State v. Thomas, No. 13358

CourtSupreme Court of West Virginia
Writing for the CourtHADEN
Citation157 W.Va. 640,203 S.E.2d 445
PartiesSTATE of West Virginia v. Frankie Lewis THOMAS.
Docket NumberNo. 13358
Decision Date19 March 1974

Page 445

203 S.E.2d 445
157 W.Va. 640
STATE of West Virginia
v.
Frankie Lewis THOMAS.
No. 13358.
Supreme Court of Appeals of West Virginia.
Submitted Feb. 5, 1974.
Decided March 19, 1974.

Page 448

Syllabus by the Court

1. West Virginia Code, Chapter 49, Article 7, Section 3, as amended, which limits the use of evidence of juvenile court adjudications of delinquency against the interest of the delinquent in subsequent civil and criminal proceedings, does not prohibit the introduction of evidence of lawful convictions obtained against an accused in the criminal courts occurring when he was a juvenile.

2. A conviction of an accused upon a jury verdict based on conflicting but competent evidence will not be reversed upon an assignment of error that the evidence adduced did not support the verdict.

3. A municipal police officer has no authority, at common law or by statute, to make a warrantless arrest for a misdemeanor of a person who does not commit such an offense in his presence.

4. A pretext arrest for the misdemeanor of intoxication, with foreknowledge by the officer that the charge could not be sustained against the suspect, is an unlawful arrest because it is not founded on probable cause.

5. 'Except where authorized by law as incident to a lawful arrest, any search of a person or his dwelling on mere suspicion and the seizure of any article found as a result thereof, [157 W.Va. 641] without an arrest warrant or a search warrant, is an unlawful search and seizure in violation of Section 6, Article 3 of the Constitution of West Virginia.' Syllabus Point 1, State v. Smith, W.Va., 193 S.E.2d 550 (1972).

6. Evidence obtained as a result of a search incident to an unlawful arrest cannot be introduced against the accused upon his trial.

7. The so-called 'plain view' exception to the requirements that a search be conducted by valid warrant or upon probable cause may not be relied upon to sustain the admission into evidence of contraband property inadvertently discovered, unless the officer was lawfully searching with probable cause at the time.

8. Although evidence acquired by consent is admissible against the accused in trial, mere submission to colorable authority of police officers is insufficient to validate a 'consent' search or to legitimatize the fruits of the search, and evidence so obtained is incompetent against an accused.

9. A suspect whose acquiescence to search is secured during police custody occurring by reason of an illegal arrest, or similar form of overt or subtle detention, is in no position to refuse to comply with the demands of the officer in whose custody he is, whether such demand is couched in the language of a polite request or direct order, and he cannot be held to have consented to the search voluntarily.

10. An arrest cannot be justified by the fruits of an illegal search nor can a search be justified by what it produces.

11. Subject to exceptions, it is a well-established common-law rule that in a criminal prosecution, proof which shows or tends to show that the accused is guilty of the commission of other crimes and offenses at other times, even though they are of the same nature as the one charged, is incompetent and inadmissible for the purpose of showing the commission of the particular crime charged, unless such other offenses are an element of or are legally connected with the offense for which the accused is on trial.

[157 W.Va. 642] 12. The exceptions permitting evidence of collateral crimes and charges to be admissible against an accused are recognized as follows: the evidence is admissible if it tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more

Page 449

crimes so related to each other that proof of one tends to establish the others; and (5) the identity of the person charged with the commission of the crime on trial.

13. The accused who takes the stand in his own defense shall be deemed to have waived his privilege of not giving evidence against himself only as to such evidence as is relevant to the charge against him.

14. As the control of the scope, latitude and method of introduction of evidence of collateral crimes and charges is vested in the trial court, motions to introduce and motions and objections for exclusion of such evidence are addressed to the sound discretion of the court.

15. In the proper exercise of discretion, the trial court may exclude evidence of collateral crimes and charges if the court finds that its probative value is outweighed by the risk that its admission will create substantial danger of undue prejudice or confuse the issues or mislead the jury or unfairly surprise a party who has not had reasonable ground to anticipate that such evidence would be offered.

16. In the exercise of discretion to admit or exclude evidence of collateral crimes and charges, the overriding considerations for the trial court are to scrupulously protect the accused in his right to a fair trial while adequately preserving the right of the State to prove evidence which is relevant and legally connected with the charge for which the accused is being tried.

17. As a general rule, proceedings of trial courts are presumed to be regular, unless the contrary affirmatively appears upon the record, and errors assigned for the first time in an appellate court will not be regarded in any matter of which the trial court had jurisdiction or which might have been remedied in the trial court if objected to there.

[157 W.Va. 643] 18. Where it appears that previously unassigned prejudicial errors involving fundamental constitutionally protected rights of an accused occurred at trial, these errors void the jurisdiction of the trial court to render a valid judgment and, as such, plainly command the notice of the appellate court.

19. 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.

20. Errors involving deprivation of constitutional rights will be regarded as harmless only if there is no reasonable possibility that the violation contributed to the conviction.

21. Where a counsel's performance, attacked as ineffective, arises from occurrences involving strategy, tactics and arguable courses of action, his conduct will be deemed effectively assistive of his client's interests, unless no reasonably qualified defense attorney would have so acted in the defense of an accused.

22. One who charges on appeal that his trial counsel was ineffective and that such resulted in his conviction, must prove the allegation by a preponderance of the evidence.

