State of WV v. Sugg
Annotate this Case
January 1995 Term
_________
NO. 22486
_________
STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee
V.
MARVIN D. SUGG,
Defendant Below, Appellant
__________________________________________________________
Appeal from the Circuit Court of Kanawha County
Honorable John Hey, Judge
No. 93-F-274
AFFIRMED
____________________________________________________________
Submitted: January 18, 1995
Filed: March 10, 1995
Mary Beth Kershner
Assistant Prosecuting Attorney
Charleston, West Virginia
Attorney for Appellee
Jack W. DeBolt
Charleston, West Virginia
Attorney for Appellant
JUSTICE CLECKLEY delivered the Opinion of the Court.
JUSTICE BROTHERTON did not participate.
JUDGE FOX sitting by temporary assignment.
SYLLABUS BY THE COURT
1. The validity of a juvenile's waiver of his or her
rights should be evaluated in light of the totality of the
circumstances surrounding the waiver, and the presence or absence
of the parents is but one factor to be considered in reaching this
determination.
2. Where neither legal counsel nor the parents are
present during interrogation, the greatest care must be taken by
the trial court to assure that the statement of the juvenile is
voluntary, in the sense not only that it was not coerced or
suggested, but that it was not the product of ignorance of rights
or of adolescent fantasy, fright, or despair.
3. The absence of a parent or counsel when a juvenile
waives his rights is not necessarily a bar to a voluntary Miranda
waiver and ultimately a confession.
4. The appropriate inquiry in regard to parental
notification is whether, after a careful review of the record in
its entirety, the reasons underlying the delay in notifying the
parents, as agreed to by the juvenile, set forth a sufficient
factual basis which support a finding that the delay was initiated
or suggested by the juvenile and the police did nothing during the
period of the delay to take advantage of the juvenile's youth and
inexperience. If a juvenile affirmatively requests that his parents not be notified until after he talks to the police and this
request is not coerced or suggested by the police, a juvenile
cannot take advantage of that discrete period of time it takes to
conduct the interview.
5. A judgment of conviction will not be set aside
because of improper remarks made by a prosecuting attorney to a
jury which do not clearly prejudice the accused or result in
manifest injustice.
6. Four factors are taken into account in determining
whether improper prosecutorial comment is so damaging as to require
reversal: (1) the degree to which the prosecutor's remarks have a
tendency to mislead the jury and to prejudice the accused; (2)
whether the remarks were isolated or extensive; (3) absent the
remarks, the strength of competent proof introduced to establish
the guilt of the accused; and (4) whether the comments were
deliberately placed before the jury to divert attention to
extraneous matters.
7 "'Sentences imposed by the trial court, if within
statutory limits and if not based on some unpermissible factor, are
not subject to appellate review.' Syl. pt. 4, State v. Goodnight,
169 W. Va. 366, 287 S.E.2d 504 (1982)." Syllabus Point 2, State v.
Farmer, ___ W. Va. ___, ___ S.E.2d ___ (No. 22162 12/9/94).
8. Rule 11 of the West Virginia Rules of Criminal
Procedure requires that a judge explore a plea agreement once
disclosed in open court; however, it does not license discussion of
a hypothetical agreement that he may prefer.
Cleckley, Justice:
The appellant and defendant below, Marvin D. Sugg, was
convicted of aggravated robbery and was sentenced to forty-five
years in prison. He appeals his conviction on three grounds: (1)
his incriminating statement to police on the night of the arrest
should have been excluded at trial because the defendant did not
make a knowing and intelligent waiver of his Miranda rightsSee footnote 1 and
the police failed to immediately present him to a magistrate and
notify his parents; (2) evidence regarding coin wrappers was
improperly admitted at trial; and (3) the sentence was
disproportionate to the crime committed and was imposed for
retaliatory reasons. For the following reasons, we reject these
challenges and affirm the judgment of the circuit court.
I.
FACTS
On December 5, 1992, a Chevron Station in South
Charleston was robbed by a young African-American male. After
being notified of the robbery, Sergeant Steve Young of the South
Charleston Police Department observed a young African-American male
pedestrian (later identified as the defendant) approximately one-
fourth mile from the Chevron Station. Sergeant Young, who was
dressed in civilian clothes, emerged from his unmarked car with his gun drawn and ordered the defendant to halt. The defendant fled
and was later apprehended by Sergeant Young with the assistance of
other South Charleston police officers.
The police read the defendant the Miranda warnings while
held face down on the ground with his hands cuffed behind his back.
When the defendant was lifted from the ground, the officers
discovered a .22 caliber chrome plated revolver.See footnote 2 The defendant
was then transported to the South Charleston Police Station. After
arriving at the station at approximately 10:00 p.m., the police
discovered the defendant was only seventeen years old. The State
claims that shortly after arriving at the station, the defendant
told Lieutenant James Miller he wanted to talk. Counsel for the
defendant contends the defendant initially denied any involvement
with the Chevron robbery and only changed his statements after
further interrogation by the police. This interrogation allegedly
took place after the police were told the defendant was a minor.
An information sheet, apparently completed with the
cooperation of the defendant, asked whether the defendant was
informed of his Miranda rights and whether he waived them. The
defendant signed a waiver of rights form outlining his Miranda
rights at 10:36 p.m. and placed his initials after every statement explaining his rights. The police took the defendant's formal
statement between 10:50 p.m. and 12:45 a.m. It was not until after
the police obtained the defendant's statement that the police
called the defendant's parents and presented the defendant to the
magistrate. Over defense objections, the defendant's confession
was admitted at trial.
Because of the gravity of the alleged crime, the
defendant's case was transferred from juvenile court to circuit
court so that the defendant could be tried as an adult. Following
the presentation of the evidence, the jury found the defendant
guilty of aggravated robbery with the use of a firearm. By order
dated February 4, 1994, the defendant was sentenced to a
determinate sentence of forty-five years.
In this appeal, this Court has decided to review the
following assignments of error: (1) was the defendant's statement
properly admitted at trial; (2) was the evidence of coin wrappers
found on the defendant at the time of his arrest properly admitted
and argued at trial; and (3) was the sentence imposed upon the
defendant disproportionate to the offense and exacted by the judge
for retaliatory reasons.
II.
DEFENDANT'S STATEMENT
The defendant contends the admission of his incriminating
statement to the police after arriving at the police station on the
night of his arrest constitutes reversible error. According to the
defendant, his statement should be excluded because: (1) the police
interrogated him without the presence of a parent or guardian and
did not promptly present him to a magistrate; (2) the police failed
to immediately notify his parents of his arrest; and (3) he did not
knowingly and voluntarily waive his Miranda rights. We will
address each of the defendant's contentions.
A.
