State v. Barrow

• Decision Date: 07 July 1987
• Docket Number: No. 16370,16370
• Citation: 359 S.E.2d 844,178 W.Va. 406
• Parties: STATE of West Virginia, v. Gay BARROW.
• Court: West Virginia Supreme Court

Page 844

359 S.E.2d 844

178 W.Va. 406

STATE of West Virginia, v. Gay BARROW.

No. 16370.

Supreme Court of Appeals of West Virginia.

July 7, 1987.

Syllabus by the Court

1. If police initiate interrogation after a defendant's assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid because it was taken in violation of the defendant's Sixth Amendment right to counsel. To the extent that State v. Wyer, 173 W.Va. 720, 320 S.E.2d 92 (1984), is in conflict with this principle, it is overruled.

2. "An adversary judicial criminal proceeding is instituted against a defendant where the defendant after his arrest is taken before a magistrate pursuant to W.Va.Code, 62-1-5 [1965], and is, inter alia, informed pursuant to W.Va.Code, 62-1-6 [1965], of the complaint against him and of his right to counsel." Syllabus Point 1, in part, State v. Gravely, 171 W.Va. 428, 299 S.E.2d 375 (1982).

3. " 'Failure to observe a constitutional right constitutes reversible error unless it can be shown that the error was harmless beyond a reasonable doubt.' Syl. pt. 5, State ex rel. Grob v. Blair, 158 W.Va. 647, 214 S.E.2d 330 (1975)." Syllabus Point 1, Maxey v. Bordenkircher, 175 W.Va. 49, 330 S.E.2d 859 (1985).

4. "A trial judge's failure to make a finding on the issue of a criminal defendant's competency to stand trial within five days after the filing of a report by one or more psychiatrists or a psychiatrist and a psychologist in compliance with W.Va.Code, 27-6A-1(d) [1977], will not be considered to be reversible error requiring a new trial absent prejudice to the defendant resulting from such failure." Syllabus Point 1, State v. Church, 168 W.Va. 408, 284 S.E.2d 897 (1981).

5. "Even though a trial judge does not make a finding on the issue of a criminal defendant's competency to stand trial within five days after the filing of a report by one or more psychiatrists or a psychiatrist and a psychologist, the defendant may request a hearing on that issue under W.Va.Code, 27-6A-1(d) [1977], at any reasonable time prior to trial." Syllabus Point 2, State v. Church, 168 W.Va. 408, 284 S.E.2d 897 (1981).

6. "No person may be subjected to trial on a criminal charge when, by virtue of mental incapacity, the person is unable to consult with his attorney and to assist in the preparation of his defense with a reasonable degree of rational understanding of the nature and object of the proceedings against him." Syllabus Point 1, State v. Milam, 159 W.Va. 691, 226 S.E.2d 433 (1976).

Mary Rich Maloy, Asst. Atty. Gen., for appellant.

Frank H. Helvey, Jr., Public Legal Services, Charleston, for appellee.

MILLER, Justice:

The defendant, Gay Barrow, advances several grounds for reversal of his felony convictions of attempted murder of his wife and malicious wounding of an infant child and three misdemeanor convictions of brandishing a pistol, carrying an unlicensed weapon, and destruction of property. The defendant's primary argument is that the circuit court should have suppressed the testimony of a State trooper concerning an incriminating oral statement he made because this statement had been obtained in violation of his Sixth Amendment right to counsel. We begin with a brief chronological account of the facts underlying this assignment of error.

I.

On the afternoon of April 16, 1982, the defendant's wife, Patty Barrow, and his son, in the company of Joyce Shipe and her infant child, were returning home in an automobile. The defendant's wife was seated on the front passenger side and the infant was riding in a car seat in the middle. As they approached the wife's home just outside of Harpers Ferry, Jefferson County, the defendant, who was in a parked vehicle beside the road, saw her and gave chase. He was able to pass their vehicle, block the road, and cause them to come to a stop. When they attempted to back away, he rammed their car with his vehicle.

He then got out of his car, approached the passenger side of their car, and pointed a pistol toward the passenger door window. Despite his wife's statement that she would go with him and her plea not to fire, the defendant discharged the weapon, shattering the side window. She was not harmed but it was later discovered that a sliver of glass had penetrated the diaper of the infant, causing possible permanent injury. The defendant's wife and son then went with the defendant in his jeep.

