State v. Cox, 14028

Decision Date10 April 1979
Docket NumberNo. 14028,14028
Citation162 W.Va. 915,253 S.E.2d 517
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia v. Franklin Anthony COX alias "Acy".

Syllabus by the Court

Law enforcement officers do not have authority to promise that in exchange for information a person accused will not be prosecuted for the commission of a crime, and such a promise is generally unenforceable.

Paul S. Atkins, Charleston, Timothy G. Leach, Beckley, for P. E.

Chauncey H. Browning, Jr., Atty. Gen., Frances W. McCoy, Asst. Atty. Gen., Charleston, for D. E.

McGRAW, Justice:

"Acy" Cox was convicted of armed robbery in the Circuit Court of Kanawha County and was sentenced to thirty years in the State Penitentiary.

He complained to this Court that in the pretrial of his case two errors were committed which were prejudicial to his cause and he assigned them as follows:

1. The Court erred in denying and overruling defendant's special plea in bar concerning denial of a speedy trial.

2. The Court erred in denying and overruling defendant's special plea in bar concerning an agreement made to him that he would not be prosecuted.

Additionally, the petitioner claims prejudicial error in the course of the trial as follows:

The Court erred in refusing to allow defendant to produce circumstantial evidence which would tend to show that another certain person committed this crime and that the defendant, your petitioner, had been mistaken for this other person before, by credible witnesses.

We affirm the conviction because the delay in his trial was caused by his incarceration in a federal penitentiary; his testimony in federal court contradicted his claim here with respect to his plea bargain, and two eyewitnesses positively identified him as the armed robber.

I

We will take the petitioner's last assignment of error first. He argues that a principle fact in issue was the identity of the armed robber and he asserts that the crime was committed by another person who bore a marked resemblance to him, the defendant. In support of this theory, defense counsel presented evidence to the jury that the third party had confessed to the crime and that third party's photograph was introduced and made available to the jurors.

The State's evidence was the testimony of three eyewitnesses to the robbery; two of the three witnesses positively identified the defendant as the robber; the third witness was positive, but not certain, in his identification of the petitioner.

The petitioner complains that the trial court erred by not allowing the petitioner to show that another person, not related to this case, had once identified him as an automobile thief who had committed a crime to which the look-alike later pleaded guilty.

The trial court refused to admit this testimony saying it was not material or relevant because it did not go to the credibility of the eyewitnesses. We think the trial court was correct in its ruling and note that the defendant was permitted to put on his evidence to support his theory of mistaken identity, and his theory was, therefore, before the jury. We find no reversible error in this assignment by the petitioner.

II.

The petitioner says that the circuit court erred in denying his special plea in bar based in denial of a speedy trial. He argues his constitutional right to a speedy trial was violated because he was not brought to trial until two and one-half years after his indictment, and he asserts that the delay was prejudicial to his defense because the person whom he contends committed the crime could not be located at the time of trial.

Briefly, the facts the defendant was returned to West Virginia from Ohio on December 21, 1972, and by warrant was charged with armed robbery on January 6, 1973. On March 27, 1973, defendant plead guilty to a federal firearms charge, received a two year sentence, and was transferred to a federal penitentiary in Georgia, arriving there in April of 1973. He was indicted by the Kanawha County Grand Jury in April of 1973, and a capias was issued some fifty days later, on June 12, 1973. In August of 1973, the Kanawha County prosecutor learned of defendant's imprisonment at a federal penitentiary in Atlanta, Georgia, and a detainer was immediately filed for temporary custody of defendant, but this effort was unsuccessful. In October of 1973, a second detainer was filed with a Minnesota federal prison to which the defendant had been transferred. The defendant filed a habeas corpus action seeking to prevent extradition to West Virginia. Several witnesses from West Virginia went to the Minnesota extradition hearing, but defendant did not show up for the hearing and the extradition request was honored. The record is not as complete at this point as would be desirable but it appears that the defendant was returned to West Virginia on the armed robbery indictment somewhere between April of 1975 and October 1, 1975. A December 1, 1975 trial date was continued at the defendant's request to the January, 1976 term of court at which he was tried and convicted on January 21, 1976.

The controlling law on this issue is found in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). There the United States Supreme Court adopted a balancing approach for speedy trial claims in which the conduct of the government and the defendant are weighed against one another on a case-by-case basis. Four factors are to be considered in this balancing process: (1) length of delay; (2) the reason for the delay; (3) the defendant's assertion of his rights; and (4) prejudice to the defendant. The Court made it palpably clear in Barker that it regarded none of the factors alone as either necessary or a sufficient condition to support a finding that there has been a deprivation of the right to a speedy trial.

