State v. Grubbs, No. 16988

CourtSupreme Court of West Virginia
Writing for the CourtMILLER
Citation178 W.Va. 811,364 S.E.2d 824
PartiesSTATE of West Virginia v. Michael W. GRUBBS.
Docket NumberNo. 16988
Decision Date21 December 1987

Page 824

364 S.E.2d 824
178 W.Va. 811
STATE of West Virginia
v.
Michael W. GRUBBS.
No. 16988.
Supreme Court of Appeals of
West Virginia.
Dec. 21, 1987.

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Syllabus by the Court

1. Handwriting samples or exemplars have long been regarded as physical evidence[178 W.Va. 812] and are not testimonial. Consequently, they are outside the Fifth Amendment protection against self-incrimination.

2. "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).

3. "It is improper for a prosecutor in this State to '[a]ssert 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 DR7-106(C)(4) in part." Syllabus Point 3, State v. Critzer, 167 W.Va. 655, 280 S.E.2d 288 (1981).

4. "The plain error doctrine of W.Va.R.Crim.P. 52(b), whereby the court may take notice of plain errors or defects affecting substantial rights although they were not brought to the attention of the court, is to be used sparingly and only in those circumstances in which a miscarriage of justice would otherwise result." Syllabus Point 2, State v. Hatala, --- W.Va. ---, 345 S.E.2d 310 (1986).

5. We do not countenance the invited response rule. If either the prosecutor or defense counsel believes the other has made improper remarks to the jury, a timely objection should be made coupled with a request to the court to instruct the jury to disregard the remarks. A later attempt to retaliate by way of improper argument will not be excused under the invited response rule.

Silas B. Taylor, Deputy Atty. Gen., for plaintiff.

Frank W. Helvey, Jr., Public Legal Services, Charleston, for defendant.

MILLER, Justice:

In this appeal from a forgery conviction in Wood County, 1 the defendant contends that the trial court erred in admitting his oral confession, that his handwriting samples should not have been admitted, that a bad alibi instruction was offered, and that the prosecutor made certain prejudicial remarks in his closing argument.

I.

At the time of his oral confession on June 17, 1982, the defendant was being detained in the Kanawha County jail in connection with an unrelated forgery indictment returned in Kanawha County upon which counsel had been retained. He had been scheduled to appear before a

Page 826

magistrate that day for an initial appearance on additional forgery charges. He had not yet obtained counsel on these charges. Two state troopers who were investigating still other forgeries possibly committed by the defendant, including the Mason County charge, went to the magistrate's office to obtain handwriting samples from the defendant. Because no deputy sheriff was available, the magistrate or a bailiff asked the two state police officers to bring the defendant from the jail. The defendant's girlfriend was also at the magistrate's office and accompanied the officers.

After meeting the defendant at the jail, the officers advised him they were investigating several other forgeries in which he was a suspect and that they wanted to talk to him and obtain handwriting samples. The defendant, according to the officers, indicated his willingness to talk to them. He also stated that he had fired his lawyer on the Kanawha County indictment and was going to ask for appointed counsel. 2 [178 W.Va. 813] While at the magistrate's office the defendant signed a pauper's affidavit to have an attorney appointed for him on the Kanawha County charges.

After his appearance in magistrate court, the troopers took the defendant and his girlfriend to the South Charleston State Police Headquarters. There he was advised of, and then executed a waiver of, his Miranda rights. 3 He then orally admitted forging the checks in the present case. Because there were other checks in addition to the ones involved in this case, the officers had the defendant give numerous handwriting samples with regard to a variety of checks in their possession. This process consumed most of the afternoon, at which point he was returned to the Kanawha County jail.

The following day, June 18, he was taken again to the South Charleston State Police headquarters where additional checks were shown to him and handwriting samples taken. Before this process began, he was again given his Miranda warnings and signed a written waiver of his rights. Four of these handwriting samples were introduced into evidence at the trial in the present case.

