Moss, In Interest of

Decision Date15 July 1982
Docket NumberNo. 15490,15490
Citation170 W.Va. 543,295 S.E.2d 33
CourtWest Virginia Supreme Court
PartiesIn the Interest of John MOSS, Jr.

Syllabus by the Court

1. Probable cause for the purpose of transfer of a juvenile to adult jurisdiction is more than mere suspicion and less than clear and convincing proof. Probable cause exists when the facts and circumstances as established by probative evidence are sufficient to warrant a prudent person in the belief that an offense has been committed and that the accused committed it.

2. The accused is entitled to rebut the State's proof of probable cause at a preliminary or transfer hearing by showing that he was not the person who committed the crime.

3. The probable cause determination at a juvenile transfer hearing may not be based entirely on hearsay evidence.

4. "W.Va.Code § 49-5-10(d) [1978] requires that the circuit court make an independent determination of whether there is probable cause to believe that a juvenile has committed one of the crimes specified for transferring the proceeding to criminal jurisdiction." Syllabus, In the Interest of Clark, 168 W.Va. 493, 285 S.E.2d 369 (1981).

5. "It is within the sound discretion of the court in the furtherance of the interests of justice to permit either party, after it has rested, to reopen the case for the purpose of offering further evidence and unless that discretion is abused the action of the trial court will not be disturbed." Syllabus Point 4, State v. Fischer, 158 W.Va. 72, 211 S.E.2d 666 (1974); Syllabus Point 4, State v. Daggett, 167 W.Va. 411, 280 S.E.2d 545 (1981).

6. At a transfer hearing, the court must determine the validity of a confession before allowing it to be used against the accused.

7. The opinion of a properly qualified expert is not admissible at a transfer hearing unless a proper foundation is laid, either through the testimony of other witnesses or the exhibition of personal knowledge of the child's background.

McKittrick & Vaughan, Parrish McKittrick and Harry C. Taylor II, St. Albans, for Moss.

James E. Roark, Pros. Atty., Beverly S. Selby and Frances W. McCoy, Asst. Pros. Attys., Charleston, for State.

McGRAW, Justice:

In this appeal from a final order of the Circuit Court of Kanawha County, the appellant, John Moss, Jr., challenges the transfer of his case from the circuit court's juvenile jurisdiction to its criminal jurisdiction. The appellant raises numerous assignments of error which can be reduced to three grounds for appeal. The appellant contends that the circuit court erred in rulings on evidentiary matters at the preliminary and the transfer hearings, that the court erred in permitting the State to reopen the transfer hearing for the presentation of additional evidence, and that the State erred in presenting its case to the grand jury immediately before this appeal was filed. We find merit in several of the appellant's contentions and we reverse.

In December of 1979, a woman and her two children were found dead in their St. Albans home. Soon afterward, the deceased woman's husband became a suspect in the triple murder. He is alleged to have confessed to the crime and was subsequently indicted by the Kanawha County Grand Jury. The husband was held in custody for approximately eleven months awaiting trial, during which time his alleged confession was ruled admissible into evidence as voluntarily given. Trial was set for November 12, 1980.

The record indicates that the appellant was also a suspect in the murders and that his name was recited in the indictment of the accused husband. In January 1980, the investigating authorities traveled to Cleveland, Ohio, to obtain a blood sample from the appellant, who at the time was housed in a juvenile detention center on an unrelated charge, and to question him about the murders. The appellant denied committing the murders. A blood sample was taken, when, at the authorities' request, the appellant pricked his finger and dribbled blood on a cloth provided for this purpose.

At the time of this interrogation, the appellant was seventeen years of age. The blood sample was taken without a court order, and without the knowledge or consent of the appellant's parents. The authorities were aware that the appellant was a juvenile. They made no effort to contact the appellant's Ohio lawyer. The appellant was advised of his rights prior to questioning, but did not sign a waiver of rights form.

When the appellant's counsel learned of the blood sample taken by the West Virginia authorities, he objected, and an Ohio court ordered that the cloth on which the blood sample was deposited be returned to the appellant. This apparently was done. Subsequently, in April 1980, the investigating authorities again travelled to Cleveland to obtain a blood sample from the appellant, pursuant to an order issued by an Ohio court. A doctor performed the sampling. Analysis of the blood sample strengthened the investigating authorities' suspicions concerning the appellant's involvement in the murders.

