State v. Dobbs, 13985

• Citation: 163 W.Va. 630,259 S.E.2d 829
• Decision Date: 06 November 1979
• Docket Number: No. 13985,13985
• Court: Supreme Court of West Virginia
• Parties: STATE of West Virginia v. Joseph DOBBS.

Page 829

259 S.E.2d 829

163 W.Va. 630

STATE of West Virginia v. Joseph DOBBS.

No. 13985.

Supreme Court of Appeals of West Virginia.

Nov. 6, 1979.

Dissenting Opinion Nov. 14, 1979.

Syllabus by the Court

1. "In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done." Syllabus Point 1, State v. Starkey, W.Va., 244 S.E.2d 219 (1978).

2. Circumstantial evidence will not support a guilty verdict, unless the fact of guilt is proved to the exclusion of every reasonable hypothesis of innocence; and circumstances which create only a suspicion of guilt but do not prove the actual commission of the crime charged, are not sufficient to sustain a conviction.

3. " 'If, on a trial for murder, the evidence is wholly circumstantial, but as to time, place, motive, means and conduct, it concurs in pointing to the accused as the perpetrator of the crime, he may properly be convicted.' State v. Beale, 104 W.Va. 617 (141 S.E. 7)." Syllabus Point 1, State v. Bailey, 151 W.Va. 796, 155 S.E.2d 850 (1967).

Franklin D. Cleckley, Morgantown, for plaintiff in error.

Chauncey H. Browning, Atty. Gen., Richard L. Earles, Asst. Atty. Gen., Charleston, for defendant in error.

HARSHBARGER, Justice:

In the early afternoon of Sunday, November 4, 1974, Alfred Stewart was in his office at the May Company in Fairmont, West Virginia. His wife telephoned him at about 1:00 p. m. and he exclaimed that he was being robbed, whereupon she called the police, and friends who owned a sandwich shop near the office. They found Stewart dead with a bullet wound in his chest.

On January 27, 1975 at 1:00 a. m. two Clarksburg patrolmen noticed Joseph Dobbs driving an automobile with unique markings that attracted their attention, and watched him park it and enter a hotel. An hour later they were called to police headquarters because a young man had reported that he was molested by Dobbs. He said Dobbs offered him marijuana and had a revolver in his car. When the officers accompanied the young man to the hotel Dobbs attempted to hide, but the policemen stopped and searched him. They found a bag protruding from his pocket and smelled marijuana. Dobbs gave them the bag and was arrested for possession of a controlled substance.

As the police were taking Dobbs to headquarters, they passed the parked car and one patrolman saw a similar bag on the car floor.

At the police station Dobbs telephoned his niece in Fairmont, who owned the car, advising her to come for it, and by 3:00 a. m. two men arrived to get it. In the meantime, a narcotics agent had been summoned and while the two men were sent to the county jail for the auto's keys, the agent and a patrolman searched the car. The bag they had seen was empty; but they found a pistol under the front seat. The weapon was later identified by a ballistics expert as the weapon used to kill Alfred Stewart.

Joseph Dobbs was indicted for Stewart's murder and was found guilty of first degree murder with recommendation of mercy by a Marion County jury. He was sentenced to life in prison and we granted his motion for a writ of error and supersedeas.

The evidence essentially was this: the deceased's sister testified that, based upon her familiarity with May Company records through employment there as a bookkeeper, $464.00 was missing from the daily balance. Police photographs of the scene showed Stewart's body, and papers strewn about the office. However, the only two identifiable fingerprints obtained were Stewart's.

The State also presented three witnesses who were waiting for a bus in front of the office building when Stewart was killed. They had seen two black men enter and leave the building, and described articles of the men's clothing with particularity. One said the taller man was clean-shaven with an African hair style, and the shorter had a thin mustache. None of the three could positively identify Dobbs.

Several defense witnesses testified that they saw defendant on various occasions during 1974 and early 1975, and that during that time he was bearded. The defense introduced a photograph of the bearded defendant taken in August, 1974 by his niece who testified that the photograph represented his general appearance during that year. On rebuttal the State called a witness who testified to having seen Dobbs at 5:00 a. m. on November 5, 1974, without a beard, and a photograph which the witness had taken at that time and which portrayed defendant as beardless, was introduced.