23. 'The right of one accused of a crime to the assistance of counsel is a fundamental right, essential to a fair trial; . . ..' Syllabus Point 1, State ex rel. May v. Boles, 149 W.Va. 155, 139 S.E.2d 177 (1964).

24. '(T)he conviction of a defendant in the absence of counsel, or of an affirmative showing of an intelligent waiver thereof, is void.' Syllabus, State ex rel.

Page 450

Pettery v. Boles, 149 W.Va. 379, 141 S.E.2d 80 (1965).

[157 W.Va. 644] 25. A trial court lacks jurisdiction to enter a valid judgment of conviction against an accused who was denied effective assistance of counsel and a judgment so entered is void.

Hudgins, Coulling & Brewster, Harold D. Brewster, Jr., Bluefield, 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.

HADEN, Justice:

On a trial record virtually barren of objection, Frankie Lewis Thomas, an indigent, was convicted of the crime of breaking and entering in a jury trial conducted by the Intermediate Court of Mercer County, West Virginia. He was sentenced to an indeterminate term in the penitentiary for a period of one to ten years, with a further recommendation from the court that he serve a minimum of five years. He appeals from a final order of the Circuit Court of Mercer County, denying his petition for appeal from the intermediate court of that county.

Thomas' recently appointed appellate counsel seeks a new trial for the reasons that the appellant was convicted through the introduction of incompetent evidence of the crime. The alleged incompetence of the questioned evidence occurred by reason of its seizure by the State as a result of an unconstitutional search incident to an unlawful arrest and because the defendant was cross-examined regarding charges and convictions of other crimes irrelevant to the crime charged in the indictment. Defendant was also questioned regarding criminal [157 W.Va. 645] offenses committed by him allegedly occurring while he was a juvenile; this latter evidence being allegedly incompetent by reason of an alleged violation of statute, Code 1931, 49--7--3, as amended. Further, appellate counsel urges that by reason of the introduction of the illegally obtained and incompetent evidence against the defendant, its admission into evidence violated his constitutional rights and its cumulative effect denied him a fair trial, which require that his conviction be voided. In that the evidence assailed, which allegedly resulted in defendant being denied a fair trial, was introduced almost wholly without objection of trial counsel, this Court is also presented with the question of whether defendant received the benefit of effective asistance of counsel as required by the West Virginia and United States Constitutions. As a...

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357 practice notes
  • State v. Clark
    • United States
    • Supreme Court of Connecticut
    • March 2, 1976
    ...930, 936; Ex parte Gallegos, 511 S.W.2d 510, 512-13 (Tex.Crim.App.); In re Cronin, 133 Vt. 234, 336 A.2d 164; State v. Thomas, W.Va., 203 S.E.2d 445, 461; State v. Harper, 57 Wis.2d 543, 552, 205 N.W.2d 11 See, e.g., Beasley v. United States, supra, 696; Ex parte Gallegos, supra, 512-13; In......
  • State v. Allen, No. 25980.
    • United States
    • Supreme Court of West Virginia
    • November 17, 1999
    ...court had jurisdiction or which might have been remedied in the trial court if objected to there." Syl. pt. 17, in part, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974). In other words, "[t]his Court will not consider an error which is not properly preserved in the record nor apparent......
  • State v. Davis, No. 16433
    • United States
    • Supreme Court of West Virginia
    • March 25, 1986
    ...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 Robert S. Baker, Beckley, for appellant. Silas B. Taylor, Deputy Atty. Gen., Charleston, for appellee. McGRAW, Justice: The ap......
  • State v. Pancake, No. 15417
    • United States
    • Supreme Court of West Virginia
    • September 21, 1982
    ...this evidence of collateral crimes and violent behavior was inadmissible because it did not fall within any exception in State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974). Our Thomas rule permits evidence of other crimes to be admitted if it tends to establish (1) motive, (2) intent, (3......
  • Request a trial to view additional results
357 cases
  • State v. Clark
    • United States
    • Supreme Court of Connecticut
    • March 2, 1976
    ...930, 936; Ex parte Gallegos, 511 S.W.2d 510, 512-13 (Tex.Crim.App.); In re Cronin, 133 Vt. 234, 336 A.2d 164; State v. Thomas, W.Va., 203 S.E.2d 445, 461; State v. Harper, 57 Wis.2d 543, 552, 205 N.W.2d 11 See, e.g., Beasley v. United States, supra, 696; Ex parte Gallegos, supra, 512-13; In......
  • State v. Allen, No. 25980.
    • United States
    • Supreme Court of West Virginia
    • November 17, 1999
    ...court had jurisdiction or which might have been remedied in the trial court if objected to there." Syl. pt. 17, in part, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974). In other words, "[t]his Court will not consider an error which is not properly preserved in the record nor apparent......
  • State v. Davis, No. 16433
    • United States
    • Supreme Court of West Virginia
    • March 25, 1986
    ...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 Robert S. Baker, Beckley, for appellant. Silas B. Taylor, Deputy Atty. Gen., Charleston, for appellee. McGRAW, Justice: The ap......
  • State v. Pancake, No. 15417
    • United States
    • Supreme Court of West Virginia
    • September 21, 1982
    ...this evidence of collateral crimes and violent behavior was inadmissible because it did not fall within any exception in State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974). Our Thomas rule permits evidence of other crimes to be admitted if it tends to establish (1) motive, (2) intent, (3......
  • Request a trial to view additional results

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