State v. Pratt, s. 13772 and 13773

• Citation: 161 W.Va. 530,244 S.E.2d 227
• Decision Date: 02 May 1978
• Docket Number: Nos. 13772 and 13773,s. 13772 and 13773
• Parties: STATE of West Virginia v. Raymond PRATT.
• Court: Supreme Court of West Virginia

Page 227

244 S.E.2d 227

161 W.Va. 530

STATE of West Virginia v. Raymond PRATT.

Nos. 13772 and 13773.

Supreme Court of Appeals of West Virginia.

May 2, 1978.

Syllabus by the Court

1. "Good cause shown" for change of venue, as the phrase is used in W.Va.Constitution, Article III, Section 14 and W.Va.Code, 62-3-13, means proof that a defendant cannot get a fair trial in the county where the offense occurred because of the existence of locally extensive present hostile sentiment against him.

2. A trial court is responsible for preventing an oppressive overmatch between prosecutors and defense counsel, such as may occur when the defendant is young and inexperienced and the prosecution is by an array of experienced and able lawyers.

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.

4. A defendant in a criminal case is entitled to an in camera hearing to determine whether items of evidence obtained by search at the time of his arrest, are inadmissible in evidence because of alleged illegality of the arrest.

5. Code, 52-1-15 requires that all jurors must be chosen by the circuit clerk from lists developed by properly appointed jury commissioners.

6. A defendant must be allowed an in camera hearing on the admissibility of a pending in-court identification when he challenges it because the witness was a party to pre-trial identification procedures that were allegedly constitutionally infirm.

7. A defendant must be allowed to examine any photographic display used by the government during pre-trial identification procedures, to determine whether it improperly suggested his identity.

8. A trial court cannot sentence a defendant as a recidivist under Code, 61-11-18, 19, absent his admissions unless the prosecution proves that each subsequent offense counting toward habitual criminal penalties occurred after each prior conviction used in the calculation.

9. Code, 61-11-18, 19 require that the additional sentence of a recidivist by a trial court shall be included in the sentence imposed for the main conviction.

Ward D. Stone, Jr., Morgantown, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., Gregory W. Bailey, Asst. Atty. Gen., Charleston, for defendant in error.

HARSHBARGER, Justice:

Raymond Pratt was found guilty on January 28, 1975 of robbing the Westover Foodland in November, 1974. He then, on February 19, 1975 was found guilty of having robbed the Acme Supermarket September 14, 1974. Both trials were in Monongalia County, where the crimes were committed.

We have consolidated the cases in this opinion because several of the assignments of error are common to both.

I.

In both cases defendant moved for change of venue because of wide-spread hostility and angry sentiment in Monongalia County against him. He introduced newspaper articles that reported the robbery, described the culprits and reported other robberies in the area and elsewhere.

Our Constitution, Article III, Section 14, provides that "for good cause shown" an accused person may obtain change of venue, and W.Va.Code, 62-3-13 says, "A court may, on the petition of the accused and for good cause shown, order the venue of the trial of a criminal case in such court to be removed to some other county."

We held in State v. Wilson, W.Va., 202 S.E.2d 828 (1974), citing Point 2 of the Syllabus of State v. Wooldridge, 129 W.Va. 448, 40 S.E.2d 899 (1946):

To warrant a change of venue in a criminal case, there must be a showing of good cause therefor, the burden of which rests upon defendant, the only person who, in any such case, is entitled to a change of venue. The good cause aforesaid must exist at the time application for a change of venue is made. Whether, on the showing made, a change of venue will be ordered, rests in the sound discretion of the trial court; and its ruling thereon will not be disturbed, unless it clearly appears that the discretion aforesaid has been abused.

See also, State v. Dandy, 151 W.Va. 547, 153 S.E.2d 507 (1967); State v. Hamric, 151 W.Va. 1, 151 S.E.2d 252 (1966); State v. Pietranton, 140 W.Va. 444, 84 S.E.2d 774 (1954).

As stated in Wilson, supra, at 830: "Basically, the good cause alluded to in the constitution which the defendant must prove is that he cannot get a fair trial in the county where the offense was alleged to have been committed."

Wide-spread publicity about the case does not require change of venue, State v. Hamric, supra, nor does proof that prejudice exists against an accused, unless it appears that the prejudice against him is so great that he cannot get a fair trial. State v. Riley, 151 W.Va. 364, 151 S.E.2d 308 (1966). In State v. Dandy, supra, we held To summarize, our cases hold that good cause for change of venue means proof that a defendant cannot get a fair trial in the county where the offense occurred because of the existence of extensive present hostile sentiment.

that a present hostile sentiment against an accused, extending throughout the entire county in which he is brought to trial, is good cause for removing the case to another county. See State v. Siers, 103 W.Va. 30, 136 S.E. 503 (1927).

