Anthony Ray Mc., In Interest of

Decision Date19 June 1997
Docket NumberNo. 23736,23736
Citation200 W.Va. 312,489 S.E.2d 289
CourtWest Virginia Supreme Court
PartiesIn the Interest of ANTHONY RAY Mc.

2. "When ruling upon the admission of a narrative under Rule 804(b)(3) of the West Virginia Rules of Evidence, a trial court must break down the narrative and determine the separate admissibility of each single declaration or remark. This exercise is a fact-intensive inquiry that requires careful examination of all the circumstances surrounding the criminal activity involved." Syl. Pt. 7, State v. Mason, 194 W.Va. 221, 460 S.E.2d 36 (1995).

3. "To satisfy the admissibility requirements under Rule 804(b)(3) of the West Virginia Rules of Evidence, a trial court must determine: (a) The existence of each separate statement in the narrative; (b) whether each statement was against the penal interest of the declarant; (c) whether corroborating circumstances exist indicating the trustworthiness of the statement; and (d) whether the declarant is unavailable." Syl. Pt. 8, State v. Mason, 194 W.Va. 221, 460 S.E.2d 36 (1995).

4. A declarant's self-serving collateral statements and neutral collateral statements are not admissible into evidence under the against penal interest exception of Rule 804(b)(3) of the West Virginia Rules of Evidence.

5. When circuit courts are confronted with a Rule 804(b)(3) against penal interest unavailability issue, involving a declarant seeking to invoke the privilege against self-incrimination, they should follow a three step procedure in determining whether and to what extent the privilege may be invoked: (a) determine whether questions are facially self-incriminating, (b) determine whether the witness proved non-facially self-incriminating questions were in fact self-incriminating, and (c) determine whether the witness established unavailability.

6. To determine whether questions are facially self-incriminating, the following must occur: (a) the court must have previously determined the existence of self-inculpatory statements by the witness, (b) the party seeking to question the witness must be allowed to pose relevant individual questions to the witness, (c) before the witness responds in any way to each question, the court must sua sponte make a determination as to whether each question is facially self-incriminating, and (d) if a question is facially self-incriminating the witness may not be compelled to answer the question absent a grant of immunity from prosecution by the court.

7. To determine whether the witness proved non-facially self-incriminating questions were in fact self-incriminating, the following must occur: (a) if the court determines that a particular relevant question is not facially self-incriminating, the witness or counsel for the witness must be permitted a reasonable opportunity to attempt to show the manner in which the question, if answered, is self-incriminating, (b) if the witness or counsel for the witness establishes by satisfactory proof that answering a non-facially self-incriminating question leads to self-incrimination, then the court cannot compel an answer, absent a grant of immunity from prosecution by the court, (c) if the witness fails to prove by satisfactory proof that answering a non-facially self-incriminating question would in fact be self-incriminating, the witness must answer the question.

8. To determine whether the witness established unavailability, the court must make an independent determination of whether, as a result of the questioning, the witness established his or her unavailability for the purpose of admitting the previously determined self-inculpatory statements.

9. "The two central requirements for admission of extrajudicial testimony under the Confrontation Clause contained in the Sixth Amendment to the United States Constitution [and W.Va. Const. Art. III, § 14] are: (1) demonstrating the unavailability of the witness to testify; and (2) proving the reliability of the witness's out-of-court statement." Syl. Pt. 2, State v. James Edward S., 184 W.Va. 408, 400 S.E.2d 843 (1990).

10. Circumstances that trigger a Confrontation Clause inquiry, when admission of a self-inculpatory statement under Rule 804(b)(3) is based solely upon a declarant's unavailability due to an assertion of the privilege against self-incrimination, include: (a) declarant refused outright to answer questions that a court has determined are non-facially self-incriminating, or (b) declarant refused to answer non-facially self-incriminating questions after failing to prove to the court that the questions are self-incriminating, or (c) declarant refused to answer facially self-incriminating questions after being granted immunity from prosecution, or (d) declarant refused to answer non-facially self-incriminating questions that were proven to be self-incriminating, but the declarant was granted immunity to answer them. In such instances, an independent Confrontation Clause inquiry is necessary and must be reflected in the record as having occurred.

