State v. Taylor

Citation200 W.Va. 661,490 S.E.2d 748
Decision Date14 July 1997
Docket NumberNo. 23668,23668
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia, Appellee, v. David E. TAYLOR, Appellant.

Syllabus by the Court

1. "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." Syllabus Point 3, State v. Casdorph, 159 W.Va. 909, 230 S.E.2d 476 (1976).

2. " ' " '[T]he inquiry made of a jury on its voir dire are [sic] within the sound discretion of the trial court and not subject to review, except when the discretion is clearly abused.' Syl. pt. 2, State v. Beacraft, 126 W.Va. 895, 30 S.E.2d 541 (1944) [, overruled on other grounds, State v. Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986), overruled on other grounds, State v. Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990) ]." Syllabus Point 2, State v. Mayle, 178 W.Va. 26, 357 S.E.2d 219 (1987).' Syllabus Point 5, in part, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994)." Syllabus Point 1, Michael v. Sabado, 192 W.Va. 585, 453 S.E.2d 419 (1994).

3. " 'Upon motion to direct a verdict for the defendant, the evidence is to be viewed in light most favorable to the prosecution. It is not necessary in appraising its sufficiency that the trial court or reviewing court be convinced beyond a reasonable doubt of the guilt of the defendant; the question is whether there is substantial evidence upon which a jury might justifiably find the defendant guilty beyond a reasonable doubt.' State v. West, 153 W.Va. 325 (1969)." Syllabus Point 1, State v. Fischer, 158 W.Va. 72, 211 S.E.2d 666 (1974).

Robert C. Stone, Jr., Martinsburg, for Appellant.

Vito Mussomeli, Assistant Prosecuting, Martinsburg, for Appellee.

PER CURIAM:

This is an appeal by David E. Taylor from an order from the Circuit Court of Berkeley County sentencing him to ten years in the State Penitentiary for aggravated robbery. During the defendant's trial, he was positively identified as the individual who robbed the Apple Valley Supermarket in Inwood, West Virginia, on February 6, 1989. On appeal, he claims that various errors were committed by the trial court relating to state's witnesses identifying him as the perpetrator of the crime. He also claims that the trial court erred in allowing the state to elicit improper testimony relating to collateral crimes committed by him, that the circuit court erred in denying his motion for public funds to secure the services of an expert in eyewitness identification, and that the circuit court erred in failing to ask all voir dire questions which he requested. Lastly, he claims that the circuit court erred in failing to grant him a directed verdict at the close of the state's evidence. After reviewing the issues raised and the documents filed, this Court disagrees with the appellant's assertions. The judgment of the Circuit Court of Berkeley County is, therefore, affirmed.

On February 6, 1989, a lone, undisguised person robbed the Apple Valley Supermarket in Inwood, West Virginia. The investigation of the crime by the West Virginia State Police culminated in the defendant's arrest.

The defendant was tried on April 20, 1993. At the trial were Kimberly Dowd DeHaven, Melissa Miller, Robert Cuthbert and John Mason, who were working in the Apple Valley Supermarket at the time of the robbery, and who positively identified the defendant as the perpetrator of the crime. During the investigation of the case these individuals had been shown photo arrays which included photos of the defendant. The photos in one of those arrays were lost prior to trial. Also, two of the witnesses had seen the defendant as he was being taken to magistrate court prior to trial. Because of these circumstances the defendant claimed that the in-court identification of him as the perpetrator of the crime was tainted and the trial court erred in allowing it.

The State also called as a witness Trooper David Lucas, who testified that during a conversation with the defendant, the defendant had suggested that he had committed other crimes. Specifically, after testifying that the defendant made a remark to the effect that he felt sorry for the individual who ratted on him on the Apple Valley thing, Trooper Lucas was asked: "Did he make any other comments to you?" Trooper Lucas responded, "He--yes, he said after--drugs and alcohol now's out of his system. That is why he committed crimes."

At the conclusion of the State's case the defendant moved for a directed verdict, and the trial court denied that motion, and, as previously indicated, at the conclusion of the trial, the jury found the defendant guilty of the aggravated robbery of the Apple Valley Supermarket.

On appeal, the defendant makes a number of assignments of error relating to the identification of him as the perpetrator of the crime.

During the trial, a number of witnesses positively identified the defendant as the individual who robbed the Apple Valley Supermarket. Although these witnesses were somewhat shocked by the robbery, all were firm in their conviction that the defendant was the perpetrator of the crime. Additionally, their testimony indicated that they were within a few feet of the defendant for one or more minutes during the commission of the crime and that they had an ample opportunity to observe and fix in their minds his features. All the witnesses gave very similar descriptions of the defendant, with the exception of one did not remember the defendant had a mustache.

Sometime prior to trial, the witnesses who were present during the robbery were shown three separate photo arrays. By the time of trial, photo array number two, as well as the key to it, had been lost by the police officers conducting the investigation. The photos and keys to arrays number one and number three were preserved. Four of the witnesses viewed the intact array number one, John Mason, Kimberly Dowd DeHaven, Robert Cuthbert and Tony Link. Three of these witnesses properly concluded that the defendant was not included in the array. Only witness Cuthbert picked any individual in array number one as a possible perpetrator of that crime, and he clearly felt that the photo he picked was a "possible" only. Melissa Miller and Kimberly Dowd DeHaven viewed photo array number two, the lost array. Neither could identify the defendant from that array. Kimberly Dowd DeHaven, Melissa Miller, and Robert Cuthbert viewed array number three. All three properly identified the defendant in that array.

A further factor complicating the identification issue occurred on May 15, 1989, when two of the state's witnesses, Kimberly Dowd DeHaven and Robert Cuthbert, observed the defendant dressed in orange prison garb, handcuffed and shackled while he was led into magistrate court for preliminary hearing.

Three of the defendant's assignments of error in this case relate to the identification of him as the perpetrator of the crime charged. First, he claims that the failure of the State to produce the photos and "key" photo array number two was prejudicial to his case. Second, he claims that his right to counsel in a line-up-type situation was violated when he was observed by witnesses DeHaven and Cuthbert, being led into magistrate court in orange prison garb. Lastly, he claims that the photographic identification procedure created a likelihood of misidentification and that the facts of the case did not support a finding that there was a sufficiently reliable independent basis for the in-court identification of him to permit its admission during trial.

This Court has recognized that even where an eyewitness to a crime improperly views a defendant or a photo array of a defendant after the commission of a crime, but before trial, the viewing does not automatically require suppression of an in-court identification of the defendant by the eyewitness. The real question is whether the witness had a sufficient basis for identifying the defendant apart from the improper view. The matter was discussed in State v. Casdorph, 159 W.Va. 909, 230 S.E.2d 476 (1976), where this Court said in Syllabus Point 3:

In determining whether an out-of-court identification of a defendant is so tainted as to require suppression of an in-court identification the 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.

See also State v. Franklin, 191 W.Va. 727, 448 S.E.2d 158 (1994), State v. Williams, 181 W.Va. 150, 381 S.E.2d 265 (1989), and State v. Gravely, 171 W.Va. 428, 299 S.E.2d 375 (1982).

With these factors in mind, this Court has examined the circumstances relating to the photo arrays and the identification of the defendant in the present case. As previously indicated, the evidence shows that during the robbery of the Apple Valley Supermarket, all the witnesses who identified the defendant at trial were within a few feet of him for a period of one or more minutes. Although they were somewhat shocked, all gave similar...

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