State v. McArdle

• Decision Date: 06 February 1973
• Docket Number: No. 13031,13031
• Citation: 194 S.E.2d 174,156 W.Va. 409
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Jeff McARDLE.

Page 174

194 S.E.2d 174

156 W.Va. 409

STATE of West Virginia v. Jeff McARDLE.

No. 13031.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 20, 1972.

Decided Feb. 6, 1973.

Syllabus by the Court

1. Since waiver of juvenile jurisdiction is a critical stage in criminal proceedings against a juvenile, constitutional due process demands that the child, his parents and his counsel be afforded reasonable notice of the waiver hearing, the charge to be considered, a reasonable opportunity to prepare a defense to such waiver and a meaningful hearing at which evidence on behalf of the juvenile should be permitted.

2. The waiver of juvenile jurisdiction by a juvenile court is subject to review by an appellate court and if that court finds that the waiver was inappropriate the conviction obtained in another court by reason of such waiver must be vacated.

3. Where the theory of defense in a criminal trial of one charged with possession and sale of marijuana is that the substance offered into evidence by the state is not, under the statute, an illegal part of the marijuana plant, the accused should be afforded an opportunity to obtain a sample of such substance so that an expert of his choice may conduct a thorough examination of the substance and offer meaningful testimony in support of such theory of defense.

4. A prosecution that withholds evidence on the demand of an accused, which, if made available would tend to exculpate him, violates due process of law.

5. 'In a criminal trial, the state cannot introduce evidence, not connected with the crime for which the accused is being tried, for the purpose of showing his bad character, until the accused has first put his own character in issue by attempting to prove a previous good character.' Point 1, Syllabus, State v. Graham, 119 W.Va. 85, 191 S.E. 884.

6. 'It is reversible error to give an instruction which is misleading and misstates the law applicable to the facts.' Point 4, Syllabus, State v. Travis, 139 W.Va. 363, 81 S.E.2d 678.

Wilson, Frame & Rowe, Clark B. Frame, Morgantown, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., Richard E. Hardison, Henry Bowen, Asst. Attys., Gen., Charleston, for defendant in error.

CAPLAN, Judge:

At the April Term, 1970, of the Circuit Court of Monongalia County, the defendant Jeff McArdle, was indicted for the offense of possession and sale of a 'narcotic drug known as Cannabis, and more commonly known as marijuana'. Upon the entry of a plea of not guilty he was tried by a jury which found him guilty as charged in the indictment. The court, after refusing a request for a presentence investigation, denied probation and sentenced the defendant to a term of from two to five years in the state penitentiary. It is from the judgment imposing that sentence that this appeal is prosecuted.

In September, 1969, Trooper D. R. Wills, a member of the Department of Public Safety, was assigned to temporary duty in Morgantown, West Virginia for the purpose of investigating the reported sale and use of marijuana in that area. During that time he met and become fairly well acquainted with the defendant, who at the time was a resident of Morgantown and was sixteen years of age. In his undercover activities, in an effort to assume the appearance of one of the students, Trooper Wills grew a beard and was attired in blue jeans and a sweat shirt.

The evidence is conflicting as to what transpired between Trooper Wills and the defendant. Trooper Wills testified that Jeff McArdle approached him with an offer to sell him 'some real good weed'. The defendant, on the other hand, testified that Wills asked him on two different occasions to sell him some marijuana before he did finally sell him the package which gave rise to this prosecution. The defendant stated that on each occasion he told Wills that he did not have any marijuana so therefore could not sell him any.

According to the testimony the defendant, McArdle, on the third attempt by Trooper Wills to purchase marijuana from him, recalled an incident which he thought could be profitable. The defendant had just witnessed two young men who were preparing a quantity of marijuana, presumably for use. This occurred in a certain boarding house where these two young men resided. They cut the usable parts of the marijuana plants from the stalks and placed the stalks and other disposable parts of the plant in a brown paper bag which they threw into the garbage can. With this incident in mind, the defendant told Trooper Wills that he had some marijuana for him. He and the trooper walked to the boarding house and the former instructed the latter to wait outside. McArdle then went to the second floor where the garbage can was kept, retreived the brown bag, removed the disposed of parts of the marijuana plant and placed them in a piece of silver foil which he folded into a packet. Acknowledging on the stand that he was going to 'burn' this fellow, he sold him the packet for $15.00. This version of the happenings of that day did not vary greatly from the testimony of Trooper Wills although it is assumed that Trooper Wills knew nothing of the disposed of parts of the marijuana plants.

