State v. Fortner, 12538

Decision Date07 June 1966
Docket NumberNo. 12538,12538
Citation150 W.Va. 571,148 S.E.2d 669
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia v. Charles Edward FORTNER.

Syllabus by the Court

1. It is the mandatory duty of a trial court, whether requested or not, to hear the evidence and determine in the first instance, out of the presence of the jury, the voluntariness of an oral or written confession by an accused person prior to admitting the same into evidence, and the failure to observe this procedure constitutes reversible error.

2. Where the defendant, nineteen years of age, was accosted by police officers on a school playground, placed in a police car and interrogated at length by several officers concerning his participation in the breaking and entering of a restaurant, without any admonition by the officers of his right to remain silent, to consult with counsel, or that any statement might be used against him, a confession thus obtained is in violation of defendant's right guaranteed to him by Article III, Section 5 of the constitution of this state and is, therefore, involuntary and inadmissible in evidence upon trial of the case.

Kingdon & Kingdon, Arthur Ritz Kingdon, Mullens, for plaintiff in error.

C. Donald Robertson, Atty. Gen., George H. Mitchell, Asst. Atty. Gen., Charleston, for defendant in error.

BROWNING, Judge.

Charles Edward Fortner, nineteen years of age, was convicted of the offense of entering without breaking in the Circuit Court of Wyoming County on September 15, 1965. A motion to set aside the verdict and award a new trial was overruled and he was sentenced to a term of from one to ten years in the state penitentiary, to which judgment this Court granted a writ of error and supersedeas on December 6, 1965.

On the trial of the case, the state adduced the evidence of the owner of the drive-in restaurant entered and of two alleged accomplices who testified that Fortner was among those who participated in the entry of the premises and in the larceny of certain articles therefrom. The state then introduced the testimony of a deputy sheriff of Wyoming County who testified that he, the sheriff, another deputy and the chief of police investigated the incident and proceeded to question Fortner in an automobile near the grade school. He then stated: 'A. Well, we talked to Charlie a little bit, finally he just told us he was one of them and he named the other boys with him, told what he got, how they got in the place and all.' Counsel for Fortner stated: 'I want to object to any further questions along this line in order to investigate into the circumstances under which he was interrogated and determine whether the evidence is admissible.', which objection was overruled and counsel then stated: 'The basis for the objection is that after these officers took this man into custody and placed him under arrest and accused him of this crime, any interrogation thereafter without advising him of his right to the assistance of an attorney and of the right to be silent violated his right under the Sixth Amendment to the Federal Constitution.' The state proceeded to elicit testimony that no threats or offers were made, Fortner was not touched or mistreated and that the statement was voluntary, and counsel for Fortner again moved 'to strike the answer and move for a mistrial on the ground that defendant's constitutional rights have been violated' which motions were overruled. The witness then was cross-examined and at the conclusion of his testimony, defendant once again moved for a mistrial which was overruled. The other officers involved testified substantially to the same effect and similar motions for mistrials were made, all of which were overruled. The officer who obtained the confession testified that he did not advise defendant of his right to remain silent or to consult with counsel.

Defendant offered no evidence, but prior to submission of the case to the jury, renewed his motion for a mistrial and also moved for a directed verdict, both of which motions were overruled.

The controlling issues presented upon this writ of error are: (1) whether it was a violation of the defendant's rights under Article III, Section 5 of the constitution of this state to admit evidence of his oral confession when the evidence showed that prior to making it he was not advised of rights guaranteed to him by Article III, Section 5 of the constitution of this state and, incidentally, of the Fifth Amendment to the Constitution of the United States, the pertinent language of both being substantially the same; (2) whether the court erred in permitting the state to introduce evidence relating to the alleged oral confession of the defendant without first determining in the absence of the jury whether such evidence was admissible; (3) whether it was reversible error for the trial court to admit into evidence and make a part of the record a cigarette lighter found upon the person of the defendant approximately twenty-four hours after the alleged entering without breaking of the drive-in restaurant; (4) whether it was reversible error for the court to give state's instruction No. 4, which submitted to the jury the question of whether defendant's confession was voluntary and not obtained as a result of threat or promise; and (5) whether the right guaranteed to the defendant, under Article III, Section 14 of the constitution of this state and the Sixth Amendment to the Constitution of the United States, with regard to the assistance of counsel was violated.

This is the 4th syllabus point of State v. Vance, 146 W.Va. 925, 124 S.E.2d 252, and is a direct quotation of Point 3, Syllabus, State v. Brady, 104 W.Va. 523, 140 S.E. 546: "It devolves upon the trial court in the first instance, before admitting it, to determine from evidence whether a confession of guilt has been freely and voluntarily made, and not under duress or threats or by some inducement made or held out to the accused by someone in authority, of benefit or reward of a worldly or temporal character, or in mitigation of punishment; and the burden is upon the State to show to the satisfaction of the court facts justifying the admission of such confession.' Point 3, syllabus, State v. Brady, 104 W.Va. 523 (140 S.E. 546).' This sentence in the opinion of that case is indicative of the fact that the record showed that the trial court ascertained preliminarily whether the written confession of the defendant was freely and voluntarily made: 'The evidence was sufficient to show to the satisfaction of the court that the written statement of the defendant was freely and voluntarily made by him and that its action in admitting the statement was completely justified by the established facts.' The principle heretofore applied by this Court to this question is evident from the decisions cited in the opinion of that case: State v. Bruner, 143 W.Va. 755, 105 S.E.2d 140; State v. Mayle, 108 W.Va. 681, 152 s.E. 633; State v. Brady, 104 W.Va. 523, 140 S.E. 546; State v. Richards, 101 W.Va. 136, 132 S.E. 375; State v. Zaccario, 100 W.Va. 36, 129 S.E. 763; and State v. Goldizen, 93 W.Va. 328, 116 S.E. 687. In the Bruner case the third syllabus point of State v. Brady was quoted and became point six of that opinion. Bruner was convicted of murder in the first degree and sentenced to death which judgment was affirmed by this Court although one of the principal assignments of error was the action of the trial court in admitting a written statement of the defendant made to police officers of the City of Huntington on the day of the homicide. It is apparent from this quotation from the opinion that the trial judge did preliminarily hear evidence as to the admissibility of the statement before admitting it for jury consideration: 'In chambers, on the hearing by the trial judge on the question of whether the confession was made voluntarily, * * *.' The Mayle case is very close to the instant case upon its facts. The prisoner was a young man of seventeen or eighteen years of age and was without counsel or advice. The principal of a school of Taylor County wrote the prisoner's statement on a typewriter, it being made in the office of the sheriff with a member of the state police and a deputy sheriff present. Furthermore, the defendant was advised prior to the making of the statement by an officer of the law that it 'was best to tell the truth.' The Court said that in view of those facts it had given 'the confession painstaking consideration'. The trial judge found the statement admissible, the jury heard it and found the defendant guilty and this Court held that no reversible error had been committed. In the Brady case the defendant was convicted of rape and upon a jury verdict of guilty the trial court sentenced him to death. One of the principal errors assigned related to the admission in evidence of a written statement alleged to have been made subsequent to the commission of the offense. After the oral statements of the defendant had been reduced to writing and before the defendant signed it by way of his mark, he being illiterate, one of the officers informed him that 'he did not have to sign that paper unless he wanted to,' to which the prisoner replied 'I want to sign it because it is the truth.' At the trial the prisoner...

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