State v. Morris

Virginia, STATE of West Plaintiff

Below, Appellee, MORRIS, King,

Helen aka Helen Below, Appellant.

Defendant

No. 24714. Appeals Court of of West Sept.

Submitted 1998.

Decided Oct.

Stareher, J., issued dissenting opinion. judgment acquittal.

and enter a Follow- arguments, ing parties’ a review of the below, and proceedings authorities, affirm the decision pertinent we County. Harrison of the Circuit Court of I.

FACTUAL BACKGROUND 26, 1995, Morris was in November Ms. On Penney at the Meadowbrook the J.C. store store with Mall.1 Ms. Morris was at the her daughter employ- and three A store friends. ee, Waybright, Ms. Robert observed Morris rack, remove a white sweatshirt from kneel place floor and the sweatshirt into a through Morris bag. Ms. moved store ap- the sweatshirt concealed and employee, proached another store Eric General, McGraw, Jr., Attorney Darrell V. questioning began Ms. Morris Mr. Smith. Woods, Rory Perry, L. Assistant Victor S. about store hours. Mr. Smith testified Smith General, Charleston, Virgi- West Attorneys yelling began then and curs- that Ms. Morris nia, Appellee. Attorneys for the accused him ing at him. She further turned from Mr. watching her.2 Ms. Morris Sinkkanen, D. Harrison Dreama and left the store with the sweatshirt Smith Defender, Virginia, Clarksburg, West Public bag. Mr. Smith followed concealed Appellant. Attorney for the and once Morris out of the store outside Ms. store, her of Mr. Smith informed his PER CURIAM: suspicions. After a verbal altercation heated Morris; appel- King, a.k.a. Helen Helen Morris, Mr. convinced Ms. Smith (hereinafter Morris), ap- lanVdefendant Upon return the store. Morris to inside by jury in the peals conviction her criminal store, shouting returning to the another Mor- County. Harrison Circuit Court Smith, had Mr. who match ensued. of third ris convicted accom- threatened one of the individuals imprison- to 1-10 She was sentenced Morris, call the scene to panying Ms. left appeal, Ms. Morris ment. In this left, Ms. Mor- police. As soon Mr. Smith er- trial court committed reversible that the and left dropped the white sweatshirt3 ris (1) denying by: ror motion part of the She went to another the store. (2) convictions; denying her Mall. shop- exclude evidence of her po- call to local convictions; placing telephone her to be After allowing lifting lice, security and locat- found Mall shoplift- Mr. Smith impeached through the use of companions. Another evidence; by a Morris and her ed Ms. admitting evidence Eventually, clerk; sup- confrontation ensued. denying verbal her motion Bridgeport evidence; Sergeant Springer of denying her mo- C.E. press certain Sergeant trial; Department arrived. Police a mistrial new tions for return requested Springer the verdict denying her motions set aside actually How- left two sweatshirts. 3.Ms. Morris Mall in Harrison Meadowbrook is located ever, taking only County, one she had been observed sweatshirt. initially suspicious of had become 2. Mr. Smith Morris, Waybright. Mr. and had alerted Mr. Ms. Morris. his observation of Smith continued Penney store. Ms. to the J.C. II. agreed. Based statements STANDARD OF REVIEW Penney Sergeant employees, Springer J.C. presented The issues in this case citation to Ms. Morris.4

issued objections by concern Ms. Morris to the ad grand jury subsequently indicted A mission of certain evidence the trial court. felony for the crime of third offense It principle is well established law trial, two-day jury shoplifting.5 After “[rjulings on the admissi September on Morris was convicted bility largely of evidence are within a trial Louk, v. of third offense On November discretion[.]” State court’s sound 21,1996, 643, the trial court sentenced Ms. Morris 639, 596, 171 W.Va. 301 S.E.2d (1983). Kopa, years imprisonment. appeal 6 of This syllabus to 1-10 In point 43, followed. 173 W.Va. (b) Sergeant Springer Upon was unaware of Ms. Morris’ Second offense a sec- conviction.— shoplifting prior shoplifting ond conviction: two convictions. (1) When the value of the merchandise is dollars, equal less than or to five hundred the (1997) shoplift- §

