State v. Hamrick

• Decision Date: 15 July 1977
• Docket Number: No. 13745,13745
• Parties: STATE of West Virginia v. Alberta HAMRICK.
• Court: West Virginia Supreme Court

Page 247

236 S.E.2d 247

160 W.Va. 673

STATE of West Virginia v. Alberta HAMRICK.

No. 13745.

Supreme Court of Appeals of West Virginia.

July 15, 1977.

Syllabus by the Court

1. Confessions elicited by law enforcement authorities from persons suspected of crimes who because of mental condition cannot knowledgeably and intelligently waive their right to counsel are inadmissible.

2. An instruction which affords greater weight to the testimony of a police officer than to that of other witnesses is improper and is reversible error.

Allan N. Karlin and Franklin D. Cleckley, Morgantown, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., John L. MacCorkle, Asst. Atty. Gen., Charleston, for defendant in error.

HARSHBARGER, Justice:

Alberta Hamrick was found guilty of voluntary manslaughter upon her trial in Monongalia County Circuit Court for murdering her six-weeks old son.

Alberta Hamrick, a twenty-six year old woman of very limited intelligence, a poor, uneducated, non-verbal resident of rural West Virginia, lived in a two-room frame house with water, but no bathroom. The house had only recently been occupied by her and her husband. It was a great improvement over their former dwelling because at least the new abode had no great holes in the roof, according to a social worker who attended Mrs. Hamrick before and after her baby was born.

Mr. and Mrs. Hamrick had no crib for their baby. He laid in a pasteboard box, kept beside his parents' bed. When he died, doctors at the hospital where he was pronounced dead reported their suspicions of child abuse to the police and performed an autopsy which revealed that the child died of subdural hemorrhage. The next day a state trooper asked the Hamricks to the local state police barracks for questioning, and they went.

Policemen interrogated and extracted statements from both parents. Then they read Mrs. Hamrick her rights, she waived counsel and admitted to the two state troopers questioning her that, in the troopers' words, she had hit the baby with her hand when he was crying and she was dizzy from having taken her birth control pill. She signed a second statement to this effect.

Counsel claims four errors were committed by the trial court:

1. It failed to instruct the jury that specific intent to kill must exist in order for a jury to find a defendant guilty of voluntary manslaughter.

2. It did not set aside the verdict or direct acquittal because of insufficient evidence.

3. It instructed that state policemen's actions in interviewing witnesses and persons charged with crime should not be attacked in court unless there is evidence of police impropriety.

4. It refused to permit defense counsel to cross-examine a police officer in the jury's presence about the manner in which Mrs. Hamrick's alleged confession was obtained by him.

The state attorney general, responsible for representing the state on appeal here, confessed that the court's failure to include in its instructions that voluntary manslaughter requires a specific intent to kill was reversible error. We agree. State v. Blizzard, 152 W.Va. 810, 166 S.E.2d 560; State v. Duvall, 152 W.Va. 162, 160 S.E.2d 155 (1968); State v. Reppert, 132 W.Va. 675, 52 S.E.2d 820 (1949); State v. Foley, 131 W.Va. 326, 47 S.E.2d 40 (1948), and State v. Barker, 128 W.Va. 744, 38 S.E.2d 346 (1946).

We need not comment about the sufficiency of the evidence to support the verdict. The improper instruction necessitates reversal, and spares us evaluation of the jury's judgment.

However, the court's other objectionable instruction and its prohibition of cross-examination of the police officer who took defendant's alleged confession, require comment.

The court instructed the jury ". . . State police are specifically authorized and empowered by statute in this State, and the duties of their office require them to arrest persons charged with the violation of any law of this State and to investigate such charges by interviewing witnesses as well as the persons charged with the commission of said crime and that such acts on their part should not be attacked in Court unless it appears by the evidence that they have improperly performed said duties." (Emphasis added.)

The instruction is obviously erroneous because it directs the jury to give extra weight to an officer's testimony.

State v. Vest, 98 W.Va. 138, 126 S.E. 587 (1925), holds that an instruction about the testimony of the accused, advising the jury to consider his interest in the result of the case as creating bias or prejudice, is not proper:

It has been held that it is erroneous to charge the jury that the testimony of a witness interested or prejudiced should be scanned with care or be received with great caution or distrust; or that a disinterested witness is entitled to more credit than an interested witness. 98 W.Va. at 141, 126 S.E. at 588.

See also, State v. Green, 101 W.Va. 703, 133 S.E. 379 (1926), and State v. Kessinger, 144 W.Va. 209, 107 S.E.2d 367 (1959).

Interestingly, most questions arising from jury instructions regarding the weight and credibility of police testimony go to the issue of whether the jury may be instructed to scrutinize an officer's testimony because of the officer's potential bias against the accused. In Bush v. United States, 126 U.S.App.D.C. 174, 375 F.2d 602 (1967) the court held that it was not error for the trial court to refuse an instruction that the uncorroborated testimony of a police officer must be viewed with suspicion and acted upon with caution:

The law has recognized that some witnesses, the accomplice and informant, for example, should in some circumstances be the subject of a cautionary instruction when requested. But it would be a dismal reflection on society to say that when the guardians of its security are called to testify in court under oath, their testimony must be viewed with suspicion. This would be tantamount to saying that police officers are inherently untrustworthy. The cure for unreliable police officers is not to be found in such a shot-gun approach. (Footnotes omitted.) 375 F.2d at 604.

The court noted that the officer was subjected to rigorous cross-examination. See also Golliher v. United States, 362 F.2d 594 (8th Cir. 1966); Harris v. Commonwealth, 174 Va. 486, 6 S.E.2d 678 (1940), and Robinson v. Commonwealth, 118 Va. 785, 87 S.E. 553 (1916).

Instructing the jury that witnesses are presumed to tell the truth is generally held to be improper. "Under certain circumstances, such as where the presumption that witnesses told the truth operated exclusively in favor of the prosecution's witnesses, it has been held reversible error to instruct the jury that such a presumption existed . . ." 8 A.L.R. Fed. 319, 321. In United States v. Johnson, 371 F.2d 800 (3rd Cir. 1967), defendant made an objection to the instruction "If you find the presumption of truthfulness to be outweighed as to any witness, you will give the testimony of that...