State v. Green
Decision Date | 15 December 1983 |
Docket Number | No. 15755,15755 |
Court | West Virginia Supreme Court |
Parties | STATE of West Virginia v. Edward L. GREEN. |
Syllabus by the Court
1. Syl. pt. 1, State v. McNeal, 162 W.Va. 550, 251 S.E.2d 484 (1978).
2. Syl. pt. 1, State v. Bradley, 163 W.Va. 148, 255 S.E.2d 356 (1979).
3. "Where the defendant is equivocal in whether he desires to exercise his constitutional right to counsel, further questions may be asked in order to clarify his position." Syl. pt. 3, State v. Clawson, 165 W.Va. 588, 270 S.E.2d 659 (1980).
Fitzsimmons & Parsons, Robert P. Fitzsimmons and William E. Parsons II, Wheeling, for appellant.
Chauncey H. Browning, Jr., Atty. Gen. and Michael E. Froble, Asst. Atty. Gen., Charleston, for appellee.
The appellant, Edward L. Green, appeals from a conviction of sexual abuse in the first degree rendered against him by a jury in the Circuit Court of Hancock County. He was sentenced to an indeterminate term of from one to five years in the state penitentiary. Although the appellant raises several assignments of error, we find one to be dispositive, and reverse solely on that point.
The incident which gave rise to the criminal charges against the appellant allegedly took place on the evening of February 15, 1980, in the vicinity of Oglebay Park, Wheeling, West Virginia. At 9:30 a.m. the following morning, Sgt. James Wright of the Wheeling Police Department sought out the appellant at his place of employment after learning that the appellant's truck fit the description of the vehicle driven by the complainant's assailant. Sgt. Wright told the appellant in general terms the offense alleged to have been committed; informed the appellant of his constitutional rights; and instructed the appellant to accompany him to the police station for further questioning. There was no warrant for the appellant's arrest at this time, and he was not informed whether he was, in fact, under arrest.
The appellant, accompanied by Sgt. Wright, arrived at the police station shortly before 10:00 a.m. The appellant and Sgt. Wright were joined by Lt. Joseph Davis, also of the Wheeling Police Department, at about 10:00 a.m. The three men discussed the case in general terms for approximately twenty minutes, although Sgt. Wright left the room at some point to photograph the appellant's truck. At approximately 10:20 a.m., the appellant was asked by Lt. Davis to read and sign a waiver of rights form before his statement was taken. After the appellant finished reading the waiver of rights form, he testified at a pre-trial suppression hearing that, "I told Mr. Davis I thought I should get ahold of an attorney." At this point, the appellant testified that Lt. Davis replied, The appellant then proceeded to sign the waiver of rights form, and give an oral statement in which he admitted having been with the alleged victim on the evening in question, but denied any sexual contact.
Between this initial statement and a second statement given at approximately 12:00 p.m., Lt. David testified at the suppression hearing that the appellant attempted to contact his attorney by telephone "numerous times." Lt. Davis also testified that the appellant went so far as to telephone his attorney's mother in order to reach his attorney. Yet, the police officer did not discontinue his interrogation of the appellant.
Shortly before the appellant's second statement, the appellant testified that Lt. Davis informed him that the hospital laboratory reported that spermatozoa had been found in the complainant's vagina and that the appellant was "in a world of trouble." Sgt. Wright and Lt. Davis then asked the appellant if he would "like to reconsider" the content of his initial statement, and again had the appellant execute a waiver of rights form. In this statement, the appellant admitted to having consensual sexual intercourse with the complainant.
Despite testimony by Lt. Davis that he was aware of the appellant's desire and numerous attempts to contact counsel, the trial court overruled the appellant's motion to suppress the two statements. At the conclusion of the pre-trial suppression hearing, the trial court stated,
There is no doubt that this is a fairly close question. I feel that from the testimony that I can find without doubt that this defendant did state that he wanted to contact his attorney and that he did make attempts to reach the attorney.
However, I didn't hear any testimony to the effect that he said that he wanted the questioning stopped and that he would refuse or he never refused to sign the waivers and he never refused to continue to answer questions.
Contrary to the trial court's apparent view that for a...
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