State ex rel. J. M. v. Taylor, s. 15076-15078

• Decision Date: 10 March 1981
• Docket Number: Nos. 15076-15078,s. 15076-15078
• Citation: 276 S.E.2d 199,166 W.Va. 511,25 A.L.R.4th 1063
• Court: West Virginia Supreme Court
• Parties: , 25 A.L.R.4th 1063 STATE ex rel. J. M., Infant v. Charles TAYLOR, Supt., W. Va. Industrial School for Boys. STATE ex rel. G. E. v. Charles TAYLOR, Supt., W. Va. Industrial School for Boys. STATE ex rel. A. H. v. George TRENT, Supt., Leckie Center.

Page 199

276 S.E.2d 199

166 W.Va. 511, 25 A.L.R.4th 1063

STATE ex rel. J. M., Infant v. Charles TAYLOR, Supt., W. Va. Industrial School for Boys.

STATE ex rel. G. E. v. Charles TAYLOR, Supt., W. Va. Industrial School for Boys.

STATE ex rel. A. H. v. George TRENT, Supt., Leckie Center.

Nos. 15076-15078.

Supreme Court of Appeals of West Virginia.

March 10, 1981.

Syllabus by the Court

1. A juvenile defendant cannot waive his right to counsel during proceedings against him, unless he does so upon advice of counsel.

2. A juvenile may not knowingly and intelligently admit or deny allegations against him unless the judge informs him of the nature of the charges, lesser included offenses, possible defenses, his constitutional and statutory rights, each constitutional right which is waived by the plea, and the maximum penalty to which he may be subjected.

Paul Mones, Morgantown, for relator.

Chauncey H. Browning, Atty. Gen., Billie Gray, Asst. Atty. Gen., Charleston, for respondent.

HARSHBARGER, Chief Justice:

We have consolidated these three juvenile cases because they present common issues.

G. E. was a few days shy of eighteen when he had a probation revocation hearing for participating in an interstate automobile theft ring. The judge asked him if he wanted counsel and told him that if he were indigent, the court would appoint an attorney; but he and his father waived this right. After the hearing, his probation was revoked and he was committed to the Department of Corrections for examination at Pruntytown (our "industrial school" for boys), then to forestry camp for an indeterminate term until he was twenty-one. He got a lawyer who presented a habeas corpus petition to us, and we ordered the circuit court to determine whether G. E. voluntarily waived counsel; and the learned trial judge decided that he did.

J. M., then sixteen, was accused of breaking and entering a market with intent to steal. He did not have counsel at preliminary, adjudicatory or dispositional hearings, pled guilty, and was committed to the Department of Corrections until he became twenty-one years old.

The third juvenile, A. H., was sixteen when his father and mother filed multiple petitions against him for assault, forging checks, and possession of marijuana with intent to deliver. A. H., with his father present, waived counsel. We have no record of the preliminary hearing, but relevant colloquy from his adjudicatory hearing transcript is:

COURT: At that (preliminary) hearing the Court, I think, in some detail explained to the infant and his parents that he had the right to be represented by counsel. I don't see counsel here today.

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(A. H.), are you ready to proceed with this hearing without being represented by an attorney?

JUVENILE: Yes, sir.

After he pled guilty and was adjudicated delinquent:

COURT: ... Again, at that dispositional hearing you have the right to be represented by an attorney.

Do you want to be represented by an attorney?

JUVENILE: Should I?

COURT: Well, that's not for me to say. I just want to inform you that you definitely have that right if you want to be represented by an attorney.

JUVENILE: No, sir.

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COURT: All right. I realize, of course, that being an infant that you are without funds, and if that's the only drawback, then if the parents would not furnish counsel for you, this court would appoint an attorney to serve you in this case, and his expenses would be paid by the State of West Virginia.

Do you understand that?

JUVENILE: Yes, sir.

I.

A juvenile's constitutional right to counsel was recognized by the Supreme Court in 1967 in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527. That right is in W.Va.Const. art. 3, § 14, ¹ codified at W.Va.Code, 49-5-1(c) ² and is recognized in many state cases, including State ex rel. Wilson v. Bambrick, 156 W.Va. 703, 195 S.E.2d 721 (1973); State ex rel. Harris v. Calendine, W.Va., 233 S.E.2d 318 (1977); State ex rel. C. A. H. v. Strickler, W.Va., 251 S.E.2d 222 (1979); and Crow v. Coiner, 323 F.Supp. 555 (N.D.W.Va.1971).

Any defendant may relinquish constitutional rights by knowing and intelligent waiver. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); State v. Rissler, W.Va., 270 S.E.2d 778 (1980). In Von Moltke v. Gillies, 332 U.S. 708, 723-24, 68 S.Ct. 316, 92 L.Ed. 309 (1947), the Supreme Court discussed adult waiver of counsel:

To discharge this duty (of determining whether there is an intelligent and competent waiver) properly in light of the strong presumption against waiver of the constitutional right to counsel, a judge must investigate as long and as thoroughly as the circumstances of the case before him demand. The fact that an accused may tell him that he is informed of his right to counsel and desires to waive this right does not automatically end the judge's responsibility. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused's professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered. (Footnotes omitted.)

