State v. Gravely, 15545

• Decision Date: 13 December 1982
• Docket Number: No. 15545,15545
• Citation: 171 W.Va. 428,299 S.E.2d 375
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Richard GRAVELY.

Page 375

299 S.E.2d 375

171 W.Va. 428

STATE of West Virginia v. Richard GRAVELY.

No. 15545.

Supreme Court of Appeals of

West Virginia.

Dec. 13, 1982.

Syllabus by the Court

1. An adversary judicial criminal proceeding is instituted against a defendant where the defendant after his arrest is taken before a magistrate pursuant to W.Va.Code, 62-1-5 [1965], and is, inter alia, informed pursuant to W.Va.Code, 62-1-6 [1965], of the complaint against him and of his right to counsel. Furthermore, where the defendant at that magistrate proceeding expresses a desire to be represented by counsel, a subsequent pretrial identification of the defendant at a police initiated line-up or one-on-one police initiated confrontation between the defendant and a witness or crime victim, without notice to and in the absence of defense counsel, constitutes a violation of the defendant's right to counsel under the Sixth Amendment to the Constitution of the United States and under art. III, § 14, of the Constitution of West Virginia, so as to preclude any trial testimony in regard to the identification procedure.

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." Syl. pt. 3, State v. Casdorph, 159 W.Va. 909, 230 S.E.2d 476 (1976).

3. The admission at trial of the testimony of a witness that he identified an accused prior to trial at a police initiated line-up or police initiated one-on-one confrontation between the witness and the accused which pretrial identification procedure was a violation of the accused's right to counsel under the Sixth Amendment to the Constitution of the United States and under art. III, § 14, of the Constitution of West Virginia, constitutes reversible error, unless the admission of such testimony at trial is shown to be harmless constitutional error.

S. Clark Woodroe, Asst. Atty. Gen., Charleston, for appellee.

Bradley J. Pyles, Smith, Crandall, Pyles & Rowe, Logan, for appellant.

McHUGH, Justice:

This case is before this Court upon the petition of Richard Gravely for an appeal from his conviction in the Circuit Court of Logan County, West Virginia, of the offense commonly known as armed robbery. ¹ On June 2, 1981, a jury returned a verdict of guilty against the defendant. By order entered on July 13, 1981, the defendant was sentenced to the West Virginia Penitentiary for a definite term of 15 years. This Court has before it the petition for appeal, all matters of record, including a transcript of the defendant's trial, and the briefs and argument of counsel.

This case concerns the identification of the defendant as one of two persons involved in the robbery. This Court will discuss the issues in this appeal in four separate sections. Section one discusses the question of whether, with respect to a pretrial identification of the defendant by the robbery victim, the defendant's right to counsel under the Sixth Amendment to the Constitution of the United States and under the Constitution of West Virginia was violated. Section two of the opinion also discusses the defendant's right to counsel. However, section two concerns the defendant's right to due process under the Constitution of the United States and under the Constitution of West Virginia in terms of whether an identification of the defendant at trial was tainted by alleged suggestive pretrial identifications of the defendant. Due process in this context generally prohibits impermissibly suggestive pretrial identification procedures, which improper procedures may be overcome, as we reaffirm below, by the "independent source" exception. The area of the law relating to section two of this opinion has been fully discussed by this Court in previous cases. Section three of the opinion discusses the admission at trial of testimony relating to a pretrial identification of the defendant by the robbery victim. We emphasize that the discussion in section three is in the context of the defendant's right to counsel under the Sixth Amendment to the Constitution of the United States and under the Constitution of West Virginia. In section three, this Court is presented with an occasion to consider the constitutional principles set forth in Moore v. Illinois, 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977). Briefly, Moore recognizes that a defendant's right to counsel attaches upon the institution of an adversary judicial criminal proceeding and that, unless the defendant waives his right to counsel, a subsequent identification procedure conducted in the absence of counsel violates the defendant's Sixth Amendment right to counsel. Moore further recognizes that such an improper identification procedure may not be described by an identifying witness at trial. ² Section four of the opinion discusses the refusal of the circuit court to give one of the defendant's instructions as originally offered.

