State v. Stacy

• Decision Date: 21 July 1989
• Docket Number: No. 18571,18571
• Citation: 384 S.E.2d 347,181 W.Va. 736
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Bobby Dean STACY.

Page 347

384 S.E.2d 347

181 W.Va. 736

STATE of West Virginia v. Bobby Dean STACY.

No. 18571.

Supreme Court of Appeals of

West Virginia.

July 21, 1989.

Syllabus by the Court

1. "The plain error doctrine contained in Rule 30 and Rule 52(b) of the West Virginia Rules of Criminal Procedure is identical. It enables this Court to take notice of error, including instructional error occurring during the proceedings, even though such error was not brought to the attention of the trial court. However, the doctrine is to be used sparingly and only in those circumstances where substantial rights are affected, or the truth finding process is substantially impaired, or a miscarriage of justice would otherwise result." Syl.Pt. 4, State v. England, 180 W.Va. 342, 376 S.E.2d 548, 550 (1988).

2. Since the underlying felony is an essential element of felony-murder, the jury must be instructed as to the elements which constitute the underlying felony.

3. Where an instruction is given which fails to define the elements of the underlying felony involved in felony-murder, such instructional error when not objected to at trial will be the subject of the plain error doctrine.

4. "In determining whether an out-of-court identification of a defendant is so tainted as to require suppression of an in-court identification 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." Syl.Pt. 3, State v. Casdorph, 159 W.Va. 909, 230 S.E.2d 476, 478 (1976).

Frank W. Helvey, Jr., Public Legal Services, for Bobby Dean Stacy.

Jeffrey L. Hall, Asst. Atty. Gen., Charleston, for the State.

WORKMAN, Justice:

This case is before the Court upon an appeal by Bobby Dean Stacy (Stacy). It arises from the defendant's July 27, 1982, felony-murder conviction by a jury ¹ in the Circuit Court of Cabell County. The defendant was sentenced to life imprisonment without mercy for the December 14, 1981 murder of Huntington Police Officer Paul J. Harmon (Harmon). The assignments of error made by the defendant include: 1) the trial court erred in instructing the jury on felony-murder without also instructing on each essential element of the underlying felony and without instructing on the State's burden of proof in the underlying felony; 2) the trial court erred in permitting the in-court identifications of the defendant because the out-of-court photographic arrays used to identify the defendant were so suggestive they impermissibly tainted all in-court identifications; 3) the trial court erred in failing to suppress evidence obtained from the warrantless search of the locked trunk compartment of the defendant's car; and, 4) the trial court erred in failing to admonish the prosecutor and failing to give jury instructions to cure the prejudice created by the prosecutor's improper remarks during closing argument. ² We conclude that the lower court erred in its instruction to the jury on felony-murder and reverse and remand.

On December 14, 1981, at 1:15 a.m., two men attempted to rob a McDonald's restaurant in Chesapeake, Ohio. Both men wore dark blue or black ski masks which covered their faces. Maurice McCoy, an employee for McDonald's indicated that one of the men was approximately six feet tall while the other was short and fat. The tall man was identified as being white while the short man was identified as being black. Carrying sawed-off shotguns, the masked men confronted McCoy and another McDonald's employee and demanded that the employees give them the combination to the restaurant's safe. When the employees informed the robbers they did not know the combination, the two robbers took the keys to a 1972 Matador belonging to one of the employees and fled the scene at approximately 1:20 a.m. The employee's car was later found in Huntington, West Virginia, some ten blocks from where Officer Harmon was murdered. A tape deck and some eight-track cassettes were missing from the stolen vehicle.

At 1:41 a.m., some twenty minutes after the McDonald's robbery, Officer Randy Byard (Byard) of the Huntington Police Department, observing a possible breaking and entering by two men at a gasoline station, radioed for the assistance of a back-up unit. Officer Harmon responded to the back-up request and a short time later, he radioed to Officer Byard "[Byard], I've got 'em over here at 19th and--uh--Jefferson." A few seconds later, Officer Byard reported hearing a gun shot and rushed to Officer Harmon's aid. Officer Byard heard four more gun shots and saw two men running west down Jefferson Avenue in Huntington. When the officer arrived at the corner of Jefferson Avenue and 19th Street, he found the body of Officer Harmon. Harmon had been beaten in the head and shot five times. Officer Harmon's service revolver and flashlight were missing. Officer Byard then observed two men get into a green 1971 Buick Skylark and leave the scene.