We have written about waivers of constitutional rights generally:

But waiver of a constitutional right is not to be lightly regarded, and if such a waiver is to be implied at all, it can only be in situations in which it is clear that the accused has not only a full knowledge of all facts and of his rights, but a full appreciation of the effects of his voluntary relinquishment. Holland v. Boles 225 F.Supp. 863 (N.D.W.Va.1963). This Court has held that courts indulge every reasonable presumption against waiver of a constitutional right and will not presume acquiescence in the loss of such fundamental right. State ex rel. Calloway v. Boles, 149 W.Va. 297, 140 S.E.2d 624 (1965); syl. pt. 2, State ex rel. May v. Boles, 149 W.Va. 155, 139 S.E.2d 177 (1964). An accused may, by declaration and conduct, waive a fundamental right protected by the Constitution, but it must be demonstrated that the waiver was made knowingly and intelligently. State ex rel. Grob v. Blair (214 S.E.2d 330), supra. State v. Eden, W.Va., 256 S.E.2d 868, 873 (1979).

Courts, scholars, and legislatures have developed two juvenile waiver tests. One weighs the "totality of circumstances"; the other keys on whether there was an interested adult present when the waiver occurred.

The "totality of circumstances" analysis was made in Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948), and Gallegos v. Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962), wherein juvenile waivers of counsel and privileges against self-incrimination were not accepted because circumstances indicated that they were not knowingly and intelligently made.

Most cases about juvenile waiver involve custodial interrogations and confessions, and factors such as age, mental age, previous police or court experience, advice of parent or counsel, physical condition, whether held incommunicado, methods of interrogation, education, knowledge of the substance of a charge, and the nature of rights waived, must also be evaluated. Accord, Moore v. Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167 (1957); West v. United States, 399 F.2d 467 (5th Cir. 1968), cert. denied, 393 U.S. 1102, 89 S.Ct. 903, 21 L.Ed.2d 795 (1969); United States v. Fowler, 476 F.2d 1091 (7th Cir. 1973); People v. Lara, 67 Cal.2d 365, 432 P.2d 202, 62 Cal.Rptr. 586 (1967), cert. denied, 392 U.S. 945, 88 S.Ct. 2303, 20 L.Ed.2d 1407; State v. Oliver, 160 Conn. 85, 273 A.2d 867 (1970), cert. denied, 402 U.S. 946, 91 S.Ct. 1637, 29 L.Ed.2d 115; Riley v. State, 237 Ga. 124, 226 S.E.2d 922 (1976); People v. Pierre, 114 Ill.App.2d 283, 252 N.E.2d 706 (1969), cert. denied, 400 U.S. 854, 91 S.Ct. 71, 27 L.Ed. 92; State v. Hinkle, 206 Kan. 472, 479 P.2d 841 (1971); White v. State, 13 Md.App. 1, 280 A.2d 283 (1971); Commonwealth v. Cain, 361 Mass. 224, 279 N.E.2d 706 (1972); State v. Hogan, 297 Minn. 430, 212 N.W.2d 664 (1973); State v. Lytle, 194 Neb. 353, 231 N.W.2d 681 (1975); State v. Ortega, 77 N.M. 7, 419 P.2d 219 (1966); Theriault v. State, 66 Wis.2d 33, 223 N.W.2d 850 (1974). See generally Annot., Voluntariness and Admissibility of Minor's Confession, 87 A.L.R.2d 624 (1963 and later case service).

A more objective and workable standard simply invalidates juvenile waivers not secured with counsel, guardian, parent or interested adult present. An interested, friendly adult is supposed to protect an infant from governmental coercion or pressure and to allow someone capable of understanding the nature and consequences of the waiver to help in the decision and to protect the child from inaccurate accounts of his statements at proceedings in which waiver is made. This standard was applied in Freeman v. Wilcox, 119 Ga.App. 325, 167 S.E.2d 163 (1969), which was overruled seven years later in Riley v. State, supra; Lewis v. State, 259 Ind. 431, 288 N.E.2d 138 (1972); State in Interest of Dino, La., 359 So.2d 586 (1978), cert. denied, 439 U.S. 1047, 99 S.Ct. 722, 58 L.Ed.2d 706; In re K. W. B., Mo.App., 500 S.W.2d 275 (1973); and Commonwealth v. Smith, 472 Pa. 492, 372 A.2d 797 (1977). See also M. Levy and S. Skacevic, What Standard Should Be Used To Determine A Valid Juvenile Waiver?, 6 Pepperdine L.Rev. 767 (1979); Comment, The Judicial Response to Juvenile Confessions: An Examination of the Per Se Rule, 17 Duquesne L.Rev. 659 (1978-1979); Comment, The Interrogated Juvenile: Caveat Confessor?,...