Filed: July 22, 1993
Darrell V. McGraw, Jr.
Jacquelyn I. Custer
Assistant Attorney General
Charleston, West Virginia
Attorney for the Appellee
Daniel L. McCune
Selitti & Nogay
Weirton, West Virginia
Attorney for the Appellant
This opinion was delivered PER CURIAM.
1. "Rules 402 and 403 of the West Virginia Rules of
Evidence  direct the trial judge to admit relevant evidence,
but to exclude evidence whose probative value is substantially
outweighed by the danger of unfair prejudice to the defendant."
Syllabus point 4, Gable v. Kroger Co., 186 W.Va. 62, 410 S.E.2d
701, 705 (1991).
2. "The exceptions permitting evidence of collateral
crimes and charges to be admissible against an accused are
recognized as follows: the evidence is admissible if it tends to
establish (1) motive; (2) intent; (3) the absence of mistake or
accident; (4) a common scheme or plan embracing the commission of
two or more crimes so related to each other that proof of one tends
to establish the others; and (5) the identity of the person charged
with the commission of the crime on trial." Syllabus point 12,
State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).
3. "A defendant must be allowed an in camera hearing on
the admissibility of a pending in-court identification when he
challenges it because the witness was a party to pre-trial
identification procedures that were allegedly constitutionally
infirm." Syllabus point 6, State v. Pratt, 161 W.Va. 530, 244
S.E.2d 227 (1978).
The appellant, Kevin J. Dorisio, appeals from the
December 13, 1991, Circuit Court of Brooke County order which
sentenced him to ten years in prison after he was convicted of
The Mom and Pop Quick Stop in Colliers, West Virginia,
was robbed at approximately 10:45 a.m. on June 6, 1990. A young
man who was later identified as the appellant entered the store,
bought some food, asked for directions, and then left. He soon
returned, and this time he placed a bag of tortilla chips on the
counter, threw a substance into the store clerk's eyes, and grabbed
$153.50 from the cash register.
The clerk, Louise McCullough, managed the store for her
brothers, and she was the only employee working that morning. With
her eyes burning intensely, she managed to get into her house,
which adjoined the store. She barricaded the door and called her
brother. Because the substance which irritated her eyes also made
it difficult for her to breathe, she went out on her porch to get
fresh air, at which time she heard a car spinning in the store's
gravel parking lot and then glimpsed a red car speeding away.
At this same time, Lisa Collins was walking beside the
store, and she saw Ms. McCullough on the porch gasping for air.
She also witnessed a man wearing blue jeans, t-shirt, ball cap, and
sunglasses slip in the gravel of the parking lot as he ran to get
into a car which she descried as a small, red Geo.
After the robbery, the Brooke County Sheriff's Department
put out a description of the robber and his car and asked law
enforcement agencies in nearby jurisdictions to be on the lookout
Earlier on that same morning of June 6, 1990, at approximately 9:15 a.m., Janice Miller, a teller at Gallatin National Bank near Hickory, Pennsylvania, saw a man wearing a t-shirt, jeans, red baseball cap, and dark sunglasses enter the bank carrying a brown grocery bag folded up in his hand. This man first caught Miller's attention when he parked his car horizontally along the side of the bank building instead of pulling into a regular parking stall. Miller described the bank as a small mobile unit: "It's not a permanent structure. It's basically like a trailer. It's not very big at all. Only employs three people. The front of the building has an all glass lobby, so it's very visible. The parking lot is very visible from the inside of the building." Miller said she paid particular attention to the man because he sat in his car for approximately twenty minutes without doing anything, and she felt this was suspicious behavior. In addition, Miller explained that she knew all of the bank's customers and their cars: "It wasn't a familiar vehicle. I'm trained to notice things like this. It was a brand new vehicle, very shiny, so it caught your attention, red, and I even had a customer comment to me and say, why is that man parked like that in the parking lot?"
Once he was inside the bank, Miller observed the man from
a distance of approximately six to seven feet as another teller
waited on him. Miller noticed that he was wearing a gold chain
with a charm on it around his neck and that he had two gold
earrings in his left ear. The man asked about CD rates and was
directed to a display board where the rates were posted. The board
was located directly beneath the bank's surveillance camera.
Although the camera was not turned on at the time, this was not
apparent from looking at it. The man left the bank and drove away
in what Miller described as a candy-apple red Geo Storm. Although
Miller took a pen and paper and tried to get the car's license
number, she noticed that it did not have a license plate.
