State v. Creamer, No. 11-0848

Decision Date16 April 2012
Docket NumberBerkeley County 10-F-59,No. 11-0848
CourtWest Virginia Supreme Court
PartiesState of West Virginia, Plaintiff Below, Respondent v. Harry W. Creamer, Defendant Below, Petitioner
MEMORANDUM DECISION

Petitioner Harry W. Creamer, by counsel B. Craig Manford, appeals the sentencing order from the Circuit Court of Berkeley County entered on April 25, 2011, sentencing him to one year for misdemeanor breaking and entering and one year for misdemeanor petit larceny, to run concurrently with one another but consecutively with the remaining sentences; ten years on each of seven counts of fraudulent use of an access device, to run concurrently with one another but consecutively to the other sentences; one to ten years on one count of forgery and one to ten years on one count of uttering, to run concurrently with one another but consecutively with the other sentences. This appeal was timely perfected by counsel, with petitioner's appendix accompanying the petition. The State, by counsel Cheryl K. Saville, has filed its response.

This Court has considered the parties' briefs and the appendix on appeal. The facts and legal arguments are adequately presented in the parties' written briefs and the appendix on appeal, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the appendix presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision is appropriate under Rule 21 of the Revised Rules of Appellate Procedure.

Petitioner was tried and convicted of eleven counts stemming from the theft of a purse from a vehicle and the repeated attempt to use an automated teller machine ("ATM") card and to cash checks found in that purse. The perpetrator of the crime was seen on two different surveillance videos, one outside a bank and one at an ATM. Petitioner also used or attempted to use the ATM card at a Sheetz store and a Walmart store. Prior to trial, petitioner moved to exclude his jail photograph for identification, and was told by the State that there would be no in-court identification because the witnesses had not identified the petitioner outside of court. However, at the time of trial, the prosecution discovered that one of the bank tellers, who had been on vacation previously, could identify the petitioner by his tattoos. This was disclosed just prior to trial and the testimony was allowed over petitioner's objections.

At trial, several witnesses testified. Petitioner's former roommate testified that his brother had called the police to give them petitioner's identity after a surveillance photograph of petitioner was published in the newspaper, and the former roommate confirmed to the police that the person in the surveillance photograph was the petitioner. Two bank tellers testified regarding petitioner's attempted transactions at the bank. The victim testified, as well as a woman who saw the purse being taken from the vehicle. A regional security officer also testified regarding the surveillance at the bank. Petitioner moved for a mistrial several times, arguing that the witnesses' use of the term "defendant" and "Mr. Creamer" was prejudicial, and arguing that the witnesses provided undisclosed eye witness identification. These motions were denied.

Upon his conviction on all counts, petitioner was sentenced to one year for misdemeanor breaking and entering and one year for misdemeanor petit larceny, to run concurrently with one another but consecutively with the remaining sentences; ten years on each of seven counts of fraudulent use of an access device, to run concurrently with one another but consecutively to the other sentences; one to ten years on one count of forgery and one to ten years on one count of uttering, to run concurrently with one another but consecutively with the other sentences. Petitioner had argued for leniency, stating that he had previously abused drugs and alcohol but that he was now sober. Petitioner's motion for judgment of acquittal and motion for a new trial were denied. The court noted that petitioner has a lengthy criminal history, including over thirty arrests. Petitioner appeals from this sentencing order.

Petitioner first argues that the circuit court erred in allowing publication of petitioner's tattoos to the jury and witnesses without conducting a balancing analysis pursuant to Rule 403 of the West Virginia Rules of Evidence. Petitioner argues that the sole issue at trial was the identity of the perpetrator, and the court's failure to conduct a balancing analysis is plain error. Further, the petitioner argues that the circuit court did not actually view the tattoos in question.

In response, the State argues that publication of the tattoos to the jury and witnesses was proper, as it is clear that the circuit judge weighed the possible prejudice to petitioner before ruling, even if he did not explicitly cite Rule 403. In fact, the circuit court ruled that the presentation of the petitioner's tattoos was proper but that the State could not have the witnesses provide a full positive identification in open court.

