State v. Collins

Decision Date21 December 1984
Docket NumberNo. 15767,15767
Citation329 S.E.2d 839,174 W.Va. 767
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia v. Leon F. COLLINS.
Concurring and Dissenting Opinion

Jan. 21, 1985.

Syllabus by the Court

1. "Because of the holding in Adkins v. Bordenkircher, 674 F.2d 279 (4th Cir.), cert. denied, , 103 S.Ct. 119, 74 L.Ed.2d 104 (1982), State v. Alexander, , 245 S.E.2d 633 (1978), is overruled to the extent that it permits the giving of an instruction that places the burden upon the defendant to prove his alibi defense sufficiently to create a reasonable doubt in the mind of the jury as to his guilt." Syllabus Point 1, State v. Kopa, W.Va., 311 S.E.2d 412 (1983).

2. It is impossible to conclude from either the common law or W.Va.Code, 61-2-12, that an attempt to rob a store by presenting a firearm and leaving without taking any property can, in light of double jeopardy principles, result in multiple convictions of attempted aggravated robbery for each clerk present in such store.

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

James B. McIntyre, McIntyre, Haviland & Jordan, Charleston, for appellant.

MILLER, Justice.

Leon Collins, the defendant, was convicted of two counts of attempted aggravated robbery, involving two clerks at a store, and one count of malicious wounding, inflicted on one of the clerks. We conclude that two of the defendant's assignments of error--that an improper alibi instruction was given over his objection and that double jeopardy principles foreclose his being convicted of two attempted aggravated robberies--warrant a reversal of his conviction. Other assignments of error which we find to be without merit are: (1) the admission of testimony as to the defendant's flight; (2) the court's refusal to give the defendant's instruction on witness identification; (3) the failure to grant a mistrial when the court learned of a juror's kinship to a defense witness; and (4) the seventy-year sentence which the defendant argues violates the cruel and unusual punishment prohibition of Article III, Section 5 of the West Virginia Constitution.

The operative facts can be simply stated. On the evening of January 2, 1981, two men wearing ski masks pulled down over their faces and carrying handguns entered a Village Mart store in Charleston. Larry Watts, one of the store clerks, testified that prior to their entry into the store, he had seen and recognized the two armed men as Leon Collins and David Britton, both of whom Mr. Watts had known prior to this incident. As they entered the store, the defendant stated: "Get on the floor. This is a hold-up."

The defendant pointed his gun at Mr. Watts, who proceeded to get on the floor. Glenna Meadows, the other clerk, who had been in the back stockroom, came out into the store area, where she was subsequently shot and injured by Mr. Britton. Immediately thereafter, the defendant and Mr. Britton fled the store without taking any money.

I.

At trial, the defendant's principal defense was that of alibi. In his testimony, the defendant denied any involvement in the crime and explained that on the evening of the attempted robbery, he visited friends and went to a couple of clubs. Several witnesses corroborated the defendant's testimony. The court, over defense objection, amended Defendant's Instruction No. 14 and, in effect, placed on the defendant the burden of proving his alibi. 1

We had approved a similar instruction in State v. Alexander, 161 W.Va. 776, 245 S.E.2d 633 (1978). However, the Fourth Circuit Court of Appeals in a case arising from this State, Adkins v. Bordenkircher, 674 F.2d 279 (4th Cir.), cert. denied, 459 U.S. 853, 103 S.Ct. 119, 74 L.Ed.2d 104 (1982), determined that the alibi instruction approved in Alexander was unconstitutional because it shifts the burden of proof of a material element of the State's case to the defendant. 2 In State v. Kopa, W.Va., 311 S.E.2d 412 (1983), we decided to defer to the federal court and overruled Alexander, stating in Syllabus Point 1:

"Because of the holding in Adkins v. Bordenkircher, 674 F.2d 279 (4th Cir.), cert. denied, , 103 S.Ct. 119, 74 L.Ed.2d 104 (1982), State v. Alexander, , 245 S.E.2d 633 (1978), is overruled to the extent that it permits the giving of an instruction that places the burden upon the defendant to prove his alibi defense sufficiently to create a reasonable doubt in the mind of the jury as to his guilt." 3

Based on Adkins and Kopa, we conclude that the amended alibi instruction was constitutionally defective and reverse the judgment of the circuit court.

II.

A more novel question is presented on the double jeopardy issue. The defendant argues that under the facts in this case, only one count of attempted aggravated robbery could be charged because the property sought to be taken belonged to only one owner, the Village Mart.

