State of West Virginia v. Charles Edward Bruffey

745 S.E.2d 540, 231 W. Va. 502, 2013 WL 3156013, 2013 W. Va. LEXIS 722
West Virginia Supreme Court·Decided June 18, 2013·No. 12-0189·Published·Cited by 7 cases

Opinions

PER CURIAM:

The petitioner herein and defendant below, Charles Edward Bruffey (hereinafter “Mr. Bruffey”), was sentenced on January 18, 2012, to a term of incarceration of ten to twenty years following his jury conviction for robbery. Mr. Bruffey asserts that the trial court committed four errors: (1) admitting the prosecution’s solicited testimony on Mr. Bruffey’s silence posCMiranda1 warning; (2) allowing Rule 404(b) evidence of a second uncharged bank robbery without an adequate McGinnis2 hearing; (3) violating Mr. Bruf-fey’s Sixth Amendment rights by permitting a police officer to testify about statements made by a witness who did not take the stand at trial; and (4) finding that the investigating officer’s affidavit was sufficient to establish probable cause for a search warrant. Based upon the parties’ written briefs and oral arguments, the appendix record designated for our consideration, and the pertinent authorities, we affirm the circuit court.

I.

FACTUAL AND PROCEDURAL HISTORY

The facts of this case intertwine two separate bank robberies: one that occurred on December 23, 2009 (hereinafter the “charged [507]*507robbery”) and a subsequent robbery that took place on February 26, 2010 (hereinafter the “uncharged robbery” or “second robbery”). This appeal directly involves only Mr. Bruffey’s conviction for the charged robbery.3

A.Charged Robbery

At about 9:30 a.m. on December 28, 2009, a white male with blue eyes entered the M & T Bank in Fort Ashby, West Virginia. He was wearing a hat, a hood, a scarf, and a Carhart-type jacket that had duct tape over the name badge area. The man approached the bank teller and said, “this is a robbery ... give me all your loose bills ... place them on the counter ... no bait money or dye pack.” The robber was apologetic for his actions, explaining that he “was sorry,” that he had “lost his job,” and that he “had to [rob the bank].” The teller gave money to the robber totaling $1618.00. The robber then fled the bank on foot, turning left immediately upon exiting the bank’s front doors.

Minutes after the robbery, Sergeant Drop-pleman arrived on the scene. He requested that a K-9 dog “tail” the robber. The dog found a scent and tracked it to a red ear that was parked in a parking lot about three hundred feet from the bank. A freshly-smoked cigarette butt was found on the ground beside the red car. Sergeant Drop-pleman spoke to the owner of the red ear spotted by the K-9 officer on the morning of the charged robbery. The owner of the red ear told the Sergeant that he saw a purple ear parked near his red ear, and that a man was sitting in the purple car and smoking a cigarette. The cigarette butt found on the morning of the charged robbery contained Mr. Bruffey’s DNA. Mr. Bruffey eventually was indicted for the first robbery in January 2011. A jury trial was held September 26 and 27, 2011, which ultimately resulted in a conviction.

B.Uncharged Robbery

About two months after the first robbery, on February 26, 2010, the bank was robbed again by a white, unarmed male with blue eyes. The robber was wearing a coat and a hooded sweatshirt, and had a burgundy-colored scarf around his face. He did not speak but handed the teller a note demanding money, which stated, “This is a robbery[.] [G]ive me $20-$50-$100 dollar bills[.] Put the money on the counter spread out[.] No tricks, dye packs, bait money[.] No one gets hurt.”

During the ensuing investigation, Sergeant Droppleman was informed that a purple car also had been seen in the same parking lot a couple of days before the uncharged robbery. The Sergeant was able to link the purple car to Mr. Bruffey. Moreover, a handwriting expert with the Federal Bureau of Investigation (hereinafter “FBI”) determined that the demand note used in the commission of the uncharged robbery had been written by Mr. Bruffey.

C.Procedural History of Charged Robbery

Subsequent to this second incident, Sergeant Droppleman suspected Mr. Bruffey as the perpetrator of the first bank robbery. A search warrant was secured and executed on Mr. Bruffey’s residence. Pursuant to the search, property was seized including a blue jacket, a grey hooded sweatshirt, a maroon cloth, two blue notebooks containing known writing by Mr. Bruffey, and a pack of cigarettes. Further, Sergeant Droppleman obtained a mouth swab from Mr. Bruffey to be used in DNA comparison for the cigarette butts found at the scene of the charged robbery.

At a June 28, 2011, pre-trial hearing, the circuit court heard argument regarding the State’s “Notice of Intent to Use 404(b)” evidence. In this regard, the State sought to use evidence during the trial of the charged robbery that had been obtained through the investigation of the uncharged robbery. While Mr. Bruffey had not yet been charged with the February 26, 2010, robbery,4 the [508]*508State wished to use such evidence to establish Mr. Bruffey’s common scheme and plan, to identify Mr. Bruffey as the perpetrator, and to show the plan and intent of Mr. Bruffey. The State sought to enter, among other things, the testimony of an FBI handwriting expert who had determined that Mr. Bruffey wrote the demand note used in the uncharged robbery, as well as evidence regarding the purple car owned by Mr. Bruffey and its appearance close in time and proximity to both bank robberies.

After the hearing on the 404(b) evidence, the circuit court entered a July 7, 2011, order stating, in relevant part, as follows:

2. [The robber] told the teller that “this is a robbery”, “give me all your loose money”, directed her to lay the money on the counter, asked “if there were any bait or die (sic) packs”, stated that he “wouldn’t hurt me [the teller]”, and that “he had just lost his job and he had to do this”.
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4. [T]he M & T Bank ... was robbed a second time ... The suspect ... held up a note ... that stated: “This is a robbery give me $20-$50-$100 dollar bills lots Put the money on the counter spread out No tricks, dye packs, bait money No one gets hurt”.
5. Sgt. Droppleman suspected that [Mr. Bruffey] was the robber in the first bank robbery and executed a search warrant on his residence. The property seized included a blue jacket, gray hooded sweatshirt, maroon cloth, two blue lined notebooks containing know [sic] writing of [Mr. Bruffey’s], and a pack of Pall Mall cigarettes. Sgt. Droppleman also obtained a mouth swab from [Mr. Bruffey] for DNA eomparison[.]
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7. The note that was recovered from the scene at the second robbery was submitted to the FBI crime lab for comparison to the recovered samples from the search .... the FBI examiner confirmed that the note was authored by [Mr. Bruf-fey].
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10. In conducting the McGinnis analysis, this Court is convinced by a preponderance of the evidence that the second robbery did occur and that [Mr. Bruffey] was the person who committed it based upon the fact that [Mr. Bruffey] robbed the exact same bank in an almost identical manner.

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State of West Virginia v. Charles Edward Bruffey, 745 S.E.2d 540, 231 W. Va. 502, 2013 WL 3156013, 2013 W. Va. LEXIS 722 (W. Va. 2013).

745 S.E.2d 540 (State of West Virginia v. Charles Edward Bruffey) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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