Waiver of Rights Under W. Va. Code, 49-5-8(d)
The defendant argues the police violated the statutory
prompt presentment requirement and interrogated him without the
presence of his parents or counsel. W. Va. Code, 49-5-8(d)
(1982),See footnote 3 details a juvenile standard for prompt presentment that is similar to the adult prompt presentment requirement.See footnote 4 Although the
two standards are similar, it is important to underscore the fact
that the juvenile prompt presentment requirement is more rigorous
than the general criminal standard for prompt presentment of an
adult under W. Va. Code, 62-1-5 (1965); W.Va.R.Crim.P. 5(a). See
State v. Ellsworth J.R., 175 W. Va. 64, 331 S.E.2d 503 (1985)
(noting the strict requirement for juvenile presentment); State v.
Moss, 180 W. Va. 363, 376 S.E.2d 569 (1988) (same). In Ellsworth
J.R., we recognized that the primary purpose for the additional
juvenile protection is "the likelihood that a juvenile who commits
a serious crime may be transferred to the adult jurisdiction of the
circuit court[,] . . . there is a need to ensure that [a juvenile
defendant's] constitutional rights are preserved[.]" 175 W. Va. at
69, 331 S.E.2d at 508. If "it appears that the primary purpose of
the delay was to obtain a confession from the juvenile[,]" the confession is inadmissible. Syl. pt. 9, in part, State v. Moss,
supra. See also State v. Ellsworth J.R., supra.
The only evidence presented at the suppression hearing
regarding the arrest and the immediate circumstances after the
defendant was taken into custody came from the police and the
defendant's parents. The defendant did not testify at the
suppression hearing or at the trial. The parents of the defendant
merely confirmed the date and time the police contacted them and
their subsequent efforts to determine the whereabouts of the
defendant. Uncontradicted evidence reveals the defendant indicated
he wanted to talk to the police and wanted neither a lawyer nor his
parents present at the time he discussed the case with the police.
Based on this evidence, the trial judge ultimately found the
defendant's statement admissible.
The defendant argued at the suppression hearing, as he
does before this Court, that the statement should be excluded
because of the prompt presentment delay, the parental notification
delay, and police interrogation without the presence of a parent or
counsel. These contentions collapse in the wake of precedent and
the facts of this case.
The record indicates the defendant arrived at the police
station shortly before 10:00 p.m. on the night of the robbery and
indicated he wanted to talk to the police. When advised of his opportunity to call his parents, the defendant refused indicating
he did not want a lawyer or his parents present. A Miranda waiver
of rights form was signed at 10:36 p.m. An officer started
recording the defendant's statement at 10:50 p.m., and the
defendant signed off on a transcribed copy of his statement at
12:45 a.m. The defendant was not presented to the magistrate until
1:30 or 2:00 a.m.
The State asserts that the defendant's immediate desire
to confess upon his arrival at the police station justified the
time lag and interrogation by the officers. This Court has
recognized that "a confession otherwise proper is not necessarily
invalid" even though the confession was obtained prior to the
juvenile's presentment to a magistrate. State v. Ellsworth J.R.,
175 W. Va. at 70, 331 S.E.2d at 508. Certain delays such as delays
in the transportation of a defendant to the police station,
completion of booking and administrative procedures, recordation
and transcription of a statement,See footnote 5 and the transportation of a
defendant to the magistrate do not offend the prompt presentment
requirement. See State v. Ellsworth J.R., supra. See also State v. Persinger, 169 W. Va. 121, 286 S.E.2d 261 (1982).See footnote 6 Here,
however, the uncontradicted evidence shows that the defendant asked
to talk to the police before there was an opportunity to "book" him
and to present him to the magistrate. Thus, the initial delay was
attributable to the defendant, and the remaining delay was a result
of recording and transcribing the defendant's statement.See footnote 7
The more difficult issue is whether the defendant's
waiver of his rights was knowing and voluntary. As noted in Moss,
the issue of voluntariness must be addressed separately from that
of prompt presentment. 180 W. Va. at 375, 376 S.E.2d at 581
("compliance with the juvenile prompt present requirement is
examined separately from the determination of voluntariness"). The
defendant contends any statement given by a minor as the result of
interrogation by the police without the presence of a parent or counsel is per se invalid. On the other hand, the State contends
there is "no requirement that [defendant's] parents be present
prior to his giving his statement." We agree with the prosecution.
We believe the argument made by the defendant has been essentially
foreclosed by Ellsworth J.R. where we found a minor may waive his
Miranda rights without the presence of parents or counsel.See footnote 8 We
know of no law which provides that a minor over the age of sixteen
is conclusively presumed to be incapable of waiving his
constitutional and statutory rights without the consent of his
parents. Thus, we must determine whether the statement in this
case was freely and voluntarily given under the totality of the
circumstances analysis.
When reduced to its essence, the defendant on appeal
contends that a juvenile whose personal liberty is at stake is
entitled to the presence and counsel of his parents prior to being
interrogated, much as an adult is entitled to the presence of legal
counsel in the same circumstances. As such, he suggests, his
waiver of Miranda rights was invalid and the admission of his
statement into evidence was a violation of his statutory right to
have his parents present during interrogation. We first note that
under both federal and West Virginia law, an adult may waive his right to counsel. We find that under the circumstances of this
case, the defendant waived his Miranda rights and his right to have
his parents present during interrogation.
Emanating from In re Gault, 387 U.S. 1, 87 S. Ct. 1428,
18 L. Ed. 2d 527 (1967), a number of basic changes in this State's
juvenile practice have flowed from the abandonment of the previous
parens patriae concept. One such change is that a juvenile must be
provided at least the same rights given to adults during
interrogation. Thus, when a constitutional right is at stake, its
waiver must be knowing, intelligent, and voluntary. Although some
of the rights allegedly waived in this instance are statutory and
not constitutional, we assume, without deciding, that their waiver
must satisfy the same test. We shall examine the criteria used in
the constitutional arena to determine if the juvenile's waiver was
intelligent and knowing absent the presence and consent of his
parents.
Fare v. Michael C., 442 U.S. 707, 99 S. Ct. 2560, 61 L. Ed. 2d 197 (1979), is instructive. It held that a juvenile who
was sixteen and one-half years old and suspected of a serious crime
might waive his rights without any consultation with or the
presence of an adult even though he requested the presence of his
probation officer. In Fare, the Supreme Court held the totality of
the circumstances approach used in determining the validity of an adult waiver applied even when the interrogation of a juvenile is
involved:
"We discern no persuasive reasons
why any other approach is required where the
question is whether a juvenile has waived his
rights, as opposed to whether an adult has
done so. The totality approach permits--
indeed, it mandates--inquiry into all the
circumstances surrounding the interrogation.
This includes evaluation of the juvenile's
age, experience, education, background, and
intelligence, and into whether he has the
capacity to understand the warnings given him,
the nature of his Fifth Amendment rights, and
the consequences of waiving those rights."
442 U.S. at 725, 99 S. Ct. at 2572, 61 L. Ed. 2d
at 212.
