State v. Mullens

• Decision Date: 22 June 1988
• Docket Number: No. 17701,17701
• Parties: STATE of West Virginia v. Betty MULLENS.
• Court: West Virginia Supreme Court

Page 64

371 S.E.2d 64

179 W.Va. 567

STATE of West Virginia v. Betty MULLENS.

No. 17701.

Supreme Court of Appeals of

West Virginia.

June 22, 1988.

Syllabus by the Court

1. The Sixth Amendment to the United States Constitution guarantees an accused the right to confront the witnesses against him. The Sixth Amendment right of confrontation includes the right of cross-examination.

2. A confession of an accomplice which inculpates the accused is presumptively unreliable. Where the accomplice is unavailable for cross-examination, the admission of the confession, absent sufficient independent "indicia of reliability" to rebut the presumption of unreliability, violates the Sixth Amendment right of confrontation.

Franklin D. Cleckley, Morgantown, Richard G. Rundle, Rundle & Rundle, Pineville, for Mullens.

Charles G. Brown, Atty. Gen., Charleston, for State.

BROTHERTON, Justice:

Betty Mullens appeals her conviction by a Wyoming County jury of being an accessory before the fact to first degree murder; being an accessory before the fact to malicious wounding; and conspiracy to commit first degree murder. Mullens assigns as error the admission of an alleged accomplice's confession and the admission of an alleged accomplice's guilty plea. Because we agree with the appellant that the admission of the alleged accomplice's confession and guilty plea was error, we reverse the judgment of the Circuit Court of Wyoming County and remand for a new trial. ¹

In January 1984 the appellant, Betty Mullens, and her husband, Roger Mullens, were the proprietors of the Midway, a small tavern in Pineville, West Virginia. The appellant operated the Midway during the day and became acquainted with some of the regular patrons. The Mullens employed Rusty Candler as a bartender at the Midway. Candler and Roger Mullens were similar in appearance: they had similar builds, both had long brown hair, and both wore beards.

In addition to operating the Midway, Roger Mullens worked the late night shift at a local mine. After completing his shift at the mine, Mullens customarily went to the Midway to help close the bar. As part of his nightly routine, Mullens seated himself in front of a window on a bar stool behind the cash register to count the money. However, on January 28, 1984, Roger Mullens decided to play pool and asked Candler to count the money. As Rusty Candler sat at Mullens' usual spot at the bar behind the cash register counting the money, a bullet came through the window and struck Candler in the head, killing him. The police determined that the bullet had been fired from a high-powered 30.06 rifle shot from the top of a cliff located across the street from the Midway. Thirteen days later, on February 9, 1984, Roger Mullens was shot in the arm as he attempted to enter his van outside his home. Again there was evidence that a high-powered rifle had been used.

A police investigation of the two shooting incidents led to the arrest of Russell Reed and to charges that the appellant had hired Russell Reed to kill her husband, Roger Mullens. Russell Reed was convicted of the first degree murder of Rusty Candler. The appellant was indicted on charges of (1) being an accessory before the fact to murder in the first degree of Rusty Candler; (2) being an accessory before the fact to the malicious wounding of Roger Mullens; and (3) conspiring with Russell Reed, John Pizzino, Jr. and Gary Cline to commit murder in the first degree. John Pizzino, Jr. was the alleged lover of the appellant, although any such relationship was denied by the appellant at trial. Gary Cline figures into the scenario as a potential enemy of Roger Mullens following Mullens' disapproval of Cline's romantic relationship with his daughter.

At trial, the appellant admitted marital problems, many stemming from admitted physical abuse by her husband, but denied that she had plotted to kill him. Roger Mullens even rejected the idea that the appellant was part of a murder-for-hire scheme against him. The Wyoming County jury convicted the appellant on all three counts of the indictment.

I.

The appellant argues first that the trial court erred in admitting the confession of her alleged accomplice, Russell Reed. The appellant was tried subsequent to Russell Reed's conviction of first degree murder. At the appellant's trial, the State called Russell Reed as a witness. Reed, however, refused to answer any questions on the ground that he was invoking the Fifth Amendment privilege against self-incrimination. Despite warnings from the trial judge that he was not entitled to invoke the Fifth Amendment privilege against self-incrimination, Reed continued to refuse to answer questions. The State, however, proceeded to question Reed from a statement he had given to the police in which he admitted his guilt and implicated the appellant. The appellant argues that Reed's invocation of the Fifth Amendment privilege against self-incrimination effectively denied her of her Sixth Amendment right to confront the witness and challenge the accuracy and credibility of such statements.

