Mark E.P., Matter of

• Decision Date: 30 January 1985
• Docket Number: 16279,Nos. 16280,s. 16280
• Citation: 331 S.E.2d 813,175 W. Va. 83
• Parties: In the Matter of MARK E.P. In the Matter of JOHN A.L.
• Court: West Virginia Supreme Court

Page 813

331 S.E.2d 813

175 W.Va. 83

In the Matter of MARK E.P.In the Matter of JOHN A.L.

Nos. 16280, 16279.

Supreme Court of Appeals of West Virginia.

Jan. 30, 1985.

Decided June 14, 1985.

Syllabus by the Court

1.The language in W.Va.Code, 49-5-1(d)(1982), "[e]xtrajudicial statements other than res gestae by a child under sixteen years of age but above the age of thirteen to law-enforcement officers or while in custody, shall not be admissible unless made in the presence of counsel or made in the presence of and with the consent of the child's parent or custodian," does not apply to an extrajudicial statement made by a juvenile who is sixteen years of age or older.

2." '[Subject to the provisions of W.Va.Code, 49-5-1(d),][t]here is no constitutional impediment which prevents a minor above the age of tender years solely by virtue of his minority from executing an effective waiver of rights; however, such waiver must be closely scrutinized under the totality of the circumstances.'Syllabus Point 1, as modified, State v. Laws, 162 W.Va. 359, 251 S.E.2d 769(1978)."Syllabus Point 3, State v. Howerton, 174 W.Va. 801, 329 S.E.2d 874(1985).

3.The requirements of W.Va.Code, 49-5-1(c), relating to the right of a juvenile "to be effectively represented by counsel at all stages of proceedings under the provisions of this article" does not relate to the taking of the juvenile's extrajudicial statements as this is controlled by W.Va.Code, 49-5-1(d).

4."At a transfer hearing, the court must determine the validity of a confession before allowing it to be used against the accused."Syllabus Point 6, In the Interest of Moss, 170 W.Va. 543, 295 S.E.2d 33(1982).

5."A trial court's decision regarding the voluntariness of a confession will not be disturbed unless it is plainly wrong or clearly against the weight of the evidence."Syllabus Point 3, State v. Vance, 162 W.Va. 467, 250 S.E.2d 146(1978).

6."Under W.Va.Code, 49-5-8(d), when a juvenile is taken into custody, he must immediately be taken before a referee, circuit judge, or magistrate.If there is a failure to do so, any confession obtained as a result of the delay will be invalid where it appears that the primary purpose of the delay was to obtain a confession from the juvenile."Syllabus Point 3, State v. Ellsworth J.R., 175 W.Va. 64, 331 S.E.2d 503(1985).

7.Where there are substantial defects in the transfer hearing that go to the validity of the probable cause finding, we will reverse and remand the case for a further transfer hearing.Double jeopardy principles are not involved because a transfer hearing does not involve an adjudication of guilt.

Ben B. White, III, Princeton, for John A.L.

David M. Katz, Bluefield, for Mark E.P.

Janet Frye Steele, Asst. Atty. Gen., Charleston, for State.

MILLER, Justice:

Two juveniles, John A.L. and Mark E.P., appeal from a transfer order of the Circuit Court of Mercer County which waived the court's juvenile jurisdiction and transferred the juveniles to adult criminal jurisdiction, pursuant to W.Va.Code, 49-5-10(1978).A direct appeal of the transfer order is authorized by W.Va.Code, 49-5-10(f).A joint transfer hearing was held and we have consolidated the cases.

The two youths were charged with murdering a thirty-seven-year-old woman named Lutricia Dickens by tying her to a bed in her home, pouring gasoline on the bed, and then setting it on fire.

Both juveniles contend that statements they made while in police custody, which were introduced against them at their joint transfer hearing, were inadmissible and should therefore have been excluded from consideration in the transfer process.They maintain that if the confessions are excluded, there was insufficient probable cause to support a transfer to adult jurisdiction.

The circumstances surrounding their confessions were as follows.Detectives Helton and Poe of the Bluefield Police Department were assigned to investigate the crime.Their questioning of people in the neighborhood, including the juveniles, during the week following Ms. Dickens' death, led them to suspect the juveniles.

Approximately one week after the crime, Helton and Poe went to see Mark E.P. at the sewage treatment plant where he was working for the summer.They told the juvenile that they wanted to talk to him about Ms. Dickens' death and asked him to accompany them to the police station.Knowing that he was sixteen years old, the officers asked him if he wanted to call his mother.He told the officers he did not want his parents present.

