State v. Laws

• Decision Date: 12 December 1978
• Docket Number: 13870,Nos. 13886,s. 13886
• Citation: 162 W.Va. 359,251 S.E.2d 769
• Parties: STATE of West Virginia v. Billy Joe LAWS, Jr. STATE of West Virginia v. Jodie Lee DAVIS.
• Court: West Virginia Supreme Court

Page 769

251 S.E.2d 769

162 W.Va. 359

STATE of West Virginia v. Billy Joe LAWS, Jr.

STATE of West Virginia v. Jodie Lee DAVIS.

Nos. 13886, 13870.

Supreme Court of Appeals of West Virginia.

Dec. 12, 1978.

Syllabus by the Court

1. 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.

2. W.Va.Code, 49-5-1(d) (1978) and W.Va.Code, 49-5-9 (1978) are not retroactive in effect because retroactive application would nullify juveniles' statements constitutionally and statutorily sound when made and place an insurmountable burden on the State contrary to the intent of the Legislature.

3. W.Va.Code, 49-5-1(a) (1978) and W.Va.Code, 49-5-10 (1978) relating to procedures governing whether a minor should be tried as a juvenile or an adult are retroactive when a juvenile is awarded a new trial on other grounds since retroactive application promotes the just administration of the laws as they apply to juvenile defendants and does not place an insurmountable burden on the State.

4. "In a criminal prosecution, the State is required to prove beyond a reasonable doubt every material element of the crime with which the defendant is charged, and it is error for the court to instruct the jury in such a manner as to require it to accept a presumption as proof beyond a reasonable doubt of any material element of the crime with which the defendant is charged or as requiring the defendant either to introduce evidence to rebut the presumption or to carry the burden of proving to the contrary." Syl. pt. 4, State v. Pendry, W.Va., 227 S.E.2d 210 (1976).

Shaffer, Theibert, Ikner & Schlaegel, H. G. Shaffer, Jr., Madison, for Laws and Davis, relators.

Chauncey H. Browning, Atty. Gen., Thomas J. Steele, Jr. and Gregory E. Elliott, Asst. Attys. Gen., Charleston, for State.

NEELY, Justice:

These cases, consolidated on appeal, present questions pertaining to criminal proceedings against juveniles prior to the enactment of the new Juvenile Proceedings Act, W.Va.Code, 49-5-1 Et seq. (1978). Specifically appellants contend that they did not voluntarily, intelligently, and knowingly waive their constitutional rights before giving written and oral confessions to the crime charged; that their cases were erroneously tried in the criminal jurisdiction of the court after moving for transfer to the juvenile court; and, that the court below gave instructions which placed unconstitutional burdens of proof on the defense. The appellants' trials were properly held in the criminal court; however, since instructions placing unconstitutional burdens of proof on the defense were given, we reverse and remand for new trials. Although it does not appear to us that appellants' statements were unconstitutionally admitted, we decline to pass on this issue, but prefer instead to discuss the appropriate standard and permit that standard to be applied at retrial.

Appellants were convicted of first degree murder pursuant to W.Va.Code, 61-2-1 (1923). According to their written confessions which did not vary in any material degree, Billy Joe Laws and Jodie Lee Davis, who were both fifteen years old at the time of the crime left school on Thursday, February 21, 1974 with tentative plans of "running away" to Mexico. After securing a gun from Billy Joe Laws' home and twenty dollars from Jodie Lee Davis' father, they purchased some marijuana, and persuaded someone to purchase shells for their pistol. Realizing the need for transportation they began looking for a ride. Shortly after midnight, they stopped the decedent, Tillis Dunn, as he was leaving work at Gino's (a fast food restaurant in Man, West Virginia) and requested a ride. After getting into the car, the boys pulled the gun on Mr. Dunn and ordered him to drive toward Charleston, with which request Mr. Dunn promptly complied. By morning the two appellants had decided to return home due to lack of money but determined they would need to kill Mr. Dunn because he knew too much. Mr. Dunn was forced to remove his shoes and jacket, climb a wooded hill and lie down in a hollowed log. Jodie Lee Davis held the gun on him but was unable to shoot. Jodie passed the gun to Billy Joe Laws and Jodie then hit Mr. Dunn with rocks until he was unconscious. Billy Joe Laws finally shot Tillis Dunn. The two boys left the scene in Mr. Dunn's car which they later abandoned before going home.

