State v. Kennedy
| Decision Date | 21 November 1978 |
| Docket Number | No. 13919,13919 |
| Citation | 249 S.E.2d 188,162 W.Va. 244 |
| Parties | STATE of West Virginia v. James A. KENNEDY. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. "In determining whether an out-of-court identification of a defendant is so tainted as to require suppression of an in-court identification a court must look to the totality of the circumstances and determine whether the identification was reliable, even though the confrontation procedure was suggestive, with due regard given to such factors as the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." Syl. pt. 3, State v. Casdorph, W.Va., 230 S.E.2d 476 (1976).
2. Great latitude is allowed counsel in argument of cases, but counsel must keep within the evidence, not make statements calculated to inflame, prejudice or mislead the jury, nor permit or encourage witnesses to make remarks which would have a tendency to inflame, prejudice or mislead the jury.
Bogarad & Robertson, Martin S. Bogarad, William R. Kiefer, Weirton, for plaintiff in error.
Chauncey H. Browning, Atty. Gen., Stephen D. Herndon, Asst. Atty. Gen., Charleston, for defendant in error.
This is an appeal from a conviction of breaking and entering under W.Va.Code, 61-3-12 (1923). The appellant, James A. Kennedy, contends that the circuit court erred by admitting into evidence an in-court identification of appellant based on an improper out-of-court identification. We agree and reverse.
Appellant Kennedy was convicted of breaking and entering Emig's Store in Wellsburg, West Virginia. At approximately 6:30 a. m. on November 10, 1974, Thomas Zurbach, manager of Emig's Store, went to his store to get a ladder. When he tried to open the back door, he found it was partially blocked. He reached around the door to turn on the lights and heard footsteps and a "jingle" indicating someone was exiting from the front. Mr. Zurback ran around the outside of the store and observed two persons in front of the store. He pursued one of these through Wellsburg a pursuit later joined by Officer Mike Friend of the Wellsburg Police Department. The pursuers lost their quarry and Mr. Zurbach returned to his store while Officer Friend continued searching. After Mr. Zurbach checked his store for missing merchandise, he accompanied Chief of Police Don Jackson to the police station. Chief Jackson received a call that Officer Friend and others had apprehended a suspect, Mr. Kennedy, hiding in overgrowth between two buildings and were bringing him in. Mr. Jackson asked Mr. Zurbach to remain at the station and to nod if the suspect were the man he had been pursuing. Appellant was brought in handcuffs and Mr. Zurbach nodded to affirm a positive identification.
At trial Mr. Zurbach testified that he was never closer to his quarry than "the white doors in the courtroom" (apparently a distance of from forty to sixty feet) and never saw his quarry's face. His identification was based on the appellant's clothing, hair style, and general build. It was unclear whether Mr. Zurbach gave any description to the police before the suggestive out-of-court identification. At trial Mr. Zurbach was allowed to identify appellant based on his prior out-of-court identification. Appellant contends that the pretrial identification was unduly suggestive and the in-court identification based on it should have been excluded.
The United States Supreme Court has clearly articulated the correct analysis in this type of case. In Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the Court set forth the following test which we have consistently followed:
(T)he central question (is) whether under the 'totality of the circumstances' the identification was reliable even though the confrontation procedure was suggestive. As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.
409 U.S. at 199, 93 S.Ct. at 382 as cited in State v. Casdorph, W.Va., 230 S.E.2d 476 at 481 (1976).
After Biggers the courts of appeal developed at least two approaches to identification evidence: one focused on procedure and required exclusion of the out-of-court identification without regard to reliability whenever it was obtained by unnecessarily suggestive means and the other relied on the totality of the circumstances to admit out-of-court identifications which were obviously reliable despite suggestive procedures. The split in the circuits was resolved by Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), which rejected the Per se exclusionary rule and reaffirmed the totality of the circumstances test of which "reliability is the linchpin." 432 U.S. at 114, 97 S.Ct. 2243. 1 The factors which would indicate reliability set forth in Biggers are to be considered and weighed against the corrupting effect of the suggestive procedure, which obviously would indicate lack of reliability. In recent years we have always followed the totality of the circumstances test regarding suggestive identifications. State v. Casdorph, W.Va., 230 S.E.2d 476 (1976); State v. Slie, W.Va., 213 S.E.2d 109 (1975).
We must now apply the detailed analysis of Brathwaite to the facts in the present case:
(1) The opportunity of the witness to view the criminal at the time of the crime. Mr. Zurbach testified that he was never closer than forty to sixty feet to his prey and never saw his face....
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...7-106(C)(1) (forbids reference to matters not supported by admissible evidence). We recognized this point in State v. Kennedy, 162 W.Va. 244, 249, 249 S.E.2d 188, 190 (1978), where we admonished that a prosecutor's argument to the jury "must keep within the evidence." And in State v. Critze......
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...factors in evaluating the identification. See, e. g., Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); State v. Kennedy, 249 S.E.2d 188 (W.Va.1978); State v. Williams, 249 S.E.2d 752 (W.Va.1978); State v. Casdorph, 230 S.E.2d 476 (W.Va.1976). In State v. Casdorph, supra, ......
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