State v. Critzer

• Decision Date: 17 July 1981
• Docket Number: No. 14674,14674
• Citation: 167 W.Va. 655,280 S.E.2d 288
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Robert W. CRITZER.

Page 288

280 S.E.2d 288

167 W.Va. 655

STATE of West Virginia v. Robert W. CRITZER.

No. 14674.

Supreme Court of Appeals of West Virginia.

July 17, 1981.

Syllabus by the Court

1. "The prosecuting attorney occupies a quasi-judicial position in the trial of a criminal case. In keeping with this position, he is required to avoid the role of a partisan, eager to convict, and must deal fairly with the accused as well as the other participants in the trial. It is the prosecutor's duty to set a tone of fairness and impartiality, and while he may and should vigorously pursue the State's case, in so doing he must not abandon the quasi-judicial role with which he is cloaked under the law." Syl. pt. 3, State v. Boyd, W.Va., 233 S.E.2d 710 (1977).

2. "An attorney for the state may prosecute vigorously as long as he deals fairly with the accused; but he should not become a partisan, intent only on conviction. And, it is a flagrant abuse of his position to refer, in his argument to the jury, to material facts outside the record, or not fairly deducible therefrom." Syllabus, State v. Moose, 110 W.Va. 476, 158 S.E. 715 (1931).

3. It is improper for a prosecutor in this State to "(A)ssert his personal opinion as to the justness of a cause, as to the credibility of a witness ... or as to the guilt or innocence of the accused ...." ABA Code DR7-106(C) (4) in part.

4. "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. 3, State v. Casdorph, W.Va., 230 S.E.2d 476 (1976).

Marvin L. Downing and Jerry D. Moore, Frankling, for Critzer.

Chauncey H. Browning, Atty. Gen., Charles G. Brown, Deputy Atty. Gen., Charleston, for State.

PER CURIAM:

Robert Wilson Critzer appeals from an April 16, 1979 final order of the Circuit Court of Pendleton County, overruling his post-trial motions and sentencing him to confinement in the penitentiary upon a jury verdict finding him guilty of obtaining money by false pretenses in violation of W.Va.Code, 61-3-24.

Critzer contends the trial court erred in: (1) admitting an in-court identification of the defendant in view of the unduly suggestive pretrial identification procedures employed by law enforcement authorities; (2) refusing to grant his motion for a mistrial predicated on the inflammatory and prejudicial statements by the prosecuting attorney to the jury during closing argument; and, (3) overruling his motion for a judgment of acquittal based on the insufficiency of the evidence. We reverse the conviction and grant a new trial because of prosecutorial misconduct in closing argument. We affirm the trial court's rulings on the identification issue and do not address the question of the sufficiency of the evidence.

On the afternoon of January 12, 1979, Masel Byrd, the victim of the false pretense, received a telephone call at his residence from an individual who identified himself as Mr. Wilson, a private investigator employed by the Pendleton County Bank. Mr. Byrd was advised that money was being embezzled from his savings account by an employee of the bank, and it was requested that he assist the bank in apprehending the embezzler by immediately withdrawing $2,400.00 in particular denominations, which was to be promptly picked up at Mr. Byrd's residence by one of the bank's investigators who had been called in from out of state to assist in the investigation. Mr. Byrd agreed to cooperate, immediately went to the bank, withdrew the money as requested, and returned home. A short time later, Mr. Byrd received a second telephone call from the man identifying himself as Mr. Wilson and shortly thereafter a man posing as a bank investigator came to the Byrd home, obtained the $2,400.00 from Mr. Byrd and left.

On the afternoon in question Jed Sponaugle, an eighteen-year-old Pendleton County youth, was working in his father's store. Sponaugle testified that a light blue, late model Cadillac pulled into the church lot, turned around, and drove off. Immediately thereafter he saw a man walking up the street in the direction of the Byrd residence. Because it was very unusual to see a new Cadillac in this rural community, Sponaugle testified that he was led to pay particular attention to its movements. The Cadillac, with Virginia license plates, passed by the store at least a half dozen times, twice parking in the church lot next to the store. The second time the Cadillac stopped in the church parking lot Sponaugle spotted a man getting into the car. A short time later Sponaugle saw the car for the last time, heading east with three occupants.

Fifteen days later on January 17, 1979, Sponaugle was shown photographs of several persons. He selected the photograph of the defendant as possibly being the driver of the Cadillac but was unable to make a positive identification. He also identified the man he saw entering the car in the church parking lot as one Albert Kanney, who was a resident of Virginia.

Eleven days later on February 6, 1979, Sponaugle was brought to a Pendleton County Magistrate's Office to determine if he could identify Critzer as the driver. The defendant was handcuffed and was accompanied by three or four police officers at this "showup." Sponaugle positively identified Critzer as the driver. He testified that his identification was independent of the photographs and the prior confrontation. The defendant's motion to suppress was overruled, and Sponaugle made an in-court identification of the defendant.

Critzer's defense at trial was alibi. He was a resident of Winchester, Virginia when the crime was committed. He and his wife, and two other witnesses, a Mr. and Mrs. Finch, testified that he was in West Agusta, Virginia, assisting the Finch family in moving their residence on the day the crime was committed. On cross-examination the defendant admitted being an acquaintance of Albert Kanney, the man who was identified by Mr. Byrd as being the individual who received the $2,400.00, and who was also identified by Sponaugle as being the individual who was picked up in the church parking lot. He also admitted knowing of an individual who owned a late model Cadillac. The prosecution's theory of the case was that Critzer was the man who drove the car and telephoned Mr. Byrd identifying himself as an investigator by the name of Mr. Wilson. The prosecution argued that the defendant selected the surname Wilson because that was his middle name which he could easily remember.

We first consider the issue that requires us to reverse and remand for a new trial: the remarks of the prosecuting attorney during closing argument. Critzer contends that the prosecutor's remarks were not kept within the evidence and were made to inflame the jury and to induce a guilty verdict warped by prejudice. For its part, the State relies on the long and well-established rule that prosecutors are entitled to great latitude in closing arguments and it is only where improper remarks are clearly prejudicial or result in manifest injustice that reversal is proper. Syl. pt. 2, State v. Brewster, W.Va., 261 S.E.2d 77 (1979), quoting in part, Syl. pt. 1, State v. Dunn, W.Va., 246 S.E.2d 245 (1978); See also, Syl. pt. 8, State v. Reppert, 132 W.Va. 675, 52 S.E.2d 820 (1949), quoting, Syl. pt. 6, State v. Allen, 45 W.Va. 65, 30 S.E. 209 (1898); Syl. pt. 7, State v. Lewis, 133 W.Va. 584, 57 S.E.2d 513 (1949).

In State v. Boyd, W.Va., 233 S.E.2d 710 (1977), we discussed the role of a prosecuting attorney in a criminal case and emphasized that:

"The prosecuting attorney occupies a quasi-judicial position in the trial of a criminal case. In keeping with this position, he is required to avoid the role of a partisan, eager to convict, and must deal fairly with the accused as well as the other participants in the trial. It is the prosecutor's duty to set a tone of fairness and impartiality, and while he may and should vigorously pursue the State's case, in so doing he must not abandon the...