State v. McNeal

• Decision Date: 11 July 1978
• Docket Number: No. 13954,13954
• Citation: 162 W.Va. 550,251 S.E.2d 484
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Clarence Franklin McNEAL.

Page 484

251 S.E.2d 484

162 W.Va. 550

STATE of West Virginia v. Clarence Franklin McNEAL.

No. 13954.

Supreme Court of Appeals of West Virginia.

July 11, 1978.

Rehearing Denied Jan. 25, 1979.

Syllabus by the Court

1. Once a suspect in custody has expressed his clear, unequivocal desire to be represented by counsel, the police must deal with him as if he is thus represented. Thereafter, it is improper for the police to initiate any communication with the suspect other than through his legal representative, even for the limited purpose of seeking to persuade him to reconsider his decision on the presence of counsel.

2. Evidence obtained as a result of an unlawful search, seizure, or arrest cannot be introduced against the accused upon his trial.

3. "In determining whether an out-of-court identification of a defendant is so tainted as to require suppression of an in-court identification a court must look to the totality of the circumstances and determine whether the identification was reliable, even though the confrontation procedure was suggestive, with due regard given to such factors as the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." Syl. pt. 3, State v. Casdorph, W.Va., 230 S.E.2d 476 (1976).

Leo Catsonis, Thomas L. Linkous, Catsonis & Linkous, Charleston, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., Gregory E. Elliott, Asst. Atty. Gen., Charleston, for defendant in error.

McGRAW, Justice:

Defendant, upon a plea of not guilty, was convicted by a jury on June 17, 1976, of robbery by violence and was sentenced to a term of forty years in the penitentiary.

The record indicates that on December 9, 1975, at approximately 9:40 o'clock P.M., two black men approached the pay booth at an Exxon Station in Charleston, West Virginia and purchased a small container of gasoline. Shortly thereafter they returned, one sloshed gasoline through the window, and the other ignited it with a match. The attendant, Kincaid, who was forced to flee the booth, was immediately accosted by one of the men holding a knife who screamed in a stuttering voice "Give me your . . . money or I will cut your . . . guts out."

At approximately the same time a customer, Frame, had pulled on the lot, saw the fire, and was accosted by one of the men with a knife. Frame returned to his car, got a bumper jack and started chasing one of the fleeing men. The man he was chasing dropped four or five five-dollar bills which Frame retrieved. Mr. Frame could not positively identify the defendant as being the man he encountered and chased.

Officers Sayre and Taylor were in the area when they received a call to proceed to the Exxon Station on Florida Street. After a short conversation with the attendant, Mr. Kincaid, the officers proceeded in the direction where appellant had fled. The police officers encountered seventeen-year old Robert Coston, who, while returning to his home located near the Exxon station, observed the fire and saw someone running. He identified by name, the defendant, as the person running down a nearby street. He stated that he heard the defendant stuttering something that sounded like, "Mama, Mama, call the fire truck."

Afterwards, Officers Sayre, Taylor, Bush, Rinehart, and Williams proceeded to 1422 1/2 Second Avenue. They knocked on the door, identified themselves, and waited "five or ten minutes" until a stuttering male identified himself as "Jason Hill" but would not open the door. Then, presumably on the basis that one of the assailants allegedly stuttered, after calling for and receiving permission from a superior officer, the police kicked down the door and entered the house. When the police entered, they found the defendant sitting by the kitchen table with a small paring knife laying beside his arm. After a search, no money was found and the only item seized was this knife which was later introduced into evidence. Officer Sayre read the defendant his rights, and when the tenant, Otis McNeal, and the landlord appeared at the house, he again read the rights to defendant. Later, Exxon employee Kincaid was brought to the house and spontaneously identified the defendant, who was sitting in a chair handcuffed with the two other black men standing beside him.

Defendant was taken to the detective bureau and signed a waiver of rights around 11:40 P.M. but refused to make a statement. Defendant spent the night in jail and at 7:30 A.M. the next morning was taken to municipal court where he signed an affidavit of indigency requesting that counsel be appointed. Immediately thereafter, Officer Leonard took defendant back to the detective bureau to take a statement. Defendant signed a waiver at 8:20 A.M. and made a confession which, over objection, was read in its entirety to the jury and admitted into evidence. Officer Leonard testified as follows concerning the taking of the confession:

Q. I believe you told me originally in your testimony that you picked this man up downstairs from Municipal Court?

A. Yes, sir.

Q. Did you know at the time that he had requested the Court to appoint a lawyer for him, had signed an affidavit for that?

