State v. Flint

• Decision Date: 11 March 1983
• Docket Number: No. 15248,15248
• Citation: 171 W.Va. 676,301 S.E.2d 765
• Parties: STATE of West Virginia v. Charles Richard FLINT.
• Court: West Virginia Supreme Court

Page 765

301 S.E.2d 765

171 W.Va. 676

STATE of West Virginia v. Charles Richard FLINT.

No. 15248.

Supreme Court of Appeals of West Virginia.

March 11, 1983.

Syllabus by the Court

1. "An initial police inquiry which calls into question a seizure of the person issue will ordinarily relate to some criminal investigation procedure and must originate from some suspicious circumstance involving the defendant. In determining the threshold question of whether the defendant has been seized, we look to the intensity of the initial inquiry. The less intense the initial inquiry the less likely that a seizure will be found. The intensity of the inquiry will determine whether the initial threshold of 'seizure' has been crossed. This is because the intensity of the inquiry will govern when a reasonable person would believe that he was not free to leave the initial police encounter." Syllabus point 1, State v. Boswell, 170 W.Va. 433, 294 S.E.2d 287 (1982).

2. "An automobile may be stopped for some legitimate state interest. Once the vehicle is lawfully stopped for a legitimate state interest, probable cause may arise to believe the vehicle is carrying weapons, contraband or evidence of the commission of a crime, and, at this point, if exigent circumstances are present, a warrantless search may be made." Syllabus point 4, State v. Moore, 165 W.Va. 837, 272 S.E.2d 804 (1980).

3. "A furtive gesture on the part of the occupant of a vehicle is ordinarily insufficient to constitute probable cause to search a vehicle if it is not coupled with other reliable causative facts to connect the gesture to the probable presence of contraband or incriminating evidence." Syllabus point 5, State v. Moore, 165 W.Va. 837, 272 S.E.2d 804 (1980).

4. Once a fugitive has been brought within the jurisdiction of West Virginia as the demanding state, the propriety of the extradition proceedings which occurred in the asylum state may not be challenged. The extradition proceedings may be challenged only in the asylum state.

5. "Where multiple homicides occur even though they are in close proximity in time, if they are not the result of a single volitive act of the defendant, they may be tried and punished separately under the double jeopardy clause of Article III, Section 5 of the West Virginia Constitution." Syllabus point 2, State ex rel. Watson v. Ferguson, 166 W.Va. 337, 274 S.E.2d 440 (1980).

6. It is not error for a trial judge to preside over more than one criminal case involving the same defendant even though some of the facts are the same in each of the cases.

7. "When a trial judge is made aware of a possible problem with defendant's competency, it is abuse of discretion to deny a motion for psychiatric evaluation." Syllabus point 4, State v. Demastus, 165 W.Va. 572, 270 S.E.2d 649 (1980).

8. "In a criminal case, the granting or denial of a motion for continuance rests in the sound discretion of the trial court and the refusal to grant such continuance constitutes reversible error only where the discretion is abused." Syllabus point 4, State v. Milam, 159 W.Va. 691, 226 S.E.2d 433 (1976).

9. "The discretion of the trial court in ruling on the propriety of argument by counsel before the jury will not be interfered with by the appellate court, unless it appears that the rights of the complaining party have been prejudiced, or that manifest injustice resulted therefrom." Syllabus point 3, State v. Boggs, 103 W.Va. 641, 138 S.E. 321 (1927).

Jesser & Harrington, Travers R. Harrington, Jr. and Frederick A. Jesser, III, Fayetteville, for appellant.

Chauncey H. Browning, Jr., Atty. Gen., and S. Clark Woodroe, Asst. Atty. Gen., Charleston, for appellee.

McHUGH, Justice:

This action is before this Court upon the appeal of Charles Richard Flint, the appellant, from a judgment of the Circuit Court of Fayette County, West Virginia, which found him guilty of first degree murder. The appellant was sentenced to life imprisonment, without recommendation of mercy, in the West Virginia State Penitentiary. This Court has before it the petition for appeal, all matters of record, and the briefs and oral argument of counsel.

