State v. Brown

• Decision Date: 11 March 1987
• Docket Number: No. 17237,17237
• Citation: 177 W.Va. 633,355 S.E.2d 614
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Willard O. BROWN

Page 614

355 S.E.2d 614

177 W.Va. 633

STATE of West Virginia v. Willard O. BROWN

No. 17237.

Supreme Court of Appeals of West Virginia.

March 11, 1987.

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. 3, State v. Casdorph, , 230 S.E.2d 476 (1976)." Syllabus Point 2, State v. Gravely, --- W.Va. ---, 299 S.E.2d 375 (1982).

2. "A defendant in a criminal proceeding who is mentally competent and sui juris, has a constitutional right to appear and defend in person without the assistance of counsel, provided that (1) he voices his desire to represent himself in a timely and unequivocal manner; (2) he elects to do so with full knowledge and understanding of his rights and of the risks involved in self-representation; and (3) he exercises the right in a manner which does not disrupt or create undue delay at trial." Syllabus Point 8, State v. Sheppard, --- W.Va. ---, 310 S.E.2d 173 (1983).

3. " '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)." Syllabus Point 4, State v. Wade, --- W.Va. ---, 327 S.E.2d 142 (1985).

4. " 'The action of a trial court in admitting or excluding evidence in the exercise of its discretion will not be disturbed by the appellate court unless it appears that such action amounts to an abuse of discretion.' Syllabus Point 10, State v. Huffman, 141 W.Va. 55, 87 S.E.2d 541 (1955)." Syllabus Point 4, State v. Ashcraft, --- W.Va. ---, 309 S.E.2d 600 (1983).

5. " 'Where a challenge to a judge's impartiality is made for substantial reasons which indicate that the circumstances offer a possible temptation as to the average man as a judge not to hold the balance nice, clear and true between the State and the accused, a judge should recuse himself.' Syl. pt. 14, Louk v. Haynes, , 223 S.E.2d 780 (1976) (in part)." Syllabus Point 3, State v. Hodges, --- W.Va. ---, 305 S.E.2d 278 (1983).

Carl L. Harris, Fayetteville, for appellant.

Charlie G. Brown, Atty. Gen., Mary Rich Maloy, Asst. Atty. Gen., Charleston, for appellee.

McGRAW, Chief Justice:

This appeal is brought by the appellant, Willard O. Brown, to challenge his conviction, in the Circuit Court of Fayette County, of the crimes of aggravated robbery and sexual abuse of the first degree. We find no reversible error, and we affirm the judgment of the lower court.

The facts of this case are essentially undisputed. The victim was the proprietress of a restaurant located off U.S. Route 19 south of U.S. Route 60 in Fayette County. In the early evening of January 29, 1985, she was alone in the restaurant, which was closed due to inclement weather when a man claiming to be a truck driver came to the door asking to buy diesel fuel. Through the locked door, she directed him to a nearby campground and store operated by Carol Sunderlin.

Fifteen or twenty minutes later, the same man returned to the restaurant asking to use the telephone. When the victim admitted the man to the building, he brandished a knife and demanded money. After she gave him ten one-dollar bills from her handbag, the man tied her hands, began to remove her clothing, pushed her to the floor and announced his intention to have sexual relations. He retreated, however, when the victim told him she was having her period. After examining her genital area with his hand, the man tied her ankles together and began searching the restaurant. In the victim's handbag he found a pouch which she later estimated to contain around $3700 in fifty- and one-hundred-dollar bills. The assailant took the money, threatened the victim again with the knife and left.

After making sure her attacker was gone, the victim freed herself and drove to Mrs. Sunderlin's store, where she reported that she had been robbed by a truck driver. Mrs. Sunderlin immediately telephoned the police and gave them a description of a suspicious man to whom she had refused to sell diesel fuel earlier that day. In addition, Mrs. Sunderlin gave the police a description of a tractor-trailer which she saw leaving the area and speeding north on U.S. Route 19 shortly before the victim reported the robbery to her. These descriptions were radioed to all law enforcement units in the area. A deputy sheriff was dispatched to the campground to interview the victim, who gave a description of her assailant consistent with the description given to the police over the telephone by Mrs. Sunderlin.

Shortly thereafter, a tractor-trailer driven by the appellant, a Pennsylvania resident, was stopped by Ansted city police as it was speeding west through the Fayette County town on U.S. Route 60. The truck and the appellant matched the descriptions reported on the radio by the Fayette County Sheriff's Department and were detained until deputies could be summoned. Upon arrival, one of the deputies conducted a pat-down of the appellant and found a knife on his person. The victim was driven to Ansted, where she identified the appellant as the man who attacked and robbed her. The appellant was placed under arrest and taken before a magistrate.

Deputies obtained a search warrant and returned to Ansted to search the truck. In the cab, the deputies found articles of clothing similar to those worn by the robber and the man in Mrs. Sunderlin's store. In addition, they found packets of money, most of which were still in bank wrappers. The deputies counted 18 one-hundred-dollar bills, 40 fifty-dollar bills and 10 one-dollar bills, or a total of $3810. These items were seized, and the truck was impounded.

Counsel was appointed to represent the appellant at the preliminary hearing conducted on February 5, 1985. On April 3, 1985, an indictment was returned charging the appellant with one count of aggravated robbery and one count of sexual assault of the first degree. After a series of hearings conducted pursuant to the appellant's various pretrial motions, trial before a jury began on July 12, 1985.

At trial the appellant did not contest that the crimes charged had occurred, but asserted that he was not the perpetrator. On July 15, 1985, the jury returned a verdict finding the appellant guilty of aggravated robbery and of sexual abuse of the first degree. By order dated July 19, 1985, the appellant's motion to set aside the verdict was denied, and he was sentenced to 60 years imprisonment for the robbery and not less than one nor more than five years imprisonment for sexual abuse, said sentences to run consecutively. It is from this order that the appellant prosecutes this appeal.

I

The appellant's principal assignment of error is that the trial court erred in allowing the State to introduce into evidence the in-court and out-of-court identifications of the appellant by the victim and the in-court identification of him by Mrs. Sunderlin. Prior to trial the appellant moved to suppress this evidence on the ground that in both cases the out-of-court identification procedures were unduly suggestive and tainted the in-court identifications made by these witnesses.

The evidence adduced at the pretrial suppression hearings showed that the victim was driven to Ansted within 45 minutes of the time the robbery occurred. When she arrived, a deputy handed her a Pennsylvania driver's license containing a photograph of the appellant, whom she identified as her assailant. The appellant was then brought in front of the police cruiser in which the victim was seated and illuminated by the vehicle's headlights. From the backseat of the cruiser, the victim identified him as the man who assaulted and robbed her. The appellant was the only man in the area who was not dressed in a police uniform.

In addition, the police conducted a photo array for Mrs. Sunderlin sometime after the appellant was arrested. Mrs. Sunderlin identified the appellant's photograph as the one of the man who had been in her store earlier on the day of the robbery. However, the other photographs in the array were of persons dissimilar in appearance to the appellant.

The trial court ruled that the photo array presented to Mrs. Sunderlin was unduly suggestive and granted the appellant's motion to suppress her out-of-court identification. The court concluded, however, that the victim's out-of-court identification, though obtained by the use of suggestive procedures, was nonetheless reliable in view of the fact that her identification was immediate and unhesitating and occurred shortly after the crimes took place. In addition, the court noted that both witnesses had had an excellent opportunity to view the suspect ¹ and had given the police concise descriptions of him consistent with the appellant's appearance prior to the suggestive out-of-court identifications. Accordingly, the court ruled that the victim's out-of-court identification was admissible and that both women were reliable witnesses to identify the appellant at trial.

There is no question that the out-of-court identifications of both the victim and Mrs. Sunderlin were obtained by the use of suggestive confrontation procedures. See, e.g., State v. Stollings, 158 W.Va. 585, 212 S.E.2d 745 (1975). However, "suggestive procedures alone should not be the basis of excluding an otherwise totally reliable...