State v. Vance

• Decision Date: 18 December 1981
• Docket Number: No. 14362,14362
• Parties: STATE of West Virginia v. James D. VANCE.
• Court: West Virginia Supreme Court

Page 437

285 S.E.2d 437

168 W.Va. 666

STATE of West Virginia v. James D. VANCE.

No. 14362.

Supreme Court of Appeals of West Virginia.

Dec. 18, 1981.

Syllabus by the Court

1. "A trial court's decision regarding the voluntariness of a confession will not be disturbed unless it is plainly wrong or clearly against the weight of the evidence." Syllabus Point 3, State v. Vance, W.Va., 250 S.E.2d 146 (1978).

2. "Where a person who has been accused of committing a crime makes a voluntary statement that is inadmissible as evidence in the State's case in chief because the statement was made after the accused had requested a lawyer, the statement may be admissible solely for impeachment purposes when the accused takes the stand at his trial and offers testimony contradicting the prior voluntary statement knowing that such prior voluntary statement is inadmissible as evidence in the State's case in chief." Syllabus Point 4, State v. Goodmon, W.Va., --- S.E.2d --- (No. 14989 Dec. 18, 1981).

3. "A motion for a continuance based on the absence of a material witness is addressed to the sound discretion of the trial court, and its ruling on such motion will not be disturbed unless it is clearly wrong and it appears that such discretion has been abused." Syllabus Point 1, State v. Chafin, 156 W.Va. 264, 192 S.E.2d 728 (1972).

4. "The giving of a confusing or incomplete instruction does not constitute reversible error when a reading and consideration of the instructions as a whole cure any defects in the complained of instructions." Syllabus Point 4, State v. Stone, W.Va., 268 S.E.2d 50 (1980).

5. Before a lesser offense can be said to contribute a necessary part of a greater offense, all the legal ingredients of the corpus delicti of the lesser offense must be included in the elements of the greater offense. If an element necessary to establish the corpus delicti of the lesser offense is irrelevant to the proof of the greater offense, the lesser cannot be held to be a necessarily included offense.

6. "A warrantless seizure of property in plain view is constitutionally permissible provided three requirements are met: (1) the police must observe the evidence in plain sight without benefit of a search [without invading one's reasonable expectation of privacy], (2) the police must have a legal right to be where they are when they make the plain sight observation and, (3) the police must have probable cause to believe that the evidence seen constitutes contraband or fruits, instrumentalities or evidence of crime." Syllabus Point 7, State v. Moore, W.Va., 272 S.E.2d 804 (1980).

E. Dennis White, Jr., Bernard T. Nibert, II, White, Wolpert & Nibert, Huntington, for plaintiff in error.

Chauncey H. Browning, Atty. Gen., Silas B. Taylor, Asst. Atty. Gen., Charleston, for defendant in error.

McGRAW, Justice:

James D. Vance appeals his robbery conviction in the Circuit Court of Putnam County. He alleges four principal errors: (1) the circuit court erred by permitting the State to impeach the appellant's testimony with inculpatory statements made to police officers without a valid waiver of his right to counsel; (2) the circuit court erred by failing to grant the appellant's motion for a continuance; (3) the circuit court erred in giving certain of the State's instructions and refusing to give certain instructions submitted by the appellant; and (4) the circuit court erred in refusing to exclude from evidence certain items taken after an allegedly illegal search. ¹ A majority of this Court finds no merit in these contentions, and therefore affirms the appellant's conviction.

The factual background of this case is relatively uncomplicated and may be briefly related. In the early morning hours of March 30, 1977, Mrs. Louise M. Witt was severely beaten and robbed at her home by a young man driving a gold-colored Pinto automobile. Various items were stolen, including rings, watches, cash, and a set of Craeger mag wheels belonging to her son. Both Mrs. Witt and a passerby were able to describe the assailant's automobile to the police. Later that day, after learning that the appellant owned such an automobile, officials went to the Vance home to question him about the robbery. In the driveway they discovered a gold Pinto automobile matching the description given by Mrs. Witt and the other witness. Lying next to the car was a Craeger mag wheel. Inside the car, the officers noticed three other mag wheels. The appellant's younger brother permitted the officers to enter the house, where they found the appellant asleep on the couch. The officers woke the appellant and requested that he answer certain questions. After answering the officers' questions, the appellant was searched. Various items were discovered on his person which later were identified as the property of Mrs. Witt. The appellant was then arrested and subsequently taken before a Putnam County magistrate, where he signed an indigent form and checked the box indicating that he desired the appointment of counsel. Before Vance was taken to the magistrate's office, the officers confiscated the mag wheels and other items as evidence. After Vance's appearance before the magistrate, he was taken to jail in lieu of bond.

