State v. Lopez, 23044

• Decision Date: 18 July 1996
• Docket Number: No. 23044,23044
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Roberto Jose LOPEZ, Defendant Below, Appellant.

Page 227

476 S.E.2d 227

197 W.Va. 556

STATE of West Virginia, Plaintiff Below, Appellee, v. Roberto Jose LOPEZ, Defendant Below, Appellant.

No. 23044.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 17, 1996.

Decided July 18, 1996.

Syllabus by the Court

1. "The essential predicates of a plain view warrantless seizure are (1) that the officer did not violate the Fourth Amendment in arriving at the place from which the incriminating evidence could be viewed; (2) that the item was in plain view and its incriminating character was also immediately apparent; and (3) that not only was the officer lawfully located in a place from which the object could be plainly seen, but the officer also had a lawful right of access to the object itself." Syllabus point 3, State v. Julius, 185 W.Va. 422, 408 S.E.2d 1 (1991).

2. "The State must prove, at least by a preponderance of the evidence, that confessions or statements of an accused which amount to admissions of part or all of an offense were voluntary before such may be admitted into the evidence of a criminal case." Syllabus point 5, State v. Starr, 158 W.Va. 905, 216 S.E.2d 242 (1975).

3. "The West Virginia Rules of Evidence remain the paramount authority in determining the admissibility of evidence in circuit courts. These rules constitute more than a mere refinement of common law evidentiary rules, they are a comprehensive reformulation of them." Syllabus point 7, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994).

4. "The admissibility of photographs over a gruesome objection must be determined on a case-by-case basis pursuant to Rules 401 through 403 of the West Virginia Rules of Evidence." Syllabus point 8, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994).

5. "Although Rules 401 and 402 of the West Virginia Rules of Evidence strongly encourage the admission of as much evidence as possible, Rule 403 of the West Virginia Rules of Evidence restricts this liberal policy by requiring a balancing of interests to determine whether logically relevant is legally relevant evidence. Specifically, Rule 403 provides that although relevant, evidence may nevertheless be excluded when the danger of unfair prejudice, confusion, or undue delay is disproportionate to the value of the evidence." Syllabus point 9, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994).

6. "All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by the Constitution of the State of West Virginia, by these rules, or by other rules adopted by the Supreme Court of Appeals. Evidence which is not relevant is not admissible." Rule 402, West Virginia Rules of Evidence.

7. " 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Rule 401, West Virginia Rules of Evidence.

Pamela Jean Games-Neely, Prosecuting Attorney, Janet L. Scalia, Assistant Prosecuting Attorney, Martinsburg, for Appellee.

Paul G. Taylor, Henry, Grant, Taylor & Janelle, Martinsburg, for Appellant.

PER CURIAM:

The defendant in this proceeding, Roberto Jose Lopez, was sentenced to life in the State penitentiary without a recommendation of mercy for the felony murder of Elizer Peralta, who died as a result of burns sustained in an apartment fire which erupted on December 30, 1992. On appeal, the defendant claims that the Circuit Court of Berkeley County erred in admitting into evidence his gasoline-soaked clothing which was seized without a warrant. He also claims that the circuit court erred in admitting into evidence a handgun discovered near the fire scene and that the court erred in admitting a statement which he gave shortly after the eruption of the fire. The defendant further argues that the trial court erred in admitting a gruesome photograph of the victim, Elizer Peralta, and that the trial court erred in refusing to accept a plea agreement which he and the State entered into.

After reviewing the issues raised and the record presented, this Court concludes that the trial court did commit reversible error by admitting into the evidence the clothing, and the statement, and, as a consequence, this Court reverses the defendant's conviction and remands this case for a new trial. The Court does not conclude that the trial court committed reversible error in rejecting the plea agreement, and since the rules relating to the admission of gruesome photographs have been altered since the defendant's trial, the Court believes that upon retrial the admissibility of the photograph should be assessed under the new rules. The Court also believes that the relevancy of the handgun should be reassessed on retrial.

