State v. Slie

• Decision Date: 01 April 1975
• Docket Number: No. 13395,13395
• Citation: 158 W.Va. 672,213 S.E.2d 109
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Kent L. SLIE.

Page 109

213 S.E.2d 109

158 W.Va. 672

STATE of West Virginia v. Kent L. SLIE.

No. 13395.

Supreme Court of Appeals of West Virginia.

April 1, 1975.

Syllabus by the Court

1. 'A motion or prayer to quash an indictment contained in a plea in abatement with an allegation that no legal evidence was introduced before the grand jury is not good grounds for quashing an indictment.' Point 1, syllabus, State v. Riley, 151 W.Va. 364, 151 S.E.2d 308.

2. The general rule is that the validity of an indictment is not affected by the character of the evidence introduced before the grand jury, and an indictment valid on its face is not subject to challenge by a motion to quash on the ground the grand jury considered inadequate or incompetent evidence in returning the indictment.

3. 'An indictment for a statutory offense is sufficient if, in charging the offense, it adopts and follows the language of the statute, or uses substantially equivalent language, and plainly informs the accused of the particular offense charged and enables the court to determine the statute on which the charge is founded.' Point 3 syllabus, Pyles v. Boles, 148 W.Va. 465, 135 S.E.2d 692.

4. The denial of a motion for a bill of particulars rests in the sound discretion of the trial court and unless it appears that such discretion is abused the ruling of the trial court will not be disturbed.

5. 'A motion to suppress an in-court identification of an accused based upon alleged unnecessarily suggestive lineup procedures should be overruled where the totality of the circumstances by clear and convincing proof demonstrates that the incourt identification was based upon observation of the accused at the scene of the crime, independent of the lineup.' Point 3, syllabus, State v. Moore, W.Va., 212 S.E.2d 608 decided by this Court March 18, 1975.

6. The failure to take a person before a magistrate without unnecessary delay after an arrest is made, required by Code, 62--1--5, as amended, without anything more involved, did not under the facts of this case, vitiate a subsequent conviction.

7. The defendant should be present from arraignment through final judgment when any step affecting him is taken and it is prejudicial error for a trial judge to discuss, in the absence of the defendant and his attorney, an instruction afterwards given to the jury over defendant's objection.

8. An instruction for a statutory offense is sufficient if it adopts and follows the language of the statute, or uses substantially equivalent language and plainly informs the jury of the particular offense for which the defendant is charged.

9. The giving of an instruction, couched in the language of the statute defining the various aspects of the crime of kidnapping, is not error if warranted by the evidence.

10. It is not error for a trial court to refuse to give an instruction relating to an offense for which the defendant was not charged.

Thomas P. Maroney and Guy R. Bucci, Charleston, William Jack Stevens, Hamlin, for plaintiff-in-error.

Chauncey H. Browning, Jr., Atty. Gen., Richard E. Hardison, Deputy Atty. Gen., Betty L. Caplan and David P. Cleek, Asst. Attys. Gen., Charleston, for defendant-in-error.

BERRY, Justice:

This is an appeal by Kent L. Slie, defendant below and hereinafter referred to as the defendant, from a final judgment of the Circuit Court of Lincoln County entered December 7, 1972 wherein the Court overruled the defendant's motion for an arrest of judgment and a new trial after the defendant had been convicted by a jury for the crime of kidnapping. On July 23, 1973 this Court granted the defendant a writ of error and supersedeas and on February 18, 1975 the case was submitted for decision upon the briefs and arguments on behalf of the respective parties.