11. If a declarant is determined to be unavailable under the penal interest exception of Rule 804(b)(3) merely because he or she refused to answer answerable questions, the Confrontation Clause inquiry into unavailability is necessary. In this situation alone, in order for a declarant to be deemed constitutionally unavailable, the prosecutor must affirmatively show that the declarant was granted immunity from prosecution by the court. If the prosecutor fails to establish a grant of immunity was made, the declarant is available within the meaning of the Confrontation Clause.

12. If a declarant is determined to be unavailable under the penal interest exception of Rule 804(b)(3) because he or she refused to answer answerable questions, then an independent Confrontation Clause inquiry into reliability is necessary.

13. "The burden is squarely upon the prosecution to establish the challenged evidence is so trustworthy that adversarial testing would add little to its reliability. Furthermore, unless an affirmative reason arising from the circumstances in which the statement was made provides a basis for rebutting the presumption that a hearsay statement is not worthy of reliance at trial, the Confrontation Clause requires exclusion George Castelle, Public Defender, Stephen Warner, Timothy A. Bradford, Public Defender's Office, Charleston, for the Appellant.

                [200 W.Va. 317] of the out-of-court statement."   Syl. Pt. 9, in part, State v. Mason, 194 W.Va. 221, 460 S.E.2d 36 (1995)
                

William C. Forbes, Prosecuting Attorney, Mary Beth Kershner, Assistant Prosecuting Attorney, Charleston, for the State.

DAVIS, Justice:

This is an appeal arising under W.Va.Code § 49-5-10(j) (1996) of our juvenile statutes. 1 The appellant/juvenile, Anthony Ray Mc., appeals from an order of the Circuit Court of Kanawha County transferring him from the court's juvenile jurisdiction to its criminal jurisdiction in connection with a homicide. 2 The juvenile alleges the circuit court committed error by (1) admitting into evidence a written hearsay statement and (2) basing the transfer upon hearsay evidence.

I. FACTUAL BACKGROUND

On February 6, 1996, the juvenile, then sixteen years old, was arrested and charged with committing an act of juvenile delinquency in the intentional killing of Ernest Shabdue. Following the filing of the State's motion to transfer the case to the court's criminal jurisdiction the circuit court held a hearing on the matter. 3 Subsequently, the circuit court transferred the juvenile to the court's criminal jurisdiction. The circuit court entered the order on April 30, 1996, finding probable cause to believe that the juvenile committed the crime of murder in the first degree.

The juvenile initiated this appeal of the transfer order. 4 Two grounds are alleged by the juvenile to support his contention that the transfer order should be reversed. It is alleged that the circuit court committed error in (1) admitting into evidence a written hearsay statement and (2) basing the transfer upon hearsay evidence alone.

II. STANDARD OF REVIEW

Our review of a juvenile transfer order focuses upon the findings of fact and conclusions of law upon which the court based its decision to make the transfer to its criminal jurisdiction. 5 See W.Va.Code § 49-5-10(e) (1996) and Syl. Pt. 2, State ex rel. E.D. v. Aldredge, 162 W.Va. 20, 245 S.E.2d 849 (1978) (requiring findings of fact and conclusions of law be incorporated in the transfer order). In syllabus point 1 of In Interest of H.J.D., 180 W.Va. 105, 375 S.E.2d 576 (1988) we held that:

Where the findings of fact and conclusions of law justifying an order transferring a juvenile proceeding to the criminal jurisdiction of the circuit court are clearly wrong or against the plain preponderance of the evidence, such findings of fact and conclusions of law must be reversed. W.Va.Code, 49-5-10(a) [1977] [now, 49-5-10(e) [1996]]. Syl. pt. 1, State v. Bannister, 162 W.Va. 447, 250 S.E.2d 53 (1978).

See State v. Hosea, 199 W.Va. 62, 68, 483 S.E.2d 62, 68 (1996). While findings of fact are subject to a clearly wrong standard, " '[w]here the issue on an appeal from the

                [200 W.Va. 318] circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.'   Syllabus point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d
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