At the jail one of the arresting officers questioned the appellant concerning the alleged offense. In response to the officer's questions the appellant made a brief inculpatory statement. ² The next morning, at an interrogation session the State claim was initiated by the appellant, a more detailed confession was taken. ³ Both statements were transcribed on a printed form which indicated that they were voluntary and that the appellant had been advised of his rights prior to interrogation.

Because both statements were taken after the appellant had requested counsel, but before counsel had been appointed, the trial court prohibited their use in the State's case in chief. However, when the appellant took the stand to testify in his own behalf the State attempted to use the second statement during cross-examination to impeach his testimony. At an in camera hearing held to determine the permissibility of using the statement for this purpose, the appellant admitted that he signed the statement, but asserted that the text of the statement was supplied by the interrogating officer, and that he signed the statement only after he was informed that it was necessary to make a statement before he could obtain bail. The police officers present when the statement was taken denied these allegations of improper conduct. At the conclusion of the in camera hearing the trial court found the statement to be voluntary and therefore, in accordance with the United States Supreme Court decisions in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), and Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975), permitted the State to use it to impeach the appellant's testimony. The appellant contends that the statement was involuntary and coerced and that it was error to permit the State to impeach him with it.

I.

The trial court correctly ruled that the inculpatory statements were inadmissible in the State's case in chief. When law enforcement personnel interrogate an accused after he has indicated a desire to be represented by counsel, and a confession is elicited as a result of the interrogation, the confession is inadmissible absent a valid waiver of the right to counsel. See State v. Bradley, W.Va., 255 S.E.2d 356 (1979); State v. McNeal, W.Va., 251 S.E.2d 484 (1978). However, the United States Supreme Court has held that a statement taken without a valid waiver of an accused's right to counsel may nevertheless be used to impeach the credibility of an accused's testimony at trial if the statement is found to be voluntary. Oregon v. Hass, supra; Harris v. New York, supra.

In Harris v. New York, supra, the defendant was charged with two counts of selling narcotics to an undercover police officer. At trial the defendant took the stand in his own defense and denied the charges. On cross-examination the prosecution used a statement allegedly made by the defendant immediately after his arrest to impeach his testimony. The trial court instructed the jury that the statement could be used only on the issue of credibility and not as evidence of guilt. The jury returned a verdict of guilty.

The prosecution did not use the statements in its case in chief, conceding that they were inadmissible under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), because the defendant was not advised of his right to counsel. On appeal the United States Supreme Court held that statements inadmissible against a defendant in the prosecution's case in chief because of the lack of procedural safeguards required by Miranda, may, if their trustworthiness satisfies legal standards, be used for impeachment purposes to attack the credibility of a defendant's testimony, and affirmed the conviction.

In Oregon v. Hass, supra, a burglary suspect was given full Miranda warnings, which he accepted. The police then questioned him about the burglary and the suspect gave them inculpatory information. He was then taken in a police car to locate some of the stolen goods. On the way the suspect told the police that he would like to telephone his lawyer. The police told him he could do so when they reached the police station. Thereafter the suspect gave further inculpatory information to the police. At trial Hass took the stand and denied his guilt. In rebuttal the prosecution called the police officer who had questioned Hass. During his testimony the inculpatory statements made by Hass after his request for counsel were elicited. The trial court gave a cautionary instruction regarding this testimony. The jury returned a verdict of guilty.

The Oregon Court of Appeals, relying upon a previous Oregon decision, reversed on the ground that Hass' statements were improperly...