Miller immediately called the Pennsylvania State Police
to report her suspicions that the man was casing the bank. A
trooper was sent to take her statement, and she described the man,
his clothing, and the red Geo he was driving. The Brooke County
Sheriff's Department subsequently learned that a man matching the
description of the Mom and Pop Quick Stop robber had reportedly
been casing the Gallatin National Bank earlier that same morning of
June 6, 1990. An investigating officer determined that the driving
time from the bank to the store in Colliers was between 27 and 31
minutes, with mileage of either 18.4 miles or 20.95 miles,
depending upon the route.
On June 23, 1990, the bank teller, Miller, met with
Richard Vulgamore, a special investigator for the Brooke County
Prosecuting Attorney, to create a composite drawing of the man she
had described to the Pennsylvania State Police. Vulgamore also met
with the store manager, McCullough, in hopes of developing a
composite of her assailant. After McCullough was released from the
hospital on June 6, she and Vulgamore worked for two sessions
totalling around six hours. They met again on June 24. Although
one composite was completed, McCullough apparently was not
satisfied that it was a good likeness of the man who attacked her
and robbed the store.
After McCullough expressed displeasure with the accuracy
of her first composite, Vulgamore showed her the composite he
created from Miller's description of the man she saw at the bank.
He did not tell McCullough anything about the origins of this
McCullough felt that Miller's composite more closely resembled her own assailant's appearance, and they used this to start a second composite. Using a computer, Vulgamore removed the facial hair and jewelry from the Miller composite, because McCullough was not certain that her assailant had either.
McCullough was more satisfied with the accuracy of the second
While working on an unrelated case on June 26, 1990,
Vulgamore showed the composites to members of the Weirton Police
Department. Detective Ronald Haggerty immediately commented that
the composite looked like the appellant, Kevin Dorisio. The
appellant's picture was then included in a photo array, and his
fingerprints were forwarded to the FBI for comparison with any
prints found on the bag of tortilla chips or the cash register
The photo array was subsequently shown to Miller, and she
identified a photograph of the appellant as the man she saw leave
the bank in a red Geo on June 6, 1990. At a May 7, 1991,
preliminary hearing, Miller also made an in-court identification of
the appellant as the man who "came into the bank that morning on
June 6, and sped away in the red Geo" and who she had previously
"identified in the photographic array."
McCullough also picked the appellant out of the photo
array. At the preliminary hearing, she commented that he "didn't
look big enough" to be her assailant, but later, as she was leaving
the preliminary hearing, she said she was able to see "this same
red, ruddy skin on his arms." At trial, she testified that she was
now certain the appellant was the same person who threw the
substance in her face and robbed her.
As we noted above, the appellant's fingerprints were
forwarded to the FBI to be compared with any prints that might be
recovered from the tortilla chip bag or the cash register drawer.
Although no usable prints were obtained from the drawer, the FBI
identified three fingerprints from the tortilla chip bag as those
of the appellant.
On June 23, 1990, the appellant's fiancee, Jamie King,
filed a stolen vehicle report with the Weirton Police Department.
According to her, the red 1990 Geo Storm two-door hatchback she had
been driving was stolen while she and the appellant were in a local
club. Although King used the car regularly, it was registered to
her grandfather. A week after it was reported stolen, the police
recovered what was left of the Geo, which had been burned.
A warrant for the arrest of the appellant, Kevin J.
Dorisio, was issued on July 12, 1990. Four days later, the
appellant returned from Ohio and turned himself in to the Brooke
County Sheriff's Department. During trial testimony, corrections
officer Clarence Barnhart recalled that while the appellant was in
jail prior to his hearing before a magistrate, he made a statement
that he planned to
. . . sue us because we took him from a job out in Ohio, brought him down to this jail for a robbery that he was supposed to do out in Colliers and he didn't even know where Colliers was, or where the little country store was.
However, the appellant and his brother both subsequently testified
that the appellant had been in the store on numerous occasions. In
fact, the appellant indicated that the presence of his fingerprints
on the tortilla chip bag could be attributed to his handling of the
bag on a previous visit to the store.
