State v. Smith

Decision Date19 December 1972
Docket NumberNo. 13139,13139
Citation193 S.E.2d 550,156 W.Va. 385
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia v. Larry Eugene SMITH.

Syllabus by the Court

1. Except where authorized by law as incident to a lawful arrest, any search of a person or his dwelling on mere suspicion and the seizure of any article found as a result thereof, without an arrest warrant or a search warrant, is an unlawful search and seizure in violation of Section 6, Article 3 of the Constitution of West Virginia.

2. 'In this jurisdiction where there is competent evidence tending to support a pertinent theory of a case, it is error for the trial court to refuse a proper instruction, presenting such theory, when so requested.' Syllabus, Point 4, State v. Hayes, 136 W.Va. 199 (67 S.E.2d 9).

3. A person charged with possession of an illegal drug should be permitted to examine the alleged illegal drug under proper supervision and control.

4. Where the circumstances show that there is a question as to the unanimity of a jury verdict, the jury should be polled if a request is timely made.

5. Where the record of a criminal trial shows that the cumulative effect of numerous errors committed during the trial prevented the defendant from receiving a fair trial, his conviction should be set aside, even though any one of such errors standing alone would be harmless error.

Wilson, Frame & Rowe, Clark B. Frame, Darwin F. Johnson, Morgantown, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., Willard A. Sullivan, William R. Wooton, Asst. Attys. Gen., Charleston, for defendant in error.

CARRIGAN, Judge:

The appellant, Larry Eugene Smith, was found guilty after trial in the Circuit Court of Monongalia County upon an indictment charging him with possession of 'a narcotic drug, Cannabis, commonly known as Marijuana, in violation of W.Va. Code Ch. 16, Art. 8A, Sec. 2 (Michie 1966).' This Court granted an appeal to review the numerous assignments of error alleged to have been committed in his trial and conviction.

Larry Wildman, a West Virginia State Trooper, acting as an undercover agent, hereinafter referred to as such, had been on the West Virginia University campus for approximately six months investigating narcotics. During this time he dressed in casual clothes, let his hair grow, had on occasions purchased and smoked marijuana and had endeavored to infiltrate into groups involved in drug practices. He had not reported or disclosed his investigation to the university officials.

Larry Eugene Smith, the defendant, lived at 45 Beechhurst Avenue, Morgantown, together with three other boys, one being Sam McCormick. Defendant was twenty years of age, not then attending school, but having attended Fairmont College one and one-half years. He was 1--A in the draft call, was employed on a part-time basis and was attempting to get regular employment.

Early on the evening of January 18, 1971, the undercover agent had gone to defendant's residence and had attempted to buy marijuana from this defendant, but defendant said: 'I told him we didn't have any.' Around 2:00 or 2:30 a.m., January 19, 1971, defendant answered a knock at the door, and seeing the undercover agent wearing his disguise, he having already entered a closed-in porch, the door of which was always unlocked, admitted the undercover agent to the house. Upon entry the undercover agent began shouting in an excited manner that several places were being raided in Morgantown, and that he desired to see Sam McCormick. The undercover agent's express purpose for seeking entrance to the house was to serve an arrest warrant for Sam McCormick, although this purpose was not disclosed by him to the defendant. Defendant told him Sam was upstairs asleep. The undercover agent called for Sam and continued in an excited manner to shout that other places in Morgantown were being 'busted,' and stated: 'If you've got anything in the house, for God's sake, get it out.' The undercover agent testified that defendant thereupon went to the adjoining room and returned with a bowl, which was later found to contain various kinds of pills, and alleged marijuana, and that he said: 'This is all the dope we got.' At this moment two troopers, not in uniform, who had accompanied the undercover agent and were participating in the events, came through the door and into the room or hallway where defendant and the undercover agent were standing. The undercover agent testified that defendant then 'jumped into me' dropping the bowl to the floor and scattering the contents. The undercover agent did not know at that time what drugs, if any, the bowl contained. He further testified that defendant shouted: 'Run, Sam, Run.' The undercover agent then pushed, slammed or otherwise knocked defendant into the wall, face forwards, breaking his glasses and causing blood to spurt from his nose. A doctor's examination the next day disclosed that his nose was broken.

The undercover agent testified that he had not entered the premises to arrest Larry Smith, that he had no search warrant; but only an arrest warrant for Sam McCormick; that he did not attempt to disclose his true identity to Larry Smith. He stated that although he had not entered the premises for Larry Smith: 'I wanted Larry Smith and tried on several occasions to get him.'

Defendant denied saying, 'Run, Sam, Run,' and stated that the undercover agent turned him around and threw him against the wall practically knocking him into unconsciousness without any provocation, and that this caused him to drop the bowl, thereby scattering the contents over the floor. At no time was it disclosed to defendant that police officers were in the house. Neither was he advised of the charge placed against him when he was taken into custody. Thereafter he was told he was 'arrested' for interfering with an officer. Defendant denied interfering with an officer. He further denied knowing the contents of the bowl or that the bowl belonged to him.

Defendant's motion to suppress evidence concerning the contents of the bowl seized at defendant's dwelling was overruled. Prior to trial defendant moved to be permitted to examine the alleged marijuana, which motion was denied. Defendant also offered an instruction on entrapment which the court refused to give. Sometime after the jury had retired to consider their verdict, they sent a writing to the court, and signed by all twelve jurors, stating: 'We, the jury, are unable to reach a unanimous decision as to the guilt or non-guilt of Larry Eugene Smith for the possession of cannabis.' The court refused to accept this and sent the following message to the jury: 'Continue your deliberations.' Thereafter, in response...

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  • Frank A. v. Ames
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    ...should be set aside, even though any one of such errors standing alone would be harmless error.’ Syllabus point 5, State v. Smith, 156 W.Va. 385, 193 S.E.2d 550 (1972)."Syl. Pt. 7, State v. Tyler G. , 236 W. Va. 152, 778 S.E.2d 601, 604 (2015). We have cautioned, however, that mere allegati......
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    ...should be set aside, even though any one of such errors standing alone would be harmless error.' Syl. pt. 5, State v. Smith, 156 W.Va. 385, 193 S.E.2d 550 (1972)." III. CONCLUSION In this case, our voyage is complete. "Having navigated the waters" of burden of proof, standards of review, ne......
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    ...of all the above assignments of error warrant reversal of the appellant's conviction by this Court, see syl. pt. 5, State v. Smith, 156 W.Va. 385, 193 S.E.2d 550 (1972) (cumulative effect of assigned errors must be such as to deprive the defendant of a fair trial).2 In West Virginia, althou......
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    ...conviction should be set aside, even though any one of such errors standing alone would be harmless error." Syllabus Point 5, State v. Smith, 156 W.Va. 385, 193 S.E.2d 550 (1972). Attorney General Office, Brenda Craig Ellis, Charleston, for the R. Lee Booten, II, Huntington, for Plumley. NE......
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