State v. Williams, 18650

Citation181 W.Va. 150,381 S.E.2d 265
Decision Date17 May 1989
Docket NumberNo. 18650,18650
PartiesSTATE of West Virginia v. Ronnie C. WILLIAMS. West Virginia
CourtSupreme Court of West Virginia

Syllabus by the Court

" '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, 159 W.Va. 909, 230 S.E.2d 476 (1976)." Syllabus Point 2, State v. Gravely, 171 W.Va. 428, 299 S.E.2d 375 (1982).

Robert Jacobs, Bickley, Jacobs & Barkus, Charleston, for Ronnie C. Williams.

C. Terry Owens, Sr. Asst. Atty. Gen., Charleston, for appellee.

NEELY, Justice:

The appellant was convicted of bank robbery in his second trial by a jury. At issue is the admissibility of an in-court identification of appellant as one of two persons involved in the robbery.

Just before 2:00 p.m. on 5 March 1986, two black males robbed $8,600 from Cabell Federal Savings and Loan on Eighth Street in Huntington, West Virginia. One of the men, apprehended just after the robbery and identified as William Felder, brandished a gun during the robbery. The other robber was wearing sunglasses and a "salt and pepper" wig backwards. Appellant was identified by a bank employee as the other robber in a lineup and at trial.

A police officer heard the robbery reported on the radio and gave chase to two black males driving a brown Chrysler K car with out-of-state license tags in the vicinity of the robbery. The officer lost the car but saw William Felder fleeing on foot and reported him to other officers who arrested Mr. Felder. Mr. Felder later pled guilty to armed robbery.

The officer continued his search and stated that at one point he saw the brown Chrysler driven by a single black male and was able to identify the license plate as Ohio, 363-HBU. The car was subsequently found abandoned, and a search warrant revealed a pair of sunglasses of the type worn by Mr. Felder's accomplice and a pellet pistol. Mr. Felder reported that his accomplice in the robbery was Gary Jackson.

William Felder had come to Huntington on 28 February 1986 from Dayton, Ohio, with appellant and appellant's girlfriend Darla Jackson. 1 They drove to Huntington in a brown Chrysler K car with Ohio license 363-HBU, rented from Snappy Car Rental in Dayton, Ohio, by Ms. Jackson and appellant. When appellant, Ms. Jackson and Mr. Felder arrived in Huntington, they went to the house of Ms. Jackson's sister, Deborah K. Uziogwe. Appellant's family also lives in Huntington, and appellant testified that he spent much of the five days in Huntington visiting with his family. Appellant also testified that he and Ms. Jackson went to Huntington to get his father to co-sign a student loan so he could go to the University of Dayton. 2 He also stated that he met Mr. Felder shortly before the trip and that Mr. Felder asked for a ride to Huntington.

Mrs. Uziogwe's identification card was used on 4 March 1986 when Darla Jackson purchased a .38 caliber revolver from Ace Trading Post. On 5 March 1986, at about 10:00 a.m., appellant and William Felder purchased four pairs of rubber gloves and a pellet pistol of the same type as that later found in the abandoned car. Mr. Felder reportedly said it was important for the gun to look realistic because his son had to use it in a play.

Mrs. Uziogwe testified that appellant returned to her house alone the afternoon of 5 March and asked for a razor, which he used to shave off his moustache and goatee. She testified that appellant then asked her for rubber bands and, when she returned with the rubber bands, she saw that appellant had an inch thick stack of bills. Her sister (Ms. Jackson), appellant and appellant's brother were dividing the bills into separate piles. Mrs. Uziogwe asked her sister, appellant and appellant's brother to leave her house. Appellant and his aunt testified that appellant's aunt gave appellant $700 for him to return to college. Appellant, his father and his aunt all testified that he was at the family house from mid-morning until 4:00 p.m. on 5 March, the day of the robbery.

