State v. Watson

• Decision Date: 04 April 1980
• Docket Number: No. 14073,14073
• Citation: 164 W.Va. 642,264 S.E.2d 628
• Parties: STATE of West Virginia v. Roger WATSON.
• Court: West Virginia Supreme Court

Page 628

264 S.E.2d 628

164 W.Va. 642

STATE of West Virginia v. Roger WATSON.

No. 14073.

Supreme Court of Appeals of West Virginia.

April 4, 1980.

Syllabus by the Court

1. "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).

2. Where the defendant raises the issue of suggestive identification procedures, the trial court should apply the identification test set out in State v. Williams, W.Va., 249 S.E.2d 752 (1978). If the trial court finds the test results to be inconclusive such that there is a distinct possibility of misidentification, it may direct that the defendant be accorded a lineup to determine if the State's witness can identify him.

3. "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." Syllabus Point 21, State v. Thomas, W.Va., 203 S.E.2d 445 (1974).

David M. Finnerin, Parkersburg, for P. E Chauncey H. Browning, Jr., Atty. Gen., Joseph C. Cometti, Asst. Atty. Gen., Charleston, W. Va., for D. E.

MILLER, Justice:

Roger Eugene Watson was convicted of unlawful assault under W.Va. Code, 61-2-9. His appeal raises issues of (1) the right of a defendant to require a pretrial identification lineup; (2) ineffective assistance of counsel for failure to raise an available defense; and (3) a number of claims of evidentiary error. We affirm the conviction.

The incident giving rise to the charges against the defendant occurred on July 3, 1976, at the Diamond Supper Club in Parkersburg, Wood County. The defendant testified that upon discovering that his 17-year-old sister was employed at the supper club as a bartender, he became involved in a fight with a patron, a Mr. Pitts. The defendant admits that he struck Mr. Pitts first. Another patron, a Mr. Parker, attempted to intervene, and was knocked to the floor by the defendant. Mr. Henthorn, the victim of the assault, then approached and became involved in the affray.

According to the defendant, the victim either grabbed him or approached him with his fist drawn as if to strike. The defendant then struck the victim with his fist and knocked him to the floor. The defendant states that the victim struck his head on a pool table while falling, thus sustaining a severe head injury. The defendant testified that he then picked up a pool stick that had been knocked to the floor and replaced it on a shelf.

The victim's testimony differs, as he claims he entered the area unaware that an altercation was taking place and was accosted by the defendant without warning. He stated that he was struck by the defendant with his fist and then severely injured by the defendant as a result of a blow with a pool stick.

The State presented four witnesses to the incident. Although the testimony of several of the witnesses was vague as a result of poor memory or of limited opportunity to observe, none of the witnesses contradicted the version of events as related by the victim. One of the witnesses, the defendant's sister, substantially confirmed the victim's testimony.

The jury was instructed on four possible verdicts: malicious assault, unlawful assault, assault and battery, and not guilty. Upon the return of a verdict of unlawful assault, the defendant was sentenced to a prison term of one to five years.

I

Prior to trial, the defendant moved to compel the State to test its witnesses' ability to identify the defendant by means of a pretrial identification lineup. The defendant's first ground for appeal is based upon the trial court's denial of the motion.

Pretrial lineups have received considerable attention by the courts in the context of the fairness of the procedures employed when the State chooses to conduct a lineup on its own initiative. ¹ The defendant here raises the issue of whether under any circumstances a defendant may compel the State to conduct a lineup before its witnesses can make an in-court identification of him.

The United States Supreme Court appears to have taken a neutral position without directly deciding the issue. In discussing the need for counsel at any pretrial corporeal identification conducted after the initiation of adversary proceedings, the Court in Moore v. Illinois, 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977), stated:

"(C)ounsel could have requested that the hearing be postponed until a lineup could be arranged at which the victim would view petitioner in a less suggestive setting. See, e. g., United States v. Ravich, 421 F.2d 1196, 1202-1203 (CA2), cert. denied, 400 U.S. 834, 91 S.Ct. 69, 27 L.Ed.2d 66 (1970); Mason v. United States, 134 U.S.App.D.C. 280, 283 n. 19, 414 F.2d 1176, 1179 n. 19 (1969). . . . Such requests ordinarily are addressed to the sound discretion of the court, see United States v. Ravich, supra, at 1203; we express no opinion as to whether the preliminary hearing court would have been required to grant any such requests." (434 U.S. at 230-31 n. 5, 98 S.Ct. at 465-66 n. 5, 54 L.Ed.2d at 435 n. 5).

