State v. Bowyer

• Decision Date: 06 April 1989
• Docket Number: No. 18461,18461
• Citation: 181 W.Va. 26,380 S.E.2d 193
• Parties: STATE of West Virginia v. James BOWYER.
• Court: West Virginia Supreme Court

Page 193

380 S.E.2d 193

181 W.Va. 26

STATE of West Virginia v. James BOWYER.

No. 18461.

Supreme Court of Appeals of West Virginia.

April 6, 1989.

Syllabus by the Court

1. The Sixth Amendment right to counsel attaches at the time judicial proceedings have been initiated against a defendant whether by way of formal charges, preliminary hearing, indictment, information, or arraignment.

2. Once an accused asks for counsel during custodial interrogation, he is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.

3. The State cannot use an accused's subsequent responses to custodial interrogation by the police to cast doubt on the adequacy of his initial request for counsel.

Ronald J. Flora, Milton, for James Bowyer.

Brenda Craig Ellis, Asst. Atty. Gen., Charleston, for State.

MILLER, Justice:

The defendant, James Bowyer, appeals his conviction in the Circuit Court of Cabell County for entering without breaking. He contends that his confession should not have been admitted. ¹

The evidence at the in camera hearing demonstrates that after the defendant was apprehended, he was taken to the City of Huntington police station sometime shortly after 2:00 a.m. Officer Murphy, who had investigated the unlawful entering, initially advised the defendant of his Miranda rights. ² Prior to the actual taking of the defendant's statement, which was tape recorded, Officer Murphy asked a preliminary question: "Are you willing at this time without an attorney present to answer any questions in reference to this breaking and entering?" The defendant replied: "No, sir."

At this point, the officer asked another question: "Ok, do you want to have a lawyer now or do you want to go to Magistrate Court right now or do you want to go ahead and give me a short statement and then let us take you over there [and] book you in?" The defendant answered: "I will give you a short statement but I don't really have nothing to say[.] I don't know what was really going on up there."

Officer Murphy responded by stating: "I mean you are doing this on your own free will. I am not forcing you in anyway or coercing you to give me this statement." The defendant replied: "No, sir." This was followed by Officer Murphy's remark that "you have the opportunity to leave right now and go over to the magistrate's office or you can sit here and give me a statement. [T]hat is your decision. Do you have any objection to giving me a short statement?" The defendant answered: "No, sir, I don't." Following this, a statement was taken from the defendant.

The defendant argues here, as he did below, that his initial negative answer to Officer Murphy's question about making a statement should be deemed a request for counsel. This is premised on the fact that the question was phrased: "Are you willing at this time without an attorney present to answer any questions?" (Emphasis added).

Despite the defendant's assertion that his Sixth Amendment right to counsel was implicated, it is clear that it is not. The defendant was in custody, but formal charges had not been made before a magistrate. Our traditional rule as to when a defendant's Sixth Amendment right to counsel attaches is contained in Syllabus Point 2 of State v. Barrow, 178 W.Va. 406, 359 S.E.2d 844 (1987):

" '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)."

Our holding in Gravely was predicated on Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), which we summarized as follows:

"In Kirby, the Court recognized that an accused's federal constitutional Sixth and Fourteenth Amendment right to counsel 'attaches only at or after the time that adversary judicial proceedings have been initiated against him.' 406 U.S. at 688, 92 S.Ct. at 1881, 32 L.Ed.2d at 417. The Court indicated that adversary judicial criminal proceedings could be initiated by way of 'formal charge, preliminary hearing, indictment, information, or arraignment.' 406 U.S. at 689, 92 S.Ct. at 1882, 32 L.Ed.2d at 417." 171 W.Va. at 433, 299 S.E.2d at 380.

