State v. Rickman

• Decision Date: 09 June 1981
• Docket Number: No. 14844,14844
• Citation: 278 S.E.2d 880,167 W.Va. 128
• Parties: STATE of West Virginia v. Robert H. RICKMAN.
• Court: West Virginia Supreme Court

Page 880

278 S.E.2d 880

167 W.Va. 128

STATE of West Virginia v. Robert H. RICKMAN.

No. 14844.

Supreme Court of Appeals of West Virginia.

June 9, 1981.

Syllabus by the Court

1. In determining whether an out-of-court identification of a criminal defendant is so tainted as to require suppression of an in-court identification, a court must look to the totality of the circumstances, including such factors as the opportunity of the witness to view the criminal at the time of the crime, 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.

2. "Whether a consent to search is in fact voluntary or is the product of duress or coercion, express or implied, is ... to be determined from the totality of all the circumstances." Syl. pt. 8, in part, State v. Craft, W.Va., 272 S.E.2d 46 (1980).

Riley, Yahn & Cooey, Robert A. Yahn and W. Craig Broadwater, Wheeling, for appellant.

Chauncey H. Browning, Atty. Gen., Silas B. Taylor, Asst. Atty. Gen., Charleston, for appellee.

McGRAW, Justice:

The appellant, Robert H. Rickman, was convicted in the Circuit Court of Marshall County of sexual assault in the first degree and was sentenced to a term of not less than ten nor more than twenty years in the West Virginia Penitentiary.

The appellant assigns only two errors here. He contends the circuit court erred in allowing the victim to make an in-court identification of the appellant because the pre-trial identification procedure used by the police to allow the victim to identify the appellant was unfairly suggestive. He also complains that the court erred in failing to suppress all evidence obtained from a search of the appellant's car because the consent to search the car was the result of coercive custodial circumstances.

We disagree with the appellant's contentions and upon review and consideration of the record, the briefs, and the arguments of counsel, we affirm the final judgment of the Circuit Court of Marshall County implementing the jury verdict returned in this case.

The victim, a small twenty-six year old woman, was on her way to visit her mother at Christmastime. After a long journey from South Carolina, she alighted from a bus. The night was dark and cold. She entered a bakery, ate, and tried to telephone home. No one answered so she set out for another establishment where she knew she could sit in safety and warmth until she could call her people to fetch her. On her way to that refuge, she was attacked, forced into a car, forced to commit fellatio, and carried to another place where she was forced to engage in sexual intercourse. In the transpiration of these events, she was battered, her jaw was broken in three places, her face was made to bleed, and she was threatened with mortal harm. After release, she ran into a lighted house, the police were called, and she was removed to a hospital for treatment.

The fact that the crime of sexual assault was committed is not in issue. The overriding issue is whether the appellant was the person who committed the assault. He denied the charge and testified that he did not know the victim, that he had never seen her until the police-arranged line-up on January 19, 1978, and that he was not in the area where the crime was committed on the night of December 26, 1977. ^*

The pre-trial identification procedure in question here began on January 3, 1978, when a deputy sheriff, in possession of a composite likeness of the assailant based upon the victim's earlier description of him, visited the victim at the hospital. Using the composite drawing and the victim's subsequent description, the deputy conducted an investigation which, with the help of an informant, led him to the appellant's place of employment. The deputy requested that the Moundsville Police bring the appellant to the police station so that the victim could view him. On January 6, at the police station, the appellant was told that there was some problem with his vehicle registration. While he was talking with the officers, the victim viewed him through a one- way mirror, but she was unable to positively identify the appellant as her assailant. She explained that she could not see his face clearly as he was wearing a hard-hat when she viewed him through the mirror, and that she needed a closer look. She also wanted to hear his voice. Later, she spent an hour at the station viewing police mug-shots but was unable to identify anyone as her assailant. On January 10, she was taken to Bellaire, Ohio, to see another man and a car fitting her descriptions, but she stated that he was not her assailant.

