State v. Rahman

483 S.E.2d 273, 199 W. Va. 144, 1996 W. Va. LEXIS 258
CourtWest Virginia Supreme Court
DecidedDecember 20, 1996
Docket23329
StatusPublished
Cited by30 cases

This text of 483 S.E.2d 273 (State v. Rahman) 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. Rahman, 483 S.E.2d 273, 199 W. Va. 144, 1996 W. Va. LEXIS 258 (W. Va. 1996).

Opinions

[149]*149WORKMAN, Justice:

Dominique Rahman appeals1 his conviction on four felony counts of possession of heroin with intent to deliver. He asserts six errors: (1) the trial court erred by denying a motion to exclude heroin found inside the Appellant’s jacket pocket; (2) the trial court should have declared a mistrial after the prosecutor asked the Appellant during cross-examination whether he had ever sold heroin before; (3) separation of the charges into four counts violated the Double Jeopardy Clause; (4) there was insufficient evidence to support the conviction on count two; (5) defense counsel should have been allowed to impeach a co-defendant with prior misdemeanor convictions; and (6) the court erred by denying the Appellant’s Batson challenge to the State’s peremptory strike of a black juror. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). For the reasons set out below, we affirm the judgment of the circuit court, but remand the case for a hearing on the validity of the peremptory strike.

On April 7, 1995, the Charleston drug unit outfitted a confidential informant (“Cl”) with a body wire, gave him $180 in recorded bills, and directed him to attempt to purchase heroin. Officers dropped the Cl off near the residence of Albert Parker, and kept him under both visual surveillance and audio surveillance via the body wire. The Cl gave the money to Albert Parker, who said he would return shortly with the heroin. Officer William Hart continued to watch the Cl, while officers Steven Neddo and Randy Mayhew followed Parker as he drove to the Day’s Inn near St. Albans. At the Day’s Inn, the officers watched Parker enter room 269, and exit a few minutes later. Officer Neddo remained watching room 269, as did Captain Larry Dodson, who had been watching the Days’ Inn all day. Detective Mayhew followed Parker back to Charleston, and waited for word from Officer Hart. After being advised by Hart that Parker had delivered two packets of heroin to the Cl, Detective May-hew stopped Parker while he was walking home, and Parker agreed to cooperate with the police. Parker went to the drug unit office, where he told police he had purchased heroin from someone named “Turbo,” in room 269 of the Day’s Inn, and described Turbo as a tall black male with a ponytail. During this time, Officers Neddo and Dodson continued to watch room 269 at the Days’ Inn. They observed two black males repeatedly come out of room 269 onto the landing and return to the room. Soon thereafter, they saw the two men, one of whom matched Turbo’s description, leave room 269 and start to drive away. The officers pulled the car over.

Captain Dodson informed the Appellant, who matched Parker’s description of Turbo, that he was the subject of a heroin investigation, and that Dodson was going to search him for any weapons, needles or heroin. Dodson did a pat-down, and felt a bulge in one of the Appellant’s jacket pockets. He thought the bulge felt like heroin packets. He reached into the pocket and found eight packages or bundles of heroin marked “the bomb.” After he found the heroin, Dodson conducted a full search incident to an arrest, including all pockets and shoes and socks.

Officer Neddo and another officer then went to room 269. Sandra Wright was in the room. The officers asked if anyone else was there. She said no, and gave them permission to look around. The officers saw two packets of ten bundles each of heroin lying beside the sink in an area that was part of the main room. This heroin was also marked “the bomb.” The Appellant and the other male, Keith Ellison, were brought back to the room. The Appellant said that the room was his, and signed a written consent to search. A search produced $2,410 in small bills from the nightstand, including $120 of the recorded currency that had been given to the Cl that morning.

[150]*150Ten days later, on April 17, 1995, an employee of Massey Vending Company was servicing a vending machine at the Day’s Inn. He dropped his keys, and when he bent to pick them up he noticed a bag tucked inside the machine where the cooling unit sits. He turned the bag over to the police. It contained a digital scale, some ammunition, and about seventy bundles of heroin. The bundles were marked “the bomb,” as was the heroin found on the Appellant and in his hotel room, as well as the heroin Parker sold to the CL

The Appellant was charged with four counts of possession of heroin with intent to distribute, based on: (1) the transaction with Parker and the Cl; (2) the heroin found in the Appellant’s jacket pocket; (3) the heroin in plain view next to the sink in the hotel room; and (4) the heroin found in the vending machine ten days later. The case was tried on July 14-18, 1995. The jury convicted the Appellant on all four counts. The court sentenced him to four consecutive sentences of one-to-fifteen years.

We address first the admissibility of the heroin found by police in the Appellant’s jacket pocket. The Appellant does not contest the validity of the stop, but asserts that police exceeded the scope of a valid “stop and frisk” by reaching inside his jacket pocket to recover the heroin. With regard to the “stop and frisk” exception to the Fourth Amendment’s prohibition of unreasonable search and seizure, this Court has held:

Where a police officer making a lawful investigatory stop has reason to believe that an individual is armed and dangerous, that officer, in order to protect himself and others, may conduct a search for concealed weapons, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be certain that the individual is armed; the inquiry is whether a reasonably prudent man would be warranted in the belief that his safety or that of others was endangered. U.S. Const, amend. IV. W.Va. Const, art. Ill, § 6.

Syl. Pt. 3, State v. Choat, 178 W.Va. 607, 363 S.E.2d 493 (1987). This exception gives officers the authority to conduct a limited pat-down for weapons. Id. at 613, 363 S.E.2d at 499. The Appellant asserts that the war-rantless search of the inside of his jacket pocket was not reasonably related in scope to the circumstances which justified the initial stop. He cites State v. Hlavacek, 185 W.Va. 371, 407 S.E.2d 375, 380 (1991), in which this Court concluded that a search was unconstitutional when a police officer required a suspect to empty his pockets incident to a frisk. The Appellant asserts that in his case, as in Hlavacek, the scope of a reasonable frisk for weapons was exceeded.2

It is not necessary, however, to rely on the stop and frisk exception in this case. It appears from the record that the police had probable cause to arrest the Appellant prior to the stop, and thereby had the authority to make a full search incident to the arrest. “ ‘ “Probable cause to make an arrest without a warrant exists when the facts and circumstances within the knowledge of the arresting officers are sufficient to warrant a prudent man in believing that an offense has been committed.” Point 1 Syllabus, State v. Plantz, [155] W.Va. [24] [180 S.E.2d 614].’ Syllabus Point 3, State v. Duvemoy, 156 W.Va. 578, 195 S.E.2d 631 (1973).” Syl. Pt. 7, State v. Craft, 165 W.Va. 741, 272 S.E.2d 46 (1980).

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Bluebook (online)
483 S.E.2d 273, 199 W. Va. 144, 1996 W. Va. LEXIS 258, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-rahman-wva-1996.