The California Supreme Court explored the issue in depth in Evans v. Superior Court, 11 Cal.3d 617, 522 P.2d 681, 114 Cal.Rptr. 121 (1974), and noted that as a matter of criminal discovery, the state is empowered to compel a lineup to be conducted and to utilize the evidence it produces. The California Court further noted that, as a general matter, criminal discovery is required to be a "two-way street," Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973). Thus, the court concluded that:

"Because the People are in a position to compel a lineup and utilize what favorable evidence is derived therefrom, fairness requires that the accused be given a reciprocal right to discover and utilize contrary evidence. . . ." (11 Cal.3d at 623, 522 P.2d at 685, 114 Cal.Rptr. at 125).

The court declined, however, to extend the defendant's right to compel an identification lineup to all circumstances as a matter of right, independent of any showing of appropriateness or need. The court afforded the right to a lineup "only when eyewitness identification is shown to be in material issue and there exists a reasonable likelihood of a mistaken identification which a lineup would tend to resolve." [11 Cal.3d at 625, 522 P.2d at 686, 114 Cal.Rptr. at 126]. The court further stated:

"The questions whether eyewitness identification is a material issue and whether fundamental fairness requires a lineup in a particular case are inquiries which necessarily rest for determination within the broad discretion of the magistrate or trial judge. (See United States v. MacDonald (9th Cir. 1971) 441 F.2d 259, cert. den. 404 U.S. 840, 92 S.Ct. 133, 30 L.Ed.2d 74; United States v. Ravich (2d Cir. 1970) 421 F.2d 1196, 1202-1203). We do not hold, accordingly, that in every case where there has not been a pretrial lineup the accused may, on demand, compel the People to arrange for one. Rather, as in all due process determinations, the resolution here to be made is one which must be arrived at after consideration not only of the benefits to be derived by the accused and the reasonableness of his request but also after considering the burden to be imposed on the prosecution, the police, the court and the witnesses." (11 Cal.3d at 625, 522 P.2d at 686, 114 Cal.Rptr. at 126).

The federal and state courts which have ruled upon the issue appear to be in general agreement with the Evans' standard that the granting of a defendant's motion for a pretrial identification lineup lies within the discretion of the trial judge. United States v. Estremera, 531 F.2d 1103 (2d Cir. 1976), cert. denied, 425 U.S. 979, 96 S.Ct. 2184, 48 L.Ed.2d 804; United States v. King, 461 F.2d 152 (D.C.Cir.1972); United States v. Williams, 436 F.2d 1166 (9th Cir. 1970), cert. denied, 402 U.S. 912, 91 S.Ct. 1392, 28 L.Ed.2d 654 (1971); United States v. Ravich, 421 F.2d 1196 (2d Cir. 1970), cert. denied, 400 U.S. 834, 91 S.Ct. 69, 27 L.Ed.2d 66; State v. Ferguson, 120 Ariz. 345, 586 P.2d 190 (1978); Berryman v. United States, 378 A.2d 1317 (D.C.App.1977); State v. Porter, 223 Kan. 114, 574 P.2d 187 (1977); State v. Boettcher, 338 So.2d 1356 (La.1976).

In United States v. Ravich, 421 F.2d 1196 (2d Cir. 1970), cert. denied, 400 U.S. 834, 91 S.Ct. 69, 27 L.Ed.2d 66, the following guidelines for granting a pretrial identification lineup at the request of the defendant were suggested: (1) the length of time between the crime or arrest and the request; (2) the possibility that the defendant may have altered his appearance; (3) the extent of inconvenience to prosecution witnesses; (4) the possibility that revealing the identity of the prosecution witnesses would subject them to intimidation; (5) the propriety of other identification procedures used by the prosecution; and (6) the degree of doubt concerning the identification.

Although the courts which have discussed these standards have not drawn the connection to the standards for admissibility of identification testimony following suggestive procedures, it is clear that the two are closely related. In State v. Pratt, W.Va., 244 S.E.2d 227 (1978), we recognized, as have other courts, that where the defendant claims that an identification witness has based his identification on pretrial identification procedures that are allegedly constitutionally infirm the defendant is entitled to an in camera hearing to challenge identification.

In determining whether pretrial identification was impermissively suggestive, we have adopted the criteria set out in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401...