State v. Cole, 18448

• Decision Date: 21 December 1988
• Docket Number: No. 18448,18448
• Citation: 376 S.E.2d 618,180 W.Va. 412
• Parties: STATE of West Virginia v. Willard COLE.
• Court: West Virginia Supreme Court

Page 618

376 S.E.2d 618

180 W.Va. 412

STATE of West Virginia v. Willard COLE.

No. 18448.

Supreme Court of Appeals of West Virginia.

Dec. 21, 1988.

Syllabus by the Court

1. "Under the sixth amendment of the federal constitution and article III, section 14 of the West Virginia Constitution, unless an individual convicted of a misdemeanor was represented by counsel or knowingly and intelligently waived the right to counsel, such prior conviction may not be used to enhance a sentence of imprisonment for a subsequent offense." Syllabus Point 1, State v. Armstrong, 175 W.Va. 381, 332 S.E.2d 837 (1985).

2. "West Virginia Constitution, Article III, Section 14, guarantees that, absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial." Syllabus Point 1, State v. Blosser, 158 W.Va. 164, 207 S.E.2d 186 (1974).

3. A defendant who is charged under W.Va.Code, 17B-4-3(b), with driving a motor vehicle on a revoked or suspended operator's license cannot defeat this charge by claiming that he did not have appointed counsel at the administrative revocation hearing.

4. "A party moving for a continuance due to the unavailability of a witness must show: (1) the materiality and importance of the witness to the issues to be tried; (2) due diligence in an attempt to procure the attendance of the witness; (3) that a good possibility exists that the testimony will be secured at some later date; and (4) that the postponement would not be likely to cause an unreasonable delay or disruption in the orderly process of justice." Syllabus Point 4, State v. McCallister, 178 W. Va. 77, 357 S.E.2d 759 (1987).

5. "In order to make exclusion of offered evidence available as a ground of error in the appellate court, the record must be so prepared in the court below as to show what the excluded evidence was. There is no presumption as to what answer a witness would have made to a question propounded." Syllabus Point 4, State v. Carr, 65 W.Va. 81, 63 S.E. 766 (1909).

6. "It is not error for a court to refuse to grant an instruction on the unanimity of the jury." Syllabus Point 8, Browder v. County Court of Webster County, 145 W.Va. 696, 116 S.E.2d 867 (1960).

7. "Federal cases have held that the language of Rule 31(d) of the Federal Rules of Criminal Procedure requires that when a juror indicates in a poll that he either disagrees with the verdict or expresses reservations about it, the trial court must either direct the jury to retire for further deliberations or discharge the jury. Although the rule does not explicitly so state, courts have also recognized that appropriate neutral questions may be asked of the juror to clarify any apparent confusion, provided the questions are not coercive. We adopt this procedure for Rule 31(d) of the West Virginia Rules of Criminal Procedure." Syllabus Point 2, State v. Tennant, 173 W.Va. 627, 319 S.E.2d 395 (1984).

George F. Fordham, Clarksburg, for appellant.

Charles G. Brown, III, Attorney General, for appellee.

MILLER, Justice:

Willard Cole appeals his conviction by a jury in the Circuit Court of Taylor County of driving with a revoked license in violation of W.Va.Code, 17B-4-3(b) (1986). He was sentenced to six months in the Taylor County jail and was fined $300. The defendant asserts that the trial court erred: (1) by denying his motion for a judgment of acquittal on the grounds that no evidence was introduced to show that he was either represented by counsel or knowingly and intelligently waived that right on his prior conviction of driving under the influence; (2) by refusing to grant a continuance although a defense witness was not present; (3) by refusing to allow impeachment of the testimony of the arresting officer; (4) by refusing a jury instruction he offered; and (5) by accepting the verdict of guilty after one of the jurors, during the polling of the jury, expressed doubt as to the guilt of the defendant. We find that the final assignment of error relating to the polling of the jury requires reversal.

I.

During the early morning hours of February 22, 1987, Officer Lewis Stevens of the Grafton Police Department was parked at the intersection of Route 50 and Route 119 observing traffic. Also parked at this intersection was Deputy Richard F. Jones of the Taylor County Sheriff's Department. The officers observed a blue and white pick-up truck make an illegal turn into the parking lot of a Union 76 gas station. Officer Stevens immediately followed the truck, which had stalled in the meantime. Before Officer Stevens could get out of his cruiser, the occupant of the truck, the defendant, exited the vehicle, lifted the truck's hood, and appeared to be working on the engine.

Officer Stevens asked the defendant for his driver's license, registration, and proof of insurance. The defendant told the officer that he did not own the truck and did not have a driver's license. He also said that he had not been driving the truck, which he claimed had been parked for two days. However, when Officer Stevens touched the engine, it was warm.