In response to a police radio dispatch, a State trooper, Steven Reckart, established a roadblock. The defendant managed to evade the roadblock, but was pursued and stopped a short time later. Following a consensual search of his vehicle which produced some bullets and a handgun, the defendant was placed under arrest for carrying an unlicensed weapon. After being advised of his Miranda rights, he was placed in the trooper's cruiser and transported directly for initial presentment to a Jefferson County magistrate. During this trip, the defendant upon being asked what had happened stated that he had fired a shot into the vehicle as a result of the marital difficulties he and his wife had been experiencing. ¹

At the magistrate's office, the defendant was charged with multiple offenses and advised of his rights. He indicated a desire to obtain a lawyer and made a telephone call to a local attorney. The magistrate issued a commitment order and Trooper Reckart and a second trooper then transported the defendant to the Jefferson County sheriff's office. There they again advised him of his rights and inquired whether he would be willing to make a statement. He agreed to do so, but did not sign a written waiver of his rights. Before the oral statement could be reduced to writing, his attorney arrived at the sheriff's office and spoke with the defendant concerning the charges. His counsel advised him not to speak to the police and also advised the police not to talk to the defendant. Shortly after the attorney left, the police initiated a further conversation with the defendant resulting in a written incriminating statement. ²

After an in camera evidentiary hearing was conducted prior to trial, the court ruled that the defendant's oral statement made after his initial presentment to a magistrate was admissible into evidence. At trial, Trooper Reckart related the substance of this statement indicating that the defendant said he had purchased the gun at a Western Auto Store at about 10:00 or 10:30 a.m. on the morning of the incident. He had then driven to an area to await his wife's return. When he observed the car she was riding in, he followed it and eventually pulled in front of it causing the vehicle to stop. He rammed the vehicle, fired a shot into the window, and then took his wife and child and drove off.

The defendant took the stand and testified that he had no independent recollection of what occurred and relied on the defense of insanity. He testified at length about the emotional strain he was under due to the breakup of his marriage and the separation from his wife and three children.

II.

The defendant contends that the admission of his oral statement violated his constitutional right to counsel. In State v. Wyer, 173 W.Va. 720, 320 S.E.2d 92 (1984), after acknowledging that the United States Supreme Court had never directly decided the issue of the waiver of the Sixth Amendment right to counsel, we proceeded to address the issue. We concluded that it was possible for a defendant to waive his Sixth Amendment right to counsel in certain circumstances. ³

After our decision in Wyer, the United States Supreme Court decided Michigan v. Jackson, 475 U.S. 625, 636, 106 S.Ct. 1404, 1411, 89 L.Ed.2d 631, 642 (1986), and concluded that "if police initiate interrogation after a defendant's assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid" because it was taken in violation of the defendant's Sixth Amendment right to counsel. ⁴ Because Wyer sets a more diminished standard than that set in Jackson, we must overrule Wyer to this extent. As the Supreme Court stated in Sims v. Georgia, 385 U.S. 538, 544, 87 S.Ct. 639, 643, 17 L.Ed.2d 593, 598 (1967), "a constitutional rule binding upon the States ... under the Supremacy Clause of Article VI of the Constitution ... must be obeyed."

The Supreme Court also pointed out in Jackson, 475 U.S. at 635, 106 S.Ct. at 1410-11, 89 L.Ed.2d at 641-42, that any attempt to secure a written waiver after the defendant's Sixth Amendment right to counsel had attached would be ineffective:

"Finally, the State maintains that each of the respondents made a valid waiver of his Sixth Amendment rights by signing a postarraignment confession after again being advised of his constitutional rights. In Edwards, however, we rejected the notion that, after a suspect's request for counsel, advice of rights and acquiescence in police-initiated questioning could establish a valid waiver. 451 U.S., at 484, 68 L.Ed.2d, at 378, 101 S.Ct., at 1830. We find no warrant for a different view under a Sixth Amendment analysis. Indeed, our rejection of the comparable argument in Edwards was based, in part, on our review of earlier Sixth Amendment cases. Just as written waivers are insufficient to justify police-initiated interrogations after the request for counsel in a Fifth Amendment analysis, so too they are insufficient to justify police-initiated interrogations after the request for counsel in a Sixth Amendment analysis." (Footnotes omitted).

The State seeks to avoid the impact of Jackson by contending that the defendant's initial appearance before the magistrate after his arrest should not trigger his Sixth Amendment right to counsel. This position is clearly contrary to our statement in Wyer, 173 W.Va. at 729-30, 320 S.E.2d at 101, where we quoted from ...