The niece, owner of the car, testified that she loaned it to Dobbs around January 27, 1975; that she loaned it to various relatives and friends from time to time; that she did not consistently lock her car; and, that she had not cleaned it nor looked under the seats since July, 1974. Her husband testified that he had never placed nor seen anyone else place a gun in the car.

Three young men testified they were involved in an incident with defendant in July of 1974, wherein one of the men who lived and worked with him took his pistol. The other two saw it before it was returned to Dobbs. The witness who had taken it testified that it was the murder weapon, but recanted on cross-examination, stating that it "looked like" the murder weapon but that defendant's piece had less rust on it. One of the other witnesses testified that the guns were the same, the third testified that it "looked like" the same one but qualified his testimony by advising that it was dark when he saw it.

Another prosecution witness testified that he had seen the "butt part" of a pistol that defendant had told him was "my .38" in January of 1975, and that it "looked like" the murder weapon.

The evidence about the weapon and about defendant's race and beard is that upon which the State relied for conviction.

The burden is always on the state to establish by sufficient evidence, guilt beyond a reasonable doubt. State v. Scurlock, 99 W.Va. 629, 130 S.E. 263 (1925). As this Court wrote in Pinkerton v. Farr, W.Va., 220 S.E.2d 682, 688 (1975), "A lesser standard does not afford an accused due process of law under the Fourteenth Amendment."

In West Virginia, the standard guiding review of sufficiency of evidence is:

In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done. Syllabus Point 1, State v. Starkey, W.Va., 244 S.E.2d 219 (1978).

This standard applies to trial courts' consideration of motions for directed verdicts and to this Court. See Addair v. Majestic Petroleum Co., Inc., W.Va., 232 S.E.2d 821, 824 (1977).

Moreover, in cases involving sufficiency of circumstantial evidence, there is an additional standard set in State v. Noe, W.Va., 230 S.E.2d 826 at 829 (1976):

(C)ircumstantial evidence will not support a guilty verdict unless the fact of guilt is proved to the exclusion of every reasonable hypothesis of innocence; and circumstances which create a mere suspicion of guilt but do not prove the actual commission of the crime charged, are not sufficient to sustain a conviction. See State v. Allen, 139 W.Va. 818, 82 S.E.2d 423 (1954); State v. Clay, 135 W.Va. 618, 64 S.E.2d 117 (1951); State v. Cutlip, 131 W.Va. 141, 46 S.E.2d 454 (1948); State v. Hudson, 128 W.Va. 655, 37 S.E.2d 553 (1946); State v. Kapp, 109 W.Va. 487, 155 S.E. 537 (1930); State v. Snider, 106 W.Va. 309, 145 S.E. 607 (1928); State v. Ison, 104 W.Va. 217, 139 S.E. 704 (1927); State v. Whitehead, 104 W.Va. 545, 140 S.E. 531 (1927); and State v. Hunter, 103 W.Va. 377, 137 S.E. 534 (1927).

In Noe, we emphasized the necessity for caution in circumstantial evidence cases.

The record here is long; there were many witnesses. But there is a paucity of relevant, probative evidence. Ten witnesses testifying to a fact that has little or no probative value, do not by their repetitions make it more important. Here defendant's guilt pends upon proof of a material issue his identification, or more particularly, his presence at the scene of the crime. An infinite number of witnesses testifying to having seen two black men near the scene at the time of the shooting could not improve the value of this evidence as identification of this particular defendant. And proof of his ownership/possession of the murder instrument does not carry the State's heavy burden.

The State must prove that a defendant was present at the place and time a crime was committed, if personal presence is essential to proof of the act. See State v. Pendry, W.Va., 227 S.E.2d 210 (1976); State v. Withrow, 142 W.Va. 522, 96 S.E.2d 913 (1957). Evidence that black men (whether bearded or not) were at the scene was not enough. Evidence that a black owned the murder weapon is not enough to put him at the scene.

State v. Bailey, 151 W.Va. 796, 155 S.E.2d 850 (1967), provides another construct through which to view this evidence, holding in Syllabus Point One "If, on a trial for murder, the evidence is wholly circumstantial, but as to time, place, motive, means and conduct, it concurs in pointing to the accused as the perpetrator of the crime, he may properly be convicted." When this standard is applied, the State's evidence...