Officer Stevens radioed the dispatcher to determine the ownership of the truck and to confirm that the defendant had a suspended driver's license. After learning that the defendant's driver's license had been revoked, the officer placed him under arrest pursuant to W.Va.Code, 17B-4-3(b) (1986).

On May 5, 1987, the defendant was tried for driving on a revoked license. Initially, the State entered into evidence the administrative order revoking the defendant's driver's license for driving under the influence of alcohol. Next, the State presented the testimony of the two police officers who had witnessed the defendant driving on the night in question. The defendant testified that on the morning of February 22, 1987, he was walking through the parking lot on his way home from a local bar when a police officer yelled at him to freeze. The jury found the defendant guilty. It is from this conviction that the defendant appeals.

II.

The defendant argues that because the record is silent as to whether he was represented by counsel at the administrative revocation hearing, it was reversible error to later convict him for driving on a revoked driver's license pursuant to W.Va.Code, 17B-4-3(b) (1986). As authority for this proposition, he cites State v. Armstrong, 175 W.Va. 381, 332 S.E.2d 837 (1985), as controlling. In Syllabus Point 1 of Armstrong, we held:

"Under the sixth amendment of the federal constitution and article III, section 14 of the West Virginia Constitution, unless an individual convicted of a misdemeanor was represented by counsel or knowingly and intelligently waived the right to counsel, such prior conviction may not be used to enhance a sentence of imprisonment for a subsequent offense."

In Armstrong, the defendant was indicted for a third offense DUI, a felony under W.Va.Code, 17C-5-2(i). Prior to trial, the defendant filed a "motion to dismiss the indictment, or, in the alternative, to strike prior convictions," alleging that he had not been afforded counsel and did not properly waive his right to counsel before pleading guilty in the two prior DUI convictions. This motion was denied, but on appeal we held that the defendant had the right to challenge the constitutionality of his prior DUI convictions which were the predicate for the enhanced sentence.

We find that the holding in Armstrong does not apply in this case. The key element of a violation of W.Va.Code, 17B-4-3(b) (1986), is driving on a license which has been previously revoked for driving under the influence of alcohol or a controlled substance. ¹ Such a revocation of an individual's driver's license is an administrative proceeding under W.Va.Code, 17C-5A-2. Indeed, whether the defendant was convicted of the misdemeanor crime of driving under the influence is immaterial to a conviction for violation of W.Va.Code, 17B-4-3(b) (1986). Jordan v. Roberts, 161 W.Va. 750, 246 S.E.2d 259 (1978).

We decline the defendant's invitation to extend the holding in Armstrong to situations where an individual's license has been revoked by the Department of Motor Vehicles and he is then prosecuted for driving on the revoked license. We have made it clear, in prior cases, that the right to counsel extends only to criminal causes that involve the possibility of imprisonment. As we said in Syllabus Point 1 of State v. Blosser 158 W.Va. 164, 207 S.E.2d 186 (1974):

"West Virginia Constitution, Article III, Section 14, guarantees that, absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial."

See also Bullet v. Staggs, 162 W.Va. 199, 250 S.E.2d 38 (1978).

Blosser and Bullet thus support the conclusion that an administrative proceeding to revoke a driver's license due to an arrest for DUI is not criminal, and does not implicate the right to counsel. This point was discussed in Jordan v. Roberts, supra. Other jurisdictions have concluded that an administrative revocation of a driver's license is not a criminal proceeding. E.g., Ferguson v. Gathright, 485 F.2d 504 (4th Cir.1973); Whorley v. Brillhart, 373 F.Supp. 83 (E.D.Va.1974); Abbot v. District of Columbia, 154 A.2d 362 (D.C.1959); State v. Bell, 182 Ga.App. 860, 357 S.E.2d 596 (1987); Davis v. State, 174 Ind.App. 433, 367 N.E.2d 1163 (1977); Gottschalk v. Sueppel, 258 Iowa 1173, 140 N.W.2d 866 (1966); State v. Boos, 232 Kan. 864, 659 P.2d 224 (1983), cert. denied, 462 U.S. 1136, 103 S.Ct. 3121, 77 L.Ed.2d 1374 (1983); Seders v. Powell, 298 N.C. 453, 259 S.E.2d 544 (1979); Robertson v. State ex rel. Lester, 501 P.2d 1099 (Okla.1972); State v. Rhoades, 54 Or.App. 254, 634 P.2d 806 (1981); Wolf v. State Dep't of Motor Vehicles, 27 Wash.App. 214, 616 P.2d 688 (1980).

Nor is it material to...