State v. Harless

Decision Date18 December 1981
Docket NumberNo. 15006,15006
Citation285 S.E.2d 461,168 W.Va. 707
PartiesSTATE of West Virginia v. Garland Wade HARLESS.
CourtWest Virginia Supreme Court

Syllabus by the Court

1. At common law, the definition of robbery was (1) the unlawful taking and carrying away, (2) of money or goods, (3) from the person of another or in his presence, (4) by force or putting him in fear, (5) with intent to steal the money or goods.

2. At common law, robbery could be accomplished either by actual physical force or violence inflicted on the victim or by intimidating the victim by placing him in fear of bodily injury. There were no degrees or grades of common law robbery.

3. W.Va.Code, 61-2-12, enacted in 1931, divides robbery into two separate classes calling for different penalties: (1) robbery by violence or by the use of a dangerous weapon, and (2) all other robberies.

4. A pretrial identification by photograph will be set aside if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

5. Even though there is an impermissibly suggestive pretrial photographic array, an in-court identification could be made if the identifying witness has a reliable basis for making an identification of the defendant which basis is independent of the tainted pretrial identification procedures.

6. Most courts have concluded that a photographic array will not be deemed excessively suggestive as long as it contains some photographs that are fairly representative of the defendant's physical features. The fact that some of the photographs are dissimilar to the defendant's appearance will not taint the entire array.

Robert E. Vital, Huntington, for appellant.

Chauncey H. Browning, Atty. Gen., Richard S. Glaser, Jr., Janet Frye Steele, Asst. Attys. Gen., Charleston, for appellee.

MILLER, Justice:

The defendant, Garland Wade Harless, was convicted by a jury of armed robbery and was sentenced to ten years in the State penitentiary by the Circuit Court of Cabell County. His primary error is the claim that the trial court incorrectly instructed the jury relative to the elements of the crime of robbery.

On January 3, 1979, at 6:30 p. m., Gloria Roberts was closing her beauty shop when her purse was grabbed and she was knocked backwards onto an iron post. No weapon was used in taking the purse, which contained $600.00 in cash and two diamond rings. On January 4, 1979, defendant was arrested attempting to pawn the rings owned by Mrs. Roberts and was charged with possession of stolen property. On January 7, 1979, Harless was indicted by the Grand Jury of Cabell County for armed robbery.

I.

Defendant argues that the trial court erred in giving the following instruction on the two degrees of robbery set forth in W.Va.Code, 61-2-12: 1

"COURT'S INSTRUCTION NO. 8

"(As Amended)

"The Court instructs the jury that under the indictment in this case, you may find one of three verdicts if the evidence so warrants: (1) Guilty of armed robbery; (2) Guilty of unarmed robbery; and (3) Not guilty.

"Armed robbery is when a person feloniously and forcibly takes from the person of another the goods or money of any value of such person by violence or by putting the person in fear.

"Unarmed robbery is when there is a felonious taking of another's property from her person and against her will but without violence or bodily force."

At common law, the definition of robbery was (1) the unlawful taking and carrying away, (2) of money or goods, (3) from the person of another or in his presence, (4) by force or putting him in fear, (5) with intent to steal the money or goods. State v. Fulks, 114 W.Va. 785, 173 S.E. 888 (1934); State v. Worthington, 109 W.Va. 449, 155 S.E. 313 (1930); State v. McAllister, 65 W.Va. 97, 63 S.E. 758 (1909); LaFave & Scott, Handbook on Criminal Law 697 (1972); 67 Am.Jur.2d Robbery § 1 (1973). Thus, at common law, robbery could be accomplished either by actual physical force or violence inflicted on the victim or by intimidating the victim by placing him in fear of bodily injury. State v. Alvis, 116 W.Va. 326, 180 S.E. 257 (1935). See also, Watkins v. Commonwealth, 287 S.W.2d 416 (Ky.1956); Gray v. State, 10 Md.App. 478, 271 A.2d 390 (1970); State v. Hawkins, 418 S.W.2d 921 (Mo.1967); State v. Sawyer, 224 N.C. 61, 29 S.E.2d 34 (1944); LaFave & Scott, Handbook on Criminal Law p. 698 (1972); 67 Am.Jur.2d Robbery § 20 (1973); Note, Robbery--Putting In Fear, 24 Minn.L.Rev. 708 (1940). There were no degrees or grades of common law robbery.

W.Va.Code, 61-2-12, enacted in 1931, divides robbery into two separate classes and calls for different penalties: (1) robbery by violence or by the use of a dangerous weapon, and (2) all other robberies. 2 By dividing robbery into these two categories, our legislature joined a number of other legislatures in recognizing a greater culpability and more severe punishment for a robbery committed by violent means than for a robbery committed by nonviolent means. 3 67 Am.Jur.2d Robbery §§ 3 and 4 (1973).