A. Yes, sir.

Q. So, at that time you took him and he made this statement to you, he had signed an affidavit with the Police Court?

A. Yes, sir.

Q. Requesting that he be appointed a lawyer?

A. Yes, sir.

There was testimony at trial to the effect that the defendant was a very emotional person who "went to pieces" in a crisis. The two physicians appointed on behalf of the defendant agreed, however, that defendant was competent to stand trial. At the time of the trial he was twenty-three years of age, had completed the eighth grade and had been discharged from the Army after nine weeks of basic training because he could not adapt to army life. He worked as a janitor for the phone company and lived with his sister. He apparently had been drinking all day on December 9th. He and his cousin, Otis McNeal, stated that Otis had taken the defendant to Otis' home at 1422 1/2 Second Avenue between 8:30 and 9:00 P.M. and put him to bed because of his intoxicated condition.

Defendant now appeals contending:

1. The court erred by admitting the "confession" into evidence over objection.

2. The court erred by admitting into evidence the paring knife seized at the time of the arrest.

3. The court erred by admitting evidence of the pre-trial identification and by permitting the State to buttress the in-court identification on the basis thereof.

4. The defendant was otherwise denied due process of law.

I

As to the confession, the State correctly points out in its brief that, "(T) he entire issue revolves around the question of whether appellant requested counsel prior to the taking of the statement."

As indicated above, the police officer who elicited the confession admitted on cross-examination that the defendant, before making the statement, had requested counsel. This is further documented in the record by the affidavit of indigency sworn to and signed by the defendant in Municipal Court asking that counsel be appointed. Since it is clear that the confession was made after the appearance in Municipal Court, there is little doubt that counsel was requested by the defendant before he made the confession.

This assignment of error is resolved by the case of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) wherein the Court held at 474, 86 S.Ct. at 1628, 16 L.Ed.2d at 723 that "(i)f the individual states that he wants an attorney, the interrogation must cease until an attorney is present."

The Fourth Circuit has consistently followed this Per se rule in such cases as Ferguson v. Boyd, 566 F.2d 873 (4th Cir. 1977); United States v. Clark, 499 F.2d 802 (4th Cir. 1974); and United States v. Slaughter, 366 F.2d 833 (4th Cir. 1966). Recently in Strickland v. Garrison, No. 76-1683 (4th Cir. June 26, 1976), an unpublished Per curiam opinion, that Court succinctly summarized the meaning of Miranda :

Once a suspect in custody has expressed his wish to be represented by counsel, the police must deal with him as if he is thus represented. Thereafter, it is improper for the police to initiate any communication with the suspect other than through his legal representative, even for the limited purpose of seeking to persuade him to reconsider his decision on the presence of counsel.

The State contends that the defendant waived his rights to counsel and to remain silent. But, the United States Supreme Court in Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424, 439-40 (1977) recently restated that the burden is on the State to prove an intentional relinquishment or abandonment of a known right or privilege, See e. g., Brookhart v. Janis, 384 U.S. 1, 4, 86 S.Ct. 1245, 1247, 16 L.Ed.2d 314 (1966); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466 (1937); and how courts indulge in every reasonable presumption against waiver, Glasser v. United States, 315 U.S. 60, 70-71, 62 S.Ct. 457, 464-65, 86 L.Ed. 680, 699-700 (1941); Johnson v. Zerbst, supra. We feel that the State has failed to meet its burden of proving waiver in this case.

We, therefore, hold that the defendant's confession, having been obtained in violation of his rights under the Fifth and Fourteenth Amendments to the United States Constitution, should not have been admitted into evidence.

II

Both the West Virginia and United States Constitutions protect the rights of citizens from unreasonable searches and seizures in their houses. W.Va.Const. art. III, § 6; U. S. Const. amend. IV.

This Court has for over fifty years stressed the necessity of a warrant. For example, in State v. Slat, 98 W.Va. 448, 449-50, 127 S.E....