State v. Cooper, 15574

Citation304 S.E.2d 851,172 W.Va. 266
Decision Date22 June 1983
Docket NumberNo. 15574,15574
CourtSupreme Court of West Virginia
PartiesSTATE of West Virginia v. William Francis COOPER.
that it is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done." Syllabus Point 1, State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978)

Harry C. Taylor, II, McKittrick & Vaughan, St. Albans, for appellant.

Janet F. Steele, Asst. Atty. Gen., Charleston, for appellee.

HARSHBARGER, Justice:

A Kanawha County Circuit Court jury convicted William Francis Cooper of robbery by violence, W.Va.Code, 61-2-12, 1 and he was sentenced to the West Virginia Penitentiary for forty-five years. He challenges the length of his sentence as violating the principle of proportionality in West Virginia Constitution Article III, Section 5: "Penalties shall be proportioned to the character and degree of the offence," and lists several trial deficiencies, including admission of his confession, insufficient evidence to convict, ineffective assistance of counsel, instructions, and prejudicial judicial conduct.

In the early morning hours of August 31, 1980, Robert Puhan was beaten and robbed of his wallet, thirty-five dollars, and several credit cards. His memory was hazy because he had been knocked unconscious, but he recalled being struck as he walked along Quarrier Street in Charleston's East End, being rolled over on the ground, and having his wallet removed by several people (at least two or three), who he could not identify. He needed stitches for his injuries, but has fully recovered.

On September 5, two men tried to use Puhan's credit cards to get cash at the National Bank of Commerce. A combination of suspicious circumstances led bank personnel to check the cards. They determined they had been reported stolen, and notified an off-duty policeman who happened to be in the bank. A chase ensued, and the young men separated, but were finally arrested in downtown Charleston.

Cooper and his co-defendant, Spradley, were taken to police headquarters. Before Cooper was taken to a magistrate, he was informed that Spradley had made a statement against him about the robbery, whereupon Cooper gave his version:

Joe and I were walking towards the east end, I don't know the street, and I just walked up in front of a guy and asked him could I borrow a quarter from him, I believe he was drunk or something. He turned around real fast, and threw a punch at me, and I jumped back, and told him, what did he throw it for, and he took his glasses off, and that's when I punched him. Then he just fell down, and JJ hit him a couple times in the stomach, and I hit him a couple of times in the stomach, then we both reached for the billfold at the same time. He reached for it first. I held him, while he took the billfold out of his pocket. Then we got up and ran to the riverbank near the State Capitol.

Spradley and Cooper were indicted and Cooper pled not guilty, had a jury trial at which neither he nor Spradley testified, and was convicted. The next week Spradley pled guilty to petit larceny and was sentenced to one year in the county jail.

ALLEGED TRIAL ERRORS

Should Cooper's confession be inadmissible because considering all the circumstances surrounding its elicitation, it was involuntary? There is no question that Cooper was properly advised of his rights and signed a waiver. He argues that his youth, his low intelligence, and officers' comments that Spradley implicated him in the robbery, worked together to invalidate his confession. State v. Adkins, 170 W.Va. 46, 289 S.E.2d 720 (1982); State v. Persinger, 169 W.Va. 121, 286 S.E.2d 261 (1982).

Cooper was nineteen with an eleventh-grade education, but there is no concrete evidence that he was of subnormal intelligence, although he told police he had trouble reading. A truthful statement by the police that a co-defendant confessed, implicating a defendant, does not make a subsequent confession by him inadmissible.

A confession of the accused is admissible in evidence where it appears that it was made to the prosecuting attorney and sheriff without any inducement of a worldly or temporal character in the nature of a threat, promise or benefit held out to him by them in respect to his escape from, or mitigation of, his punishment. Information from them to him that a confederate in the crime had confessed and placed the guilt on the accused, unaccompanied by any threat, inducement or promise of benefit by which he could escape from, or receive diminution of, punishment from the consequences of the crime will not render the confession inadmissible. Syllabus, State v. Goldizen, 93 W.Va. 328, 116 S.E. 687 (1923).

Accord, State v. Sparks, 171 W.Va. 320, 298 S.E.2d 857, 864 (1982); see generally, Annot., Admissibility of confession as affected by its inducement through artifice, deception, trickery, or fraud, 99 A.L.R.2d 772 (1965 and 1983 Later Case Service). There is no evidence of trickery, coercion or duress. The State proved by a preponderance of evidence the voluntariness of Cooper's confession, and it was properly admitted. State v. Goodmon, 170 W.Va. 123, 290 S.E.2d 260 (1981).

Defendant's challenge to the sufficiency of the evidence also fails. After applying our test from Syllabus Point 1 in State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978), we do not find the evidence manifestly inadequate:

In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence Cooper enumerated multiple failures on the part of his trial counsel that made his representation ineffective. He complains that his counsel filed very few pre-trial motions to test the sufficiency of the charge and indictment, failed to conduct an investigation to develop the possibility of a defense and therefore called no witnesses, did not object to many matters at trial including the State's use of evidence of Cooper's fraudulent use of the credit cards and admission of hearsay and conclusory comments by witnesses, failed to thoroughly cross-examine witnesses, did not object to the manner in which the State handled documentary evidence, failed to have an expert examine Cooper's mental abilities, and did not move for reconsideration of his sentence. He also claims his lawyer should have made an opening statement and should have advised him to testify in his own defense.

was manifestly inadequate and that consequent injustice has been done.

Most of these alleged ineffective acts are not cited to any facts in the record. We cannot find any indication that there was no investigation. The record reveals in an in camera conference that Cooper told the court and his attorney that he had no witnesses to call and the court emphasized to him that it was his decision whether or not to testify. Cooper does not state what pre-trial motions should have been filed or why.

The evidence of Cooper's attempt to fraudulently use the credit cards was to identify Cooper as the perpetrator of the robbery, and corroborate his confession. It showed how the cards were discovered in his possession. It was not presented as evidence of another crime, and while defense counsel may have been successful in attempting to limit some of the testimony, we cannot say his failure to do so was ineffective. Evidence that Cooper possessed the fruits of the crime, the credit cards, is always admissible. 29 Am.Jur.2d Evidence § 289.

Cooper gave us nothing to indicate that he was so mentally deficient that failure to have him examined by an expert was ineffective assistance.

Cooper's counsel did not move for reconsideration of sentence, but did indicate that Cooper would appeal. Because we have decided the sentence matter herein, this was not ineffective.

Where a counsel's performance,...

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