State of WV v. Woods
Annotate this Case
January 1995 Term
___________
No. 22555
___________
STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee
v.
BOBBY WOODS,
Defendant Below, Appellant
___________________________________________________
Appeal from the Circuit Court of Nicholas County
Honorable Gary L. Johnson, Judge
Civil Action No. 93-F-19
AFFIRMED
___________________________________________________
Submitted: May 30, 1995
Filed: June 19, 1995
Mark D. Hudnall
Summersville, West Virginia
Attorney for the Appellant
Darrell V. McGraw, Jr.
Attorney General
Scott E. Johnson
Assistant Attorney General
Jacquelyn I. Custer
Senior Assistant Attorney General
Charleston, West Virginia
Attorneys for the Appellee
This Opinion was delivered PER CURIAM.
JUSTICE BROTHERTON did not participate.
JUDGE FOX sitting by temporary assignment.
SYLLABUS BY THE COURT
1. "As a condition precedent to the admissibility of
former testimony under W. Va. R. Evid. 804(b)(1), the proponent of
such testimony must show the unavailability of the witness. If the
witness is available, the in-court testimony of that witness is
preferred." Syl. pt. 3, Rine v. Irisari, 187 W. Va. 550, 420 S.E.2d 541 (1992).
2. "In order to satisfy its burden of showing that the
witness is unavailable, the State must prove that it has made a
good-faith effort to obtain the witness's attendance at trial. This
showing necessarily requires substantial diligence." Syl. pt. 3,
State v. James Edward S., 184 W. Va. 408, 400 S.E.2d 843 (1990).
3. "Sentences imposed by the trial court, if within
statutory limits and if not based on some [im]permissible factor,
are not subject to appellate review." Syl. pt. 4, State v.
Goodnight, 169 W. Va. 366, 287 S.E.2d 504 (1982).
4. "It is the extremely rare case when this Court will
find ineffective assistance of counsel when such a charge is raised
as an assignment of error on a direct appeal. The prudent defense
counsel first develops the record regarding ineffective assistance
of counsel in a habeas corpus proceeding before the lower court,
and may then appeal if such relief is denied. This Court may then
have a fully developed record on this issue upon which to more
thoroughly review an ineffective assistance of counsel claim." Syl. pt. 10, State v. Triplett, 187 W. Va. 760, 421 S.E.2d 511
(1992).
Per Curiam:
This case is before this Court upon an appeal from the
final order of the Circuit Court of Nicholas County, West Virginia,
entered on November 12, 1993. Pursuant to that order, the
appellant, Bobby Woods, was sentenced to a determinate term of
thirty-six years in the penitentiary following his conviction by a
jury of aggravated robbery. W. Va. Code, 61-2-12 [1961]. For the
reasons stated below, we affirm.
I
On the evening of November 27, 1992, at approximately
9:45 p.m., a man wearing a maroon jacket and carrying a shotgun
entered a Go-Mart store in Craigsville, Nicholas County, West
Virginia. Wearing a pair of pantyhose over his head to disguise
his features, the man ordered the clerk, who was otherwise alone in
the store, from the back of the store to the front where the cash
register was located. At gunpoint, the clerk placed food stamps,
checks, credit card slips, lottery tickets, change and two hundred
to three hundred dollars in bills in a white plastic Go-Mart bag
and handed it to the assailant. The man then grabbed the clerk,
forcibly kissed her, and exited the store. He then entered a
nearby automobile in which two other men were waiting, and the car
was driven away.
Across the street, three men, Parley R. Nicely, James
Withrow and another, observed the robbery. They followed the
suspects' car in their own automobile until they were able to
identify the suspects' car as a blue Chevrolet Nova, license plate number NXL-376. The observers had noticed that the assailant in
the store was wearing a maroon jacket. After following the
suspects, the observers returned to the Go-Mart and reported their
information to the police.
Thereafter, police radio dispatches were issued, and a
general search for the suspects began. At approximately 11:00
p.m., Assistant State Fire Marshall Gregory P. Greer, who was also
a law enforcement officer, spotted the suspects' car, which
contained three passengers. Greer followed the car, a Chevrolet
Nova, in his vehicle until it parked at the residence of Carlos
Copen, in Craigsville. Greer drew his weapon and kept the suspects
in the Chevrolet Nova until the arrival of other officers.
