State v. Sheppard, No. 15901

• Court: Supreme Court of West Virginia
• Writing for the Court: McGRAW
• Citation: 310 S.E.2d 173,172 W.Va. 656
• Docket Number: No. 15901
• Decision Date: 10 November 1983
• Parties: STATE of West Virginia v. Thomas SHEPPARD.

Page 173

310 S.E.2d 173 172 W.Va. 656 STATE of West Virginia
v.
Thomas SHEPPARD. No. 15901. Supreme Court of Appeals of West Virginia. Nov. 10, 1983.

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[172 W.Va. 660] Syllabus by the Court

1. "An adversary judicial criminal proceeding is instituted against a defendant where the defendant after his arrest is taken before a magistrate pursuant to W.Va.Code, 62-1-5 [1965], and is, inter alia, informed pursuant to W.Va.Code, 62-1-6 [1965], of the complaint against him and of his right to counsel. Furthermore, where the defendant at that magistrate proceeding

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expresses a desire to be represented by counsel, a subsequent pretrial identification of the defendant at a police initiated line-up or one-on-one police initiated confrontation between the defendant and a witness or crime victim, without notice[172 W.Va. 661] to and in the absence of defense counsel, constitutes a violation of the defendant's right to counsel under the Sixth Amendment to the Constitution of the United States and under art. III, § 14, of the Constitution of West Virginia, so as to preclude any trial testimony in regard to the identification procedure." Syllabus Point 1, State v. Gravely, 171 W.Va. 428, 299 S.E.2d 375 (1982).

2. "The admission at trial of the testimony of a witness that he identified an accused prior to trial at a police initiated line-up or police initiated one-on-one confrontation between the witness and the accused, which pretrial identification procedure was a violation of the accused's right to counsel under the Sixth Amendment to the Constitution of the United States and under art. III, § 14, of the Constitution of West Virginia, constitutes reversible error, unless the admission of such testimony at trial is shown to be harmless constitutional error." Syllabus Point 3, State v. Gravely, 171 W.Va. 428, 299 S.E.2d 375 (1982).

3. " 'Failure to observe a constitutional right constitutes reversible error unless it can be shown that the error was harmless beyond a reasonable doubt.' Syllabus Point 5, State ex rel. Grob v. Blair, 158 W.Va. 1647, 214 S.E.2d 330 (1975)." Syllabus Point 5, State v. Boyd, 160 W.Va. 234, 233 S.E.2d 710 (1977).

4. "While an indigent defendant is entitled to competent counsel, he is not entitled to the appointment of any particular lawyer and may only reject representation by his court-appointed counsel for a good cause." Syllabus Point 2, Watson v. Black, 161 W.Va. 46, 239 S.E.2d 664 (1977).

5. "It is the obligation of an indigent criminal defendant to exert good faith efforts to cooperate with his court-appointed counsel and any objection which is made to court-appointed counsel which is not made in good faith need not be accepted by the trial court and, therefore, the defendant proceeds at his own peril if he continues to be uncooperative with his court-appointed counsel." Syllabus Point 4, Watson v. Black, 161 W.Va. 46, 239 S.E.2d 664 (1977) .

6. Where on the eve of trial a defendant deliberately refuses to cooperate with his court-appointed counsel and seeks appointment of new counsel solely as a means of delaying the proceedings, the defendant's objection to his court-appointed attorney cannot be said to be made in good faith and the request for substitution of counsel may be denied by the trial court.

7. The right of self-representation is a correlative of the right to assistance of counsel guaranteed by article III, section 14 of the West Virginia Constitution.

8. A defendant in a criminal proceeding who is mentally competent and sui juris, has a constitutional right to appear and defend in person without the assistance of counsel, provided that (1) he voices his desire to represent himself in a timely and unequivocal manner; (2) he elects to do so with full knowledge and understanding of his rights and of the risks involved in self-representation; and (3) he exercises the right in a manner which does not disrupt or create undue delay at trial.

Eiland & Bennett and John W. Bennett, Logan, for appellant.

Chauncey H. Browning, Jr., Atty. Gen. and S. Clark Woodroe, Asst. Atty. Gen., Charleston, for appellee.

McGRAW, Chief Justice:

Thomas Sheppard appeals from a final order of the Circuit Court of Logan County which sentenced him to three consecutive thirty-year terms of imprisonment in the penitentiary upon his conviction of two counts of kidnapping and one count of armed robbery. We find no reversible error and we affirm the conviction.

