State v. Charlot, 13353

• Decision Date: 16 July 1974
• Docket Number: No. 13353,13353
• Citation: 206 S.E.2d 908,157 W.Va. 994
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Mitchell CHARLOT.

Page 908

206 S.E.2d 908

157 W.Va. 994

STATE of West Virginia v. Mitchell CHARLOT.

No. 13353.

Supreme Court of Appeals of West Virginia.

July 16, 1974.

Syllabus by the Court

1. 'The extent of the cross-examination of a witness is a matter within the sound discretion of the trial court; and in the exercise of such discretion, in excluding or permitting questions on cross-examination, its action is not reviewable except in case of manifest abuse or injustice.' Point 4, syllabus, State v. Carduff, 142 W.Va. 18 (93 S.E.2d 502).

2. When an object or article has passed through several hands while being analyzed or examined before being produced in court, it is not possible to establish its identity by a single witness, but if a complete chain of evidence is established, tracing the possession of the object or article to the final custodian, it may be properly introduced in evidence.

3. 'When it appears that a juror in a subsequent criminal case can fairly and impartially act and render a just verdict upon the evidence adduced at the trial, he is not disqualified to serve as such in the subsequent case merely by reason of his service as a juror or his presence as a spectator at a prior trial of a different defendant charged with a different but similar offense, although the evidence is similar and the witnesses in behalf of the prosecution are the same in each case.' Point 3, syllabus, State v. Carduff, 142 W.Va. 18 (93 S.E.2d 502).

Robert G. Wolpert, Charleston, for defendant.

Chauncey H. Browning, Jr., Atty. Gen., Richard E. Hardison, Deputy Atty. Gen., David P. Cleek, Asst. Atty. Gen., Charleston, for plaintiff.

BERRY, Justice:

This is an appeal by Mitchell Charlot, the defendant below and hereinafter referred to as defendant, from a final judgment of the Circuit Court of Kanawha County entered January 3, 1973 wherein the court refused to grant the defendant's petition for a writ of error and supersedeas from a judgment of the Intermediate Court of Kanawha County which imposed a sentence on the defendant of not less than one nor more than fifteen years in the penitentiary as a result of defendant's conviction for the sale of heroin. This Court granted defendant's petition for appeal on April 2, 1973 and the case was submitted for decision on May 23, 1974 upon the arguments and briefs on behalf of the respective parties.

The alleged sale of heroin for which the defendant was indicted occurred on September 24, 1971 in Charleston, West Virginia. The prosecuting witness for the state was one Greg Mosley who testified that he was hired by Charleston Detective Ed Leonard as a special agent of the city police to make drug purchases from suspected 'pushers' in an undercover capacity. The defendant was one of the suspected 'pushers' who had been pointed out to Mosley. Mosley testified that about 8:40 p.m. on September 24, 1971 he approached the defendant in The American Legion Building on Christopher Street and 'I asked him did he have any stuff. He said yes. He asked me how much did I want. I told him I wanted two bags so I gave him two ten dollar bills, he gave me two bags.' Mosley also testified that 'stuff' was one of the slang words for heroin. The 'bags' of heroin consisted of small aluminum foil packets. Mosley testified he put the two packets in the right pocket of his trousers and immediately proceeded to police headquarters where he gave them to Detective Leonard. Leonard placed the packets in an envelope, marked the envelope for identification, and placed the envelope in his desk drawer. Leonard ran a filed test on the contents of one of the packets which indicated that the substance was heroin. On September 28, 1971 Leonard presented the other packet to Sergeant White of the State Police Criminal Laboratory who subsequently ran chemical tests and Sergeant White testified at the trial that the packet contained heroin. The defendant was arrested approximately one month after the alleged sale took place.

On the day of the trial, the defendant moved for a continuance on the grounds that of the thirty-four jurors present from which the jury would be selected, only ten had not sat on prior drug cases during that term of court where the state's principal witnesses were the same as those witnesses who were going to testify against the defendant and the juries in the prior drug cases had returned guilty verdicts. Defendant contends the court erred in refusing to grant the continuance because many of the jurors had already expressed their opinion as to the credibility of the state's principal witnesses as evidenced by the return of guilty verdicts in the drug trials preceding the case at bar.

The defendant also contended that the court erred in overruling defendant's motion to strike the entire panel of twenty jurors who were called because thirteen of the twenty jurors had served on juries in preceding drug cases where the principal witnesses for the state had been the same witnesses as those summoned in the instant case.

During the trial, the defendant objected to the introduction of the aluminum foil packet that allegedly contained the heroin because the packet was not marked and the state failed to prove that the packet turned over to Detective Leonard by Mosley was the same packet that was ultimately tested by Sergeant White and found to be heroin.

After the state rested its case, the defendant took the stand and denied ever making a sale to Mosley. On cross-examination, the state asked the defendant whether or not he was carrying any of the aluminum foil packets at the time of his arrest and whether several of these packets were found on the defendant when he was searched at the Kanawha County jail after his arrest. The defendant replied that he was not in possession of any of the packets at the time of his arrest and that none were found on him when the search was made at the county jail. The defendant's counsel objected to this questioning, arguing that he had made a motion to suppress this evidence prior to the trial and no hearing had been afforded the defendant on the motion. The trial court allowed the state to continue but cautioned the jury that these questions would go only to the credibility of the defendant. After the defendant testified, the state on rebuttal placed a deputy sheriff on the stand who testified that he searched the defendant at the county jail and found about fifteen of the small aluminum foil packets on the defendant and that he inspected one of the packets and it contained a 'white, powder type substance'. Defendant contends that it was prejudicial error for the court not to have given the defendant a hearing on his motion to suppress evidence, especially after the defendant's counsel objected to the questions asked of the defendant by the state on cross-examination.

The defendant assigns as errors the action of the trial court (1) in refusing to grant defendant's motion to suppress the evidence found on the defendant's person subsequent to his arrest and the use of such evidence for impeachment purposes; (2) in refusing to sustain the defendant's motion to exclude the packet of heroin introduced into evidence because the...