Soon after, Nicholas County Deputy Sheriffs Robinson,
Hodovan and Spinks arrived at the scene. The three suspects, Roy
Kesterson, Carlos Copen and Bobby Woods, were removed from the car,
a blue Chevrolet Nova, license number NXL-376, and placed under
arrest.
Bobby Woods had been lying in the back seat of the car,
and the officers found and removed a loaded shotgun and a white
plastic Go-Mart bag from the back seat floorboard. Woods had been
lying upon a wad of bills in the back seat, and that money, plus
the bills found in his pockets, totalled one hundred eighty-one
dollars. Also found upon the person of Bobby Woods were shotgun
shells, some food stamps and change consisting of thirty quarters,
thirty-seven dimes, twenty-nine nickels and forty-seven pennies. In addition, at the time of his arrest, Bobby Woods was wearing a
maroon jacket under a sweater or sweat shirt.
Carlos Copen had been seated in the passenger side of the
front seat of the Chevrolet Nova, and Roy Kesterson had been seated
behind the wheel. Although no property was taken from Carlos
Copen, shotgun shells and a small amount of money were found upon
Roy Kesterson. No checks, credit card slips or lottery tickets
were found.
In January 1993, Roy Kesterson, Carlos Copen and Bobby
Woods were indicted by a Nicholas County grand jury for the felony
offense of aggravated robbery. Pursuant to W. Va. Code, 61-2-12
[1961], aggravated robbery is "robbery by partial strangulation or
suffocation, or by striking or beating, or by other violence to the
person, or by the threat or presenting of firearms, or other deadly
weapon or instrumentality whatsoever [.]" State v. Neider, 170
W. Va. 662 n. 1, 295 S.E.2d 902 n. 1 (1982); State v. Harless, 168
W. Va. 707, 711, 285 S.E.2d 461, 464 (1981).
The defendants' trials were severed, and a June 1993
trial of Bobby Woods resulted in a mistrial. The retrial of Bobby
Woods, which is the basis of this appeal, began on September 15,
1993. At trial, Woods asserted the defense of alibi. In
particular, he testified that at the time of the robbery he was
drinking at a local bar known as the D & D Tavern and that he left
the bar after 10:00 p.m. He then talked to and shared liquor with
an unidentified female just outside the bar until sometime after
11:00 p.m. and later walked to the Copen residence where he was staying. Upon arriving at the Copen residence, Woods got into the
Chevrolet Nova, then unoccupied, and passed out until the time of
his arrest.
In addition, Bobby Woods testified that he never noticed
a shotgun in the back seat floorboard of the car. He further
stated that although he was wearing a maroon jacket that night, he
possessed the food stamps because he was a State food stamp
recipient and, also, that he possessed the shotgun shells because
he had sold a different shotgun that day and forgot to give the
shells to the buyer. The owner of the D & D Tavern testified that
Bobby Woods was in the bar until 10:00 p.m.
The State, however, in addition to submitting evidence
concerning the robbery, investigation and arrest, elicited the
testimony of the Go-Mart store clerk who identified Bobby Woods at
trial as the assailant. On September 20, 1993, the jury found
Bobby Woods guilty of aggravated robbery. Subsequently, Woods was
sentenced to a determinate term of thirty-six years in the
penitentiary.
II
The principal issues of concern to this Court relate to
the admission at the September 1993 trial of the former testimony
of Parley R. Nicely and James Withrow from the June 1993 trial, and
the sentence of Bobby Woods to a determinate term of thirty-six
years in the penitentiary.
As stated above, Parley R. Nicely and James Withrow and
another observed the robbery and identified the suspects' car as a blue Chevrolet Nova, license plate number NXL-376. Nicely and
Withrow testified to that effect at Bobby Woods' June 1993 trial.
They were not found, however, for the September 1993 retrial.
Moreover, the third person with Nicely and Withrow on the night of
the robbery did not testify at the retrial and has not been
mentioned in this appeal.
Following an in camera hearing, the circuit court
admitted the former testimony of Nicely and Withrow before the
September 1993 jury. Specifically, the circuit court found that,
pursuant to Rule 804 of the West Virginia Rules of Evidence, the
State had made a reasonable effort to procure the attendance of
Nicely and Withrow at the September 1993 trial. Rule 804 provides,
in part:
(a) Definition of Unavailability. -
'Unavailability as a witness' includes
situations in which the declarant -
. . . .