Appellant and Darla Jackson returned to Dayton, Ohio, where appellant was arrested several days later. He waived extradition and was returned to West Virginia, where he was brought before a magistrate, informed of the charges against him, and had a bond set on 11 March 1986. On 12 March 1986, appellant was required to participate in a lineup. He requested counsel, and a lawyer, Philip Duff, was contacted. Although Mr. Duff was present at the lineup, he did not understand that he had been appointed to represent appellant. Instead, he believed that he was present merely as an observer on behalf of the court. Originally the lineup included five men. Appellant objected to its composition claiming there was no one else as dark complected as he, and that one of the men had very light skin. Mr. Duff noted that indeed one of the men had very light skin and pointed this fact out to the police who then removed the light-skinned man.

During the lineup, one bank employee, Ann Kipp, positively identified a suspect other than appellant, and another bank employee, Rebecca Preston, tentatively identified the appellant. Appellant was originally tried in February, 1987, but the proceedings ended with a mistrial. The judge had earlier ruled that the lineup identification should be suppressed because appellant was not, in fact, represented by counsel at the time in spite of his request for representation. Appellant's counsel originally understood that the judge was suppressing any identification of appellant by Mrs. Preston. When it appeared that the court would allow an in-court identification of the appellant, appellant's counsel made his successful motion for a mistrial.

Appellant was again tried in April, 1987. On 24 April, after hearing an unequivocal courtroom identification of appellant by Mrs. Preston, a jury convicted appellant of bank robbery and, in reply to a special interrogatory, found that appellant did not employ a firearm during the robbery.

Appellant now argues that the lineup identification tainted the subsequent in-court identification by Mrs. Preston and, therefore, the in-court identification was inadmissible. 3 The State maintains that it established an independent basis for Mrs. Preston's in-court identification sufficient to remove any prejudice resulting from the lineup identification under the rule set forth in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); and adopted by this Court in State v. Casdorph, 159 W.Va. 909, 230 S.E.2d 476 (1976).

In Wade, supra, the defendant was charged with bank robbery and identified by bank employees at a pre-trial lineup conducted without counsel. The employees also identified the defendant at trial. The court held that defendant had a sixth amendment right to have counsel at the pre-trial lineup. The court then addressed the question of whether the identification at trial should be excluded. On the one hand, the court pointed out that to exclude a lineup identification while admitting a courtroom identification eviscerates the defendant's right to counsel.

A rule limited solely to the exclusion of testimony concerning identification at the lineup itself, without regard to admissibility of the courtroom identification, would render the right to counsel an empty one. The lineup is most often used, as in the present case, to crystallize the witnesses' identification of the defendant for future reference. We have already noted that the lineup identification will have that effect. The State may then rest upon the witnesses' unequivocal courtroom identification, and not mention the pretrial identification as part of the State's case at trial. Counsel is then in the predicament in which Wade's counsel found himself--realizing that possible unfairness at the lineup may be the sole means of attack upon the unequivocal courtroom identification, and having to probe in the dark in an attempt...

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3 cases
  • State v. Taylor
    • United States
    • West Virginia Supreme Court
    • 14 July 1997
    ...of time between the crime and the confrontation. See also State v. Franklin, 191 W.Va. 727, 448 S.E.2d 158 (1994), State v. Williams, 181 W.Va. 150, 381 S.E.2d 265 (1989), and State v. Gravely, 171 W.Va. 428, 299 S.E.2d 375 With these factors in mind, this Court has examined the circumstanc......
  • State v. Franklin
    • United States
    • West Virginia Supreme Court
    • 12 July 1994
    ...159 W.Va. 909, 230 S.E.2d 476 (1976).' Syllabus Point 2, State v. Gravely, 171 W.Va. 428, 299 S.E.2d 375 (1982)." Syl., State v. Williams, 181 W.Va. 150, 381 S.E.2d 265 (1989). 2. " 'The action of a trial court in admitting or excluding evidence in the exercise of its discretion will not be......
  • State v. Munson, 15-0585
    • United States
    • West Virginia Supreme Court
    • 3 June 2016
    ...159 W.Va. 909, 230 S.E.2d 476 (1976).' Syllabus Point 2, State v. Gravely, 171 W.Va. 428, 299 S.E.2d 375 (1982)." Syl., State v. Williams, 181 W.Va. 150, 381 S.E.2d 265 (1989).Syl. Pt. 1, State v. Franklin, 191 W. Va. 727, 448 S.E.2d 158 (1994). The circuit court found that the attempted pr......

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