One of the witnesses, Ted Norman (Norman), a seventy-seven year old man, lived at 1907 Jefferson Avenue, the third house from the intersection at 19th Street and Jefferson Avenue. Norman testified that he heard a gunshot, looked out his window, and saw Officer Harmon on the ground with the man on top of him trying to take something from the officer. The man then raised up and shot Officer Harmon several more times. Norman further testified that the man got up and ran towards his home and as the man approached, Norman turned on his porch light and clearly saw the man from a distance of eight to twelve feet. Norman identified Stacy as the man who shot Officer Harmon and ran past his home.

Angela Kay Norman (Angela), Ted Norman's ten-year-old granddaughter, also testified that she saw a man shoot Officer Harmon and then run by the side of their house. As the man passed her home, Angela said he looked up and "squinched his eyes." Norman testified that the assailant may have been wearing a wig, while Angela was certain that the man had on a wig. She also later identified Stacy as the assailant.

Shortly after the shooting, Officer Leroy Campbell (Campbell) of the Kenova Police Department passed a car travelling west on U.S. Route 60. Officer Campbell turned around and followed the vehicle because it was being driven by a black man and as the officer stated at trial "[t]here's no--there's no black people in our community at all, and when I first seen [sic] this I was going to check this out." As the officer passed the vehicle, the driver turned his head toward Officer Campbell for a couple of seconds. Officer Campbell later identified Wilbert Mayle (Mayle), Stacy's co-defendant, as the driver of the car. At about this time, Officer Campbell learned of the shooting of Officer Harmon over his radio. The officer received a description of the car which had fled the murder scene and realized that the car he had just passed fit that description. Officer Campbell proceeded to establish a roadblock at the Kenova-Catlettsburg bridge on Route 60. The suspect vehicle, however, averted the roadblock by turning left prior to reaching the bridge. The officer followed the suspect car and found it abandoned on Sycamore Street, a dead-end street by the river.

The car was registered in the name of Bobby Dean Stacy. Officer Harmon's service revolver, which was used to kill him, was found on the front passenger's seat. Other items removed from the car and subsequently introduced into evidence at trial included a deck of playing cards and the car's steering wheel, each bearing a fingerprint identified as Mayle's; a plastic bag bearing one fingerprint identified as Stacy's; an envelope, also with one of Stacy's fingerprints; a loaded .357 Magnum taken from a suitcase on the rear seat; two ski masks, one of which contained hair fibers consistent with hair samples of Stacy and co-defendant Mayle; an eight-track deck removed from the locked trunk compartment and identified as having been taken from the car stolen from the manager of the Ohio McDonald's; and, nineteen eight-track tapes found on the rear seat, six of which were claimed to have been taken from the vehicle stolen in Ohio. Three of the six tapes bore fingerprints identified as Stacy's.

The State also produced evidence to suggest that after Stacy and Mayle had abandoned their car on Sycamore Street, they stole a pickup truck from a residence some six miles away which police later discovered abandoned near Fort Gay, West Virginia. In Fort Gay, another truck was reported stolen. This truck allegedly carried Mayle and Stacy approximately three-fourths of a mile to a Pic-Pak store in Louisa, Kentucky. At the Pic-Pak store, bread salesman Hiram Adkins (Adkins) saw two individuals at 10:15 a.m. on December 14, 1981. Based upon his view of these two men, Adkins identified Stacy in court as one of the individuals he saw that morning. The second stolen truck was later found abandoned in Columbus, Ohio, approximately a block and a half from Stacy's mother's home.

Kathy Pearson (Pearson), a resident of Columbus Ohio, was a friend of both Mayle and Stacy. Pearson testified that on the evening of December 13, 1981, Stacy called her and told her that "he was going to meet Jackie and go to the hills and take care of business." She identified "Jackie" as being Wilbert Mayle. Additionally, Pearson testified that she had a phone conversation with Stacy on December 15, 1981. She asked Stacy, "Bob, did you shoot somebody?" She said Stacy replied, "Kathy, it's worse than that."

At trial, Stacy's defense centered on newspaper and television reports of Harmon's...