5. W.Va.Code 61-3A-1 defines person guilty is of a misdemeanor and shall be ing as follows: fined not less than one hundred dollars nor (a) person shoplift- dollars, A commits the more than five hundred and such fine if, appropriate with intent to suspended, merchandise person shall not be or the shall be paying price jail the stated without merchant’s confined in not more than six months or merchandise, person, both. the such alone or in con- (2) person, knowingly: When the value of the merchandise ex- cert with another dollars, (1) person guilty ceeds five hundred is Conceals the merchandise his or manner; of a misdemeanor shall be fined not less person or in another or than five hundred dollars shall be confined (2) causes the Removes or removal of mer- jail for not less six than months nor more chandise from the mercantile establishment or year. than one beyond payment; last station for or (c) Upon Third offense a third Alters, conviction.— any price transfers or removes conviction, subsequent shoplifting regard- or merchandise; marking affixed to or merchandise, per- less of the value of the Transfers merchandise from one con- guilty felony son is of a and shall be fined not another; tainer to or less than five hundred dollars nor more than register the cash Causes or other sales dollars, imprisoned five thousand and shall be recording to reflect device less than the mer- penitentiary year in the for not less than one merchandise; price stated chant's for the or years. year nor more than ten At least one shopping prem- Removes cart from the actually spent shall be in confinement and not of the mercantile ises establishment. Provided, subject probation: to That an order (b) person A also commits the offense of pursuant for home detention the court shoplifting person, if such alone or in concert eleven-b, provisions [§ article 62-11 B-l person, knowingly with another and with in- seq.j chapter sixty-two may et of this code be exchange attempts tent obtains an or refund or used as an alternative sentence to the incarcer- exchange to obtain an or refund for merchan- required by ation this subsection. purchased dise has not (d) Mandatory penalty. addition to the —In mercantile establishment. imprisonment imposed by fines and this sec- pen- W.Va.Code 61-3A-3 contains the tion, in all cases of conviction for the offense of shoplifting: alties for shoplifting, the court shall order the defendant person shoplifting A convicted of shall be pay penalty to the mercantile establish- punished as follows: dollars, fifty ment involved in the amount of or (a) Upon First offense a first involved, conviction.— double the value of the merchandise shoplifting conviction: higher. whichever is The mercantile establish- (1) When the value of the merchandise is ment shall be entitled to collect such mandato- dollars, equal less than or to five hundred ry penalty judgment. inas the case of a civil person guilty of a misdemeanor and shall be penalty This shall be in addition to the mercan- fifty fined not more than two hundred dollars. rights tile establishment's to recover the stolen (2) When the value of the ex- merchandise merchandise. dollars, person ceeds five (e) hundred determining prior shop- In the number of of a misdemeanor shall be fined not less lifting purposes imposing convictions for section, than one hundred punishment dollars nor more than five under this the court shall dollars, hundred and such fine shall be disregard not occurring all such convictions more suspended, person or the shall be confined in prior than seven of- jail sixty days, not more than question. or both. fense in that the State clearly articulated a trial court action “[t]he obligated to not in the excluding evidence admitting or Therefore, the trial shoplifting convictions. not be disturbed will of its discretion exercise it discretion when not abuse its court did appears that unless it appellate court by the Also, stipulate.7 it was denied the of discre- an abuse amounts to action such deny Morris’ motion to not error Oldaker, v. Syl. pt. State tion.” of her the evidence exclude (1983); pt. Syl. 258, 304 S.E.2d 843 fact, requires the In convictions. Rector, 280 S.E.2d v. State shoplifting convic- prove State Martin, (1981); v. Syl. pt. Casto upon which of the offense tions as an element (1976); Syl. pt. 230 S.E.2d State Morris was indicted. 