State v. Spence

• Decision Date: 20 December 1989
• Docket Number: No. 18203,18203
• Citation: 388 S.E.2d 498,182 W.Va. 472
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. John SPENCE, Jr.

Page 498

388 S.E.2d 498

182 W.Va. 472

STATE of West Virginia v. John SPENCE, Jr.

No. 18203.

Supreme Court of Appeals of West Virginia.

Dec. 20, 1989.

Syllabus by the Court

1. "A pretrial identification by photograph will be set aside if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Syllabus Point 4, State v. Harless, 168 W.Va. 707, 285 S.E.2d 461 (1981).

2. "Most courts have concluded that a photographic array will not be deemed excessively suggestive as long as it contains some photographs that are fairly representative of the defendant's physical features. The fact that some of the photographs are dissimilar to the defendant's appearance will not taint the entire array." Syllabus Point 6, State v. Harless, 168 W.Va. 707, 285 S.E.2d 461 (1981).

3. "In determining whether an out-of-court identification of a defendant is so tainted as to require suppression of an in-court identification [or testimony as to the out-of-court identification itself] a court must look to the totality of the circumstances and determine whether the identification was reliable, even though the confrontation procedure was suggestive, with due regard given to 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." Syllabus Point 3, as amended, State v. Casdorph, 159 W.Va. 909, 230 S.E.2d 476 (1976).

4. "[Under Rule 801(d)(1)(C) of the West Virginia Rules of Evidence,] [t]hird party testimony regarding an out-of-court identification may in certain circumstances be admissible when the identifying witness testifies at trial because both the identifying witness and the third party are then available for cross-examination." Syllabus Point 6, as amended, State v. Carter, 168 W.Va. 90, 282 S.E.2d 277 (1981).

5. "In certain circumstances evidence of the flight of the defendant will be admissible in a criminal trial as evidence of the defendant's guilty conscience or knowledge. Prior to admitting such evidence, however, the trial judge, upon request by either the State or the defendant, should hold an in camera hearing to determine whether the probative value of such evidence outweighs its possible prejudicial effect." Syllabus Point 6, State v. Payne, 167 W.Va. 252, 280 S.E.2d 72 (1981).

6. "In the determination of a claim that an accused was prejudiced by ineffective assistance of counsel violative of Article III, Section 14 of the West Virginia Constitution and the Sixth Amendment to the United States Constitution, courts should measure and compare the questioned counsel's performance by whether he exhibited the normal and customary degree of skill possessed by attorneys who are reasonably knowledgeable of criminal law, except that proved counsel error which does not affect the outcome of the case, will be regarded as harmless error." Syllabus Point 19, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).

7. Where assignments of error are asserted on appeal, but are not discussed, in the absence of plain error, we will decline to address them. The plain error rule presupposes that the record is sufficiently developed to discern the error.

8. "The joinder of related offenses to meet possible variance in the evidence is not ordinarily subject to a severance motion. In those other situations where there has been either a joinder of separate offenses in the same indictment or the consolidation of separate indictments for the purpose of holding a single trial, the question of whether to grant a motion for severance rests in the sound discretion of the trial court." Syllabus Point 6, State v. Mitter, 168 W.Va. 531, 285 S.E.2d 376 (1981).

9. " 'Punishment may be constitutionally impermissible, although not cruel or unusual in its method, if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity, thereby violating West Virginia Constitution, Article III, Section 5 that prohibits a penalty that is not proportionate to the character and degree of an offense.' Syllabus Point 5,State v. Cooper, 172 W.Va. 266, 304 S.E.2d 851 (1983)." Syllabus Point 1, State v. Buck, 173 W.Va. 243, 314 S.E.2d 406 (1984).

P. Lee Clay, Baltimore, Md., Ron L. Tucker, Fairmont, for John Spence, Jr.

Brenda Craig Ellis, Asst. Atty. Gen., Charleston, for State of W.Va.