In this appeal the appellant asserts seven errors. ¹ Those assertions are: (1) the trial court erred in denying appellant's motion to suppress evidence relating to a .25 caliber Beretta pistol which was found as a result of a warrantless search of an automobile in which the appellant was a passenger; (2) the trial court erred in denying appellant's motion to dismiss the charge of murder against him because he was extradited from Nevada to West Virginia without the benefit of counsel; (3) the trial court erred in denying appellant's motion to dismiss the charge of murder because the trial was the second of two murder trials, both of which arose from a single transaction thereby violating state and federal constitutional prohibitions against double jeopardy; (4) the trial court erred in denying the appellant's motion of recusal of the trial judge; (5) the trial court erred in denying appellant's motion for a psychiatric evaluation; (6) the trial court erred in denying appellant's motion for a continuance in order that he might secure an expert witness on the issue of handwriting identity; (7) the trial court erred in allowing the prosecution, during closing arguments, to argue facts which were not supported by the evidence.

On September 21, 1978, the appellant took, at gunpoint, a certain sum of money from Otis Kinder, the owner of the Layland Grocery, and then fatally wounded Kinder. As the appellant fled the premises, he encountered Lloyd Andrew Smith on the parking lot adjacent the grocery. The appellant then shot Smith and took Smith's automobile.

On October 1, 1978, Officer O.C. Pigford of the Las Vegas, Nevada Metropolitan Police Department, observed an automobile with out-of-state license plates being driven in an erratic manner on an East Las Vegas highway. After following the automobile for a distance of one to two long blocks the officer decided, in order to determine the condition of the driver, to stop the automobile and make an inquiry. After activating his flashing lights and siren the officer saw a passenger, who later was determined to be the appellant, make certain gestures. Those gestures included taking an object either from his waistband or pocket, leaning over and placing it beneath the front seat where he was sitting. After stopping the automobile the officer asked the driver, the appellant and the other passenger to exit and produce identification, which they did. The officer took this information and checked to see if there were any outstanding warrants against any of them. A few minutes later the officer received information that the appellant was wanted in West Virginia for "unlawful killing with a gun." Upon placing the appellant under arrest the officer looked under the front seat of the automobile and found a .25 caliber Beretta pistol.

Following the arrival of another patrol car the appellant was placed in custody. The driver and other passenger were allowed to resume their journey. A citation was not issued to the driver.

While in the custody of the Nevada authorities, the appellant was extradited to West Virginia. Although he contends he requested to be represented by counsel during the extradition proceedings, appellant's requests were denied.

The appellant was returned to Fayette County, West Virginia, and was tried and convicted in May, 1979, of the murder of Otis Kinder. In March, 1980, the appellant was tried and convicted of the murder of Lloyd Andrew Smith before the same judge who had presided over appellant's earlier murder trial of Kinder. It is from appellant's second murder conviction that he now appeals to this Court.

I The Warrantless Search

Appellant's first assertion is that the trial court erred in denying his motion to suppress evidence relating to the .25 caliber Berretta pistol which was found as a result of a warrantless search of the automobile in which the appellant was a passenger. Appellant relies on the Fourth Amendment to the United States Constitution ² and Article III, Section 6 of the West Virginia Constitution ³ and cites three reasons why evidence relating to the pistol should have been suppressed. First, probable cause did not exist to stop the automobile. Second, the requirement that the appellant exit the vehicle and produce identification amounted to an impermissible seizure. Third, the search of the automobile which produced the pistol was unreasonable.

The appellant's first reason why the pistol should not have been admitted into evidence is that probable cause did not exist to initially stop the automobile in which he was a passenger. The facts indicate that the automobile was being driven in an erratic manner on a public highway. The officer testified that in the interest of public safety he stopped the vehicle to check on the condition of the driver to determine if he was driving under the influence of alcohol.

The same issue was before the Florida Court in State v. Gustafson, 258 So.2d 1 (Fla.1972), aff'd 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973). The facts in that case were that an automobile driven by the defendant was observed by a police officer to be weaving across the lane markers into another traffic lane. The officer stopped the vehicle "to find out why he had been driving that way, if he had been drinking or something." 258 So.2d at 2. The Florida Court held that the weaving movement of the vehicle created a reasonable suspicion which would indicate that the driver was intoxicated, and as such constituted probable cause for stopping the vehicle.

This Court in syllabus point 4 of State v. Moore, 165 W.Va. 837, 272 S.E.2d 804 (1980), held, in part: "An automobile may be stopped for some legitimate state interest." The legitimate state interest in the case now before us is that the safety of the public necessitated the stopping...