At approximately 11:00 p.m. on the night of December 19, 1978, Paul Maynard arrived for work at the Kroger store in Mount Gay, Logan County. As Maynard was walking from his car to the store, a man

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wearing a ski mask and brandishing a gun approached him in the parking lot and demanded that he get back in his car. The masked man got into the car with Maynard and told him that together they were going [172 W.Va. 662] to rob the store. During this conversation, the man removed his ski mask, allowing Maynard to get a good look at his face. Maynard later identified the assailant as the appellant.

Maynard then entered the store with the appellant. After looking around briefly, the appellant put his ski mask back on. Brandishing his pistol, he announced his intention to rob the store. He first ordered Maynard to collect the money from the cash registers in a paper bag and then demanded the money from the office. Over $2500 in cash, checks and food stamps was taken. The robber took the bag and backed out of the store, shaking hands and wishing all a Merry Christmas.

At this point Maynard dashed out of the store, escaped in his car, and headed directly to the Logan County State Police Detachment where he reported the robbery. As he was driving away, Maynard narrowly avoided a collision with a truck driven by Steve Slate, another Kroger employee. Slate parked his truck in the spot just vacated by Maynard, got out and locked the vehicle.

As Slate started toward the store, a man wearing a ski mask came out, pointed a pistol at him and told him to get back in the truck. When Slate hesitated for a moment, the man threatened to shoot a bystander. Slate opened the door to the truck and the masked man got in on the passenger side. He then moved over towards the driver's side of the cab where Slate was sitting, pointed the pistol at Slate and ordered him to drive away.

At his abductor's instruction, Slate drove first toward Holden then toward Williamson at a high rate of speed. A bystander in the Kroger parking lot followed Slate's truck in his car long enough to get the license number of the vehicle which he reported to the State Police. After a while, the masked man fired one shot into the glove compartment area of the dashboard of Slate's truck and another shot out of the truck window for effect. The man then removed the ski mask from his face and began conversing with Slate, who later identified him as the appellant. Slate eventually convinced the appellant to put the pistol in the glove compartment.

About fifteen minutes later the appellant ordered Slate to stop at a tavern in Delbarton to buy beer and gas. The appellant took a twenty dollar bill from the paper bag he had with him and got out of the truck with Slate. Slate knocked at the door of the tavern and when the owner appeared, the appellant began talking with him about buying a case of beer. On the pretext of going to the bathroom, Slate slipped out the side door of the tavern and ran to his truck. As Slate drove away, the appellant remarked to the tavern owner, "That feller stole my truck and everything I had."

The appellant then bought a six-pack of beer and left the tavern. Slate drove to a nearby mine and had the night watchman call the State Police. The officers who responded searched the truck and recovered the pistol the appellant had placed in the glove compartment and the bag containing all of the stolen money, checks and food stamps, with the exception of twenty dollars.

Warrants were issued for the appellant's arrest in Logan County on December 20, 1978. The following day, the appellant was arrested in Mingo County and transported by the State Police to the Logan County Jail. The appellant was taken before a Logan County magistrate and was informed of the charges against him. Although he refused to sign the acknowledgment of rights form customarily used in such proceedings, the appellant indicated a desire for appointment of counsel and an attorney was appointed to represent him. A lineup was conducted at which several persons picked out the appellant as the person who had committed the crimes.

On January 9, 1979, the Grand Jury of Logan County returned three indictments against the appellant, one of which charged

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him with armed robbery and the other two with the kidnappings of Steve Slate and of Paul Maynard, respectively.

At the request of defense counsel the appellant underwent psychiatric and psychological testing and evaluation in March [172 W.Va. 663] and May of 1979 to determine the appellant's competence to stand trial. A competency hearing was conducted on August 9, 1979, at which time both the State and the defense were permitted to introduce evidence. At the conclusion of the hearing, the circuit court found the appellant competent to stand trial.

On September 17, 1979, the defense filed a motion to recuse the circuit court judge. Pursuant to this motion, the judge voluntarily removed himself from the appellant's case and, by order entered November 2, 1979, this Court appointed the Honorable W. Jack Stevens, Judge of the Circuit Court of Lincoln County, as Special Judge to hear the appellant's case. A hearing on pretrial motions was set in December 1979, at which time the appellant moved to recuse Judge Stevens. This motion was referred to this Court for resolution. By order entered March 21, 1980, the Chief Justice found no prima facie grounds sufficient to warrant recusal and ordered Judge Stevens to proceed in the...