By reason of this sale the defendant was arrested on October 31, 1969 and placed in jail without bail. He was incarcerated over the weekend before he was permitted to be released on bail.

On November 3, 1969 a state policeman filed a petition in the Juvenile Court of Monogalia County charging Jeff McArdle with delinquency. A brief hearing was held at which the prosecuting attorney vigorously requested the court to waive its juvenile jurisdiction and transfer the defendant to the criminal court where he would be treated as an adult. Without any evidence and actually without any hearing the Monongalia County charging Jeff McArdle young man's bad reputation said: 'where he is mature enough to do that with which he is charged, that is, possessing and selling marijuana, he is mature enough to be treated as an adult, in the judgment of this Court.'

The court thereupon entered an order providing that this defendant be treated as an adult. It is pertinent to note that no notice of this hearing had been given although his parents were present and he was represented by counsel.

Subsequently, at the April Term the defendant was indicted and on April 20, 1970 entered a plea of not guilty. Shortly thereafter the defendant filed a Plea in Abatement and a motion for discovery of exculpatory information which included a request for a sample of the alleged marijuana. Because of the physical incapacity of the prosecuting attorney nothing further was done until June 9, 1970, at which time the prosecuting attorney posted what purported to be a criminal docket. Jeff McArdle's case was to be tried on June 15. It is noted that this defendant's counsel represented defendant in five of the first seven cases waiting for trial. Several motions were then made by the defendant, including a motion for a continuance, for a change of venue and one to quash the indictment. On June 11 all of these motions were overruled. A Plea in Abatement and the motion for discovery were formally filed and made and were also overruled. In addition, a motion for a change of venue was made and many exhibits in support thereof were offered. This motion was also denied. In this posture the case went to trial and as aforesaid a verdict of guilty was returned by the jury.

While many errors were assigned by the defendant as grounds for reversal of the judgment below, the following assignments control the disposition of this case: (1) The court erred in failing to hold a hearing on the waiver of juvenile jurisdiction which conformed with the requirements of due process of law; (2) The court erred in refusing to allow the defendant to obtain a sample of the substance alleged to be marijuana; (3) The court erred in permitting the admission into evidence of other crimes committed by the defendant which were totally unrelated to the offense of which he was charged; (4) The court erred in giving, over the defendant's objection, state's instruction No. 9 and (5) The court erred in refusing to strike the remarks of the Prosecuting Attorney in his closing argument to the jury upon objection and motion by the defendant.

In relation to the first assignment of error it is noted that the record of the proceedings below includes a transcript of what purports to be a hearing before the court on the waiver of its juvenile jurisdiction. It is contended by the defendant that the court therein failed to meet the requirements of due process of law.

Although, as noted above, there is a transcript in the instant case of a purported hearing, there was, in fact, no hearing at all. An examination of said transcript reveals that there was no meaningful opportunity for the juvenile to be heard; there were vague references by the prosecuting attorney and the court to a former assault charge against the juvenile; no evidence was offered of such charge and, in fact, the remarks of defense counsel alleging that the other party had struck the first blow went unanswered; there were innuendoes by the court and prosecutor which, without any proof, assumed the guilt of the defendant; and there were no findings of fact or any substantial reasons given for waiver of juvenile jurisdiction. The court on its own preconceived notion of this defendant's reputation arbitrarily waived its juvenile jurisdiction and determined that he should be tried as an adult.

Waiver of juvenile jurisdiction is a critical point in criminal proceedings against a juvenile. Kemplen v. Maryland, 4 Cir., 428 F.2d 169. In that case the court said 'In order that child, parents, and counsel may have a reasonable opportunity to prepare the child's case as to waiver, due process demands that they be given adequate notice of the nature of the proceeding, its date, and the charges to be considered.' Even...