State v. Fauber

332 S.E.2d 625, 175 W. Va. 324, 1985 W. Va. LEXIS 632

• Court: West Virginia Supreme Court
• Decided: July 9, 1985
• Docket: 16408
• Status: Published

Opinions

PER CURIAM:

The appellant, Robert Fauber, appeals from his conviction of nonaggravated robbery in the Circuit Court of Roane County. He challenges the admission of his confession and the refusal to grant a new trial upon discovery of the prosecution’s failure to disclose certain testimony given by his brother, Tim Fauber, who was also involved in the robbery.

* After careful review of the record, we conclude that the trial court acted properly, and, therefore, affirm the appellant’s conviction.

I.

In Syllabus Point 5 of State v. Vance, 146 W.Va. 925, 124 S.E.2d 252 (1962), overruled on other grounds, Syl. pt. 6, State ex rel. Grob v. Blair, 158 W.Va. 647, 214 S.E.2d 330 (1975), this Court held that, “The trial court has a wide discretion as to the admission of confessions and ordinarily this discretion will not be disturbed on review.” See also, Syl. pt. 3, State v. Cecil, 173 W.Va. 27, 311 S.E.2d 144 (1983); Syl. pt. 3, State v. Sparks, 171 W.Va. 320, 298 S.E.2d 857 (1982); Syl. pt. 2, State v. Goodmon, 170 W.Va. 123, 290 S.E.2d 260 (1981); Syl. pt. 1, State v. Wimer, 168 W.Va. 417, 284 S.E.2d 890 (1981); Syl. pt. 2, State v. Vance, 162 W.Va. 467, 250 S.E.2d 146 (1978); Syl. pt. 3, State v. Mayle, 108 W.Va. 681, 152 S.E. 633 (1939). Further, in Syllabus Point 5 of State v. Starr, 158 W.Va. 905, 216 S.E.2d 242 (1975), we held that, “The State must prove, at least by a preponderance of the evidence that confessions or statements of an accused which amount to admissions of part or all of an offense were voluntary before such may be admitted into the evidence of a criminal case.” See also Syl. pt. 1, State v. Williams, 171 W.Va. 556, 301 S.E.2d 187 (1983); Syl. pt. 1, State v. Woods, 169 W.Va. 767, 289 S.E.2d 500 (1982); Syl. pt. 1, State v. Mitter, 169 W.Va. 652, 289 S.E.2d 457 (1982); Syl. pt. 1, State v. Vance, supra.

Certainly, as we recognized in Syllabus Point 6 of State v. Persinger, 169 W.Va. 121, 286 S.E.2d 261 (1982), “The delay in taking the defendant to a magistrate may be a critical factor where it appears that the primary purpose of the delay was to obtain a confession from the defendant.” See also Syl. pt. 1, State v. Guthrie, 173 W.Va. 290, 315 S.E.2d 397 (1984); Syl. pt. 2, State v. Mitter, supra. Furthermore, in the single Syllabus Point of State v. Stotler, 168 W.Va. 8, 282 S.E.2d 255 (1981), this Court held that:

“To render admissible evidence of an extra-judicial confession by an accused to one in authority, ... it must appear that the confession was freely and voluntarily made and without previous inducements of a temporal or worldly character in the nature of threats or intimidation, or some promise or benefit held out to the ac-cused_” Syllabus, State v. Zaccario, 100 W.Va. 36, 129 S.E. 763 (1925), in part.

See also Syl. pt. 6, State v. Stevenson, 147 W.Va. 211, 127 S.E.2d 638 (1962); Syl. pt. 6, State v. Bruner, 143 W.Va. 755, 105 S.E.2d 140 (1958); Syl., State v. Parsons, 108 W.Va. 705, 152 S.E. 745 (1930); Syl. pt. 3, State v. Brady, 104 W.Va. 523, 140 S.E. 546 (1927); Syl. pt. 5, State v. Richards, 101 W.Va. 136, 132 S.E. 375 (1926).

At the appellant’s suppression hearing, conflicting evidence was presented regarding the circumstances of the appellant’s confession. The appellant testified that he was taken on a detour from the place of arrest en route to the detachment, allegedly to delay his arrival, and that the arresting officers made threats concerning his personal safety and the safety of his family and friends. The arresting officers, on the other hand, denied that they had either taken a detour or threatened the appellant in any fashion. Our review of the evidence indicates that the State met its burden with respect to the voluntariness of the appellant’s confession, and compels our conclusion that the trial court did not abuse its discretion in its admission.

II.

The appellant’s next assignment of error is the trial court’s failure to award a new trial upon discovery of the prosecution’s failure to disclose the testimony of Tim Fauber at his suppression hearing. We note that in Syllabus Point 2 of State v. Grimm, 165 W.Va. 547, 270 S.E.2d 173 (1980), this Court held:

When a trial court grants a pre-trial discovery motion requiring the prosecution to disclose evidence in its possession, non-disclosure by the prosecution is fatal to the prosecution’s case where the nondisclosure is prejudicial. The non-disclosure is prejudicial where the defense is surprised on a material issue and where the failure to make the disclosure hampers the preparation and the presentation of the defendant’s ease.

See also Syl. pt. 2, State v. Samples, 174 W.Va. 584, 328 S.E.2d 191 (1985); State v. Simmons, 172 W.Va. 590, 309 S.E.2d 89, 94 (1983); State v. Meadows, 172 W.Va. 247, 304 S.E.2d 831, 838-39 (1983); State v. Hall, 172 W.Va. 138, 304 S.E.2d 43, 47 (1983); State v. Hatfield, 169 W.Va. 191, 286 S.E.2d 402, 412 (1982); State v. Ward, 168 W.Va. 385, 284 S.E.2d 881, 884 (1981); Syl. pt. 4, State v. White, 167 W.Va. 374, 280 S.E.2d 114 (1981); State v. Trail, 163 W.Va. 352, 357, 255 S.E.2d 900, 904 (1979); State v. Stewart, 161 W.Va. 127, 132, 239 S.E.2d 777, 781 (1977); Wilhelm v. Whyte, 161 W.Va. 67, 71, 239 S.E.2d 735, 738 (1977); Syl., State v. Cowan, 156 W.Va. 827, 197 S.E.2d 641 (1973).

In the present ease, the appellant cannot claim surprise inasmuch as the prosecution made no use of Tim Fauber’s suppression hearing testimony. Furthermore, there is no indication that such nondisclosure in any way weakened the appellant’s case. Certainly, it would have been preferable if the prosecution had disclosed this testimony. Mere oversight, however, with respect to the disclosure of certain evidence in the prosecution’s possession, in the absence of prejudice to the defendant, is insufficient to constitute reversible error. Therefore, we find no error in the trial court’s refusal to award a new trial on this ground.

For the foregoing reasons, the appellant’s conviction is hereby affirmed.

Affirmed.

In addition, the appellant raises assignments of instructional error, improper prosecutorial argument, and, ineffective assistance of counsel, which we find wholly without merit, and therefore need not address.