The Sixth Amendment guarantees an accused the right to confront the witnesses against him. U.S. Const.amend. VI. ² The Sixth Amendment right of confrontation includes the right of cross-examination. Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968). The Sixth Amendment right of an accused to confront the witnesses against him is a fundamental right made obligatory on the States by the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). ³

In Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986), the United States Supreme Court considered the Sixth Amendment confrontation right of an accused, as applied to an out-of-court statement by a codefendant. In Lee the petitioner and her codefendant were tried jointly at a bench trial at which neither defendant testified. The trial judge relied on the codefendant's confession to the police in finding the defendant guilty. As in this case, the issue was whether admission of the codefendant's confession violated the defendant's Sixth Amendment confrontation right.

The Supreme Court began its analysis with a review of the Sixth Amendment right of confrontation. The Court noted that one function of the confrontation right is to insure fairness, but went on to say that the primary function of the right of confrontation and cross-examination is to promote reliability in criminal trials. 476 U.S. at 540, 106 S.Ct. at 2062. ⁴ The Court then restated its longstanding view that accomplices' confessions that incriminate defendants are presumptively unreliable. Id. at 541, 106 S.Ct. at 2063. Such a confession is hearsay subject to all the dangers of hearsay generally. Moreover, statements of a codefendant about what the defendant said or did are less credible than ordinary hearsay evidence because of the strong motivation of the codefendant to shift the blame to the defendant and exonerate himself. Id. at 541, 106 S.Ct. at 2062; see Bruton v. United States, 391 U.S. 123, 140-42, 88 S.Ct. 1620, 1630-31, 20 L.Ed.2d 476, 488 (1968) (White, J., dissenting).

The Lee Court noted its earlier decision in Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965), which involved facts very similar to those in the case before us. In Douglas, the petitioner and an alleged accomplice, Loyd, were tried separately on charges of assault with intent to murder. Loyd was tried first and convicted. The State then called Loyd as a witness at petitioner's trial. Loyd, however, refused to answer any questions concerning the alleged crime, relying on the Fifth Amendment privilege against self-incrimination. Thereafter, the State questioned Loyd from an alleged confession made by Loyd which implicated the petitioner. As in the instant case, Loyd repeatedly refused to answer, but the State continued to question him until the entire statement had been read. The petitioner in Douglas argued that this procedure violated his rights under the Confrontation Clause of the Sixth Amendment as applied to the States.

The Court reasoned that:

Although the Solicitor's reading of Loyd's alleged statement, and Loyd's refusal to answer, were not technically testimony, the Solicitor's reading may well have been the equivalent in the jury's mind of testimony that Loyd in fact made the statement; and Loyd's reliance upon the privilege created a situation in which the jury might improperly infer both that the statement had been made and that it was true.

Id. at 419, 85 S.Ct. at 1077. The Court, therefore, concluded that the petitioner's inability to cross-examine Loyd as to the alleged confession plainly denied him the right of confrontation guaranteed by the Sixth Amendment. Id. ⁵ The Lee Court noted that the holding in Douglas "was premised on the basic understanding that when one person accuses another of a crime under circumstances in which the declarant stands to gain by inculpating another, the accusation is presumptively suspect and must be subjected to the scrutiny of cross-examination." 476 U.S. at 541, 106 S.Ct. at 2062-63. The Court then observed that the facts in the case before it were strikingly similar to Douglas. In both cases the state attempted to use a hearsay confession of an alleged accomplice as substantive evidence under circumstances which provided the accused with no opportunity to cross-examine the declarant.

The Lee Court concluded that the introduction of such confessions, absent an opportunity for cross-examination, necessarily threatens the truthfinding function of the Confrontation Clause. The Court, however, recognized that the presumption of unreliability surrounding confessions of accomplices may be rebutted by a showing of sufficient independent "indicia of reliability," but held that absent such a showing "a codefendant's confession inculpating the accused is inherently unreliable and...