State v. England

• Decision Date: 16 September 1988
• Docket Number: No. 18009,18009
• Citation: 376 S.E.2d 548,180 W.Va. 342
• Parties: STATE of West Virginia v. Bryson J. ENGLAND, Jr.
• Court: West Virginia Supreme Court

Page 548

376 S.E.2d 548

180 W.Va. 342

STATE of West Virginia v. Bryson J. ENGLAND, Jr.

No. 18009.

Supreme Court of Appeals of West Virginia.

Sept. 16, 1988.

Syllabus by the Court

1. "At common law, the definition of robbery was (1) the unlawful taking and carrying away, (2) of money or goods, (3) from the person of another or in his presence, (4) by force or putting him in fear, (5) with intent to steal the money or goods." Syllabus Point 1, State v. Harless, 168 W.Va. 707, 285 S.E.2d 461 (1981).

2. "Animus furandi, or the intent to steal or to feloniously deprive the owner permanently of his property, is an essential element in the crime of robbery." Syllabus Point 2, State v. Hudson, 157 W.Va. 939, 206 S.E.2d 415 (1974).

3. "Where a trial court gives, over objection, an instruction which incompletely states the law, and the defect is not corrected by a later instruction, the giving of such incomplete instruction constitutes reversible error where the omission involves an element of the crime." Syllabus, State v. Jeffers, 162 W.Va. 532, 251 S.E.2d 227 (1979).

4. The plain error doctrine contained in Rule 30 and Rule 52(b) of the West Virginia Rules of Criminal Procedure is identical. It enables this Court to take notice of error, including instructional error occurring during the proceedings, even though such error was not brought to the attention of the trial court. However, the doctrine is to be used sparingly and only in those circumstances where substantial rights are affected, or the truth-finding process is substantially impaired, or a miscarriage of justice would otherwise result.

5. Where an instruction is given which improperly defines the crime of aggravated robbery, but there is substantial evidence introduced proving such robbery, and the defendant admits a robbery occurred and relies solely on an alibi defense, such instructional error when not objected to at trial will not be subject to the plain error doctrine.

6. "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." Syllabus Point 3, State v. Boyd, 160 W.Va. 234, 233 S.E.2d 710 (1977).

7. A prosecutor may argue all reasonable inferences from the evidence in the record. It is unprofessional conduct for the prosecutor intentionally to misstate the evidence or mislead the jury as to the inferences it may draw.

8. "It is improper for a prosecutor in this State to 'assert 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 DR 7-106(C)(4) in part." Syllabus Point 3, State v. Critzer, 167 W.Va. 655, 280 S.E.2d 288 (1981).

9. "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." Syllabus Point 19, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).

10. "Where a counsel's performance, attacked as ineffective, arises from occurrences involving strategy, tactics and arguable courses of action, his conduct will be deemed effectively assistive of his client's interests, unless no reasonably qualified defense attorney would have so acted in the defense of an accused." Syllabus Point 21, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).

11. Where the record on appeal is inadequate to resolve the merits of a claim of ineffective assistance of counsel, we will decline to reach the claim so as to permit the defendant to develop an adequate record in habeas corpus.

12. The rule of the Board of Probation and Parole, C.S.R. § 92-1-4 (1983), to the extent that it prohibits parole eligibility on a life sentence under the aggravated robbery statute, W.Va. Code, 61-2-12, is invalid.

13. "Punishment may be constitutionally impermissible, although not cruel and unusual in its method, if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity, thereby violating West Virginia Constitution, Article III, Section 5 that prohibits a penalty that is not proportionate to the character and degree of an offense." Syllabus Point 5, State v. Cooper, 172 W.Va. 266, 304 S.E.2d 851 (1983).

14. "In determining whether a given sentence violates the proportionality principle found in Article III, Section 5 of the West Virginia Constitution, consideration is given to the nature of the offense, the legislative purpose behind the punishment, a comparison of the punishment with what would be inflicted in other jurisdictions, and a comparison with other offenses within the same jurisdiction." Syllabus Point 5, Wanstreet v. Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205 (1981).

