State v. Winston

• Decision Date: 15 July 1982
• Docket Number: No. 15251,15251
• Citation: 170 W.Va. 555,295 S.E.2d 46
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Willie WINSTON.

Page 46

295 S.E.2d 46

170 W.Va. 555

STATE of West Virginia v. Willie WINSTON.

No. 15251.

Supreme Court of Appeals of West Virginia.

July 15, 1982.

Rehearing Denied Sept. 16, 1982.

Syllabus by the Court

1. Upon a lawful custodial arrest of the occupant of a motor vehicle its entire passenger compartment including closed containers can be searched without a warrant as an incident to such arrest.

2. A defendant may assert as a defense to a robbery or larceny charge, that he had a bona fide claim of ownership to the specific property stolen and, therefore, that he had no intent to steal. However, this defense is not available where the defendant took money or other property, to which he did not have a specific ownership claim, in satisfaction of a debt.

3. " 'Article III, Section 5 of the West Virginia Constitution, which contains the cruel and unusual punishment counterpart to the Eighth Amendment of the United States Constitution, has an express statement of the proportionality principle: "Penalties shall be proportioned to the character and degree of the offence." ' Syllabus Point 8, State v. Vance, 164 W.Va. 216, 262 S.E.2d 423 (1980)." Syllabus Point 1, State v. Houston, 166 W.Va. 202, 273 S.E.2d 375 (1980).

4. "Where the defendant desires to challenge the length of his sentence for robbery by violence, he is entitled to do so by a timely motion to the trial court made within the time period provided by W.Va.Code, 62-12-3, for suspending a sentence, and an appropriate record shall be made to provide the factual basis for the sentence." Syllabus Point 2, State v. Houston, 166 W.Va. 202, 273 S.E.2d 375 (1980).

Franklin D. Cleckley, Morgantown, P. Lee Clay, Robert F. Cohen, Jr., Fairmont, for appellant.

Chauncey H. Browning, Atty. Gen. and Gregory W. Bailey, Deputy Atty. Gen., Charleston, for appellee.

MILLER, Chief Justice:

In this criminal appeal from a sixty-year sentence for aggravated or armed robbery, ¹ the defendant contends that his vehicle was subject to an illegal search. He maintains that he had a bona fide claim of right to regain the property taken and that the trial court gave erroneous instructions on the law in this area. He also contends the trial court erred in failing to give him a short postponement during the trial to procure a subpoenaed witness to bolster his bona fide defense claim. Finally, he claims that the trial court's sentence of sixty years was disproportionate under State v. Houston, 166 W.Va. 202, 273 S.E.2d 375 (1980). We find no error except as to the last point and, therefore, remand for a sentencing hearing.

On February 11, 1980, the defendant robbed at gun point Harold Hohmann, the operator of a coin shop in Fairmont. He handcuffed Hohmann and proceeded to take Hohmann's wallet and a large number of coins. As he left Hohmann's shop, the defendant was pursued by Mrs. Hohmann. She managed to get a good look at the defendant and his vehicle, and gave a description of him and the vehicle, including a partial license number, to the police. The police broadcast the descriptions to various law enforcement units in the area with the additional information that the defendant was believed to be traveling north on I-79 in the direction of Morgantown.

As he was proceeding north on I-79 toward Morgantown the defendant was observed by State Trooper J. T. Brammer, who had heard the broadcasts regarding the robbery. ² Trooper Brammer gave chase and the defendant failed to pull over. Instead, he continued to travel toward Morgantown at a high rate of speed; he was clocked at over 90 miles per hour. Finally, Trooper Brammer stopped the defendant and placed him under arrest. After the defendant was arrested, Trooper Brammer seized and removed a revolver and a briefcase from defendant's truck. As he was removing the briefcase, he opened it and looked inside. It contained Mr. Hohmann's wallet which had $2915 in cash and the coins removed from the coin shop whose value was not established in the record. ³

Subsequently, the defendant was indicted and tried for robbery. During his trial, the defendant did not deny that he had handcuffed Hohmann or that he had removed items from Hohmann's shop. Instead, he took the position that he had taken the property under a "bona fide claim of right." Specifically he testified that sometime prior to the incident he and Hohmann had entered into an agreement whereby Hohmann had agreed to pay him a commission for locating customers willing to sell coins. He further testified that on February 7, 1980, he had received 500 silver dollars from one William Bland of Morgantown who had instructed him to sell them to Hohmann. According to the defendant, he had taken the coins to Hohmann on February 8, 1980, and Hohmann had agreed to pay him $7750 at a later time. The defendant testified that on several subsequent occasions Hohmann had refused to pay, and consequently he had decided to take matters into his own hands and on February 11, 1980, he had committed the acts leading to his arrest.

