State v. Rahman

• Decision Date: 20 December 1996
• Docket Number: No. 23329,23329
• Citation: 483 S.E.2d 273,199 W.Va. 144
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Dominique RAHMAN, Defendant Below, Appellant.

Page 273

483 S.E.2d 273

199 W.Va. 144

STATE of West Virginia, Plaintiff Below, Appellee, v. Dominique RAHMAN, Defendant Below, Appellant.

No. 23329.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 24, 1996.

Decided Dec. 20, 1996.

Syllabus by the Court

1. "Where a police officer making a lawful investigatory stop has reason to believe that an individual is armed and dangerous, that officer, in order to protect himself and others, may conduct a search for concealed weapons, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be certain that the individual is armed; the inquiry is whether a reasonably prudent man would be warranted in the belief that his safety or that of others was endangered. U.S. Const. amend. IV. W.Va. Const. art. III, § 6." Syl. Pt. 3, State v. Choat, 178 W.Va. 607, 363 S.E.2d 493 (1987).

2. " ' "Probable cause to make an arrest without a warrant exists when the facts and circumstances within the knowledge of the arresting officers are sufficient to warrant a prudent man in believing that an offense has been committed." Point 1 Syllabus, State v. Plantz, W.Va. .' Syllabus Point 3, State v. Duvernoy, 156 W.Va. 578, 195 S.E.2d 631 (1973)." Syl. Pt. 7, State v. Craft, 165 W.Va. 741, 272 S.E.2d 46 (1980).

3. "A warrantless search of the person and the immediate geographic area under his physical control is authorized as an incident to a valid arrest." Syl. Pt. 6, State v. Moore, 165 W.Va. 837, 272 S.E.2d 804 (1980), overruled on other grounds by State v. Julius, 185 W.Va. 422, 408 S.E.2d 1 (1991).

4. "Where improper evidence of a nonconstitutional nature is introduced by the State in a criminal trial, the test to determine if the error is harmless is: (1) the inadmissible evidence must be removed from the State's case and a determination made as to whether the remaining evidence is sufficient to convince impartial minds of the defendant's guilt beyond a reasonable doubt; (2) if the remaining evidence is found to be insufficient, the error is not harmless; (3) if the remaining evidence is sufficient to support the conviction, an analysis must then be made to determine whether the error had any prejudicial effect on the jury." Syl. Pt. 2, State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1081, 63 L.Ed.2d 320 (1980).

5. "A claim that double jeopardy has been violated based on multiple punishments imposed after a single trial is resolved by determining the legislative intent as to punishment." Syl. Pt. 7, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992).

6. "In ascertaining legislative intent, a court should look initially at the language of the involved statutes and, if necessary, the legislative history to determine if the legislature has made a clear expression of its intention to aggregate sentences for related crimes. If no such clear legislative intent can be discerned, then the court should analyze the statutes under the test set forth inBlockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), to determine whether each offense requires an element of proof the other does not. If there is an element of proof that is different, then the presumption is that the legislature intended to create separate offenses." Syl. Pt. 8, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992).

7. "Rule 609(a)(2) of the West Virginia Rules of Evidence divides the criminal convictions which can be used to impeach a witness other than a criminal defendant into two categories: (A) crimes 'punishable by imprisonment in excess of one year,' and (B) crimes 'involving dishonesty or false statements regardless of the punishment.' " Syl. Pt. 2, CGM Contractors, Inc. v. Contractors Environmental Services, Inc., 181 W.Va. 679, 383 S.E.2d 861 (1989).

8. "Evidence that a witness other than the accused in a criminal case has been convicted of a crime is admissible for the purpose of impeachment under West Virginia Rule of Evidence 609(a)(2)(B) when the underlying facts show that the crime involved dishonesty or false statement." Syl. Pt. 5, Wilkinson v. Bowser, 199 W.Va. 92, 483 S.E.2d 92 (1996).

9. "It is a violation of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution for a member of a cognizable racial group to be tried on criminal charges by a jury from which members of his race have been purposely excluded." Syl. Pt. 1, State v. Marrs, 180 W.Va. 693, 379 S.E.2d 497 (1989).

