State v. Smith

• Citation: 212 S.E.2d 759,158 W.Va. 663
• Decision Date: 01 April 1975
• Docket Number: No. 13496,13496
• Court: Supreme Court of West Virginia
• Parties: STATE of West Virginia v. Katherine Wallace SMITH.

Page 759

212 S.E.2d 759

158 W.Va. 663

STATE of West Virginia v. Katherine Wallace SMITH.

No. 13496.

Supreme Court of Appeals of West Virginia.

April 1, 1975.

Syllabus by the Court

1. When a police officer, pursuant to an official investigation of an area, stops an automobile and by reason of the words and actions of an occupant thereof has probable cause to believe that such occupant is in possession of a concealed weapon, he may search the vehicle and if, during the search, he discovers the presence of a controlled substance, such discovery is the result of a reasonable search and the fruits thereof are admissible in evidence.

2. The presentation to a jury of incriminating and damaging statements which amount to admissions of part or all of an offense, allegedly made by the accused, without first having permitted a determination of the voluntariness thereof out of the presence of the jury, constitutes reversible error.

3. In relation to the admissibility of statements, concerning their voluntariness, made by one being interrogated by the police, no distinction can be drawn between statements which are direct confessions and statements which amount to admissions of part or all of an offense.

Nichols & Skinner, John C. Skinner, Jr., Charles Town, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., Richard E. Hardison, Deputy Atty. Gen., David P. Cleek, Asst. Atty. Gen., Charleston, for defendant in error.

CAPLAN, Justice:

Katherine Wallace Smith was indicted by the grand jury of the Circuit Court of Berkeley County for the felony of possessing, with intent to deliver, a controlled substance, to wit, lysergic acid diethylamide, commonly known and sometimes hereinafter referred to as LSD. After a trial by jury on said charges she was found guilty and sentenced to confinement in the Women's Penitentiary at Pence Springs for a term of not less than one nor more than five years. Her motion set aside the verdict and grant a new trial was denied and she prosecutes this appeal.

In appears from the record that on September 19, 1972 Troopers Lefler and Outman, as undercover agents for the Department of Public Safety, were engaged with other members of the department in an investigation of and a search for narcotics at the Raymond Durboraw, Jr. farmhouse located in a rural area of Berkeley County. These troopers, dressed in 'hippie' garb, were posted at an entrance to the area ground the farmhouse. The defendant, Katherine Wallace Smith, was driving an automobile in which Richard Warden, the owner thereof, was riding as a passenger. As they approached the entrance the troopers motioned the car toward them and when the car was a few feet away the officers testified that Warden said 'There's pigs everywhere. Hide the stash.' The troopers testified that Warden then reached down between his legs under the seat at which time Trooper Lefler immediately removed Warden from the car at gun point. He then instructed defendant Smith to keep her hands on the steering wheel and to exit from the car on the passenger side which she did. Each trooper testified that prior to the search the defendant was advised of her rights. They then searched the car for a weapon but none was found.

During the search Trooper Lefler testified that he found a brown paper bag with a plastic bag inside of it which contained pink tablets. The tablets were clearly visible. Trooper Lefler then asked Miss Smith if he could search the car and he testified that defendant Smith answered in the affirmative. At the trial counsel for the defendant objected to this testimony and strenuously objected for lack of a Voir dire hearing to Trooper Lefler's testimony wherein he testified that Katherine Smith told him (1) that the tablets were acid; (2) that she had one 'set of works' in her purse; (3) to take the diet pill and match box containing marijuana from her purse; (4) that she had gotten the LSD that evening at a bar called the Pub in Hagerstown, Maryland; (5) that she and Warden had picked up the LSD and had driver it to the isolated farm; and (6) that she feared for her life if she told from whom they obtained the acid. At the conclusion of Trooper Lefler's direct testimony the defendant moved for a mistrial on the ground that the court had failed or refused to conduct a Voir dire hearing on the voluntariness and therefore the admissibility of the confession of Katherine Wallace Smith. This motion was denied by the court.

