State v. Howerton

• Decision Date: 18 April 1985
• Docket Number: No. 16129,16129
• Citation: 329 S.E.2d 874,174 W.Va. 801
• Parties: STATE of West Virginia v. James Ronald HOWERTON.
• Court: West Virginia Supreme Court

Page 874

329 S.E.2d 874

174 W.Va. 801

STATE of West Virginia v. James Ronald HOWERTON.

No. 16129

Supreme Court of Appeals of

West Virginia.

April 18, 1985.

Syllabus by the Court

1. A juvenile defendant's failure to comply with W.Va.Code, 49-5-10(f), relating to a direct appeal of a transfer to the criminal jurisdiction of the circuit court, forecloses our considering his objection as to the transfer hearing on his subsequent criminal appeal.

2. W.Va.Code, 49-5-1(d) (1978), was designed to prohibit juveniles under the age of sixteen years from giving incriminating statements when in custody and outside the presence of the child's counsel, but does not apply to children sixteen years of age or older. We note that its provisions were altered in 1982.

3. "[Subject to the provisions of W.Va.Code, 49-5-1(d),] [t]here is no constitutional impediment which prevents a minor above the age of tender years solely by virtue of his minority from executing an effective waiver of rights; however, such waiver must be closely scrutinized under the totality of the circumstances." Syllabus Point 1, as modified, State v. Laws, 162 W.Va. 359, 251 S.E.2d 769 (1978).

4. The right to arrest in public without a warrant, based on probable cause that the person has or is about to commit a felony, is the general if not universal rule in this country.

5. An adoptive admission is where a party by words or conduct signifies his acquiescence or approval of an out-of-court statement.

6. " 'A new trial will not be granted on the ground of newly-discovered evidence unless the case comes within the following rules: (1) The evidence must appear to have been discovered since the trial, and, from the affidavit of the new witness, what such evidence will be, or its absence satisfactorily explained. (2) It must appear from facts stated in his affidavit that plaintiff was diligent in ascertaining and securing his evidence, and that the new evidence is such that due diligence would not have secured it before the verdict. (3) Such evidence must be new and material, and not merely cumulative; and cumulative evidence is additional evidence of the same kind to the same point. (4) The evidence must be such as ought to produce an opposite result at a second trial on the merits. (5) And the new trial will generally be refused when the sole object of the new evidence is to discredit or impeach a witness on the opposite side.' Syllabus Point 1, Halstead v. Horton, 38 W.Va. 727, 18 S.E. 953 (1894)." Syllabus, State v. Frazier, 162 W.Va. 935, 253 S.E.2d 534 (1979).

J.T. Meisel, George D. Beter, Huntington, for appellant.

S. Clark Woodroe, Asst. Atty. Gen., Charleston, for appellee.

MILLER, Justice:

The defendant, James Ronald Howerton, was convicted by a jury in the Circuit Court of Cabell County of committing second degree murder when he was seventeen years old. He was transferred from juvenile jurisdiction to adult criminal jurisdiction in August, 1981, upon a finding by the trial court that probable cause existed to believe he had committed a murder. W.Va.Code, 49-5-10(d)(1); see State ex rel. Cook v. Helms, W.Va., 292 S.E.2d 610 (1981).

Although the defendant did not exercise his right to a direct statutory appeal from the transfer order, he nonetheless challenges the validity of his transfer on the ground that the trial court failed to make adequate findings of fact and conclusions of law. He also contends that the trial court's failure to consider his mental and physical condition and other personal factors in ordering his transfer violates due process of law as guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution and Article III, Section 10 of the West Virginia Constitution. The defendant also assigns five errors seeking reversal of his criminal conviction. For the reasons that follow, we affirm.

I.

Defendant's right to challenge the order transferring him from the juvenile to the adult court is controlled by W.Va.Code, 49-5-10(f). This statute provides that notice of intent to appeal and a request for a transcript must be filed within ten days from entry of the transfer order. It also requires that a petition for appeal must be presented to this Court within forty-five days from entry of the transfer order, or the right of appeal and the right to object to the transfer order shall be waived and may not thereafter be asserted. ¹ We, therefore, hold that a juvenile defendant's failure to comply with W.Va.Code, 49-5-10(f), relating to a direct appeal of a transfer to the criminal jurisdiction of the circuit court, forecloses our considering his objection as to the transfer hearing on his subsequent criminal appeal. ² Our statute is in accord with the general rule independently fashioned by courts that an appeal of a juvenile transfer must be made prior to the criminal trial and, if it is not, the validity of the transfer cannot be challenged as a part of the subsequent criminal appeal. People v. Chi Ko Wong, 18 Cal.3d 698, 557 P.2d 976, 135 Cal.Rptr. 392 (1976); State v. Stanley, 60 Hawaii 527, 592 P.2d 422, cert. denied, 444 U.S. 871, 100 S.Ct. 149, 62 L.Ed.2d 97 (1979); State v. Harwood, 98 Idaho 793, 572 P.2d 1228 (1977); People v. Goodman, 41 N.Y.2d 888, 362 N.E.2d 615, 393 N.Y.S.2d 985 (1977). ³

