State v. Whitt

• Decision Date: 14 December 1990
• Docket Number: No. 19544,19544
• Citation: 400 S.E.2d 584,184 W.Va. 340
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. John Allen WHITT.

Page 584

400 S.E.2d 584

184 W.Va. 340

STATE of West Virginia v. John Allen WHITT.

No. 19544.

Supreme Court of Appeals of

West Virginia.

Dec. 14, 1990.

Syllabus by the Court

1. 18 U.S.C. § 2515 prohibits the admission of evidence derived from intercepted wire or oral communications.

2. The prohibition in 18 U.S.C. § 2515 is subject to the exceptions contained in 18 U.S.C. § 2511(2)(c), which permit a person acting under color of law to intercept a wire or oral communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception.

3. The State has the burden of showing that one of the exceptions in 18 U.S.C. § 2511(2)(c) exists. Where the State claims that one of the parties consented to a telephone call interception, its burden initially can be met by showing that the party placed the telephone call knowing it would be monitored. If there is an allegation that the consent was coerced, the State then must show that there were no undue pressure, threats, or improper inducements.

4. " 'The delay in taking a defendant to a magistrate may be a critical factor [in the totality of circumstances making a confession involuntary and hence inadmissible] where it appears that the primary purpose of the delay was to obtain a confession from the defendant.' Syllabus Point 6, State v. Persinger, , 286 S.E.2d 261 (1982), as amended." Syllabus Point 1, State v. Guthrie, 173 W.Va. 290, 315 S.E.2d 397 (1984).

5. "The delay between the time of the arrest or custodial interrogation and the giving of a confession is most critical for prompt presentment purposes because during this time period custodial confinement and interrogation can be used to attempt to produce a confession." Syllabus Point 4, State v. Wickline, 184 W.Va. 12, 399 S.E.2d 42 (1990).

6. Rule 602 of the West Virginia Rules of Evidence does not require that the witness's knowledge be positive or rise to the level of absolute certainty. Evidence is inadmissible under this rule only if in the proper exercise of the trial court's discretion it finds that the witness could not have actually perceived or observed that which he testifies to.

7. "Where the record on appeal is inadequate to resolve the merits of a claim of ineffective assistance of counsel, we will decline to reach the claim so as to permit the defendant to develop an adequate record in habeas corpus." Syllabus Point 11, State v. England, 180 W.Va. 342, 376 S.E.2d 548 (1988).

John Leo Bridi, Bridi & Bridi, Beckley, for John Allen Whitt.

Roger W. Tompkins, Atty. Gen., Richard M. Riffe, Sr. Asst. Atty. Gen., Atty. General's Office, Charleston, for State of W.Va.

MILLER, Justice:

In 1984, the defendant was convicted by a jury in the Circuit Court of Raleigh County of breaking and entering. ¹ He received a one-to-ten year sentence for the breaking and entering conviction, which was enhanced five years because of a prior felony conviction. See W.Va.Code, 61-11-18 (1943). The defendant's chief assignments of error are the trial court's failure to suppress evidence secured from a boarding house where the defendant lived and the failure to promptly present him before a magistrate. A claim is also made that a State's witness lacked personal knowledge and should not have been permitted to testify. Further assignment is made as to ineffective assistance of counsel at trial.

I. The Search Warrant

In the early morning hours of March 2, 1984, the police responded to a burglar alarm at the Hecks Department Store in Beckley. Inside the store, the investigating officer, accompanied by an assistant store manager, observed that intruders had entered the store through a vent in the roof. Further investigation revealed that a gun case had been broken into and that a few guns, as well as other items, had been stolen. The police officer asked the assistant store manager to prepare a written inventory of the missing items.

On March 9, 1984, the police received information from one of the defendant's coworkers, Terrance Allison, that the defendant had offered to sell him several rifles that were similar to those stolen from Hecks. Moreover, Mr. Allison stated that he had seen the stolen property hidden in the defendant's bedroom and in a storage area above a bathroom in the defendant's boarding house residence. After further questioning, Mr. Allison agreed to telephone the defendant and inquire about the stolen merchandise while the conversation was being tape recorded. During this conversation, the defendant told Mr. Allison that he would sell him the guns after he had filed the serial numbers off them. Based on this information, the police secured a search warrant.