The majority of jurisdictions, including West Virginia,
rely on the totality of the circumstances test in deciding whether
statements by a juvenile were given voluntarily, knowingly, and
intelligently. See State v. Laws, 162 W. Va. 359, 362, 251 S.E.2d 769, 772 (1978)See footnote 9; In re Kean, 520 A.2d 1271, 1274-75 (R.I. 1987) (case citations omitted). What was implicit in Laws we now make
explicit. We adopt the rationale expressed by the majority of
jurisdictions and hold that the validity of a juvenile's waiver of
his or her rights should be evaluated in light of the totality of
the circumstances surrounding the waiver, and the presence or
absence of the parents is but one factor to be considered in
reaching this determination.See footnote 10 In adopting the totality of the
circumstances standard, we do so in the belief that circuit courts
are equipped with the expertise and experience to make competent
evaluations of the special circumstances involved in a juvenile's
waiver of rights and should be allowed the discretion to do so.
Requiring the presence of parents in every case in which a juvenile
is in custody and informed of his rights "would be overly
protective; would exclude from evidence juvenile statements that
are, in fact, knowingly and voluntarily given; and would restrict law enforcement unnecessarily." In re Kean, 520 A.2d at 1275.
This Court should not and will not ignore the fact that juvenile
crime is as serious a menace to society as those crimes committed
by adults. To the victims of crime, the age of the perpetrator is
inconsequential.
Under today's decision, a juvenile can make a voluntary,
knowing, and intelligent waiver after he is properly apprised of
his constitutional and statutory rights. See State v. Kilmer, 190
W. Va. 617, 439 S.E.2d 881 (1993); State v. Randolph, 179 W. Va.
546, 370 S.E.2d 741 (1988) (defendant did not knowingly and
intelligently waive Miranda rights because he was not informed of
the nature of the charges against him); State v. McDonough, 178
W.Va. 1, 357 S.E.2d 34 (1987). However, the prosecution has a
heavy burden in establishing that a waiver is knowing and
intelligent especially when there is a possibility that the
juvenile has some sort of mental incapacity. State v. Boyd, 167
W.Va. 385, 280 S.E.2d 669 (1981). We agree also that a
juvenile's youth and experience are highly relevant factors for
consideration under Fare's and Laws's totality of the circumstances
test and that confessions or admissions of a juvenile require
special scrutiny. See Haley v. Ohio, 332 U.S. 596, 599-600, 68
S. Ct. 302, 303-04, 92 L. Ed. 224, 228-29 (1948); Gallegos v.
Colorado, 370 U.S. 49, 54-55, 82 S. Ct. 1209, 1212-13, 8 L. Ed. 2d 325, 328-29 (1962). Thus, a juvenile's purported waiver is
accorded special consideration. See also State v. Laws, 162 W. Va. at 362, 251 S.E.2d at 772 ("juvenile rights should be guarded with
a greater zeal than adult rights"). Where neither legal counsel
nor the parents are present, the greatest care must be taken by the
trial court to assure that the statement of the juvenile is
voluntary, in the sense not only that it was not coerced or
suggested, but that it was not the product of ignorance of rights
or of adolescent fantasy, fright, or despair.
Several factors weigh against a voluntary and knowing
waiver of Miranda rights in this case. For example, the defendant
was a minor at the time of his arrest and had some experience with
the juvenile court system. The first time the defendant was orally
given his Miranda warnings was under rather dramatic circumstances
considering the officers gave the defendant his Miranda warnings
while he was face down on the ground, thus raising the possibility
that the defendant was not in the position to truly appreciate his
constitutional rights. Furthermore, the defendant had no previous
charges as an adult for any crime and only one prior misdemeanor
conviction as a juvenile. The defendant reads below a third-grade
level,See footnote 11 and the testimony of certain prosecution witnesses conflicts with prior testimony under oath as to whether the
defendant was actually read the Miranda waiver of rights form.See footnote 12
On the other hand, there are also a number of factors
that suggest the defendant did give a knowing and intelligent
waiver of his Miranda rights. These include the following: (1)
the defendant did have some prior experience with the police; (2)
the Miranda rights were indisputably read to the defendant at least one time; and (3) there was a signed waiver of rights form with the
defendant's initials by each right. More significantly, the
defendant was encouraged to call his parents once he indicated his
desire to talk to the police, but he decided he did not want either
an attorney or his parents to be present.
The defendant argues another factor that should be
considered is the language of the waiver of rights form. The form
contains the following contested language: "We have no way of
giving you a lawyer, but one will be appointed for you if you wish,
if and when you go to court." Although admittedly the waiver form
in question is somewhat confusing, the United States Supreme Court
has upheld confessions premised on waiver forms with almost
identical language. See Duckworth v. Eagan, 492 U.S. 195, 109 S. Ct. 2875, 106 L. Ed. 2d 166 (1989) (the language of the warning in
its entirety sufficiently informed the defendant of his
constitutional rights). We have not dealt specifically with the
exact language of the present waiver form. We hold that a form
with ambiguous language of this nature may not alone compel
exclusion of a statement, but in combination with the special
circumstances of a case may constitute a compelling factor bearing
against a knowing and intelligent waiver.
All these facts were before the trial court at the time
it ruled on the motion to suppress. Nevertheless, the trial court
concluded after a full evidentiary hearing that "given the totality of the evidence, I find that the South Charleston Police Department
did, in fact, bring him before a legal authority at the earliest
possible time." In reference to the Miranda waiver, the trial
judge found "the Miranda rights were given, the waiver of rights
form was signed intelligibly." On review, this Court will not
overturn the factual findings of a trial court on a motion to
suppress unless they are clearly erroneous. As stated in Syllabus
Point 1, in part, of State v. Farley, ___ W. Va. ___, 452 S.E.2d 50
(1994), a trial court's factual findings regarding the
voluntariness of a confession will not be set aside unless they are
"plainly wrong or clearly against the weight of the evidence." We
find the evidence in the record amply supports the trial judge's
findings in this case and the findings are sufficient to justify
the trial court's decision.
B.
Parental Notification
The time lag before the defendant's mother and stepfather
were notified of his arrest is more problematic in this case. The
record reveals the trial court determined the police attempted to
call the defendant's parents as soon as possible. The defendant
contends this finding is in contravention of the clear language of
W. Va. Code, 49-5-8(b)(4)(i) (1982).See footnote 13
Based upon the holdings of Ellsworth J.R., we find the
absence of a parent or counsel when a juvenile waives his rights is
not necessarily a bar to a voluntary Miranda waiver and ultimately
a confession. However, W. Va. Code, 49-5-8(b)(4)(i), requires
immediate notification of the parents of a juvenile after the
juvenile's arrest. The presence or absence of a valid Miranda
waiver does not relate to whether the police have satisfied the
statutory requirements of W. Va. Code, 49-5-8(b)(4)(i). While
there are no cases in West Virginia specifically dealing with W.
Va. Code, 49-5-8(b)(4)(i), we can presume that the Legislature, in
enacting said provision, did so with the realization of the
importance of informing parents when their child is in police
custody, so they can respond to their child's needs.
