State v. Hutcheson, 16835

Citation177 W.Va. 391,352 S.E.2d 143
Decision Date19 December 1986
Docket NumberNo. 16835,16835
PartiesSTATE of West Virginia v. James Dale HUTCHESON.
CourtSupreme Court of West Virginia

Syllabus by the Court

1. " 'The delay in taking a defendant to a magistrate may be a critical factor [in the totality of circumstances making a confession involuntary and hence inadmissible] where it appears that the primary purpose of the delay was to obtain a confession from the defendant.' Syllabus Point 6, State v. Persinger, , 286 S.E.2d 261 (1982), as amended." Syllabus Point 1, State v. Guthrie, --- W.Va. ----, 315 S.E.2d 397 (1984).

2. "The delay occasioned by reducing an oral confession to writing ordinarily does not count on the unreasonableness of the delay where a prompt presentment issue is involved." Syllabus Point 3, State v. Humphrey, --- W.Va. ----, 351 S.E.2d 613 (1986).

3. "Ordinarily the delay in taking an accused who is under arrest to a magistrate after a confession has been obtained from him does not vitiate the confession under our prompt presentment rule." Syllabus Point 4, State v. Humphrey, --- W.Va. ----, 351 S.E.2d 613 (No. 16895 12/10/86).

4. Rule 5(c) of the West Virginia Rules of Criminal Procedure requires that where a defendant is in custody following his initial appearance before a magistrate, his preliminary hearing must be held no later than ten days from the date of his initial appearance, unless one of the following exceptions occurs: (1) if the defendant waives the preliminary hearing; (2) if before the date of the preliminary hearing, an indictment or information is filed against the defendant in the circuit court; (3) if, with the consent of the defendant and upon a showing of good cause, the preliminary hearing date is extended one or more times by the magistrate; or (4) if, in the absence of the defendant's consent, a circuit court judge extends the time for preliminary hearing only upon a showing that extraordinary circumstances exist and that the delay is indispensable to the interests of justice.

5. The time periods contained in Rule 5(c) of the West Virginia Rules of Criminal Procedure are mandatory and, in the absence of meeting any of the exceptions contained in the rule, the appropriate remedy where the time periods for holding a preliminary hearing have lapsed is for the defendant to move to dismiss the arrest warrant and to be released from custody. Such a dismissal of the charge, however, does not foreclose the State from initiating a new charge.

6. The delay in holding or failure to hold a preliminary hearing will not vitiate an indictment.

7. "In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done." Syllabus Point 1, State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978).

William S. Steele, Williamson, for appellant.

Atty. Gen. Charlie Brown, Asst. Atty. Gen. Mary Beth Kershner, Charleston, for appellee.

MILLER, Chief Justice:

James Dale Hutcheson appeals his three burglary convictions which occurred in the Circuit Court of Mingo County. He assigns as error the trial court's refusal to suppress his confession because of the delay in taking him to a magistrate. Complaint is also made that the trial court should have quashed his indictment because he was not accorded a preliminary hearing. A final contention is made that there was insufficient evidence to warrant his conviction. We conclude that none of these claims has merit, and we affirm the convictions.

The circumstances surrounding the defendant's confession are that around 10:40 a.m. on July 14, 1983, he was arrested at the residence of a Gerald Justice, who had been suspected of attempting to purchase some of the property that the defendant had stolen. The State police obtained the cooperation of Mr. Justice, who telephoned the defendant and agreed to purchase some of the stolen goods which the defendant had earlier offered to sell to Mr. Justice. When the defendant arrived at Mr. Justice's residence, the State police were waiting and he was arrested. He had in his possession some of the stolen property.

The evidence at the suppression hearing showed that at the time of his arrest he was orally advised of his Miranda rights. The defendant was placed in a police cruiser and was driven to the sheriff's office. On the way, he was asked if he would make a statement and he replied that he would. No further conversation was had at that time. When they arrived at the sheriff's office, the defendant was again advised of his Miranda rights and signed a waiver of rights form at 11:38 a.m.

