IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2010 Term
released at 10:00 a.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee
JASON DEVON WILLIAMS,
Defendant Below, Appellant
Appeal from the Circuit Court of Mercer County
Honorable Omar J. Aboulhosn, Judge
Criminal Action No. 09-F-227
Submitted: October 12, 2010
Filed: November 18, 2010
Steven K. Mancini
Southern West Virginia Law Clinic
Beckley, West Virginia
Counsel for the Appellant
Darrell V. McGraw, Jr.
Deputy Attorney General
Charleston, West Virginia
Counsel for the Appellee
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
“On appeal, legal conclusions made with regard to suppression
determinations are reviewed de novo. Factual determinations upon which these legal
conclusions are based are reviewed under the clearly erroneous standard.” Syl. Pt. 3, in part,
State v. Stuart, 192 W. Va. 428, 452 S.E.2d 886 (1994).
2. “The Sixth Amendment right to counsel attaches at the time judicial
proceedings have been initiated against a defendant whether by way of formal charges,
preliminary hearing, indictment, information, or arraignment.” Syl. Pt. 1, State v. Bowyer,
181 W.Va. 26, 380 S.E.2d 193 (1989).
Defendant below, Jason Devon Williams (hereinafter “Appellant”), appeals
from the judgment order of the Circuit Court of Mercer County, entered on August 7, 2009,
involving the charge of third-degree sexual assault. The sole issue on appeal stems from an
order dated August 4, 2009, wherein the trial court denied Appellant’s motion to suppress
his confession to police.1 Appellant maintains that his confession to the police was
improperly obtained because his counsel was not present during the questioning which
occurred at a time after his constitutional right to counsel had attached. Having duly
considered the briefs and arguments of the parties in relation to the record and pertinent case
law, we find no reversible error and affirm the decision of the lower court.
I. Factual and Procedural Background
The underlying charge in this case requires a brief explanation of events
involving a prior conviction. According to the facts set forth in the August 4, 2009, order,
Appellant had been previously convicted in February 2007 of “Attempt to Commit a Felony,
to wit: Sexual Abuse – First Degree.” His sentence for this offense was one to three years
in the penitentiary, with imposition of the sentence suspended while Appellant participated
in the youthful offender program at Anthony Correctional Center. Upon completion of the
Appellant entered a conditional guilty plea to one count of third-degree sexual
assault (W. Va. Code § 61-8B-5), reserving the right to appeal the trial court’s denial of his
motion to suppress. See W. Va. R. Crim. P. 11(a)(2).
program at the Anthony Center in May 2008, the lower court imposed the one to three year
penitentiary sentence, suspended the sentence, and placed Appellant on probation for five
years. Conditions of probation included that Appellant register as a sex offender for life,
and that he have no contact with anyone under the age of eighteen.2
On March 20, 2009, an adult probation officer filed a petition to revoke
Appellant’s probation for violating several probation conditions. The petition included the
allegation that Appellant had been in the company of two teenage girls. On the basis of the
petition, Appellant was arrested and confined in the regional jail. He was appointed counsel
for purposes of the probation revocation hearing. Appellant was arraigned on March 24,
2009, regarding the probation violation, and he was released on bond with home
confinement pending the final hearing. Appellant’s counsel advised him at this point that
he needed to report to the West Virginia State Police in order to comply with the terms of
the West Virginia Sex Offender Registration Act.3 Thereafter, Appellant reported to the
local State Police barracks and spoke with Cpl. James Long.
Sometime after the arraignment but before Appellant reported to the State
Police, the probation officer who filed the revocation petition contacted Cpl. Long and
It was established during the July 29, 2009, hearing on the motion to suppress
that the prior offense involved a minor child.
See W. Va. Code §§ 15-12-1 through 10; 81 W. Va. C.S.R. 14.
stated that she had a suspicion that more than mere accompaniment had occurred between
Appellant and one or both of the minors. Appellant went to the State Police detachment on
March 27, 2009. Based upon the information from the probation officer, Cpl. Long asked
Appellant if he would be willing to talk about his meeting with the girls. Appellant agreed
to be interviewed. According to Cpl. Long’s testimony at the suppression hearing, after he
updated the sex registry, he advised Appellant of his Miranda rights and secured a waiver
of rights form from Appellant before questioning him about his contact with the underage
girls. It is undisputed that Appellant did not ask for counsel.
During the course of the questioning regarding what happened while he was
with the juveniles, Appellant confessed that he had sexual intercourse with one of the
underage girls. Appellant’s recorded statement to the police included the fact that Appellant
was aware that the girl was only fifteen years old. Once the interview was over, Appellant
left the barracks and returned to his home.
According to the record, Cpl. Long later that day interviewed the young girl
with whom Appellant indicated he had intimate contact. The juvenile provided a recorded
interview and confirmed she had sexual intercourse with Appellant.
