State v. Harris, 14254

• Court: Supreme Court of West Virginia
• Writing for the Court: MILLER
• Citation: 286 S.E.2d 251,169 W.Va. 150
• Parties: STATE of West Virginia v. Louis Avery HARRIS, Jr.
• Docket Number: No. 14254,14254
• Decision Date: 19 January 1982

Page 251

286 S.E.2d 251 169 W.Va. 150 STATE of West Virginia
v.
Louis Avery HARRIS, Jr. No. 14254. Supreme Court of Appeals of West Virginia. Jan. 19, 1982.

Page 253

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." Syllabus Point 1, State v. Harr, 156 W.Va. 492, 194 S.E.2d 652 (1973).

2. "A consent to search agreement signed by an accused must be treated in the same manner as a confession and the trial court must, even in the absence of a specific request, determine the voluntariness of such consent before the evidence obtained by the search can be introduced into evidence." Syllabus Point 3, State v. McKinney, W.Va., 244 S.E.2d 809 (1978).

3. The general rule is that tape recorded inculpatory statements may be admitted into evidence and played to the jury, if they meet the following criteria: (1) A showing that the recording device was capable of taking testimony; (2) a showing that the operator of the device was competent; (3) an establishment of the authenticity and correctness of the recording; (4) a showing that changes, additions, or deletions have not been made; (5) a showing of the manner of the preservation of the recording; (6) an identification of the speakers; and (7) a showing that the testimony was voluntarily made without any kind of inducement.

4. A tape recording is not rendered inadmissible if it has inaudible areas so long as the recording as a whole is coherent and trustworthy.

[169 W.Va. 151] 5. "With regard to evidence bearing on any material issue, including the credibility of witnesses, the trial judge should not intimate any opinion, as these matters are within the exclusive province of the jury." Syllabus Point 4, in part, State v. Burton, W.Va., 254 S.E.2d 129 (1979).

6. A trial court judge should studiously avoid commenting to the jury in regard to his view of the voluntariness of the confession.

Jones, Williams, West & Jones and Jerald E. Jones, Clarksburg, for plaintiff in error.

Chauncey H. Browning, Atty. Gen., Thomas N. Trent, Asst. Atty. Gen., Charleston, and Brad Russell, Law Clerk, for defendant in error.

MILLER, Chief Justice:

The defendant, Louis Avery Harris, Jr., was convicted by a jury in the Circuit Court of Barbour County in July 1977 of kidnapping for the purpose or with the intent of evading capture or arrest after he had committed a crime. The defendant states four primary grounds of error. First, he contends the trial court failed to conduct an in camera hearing to determine the admissibility into evidence of items seized from his automobile. He secondly claims the trial court erred in admitting a tape recording of his interrogation by police officers. His third argument is that the trial court's statements to the jury regarding the tape recorded confession amounted to a vouching of its credibility. Finally, the defendant complains of the trial court's failure to give certain defense instructions to the jury.

On October 9, 1976, the defendant robbed the Creed Oil Company Station of currency and checks and abducted Jeffrey Moats, the employee on duty. The defendant then [169 W.Va. 152] drove Moats around for several hours in Barbour, Taylor and Harrison Counties.

Page 254

Moats escaped from the defendant on a country road in Harrison County and was shot at by the defendant. The defendant was apprehended on the same day, gave the police a tape recorded inculpatory statement and allegedly consented to a search of his automobile.

I.

The defendant contends that the trial court erred in failing to conduct an in camera hearing to determine the admissibility of the evidence seized from his automobile. The State sought to introduce some .22 caliber pistol cartridges and seven or eight checks allegedly taken from the Creed Oil Company which were seized from the defendant's automobile. The defendant objected to the validity of the search, however, the evidence seized was admitted into evidence because the State claimed that the defendant consented to the search. There is no dispute that the defense counsel objected to the introduction of the evidence and no in camera hearing was held to determine the validity of the consent to search. The State argues that there is sufficient evidence in the trial court record to resolve the fact issue here. We have carefully reviewed the record and do not find sufficient facts to resolve the issue. Cf. State ex rel. White v. Mohn, W.Va., 283 S.E.2d 914 (1981).

We have held that if a defendant objects to the admissibility of evidence on the ground that it was obtained by an unlawful search, the question of admissibility of such evidence should first be determined at an in camera hearing. In Syllabus Point 1 of State v. Harr, 156 W.Va. 492, 194 S.E.2d 652 (1973), we stated:

"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[169 W.Va. 153] and the manner in which the evidence was obtained."

See also State v. Pratt, W.Va., 244 S.E.2d 227 (1978). We further held in Syllabus Point 3 of State v. McKinney, W.Va., 244 S.E.2d 809 (1978):

"A consent to search agreement signed by an accused must be treated in the same manner as a confession and the trial court must, even in the absence of a specific request, determine the voluntariness of such consent before the evidence obtained by the search can be introduced into evidence."

See also State v. Craft, W.Va., 272 S.E.2d 46 (1980). In view of the foregoing law, we hold that it was error for the trial court not to have...