55, 87 S.E.2d Huffman, 141 W.Va. n. discussed whether n. 1 this Court evidence of a de- improperly admitted III. driving for prior two convictions fendant’s that and concluded the influence under DISCUSSION necessary a ele- prior a conviction is “where charged ... it is ment of the current offense Shoplifting Convictions A. Prior jury purposes[.]” See State admissible for assigned as error Morris has Barker, n. 199 366 S.E.2d 179 W.Va. prior shoplifting involving her issues three (1988). Ms, Finally, Morris’ 647 n. 12 that the Ms. Morris asserts convictions. improperly im- was that she contention (1) denying her committed error court evidence, by shoplifting peached, prior shoplifting con prior stipulate motion testimony during is without the State victions; exclude denying her motion to part proof, the State asked As of its merit. convictions; shoplifting prior evidence of for if had been convicted she through impeached allowing her to be Mor- prior occasions. Ms. shoplifting on two These prior shoplifting evidence. the use of prior convictions. to the ris admitted recent decision controlled our issues are limiting instruction gave a trial court 483, 453 jury in State that the jury it cautioned wherein dissenting).6 (Cleckley, J. for the sole testimony 317 was to be considered 5.E.2d evidence as an prior that offenses Hopkins proving “[b]ecause purpose We held a shoplifting] shoplifting. the third offense prior [for convictions element of charged, testimony evidence of -crime was not necessary of the Morris’ element charge. shoplifting jury purposes.” the current for commission of is admissible evidence noted, of cross Hop- in the context Because at 323. This Court Id. at 453 S.E.2d regarding prior DUI examining shoplifting convic- a defendant prior that kins made clear credibility convictions, third defendant’s “[t]he the crime of tions were elements issue is whether prove not the issue.... must shoplifting, the State offense offense[J” a third was the defendant jury. a elements to those a not to allow error held it is reversible have this Court revisit Morris seeks to 6. Ms. Chief defendant to felony-convict overruling being opposes a Hopkins. The State overrule stare decisis this Hopkins and asserts that under The Slate prosecution firearms violation. for Hopkins. This Court to follow inapplicable Court is bound correctly points out that Old Chief Corp., Dailey v. Bechtel observed proof required in of the nature of because “[i]f Chief, government had to In Old Old Chief. any judicial play is to of stare decisis the doctrine felony-convict. It awas prove that the defendant a decision so recent- we cannot overrule role ... ly of the prove nature or name did not have changing any evidence rendered without Thus, specific circum- those felony. stances, under interpreta- judicial error in or serious conditions stipulation, when Old Chief years ago. just decided four was tion.” offered, prejudicial. In preferable less is nec- makes it proceeding, the instant to a Court's attention Morris directs this 7. Ms. and nature essary prove the name States the United recent decision of third an element prior offenses as States, relevant Court, U.S. v. United Old Chief (1997). Old 136 L.Ed.2d 117 S.Ct. ciently untrustworthy. n. Arbogast, at 402 352 S.E.2d at See Hess v. W.Va. (1988). Hence, 153 n. 1. we affirm the decision of the S.E.2d 902(4) (public also R.Evid. Rule Harrison our law Circuit Court of as self-authenticated). reports “Official of ... clearly concludes that con- judgments kept court-ordered and sentences shop- are an element of third offense victions in the court’s files ... are within included lifting. exception.” Cleckley, Franklin D. Admitting By B. Evidence Court Clerk Evidence, 8-3(B)(8)(c), pg. Handbook on Next, that the trial proceeding, the instant by permitting court committed error Marion public complained clearly records of were County Magistrate Cathy Court Clerk Gower 803(8)(A) records, admissible under Rule to introduce evidence of Ms. Morris’ second reports, setting statements or data forth the prior shoplifting conviction.8 Gower tes activities of the clerk’s no office. We find regarding magistrate tified certified permitting error the introduction into evi- clearly documents. The documents estab dence, through Ms. Gower of Ms. Morris’ lished that Ms. Morris had conviction second conviction. hearsay objections shoplifting.9 Over the Morris, the of Ms. trial court admitted the C. Denial of Motion to evidence under Rule 803 of the West Suppress Evidence testimony public Rules of Evidence of Ms. Morris contends that the trial record. denying court committed in error her motion suppress