The evidence in this case shows that on December 30, 1992, the defendant, who was an undocumented Mexican alien working as an agricultural laborer, and who for practical purposes did not speak the English language, while visiting friends who lived in an apartment located on South Raleigh Street in Martinsburg, West Virginia, became involved in an argument and struggle. In the course of the struggle, one of the individuals present, Rene Cajero, displayed a handgun which another party, Maurillo Chaparro forcibly took from him. Maurillo Chaparro shortly thereafter forced Rene Cajero, Fernando Martinez, and the defendant, Roberto Jose Lopez, to leave the apartment.

Some ten minutes later, Emigdio Olyera, who had remained in the apartment, left, and as he was leaving, he observed the parties who had been expelled from the apartment standing outside the building. One of them, Rene Cajero, indicated to Mr. Olyera that he was "waiting" for Maurillo Chaparro.

At around 10:50 p.m., Maurillo Chaparro, who had remained in the apartment, noticed smoke pouring under the door. He opened it, and a flaming bottle flew into the apartment. A serious fire erupted, and the Martinsburg City Fire Department was called. In the course of the fire Elizer Peralta, who was also in the apartment, suffered second and third degree burns. He died the next day.

In investigating the fire, the Martinsburg City Fire Department quickly determined that gasoline had been used to start the fire and that a passing motorist, Darlene Mancherry, had seen a Mexican male, who appeared to be on fire, exiting the building at about the time the fire erupted. Ms. Moncherry later identified the defendant, Roberto Jose Lopez, as being that Mexican male. The investigation further revealed that shortly before the fire erupted, Virginia Turner, a sales clerk at a nearby 7-Eleven convenience store, had sold a male Mexican, whom she could not later identify, approximately two dollars worth of gasoline. Lastly, a Martinsburg City Police detective discovered a gun just outside the burning building.

About an hour after the fire erupted, at around 11:43 p.m., the nearby Winchester, Virginia, Rescue Squad received a request to transport a burned Hispanic male to the Winchester Hospital. Because there was some suspicion that the individual had been involved in the Martinsburg fire, an officer of the Martinsburg City Police Department, Detective Smartwood, was contacted. This officer traveled to Winchester and met Officer Milholland of the Winchester City Police Department, who had earlier procured the services of a high school Spanish teacher as an interpreter. The officers arrived at the Winchester Hospital at approximately 4:25 a.m. on December 31, 1992, and, before proceeding to contact the burn patient, who turned out to be the defendant in this proceeding, Roberto Jose Lopez, they stopped at a nursing station where they learned that the nurses had the patient's clothing out of view and that it was soaked with gasoline. They asked for it. The nurses produced it, and the police officers, without first obtaining a warrant, seized it.

The police officers and the interpreter then proceeded to the defendant's hospital room, where he gave a tape-recorded statement after he had been given his Miranda rights. In the statement he indicated that he had burned his hand when he spilled boiling water on it at a stove and that he had singed his hair when he bent over the stove.

The defendant was indicted for arson and for the felony murder of Elizer Peralta during the February, 1993 term of the Grand Jury of Berkeley County. No trial was conducted under this indictment, however, and the defendant was reindicted during the May, 1993, term of the grand jury.

Prior to the scheduled trial date, counsel for the defendant and the Berkeley County Prosecuting Attorney's Office entered into plea bargain negotiations. The negotiations resulted in an agreement under which the defendant agreed to plead guilty to first degree murder with a binding recommendation of mercy, and at a hearing conducted on September 3, 1993, the plea agreement was discussed before the circuit court, and the circuit court informed the parties that "[t]he court doesn't feel that it could in good conscience dispense that particular sentence merely by agreement," and the court refused to accept the agreement.

After the breakdown of the plea negotiations, a jury trial was conducted on September 25, 1993, and at the conclusion of that trial the defendant was convicted of the felony murder of Elizer Peralta and was sentenced to life in the penitentiary without a recommendation of mercy. Rene Cajero had earlier been charged with and convicted of the same crime and had received the same sentence.

The first question in the present proceeding is whether the circuit court erred by admitting into evidence of the defendant's clothing, which was obtained at the nursing station at the Winchester Hospital. The defendant claims that this clothing was obtained by the State through an illegal search and seizure and that the trial court should have suppressed its use as evidence.

The record indicates that after the...