In State v. Neider, W.Va., 295 S.E.2d 902, 907 (1982), we stated that the "primary purpose [of W.Va.Code, 61-2-12, our robbery statute,] was to set the degrees of robbery" and quoted from Syllabus Point 3 of State v. Harless, W.Va., 285 S.E.2d 461 (1981): "W.Va.Code, 61-2-12, enacted in 1931, divides robbery into two separate classes calling for different penalties: (1) robbery by violence or by the use of a dangerous weapon, and (2) all other robberies." 4 We also stated in Neider, 295 S.E.2d at 907, that: "We have in the past recognized that our robbery statute must be read in conjunction with the common law elements of larceny. E.g., State ex rel. Vandal v. Adams, 145 W.Va. 566, 115 S.E.2d 489 (1960); Franklin v. Brown, 73 W.Va. 727, 81 S.E. 405 (1914)."

In Neider, we quoted the common law definition of larceny as set out in Syllabus Point 1 of Harless: "At common law, the definition of robbery was (1) the unlawful taking and carrying away, (2) of money or goods, (3) from the person of another or in his presence, (4) by force or putting him in fear, (5) with intent to steal the money or goods." We then restated the common law definition of larceny, which is contained in Syllabus Point 3 of State v. Louk, W.Va., 285 S.E.2d 432 (1981), 5 and made this comparison between the crimes of larceny and robbery: "It is clear that robbery at common law encompassed the same elements as a larceny and included two additional elements: the taking has to be from the person of another or in his presence and such taking has to be by force or putting the person in fear." 295 S.E.2d at 907. (Footnote omitted).

It cannot be doubted that one of the principal aspects of the common law crime of robbery is the taking of personal property of another against his will with the intent to permanently deprive him of the ownership thereof. We have reversed robbery convictions where the State failed to prove that there was an unlawful taking of personal property with the intent to permanently deprive the owner of it. See, e.g., State v. Ferguson, W.Va., 285 S.E.2d 448 (1981); State v. Rollins, 142 W.Va. 118, 94 S.E.2d 527 (1956); State v. Morris, 96 W.Va. 291, 122 S.E. 914 (1924); State v. McCoy, 63 W.Va. 69, 59 S.E. 758 (1907).

From a historical standpoint, it has been commonly accepted that robbery at common law was an aggravated form of larceny. 2 J. Bishop, New Commentaries on the Criminal Law § 1158 (8th ed. 1892); 2 W. Burdick, The Law of Crime § 588 (1946); W. Clark, Handbook on Criminal Law §§ 105-07 (3d ed. 1915); J. Davis, A Treatise on Criminal Law 199 (1838); W. LaFave and A. Scott, Handbook on Criminal Law § 94 (1972); R. Perkins, Criminal Law 279-81 (2d ed. 1969); L. Weinreb, Criminal Law 271 (1969); 2 F. Wharton, Wharton's Criminal Law and Procedure § 547 (R. Anderson ed. 1957). 6 Furthermore, with regard to larceny, we have held that the taking of two separate items of property from the same owner at the same time is but one larceny. State v. Mullenax, 124 W.Va. 243, 252, 20 S.E.2d 901, 905 (1942), overruled on other grounds, State v. McAboy, 160 W.Va. 497, 236 S.E.2d 431 (1977). This appears to be the general rule. 50 Am.Jur.2d Larceny § 3 (1970); 52A C.J.S. Larceny § 53 (1968).

We believe that the legislature has not by the enactment of W.Va.Code, 61-2-12, redefined the elements of robbery from those established by the common law. In Smith v. West Virginia State Board of Education, W.Va., 295 S.E.2d 680 (1982), we said in Syllabus Point 2: "One of the axioms of statutory construction is that a statute will be read in context with the common law unless it clearly appears from the statute that the purpose of the statute was to change the common law."

In analyzing double jeopardy, we stated in Syllabus Point 1 of Conner v. Griffith, 160 W.Va. 680, 238 S.E.2d 529 (1977), that:

"The Double Jeopardy Clause in Article III, Section 5 of the West Virginia Constitution, provides immunity from further prosecution where a court having jurisdiction has acquitted the accused. It protects against a second prosecution for the same offense after conviction. It also prohibits multiple punishments for the same offense." 7

In the foregoing syllabus point, we utilized language from North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 665 (1969), but went on to say in the text of Conner, 160 W.Va. at 683 238 S.E.2d at 530: "It is our view that Article III, Section 5 of the West Virginia Constitution is, at least, coextensive with the three principles set out in North Carolina v. Pearce, supra, and prohibits multiple punishments for the same offense." (Emphasis added).

From the foregoing summary of the three areas that the Double Jeopardy Clause is designed to protect, it is clear that this case involves the question of multiple punishments for the same offense. We are aware of recent United States Supreme Court cases which indicate that where multiple punishments are involved for the same offense, the primary test for resolving the double jeopardy question is to ascertain the legislative intent. We addressed...

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