There can be no question that Kirby continues to be good law, as evidenced by note 3 in Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986). In Jackson, the State argued that initial arraignment before a magistrate should not trigger the Sixth Amendment right to counsel. The Supreme Court in rejecting this argument stated:

"In view of the clear language in our decisions about the significance of arraignment, the State's argument is untenable. See, e.g., Brewer v. Williams, 430 U.S. 387, 398, 51 L.Ed.2d 424, 97 S.Ct. 1232 [1239] (1977) ('[A] person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him--"whether by way of formal charge, preliminary hearing, indictment, information, or arraignment " ') (emphasis added), quoting Kirby v. Illinois, 406 U.S. 682, 689, 32 L.Ed.2d 411, 92 S.Ct. 1877 [1882] (1972) (plurality opinion)." 475 U.S. at 629 n. 3, 89 L.Ed.2d at 638 n. 3, 106 S.Ct. at 1407 n. 3).

Thus, it is clear under Kirby and its progeny, which we have adopted, that the Sixth Amendment right to counsel attaches at the time judicial proceedings have been initiated against a defendant whether by way of formal charges, preliminary hearing, indictment, information, or arraignment.

What is involved in this case is the Fifth Amendment right to counsel under Miranda, which is implicated when an accused is in custody. In particular, the issue here is whether this right was invoked so as to preclude further interrogation under Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378, reh'g denied, 452 U.S. 973, 101 S.Ct. 3128, 69 L.Ed.2d 984 (1981). There, the Supreme Court held that once an accused asks for counsel during custodial interrogation, he "is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police." 451 U.S. at 484-85, 101 S.Ct. at 1885, 68 L.Ed.2d at 386.

In Edwards, the facts were similar to the case at hand. The defendant was arrested at his home and taken to the police station where he was informed of his Miranda rights. He responded that he understood his rights and was willing to submit to questioning. After some preliminary questions, Edwards indicated to the interrogating officer that he wanted to make a deal. The officer indicated that he had no authority to make a deal and gave him the number of the county attorney. Edwards then said, "I want an attorney before making a deal." 451 U.S. at 479, 101 S.Ct. at 1882, 68 L.Ed.2d at 382.

The questioning ceased at this point. The next morning two other officers, who were colleagues of the interrogating officer, came to the jail and asked to see Edwards. Upon being advised of their request by a jailer, Edwards said he did not want to talk with them. The jailer told him he had to talk with them and took him to meet the officers. They subsequently gave Miranda warnings and secured a confession. The Supreme Court held the confession invalid as Edwards had earlier invoked his right to counsel and had not initiated the second conversation.

It is clear under Edwards that the fact that an accused initially agrees to waive his Miranda rights and talk with the police does not preclude him from reasserting his right to counsel, in which event interrogation must cease. Edwards relied on Miranda for this proposition, stating: "The Court also indicated the procedures to be followed subsequent to the warnings.... If he requests counsel 'the interrogation must cease until an attorney is present.' [ Miranda v. Arizona, 384 U.S.] at 474 [.]" 451 U.S. at 482, 101 S.Ct. at 1883, 68 L.Ed.2d at 384.

Edwards' only refinement of Miranda was its holding that after the assertion of the right to counsel, an accused could relinquish the right by initiating further communications with the police. We recognized Miranda's precept that the assertion of the right to counsel precludes further interrogation in Syllabus Point 1 of State v. McNeal, 162 W.Va. 550, 251 S.E.2d 484 (1978):

"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."

See also State v. Green, 172 W.Va. 727, 310 S.E.2d 488 (1983); State v. Easter, 172 W.Va. 338, 305 S.E.2d 294 (1983).

We also recognized in State v. Bradley, 163 W.Va. 148, 255 S.E.2d 356 (1979), that it was possible for an accused "after requesting counsel [to] recant his request, [but] there is a heavy burden upon the state to prove his waiver of right to counsel." Syllabus Point 2, in part. It is clear, however, that under Bradley the police may not induce the recantation by talking with the accused after he has asserted his right to counsel. This would violate Edwards' constitutional premise that requires the police to cease interrogation unless the defendant initiates a further dialogue.

In a related area, we have acknowledged in Syllabus Point 3 of State v. Clawson, 165 W.Va. 588, 270 S.E.2d 659 (1980), that if an accused is equivocal about his desire to have counsel, then further questions may be asked to clarify his...