State v. Hosea

Decision Date16 December 1996
Docket NumberNo. 23674,23674
Citation199 W.Va. 62,483 S.E.2d 62
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia, Appellee, v. Brian Keith HOSEA, Appellant.

1. Before accepting a conditional plea under W. Va. R.Crim. P. 11(a)(2), the circuit court and the prosecutor must assure that the pretrial issues reserved for appeal are case dispositive and are capable of being reviewed by this Court without a full trial. This requires the circuit court to make specific findings on the record of the issues to be resolved upon appeal and a further specific finding that those issues would effectively dispose of the indictment or suppress essential evidence which would substantially affect the State's ability to prosecute the defendant as charged in the indictment.

2. The Court is constitutionally obligated to give plenary, independent, and de novo review to the ultimate question of whether a particular confession was obtained as a result of the delay in the presentment of a juvenile after being taken into custody before a referee, circuit judge, or a magistrate when the primary purpose of the delay was to obtain a confession from the juvenile. The factual findings upon which the ultimate question of admissibility is predicated will be reviewed under the deferential standard of clearly erroneous.

3. "Under W. Va.Code, 49-5-8(d), when a juvenile is taken into custody, he must immediately be taken before a referee, circuit judge, or magistrate. If there is a failure to do so, any confession obtained as a result of the delay will be invalid where it appears that the primary purpose of the delay was to obtain a confession from the juvenile." Syllabus Point 3, State v. Ellsworth J.R., 175 W.Va. 64, 331 S.E.2d 503 (1985).

4. "When a court finds that there is probable cause to believe that a juvenile has committed one of the crimes specified in W. Va.Code, 49-5-10(d)(1) (treason, murder, robbery involving the use of or presenting of deadly weapons, kidnapping, first-degree arson, and first-degree sexual assault), the court may transfer the juvenile to the court's criminal jurisdiction without further inquiry." Syllabus Point 2, in part, State ex rel. Cook v. Helms, 170 W.Va. 200, 292 S.E.2d 610 (1981).

Darrell V. McGraw, Jr., Attorney General, Rory L. Perry, Assistant Attorney General, for Appellee.

Richard M. Gunnoe, Zigler & Gunnoe, Hinton, for Appellant.

RECHT, Judge: 1

The defendant, Brian Keith Hosea entered a conditional plea of guilty to murder of the second degree, as authorized by Rule 11(a)(2) of the West Virginia Rules of Criminal Procedure, 2 in the Circuit Court of Summers County. The circuit court and the State of West Virginia, through the Prosecuting Attorney of Summers County, consented to the defendant's entering a conditional plea of guilty to murder of the second degree, reserving in writing to the defendant the right to review adverse determinations of the following questions:

1. Did the circuit court err in not suppressing the defendant's confession made to the police which, according to the defendant, was made prior to being promptly presented to a judicial officer as required by W. Va.Code 49-5-8(d)? 3

2. Did the court err in transferring the juvenile to adult jurisdiction in reliance on the confession which should have been suppressed at the transfer hearing pursuant to W. Va.Code 49-5-10? 4 I.


The events giving rise to this appeal occurred on September 18, 1994 in Hinton, West Virginia, when the defendant shot and killed the victim, Jeffrey Poole. On that date, the defendant was fifteen years of age and was charged with murder of the first degree of the victim, also age fifteen. On September 21, 1994, the State of West Virginia moved to transfer the defendant from juvenile jurisdiction to the criminal jurisdiction of the circuit court in order to charge and try the defendant as an adult within the provisions of W. Va.Code 49-5-10 (1978). 5

The transfer hearing was conducted over a period of two days (September 19, 1994 and December 2, 1994). During the course of the hearing, the defendant's girlfriend, Michelle Gross, was a principal witness who informed the trial court that she was carrying the defendant's child at the time of the shooting. Ms. Gross testified that on September 17, 1994, she was staying at the home of Karen Gore in Hinton, when the defendant and the victim arrived together to visit her. Ms. Gross, the defendant, and the victim spent the night at Ms. Gore's home. Ms. Gross testified that on September 18, 1994, she awakened the defendant at about 11:50 a.m. and the defendant asked her if she had been talking with the victim. Ms. Gross told the defendant to ask the victim. The defendant and Ms. Gross then went into the living room where Mr. Poole was seated on the couch. When asked, the victim informed the defendant that he and Ms. Gross had "messed around." 6 The defendant then picked up a gun and shot the victim four times. The victim died as a result of these gunshot wounds.

