State v. Mason

• Decision Date: 28 November 1978
• Docket Number: No. 13808,13808
• Parties: STATE of West Virginia v. Dennis Eugene MASON
• Court: West Virginia Supreme Court

Page 793

249 S.E.2d 793

162 W.Va. 297

STATE of West Virginia v. Dennis Eugene MASON

No. 13808.

Supreme Court of Appeals of West Virginia.

Nov. 28, 1978.

Syllabus by the Court

1. The provision of W.Va.Code § 62-1-5 (1965) stating that "(a)n officer making an arrest upon a warrant issued upon a complaint, or any person making an arrest without a warrant for an offense committed in his presence, shall take the arrested person without unnecessary delay before a justice of the county in which the arrest is made," is hereafter mandatory.

2. Although it is established in this jurisdiction that the giving of an erroneous instruction raises a presumption of prejudice, it is an equally well established rule that this Court will not reverse a criminal conviction because of an erroneous instruction where it clearly appears from the record that no prejudice has resulted.

Stephen Jon Ahlgren, Clay, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., Richard L. Gottlieb, Asst. Atty. Gen., Charleston, for defendant in error.

McGRAW, Justice:

The defendant was convicted by a jury of voluntary manslaughter in the Circuit Court of Clay County in April of 1975. He prosecutes this writ of error for review contending on several grounds that his confession was improperly admitted into evidence and that the trial court erred in giving State's Instruction No. 25. We find no reversible error in the trial court judgment and affirm the conviction.

I.

The defendant claims that because the police failed to comply with the statutory criminal procedure of this state, primarily the provision which states that an officer "shall take the arrested person without unnecessary delay before a justice of the county in which the arrest is made," W.Va.Code § 62-1-5 (1965), ¹ his subsequent written confession was inadmissible at trial.

Although the State contended in the trial court that the defendant was not arrested until after he arrived at the police station and that the defendant consented to a request to accompany the officers to the police station, the State now concedes that the defendant was in fact arrested at his residence when the search warrant was executed at approximately 10:30 p. m. on February 19, 1974. The record supports the State's position as to the timing of the arrest and, despite the fact that the victim's body had not yet been located, we have concluded from an examination of the entire record that the arrest was constitutionally valid.

Marking the beginning of the criminal investigation on January 9, 1974, was the discovery of an artificial leg on the bank of the Elk River in Kanawha County. Later, a local manufacturer of prosthetic devices positively identified the artificial limb as belonging to the victim, and through company records the victim's family was located. The police were advised by the family that the victim was missing and had last been seen in downtown Charleston, West Virginia, on January 5, 1974. An article appearing in a Charleston newspaper, containing a photograph of a police officer holding the artificial leg and describing how and where it had been located, led to further evidence strongly implicating the defendant. In response to the article, witnesses informed the police that on the last day the victim had been seen alive they had ridden as passengers in a vehicle traveling from Charleston to Elkview with the victim and the defendant. Also, in January of 1974, a woman who was cohabiting with the defendant contacted the police saying the defendant, upon seeing the newspaper article previously mentioned, had become very upset and had made a statement indicating that he had killed the victim. She also informed law enforcement officials that she believed several articles of the victim's clothing were located in their mutual residence. Thereafter, the police, with her consent, photographed the personal property believed to belong to the victim, and the victim's family later indicated that the photographs portrayed property belonging to the victim.

The evidence clearly indicates the police officers had probable cause to make the arrest at the defendant's residence. The facts and circumstances within the knowledge of the arresting officers were such that a prudent person would have been warranted in believing that a homicide had been committed and that the defendant had committed it. ²

II.

