State v. Cook, 16183

• Decision Date: 15 July 1985
• Docket Number: No. 16183,16183
• Citation: 175 W.Va. 185,332 S.E.2d 147
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Theodore Thomas COOK.

Page 147

332 S.E.2d 147

175 W.Va. 185

STATE of West Virginia v. Theodore Thomas COOK.

No. 16183.

Supreme Court of Appeals of

West Virginia.

Submitted Jan. 23, 1985.

Decided June 3, 1985.

Dissenting Opinion July 15, 1985.

Syllabus by the Court

1. "An officer, with authority to conserve the peace, may, without a warrant, arrest any person who he, upon probable cause, believes has committed or is committing a felony, though it afterwards appears that no felony was actually perpetrated." Syl. pt. 2, State v. Duvernoy, 156 W.Va. 578, 195 S.E.2d 631 (1973).

2. "Probable cause to make an arrest without a warrant exists when the facts and circumstances within the knowledge of the arresting officers are sufficient to warrant a prudent man in believing that an offense has been committed." Syl. pt. 1, State v. Plantz, 155 W.Va. 24, 180 S.E.2d 614 (1971).

3. "Searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment and Article III, Section 6 of the West Virginia Constitution--subject only to a few specifically established and well-delineated exceptions. The exceptions are jealously and carefully drawn, and there must be a showing by those who seek exemption that the exigencies of the situation made that course imperative." Syl. pt. 1, State v. Moore, 165 W.Va. 837, 272 S.E.2d 804 (1980).

4. "The burden rests on the State to show by a preponderance of the evidence that the warrantless search falls within an authorized exception." Syl. pt. 2, State v. Moore, 165 W.Va. 837, 272 S.E.2d 804 (1980).

5. "A warrantless search of the person and the immediate geographic area under his physical control is authorized as an incident to a valid arrest." Syl. pt. 6, State v. Moore, 165 W.Va. 837, 272 S.E.2d 804 (1980).

6. "A warrantless search 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. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974)." Syl. pt. 7, State v. Moore, 165 W.Va. 837, 272 S.E.2d 804 (1980).

7. "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." Syl. pt. 10, State v. Huffman, 141 W.Va. 55, 87 S.E.2d 541 (1955).

8. "Confessions elicited by law enforcement authorities from persons suspected of crimes who because of mental condition cannot knowledgeably and intelligently waive their right to counsel are inadmissible." Syl. pt. 2, State v. Hamrick, 160 W.Va. 673, 236 S.E.2d 247 (1977).

9. "The State must prove, at least by a preponderance of the evidence, that confessions or statements of an accused which amount to admissions on part or all of an offense were voluntary before such may be admitted into the evidence of a criminal case." Syl. pt. 5, State v. Starr, 158 W.Va. 905, 216 S.E.2d 242 (1975).

10. "A trial court's decision regarding the voluntariness of a confession will not be disturbed unless it is plainly wrong or clearly against the weight of the evidence." Syl. pt. 3, State v. Vance, 162 W.Va. 467, 250 S.E.2d 146 (1978).

11. "Several basic rules exist as to cross-examination of a witness. The first is that the scope of cross-examination is coextensive with, and limited by, the material evidence given on direct examination. The second is that a witness may also be cross-examined about matters affecting his credibility. The term "credibility" includes the interest and bias of the witness, inconsistent statements made by the witness and to a certain extent the witness' character. The third rule is that the trial judge has discretion as to the extent of cross-examination." Syl. pt. 4, State v. Richey, 171 W.Va. 342, 298 S.E.2d 879 (1982).

12. "Jury instructions on possible verdicts must only include those crimes for which substantial evidence has been presented upon which a jury might justifiably find the defendant guilty beyond a reasonable doubt." Syl. pt. 5, State v. Demastus, 165 W.Va. 572, 270 S.E.2d 649 (1980).

13. "Immaterial, unnecessary and harmless averments, which might be omitted without affecting the charge in an indictment against the accused and which need not be proved, may be properly considered and rejected as surplusage." Syl. pt. 1, State v. McGraw, 140 W.Va. 547, 85 S.E.2d 849 (1955).