On appeal, the appellant asks this Court to reverse his
conviction. He assigns several related errors which address so-called "collateral crimes" testimony, as well as other evidence
that the appellant feels should have been inadmissible. On
April 22, 1991, and May 7, 1991, in camera hearings were held on
the appellant's motion to suppress this type of evidence. The
lower court determined that, among other things, testimony
concerning the appellant's alleged presence at the bank earlier on
the same morning of the grocery store robbery and the suspected
arson of a red Geo automobile would be permitted.
The appellant argues first that the trial court erred in
refusing to give the jury a limiting instruction concerning Janice
Miller's testimony about the events at Gallatin National Bank. The
appellant now maintains that Miller's testimony was tantamount to
other crimes, wrongs or acts evidence under Rule 404(b) of the West
Virginia Rules of Evidence. Therefore, the appellant argues that
the lower court should have instructed the jury not to consider
collateral crimes/wrongful acts evidence as an indication of the
defendant's guilt of the crime charged.
The appellant states that it was clear from Miller's
testimony that she "opined that Kevin Dorisio was in the Gallatin
National Bank to rob the bank." However, the State points out that
the trial court admonished the jury to ignore Miller's opinion and
ordered that her statement be stricken from the record. Further,
the State argues that the appellant mischaracterizes Miller's
testimony as evidence of collateral crimes or acts which are barred
by Rule 404(b).
A careful review of the record in this case reveals that
during an in chambers discussion about jury instructions, defense
counsel was, in the words of the trial judge,"not crazy about" the
court giving a collateral crimes instruction. Defense counsel
apparently felt that such an instruction would tend to emphasize
the bank incident. If it was to be given at all, defense counsel
wanted to limit the limiting instruction by omitting any reference
to the fact that the jury could consider collateral crimes evidence
when deciding whether an element of the offense charged had been
proven.See footnote 1
Rule 404(b) of the West Virginia Rules of Evidence states that:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. (Emphasis added.)
In this case, there was never a bank robbery. As a
result, the appellant's alleged presence at the bank did not
technically constitute either a "collateral crime" or a "wrongful
act," nor even "uncharged misconduct." Rather, the defendant's
"act" consisted of sitting in a bank parking lot for twenty minutes
before walking into the bank carrying a paper bag, behaving in a
nervous manner that a teller considered suspicious, and driving
away in a red Geo that did not have a license plate. As described
by Miller, what happened at the bank on the morning of June 6,
1990, might best be termed a "suspicious incident."
We would point out that Miller's testimony about the
appellant's appearance at the bank was not introduced to show
either his propensity or his disposition to commit a crime.
Instead, the State represented that Miller's testimony that she saw
the appellant in the bank on the morning of the robbery was
necessary because it established the appellant's presence at a
location so near in time and place to the robbery that the jury
could infer that he had the opportunity to commit the robbery. We
agree and find that in addition to showing opportunity, Miller's
testimony was also admissible for purposes related to
Consequently, we conclude that it was unnecessary for the
trial court to give the jury a limiting instruction, particularly
an edited version, pertaining to Miller's testimony about the
suspicious incident at the bank. This is especially true when we
consider that defense counsel apparently did not really want an
instruction that might tend to magnify the incident in the minds of
jurors. We find no error on this point.
In another assignment of error, the appellant objects to
the fact that the photograph of him which appeared in the photo
array was a snapshot taken by a police officer. Detective Powell
of the Weirton Police Department testified at trial and provided a
foundation for the introduction of the photo array which was used
to identify the appellant:
Q. Did you have any contact with [the defendant] in 1990 that resulted in him having a photograph taken in your presence?
A. Yes, sir.
Q. Can you tell us, generally, when that
A. I believe it was the middle of June, I
believe the 12th of June was the day the
actual picture was taken.
Q. All right. And who all was present when
it was taken?
A. Let's see; there was a Trooper Frank
Keenan from the Pennsylvania State Police
that actually took the picture, and there
were two other subjects; one was a State
Police officer and one other subject with
The appellant moved to strike Detective Powell's final response and
also moved for a mistrial. Both motions were denied. While
Detective Powell commented that Trooper Keenan took the photo "for
his use in an investigation," he said nothing else about the
investigation or how the appellant's photo was connected to the
The State argues that the mere fact that the photo in the
array was taken by a police officer does not make it evidence of
other crimes, wrongs, or acts that is inadmissible under Rule
404(b). Moreover, the State maintains that Powell's testimony was
necessary to establish the events surrounding the development of
the photo array, as well as the appellant's subsequent
identification by police officers who were participating in
investigations totally unrelated to the appellant.
