State v. Hanson

Decision Date16 June 1989
Docket NumberNo. 17691,17691
Citation382 S.E.2d 547,181 W.Va. 353
PartiesSTATE of West Virginia v. Joseph HANSON.
CourtWest Virginia Supreme Court

Syllabus by the Court

1. "The plain error doctrine contained in Rule 30 and 52(b) of the West Virginia Rules of Criminal Procedure is identical. It enables this Court to take notice of error, including instructional error occurring during the proceedings, even though such error was not brought to the attention of the trial court. However, the doctrine is to be used sparingly and only in those circumstances where substantial rights are affected, or the truth-finding process is substantially impaired, or a miscarriage of justice would otherwise result." Syllabus Point 4, State v. England, 180 W.Va. 342, 376 S.E.2d 548 (1988).

2. "The State must prove, at least by a preponderance of the evidence, that confessions or statements of an accused which amount to admissions of part or all of an offense were voluntary before such may be admitted into the evidence of a criminal case." Syllabus Point 5, State v. Starr, 158 W.Va. 905, 216 S.E.2d 242 (1975).

3. " 'When the representations of one in authority are calculated to foment hope or despair in the mind of the accused to any material degree, and a confession ensues, it cannot be deemed voluntary.' Syllabus, State v. Parsons, 108 W.Va. 705, 152 S.E. 745 (1930)." Syllabus Point 7, State v. Persinger, 169 W.Va. 121, 286 S.E.2d 261 (1982).

4. A promise of immunity from prosecution is the type of inducement which will render a subsequent confession based on such promise involuntary and therefore inadmissible in evidence against the defendant at trial.

5. " '[I]n the absence of some express constitutional or statutory provision, a prosecutor has no inherent authority to grant immunity against prosecution.' Syl. pt. 16 [in part], Myers v. Frazier, 173 W.Va. 658, 319 S.E.2d 782 (1984)." Syllabus Point 2, in part, State v. Pennington, 179 W.Va. 139, 365 S.E.2d 803 (1987).

6. The State is entitled to prosecute a defendant upon his failure to cooperate under the terms of an immunity agreement. It is not entitled to use his statements obtained as a result of such agreement against him in prosecuting him for crimes originally covered by the immunity grant.

7. Where a grant of immunity by the prosecuting attorney does not comply with W.Va.Code, 57-5-2 (1931), the State is not entitled to prosecute the defendant for perjury or false swearing upon testimony arising from the immunity grant.

8. "To sustain a conviction of arson, when the evidence offered at trial is circumstantial, the evidence must show that the fire was of an incendiary origin and the defendant must be connected with the actual commission of the crime." Syllabus Point 5, State v. Mullins, 181 W.Va. 415, 383 S.E.2d 47 (1989).

9. " 'An appellant or plaintiff in error will not be permitted to complain of error in the admission of evidence which he offered or elicited, and this is true even of a defendant in a criminal case.' Syl. pt. 2, State v. Bowman, 155 W.Va. 562, 184 S.E.2d 314 (1971)." Syllabus Point 2, State v. McWilliams, 177 W.Va. 369, 352 S.E.2d 120 (1986).

Steven M. Askin, Jodie M. Boylen, Askin, Pill, Scales & Burke, Martinsburg, for Joseph Hanson.

Brenda Craig Ellis, Asst. Atty. Gen., Charleston, for State.

MILLER, Justice:

This is an appeal from a final order of the Circuit Court of Pendleton County, entered June 26, 1986, which sentenced the defendant below, Joseph Hanson, to imprisonment in the penitentiary following his conviction of the crimes of first degree arson, arson with intent to defraud, burglary, grand larceny, breaking and entering, perjury, petit larceny, and conspiracy. The defendant contends that the trial court erred in failing to suppress incriminating statements and testimony and in allowing him to be tried on all charges at the same time. The defendant also contends that there was insufficient evidence to support the arson and perjury convictions. We find error, and we reverse the judgment of the trial court.

At approximately 1:15 a.m. on the morning of February 17, 1985, a fire destroyed the defendant's mobile home in Sugar Grove, Pendleton County. The fire marshal's investigation revealed evidence of arson, and Corporal A. T. Humphreys of the Department of Public Safety was asked to investigate. After the police spoke to the defendant's neighbors and relatives, suspicion fell on the defendant, Steven Eckard, and Wesley Eye. All three suspects gave statements to the police, but admitted no involvement in the crime.