The defendant, at the in camera hearing, denied making any oral incriminating statement and also claimed that he had repeatedly asked for a lawyer. He also claimed that the officers had promised him a favorable plea bargain and an opportunity to have some time alone at a local motel with his girlfriend if he would give handwriting exemplars. All of this was denied by the officers. The defendant's girlfriend, who was present on both days during most of the period that the defendant was giving the samples, was not called to testify at the suppression hearing. She testified at trial that she did not listen carefully to the police questioning and was unable to remember much of what had occurred since more than two years had elapsed by the time of trial. The circuit court found the oral inculpatory statements and the samples to be voluntary and, therefore, admissible.

II.

The defendant contends that the delay in taking him to a magistrate after his initial oral confession on June 17 should vitiate the handwriting exemplars taken the following day, citing State v. Persinger, 169 W.Va. 121, 286 S.E.2d 261 (1982) and its progeny. 4 The State responds that Persinger relates to the validity of a confession where there has been an unreasonable

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delay in taking the accused before a magistrate as required by W.Va.Code, 62-1-5. 5 It contends, and we agree, that handwriting samples or exemplars have long been regarded as physical evidence and are not testimonial. Consequently, they are outside the Fifth Amendment protection against self-incrimination as indicated by this passage from United States v. Euge, [178 W.Va. 814] 444 U.S. 707, 713, 100 S.Ct. 874, 879, 63 L.Ed.2d 141, 148-49 (1980):

"In Holt v. United States, 218 U.S. 245, 252-253, 54 L.Ed. 1021, 31 S.Ct. 2 (1910) (Holmes, J.), the Court found that the common-law evidentiary duty permitted the compulsion of various forms of physical evidence. In Schmerber v. California, 384 U.S. 757, 764, 16 L.Ed.2d 908, 86 S.Ct. 1826 [1832] (1966), this Court observed that traditionally witnesses could be compelled, in both state and federal courts, to submit to 'fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.' See also United States v. Wade, 388 U.S. 218, 18 L.Ed.2d 1149, 87 S.Ct. 1926 (1967). In Gilbert v. California, 388 U.S. 263, 266-267, 18 L.Ed.2d 1178, 87 S.Ct. 1951 [1953-1954] (1967), handwriting was held, 'like the ... body itself' to be an 'identifying physical characteristic,' subject to production. In United States v. Dionisio, 410 U.S. 1, 35 L.Ed.2d 67, 93 S.Ct. 764 (1973), and United States v. Mara, 410 U.S. 19, 35 L.Ed.2d 99, 93 S.Ct. 774 (1973), this Court again confirmed that handwriting is in the nature of physical evidence which can be compelled by a grand jury in the exercise of its subpoena power."

See, Annot., 43 A.L.R.3d 653 (1972). We have recognized this principle as applied to a related type of evidence, i.e., voice samples, and have concluded in State v. Hutchinson, --- W.Va. ---, ---, 342 S.E.2d 138, 144 (1986), that a police demand for such sample after arrest "does not implicate the privilege against self-incrimination. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973)." 6

The defendant misconceives the nature of our rule in Persinger. It is designed to implement our prompt presentment statute, W.Va.Code, 62-1-5, which requires an individual to be promptly taken before a neutral magistrate after arrest. This is to insure that the accused is fully informed of his various constitutional and statutory rights. 7

Where, as here, the issue involves a matter that has not been given constitutional or statutory protection relating to the

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prompt presentment statute, Persinger 's dictates do not apply. 8 Consequently, we [178 W.Va. 815] conclude that police-requested handwriting samples do not implicate the Fifth Amendment right against self-incrimination nor are they subject to being vitiated by the prompt presentment statute, W.Va.Code, 62-1-5.

III.

Defendant contends that trial counsel was ineffective because he failed to object to an alibi instruction that is claimed to be unconstitutional under State v. Kopa, --- W.Va. ---, 311 S.E.2d 412 (1983). 9 When we review the pertinent portion of this instruction, 10 we find that it does not shift the burden of proof. As the State correctly points out, it is on a par with an alibi instruction we approved in Note 6 of Acord v. Hedrick, --- W.Va. ---, ---, 342 S.E.2d 120, 126 (1986), 11 and is less offensive than the alibi instruction approved by the Fourth Circuit post-Adkins in Frye v. Procunier, 746 F.2d 1011, 1012 (4th Cir.1984), cert. denied, 472 U.S. 1010, 105 S.Ct. 2707, 86 L.Ed.2d 723 (1985). 12 We conclude that this point is without merit.

