State v. Gravely

342 S.E.2d 186, 176 W. Va. 220, 1986 W. Va. LEXIS 452
CourtWest Virginia Supreme Court
DecidedMarch 25, 1986
DocketNo. 16722
StatusPublished
Cited by1 cases

This text of 342 S.E.2d 186 (State v. Gravely) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Gravely, 342 S.E.2d 186, 176 W. Va. 220, 1986 W. Va. LEXIS 452 (W. Va. 1986).

Opinion

PER CURIAM:

The appellant, Richard Gravely, was convicted of aggravated robbery by a jury in the Circuit Court of Logan County on June 2, 1981, and sentenced to fifteen years in the penitentiary. In State v. Gravely, 171 W.Va. 428, 299 S.E.2d 375 (1982), we reversed the appellant’s conviction finding reversible error in the admission of testimony regarding identification of the appellant that was obtained in violation of his right to counsel. The appellant was retried on December 7, 1983, again found guilty and sentenced to a term of fifteen years in the penitentiary. At his second trial the appellant represented himself.

On June 8,1984, appellant filed a petition for a writ of habeas corpus in this Court alleging that he did not knowingly waive his right to counsel and that he was denied his right to appeal. We issued a writ of habeas corpus returnable to Logan County. On August 3, 1984, the circuit court held a hearing in which testimony concerning the appellant’s allegations was admitted. By order dated August 13, 1984, the court denied the petition for habeas corpus on the waiver of counsel issue and resen-tenced the appellant in order to allow him to perfect an appeal.

The appellant contends that two errors were committed at his second trial: (1) the court erred in admitting testimony relating to the pretrial identification held inadmissible in State v. Gravely, supra; and (2) the court erred in finding that he waived his right to counsel with full knowledge and comprehension of that right and of the danger in relinquishing it.

The facts surrounding the underlying crime in this case were fully set forth in State v. Gravely, supra. Briefly stated, on January 3, 1981, two males robbed an A & P grocery store in Logan County, West Virginia. One of the robbers wore a mask and took a sum of money from the cash register while the other, who was unmasked, held a gun upon the store cashier, Jeffrey Stevens.

Several minutes after the robbery, two police officers who had been dispatched to investigate the crime, spotted two suspects at Penny’s Drive Inn. One suspect escaped, and the other, Robert West, was arrested. The police officers found a revolver and $346 at the drive-in. Based upon statements made by Mr. West, the police then went to the West home where they located and arrested the appellant.

Approximately an hour after his arrest the appellant received a statement of his rights. That same morning in the jail section of the courthouse, Jeffrey Stevens, the robbery victim, was unable to identify the appellant as one of the robbers when he observed him from a separate room. The appellant was then taken before a magistrate in the basement of the courthouse where he was advised of the charge against him, bond was set, and he indicated his desire to be represented by counsel. When he left the magistrate’s office, the appellant was again observed by Jeffrey Stevens, who was sitting in a police cruiser. As a result of Stevens’ observation of the appellant in the courthouse basement, he identified the appellant as the unmasked robber who held the gun during the robbery. At the appellant’s first trial in June of 1981, Stevens made an in-court identification of the appellant as the unmasked robber. Evidence was also admitted at the trial regarding the pretrial observations of the appellant by Stevens in the jail and basement areas of the courthouse.

In State v. Gravely, supra, we held that Jeffrey Stevens’ identification of the appellant in the basement of the courthouse after the appellant had left the magistrate’s office where he expressed a desire to be represented by counsel was a violation of the appellant’s Sixth Amendment right to counsel. In this appeal the appellant asserts that when he was retried the trial court erred in again admitting evidence of this pretrial identification.

In the appellant’s second trial, the prosecuting attorney did not question Mr. Stevens about the basement identification on [222]*222direct examination. On cross-examination, the appellant questioned Stevens about his failure to identify the appellant when he observed him shortly after the booking procedures in the upstairs part of the jail. Mr. Stevens admitted that he could not identify the appellant at that time. He testified that he was approximately thirty feet away from the man he was asked to identify and that the room he was in was dark. The testimony of which, the appellant complains was elicited by the prosecutor on redirect examination of Mr. Stevens:

Q. Mr. Stevens, since Mr. Gravely has asked you, after the robbery occurred didn’t the Sheriffs Department call and ask you to come to the court house to look at a suspect they arrested?
A. They did.
Q. Where did they put you to try and look at him?
A. In a holding cell to the left of the door.
Q. What were the lighting conditions where you were standing?
A. Well, I was seated on the floor and it was dark. There wasn’t a light on.
Q. Were you able to say positively then the man they had standing there was the man that robbed you?
A. No.
Q. Did you see him again though a few minutes later?
A. I did.
Q. Where did you see him then?
A. In the basement of the court house. Q. Did you identify him then?
A. I did.
Q. Who was the man you identified in the basement of the court house as being the man who robbed you?
A. Him (pointing to the defendant).

In State v. Boyd, 160 W.Va. 234, 233 S.E.2d 710 (1977), we held that “[fjailure to observe a constitutional right constitutes reversible error unless it can be shown that the error was harmless beyond a reasonable doubt.” In the instant case, both Jeffrey Stevens and David Sargent, a store clerk who was present during the robbery, made in-court identifications of the appellant. Each also independently identified the appellant as one of the perpetrators of the crime from a photographic display. In addition, the revolver used in the robbery and the money stolen from the grocery store were recovered from the drive-in where Robert West and the appellant were observed shortly after the robbery. Part of the money was in a sock of the same description as the one described by Mr. Stevens as used during the robbery. Finally, the identification testimony was not part of the State’s case in chief but formed only a minor part of Jeffrey Stevens’ testimony on redirect. The prosecutor did not dwell on the improper basement identification but merely rehabilitated the witness’s credibility by having him testify that he was able to identify the appellant in the courthouse basement when he had previously testified in response to a question from the appellant, that he was unable to make an identification in the upstairs part of the jail. Taking all these factors into consideration, we are of the'view that the admission of the testimony relating to the basement identification of the appellant was merely cumulative of other evidence before the jury and was harmless beyond a reasonable doubt.

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Bluebook (online)
342 S.E.2d 186, 176 W. Va. 220, 1986 W. Va. LEXIS 452, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gravely-wva-1986.