On January 3, 1981, at approximately 5:15 a.m., an A & P grocery store in Logan County, West Virginia, was robbed by two males. One male, unmasked, held a revolver upon the store cashier, Jeffrey C. Stevens, while the other perpetrator, wearing a ski mask, took a sum of money from the cash register. The perpetrators fled on foot, and Stevens immediately called the Logan County Sheriff's Office. In addition to Stevens, a stock clerk by the name of David Sargent and possibly one store customer witnessed the robbery.

At approximately 5:22 a.m. that day, Deputy William Simpkins and Sgt. G.R. Clinger of the Logan County Sheriff's Office were dispatched to investigate the robbery. The officers stopped their cruiser at Penny's Drive Inn where they spotted two suspects. One suspect escaped, and the other suspect, Robert West, was taken into custody. At Penny's Drive Inn the officers found a revolver and $346. Part of the money was found in a sock, and the rest was scattered upon the ground.

With West in the police cruiser, the officers stopped at the A & P grocery store, picked up Stevens, the robbery victim, and drove to the Logan County Courthouse. The county jail and magistrate offices are located in that courthouse. At the jail, Stevens gave a statement to the police concerning the robbery but could not identify West as one of the perpetrators. Stevens then left the courthouse.

Based upon statements of West made after he was taken into custody, police officers, at approximately 9:00 a.m. on January 3, 1981, proceeded to the West home where they located and arrested the defendant, Richard Lee Gravely. ³ The police then called Stevens and stated that another suspect had been found. Stevens was asked to return to the courthouse.

On January 3, 1981, at 9:56 a.m., at the Logan County Courthouse, the defendant, after the completion of a form committing him to jail, received a statement of his rights from Deputy Simpkins. That morning, in the jail section of the courthouse, Stevens, observing the defendant from a separate room, was unable to identify the defendant as one of the perpetrators. The defendant was then taken to a magistrate office in the basement of the courthouse where the defendant was advised by a magistrate of the robbery charge. The defendant's bond was set at $10,000. In the magistrate's office the defendant completed an acknowledgment of rights form upon which the defendant indicated his desire to be represented by counsel. ⁴

Upon leaving the magistrate's office, the defendant in the courthouse basement was again observed by Stevens. Stevens was sitting in a police cruiser. As a result of Steven's observation of the defendant in the courthouse basement, Stevens identified the defendant as the unmasked robber who held the revolver during the robbery of the A & P grocery store.

The record indicates that the observations of the defendant in the jail and courthouse basement by Stevens were at the instigation of police officers. The defendant is black, and no black men other than the defendant were present during those observations. At no time was the defendant placed in a line-up for observation by Stevens or other witnesses to the robbery.

It should be noted that prior to trial Stevens (the robbery victim) and David Sargent (the store clerk) were shown a selection of five or six photographs of persons from which Stevens and Sargent independently identified the defendant as one of the perpetrators of the robbery. The record indicates that Stevens and Sargent previously knew or were familiar with some, but not all, of the persons in those photographs.

Subsequent to the defendant's preliminary hearing and indictment for robbery, the defendant filed a motion to suppress all evidence of pretrial identification of the defendant as one of the perpetrators of the robbery and any evidence derived from such pretrial identification. On April 13, 1981, a hearing was held upon that motion by the circuit court and evidence was taken. By order entered on April 15, 1981, the motion to suppress was overruled.

The defendant's trial was conducted on June 2, 1981, during which Stevens and Sargent made in-court identifications of the defendant as the unmasked robber of the A & P grocery store. Further, evidence was admitted at trial concerning the pretrial observations of the defendant by Stevens in the jail and basement areas of the Logan County Courthouse. Evidence concerning the photographic displays was also admitted. The defendant submitted the defense of...