State v. Tadder

• Decision Date: 16 February 1984
• Docket Number: No. 15939,15939
• Citation: 173 W.Va. 187,313 S.E.2d 667
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Robert G. TADDER.

Page 667

313 S.E.2d 667

173 W.Va. 187

STATE of West Virginia v. Robert G. TADDER.

No. 15939.

Supreme Court of Appeals of West Virginia.

Feb. 16, 1984.

Syllabus by the Court

1. " '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.' Syl. pt. 19, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974)." Syl. pt. 1, State v. Cecil, 311 S.E.2d 144 (W.Va.1983).

2. Where police officers apprehended in a building two suspects of a breaking and entering of that building, and minutes thereafter the officers stopped a truck with two occupants attempting to leave the scene of the breaking and entering, a warrantless search of the vehicle by the officers, which resulted in the seizure from the glove compartment of the wallets of the suspects apprehended in the building, did not violate the defendant's constitutional rights against unreasonable searches and seizures, where the record demonstrated that the defendant, as a passenger in the truck, had no property or possessory interest in the truck, its glove compartment, or the items seized and, therefore, suffered no invasion of a legitimate expectation of privacy.

3. "In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done." Syl. pt. 1, State v. Starkey, W.Va., 244 S.E.2d 219 (1978).

Thomas L. Butcher, Public Legal Services, Charleston, for appellant.

Chauncey H. Browning, Jr., Atty. Gen. and Fredrick Wilkerson, Asst. Atty. Gen., Charleston, for appellee.

McHUGH, Chief Justice:

This case is before this Court upon an appeal by the appellant, Robert G. Tadder, a.k.a. Robert G. Tadden, from his felony conviction in the Circuit Court of Wetzel County, West Virginia, of the offense of aiding and abetting. The appellant was found to have aided and abetted the breaking and entering of a grocery store in New Martinsville, Wetzel County, West Virginia. He was sentenced in the circuit court to a penitentiary term of not less than one nor more than ten years. W.Va.Code, 61-3-12 [1931]; W.Va.Code, 61-11-6 [1931]. This Court has before it the petition for appeal, all matters of record and the briefs of counsel.

On May 12, 1980, at approximately 11:25 p.m., Michael L. Johnston and Daniel W. Wright, officers of the New Martinsville police department, responded to an anonymous call indicating that glass was heard breaking at Leo Herrick's Market, a grocery store. Upon arriving at the scene, the officers spotted two men in the store. Other officers arrived, and the two suspects, later identified as Robert M. Calvert and Donald J. Wilczak, were placed in custody.

A few minutes later, Officers Johnston and Wright spotted a yellow Ford pickup truck as it exited a parking lot near the grocery store. The truck had Pennsylvania license plates. Larry W. Calvert, the brother of one of the suspects apprehended in the store, was driving the truck. The appellant was in the passenger seat. Upon stopping the truck, the officers conducted a warrantless search of the vehicle and located, in the glove compartment, the wallets of the two suspects apprehended in the store. Larry W. Calvert and the appellant were then taken into custody. ¹

An indictment charging the appellant with aiding and abetting the breaking and entering of the grocery store was returned by a Wetzel County grand jury. On May 14, 1980, defense counsel was appointed to represent the appellant. The appellant's trial began on November 12, 1981.

Defense counsel made no motion, during the proceedings in circuit court, to suppress evidence with respect to the warrantless search by police officers of the truck. ² During the appellant's trial, Officers Johnston and Wright were permitted to testify that they found in the glove compartment of the truck the wallets of the suspects apprehended in the store.

At the conclusion of the trial, the trial judge determined that the evidence was not insufficient to support a conviction of the appellant under the indictment. The case was then submitted to the jury, and the appellant was convicted.

In this appeal, the appellant contends that (1) his conviction resulted from ineffective assistance of counsel, (2) the search of the truck by police officers violated the appellant's constitutional rights and (3) the evidence at trial was insufficient to support the appellant's conviction.

I Ineffective Assistance of Counsel and the Warrantless Search Issue

In the recent case of State v. Cecil, 311 S.E.2d 144 (W.Va.1983), this Court, in syllabus point 1, restated the following rule with respect to assertions by criminal defendants of ineffective assistance of counsel:

'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.' Syl. pt. 19, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974). ³

The appellant contends that the search of the truck violated his constitutional rights because that search was initiated by the officers without a warrant and without probable cause. ⁴ In that regard, the appellant contends that he suffered from ineffective assistance of counsel because his counsel failed to move to suppress the evidence found in the glove compartment by the officers during the search. As indicated above, that evidence consisted of the wallets of the two suspects apprehended in the grocery store.

We first examine the question of whether the search of the truck, in which the appellant was a passenger, violated the appellant's constitutional rights. Accordingly, we note that in syllabus point 1 of State v. Moore, W.Va., 272 S.E.2d 804 (1980), we held as follows:

Searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment and Article III, Section 6 of the West Virginia Constitution--subject only to a few specifically established and well-delineated exceptions. The exceptions are jealously and carefully drawn, and there must be a showing by those who seek exemption that the exigencies of the situation made that course imperative.

For the reasons stated below, the Moore case is inapplicable to the case before this Court, and we conclude that the appellant's constitutional rights, with respect to searches and seizures, were not violated.

In Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), reh'g. denied., 439 U.S. 1122, 99 S.Ct. 1035, 59 L.Ed.2d 83 (1979), the police, investigating a robbery, seized from an automobile a rifle, found under the front passenger seat, and rifle shells, found in the glove compartment. At the time of that search, the defendants were passengers in the automobile. They did not own the vehicle or the rifle or the shells. The prosecution offered the rifle and shells into evidence at the defendants' trial, and the defendants were convicted of robbery.

Those convictions, in Illinois, were affirmed in Rakas by the Supreme Court of the United States. The court concluded that no expectations of privacy were shown by the defendants "with respect to those portions of the automobile which were searched and from which incriminating evidence was seized." 439 U.S. at 149, 99 S.Ct. at 433, 58 L.Ed.2d at 405. The Court stated as follows:

A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of this Fourth Amendment rights infringed.

....

[The defendants] asserted neither a property nor a possessory interest in the automobile, nor an interest in the property seized. And as we have previously indicated, the fact that they were 'legitimately on [the] premises' in the sense that they were in the car with the permission of its owner is not determinative of whether they had a legitimate expectation of privacy in the particular areas of the automobile searched.

439 U.S. at 134, 148, 99 S.Ct. at 425, 433, 58 L.Ed.2d at 395, 404.

In the following state decisions, the Rakas case was cited: Koonce v. State, 269 Ark. 96, 98, 598 S.W.2d 741, 742 (1980), search and seizure of a gun found under the front seat of an automobile upheld, where the defendant, a passenger in the rear seat of the automobile, claimed no ownership in the automobile or in the gun and demonstrated "no legitimate expectation of privacy under the front seat of the vehicle ..."; State v. Bartz, 431 So.2d 704 (Fla.Dist.Ct.App.1983), warrantless search and seizure upheld, where the appellant was a passenger in a vehicle, and controlled substances were seized from the "center console" of the vehicle and from the driver of the vehicle; ...