State v. Walls

• Decision Date: 15 July 1982
• Docket Number: No. 14868,14868
• Citation: 170 W.Va. 419,294 S.E.2d 272
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Charles WALLS.

Page 272

294 S.E.2d 272

170 W.Va. 419

STATE of West Virginia v. Charles WALLS.

No. 14868.

Supreme Court of Appeals of West Virginia.

July 15, 1982.

Syllabus by the Court

1. In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the United States Supreme Court held it constitutionally permissible under certain conditions to attack a search warrant affidavit. If such attack is successful, this will result in voiding the search warrant and rendering the property seized under such warrant inadmissible.

2. The proper procedure where a mandatory preliminary hearing has not been held by the trial court in regard to evidentiary matters whose admissibility are ordinarily challenged on constitutional grounds is to remand the case for conducting such a hearing. Depending on the trial court's ruling at such hearing, the conviction is either affirmed or reversed.

3. "A valid search warrant may issue upon an averment that an unnamed informant was an eyewitness to criminal activities conducted on the premises described in the warrant." Syllabus Point 1, State v. White, 167 W.Va. 374, 280 S.E.2d 114 (1981).

4. "A common law privilege is accorded the government against the disclosure of the identity of an informant who has furnished information concerning violations of law to officers charged with the enforcement of the law. However, disclosure may be required where the defendant's case could be jeopardized by nondisclosure." Syllabus Point 1, State v. Haverty, 165 W.Va. 164, 267 S.E.2d 727 (1980).

5. The general rule is that where the informant has only peripheral knowledge of the crime, his identity need not be disclosed. Where the informant directly participates in the crime, or is a material witness to it, disclosure may be required, particularly where, in a drug related crime, he is the only witness to the transaction other than the defendant and the buyer.

6. "The question of whether a person possesses a controlled substance with intent to manufacture or deliver is a jury question to be determined like other questions of intent from all the surrounding facts and circumstances, and as such intent is a basic element of the offense, it must be proven beyond a reasonable doubt." Syllabus Point 3, State v. Frisby, 161 W.Va. 734, 245 S.E.2d 622 (1978).

7. "Most courts have held that possession with intent to deliver a controlled substance can be proven by establishing a number of circumstances among which are the quantity of the controlled substance possessed and the presence of other paraphernalia customarily used in the packaging and delivery of controlled substances." Syllabus Point 4, State v. Drake, 170 W.Va. 167, 291 S.E.2d 484 (1982).

8. "When instructions are read as a whole and adequately advise the jury of all necessary elements for their consideration, the fact that a single instruction is incomplete or lacks a particular element will not constitute grounds for disturbing a jury verdict." Syllabus Point 6, State v. Milam, 159 W.Va. 691, 226 S.E.2d 433 (1976).

Eiland & Bennett and John W. Bennett, Logan, for appellant.

Chauncey H. Browning, Atty. Gen. and S. Clark Woodroe, Asst. Atty. Gen., Charleston, for appellee.

MILLER, Chief Justice:

The defendant, Charles "Bubby" Walls, appeals his conviction of possession of cocaine with intent to deliver in violation of W.Va.Code, 60A-4-401 [1971]. We reverse and remand with instructions.

The defendant was arrested on December 21, 1978, following a search of his residence in which police found a kitchen matchbox containing 48 cocaine packets. The search was conducted under a warrant issued on that date by Magistrate Philip Sos. Earlier that day Deputy Anthony Cristiani had presented Magistrate Sos with an affidavit and complaint averring that the defendant was in possession of "marijuana and cocaine" at the described premises. The affidavit recited that "a previously reliable informant on December 21, 1978, said that Bubby Walls offered for sale an amount of Cocaine and Marijuana and that he personally saw the controlled substances in the home of Bubby Walls." This language was quoted in the search warrant issued by Magistrate Sos as the probable ground for issuing the warrant.

