State v. Bevel
| Decision Date | 19 June 2013 |
| Docket Number | No. 11–1675.,11–1675. |
| Citation | 231 W.Va. 346,745 S.E.2d 237 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia, Respondent v. William BEVEL, Petitioner. |
OPINION TEXT STARTS HERE
1. Syl. pt. 3, State v. Stuart, 192 W.Va. 428, 452 S.E.2d 886 (1994).
2. “For a recantation of a request for counsel to be effective: (1) the accused must initiate a conversation; and (2) must knowingly and intelligently, under the totality of the circumstances, waive his right to counsel.” Syl. pt. 1, State v. Crouch, 178 W.Va. 221, 358 S.E.2d 782 (1987).
3. Syl. pt. 1, State v. Barrow, 178 W.Va. 406, 359 S.E.2d 844 (1987).
4. “An appellate court should not overrule a previous decision recently rendered without evidence of changing conditions or serious judicial error in interpretation sufficient to compel deviation from the basic policy of the doctrine of stare decisis, which is to promote certainty, stability, and uniformity in the law.” Syl. pt. 2, Dailey v. Bechtel Corp., 157 W.Va. 1023, 207 S.E.2d 169 (1974).
5. If police initiate interrogation after a defendant asserts his right to counsel at an arraignment or similar proceeding, any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid as being taken in violation of the defendant's right to counsel under article III, section 14 of the Constitution of West Virginia.
John R. Anderson, Esq., Assistant Public Defender, Moundsville, West Virginia, for the Petitioner.
Patrick Morrisey, Attorney General, Laura Young, Esq., Assistant Attorney General, Marland L. Turner, Assistant Attorney General, Charleston, West Virginia, for the Respondent.
Consistent with the United States Supreme Court's decision in Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986), this Court has held it to be a violation of a defendant's right to counsel for the police to initiate interrogation after the defendant has asserted his right to counsel at an arraignment or similar proceeding, even if the police procure a waiver of the right to counsel from the defendant. In 2009, the U.S. Supreme Court issued Montejo v. Louisiana, 556 U.S. 778, 129 S.Ct. 2079, 173 L.Ed.2d 955 (2009), which overruled their decision in Michigan v. Jackson. The Montejo court held that it does not violate a defendant's right to counsel under the Sixth Amendment to the United States Constitution for the police to approach and interrogate a defendant after he has asserted his right to counsel at an arraignment or similar proceeding if a valid waiver is obtained.
In the instant case, the petitioner, William Bevel, requested that counsel be appointed to him at his arraignment. However, prior to receiving an opportunity to confer with his counsel, Mr. Bevel was approached by a police officer and asked to sign a waiver of his right to counsel. Mr. Bevel signed the waiver and proceeded to make inculpatory statements to the police. In its October 26, 2011, order, the circuit court denied Mr. Bevel's motion to suppress the statements, finding that the interrogation was not conducted in violation of his right to counsel pursuant to Montejo. The question now before this Court is whether West Virginia will continue to follow our existing precedent or whether we will instead adopt the conclusions and rationale of the U.S. Supreme Court in Montejo.
We have thoroughly reviewed the record presented, the briefs, the relevant legal authorities, and the arguments of Mr. Bevel and the State. For the reasons provided herein, we decline to adopt Montejo and find that the right to counsel that has been recognized in this state for more than a quarter century continues to be guaranteed by article III, section 14 of the West Virginia Constitution. Consequently, we find that the circuit court erred by failing to suppress the inculpatory statements made by Mr. Bevel We therefore reverse the circuit court's November 2, 2011, conviction and sentencing order, and we remand the case for further proceedings consistent with this opinion.
Before we begin our description of the facts in this case, we call attention to the point that the underlying order of the circuit court is devoid of factual findings. Furthermore, the parties' briefs include few facts about the victim or the events leading up to Mr. Bevel's arrest. The following relevant background information has been gleaned from documents included in the appendix record provided to this Court by the petitioner.