Ms. Morris contends that the evi to evidence of the of contents by purse dence given Ms. Gower should have been ex because she was not Miranda 803(8)(B), provides cluded under Rule warnings prior purse being to her examined by police by Sergeant Springer.11 that matters observed officers and This Court noted in Preece, personnel syllabus other law enforcement in point contained 1 of State v. public records are inadmissible. Rule that “Miranda 803(8)(B) application public has no to warnings required suspect records are whenever a formally subjected of a conviction.10 Court This has held that has been arrested or to public the contents of a to be interrogation, regardless an custodial of the na exception hearsay severity rule. The contents ture or of the offense.” trial The trustworthy, are to assumed be unless the court determined that Ms. Morris was not in opponent report custody establishes that the is suffi- when she returned to the J.C. Pen- however, duty report, excluding, The State also called Marion Circuit in criminal by police Court Clerk Barbara Core to introduce evidence cases matters observed officers and (C) personnel, of Ms. Morris’ convictions. Ms. other law enforcement or assign any proceedings against Morris did not argument against as error nor brief civil actions and the cases, testimony. findings Ms. Core’s State in criminal factual result- ing investigation pursuant from an made law, authority granted by unless the sources of incorrectly 9. Ms. Morris’ brief states that the information or other circumstances indicate brought by records were Gower not certified. lack of trustworthiness. clearly Ms. Gower testified that the records were added). (Emphasis by magistrate certified her as the clerk of the court. 11.Related to this issue Ms. Morris that Sergeant Springer's testimony concerning the 803(8) provides: 10. Rule purse contents of her should not been admitted following by hearsay are not excluded because it was not disclosed to trial under rule, though even the declarant is available as Rule of the West Rules of Criminal a witness: argument Procedure. This is without merit. 16(a)(1)(A) by Rule defendant, concerns statements made Records, Reports. by police Public Records and not observations made statements, Further, reports, compilations, or data officer. evidence, the trial court did exclude from form, any public agencies, setting pursuant of offices or to Rule the actual state- (A) agency, Sergeant forth Springer, the activities of the office or made ments Ms. Morris to (B) pursuant duty requested or matters observed im- which she had but which the State had posed by provide law as to which matters there was a failed to to her. Springer. surrounding trial In view of the circumstances ney Sergeant store with ques- observation, Sergeant Springer’s also that the officer’s this concluded did regarding testimony bags identification not amount regarding properly tions was meaning of Mi- interrogation within Hopkins, admitted.12 See 192 W.Va. at 486- agree. randa. We at S.E.2d 320-322. is clear