Applying the above principles to the facts of this case, we begin our examination with the length of delay. The delay of approximately two and one-half years between indictment and trial clearly warrants further inquiry.

The primary reason for the delay, as discussed earlier, was that the defendant was outside the jurisdiction incarcerated in a federal penitentiary. In Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969), the Supreme Court held that on a defendant's demand, the State has a constitutional duty "to make a diligent, good-faith effort" to bring him to trial. Id. at 383, 89 S.Ct. at 579. We adopted a similar rule for the purposes of this State's "three term rule," embodied in W.Va.Code § 62-3-21, in State ex rel. Stines v. Locke, W.Va., 220 S.E.2d 443 (1975).

From a review of the record, it appears that the prosecuting authorities of Kanawha County made a diligent, good-faith effort to secure the presence of the accused for trial. The significant delay in this case stems from defendant's imprisonment in federal penitentiaries, the refusal of federal officials to release him to temporary custody, and the defendant's efforts to prevent extradition. At one point he even sought assistance in this regard from the United States Attorney's office in West Virginia.

On the third factor, the defendant in this case did not assert his speedy trial right until September of 1975.

Finally, the defendant was not prejudiced in his defense; it appears the critical witness had not disappeared, was known to be on parole in Ohio, but was not subpoenaed.

Based upon the above factors, we affirm the trial court's denial of defendant's special plea in bar, and find the State of West Virginia complied with all constitutional and statutory requirements pertaining to a speedy trial.

III.

Finally, in a significant claim, the claim which moved the Court to hear the defendant's case, he claims that the court erred in holding him to trial because he had entered into an agreement, the substance of which was that he would not be prosecuted for this offense.

The defendant contends a state policeman, a trooper, promised him he would not be prosecuted on an armed robbery charge if he would provide (1) information concerning an important criminal case which was currently under investigation; (2) plead guilty to federal gun possession charge; and (3) provide information and testimony on several other charges. That is the essence of the claimed agreement.

The defendant contends that he performed his part of the bargain and he argues that the State is bound by this agreement irrespective of whether it was made by a person having authority to make such agreement and irrespective of whether the promise is fulfillable. He claims that when a defendant relies on such promise to his detriment and cannot be restored to his former position, he is entitled to specific performance of the agreement not to prosecute.

The State asserts, in response, that the information provided to the government by defendant was given before any promise was made and therefore defendant did not rely upon it to his detriment; that the defendant did not deal in good faith with the state trooper because he had already provided the information to a city police officer; that the trooper was without authority to enter into any plea bargaining with the defendant; that the defendant twice denied the existence of any plea bargaining agreement when he entered his plea of possession of a firearm charge in federal court; and that there was never any enforceable plea bargaining agreement made because no valid contract was ever consummated.

The facts adduced at the evidentiary hearing upon defendant's plea in bar are important to our resolution of this...

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13 cases
  • Myers v. Frazier
    • United States
    • Supreme Court of West Virginia
    • 27 juin 1984
    ...court to grant immunity to a person when "the ends of justice may be promoted by compelling such testimony or evidence." In State v. Cox, W.Va., 253 S.E.2d 517 (1979), we held that law enforcement officers have no authority to give or promise immunity against prosecution 35 and also indicat......
  • State v. Pancake
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    • Supreme Court of West Virginia
    • 21 septembre 1982
    ...See State v. Wood, 167 W.Va. 700, 280 S.E.2d 309 (1981); State v. Gangwer, 168 W.Va. 190, 283 S.E.2d 839 (1981); State v. Cox, 162 W.Va. 915, 253 S.E.2d 517 (1979); Ward v. Smith, 140 W.Va. 791, 86 S.E.2d 539 (1955). Accord, State v. Howard, Utah, 544 P.2d 466, 470 (1975). See also Turley v......
  • State Of West Va. v. Elswick, 35014.
    • United States
    • Supreme Court of West Virginia
    • 1 avril 2010
    ...of the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).6 See also State v. Cox, 162 W.Va. 915, 253 S.E.2d 517 (1979) (identifying the Barker factors). In syllabus point two of Foddrell, this Court explained the applicable standard as follow......
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    • United States
    • Supreme Court of West Virginia
    • 10 avril 1979
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