Lisa A. Moncey
Assistant Attorney General
Charleston, West Virginia
Counsel for Appellee
Rebecca M. Bell
Bell & Griffith
Princeton, West Virginia
Counsel for Appellant
This Opinion was delivered Per Curiam.
1. "Law enforcement officers do not have authority to promise
that in exchange for information a person accused will not be
prosecuted for the commission of a crime, and such a promise is
generally unenforceable." Syllabus, State v. Cox, 162 W. Va. 915,
253 S.E.2d 517 (1979).
2. "It is sufficient in order for an object to be introduced
in evidence that such object be satisfactorily identified as being
in substantially the same condition as at the time of the
occurrence in question." Syl. Pt. 7, Johnson v. Monongahela Power
Co., 146 W. Va. 900, 123 S.E.2d 81 (1961).
The Appellant, Angelo Maurice Sharpless, appeals from an order
entered by the Circuit Court of Mercer County on March 9, 1992,
upholding a jury conviction for receipt of stolen property.
Appellant assigns as error abuse of discretion on the part of the
prosecuting attorney in charging him given an alleged agreement to
the contrary, the improper admission of evidence, and ineffective
assistance of counsel. Having fully reviewed the record in this
matter and finding no reversible error, we affirm the decision of
the circuit court.
The home of J. Harvey Lett was burglarized between the hours
of 8:00 a.m. and 7:00 p.m. on June 11, 1991. Although Mr. Lett
notified the police of the burglary on the evening of June 11,
1991, he did not discover until the following morning that several
pieces of jewelry were missing. Among the missing items were a
diamond Longiene watch and a diamond initial ring, both of which
had Mr. Lett's initials inscribed thereon. After realizing the
additional theft, Mr. Lett called several local jewelry stores in
Princeton, West Virginia, to alert them to the possibility of
someone attempting to sell his jewelry. One of the retailers with
whom Mr. Lett spoke was Sheila Kennedy at J & J Jewelers. Mr. Lett
asked Ms. Kennedy to contact him if anyone brought in jewelry for
sale that fit the description of his watch and ring.
Around noon on June 12, 1991, Appellant entered J & J Jewelers
with a diamond Longiene watch and a diamond ring, both of which
were engraved with Mr. Lett's initials. Appellant initially handed
Ms. Kennedy the ring to test the authenticity of the diamond
encased within it. Ms. Kennedy tested the ring and informed
Appellant that the diamond in the ring was real. Appellant then
asked Ms. Kennedy if she could determine whether the diamonds in
the watch were real. While examining the watch, Appellant asked
Ms. Kennedy if J & J Jewelers purchased jewelry and she responded
affirmatively. Explaining that she would have to remove the back
from the watch to examine the diamonds around the watch face, Ms.
Kennedy went to a back room in the store and called Mr. Lett's
office pretending to offer the jewelry in sale. Mr. Lett notified
the police and two officers arrived at J & J Jewelers within ten or
Ms. Kennedy turned the watch directly over to the police upon their arrival at the store. Officers Hudgins and LaRue proceeded to question the Appellant about the jewelry. The Appellant stated that the jewelry belonged to his grandfather. Appellant was arrested for receipt of stolen property and taken to the station for interrogation by Detective Belcher.
Detective Belcher gave Appellant his Miranda rightsSee footnote 1 and later
took a taped statement from him. The statement was suppressed
based on the trial court's determination that sufficient guarantees
of voluntariness were not present to warrant admission of the
statement into evidence.See footnote 2
While there is no question when and how the watch was placed
in the custody of the police officers, there is some confusion
regarding the circumstances surrounding their receipt of the ring.
Officer Hudgins has no memory regarding removing or receiving the
ring from the Appellant while in the jewelry store. At some point
following the lawful arrest of Appellant, the ring came into the
possession of Officer Hudgins as he prepared a descriptive tag for
both the ring and the watch and placed both items in an evidence
bag while Detective Belcher was interrogating Appellant. The trial
court ruled, following much testimony, that because the arrest was
lawful and because the stolen property at issue was easily
identifiable due to the engraved initials of Mr. Lett on both
items, there was no basis for excluding the ring from evidence
pursuant to either an illegal arrest objection or a chain of
After Appellant gave his statement to Detective Belcher on June 12, 1991, he was released. He was not charged with the felony of receiving stolen property at that time. Appellant contacted Detective Belcher twice via the telephone and once in person at the station with information concerning the commission of crimes. Detective Belcher states that Appellant did provide information regarding a stolen lawnmower, but no arrest was made based on that information. At some point, Appellant's parole officer notified Detective Belcher that Appellant could not continue to provide information to Detective Belcher because such acts violated Appellant's parole agreement by requiring him to associate with criminals.See footnote 3 Appellant was indicted on August 8, 1991, for the offense of receiving stolen property in violation of West Virginia Code § 61-3-18 (1992).
