State v. Johnson

584 S.E.2d 468, 213 W. Va. 612, 2003 W. Va. LEXIS 41
CourtWest Virginia Supreme Court
DecidedMay 6, 2003
DocketNo. 30903
StatusPublished
Cited by1 cases

This text of 584 S.E.2d 468 (State v. Johnson) 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. Johnson, 584 S.E.2d 468, 213 W. Va. 612, 2003 W. Va. LEXIS 41 (W. Va. 2003).

Opinions

PER CURIAM.

This is an appeal by Mr. Brandon Johnson (hereinafter “Appellant”) from a May 6, 2002, order of the Circuit Court of Ohio County sentencing him to forty-eight years in the penitentiary for aggravated robbery. The Appellant contends that such sentence is disproportionate and that the lower court erred in failing to permit evidence of the victim’s admitted use of crack cocaine approximately eight hours prior to the victim’s identification of the Appellant in a police photo line-up. Upon thorough review of the arguments, briefs, and record in this matter, we affirm the determination of the lower court.

I. Factual and Procedural History

On July 13, 2001, Mr. Todd McAllister (hereinafter “victim” or “Mr. McAllister”) was driving through a residential area of Wheeling, West Virginia. He testified that he stopped his vehicle at the behest of two young African-American males. He further testified that the Appellant then approached the vehicle and entered the passenger side [614]*614and requested money. The Appellant thereafter allegedly picked up the victim’s paycheck from the car and pulled back his jacket to reveal a silver automatic pistol in the waistband of his pants. The other assailant then asked for additional money and pointed a revolver at Mr. McAllister. Mr. McAllister refused to provide more money and then drove away. As he left the scene of this incident, either the Appellant or his accomplice shot at Mr. McAllister’s car. Two bullets hit Mr. McAllister, injuring his shoulder and thigh.

After leaving the scene, the victim traveled to a friend’s home and smoked crack cocaine. Several hours later, the victim went to his wife’s home. Mr. McAllister’s wife convinced him to seek medical attention, and the hospital thereafter alerted the police. Mr. McAl-lister identified the Appellant from a photo array approximately eight hours after smoking the crack cocaine.

The Appellant was sixteen years of age at the time the alleged crime was committed. He was transferred to adult status subsequent to a December 11, 2001, transfer healing. The Appellant does not challenge the transfer to adult status. In preparation for trial, the lower court granted the prosecution’s motion in limine to suppress evidence of the victim’s use of crack cocaine. A hearing was held on the motion in limine, and the lower court determined that the victim’s use of crack cocaine had not affected the validity of the identification process. The Appellant was thereafter convicted of first degree robbery on April 4, 2002, and sentenced to forty-eight years in the West Virginia Penitentiary-

On appeal, the Appellant asserts two allegations of error: (1) the lower court erred in granting the prosecution’s motion to suppress evidence of the victim’s use of crack cocaine; and (2) the lower court erred in sentencing the Appellant to forty-eight years in the penitentiary.

II. Standard of Review

With regard to the Appellant’s contention that the lower court erred in excluding evidence of the victim’s use of crack cocaine prior to the identification, this Court reviews that matter under an abuse of discretion standard. As this Court emphasized in syllabus point one of McDougal v. McCammon, 193 W.Va. 229, 455 S.E.2d 788 (1995),

The West Virginia Rules of Evidence and the West Virginia Rules of Civil Procedure allocate significant discretion to the trial court in making evidentiary and procedural rulings. Thus, rulings on the admissibility of evidence and the appropriateness of a particular sanction for discovery violations are committed to the discretion of the trial court. Absent a few exceptions, this Court will review evidentiary and procedural rulings of the circuit court under an abuse of discretion standard.

We have also previously held that “[t]he action of a trial court in admitting or excluding evidence in the exercise of its discretion will not be disturbed by the appellate court unless it appears that such action amounts to an abuse of discretion.” Syl. Pt. 10, State v. Huffman, 141 W.Va. 55, 87 S.E.2d 541 (1955), overruled on other grounds, State ex rel. R.L. v. Bedell, 192 W.Va. 435, 452 S.E.2d 893; see also Syl. Pt. 4, Riggle v. Allied Chem. Corp., 180 W.Va. 561, 378 S.E.2d 282 (1989).

With regard to this Court’s review of the lower court’s sentencing determination, this Court explained as follows in pertinent part of syllabus point one of State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997): “The Supreme Court of Appeals reviews sentencing orders ... under a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands.” In syllabus point four of State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982), this Court stated: “Sentences imposed by the trial court, if within statutory limits and if not based on some impermissible factor, are not subject to appellate review.”

III. Discussion

A. Evidence of Victim’s Drug Use

On March 28, 2002, the lower court conducted a hearing in which the lower court addressed the State’s motion in limine to exclude evidence regarding the victim’s drug use prior to the identification procedure. [615]*615The victim testified that he had used the drug approximately eight hours prior to his identification of the Appellant in the photo spread and that the effects of the drug typically lasted only one-half hour. Detective Keith Brown also testified that based upon his experience as a police officer and his prior observation of individuals under the effects of crack cocaine, he did not believe that the victim was suffering from the effects of any drug as he participated in the photo lineup identification process. Based upon such testimony that the use of crack cocaine had not affected the validity of the identification process, the lower court concluded that evidence of use of crack cocaine, if introduced, could only be utilized to discredit the victim in an impermissible manner.

Rule 608(b) of the West Virginia Rules of Evidence governs the admissibility of specific instances of conduct used to attack the credibility of a witness. Rule 608(b) essentially provides that evidence of specific bad acts is admissible only if probative of truthfulness or untruthfulness. State v. Murray, 180 W.Va. 41, 375 S.E.2d 405 (1988). Specifically, syllabus point six of Murray provides as follows:

Rule 608(b) of the West Virginia Rules of Evidence limits the admissibility of evidence of specific instances of conduct for the purpose of attacking the credibility of a witness. Such evidence may not be proved extrinsically, but may be inquired into by cross-examination of the witness. Furthermore, the evidence is admissible only if probative of truthfulness or untruthfulness.

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Bluebook (online)
584 S.E.2d 468, 213 W. Va. 612, 2003 W. Va. LEXIS 41, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-johnson-wva-2003.