State v. Bragg, No. 13614

• Court: Supreme Court of West Virginia
• Writing for the Court: CAPLAN
• Citation: 235 S.E.2d 466,160 W.Va. 455
• Parties: STATE of West Virginia v. Dale Eugene BRAGG.
• Decision Date: 29 March 1977
• Docket Number: No. 13614

Page 466

235 S.E.2d 466 160 W.Va. 455 STATE of West Virginia
v.
Dale Eugene BRAGG. No. 13614. Supreme Court of Appeals of West Virginia. March 29, 1977.
Rehearing Denied July 1, 1977.

Page 467

Syllabus by the Court

1. Extra-judicial statements made by the defendant during custodial interrogation, whether exculpatory or inculpatory, may not be introduced by the state unless it demonstrates that it has afforded the defendant procedural safeguards which have

Page 468

effectively secured his privilege against self-incrimination.

2. A defendant may waive his constitutional rights, as enunciated in Miranda, provided the waiver is made voluntarily, knowingly and intelligently.

[160 W.Va. 456] 3. The right to a bifurcated trial lies within the sound discretion of the trial court.

4. "When a defendant in a criminal case raises the issue of insanity, the test of his responsibility for his act is whether, at the time of the commission of the act, it was the result of a mental disease causing the accused to lack the capacity either to appreciate the wrongfulness of his act or to conform his act to the requirements of the law, and it is error for the trial court to give an instruction on the issue of insanity which imposes a different test or which is not governed by the evidence presented in the case. Point 2, Syllabus, State v. Myers, W.Va., 222 S.E.2d 300 (1976).

5. An indictment which charges that the defendant feloniously, wilfully, maliciously, deliberately, premeditatedly and unlawfully did slay, kill and murder is sufficient to support a conviction for murder committed in the commission of, or attempt to commit arson, rape, robbery or burglary, it not being necessary, under W.Va. Code, 61-2-1, to set forth the manner or means by which the death of the deceased was caused.

6. When the evidence would support only one of four possible verdicts, it is not error for the court to instruct the jury that its verdict must be confined to one of such verdicts.

Preiser & Wilson, John C. Krivonyak, Thomas M. Hayes, Weaver & Troelstrup, Charleston, for plaintiff-in-error.

Chauncey H. Browning, Jr., Atty. Gen., Richard E. Hardison, Deputy Atty. Gen., Charleston, for defendant in error.

CAPLAN, Chief Justice.

This appeal results from a conviction of the defendant, Dale Eugene Bragg, on an indictment charging him [160 W.Va. 457] with the premeditated murder of Rebecca Sue Bricker. The jury having recommended mercy, the defendant was sentenced to confinement in the state penitentiary for the rest of his natural life, "with a recommendation of mercy". Upon the denial of the defendant's motion for a new trial this appeal was prosecuted.

Although several errors are assigned as grounds for reversal, the principal assignment is the failure of the court to grant the defendant's motion to suppress his extra-judicial statements. It is urged that such statements were erroneously admitted to the reason that, prior to their utterance, the defendant had not been properly advised of his constitutional rights as defined in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We are in agreement with the trial court ruling and affirm.

The defendant's involvement in this case began on August 12, 1973 when he was approached by police officers of the City of Charleston in relation to an alleged child molestation charge. The record discloses that on the above date an eleven-year old child was allegedly molested at a local K Mart Store. Nothing was done at that time, but later that evening when the child and her mother were at Arlan's, another retail store, the latter observed the defendant and called the police. When the police arrived, the mother directed them to the defendant who was still in their sight.

When the police officer approached the defendant about this matter, the defendant indicated that he was aware of the mother's charge but thought that it had been resolved. He then voluntarily accompanied the city police to Arlan's where the mother and child identified him as the offender. The police did not arrest the defendant at that time but asked him if he would accompany them to police headquarters to see if the alleged K Mart incident could be "straightened out". During this cursory investigation, one of the police officers observed that the soles of the defendant's tennis shoes were of similar design as that

Page 469

of the shoe print found at the place where the body of the Bricker girl was found.

[160 W.Va. 458] The record reveals that the defendant was asked by the police if he would accompany them to the police station to get this matter settled, he having been specifically told that he was not under arrest. The defendant complied with that request. Upon arrival at the station the defendant asked for his "rights" and was again told that he was not under arrest. Two police officers then interrogated the defendant about the K Mart incident and engaged him in a general conversation in relation to his residence, place of work and other matters of that nature.

The young girl who was allegedly molested by the defendant tended to become hysterical when confronted by him so the questioning alluded to above took place in a separate room, out of her presence. She later related to David Tucker, a city detective, the manner in which the defendant accosted her. Detective Tucker then went into the room where Dale Bragg was talking with another policeman and said: "Well, Mr. Bragg, I am charging you with a felony". He testified that he then gave the defendant his Miranda warnings. Each right was read to the accused, after which he was asked if he fully understood such right. Upon receiving an affirmative answer, the next right was read and a like response obtained. According to the testimony in the record, the defendant was fully informed of his constitutional rights as prescribed by Miranda, supra. He clearly indicated that he understood what rights he had in the circumstances and chose to answer questions propounded to him.

Questioning of the defendant was then resumed by the two officers. It was during this time that the conversation turned to the Bricker murder. When one of the policemen indicated that he did not know the name of the murdered girl, Bragg volunteered by exclaiming "Becky". At this time the interrogation was unquestionably focused on the Bricker murder and the record reveals that Bragg was again read his "rights".

The defendant was then taken to another room where he was further questioned by Detective Edward Leonard. [160 W.Va. 459] This officer testified at the suppression hearing but not at the trial. He said that he again gave him his constitutional rights. During this period of questioning Detective Leonard and the defendant engaged in conversation about several matters which included the Bricker murder. Leonard asked him how he got Rebecca out of the house, to which the defendant responded that he carried her out. This testimony was adduced at the suppression hearing, not before the jury. The detective immediately "stopped and explained him his rights". This was at least the fourth time that the defendant was informed of his constitutional rights. Unquestionably this warning related to the Bricker murder.

Leonard testified that during further conversation and questioning, the defendant, in great detail, orally confessed to the killing of Rebecca Bricker. This confession was not taken down by the officer but he left the room and related those happenings to his superior. Thereafter, arrangements...