"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. 1, State v. Harris, 216 W.Va. 237, 605 S.E.2d 809 (2004) (internal citations omitted). Moreover, this Court has addressed the presentation of a defendant's tattoos to a witness and the jury, stating:

Ordinarily, it is not an abuse of discretion for a trial court in a criminal case to direct the accused to reveal or display the accused's tattoos to a witness and to the jury at trial, where the accused's tattoos are relevant to the question of the identification ofthe perpetrator of the offense and where the trial court has weighed the probative value of such evidence against the danger of unfair prejudice, etc., pursuant to Rules 401, 402 and 403 of the West Virginia Rules of Evidence.

Syl. Pt. 2, State v. Meade, 196 W.Va. 551, 474 S.E.2d 481(1996). In the present case, this Court finds that the circuit court did not abuse its discretion in allowing the publication of petitioner's tattoos for the purpose of identification. The circuit court limited the identification and the petitioner and his counsel had prior knowledge that the bank teller could identify him by his tattoos. Moreover, the identification was relevant.

Petitioner next argues that the circuit court abused its discretion in denying petitioner's motions for mistrial due to the State's witnesses characterization of the petitioner as the "defendant" and "Mr. Creamer" and that the repeated references had a cumulative and prejudicial effect on the jury whose sole duty was to determine identity. Petitioner argues that neither bank teller was able to make an out-of-court identification of the petitioner, but testified that it was the "defendant" and "Mr. Creamer" who attempted to cash fraudulent checks on several occasions. Petitioner argues that any cautionary instruction could not "cure the taint of substantial likelihood of improper influence upon the jury."

The State argues that the circuit court properly denied the motions for mistrial as petitioner failed to demonstrate that any references to the perpetrator as the "defendant" or "Mr. Creamer" had a prejudicial effect upon the jury. After the initial use of the word "defendant" in reference to petitioner, the circuit court gave a cautionary instruction. Petitioner did not object to the first use of "Mr. Creamer" but the court did give another limiting instruction, stating "ladies and gentlemen of the jury, again, the question of identity is one for you all to decide." Defense counsel indicated that the instruction was sufficient. Petitioner later moved for a mistrial based on the identifications of witnesses, but the circuit court denied the same, as no witness had made an actual in-court identification, and the statements were made spontaneously and not in reference to identification questions by the State. The State argues that the circuit court did not abuse its discretion in these rulings.

This Court has stated that:

The decision to declare a mistrial, discharge the jury and order a new trial in a criminal case is a matter within the sound discretion of the trial court. State v. Craft, 131 W.Va. 195, 47 S.E.2d 681 (1948). A trial court is empowered to exercise this discretion only when there is a "manifest necessity" for discharging the jury before it has rendered its verdict. W.Va.Code § 62-3-7 (1977 Replacement Vol.). This power of the trial court must be exercised wisely; absent the existence of manifest necessity, a trial court's discharge of the jury without rendering a verdict has the effect of an acquittal of the accused and gives rise to a plea of double jeopardy. See State ex rel. Brooks v. Worrell, 156 W.Va. 8, 190 S.E.2d 474 (1972); State ex rel. Dandy v. Thompson, 148 W.Va. 263, 134 S.E.2d 730, cert. denied, 379 U.S. 819, 85S.Ct. 39, 13 L.Ed.2d 30 (1964); State v. Little, 120 W.Va. 213, 197 S.E. 626 (1938).

State v. Williams, 172 W.Va. 295, 304, 305 S.E.2d 251, 260 (1983). In the present case, the circuit court properly gave a limiting instruction to the jury, and informed them that the identification of the perpetrator was their decision. Moreover, the witnesses were not asked identification questions. Petitioner has not shown that the circuit court abused its discretion.

Next, petitioner argues that the circuit court committed plain error by allowing witnesses to identify petitioner by his tattoos as this constituted substantial surprise as he was assured by the State prior to trial that no in-court identifications would be made. Petitioner argues that at least one of the bank tellers had not disclosed to the police that she could identify the perpetrator by his...

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