Although, the text and parental notification requirements
pursuant to W. Va. Code, 49-5-8(b)(4)(i), resemble the prompt
presentment standards and, arguably, should be examined under a
similar analytical framework, all the justifications for delays in
presenting a juvenile which have been allowed under prompt
presentment should not be extended to the parental notification
requirement. Notifying parents is not a difficult task; it should
only take a few minutes to telephone the parents and explain a
juvenile's status. While we recognize there are times when parents will be difficult to locate, in those instances, the difficulty in
locating the juvenile's parents and the officer's attempts to
notify the parents, guardians, etc., shall be taken into
consideration by the trial court whenever a question of compliance
arises. Furthermore, as with prompt presentment, parental
notification for juveniles forms a second barrier between a
juvenile's constitutional rights and governmental overreaching.
Granted, some parents may not have the ability to assist their
children in any legal capacity, but such speculation is not
justification to thwart the unequivocal statutory mandate of W. Va.
Code, 49-5-8(b)(4)(i).
Barring ameliorating circumstances, this requirement at
the very least mandates adequate notice of the juvenile's status to
the parents. This construction is in harmony with the legislative
purpose of W. Va. Code, 49-5-8(b)(4)(i). It is implicit that a
child involved in the commission of an offense should be afforded
protective counseling concerning his legal rights from one
interested in his welfare. Other jurisdictions with similar
statutes have reached the same conclusion. See In the Matter of
Aaron D., 30 A.D.2d 183, 290 N.Y.S.2d 935 (1968) (the failure to
notify parents as statutorily required renders confession of
juvenile inadmissible).
In this case, the State presented no evidence that
attempts to contact the juvenile's parents were unsuccessful or that the parents were initially difficult to locate. Therefore, we
must decide from the record presented to us whether there was
another reasonable justification explaining why the police waited
until after the juvenile's statement was not only recorded, but
transcribed and signed by the juvenile before informing the
juvenile's parents of his arrest.
At the conclusion of the suppression hearing on the
confession, the trial judge stated:
"THE COURT: Well, the Court finds
in fact and concludes in law, frankly, until
the testimony of Mr. Brock [(the defendant's
step-father)] I was inclined to suppress it
because Lieutenant Miller testified he knew
that your client was a juvenile, that is he
was seventeen, I believe. But Mr. Brock, the
stepfather, testified, and I think this
rehabilitates the South Charleston Police
Department. They attempted to contact your
client's parent. In fact, they talked to Mr.
Brock on the telephone, the stepfather. Mrs.
Brock, the natural mother of your client, was
not at home. But South Charleston did attempt
to contact the parents. And I think that
rehabilitates any shortcomings, if there be
any, in his being questioned as a juvenile.
"Number one, he said he didn't want
a lawyer; he didn't even want his parents
contacted, but they did contact them, or they
attempted to, so I think that rehabilitates
the requirements as far as his being a
juvenile at the time of questioning."
The issue we must now resolve is what relief a juvenile
is entitled where the aforesaid statute is not followed, but the
juvenile, who is given the opportunity to call his parents,
declines to do so and further tells the police that he does not want either his parents or an attorney present when he talks to the
police.
We are not cited nor has our research disclosed binding
West Virginia precedent for the proposition that the failure to
notify parents inevitably leads to the exclusion of a confession.
To the contrary, we find the statute is absolutely silent as to
what sanctions are to be imposed when this provision is violated.
The absence of legislative guidance makes this section difficult to
enforce, particularly when we find the mandates of the statute were
not technically followed.See footnote 14
In this case, the juvenile arrived at the police station
at 10:00 p.m. Although his parents were not notified of his arrest
until approximately three hours later, the failure to call his
parents until after the statement was completed was a result of the juvenile's not wanting his parents called. Although the statute
undeniably requires that a juvenile's parents should be immediately
notified of a child's arrest, in this case the State has attempted
to provide good faith justification for the delay in notifying the
defendant's parents of his arrest.
The State urges us to hold that the defendant, as a
juvenile, waived his right to prompt parental notification, but
because of our disposition, we do not find it necessary to decide
whether a juvenile can waive the right to parental notification.
We note, however, that normally, a defendant cannot waive interests
that are given to the public or others. State ex rel. Herald Mail
Co. v. Hamilton, 165 W. Va. 103, 267 S.E.2d 544 (1980) (right to a
public trial); United States v. Keith, 42 F.3d 234, 238-40 (4th
Cir. 1994) (right to a speedy trial). Nor do we find it necessary
to decide whether the police were in substantial compliance with
the statute. Assuming, without deciding, that our rule requires
the exclusion of a juvenile's statement where there has been no
parental notification, we believe there should be at least one
exception to such a rule. Under these circumstances, the
appropriate inquiry in our view should be whether, after a careful
review of the record in its entirety, the reasons underlying the
delay in notifying the parents, as agreed to by the juvenile, set
forth a sufficient factual basis which support a finding that the
delay was initiated or suggested by the juvenile and the police did
nothing during the period of the delay to take advantage of a juvenile's youth and inexperience. Accordingly, we hold that if a
juvenile affirmatively requests that his parents not be notified
until after he talks to the police and this request is not coerced
or suggested by the police, a juvenile cannot take advantage of
that discrete period of time that it takes to conduct the
interview.See footnote 15
We further believe a per se punitive exclusion is
particularly inappropriate in cases such as this where the police
conduct complained of (i.e., failure to immediately notify the
parents of the juvenile's status prior to interrogation) occurred
before we judicially recognized the significance of that right.
Thus, we find the circuit court did not abuse its discretion in
admitting the juvenile's confession.
III.
COIN WRAPPERS AND ROLLS OF COINS
The defendant's second and third assignments of error
cover the admission into evidence and closing argument of the State
concerning coin wrappers found on the defendant at the time of the
arrest. The defendant argues the coin wrappers found in his
pockets at the time of his arrest should not have been admitted
into evidence because (1) the trial court failed to conduct an in
camera hearing covering questions of search and seizure, (2) the State failed to establish a chain of custody for the evidence, and
(3) the evidence was not adequately connected to the offense
charged. Furthermore, it is contended that the trial court erred
by allowing the prosecution to discuss the coin wrappers during
closing argument without any foundation.
We find the defendant's first contention that the trial
court failed to conduct an in camera hearing regarding the
admissibility of the coin wrappers into evidence is misleading. An
in camera suppression hearing was held covering two days of
testimony. There was uncontradicted testimony that the coins and
the wrappers were discovered during a search of the defendant
immediately after he was arrested. Testimony of Lieutenant R. M.
Hutchison II reveals the following:
"A: The search continued, again
looking for further weapons. And a sum of
money was discovered concealed in the clothing
of the individual. At that point, knowing
that Chief of Detectives Miller was close by,
I let him recover the money from the clothing
rather than remove it myself and hand it to
him.
The State, at the suppression hearing, identified the evidence as
State's Exhibits 7 and 8:
"MR. MORRIS: Judge, as a matter of
housekeeping, could I go ahead and mark some
evidence so I don't have to keep it in my
office?
"THE COURT: Yes.