On the afternoon of March 14, 1985, the residence of Calvin Borror was burglarized. Mr. and Mrs. Borror reported that approximately $23,000 in currency and coins had been stolen from a safe in the residence. After some investigation, suspicion became focused on Kenneth Judy and another individual who knew that the Borrors kept large sums of cash in their house. The police notified area banks to watch for deposits of musty-smelling paper money, particularly one dollar bills.

On March 16, 1985, Trooper Richard D. Gillespie of the Department of Public Safety was notified that the defendant had made a deposit of foul-smelling money at a Pendleton County bank. Trooper Gillespie subsequently learned that the defendant had been living with Wesley Eye since his trailer had been destroyed and drove the same type of vehicle that had been seen in the area of the Borror residence the day before the break-in. The defendant continued to circulate musty-smelling money at local establishments. On March 21, 1985, Trooper Gillespie received an anonymous phone call informing him that the defendant, Wesley Eye, Steven Eckard, and one other individual had been bragging about committing the Borror burglary and setting fire to the defendant's trailer. The defendant, Eye, and Eckard had all been observed with large amounts of cash following the burglary, and the defendant and Eckard had bought new cars the day afterwards.

At approximately 3:00 p.m. on March 23, 1985, Trooper Gillespie went to the bar owned by the defendant and his wife and asked the defendant and Steven Eckard to come to the Franklin detachment for questioning. Eckard was advised of his Miranda 1 rights before leaving the bar and subsequently gave a statement in which he denied involvement in the burglary. The defendant was advised of his rights at the detachment and, at 4:42 p.m., gave Trooper Gillespie a statement in which he admitted being with Judy, Eye, and Eckard on March 13 and March 14, but denied any involvement in the burglary of the Borror residence.

Trooper Gillespie subsequently consulted with the prosecuting attorney, who authorized immunity from prosecution if the defendant told the complete truth and was available to testify against other participants in criminal activities. Upon being advised of this proposal, the defendant asked to speak to his wife. Trooper Gillespie drove the defendant to the bar for that purpose and then returned him to the Franklin detachment, where the defendant spoke with his attorney via telephone. The prosecuting attorney then spoke to the defendant's attorney, and an agreement was reached for the defendant to give a statement. In this statement, taken at 9:35 p.m., the defendant admitted that he, Eye, Eckard, and Judy had been involved in the burglary of the Borror residence. The defendant also confessed that he had conspired with Eye and Eckard to burn his home in order to obtain the insurance money and admitted complicity with Judy and Eckard in the recent breaking and entering of a Pendleton County business establishment.

Early in the morning of March 24, 1985, warrants were issued for the arrest of Eye, Judy, and Eckard on burglary charges and for the arrest of Eye and Eckard on arson charges. Warrants were also issued to search the Eye and Judy residences. All three men were arrested. The defendant was released from custody at approximately noon, after giving a third statement indicating that the first statement he gave to Trooper Gillespie was not accurate and that the second one was truthful.

The defendant remained free until April 9, 1985, when he attended the preliminary hearing for Wesley Eye. When the defendant refused to testify without an attorney present, the prosecuting attorney, who viewed his action as a lack of cooperation, ordered him arrested on arson and burglary charges. During his subsequent incarceration, the defendant cooperated with the authorities by making notes of his criminal activities.

On May 21 and 22, 1985, the defendant gave sworn depositions consistent with the incriminating statement he gave Trooper Gillespie on March 23, 1985, and implicating himself, Eye, Eckard, and Judy in the arson and the burglary. The defendant's attorney was present, but the record does not reflect any advice or participation of counsel, other than his advice to the defendant to cooperate fully with the authorities. After giving these depositions, the defendant was released from jail on bond.

On September 24, 1985, the defendant testified at the trial of Kenneth Judy. His testimony, however, varied from his previous statements in that it tended to exculpate Judy and Eye. The defendant was subsequently arrested for perjury.

On December 11, 1985, an indictment was returned charging the defendant with first degree arson, arson with intent to defraud, burglary, grand larceny, breaking and entering, petit larceny, seven counts of conspiracy to commit the above crimes, and perjury. Prior to trial, the defendant moved to suppress all of the incriminating statements. After an in camera hearing, conducted on April 16, 1986, the defendant's motion was denied.

The case proceeded to trial on June 5, 1986. The jury found the defendant guilty on all counts except conspiracy to commit petit larceny. By order dated June 26, 1986, the circuit court denied the defendant's motion to set aside the verdict and...

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