 171 W.Va. 342, 298 S.E.2d 879 (1982), the defendant claimed that he was prejudiced by a three-month delay, but failed to demonstrate any facts which would show such prejudice. We said, in syllabus point 1:

"The general rule is that where there is a delay between the commission of the crime and the return of the indictment or the arrest of the defendant, the burden rests initially upon the defendant to demonstrate how such delay has prejudiced his case if such delay is not prima facie excessive."

The irrevocable prejudice alleged by appellant below was that the State did not indict him until January of 1978, although the case could have been presented to the grand jury in September of 1977. During hearings, appellant made no attempt to demonstrate actual prejudice from the delay. The court concluded that the delay was not prejudicial, per se, and overruled the motion, granting appellant leave to renew it if he could demonstrate prejudice at trial. The motion was not renewed.

We agree with the trial court that the seven-month delay was not prima facie excessive or prejudicial. The appellant did not meet his burden of going forward with evidence of prejudice; therefore, the State was not required to prove the reasonableness of the delay. The record reveals, however, that the appellant's indictment was the product of an extensive undercover operation, which continued for some time after his transaction with Kirk. Further, the State did not conduct its chemical analysis of the controlled substance until September 13, 1977. Under these circumstances, we conclude that any delay was reasonable, and that the trial court did not abuse its discretion in refusing to quash the indictment.

DISCLOSURE OF THE INFORMANT

Prior to trial, the appellant by motion sought disclosure of the name of the confidential informant, so that he might interview him for possible use as a witness at trial. The State opposed the disclosure. After a hearing, the court found that the informant did not participate in the sale in any way, and that disclosure of his name would endanger him and undermine law enforcement efforts, and overruled the motion.

The appellant now contends that the court's refusal to order this disclosure violated his rights to due process and to compulsory process to secure the attendance of witnesses. We disagree.

"A common law privilege is accorded the government against the disclosure of See also Syl. pt. 2, State v. McCourt, 168 W.Va. 231, 283 S.E.2d 918 (1981); State ex rel. Lykens v. Bouchelle, 122 W.Va. 498, 11 S.E.2d 119 (1940); State v. Paun, 109 W.Va. 606, 155 S.E. 656 (1930).

                the identity of an informant who has furnished information concerning violations of law to officers charged with enforcement of the law.  However, disclosure may be required where the defendant's case could be jeopardized by nondisclosure."   Syl. pt. 1, State v. Tamez, 169 W.Va. 382, 290 S.E.2d 14 (1982), quoting, syl. pt. 1, State v. Haverty, 165 W.Va. 164, 267 S.E.2d 727 (1980)
                

In Tamez, supra, we held that in ruling upon a motion for disclosure the trial court must balance the State's need for nondisclosure against its consequences upon the defendant's ability to receive a fair trial. "The resolution of the disclosure issue shall rest within the sound discretion of the trial court, and only an abuse of discretion will result in reversal." 169 W.Va. at 394, 290 S.E.2d at 21.

In State v. Walls, 170 W.Va. 419, 294 S.E.2d 272 (1982), we said that disclosure might be required where the informant was a direct participant in, or a material witness to, the crime. Appellant contends that he should have been allowed to interview the informant, as a potential witness. The transcript of the hearing on appellant's motion, however, shows that the informant merely introduced Kirk to the appellant, and did not witness nor participate in the sale. Therefore, appellant has not been deprived of a witness.

We find nothing in the record to indicate that appellant's defense would have been aided by...