The evidence Springer to IV. by Sergeant accompa asked Penney ny him the J.C. store. She back to CONCLUSION store, freely him. While returned with Sergeant Springer asked Ms. Morris foregoing, In view of the we find no error. Ms. Morris stated that she identification. Therefore, we affirm the conviction and sen- any did not identification. When have tence. everyone carries officer commented Affirmed. identification, type some of Morris volun tarily purse. to look invited the officer DAVIS, Justice, dissenting:1 Chief identification, looking for the officer

While eloquently expressed empty plastic shopping bags For the found several reasons so Cleckley separate opinion various stores Justice in his names of on them. Sergeant bags Springer’s observations S.E.2d J., concurring, (Cleckley, part, came as a Ms. Morris’ invitation to result of respectfully purse. dissenting), him to the contents of her I dissent. examine error, (defin- assignments plish justice. Dictionary remaining 12. Black’s Law Morris’ "dissent”). This conclusion consistent denial of her motions for a circuit court’s mistrial, verdict, practice both with of the United States Su- set aside the enter trial, preme Court of the Justices trend judgment acquittal and for new are See, e.g., Superior Court. Whitaker v. without in this merit. The evidence case was 208, California, County, San Francisco 514 U.S. jury beyond a sufficient to find for the reasonable 1446, (1995) (per 115 S.Ct. 324 131 L.Ed.2d doubt that Ms. Morris committed the crime of curiam) (Stevens, J., dissenting); Ticor Title Ins. 12, Syl. pt. third offense State v. 117, Brown, 1359, Co. v. U.S. 114 S.Ct. 511 128 55, Huffman, W.Va. 541 (O’Connor, J., curiam) (per L.Ed.2d 33 (“In a case a verdict of which is criminal C.J., J., Kennedy, Rehnquist, dissenting); and support without sufficient evidence to it will be 142, Barnhart v. W.Va. Redd 196 S.E.2d 1 court’’). by appellate aside set C.J., curiam) (per (McHugh, Cleckley, and J., 716, dissenting); Hottinger, 194 respectfully dissenting 1. In deci- Court’s J., curiam) (1995) (per (Cleckley, 461 S.E.2d 462 case, clarify apparent sion in I wish to this concurring, dissenting, part). part, in Cf. amongst bench and the this confusion bar of 202, Stewart, Rhodes v. 488 U.S. 109 S.Ct. propriety of a State Justice-authored 204, 1, curiam) (per 6-7 102 L.Ed.2d per Opinion dissent to an of the Court rendered J., (Marshall, ("[T]he practice dissenting) of sum- Generally speaking, per curiam. a curiam deci- mary disposition insufficient re- demonstrates court,” opinion sion "an of the denotes whole spect dissenting colleagues ... for our own on (6th ed.1990) (de- Dictionary Black’s Law Hall, Court.”); this Montana v. U.S. curiam”), fining "per judges "in which the are 95 L.Ed.2d 107 S.Ct. mind, all of one and which is so clear that it is J., curiam) (Marshall, dissenting) (per necessary an not considered elaborate it many (”[S]ummary dispositions in dis- instances discussion,” extended 21 C.J.S. Courts at play respect of for the views dissent- insufficient omitted). (1990) (footnote Despite pre- ing colleagues 'Per curiam’ is on this Court.... opinion, unanimity a sumed Justice retains court,’ phrase meaning '[b]y a Latin obligation jus- underlying to ensure “that his/her distinguish opinion of the should an whole Court accomplished, [his/her] tice is and it within opinion by any from an one Justice. Our written powers proper ... to take action in and duties opinion, per over the use of a ... curiam dissent promote justice.” order to the law and to Court,] enforce ... [members of the resolve (1981) (footnotes Judges § 48A at 642 C.J.S. wrong. opinion an a ... Such merits of case omitted). though Accordingly, Opinion even an speak Court on a does not for the entire matter curiam, per may of the be delivered it is speak can and should so clear that the Court Instead, proper speaks majority for individual Justice to dissent there- a an with one voice. it "explicit[ly] disagreed] from . .. re- where of Justices who take it themselves to he/she (footnote majority” dispute....” passed with the omit- decision solve the merits of a ted)). duty uphold Court in to accom- order to his/her Justice, STARCHER, reasoning opin- dissenting: strength of the Court’s ion, and the fairness of its result. Hopkins, this Court result, S.E.2d 317 Because reached an unfair of the shoplifting convictions are elements holding and because its was “a torture of shoplifting, and are Id., of third-offense crime legal reasoning,” I would sound overrule jury. I before the am therefore admissible grant opinion the defendant in this Cleckley agreement in full with Justice when I am case a new trial. confident that Hopkins, “I think said, in his dissent to he approach unfair adhered to can- wrong.” 192 this case is scrutiny. not stand continued I therefore J., (Cleckley, concurring in S.E.2d at 329 urge present the bar to continue to similar majority part dissenting part). Court, bifurcation issues to this so that we following wrong opinion, in is also ample will have occasion consider the issue present in the case. and examine its fundamental unfairness. majority opinion in this case and in respectfully I therefore dissent. 404(b) Hopkins simply ignores Rule Virginia Rules Evidence.1 It jury that a will be more inclined undeniable they hear that a defendant

to convict once previously convicted of similar con-

has 404(b) keep designed

duct. Rule such away jury,

evidence of other crimes from focusing jury proper ques- thus tion: did the defendant commit the crime PAVING, INC., ROY YOUNG & SONS currently charged? with which he is Wheth- Corporation, Below, Plaintiff previously convicted er defendant was Appellee, goes pen- similar conduct to the defendant’s alty; this evidence should not be admissible before, to show that “if he did it he must America, John L. and Fast ASH Lube have done it this time.” Inc., Corporation, Defendants Cleckley cogently As Justice stated Below, Appellants.

Hopkins, “prior convictions are not elements No. 25213. charge; they of the current are elements of penalty enhancement.” Appeals of Court of Therefore, at 330. second- or third-offense Submitted Nov. 1998. bifurcated, cases should be and evidence of only convictions should be admitted Decided Nov. guilt into if evidence and after has been Opinion Dissenting of Justice Starcher underlying found on the offense. 16, 1998. Dec. majority opinion sug- footnote gests that because was “decided

just years ago,” four this Court is bound

stare decisis and cannot revisit and overrule

Hopkins. binding judicial effect of a

opinion generations on future should not be

based number of have

passed opinion since the was issued

Court, but rather should be found in the 404(b) similarly given

1. Rule short shrift in. influence of alcohol are admissible to show the Cozart, currently guilty defendant is of a third offense In footnote 1 of this Court held driving under the influence of alcohol. previous driving convictions of under the

Case Details

Case Name: State v. Morris

Court Name: West Virginia Supreme Court

Date Published: Oct 2, 1998

Citation: 509 S.E.2d 327

Docket Number: 24714

Court Abbreviation: W. Va.