State v. Johnson

• Decision Date: 18 December 1973
• Docket Number: No. 13389,13389
• Citation: 157 W.Va. 341,201 S.E.2d 309
• Parties: STATE of West Virginia v. Ivan JOHNSON.
• Court: West Virginia Supreme Court

Page 309

201 S.E.2d 309

157 W.Va. 341

STATE of West Virginia v. Ivan JOHNSON.

No. 13389.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 9, 1973.

Decided Dec. 18, 1973.

Syllabus by the Court

1. The general powers of the police extend to making an arrest without a warrant when the arresting officer, on reasonable grounds, believes that the subject individual has committed, is committing, or is about to commit a felony.

2. Chapter 52, Article 1, Section 2, of the Code of West Virginia, 1931, as amended, which requires jury commissioners to exclude from jury service '. . . idiots, lunatics, paupers, vagabonds, habitual drunkards, and persons convicted of infamous crimes' is not unreasonable or arbitrary, and therefore, Code, 52--1--2, as amended, is constitutional as written.

3. Chapter 52, Article 1, Section 4 of the Code of West Virginia, 1931, as amended, which requires jury commissioners to select for jury duty persons of sound judgment, good moral character, and free from legal exceptions is not unreasonable or arbitrary and therefore, Code, 52-- 1--4, as amended, is constitutional as written.

4. 'Where instructions given clearly and fairly lay down the law of the case, it is not error to refuse other instructions on the same subject. The court need not repeat instructions already substantially given.' Syl. pt. 4, State v. Bingham, 42 W.Va. 234, 24 S.E. 883 (1896).

5. Although the State is required to prove a proper chain of custody of a contraband substance up to the point where it is analyzed by the State's expert, it is not necessary for the State to exclude every hypothetical source of confusion when a theory of such confusion was not advanced at trial in a timely fashion and facts were not presented in support of such theory.

Valentine, Wilson & Partain, William G. Wilson, Logan, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., E. Leslie Hoffman, III, Betty L. Caplan, Asst. Attys. Gen., Charleston, for defendant in error.

NEELY, Justice:

This is an appeal from an April 12, 1973 judgment of the Circuit Court of Logan County, entered upon a jury verdict which found the defendant, Ivan Johnson, guilty of possession of two pills of lysergic acid diethylamide, commonly known as LSD. Defendant assigns as error the circuit court's adverse rulings on (1) the suppression of evidence which allegedly was the fruit of an unconstitutional search and seizure, (2) the constitutional validity of Chapter 52, Article 1, Section 2 of the Code of West Virginia, 1931, as amended, which excludes from jury service idiots, lunatics, paupers, vagabonds, habitual drunkards, and persons convicted of infamous crimes, (3) the failure to give a jury instruction which would have cautioned the jury closely to scrutinize the testimony of an informant and (4) failure of the State to prove a proper chain of custody of certain evidence.

At trial, the evidence revealed that in the late evening hours of July 7, 1972, the defendant, while attempting to inquire about a friend at the State Police Headquarters, was arrested and thoroughly searched by the State Police just after the defendant had parked his automobile near the headquarters building. The arrest and search were executed without warrants, and the search disclosed two LSD pills and two marijuana cigarettes. In September 1972 defendant was indicted for illegal possession of the two LSD tablets. There was a separate evidence suppression hearing at trial in which an informant testified that on July 7, 1972 the defendant was present in the defendant's automobile, when the informant purchased '13 hits of acid' from a third person. Although the defendant denies being present at the time of sale, he admits that he had spent part of the evening with the alleged seller of the illegal drugs. In the evening hours, the State Police arrested the alleged seller and several other individuals for various violations of the Controlled Substances Act, based upon the informant's statement concerning the events which allegedly transpired earlier in the evening. At the time of these arrests, the defendant, according to his own testimony, was visiting with his girl friend.

