State v. Johnson

• Citation: 639 S.E.2d 789
• Decision Date: 29 November 2006
• Docket Number: No. 32978.,32978.
• Court: Supreme Court of West Virginia
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Ernest J. JOHNSON, Defendant Below, Appellant.

639 S.E.2d 789

STATE of West Virginia, Plaintiff Below, Appellee, v. Ernest J. JOHNSON, Defendant Below, Appellant.

No. 32978.

Supreme Court of Appeals of West Virginia.

Submitted: September 20, 2006.

Decided: November 29, 2006.

Concurring Opinion of Justice Starcher November 30, 2006.

Syllabus

1. "Generally, the sufficiency of an indictment is reviewed de novo. An indictment need only meet minimal constitutional standards, and the sufficiency of an indictment is determined by practical rather than technical considerations." Syl. Pt. 2, State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996).

2. "When reviewing a ruling on a motion to suppress, an appellate court should construe all facts in the light most favorable to the State, as it was the prevailing party below. Because of the highly fact-specific nature of a motion to suppress, particular deference is given to the findings of the circuit court because it had the opportunity to observe the witnesses and to hear testimony on the issues. Therefore, the circuit court's factual findings are reviewed for clear error." Syl. Pt. 1, State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996).

3. "`In order to lawfully charge an accused with a particular crime it is imperative that the essential elements of that crime be alleged in the indictment.' Syllabus Point 1, State ex rel. Combs v. Boles, 151 W.Va. 194, 151 S.E.2d 115 (1966)." Syl. Pt. 4, State v. Palmer, 210 W.Va. 372, 557 S.E.2d 779 (2001).

4. "`An indictment for a statutory offense is sufficient if, in charging the offense, it substantially follows the language of the statute, fully informs the accused of the particular offense with which he is charged and enables the court to determine the statute on which the charge is based.' Syllabus Point 3, State v. Hall, 172 W.Va. 138, 304 S.E.2d 43 (1983)." Syl. Pt. 8, State v. Bull, 204 W.Va. 255, 512 S.E.2d 177 (1998).

5. "Rule 12(b)(2) of the West Virginia Rules of Criminal Procedure requires that a defendant must raise any objection to an indictment prior to trial. Although a challenge to a defective indictment is never waived, this Court literally will construe an indictment in favor of validity where a defendant fails timely to challenge its sufficiency. Without objection, the indictment should be upheld unless it is so defective that it does not, by any reasonable construction, charge an offense under West Virginia law or for which the defendant was convicted." Syl. Pt. 1, State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996).

6. "`"The delay in taking a defendant to a magistrate may be a critical factor [in the totality of circumstances making a confession involuntary and hence inadmissable] where it appears that the primary purpose of the delay was to obtain a confession from the defendant." Syllabus Point 6, State v. Persinger, , 286 S.E.2d 261 (1982), as amended.' Syllabus Point 1, State v. Guthrie, 173 W.Va. 290, 315 S.E.2d 397 (1984)." Syl. Pt. 8, State v. Milburn, 204 W.Va. 203, 511 S.E.2d 828 (1998).

A. Courtenay Craig, Esq., Huntington, for Appellant.

Darrell V. McGraw, Jr., Esq., Attorney General, Robert D. Goldberg, Esq., Assistant Attorney General, Charleston, for Appellee.

PER CURIAM.

This case is before the Court on appeal from the September 12, 2005, Order of the Circuit Court of Cabell County, which resentenced Appellant for the purposes of filing the instant appeal. The court had previously entered an Order on May 13, 2003, accepting a jury's verdict of guilty of second degree robbery; and on May 6, 2004, the court entered an Order sentencing Appellant to life with mercy as a recidivist. This Court has before it the petition for appeal, the briefs of the parties, and all matters of record. Following the arguments of the parties and a review of the record herein, this Court finds that the circuit court erred in sustaining the conviction of second degree robbery. Accordingly, this Court reverses the September 12, 2005, Order of the circuit court.

I. FACTS

In the late evening hours of June 21, 2002, Allen Myers and Ernest Johnson walked into the Marathon Gas Station on Norway Avenue in Huntington, West Virginia, and approached the clerk, Charles Adams. Myers asked Adams if he could make change for a twenty dollar bill. Myers reached into his sock, purportedly to find the twenty dollar bill, but was unable to produce it. Myers then looked up at Adams and said, "You know what's up. He has got a gun," referring to Johnson. Johnson then said, "Give me all of the money now." Johnson kept his hand in his pocket, and at no time was a gun actually produced. The entire incident was recorded by a security camera, and the tape eventually led to the identification of Myers and Johnson.

