State v. Cox
| Decision Date | 28 October 1982 |
| Docket Number | No. 15395,15395 |
| Citation | 171 W.Va. 50,297 S.E.2d 825 |
| Parties | STATE of West Virginia v. Charles Joseph COX aka Charles Joseph Messoria. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
"In determining whether an out-of-court identification of a defendant is so tainted as to require suppression of an in-court identification a court must look to the totality of the circumstances and determine whether the identification was reliable, even though the confrontation procedure was suggestive, with due regard given to such factors as the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." Syl. pt. 4, State v. Boyd, 167 W.Va. 385, 280 S.E.2d 669 (1981); Syl. pt. 1, State v. Rickman, 167 W.Va. 128, 278 S.E.2d 880 (1981); Syl. pt. 1, State v. Kennedy, 162 W.Va. 244, 249 S.E.2d 188 (1978); Syl. pt. 3, State v. Casdorph, 159 W.Va. 909, 230 S.E.2d 476 (1976).
Charles L. Ihlenfied, Wheeling, for appellant.
Chauncey H. Browning, Atty. Gen. and Laurie J. Garrigan, Asst. Atty. Gen., Charleston, for appellee.
The appellant, Charles Joseph Cox, aka Charles Joseph Messoria, was convicted of breaking and entering in the Circuit Court of Wetzel County and was subsequently sentenced to an indeterminate term of one to ten years in the state penitentiary. In this appeal, he contends, inter alia, that the circuit court erred in allowing his in-court identification by a police officer for the City of New Martinsville. For the reasons set forth below, we find appellant's contentions to be without merit and we affirm the judgment of the trial court.
At approximately 1:30 a.m. on May 30, 1979, a breaking and entering occurred at the Classic Food Market in New Martinsville, West Virginia. Stephen Caldwell, a witness for the prosecution, heard glass breaking and observed a man carrying a large object exit the market. Caldwell called the New Martinsville police department and, at 1:51 a.m., Officer Michael Johnston arrived at the market.
Johnston looked inside the store and then heard a vehicle's engine start and the squeal of tires. Johnston radioed to Patrolman B.K. Norris who blocked a nearby intersection with his patrol car. As Johnston drove along Paducah Road near the market, an approaching vehicle turned its lights off and pulled partially off the roadway. Johnston stopped his vehicle, got out and began to walk toward a blue Jeep pickup truck, parked approximately fifteen feet from his patrol car. As the officer approached the Jeep it suddenly accelerated directly toward him, and as he stepped out of the vehicle's path, he noticed a cash register in the truck bed. Johnston was also able to observe the driver of the pickup truck since the headlights of his patrol car illuminated the area.
The fleeing vehicle eluded Norris at the intersection and he and Johnston pursued it until the driver abandoned it and fled. The driver was not found at that time.
New Martinsville Chief of Police Anthony Castranova arrived at the site of the abandoned vehicle just as the license check on the vehicle was completed. Chief Castranova asked Johnston if he knew Charles Joseph Messoria, to whom the vehicle was registered, and finding that he did not, the chief described Messoria to him. Johnston said that the driver he observed fit the chief's description of Messoria.
At about 8:40 a.m. Johnston saw Messoria walking along a roadway away from town. He recognized Messoria and arrested him.
Messoria assigns as error the admission of Johnston's in-court identification of him as the driver of his pickup on the night of the breaking and entering. He also assigns as error the trial court's failure to sustain his motion for a new trial based on improper communications between Chief Castranova and two jurors. Finally, Messoria contends that the trial judge erred in allowing the jury to hear the testimony of Lila Witchey, despite his objection that the state breached its duty to notify him of the possibility that Witchey might be called.
We set forth the test for determining the admissibility of in-court identifications in these circumstances in State v. Boyd, 167 W.Va. 385, 280 S.E.2d 669 (1981), citing Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), State v. Rickman, 167 W.Va. 128, 278 S.E.2d 880 (1981); State v. Williams, 162 W.Va. 348, 249 S.E.2d 752 (1978); State v. Kennedy, 162 W.Va. 244, 249 S.E.2d 188 (1978); and State v. Casdorph, 159 W.Va. 909, 230 S.E.2d 476 (1976). In Syllabus point 4 of Boyd, supra, we quoted Syl. pt. 3 of Casdorph, supra:
In determining whether an out-of-court identification of a defendant is so tainted as to require suppression of an in-court identification a court must look to the totality of the circumstances and determine whether the identification was reliable, even though the confrontation procedure was suggestive, with due regard to such factors as the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.
An examination of the events surrounding Johnston's encounter with the appellant reveals that his identification of Messoria was reliable. Johnston apprehended the appellant within seven hours of the crime and exhibited no uncertainty then or later that Messoria was the individual driving the pickup truck. The officer was within approximately five feet of the truck when he observed the driver. This observation was aided by the illumination provided from the headlights of the officer's nearby patrol car. Certainly, Johnston's attention could have been focused on little else...
To continue reading
Request your trial
-
State v. Davis
...v. Gravely, 171 W.Va. 428, 299 S.E.2d 375 (1982); Syl. pt. 1, State v. Dye, 171 W.Va. 361, 298 S.E.2d 898 (1982); Syl., State v. Cox, 171 W.Va. 50, 297 S.E.2d 825 (1982); Syl. pt. 2, State v. Swiger, 169 W.Va. 724, 289 S.E.2d 497 (1982); State v. Harless, 168 W.Va. 716, 285 S.E.2d at 467 n.......
-
Thornton v. CAMC, Etc.
...should not assume that we will in the future sanction this practice." (Emphasis added; Citations omitted). See also State v. Cox, 171 W.Va. 50, 297 S.E.2d 825, 828 (1982). This Court "is limited in its authority to resolve assignments of nonjurisdictional errors to a consideration of those ......
-
State v. Boykins
...of other properly admitted evidence more damaging to Boykins' alibi defense. We addressed a similar factual situation in State v. Cox, W.Va., 297 S.E.2d 825, 828 (1982), and also found any error to have been We have carefully considered Boykins' remaining contentions and find no grounds for......
-
O'Neal v. Peake Operating Co., 19723
...upon by the court below and fairly arising upon the portions of the record designated for appellate review." See also State v. Cox, 171 W.Va. 50, 297 S.E.2d 825, 828 (1982). In the absence of an adequate record by the cross-assigning party, we will not consider the issue of application of t......