In re D.M., No. 16-0947

CourtSupreme Court of West Virginia
Writing for the CourtChief Justice Allen H. Loughry II Justice Robin Jean Davis Justice Margaret L. Workman Justice Menis E. Ketchum Justice Elizabeth D. Walker
Decision Date22 November 2017
PartiesIn re: D.M.
Docket NumberNo. 16-0947

In re: D.M.

No. 16-0947


November 22, 2017

(Barbour County 16-JD-1)


Petitioner D.M., by counsel George J. Cosenza, appeals the Circuit Court of Barbour County's September 27, 2016, order sentencing him to a term of commitment until the age of twenty-one for his first degree sexual assault conviction.1 The State, by counsel David A. Stackpole, filed a response and a supplemental appendix. On appeal, petitioner argues that the circuit court erred in denying his motion for a mistrial and abused its discretion by committing him to a juvenile detention facility.

This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

In January of 2016, the State filed a juvenile criminal petition against petitioner, then age fourteen, alleging that he sexually abused two younger children. According to the petition, in March of 2015 and May of 2015, petitioner provided babysitting services for P.W. and D.W. While providing babysitting services, petitioner forced P.W. to perform oral sex on him. After the sexual assault, petitioner sent the children's mother, B.W., a message on Facebook asking her to forgive him for "everything he had done to P.W." and stated that he "hoped that [she] could forgive him." The children's mother telephoned the police department to report the sexual assault of P.W. Following a police investigation by Sergeant Brad Miller ("Sergeant Miller") and forensic interviews of the children, petitioner was charged with four counts of first degree sexual assault and two counts of first degree sexual abuse.

In August of 2016, petitioner's jury trial commenced. At trial, the State asked Sergeant Miller on direct exam if he attempted to obtain a statement from petitioner. Petitioner's counsel immediately objected to the State's line of questioning and moved the circuit court for a mistrial, as follows:

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The State: Did you attempt to get a statement from [petitioner]?

Sergeant Miller: On September -

Petitioner's Counsel: Objection.

The Circuit Court: Just a second. Come Forward.

Petitioner's Counsel: Motion for mistrial.

The State: The answer was going to be no, he didn't get a statement from him.

The Circuit Court: It's against the rules. You cannot even inquire. The problem is if you do this then he's going to be sitting in a detention center for months.

The circuit court then called the State, petitioner, petitioner's mother, and petitioner's counsel into chambers.

The Circuit Court: This is in chambers on the record. Mr. Curry, you have just asked for a mistrial as a result of [the State's] inquiry that goes to the 5th amendment privilege.

Petitioner's Counsel: I have no choice.

The Circuit Court: Well, here's what I want to explain, first of all, to [petitioner] and his mother. Ms. Elkins crossed over the boundary line here in asking about whether [petitioner] made a statement. That's totally off limits. It's basically against the rules, and [petitioner] is entitled to a mistrial as a result. Now the problem is that [petitioner] will be sitting in detention for several more months while we wait to do this all over again. And I understand it puts you between a rock and a hard place. . . . It forces you to make a decision whether you basically exercise your right or, because he is in detention . . . . Now, I can go out and attempt to explain to the jury that the question crossed the limits . . . And [The State] has absolutely no right to even ask that question. If you want a few minutes to discuss it or consider it, I will allow you to do that.

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Petitioner's Counsel: You know, now that - I would advise against waiving this.

The circuit court granted petitioner's motion for a mistrial, but allowed petitioner and his counsel a five-minute recess to discuss how they wished to proceed. At the conclusion of this recess, petitioner and his counsel informed the court as follows:

Petitioner's Counsel: Well, we're going to waive. Okay, I've talked to [petitioner]. [H]e wants to go on, his mother wants to go on. They have determined to disregard my advice, which is to take the mistrial. . . .

Petitioner: I just want to get it over with. Honestly, I've been stressed for the last six months and I don't want to be stressed no more.

The Circuit Court: If you want a mistrial, I will grant a mistrial because it was inadmissible.

Petitioner: Yes sir. I don't want a mistrial, sir. I just want to get this over with.

The Circuit Court: Then let's go back and we'll get started.

Thereafter, the victim, P.W., and petitioner both testified at the trial. Petitioner denied that he sexually assaulted the victim and that he sent the Facebook message to the victim's mother. The jury found petitioner guilty of one count of first degree sexual assault. Petitioner moved to set aside the jury's verdict.

In September of 2016, the circuit court held a dispositional hearing to consider petitioner's motion to set aside the jury's verdict. The circuit court denied petitioner's motion based on his previous waiver of his right to a mistrial....

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