State v. Harr, 13077
| Decision Date | 06 March 1973 |
| Docket Number | No. 13077,13077 |
| Citation | 156 W.Va. 492,194 S.E.2d 652 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia v. Robert HARR. |
Syllabus by the Court
1. If the defendant in a criminal trial objects to the admissibility of evidence on the ground that it was obtained by an unlawful search, the admissibility of such evidence should be determined by the court, out of the presence of the jury, after hearing evidence pertaining to the search warrant and the manner in which the evidence was obtained.
2. A hearing on the admissibility of evidence allegedly obtained by an unlawful search contemplates a meaningful hearing, at which both the state and the defendant should be afforded the opportunity to produce evidence and to examine and cross-examine witnesses.
3. Where it appears that the prosecuting attorney has advised the state's witnesses to refrain from talking to counsel for the defense, a motion requesting the court to compel such witnesses to hold themselves available for such purpose should be granted since the denial of such motion may effectively frustrate the preparation of a proper defense and thereby deprive the defendant of a fair trial.
4. 'A person charged with possession of an illegal drug should be permitted to examine the alleged illegal drug under proper supervision and control.' Point 3, Syllabus, State v. Smith, W.Va. (193 S.E.2d 550).
5. 'Where the record of a criminal trial shows that the cumulative effect of numerous errors committed during the trial prevented the defendant from receiving a fair trial, his conviction should be set aside, even though any one of such errors standing alone would be harmless error.' Point 5, Syllabus, State v. Smith, W.Va. (193 S.E.2d 550).
Stanley E. Preiser, Leo Catsonis, Charleston, Michael Tomasky, Morgantown, for plaintiff in error.
Chauncey H. Browning, Atty. Gen., Richard E. Hardison, Willard A. Sullivan, Asst. Attys. Gen., Charleston, for defendant in error.
This case is before the Court on a writ of error to a final judgment of the Circuit Court of Monongalia County. Robert Harr, the appellant, sometimes herein called 'defendant', was convicted in a trial before a jury upon an indictment which charged him with felonious and unlawful possession for sale of 'a narcotic drug known as Cannabis, and more commonly known as Marijuana'. The second count of the indictment charged that 'Robert Harr * * * did unlawfully and feloniously * * * manufacture, possess, have under his control, sell prescribe, administer, dispense and compound' the above named substance. Upon the denial of the defendant's motion for a new trial, this appeal was prosecuted.
On May 7, 1969, while under assignment as a member of the West Virginia Department of Public Safety to investigate the reported possession and sale of marijuana on the university campus in Morgantown, Trooper James L. Giles approached the defendant, a university student, at his apartment in Summit Hall, a student dormitory. On this occasion, as revealed by the record, Trooper Giles asked Harr to sell him some 'grass or smoke'. Upon being told more than once that he, Harr, did not have any such substance, Trooper Giles persisted in his request, which, it is contended by the defendant, under the circumstances, could be construed as intimidation of the defendant or entrapment.
As admitted by the Trooper, he was dressed 'rather shabbily', being attired in blue jeans. He had a mustache and beard and what is commonly known as an Afro hair style. Giles testified that he was not drinking at the time but that he had a cup of whiskey with him in an attempt to create the impression that he was intoxicated. Also, he offered Harr a drink, hoping that that would induce him to sell marijuana, to him. Accompanying him was one Billy Wells, who, according to Trooper Giles, was a large man, six feet five inches in height, in an obvious state of intoxication at the time.
Giles testified that after continued persuasion, the defendant went to a dresser, a drawer of which he unlocked with a key which he took from the top of said dresser. From this drawer he took a packet which Giles believed contained marijuana. His belief was based on placing some of the substance on the tip of his tongue, but he readily acknowledged on cross examination that he could not determine by this method whether or not it was marijuana.
The further testimony of Giles reveals that he purchased the packet from Harr for five dollars and that while his friend Wells was getting a ten dollar bill changed, the defendant showed him a pipe and attempted to get him to smoke some 'good stuff' which he said he had. Giles said that after he paid Harr he took the packet and left the apartment.
Following this incident, Trooper Giles testified that on May 10, 1969, he, along with Trooper J. R. Rogers and Trooper R. L. Cunningham, searched the defendant's room and seized the above mentioned pipe from the drawer in which he had formerly seen it. This search was made pursuant to a warrant obtained from Justice of the Peace Shale. The legality of this warrant is one of the questions repeatedly raised in the proceedings below and upon this appeal.
Thereafter, on October 9, 1969, the aforesaid indictment was returned and on October 13, 1969 the defendant was brought into court for arraignment. Having entered a plea of not guilty, on October 20, 1969 the trial was set for November 3, 1969. Many pleas and motions were filed by the defendant which raised a number of issues most vital to the defense of his case. After a hearing, the validity and substance of which is attacked by the defendant, all of the pleas and motions were denied. This occurred on October 30th, just four days before the trial was to begin.
The court's action prompted the defendant to request a continuance within that term, contending that by reason of the blanket denial by the court of all of his pleas and motions he could not properly prepare his defense by November 3rd. The motion for a continuance was denied, and, as aforesaid, the jury found the defendant guilty as charged in the indictment.
In his petition for a writ of error and supersedeas to this Court the defendant's assignments of error number twenty-eight. Upon examination of the record, however, we do not deem it necessary to consider all of such assignments but will confine our discussion to those which, in our opinion, are dispositive of this appeal.
One of the principal assignments of error upon which the defendant relies is that the state's evidence was wrongfully admitted, it being alleged that it was obtained by an unlawful search. The admissibility of such evidence was challenged by the defendant by various pleas and motions prior to the trial. It was his expressed position on those occasions that, no probable cause having been shown before the justice of the peace, the search warrant was invalid, thereby causing the fruits of the warrant to be inadmissible.
Upon objection to the admissibility of the state's evidence, the court held a hearing to determine that question. The prosecuting attorney was permitted to call Trooper Giles to the stand and, through him, to develop the state's case as to the admissibility of the evidence. When this witness had completed his testimony the court refused repeated requests by the defendant to permit him to produce evidence through various witnesses in an effort to show that the search warrant was invalid. It was the defendant's position that by calling Justice of the Peace Shale to the stand, he could prove conclusively that the warrant was obtained without probable cause having been shown. The defense made known to the court that it would also call Trooper Rogers, Sergeant White and Mrs. Friend, Clerk of the Circuit Court, to support its contention. In addition, neither the warrant nor the affidavit relied on by the state is a part of the record. As aforesaid, the court refused to permit the defendant to call any witnesses and ruled that the evidence was admissible.
It has long been held that before a legal search warrant can be issued by a judicial tribunal, probable cause...
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...See 1 F. Cleckley, Handbook on West Virginia Criminal Procedure 549 (1985).15 We spoke to a related point in Syllabus Point 3 of State v. Harr, 156 W.Va. 492, 194 S.E.2d 652 (1973), where we said:"Where it appears that the prosecuting attorney has advised the state's witnesses to refrain fr......
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...not to speak with a defendant or defense counsel, or otherwise unreasonably obstruct access to such witnesses. State v. Harr, 156 W.Va. 492, 194 S.E.2d 652 (1973). However, a government witness who does not wish to speak to or be interviewed by the defendant or defense counsel may not, abse......
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