State v. Manns, 16358

CourtSupreme Court of West Virginia
Citation329 S.E.2d 865,174 W.Va. 793
Docket NumberNo. 16358,16358
PartiesSTATE of West Virginia v. Curtis Jerome MANNS, aka Curtis Jerome White.
Decision Date18 April 1985

2. Where the indictment, by reference to the offense charged, including the reference to any appropriate statute, clearly indicates that the charge is a felony, the absence of the word "felonious" or words of like import will not render the indictment invalid. We adopt this rule and to the extent that State ex rel. Reed v. Boles, 148 W.Va. 770, 137 S.E.2d 246 (1964), and related cases espouse a per se rule that the 3. "The State in a criminal case may prove the venue of the crime by a preponderance of the evidence, and is not required to prove the same beyond a reasonable doubt." Syllabus Point 5, State v. Burton, 163 W.Va. 40, 254 S.E.2d 129 (1979).

omission of the word "felonious" renders a felony indictment invalid, they are overruled.

Charles W. Pace, Princeton, J. Peter Richardson, Bluefield, for appellant.

Silas B. Taylor, Asst. Atty. Gen., Charleston, for appellee.

MILLER, Justice:

Curtis Manns was convicted of first degree murder with a recommendation of mercy by a Mercer County jury. On appeal, he assigns a number of errors. However, for the reasons herein set out, we decline to reverse his conviction.

We will summarize the basic facts surrounding the crime and then will elaborate on them as necessary in discussing the various assignments of error. On February 20, 1981, the defendant and two of his friends went to the home of Elmer Hutchins to steal money from him. They arrived at approximately 11:00 o'clock that evening, just an hour before the defendant's eighteenth birthday, and knocked on the front door. Mr. Hutchins opened the door and was struck on the head by one of the defendant's friends. As he fell to the floor, he seized his assailant's wrist and refused to let go.

At this point, the defendant's friend told the defendant to shoot Mr. Hutchins, which he did with a .22-caliber rifle. They then fled the house. Mr. Hutchins was able to get to his telephone and report to the operator that he had been shot. He was dead when found by the police and rescue squad.


Entwined in several of the issues raised by the defendant is whether the circuit court properly had initial juvenile jurisdiction over him. The crime was committed when the defendant was about an hour away from his eighteenth birthday, 1 but he was not arrested for the crime until he was nineteen years and four months old. 2 The circuit court assumed juvenile

jurisdiction, held a transfer hearing pursuant to W.Va.Code, 49-5-10, and transferred the defendant to the criminal jurisdiction of the circuit court. We decline to further discuss this issue which was not specifically raised because even if the circuit court initially had no juvenile jurisdiction, the defendant suffered no harm by going through the transfer hearing.


The defendant asserts a number of errors with regard to the admission of his confession. The circumstances surrounding the taking of the defendant's confession are as follows. Although the crime was committed in February, 1981, the defendant was not implicated in the crime until June, 1982, at which time he was living in Baltimore, Maryland.

On June 14, 1982, the defendant was arrested in Baltimore on a fugitive warrant and taken the next day before a Maryland district court judge, who advised him of the West Virginia charge and the extradition procedure. The defendant waived his rights to counsel and to contest extradition. Thereafter, on June 21, 1982, two West Virginia State Police officers arrived in Baltimore to transport him back to West Virginia.

At the hearing on the transfer from juvenile to criminal jurisdiction, Officer R.D. Fulknier testified about going to Baltimore to bring the defendant back to West Virginia. He stated that he and the other officer were dressed in civilian clothes and drove an unmarked car. They obtained custody of the defendant around 9:30 or 10:00 o'clock in the morning and Officer Fulknier read the defendant his Miranda rights. The defendant was not handcuffed or physically constrained by any other type of device during the trip to West Virginia.

Officer Fulknier testified at the suppression hearing that after he read the defendant his rights and placed him in the car, he asked the defendant if he would talk about the charge. The defendant indicated that he would talk, but no conversation took place about the crime at that time because they were having trouble finding their way out of Baltimore.