"MR. MORRIS: We have marked for
identification purposes a gun as State's
Exhibit No. 3, an envelope with a spent round as State's Exhibit 4, an evidence bag with
some .22 caliber bullets inside of it as
State's Exhibit No. 5, an evidence bag with
with a piece of stocking or hose in it as
State's Exhibit No. 6, a blue coin wrapper as
State Exhibit's No. 7 and a red and brown coin
wrapper as State's Exhibit No. 8. The reason
I'm doing that, Judge, I'm going to turn it
over to the reporter so I don't have to keep
it down in my office all night.
"THE COURT: Any objection?
"MR. DEBOLT: I have no objection to
them being marked Your Honor." (Emphasis
added).
The trial court gave the parties ample opportunity during
a hearing on a motion to suppress to raise any relevant issues and
to offer evidence in support of their contentions. In fact,
defense counsel did ask Lieutenant Hutchison specifically about
some of the items found on the defendant at the time of his arrest:
"[MR. DeBOLT]: Lieutenant
Hutchison, you indicated that money was found
concealed in his clothing?
"A. Uh-huh.
"Q. Are you saying it was in his
pocket?
"A. As I recall it was in his
pocket in one of the jackets he was wearing."
Lieutenant Miller testified at trial the defendant had
a gun, a substantial quantity of money, and lady's stockings on his
person when arrested. During Lieutenant Miller's testimony, the
State attempted to introduce into evidence a plastic bag containing
additional items supposedly seized after the arrest. Defense counsel immediately objected to the State's attempt to introduce a
penny coin wrapper and a nickel coin wrapper.
The following exchange took place after the State
attempted to discuss the coin wrappers and defense counsel and the
State approached the bench:
"[Defense counsel]: Your Honor, I
believe counsel for the State was about to
refer to two items in his bag, which appear to
be coin wrappers, which were not taken up
during the suppression hearing. Nobody
mentioned coin wrappers whatever during the
suppression hearing.
"[Prosecution]: Judge, there was no
motion to suppress any of that evidence.
"[Defense Counsel]: I make it right
now because I don't know if he is going to
offer into evidence --
"[Prosecution]: I certainly am.
Judge, these are items taken from the
defendant when he was patted down in a lawful
search incident to arrest. The police have a
right to pat down a suspect to make sure they
don't have any weapons.
"THE COURT: They were taken off his
body?
"[Prosecution]: They certainly
were, Judge, when they patted him down.
"THE COURT: Overruled. Note your
exception."
As the above exchange indicates, defense counsel did not
attempt to explain the evidentiary basis for the objection.See footnote 16 Following the bench conference, Lieutenant Miller identified the
coin wrappers as additional items that were removed from the
defendant at the time of the arrest. The judge subsequently asked
whether there were any other objections to the admissibility of the
coin wrappers. Defense counsel added the additional ground of
relevancy. The judge overruled the relevancy objection.
Thus, we find the defendant is mistaken when he says that
"[n]obody mentioned coin wrappers whatever during the suppression
hearing." The coin wrappers were specifically identified as
State's Exhibits 7 and 8 at the suppression hearing. No reason
exists for identifying coin wrappers as exhibits other than the
desire to offer them later at trial. Despite the above, the
defendant persists in his contention that he did not know the coin
wrappers were to be used as evidence and, for that reason, never
made a motion to suppress these specific items.
We believe the right to an in camera hearing under these
circumstances arises only when the defendant has made an objection
on the ground of an illegal search and seizure. In State v. Pratt,
161 W. Va. 530, 540, 244 S.E.2d 227, 233 (1978), this Court stated:
"According to [State v.] Harr, [156 W. Va. 492, 194 S.E.2d 652
(1973),] then, the right to a hearing out of the jury's presence
about the lawfulness of an arrest from which evidence is produced, exists when defendant objects that the evidence was obtained
through illegal search--illegal here because it was incident to an
alleged invalid arrest." See also State v. Buck, 170 W. Va. 428,
294 S.E.2d 281 (1982). To the extent the defendant wanted a more
extensive hearing on the unlawful seizure of the coin wrappers, he
was required to make a pretrial motion to suppress these items
"unless the grounds are not known to the defendant" as provided by
Rule 12(b)(3) of the West Virginia Rules of Criminal Procedure.See footnote 17
Failure to make this motion will under most circumstances
constitute waiver under Rule 12(f) of the Rules of Criminal
Procedure.See footnote 18
As stated above, the defendant seeks to avoid waiver by
arguing he was unaware the coin wrappers were to be used against
him at trial. Although we have already rejected this excuse on
factual grounds, we believe there are two additional reasons that
prevent us from granting the defendant relief under this assignment
of error. First, the drafters of the West Virginia Rules of
Criminal Procedure provided a clear remedy for defendants who are
unsure of what evidence the State may offer. Rule 12(d)(2) of the
West Virginia Rules of Criminal Procedure provides in pertinent
part as follows:
"(d) Notice by the State of the
Intention to Use Evidence.
* * *
(2) At the Request of the
Defendant.--At the arraignment or as soon
thereafter as is practicable, the defendant
may, in order to afford an opportunity to move
to suppress evidence under Rule 41, request
notice of the state's intention to use (in its
evidence in chief at trial) any evidence which
the defendant may be entitled to discover
under Rule 16 subject to any relevant
limitations prescribed in Rule 16."
Rule 16(1)(C) provides:
"Documents and Tangible Objects.--
Upon request of the defendant, the state shall
permit the defendant to inspect and copy or
photograph books, papers, documents,
photographs, tangible objects, buildings or
places, or copies or portions thereof, which
are within the possession, custody and control
of the state, and which are material to the
preparation of his defense or are intended for use by the state as evidence in chief at the
trial, or where obtained from or belonging to
the defendant."
If there was any doubt as to what the State intended to use as
evidence after the suppression hearing, the defendant, by a simple
exercise of reasonable diligence, could have utilized either or
both of the above rules to discover the intentions of the State.
Because the defendant did not avail himself of these discovery
devices, we cannot excuse his failure to file a pretrial motion to
suppress the coin wrappers.
Furthermore, even as of this date, we do not know what
purpose another in camera hearing would serve. The defendant has
failed to cite or offer any basis to justify the exclusion of the
coin wrappers on constitutional grounds. The defendant did not at
the hearing on his motion to suppress, at trial, or on appeal
present any evidence suggesting the items were removed in an
unlawful search incident to arrest. West Virginia jurisprudence is
replete with cases upholding the admission of evidence seized as an
incident to a lawful arrest. See State v. Flint, 171 W. Va. 676,
301 S.E.2d 765 (1983); State v. Winston, 170 W. Va. 555, 295 S.E.2d 46 (1982); State v. Boswell, 170 W. Va. 433, 294 S.E.2d 287 (1982).
See also New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981). We find no error in the trial court's failure
to hold an additional in camera hearing to determine the
admissibility of the coin wrappers.
The final objection made to the admissibility of the coin
wrappers was with regard to relevancy. Even here, defense counsel
only objected on relevancy grounds and did not provide any
explanation or justification for the objection.See footnote 19 We are thus left
to guess how the defendant envisioned the evidence was irrelevant.
