State v. Ellsworth

Decision Date06 June 1985
Docket NumberNo. 16350,16350
PartiesSTATE of West Virginia v. ELLSWORTH J.R.
CourtWest Virginia Supreme Court

Syllabus by the Court

1. " '[Subject to the provisions of W.Va. Code, 49-5-1(d),] [t]here is no constitutional impediment which prevents a minor above the age of tender years solely by virtue of his minority from executing an effective waiver of rights; however, such waiver must be closely scrutinized under the totality of the circumstances.' Syllabus Point 1, as modified, State v. Laws, 162 W.Va. 359, 251 S.E.2d 769 (1978)." Syllabus Point 3, State v. Howerton, --- W.Va. ---, 329 S.E.2d 874 (1985).

2. The function of a proviso in a statute is to modify, restrain, or conditionally qualify the preceding subject to which it refers.

3. Under W.Va. Code, 49-5-8(d), when a juvenile is taken into custody, he must immediately be taken before a referee, circuit judge, or magistrate. If there is a failure to do so, any confession obtained as a result of the delay will be invalid where it appears that the primary purpose of the delay was to obtain a confession from the juvenile.

4. Under both W.Va. Code, 49-5-8(a) and -8(b), the grounds for taking a juvenile into custody where the juvenile has allegedly committed a criminal act are the same as for the arrest of an adult.

Arthur A. King, Public Defender Corp., Martinsburg, for appellant.

Janet Frye Steele, Asst. Atty. Gen., Charleston, for appellee.

MILLER, Justice:

This is a direct statutory appeal by Ellsworth J.R., a juvenile, 1 from an order of the Circuit Court of Berkeley County transferring him to adult criminal jurisdiction upon a finding of probable cause to believe he had committed murder, one of the permissible transfer offenses enumerated in W.Va. Code, 49-5-1(d)(1).

The principal assignment of error relates to the validity of the juvenile's confession which was taken on February 7, 1984, when he was seventeen years of age, while he was in custody and without counsel or relatives present.

The circumstances surrounding the confession are that the police, who had previously talked to the juvenile on two occasions, knew that he was present when the victim fell into a quarry and drowned in its accumulated water. The juvenile had accompanied the victim, his wife, and their children to a picnic which was held a short distance from the edge of the quarry. After they had eaten, the wife suggested to her husband that he dump the hot coals from the grill into the quarry. In the process of doing this, he allegedly fell over into the quarry.

Subsequent police investigation had revealed that the victim's sister-in-law changed her testimony and stated that the victim's wife had remarked that the juvenile had told her he had pushed the victim over the edge. Based partly upon this information, the police again approached the juvenile who was staying with a friend and asked him if he would accompany them to the police station. The juvenile responded, "no problem," and got into the cruiser and was given his Miranda warnings.

The police stated to the juvenile that they had information which led them to believe that he had been paid $2,000 to push the victim into the quarry. They also indicated that they were aware that he had bought a car with part of the money. At this point, the juvenile admitted that he had been lying and stated that he had pushed the victim into the quarry.

Upon the arrival at the police barracks a short time later, he was again read his Miranda warnings and gave a seven-page written statement. He was taken before a magistrate within two and one-half hours after he was initially picked up by the police.

Two arguments are made challenging the admissibility of the confessions. 2 First, the juvenile contends that under State ex rel. J.M. v. Taylor, --- W.Va. ---, 276 S.E.2d 199 (1981), we should hold that no confession can be taken from a juvenile unless his counsel is present. Taylor dealt with the waiver of a juvenile's right to counsel during formal juvenile proceedings and we held that a waiver of the right to counsel during such hearings could only occur upon the advice of counsel. 3

In two recent cases, we have held that Taylor does not foreclose a juvenile from waiving his Miranda rights and making a valid confession. State v. Howerton, --- W.Va. ---, 329 S.E.2d 874 (1985); State v. Manns, --- W.Va. ---, 329 S.E.2d 865 (1985). Both of these decisions recognized that there are statutory restrictions with regard to taking juvenile confessions, but where they are not applicable, the validity of a juvenile's confession is determined by the totality of the circumstances. This we summarized in Syllabus Point 3 of Howerton, which modified Syllabus Point 1 of State v. Laws, 162 W.Va. 359, 251 S.E.2d 769 (1978): 4

"[Subject to the provisions of W.Va. Code, 49-5-1(d),] [t]here is no constitutional impediment which prevents a minor above the age of tender years solely by virtue of his minority from executing an effective waiver of rights; however, such waiver must be closely scrutinized under the totality of the circumstances."

W.Va. Code, 49-5-1(d) (1982), 5 was in existence at the time the confessions were taken in this case, however, its provisions do not prevent a juvenile over sixteen from giving a confession without the presence of counsel, parents or custodian.

There is no contention made in this appeal that the confessions were otherwise invalid because of the lack of Miranda warnings, or that the waiver was not intelligently made, or that the confessions were not freely and voluntarily given. We, therefore, conclude under the totality of the circumstances that the confessions were not invalid for lack of counsel.