"Rules 402 and 403 of the West Virginia Rules of Evidence
 direct the trial judge to admit relevant evidence, but to
exclude evidence whose probative value is substantially outweighed
by the danger of unfair prejudice to the defendant." Syl. pt. 4,
Gable v. Kroger Co., 186 W.Va. 62, 410 S.E.2d 701 (1991).See footnote 2 "Such
decisions are left to the sound discretion of the trial judge . .
. ." Id. at 705. In this instance, we find that the potential for
any prejudicial impact by Detective Powell's oblique reference to
another unspecified investigation was slight. Furthermore, any
prejudice must be weighed against the probative value of the
appellant's presence in the photo array. In this case, we conclude
that the probative value of the evidence clearly outweighs any
discernable prejudicial impact.
The appellant also objects to the admission of testimony
by Patrolman Terrance Brown that the red Geo automobile owned by
the appellant's wife's grandfather was reported stolen and found
burned seventeen days after the robbery. The appellant contends
that a link to the commission of a collateral crime must be
established in order for such testimony to be admissible.
Therefore, the appellant argues that this evidence was irrelevant
and inadmissible under Rules 402 and 404(b) of the Rules of
The appellant incorrectly argues that any evidence
related to the red Geo was irrelevant and inadmissible. "The
general rule is that the State, in a criminal case, may not
introduce evidence of a substantive offense committed by the
defendant which is separate and distinct from the specific offense
charged in the indictment." Syl. pt. 1, State v. Moubray, 139
W.Va. 535, 81 S.E.2d 117 (1954). "The exceptions permitting
evidence of collateral crimes and charges to be admissible against
an accused are recognized as follows: the evidence is admissible
if it tends to establish (1) motive; (2) intent; (3) the absence of
mistake or accident; (4) a common scheme or plan embracing the
commission of two or more crimes so related to each other that
proof of one tends to establish the others; and (5) the identity of
the person charged with the commission of the crime on trial."
Syl. pt. 12, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).
In this case, there was no testimony or other evidence
introduced which would indicate that the appellant burned the car.
However, the fact that the appellant was identified as the driver
of a red GEO that was seen at both the bank and the store in
Colliers on June 6, 1990, was a key piece of evidence in this case.
The State established that the appellant's fiancee had the use of
a red Geo which was registered to her grandfather and that she
reported the car as stolen on June 23, 1990. This evidence was
relevant because it also established that the appellant had access
to the car. At no time did the State "introduce evidence of a
substantive offense committed by the defendant which is separate
and distinct from the specific offense charged . . . ." Id. The
fact that the red Geo was eventually found burned and that a juror
might infer that the appellant destroyed evidence does not require
the exclusion of testimony which establishes a key link between the
appellant and the car. Even if the appellant was charged with
arson in connection with the car, "this testimony was not used to
show [his] propensity toward criminality, but rather it served to
establish the identity of the person charged with the commission of
the crime, and thus it is an exception to the collateral crime
rule." Acord v. Hedrick, 176 W.Va. 154, 342 S.E.2d 120, 123-24
(1986); State v. Gum, 172 W.Va. 534, 309 S.E.2d 32, 41 (1983); syl.
pt. 12, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).
In another assignment of error, the appellant complains
that the procedures used by Investigator Richard Vulgamore in
drafting the composites were "overly suggestive" and that, as a
result, any in or out-of-court identifications of the appellant
obtained from the use of the composites created a substantial
likelihood of misidentification and undermined any independent
basis for identification. The appellant's argument on this point
is totally without merit.
The State asks that if it is the appellant's contention
that the composites were "overly suggestive," then it must also be
asked, "suggestive of what or whom?" Courts ordinarily use the
term "overly suggestive" to characterize police action which steers
a witness to identify a specific suspect already targeted by the
police. However, in this case, neither Vulgamore nor the two
witnesses, McCullough and Miller, even knew the appellant when the
composites were made. Consequently, there was absolutely no way
that Vulgamore could have either directly or indirectly influenced
either witness to identify the appellant. Even more significant,
however, is the fact that Detective Haggerty, who was already
familiar with the appellant, was the person who was finally able to
put a name on the face created by Vulgamore's composites. We find
nothing "overly suggestive" in the coincidental manner in which the
appellant was ultimately identified by Detective Haggerty as a
Next, the appellant argues that the trial court erred in
denying defense counsel an in-camera opportunity to question
State's witness Janice Miller about her potential in-court
identification of the appellant. Defense counsel maintains that
letters to the trial court dated May 31, 1991, and July 19, 1991,
sufficiently advised the court of their challenge to Miller's
potential in-court identification.