The arresting State Trooper testified at the suppression hearing that upon the informant's narrative of the evening's events, the defendant was subject to arrest for transfer of a controlled substance because the defendant was present with the third party seller of the illegal drugs when the sale to the informant was consummated. After the sale to the informant and the informant's statement, the State Police arrested the alleged seller of the drugs. About midnight of July 7, 1972, the State Police were informed that the defendant could be found in a parking lot less than one hundred fifty feet from the State Police Headquarters, and upon this information a State Trooper left the headquarters building and arrested the defendant for the transfer of controlled substances. The defendant was then searched in the police headquarters building, and the State argues that the search was incident to a lawful arrest based upon probable cause. At the evidence suppression hearing the trial judge read into the record part of the informant's written statement to the State Police, upon which the defendant's arrest was predicated, which said: 'I asked Ivan (the defendant) and James where the (sic) bought them (sic) the drugs and they wouldn't tell me. " Upon this evidence, the circuit court overruled defendant's motion to suppress and we hold that the circuit court did not err.

It is well settled law that the general powers of the police extend to executing an arrest without a warrant when the arresting officer, on reasonable grounds, believes that the subject individual has committed, is committing, or is about to commit a felony. United States v. Snyder, 278 F. 650 (N.D.W.Va.), rev'd. on another point, 285 F. 1 (C.A. 4th Cir. 1922); Morris v. Boles, 386 F.2d 395 (C.A. 4th Cir. 1967) cert. denied, 390 U.S. 1043, 88 S.Ct. 1640, 20 L.Ed.2d 304 (1968); United States v. Irby, 304 F.2d 280 (C.A. 4th Cir. 1961) cert. denied, 371 U.S. 830, 83 S.Ct. 39, 9 L.Ed.2d 67 (1962). Furthermore, it is well settled law that 'reasonable grounds' or 'probable cause' can arise when an officer receives a statement from an informant where the informant's statement is reasonably corroborated by other matters within the officer's knowledge. United States v. White, 342 F.2d 379 (C.A. 4th Cir. 1964) cert. denied, 382 U.S. 871, 86 S.Ct. 148, 15 L.Ed.2d 109 (1965). Lastly, it is well settled law that if an officer has the right to arrest on probable cause and he intends to arrest, he may arrest and search the subject individual without resort to the preferable method of obtaining an arrest or search warrant, if he has reason to fear the escape of the person to be arrested or the imminent destruction of evidence. Dickey v. United States, 332 F.2d 773 (C.A. 9th Cir. 1964) cert. denied, 379 U.S. 948, 85 S.Ct. 444, 13 L.Ed.2d 545; Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685.

Applying these rules to the circumstances of the defendant's arrest and search, this Court finds that the circuit court could have found that (1) the arresting officer had reasonable grounds to believe the defendant either committed the felony of transferring a controlled substance, or alternatively was a principal in the second degree because, according to the informant's statement, defendant was present in the car aiding an abetting in the transaction, Chapter 61, Article 11, Section 6, Code of West Virginia, 1931; State v. Franklin, 139 W.Va. 43, 79 S.E.2d 692 (1953), (2) the informant's statements were corroborated by the details of the planned and executed events of the evening, and, (3) the defendant was near his automobile at the time of arrest, thus increasing the likelihood of his flight or his destruction or removal of contraband. The police were notified that the defendant was within view of the police headquarters, and immediately upon that notification, the police were in close pursuit. There was no opportunity whatsoever to obtain an arrest warrant.

Defendant next challenges the circuit court's overruling of the defendant's motion to quash the indictment on the grounds that Code, 52--1--2, as amended, and Code, 52--1--4, as amended, governing the selection of the jury panel are unconstitutional. Code, 52--1--2, as amended, provides:

'The judge of any court may, in his discretion, exempt or excuse any person from jury service when it appears that such service would be improper or work an undue hardship. The following persons shall be disqualified from serving on juries: Idiots, lunatics, paupers, vagabonds, habitual drunkards and persons convicted of infamous crimes.'

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