(5) is absent from the hearing and the
proponent of his statement has been unable to
procure his attendance . . . by process or
other reasonable means.
. . . .
(b) Hearsay exceptions. - The following
are not excluded by the hearsay rule if the
declarant is unavailable as a witness:
(1) Former Testimony. - Testimony given
as a witness at another hearing of the same or
a different proceeding, or in a deposition
taken in compliance with law in the course of
the same or another proceeding, if the party
against whom the testimony is now offered, or,
in a civil action or proceeding, a predecessor
in interest, had an opportunity and similar motive to develop the testimony by direct,
cross, or redirect examination.
In Rine v. Irisari, 187 W. Va. 550, 420 S.E.2d 541
(1992), we held in syllabus point 3 that "[a]s a condition
precedent to the admissibility of former testimony under W. Va. R.
Evid. 804(b)(1), the proponent of such testimony must show the
unavailability of the witness. If the witness is available, the in-
court testimony of that witness is preferred." Moreover, in the
criminal context, we stated in syllabus point 3 of State v. James
Edward S., 184 W. Va. 408, 400 S.E.2d 843 (1990), that "[i]n order
to satisfy its burden of showing that the witness is unavailable,
the State must prove that it has made a good-faith effort to obtain
the witness's attendance at trial. This showing necessarily
requires substantial diligence." See also syl. pt. 5, State v.
Dillon, 191 W. Va. 648, 447 S.E.2d 583 (1994); syl. pt. 1, State v.
Shepherd, 191 W. Va. 11, 442 S.E.2d 440 (1994); syl. pt. 2, State
v. Phillips, 187 W. Va. 205, 417 S.E.2d 124 (1992); State v. Judy,
179 W. Va. 734, 737-38, 372 S.E.2d 796, 799-800 (1988). See also,
Franklin D. Cleckley, Handbook on Evidence for West Virginia
Lawyers § 8-4. (3rd ed. Michie 1994); Milton Roberts, Annotation,
Sufficiency of Efforts to Procure Missing Witness' Attendance to
Justify Admission of His Former Testimony - State Cases, 3
A.L.R.4th 87 (1981).
In Shepherd, supra, this Court reversed the defendant's
conviction of malicious wounding because the record failed to
demonstrate that the State made a diligent effort to secure the attendance of an inculpatory witness. The circuit court, in
Shepherd, admitted the preliminary hearing testimony of the witness
pursuant to Rule 804(b)(1) of the West Virginia Rules of Evidence.
However, there was no evidence that the State ever sought out a
known relative of the witness in order to locate the witness'
whereabouts, and, further, after several continuances of the trial,
the State failed to subpoena the witness.
By contrast, the record in the case before this Court
plentifully shows diligence on the part of the State to secure the
attendance of Nicely and Withrow for the September 1993 trial.
Subpoenas were requested for Nicely and Withrow on August 27, 1993.
Furthermore, the circuit court conducted an in camera hearing
during which Deputy Sheriff Robinson and Eddie Jarrett, a process
server with the Nicholas County Sheriff's Office, testified
concerning the State's efforts to locate those witnesses. Robinson
and Jarrett indicated that they continuously looked for Nicely and
Withrow after the subpoenas were issued and sought assistance from
the Webster County Sheriff's Office upon the basis that the
witnesses might have been in Webster County. In particular,
Officer Robinson testified that he attempted to locate Nicely at
Nicely's mother's residence and sister's residence and at Nicely's
last place of employment, to no avail. Officer Jarrett testified
that he spoke with family members of James Withrow more than once
and was simply told that Withrow was "out of state."
Following the in camera hearing, the circuit court found
that the State had made a reasonable effort to procure the attendance of Nicely and Withrow at the September 1993 trial.
Additionally, the circuit court commented: "The former testimony
was in exactly the same trial and concerned exactly the same facts.
It concerned exactly the same attorneys, and the full right of
cross-examination was given at that time."
The record in this case supports a finding of substantial
diligence, within the meaning of State v. James Edward S., supra,
concerning the efforts of the State to locate Parley R. Nicely and
James Withrow. Accordingly, the circuit court did not commit error
in admitting their former testimony.
