State v. Hickman

• Decision Date: 12 December 1985
• Docket Number: No. 16305,16305
• Citation: 338 S.E.2d 188,175 W.Va. 709
• Parties: STATE of West Virginia v. Antoine B. HICKMAN.
• Court: West Virginia Supreme Court

Page 188

338 S.E.2d 188

175 W.Va. 709

STATE of West Virginia v. Antoine B. HICKMAN.

No. 16305.

Supreme Court of Appeals of

West Virginia.

Dec. 12, 1985.

[175 W.Va. 710] Syllabus by the Court

1. A defendant who is being held for custodial interrogation must be advised, in addition to the Miranda rights, that counsel has been retained or appointed to represent him where the law enforcement officials involved have knowledge of the attorney's retention or appointment. This rule is based on the theory that without this information, a defendant cannot be said to have voluntarily and intelligently waived his right to counsel.

2. "The concept of retroactivity determines how a case which substantially alters a relevant body of prior law should be applied to other cases." Syllabus Point 3, Adkins v. Leverette, 161 W.Va. 14, 239 S.E.2d 496 (1977).

3. "In the absence of any substantial countervailing factors, where a new rule of criminal law is made of a nonconstitutional nature, it will be applied retroactively only to those cases in litigation or on appeal where the same legal point has been preserved." Syllabus Point 3, State v. Gangwer, 168 W.Va. 190, 283 S.E.2d 839 (1981).

4. The rule stated in Syllabus Point 6 of State v. Persinger, 169 W.Va. 121, 286 S.E.2d 261 (1982), is not to be applied retroactively to a confession which was obtained prior to the date of that decision where no prompt presentment objection was made at trial.

5. "A claim of intoxication may bear upon the voluntariness of a defendant's confession, but, unless the degree of intoxication is such that it is obvious that the defendant lacked the capacity to voluntarily and intelligently waive his rights, the confession will not be rendered inadmissible." Syllabus Point 1, State v. Hall, 174 W.Va. 599, 328 S.E.2d 206 (1985).

6. "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).

7. "A trial court's decision regarding the voluntariness of a confession will not be disturbed unless it is plainly wrong or clearly against the weight of the evidence." Syllabus Point 3, State v. Vance, 162 W.Va. 467, 250 S.E.2d 146 (1978).

8. "Voluntary drunkenness is generally never an excuse for a crime, but where a defendant is charged with murder, and it appears that the defendant was too drunk to be capable of deliberating and premeditating, in that instance intoxication may reduce murder in the first degree to murder in the second degree, as long as the specific intent did not antedate the intoxication." Syllabus Point 2, State v. Keeton, 166 W.Va. 77, 272 S.E.2d 817 (1980).

9. " 'Where the testimony on an issue of fact in a criminal case is conflicting, it is for the jury to determine the weight to be attached to the reasonable inferences that can be drawn from all the facts and circumstances in evidence, and their verdict will not be set aside by the appellate court unless plainly wrong.' Syl., State v. Magdich, 105 W.Va. 585 [143 S.E. 348 (1928) ]." Syllabus Point 4, State v. Taft, 144 W.Va. 704, 110 S.E.2d 727 (1959).

John R. Mitchell, Charleston, W.Va., for appellant.

J. Bradley Russell, Asst. Atty. Gen., Charleston, W.Va., for appellee.

MILLER, Chief Justice.

Antoine Hickman was convicted by a jury in the Circuit Court of Mercer County of two counts of first degree murder. ¹ His convictions resulted in two consecutive life without mercy sentences. The defendant argues his convictions should be reversed because his confessions were inadmissible for a variety of reasons and because he was intoxicated to such an extent at the time of the incident that he was incapable of premeditation. After a careful review of the arguments and the lengthy record before us, we conclude no errors were committed.

On June 26, 1981, shortly after 2:00 a.m., the defendant became involved in an argument with a woman in Spyro's Lounge in Charleston, West Virginia. Following this argument, the defendant and several other bar patrons left the bar and gathered on the adjacent sidewalk. A witness nearby noticed there was a group of people running and screaming in front of Spyro's. He reported this incident to several Charleston police officers, who were in a restaurant down the street from the bar. This witness also saw the defendant separate from the crowd and get into a yellow Cadillac driven by an Allen Mackie.