Another witness whose testimony was heard during the transfer hearing was Michelle Gore, the sister of Karen Gore, who was visiting at her sister's home in Hinton on September 18, 1994. Michelle Gore testified that her sister, Karen, picked her up at the train station in Hinton, and the two sisters went to Karen's home, arriving sometime after 12:00 p.m. Michelle Gore stated that when she entered the house, she hugged Ms. Gross, who introduced her to the defendant and the victim, both of whom were seated on the couch in the living room. The Gore sisters then went into the kitchen, at which time they heard noises (gunshots). Michelle Gore went into the living room where she saw the defendant with a gun in his hand.

The police were promptly informed of the shooting at approximately 12:15 p.m., and Sergeant Mann, a Summers County Deputy Sheriff, arrived at the Gore residence at approximately 12:20 p.m. Sergeant Mann testified that the defendant was arrested and advised of his Miranda 7 rights and taken to the Summers County Sheriff's Department. Sergeant Mann contacted the defendant's mother and awaited her arrival, which occurred at approximately 2:30 p.m. Sergeant Mann then advised the defendant of his Miranda rights in the presence of his mother, both orally and in writing. The defendant and his mother requested time to be alone, and they spoke out of the presence of Sergeant Mann for a period of five to ten minutes, after which they both signed a form waiving the defendant's Miranda rights. Thereafter, the defendant made a tape-recorded statement confessing to shooting the victim four times with a .25 caliber semi-automatic handgun because his girlfriend said she had sex with the victim. During his statement, the defendant admitted that an interval of approximately ten minutes had elapsed between the time that he learned of the victim's conduct with Michelle Gross and the actual shooting.

The trial court determined that there was probable cause that the defendant had committed murder of the first degree under W. Va.Code 61-2-1 (1991). 8

On the 21st day of September, 1994, the defendant entered a plea of guilty to murder of the second degree, 9 conditioned upon the ability to file a petition for appeal to this Court presenting two questions, which answered favorably to the defendant would be dispositive of any adult criminal charges against him. As we noted above, the first question challenges the admission of a confession given by the defendant without a prompt presentment to a magistrate under W. Va.Code 49-5A-2 (1977) 10 and W. Va.Code 49-5-8(d) (1994). 11

The second question, which builds on the admission of the confession, is that without the confession there existed no probable cause to transfer the defendant from juvenile jurisdiction to criminal jurisdiction.

We hold that upon close analysis, the confession was properly admitted during the transfer hearing; however, we further find that even without the confession, the trial court was not clearly wrong in finding probable cause to transfer the defendant from juvenile to adult jurisdiction, within the meaning of W. Va.Code 49-5-10 (1978). 12 State v. Bannister, 162 W.Va. 447, 250 S.E.2d 53 (1978); see also W. Va.Code 49-5-10(f) (1978).


A. Are the Issues Reserved for Appeal Case Dispositive and Therefore Reviewable by This Court?

Before proceeding to the merits of the defendant's appeal, we must first address the State's contention that the two pretrial issues reserved for appeal are not reviewable by this Court because those issues are not case dispositive.

In his concurring opinion in State v. Lilly, 194 W.Va. 595, 461 S.E.2d 101 (1995), Justice Cleckley articulated the role and usefulness of a conditional plea agreement as authorized by W. Va. R.Crim. P. 11(a)(2). 13 Justice Cleckley commented:

Although a conditional guilty plea can only be used in limited circumstances, as done in the case sub judice, it spares the taxpayers and the court the expense of a potentially time consuming trial. Rule 11(a)(2) not only preserves resources, but serves the ends of justice by permitting [pleading] a defendant to preserve specific errors. In my judgment, Rule 11(a)(2) is one of our most important criminal rules and, when it is properly invoked, everyone benefits, including the public.

State v. Lilly, 194 W.Va. at 606, 461 S.E.2d at 112 (footnote omitted).

The State urges that we should now adopt Justice Cleckley's reasoning and hold that pretrial issues reserved for appeal should be case dispositive, assuming the defendant is successful upon review of those issues.

Federal courts have consistently held that appellate review of a guilty plea entered pursuant to Rule 11(a)(2) is proper only when an appellate court's decision will completely dispose of the case. United States v. Doherty, 17 F.3d 1056, 1058 (7th Cir.1994); United...

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