State v. Goff

• Decision Date: 26 March 1982
• Docket Number: No. 14814,14814
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Eric Mark GOFF.

Page 473

289 S.E.2d 473

169 W.Va. 778

STATE of West Virginia v. Eric Mark GOFF.

No. 14814.

Supreme Court of Appeals of West Virginia.

March 26, 1982.

Syllabus by the Court

1. "Where a person who has been accused of committing a crime makes a voluntary statement that is inadmissible as evidence in the State's case in chief because the statement was made after the accused had requested a lawyer, the statement may be admissible solely for impeachment purposes when the accused takes the stand at his trial and offers testimony contradicting the prior voluntary statement...." Syllabus Point 4, in part, State v. Goodmon, W.Va., 290 S.E.2d 260 (No. 14989, 12/18/81).

2. A confession that has been found to be involuntary in the sense that it was not the product of the freewill of the defendant cannot be used by the State for any purpose at trial.

Burk, Bayley & Salsbery and H. F. Salsbery, Jr., Parkersburg, for appellant.

Chauncey H. Browning, Atty. Gen. and Howard E. Krauskopf, Asst. Atty. Gen., Charleston, for appellee.

MILLER, Chief Justice:

The only issue we address in this criminal appeal is whether the trial court was correct in permitting the State to impeach the defendant with his own prior oral inculpatory statement. The statement had been found at an in camera hearing to be "involuntary." The defendant testified on the stand that he had no prior knowledge that two of the passengers in the car which he was driving were going to rob the store when they stopped to buy cigarettes. The State attempted to impeach this assertion by calling to the stand a police officer who testified that the defendant had made an oral statement after being taken into custody that he knew the two were going to "take down" the store.

The State relies on several United States Supreme Court cases where the practice of allowing the defendant to be cross-examined on a prior inconsistent statement was sanctioned even though the statement was not admissible in the State's case in chief. E.g., Oregon v. Haas, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975); Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). We have accepted this principle in Syllabus Point 4 of State v. Goodmon, W.Va., 290 S.E.2d 260 (No. 14989, 12/18/81):

"Where a person who has been accused of committing a crime makes a voluntary statement that is inadmissible as evidence in the State's case in chief because the statement was made after the accused had requested a lawyer, the statement may be admissible solely for impeachment purposes when the accused takes the stand at his trial and offers testimony contradicting the prior voluntary statement [knowing that such prior voluntary statement is inadmissible as evidence in the State's case in chief]." ¹

See also Syllabus Point 2, State v. Vance, W.Va., 285 S.E.2d 437 (1981).

In Goodmon, we found that a statement rendered involuntary because the defendant had previously asked for counsel and his request had been denied could be used for purposes of cross-examination of the defendant. Much the same fact situation was presented in Vance, supra.

The defendant asserts that the rule in Harris barring the use of an involuntary statement in the State's case in chief but permitting it for impeachment purposes is not applicable to this case. He contends that if his statement is involuntary in the sense it was not the product of a free will then it cannot be used for any purpose. For this point, defendant relies on two cases decided after Harris, supra, where the Supreme Court has found a confession to be not only involuntary but also coerced and, therefore, not usable even for the limited purpose of impeachment of the defendant.

In Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), police interrogated a badly wounded defendant in the intensive care unit of a hospital. The defendant was in severe pain and tubes were inserted in his mouth and bladder for medical purposes. The interrogation lasted over a four-hour period. It was broken only when the defendant needed additional medication or when the defendant lost consciousness. In some instances, the defendant's answers appeared confused. There was no disagreement that he asked for a lawyer on several occasions. The Court concluded that the interrogation was coerced stating:

"But 'the blood of the accused is not the only hallmark of an unconstitutional inquisition.' Blackburn v. Alabama, 361 U.S. at 206, 4 L.Ed.2d 242 [at 247], 80 S.Ct. 274 [at 279 (1960) ]. Determination of whether a statement is involuntary 'requires more than a mere colormatching of cases.' Reck v. Pate, 367 U.S. 433, 442, 6 L.Ed.2d 948 , 81 S.Ct. 1541 [1547 (1961) ]. It requires careful evaluation of all the circumstances of the interrogation.