14. "The crime of felony-murder in this State does not require proof of the elements of malice, premeditation or specific intent to kill. It is deemed sufficient if the homicide occurs accidentally during the commission of, or the attempt to commit, one of the enumerated felonies." Syl. pt. 7, State v. Sims, 162 W.Va. 212, 248 S.E.2d 834 (1978).

15. "The discretion of the trial court in ruling on the propriety of argument by counsel before the jury will not be interfered with by the appellate court, unless it appears that the rights of the complaining party have been prejudiced, or that manifest injustice resulted therefrom." Syl. pt. 3, State v. Boggs, 103 W.Va. 641, 138 S.E. 321 (1927).

16. "Upon motion to direct a verdict for the defendant, the evidence is to be viewed in light most favorable to prosecution. It is not necessary in appraising its sufficiency that the trial court or reviewing court be convinced beyond a reasonable doubt of the guilt of the defendant; the question is whether there is substantial evidence upon which a jury might justifiably find the defendant guilty beyond a reasonable doubt." Syl. pt. 1, State v. Fischer, 158 W.Va. 72, 211 S.E.2d 666 (1974).

George P. Stanton, III, Asst. Atty. Gen., Charleston, for appellee.

T.D. Kauffelt and James Kauffelt, Benjamin N. Snyder, Charleston, for appellant.

McGRAW, Justice:

Theodore Thomas Cook appeals from a final order of the Circuit Court of Kanawha County entered May 4, 1983, which confirmed his conviction of first degree murder without a recommendation of mercy and sentenced him to life in the penitentiary. He advances numerous assignments of error assertedly warranting reversal of his conviction. Disposition of a few of these assignments renders unnecessary addressing other assignments. Therefore, following a brief discussion of the circumstances resulting in his conviction, we will address each of the relevant assignments.

On May 19, 1981, the appellant met Roy Frye at a tavern near the appellant's home in Madison. After sharing a few drinks, Frye expressed a desire to purchase some marijuana. At the appellant's suggestion, the two men left in Frye's truck for the home of Mark Price in order to secure this purchase. When they arrived, Price indicated that he believed a friend who lived nearby might have some marijuana for sale. These three men, along with Mark's younger brother, Richie Price, a juvenile, went to this friend's house, but discovered that he was not there. The entourage then went to another tavern in Van, in order to await this friend's return, where Frye bought the group some beer, including a six pack upon their departure to again search for Mark's friend.

After failing to locate Mark's friend, the group first went to a bar in Whitesville, where Frye purchased a case of beer, and then to a liquor store, where he purchased liquor and mixers. Apparently, the other men also tried, on various occasions throughout the afternoon, to cash some of Frye's checks, with his consent, in order to purchase more alcohol or marijuana. In the course of their travels, Richie served as bartender, and according to his testimony, was instructed by his brother to mix Frye's drinks "a little bit stronger" than the others.

Eventually, Mark drove to a deserted road near the State Capitol in Charleston. At this point, the testimony begins to conflict. According to Richie, Frye, who was then extremely intoxicated, muttered, "I think you are going to rob me." The appellant testified that this statement was not made. Richie further testified that Frye and the appellant then exited the vehicle and began wrestling around. The appellant testified that he merely left the truck to relieve himself, and that Frye followed. In any event, after the two men got out of the truck, Mark Price picked up a ball peen hammer from the backseat and got out.

According to Richie, after the appellant subdued the much smaller Frye, his brother beat him to death with the hammer. According to the appellant, after he had relieved himself, he turned around to see Mark striking Frye in the head with the hammer. Both individuals testified, however, that the appellant then took Frye's checkbook and wallet from his pocket at Mark's instruction and returned to the truck with Mark, who drove the truck over Frye's dead or dying body as they were leaving.

After dining, the three men left Charleston in Frye's truck and headed for Cleveland, Ohio. They stopped and rested briefly at a Ripley motel, paying for their bill with one of Frye's checks. After their departure from Ripley, on their way to Cleveland, Mark was stopped by an Ohio police officer after being clocked at eighty-four miles per hour. Although the officer ascertained that none of the vehicle's occupants owned the truck, incredibly, he only required Mark to hand over his driver's license, after which they continued on to Cleveland.

Once in Cleveland, Mark sold the truck for one hundred dollars to a man he had met in a bar, and, along with the appellant, using Frye's checkbook, attempted to transfer funds from Frye's bank in Danville to a bank in Cleveland. On May 22, 1981, a...