Nevertheless, we find the relevancy objection is also without
merit. Obviously, coin wrappers found on the person of the
defendant minutes after an armed robbery are circumstantially
relevant to the case. To satisfy the relevancy requirement under
Rule 401 of the West Virginia Rules of Evidence, the offered
evidence merely needs to make a fact of consequence more or less
probable than it would be without the evidence. State v. Derr, ___
W. Va. ___, ___, 451 S.E.2d 731, 744 (1994). Given the relevancy
of coin wrappers found on the defendant immediately after the
robbery and the fact the State had a good faith basis to believe
the coin wrappers found on the defendant were fruits of the robbery, the trial court did not abuse its discretion in ruling the
testimony was probative and any probative value outweighed the
prejudicial effect of the evidence under Rule 403.
The defendant's second argument concerns the impropriety
of the State's comments during closing argument concerning the
rolls of coins. During the State's closing argument, the following
exchange took place:
"[Prosecution:] He [the defendant]
even had, he even had the rolls of coins that
came out of the cash register.
* * *
"[Defense counsel]: There is no
testimony of that whatsoever --
"THE COURT: The jury will remember
the testimony. If there wasn't, disregard
that last observation by the Prosecutor.
"[Prosecution:] . . . But I would
submit to you that those rolls of coins were
removed from the defendant and they were in
his pocket that night. . . . And I would
submit to you that the rolls of the coins came
out of his pocket[.]"
The argument of defense counsel misconstrues the role and
function of the prosecuting attorney. Clearly, a prosecuting
attorney should refrain from referring to questionable evidence
that may poison the jury's mind against the defendant. However,
there is equally clear authority that a prosecuting attorney's
suggestion of a plausible inference to be drawn from the evidence
is proper. See State v. Asbury, 187 W. Va. 87, 92, 415 S.E.2d 891,
896 (1992) ("[a] prosecutor is allowed to argue all reasonable inferences from the facts"). In the present case, the prosecutor's
comments to the jury merely were his interpretation of the facts.
We find the inference that the cash in the defendant's possession
was the result of a robbery was plausible from the evidence and the
argument, therefore, was proper.See footnote 20
Even were we to find that the argument was not factually
supported by the evidence, we would not reverse this case. A
judgment of conviction will not be set aside because of improper
remarks made by a prosecuting attorney to a jury which do not
clearly prejudice the accused or result in manifest injustice.
See State v. Petrice, 183 W. Va. 695, 398 S.E.2d 521 (1990)
(prosecutor's comments, although inappropriate, were not sufficient
alone to justify reversal of verdict). See also State v. Stewart,
187 W. Va. 422, 419 S.E.2d 683 (1992); State v. Starr, 158 W. Va.
905, 216 S.E.2d 242 (1975). It is not enough that prosecutorial
remarks are "undesirable or even universally condemned." Darden v.
Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 2471, 91 L. Ed. 2d 144, 157 (1986), quoting Darden v. Wainwright, 699 F.2d 1031, 1036
(11th Cir. 1983). The test is whether the remarks "so infected the
trial with unfairness as to make the resulting conviction a denial of due process." Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94
S. Ct. 1868, 1871, 40 L. Ed. 2d 431, 437 (1974). This Court has held
that whether improper argument by the prosecution has so prejudiced
the trial process as to require reversal must be gauged from the
facts of each trial. State v. Moss, 180 W. Va. at 368, 376 S.E.2d
at 574 (reversed: prosecutor called the defendant a "'psychopath'
with a 'diseased criminal mind'" and encouraged the jury to find
the defendant guilty of first degree murder so the defendant "would
'never be released to slaughter women and children of Kanawha
County'").
Four factors are taken into account in determining
whether improper prosecutorial comment is so damaging as to require
reversal: (1) the degree to which the prosecutor's remarks have a
tendency to mislead the jury and to prejudice the accused; (2)
whether the remarks were isolated or extensive; (3) absent the
remarks, the strength of competent proof introduced to establish
the guilt of the accused; and (4) whether the comments were
deliberately placed before the jury to divert attention to
extraneous matters. United States v. Harrison, 716 F.2d 1050, 1052
(4th Cir. 1983), cert. denied sub nom., Wissler v. United States,
466 U.S. 972, 104 S. Ct. 2345, 80 L. Ed. 2d 819 (1984).
In this case, the comments in question were not so
egregious and prejudicial "that manifest injustice resulted from
the prosecutor's remarks insofar as their cumulative effect denied the [defendant] his fundamental right to a fair trial and
constituted plain error." State v. Moss, 180 W. Va. at 368, 376 S.E.2d at 574. Furthermore, the evidence supporting guilt was
overwhelming.
IV.
SENTENCING
The defendant's last argument is that the trial court
imposed a disproportionate sentence for retaliatory reasons.
According to an affidavit submitted by defense counsel, the trial
judge engaged in improper plea bargaining by privately telling
counsel that if the defendant would plead guilty to the crime, the
judge would guarantee the defendant would be sentenced to less than
thirty years; but, if the defendant proceeded to trial, the judge
would not make any guarantees about the sentence. Defense counsel
asserts the trial judge told him the trial judge would deny his
statements if defense counsel informed anyone else. After
discussing the trial judge's proposal with the defendant, the
defendant opted to proceed to trial.
As a general proposition, we will not disturb a sentence
following a criminal conviction if it falls within the range of
what is permitted under the statute. In Syllabus Point 2 of State
v. Farmer, ___ W. Va. ___, ___ S.E.2d ___ (No. 22162 12/9/94), this
Court stated:
"'Sentences imposed by the trial
court, if within statutory limits and if not based on some unpermissible factor, are not
subject to appellate review.' Syl. pt. 4,
State v. Goodnight, 169 W. Va. 366, 287 S.E.2d 504 (1982)."
In this case, the defendant was convicted and sentenced within the
statutory period.See footnote 21 W. Va. Code, 61-2-12 (1961), only requires that
a defendant convicted of aggravated robbery receive a minimum
sentence of ten years.See footnote 22
However, the defendant's assertion that the trial judge
engaged in impermissible plea bargaining and the defendant's lengthy sentence would, if adequately documented, raise the issue
that the defendant's determinate sentence of forty-five years may
have been based on some impermissible factor.
Rule 11 of the West Virginia Rules of Criminal Procedure
erects an absolute bar to a trial judge's participation in plea
bargaining. A trial court is free, of course, to reject a plea
agreement and may even express its reasons for doing so. But Rule
11(e)(1) prohibits absolutely a trial court from all forms of
judicial participation in or interference with the plea negotiation
process. There are, of course, good reasons for the rule admitting
of no exceptions. First and foremost, it serves to diminish the
possibility of judicial coercion of a guilty plea, regardless of
whether the coercion would cause an involuntary, unconstitutional
plea. Second, such involvement is likely to impair the trial
court's impartiality. A judge who suggests or encourages a
particular plea bargain may feel a personal stake in the agreement
and, therefore, may resent a defendant who rejects his advice.
