State v. Bennett

Decision Date12 September 1985
Docket NumberNo. 16360,16360
Citation339 S.E.2d 213,176 W.Va. 1
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia v. George E. BENNETT.

Syllabus by the Court

1. "Where there is a failure to hold an in camera hearing on the defendant's inculpatory statements, we recognize under Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), that the case will not be reversed for a new trial on this basis alone. Instead, it will be remanded for a voluntariness hearing before the trial court. If the trial court finds the statements are voluntary the verdict will stand. If, on the other hand, he finds the statements to be involuntary, the verdict will be set aside unless the trial court determines that this constitutional error is harmless beyond a reasonable doubt." Syl. pt. 5, State v. Clawson, 165 W.Va. 588, 270 S.E.2d 659 (1980).

2. "The delay in taking the defendant to a magistrate may be a critical factor where it appears that the primary purpose of the delay was to obtain a confession from the defendant." Syl. pt. 6, State v. Persinger, 169 W.Va. 121, 286 S.E.2d 261 (1982).

3. "Once a suspect in custody has expressed his clear, unequivocal desire to be represented by counsel, the police must deal with him as if he is thus represented. Thereafter, it is improper for the police to initiate any communication with the suspect other than through his legal representative, even for the limited purpose of seeking to persuade him to reconsider his decision on the presence of counsel." Syl. pt. 1, State v. McNeal, 162 W.Va. 550, 251 S.E.2d 484 (1978).

4. "Subject to certain exceptions, pretrial discovery in a criminal case is within the sound discretion of the trial court." Syl. pt. 8, State v. Audia, 171 W.Va. 568, 301 S.E.2d 199, cert. denied, 464 U.S. 934, 104 S.Ct. 338, 78 L.Ed.2d 307 (1983).

5. "When a trial court grants a pre-trial discovery motion requiring the prosecution to disclose evidence in its possession, non-disclosure by the prosecution is fatal to its case where such non-disclosure is prejudicial. The non-disclosure is prejudicial where the defense is surprised on a material issue and where the failure to make the disclosure hampers the preparation and presentation of the defendant's case." Syl. pt. 2, State v. Grimm, 165 W.Va. 547, 270 S.E.2d 173 (1980).

6. Where a defendant charged with murder of the first degree filed discovery motions seeking information concerning the manner in which the homicide was committed and a list of persons possessing knowledge of the facts and circumstances of the homicide, and the motions were granted by the trial court, the defendant was entitled to a new trial where (1) the State, two days before trial, informed defense counsel of the existence of a weapon used in the commission of the homicide, which weapon the State had knowledge of in excess of two months before trial, (2) the State, during the trial, revealed to defense counsel the names of four witnesses who could connect the weapon to both the homicide and the defendant and (3) in camera hearings conducted during the trial with regard to such previously undisclosed evidence failed to overcome the undue prejudice suffered by the defendant at trial because of the non-disclosure. W.Va.R.Crim.P. 16.

John G. Ours, Petersburg, for appellant.

S. Clark Woodroe, Asst. Atty. Gen., Charleston, for appellee.

McHUGH, Justice:

This action is before this Court upon an appeal by George E. Bennett from his October, 1983 conviction in the Circuit Court of Grant County, West Virginia, of murder of the first degree. W.Va.Code, 61-2-1 [1931]. The jury returned its verdict without a recommendation of mercy, and the circuit court sentenced the appellant to the West Virginia Penitentiary "for the rest of his natural life." The State asserted at trial that the appellant murdered his wife, Debra Bennett, by means of strangulation. This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel.

I

The appellant and Debra Bennett lived in a mobile home near Petersburg in Grant County. During the night of March 11, 1983, and early morning hours of March 12, 1983, an argument occurred between the appellant and Debra Bennett, during which Debra stated that she wanted a divorce, and the appellant threatened to commit suicide. Later, on March 12 at 1:15 p.m. a Grant County ambulance squad, called by the appellant, arrived at the home. Debra Bennett was found dead in the home with a pair of panty hose tied tightly around her neck. Her body also exhibited a head wound and various other wounds. The cause of death was subsequently determined to be "asphyxia due to ligature strangulation." 1

At 1:45 p.m. on March 12, officers of the West Virginia Department of Public Safety arrived at the home. Upon learning that the appellant had been arguing with his wife, the officers informed the appellant of his rights [Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ] and transported him to the Grant County Courthouse.

The appellant and the officers arrived at the courthouse at approximately 3:00 p.m., and the appellant was again informed of his rights. From 3:00 p.m. until 4:26 p.m. the appellant was "intermittently questioned" about the death of Debra Bennett. During that time, the appellant made various oral inculpatory statements to the officers. 2

From 4:26 p.m. until 5:03 p.m. on March 12 the appellant formally confessed to the officers that he killed Debra Bennett. That confession was tape recorded and reduced to writing.

Subsequently, the appellant was taken to the office of Grant County Magistrate Ruth Michael for presentment. During that presentment, the appellant was placed under arrest.

II

The appellant was indicted during the March 1983 term of the Circuit Court of Grant County.