On January 26, 1979, the defendant moved to suppress the evidence seized as a result of the search warrant. Deputy Cristiani and Magistrate Sos testified at that hearing about the circumstances under which the affidavit was signed and the search warrant was issued. Magistrate Sos testified that Deputy Cristiani came to the Logan County Courthouse with a prepared affidavit and search warrant with spaces left for the necessary signatures. The magistrate put Cristiani under oath, then asked him about the informant and the basis of his information. The officer replied that the informant had visited the defendant's residence that day and had seen packets of marijuana and cocaine which the defendant had offered for sale. The magistrate asked the deputy about the informant's reliability, and the deputy indicated that the informant had previously provided useful information in two prior cases. The magistrate testified that he then issued the warrant. Deputy Cristiani's testimony at the suppression hearing was consistent with the testimony given by Magistrate Sos.

Prior to trial, the defense counsel requested the name of the State's informant. The trial court denied this motion. After the jury was sworn in, however, the State revealed the informant's identity. The defense counsel then subpoenaed the informant, a Mr. Ellis, as a part of the defense case. When placed on the witness stand, Ellis denied that he had provided any of the information contained in the affidavit to Deputy Cristiani. He stated that he had never been to the defendant's residence. Defense counsel then moved the court that it reconsider the suppression issue and hold a further suppression hearing. The trial court denied this motion and proceeded with the trial.

The thrust of defendant's argument is that the informant's testimony was shown at the initial suppression hearing to be the only basis for the officer's probable cause affidavit on which the search warrant was issued. Thus, when the informant testified at the trial that he was never in the defendant's residence and he had not given any of the information contained in the warrant affidavit to Deputy Cristiani, who was the affiant in the affidavit, this totally undermined the validity of the warrant.

We are cited Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), where the United States Supreme Court held it constitutionally permissible under certain conditions to attack a search warrant affidavit. If such attack is successful, this will result in voiding the search warrant and rendering the property seized under such warrant inadmissible.

Franks constructs a rather comprehensive test that must be met in order to attack the validity of the warrant affidavit. It requires the person challenging the affidavit to make "allegations of deliberate falsehood or of reckless disregard for the truth" and to accompany them "by an offer of proof." Moreover, specific areas of falsity must be pointed out in the affidavit and this "should be accompanied by a statement of supporting reasons." Finally, the challenger is required to support his allegations by affidavits or "reliable statements of witnesses ... or their absence satisfactorily explained." 438 U.S. at 171, 98 S.Ct. at 2684, 57 L.Ed.2d at 682. ¹

Procedurally, the attack in Franks was made prior to trial at a suppression hearing. This ordinarily would be the appropriate time to raise this issue, however, where as here, defense counsel by reasonable diligence could not obtain the critical facts because of the nondisclosure of the informant's name until the day of trial, we do not believe that a Franks ' inquiry is foreclosed. This point has received little formal attention in reported cases. Cf. United States v. Luschen, 614 F.2d 1164 (8th Cir. 1980), cert. denied, 446 U.S. 939, 64 L.Ed.2d 793, 100 S.Ct. 2161.

As noted above, Franks requires defense counsel to make an initial showing to the court by affidavit or otherwise of deliberate falsity in the warrant affidavit and where such showing has not been made no further inquiry is needed. In the present case, we believe such showing had been made when defense counsel subpoenaed and had the informant testify that he did not give the information contained in the warrant affidavit to the deputy and that he had not been in the defendant's residence. It was previously developed at the initial suppression hearing that there was only one informant involved. This evidence directly impeached the entire affidavit and, if true, would bring the conclusion that the affidavit was a deliberate falsity. E.g., Juarez v. State, 586 S.W.2d 513 (Tex.Cr.App.1979); Ramsey v. State, 579 S.W.2d 920 (Tex.Cr.App.1979).

Having made such initial showing, we believe it was incumbent on the trial court to permit a further inquiry, and its failure to do so constitutes error. We believe that trial counsel sufficiently preserved this error when he informed the trial court that the informant's testimony completely contradicted the warrant affidavit. This was also assigned on the motion for directed verdict relating to suppressing the seized evidence.

However, we do not automatically reverse the conviction in this case as we find no other trial error. We utilize the procedure as we have done in prior cases. The proper procedure where a mandatory preliminary hearing has not been held by the trial court in regard to evidentiary matters whose admissibility is ordinarily challenged on constitutional grounds is to remand the case for conducting such a hearing. Depending on the trial court's ruling at such hearing, the conviction is either affirmed or reversed. E.g., State v. Harris, 169 W.Va. 150, 286 S.E.2d 251 (1982); State ex rel. White v. Mohn, 168 W.Va....