After they were out of Baltimore, the defendant inquired if his companions had been arrested and whether they had given statements. Officer Fulknier responded affirmatively and read one or more extracts from the companions' statements to the defendant and showed him one of the signatures on the statements. At this point, the defendant said that he wanted to set the record straight, but Officer Fulknier replied that they would talk about it after lunch.

After eating at a restaurant, Officer Fulknier stated they resumed their journey and at around 2:00 o'clock in the afternoon he read the defendant a waiver of rights form, which the defendant signed. Subsequently, the defendant gave a statement explaining his involvement in the crime. The defendant's testimony with regard to these events does not differ materially from the officer's testimony, except that the defendant claimed that he had asked for a lawyer prior to signing the written waiver form. This allegation was denied by the officer. The trial court found the statement given by the defendant to be admissible.

The defendant argues that because he was just under eighteen at the time the crime was committed in February, 1981, his confession in June, 1982, when he was nineteen years and four months old, must be judged by the juvenile standards under W.Va.Code, 49-5-1(d). However, even if this statute were applicable to the defendant, it does not prohibit all juvenile confessions, but rather sets certain specified standards, based on the age of the juvenile, when extrajudicial statements are We discussed the general standards relating to juvenile confessions, where there is no applicable statutory provision, in State v. Laws, 162 W.Va. 359, 251 S.E.2d 769 (1978), where we concluded in Syllabus Point 1:

inadmissible. State v. Howerton, W.Va., 329 S.E.2d 874 (1985). Since the defendant was over sixteen years of age at the time of his confession, he was not entitled to the protections of W.Va.Code, 49-5-1(d).

"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."

In Laws, we concluded that a confession by a juvenile should be judged by the totality of the circumstances test, with a special emphasis being placed on the juvenile's age. This rule is consistent with most other jurisdictions. See, e.g., Fare v. Michael C., 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979); Quick v. State, 599 P.2d 712 (Alaska 1979); State v. O'Connor, 346 N.W.2d 8 (Iowa 1984); State v. Hudson, 404 So.2d 460 (La.1981); State v. Nicholas S., 444 A.2d 373 (Me.1982); Matter of Welfare of M.D.S., 345 N.W.2d 723 (Minn.1984); Commonwealth v. Williams, 504 Pa. 511, 475 A.2d 1283 (1984); State v. Caffrey, 332 N.W.2d 269 (S.D.1983); State v. Woods, 117 Wis.2d 701, 345 N.W.2d 457 (1984); Dutil v. State, 93 Wash.2d 84, 606 P.2d 269 (1980) (En Banc); State v. Hunt, 607 P.2d 297 (Utah 1980); Annot., 87 A.L.R.2d 624 (1963). See also State v. Howerton, supra. The test we apply to a juvenile's confession is similar to the test we apply to an adult's confession. State v. Persinger, W.Va., 286 S.E.2d 261, 267 (1982), citing Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). We stated in Syllabus Point 3 of Howerton:

" '[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)."

At the time of the confession, the defendant was nineteen years and four months old, mentally competent, sober and not physically constrained. There was no evidence concerning any promises made to the defendant nor was there any claim that the defendant was physically or verbally induced by the officers to confess. In view of the totality of the circumstances, we conclude that the defendant voluntarily and intelligently waived his rights and subsequently gave a confession that was properly admitted into evidence.

The defendant's reliance on State ex rel. J.M. v. Taylor, W.Va., 276 S.E.2d 199, 25 A.L.R.4th 1063 (1981), is misplaced. In Taylor, we analyzed a juvenile's ability to waive the right to counsel at a proceeding, which must be distinguished from the capacity of a juvenile to give a voluntary confession, as discussed in Laws.

We also reject the defendant's contention that before he confessed he should have been advised that after a juvenile transfer hearing, he might...

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