II.

One of the defendant's principal assignments of error involves the admission of his oral confession given to a Huntington city police officer while he was in custody. He claims that the statement was admitted in violation of a provision of our juvenile law dealing with the admissibility of extrajudicial statements by juveniles. He also contends that the statement was the product of an illegal arrest and was therefore not admissible.

The statement was made on the afternoon of July 5, 1981. The defendant's parents, in response to a telephone call by a Huntington police officer, brought him to the juvenile unit of the police department. There, he was advised that he was being placed under arrest. According to the police officer's testimony, the defendant, in the presence of his parents, was advised of his Miranda rights. The defendant then stated that he invited the victim to a river bank picnic at the direction of a third person and was present when this person shot the victim.

The defendant contends that this oral incriminating statement made when he was seventeen years of age should have been suppressed under the language of W.Va.Code, 49-5-1(d) (1978), which provides: "Extra-judicial statements other than res gestae statements by a child under sixteen years of age, made to law-enforcement officials or while the child is in custody and outside the presence of the child's counsel shall not be admissible."

The defendant interprets this language to mean that incriminating statements by juveniles over sixteen years of age made to law enforcement officials or while in custody without the benefit of counsel are not admissible. The only exception is if the incriminating statement is a res gestae statement by a child over sixteen years of age. He reads the prepositional phrases "by a child" and "under sixteen years of age" as modifying "res gestae statements" rather than "[e]xtra-judicial statements."

We cannot agree with this construction of the statute. To accept the defendant's contention would lead to the absurd result not contemplated by the legislature of placing an evidentiary restriction on the admissibility of res gestae statements based on the age of the declarant. ⁴ As we said in State ex rel. Simpkins v. Harvey, W.Va., 305 S.E.2d 268, 277 (1983): "Such an interpretation would contradict the duty of this Court to avoid whenever possible a construction of a statute which leads to absurd, inconsistent, or unreasonable results."

This provision came into our juvenile law as a result of the extensive revisions made in 1977 to our juvenile act. ⁵ These revisions provided enhanced rights to juveniles. ⁶ For the first time, the legislature provided guidelines for the taking of juvenile confessions in W.Va.Code, 49-5-1(d). It is against this background that we scrutinize the statute. We conclude that W.Va.Code, 49-5-1(d) (1978), was designed to prohibit juveniles under the age of sixteen years from giving incriminating statements when in custody and outside the presence of the child's counsel, but does not apply to children sixteen years of age or older. We note that its provisions were altered in 1982. ⁷ We had indicated this conclusion by way of dictum in State v. Laws, 162 W.Va. 359, 364, 251 S.E.2d 769, 773 (1978): "[U]nder the current provision of W.Va.Code, 49-5-1(d) [1978] extra-judicial statements other than res gestae statements by a child under sixteen years of age made to law enforcement officers are not admissible if made outside the presence of the child's counsel."

From the foregoing, it is clear that the defendant's oral confession in this case is tested by the general standard relating to a juvenile's confession since the special statutory restriction is not applicable because the defendant was seventeen years of age. We dealt with this issue in Syllabus Point 1 of Laws, which involved a juvenile's confession made prior to the time that there was any statutory regulation of a juvenile's confession:

"There is no constitutional impediment which prevents a minor above the age of tender years solely by virtue of his minority from executing an effective waiver of rights; however, such waiver must be closely scrutinized under the totality of the circumstances."

Syllabus Point 1 of Laws accurately reflects our current law when we add the following phrase: "Subject to the provisions of W.Va.Code, 49-5-1(d)."

We also set out in Laws a number of factors that should be considered in ascertaining whether a juvenile's confession should be admitted. ⁸ Most courts including the United States Supreme Court have adopted a similar approach in the absence of specialized statutes. See Fare v. Michael...