State v. Peacher
| Decision Date | 14 July 1981 |
| Docket Number | No. 14233,14233 |
| Citation | 280 S.E.2d 559,167 W.Va. 540 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia v. Charles W. PEACHER, Jr. |
Syllabus by the Court
1. A change of venue will be granted in West Virginia when it is shown that there is "a present hostile sentiment against an accused, extending throughout the entire county in which he is brought to trial...." Syl. pt. 1, State v. Siers, 103 W.Va. 30, 136 S.E. 503 (1927).
2. In a criminal case the defendant who is trying to show the existence of a present hostile sentiment in the community that would affect his right to a fair and impartial jury panel should have a wide latitude of inquiry on voir dire.
3. "Jurors who on voir dire of the panel indicate possible prejudice should be excused, or should be questioned individually either by the court or by counsel to precisely determine whether they entertain bias or prejudice for or against either party, requiring their excuse." Syl. pt. 3, State v. Pratt, 244 S.E.2d 227 (W.Va.1978).
4. The right to a trial by an impartial, objective jury in a criminal case is a fundamental right guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and Article III, Section 14, of the West Virginia Constitution. A meaningful and effective voir dire of the jury panel is necessary to effectuate that fundamental right.
5. It is an abuse of discretion and reversible error for a trial judge, in the exercise of his discretionary control over the scope of inquiry during voir dire, to so limit the questioning of potential jurors as to infringe upon a litigant's ability to determine whether the jurors are free from interest, bias or prejudice, or to effectively hinder the exercise of peremptory challenges.
6. Although the use of security precautions at a criminal trial is a matter which lies within the sound discretion of the trial judge, an evidentiary hearing should be held to determine whether the circumstances of a case justify greater than normal security precautions at trial. The absence of a record of such evidentiary hearing is not, per se, reversible error.
7. The Fourth Amendment of the United States Constitution, and Article III, Section 6, of the West Virginia Constitution protect an individual's reasonable expectation of privacy.
8. An individual's expectation of privacy in his automobile is less than that which he would have in his home or his place of business. The expectation of privacy associated with the exterior aspects of an automobile is even less than that associated with the interior portions. And, where an automobile is parked on a third person's property, after control had been relinquished to yet another person, and the automobile is open to view from a public highway, any possible expectation of privacy regarding the exterior aspects of the automobile is even further diminished.
9. An affidavit in support of an application for a search warrant which contains information that antedates, and is totally independent of, information learned from an unconstitutional search, as well as information from the unconstitutional search, may still be the basis upon which a valid search warrant may issue, if the information in the affidavit, excluding that information attributable to the unconstitutional search, is sufficient to justify a finding of probable cause.
Askin & Burke and Steven M. Askin, Martinsburg, for Charles W. peacher, jr.
Chauncey H. Browning, Atty. Gen., Silas B. Taylor, Asst. Atty. Gen., Charleston, for the State.
The appellant, Charles W. Peacher, Jr., was convicted of the crime of murder in the first degree of Rowlen E. Moreland, a former sheriff of Jefferson County. The case is before this Court on an appeal from a final order of the Circuit Court of Jefferson County, entered on June 6, 1977, sentencing the defendant to life imprisonment in the West Virginia Penitentiary without parole, and denying the defendant's motion to set aside the verdict and award him a new trial. On this appeal the defendant assigns error in three general areas which will be considered in order: (1) the trial judge's refusal to grant a motion for a change of venue and his restriction of the scope of the voir dire of the jury; (2) the security precautions allowed by the trial judge at the trial; and (3) the trial judge's refusal to grant defense motions for the suppression of evidence.
Prior to his trial, the defendant moved the Circuit Court of Jefferson County for a change of venue on the grounds that the publicity surrounding the crime with which he was charged made it impossible for him to receive a fair trial in Jefferson County. In support of his motion the defendant submitted twenty articles from local newspapers and fifteen transcripts of news broadcasts that had been aired on local radio stations. In opposition to the motion the State submitted twenty affidavits in which various citizens of Jefferson County stated that there was no local prejudice against the defendant of such a nature as to prevent him from receiving a fair trial.
