State ex rel. Justice v. Allen, 21364

• Decision Date: 24 June 1993
• Docket Number: No. 21364,21364
• Parties: STATE of West Virginia ex rel. Milton JUSTICE, Defendant Below, Appellant, v. R.J. ALLEN, Sheriff of McDowell County, Plaintiff Below, Appellee.
• Court: West Virginia Supreme Court

Page 199

432 S.E.2d 199

189 W.Va. 437

STATE of West Virginia ex rel. Milton JUSTICE, Defendant Below, Appellant, v. R.J. ALLEN, Sheriff of McDowell County, Plaintiff Below, Appellee.

No. 21364.

Supreme Court of Appeals of West Virginia.

Submitted May 5, 1993.

Decided June 24, 1993.

Syllabus by the Court

" 'When the representations of one in authority are calculated to foment hope or despair in the mind of the accused to any material degree, and a confession ensues, it cannot be deemed voluntary.' Syllabus, State v. Parsons, 108 W.Va. 705, 152 S.E. 745 (1930)." Syllabus point 7, State v. Persinger, 169 W.Va. 121, 286 S.E.2d 261 (1982).

J.W. Feuchtenberger, Stone, McGhee, Feuchtenberger & Barringer Bluefield, for appellant.

Sidney H. Bell, Pros. Atty., Welch, for appellee.

PER CURIAM:

This is an appeal by Milton Justice, who has been convicted of delivering a controlled substance, from an order of the Circuit Court of McDowell County denying him habeas corpus relief. The appellant claims, among other things, that he was convicted through the unconstitutional use of an involuntary confession procured by a promise of lenient treatment and that, under the circumstances, he is entitled to relief. After reviewing the record of the habeas corpus proceedings and the questions presented, this Court agrees with the appellant's assertions. Accordingly, the order of the Circuit Court of McDowell County denying the appellant relief is reversed.

The record shows that the appellant met with the prosecuting attorney of McDowell County after he learned that a grand jury had charged him with violating the controlled substances act. At that meeting, the prosecutor, according to the appellant, assured him that he was not the principal subject of a broad-ranging drug investigation and that he would not be prosecuted if he cooperated with State Trooper J.J. Miller and Deputy Don Hicks, who were conducting the investigation. After receiving this assurance, the appellant cooperated with the officers and gave a written statement in which he admitted that he had illegally sold Dilaudid capsules. The statement also indicated that the appellant had obtained prescriptions for additional Dilaudid tablets from a physician, Dr. Bello, who was an object of the investigation.

After the appellant gave the statement, the prosecuting attorney's office, in spite of the assurances previously given, proceeded to prosecute him. During the prosecution, the statement, which the trial court refused to suppress, was read to the jury and was later sent to the jury room as State's Exhibit No. 1.

At the conclusion of the trial, the jury found the appellant guilty, and after the appellant's original appeal time had expired, he was incarcerated. He was subsequently allowed to make appeal bond, and he filed an appeal with this Court. This Court refused to grant the application for appeal and also refused to grant a reapplication. The Court, in denying the reapplication, noted, however, that the denial was "without prejudice to file a petition for a writ of habeas corpus in the Circuit Court of McDowell County."

The appellant filed a petition for habeas corpus with the Circuit Court of McDowell County, but he was denied the opportunity to be heard or to present witnesses. He filed another habeas corpus with this Court in March, 1992. This Court referred the matter to the Circuit Court of McDowell County, and after conducting a hearing, the circuit court refused to grant the defendant habeas corpus relief.

It is from the circuit court's last denial of habeas corpus relief that the appellant now appeals.

On appeal, the appellant essentially claims that his confession was obtained by promises of leniency and that under the law it must be deemed to be a constitutionally inadmissible, involuntary statement. He also claims that he is entitled to relief from his conviction since his conviction was based on the statement.

This Court has rather consistently recognized that when a confession is elicited from a criminal defendant by representations of one in authority calculated to foment hope in the accused, such a confession is a type of coerced confession and cannot be deemed voluntary and is thus not admissible into evidence. The general rule is summarized in syllabus point 7 of State v. Persinger, 169 W.Va. 121, 286 S.E.2d 261 (1982), as follows:

"When the representations of one in authority are calculated to foment hope or despair in the mind of the accused to any material degree, and a confession ensues, it cannot be deemed voluntary." Syllabus, State v. Parsons, 108 W.Va. 705, 152 S.E. 745 (1930).

See also, State v. Hanson, 181 W.Va. 353, 382 S.E.2d 547 (1989); State v. Adkison, 175 W.Va. 706, 338 S.E.2d 185 (1985); and State v. Harman, 174 W.Va. 731, 329 S.E.2d 98 (1985).

The Court has also held that a promise of immunity from prosecution, even when made by a prosecuting attorney, rather than by a court as required by W.Va.Code, 57-5-2, is the type of inducement which will render a subsequent confession based on such promise involuntary and, therefore, inadmissible in evidence against the defendant at trial. State v. Hanson, supra.

Further, procedurally, it is generally recognized that:

Habeas corpus is an appropriate remedy to challenge a conviction based on a confession which, because coerced, was obtained in violation of the Fifth and Fourteenth Amendments. This is true regardless of the truth or falsity of the confession, and whether or not there is ample evidence aside from the confession to support the conviction.

39 Am.Jur.2d Habeas Corpus § 54 (1968). See also, Flournoy v. Peyton, 297 F.Supp. 727 (W.D.Va.1969); Pemberton v. Peyton, 288 F.Supp. 920 (E.D.Va.1968); Arthur v. McKenzie, 161 W.Va. 747, 245 S.E.2d 852 (1978).

During the proceedings in the present case, substantial evidence was adduced relating to the remarks which the prosecuting attorney made to the appellant and the inducements which were extended to him for making a confession. The appellant testified that the prosecuting attorney told him:

[N]ow, listen. Just go in there and cooperate with them and nothing will be held against you. He said, I'm gonna appoint Mr. Cunningham.... He said, now, I'm going to ask for the bond to be set at a very minimum that it can be and said, but just go in there and cooperate and nothing will be held against you. And he said, that way I can help you. He said, I can help you and everything. Said, everything will be all right. It won't be nothing to come of it.

To support this testimony, the appellant adduced the testimony of three other witnesses, Abishi C. Cunningham, the attorney who was appointed to represent him; Sidney H. Bell, who was at the time assistant prosecuting attorney of McDowell County; and Walter Lee Follrod, his brother-in-law, who was present when he met with the prosecuting attorney.

Mr. Cunningham, who stated that the prosecuting attorney had contacted him about representing the appellant and who had discussions with the prosecuting attorney in the presence of the appellant after the appellant gave the statement, testified "[I]t was my impression that he would have some leniency because of the statement he made." He also testified that he did not believe that the statement was going to be used against the appellant and that he was surprised when the statement was brought out...