State v. Casdorph, 13610

• Court: Supreme Court of West Virginia
• Writing for the Court: NEELY
• Citation: 159 W.Va. 909,230 S.E.2d 476
• Parties: STATE of West Virginia v. Donald Hartford CASDORPH alias 'Little Red Bird'.
• Docket Number: No. 13610,13610
• Decision Date: 07 December 1976

Page 476

230 S.E.2d 476 159 W.Va. 909 STATE of West Virginia
v.
Donald Hartford CASDORPH alias 'Little Red Bird'. No. 13610. Supreme Court of Appeals of West Virginia. Dec. 7, 1976.

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Syllabus by the Court

1. The test of the sufficiency of an indictiment on appeal is whether it adequately informed the accused of the nature of the charge pending against him, and while it must allege every element of the offense, no particular form of words is required.

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2. Once a defendant has signed a waiver of his right to remain silent, mere adjurations to confess or unspecific offers of friendship and held, by police officers, do not make a confession involuntary.

3. 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.

Love, Wise, Robinson & Woodroe, Harry P. Henshaw, III and Thomas J. McQuain, Jr., Charleston, for plaintiff in error.

[159 W.Va. 910] Chauncey H. Browning, Jr., Atty. Gen., and E. Leslie Hoffman, III, Asst. Atty. Gen., Charleston, for defendant in error.

NEELY, Justice:

This is an appeal from a conviction of robbery under W.Va.Code, 61--2--12 (1961). The defendant, Donald Hartford Casdorph alias 'Little Red Bird', assigned as errors: (1) the indictment was defective because it failed to charge the defendant with the crime of robbery; (2) the defendant's pretrial confession was involuntary; and, (3) the identification of the defendant at the police station was unduly suggestive and should have been excluded. We find no error and affirm.

At approximately 4:20 a.m. on December 19, 1973, Thomas Edward Fink, a Skyline Cab Company driver, was dispatched to pick up passengers on Route 21 at a gasoline station. Mr. Fink went to the station and picked up two young men, one of whom sat in the front seat with the driver while the other sat in the rear.

The driver went to the designated destination, and stopped the cab. The passenger in the rear asked the driver for change first for a twenty and then for a ten dollar bill. The driver said that he could make change for the ten, immediately after which the rear passenger grabbed the driver by the neck and stated, 'You sonofabitch, we're going to have to kill you if you don't give us your money,' and proceeded to beat the driver. The driver gave the passenger in the rear seat his money.

The rear seat passenger then stepped out of the vehicle and moved to the front seat on the driver's side, placing the driver between his two passengers. There followed a drive in which the person formerly in the rear drove the vehicle onto an Interstate highway, hit numerous guardrails, and, as a result, began to tear 'the cab all to pieces.' The driver soon stopped and ordered the victim to take the battery out of the car, a task which the victim could not complete. The assailants [159 W.Va. 911] wiped their fingerprints from the cab and pulled the radio transmitter out and threw it over the hill. Then the assailants fled. The cab driver, who was unable to drive adequately because his glasses had been broken by the assault, found his way to a telephone and called his dispatcher to notify him of what had happened. After making the call, he returned to the cab garage in Charleston, from where two city policemen took him to a hospital for treatment.

On December 20, 1973, the defendant was arrested by Trooper D. R. Bush of the West Virginia Department of Public Safety and taken to the State Police Barracks at Cross Lanes, West Virginia. Upon arrival at the barracks, the defendant was advised of his rights, and the defendant executed a written waiver of his rights. A short time later the defendant signed a statement indicating his culpability in the robbery. Later, Trooper Bush called Mr. Frank Lyons, the supervisor for the cab Company, and asked him to locate the victim and instruct the victim to go to the Police Barracks where, the Trooper indicated, a suspect was in custody. Mr. Lyons notified the driver of the

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officer's instruction, and the victim proceeded to the State Police Barracks where he had an unarranged opportunity to observe the defendant, after which he identified the defendant as the person who attacked and robbed him. I

Defendant complains that there is no allegation in the indictment that the defendant 'specifically took the property from the Person or in the Presence of the victim' and, therefore, the indictment fails to charge the crime for which he was tried.

The indictment, in pertinent part, is as follows:

'The Grand Jurors * * *, upon their oaths present,...