State v. Vance

Decision Date22 January 1980
Docket NumberNo. 14119,14119
Citation164 W.Va. 216,262 S.E.2d 423
PartiesSTATE of West Virginia v. Roland VANCE.
CourtWest Virginia Supreme Court

Syllabus by the Court

1. A criminal conviction can be obtained on the uncorroborated testimony of an accomplice.

2. Where the accomplice's testimony is uncorroborated, a criminal defendant is entitled to a jury instruction that such testimony should be received with great caution.

3. Where the testimony of an accomplice is corroborated in material facts which tend to connect the accused with the crime, sufficient to warrant the jury in crediting the truth of the accomplice's testimony, it is not error to refuse a cautionary instruction. This rule applies even though the corroborative evidence falls short of constituting independent evidence which supports the alleged ultimate fact that the accused committed the offense charged.

4. Where the issue of identity is contested in an habitual criminal proceeding, the State must prove identity beyond a reasonable doubt.

5. A defendant in an habitual criminal proceeding is entitled to the same right not to be subjected to unduly suggestive identification procedures as in a criminal trial.

6. "A defendant must be allowed an In camera hearing on the admissibility of a pending in-court identification when he challenges it because the witness was a party to pre-trial identification procedures that were allegedly constitutionally infirm." Syllabus Point 6, State v. Pratt, W.Va., 244 S.E.2d 227 (1978). 7. A criminal sentence may be so long as to violate the proportionality principle implicit in the cruel and unusual punishment clause of the Eighth Amendment to the United States Constitution.

8. Article III, Section 5 of the West Virginia Constitution, which contains the cruel and unusual punishment counterpart to the Eighth Amendment of the United States Constitution, has an express statement of the proportionality principle: "Penalties shall be proportioned to the character and degree of the offence."

Edward I. Eiland, Logan, for plaintiff-in-error.

Chauncey H. Browning, Jr., Atty. Gen., Charleston, Thomas N. Trent, Asst. Atty. Gen., St. Albans, for defendant-in-error.

MILLER, Justice:

Roland Vance appeals his conviction for breaking and entering and the subsequent life sentence imposed under the Habitual Criminal Act, W.Va.Code, 61-11-18. His three primary grounds of error are that: (1) the conviction was based on the testimony of accomplices and he was denied the conventional cautionary instruction as to their testimony; (2) his identity was improperly proved at the recidivist trial; and (3) under the circumstances of this case, the life sentence constitutes cruel and unusual punishment.

Defendant's conviction of breaking and entering rested primarily on the testimony of James and Donald Marcum, who were jointly indicted with Vance for that crime. The Marcums had pleaded guilty to the charge. They and their wives testified that they were all together with Vance on the night in question at the home of James Marcum. Both the Marcums and Rose Marie Marcum, Donald Marcum's wife, testified that Vance proposed the breaking and entering of the Baisden Brothers store at that time.

James and Donald Marcum testified that in the early morning hours of February 20, 1975, they and Vance committed a breaking and entering at the store, located in Logan, Logan County. Their testimony was that while Donald Marcum waited in the car, James Marcum and Vance broke into the store by prying the locks off a door and stole sixteen guns and a number of shells.

The Marcums also testified that after the breaking and entering had been accomplished, they placed the guns in the back seat of the car and drove to the Lucky Star Club, where Vance said he would try to sell the guns. They stated that Vance went into the club while they remained in the car with the guns. When Vance returned to the car, he indicated that he was not able to dispose of the guns, and they then drove to the home of Enos and Abner Vance, who were Vance's half-brothers. Before arriving at the house, they stopped at a building and hid the guns in it.

It was also the Marcums' testimony that they, along with Vance, slept in the home of Enos and Abner Vance, and later in the morning brought the guns to the house and left them on the porch. Afterwards, they collected the guns, placed them in the car, and left with Vance. Donald Marcum stated that three of the guns were left on the porch and that Vance let him and James Marcum out of the car at an intersection on the road leading to the Lucky Star.

Enos and Abner Vance testified that Roland Vance and the Marcums came to their home about 5:30 a. m. on February 20, 1975, and slept until late in the morning. The Marcums then left briefly, returned with a number of guns, some of which had price tags on them, and deposited the guns on the porch. In the afternoon, Vance and the Marcums left, taking all of the guns except three. Neal Scaggs, President of Baisden Brothers, identified these three guns as among those missing from the store.

