State v. Moore
| Citation | 158 W.Va. 576,212 S.E.2d 608 |
| Decision Date | 18 March 1975 |
| Docket Number | No. 13444,13444 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia v. Stephen M. MOORE. |
Syllabus by the Court
1. An accused is not constitutionally entitled to the assistance of counsel when placed in a lineup pursuant to and during a routine investigation of a crime and prior to the initiation of adversary judicial criminal proceedings against him.
2. An accused is entitled to the assistance or counsel at any post-indictment lineup at which he is required to appear.
3. A motion to suppress the in-court identification of an accused based upon alleged unnecessarily suggestive lineup procedures should be overruled where the totality of the circumstances by clear and convincing proof demonstrates that the incourt identification was based upon observation of the accused at the scene of the crime, independent of the lineup.
Frank M. Armada, Poca, for plaintiff in error.
Chauncey H. Browning, Jr., Atty. Gen., Richard E. Hardison, Deputy Atty. Gen., David P. Cleek, Asst. Atty. Gen., Charleston, for defendant in error.
At the November Term, 1972, of the Circuit Court of Putnam County, the defendant, Stephen M. Moore, was indicted by the grand jury of that county for the crime of breaking and entering. To the indictment the defendant entered a plea of not guilty and upon trial the jury found him 'guilty as charged in the within indictment'. The defendant's motion for a new trial was denied and he was sentenced to confinement in the state penitentiary for an indeterminate term of not less than one year nor more than ten years. This is an appeal from the judgment imposing that sentence.
The record reveals that on December 8, 1971, at approximately 11:30 P.M., a storeroom occupied by the Pat. I. Dawson Appliance Store was illegally entered and three color television sets were stolen therefrom. Mr. Dawson, the owner and operator of the store, testified at the trial that his residence was near his place of business; that on the night in question, at about 11:30, he looked out of his bedroom window and saw a truck parked near his store; that he observed two boys in the truck; that 'I got my gun and went down to the store'; and that one of the persons near the truck was the defendant, Stephen M. Moore. This witness testified that there were several other businesses in the immediate vicinity of his store, that the whole area was well lighted and that he had no difficulty observing the activities of the two boys.
Mr. Dawson further related that when he approached his store, pointed his shotgun at them and told them to stop, one did stop near the truck and the other crawled under the truck. The following testimony relates this incident:
Q. How close were you to the man who came out from under the truck?
A. When he came out here I was probably within six feet and the rest of the time probably twelve feet.
Q. Is that man in the courtroom today?
A. Yes, sir.
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Q. Let the record show he is pointing to the defendant.
Mr. Dawson said that he talked to the defendant for approximately five minutes before the defendant and his partner escaped in the truck.
Mr. Dawson's testimony, including that relating to his observations noted above, was the only direct evidence of the guilt of the defendant. The defendant took the stand in his defense and denied that he participated in the offense. The television sets were never recovered. Other evidence was introduced by the defense relating to two friends of the defendant, one of whom allegedly resembled the defendant and who was allegedly by one witness to have admitted to the commission of the subject breaking and entering.
During the trial Mr. Dawson made an in-court identification of Stephen M. Moore as the one he confronted at his store in the night of December 8, 1971. The legality of such in-court identification is a most important consideration on this appeal.
Counsel for the defendant made a pretrial motion that Mr. Dawson's in-court identification of the defendant be suppressed. The grounds for this motion were that the use of photographs of the defendant and the identification of the defendant in a police lineup were overly suggestive and that the defendant was not afforded a right to counsel during said lineup. The prosecuting attorney related to the court that the in-court identification of the defendant would be based on Mr. Dawson's face to face confrontation with the defendant at the scene of the crime and would not relate in any way to the police lineup. Pursuant to the motion the court held a hearing in its chambers.