It appears from the evidence at the trial that on June 24, 1971 between 10:30 p.m. and 11:00 p.m. John Triplett, Paul Roberts, Guy Anderson Plumley and David Lee Mullins began hitchhiking home on State Route 3, after attending a ball game in Hamlin. The four youths were picked up by a man driving a light blue 1969 Chevrolet automobile. John Triplett got into the front seat next to the door, David Lee Mullins got in the back seat in the middle, Guy Anderson Plumley was in the back seat on the left side and Paul Roberts was in the back seat on the right side. After driving a few minutes Paul Roberts got out of the car in front of his home and a few minutes later John Triplett got out of the car. Plumley and Mullins then got into the front seat with Mullins sitting in the middle. Plumley and Mullins testified that the driver then offered them five dollars each if they would help him load some stolen property into the trunk of his car. The boys agreed to this offer and the car was driven up to a remote section off the main road and there the driver of the car stopped, got out of the car, walker around to the trunk and opened it. At the same time, the two boys got out of the righthand side of the car and walked back to the trunk. The driver then informed the boys that they had been kidnapped and Plumley was placed in the trunk of the car and the trunk was closed. The driver then took David Lee Mullins a short distance from the car and told him to take his clothes off and lie down in the middle of the road, whereupon the driver of the car then committed the act of sodomy on his anus. After this act was completed, the driver forced Mullins into the trunk of the car and closed it, and then drove for approximately thirty minutes until he stopped near Little Laurel Creek in Lincoln County. The driver of the car then took Mullins out of the trunk and again closed the trunk with Plumley still in it. The driver walked down to a shallow creek with Mullins whereupon a struggle ensued when the driver tried to choke Mullins and tried to immerse his head into the water. However, Mullins managed to grab a rock and hit the defendant in the forehead, then broke away from him and ran into the woods. The defendant then opened the trunk and Plumley ran away.

Pursuant to a warrant issued by a justice of the peace on June 27, 1971 the defendant, Kent L. Slie, was arrested at his home near Hamlin in Lincoln County on June 28, 1971 at approximately 11:00 p.m. by state police officers. One of the officers testified at the motion to suppress hearing that the defendant was advised of his rights at the time of his arrest. The defendant was then taken to the Hamlin State Police Headquarters where he was questioned concerning the warrants which had been issued for his arrest. Shortly thereafter, the four youths were taken, one at a time, into the room where the defendant was being interrogated and each of them identified him at that time as being the driver of the car who had picked them up on the night of June 24th. The only other persons present in the room in which the identifications took place were uniformed state policy officers.

Soon after the showup, the defendant was driven from Hamlin to Huntington where he underwent several lie detector tests concerning the murder of a boy who had been sexually assaulted. The defendant was then taken to the state policy barracks in Kanawha County and again questioned concerning the alleged murder. The defendant was also taken to a wooded area in Kanawha County, at his suggestion, to search for various items which related to the alleged murder of the boy. Apparently, this search lasted for several hours and late on the evening of June 29th the defendant was transferred back to Hamlin and placed in the Lincoln County jail. The defendant arrived back in Hamlin at approximately 6:00 p.m. and at approximately 7:00 p.m. the defendant, after signing a waiver of rights form, gave a written statement to Corporal Presson of the West Virginia State Police relating to the June 24th incident with the youths. At approximately 8:30 p.m. on June 29th the defendant was placed in the Lincoln County jail, and on the morning of June 30, 1971 he was taken before a justice of the peace for arraignment.

The defendant was subsequently indicted at the November, 1971 term and re-indicted at the March, 1972 term of court on four different indictments for felonies: kidnapping of David Lee Mullins, attempted murder of David Lee Mullins, kidnapping of Guy Anderson Plumley and sodomy committed upon David Lee Mullins. Upon the defendant's motion to elect the state announced that it would proceed upon the indictment charging the kidnapping of David Lee Mullins. Prior to the commencement of the trial the defendant also moved to quash the indictment contending that the indictment was vague and ambiguous and did not properly advise the defendant of the charges against him with sufficient specificity in order to present an adequate defense. In addition, the defendant filed a motion for a bill of particulars requiring the state to specifically set forth the acts which the defendant allegedly committed. Both of these motions were overruled by the trial court.

On April 3, 1972 the defendant's trial began. Mullins, who was fifteen years of age at the time of the trial, and Plumley, who was thirteen, identified the defendant as the driver of the car, and as the person who had kidnapped them on the night of June 24, 1971. Triplett, one of the other two boys who was picked up by the defendant, also identified the defendant as the driver of the car on June 24, 1971. However, Roberts, the fourth youth in the car testified that he could not identify the defendant as being the driver of the car. At the conclusion of the trial, the defendant moved to strike the testimony of the incourt identifications by the three youths, but the court denied the motion.

At one stage during the trial the judge retired to his chambers to check the record concerning the previous testimony of a witness. The judge did this out of the presence of the jury and out of the presence of the defendant. On another occasion the trial judge and the...