Trooper R. G. Wilfong testified that following the arrest of the Marcums, he and two other troopers took them to the home of Enos and Abner Vance, where the troopers found the three guns. Trooper Wilfong stated that no other guns were thereafter found. Wallace Baisden 1 testified that about three days after the breaking and entering, Roland Vance offered to sell him two guns. Having heard of the breaking and entering, Baisden contacted the State Police, and Vance was arrested. Vance based his defense on alibi, asserting that on the night of the breaking and entering, he was with a Jinks Adkins and was not in the vicinity of the store.

At the close of the evidentiary phase of the trial, defense counsel requested that the court give the jury three cautionary instructions with respect to the testimony of the Marcums. The court, holding as a matter of law that their testimony had been corroborated, refused.

I

While a number of jurisdictions hold that a criminal conviction cannot rest solely on the uncorroborated testimony of an accomplice, 2 this Court, along with a number of others, has taken the opposite view that a criminal conviction can be obtained on the uncorroborated testimony of an accomplice. E. g., State v. Messinger, W.Va., 256 S.E.2d 587 (1979); State v. Adkins, W.Va., 253 S.E.2d 146 (1979); State v. Bolling, W.Va., 246 S.E.2d 631 (1978); State v. Spadafore, W.Va., 220 S.E.2d 655 (1975); State v. Humphreys, 128 W.Va. 370, 36 S.E.2d 469 (1945). 3 We have recognized, however, as a corollary to this rule, that where the accomplice's testimony is uncorroborated, a criminal defendant is entitled to a jury instruction that such testimony should be received with great caution. E. g., State v. Spadafore, supra; State v. Humphreys, supra.

The reasoning behind both of these approaches is that in implicating the defendant, the accomplice may well have an ulterior motive revenge or the promise or hope of leniency in his case, whether by way of lighter sentence, probation, early parole or outright release. In Phelps v. United States, 252 F.2d 49, 52 (5th Cir. 1958), the problem with accomplice testimony was summarized in the following terms:

"(A) long history of human frailty and governmental overreaching for conviction justifies distrust in accomplice testimony. Cobham's misplaced hope for immunity that helped send Raleigh to the Tower is on the same level with the hope of some narcotic peddler or some other poor wretch to save His Skin by laying the entire blame on a friend or close associate. . . ."

See generally 7 J. Wigmore, Evidence § 2057 (Chadborn rev. 1978), at 417.

The issue in this case is the degree of corroboration necessary to warrant the refusal of a defendant's cautionary instruction relative to the accomplice testimony. This is a question that has received little analysis in our cases. In State v. Adkins, W.Va., 253 S.E.2d 146, 149 (1979), we quoted a rather broad rule from a Virginia case:

" 'The corroborative evidence, standing alone, need not be sufficient either to support a conviction or to establish all the essential elements of an offense. If those were the requirements, and the Commonwealth had at hand independent evidence sufficient to satisfy them, then the need to use accomplice testimony would not arise.' Allard v. Commonwealth, 218 Va. 988, 243 S.E.2d 216, at 217 (1978), quoting Dillard v. Commonwealth, 216 Va. 820 at 823, 224 S.E.2d 137 at 140 (1976)." (253 S.E.2d at 149).

In State v. Messinger, supra, a per curiam opinion with no factual elaboration on this point, this Court stated that a cautionary instruction should have been given, as "portions of the testimony of accomplice Williamson were uncorroborated." (256 S.E.2d at 590). Neither State v. Spadafore, supra, nor State v. Bolling, supra, cited by Messinger, contained any discussion as to the degree of corroboration required. The same is true of State v. Humphreys, supra.

Prior to State v. Humphreys, we find no West Virginia case that attempts to formulate a test to determine when there is sufficient corroboration to obviate giving a cautionary instruction. 4 The reason for this may be that it was not until Humphreys that this Court made it clear that a proffered cautionary instruction had to be given where the accomplice testimony was uncorroborated.

In State v. Adkins, supra, we followed our custom of examining Virginia law where our own law is not developed in a given area, and relied on Dillard v. Commonwealth, 216 Va. 820, 224 S.E.2d 137 (1976), and Allard v. Commonwealth, 218 Va. 988, 243 S.E.2d 216 (1978). Both of these cases recite the rule quoted by Adkins, but also make a further refinement of the accomplice corroboration rule by requiring that the corroborative evidence relate to material facts linking the accused with the crime:

"Where, therefore, the testimony of an accomplice is...

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