Frank Helvey, Public Legal Services, Charleston, for Bryson J. England, Jr. Charles G. Brown, III, Atty. Gen., Silas B. Taylor, Dist. Atty. Gen., Charleston, for the State.

MILLER, Justice:

The defendant, Bryson J. England, Jr., was convicted of aggravated robbery by a Fayette County Circuit Court jury in March, 1984, and was sentenced to life imprisonment. On appeal, he cites as error: (1) a constitutionally deficient robbery instruction; (2) improper rebuttal testimony and summation by the State; (3) ineffective assistance of counsel; and (4) a sentence disproportionate to the crime committed. We find no prejudicial error, and affirm the conviction.

I.

This case arose out of a robbery at an Exxon service station on U.S. Route 19 south of Oak Hill. At 10:00 p.m. on November 28, 1983, the station attendant, Tracy Miller, observed a pick-up truck pass by the station and turn into a lane some yards away. A man soon appeared from the rear of the station with a dark ski mask over his face. He approached Mr. Miller and demanded the station's "money bag." When Mr. Miller said the money had already been picked up, the man drew a pistol from his pocket. He fired one shot toward the highway and announced that he was not "playing around."

Mr. Miller retrieved the money bag, which contained approximately $230 in cash, from a booth inside the station. The man asked if there was any more money, and punctuated his query with a second shot into the booth. When Mr. Miller gave assurances that there was no more money, the man instructed him to remain at the station, fired a third shot into the telephone, and ran from the station on foot.

The defendant was implicated in a statement obtained from Teresa Parish two days after the robbery. Ms. Parish lived with the defendant's brother, Robert, at a trailer in the Oak Hill area. Ms. Parish informed the police that on the night of the robbery the defendant was at the trailer with Robert and two other men, Jeff Adkins and David Watters. The foursome departed in Robert's pick-up truck between 9:00 p.m. and 12:00 a.m. On their return, Robert told Ms. Parish that he and each of the others had gotten $50, and that they "might start doing A.R.'s." ¹ Messrs. Adkins and Watters entered guilty pleas prior to the defendant's trial. ² They and Ms. Parish were offered as witnesses for the State.

The defendant relied on an alibi defense, in support of which he and Robert took the stand. His theory of the case, as consistently presented, was that Messrs. Adkins and Watters committed the robbery and attempted to implicate him to obtain a more favorable plea. The jury returned a guilty verdict on March 1, 1984, and the defendant was sentenced to life imprisonment by order dated July 12, 1984.

II.

We address first the defendant's contention that the jury instruction which defined the elements of aggravated robbery was deficient because it failed to set out all of the elements of the crime of robbery. W.Va. Code, 61-2-12, prohibits, inter alia, "robbery by partial strangulation or suffocation, or by striking or beating, or by other violence to the person, or by the threat or presenting of firearms, or other deadly weapon or instrumentality whatsoever[.]" State's Instruction No. 2 was drawn directly from the statute, and read as follows:

"The court instructs you that aggravated robbery is when a person commits robbery by partial strangulation or suffocation, or by striking or beating, or by other violence to the person, or by the threat or presenting of a firearms [sic] or other deadly weapon or instrumentality whatsoever."

We stressed in State v. Harless, 168 W.Va. 707, 285 S.E.2d 461 (1981), that W.Va. Code, 61-2-12, does not define "robbery." Rather, the statute merely differentiates between two classes of robbery and prescribes the penalty for each class. These classes are (1) "aggravated" robbery, or robbery by violence or threat, and (2) "nonaggravated" robbery, or robbery by any other means. The elements of robbery, unaffected by the statute, are derived from the common law as we summarized in Syllabus Point 1 of Harless:

"At common law, the definition of robbery was (1) the unlawful taking and carrying away, (2) of money or goods, (3) from the person of another or in his presence, (4) by force or putting him in fear, (5) with intent to steal the money or goods."

The intent to steal, an element of robbery, meant the intent to...