Trooper Outman, the other undercover agent, repeated the statements made to Trooper Lefler by Katherine Wallace Smith. The motion for a mistrial was renewed at the close of the state's case and at the close of all of the evidence. These motions also were denied.

Corporal J. D. Smith testified that he received the pink tablets from Lefler on September 19, 1972, placed them in the evidence locker at the Martinsburg State Police Barracks and delivered them back to Lefler on September 21, 1972. Lieutenant Barber, a state police chemist, testified that he received the tablets from Lefler on September 22, 1972 and that he tested them and found them to be lysergic acid diethylamide. Lieutenant Barber testified that he had used sixty-one tablets from each bag to conduct his tests and that he submitted fifteen tablets from each bag to the defense counsel for examination.

Richard Warden, the first defense witness, who was the owner and passenger of the car where the LSD was found, testified that the LSD was his and denied that Katherine Wallace Smith had anything to do with the pills. He testified on cross examination that the LSD was in the car prior to the time that the defendant entered it. Katherine Wallace Smith testified that she knew nothing of the LSD in Warden's car or that she ever possessed such tablets. She said that the troopers approached the car with guns drawn and ordered her and Warden from the car and then searched it. She denied that she made the confession attributed to her and denied that she had been advised of her constitutional rights until just prior to her transportation from the farm.

Upon this appeal the defendant relies upon the following assignment of errors: (1) the trial court erred in refusing to conduct a Voir dire examination to determine the voluntariness of the statements attributed to the defendant prior to the admission thereof in evidence; (2) the trial court erred in refusing to require the state to turn over to the defendant any exculpatory evidence it had in its possession; (3) the trial court should have suppressed State's Exhibit No. 1, the drugs which were found in the Warden automobile, on the ground that it was obtained as the result of an unlawful search; and (4) the conduct of the trial denied the defendant a fair trial.

The first assignment of error refers to the testimony of Trooper Lefler wherein he related certain incriminating statements made by the defendant, Katherine Wallace Smith, at the time the drugs were seized. That such statements were incriminating cannot successfully be denied. The defendant, according to the testimony of Trooper Lefler, without equivocation, admitted that she and Warden had obtained the LSD tablets in a bar in Hagerstown, Maryland; that they had brought them to this isolated farm; and that she was afraid to name the person from whom she had gotten such drugs. Further, she volunteered that she had several articles in her purse for the possession of which she could be prosecuted.

On several occasions prior to the adducing of this testimony from Trooper Lefler, counsel for the defendant interposed objections to the questions which called for testimony reflecting statements made by the defendant to witness Lefler. On each occasion counsel requested the court to conduct a hearing outside the presence of the jury to determine the voluntariness of the statements purported to have been made by the defendant and the admissibility of such evidence. Each motion for such Voir dire examination was overruled, which action, says the defendant, constitutes reversible error.

If the statements of the defendant, as related by Trooper Lefler from the witness stand, constitute a confession, then the clear and unequivocal language of the Court in State v. Fortner, 150 W.Va. 571, 148 S.E.2d 669 (1966) is controlling and the failure of the trial court to determine out of the presence of the jury the voluntariness of such confession is reversible error. See Spaulding v. Warden, W.Va., 212 S.E.2d 619 (1975); State v. Vance, 146 W.Va. 925, 124 S.E.2d 252 (1962); State v. Mayle, 108 W.Va. 681, 152 S.E. 633 (1930); and State v. Richards, 101 W.Va. 136, 132 S.E. 375 (1926). Such determination must be made by the trial court before a confession may be heard by a jury whether the defendant requests the hearing or not. This is evidenced by the following language of Syllabus Point No. 1 of Fortner, supra:

It is the mandatory duty of a trial court, whether requested or not, to hear the evidence and determine in the first instance, out of the presence of the jury, the voluntariness of an oral or written confession by an accused person prior to admitting the same into evidence, and the failure to observe this...