State v. Massey

• Decision Date: 22 July 1987
• Docket Number: No. 17093,17093
• Citation: 178 W.Va. 427,359 S.E.2d 865
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Carla S. MASSEY.

Page 865

359 S.E.2d 865

178 W.Va. 427

STATE of West Virginia v. Carla S. MASSEY.

No. 17093.

Supreme Court of Appeals of West Virginia.

July 22, 1987.

Syllabus by the Court

1. "W.Va.Code, 61-2-12, enacted in 1931, divides robbery into two separate classes calling for different penalties: (1) robbery by violence or by the use of a dangerous weapon, and (2) all other robberies." Syllabus Point 3, State v. Harless, 168 W.Va. 707, 285 S.E.2d 461 (1981).

2. "Where there is no evidentiary dispute or insufficiency on the elements of the greater offense which are different from the elements of the lesser included offense, then the defendant is not entitled to a lesser included offense instruction." Syllabus Point 2, State v. Neider, 170 W.Va. 662, 295 S.E.2d 902 (1982).

3. "Under Code, 61-2-12, one who enters a home or place of business of another and makes a gesture indicating that he has in his possession a firearm or other deadly weapon, immediately orders the person or persons there in charge to take a certain position, remain there, and not follow him, and then takes physical possession of money or other things of value then on said premises and in the control of the person or persons in charge thereof, is guilty of armed robbery. The threat of the use of a firearm or other deadly weapon constitutes robbery by putting in fear." Syllabus Point 1, State v. Young, 134 W.Va. 771, 61 S.E.2d 734 (1950).

4. " 'The admissibility of evidence as rebuttal is within the sound discretion of the trial court, and the exercise of such discretion does not constitute ground for reversal unless it is prejudicial to the defendant.' Syl. pt. 4, State v. Blankenship, 137 W.Va. 1, 69 S.E.2d 398 (1952), overruled on other grounds, State v. McAboy, 160 W.Va. 497, 236 S.E.2d 431, 432 (1977)." Syllabus Point 4, State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983).

5. "When a defendant in a criminal case raises the issue of insanity, the test of his responsibility for his act is whether, at the time of the commission of the act, it was the result of a mental disease or defect causing the accused to lack the capacity either to appreciate the wrongfulness of his act or to conform his act to the requirements of the law...." Syllabus Point 2, in part, State v. Myers, 159 W.Va. 353, 222 S.E.2d 300 (1976).

6. " 'The State must prove, at least by a preponderance of the evidence, that confessions or statements of an accused which amount to admissions of all or a part of an offense were voluntary before such may be admitted into the evidence of a criminal case.' Syl. pt. 5, State v. Starr, W.Va. , 216 S.E.2d 242 (1975)." Syllabus Point 1, State v. Vance, 162 W.Va. 467, 250 S.E.2d 146 (1978).

7. "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. 1, State v. Rickman, W.Va. , 278 S.E.2d 880 (1981); Syl. pt. 1, State v. Kennedy, W.Va. , 249 S.E.2d 188 (1978), citing Syl. pt. 3, State v. Casdorph, W.Va. , 230 S.E.2d 476 (1976)." Syllabus Point 4, State v. Boyd, W.Va. , 280 S.E.2d 669 (1981).

8. "A trial judge in a criminal case has a right to control the orderly process of a trial and may intervene into the trial process for such purpose, so long as such intervention does not operate to prejudice the defendant's case. 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, State v. Burton, 163 W.Va. 40, 254 S.E.2d 129 (1979).

9. A person convicted of aggravated robbery under W.Va.Code, 61-2-12, is eligible to be considered for probation under W.Va.Code, 62-12-2, unless there has been a specific finding of the use of a firearm under W.Va.Code, 62-12-2(c)(1) (1981), or the five-year felony bar under W.Va.Code, 62-12-2(a) (1981), applies.

Mary Rich Maloy, Asst. Atty. Gen., for appellant.

Charles M. Walker, Charleston, for appellee.