The only witness called by the defendant at the suppression hearing was Pat Dawson. The following testimony was adduced by the interrogation of counsel for the defendant:
Q. At the time of the breaking and entering did you have occasion to see the persons who were involved at that time?
A. Yes, I did.
Q. The persons that were involved, where did you see them?
A. As they came out of the store and beside the truck they were driving.
Q. Did you have occasion to approach them?
A. Yes, I was within ten feet of them.
Q. Did you have occasion to see them closely?
A. Yes.
Q. Are you in a position to tell us at the time who they were?
A. I can identify one of them here. This man right here.
Judge: Let the record show the witness is designating the accused Stephen M. Moore who is seated in chambers with counsel.
Mr. Dawson then testified that in August or early September, 1972 Trooper Kilburn asked him to go with him to the Kanawha County jail for the purpose of determining whether he could identify one of the men who broke into his store. Relative to this testimony the following was adduced:
Q. What was the purpose of your going there?
A. To see if I could identify persons that broke in my store.
Q. Is that what you were told by Trooper Kilburn before you went down there?
A. Yes.
Q. Did he indicate to you they had somebody down at jail that they felt was the party that broke in to your store?
A. Yes.
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Q. When you went to the Kanawha County jail in August did anybody indicate to you that this person was the person they believed to have broken into your premises.
A. No, sir.
Q. How many people were lined up?
A. Five.
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Q. Do you remember the name being told to you . . . as Stephen Moore being there? Did Trooper Kilburn say he was going to be in the lineup . . . anything?
A. They was going to bring five prisoners in the lineup and I assumed he would be there . . . I didn't know.
Q. Did you have any difficulty with your identification at that time?
A. No.
Q. Did the fact you had identified Mr. Moore at the time of the lineup aid you in here today in your identification of Mr. Moore?
A. He is the same person.
Q. Do you identify him here today by the fact you had seen him at the line up in Kanawha County?
A. I guess.
The following testimony was adduced on interrogation by the Prosecuting Attorney:
Q. Your identification is based upon what? You say 'this man is the man'. What would that be based upon?
A. From the time I seen him first. This was the night he broke in the store.
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Q. Would it be from the line up or the time he broke into your store?
A. From the time he broke into the store. The picture was there. I didn't have any trouble in the line up.
Testimony was further adduced at that hearing relating to photographs of the defendant. It appears therefrom that two photographs of the defendant were shown to Mr. Dawson in June or July, 1972 and Mr. Dawson testified that he could not identify the defendant from such photographs. There was some confusion in the testimony as to whether the defendant had a different appearance, such as having long hair and a beard at one time or another. He again testified in a definite manner that he remembered the defendant from the time of the crime.
Upon the evidence adduced at this suppression hearing and upon the state's representation that the identification would be based only upon the confrontation at the time of the breaking and entering, the court denied the motion to suppress the in-court identification. It is pertinent to note that at no time during the trial was the police lineup mentioned although the photographs of the defendant were handed to the jury.
In the defendant's petition for appeal the following errors are assigned:
I. The court erred in not suppressing the in court identification of the petitioner since at the original lineup identification the petitioner was deprived and denied of his right to counsel as guaranteed him under the sixth amendment.
II. The court erred in not awarding the petitioner a new trial since the State failed to prove by clear and convincing evidence that the in court identification was based upon observations of the accused independent of the prior line up identification.
The defendant contends that the in-court identification should have been suppressed for the reason that it was tainted by an illegal lineup procedure. The illegality of which he complains is the failure to have furnished him the assistance of counsel at the lineup at which Mr. Dawson identified him. That the right to the assistance of counsel is a fundamental right guaranteed by the State and Federal Constitutions to an accused at all critical stages of prosecution is no longer in doubt. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); State ex rel. May v. Boles, 149 W.Va. 155, 139 S.E.2d 177 (1964). That right, however, attaches only 'at or after the initiation of adversary judicial criminal proceedings--whether by way of formal charge, preliminary hearing, indictment, information, or arraignment'. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). It does not attach during a routine police investigation but only when an accused becomes the focal point of a prosecutive stage.
The record reveals in the instant case that eight or...
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