Ms. Miller testified at an in camera hearing on May 7,
1991. Prior to this hearing, Miller had already made an out-of-court identification of the appellant from a photo array. However,
the appellant now contends that "the gravamen of the May 7, 1991,
hearing was the collateral crimes issue, therefore the
identification was not in issue."See footnote 3 The State scoffs at this
suggestion, pointing out that defense counsel had ample opportunity
to examine Miller on the identification issue at the May 7
suppression hearing. Although technically the hearing was set for
discussion of the collateral crime issues, the State raised
Miller's identification of the appellant from the photo array
during direct examination. Thus, the State maintains that defense
counsel waived the opportunity to question Miller regarding
identification on May 7 and should not be permitted to complain now
that "Miss Miller, on May 7, never identified Mr. Dorisio as that
man." We agree.
The appellant never properly demanded an in camera
identification hearing. Instead of filing a written motion to
request an in camera hearing, the appellant conducted an informal
correspondence with the court. Rule 47 of the Rules of Criminal
Procedure provides in part that "[a]n application to the court for
an order shall be by motion. A motion other than one made during
a trial or hearing shall be in writing unless the court permits it
to be made orally." Rule 49(a) requires that "[w]ritten motions .
. . shall be served upon each of the parties," while Rule 49(d)
states that "[p]apers required to be served shall be filed with the
The State maintains that even a properly filed motion
would not have entitled the appellant to an in camera hearing on
Miller's potential in-court identification of the appellant in this
instance, and we agree. "A defendant must be allowed to examine
any photographic display used by the government during pre-trial
identification procedure, to determine whether it improperly
suggested his identity." State v. Pratt, 161 W.Va. 530, 244 S.E.2d
227, 235 (1978). "A defendant must be allowed an in camera hearing
on the admissibility of a pending in-court identification when he
challenges it because the witness was a party to pre-trial
identification procedures that were allegedly constitutionally
infirm." Id. at syl. pt. 6. In this case, Miller identified the
appellant by selecting him from a photo array. However, the
appellant did not challenge either the composition of the array or
the manner in which it was presented to Miller. Such a challenge
is a prerequisite to a defense demand for an in camera
Finally, in his last assignment of error, the appellant contends that the trial court erred when it requested that a member of the Brooke County Sheriff's Department ask potential witnesses and trial spectators to step outside the courtroom to be scanned for weapons. The appellant argues that it was obvious to the jury that this was being done and that it indicated that the appellant was a threat and therefore guilty of the crime charged.
There is no support in the record for the contention that
security precautions initiated by the court "created a prejudicial
environment against the defendant in which to have his case tried."
The appellant raised no objections to the procedures at trial, and
has therefore waived any right to do so now. See State v. Trogdon,
168 W.Va. 204, 283 S.E.2d 849 (1981).
We find no reversible error in this case. Therefore, the
December 31, 1991, final order of the Circuit Court of Brooke
County is affirmed.
Footnote: 1In State v. Dolin, 176 W.Va. 688, 347 S.E.2d 208, 216 (1986), we explained that:
. . . from a procedural standpoint evidence admitted under one of the collateral crime exceptions is thought to be relevant to some
aspect of the State's case. Such evidence is
not admitted as proof of the ultimate guilt
of the defendant. For this reason, it is
customary to give the jury a limiting
instruction with regard to its consideration
of the collateral crime. This instruction
generally provides that the evidence of a
collateral crime is not to be considered as
proof of the defendant's guilt on the present
charge, but may be considered in deciding
whether a given issue or element relevant to
the present charge has been proven. When a
defendant requests this limiting instruction,
it must be given.
See also State v. Pancake, 170 W.Va. 690, 296 S.E.2d 37, 41 (1982).
Footnote: 2While Rule 402 of the West Virginia Rules of Evidence states, in part, that "[a]ll relevant evidence is admissible," Rule 403 provides that relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
Footnote: 3The appellant indicated otherwise at trial. Defense counsel complained to the court that Miller "never made a positive identification in Court that day . . . I raised the issue before the Court, and that was one of the purposes of the hearing . . . ."