"It is apparent from the record in this case that Mincey's statements were not 'the product of his free and rational choice.' Greenwald v. Wisconsin, 390 U.S. 519, 521, 20 L.Ed.2d 77 , 88 S.Ct. 1152 [1154 (1968) ]." 437 U.S. at 401, 98 S.Ct. at 2418, 57 L.Ed.2d at 306. (Footnote omitted)

In New Jersey v. Portash, 440 U.S. 450, 99 S.Ct. 1292, 59 L.Ed.2d 501 (1979), the Supreme Court held that where a defendant had been compelled to give testimony before a grand jury, such testimony could not be used to impeach him at his later criminal trial because it was coerced. The testimony was coerced in the sense that the defendant was subject to penalties by way of contempt if he did not answer. ²

In the present case, the trial court found that the defendant had been given warnings under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), but also found his confession to be involuntary. The defendant had a reduced IQ of 66 and could not read or write. Defendant's low IQ caused the trial judge to be concerned over whether the defendant fully understood his Miranda rights. State v. Hamrick, W.Va., 236 S.E.2d 247 (1977). The defendant could sign his name. There was no dispute that he did sign a form waiver of his Miranda rights. There was a question however whether the defendant had been initially informed that he was a suspect in an armed robbery. Another problem in the trial judge's mind was that the defendant had a past relationship with the police as a part-time informant. It appeared to the trial judge that the defendant came to the police station under the impression that he was being asked to assist in solving another crime to which he was not connected.

Part of the confusion in this area arises from the fact that courts often use the term "involuntary" in regard to a defendant's confession without noting that since Harris the term has two levels of meaning. As a result of Miranda v. Arizona, supra, prior to any custodial interrogation the defendant must be given and waive his Miranda rights (basically his right to remain silent and his right to have counsel). ³ If such waiver is not obtained, his statement is "involuntary" in the sense that it did not comply with Miranda and cannot be used in the State's case in chief. It is this type of involuntariness that is involved in Harris.

On a second level, a confession may be found "involuntary" in the sense it was a product of either mental or physical coercion. This coercion renders the statement untrustworthy or compelled and, therefore, it cannot be used for any purpose in the trial of a case. This is pointed out by Mincey, supra, and Portash, supra. ⁴ Even prior to Miranda, it was universally recognized that a coerced confession was inadmissible. E.g., Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961); State v. Persinger, W.Va., 286 S.E.2d 261 (1982); State v. Zaccario, 100 W.Va. 36, 129 S.E. 763 (1925).

The problem in the present case is to determine the contours of the Harris exception to Miranda. The simplest situation is where the confession is otherwise valid but there has been a failure to comply with the requirements of Miranda in regard to advising and obtaining a waiver of the defendant's rights to remain silent and to consult with an attorney prior to interrogation and to decline further interrogation once it is initiated. This is the traditional area where Harris comes into play as evidenced by our cases of Goodmon, supra, and Vance, supra. These cases permit the use of a confession for cross-examination of the defendant even though it cannot be used as a part of the State's case in chief. ⁵

On the other hand where there has been direct physical or mental coercion (or compulsion) on a defendant as reflected by Mincey, supra, and Portash, supra, then the confession or inculpatory statement is involuntary in fact and cannot be used for any purpose.

These two categories are not all encompassing because the validity of a confession is determined by a wide range of factors that historically have been embraced by the phrases "upon the particular facts and circumstances surrounding that case" or "the totality of the circumstances." Edwards v. Arizona, 451 U.S. 477, 481-84, 101 S.Ct. 1880, 1883-84, 68 L.Ed.2d 378, 385 (1981); State v. Persinger, W.Va., 286 S.E.2d 261 (1982).

We are not cited nor have we found a case with a similar fact pattern where a court considered a confession found to be involuntary under these circumstances usable on cross-examination under the Harris exception. There are a number of cases where the defendant's reduced mental capacity has weighed heavily against the valid use of the confession. E.g., Sims v. Georgia, 389 U.S. 404, 88 S.Ct. 523, 19 L.Ed.2d 634 (1967); Clewis v. Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967); Henry v. Dees, 658 F.2d 406 (5th Cir. 1981); Moore v. Ballone, 658 F.2d 218 (4th Cir. 1981); Cooper v. Griffin, 455 F.2d 1142 (5th Cir. 1972); ⁶ Toliver v. Gathright, 501 F.Supp. 148 (E.D.Va.1980); Hines v. State, 384 So.2d 1171 (Ala.Crim.App.1980).

These cases recognize that an impaired mental condition makes a defendant more susceptible to manipulation,...