State v. Bradley, 13843

Citation163 W.Va. 148,255 S.E.2d 356
Decision Date29 May 1979
Docket NumberNo. 13843,13843
PartiesSTATE of West Virginia v. Richard Gale BRADLEY.
CourtSupreme Court of West Virginia

Syllabus by the Court

1. When a criminal defendant requests counsel, it is the duty of those in whose custody he is, to secure counsel for the accused within a reasonable time. In the interim, no interrogation shall be conducted, under any guise or by any artifice. W.Va.Const. Art. 3, § 5 and W.Va.Const. Art. 3, § 14.

2. If after requesting counsel an accused shall recant his request, there is a heavy burden upon the state to prove his waiver of right to counsel.

3. There can be no interrogation of a person accused of committing a crime after he requests counsel, until counsel is provided except that if the suspect recants his request before counsel can be provided with reasonable dispatch, interrogation may be conducted.

John S. Sibray, J. Stephen Max, James M. Sturgeon, Jr., Charleston, for plaintiff in error.

Chauncey H. Browning, Atty. Gen., Pamela Dawn Tarr, Asst. Atty. Gen., Charleston, for defendant in error.

HARSHBARGER, Justice:

A Kanawha County Circuit Court jury convicted Richard Gale Bradley of murdering a fellow inmate in the county jail. The only problem with the trial we need probe is the propriety of introduction of testimony by policemen about oral statements made by Bradley that incriminated him in beating and incinerating the inmate.

The killing occurred on the morning of March 29, 1975. That evening, the county sheriff and two of his deputies approached defendant and read an "Interrogation: Advice of Rights" form:

"Before we ask you any questions, you must understand your rights.

"You have the right to remain silent.

"Anything you say can be used against you in court.

"You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning.

"If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish.

"If you decide to answer questions now without a lawyer present, you will still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer."

One of the deputies asked him if he understood what had been read to him and he said he did. The deputy then asked him to sign a waiver:

"I have read this statement of my rights and I understand what my rights are. I (am) (am not) willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me."

Bradley refused to sign. He requested that he be allowed to speak to William Hazlett, an attorney representing him on another charge. Unsuccessful efforts were made to reach Hazlett and another person defendant wanted to contact, and the sheriffs questioned him no further.

Two days later in the morning, and without any further effort to obtain counsel for Bradley, the two deputies and a Charleston city police detective again read defendant his "rights" and the waiver. He affirmed his understanding, refused to sign the waiver, and asked for a lawyer. No further questioning was conducted. But neither was there effort to get the man a lawyer.

That afternoon two of the officers arrested him, read the warnings which again defendant acknowledged understanding, and thereupon transported him to the office of a justice of the peace where a warrant issued charging him with murder. The justice of the peace also advised him of his right to counsel. The record is silent about his response to this advice.

Later, after returning to the jail, when faced with what the police officers characterized as a group of hostile media employees, he volunteered statements to the police who had him in custody. He prefaced the admissions with vouchments such as, "Oh, I know about your rights. You have explained to me about them. I know what they are."

He refused to give a written statement but the next day again spoke with officers, corroborating what he had told them before.

These oral admissions were not suppressed by the trial court and were used in defendant's trial.

The main argument advanced by the state supporting admission of the remarks made by defendant, is that he waived his Fifth Amendment rights and his right to counsel.

" 'When a defendant warned of his rights makes statements without a lawyer present, the prosecution may use these statements at trial only if it sustains its "heavy burden" of demonstrating that the defendant "knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. " Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, (16 L.Ed.2d 694) (1966). . . . To be valid, a waiver must be made voluntarily, United States v. Ogle, 5 Cir., 1969, 418 F.2d 238, and may not be presumed "simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained. " Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, (16 L.Ed.2d 694) (1966). An express statement that the individual does not want a lawyer is not required, however, to show that the individual waived his right to have one present. See Bond v. United States, 10 Cir., 1968, 397 F.2d 162, 165. All that the prosecution must show is that the defendant was effectively advised of his rights and that he then intelligently and understandingly declined to exercise them. See Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962).' " (Emphasis supplied) (United States v. Montos, 421 F.2d 215, 224 (5th Cir. 1970), Cert. den., 397 U.S. 1022, (90 S.Ct. 1262, 25 L.Ed.2d 532) (1970))

Quoted in: United States v. Mix, 446 F.2d 615 (5th Cir. 1971), and United States v. Daniel, 441 F.2d 374 (5th Cir. 1971).

This argument fails because it overlooks this defendant's specific requests for counsel at least twice made. And it also overlooks his refusal to sign the waivers proffered to him at least twice.

We would certainly contribute nothing to a logical body of law were we to hold that a man who asks for a lawyer and expressly refuses to sign a waiver of his right to a lawyer, thereby waives that right. "I want a lawyer" does not mean "I do not want a lawyer." "I will not waive my right to a lawyer" does not mean "I waive my right to a lawyer." "No" does not mean "yes."

And our law is clear that once the request for counsel is made, all interrogation that day or later stops, until counsel is provided. We cannot allow a request for counsel to be avoided by minimal...

To continue reading

Request your trial
22 cases
  • Kane v. Corning Glass Works
    • United States
    • West Virginia Supreme Court
    • October 17, 1984
    ... ... that operating the saw without the safety shield was a violation of both federal and state safety regulations ...         A federal safety inspector had ordered the employees not to ... pt. 1, Reese v. Lowry, 140 W.Va. 772, 86 S.E.2d 381 (1955), overruled on other grounds, Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879 (1979); Syl. pt. 1, Roush v. Johnson, ... ...
  • State v. Wyer
    • United States
    • West Virginia Supreme Court
    • March 21, 1984
    ...a subsequent waiver, had an even heavier burden "best borne by a written statement signed by the defendant." State v. Bradley, 163 W.Va. 148, 153, 255 S.E.2d 356, 358 (1979).26 Even though the defendant does initiate further communication, any waiver of the Sixth Amendment must still be in ......
  • State v. Louk
    • United States
    • West Virginia Supreme Court
    • March 25, 1983
    ...W.Va. 896, 280 S.E.2d 721 (1981); State v. Clawson, 165 W.Va. 588, 270 S.E.2d 659 (1980); Syllabus Points 1 and 2, State v. Bradley, 163 W.Va. 148, 255 S.E.2d 356 (1979). In State v. McNeal, 162 W.Va. 550, 251 S.E.2d 484 (1978), we Once a suspect in custody has expressed his clear, unequivo......
  • State v. Clawson
    • United States
    • West Virginia Supreme Court
    • September 23, 1980
    ...standards as applied to in-custody interrogation." 384 U.S. at 475, 86 S.Ct. at 1628, 16 L.Ed.2d at 724. In Syllabus Point 1 of State v. Bradley, W.Va., 255 S.E.2d 356 (1979), we established, under our State constitution, this rule in regard to the effect of a request for counsel: "When a c......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT