State v. Gunnoe

• Decision Date: 04 November 1988
• Docket Number: No. 18475,18475
• Citation: 374 S.E.2d 716,179 W.Va. 808
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Harold D. GUNNOE.

Page 716

374 S.E.2d 716

179 W.Va. 808

STATE of West Virginia v. Harold D. GUNNOE.

No. 18475.

Supreme Court of Appeals of West Virginia.

Nov. 4, 1988.

Syllabus by the Court

" 'When a criminal defendant requests counsel, it is the duty of those in whose custody he is, to secure counsel within a reasonable time. In the interim, no interrogation shall be conducted, under any guise or by any artifice.' Syl. pt. 1, State v. Bradley , 255 S.E.2d 356 (W.Va.1979)." Syl. Pt. 2, State v. Green, 172 W.Va. 727, 310 S.E.2d 488 (1983).

Phillip D. Gaujot, Cross Lanes, Mark A. Sorsaia, Hurricane, for Harold D. Gunnoe.

Charles G. Brown, III, Charleston, Atty. Gen., for the State.

NEELY, Justice:

Defendant, Harold Gunnoe, was arrested 14 September 1986, on a charge of uttering checks. While incarcerated, he was questioned over a period of several days about the murder of Veronica Blanton, but the defendant repeatedly denied any knowledge of Ms. Blanton's killing. On 19 September 1986, officers questioning defendant requested that he take a polygraph. The defendant replied that he wanted his attorney's advice before agreeing to take the polygraph. One of the officers contacted the lawyer appointed to represent defendant on the check uttering charge who responded that he represented defendant only on that charge and did not object to defendant's answering questions unless the questions related to the charge of uttering checks. The defendant was informed of his attorney's response, signed a written waiver of his Miranda rights, took the polygraph, and later that day confessed to the murder of Ms. Blanton.

The defendant moved to suppress the evidence of his confession. The trial court denied his motion after finding at a pre-trial hearing that defendant had voluntarily waived his Miranda rights. The defendant renewed his motion during the trial and moved for a new trial at the conclusion of the case, but the trial court denied the motions.

At trial, the defendant denied any involvement with the killing, insisted his confession was given under duress, and that he repeatedly requested an attorney but his requests were denied. The defendant was convicted of first-degree murder without a recommendation of mercy and sentenced to life imprisonment. Defendant appeals assigning as error the trial court's failure to suppress his confession as involuntarily given in violation of his Fifth Amendment right to remain silent. ¹

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the U.S. Supreme Court delineated the procedural safeguards necessary to secure a suspect's fifth amendment right against compulsory self-incrimination. The Court held that an accused has a right to have counsel present during a custodial interrogation and that before any interrogation, the suspect must be informed of this right and his right to remain silent. ² 384 U.S. at 478-479, 86 S.Ct. at 1630-31. If the suspect asserts either of these rights, questioning must cease. The defendant may waive these rights, but any waiver must be voluntarily, knowingly, and intelligently made. The Court in Miranda also defined what constitutes a request for counsel.

The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. [emphasis added]

384 U.S. at 444-445, 86 S.Ct. at 1612-13.

In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the U.S. Supreme Court amplified its holding in Miranda by ruling that once a suspect has asserted his right to remain silent or his right to counsel, the police cannot interrogate him further

... until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.

451 U.S. at 484-485, 101 S.Ct. at 1884-85.

In Smith v. Illinois, 469 U.S. 91, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984) (per curiam), the U.S. Supreme Court noted that "[o]n occasion, an accused's asserted request for counsel may be ambiguous or equivocal." 469 at 95, 105 S.Ct. at 492. The Court pointed out that lower courts have developed conflicting standards for deciding cases involving ambiguous requests for counsel. Id. at 96, note 3, 105 S.Ct. at 493, note 3. However, in Smith, the Court suppressed defendant's incriminating statements finding that the defendant asserted his right to counsel and his request became equivocal only upon further questioning by the police.

Recently, in Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988), the U.S. Supreme Court affirmed a lower court's suppression of a confession by a defendant who asserted his right to counsel, but later gave his confession to a different police officer questioning defendant on a different crime than that for which he was arrested. The court pointed out that the "bright-line" rule that has been applied in cases following Edwards, supra, and Miranda, supra, provides a predictability beneficial both to the accused and the State. ³ The court found no reason in Roberson to make an exception to the "bright-line" rule because the defendant confessed to a different crime than the crime for which he was arrested and requested counsel.

In this case, the defendant was arrested on a charge of uttering worthless checks, and was then questioned repeatedly during the next five days concerning the murder. Although he had a lawyer appointed to represent him on the check charge, he was not appointed nor did he retain a lawyer to represent him during the murder interrogation. Clearly, the murder interrogation was custodial, and he had the right to a lawyer before responding to questions regarding the murder. When he was asked to take a polygraph, the defendant said he "... wanted to contact his lawyer first and see what he said about it." ⁴ (Suppression Transcript at 47). An officer called the lawyer appointed to represent defendant on the check charge who responded that he had no objection as long as defendant was not questioned about the charge of uttering checks. ⁵ This response was relayed to the defendant who then agreed to take the polygraph (Suppression Transcript at 75), signed a written waiver of his Miranda rights, and confessed to the murder.

In Syllabus Point 1 of State v. Bradley, 163 W.Va. 148, 255 S.E.2d 356 (1979), we stated:

"When a criminal defendant requests counsel, it is the duty of those in whose custody he is, to secure counsel within a reasonable time. In the interim, no interrogation shall be conducted, under any guise or by any artifice."

See also Syl. pt. 2, State v. Easter, 172 W.Va. 338, 305 S.E.2d 294 (1983) and Syl. pt. 2 of State v. Green, 177 W.Va. 727, 310 S.E.2d 488 (1983). Although we recognize that further questions may be asked of a defendant to clarify an equivocal request for counsel (Syl. pt. 3, State v. Clawson, 165 W.Va. 588, 270 S.E.2d 659 (1980), Syl. pt. 2, State v. Green, 177 W.Va. 727, 310 S.E.2d 488 (1983)), defendant's request for counsel in this case was a limited request, but was not equivocal.

Defendant...