On appeal, the defendant argues that Mr. Allison was coerced into making the telephone call; thus, the evidence seized from the boarding house should have been suppressed because it was obtained in violation of 18 U.S.C. § 2515 ² of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510, et seq. This statute prohibits the admission of evidence derived from intercepted wire or oral communications. ³ The prohibition in 18 U.S.C. § 2515 is subject, however, to the consent exceptions contained in 18 U.S.C. § 2511(2)(c), ⁴ which permit a person acting under color of law to intercept a wire or oral communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception. ⁵

In United States v. Kolodziej, 706 F.2d 590 (5th Cir.1983), the Fifth Circuit discussed the contours of the consent exception. In Kolodziej, federal agents wiretapped a telephone conversation between a co-conspirator and the defendant. The agents then used the recorded inculpatory statements to establish probable cause for an arrest warrant. The Fifth Circuit noted initially that the burden of proving voluntariness of the consent is on the government, and then went on to state:

"[The] burden can usually be met by showing that the informant placed the telephone call knowing that it would be monitored. United States v. Glickman, 9 Cir.1979, 604 F.2d 625, 633-34, cert. denied, 1980, 444 U.S. 1080, 100 S.Ct. 1032, 62 L.Ed.2d 764; United States v. Bonanno, 2 Cir.1973, 487 F.2d 654, 658. When, however, there is an allegation of coercion, the government must show that there has been no undue pressure, threats, or improper inducements. See United States v. Kirk, 8 Cir.1976, 534 F.2d 1262, 1273, cert. denied, 1977, 433 U.S. 907, 97 S.Ct. 2971, 53 L.Ed.2d 1091; United States v. Juarez, [5 Cir.1978], 573 F.2d at 278. Raised expectations and hopes for leniency do not amount to coercion or improper inducement. United States v. Llinas, 5 Cir.1979, 603 F.2d 506, 508, cert. denied, 1980, 444 U.S. 1079, 100 S.Ct. 1030, 62 L.Ed.2d 762; United States v. Juarez, 573 F.2d at 278." 706 F.2d at 593.

See also United States v. Silva, 449 F.2d 145 (1st Cir.1971), cert. denied, 405 U.S. 918, 92 S.Ct. 942, 30 L.Ed.2d 787 (1972); United States v. Barone, 913 F.2d 46 (2d Cir.1990); United States v. Jones, 839 F.2d 1041 (5th Cir.), cert. denied, 486 U.S. 1024, 108 S.Ct. 1999, 100 L.Ed.2d 230 (1988); United States v. Hodge, 539 F.2d 898 (6th Cir.1976), cert. denied, 429 U.S. 1091, 97 S.Ct. 1100, 51 L.Ed.2d 536 (1977); United States v. Horton, 601 F.2d 319 (7th Cir.), cert. denied, 444 U.S. 937, 100 S.Ct. 287, 62 L.Ed.2d 197 (1979); United States v. Zemek, 634 F.2d 1159 (9th Cir.1980), cert. denied, 450 U.S. 985, 101 S.Ct. 1525, 67 L.Ed.2d 821 (1981); United States v. Salisbury, 662 F.2d 738 (11th Cir.1981), cert. denied, 457 U.S. 1107, 102 S.Ct. 2907, 73 L.Ed.2d 1316 (1982); State v. Stanley, 123 Ariz. 95, 597 P.2d 998 (App.1979); People v. Montgomery, 61 Cal.App.3d 718, 132 Cal.Rptr. 558 (1976); State v. Mortoro, 160 Conn. 378, 279 A.2d 546 (1971); State v. Petta, 359 So.2d 143 (La.1978); State v. Bellfield, 275 N.W.2d 577 (Minn.1978).

Thus, to summarize, before evidence can be admitted pursuant to 18 U.S.C. § 2511(2)(c), the State has the burden of showing that one of the exceptions in the statute exists. Where the State claims that one of the parties consented to the telephone call interception, its burden initially can be met by showing that the party placed the telephone call knowing it would be monitored. If there is an allegation that the consent was coerced, the State then must show that there were no undue pressure, threats, or improper inducements.

In this case, there was no allegation made at trial that Mr. Allison was coerced into consenting to the wiretap. The State showed that Mr. Allison agreed to make the telephone call with full knowledge that it would be tape recorded. Under Kolodziej, this evidence sufficiently showed that the consent was voluntary; thus, this information was properly used to obtain the search warrant. ⁶

II. Delay in Promptly Presenting the Defendant Before A Magistrate

The defendant urges that several incriminating admissions that he made should have been suppressed because he was not promptly presented before a magistrate. In Syllabus Point 1 of State v. Guthrie, 173 W.Va. 290, 315 S.E.2d 397 (1984), we stated:

" 'The delay in taking a defendant to a magistrate may be a critical factor [in the totality of circumstances making a confession involuntary and hence inadmissible] where it appears that the primary purpose of the delay was to obtain a confession from the defendant.' Syllabus Point 6, State v. Persinger, , 286 S.E.2d 261 (1982), as amended."

The defendant was arrested around 4:00 p.m. at his place of employment and was taken to the state police headquarters for fingerprinting, photographing, and other routine processing. He was given Miranda warnings, ⁷ which he waived in writing. He did not give a formal confession at this time. When the defendant learned that the police were going to search his bedroom, he agreed to cooperate with them and to show them where the...