State v. Haller

• Decision Date: 17 November 1987
• Docket Number: No. 17492,17492
• Citation: 178 W.Va. 642,363 S.E.2d 719
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Bruce HALLER.

Page 719

363 S.E.2d 719

178 W.Va. 642

STATE of West Virginia v. Bruce HALLER.

No. 17492.

Supreme Court of Appeals of West Virginia.

Nov. 17, 1987.

Syllabus by the Court

1. "A trial court's decision regarding the voluntariness of a confession will not be disturbed unless it is plainly wrong or clearly against the weight of the evidence." Syl. Pt. 3, State v. Vance, 162 W.Va. 467, 250 S.E.2d 146 (1978).

2. "It is firmly established in this state that the opinion of a witness who is not an expert may be given in evidence if he has some peculiar knowledge concerning the subject of the opinion than jurors are ordinarily expected to have." Cochran v. Appalachian Power Co., 162 W.Va. 86, 246 S.E.2d 624 (1978).

3. "The determination of whether a witness has sufficient knowledge of the material in question so as to be qualified to give his opinion is largely within the discretion of the trial court, and will not ordinarily be disturbed on appeal unless clearly erroneous." Cox v. Galigher Motor Sales Co., 158 W.Va. 685, 213 S.E.2d 475 (1975).

4. According to Rule 701 of the West Virginia Rules of Evidence, it is within the trial court's discretion to allow lay witnesses to offer opinion testimony concerning the identity of a controlled substance.

5. "Ordinarily where objections to questions or evidence by a party are sustained by the trial court during the trial and the jury instructed not to consider such matter, it will not constitute reversible error." Syl. Pt. 18, State v. Hamric, 151 W.Va. 1, 151 S.E.2d 252 (1966).

Charles G. Brown, Atty. Gen., Jill Miles, Asst. Atty. Gen., Charleston, W.Va., for the State.

Brent E. Beveridge, Fusco &

Newbraugh, Morgantown, for Haller.

NEELY, Justice:

On 6 August 1985, appellant, Bruce Haller, went to the residence of Marc Carpenter to discuss the sale of a 1968 Pontiac GTO automobile. Mr. Carpenter wanted to sell the car to Mr. Haller for $1,000. Mr. Haller offered to trade what he represented to be cocaine for the car. Mr. Carpenter tested the cocaine by injecting it into his arm and said it wasn't "coke." Later the same day, Mr. Carpenter and Mr. Haller, along with Billy Westfall and Jim Wolfe, met in a parked car near a skating rink. Once again, Mr. Carpenter injected the cocaine, and this time believed that the substance was cocaine. Based on the representations by Mr. Haller and by injecting the cocaine, Mr. Carpenter agreed to accept cocaine in exchange for the title to his car.

The four men then went to Mr. Carpenter's residence to complete the exchange. Mr. Carpenter gave Mr. Haller the executed car title and Mr. Haller had the car towed from the Carpenter residence. At some time between the skating rink and Mr. Carpenter's house, someone switched the cocaine for an imitation substance. When Mr. Carpenter later tried this substitute substance, he discovered it wasn't cocaine and believed that Bruce Haller had tricked him. Outraged, he then called the police!

The police advised Mr. Carpenter to go to a magistrate and swear out a warrant. Dumbfounded by the situation, Magistrate Ron Crislip requested that the principals in the trade and the state police come down to his office. When the state police arrived, Bruce Haller, Marc Carpenter and Billy Westfall were already there.

After being read his Miranda rights, Bruce Haller signed a statement that substantially corroborated the statements of Marc Carpenter and Billy Westfall. Mr. Haller admitted that he had purchased Mr. Carpenter's car for a quantity of a substance he believed to be cocaine. However, Mr. Haller stated that he did not replace the cocaine with a substitute. He believed that Mr. Carpenter or Mr. Westfall probably made the switch in an attempt to defraud him of the title to the car. Mr. Haller was indicted by the Marion County grand jury in November, 1985 on a three count indictment. The first count charged him with feloniously delivering a controlled substance. The second count charged him with receiving property valued at more than $200 under false pretenses, and a third misdemeanor count charged him with delivering an imitation controlled substance.

A suppression hearing was held on 4 February 1986 concerning the admissibility of Mr. Haller's statement while in the magistrate's office. The court found that Mr Haller had been given a Miranda warning advising him of his rights before he gave any statement and, therefore, his statement was admissible. At trial, Marc Carpenter and Billy Westfall testified about the trade and identified Bruce Haller's substance as cocaine based on their own past experience with the drug. Each testified to its numbing effect and white crystal form. The state troopers, Mr. Finkenbinder and Mr. Jackson, who questioned all the principals to the trade, testified about the content of Bruce Haller's oral custodial statement. Mr. Haller's written statement was then read to the jury. The jury convicted Mr. Haller of delivery of a controlled substance and found the defendant not guilty on the obtaining property under false pretenses count and delivery of a counterfeit substance count.