Having considered the arrest issue, we must consider the post-arrest actions of the police officers regarding the presentment of the defendant to a judicial officer. Following the arrest at the defendant's Davis Creek, Kanawha County residence, the defendant was orally given Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) warnings. Miranda warnings were also administered upon defendant's arrival at the Charleston police station at around 11:30 p. m., and two officers then questioned the defendant until approximately 1:00 a. m. The defendant denied involvement in any crime, agreed to take a polygraph test, and the questioning ceased until the polygraph operator arrived. Whereupon, a Miranda rights waiver form was executed by the defendant at approximately 3:25 a. m., and a polygraph test was conducted for approximately one (1) hour. Because the operator concluded that the defendant knew more than he was revealing, the operator advised the officers to confront the accused with some of the probable cause evidence just previously discussed, resulting in an oral confession at 4:35 a. m., some five hours after arriving at the police station and about six hours after his arrest. By agreement, the defendant led the officers to the Clay County crime scene, arriving there at 5:30 a. m. Thereafter, the defendant was taken to the Clay County State Police barracks and orally given his Miranda rights. A second waiver form was executed at 8:30 a. m., and a formal confession was taken down by a secretary as the defendant was questioned until approximately 11:00 a. m. Sometime between 11:00 a. m. and 1:00 p. m. on February 20, 1974, the defendant was presented to a Clay County justice of the peace who was then provided the information necessary for the preparation of a murder warrant. After being provided lunch, the defendant signed a sixteen (16) page typed confession at the State Police barracks at approximately 4:30 p. m. that afternoon. These facts establish that the defendant was not taken immediately or otherwise to a justice of the peace in the county where he was arrested. There was, however, no evidence developed in the proceedings below concerning the availability of a justice of the peace on the particular night in question, and thus whether the delay in taking the defendant to a judicial officer was "unnecessary" is impossible to ascertain. ³

Given the present record, and the state of the law at the time of the arrest in this case, we decline to re-examine the questions presented by a failure of law enforcement officials to obey the prompt production requirements of W.Va.Code § 62-1-5 (1965). Nevertheless, in light of extreme significance of our prompt presentment statute to the administration of criminal justice in this state, and in view of the precious constitutional rights ⁴ implicated when government officials are permitted to hold persons in custody for extended periods of time without the intervention of a neutral and detached judicial officer, one aspect of the meaning of W.Va.Code § 62-1-5 (1965) must be definitively established at this juncture.

In State v. Plantz, 155 W.Va. 24, 180 S.E.2d 614 (1971) (13 hour delay) and State v. Slie, W.Va., 213 S.E.2d 109 (1975) (almost 48 hours), this Court rejected the argument that a violation of the prompt presentment provisions of W.Va.Code § 62-1-5 (1965) vitiates every confession rendered during such period of detention, opting instead for the traditional due process voluntariness test for the admissibility of confessions in conformity with the all but universal rule followed in state courts. See Annot., 19 A.L.R.2d 1331 (1951). Under this approach, delay is treated as one factor in evaluating the voluntariness of a confession.

Although the Court in Slie indicated approval of the statutorily imposed requirement of prompt presentment and "suggest(ed) that it be followed in all cases," Id., 213 S.E.2d at 115, it failed to state whether the provision was mandatory or merely directory and thus left compliance within the discretion of law enforcement officials. The explicit language of the provision provides a ready answer to this issue; its unambiguous language, "shall take the arrested person without unreasonable delay," imposes a mandatory duty upon law enforcement officials to do just that.

The creation and implementation of the magistrate court system in this state under the aegis of the Judicial Reorganization Amendment of 1974 has provided access to a judicial officer at all hours of the day or night. Persons arrested late at night, as is often the case, should not be subjected to interrogation throughout the night without presentment to a magistrate. Persons must be taken without unreasonable delay to a magistrate in the county where the arrest was made. The judicial system must function at all hours of the day and night, or the statutory safeguards designed to guarantee that criminal defendants be fairly treated from the time of arrest to the time of trial will become eviscerated and meaningless.

III.

The defendant next contends his confession was inadmissible at trial because he was denied his constitutional right to consult with counsel prior to being interrogated. It is undisputed that the defendant was given incomplete Miranda warnings at his residence and again upon arrival at police headquarters; the officer administering the warnings relied on memory.

However, the defendant does not deny that prior to the giving of his initial verbal confession he was fully advised of his constitutional rights. The...