State v. Day
| Decision Date | 19 July 1994 |
| Docket Number | No. 21884,21884 |
| Citation | 447 S.E.2d 576,191 W.Va. 641 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia, Plaintiff Below, Appellee, v. Eric DAY, Defendant Below, Appellant. |
Syllabus by the Court
1. "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." Syllabus Point 3, State v. Casdorph, 159 W.Va. 909, 230 S.E.2d 476 (1976).
2. "Under the sixth amendment of the federal constitution and article III, section 14 of the West Virginia Constitution, unless an individual convicted of a misdemeanor was represented by counsel or knowingly and intelligently waived the right to counsel, such prior conviction may not be used to enhance a sentence of imprisonment for a subsequent offense." Syllabus Point 1, State v. Armstrong, 175 W.Va. 381, 332 S.E.2d 837 (1985).
3. Syllabus Point 7, State v. Davis, 176 W.Va. 454, 345 S.E.2d 549 (1986).
Larry Frail, Pros. Atty. for Raleigh County, Kristen L. Keller, Chief Deputy Pros. Atty., Beckley, for appellee.
Warren R. McGraw, II, Beckley, for appellant.
Eric Day appeals his five convictions of shoplifting, third offense and the fines imposed as part of his sentence. On appeal Mr. Day alleges that his convictions should be reversed because he was unrepresented by counsel during one of his prior convictions used to enhance his sentence and that the shoplifting statute unconstitutionally imposes a fine of double the value of the merchandise taken. Because Mr. Day's allegations are without merit, we affirm both his convictions and the fines imposed as part of his sentence.
Mr. Day was charged with five separate incidents of shoplifting. On July 25, July 26, August 3 and August 14, 1992, Mr. Day allegedly shoplifted cartons of cigarettes and in a separate incident on August 14, 1992, Mr. Day allegedly shoplifted two twelve-packs of beer. The State presented videotapes of the July 25, August 3 and August 14, 1992 (beer) incidents showing Mr. Day shoplifting. On July 26, 1992, Mr. Day was stopped leaving the store with the cigarettes by the store's security guards and in the other incident on August 14, 1992, Mr. Day was recognized by the store clerk from his earlier store visits. In each instance, Mr. Day was positively identified as the person who shoplifted.
Mr. Day was charged and convicted by a jury of five counts of third offense shoplifting and one count of obstructing an officer. Each of the five counts of third offense shoplifting alleged that Mr. Day's first two convictions for shoplifting occurred on January 21, 1992 and March 9, 1992. On January 21, 1992, Mr. Day, who was represented by a public defender, pled guilty to a second offense shoplifting for a November 27, 1991 theft from a grocery store and was sentenced to six months and one day. On March 9, 1992, while serving his sentence for his January 21, 1992 conviction, Mr. Day, who this time was not represented by counsel, was taken before a magistrate and pled guilty to first offense shoplifting, a misdemeanor, for a theft from a Super America store that occurred on December 26, 1991. 1 On March 9, 1992, Mr. Day was fined and returned to jail to complete his sentence for his January 21, 1992 conviction.
After the jury found Mr. Day guilty, Mr. Day was sentenced to terms of 1 to 10 years, for each of the five third offense shoplifting convictions, with the sentences for two convictions to run consecutively and the sentences for the remaining three convictions to run concurrently with the other sentences, for an effective sentence of two to twenty years. 2 Mr. Day was fined $500 on each shoplifting conviction, the costs of the proceeding and the greater of either $50.00 or double the value of the merchandise taken for each conviction. 3 According to Mr. Day's petition for appeal, the following additional mandatory fines were imposed: $160.00 for the first conviction; $64.72 for the second conviction; $76.00 for the third conviction; $164.90 for the fourth conviction; and, $50.00 for the fifth conviction.
Following the denial of Mr. Day's motion for a new trial, Mr. Day appealed to this Court alleging the following assignments of error: (1) a photographic lineup unfairly depicting the defendant should not have been admitted; (2) a proper chain of custody was not established for the videotapes showing the defendant taking various items; (3) the State improperly used a prior shoplifting conviction during which Mr. Day was not represented by counsel to enhance his sentence; and (4) the mandatory fine of the greater of either $50.00 or double the value of the shoplifted item is an unconstitutional taking without due process.
Mr. Day alleges that the circuit court should not have admitted a photographic lineup in which Mr. Day's photograph was centered but the other individuals in the lineup were off-center or "slipped to the left." The circuit court considered the matter during an in camera hearing where the State informed the Court that the photographs were not off-center when the witnesses originally saw them; rather, the photographs slipped in the frame when they were carried around. After viewing the photographs, the circuit court found that the photographs were not "improperly suggestive ... they are all black persons; there are mustaches, or appearance of mustaches, in all of them; they're all dressed reasonably similar...."
The witnesses who had been shown the photograph lineup, testified that they recognized Mr. Day during the shoplifting incidents. One witness had known Mr. Day for over a year and a half, had talked to him when he entered the store and had watched Mr. Day take the cigarettes. The videotape of this incident showed Mr. Day taking the cigarettes. The other witness said she had seen Mr. Day in her store at least three times before the crime. In fact, this witness stood right next to Mr. Day talking and even arguing with him before Mr. Day grabbed the cigarettes and fled pushing her out of the way. This witness identified Mr. Day on a videotape of another incident before the tape showed Mr. Day shoplifting.
Even though the circuit court did not consider the off-center photographs to be suggestive, the jury was instructed to view the "totality of the circumstances" to determine if Mr. Day's identification was reliable.
Our rule for determining when a witness' out-of-court identification is so tainted that a suppression of an in-court identification is required was stated in Syl. pt. 3, State v. Casdorph, 159 W.Va. 909, 230 S.E.2d 476 (1976):
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.
In accord Syl. pt. 1, State v. Brown, 177 W.Va. 633, 355 S.E.2d 614 (1987); Syl. pt. 2, State v. Gravely, 171 W.Va. 428, 299 S.E.2d 375 (1982); Syl. pt. 6, State v. Demastus, 165 W.Va. 572, 270 S.E.2d 649 (1980); Syl. pt. 1, State v. Williams, 162 W.Va. 348, 249 S.E.2d 752 (1978).
In this case, the circuit court determined that procedures were not suggestive and allowed the jury to consider the in-court identification's reliability. See State v. Payne, 167 W.Va. 252, 262-63, 280 S.E.2d 72, 78-79 (1981). The record indicates that the witnesses' out-of-court and in-court identifications were not based on the off-centered photographs. We note that there was sufficient evidence to justify the jury's determination that the in-court identifications were reliable. We find no reversible error in the circuit court's refusal to suppress the photographs.
Mr. Day alleges that the videotapes of the shoplifting incidents should have been suppressed because the State failed to establish a proper chain of custody because various officers with the Beckley City Police Department had keys to the tape storage room. Officer Tipton of the Beckley City Police Department testified that except when the videotapes were viewed, they had been in the Department's secured evidence area or in his care, custody and control. Officer Tipton also testified that he "watched them [the videotapes] before they left the stores, and I've watched them since, and it's [sic] the same." Based on Officer Tipton's testimony that the videotapes had not been altered or changed, the circuit court admitted the videotapes into evidence.
In this case we find that the videotapes were properly admitted given Officer Tipton's testimony that the videotapes had not been altered or changed.
Mr. Day maintains that the State improperly used his March 9, 1992 shoplifting conviction, during which he was not represented by counsel, for enhancement...
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