Bobby Woods further asserts that the determinate term of
thirty-six years, imposed by the circuit court, is disproportionate
under the circumstances of this case to the crime of aggravated
robbery. W. Va. Const. art. III, § 5 ("Penalties shall be
proportioned to the character and degree of the offense.").
Pursuant to W. Va. Code, 61-2-12 [1961], a person convicted of
aggravated robbery "shall be confined in the penitentiary not less
than ten years."
Generally, this Court stated in syllabus point 4 of State
v. Goodnight, 169 W. Va. 366, 287 S.E.2d 504 (1982): "Sentences
imposed by the trial court, if within statutory limits and if not
based on some [im]permissible factor, are not subject to appellate
review." See also syl. pt. 9, State v. Koon, 190 W. Va. 632, 440 S.E.2d 442 (1993); syl. pt. 9, State v. Hays, 185 W. Va. 664, 408 S.E.2d 614 (1991); 5B M.J. Criminal Procedure § 82 (1990). As to
aggravated robbery, we have recognized that W. Va. Code, 61-2-12 [1961], "vests broad discretion in the trial judge to impose a
determinate sentence in the penitentiary [.]" Carter v.
Bordenkircher, 159 W. Va. 717, 720, 226 S.E.2d 711, 714 (1976).
See also State ex rel. Faircloth v. Catlett, 165 W. Va. 179, 181,
267 S.E.2d 736, 737 (1980): "The Legislature chose not to deprive
trial courts of discretion to determine the appropriate specific
number of years of punishment for armed robbery, beyond ten."
An important decision with regard to proportionality of
sentencing, especially in robbery cases, is State v. Cooper, 172
W. Va. 266, 304 S.E.2d 851 (1983). In Cooper, this Court
recognized two tests to determine whether a sentence is so
disproportionate that it violates W. Va. Const. art. III, § 5.
The Cooper opinion states:
The first [test] is subjective and asks
whether the sentence for the particular crime
shocks the conscience of the court and
society. If a sentence is so offensive that
it cannot pass a societal and judicial sense
of justice, the inquiry need not proceed
further. When it cannot be said that a
sentence shocks the conscience, a
disproportionality challenge is guided by the
objective test we spelled out in Syllabus
Point 5 of Wanstreet v. Bordenkircher, 166
W. Va. 523, 276 S.E.2d 205 (1981): 'In
determining whether a given sentence violates
the proportionality principle found in Article
III, Section 5 of the West Virginia
Constitution, consideration is given to the
nature of the offense, the legislative purpose
behind the punishment, a comparison of the
punishment with what would be inflicted in
other jurisdictions, and a comparison with
other offenses within the same jurisdiction.
172 W. Va. at 272, 304 S.E.2d at 857.See footnote 1
In the subsequent cases of State v. Buck, 178 W. Va. 505,
361 S.E.2d 470 (1987), and State v. Martin, 177 W. Va. 758, 356 S.E.2d 629 (1987), we cited Cooper and upheld respective sentences
of thirty years and forty-five years.
This Court noted in State v. Ross, 184 W. Va. 579, 582,
402 S.E.2d 248, 251 (1990), that "[a]ggravated robbery in West
Virginia has been recognized as a crime that involves a high
potentiality for violence and injury to the victim involved." In
the case sub judice, Bobby Woods was convicted of a robbery in
which a female clerk, otherwise alone in the store, was forced from
the back of the store to the front of the store at gunpoint, made
to hand over the contents of the cash register and then forcibly
kissed. At sentencing, both the prosecutor and the circuit court
judge indicated that the woman may never recover from the effect of the crime. We have recognized that emotional or physical injury to
the victim of a robbery may be considered in the sentencing of a
convicted defendant. State v. Spence, 182 W. Va. 472, 482, 388 S.E.2d 498, 508 (1989); State v. Buck, supra, 178 W. Va. at 508,
361 S.E.2d at 473. Moreover, the record in this case indicates
that Woods violently resisted his arrest at the Copen residence.