By order dated January 15, 1992, Appellant's original counsel
withdrew and Rebecca Bell was appointed to represent Appellant. A
suppression hearing was held on January 21, 1992, which resulted in
a ruling that the taped conversation of Appellant would be
suppressed. The trial on the charges of receipt of stolen property
occurred on January 22, 1992. The jury found Appellant guilty of
the charge of receipt of stolen property and Appellant was
sentenced to not less than one nor more than ten years for the
offense. The trial court denied Appellant's motion for acquittal
or in the alternative motion for a new trial by order dated March
9, 1992. It is from that order that Appellant brings this appeal.
Upon examination, each of the three assignments of error
identified by Appellant are without merit. Appellant argues
initially that the prosecuting attorney abused his discretion by
filing charges against him for receipt of stolen property, claiming
that such act was in violation of an alleged agreement to the
contrary. Appellant alleges that Detective Belcher promised not to
press charges against him for receiving the stolen property if he
would provide Detective Belcher with evidence of other crimes. As
evidence of this agreement, Appellant cites the fact that he was
not processedSee footnote 4 for the crime following his interrogation by
Detective Belcher combined with the fact that only after his parole
officer notified Detective Belcher that Appellant could not
continue to act as an informant was he charged with the crime at
Appellant suggests that the interrogation, followed by no
immediate criminal processing, his cooperation with Detective
Belcher, and the timing of when he was actually charged with the
felony offense constitutes the requisite "substantial evidence"
needed to document the alleged agreement. State v. Wayne, 162 W.
Va. 41, 42, 245 S.E.2d 838, 840 (1978); overruled on other grounds,
State v. Kopa, 173 W. Va. 43, 311 S.E.2d 412 (1983). In Wayne,
this Court observed that
[w]hile we recognize a plea bargain
agreement may be specifically enforced in some
instances, . . . , that remedy is not
available unless the party seeking specific
performance demonstrates he has relied on the
agreement to his detriment and cannot be
restored to the position he held before the
agreement. However, mere negotiation cannot
be transformed into a consummated agreement
merely by an exercise of the defendant's
imagination. While we do not require that a
plea bargain agreement be written, although
that is the far better course, we do require
substantial evidence that the bargain was, in
fact, a consummated agreement, and not merely
a discussion. Court approval, whether formal
or informal is advised.
Id. at 42-43, 245 S.E.2d at 840-41 (emphasis supplied and footnotes omitted). Applying this standard to the facts in Wayne, this Court reasoned that no agreement had been reached because "[n]o written bargain appears in the record; the terms of the alleged agreement are not developed; the defendant has given no evidence of reliance; and, the defendant has not shown that his position was irrevocably altered." Id. at 43, 245 S.E.2d at 841.
Like the defendant in Wayne, Appellant's evidence falls far short of the "substantial evidence" standard established in Wayne. See 162 W. Va. at 42, 245 S.E.2d at 840-41. In addition to the absence of a written agreement, the record is devoid of even one specific provision regarding the alleged agreement. Because Appellant chose not to testify, the only evidence proffered concerning the alleged agreement was the testimony of Detective Belcher at the suppression hearing that Appellant:
told me he was on parole. He didn't want to
go back to prison and that he could help me
with some things that was goin on--some drugs
and stuff. I relayed to him that I didn't
work drugs, that we could probably work
somethin [sic] out but I wanted to go ahead
and take his statement now and then I'd talk
to him about it later.
Detective Belcher also testified at the suppression hearing that
[Appellant] said that he could help me solve
some of those [burglaries], after I mentioned
them. And I said well, I'll tell you what. I
said, if you will help me with these, I'll see
what I can do at a later date to try and help
you when it comes down. I said, but I'm
probably gonna have to go ahead and charge you
with this, cause I'm gonna have to talk with
the Prosecutor and see what he wants to do.
The record in this case suggests that at best there was some discussion concerning the exchange of information for possible leniency during the fifteen minute intervalSee footnote 5 between the reading of Miranda rights to Appellant and the taking of his statement.
Even if Detective Belcher had wanted to enter into an
agreement with Appellant, he was without authority to do so. As
this Court recognized in the syllabus of State v. Cox, 162 W. Va.
915, 253 S.E.2d 517 (1979), "[l]aw enforcement officers do not have
authority to promise that in exchange for information a person
accused will not be prosecuted for the commission of a crime, and
such a promise is generally unenforceable." Therefore, even if an
agreement had been reached between Detective Belcher and Appellant
it would be unenforceable.
Appellant conclusorily asserts that notwithstanding Detective
Belcher's lack of authority, because he relied to his detriment on
the alleged agreement, it is enforceable. We find no such evidence
and accordingly rule that Appellant has failed to meet his burden
of demonstrating detrimental reliance. See Cox, 162 W. Va. at 924,
253 S.E.2d at 521-22. Moreover, as we discussed in Cox,
undertaking the role of a police informant "does not necessarily
indicate the defendant was acting in reliance on a plea bargain for
immunity from state prosecution." Id. at 924, 253 S.E.2d at 522.
Appellant may have chosen on his own to supply the police with
information, having decided that it was in his best interest to
cooperate in the hope of receiving leniency. See id. As we noted
above, the trial court ruled that Appellant's confession was
inadmissible based on Detective Belcher's comments regarding
possible leniency if Appellant cooperated by providing information
about other criminal activity. See note 2, supra.