On September 26, 1980, the State filed a detainer against the appellant, pursuant to W.Va.Code § 62-14-1 et seq. (1977 Replacement Vol.), based on a malicious wounding charge, unrelated to the homicides. The appellant at this time was serving a term of four to twenty-five years at the Ohio State Reformatory on charges of rape and attempted murder. On October 28, 1980 while being transported to West Virginia by members of the Department of Public Safety to answer the malicious wounding charge, the appellant confessed to having committed the homicides in Kanawha County. The appellant subsequently made a tape recorded confession after signing a waiver of his Miranda rights.

On November 2, 1980, a second detainer was filed by the State against the appellant based on a charge of three counts of murder in the first degree. On December 18, 1980, the appellant was again transported from the Ohio State Reformatory to the Kanawha County Jail. A preliminary hearing was set for December 24, 1980, but as a result of motions for continuance made by the defense, the hearing was not held until January 12, 1981. After the presentation of evidence, which included a replay of the appellant's taped confession, the juvenile referee made a finding of probable cause and referred the appellant to the juvenile jurisdiction of the Circuit Court of Kanawha County.

On January 20, 1981, the State filed a motion to have the appellant transferred to the criminal jurisdiction of the circuit court and tried as an adult. The transfer hearing was set for January 28, 1981. Defense counsel's motion for a continuance to allow for psychological and psychiatric testing and evaluation of the appellant was granted. Following subsequent motions for continuance on the part of defense counsel, the transfer hearing was held on June 29, 1981.

At the transfer hearing, the State presented testimony from a member of the appellant's family as to his background, testimony of school personnel as to the appellant's grades and behavior in school and testimony of the county's chief probation officer and a psychiatrist as to the appellant's prospects for rehabilitation. The State also introduced into evidence a transcript of the preliminary hearing which was stipulated by defense counsel to be a true and accurate reporting of that proceeding. The defense called as a witness one of the state troopers who investigated the murders and attempted to elicit from him testimony as to the adult who had previously been indicted for the crimes. The court at first overruled the State's objection to this testimony, but later sustained the objection on the ground that the matters upon which the defense sought the testimony, namely the confession of another individual to having committed the crimes in question, was a question which should properly be raised at trial and not at the transfer hearing. At the conclusion of the evidence the court took the issue of transfer under advisement.

Before any ruling on the transfer had issued, the State discovered that the transcript of the preliminary hearing did not contain a transcript of the appellant's tape recorded confession. Instead, the tape recording which had been played at the preliminary hearing had merely been incorporated by reference into the record. On July 9, 1981, the State filed with the circuit court a motion to reopen the transfer hearing for the purpose of introducing the confession into evidence. A hearing on the motion was held on August 6, 1981, at which time counsel for the appellant opposed reopening the transfer hearing. The court granted the State's motion and proceeded to allow the State to play the tape recorded confession. At the conclusion of the hearing the court issued from the bench its decision that the appellant be transferred to the criminal jurisdiction of the court, and indicated that further proceedings would be stayed until counsel had an opportunity to file an appeal. The final order issued August 11, 1981, incorporated the court's conclusions but made no mention of the stay of proceedings.

On August 13, 1981, the State presented its case against the appellant to the grand jury, which returned an indictment charging the appellant with three counts of murder in the first degree. The following day counsel for the appellant filed a motion for a stay of further proceedings and a motion to quash the indictment. On August 20, 1981, the date set for a hearing on the defense motions, the appellant filed a notice of intent to appeal the court's decision to transfer the appellant to criminal jurisdiction and a request for a transcript. At the hearing conducted August 20, 1981, the court granted the stay of proceedings, but did not rule on the appellant's motion to quash the indictment. This Court subsequently granted the appellant's petition for appeal.

I.

The appellant's first assignment of error is...

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  • Moore v. Evans
    • United States
    • North Carolina Court of Appeals
    • October 15, 1996
    ...albeit one who confesses, does not automatically negate probable cause for plaintiff's arrest and detention. See e.g., In re Moss, 170 W.Va. 543, 295 S.E.2d 33, 39 (1982) (holding that evidence showing that another individual confessed to the crime and was charged does not dictate a finding......
  • State v. Moss
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