State v. Franklin

Citation448 S.E.2d 158,191 W.Va. 727
Decision Date12 July 1994
Docket NumberNo. 21981,21981
PartiesSTATE of West Virginia, Plaintiff Below, Appellee, v. Dewayne E. FRANKLIN, Defendant Below, Appellant.
CourtSupreme Court of West Virginia
Dissenting Opinion of Justice Neely

July 12, 1994.

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." Syl. pt. 3, State v. Casdorph, 159 W.Va. 909, 230 S.E.2d 476 (1976).' Syllabus Point 2, State v. Gravely, 171 W.Va. 428, 299 S.E.2d 375 (1982)." Syl., State v. Williams, 181 W.Va. 150, 381 S.E.2d 265 (1989).

2. " 'The action of a trial court in admitting or excluding evidence in the exercise of its discretion will not be disturbed by the appellate court unless it appears that such action amounts to an abuse of discretion.' Syllabus Point 10, State v. Huffman, 141 W.Va. 55, 87 S.E.2d 541 (1955)." Syl. pt. 4, State v. Ashcraft, 172 W.Va. 640, 309 S.E.2d 600 (1983).

3. " 'A prosecution that withholds evidence which if made available would tend to exculpate an accused by creating a reasonable doubt as to his guilt violates due process of law under Article III, Section 14 of the West Virginia Constitution.' Syllabus Point 4, State v. Hatfield, 169 W.Va. 191, 286 S.E.2d 402 (1982)." Syl. pt. 4, State v. Fortner, 182 W.Va. 345, 387 S.E.2d 812 (1989).

Michele Rusen, Pros. Atty. of Wood County, Parkersburg, for appellee.

Joseph P. Albright, Jr., Albright, Bradley & Ellison, Parkersburg, for appellant.

PER CURIAM:

The appellant, Dewayne E. Franklin, was found guilty, by a jury, of aggravated robbery, in violation of W.Va.Code, 61-2-12 [1961], on September 24, 1992, in the Circuit Court of Wood County, West Virginia. On December 31, 1992, he was sentenced to seventeen years in the West Virginia State Penitentiary. Mr. Franklin is now before this Court upon appeal of his conviction. Upon consideration of the petition for appeal, all matters of record and the briefs and argument of counsel, the judgment of the circuit court is affirmed.

I

On October 19, 1991, between 10:00 and 10:30 p.m., the Western Sizzlin' Restaurant, in Parkersburg, West Virginia, was robbed at gunpoint by a black male identified by five witnesses as the appellant, Dewayne E. Franklin (hereinafter "appellant").

Following the robbery, the Parkersburg Police Department prepared several photographic lineups for identification of the assailant. The first lineup, shown to witnesses on the night of the robbery, consisted of five black and white photographs of black males. The appellant's photograph was not included in this lineup. This lineup was shown to Marion Hall, the cashier who was actually held up, and Pam Jobes, the waitress who witnessed the robbery. Neither witness identified anyone in this lineup as the assailant.

According to Detective Ken Miller, he followed the standard procedure for presenting photographs to potential witnesses. He placed the photographs in front of the witnesses without revealing whether the potential suspect was included in the lineup. He showed the photographs to the witnesses individually so one could not influence the identification of the other. He further prevented the witnesses from seeing any identifying information on the back of the photographs and simply asked if there was anyone in the lineup who looked familiar.

The second photographic lineup was prepared within a week of the robbery. Seven black and white photographs, including one of the defendant and another of an individual from the first lineup, were shown to Ms. Jobes, Ms. Hall and Western Sizzlin' waitresses, Julie Musser, Jessica Scott and Alison Posey. 1 Ten and one-half months after the robbery, or, two weeks before trial, this second lineup was also shown to Vickie and Josh Shamblin, Pam and Chris Mackey, Dale and Jeremy Davis and Vickie and Junior Marple. These individuals were in Don Emilio's Restaurant, located just behind the Western Sizzlin', when the appellant entered the restaurant and looked around just before the robbery. While Ms. Jobes, Ms. Shamblin, Ms. Scott, 2 Ms. Mackey and Jeremy Davis all identified the appellant, 3 the others were unable to identify anyone from the lineup.