On appeal, the defendant's first assignment of error is that the trial court erred in admitting into evidence items contained in the briefcase. He argues that the items were obtained as the result of an illegal search and seizure. In support of his position he cites Syllabus Point 2 of State v. Tomey, 163 W.Va. 578, 259 S.E.2d 16 (1979), where we discussed the validity of the warrantless search of luggage found in the passenger compartment of an automobile:

"Absent exigent circumstances, a search of luggage must be both reasonable and performed pursuant to a properly issued search warrant, and the mere reasonableness of a search, assessed in the light of surrounding circumstances, is not a substitute for the judicial warrant required under the Fourth Amendment."

We based this conclusion on the decisions of the United States Supreme Court in Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), and United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), in which the Court held that a search warrant is required before police officers may open closed containers which they have lawfully seized at the time of the arrest of the owner, where there is probable cause to believe that they contain contraband.

After our decision in State v. Tomey, supra, the United States Supreme Court, in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), restated its position regarding the search of closed containers located in the passenger compartment of a vehicle by stating:

"[W]e hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest search the passenger compartment of that automobile.

"It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will any containers in it be within his reach." 453 U.S. at 460, 101 S.Ct. at 2864, 69 L.Ed.2d at 775.

In note 4 of Belton, supra, the following statement was made:

" 'Container' here denotes any object capable of holding another object. It thus includes closed or open glove compartments, consoles, or other receptacles located anywhere within the passenger compartment, as well as luggage, boxes, bags, clothing, and the like. Our holding encompasses only the interior of the passenger compartment of an automobile and does not encompass the trunk." 453 U.S. at 460, 101 S.Ct. at 2864, 69 L.Ed.2d at 775.

Defense counsel on appeal cites Belton stating it "has held that closed containers within the passenger compartment of an automobile may be searched without a warrant if the search is incident to a lawful custodial arrest." ⁴ (Appellant's Brief, p. 9-10) However, it is argued that once the defendant has been placed in custodial arrest, a Belton search is unwarranted if he is handcuffed or otherwise secured away from the inside of his vehicle. The defendant's view of Belton is based on the fact that Belton discusses Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Chimel permitted a search of the person and the immediate physical area surrounding him upon his arrest. This was permitted in order to prevent destruction of evidence and to secure the officer's safety against weapons which might be used by the arrestee. However, it is clear that Belton specifically redefines the extent of a Chimel search as to automobiles:

"Our reading of the cases suggests the generalization that articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within 'the area into which an arrestee might reach in order to grab a weapon or evidentiary ite[m].' Chimel, 395 U.S., at 763 . In order to establish the workable rule this category of cases requires, we read Chimel's definition of the limits of the area that may be searched in light of that generalization." 453 U.S. at 460, 101 S.Ct. at 2864, 69 L.Ed.2d at 774-75.

Thus, we believe that Belton permits upon a lawful custodial arrest of the occupant of a motor vehicle that its entire passenger compartment including closed containers can be searched without a warrant as an incident to such arrest. We have reiterated this view in State v. Boswell, 170 W.Va. 433, 294 S.E.2d 287, 291 (1982), where we said:

"Belton in effect extended the permissible area of a warrantless search to the entire passenger compartment."

Consequently, we believe the officer's search of the defendant's briefcase was proper.

A number of the defendant's assignments of error relate to his claim that in taking Hohmann's property he was acting under a "bona fide claim of right." We have been unable to locate a West Virginia case dealing with the question of whether a "bona fide claim of right" to property taken can defeat a charge of...