State v. Casdorph , 159 W. Va. 909 ( 1976 )

230 S.E.2d 476 (1976)

STATE of West Virginia
v.
Donald Hartford CASDORPH alias "Little Red Bird".

No. 13610.

Supreme Court of Appeals of West Virginia.

December 7, 1976.

Love, Wise, Robinson & Woodroe, Harry P. Henshaw, III and Thomas J. McQuain, Jr., Charleston, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., and E. Leslie Hoffman, III, Asst. Atty. Gen., Charleston, for defendant in error.

NEELY, Justice:

This is an appeal from a conviction of robbery under W.Va.Code, 61-2-12 [1961]. The defendant, Donald Hartford Casdorph alias "Little Red Bird", assigned as errors: (1) the indictment was defective because it failed to charge the defendant with the crime of robbery; (2) the defendant's pretrial confession was involuntary; and, (3) the identification of the defendant at the police station was unduly suggestive and should have been excluded. We find no error and affirm.

At approximately 4:20 a. m. on December 19, 1973, Thomas Edward Fink, a Skyline Cab Company driver, was dispatched to pick up passengers on Route 21 at a gasoline station. Mr. Fink went to the station and picked up two young men, one of whom sat in the front seat with the driver while the other sat in the rear.

The driver went to the designated destination, and stopped the cab. The passenger in the rear asked the driver for change first for a twenty and then for a ten dollar bill. The driver said that he could make change for the ten, immediately after which the rear passenger grabbed the driver by the neck and stated, "You sonofabitch, we're going to have to kill you if you don't give us your money," and proceeded to beat the driver. The driver gave the passenger in the rear seat his money.

The rear seat passenger then stepped out of the vehicle and moved to the front seat on the driver's side, placing the driver between his two passengers. There followed a drive in which the person formerly in the rear drove the vehicle onto an Interstate highway, hit numerous guardrails, and, as a result, began to tear "the cab all to pieces." The driver soon stopped and ordered the victim to take the battery out of the car, a task which the victim could not complete. The assailants wiped their fingerprints from the cab and pulled the radio transmitter out and threw it over the hill. Then the assailants fled. The cab driver, who was unable to drive adequately because his glasses had been broken by the assault, found his way to a telephone and called his dispatcher to notify him of what had happened. After making the call, he returned to the cab garage in Charleston, from where two city policemen took him to a hospital for treatment.

On December 20, 1973, the defendant was arrested by Trooper D. R. Bush of the West Virginia Department of Public Safety and taken to the State Police Barracks at Cross Lanes, West Virginia. Upon arrival at the barracks, the defendant was advised of his rights, and the defendant executed a written waiver of his rights. A short time later the defendant signed a statement indicating his culpability in the robbery. Later, Trooper Bush called Mr. Frank Lyons, the supervisor for the cab Company, and asked him to locate the victim and instruct the victim to go to the Police Barracks where, the Trooper indicated, a suspect was in custody. Mr. Lyons notified the driver of the officer's instruction, and the victim proceeded to the State Police Barracks where he had an unarranged opportunity to observe the defendant, after which he identified the defendant as the person who attacked and robbed him.

I

Defendant complains that there is no allegation in the indictment that the defendant "specifically took the property from the person or in the presence of the victim" and, therefore, the indictment fails to charge the crime for which he was tried.

The indictment, in pertinent part, is as follows:

"The Grand Jurors * * *, upon their oaths present, that DONALD HARTFORD CASDORPH, alias ``Little Red Bird' and CHESTER RAY GIBSON, on the ___ day of December, 1973, in the said County of Kanawha, in and upon one Thomas Edward Fink an assault did feloniously make, and him the said Thomas Edward Fink did then and there feloniously put in bodily fear, and Eleven Dollars in lawful United States Currency of the value of $11.00 of money, property, effects, goods and chattels of the said Thomas Edward Fink and lawfully in his custody and control, and against his will, then and there feloniously and violently did steal, take and carry away * * *."

The defendant notes that the indictment omits the prepositional phrase, "* * * from the person of the said * * *," as is contained in the statutory form indictment for robbery, W.Va.Code, 62-9-6 [1931].

The test of the sufficiency of an indictment is whether it adequately informs the accused of the nature of the charge pending against him. State v. Loveless, 139 W.Va. 454, 80 S.E.2d 442 (1954). It is necessary for an indictment to set forth all the essential elements of the crime; surplusage is not required. The indictment in this case clearly makes out a case of robbery by violence and sufficiently apprises the accused of the charge which he must face. The indictment detailed a felonious assault upon a named victim, a felonious putting in bodily fear, a felonious taking of currency in a named amount against the will of the victim, and recited that the currency was "lawfully in [the victim's] custody and control." Our statute of jeofails, W.Va.Code, 62-2-11 [1923]^[1] cures any technical defect in an indictment when the indictment sufficiently apprises the accused of the charge which he must face.

