Spaulding v. Warden, West Virginia State Penitentiary
| Decision Date | 18 March 1975 |
| Docket Number | No. 13489,13489 |
| Citation | 212 S.E.2d 619,158 W.Va. 557 |
| Court | West Virginia Supreme Court |
| Parties | Roy SPAULDING v. WARDEN, WEST VIRGINIA STATE PENITENTIARY. |
Syllabus by the Court
1. 'It is the mandatory duty of a trial court, whether requested or not, to hear the evidence and determine in the first instance, out of the presence of the jury, the voluntariness of an oral or written confession by an accused person prior to admitting the same into evidence, and the failure to observe this procedure constitutes reversible error.' Point 1 Syllabus, State v. Fortner, 150 W.Va. 571 (148 S.E.2d 669).
2. A defendant in a criminal proceeding has no standing to object to the search by a police officer of an automobile where consent to the search was given by the owner, and where the defendant has no interest in the vehicle and was not present when it was searched.
3. A preliminary hearing, when accorded an accused by a justice of the peace pursuant to Code, 1931, 62--1--8, as amended, is a critical stage in a criminal proceeding to which the right to counsel, guaranteed by the Sixth Amendment to the Constitution of the United States, attaches, and a denial of counsel in those circumstances constitutes error for which a defendant is entitled to relief, unless it is clear beyond a reasonable doubt that the denial of counsel was harmless error.
4. In a habeas corpus proceeding in which the petitioner is discharged from confinement because a violation of his constitutional rights occurred during trial, it is unnecessary to consider and determine whether the defendant was improperly denied counsel at a proceeding before a justice of the peace, since any purpose the preliminary hearing might have served, had the defendant been represented by counsel, was adequately filled by the first trial where the defendant did have counsel.
William H. Higinbotham, Morgantown, for appellant.
Chauncey H. Browning, Jr., Atty. Gen., E. Leslie Hoffman, III, Asst. Atty. Gen., Richard E. Hardison, Deputy Atty. Gen., Charleston, for appellee.
This case involves an appeal by Roy Spaulding from a final judgment of the Circuit Court of Monongalia County, denying the appellant relief in habeas corpus. The defendant was convicted in the circuit court of breaking and entering. He was sentenced to a term of one to fifteen years in the West Virginia Penitentiary, five years having been added to the standard one to ten year sentence because of the appellant's previous conviction for the same offense. Notice of intent to appeal was not filed until five months after the entry of final judgment, contrary to the mandatory sixty-day requirement of Code, 1931, 58--5--4, as amended.
The appellant subsequently filed a petition for habeas corpus in the circuit court raising a number of constitutional issues. Relief in habeas corpus was denied, and the defendant appealed to this Court. In the proceeding here, the defendant raised a number of other errors alleged to have been committed in the trial court, including the refusal of the court to grant certain pre-trial motions, error in fixing a notification of the criminal docket, the manner in which the prosecuting attorney delivered his final argument, excessive bail prior to trial, and the manner in which the added sentence was imposed under the recidivist statute. While there may be merit to some of these alleged errors, most of them have no constitutional or jurisdictional basis which would render the conviction void or subject to collateral attack; they were, therefore, lost to the defendant by his failure to file notice of intent to appeal as required by Code, 1931, 58--5--4, as amended. Code, 1931, 53--4A--1, as amended. See Ford v. Coiner, W.Va., 196 S.E.2d 91. Some of these assigned errors ordinarily reviewable by habeas corpus are not considered for other reasons. The sentencing of the defendant under the recidivist statute is not considered because of our decision to grant relief upon other grounds. The question of excessive bail prior to trial has been mooted by the defendant's conviction.
There are three principal issues which were properly presented: (1) Was the confession of the defendant unconstitutionally introduced into evidence without a prior In camera hearing concerning its voluntariness; (2) was evidence of the theft obtained as the result of an unlawful search and seizure; and (3) was the defendant deprived of his constitutional right to legal representation at a preliminary hearing?
The defendant occupied an apartment in Morgantown which he shared with Gail and Charles Tanner. Mike Freed, an occupant of the apartment building in which the defendant resided, testified that at about 2:30 a.m. on August 23, 1972, he saw Gail Tanner, an alleged co-felon, leave the apartment building carrying a flashlight and what appeared to be gloves. Since he was unable to sleep, the witness left his apartment and walked down Beechurst Avenue. He saw the Tanner car and observed three individuals in the car. He called the Westover police telling them 'the Tanners are in the area and probably up to no good.' Thereafter two officers proceeded to patrol the area. Approximately one hour later, a woman notified the police that she was awakened by the sound of breaking glass at Sheets' Appliance Store. She looked out the window and saw movement in the appliance store. When the officers arrived at the scene, they found a window had been broken and glass was laying 'all over the place.' A check of the area was made, but no one was found. There were five clocks setting on the store steps 'as if someone had placed them there to remove them later on.'
At 9:00 a.m. on the same day, Trooper Cook of the Department of Public Safety received a request for assistance in the investigation from the Westover Police Department. He proceeded, with the aid of the Westover Police Chief, to take statements from the store owner and the individual who had notified the police about the offense. Thereafter the two officers went to the defendant's apartment building to talk with Freed. Freed told them the Tanners were getting ready to leave in their car.
The trooper testified that he attempted to apprehend the two Tanners, but one escaped. He took Charles Tanner into custody and questioned him unsuccessfully at the State Police Detachment. Warrants for the Tanners and the defendant were obtained from a justice of the peace at about 1:00 p.m. on August 23rd. The record does not disclose how the police became aware of defendant's involvement. At approximately 2:00 p.m., Trooper Cook was notified by the Westover police that Robert Tanner and the defendant had been apprehended, but that, after being handcuffed, the defendant had escaped. The defendant was apprehended a second time at about 7:00 p.m. that evening.
Trooper Cook stated that the Tanner vehicle was searched at about 4:00 p.m. and that seven clocks were found in the trunk. He stated that a search warrant had been obtained by the Westover police officer and that Charles Tanner had given him the key and consented to the search of the trunk. He testified that he placed the search warrant on the windshield of the vehicle. The clocks were admitted into evidence over the objection of counsel for the defendant that there had not been 'sufficient showing or grounds laid that these clocks * * * relate to the defendant.'
Trooper Cook testified that he was present that evening when the defendant was apprehended. While Cook testified at the trial that he merely knocked the defendant to the ground in an attempt to apprehend him, he admitted at the habeas corpus hearing that the defendant was kicked and beaten and carried to the police cruiser. The defendant was then taken to the state police barracks and his constitutional rights and the warrant were read to him. Cook's trial testimony indicated that the defendant was then taken to the hospital and later lodged in the county jail; that he made a confession on August 24, 1972; and that on August 24 or 25, 1972, he was taken before a justice of the peace where 'he was read his rights, and he said 'that he did not want an attorney. " Bond was set by the justice of the peace at that time at $30,000 and 'Mr. Spaulding represented himself at his own request.'
At trial, the defendant testified that he was apprehended and incarcerated without a warrant; that he was kicked by an officer in the head; that his head wound required stitches; that he bought the clocks from a man named Mike; and that he signed the confession after 'being bashed and roughed around.'
The State concedes that the defendant's confession was extracted under adverse conditions without the benefit of counsel and was subsequently used at trial without a prior In camera hearing to determine its voluntariness. A confession of error on this ground is contained in the State's answer.
The following testimony was produced at trial and is supportive of the confession of error. Trooper Cook testified:
The defendant testified:
At the habeas corpus hearing before the trial court, Trooper Cook again testified concerning the use of violence:
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