Here, defendant presented no evidence of the existence of poisonous prejudice against him, and the trial court did not abuse its discretion in denying the motion. ¹ See, State v. Sette, 242 S.E.2d 464 (W.Va., 1978), where good cause for change of venue was clearly proved.

II.

Pratt's appointed lawyer moved the trial court to appoint additional, more experienced counsel to help in both cases. He faced the prospect of defending Pratt in these two armed robbery cases, and had been appointed to represent another criminal defendant to be tried in the same term. ²

The court denied the motions, filed January 23, the next day; and on January 27, trial of the Westover case began. The judge's orders stated that the motions had no legal precedent, were untimely and ". . . attorney Ward D. Stone, Jr., is in all respects competent and has in the past exhibited himself to be effective counsel."

Our Court has not written about the due process and equal protection arguments implicit in the situation presented here, where the government is represented by able and experienced prosecutors and an indigent defendant has as his appointed counsel a self-proclaimed inexperienced (though certainly not inarticulate) lawyer. Authorities elsewhere hold that inexperience alone is not proof of ineffectiveness of counsel. The degree of his expertness is proved by the trial record. See, United States v. Kelley, 559 F.2d 399 (5th Cir. 1977); United States v. Easter, 539 F.2d 663 (8th Cir. 1976); UNITED STATES EX REL. WILLIAMS V. TWOMEY, 510 F.2D 634 (7TH CIR. 1975)³; Douglas v. Commonwealth of Virginia, 327 F.Supp. 689 (W.D.Va.1971); People v. Gonzales, 40 Ill.2d In People v. Blevins, 251 Ill. 381, 96 N.E. 214 (1911), the court recognized that "oppression" a word not often used these days may result if the prosecution overmatches defense counsel. This interesting case, 67 years old, contains meaningful language:

233, 239 N.E.2d 783 (1968); Stinnett v. Commonwealth, 468 S.W.2d 784 (Ky.1971); State v. Crockett, 543 S.W.2d 314 (Mo.App.1976); People v. O'Guin, 26 Mich.App. 305, 182 N.W.2d 103 (1970); State v. Peoples, 28 Ohio App.2d 162, 275 N.E.2d 626 (1971).

Oppression may result to a defendant defended by young and inexperienced counsel, where he is prosecuted by an array of experienced and able attorneys, either in arriving at a conclusion as to his guilt or innocence of the charge, or in determining upon the punishment to be inflicted upon him where he is found guilty. 96 N.E. at 218.

The Illinois court said that ". . . This record shows that by reason of the inexperience of plaintiff in error's counsel incompetent evidence of a highly prejudicial nature was introduced by the prosecution on the trial." 96 N.E. at 218.

The Pratt records disclose no such defects in the defense, and other errors in the trials make exhaustive development of this point unnecessary. However, we agree with those authorities that place upon the trial court the responsibility to see that oppression does not occur in criminal cases because of prosecutorial overmatch with defense counsel.

III.

Defendant contends that the court in the Westover trial should have permitted defense counsel to question some of the prospective jurors individually, or should have itself questioned them individually, following answers these jurors gave suggesting possible prejudices, when they responded to the court's general inquiries of the panel.

In State v. McMillion, 104 W.Va. 1, 138 S.E. 732 (1927) this Court pronounced, properly, the purpose of voir dire to be to protect defendant's right to a jury composed of persons who have no interest in the case and are free from bias or prejudice. And in State v. Beacraft, 126 W.Va. 895, 30 S.E.2d 541 (1944) Syllabus 2, "In a criminal case, the inquiry made of a jury on its voir dire is within the sound discretion of the trial court and not subject to review, except when the discretion is clearly abused."

State v. Pendry, W.Va., 227 S.E.2d 210 (1976) teaches that W.Va.Code, 56-6-12 ". . . clearly requires the court to provide for an adequate voir dire to the end that a juror be fully qualified, not related to either party, with no interest in the cause or sensible of any bias or prejudice. If a party believes that a juror is subject to a challenge for cause, he may even introduce evidence in support of his objection to the juror." 227 S.E.2d at 216.

In Pendry, the defense unsuccessfully challenged four jurors for cause, then asked leave of the court to question each of them in chambers to explore certain matters disclosed on voir dire. Instead, the court addressed a general...