State v. Foddrell

• Citation: 165 W.Va. 540,269 S.E.2d 854
• Decision Date: 23 September 1980
• Docket Number: No. 14725,14725
• Court: Supreme Court of West Virginia
• Parties: STATE of West Virginia v. Walter Alphonzo FODDRELL.

Page 854

269 S.E.2d 854

165 W.Va. 540

STATE of West Virginia v. Walter Alphonzo FODDRELL.

No. 14725.

Supreme Court of Appeals of West Virginia.

Sept. 23, 1980.

Syllabus by the Court

1. Where a court inquires of the prosecuting attorney as to whether or not notes, tapes, recordings or any such records were made of grand jury proceedings and the answer is in the negative, the court did not abuse its discretion in failing to make further inquiries as to the existence of such grand jury records.

2. "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." Point 3, Syllabus, State v. Casdorph, W.Va., 230 S.E.2d 476 (1976).

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

4. In determining whether or not the State used due diligence in seeking the defendant so as to afford him a speedy trial the following factors should be considered: 1) the length of the delay; 2) the reason for the delay; 3) the defendant's assertion of his rights; and 4) prejudice to the defendant.

Franklin D. Cleckley, Morgantown, J. Franklin Long, Bluefield, for plaintiff-in-error.

Chauncey H. Browning, Jr., Atty. Gen., Lawrence R. Frail, Asst. Atty. Gen., Charleston, for defendant-in-error.

CAPLAN, Justice:

The appellant, Walter Alphonzo Foddrell, was convicted of armed robbery in the Circuit Court of McDowell County and was sentenced to eighteen years in the state penitentiary. This is an appeal from that conviction.

The appellant and another were indicted for robbery by violence, commonly referred to as armed robbery, in McDowell County. The alleged robbery took place on April 27, 1973. An indictment was returned against Foddrell on July 10, 1973. He was arrested in Detroit, Michigan, in November, 1978 but refused to waive extradition. After a hearing he was extradited to this State where, after counsel was appointed to assist him, he stood trial in 1979.

At trial it was developed that the Pocahontas Fuel Company store at Jenkinjones, McDowell County, was robbed on April 27, 1973. There were two eye witnesses to the robbery. These witnesses, employees of the store were relieved of the company money, tied up and left in the "wareroom". The robbers made good their escape. One of the employees freed himself after approximately ten minutes, freed the other employee and called the police. One of the employees who, of course, was an eye witness to the robbery, informed the police as to description, size, dress, etc. of the robbers and described a car that was parked behind the store immediately preceding the robbery. This car was described as being a late model dark blue Chevrolet or Plymouth. One of the robbers was referred to during the robbery as "Eugene". In their search of the surrounding area, the police learned that the appellant was in the area at the time of the robbery and that he was driving a dark blue 1973 Chevrolet. It was also learned that he was accompanied by a friend by the name of "Eugene". The police searched the area for several days but could find neither the appellant nor his friend Eugene. After an indictment was returned, the record discloses no further action until Foddrell was arrested in Michigan and subsequently returned here. Both eye witnesses positively identified him as one of the participants in the April 27, 1973 robbery. The appellant admitted being in Jenkinjones on the day of the robbery but denies any knowledge or involvement therein. In fact, he claims that he had left Jenkinjones prior to the time the robbery allegedly occurred. Nevertheless, the appellant was convicted and sentenced to eighteen years in the state penitentiary. While numerous errors are assigned on this appeal, consideration of the principal assignments, as follows, will suffice to properly dispose of this case.

First, should the grand jury minutes have been made available to the appellant; second, was the in-court identification of the then defendant proper; third, did the court comment improperly on the evidence; fourth, was the defendant denied effective assistance of counsel; and fifth, did the State use due diligence in its efforts to find the appellant and afford him a speedy trial.

The appellant contends that he was entitled to access to the notes of the grand jury. The record discloses that the court denied him any information in relation to the grand jury's deliberations. The transcript shows that the appellant's counsel sought information as to who appeared and testified against his client at the grand jury proceedings. This information was furnished. The transcript further shows that no records, transcripts, tapes or otherwise, were made at the grand jury proceedings. This fact conclusively confirms the unavailability of any grand jury notes.

The first assignment of error is without merit and lends no aid to the appellant. It is undenied that no notes were made of the grand jury proceedings. The principal thrust of the appellant's assignment appears to be that the court's effort to determine whether or not grand jury notes were made was inadequate. We find that the court made proper inquiries to arrive at that determination. There was no abuse of discretion and it is clear from the record that no such notes existed. No law was cited and we find none that supports this assignment.

The appellant also contends that the in-court identification of him by one of the eye witnesses was improper in that it was tainted due to a suggestive photograph. The photograph was not offered in evidence but was shown to this witness to see if the person in the photograph was the one who participated in the robbery. The identification was for purposes of extradition and it was necessary that he be identified as having been involved in the robbery some four or five years earlier. It is true that a single photograph of the appellant was shown to this witness and that he was not shown multiple photographs and asked to pick out the person who robbed him. At the trial no photograph was offered in evidence. The witness positively, without equivocation, identified petitioner as one of the participants. In Point 3 of the Syllabus of State v. Casdorph, W.Va., 230 S.E.2d 476 (1976), we said, "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." See also Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); State v. McNeal, W.Va., 251 S.E.2d 484 (1979); State v. Kennedy, W.Va., 249 S.E.2d 188 (1978). The witness in the instant case was a former serviceman where he served as a military...