Third, judicial participation in plea discussions creates a
misleading impression of the judge's role in the proceedings. As
a result of his participation, the judge is no longer a judicial
officer or a neutral arbiter. Rather, he becomes or seems to
become an advocate for the resolution he suggests to the defendant.
For these reasons, Rule 11(e)(1) draws a bright-line prohibiting
judicial participation in plea negotiations. In sum, Rule 11
requires that a judge explore a plea agreement once disclosed in open court; however, it does not license discussion of a
hypothetical agreement that he may prefer.
It is conceivable that the trial judge may have engaged
in improper conduct, as claimed in defense counsel's affidavit.
However, the affidavit submitted to this Court is not part of the
trial record and the remaining record is insufficient to prove a
retaliatory sentence. Thus, defense counsel's failure to properly
vouch the record during the trial or following the sentencing
hearing and the lack of other evidence supporting the allegations
preclude our appellate consideration of the possibility of judicial
misconduct in relation to the sentence. Where the record is
insufficient for our review, we said in State v. Derr, ___ W.Va.
at ___, 451 S.E.2d at 748:
"It is not our practice to address claims such
as this one on direct appeal. Accordingly, we
require the defendant first assert such a
claim in a collateral proceeding under W. Va.
Code, 53-4A-1, et seq., so that the trial
court can develop a more complete evidentiary
record with regard to this constitutional
violation claim and what, if any, effect it
had on the trial's outcome."
Therefore, we conclude the defendant may pursue this issue in a
habeas corpus proceeding.See footnote 23
V.
CONCLUSION
For the reasons set forth above, we affirm the judgment
and sentence of the Circuit Court of Kanawha County.
Affirmed.
Footnote: 1
See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).Footnote: 2
It was later discovered that the gun contained one spent
and five unspent bullets. Significantly, a prosecution witness
testified that the perpetrator fired one shot after robbing the
Chevron Station. Footnote: 3
W. Va. Code, 49-5-8(d), requires that:
"[a] child in custody must immediately be
taken before a referee or judge of the
circuit court and in no event shall a delay
exceed the next succeeding judicial day:
Provided, That if there be no judge or
referee then available in the county, then
such child shall be taken immediately before
any magistrate in the county for the sole
purpose of holding a detention hearing. The
judge, referee or magistrate shall inform the
child of his right to remain silent, that any
statement may be used against him and of his
right to counsel, and no interrogation shall
be made without the presence of a parent or
counsel." (Emphasis added).
W. Va. Code, 49-5-8, was modified in 1994, but the modified
provisions in question are not relevant to this case.Footnote: 4
The prompt presentment requirement for an adult criminal
defendant arising from Rule 5(a) of the West Virginia Rules of
Criminal Procedure is triggered when a defendant is under arrest
or in police custody with probable cause for an arrest. See
State v. Kilmer, 190 W. Va. 617, 439 S.E.2d 881 (1993); State v.
Humphrey, 177 W. Va. 264, 351 S.E.2d 613 (1986). A delay prior
to presentment to a magistrate following an arrest is a "critical
factor where it appears that the primary purpose of the delay was
to obtain a confession from the defendant." Syl. pt 3, in part,
State v. Kilmer, supra. See also State v. Dyer, 177 W. Va. 567,
355 S.E.2d 356 (1987). Footnote: 5
We indicate in note 3, supra, that the Legislature amended
W. Va. Code, 49-5-8(d) in 1994 without making any
significant changes to it. Ellsworth J.R. was decided in 1985.
We may "'assume that our elected representatives . . . know the
law.'" State ex rel. Smith v. Maynard, ___ W. Va. ___, ___
S.E.2d ___ (No. 22494 11/18/94), quoting Cannon v. University of
Chicago, 441 U.S. 677, 696-97, 99 S. Ct. 1946, 1958, 60 L. Ed. 2d 560, 575-76 (1979)). Thus, it is logical to assume that the
Legislature was fully aware of the Ellsworth J.R. opinion and
agreed with its interpretation.Footnote: 6
When analyzing the juvenile prompt presentment standards,
we are not as lenient with procedural shortcomings as we are with
the adult standards. See State v. Ellsworth J.R., 175 W. Va. at
69, 331 S.E.2d at 508 (consideration of constitutional rights
"apply to juvenile defendants even more forcibly [than to adult
defendants] because of their age and immaturity"). Therefore,
even brief, unexplained delays are magnified when a juvenile's
rights are at issue. Footnote: 7
In determining the reasonableness of the delay, the
significant period of detention is that which occurs before the
confession and not thereafter. See Weekly v. State, 222 A.2d 781, 787 (Del. 1966). In this case, the period before the waiver
and confession was approximately twenty minutes and, while not
adequately explained by the State or discussed by the trial
judge, it appears this relatively brief delay was caused by the
defendant's eagerness to talk to the police. Certainly, the
prompt presentment rule does not require the police to forego
listening to a juvenile who, after being warned of his Miranda
rights, asks to talk to the police. Footnote: 8
Although the defendant was a juvenile when arrested, our
cases clearly establish that juveniles can waive their Miranda
rights. We recognized in State v. Ellsworth J.R., supra, that
even the absence of counsel will not invalidate a juvenile's
waiver of Miranda rights if it is established that there was a
voluntary, knowing, and intelligent waiver.Footnote: 9
In State v. Laws, 162 W. Va. at 363, 251 S.E.2d at 772, we
recognized numerous factors that must be examined when evaluating
the voluntariness of a juvenile confession under the totality of
the circumstances. Some of these factors include:
"1) age of the accused; 2)
education of the accused; 3) knowledge of the
accused as to both the substance of the
charge, if any has been filed, and the nature
of his rights to consult with an attorney and
remain silent; 4) whether the accused is held
incommunicado or allowed to consult with
relatives, friends or an attorney; 5) whether
the accused was interrogated before or after
formal charges had been filed; 6) methods
used in interrogation; 7) length of
interrogations; 8) whether vel non the
accused refused to voluntarily give
statements on prior occasions; and 9) whether
the accused has repudiated an extra judicial
statement at a later date. West v. United
States, 399 F.2d 467 at 469 (5th Cir. 1968).
See also, State In Interest of Dino, La.,
. . . 359 So. 2d 586 at 591 (1978)."Footnote: 10
We wish to make it clear, however, that our ruling is not
intended in any way to diminish the bright-line and per se effect
of the prompt presentment or Miranda rulings. In Moss and
Ellsworth J.R., this Court made it clear that in juvenile cases
noncompliance with the prompt presentment requirement results in
inadmissibility if the violation occurred for the primary purpose
of obtaining a confession. To be specific, any evidence obtained
during a period of "unnecessary" delay between arrest and
presentment of the juvenile to the magistrate is inadmissible at
trial if such evidence was reasonably related to the unnecessary
delay. Similarly, a confession obtained during a custodial
interrogation is only admissible if the Miranda rights have been
scrupulously honored. Footnote: 11
We have recognized that a mental impairment could
establish a defendant's inability to waive his rights. See State
v. Boyd, supra. Additionally, a defendant's possible mental
incapacity is so significant that a defense attorney's failure to
raise the issue of mental incapacity, where the facts suggest
some impairment, constitutes ineffective assistance of counsel.