After receiving the sentence of thirty-six years, a
motion for reduction of sentence was filed on behalf of Bobby
Woods. The circuit court conducted a hearing upon the motion
during which Woods' sister testified concerning Woods' history of
alcohol abuse, physical injuries and disinclination to commit
violent acts. Following the hearing, the circuit court concluded
that, having considered the pre-sentence report, the testimony of
Woods' sister, the violent and deliberate nature of the robbery and
all other matters of record, the motion for reduction of sentence
should be denied.
Upon a careful examination of the record, and in
consideration of the above authorities, this Court is of the
opinion that the determinate term of thirty-six years is not
disproportionate under the circumstances of this case to the
conviction of aggravated robbery. Rather, we believe the
sentencing determination of the circuit court is "protected by the
parameters of sound discretion [.]" Parker v. Knowlton
Construction Company, 158 W. Va. 314, 329, 210 S.E.2d 918, 927
(1975).
Finally, counsel for Bobby Woods, who is not the same
attorney who represented Woods at the September 1993 trial, raises
several issues concerning ineffective assistance of counsel. In
that regard, Woods asserts, inter alia, that his trial attorney
conducted an inadequate voir dire of the jury during the September
1993 trial and that his trial attorney failed to make certain
objections during the State's closing argument. Upon this record,
however, we are of the opinion that Woods' assertions concerning
ineffective assistance of counsel are more appropriately suited to
development in a habeas corpus proceeding. As this Court suggested
in syllabus point 10 of State v. Triplett, 187 W. Va. 760, 421 S.E.2d 511 (1992):
It is the extremely rare case when this
Court will find ineffective assistance of
counsel when such a charge is raised as an
assignment of error on a direct appeal. The
prudent defense counsel first develops the
record regarding ineffective assistance of
counsel in a habeas corpus proceeding before
the lower court, and may then appeal if such
relief is denied. This Court may then have a
fully developed record on this issue upon
which to more thoroughly review an ineffective
assistance of counsel claim.
Syl. pt. 13, State v. Kilmer, 190 W. Va. 617, 439 S.E.2d 881
(1993). Moreover, as we held in syllabus point 11 of State v.
England, 180 W. Va. 342, 376 S.E.2d 548 (1988): "Where the record
on appeal is inadequate to resolve the merits of a claim of
ineffective assistance of counsel, we will decline to reach the
claim so as to permit the defendant to develop an adequate record
in habeas corpus." See also syl. pt. 7, State v. Julius, 185 W. Va. 422, 408 S.E.2d 1 (1991); syl. pt. 3, State v. Bess, 185 W. Va.
290, 406 S.E.2d 721 (1991).See footnote 2
All other issues raised are without merit, and,
accordingly, the final order of the Circuit Court of Nicholas
County, entered on November 12, 1993, is affirmed.
Affirmed.
Footnote: 1
Citing Cooper, the two tests were described somewhat
differently in State v. Ross, 184 W. Va. 579, 402 S.E.2d 248
(1990):
The first [test] is a subjective test
and asks whether the sentence for a
particular crime shocks the conscience of the
Court and society. If the sentence is so
offensive that it cannot pass this test, then
inquiry need proceed no further. When it
cannot be said that a sentence shocks the
conscience, a disproportionality challenge
should be resolved by more objective factors
which include the consideration of the nature
of the offense, the defendant's past criminal
history, and his proclivity to engage in
violent acts.
184 W. Va. at 581-82, 402 S.E.2d at 250-51.
Footnote: 2
With regard to claims of ineffective assistance of
counsel, we recently held in syllabus points 5 and 6 of State v.
Miller, No. 22571, ___ W. Va. ___, ___ S.E.2d ___ (May 18, 1995):
5. In the West Virginia courts, claims
of ineffective assistance of counsel are to
be governed by the two-pronged test
established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984): (1) Counsel's performance was
deficient under an objective standard of
reasonableness; and (2) there is a reasonable
probability that, but for counsel's
unprofessional errors, the result of the
proceedings would have been different.
6. In reviewing counsel's performance,
courts must apply an objective standard and
determine whether, in light of all the
circumstances, the identified acts or
omissions were outside the broad range of
professionally competent assistance while at
the same time refraining from engaging in
hindsight or second-guessing of trial
counsel's strategic decisions. Thus, a
reviewing court asks whether a reasonable
lawyer would have acted, under the
circumstances, as defense counsel acted in
the case at issue
.
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