As his second assignment, Appellant asserts that the trial
court improperly admitted evidence of the ring and accordingly,
erred by not declaring a mistrial. Because the arresting officers
cannot remember who obtained the ring from the Appellant, he
contends that the ring was illegally seized. The facts of this
case do not support this contention. Appellant was lawfully
arrested at the jewelry store after the police officers received
the watch from the clerk on the basis of probable cause and the
ring was then obtained at some point after that arrest. Ms.
Kennedy testified that upon being handed the jewelry by Appellant,
she immediately noticed the engraved initials. The ring was the
first of the two items examined by Ms. Kennedy. Following her
inspection of the diamond, Ms. Kennedy handed the ring back to
Appellant who remained in the store until his arrest. He was in
the custody of the police when the ring was collected as evidence.
Since no allegation of an unlawful arrest has been made, it appears
that the ring was tendered to the police at some point incident to
a lawful arrest.
Given the lawful arrest, Appellant's only legitimate objection
concerning the ring's admission into evidence would be a chain of
custody concern arising from the possibility of tampering,
alteration or substitution. Yet, the ring is not prototypical of
evidence which is subject to change. Mr. Lett's initials on the
ring, which were observed by Ms. Kennedy upon her examination of
the ring on June 12, 1991, and later used at trial by her to
identify the evidence virtually eliminate the possibility of
tampering, substitution, or alteration. Moreover, as this Court
recognized in syllabus point seven of Johnson v. Monongahelia Power
Co., 146 W. Va. 900, 123 S.E.2d 81 (1961), "[i]t is sufficient in
order for an object to be introduced in evidence that such object
be satisfactorily identified as being in substantially the same
condition as at the time of the occurrence in question." Given
that Ms. Kennedy identified the ring at trial as the same ring
given to her on June 12, 1991, by Appellant and that the easily-identifiable ring remained in Appellant's possession at all times
prior to the arrest, we conclude that the trial court did not abuse
its discretion in failing to declare a mistrial on the grounds of
improper admission of evidence.
Appellant also contends that the evidence was inadequate to
support the verdict based on his position that the State failed to
prove how he obtained the stolen property. We summarily dispense
with this argument by referencing State v. Williams, 172 W. Va.
295, 305 S.E.2d 251 (1983), in which we stated that "[w]here
circumstantial evidence concurs, as to time, place, motive, means
and conduct, in pointing to the accused as the perpetrator of the
crime, it is sufficient to support a conviction." Id. at 301, 305
S.E.2d at 257.
Appellant's final assignment of error is that he received
ineffective assistance of counsel. His primary complaint stems
from the fact that his trial counsel was appointed only seven days
before the trial.See footnote 6 Notwithstanding the admittedly short period of
time between her appointment and the trial, this Court's review of
the record satisfies us that Ms. Bell "exhibited the normal and
customary degree of skill possessed by attorneys who are reasonably
knowledgeable of criminal law." State v. Thomas, 157 W. Va. 640,
665, 203 S.E.2d 445, 461 (1974). Appellant contends that had Ms.
Bell had more time to prepare for his case, she would have been
successful in suppressing the ring from evidence. The record
documents that Ms. Bell did contest the admission of the ring into
evidence but as discussed above, there were no valid grounds for
suppressing this evidence. Appellant also points to the fact that
Ms. Bell struck the only black juror during voir dire. While Ms.
Bell did strike this juror, the record reveals that she did so with
the express concurrence of Appellant. As this Court observed in
Thomas, "a defendant is not constitutionally guaranteed such
assistance of counsel as will necessarily result in his acquittal."
Id. at 666, 203 S.E.2d at 461. Like the first two assignments of
error, Appellant's claim of ineffective assistance of counsel is
similarly not substantiated by the record in this case.
Based on the foregoing, the decision of the Circuit Court of
Mercer County is hereby affirmed.
Footnote: 1Miranda v. Arizona, 384 U.S. 436 (1966).
Footnote: 2The circuit court relied on the fact that there was a period of time prior to the taking of Appellant's statement during which Appellant and Detective Belcher discussed the possibility of an agreement being reached which would involve the supply of information by Appellant concerning other criminal activity in exchange for Detective Belcher's help in connection with the receipt of stolen property charge. Because this discussion concerning a possible agreement ensued prior to the taking of a taped statement from Appellant by Detective Belcher, the trial court was concerned that the statement had not been given freely, voluntarily, and independent of the discussion concerning the agreement.
Footnote: 3Detective Belcher testified that he knew Appellant was on parole at the time he interrogated Appellant on June 12, 1991.
Footnote: 4By processed, Appellant references the fact that he was not booked or fingerprinted, nor was a "CDR" filled out on him.
Footnote: 5While Appellant apparently places much importance on the fifteen minute time lapse prior to the taking of his statement, the lapse does not in and of itself prove that an agreement was reached. Detective Belcher explained that Appellant was upset at the prospect of returning to prison and was therefore giving a "sob story" in the hope of avoiding prosecution.
Footnote: 6Appellant's prior counsel withdrew due to his unavailability for trial which was scheduled for January 22, 1992.