Johnson was arrested on June 26, 2002, and was taken into custody upon which he gave a Mirandized statement to Detective Chris Sperry about his involvement in the robbery. In that statement, Johnson denied any involvement in the robbery.¹

Johnson was indicted on a single count of first degree robbery on September 13, 2002. In pertinent part, that indictment alleged that on June 21, 2002, Johnson committed:

the offense of "1ST DEGREE ROBBERY" by unlawfully and feloniously robbing Charles Adams, by using the threat of deadly force by threatening the presentment and use of a firearm, and did steal money belonging to Marathon Gas Station, lawfully in the care, custody and control of Charles Adams by virtue of his employment with Marathon Gas Station, against his will and against the peace and dignity of the State.

The matter went to trial before a jury on May 1, 2003.

Following the State's case, the defense addressed the court as follows:

First of all, the First Degree Robbery charge has to go because there is no proof by the State of use or presentment of a firearm. The statute was changed in the year 2000 and everyone has testified that there was no gun. So, that charge has to go. So, that's my first motion.²

The defense next moved for a judgment of acquittal. There was a discussion between the court and counsel for both parties on the language of the first degree robbery statute and the changes made to the statute in 2000 during which the State acknowledged the change in the statute but insisted that the change in the language in no way changed the intent behind the statute. After hearing argument on the motions, the court denied Johnson's motions. The court reserved that it would review the matter at the close of evidence.

Testimony concluded on May 5, 2003. Following the close of the defense's case, the defense again challenged the language contained in the indictment and moved for a judgment of acquittal. The court again denied the motion.

The jury found Johnson guilty of second degree robbery, a lesser included offense of the indicted offense of first degree robbery. Thereafter, the State filed an information charging Johnson as a recidivist, citing a 1996 Louisiana conviction for burglary and a 1997 Louisiana conviction for indecent behavior with a juvenile.

In the meantime, on August 4, 2003, the defense filed a motion for arrest of judgment, the basis of which was that the language contained in the indictment was not consistent with language found in the West Virginia Code. The court heard arguments from both the defense and the State and took the matter under advisement. On January 14, 2004, the court denied the motion.

The recidivism trial was conducted before a jury on April 26, 2004, following which the jury found that Johnson was indeed the man convicted in the two Louisiana cases charged in the information. The court promptly sentenced Johnson to life in prison with mercy. The defense filed a motion to dismiss and/or set aside the judgment in the recidivist trial based primarily upon a proportionality argument, but the court ultimately denied the motion. Johnson now appeals.

II. STANDARD OF REVIEW

Three main issues are presented in this case. The first issue centers on the sufficiency of the indictment. The second issue questions whether the custodial statement made by Johnson to the police should have been suppressed because Johnson was not promptly presented before a magistrate following his arrest. The final issue charges that Johnson's life sentence as a recidivist should be vacated because it is unconstitutionally disproportionate.

As to the indictment issue, we have held that "Generally, the sufficiency of an indictment is reviewed de novo. An indictment need only meet minimal constitutional standards, and the sufficiency of an indictment is determined by practical rather than technical considerations." Syllabus Point 2, State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996). As to the suppression issue, in Syllabus Point 1 of State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996), we held that:

When reviewing a ruling on a motion to suppress, an appellate court should construe all facts in the light most favorable to the State, as it was the prevailing party below. Because of the highly fact-specific nature of a motion to suppress, particular deference is given to the findings of the circuit court because it had the opportunity to observe the witnesses and to hear testimony on the issues. Therefore, the circuit court's factual findings are reviewed for clear error.

Finally, as to the recidivism issue we have explained that "[t]he Supreme Court of Appeals reviews sentencing orders . . . under a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands." Syllabus Point 1, in part, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997). With these standards in mind, we turn to a discussion of the case.

III. DISCUSSION

A. The Sufficiency of the Indictment

Johnson's first argument is that the indictment under which he was charged was insufficient inasmuch as it charged an offense which no longer existed in West Virginia at the time of his arrest. Therefore, Johnson contends that the court had...