Based upon the interviews with Appellant and the minor, a criminal complaint
was filed in the magistrate court on March 30, 2009, charging one count of third-degree
sexual assault. Appellant was arrested on that date. At his initial appearance, Appellant
invoked his right to counsel. Counsel was appointed,4 and the hearing was continued until
April 22, 2009. With his counsel present at the hearing on April 22, Appellant waived his
right to a preliminary hearing. The case was then forwarded to the circuit court. On June
9, 2009, the grand jury returned an indictment charging Appellant with sexual assault in the
Appellant filed a motion on July, 28, 2009, to suppress his confession to the
sexual assault offense. At the July 29, 2009, hearing on the motion, Appellant argued that
because he had been appointed counsel at the probation violation hearing, his right to
counsel had attached. Appellant maintained that the police questioning about the type or
extent of contact he had with the subject juveniles was effectively the same issue pending
in the probation violation matter. The lower court denied the motion to suppress by order
dated August 4, 2009. The order reflects the denial was based on the trial court concluding
that: (1) Appellant had provided the statements after voluntarily, knowingly, and
intelligently waiving his right to counsel, and (2) third-degree sexual assault is a separate
crime from the probation violation for which counsel had been appointed.
The same lawyer appointed to represent Appellant in the probation violation
matter was also appointed to represent him on the sexual assault charge.
On August 6, 2009, Appellant entered into a plea agreement in which he
agreed to plead guilty to the indictment, conditioned on the right to pursue an appeal of the
denial of the suppression motion, and to withdraw the guilty plea should the lower court’s
ruling be reversed. The circuit court accepted the plea and sentenced Appellant on August
7, 2007, to one to five years in the penitentiary. Appellant was also granted a stay of
execution and post-conviction bond with home confinement pending appeal.
Appellant filed his petition for appeal with this Court on December 7, 2009;
the appeal was granted by order dated February 11, 2010.
II. Standard of Review
The solitary issue in this appeal is the propriety of the lower court’s
suppression ruling. We proceed in reviewing such issues according to the standards set forth
in syllabus point three of State v. Stuart, 192 W. Va. 428, 452 S.E.2d 886 (1994), which
states in relevant part: “On appeal, legal conclusions made with regard to suppression
determinations are reviewed de novo. Factual determinations upon which these legal
conclusions are based are reviewed under the clearly erroneous standard.”
Appellant maintains that the trial court was wrong in concluding that it was
proper for the police to approach him about waiving his right to counsel at a time when he
had already been appointed counsel to represent him. He argues that because he had been
appointed counsel in the probation revocation matter that his constitutional right to counsel
had attached, and the police could not seek a waiver of that right in order to initiate an
interrogation. Appellant arrives at this conclusion by maintaining that the police questioning
in this case was “effectively the same matter” as that involved in the probation revocation
petition. He contends that syllabus point one of State v. Barrow, 178 W.Va. 406, 359 S.E.2d
844 (1987), is controlling in that it provides:
If police initiate interrogation after a defendant’s
assertion, at an arraignment or similar proceeding, of his right to
counsel, any waiver of the defendant’s right to counsel for that
police-initiated interrogation is invalid because it was taken in
violation of the defendant’s Sixth Amendment right to counsel.
To the extent that State v. Wyer, 173 W.Va. 720, 320 S.E.2d 92
(1984), is in conflict with this principle, it is overruled.
Appellant also asks the Court to revisit Barrow and verify its vitality in light
of the 2009 United States Supreme Court case of Montejo v. Louisiana,
S.Ct. 2079. In Montejo, the Supreme Court overruled its prior holding in Michigan v.
Jackson, 475 U.S. 625 (1986), establishing a presumption that a police-initiated interrogation
occurring after appointment of counsel renders a confession derived from such questioning
invalid and inadmissible.5
The State agrees that Barrow needs revisited because of the Montejo decision.
However, the State goes on to say that the Sixth Amendment right to counsel on which
Barrow, Montejo, Michigan and Wyer turned is not at issue here. The State maintains that
the trial court was correct in concluding that the right to counsel had not attached at the time
the questioning by Cpl. Long took place. While Appellant had been appointed counsel at
the arraignment on the probation violation, his Sixth Amendment right to counsel attached
only as to the matter therein charged – being in the company of persons under the age of 18.
As such, that charge was different from the subject of the confession – third-degree sexual
At this juncture we note that the issue in this case warrants a brief discussion
of a criminal defendant’s right to counsel under the Fifth and Sixth Amendments to the U.S.
Constitution. As summarized in State v. Hickman, 175 W. Va. 709, 716, 338 S.E.2d 188,
195 (1985), “the Fifth Amendment right to counsel was created in Miranda [v. Arizona, 384
U.S. 436 (1966)], as an adjunct to the defendant’s right against self-incrimination. This Fifth
Syllabus point one of Barrow was adopted to follow the precedent established
in Michigan, which caused this Court to overrule its prior position on the subject as
announced in Wyer.