The victim in this case, a child named S.H.,1 was born on May 6, 2005. After her birth, she lived with her mother, Carrie Bevel, and then with both her mother and the petitioner, Mr. Bevel. On February 2, 2008, when S.H. was two years old, she was placed in the legal custody of her grandmother, Tammy H. The change in custody was pursuant to an abuse and neglect proceeding brought against Ms. Bevel. alleging that the home was unsafe for S.H. due to lack of heat and broken glass. Ms. Bevel and Mr. Bevel were married on February 19, 2008.
Sometime in September or October of 2008, Tammy H. witnessed S.H. “acting out sexually.” Tammy H. promptly contacted the state police and Harmony House. 2 Employeesof Harmony House conducted multiple interviews of S.H., the results of which were provided to investigating police officers in December of 2010. During the interviews, S.H. revealed that Ms. Bevel and Mr. Bevel had touched her in a sexual manner while she was in their care. Using dolls that represented her and Mr. Bevel, S.H. indicated that Mr. Bevel had penetrated her vagina with his penis and with his fingers.
Pursuant to the December 14, 2010, criminal complaint of the Magistrate Court of Marshall County, which alleged that Mr. Bevel had sexually abused S.H., a warrant was issued for Mr. Bevel's arrest. Upon his arrest, he was taken to the Northern Regional Jail & Correctional Facility.
On December 17, 2010, a Marshall County magistrate conducted Mr. Bevel's initial appearance via closed circuit video conferencing. During the initial appearance, Mr. Bevel was given a form titled “Initial Appearance: Rights Statements.” The first page of the form included the following:
DEFENDANT MUST INITIAL ONE OF THE FOLLOWING THREE CHOICES IF A JAIL PENALTY IS POSSIBLE:
____ (a) I give up my right to have an attorney represent me.
____ (b) I want to hire an attorney to represent me.
____ (c) I want an attorney appointed to represent me.
Mr. Bevel placed his initials next to the third option, requesting that counsel be appointed to him. The form was faxed to the magistrate. The dates and times imprinted on the form as a result of the faxing process suggest that the initial appearance occurred sometime between 10:00 a.m. and noon.
At approximately 1:00 p.m. that same day, police officers took Mr. Bevel to an interrogation room in the jail. He was then provided with a one-page form which described his rights with regard to interrogation. The first portion of the form, titled “ YOUR RIGHTS ”, said:
You have the right to remain silent and refuse to answer questions
Anything you say can be used against you in court.
You have the right to talk to a lawyer for advice before we ask you any questions and to have your lawyer with you during questioning.
If you cannot afford a lawyer, one will be appointed for you before any questioning, if you wish.
If you decide to answer questions now without a lawyer present, you still have the right to stop answering at any time until you talk to a lawyer.
I have been advised that I am to be questioned about Sexual Assault Charges.
I understand that I am under arrest for the crime(s) of Sexual Assault Charges and that I have the right to taken [sic] to a magistrate and arraigned on this charge or charges without delay. If taken before a magistrate, I would have the following rights explained to me:
1. I would be informed of the charges against me and have the charges read and explained to me. I would be explained the penalties that the Court may impose should I be found guilty of those charges.
2. That I would have the right to a jury trial on all charges lodged against me.
3. That, under the United States Constitution and the Constitution and laws of the State of West Virginia, I do not have to say anything to the law enforcement officer, to the magistrate, or to the judge, which might tend to incriminate me.
4. That anything I say, write, or sign may be introduced into evidence at any trial in connection with the charges against me.
5. That I have the right to have the assistance of counsel during criminal proceedings against me and that if I cannot afford counsel, the State will supply me with counsel at no cost.
6. That no person other than a lawyer can represent me during these proceedings.
7. That if I decide to represent myself in the trial of the charges against me, I cannot later claim that I was deprived of my right to a lawyer.
8. That I have a right to a preliminary examination by a magistrate if the charges against me are presented to a Grand Jury for indictment. At such a preliminary...
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