One to two months after the robbery, the Parkersburg Police Department prepared a third photographic lineup of seven color photographs compiled by the sheriff's department of Washington County, Ohio. 4 The appellant's photograph was included in this lineup. Of those who were shown this lineup, Vickie and Josh Shamblin, Vickie and Junior Marple, Pam and Chris Mackey, Pam Jobes and Marian Hall, the appellant was identified by Ms. Shamblin, Ms. Mackey and Ms. Jobes. 5 The remaining witnesses were unable to identify anyone. 6

Following an in camera hearing concerning the pretrial identification procedures, the trial court found the photographic lineups to be suggestive in that more than one lineup containing the appellant's photograph was shown to several witnesses. Thus, there was a danger that a witness who had identified the appellant in one lineup might have selected him in a subsequent lineup simply because she recognized him from the previous lineup. The trial court was further concerned with the third photographic lineup in which criminal identification numbers were shown under each photograph. The trial court, therefore, excluded the evidence of the pretrial identifications. However, the trial court found that any likelihood of misidentification from the photographic lineups did not taint the eyewitness testimony and that in-court identifications may be made without reference to the pretrial identification procedures. 7

At trial, the appellant presented an alibi defense, testifying that he and his friend, Bill Craig, left Parkersburg between 8:30 and 9:00 p.m. on the night of the robbery, October 19, 1991. They allegedly arrived at the City Lights Tavern in Charleston, West Virginia, at approximately 10:30 p.m. After about an hour, the appellant, Mr. Craig and a man named Wade Chester went to the Charleston home of Tina Stevenson. The appellant asserted that he and Mr. Craig did not leave until the following morning, the day after the robbery of the Western Sizzlin'.

In an effort to further bolster the appellant's alibi, Mr. Craig testified that at approximately 2:30 a.m. and again at 8:30 a.m., the morning after the October 19, 1991 robbery in Parkersburg, he and Ms. Stevenson drove his van to the Orchard Manor Housing Project in Charleston to see Ms. Stevenson's cousin. There is a security gate at Orchard Manor where a security guard logs vehicles in and out of the housing project. The vehicle log reflects that Mr. Craig's van entered the housing project at 8:25 a.m. and departed at 8:29 a.m. However, the vehicle log does not corroborate the testimony that Mr. Craig and Ms. Stevenson went to the housing project earlier, at 2:30 a.m. This was explained by Ms. Stevenson, who knew the security guard on duty at 2:30 a.m., which was why he did not log in their vehicle at that time. Ms. Stevenson further testified that, when she and Mr. Craig returned to her apartment following their second trip to Orchard Manor, they parked Mr. Craig's van across the street from her apartment, in the parking lot of the Ebenezer Baptist Church. Churchgoers apparently blocked in Mr. Craig's van and, consequently, the appellant and Mr. Craig could not leave Charleston until late in the morning of October 20, 1991.

Kathy Giffen, the appellant's friend and at whose apartment the appellant stored some of his belongings, testified that on October 20, 1991, the day after the robbery and the day after the appellant had allegedly gone to Charleston, the appellant asked Ms. Giffen to drive him to Charleston. Ms. Giffen drove the appellant and another individual, Teresa Kyer Craig, to Charleston and testified that, when they stopped for gasoline, the appellant purchased it from a wad of money he pulled from his pocket. This surprised Ms. Giffen, as she had never seen the appellant with a wad of money like that nor was she aware that the appellant was then employed. Ms. Giffen further testified that she had seen the appellant with a chrome-colored revolver in late October, 1991 and that, on October 20, 1991, the day after the robbery, the appellant had shaved his goatee and mustache and had cut his hair short.

II

As indicated above, the trial judge ruled that the pretrial identification procedures were suggestive insofar as they might have caused the witnesses to misidentify the appellant in the photographic lineups. However, the trial judge found that the eyewitness testimony, most of which occurred prior to the photographic lineups, was not tainted by the pretrial photographic lineups and identification and was, therefore, admissible. Accordingly, the trial judge admitted the in-court testimony of Ms. Musser, Ms. Jobes, Ms. Scott, Ms. Mackey and Ms. Shamblin, all of whom identified the appellant as the man who robbed the Western Sizzlin' on October 19, 1991.

Jessica Scott, a waitress at Western Sizzlin' who had finished her shift at approximately 9:30 p.m., was eating dinner in the restaurant's atrium area when she saw the appellant through the windows 8 just before the robbery. Ms. Scott saw the appellant walk by the McDonald's, located across the parking lot from the Western Sizzlin', and...

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