State v. Williams

• Decision Date: 05 December 1978
• Docket Number: No. 14115,14115
• Citation: 249 S.E.2d 752,162 W.Va. 348
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Ronnie WILLIAMS.

Page 752

249 S.E.2d 752

162 W.Va. 348

STATE of West Virginia v. Ronnie WILLIAMS.

No. 14115.

Supreme Court of Appeals of West Virginia.

Dec. 5, 1978.

Syllabus by the Court

1. "In determining whether an out-of-court identification of a defendant is so tainted as to require suppression of an in-court identification a court must look to the totality of the circumstances and determine whether the identification was reliable, even though the confrontation procedure was suggestive, with due regard given to such factors as the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." Syl. pt. 3, State v. Casdorph, W.Va., 230 S.E.2d 476 (1976).

2. Hearsay evidence which is against the penal interest of the extra judicial declarant is admissible even though it does not fall within a recognized West Virginia exception to the hearsay rule if it possesses sufficient indicia of reliability to satisfy the court that it is trustworthy in accordance with the following rule:

A statement has circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of the rules of evidence and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.

3. It is not erroneous to use voter registration rolls for jury selection absent evidence that there is an intent to exclude black persons or poor persons, or that the effect of the use of voter registration rolls is in fact to exclude black and poor persons unreasonably and systematically from jury selection.

Martorella & Martorella, Marjorie Martorella and Joseph G. Martorella, Huntington, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., Robert Digges, Jr., Charleston, for defendant in error.

NEELY, Justice:

This appeal arises from a conviction of armed robbery under W.Va.Code, 61-2-12 (1961). The appellant, Ronnie Williams, assigns as error: the admission into evidence of a suggestive out-of-court identification; the refusal to admit hearsay testimony of another person's confession to the crime; the denial of appellant's motion for a new trial based on newly discovered evidence; and, the procedure used for jury selection which resulted in an all white jury. We agree with appellant that the out-of-court identification was not sufficiently reliable to be admissible and that another person's confession to the crime charged might have been admissible notwithstanding the hearsay objection; therefore, we reverse and remand for a new trial.

On March 13, 1977, at approximately 12:30 a. m., the Tri-State Carry Out in Huntington, West Virginia was robbed by two men, one of whom was armed. The State sought to prove that the appellant and Ernest Kelly were the two men who entered and robbed the store and that a third man, Marshall Hayden, was the driver of the escape vehicle. Appellant contends that Mr. Kelly and Mr. Hayden robbed the store and afterwards picked appellant up to "go get high;" consequently, appellant alleges that he knew nothing of the robbery until his arrest. After the robbery, the store owner, Mr. Cisco, notified the police that two black men, one of whom had gray hair and was wearing a blue jacket and a hat, had robbed his store. This information was reported by the police radio and three plain clothes officers who were in the vicinity of the Ohio River bridge at Seventeenth Street decided to watch the bridge for men fitting that description. These police officers observed a Cadillac carrying what appeared to be two black men, one of whom was wearing a blue jacket and a hat, and decided to follow. The pursuit was calm until a bundle was thrown from the Cadillac and the Cadillac began to travel at an excessive speed. The officers began active pursuit and called the South Point, Ohio police department for assistance. Upon stopping the Cadillac the officers found that not two but three men were inside, Marshall Hayden, the driver, Ernest Kelly in the front passenger seat, and appellant in the back seat. Money and receipts, which were later determined to be from the Tri-State Carry Out, were found in plain view. The three men were arrested and placed in the back seat of a police car. The Huntington Police Department had been notified of the chase and Mr. Cisco was brought to the site of the arrest where he identified appellant and Ernest Kelly as the two men who had robbed his store. At trial, Mr. Cisco testified to this out-of-court identification and made an in-court identification of appellant. ¹ Appellant contends that the out-of-court identification was so suggestive as to be inadmissible.

I

In determining whether an out-of-court identification of a defendant is so tainted as to require suppression of it or an in-court identification based on it, it must first be determined whether the identification was reliable even though the confrontation procedures were suggestive. State v. Kennedy, W.Va., 249 S.E.2d 188 (1978); State v. Casdorph, W.Va., 230 S.E.2d 476 (1976). Reliability can be evaluated by considering the factors set forth in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) which are: the opportunity of the witness to view the criminal at the time of the crime; the witness' degree of attention; the accuracy of the witness' prior description of the criminal; the level of certainty demonstrated by the witness at the confrontation; and, the length of time between the crime and the confrontation. Aspects of reliability derived from this evaluation are then balanced against any suggestive procedures which negate reliability to determine whether under the totality of the circumstances the identification was reliable. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); State v. Kennedy, supra.

We now apply this analysis to the facts of the present case:

1) The opportunity of the witness to view the criminal at the time of the crime. The unmasked robbers were in the well-lighted store for five minutes. Mr. Cisco testified that he had a good view of the criminal directly in front of him during the robbery whom he later identified as being Ernest Kelly, but that he had only a glancing, peripheral view of the criminal holding the gun on Mrs. Cisco whom he later identified as the appellant.

2) The witness' degree of attention. Although Mr. Cisco understandably was nervous, he undoubtedly devoted his full attention to the crime being committed.

3) The accuracy of the witness' prior description of the criminal. Mr.Cisco gave a detailed description of the criminal who was standing in front of him during the robbery but his description of the criminal he later identified as appellant was limited to an indication that the assailant was black.

4) The level of certainty demonstrated by the witness at the confrontation. Mr. Cisco positively identified appellant at the arrest site.

5) The length of time between the crime and the confrontation. Less than one hour passed between the time of the robbery and the time Mr. Cisco identified appellant as one of the criminals.

Mr. Cisco's identification does have some aspects of reliability, but when these are weighed against the suggestive procedure of taking the victim, Mr. Cisco, to the scene of the arrest and telling him that his money and receipts had been found in the possession of the three men seated in the police car, the suggestiveness then obviously outweighs questionable reliability and exclusion is the only proper remedy. See State v. Kennedy, supra.

II

The appellant contends that the trial court erred by refusing to admit Steve Casey's testimony that his jailmate, Marshall Hayden, had told him that he, Hayden, and Ernest Kelly had entered and robbed the Tri-State Carry Out without making any mention of appellant. Such testimony would be inconsistent with the State's theory that appellant and Ernest Kelly had entered the store, and consistent with appellant's contention that Marshall Hayden and Ernest Kelly had robbed the store and picked him up later. The trial court's basis for refusing to admit the testimony was that it was inadmissible hearsay. Appellant urges us to adopt yet another exception to the hearsay rule namely an admission against penal interest which was specifically rejected in State v. Poe, 69 W.Va. 260, 71 S.E. 177 (1911) which held that a declaration against penal interest is not enough to overcome the hearsay barrier. Our law indicates that in West Virginia only a declaration against property or pecuniary interest is sufficient to serve as an exception to the hearsay rule. We are unable to accept our former blanket rejection of declarations against penal interest and prefer to address the underlying rationale of the hearsay rule to arrive at a new, workable solution.

Simply stated, hearsay evidence is excluded because it is not considered sufficiently trustworthy:

The hearsay rule, which has long been recognized and respected by virtually every State, is based on experience and grounded in the notion that untrustworthy evidence should not be presented to the triers of fact. Out-of-court statements are traditionally excluded because they lack the...