State v. Davis

Decision Date25 March 1986
Docket NumberNo. 16433,16433
Citation345 S.E.2d 549,176 W.Va. 454
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia v. Larry Darnell DAVIS.

Syllabus by the Court

1. "The granting of a continuance is a matter within the sound discretion of the trial court, though subject to review, and the refusal thereof is not ground for reversal unless it is made to appear that the court abused its discretion, and that its refusal has worked injury and prejudice to the rights of the party in whose behalf the motion was made." Syl. pt. 1, State v. Jones, 84 W.Va. 85, 99 S.E. 271 (1919).

2. "An affidavit in support of an application for a search warrant which contains information that antedates, and is totally independent of, information learned from an unconstitutional search, may still be the basis upon which a valid search warrant may issue, if the information in the affidavit, excluding that information attributable to the unconstitutional search, is sufficient to justify a finding of probable cause." Syl. pt. 9, State v. Peacher, 167 W.Va. 540, 280 S.E.2d 559 (1981).

3. "A pretrial identification by photograph will be set aside if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification." Syl. pt. 4, State v. Harless, 168 W.Va. 707 , 285 S.E.2d 461 (1981).

4. "Even though there is an impermissibly suggestive pretrial photographic array, an in-court identification could be made if the identifying witness has a reliable basis for making an identification of the defendant which basis is independent of the tainted pretrial identification procedures." Syl. pt. 5, State v. Harless, 285 S.E.2d 461 (W.Va.1981).

5. "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 witnesses 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, 159 W.Va. 909, 230 S.E.2d 476 (1976).

6. "Where improper evidence of a non-constitutional nature is introduced by the State in a criminal trial, the test to determine if the error is harmless is: (1) the inadmissible evidence must be removed from the State's case and a determination made as to whether the remaining evidence is sufficient to convince impartial minds of the defendant's guilt beyond a reasonable doubt; (2) if the remaining evidence is found to be insufficient, the error is not harmless; (3) if the remaining evidence is sufficient to support the conviction, an analysis must then be made to determine whether the error had any prejudicial effect on the jury." Syl. pt. 2, State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979).

7. "Error in the admission of testimony to which no objection was made will not be considered by this Court on appeal or writ of error, but will be treated as waived." Syl. pt. 4, State v. Michael, 141 W.Va. 1, 87 S.E.2d 595 (1955).

8. "The extent of cross-examination of a witness is a matter within the sound discretion of the trial court; and in the exercise of such discretion, in excluding or permitting questions on cross-examination, its action is not reviewable except in case of manifest abuse or injustice." Syl. pt. 4, State v. Carduff, 142 W.Va. 18, 93 S.E.2d 502 (1956).

9. The extent to which prior convictions may be introduced to impeach the credibility of a witness other than the defendant in a criminal trial rests within the sound discretion of the trial court.

10. " 'Upon motion to direct a verdict for the defendant, the evidence is to be viewed in light most favorable to prosecution. It is not necessary in appraising its sufficiency that the trial court or reviewing court be convinced beyond a reasonable doubt of the guilt of the defendant; the question is whether there is substantial evidence upon which a jury might justifiably find the defendant guilty beyond a reasonable doubt.' State v. West, 153 W.Va. 325, 168 S.E.2d 716 (1969)." Syl. pt. 1, State v. Fischer, 158 W.Va. 72, 211 S.E.2d 666 (1974).

11. "Instructions in a criminal case that are confusing, misleading, or incorrectly state the law should not be given." Syl. pt. 3, State v. Bolling, 162 W.Va. 103, 246 S.E.2d 631 (1978).

12. "The verdict of a jury in a criminal case should be read in connection with the indictment, and, if the meaning of the verdict is thus made certain, it is sufficiently definite." Syl. pt. 2, State v. Arbruzino, 67 W.Va. 534, 68 S.E. 269 (1910).