Wickline v. House, 188 W. Va. 344, 424 S.E.2d 579 (1992).
Similarly, we believe a juvenile's reading level is obviously
relevant in the determination of his ability to waive his rights
when he is handed a written form and told to read it. However,
no evidence was offered during the suppression hearing that the
defendant had a below average reading level. Although defense
counsel did not argue incapacity during the suppression hearing,
he did question one prosecution witness as to whether the witness
could be sure the defendant understood the Miranda warnings.Footnote: 12
Lieutenant Miller of the South Charleston Police
Department testified on direct examination at trial that he read
the Miranda waiver of rights form to the defendant. However, on
cross-examination, Lieutenant Miller admitted to the following
exchange at the preliminary hearing before a juvenile
referee:
"'Q Did you at any time read the
rights to him?
"'A Did I?
"'Q Yes, sir.
"'A Not, no, I asked him if he
understood his rights. I never asked him or
actually read his rights to him. I showed
him the form, and I asked him if he didn't
understand that form. And he read the form
and initialed it.
"'Q Did anyone in your presence
read his rights to him?
"'A Not in my presence, no, sir.'"
On redirect, Lieutenant Miller attempted to explain his
conflicting testimony by suggesting that at the time of the
preliminary hearing he "was under the impression when that
question was asked to me at the crime scene." Footnote: 13
W. Va. Code, 49-5-8(b)(4)(i), provides, in part: "Upon
taking a child into custody, with or without a warrant or court
order, the official shall: (i) Immediately notify the child's
parent, custodian or, if the parent or custodian cannot be
located, a close relative[.]" Although W. Va. Code, 49-5-
8(b)(4), was amended in 1994, the changes did not substantially
alter the content of this provision. Footnote: 14
Unlike W. Va. Code, 49-5-1(d) (1982) (requiring the
exclusion of extrajudicial statements of a child under the age of
sixteen, but above thirteen if parents or counsel are not
present), W. Va. Code, 49-5-8(b)(i), has no language requiring
the exclusion of evidence when its parental notification
provisions are violated. Expressio unius is a well-accepted
canon of statutory construction. William N. Eskridge, Jr. &
Philip P. Frickey, Cases and Materials On Legislation: Statutes
And The Creation Of the Public Policy 641 (1988). If the
legislature includes a qualification in one statute, but omits
the qualification in another related statute, courts should
assume the omission was intentional; the courts infer that the
Legislature intended the qualification would not apply to the
latter statute. This canon is a product of logic and common
sense, and it has special force when the statutory scheme is
carefully drafted. Unquestionably, our juvenile statutes are
carefully sculpted; they are the product of a legislative
drafting process which began in 1936 and even today are the
subject of legislative revisions.Footnote: 15
It should be clear that we express no opinion directly or
indirectly as to what relief a juvenile is entitled where the
parental notification delay is due exclusively to the police. Footnote: 16
Defense counsel also failed to preserve any errors under
Rule 403 (prejudicial balancing test) and Rule 901 (authenticity)
of the West Virginia Rules of Evidence. Footnote: 17
Rule 12(b) of the West Virginia Rules of Criminal
Procedure reads, in part:
"Pretrial Motions. Any defense,
objection or request which is capable of
determination without the trial of the
general issue may be raised before trial by
motion. Motions may be written or oral at
the discretion of the judge. The following
must be raised prior to trial:
* * *
"(3) Motion to suppress evidence
unless the grounds are not known to the
defendant[.]" Footnote: 18
Rule 12(f) of the Rules of Criminal Procedure reads as
follows:
"Effect of Failure to Raise
Defenses or Objections. Failure by a party
to raise defenses or objections or to make
requests which must be made prior to trial,
at the time set by the court pursuant to
subdivision (c), or prior to any extension
thereof made by the court, may constitute
waiver thereof, but the court for cause shown
should grant relief from the waiver." Footnote: 19
In requesting the exclusion of this evidence, the
defendant cites no specific exclusionary rule other than
"irrelevancy," just as he cited none at trial. Indeed, there is
no rule mandating the exclusion of this evidence. The most
logical fit for the exclusion of this evidence, considering the
objection made, is Rules 401 and 402 of the West Virginia Rules
of Evidence.
Rule 402 requires exclusion only if the evidence
does not meet the "probability" standard of Rule 401: " Rule 401.
Definition of 'Relevant Evidence'. 'Relevant evidence' means
evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence."
An objection that evidence is "irrelevant" does not normally
preserve error under the more specific exclusionary rules of
Rules 404 through 412. Thus, we need only determine whether this
evidence is "logically" relevant under Rule 401. Footnote: 20
We review for abuse of discretion the circuit court's
failure to caution the jury regarding inferences to be drawn from
admitted evidence. See United States v. Jogt, 910 F.2d 1184,
1192 (4th Cir. 1990) (assessments of relevancy and prejudice of
evidence are committed to the broad discretion of the trial
judge). Accordingly, we do not find the trial court abused its
discretion by leaving to the jury what inferences should be
drawn. Footnote: 21
The forty-five year sentence would clearly be a reasonable
sentence for aggravated robbery in certain cases. In fact, we
have upheld sentences for aggravated robbery in excess of forty-
five years. See, e.g., State v. Glover, 177 W. Va. 650, 355 S.E.2d 631 (1987) (seventy-five year sentence upheld when victim
nearly died and defendant had previous convictions and a
presentence report characterized the defendant as violent), rev'd
on other grounds, State v. Glover, 183 W. Va. 431, 396 S.E.2d 198
(1990); State v. England, 180 W. Va. 342, 376 S.E.2d 548 (1988)
(life sentence upheld where crime was violent and defendant had a
prior record); State v. Spence, 182 W. Va. 472, 388 S.E.2d 498
(1989) (sixty year sentence not disproportionate where victim
suffered permanent emotional damage and the defendant had several
prior convictions). But cf. State v. Cooper, 172 W. Va. 266, 304 S.E.2d 851 (1983) (forty-five year sentence violated
proportionality principles because it was disproportionate to the
crime where no weapon was used, the victim was not seriously
injured, and only prior conviction was for public intoxication).Footnote: 22
W. Va. Code, 61-2-12, provides, in part:
"If any person commit, or attempt to commit, robbery by partial strangulation or suffocation, or by striking or beating, or by other violence to the person, or by the threat or presenting of firearms, or other deadly weapon or instrumentality whatsoever, he shall be guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less than ten years." Footnote: 23 A timely motion filed under Rule 35(b) of the West Virginia Rules of Criminal Procedure will provide the defendant with a final opportunity to have the circuit court reconsider the appropriateness of the forty-five year sentence.
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