MILLER, Justice:

Carla S. Massey appeals her May 1, 1985 conviction for aggravated robbery. She assigns several errors, viz., that an instruction on nonaggravated robbery, a lesser included offense, ought to have been given by the court; that the State's rebuttal testimony was prejudicial; that her temporary insanity instruction was improperly refused; that her confession was involuntary and should have been suppressed; that two in-court identifications were tainted and improperly admitted; and that other procedural error was committed during trial. We hold that there is no reversible error. However, we find the trial court erred in its conclusion that the defendant was ineligible for probation, and remand for resentencing.

I.

On July 2, 1983, Vanessa Miller was working as a clerk at a Shop-A-Minit convenience store in Kanawha City. At approximately 8:30 a.m., a woman approached her while she was sweeping outside of the entranceway and asked if the store was open. Ms. Miller replied affirmatively and the two women walked together into the store. The woman had blond hair, was of average height, and wore blue jeans, a blue and white jersey-type shirt, and a blue bandana.

Within a few minutes, the woman walked to the check-out counter and pulled a handgun from her purse. She demanded that Ms. Miller give her the money in the cash register. Ms. Miller opened the register, removed $130 in cash, and handed it to her. The woman then ordered Ms. Miller into a cooler in the rear of the store and fled.

Ms. Miller promptly telephoned the police and reported the robbery. After their arrival, the police were advised that the woman had secured a taxi in the area of the robbery and they were able to apprehend her several minutes later while she was still in the taxi.

Shortly after her arrest, the defendant was advised of her Miranda rights, signed a waiver of rights form, and gave a statement to the police. She admitted having robbed the store, but stated that she had used a toy gun. She commented that she was "desperate for money" and had planned the robbery since the early morning. A motion to suppress the confession was denied after a lengthy hearing.

At trial, the defendant relied upon a defense of temporary insanity. She testified that she had been physically abused by her husband, and that he had made sexual advances toward her oldest daughter. Later, in March, 1983, she and her two daughters left the family home in Roane County. They arrived in the Charleston area in June, 1983, where they resided at a local YMCA and more recently at a motel. Her sole sources of income were welfare benefits and food stamps, which she received on a monthly basis.

She testified that on the morning of July 2, 1983, she left her motel room to purchase a package of cigarettes. When she arrived at the Shop-A-Minit store, she shopped briefly for other needed grocery items. As she approached the check-out register, she pulled a toy gun from her purse which she had found two days before. During the course of the robbery, she was not in control of her actions. As she put it: "It seemed like I was watching it." It had not been her intention to rob the store, and the events of the day remained largely unclear. Her testimony was impeached in large measure by her confession.

Thomas S. Knapp, M.D., a psychiatrist, testified that based upon his examination of the defendant, she lacked a substantial capacity to appreciate the wrongfulness of her conduct or to conform her conduct to the requirements of the law. Ralph S. Smith, Jr., M.D., a State rebuttal witness, was of the opinion that the defendant had suffered from a "depersonalization experience," but that she was criminally responsible for her acts on the day of the robbery.

On May 1, 1985, the jury returned a verdict of guilty with a "recommendation of mercy." ¹ At a sentencing hearing held on May 24, 1985, the trial judge gave consideration to placing the defendant on probation, but determined that she was ineligible due to the crime for which she was convicted. He then sentenced the defendant to ten years imprisonment, the minimum penalty prescribed by law.

II.

The defendant maintains that the trial court erred in refusing to instruct the jury that it might return a verdict on nonaggravated robbery, a lesser included offense. We conclude that the evidence presented at trial did not support a lesser included offense instruction.

W.Va.Code, 61-2-12, defines "aggravated robbery" as "commit[ting], or attempt[ing] to commit, robbery by partial strangulation or suffocation, or by striking or beating, or by other violence to the person, or by the threat or presenting of firearms, or other deadly weapon or instrumentality." Nonaggravated robbery is a robbery undertaken "in any other mode or by any other means." Thus, aggravated robbery requires the use of physical force against the victim or the threat of a deadly weapon; nonaggravated robbery requires only that the victim be placed in fear of bodily harm. We summarized these principles in Syllabus Point 3 of State v. Harless, 168 W.Va. 707, 285 S.E.2d 461 (1981):

"W.Va.Code, 61-2-12, enacted in 1931, divides robbery into two separate classes calling for different penalties: (1) robbery by violence or by the use of a dangerous weapon, and (2) all other robberies."

We have held that nonaggravated robbery is a lesser included offense of aggravated robbery. E.g.,...