State v. Harris

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

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.

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.

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 drove Moats around for several hours in Barbour, Taylor and Harrison Counties. 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 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 conducted an in camera hearing on the voluntariness of the defendant's consent to search. Whether the conviction must be set aside will depend on the matters developed upon remand. We are remanding this case based upon the principles evolved in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), which we have adopted in a number of recent cases. State ex rel. White v. Mohn, supra; State v. Clawson, W.Va., 270 S.E.2d 659 (1980); State v. Lawson, W.Va., 267 S.E.2d 438 (1980); State v. Brewster, W.Va., 261 S.E.2d 77 (1979). The purpose of the remand is to provide a hearing before the trial court to determine if the defendant's consent to search was voluntary. If it was, the conviction should be affirmed since we find that there is no other reversible error. If on the other hand the consent to search was not voluntary, the conviction must be set aside unless the trial court can determine that the evidence introduced was harmless beyond a reasonable doubt. Syllabus Point 1, State ex rel. White v. Mohn, supra ; Syllabus Point 5, State v. Clawson, supra.

II.

The defendant's second assignment of error relates to the admission of his taped recorded inculpatory statement. He contends that the trial court did not make a proper determination in regard to its authenticity. 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. Annot., 58 A.L.R.2d 1026, 1027-28 (1958). The following cases have used these factors in admitting sound recordings into evidence. People v. Vetri, 178 Cal.App.2d 385, 2 Cal.Rptr. 795 (1960); Gomien v. State, 172 So.2d 511 (Fla.1965); People v. Frison, 25 Mich.App. 146, 181 N.W.2d 75 (1970); State v. Myers, 190 Neb. 146, 206 N.W.2d 851 (1973); State v. Driver, 38 N.J. 255, 183 A.2d 655 (1962); Wilson v. State, 59 Wis.2d 269, 208 N.W.2d 134 (1974).

In the present case, the tape recorder was in good operating order and the testimony at the in camera hearing reveals that the officer operating the recorder had operated it in the past and was familiar with it. Further, the tape was kept in a sealed envelope in the evidence locker except for the period of time that the police secretary made a transcript of it. Both the defendant and the interviewing officer can be readily identified as the speakers on the tape. The defendant had been given and had waived his Miranda rights [Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)], prior to the taking of the statement and was not coerced or induced to make it. The defendant does not contend that the tape did not accurately reflect his statement or that there were additions, changes or deletions made to the tape itself.

The defendant suggests that there were certain areas of the tape that were inaudible. We reject this argument because the court reporter copied into the record the tape recording without any problem in understanding it and her transcript appears to carry a completely coherent statement. The trial court did remark that there were several areas of the tape that appeared inaudible but that a substantial portion was audible and made an understandable statement. The general...