Two Charleston police officers, Eddie Ray Duncan and Delbert Junior Roush, Sr., who were on patrol in separate vehicles, were informed that the individual responsible for an altercation at Spyro's Lounge was seen getting into a yellow Cadillac. Officer Duncan spotted the vehicle in question and followed it. After traveling for a few blocks, Mr. Mackie noticed a police car with flashing lights was behind him. Mr. Mackie parked his car and walked to the back of the vehicle to meet Officer Duncan, who was the first officer to arrive on the scene.

Officer Roush arrived thereafter in an unmarked vehicle. Mr. Mackie was asked if he had been involved in a fight at Spyro's and he explained that he had not, but that his passenger, the defendant, might have been involved. Officer Roush then went to the passenger side of the car and asked the defendant to get out, but the defendant refused. Subsequently, Officer Duncan joined Officer Roush and also asked the defendant to step out. Mr. Mackie testified that he then heard several shots and ran away from the scene. After a short while, Mr. Mackie returned to the scene, got into one of the police cars, and radioed police headquarters that two officers had been shot. Officers Duncan and Roush died from the gunshot wounds.

I. ADMISSIBILITY OF CONFESSIONS

The defendant challenges the admissibility of one written confession and two oral confessions. He presents three different At about 5:30 a.m. on June 26, 1981, two arrest warrants were sworn out against the defendant based upon information given to the police by Mr. Mackie. A widespread search for the defendant began. At some time between 4:00 p.m. and 5:30 p.m., Kanawha County Prosecuting Attorney James Roark met with defense attorney John Mitchell and members of the defendant's family in Mr. Mitchell's law office. Prosecutor Roark testified in the suppression hearing that the purpose of the meeting, which had been arranged by Mr. Mitchell, was to help facilitate the safe apprehension of the defendant. Prosecutor Roark's understanding was that Mr. Mitchell had not been retained by the family to represent the defendant, but rather was simply trying to help assure the peaceful arrest of the defendant.

arguments against the admissibility of the confessions. First, the defendant contends when he was arrested, the State had already been informed that his parents had retained counsel for him. Nevertheless, the State interrogated the defendant without this counsel being informed of the arrest and without his presence. Second, the defendant contends he was intoxicated at the time of the confessions and, therefore, was incapable of voluntarily waiving his rights. Third, the confessions were inadmissible because the State violated W.Va.Code, 62-1-5, our prompt presentment statute. In order to fully understand these arguments, additional facts relevant to the confessions must be examined.

Mr. Mitchell testified at the suppression hearing that he had been retained by the defendant's family to assist the defendant in the preliminary aspects of the case. He indicated that whether he would be representing the defendant after his arrest was unclear. He admitted he had never informed either Prosecutor Roark or any other State official that he had been retained to represent the defendant. ²

Shortly after 6:00 p.m., Edward Leonard, an investigator for the Kanawha County prosecuting attorney's office, received a telephone call from a Kenny Jones, who informed him that the defendant was with him and was willing to be taken into custody. Mr. Leonard then drove to the agreed upon address in Charleston where he found the defendant. He returned to his office in the courthouse with the defendant and informed Prosecutor Roark by telephone that he had apprehended the defendant. Soon thereafter, Prosecutor Roark joined Mr. Leonard and the defendant. In response to a telephone call from Prosecutor Roark, Ivin Lee, a Charleston police officer, also went to Mr. Leonard's office.

Mr. Leonard was in the process of informing the defendant of his constitutional rights when Officer Lee entered the office. He began reading to the defendant his rights following the procedure enunciated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966), at 6:42 p.m., according to the notation on the form. Mr. Leonard's testimony at the suppression hearing was that the defendant listened and initialed the form after each right had been explained to him. When Mr. Leonard finished reading the Miranda rights, the defendant signed the form acknowledging that he understood his rights. Mr. Leonard also testified he then explained to the defendant that he could waive the constitutional rights previously discussed, which the defendant agreed to do by signing the waiver portion of the form.

After the defendant had signed the waiver, Mr. Leonard stated he advised the defendant that his parents were in Charleston.

The defendant's response, according to Mr. Leonard, was that he did not want any help from his parents. It was also at about this time that Prosecutor Roark who had been out of the room entered and also informed the defendant that his parents were in town and asked if the defendant would like to speak with them. Again the defendant indicated he did not want any help from his parents.

Officer Lee testified that at...