Billy Joe Laws was arrested on February 24, 1974 on a warrant charging him with brandishing a deadly weapon, a charge unrelated to the crime of killing Mr. Dunn. He was taken to the Man City Hall where he was fully informed of his rights, indicated that he understood those rights and executed a written waiver of rights. While questioning Billy Joe Laws on other matters, the arresting officer asked him if he had been around Gino's in Man, West Virginia on the night Tillis Dunn disappeared. When he denied being there, the officer told him that one Otto Mutters had seen him near Gino's and at this point Billy Joe Laws orally confessed that he and Jodie Lee Davis had killed Tillis Dunn, giving a detailed recital of events before and after the murder. Laws went with the arresting officer to Laws' home to get the gun and was then taken to Boone County where he directed officers to the murder site where the body was found. That night he signed a written confession taken after he had been fully advised of his rights, had specifically indicated that he understood each of his rights, and had signed a written waiver of rights. He now contends that because he was fifteen years old, questioned in a police dominated atmosphere, and was not aware that he was to be questioned about the disappearance of Tillis Dunn when he initially waived his rights, he did not voluntarily, intelligently and knowingly waive his rights to counsel and to remain silent.

Jodie Lee Davis was arrested at his home by three officers on February 25, 1974. He was told he was to be questioned about Tillis Dunn's death and was read his rights which he indicated he understood and waived. He then gave the officers a detailed oral confession to Tillis Dunn's murder. He was transferred to the State Police in Madison, West Virginia where after hearing his rights read to him again, indicating that he understood his rights, and signing a written waiver of them, he executed a written confession to the murder. He then accompanied officers and Billy Joe Laws to Tillis Dunn's car, still located where the two boys had abandoned it. He now contends that because he was fifteen years old and his father was not present during questioning he did not voluntarily, intelligently, and knowingly waive his rights.

I

Appellants' claim that they did not voluntarily, knowingly, and intelligently waive their rights to counsel and to remain silent are based primarily on the supposition that juvenile rights should be guarded with a greater zeal than adult rights to insure that confessions are not a result of adolescence, fear or fantasy. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). We enthusiastically endorse this basic premise, but find that the circuit judge was correct in ruling that there is nothing that prevents a minor above the age of tender years from executing an effective waiver of rights solely by virtue of his minority, Gallegos v. Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962); Harris v. Commonwealth, 217 Va. 715, 232 S.E.2d 751 (1977). ¹ However, any confession made by a minor must be scrutinized under the totality of the circumstance which includes an evaluation of the following factors:

1) age of the accused; 2) education of the accused; 3) knowledge of the accused as to both the substance of the charge, if any has been filed, and the nature of his rights to consult with an attorney and remain silent; 4) whether the accused is held incommunicado or allowed to consult with relatives, friends or an attorney; 5) whether the accused was interrogated before or after formal charges had been filed; 6) methods used in interrogation; 7) length of interrogations; 8) whether vel non the accused refused to voluntarily give statements on prior occasions; and 9) whether the accused has repudiated an extra judicial statement at a later date.

West v. United States, 399 F.2d 467 at 469 (5th Cir. 1968). See also, State In Interest of Dino, La., 359 So.2d 586 at 591 (1978).

Neither appellant raises the possibility of being afforded the protections of the new Juvenile Proceedings Act, W.Va.Code, 49-5-1 Et seq. (1978) first enacted in 1977, but we feel called upon to make it clear that all the protections added by the new act are not retroactive in effect. These protections, while expressing the policy of the Legislature, are not constitutionally mandated. While under 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, such was not the law at the time of appellants' trials. The same is true of the current provision in W.Va.Code, 49-5-9 (1978) that no interrogation can be made without the presence of a parent or counsel. While we do not question the legislature's wisdom in providing protections for juveniles above those constitutionally required, we do not find any authority for retroactive application of those standards since such...