The second attack on the written confession is premised on the requirements of W.Va. Code, 49-5-8(d), which relates to a prompt detention hearing, and provides, in part:

"A child in custody must immediately be taken before a referee or judge of the circuit court and in no event shall a delay exceed the next succeeding judicial day: Provided, that if there be no judge or referee then available in the county, then such child shall be taken immediately before any magistrate in the county for the sole purpose of holding a detention hearing. The judge, referee or magistrate shall inform the child of his right to remain silent, that any statement may be used against him and of his right to counsel and no interrogation shall be made without the presence of a parent or counsel."

The language of this provision is not without some ambiguity. The first sentence begins with the statement that a child in custody "must immediately be taken before a referee or judge." It then proceeds with this statement "and in no event shall a delay exceed the next succeeding judicial day." The sentence then ends with this proviso: "Provided, that if there be no judge or referee then available in the county, then such child shall be taken immediately before any magistrate in the county for the sole purpose of holding a detention hearing." This proviso was placed in W.Va. Code, 49-5-8(d), in 1978. 6

The function of a proviso in a statute is to modify, restrain, or conditionally qualify the preceding subject to which it refers. Eaton v. County Court of Cabell County, 140 W.Va. 498, 85 S.E.2d 648 (1955); State v. Cunningham, 90 W.Va 806, 111 S.E. 835 (1922); Dan River Mills, Inc. v. City of Danville, 194 Va. 654, 75 S.E.2d 72 (1953); 1A Sutherland Statutory Construction § 20.22 (4th ed. 1972). Here, we believe the proviso is designed to ensure that if a juvenile referee or judge is not available, a child in custody must be immediately brought before a magistrate. In placing this construction on the statute, we have restricted the import of the preceding language that indicates a delay may not "exceed the next succeeding judicial day."

We do so because we do not believe that this language was intended to sanction any delay in taking a juvenile directly to a judicial officer. Rather, this clause relates to how long a detention hearing may lawfully be delayed while a child is held in custody. There is a temporal difference between advising a juvenile as to his rights and arranging to have a formal detention hearing with the juvenile's counsel being present. It is obvious that advising the juvenile as to his constitutional rights can be done immediately on the appearance of the child. Whereas, a detention hearing requiring the presence of counsel may take some additional time. It is for this reason that the legislature provided for some leeway with regard to the completion of the detention hearing.

Furthermore, our interpretation is buttressed by W.Va. Code, 49-5A-2, which relates to arrested juveniles and provides in material part: "A child who has been arrested or who under color of law is taken into the custody of any officer or employee of the State or any political subdivision thereof shall be forthwith afforded a hearing to ascertain if such child shall be further detained." (Emphasis added). There is a direct connection between W.Va. Code, 49-5A-2, and a detention hearing under W.Va. Code, 49-5-8, because W.Va. Code, 49-5A-2, refers to the provisions of W.Va. Code, 49-5-1, et seq., and requires that such hearing procedures shall apply. 7 The term "forthwith" reinforces the detention statute language "must immediately be taken" and compels the conclusion that the legislature expected arrested juveniles to be brought immediately to a magistrate or other judicial officer. See State ex rel. M.C.H. v. Kinder, --- W.Va. ---, 317 S.E.2d 150 (1984).

The purposes of a prompt detention hearing under W.Va. Code, 49-5-8(d), are for a neutral judicial officer to inform the child of his constitutional rights and to determine whether he should be released from custody to his parents or other appropriate person or agency.

The similarity between a juvenile detention hearing...

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34 cases
  • State v. Moss, 17063
    • United States
    • Supreme Court of West Virginia
    • 19 Diciembre 1988
    ...... If there is a failure to do so, any confession obtained as a result of the delay will be invalid where it appears that the primary purpose of the delay was to obtain a confession from the juvenile." Syl.Pt. 3, State v. Ellsworth J.R., 175 W.Va. 54, 331 S.E.2d 503 (1985). .         10. The exclusionary rule established in Syllabus Point 3 of State v. Ellsworth J.R., 175 W.Va. 64, 331 S.E.2d 503 (1985), is not to be applied retroactively to a confession which was obtained prior to the date of that decision where no ......
  • State v. Hickman, 16305
    • United States
    • Supreme Court of West Virginia
    • 12 Diciembre 1985
    ...the time taken to reduce an oral confession to writing does not count on the unreasonable delay issue." State v. Ellsworth J.R., 175 W.Va. 64, 70, 331 S.E.2d 503, 508 -09 (1985). See also State v. Mitter, 169 W.Va. at 658, 289 S.E.2d at 461. In this case, the two oral confessions were brief......
  • State v. DeWeese, 30733.
    • United States
    • Supreme Court of West Virginia
    • 15 Abril 2003
    ...once an arrest ha[s] been made to furnish meaningful protection for a defendant's constitutional rights." State v. Ellsworth, 175 W.Va. 64, 69, 331 S.E.2d 503, 507-08 (1985) (emphasis added). See also State v. Grubbs, 178 W.Va. 811, 814, 364 S.E.2d 824, 827 (1987) (The prompt presentment ru......
  • Sale ex rel. Sale v. Goldman, 27315.
    • United States
    • Supreme Court of West Virginia
    • 19 Julio 2000
    ...of these conditions is when "[g]rounds exist for the arrest of an adult in identical circumstances[.]"11 See Syl. pt. 4, State v. Ellsworth, 175 W.Va. 64, 331 S.E.2d 503 (1985) ("Under both W. Va.Code, 49-5-8(a) and -8(b), the grounds for taking a juvenile into custody where the juvenile ha......
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