Prior to the 1931 revision of our Code, our robbery statute made the distinction between committing a "robbery being armed with a dangerous weapon" and any other robbery. The penalty for a robbery with a dangerous weapon was not less than ten years. The penalty for robbery committed by other means was not less than five years. 4 Because our pre-1931 statute made only one exception to the common law crime of robbery, that of being armed with a dangerous weapon, most of our cases continued to define robbery in common law terms. E.g., Franklin and Ponto v. Brown, Warden, 73 W.Va. 727, 81 S.E. 405 (1914); State v. McAllister, 65 W.Va. 97, 63 S.E. 758 (1909); State v. McCoy, 63 W.Va. 69, 59 S.E. 758 (1907).

Furthermore, prior to 1931, the use of the terms "armed" and "unarmed" to define the categories of robbery may have been justified since "armed with a deadly weapon" was the sole statutory distinction between the two classes of robbery. However, it is clear that after the 1931 amendment to our robbery statute, the terms "armed" and "unarmed" are no longer accurate. This point has been made in some of our post-1931 cases but there has been no serious attempt to abandon this terminology. E.g., State v. Cunningham, W.Va., 236 S.E.2d 459, 461 (1977); State ex rel. Vandal v. Adams, 145 W.Va. 566, 569, 115 S.E.2d 489, 490 (1960). 5

The 1931 change to our robbery statute clearly broadened the acts which the statute categorized as aggravated. 6 We believe that these acts should be called "aggravated" robbery since they do not relate solely to whether the defendant is armed. Such acts include robbery by "partial strangulation or suffocation or by striking or beating or by other violence to the person, or by the threat or presenting of firearms or other deadly weapon or instrumentality, whatsoever." W.Va.Code, 61-2-12.

The question which we must address is what type of acts make up the second category of acts which our statute defines as "robbery in any other mode," and which we now identify as "nonaggravated" robbery. It does not appear that we have had an occasion to discuss this question in any depth. The purpose of our robbery statute is to identify those means of committing robbery which are more aggravated in the sense that they are likely to produce bodily injury to the victim. These more aggravated acts carry a potentially heavier penalty. In analyzing the statutory acts which constitute aggravated robbery, all of them involve actual violence to the person except the act involving the "threat or presenting of firearms or other deadly weapon or instrumentality."

We previously noted that under the common law definition robbery could be committed by two general means. The first was by force and violence to the person, in which event there is no necessity to prove that the victim was placed in fear of bodily injury, since the actual force on the victim can be presumed to have engendered fear. Thomas v. State, 183 So.2d 297 (Fla.1966); State v. Ray, 354 S.W.2d 840 (Mo.1962), cert. denied, 371 U.S. 868, 83 S.Ct. 129, 9 L.Ed.2d 104; State v. Ball, 339 S.W.2d 783 (Mo.1960); Tones v. State, 48 Tex.Crim.App. 363, 88 S.W. 217 (1905). Cf., State v. Alvis, 116 W.Va. 326, 180 S.E. 257 (1935).

The second common law means of committing robbery was through intimidation, that is, by placing the victim in fear, usually of bodily injury. It is this second category under the common law definition which encompasses our nonaggravated form of statutory robbery. Therefore, the distinguishing feature of a nonaggravated robbery is that it is accomplished, not through violence to the victim or the threat or presentation of firearms or other deadly weapon or instrumentality, but through intimidation that induces fear of bodily injury in the victim. 7 In the case of an aggravated robbery, fear of bodily injury is not an essential element of the crime, since the actual physical force or violence or threat or presentation of firearms or other deadly weapon or instrumentality can be presumed to have created fear of bodily injury. 8

We accept the fact that the terminology of "armed" and "unarmed" robbery has become deeply ingrained in our law. It may take time to abandon the use of these terms and substitute "aggravated" and "nonaggravated" robbery. We do not hold today that the mere use of the terms "armed" and "unarmed" robbery in an instruction will result in reversible error. Moreover, we recognize that in the past this Court has accepted instructions which have defined "aggravated" or "armed" robbery in common law terms, that is, by use of the phrase "by force and violence or by putting the victim in fear. " (Emphasis added) E.g., State v. Hudson, 157 W.Va. 939, 943, 206 S.E.2d 415, 419 (1974); State v. Davis, 153 W.Va. 742, 757, 172 S.E.2d 569, 578 (1970).

This definition is incorrect under our robbery statute...

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