State v. Woods

• Decision Date: 19 June 1995
• Docket Number: No. 22555,22555
• Citation: 460 S.E.2d 65,194 W.Va. 250
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Bobby WOODS, Defendant Below, Appellant.

Page 65

460 S.E.2d 65

194 W.Va. 250

STATE of West Virginia, Plaintiff Below, Appellee, v. Bobby WOODS, Defendant Below, Appellant.

No. 22555.

Supreme Court of Appeals of

West Virginia.

Submitted May 30, 1995.

Decided June 19, 1995.

Syllabus by the Court

1. "As a condition precedent to the admissibility of former testimony under W.Va.R.Evid. 804(b)(1), the proponent of such testimony must show the unavailability of the witness. If the witness is available, the in-court testimony of that witness is preferred." Syl. pt. 3, Rine v. Irisari, 187 W.Va. 550, 420 S.E.2d 541 (1992).

2. "In order to satisfy its burden of showing that the witness is unavailable, the State must prove that it has made a good-faith effort to obtain the witness's attendance at trial. This showing necessarily requires substantial diligence." Syl. pt. 3, State v. James Edward S., 184 W.Va. 408, 400 S.E.2d 843 (1990).

3. "Sentences imposed by the trial court, if within statutory limits and if not based on some [im]permissible factor, are not subject to appellate review." Syl. pt. 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982).

4. "It is the extremely rare case when this Court will find ineffective assistance of counsel when such a charge is raised as an assignment of error on a direct appeal. The prudent defense counsel first develops the record regarding ineffective assistance of counsel in a habeas corpus proceeding before the lower court, and may then appeal if such relief is denied. This Court may then have a fully developed record on this issue upon which to more thoroughly review an ineffective assistance of counsel claim." Syl. pt. 10, State v. Triplett, 187 W.Va. 760, 421 S.E.2d 511 (1992).

Mark D. Hudnall, Summersville, for appellant.

Darrell V. McGraw, Jr., Atty. Gen., Scott E. Johnson, Asst. Atty. Gen., Jacquelyn I. Custer, Sr. Asst. Atty. Gen., Charleston, for appellee.

Per Curiam.

This case is before this Court upon an appeal from the final order of the Circuit Court of Nicholas County, West Virginia, entered on November 12, 1993. Pursuant to that order, the appellant, Bobby Woods, was sentenced to a determinate term of thirty-six years in the penitentiary following his conviction by a jury of aggravated robbery. W.Va.Code, 61-2-12 [1961]. For the reasons stated below, we affirm.

I

On the evening of November 27, 1992, at approximately 9:45 p.m., a man wearing a maroon jacket and carrying a shotgun entered a Go-Mart store in Craigsville, Nicholas County, West Virginia. Wearing a pair of pantyhose over his head to disguise his features, the man ordered the clerk, who was otherwise alone in the store, from the back of the store to the front where the cash register was located. At gunpoint, the clerk placed food stamps, checks, credit card slips, lottery tickets, change and two hundred to three hundred dollars in bills in a white plastic Go-Mart bag and handed it to the assailant. The man then grabbed the clerk, forcibly kissed her, and exited the store. He then entered a nearby automobile in which two other men were waiting, and the car was driven away.

Across the street, three men, Parley R. Nicely, James Withrow and another, observed the robbery. They followed the suspects' car in their own automobile until they were able to identify the suspects' car as a blue Chevrolet Nova, license plate number NXL-376. The observers had noticed that the assailant in the store was wearing a maroon jacket. After following the suspects, the observers returned to the Go-Mart and reported their information to the police.

Thereafter, police radio dispatches were issued, and a general search for the suspects began. At approximately 11:00 p.m., Assistant State Fire Marshall Gregory P. Greer, who was also a law enforcement officer, spotted the suspects' car, which contained three passengers. Greer followed the car, a Chevrolet Nova, in his vehicle until it parked at the residence of Carlos Copen, in Craigsville. Greer drew his weapon and kept the suspects in the Chevrolet Nova until the arrival of other officers.

Soon after, Nicholas County Deputy Sheriffs Robinson, Hodovan and Spinks arrived at the scene. The three suspects, Roy Kesterson, Carlos Copen and Bobby Woods, were removed from the car, a blue Chevrolet Nova, license number NXL-376, and placed under arrest.