MILLER, Justice:

The defendant, John Spence, Jr., appeals his conviction by a jury of armed robbery in the Circuit Court of Marion County. He asserts three assignments of error: (1) that the photographic identification was tainted; (2) that the trial court gave a jury instruction on flight when no evidence of flight was introduced at trial; and (3) that the trial court committed reversible error when it refused to grant a continuance to permit the defendant's newly appointed attorney reasonable time to prepare for trial. After examining the record as a whole, we find no reversible error, and we affirm the conviction.

On August 18, 1985, a man robbed the 250 Drive Thru convenience store located in rural Marion County. As the name implies, the customer would drive to the store, and the clerk would come out and take the customer's order. It was also possible for the customer to shop inside the store premises. Grace Darla Smith, the clerk on duty the evening of the robbery, was nineteen years old. She testified at trial that shortly before midnight and just before the store was to close, a car drove up to the store. When Ms. Smith went out to take the order and observed a man getting out of the car, she turned and went back into the store. The man approached her from behind, held a large kitchen-type chopping knife to her back, and asked for the cash register money. After Ms. Smith complied with his request, he ordered her to get down on the floor and left. Ms. Smith described the robber to the investigating officer as a white male with dark eyes, black hair, and a moustache and stated that he wore blue jeans, a black jacket, and a T-shirt and drove a blue automobile.

Approximately one and one-half hours later, Ms. Smith viewed a photographic array at the Mannington police department. A Marion County sheriff's deputy believed the victim's description of the perpetrator fit the defendant and the type of vehicle he was known to drive. The deputy selected photographs of men similar in appearance to the defendant for the photographic array. After picking out the defendant's photograph, Ms. Smith handwrote a statement which included language suggested by the deputy describing the composition of the photographic array. ¹ This statement was admitted at trial.

Ten days later, a detective from the sheriff's department inserted the four photographs from the photographic array into a mug book for Ms. Smith to view. The victim again identified the defendant's photograph. The detective took a more detailed statement, in which Ms. Smith described the robber's automobile as red with a white roof. This statement was also introduced at trial. ²

At trial, seven months after the crime, Ms. Smith was unable to identify the robber and could not remember many of the details surrounding the robbery or the police interviews. She testified that since the robbery she had suffered a great deal of emotional distress, had had difficulty eating and sleeping, and was afraid to stay at home by herself. She was also afraid to testify, although she had not been threatened by anyone.

On cross-examination, Ms. Smith also stated that on the night of the robbery she was in a state of shock, and it was possible that she could have picked out the wrong person. The evidence showed that shortly prior to trial the defendant had changed his hairstyle and had shaved off his moustache. The defendant's presence at the scene of the crime was established through the testimony of the investigating officer, who testified that the victim had picked the defendant's picture out of two separate photographic arrays.

The defendant's neighbor testified that the defendant and his family had not been seen at their residence from the night of the robbery until three months later when the defendant's wife removed their personal belongings. The defendant explained that he and his family had left the Mannington area after hearing on a CB radio that the police were going to his home. The defendant stated that the police had previously arrested him for a robbery he had not committed and that he did not want to be dragged into another case. ³

In his son's defense, John Spence, Sr., testified that on the night of the robbery, the defendant had been at his house repairing a car. The defendant confirmed his father's testimony. The defendant was convicted of armed robbery and was subsequently sentenced to sixty years in the penitentiary.

I.

The defendant claims that the victim's identification of him as the robber was not reliable because she did not have a sufficient opportunity to see the perpetrator. The defendant also asserts that the initial photographic array was suggestive and that the procedure was tainted because his name had been mentioned to her beforehand. Finally, the defendant points to the fact that at trial, the victim was unable to make a positive identification of the defendant. We first address the photographic identification issue.

A.

In Syllabus Point 4 of State v. Harless, 168 W.Va. 707, 285 S.E.2d 461 (1981), we adopted the test set forth in Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, 1253, (1968), for determining whether pretrial photographic identification of the accused as the perpetrator of the crime should be admitted into...