An evidentiary hearing on the motion for a change of venue was held on September 24, 1976. The defense presented seventeen witnesses and the State presented four. In general, the evidence presented at this hearing was ambiguous and inconclusive on the question of whether an impartial jury could be impanelled in Jefferson County. 1 There was no testimony or evidence that indicated that the prosecuting authorities or police had used the media to influence, or attempt to influence, public opinion about the case. 2 The motion for change of venue was denied.
The motion for a change of venue was renewed on April 22, 1977. The basis for the renewed motion was that, due to pre-trial proceedings, publicity about the case had continued to the prejudice of the defendant. In support of the motion the defendant offered twenty-seven articles from local papers. The motion was again denied.
Voir dire of perspective jurors began on May 23, 1977. In all, thirty-five prospective jurors were interviewed. Six jurors were excused for medical, personal or job related reasons. An additional six jurors were excused for cause. Four additional challenges for cause made by the defense were denied. Additionally, the trial judge refused to ask follow-up questions of specific jurors when requested to do so by the defense. The trial judge also refused a request to ask the panel four specific questions propounded by the defense. After voir dire the defense renewed its motion for a change of venue and that motion was again denied.
On the first day of trial the defense objected to having a deputy sheriff seated within the bar of the court behind the defendant. The trial judge noted, on the record, that the deputy was seated approximately fifteen feet from the defendant and was dressed in civilian clothing. The motion to prohibit such placement of the deputy was overruled.
The motion was renewed the following day. The trial judge noted that he was relying on the superior experience of the sheriff in providing security and again denied the motion. The defense counsel then requested an evidentiary hearing on the necessity of such a security precaution. The trial judge declined to hold such a hearing.
On the third day of the trial the defense again renewed this motion alleging that the same deputy who was seated near the defendant had escorted the jury to lunch on the previous day. The trial judge again denied the motion saying that he had seen the deputy in the restaurant at a table separate and apart from the jury.
Around 11:00 a. m., on June 30, 1976, Corporal R. L. Johnson, Commander of the Charles Town detachment of the West Virginia State Police, received a call reporting a shooting at the residence of Rowlen E. Moreland near Middleway in Jefferson County. Mr. Moreland had been found shot to death in the front yard of his home. The autopsy report indicated that he died from twelve wounds inflicted at close range with a .38 caliber weapon.
Corporal Johnson proceeded to the Moreland residence with Troopers Wingler and Kimble, arriving at approximately 11:25 a. m. At the scene of the crime Corporal Johnson saw indications that the Moreland home had been forcibly entered and ransacked. Corporal Johnson also observed the deceased victim's pickup truck parked halfway up the driveway of the house. In inspecting the area around the truck, he noticed tracks in the yard where a car, equipped with snow tires, had apparently pulled around the parked truck. Corporal Johnson made a plaster cast of those tracks.
While Corporal Johnson inspected the scene of the crime, Trooper Wingler interviewed several witnesses. One informed him that he had driven by the Moreland residence at approximately 11:00 a. m., and had observed a white Ford with a black top backed up to the carport in the Moreland driveway. The witness stated that it appeared to him that furniture had been loaded into the car. The witness also told Trooper Wingler that he had seen someone standing over Mr. Moreland's prone body which was lying in the front yard. The witness was unable to describe the person he saw standing over Mr. Moreland. A second witness was able to describe the person standing over Mr. Moreland to Trooper Wingler. The person was described as wearing a red bandana around his head and wearing a blue plaid shirt. This witness also described the automobile and stated that, as she drove past the Moreland home, she heard gunshots. Trooper Wingler also learned that the automobile bore temporary license plates. Trooper Wingler promptly passed the information he had garnered from the witnesses to other officers investigating the slaying.
At approximately 12:00 p. m., Sergeant J. D. Smith of the Martinsburg detachment of the West Virginia State Police received a call from Constable ...
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