State v. Munson, 15-0585

• Decision Date: 03 June 2016
• Docket Number: No. 15-0585,15-0585
• Parties: State of West Virginia, Plaintiff Below, Respondent v. Tyler S. Munson, Defendant Below, Petitioner
• Court: West Virginia Supreme Court

State of West Virginia, Plaintiff Below, Respondent v. Tyler S. Munson, Defendant Below, Petitioner

No. 15-0585

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

June 3, 2016

(Berkeley County 12-F-37)

MEMORANDUM DECISION

Petitioner Tyler S. Munson, by counsel B. Craig Manford, appeals his convictions in the Circuit Court of Berkeley County for the offenses of robbery in the first degree, burglary, conspiracy to commit robbery, and assault in the commission of a felony. Respondent State of West Virginia, by counsel Cheryl K. Saville, filed a response.

This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.

Carrol Snyder ("the victim") is a seventy-eight year old man, who owns and operates a coin and pawn shop out of his residence, along with his son-in-law. On November 28, 2011, he was attacked in his shop and a number of items were stolen valuing between $3000-$4000. As a result of the attack, the victim had bleeding in his brain and numerous lacerations on his head, was disoriented, and did not know where he was. At the hospital, the victim gave a statement to police identifying his assailants as white males - one taller and skinnier, the other shorter and stockier. He also said that the men left in the direction of the Heritage Inn, a few blocks away from the scene of the crime. On November 30, 2011, Trooper Conner of the West Virginia State Police presented an array of black and white mug shot photos to the victim. All of the males in the photographs were in their early twenties, and had varying degrees of facial hair. Petitioner's photo was included in the photo line-up as Number 2. The victim was unable to identify petitioner as his assailant, stating his assailant could be number 1 or number 6, but that he was unsure. The victim was never again shown the photo-lineup.

Due to poor health, the victim was deposed prior to trial. Petitioner was present for the deposition, shackled and dressed in an orange jumpsuit from the jail. During the deposition, the victim identified petitioner as his assailant. Petitioner objected at that time to the victim's identification of petitioner.¹ The victim was also present at a preliminary hearing, where petitioner was again shackled and dressed in orange.

Petitioner's case went to trial September 25, 2012. At the close of the State's case-in-chief, petitioner's counsel made a motion for judgment of acquittal pursuant to Rule 29 of the West Virginia Rules of Criminal Procedure. The court denied that motion. Petitioner did not present any evidence at trial. The jury found petitioner guilty to the offenses of burglary, first degree robbery, conspiracy to commit robbery, and assault during the commission of a felony. Following his conviction and prior to sentencing, petitioner filed a motion for new trial that was denied. The trial court sentenced petitioner on November 29, 2012, to forty-four years in the penitentiary for his conviction of first degree robbery, not less than one nor more than five years in the penitentiary for his conviction of conspiracy to commit robbery; not less than one nor more than fifteen years for his conviction of burglary; and not less than two nor more than ten years for the offense of assault in the commission of a felony.² The circuit court ordered petitioner to serve these sentences consecutively.

Upon request, the Circuit Court of Berkeley County re-sentenced petitioner in order to allow him the opportunity to perfect an appeal to this Court. Petitioner now appeals the May 19, 2015, re-sentencing order, claiming that the victim's in-court identification was improper, and that there was insufficient evidence to sustain his convictions.

Requesting a new trial, petitioner claims that the circuit court (1) committed plain and prejudicial error by allowing the victim to make an in-court identification of him, and (2) that the circuit court committed error when it did not direct a verdict in favor of petitioner. In reviewing petitioner's challenge to the findings and conclusions of the circuit court, we apply the following standard of review:

We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review."

State v. Hutton, 235 W.Va. 724, 727, 776 S.E.2d 621, 624 (2015).

Petitioner first complains that the circuit court improperly allowed the victim to identify him in court. As grounds for this motion, petitioner argues (1) that the victim had no opportunity to view his assailants at the time of the crime; (2) that during the assault, the victim was trying to save his life and fend off the attack, and did not properly view his assailants; (3) the description the victim provided of his assailants was vague and non-descriptive; (4) it was obvious that the victim merely identified petitioner based upon viewing him in court, shackled and clad in a jailuniform; and (5) the victim could not identify his assailant immediately following the crime, but could identify him ten months later. The State of West Virginia does not address petitioner's argument directly in its brief, but argues that the evidence supporting petitioner's conviction outweighs any error regarding the in-court identification of petitioner by the victim.

The question of whether the government establishes a sufficient independent basis for the in-court identification is to be answered by an application of the "totality of the circumstances" test:

"'"[i]n 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, 159 W.Va. 909, 230 S.E.2d 476 (1976).' Syllabus Point 2, State v. Gravely, 171 W.Va. 428, 299 S.E.2d 375 (1982)." Syl., State v. Williams, 181 W.Va. 150, 381 S.E.2d 265 (1989).

Syl. Pt. 1, State v. Franklin, 191 W. Va. 727, 448 S.E.2d 158 (1994).

The circuit court found that the attempted pre-trial identification of petitioner through the use of a photo lineup was not suggestive nor did it taint any in-court identification. However, in this matter, there is no evidence to suggest, and petitioner does not allege, that the photo array was unduly suggestive, or administered in an unduly suggestive manner. Rather, the more pressing concern is whether the victim's in-court identification of petitioner was sufficiently reliable, in light of the fact that the victim was unable to identify petitioner during the photo array two days after the assault in the photo-lineup, but positively identified petitioner as his assailant at both the preliminary hearing and the deposition where petitioner was dressed in an orange jumpsuit uniform from the jail.

With regard to the in-court identification of a defendant,

[t]his Court has recognized that even where an eyewitness to a crime improperly views a defendant or a photo array of a defendant after the commission of a crime, but before trial, the viewing does not automatically require suppression of an in-court identification of the defendant by the eyewitness. The real question is whether the witness had a sufficient basis for identifying the defendant apart from the improper view.

State v. Taylor, 200 W.Va. 661, 665, 490 S.E.2d 748, 752 (1997).

Our review of the record reveals that at trial, the victim testified that he was assaulted by two white men, one shorter than the other, approximately twenty-four or twenty-five years old. The victim also testified that although he had never seen petitioner before the incident, he wasfamiliar with petitioner's co-defendant and had observed the co-defendant in his store on a few occasions. The victim testified to a struggle, in which he attempted to fight off his assailants, until he was knocked to the ground and lost consciousness. The victim stated that when the men walked into his home, he had his glasses on, but that the glasses were knocked off of his head during the altercation. The victim testified further that at the time of the photograph lineup that he did not have his glasses, because they were broken in the altercation. In addition, the victim confidently identified petitioner at trial.

Prosecutor: Is there something about that person...