13. Under West Virginia Code § 62-12-2(c)(1) (1984 Replacement Vol.), the commission or attempted commission of a felony with the use, presentment, or brandishment of a firearm must be clearly stated in the indictment or presentment by which a person is charged and must be found by the jury upon submission of a special interrogatory for such purpose in order to make any person ineligible for probation upon conviction in a jury trial of a felony prosecution.

14. "In the determination of a claim that an accused was prejudiced by ineffective assistance of counsel violative of Article III, Section 14 of the West Virginia Constitution and the Sixth Amendment to the United States Constitution, courts should measure and compare the questioned counsel's performance by whether he exhibited the normal and customary degree of skill possessed by attorneys who are reasonably knowledgeable of criminal law, except that proved counsel error which does not affect the outcome of the case, will be regarded as harmless error." Syl. pt. 19, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).

Robert S. Baker, Beckley, for appellant.

Silas B. Taylor, Deputy Atty. Gen., Charleston, for appellee.

McGRAW, Justice:

The appellant, Larry Darnell Davis, appeals from his conviction of aggravated robbery in the Circuit Court of Raleigh County. His various assignments of error are as follows: (1) the failure to grant his motion for continuance made immediately before trial; (2) the admission of clothing seized from his home pursuant to a search warrant obtained following a warrantless search of the premises; (3) the permission of an in-court identification by a witness who had participated in an allegedly constitutionally deficient photographic lineup; (4) the admission of a store audit showing the amount taken in the robbery over a hearsay objection; (5) the allowance of lengthy fingerprint testimony despite his stipulation to the use of a crime scene telephone booth from which the fingerprints were taken; (6) the limitation of cross-examination conducted by defense counsel; (7) the refusal to admit testimony concerning a statement made by trial counsel at the scene of a search; (8) the failure to permit impeachment by prior felonies of the appellant's alleged accomplice who testified against him pursuant to a plea arrangement; (9) the refusal to direct a verdict of the appellant at the close of all the evidence; (10) the failure to give an alibi instruction and the refusal to give a motive instruction; (11) the failure to submit a verdict form to the jury; (12) the failure to consider probation as an alternative to imprisonment; and, (13) unconstitutionally ineffective assistance of counsel. Following a brief recitation of the circumstances which formed the basis for this prosecution, we will address each of these assignments of error.

At approximately 8:00 a.m. on Sunday, September 13, 1981, Levi Cobb, a Beckley paperboy, upon entering a local 7-Eleven, noticed a black male dressed in an army jacket and hood exit a tan four-door Chevette hatchback, driven by another black male, and enter a telephone booth, after the car had pulled onto an Exxon service station lot across the street. Cobb testified that the reason he noticed this man was that he thought his attire inappropriate given the weather on that particular day. In any event, after Cobb left the 7-Eleven a few minutes later, following consumption of a hot chocolate, he observed that this individual was still standing in the telephone booth, and that the man was now wearing gloves.

A few minutes after Cobb's departure, Ida Mae Lilly, sales clerk at the 7-Eleven, testified that a black male, approximately six feet tall, wearing an army jacket, hood, and sunglasses entered the store. After surveying each of the three aisles, Lilly testified that the man asked for a paper bag. When Lilly, who had been cleaning in front of the counter, started around the counter to comply with this request, the man followed her, informed her that he wanted all her money, directed her to open the register, ordered her to lie still on the floor or he would blow her brains out, and emptied the register and a petty cash box. Lilly stated that no gun was visible, but that the assailant kept one hand in his jacket pocket. Neither Cobb nor Lilly was able to identify the appellant as the robber at trial.

Cynthia Applegate, a passenger in a car stopped at a light located at the intersection of two streets which bordered and divided the 7-Eleven and the Exxon lots, testified that, at approximately 8:30 a.m. that morning, she observed a heavily dressed black male, wearing a green jacket, hood, and sunglasses, walking briskly in her direction from the 7-Eleven to the Exxon station, carrying a white bag. She stated that although she observed this individual for two to three minutes while parked at the light, she never saw him fully in the face, noticing only that he had facial hair. After the light turned green,...

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