A week later the deputy asked the victim to examine ten photographs which he had put together from various sources not previously utilized. All the photographs were of men approximating the victim's description of her assailant. From the photographs, she positively identified the appellant as her assailant. Two days later she was present at a line-up of seven men fitting her description of her assailant, including the appellant. Each man was asked to repeat a phrase which the assailant allegedly spoke to the victim. She positively identified the appellant as the perpetrator of the crime.

On the first day of the trial, the circuit court, in the absence of the jury, conducted evidentiary hearings on two suppression motions made by the appellant. A motion to suppress physical evidence obtained by police during a search of the appellant's residence was properly granted by the trial court based on the well-settled rule that an affidavit to establish probable cause is insufficient if it merely states the affiant's suspicion or belief. However, the trial court denied the appellant's motion to suppress the testimony of the victim identifying the appellant as her assailant. During trial the appellant also moved to suppress evidence obtained as the result of a search of his car, but the trial court denied this motion as well. The motions to suppress constituted, in substance, the grounds for the appellant's post-trial motion to set aside the jury's verdict. This motion was denied by the circuit court.

I

The appellant's first assignment of error is the circuit court's denial of the motion to suppress the testimony of the victim identifying the appellant as her assailant, and its refusal to set aside the verdict on that ground. The appellant contends that admission of this testimony violated his due process rights under the Fourteenth Amendment to the United States Constitution because the identification procedures used were unfairly suggestive, making it all but inevitable that the victim would identify the defendant whether or not he was the perpetrator of the offense charged.

The United States Supreme Court has delineated factors to be considered in evaluating the likelihood of misidentification. In determining whether an out-of-court identification of a criminal defendant is so tainted as to require suppression of an in-court identification, a court must look to the totality of the circumstances, including 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." Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972). This analysis is so well accepted nationwide that virtually every jurisdiction has adopted it. For a reputable listing of the hundreds of cases discussing this approach, see Shepard's United States Citations, No. 4 Case Edition (Supp.1971-76); Shepard's United States Citations, (Supp. Jan. 1981); Shepard's United States Citations, (March 1981). We most recently applied this approach in State v. Demastus, W.Va., 270 S.E.2d 649 (1980), and have applied it in various other cases. See, e. g., State v. Foddrell, W.Va., 269 S.E.2d 854 (1980); State v. Kennedy, W.Va., 249 S.E.2d 188 (1978); State v. Williams, W.Va., 249 S.E.2d 752 (1978); State v. Casdorph, W.Va., 230 S.E.2d 476 (1976). These five areas of inquiry must be examined in light of the record.

(1) The opportunity of the witness to view the criminal at the time of the crime. The victim's view of the criminal was limited by darkness, by fears and anxieties arising from the attack upon her, and by the assailant's efforts to obscure her vision of him and of the surroundings. In her initial statement to investigating officers, she observed that "the man was dirty, he stunk ... he was a fat dude with a big belly ... wearing a dark blue work shirt .... His hair seemed short and stuck up ... not combed .... He had a round face, pudgy nose, no sticky out ears, not flat against head, in between .... He had no visible scars, marks, tatoos, or rings that I could see."

The appellant's contention is that it was only after it appeared that the identification procedure was tainted that the victim, upon questioning by the State at trial, revealed that she had had an opportunity to view her assailant. This argument is belied by the fairly detailed description of her assailant contained in her statement to the police. Moreover, the victim was in physical contact with her assailant and testified at the preliminary hearing that during the time the crime was being committed, "two times I got a very good look at his face".

(2) The witness' degree of attention. The witness' lengthy, detailed statement, her testimony at the preliminary hearing, and the fact that she was the victim rather than a disinterested observer, indicates that she was extremely attentive. The record also shows that she was observant of her surroundings in and outside of the automobile and noted the Ohio license tag, the car's color and taillight design.

(3) The accuracy of witness'...