10. "To establish a prima facie case for a violation of equal protection due to racial discrimination in the use of peremptory jury challenges by the State, 'the defendant first must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits "those to discriminate who are of a mind to discriminate." Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.' [citations omitted.] Batson v. Kentucky, 476 U.S. 79 at 96, 106 S.Ct. 1712 at 1722, 90 L.Ed.2d 69 (1986)." Syl. Pt. 2, State v. Marrs, 180 W.Va. 693, 379 S.E.2d 497 (1989).

11. "The State may defeat a defendant's prima facie case of a violation of equal protection due to racial discrimination in selection of a jury by providing non-racial, credible reasons for using its peremptory challenges to strike members of the defendant's race from the jury." Syl. Pt. 3, State v. Marrs, 180 W.Va. 693, 379 S.E.2d 497 (1989).

12. Striking even a single black juror for racial reasons violates equal protection, even though other black jurors remain on the panel. The focus of the trial court's analysis should be on whether the State's reason for a challenged strike is pretextual, and not on the overall composition of the jury.

13. In assessing a Batson challenge, the trial court must consider a party's assertion that a similarly situated prospective juror was not challenged, both in determining whether the defendant has stated a prima facie case of discrimination, and in deciding whether the explanation given by the prosecution was a pretext for racial discrimination. In order for the trial court to make the latter determination, the State must articulate a credible reason for the different treatment of similarly situated black and white jurors.

Mary Beth Kershner and William Jones, Assistant Prosecuting Attorneys for Kanawha County, Charleston, for Appellee.

Stephen D. Warner, Managing Deputy Public Defender, Charleston, for Appellant.

WORKMAN, Justice:

Dominique Rahman appeals ¹ his conviction on four felony counts of possession of heroin with intent to deliver. He asserts six errors: (1) the trial court erred by denying a motion to exclude heroin found inside the Appellant's jacket pocket; (2) the trial court should have declared a mistrial after the prosecutor asked the Appellant during cross-examination whether he had ever sold heroin before; (3) separation of the charges into four counts violated the Double Jeopardy Clause; (4) there was insufficient evidence to support the conviction on count two; (5) defense counsel should have been allowed to impeach a co-defendant with prior misdemeanor convictions; and (6) the court erred by denying the Appellant's Batson challenge to the State's peremptory strike of a black juror. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). For the reasons set out below, we affirm the judgment of the circuit court, but remand the case for a hearing on the validity of the peremptory strike.

On April 7, 1995, the Charleston drug unit outfitted a confidential informant ("CI") with a body wire, gave him $180 in recorded bills, and directed him to attempt to purchase heroin. Officers dropped the CI off near the residence of Albert Parker, and kept him under both visual surveillance and audio surveillance via the body wire. The CI gave the money to Albert Parker, who said he would return shortly with the heroin. Officer William Hart continued to watch the CI, while officers Steven Neddo and Randy Mayhew followed Parker as he drove to the Day's Inn near St. Albans. At the Day's Inn, the officers watched Parker enter room 269, and exit a few minutes later. Officer Neddo remained watching room 269, as did Captain Larry Dodson, who had been watching the Days' Inn all day. Detective Mayhew followed Parker back to Charleston, and waited for word from Officer Hart. After being advised by Hart that Parker had delivered two packets of heroin to the CI, Detective Mayhew stopped Parker while he was walking home, and Parker agreed to cooperate with the police. Parker went to the drug unit office, where he told police he had purchased heroin from someone named "Turbo," in room 269 of the Day's Inn, and described Turbo as a tall black male with a ponytail. During this time, Officers Neddo and Dodson continued to watch room 269 at the Days' Inn. They observed two black males repeatedly come out of room 269 onto the landing and return to the room. Soon thereafter, they saw the two men, one of whom matched Turbo's description, leave room 269 and start to drive away. The officers pulled the car over.

Captain Dodson informed the Appellant, who matched Parker's description of Turbo, that he was the subject of a heroin investigation, and that Dodson was going to search him for any weapons, needles or heroin. Dodson did a pat-down, and felt a bulge in one of the Appellant's jacket pockets. He thought the bulge felt like heroin packets. He reached into the pocket and found eight packages or bundles of heroin marked "the bomb." After he found the heroin, Dodson...