Amendment right to counsel is triggered when a defendant is taken into custody by law
enforcement officials who desire to interrogate him. The Sixth Amendment [explicit] right
to counsel arises . . . when adversary judicial proceedings have been commenced against a
defendant.” We elaborated on the meaning of “adversary judicial proceedings” in syllabus
point one of State v. Bowyer, 181 W.Va. 26, 380 S.E.2d 193 (1989), as follows: “The Sixth
Amendment right to counsel attaches at the time judicial proceedings have been initiated
against a defendant whether by way of formal charges, preliminary hearing, indictment,
information, or arraignment.”
Thus, the critical determination in the present case is whether Appellant’s Sixth
Amendment right to counsel was abridged because the pending charges for which
appointment of counsel had been made were the same as the crime which the police were
investigating. The conclusion of the trial court with regard to this issue is found in the
following provision of the August 4, 2009, order denying the motion to suppress:
(11) Accordingly, the Court FINDS and CONCLUDES that
the State has proven by a preponderance of the evidence
that the Defendant’s statements were provided after he
voluntarily, knowingly, and intelligently signed a waiver
of his right to counsel regarding the criminal charge of
Sexual Assault-Third Degree, which is a crime separate
and distinct from probation violation matter for which
Mr. Mancini was appointed for legal representation
Antecedent to this conclusion in the August 4 order is the lower court’s finding that no
formal charges were pending regarding the third-degree sexual assault offense at the time
counsel was appointed in the probation revocation proceeding.
This Court had occasion to discuss the reach of the constitutional right to
counsel in the Sixth Amendment context in State v. Wilder, 177 W.Va. 435, 352 S.E.2d 723
(1986). It is clear from our discussion in Wilder that the Sixth Amendment right to counsel
arises as to the specific offense which is charged. The defendant in Wilder was charged in
an indictment with receiving stolen goods. During the trial regarding the receipt of stolen
goods, a defense witness told the prosecution that the defendant had paid him to lie to
defense counsel about his receiving the stolen goods in question. The witness tape recorded
a conversation he had with the defendant regarding the witness’s testimony about the stolen
goods, which taping occurred outside of the courtroom but during the course of the trial.
After reviewing the recording in camera, the trial judge allowed the tape to be admitted over
defense counsel’s objection. On appeal, the defendant claimed that the introduction of the
tape violated his Sixth Amendment right to counsel because the statements were recorded
without his counsel being present after his right to counsel had attached. In Wilder, this
Court found that it was appropriate for the tape to be introduced for impeachment purposes
during the trial on the stolen goods charge. This conclusion was reached after finding that
there was no basis to suppress the tape because no formal subornation charges had yet been
initiated and the defendant’s Sixth Amendment right to counsel had not yet attached “with
respect to that charge.” Id. at 438, 352 S.E.2d at 726. As further noted in Wilder, because
the recorded statements were made before subornation charges were levied, “[t]he
statements made on the tape would [also] . . . have been admissible in a subsequent trial on
a charge of subornation even though they were recorded while Mr. Wilder was indicted
under another charge.” Id. Accord Maine v. Moulton, 474 U.S. 159, 180 (1985) (Pursuant
to the Sixth Amendment right to counsel, “incriminating statements [obtained by police]
pertaining to pending charges are inadmissible at the trial of those charges. . . ;
[i]ncriminating statements pertaining to other crimes, as to which the Sixth Amendment right
has not yet attached, are, of course, admissible at a trial of those offenses.”)
In the present case, the offense of third-degree sexual assault was under
investigation when the custodial interrogation occurred. Since judicial proceedings had not
yet been initiated against Appellant regarding the sexual assault charge, the right to counsel
under the Sixth Amendment had not yet attached.6 Syl. Pt. 1, State v. Bowyer, 181 W. Va.
at 27, 380 S.E.2d at 194. To the extent that Appellant’s Fifth Amendment right to counsel
was triggered during the police interrogation, he had been apprised of his right to counsel
and signed a waiver of his rights prior to the questioning. Thus we conclude that the lower
Having concluded that the Sixth Amendment right to counsel was not at issue
in this case, we decline the invitation to address the impact the 2009 Supreme Court decision
in Montejo v. Louisiana may have on our Sixth Amendment jurisprudence.
court committed no reversible error regarding attachment of the right to counsel in this case,
and we affirm the trial court’s denial of the motion to suppress the confession.
For the reasons stated above, we find that the trial court rightly denied the
motion to suppress the confession under the circumstances. Consequently, the August 7,
2009, judgment order of the Circuit Court of Mercer County is affirmed, and the matter
returned for enforcement of the order.