State v. Stollings
| Decision Date | 25 March 1975 |
| Docket Number | No. 13335,13335 |
| Citation | 158 W.Va. 585,212 S.E.2d 745 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia v. Kermit STOLLINGS. |
Syllabus by the Court
1. '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 in-court identification was based upon observation of the accused at the scene of the crime, independent of the lineup.' Syllabus pt. 3, State v. Moore, W.Va., 212 S.E.2d 608 (decided March 18, 1975).
2. 'The only judicially recognized exception to the statutory requirement of 'relevancy' upon cross-examination of the accused is that prior Convictions of unrelated crimes may be raised by the State to test the credibility of the accused as a witness; and when the accused makes a timely objection or limiting request, the jury must be instructed that such convictions are raised for the sole purpose of testing credibility.' Syllabus pt. 3, State v. Ramey, W.Va., 212 S.E.2d 737 (decided March 11, 1975).
3. 'The weight of evidence is not determined on the basis of the number of witnesses, the general rule in that respect being that witnesses are not to be counted, but rather their testimony is to be weighed.' Syllabus pt. 5, Lusher v. Sparks, 146 W.Va. 795, 122 S.E.2d 609 (1961).
Leonard H. Higgins, Charleston, for plaintiff-in-error.
Chauncey H. Browning, Jr., Atty. Gen., Richard E. Hardison, Deputy Atty. Gen., E. Leslie Hoffman, III, Asst. Atty. Gen., Charleston, for defendant-in-error.
This is an appeal by the defendant, Kermit Stollings, from a conviction of armed robbery in the Circuit Court of Lincoln County. We affirm.
At approximately 4:30 a.m. on the morning of August 10, 1970 Irvin Vance was opening his gasoline service station in Lincoln County, West Virginia. After he had turned on approximately half of the lights in the station and store, three men drove into the station lot and asked to have their car filled with gas. The occupants then asked if Mr. Vance had soft drinks for sale, and when Mr. Vance said 'yes' the occupants of the car went into the service station. After filling the car Mr. Vance followed the men into the small general store which was part of the station. The men asked to purchase some cheese, and when Mr. Vance opened his money box to give the men change from the ten dollar bill they had given to him to pay for the soda and cheese, two of the men grabbed him and held him tightly. A third man, who Mr. Vance later identified as the defendant in this action, held a gun on Mr. Vance and took his wallet from his person and took the money box containing food stamps, checks, and cash. The men then released Mr. Vance, entered their car, and drove off.
After the robbery the police asked Mr. Vance to identify his assailants from photographs of various suspects, but he was unable to do so. Approximately one year after the incident the defendant was arrested and detained in the Logan County Jail where he was identified by Mr. Vance as the man who held the gun on him and helped perpetrate the robbery. There is no question that the circumstances at the Logan County Jail under which Mr. Vance identified the defendant were highly suggestive. It appears that the defendant was brought into the jail in the company of police officers and that he was obviously the man which Mr. Vance was expected either to identify or to exonerate. At the time of the police station identification the defendant had not been indicted and, accordingly, he was not represented by either retained or appointed counsel.
The Court is required in this case to pass upon the admissibility of Mr. Vance's in-court identification of the defendant as the man who perpetrated the robbery in question. The trial court granted a motion to strike the evidence concerning the out-of-court identification and instructed the jury to disregard the out-of-court identification and to consider only the in-court identification. The defendant maintains that the evidence of the out-of-court identification was so prejudicial that the limiting instruction was unavailing and that a mistrial should have been granted.
We disagree. The landmark case on the subject of suggestive lineup procedures and out-of-court identification is Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 376, 34 L.Ed.2d 401 (1972) which concerned a state conviction for rape in which the victim identified the assailant at a 'showup' which consisted of two detectives walking the defendant past the victim. At the victim's request, the police directed the defendant to say 'shutup or I'll kill you.' The Supreme Court held that under the totality of the circumstances the identification was not so suggestive as to constitute a denial of due process. The Supreme Court then commented on due process rights in an identification as follows:
In the case at bar the in-court identification was positive and completely unshaken by cross-examination. In addition, the prosecuting witness had declined earlier to identify any suspect from photographs and demonstrated at trial a high degree of certainty with regard to the identification of the defendant. Furthermore, this is not a case in which a witness caught a fleeting glance of a fleeing suspect, nor was the witness a surprised spectator at a crime in which he was not involved. The defendant wore neither a mask nor a disguise, and the premises were adequately lighted during the course of the robbery. As in the case of Neil v. Biggers, Supra, the prosecuting witness in the case at bar was face-to-face with the defendant for several minutes while the defendant held a gun to the witness's stomach. While the Court disapproves any identification technique which, absent manifest necessity, is in the slightest degree suggestive, 1 the defendant is entitled under the due process clause of the State and Federal Constitutions only to a fair trial; he is not entitled to a perfect trial. Under the 'totality of the circumstances' of the in-court identification the Court finds no reversible error in the in-court identification. See: State v. Moore, W.Va., 212 S.E.2d 608 (decided March 18, 1975). Further, with the trial court's ruling on the out-of-court identification, we do not find sufficient prejudice to warrant a reversal on that ground.
The defendant next assigns as error the court's ruling which admitted, over objection, evidence with regard to the defendant's prior convictions. On cross-examination of the defendant, the State elicited the following testimony:
'Q. Have you ever been convicted of a felony, Mr. Stollings?
A. Yes, sir; I have.
Q. What have you been of?
A. (interposing) I was convicted in Wyoming County.
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