After some preliminary questioning, the defendant admitted his involvement in the burglary of three residences from which he had obtained assorted firearms. A separate statement was made for each incident which was written out by a Trooper John A. Zirkle of the West Virginia Department of Public Safety. Each statement was signed by the defendant and concluded with the phrase that it "has been read by me and to me and is true and correct to the best of my knowledge."

Subsequent to the completion of these statements which occurred around 2:00 p.m., the defendant indicated to the investigating officers that he was aware of the possible location of a stolen continuous miner in a remote area of the county called Ben Creek. He indicated a willingness to take them to the area and the officers decided to pursue this lead. They drove the defendant to this area where they proceeded to search for the continuous miner, but could not find it. This side trip consumed approximately four hours. They then went to the courthouse where the defendant was taken before a magistrate.

The defendant claims that there was an unreasonable delay in taking him to a magistrate after his initial arrest and, therefore, under Syllabus Point 1 of State v. Guthrie, --- W.Va. ----, 315 S.E.2d 397 (1984), and related cases, the defendant's confession was invalid:

" 'The delay in taking a defendant to a magistrate may be a critical factor [in the totality of circumstances making a confession involuntary and hence inadmissible] where it appears that the primary purpose of the delay was to obtain a confession from the defendant.' Syllabus Point 6, State v. Persinger, , 286 S.E.2d 261 (1982), as amended."

Recently, in State v. Humphrey, --- W.Va. ----, 351 S.E.2d 613 (No. 16895 12/10/86), we had occasion to discuss this area in some detail. In Humphrey, the defendant after being given his Miranda rights was interrogated and initially denied any involvement in the crime. After hearing an incriminating taped conversation, he admitted that he had committed the crime. Thereafter, the police took a written statement which was prepared by the investigating officer and then read and signed by the defendant. The taking of the written statement consumed about one hour and in reliance on earlier cases, we held in Syllabus Point 3 of Humphrey, as follows:

"The delay occasioned by reducing an oral confession to writing ordinarily does not count on the unreasonableness of the delay where a prompt presentment issue is involved." 1

Much the same facts are present in this case, except that here, the defendant initially indicated a willingness to make a statement. Consequently, we conclude that the time consumed in reducing the defendant's oral statement to writing is not countable on the unreasonable delay question. We stated as the rationale for this rule in Humphrey that "having an oral confession put in writing protects the interests of the defendant and the State by ensuring the accuracy of the confession and by preserving its details in writing." --- W.Va. at ----, 351 S.E.2d at 617.

Also at issue in Humphrey was the question of a delay in taking the defendant to a magistrate occurring after the defendant's confession. This delay was occasioned by the officers' efforts to secure certain physical evidence connected to the crime as revealed in the defendant's statement. We pointed out in Humphrey that "[u]nder our prompt presentment rule, the significant time period when an accused is in police custody is the time between the arrest or the time probable cause exists to arrest and the time a statement is obtained from the accused." --- W.Va. at ----, 351 S.E.2d at 617-18. One of the primary purposes of a prompt presentment statute is to ensure that the police do not use the delay to extract a confession from a defendant through prolonged interrogation. Where there is not found to be such a delay in obtaining the confession, any subsequent delay should ordinarily not vitiate the confession simply because there is no causal connection between this subsequent delay and the procurement of the initial confession. We also indicated in Humphrey that a number of other courts had reached the same result 2 and concluded in Syllabus Point 4:

"Ordinarily the delay in taking an accused who is under arrest to a magistrate after a confession has been obtained from him does not vitiate the confession under our prompt presentment rule."

We did express in note 6 of Humphrey, --- W.Va. at ----, 351 S.E.2d at 618 (Slip Op. at 8), this caveat with regard to further interrogation after the initial confession: "We do not mean to imply that if further interrogation ensues which leads to other inculpatory evidence, that such evidence may also be admissible. This issue is not raised in the present case."

In the present case, the additional delay in taking the defendant to a magistrate was not occasioned by the police attempting further interrogation or...

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