IV.

A further and more serious point of error relates to certain remarks made by the

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prosecuting attorney in his...

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46 practice notes
  • State v. Davis, No. 25812.
    • United States
    • Supreme Court of West Virginia
    • June 28, 1999
    ...should be made coupled with a request to the court to instruct the jury to disregard the remarks." Syl. Pt. 5, in part, State v. Grubbs, 178 W.Va. 811, 364 S.E.2d 824 (1987). See State v. Lewis, 133 W.Va. 584, 57 S.E.2d 513 (1949); State v. Files, 125 W.Va. 243, 24 S.E.2d 233 (1942); and St......
  • State v. DeWeese, No. 30733.
    • United States
    • Supreme Court of West Virginia
    • April 15, 2003
    ...constitutional rights." State v. Ellsworth, 175 W.Va. 64, 69, 331 S.E.2d 503, 507-08 (1985) (emphasis added). See also State v. Grubbs, 178 W.Va. 811, 814, 364 S.E.2d 824, 827 (1987) (The prompt presentment rule "requires an individual to be promptly taken before a neutral magistrate after ......
  • State v. Murray, No. 33193.
    • United States
    • Supreme Court of West Virginia
    • June 5, 2007
    ...counsel makes an isolated improper remark and timely objection is made, the principle adopted in Syllabus Point 5 of State v. Grubbs, 178 W.Va. 811, 364 S.E.2d 824 (1987) should be . . . If either the prosecutor or defense counsel believes the other has made improper remarks to the jury, a ......
  • State v. Rollins, No. 13–0099.
    • United States
    • Supreme Court of West Virginia
    • June 17, 2014
    ...should be made coupled with a request to the court to instruct the jury to disregard the remarks.” Syl. pt. 5, in part, State v. Grubbs, 178 W.Va. 811, 364 S.E.2d 824 (1987). 3. “Failure to make timely and proper objection to remarks of counsel made in the presence of the jury, during the t......
  • Request a trial to view additional results
46 cases
  • State v. Davis, No. 25812.
    • United States
    • Supreme Court of West Virginia
    • June 28, 1999
    ...should be made coupled with a request to the court to instruct the jury to disregard the remarks." Syl. Pt. 5, in part, State v. Grubbs, 178 W.Va. 811, 364 S.E.2d 824 (1987). See State v. Lewis, 133 W.Va. 584, 57 S.E.2d 513 (1949); State v. Files, 125 W.Va. 243, 24 S.E.2d 233 (1942); and St......
  • State v. DeWeese, No. 30733.
    • United States
    • Supreme Court of West Virginia
    • April 15, 2003
    ...constitutional rights." State v. Ellsworth, 175 W.Va. 64, 69, 331 S.E.2d 503, 507-08 (1985) (emphasis added). See also State v. Grubbs, 178 W.Va. 811, 814, 364 S.E.2d 824, 827 (1987) (The prompt presentment rule "requires an individual to be promptly taken before a neutral magistrate after ......
  • State v. Murray, No. 33193.
    • United States
    • Supreme Court of West Virginia
    • June 5, 2007
    ...counsel makes an isolated improper remark and timely objection is made, the principle adopted in Syllabus Point 5 of State v. Grubbs, 178 W.Va. 811, 364 S.E.2d 824 (1987) should be . . . If either the prosecutor or defense counsel believes the other has made improper remarks to the jury, a ......
  • State v. Rollins, No. 13–0099.
    • United States
    • Supreme Court of West Virginia
    • June 17, 2014
    ...should be made coupled with a request to the court to instruct the jury to disregard the remarks.” Syl. pt. 5, in part, State v. Grubbs, 178 W.Va. 811, 364 S.E.2d 824 (1987). 3. “Failure to make timely and proper objection to remarks of counsel made in the presence of the jury, during the t......
  • Request a trial to view additional results

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