Bobby Woods had been lying in the back seat of the car, and the officers found and removed a loaded shotgun and a white plastic Go-Mart bag from the back seat floorboard. Woods had been lying upon a wad of bills in the back seat, and that money, plus the bills found in his pockets, totalled one hundred eighty-one dollars. Also found upon the person of Bobby Woods were shotgun shells, some food stamps and change consisting of thirty quarters, thirty-seven dimes, twenty-nine nickels and forty-seven pennies. In addition, at the time of his arrest, Bobby Woods was wearing a maroon jacket under a sweater or sweat shirt.

Carlos Copen had been seated in the passenger side of the front seat of the Chevrolet Nova, and Roy Kesterson had been seated behind the wheel. Although no property was taken from Carlos Copen, shotgun shells and a small amount of money were found upon Roy Kesterson. No checks, credit card slips or lottery tickets were found.

In January 1993, Roy Kesterson, Carlos Copen and Bobby Woods were indicted by a Nicholas County grand jury for the felony offense of aggravated robbery. Pursuant to W.Va.Code, 61-2-12 [1961], aggravated robbery is "robbery by partial strangulation or suffocation, or by striking or beating, or by other violence to the person, or by the threat or presenting of firearms, or other deadly weapon or instrumentality whatsoever [.]" State v. Neider, 170 W.Va. 662 n. 1, 295 S.E.2d 902 n. 1 (1982); State v. Harless, 168 W.Va. 707, 711, 285 S.E.2d 461, 464 (1981).

The defendants' trials were severed, and a June 1993 trial of Bobby Woods resulted in a mistrial. The retrial of Bobby Woods, which is the basis of this appeal, began on September 15, 1993. At trial, Woods asserted the defense of alibi. In particular, he testified that at the time of the robbery he was drinking at a local bar known as the D & D Tavern and that he left the bar after 10:00 p.m. He then talked to and shared liquor with an unidentified female just outside the bar until sometime after 11:00 p.m. and later walked to the Copen residence where he was staying. Upon arriving at the Copen residence, Woods got into the Chevrolet Nova, then unoccupied, and passed out until the time of his arrest.

In addition, Bobby Woods testified that he never noticed a shotgun in the back seat floorboard of the car. He further stated that although he was wearing a maroon jacket that night, he possessed the food stamps because he was a State food stamp recipient and, also, that he possessed the shotgun shells because he had sold a different shotgun that day and forgot to give the shells to the buyer. The owner of the D & D Tavern testified that Bobby Woods was in the bar until 10:00 p.m.

The State, however, in addition to submitting evidence concerning the robbery, investigation and arrest, elicited the testimony of the Go-Mart store clerk who identified Bobby Woods at trial as the assailant. On September 20, 1993, the jury found Bobby Woods guilty of aggravated robbery. Subsequently, Woods was sentenced to a determinate term of thirty-six years in the penitentiary.

II

The principal issues of concern to this Court relate to the admission at the September 1993 trial of the former testimony of Parley R. Nicely and James Withrow from the June 1993 trial, and the sentence of Bobby Woods to a determinate term of thirty-six years in the penitentiary.

As stated above, Parley R. Nicely and James Withrow and another observed the robbery and identified the suspects' car as a blue Chevrolet Nova, license plate number NXL-376. Nicely and Withrow testified to that effect at Bobby Woods' June 1993 trial. They were not found, however, for the September 1993 retrial. Moreover, the third person with Nicely and Withrow on the night of the robbery did not testify at the retrial and has not been mentioned in this appeal.

Following an in camera hearing, the circuit court admitted the former testimony of Nicely and Withrow before the September 1993 jury. Specifically, the circuit court found that, pursuant to Rule 804 of the West Virginia Rules of Evidence, the State had made a reasonable effort to procure the attendance of Nicely and Withrow at the September 1993 trial. Rule 804 provides, in part:

(a) Definition of Unavailability.--'Unavailability as a witness' includes situations in which the declarant--

....

(5) is absent from the hearing and the proponent of his statement has been unable to procure his attendance ... by process or other reasonable means.

....

(b) Hearsay exceptions.--The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

(1) Former Testimony.--Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

In Rine v. Irisari, 187 W.Va. 550, 420 S.E.2d 541 (1992), we held in syllabus point 3 that "[a]s a condition precedent to the admissibility of former testimony under W.Va.R.Evid. 804(b)(1), the proponent of such testimony must show the unavailability of the witness. If the witness is available, the in-court testimony of that witness is preferred." Moreover, in the criminal context, we stated in syllabus point 3 of State v. James Edward S., 184 W.Va. 408, 400 S.E.2d 843 (1990), that "[i]n order to satisfy its burden of showing that the witness is unavailable, the State must prove that it...