301 S.E.2d 596 (W.Va. 1983), 15565, State v. Louk

Docket Nº15565.
Citation301 S.E.2d 596, 171 W.Va. 639
Opinion JudgeHARSHBARGER, Justice:
Party NameSTATE of West Virginia v. Victoria LOUK.
AttorneyFrederick S. Wilkerson, Asst. Atty. Gen., Charleston, for appellee. Joseph A. Wallace, Wallace, Ross & Gibson, Elkins, for appellant.
Case DateMarch 25, 1983
CourtSupreme Court of Appeals of West Virginia

Page 596

301 S.E.2d 596 (W.Va. 1983)

171 W.Va. 639

STATE of West Virginia

v.

Victoria LOUK.

No. 15565.

Supreme Court of Appeals of West Virginia.

March 25, 1983

Page 597

[171 W.Va. 640] 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." Syllabus Point 1, State v. McNeal, 162 W.Va. 550, 251 S.E.2d 484 (1978).

2. " 'In a prosecution for murder, where self-defense is relied upon to excuse the homicide, and there is evidence showing, or tending to show, that the deceased was at the time of the killing, making a murderous attack upon the defendant, it is competent for the defense to prove the character or reputation of the deceased as a dangerous and quarrelsome man, and also to prove prior attacks made by the deceased upon him, as well as threats made to other parties against him; and, if the [171 W.Va. 641] defendant has knowledge of specific acts of violence by the deceased against other parties, he should be allowed to give evidence thereof.' Syllabus Point 1, State v. Hardin, 91 W.Va. 149, 112 S.E. 401 (1922)." Syllabus Point 3, State v. Gwinn, 169 W.Va. 456, 288 S.E.2d 533 (1982).

3. " 'The action of a trial court in admitting or excluding evidence in the exercise of its discretion will not be disturbed by the appellate court unless it appears that such action amounts to an abuse of discretion.' Syl. pt. 5, Casto v. Martin, 230 S.E.2d 722 (W.Va.1976) citing Syl. pt. 10, State v. Huffman, 141 W.Va. 55, 87 S.E.2d 541 (1955)." Syllabus Point 3, State v. Rector, 167 W.Va. 748, 280 S.E.2d 597 (1981).

4. A defendant must make a showing of particularized need, to obtain pretrial disclosure of grand jury minutes and testimony other than his own.

Frederick S. Wilkerson, Asst. Atty. Gen., Charleston, for appellee.

Joseph A. Wallace, Wallace, Ross & Gibson, Elkins, for appellant.

HARSHBARGER, Justice:

The Randolph County Circuit Court tried Victoria Louk for first degree murder for killing her son-in-law, David Petrice, and for feloniously assaulting his companion, Randall Riffle. She presented self-defense evidence and was found guilty of voluntary manslaughter of Petrice and not guilty of assaulting Riffle.

Three months before the incident, Petrice and his wife Linda were separated, and Linda took the couple's two young sons and moved to her mother's farm home. Then, on August 13, 1980, Petrice and Riffle were drinking in Riffle's car and Petrice asked Riffle to drive him to his inlaws' farm to see his children.

Ms. Louk and a neighbor were working in the Louk garden, and in an adjacent garden was Elza Lambert, the man with whom Ms. Louk had lived for nineteen years. Elza called for her and she went to see what he wanted, and found Elza arguing with Petrice and Riffle (whom she did not know). Petrice was throwing rocks at Elza and they were yelling at each other. All three gardeners asked the men to leave, but they did not, and the altercation continued. Elza sent Ms. Louk to the house to get a

Page 598

gun. She locked her children and grandchildren in the house, and returned with a loaded pistol. Louk testified that she was terrified that the young men had a gun and were coming to attack her and her family. She shot five times, wounding Riffle and killing Petrice.

Police arrived immediately. Louk told them she had shot at the men with a rifle that she then handed to the officers. 1 She was read her Miranda rights on the scene at approximately 4:00 P.M., and although she talked with the policemen, she insisted that she wanted to ask Elza to get her a lawyer; and she refused to make a statement or sign anything.

She was taken to police headquarters at 6:55 that evening, and signed a Miranda warning form that indicated she did not want to speak with anyone at that time. At the magistrate's hearing, about 8:00 or 9:00 o'clock that night, she said that she did not want an appointed lawyer because she was getting her own. She spent the night in jail, and in the morning was permitted to call Elza.

While she was waiting she was taken to the circuit court for her bond hearing. There Ms. Louk informed the court that Elza was getting a lawyer for her.

After her return from court, but before her counsel arrived, she signed a waiver of rights and gave the police a statement. At the in camera suppression hearing Louk testified that she "got tired of them [the police] asking me. Every time they'd walk by they'd ask are you going to give me a [171 W.Va. 642] statement, yet and I'd tell them no, so I gave them one." (Record, p. 266.)

The United States Supreme Court spoke on this very question in an Arizona case in which a defendant, after requesting counsel and refusing to confess during the night following his arrest, was interrogated the next morning and gave a statement before he talked with his lawyer:

[W]e now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police. Edwards v. Arizona, 451 U.S. 477, 484-5, 101 S.Ct. 1880, 1884, 68 L.Ed.2d 378, 386 (1981), rehearing denied, 452 U.S. 973, 101 S.Ct. 3128, 69 L.Ed.2d 984 (footnote omitted).

Our law on this matter is absolutely unmistakable. Syllabus Point 4, State v. Persinger, 169 W.Va. 121, 286 S.E.2d 261 (1982); State v. Sowards, 167 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 wrote:

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. Id., Syllabus Point 1.

Louk indicated at least three times that she did not want to speak and would get her own counsel. The interrogation, and solicitations of statements from her, should have stopped.

Page 599

We cannot distinguish Louk's case from Edwards. Police were specifically asked if Louk initiated the written statement by contacting them. None testified that she suggested or requested that they take her statement. She was entitled to a total abstention from questioning until she could talk with her lawyer. Her later waiver of counsel was ineffectual. Our state constitution requires no less than a total cessation of police-defendant contact after an attorney has been requested. Officers must not talk to people about their cases after they indicate that they want a lawyer.

Defendant claims that there were numerous other trial errors.

She believes that the jury verdicts on both indictments were inconsistent. If she were not guilty of assault or malicious wounding of Riffle because it was self-defense, she necessarily had the same justification for shooting Petrice. Both were shot during one fusillade. There was sufficient evidence for the jury to decide that Ms. Louk entertained different intentions toward Riffle than she had toward Petrice. See State v. Schaefer, 170 W.Va. 649, 295 S.E.2d 814 (1982).

The trial court refused to admit various testimony about Petrice's army records, and both victims' criminal convictions and quarrelsome, violent natures. We wrote in Syllabus Point 3, State v. Gwinn, 169 W.Va. 456, 288 S.E.2d 533 (1982):2

"In a prosecution for murder, where self-defense [or provocation] is relied [171 W.Va. 643] upon to excuse the homicide, and there is evidence showing, or tending to show, that the deceased was at the time of the killing, making a murderous attack upon the defendant, it is competent for the defense to prove the character or reputation of the deceased as a dangerous and quarrelsome man, and also to prove prior attacks made by the deceased upon him, as well as threats made to other parties against him; and, if the defendant has knowledge of specific acts of violence by the deceased against other...

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