State v. Buck, 15012

• Court: Supreme Court of West Virginia
• Writing for the Court: MILLER
• Citation: 170 W.Va. 428,294 S.E.2d 281
• Parties: STATE of West Virginia v. Fred Michael BUCK.
• Docket Number: No. 15012,15012
• Decision Date: 15 July 1982

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294 S.E.2d 281 170 W.Va. 428 STATE of West Virginia
v.
Fred Michael BUCK. No. 15012. Supreme Court of Appeals of West Virginia. July 15, 1982.

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[170 W.Va. 429] Syllabus by the Court

1. "[The voluntariness of a consent to search] must be treated in the same manner as a confession and the trial court must, even in the absence of a specific request, determine the voluntariness of such consent before the evidence can be introduced into evidence." Syllabus Point 3, in part, State v. McKinney, 161 W.Va. 598, 244 S.E.2d 808 (1978).

2. The voluntariness issue of a confession must be proven by the State by a preponderance of the evidence. This same rule would apply to the voluntariness of a consent to search.

3. "A trial court's decision regarding the voluntariness [issue] will not be disturbed unless it is plainly wrong or clearly against the weight of the evidence." Syllabus Point 3, in part, State v. Vance, 162 W.Va. 467, 250 S.E.2d 146 (1978).

4. "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).

5. "Most courts have concluded that a photographic array will not be deemed excessively suggestive as long as it contains some photographs that are fairly representative[170 W.Va. 430] of the defendant's physical features. The fact that some of the photographs are dissimilar to the defendant's appearance will not taint the entire array." Syllabus Point 6, State v. Harless, 168 W.Va. 707, 285 S.E.2d 461 (1981).

6. 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.

7. " '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. 1, State v. Dunn, 162 W.Va. 63, 246 S.E.2d 245 (1978), in part." Syllabus Point 1, State v. Barker, 168 W.Va. 1, 281 S.E.2d 142 (1981).

8. " 'Article III, Section 5 of the West Virginia Constitution, which contains the cruel and unusual punishment counterpart to the Eighth Amendment of the United States Constitution, has an express statement of the proportionality principle: "Penalties shall be proportioned to the character and degree of the offense." ' Syllabus Point 8, State v. Vance, 164 W.Va. 216, 262 S.E.2d 423 (1980)." Syllabus Point 1, State v. Houston, 166 W.Va. 202, 273 S.E.2d 375 (1980).

Hugh Rogers, Jr., Kerens, for appellant.

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

MILLER, Chief Justice:

This is a criminal appeal from an aggravated or armed robbery ¹ conviction sentencing the defendant, Fred Michael Buck, to seventy-five years in prison. A number of errors are assigned but we find them not to constitute reversible error but do remand the case for reconsideration of the determinate seventy-five year sentence.

On October 9, 1978, the defendant and James H. Richards entered the store of Fred Kerns of Job and requested some soft drinks. When Mr. Kerns turned to enter the storeroom to get the soft drinks he was struck from behind and robbed of $1,210.12. The two men made their get-away in a blue

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early model Chevy. An all-points bulletin was issued shortly thereafter by the State Police.

Approximately an hour later, the Police Chief of Thomas, West Virginia, stopped a car driven by the defendant and owned by the passenger, Richards. The car was stopped for driving thirty-seven miles an hour in a twenty-five mile speed zone within the Thomas city limits. The police chief remembering the all-points bulletin asked the men to follow him to the City Hall for questioning. The men were then questioned by two deputy sheriffs and three state troopers. The police claim that the defendant when asked for his identification told them to get it from his jeans in the back seat of the car. The defendant asserts that he had previously given his identification to the police chief when he was initially stopped. The police on going to the car discovered a club on the back floor of the car and paper money on the front floor. Codefendant Richards orally confessed to the crime.

The defendant was taken to the Randolph County Jail at Elkins where he was subsequently identified in a lineup by Barbara Tingler, an arriving customer at the store as the robbers were leaving. The defendant was also identified in a photographic lineup by Mr. Kerns. The defendant was then tried and convicted for aggravated robbery in the Circuit Court of Randolph County.

The defendant asserts numerous assignments of error in his initial petition to this Court, however, he argues only six in his final brief. ² They are: (1) the prosecuting [170 W.Va. 431] attorney's failure to disclose a part of the codefendant's confession to the defendant denied him due process of law; (2) the search of the car and admission of evidence seized from it violated the defendant's Fourth Amendment constitutional rights; (3) the lineup held without the presence of counsel violated the defendant's right to counsel and the photo identification was impermissibly suggestive; (4) certain admitted evidence was prejudicial; (5) the prosecutor exceeded his judicial role by eliciting sympathy in questioning the victim and in his final argument; and, (6) the seventy-five year sentence imposed on the defendant was disproportionate to the crime and disparate to the one-year sentence given to the codefendant.

The defendant's first argument as to the failure to disclose exculpatory material contained in the codefendant's confession does not have a factual basis in the record. The part of the confession in contention is the codefendant's admission that he initially shoved the victim. The record discloses that the defense counsel used this material to impeach the codefendant at trial. We,...