Once at the police station, Miranda warnings were read to Mark E.P. at 9:55 a.m.The juvenile initialed a form, headed "YOUR RIGHTS," next to each of the listed rights, indicating that he understood them.He signed a waiver at the bottom of the form indicating that he was willing to talk with the police officers without having a lawyer present.The waiver also contained a statement that there were no promises, threats, or other pressure or coercion involved.

Shortly after Mark E.P. signed the waiver form, he orally confessed to being present at the crime scene.This confession was reduced to writing and signed by him.His statement basically blamed the killing on his co-defendant John A.L.The statement was completed at 11:30 a.m.

Mark E.P. was then transported to Princeton and taken before a magistrate, who issued an arrest warrant.During the ride to the magistrate's office, he made an additional oral statement to Detective Helton.In this statement, he said that John A.L. took $165 from the Dickens' house and a brown pouch bearing the abbreviation "SAG."He indicated that the pouch was hidden in John A.L.'s closet and that John's ears had been burned in the fire.He also said that the robbery had been discussed prior to going to the Dickens' house.

Based on Mark E.P.'s statements, the magistrate issued an arrest warrant for John A.L. Detective Poe obtained a search warrant authorizing a search of John A.L.'s residence for certain articles named in Mark E.P.'s statement.

John A.L. was arrested, pursuant to the warrant, at his residence.A search of his bedroom produced two sticks, a leather pouch with the letters "SAG" on it, and a knife with a broken lock mechanism.Helton observed that the juvenile had burn marks on both ears.

While the search was underway, John A.L.'s great-grandmother, with whom he lived, came home.The officers informed her that they were arresting John A.L.According to Detective Helton, she indicated that she would come down to the police station later, but first she had to make a phone call.In his testimony at a preliminary hearing in this case, Helton recalled that she said she was not going to call a lawyer.

Helton testified at the transfer hearing that John A.L. was then taken to the Bluefield police station for fingerprinting and photographing.He was first taken into an office, where Miranda rights were read.He initialed the form next to each right and signed a waiver of rights at the bottom of the form.Helton testified that he neither threatened nor coerced the juvenile with regard to his questions and that the juvenile did not appear to be under the influence of drugs or alcohol.

In his initial oral statement, the juvenile attempted to exculpate himself by stating that while he was initially at the Dickens' house, he got scared and ran away from it.From the top of the hill, he saw some other boys in the area and then saw the Dickens' house on fire.He went back to try to re-enter the house, but could not.

Detective Helton transcribed this statement, and John A.L. signed it.Helton testified at the transfer hearing that upon completion of the statement, he told the juvenile that "the sad thing about it was that nobody would believe it."According to Helton, the juvenile then admitted that the statement was inaccurate.In his second statement, the juvenile admitted hitting Ms. Dickens with his stick, tying her to the bed, and pouring gasoline on the bed.At this point, the interrogation stopped.John A.L.'s great-grandmother had contacted a lawyer, who arrived at the police station and advised John A.L. to say nothing further to the police.

The State offered all the statements at the transfer hearing.Mark E.P. took the stand for the limited purpose of testifying about the circumstances surrounding the taking of his statement.He testified that he had the opportunity to call his parents, but declined because he did not want them to come to the police station.At some point during the interrogation, the door to the room was closed.He stated that when he told the officers he left the Dickens' house, they accused him of lying and told him, "you stood there and watched."He said that the officers told him they would inform the court that he had been cooperative after he signed the statement.He also stated that some portions of the statement were incorrect, but that he signed the statement because he was nervous.He admitted that he was neither threatened nor mistreated during the time that he was with the police.

Counsel for Mark E.P. objects to the admission of his client's statement on the ground that he was under duress and that the waiver of Miranda rights was therefore not voluntary.Counsel for John A.L. argues against the admission of the statements of both juveniles on the grounds that there were violations of W.Va.Code, 49-5-1(d)(1982), relating to the taking of a juvenile's confession.The claim is also made that W.Va.Code, 49-5-8(1982), dealing with presenting juveniles to a judicial officer, was violated and mandates suppression of the statements.Reliance is also placed on State ex rel. J.M. v. Taylor, 166 W.Va. 511, 276 S.E.2d 199, 25 A.L.R.4th 1063(1981), which, it is argued, precludes juveniles from making a waiver of their Fifth Amendment rights.

I.

With regard to the violation of W.Va.Code, 49-5-1(d)(1982), relating to the admissibility of confessions of juveniles,...