II

The defendant maintains that the State Police officer's adjuration to confess and offers of help made the defendant's confession involuntary. The following colloquy during the motion to suppress indicates that while the police officer was friendly, encouraged the defendant to confess, and promised in vague terms that he would help the defendant, no specific promises or threats were made.

"Q Did you act friendly towards him?

A Always friendly.

Q Did you encourage him to cooperate with you?

A Yes, sir.

Q Did you tell him you'd try to help him out, if he did?

A I told him it would be easier on him if he would try to cooperate. I advised him, if you got a lot of trouble, the best thing to do is try to ratify [sic] it.

Q Did you agree to go to bat for him with the Prosecutor or Court?

A I advised him if there was anything I could do. I'd be happy to do it.

Q Did you do anything?

A No, sir.

Q This was all before he signed the waiver?

A No, sir. He already signed his waiver.

* * * * * *

Q Before you took his statement from him, didn't you in fact tell him that you'd help him out if he cooperated?

A No, sir.

Q You admit to saying that you say it was after you got the statement?

A I have always helped Donald. I have always helped him.

Q And you indicated that you would?

A Not that way. No, sir.

Q Not what way?

A Not that I was going to run up and ask the Prosecutor or Judge to do something for him."

During the motion to suppress the defendant took the stand and his account of the officer's conduct corroborated the police officer's; the defendant did not assert that the police officer made any promise to help him with the prosecuting authorities, nor did defendant assert that he was cajoled or intimidated into confessing either by a promise of leniency or a threat of harsher punishment. The record further reveals that the police officer had known the defendant for seven years before the crime and their relationship had been friendly. The defendant on one occasion asked Trooper Bush to contact his brother to let the brother know that the defendant was all right. It is these "offers of help" and statements by the police which defendant's counsel argues constituted coercion. The testimony of Trooper Bush, both on direct and cross examination, consistently indicates that any offer of help took place after the waiver of the defendant's rights. In West Virginia, once a defendant has knowingly, voluntarily, and intelligently waived his right to remain silent and consents to enter into a dialogue with police officers, a mere adjuration to confess for the good of defendant's soul or his mental health does not constitute the type of threat or intimidation which our law seeks to avoid, nor does a general offer of friendship unaccompanied by a specific promise to exact leniency from the prosecuting authorities constitute the type of benefit which would vitiate the voluntary quality of a confession.^[2]

III

The last assignment of error is that the pretrial identification of the defendant was unduly suggestive. The record reveals that the victim was called to the State Police Barracks by Frank Lyons, his supervisor. Upon his arrival at the State Police facility, the victim entered a room with Mr. Lyons, Mr. Lyons asked the victim "* * * had I seen the boy that robbed me or beat me up." The victim replied in the negative. The police officer was not present when the victim arrived.

As a result of the victim's response, Mr. Lyons instructed the victim to go back into another room and see if he could identify his assailant. The victim did so and recognized the defendant. The victim testified that this identification was made solely at the request of Mr. Lyons and was not prompted by Trooper Bush. Afterwards the victim advised Trooper Bush that he had seen and recognized the defendant at Mr. Lyons' request.

The record reveals that at the time of the offense, the victim was able to get a close look at the defendant, his features, and his build, and noted that the defendant limped. The victim testified that his recollection of the defendant was vivid; that he had ample opportunity to get a good look at the defendant's features because the dome light of the cab was on; and, that after the defendant assaulted him the defendant got into the front seat of the cab and sat next to him during their wild ride down the Interstate. Consequently the victim could make a positive in-court identification based upon his extensive observation of the defendant at the time of the crime.

While we recognize the important policy objective of avoiding mistaken identifications resulting from suggestive lineups or other improper techniques discussed in United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967); and Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967), we find that Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972) articulates the correct rule for application to this case. In Neil v. Biggers the U. S. Supreme Court said:

"[T]he central question [is] whether under the ``totality of the circumstances' the identification was reliable even though the confrontation procedure was suggestive. As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation."

We have consistently held to the "totality of the circumstances" doctrine in our recent cases, See, State v. Slie, W.Va., 213 S.E.2d 109 (1975); State v. Stollings, W.Va., 212 S.E.2d 745 (1975); State v. Moore, W.Va., 212 S.E.2d 608 (1975) and find as a matter of fact from the record in the case that there was no prejudice to the defendant by virtue of the inadvertent confrontation between the prosecuting witness and the defendant at the police station.

For the foregoing reasons the judgment of the Intermediate Court of Kanawha County is affirmed.

Affirmed.

NOTES

[1] W.Va.Code, 62-2-11 [1923] provides:

"Judgment in any criminal case, after a verdict, shall not be arrested or reversed upon any exception to the indictment or other accusation, if the offense be charged therein with sufficient certainty for judgment to be given thereon, according to the very right of the case."

[2] We have also considered defendant's allegation that because of his poor physical condition resulting from a burn injury to his foot prior to his arrest, that he was peculiarly susceptible to suggestion and for that reason the confession was involuntary and find it without merit.