Mr. Haller now asserts on appeal that the trial court erred in refusing to grant his motion for a directed verdict on count one of the indictment as the State failed to meet its burden of proof that a controlled substance was delivered. We disagree and affirm the trial court's ruling.

I

The appellant argues that the evidence against him is insufficient to warrant a conviction because there was no competent proof that the substance delivered was cocaine. Therefore, appellant urges, the trial court should have granted his motion for a directed verdict at the close of the state's case. The state's case against Mr. Haller consisted of two items of evidence: (1) the signed custodial confession Mr. Haller gave to Trooper Finkenbinder asserting that he had delivered cocaine to Marc Carpenter; and (2) the testimony of Mr. Carpenter and Mr. Westfall that Mr. Haller gave them cocaine, which they sampled, in exchange for the title to Mr. Carpenter's car.

"It is the mandatory duty of a trial court, whether requested or not, to hear the evidence and determine in the first instance, out of the presence of the jury, the voluntariness of an oral or written confession by an accused person prior to admitting the same into evidence." Syllabus Point 1, State v. Fortner, 150 W.Va. 571, 148 S.E. 2d 669 (1966), overruled in part, State ex rel. White v. Mohn, 168 W.Va. 211, 283 S.E.2d 914 (1981); see also, Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). During the hearing, "part of the State's burden is to prove that the defendant prior to the giving of a confession was given the rights constitutionally mandated in Miranda v. Arizona." State v. Persinger, 169 W.Va. 121, 286 S.E.2d 261, 266 (1982). The focus of the hearing, however, is not merely on whether the arresting officer properly informed the accused of his rights. Rather, "the voluntariness of a confession is an inquiry that must be gauged by the totality of the circumstances under which it was given including the background, experience and conduct of the accused." Persinger at 286 S.E.2d at 267. See also, Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

The state's burden of proof in showing that an accused voluntarily made statements or confessions, with full knowledge and comprehension of his Miranda rights, has been clearly stated in prior cases. "The State must prove, at least by a preponderance of the evidence, that confessions or statements of an accused which amount to admissions of part or all of an offense were voluntary before such may be admitted into the evidence of a criminal case." Syl. Pt. 5, State v. Starr, 158 W.Va. 905, 216 S.E.2d 242 (1975); Syl. Pt. 1, State v. Vance, 162 W.Va. 467, 250 S.E. 2d 146 (1978).

In this case, the record indicates that only three persons testified during the suppression hearing--the two police officers who took Mr. Hallers' oral and written confessions, and Mr. Haller. Trooper Finkenbinder testified that he advised Mr. Haller of his Miranda rights and that Mr. Haller said he understood them. He then asked Mr. Haller to tell his side of the story, which Mr. Haller proceeded to do. Afterwards, Trooper Finkenbinder asked Trooper Jackson to take Mr. Haller's written statement. Trooper Jackson testified that Mr. Haller said Trooper Finkenbinder advised Mr. Haller of his rights and that Mr. Haller understood them. Mr. Haller then testified that he was under the influence of valium and was not aware that his statement could be used against him. At the end of the hearing, the trial court found that Mr. Haller had been given a Miranda warning advising him of his rights before he gave any statement and, therefore, his statement was admissible at trial. We find no error in this ruling and hold the statement was admissible. "A trial court's decision regarding the voluntariness of a confession will not be disturbed unless it is plainly wrong or clearly against the weight of the evidence." Syl. Pt. 3, State v. Vance, 162 W.Va. 467, 250 S.E.2d 146 (1978).

II

The other evidence offered in the State's case against Mr. Haller was the lay testimony of Mr. Carpenter and Mr. Westfall that Mr. Haller gave them cocaine, which they sampled, in exchange for the title to Mr. Carpenter's car. Appellant asserts that Mr. Carpenter and Mr. Westfall lacked the specific competency to qualify as lay witnesses capable of identifying cocaine under Rules 701 and 702, W.Va. Rules of Evidence. ¹ In the only other West Virginia case that parallels this set of facts, State v. Frazier, 162 W.Va. 602, 252 S.E.2d 39, 50 (1979) we held that the lay opinion of the prosecuting witness alone was not sufficient to prove the identity of the substance in question. "As a general rule, a person who possesses no special expertise is not qualified to give an opinion in a drug-related case that...