In May 1983, the appellant, by counsel, filed discovery motions by way of which the appellant sought from the State information concerning, inter alia, (1) the manner in which the homicide was committed, (2) any oral or written statements given by the appellant to law enforcement officers and (3) a list of persons possessing knowledge of the "facts and circumstances" of the homicide. See W.Va.R.Crim.P. 16. The circuit court ordered the State to comply with those discovery motions.

Following a pretrial in camera hearing, the circuit court denied the appellant's motion for a change of venue and the appellant's motion to suppress the written confession. In addition, the circuit court ruled, over the objection of the appellant, that certain photographs of the body of Debra Bennett, which were taken in the mobile home, would be admissible at trial.

During the trial the State was permitted, through its witnesses, to inform the jury of both the oral inculpatory statements of the appellant 3 and the confession of the appellant which had been reduced to writing. The tape recording of the latter confession was played to the jury, over the objection of the appellant. Furthermore, the State was permitted to suggest that the appellant struck his wife with a metal club immediately before she was strangled.

The appellant asserted, at trial, the defense of alibi, i.e., that he was not at home at the time of the homicide. Moreover, various witnesses, including the mother of Debra Bennett, testified that the appellant was a "nonviolent" person. Finally, the appellant indicated that his inculpatory statements and confession were involuntary. Dr. Hiram Sizemore, Jr., who examined the appellant in June 1983, described for the jury his conclusion that the appellant was upset, confused and "extremely suggestible" at the time the appellant talked to the officers on March 12.

III

The appellant contends that the circuit court committed error in permitting the State to introduce at trial the appellant's oral inculpatory statements (hereinafter the "oral confession") and the appellant's confession which was tape recorded and reduced to writing (hereinafter the "written confession"). The appellant's oral and written confessions were made at the Grant County Courthouse on March 12, subsequent to the discovery of the body of Debra Bennett.

There is no question that the appellant's oral confession, given sometime between 3:00 p.m. and 4:26 p.m., seriously incriminated him in the death of Debra Bennett. The appellant told the officers that he "knocked her down and choked her and tied her up...." See n. 2 and n. 3, supra. That oral confession was revealed to the jury through the testimony of Trooper Humphrey.

The record indicates that the question of the voluntariness of the appellant's oral confession was never resolved by the circuit court. No in camera hearing with respect to the oral confession was ever held.

In syllabus point 5 of State v. Clawson, 165 W.Va. 588, 270 S.E.2d 659 (1980), this Court held:

Where there is a failure to hold an in camera hearing on the defendant's inculpatory statements, we recognize under Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), that the case will not be reversed for a new trial on this basis alone. Instead, it will be remanded for a voluntariness hearing before the trial court. If the trial court finds the statements are voluntary the verdict will stand. If, on the other hand, he finds the statements to be involuntary, the verdict will be set aside unless the trial court determines that this constitutional error is harmless beyond a reasonable doubt.

See also State v. Persinger, 169 W.Va. 121, 286 S.E.2d 261, 266 (1982); State v. Wimer, 168 W.Va. 417, 284 S.E.2d 890, 893 (1981); State ex rel. White v. Mohn, 168 W.Va. 211, 283 S.E.2d 914, 916 (1981).

Thus, inasmuch as in this action there was a failure to hold an in camera hearing upon the appellant's oral confession, this action must be remanded to the circuit court, pursuant to State v. Clawson, for...

To continue reading

Request your trial
10 cases
  • State v. Worley
    • United States
    • West Virginia Supreme Court
    • 11 Abril 1988
    ... ... Furthermore, the father's subsequent discovery of additional incriminating evidence, which he then turned over to the police, does not violate Coolidge or Riser ... 15 The defendant contends that State v. Bennett, --- W.Va. ----, 339 S.E.2d 213 (1985), should control. Bennett, however, dealt with a situation where the police obtained a valid oral confession, but "delayed presentment for the purpose of obtaining a separate confession." We specifically found the delay in presentment "was not merely for the ... ...
  • State v. Dietz
    • United States
    • West Virginia Supreme Court
    • 8 Marzo 1990
    ...delay in this case used to extract a separate confession, and proper warnings were administered. See syl. pt. 2, State v. Bennett, 176 W.Va. 1, 339 S.E.2d 213 (1985).13 Some federal circuits have given their approval to allowing such evidence into the jury room during deliberations. United ......
  • State v. Humphrey
    • United States
    • West Virginia Supreme Court
    • 10 Diciembre 1986
    ...with sufficient probable cause to warrant an arrest, the prompt presentment rule is also triggered. See, e.g., State v. Bennett, --- W.Va. ----, 339 S.E.2d 213 (1985); State v. Hickman, --- W.Va. ----, 338 S.E.2d 188 (1985); State v. Wyant, --- W.Va. ----, 328 S.E.2d 174 (1985) (per curiam)......
  • State v. Grubbs, 16988
    • United States
    • West Virginia Supreme Court
    • 21 Diciembre 1987
    ...delay was to obtain a confession from the defendant." See also State v. Dyer, --- W.Va. ---, 355 S.E.2d 356 (1987); State v. Bennett, --- W.Va. ---, 339 S.E.2d 213 (1985); State v. Hickman, --- W.Va. ---, 338 S.E.2d 188 (1985); State v. Guthrie, --- W.Va. ---, 315 S.E.2d 397 (1984).This syl......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT