State v. Nicholson, No. 16059

• Court: Supreme Court of West Virginia
• Writing for the Court: NEELY
• Citation: 328 S.E.2d 180,174 W.Va. 573
• Decision Date: 22 March 1985
• Docket Number: No. 16059
• Parties: STATE of West Virginia v. Robert NICHOLSON.

Page 180

328 S.E.2d 180 174 W.Va. 573 STATE of West Virginia
v.
Robert NICHOLSON. No. 16059. Supreme Court of Appeals of West Virginia. March 22, 1985.

Page 181

[174 W.Va. 574] Syllabus by the Court

1. "A trial court's decision regarding the voluntariness of a confession will not be disturbed unless it is plainly wrong or clearly against the weight of the evidence." Syl. Pt. 3, State v. Vance, 162 W.Va. 467, 250 S.E.2d 146 (1978).

2. A confession or statement made by a suspect is admissible if it is freely and voluntarily made despite the fact that it is written by an arresting officer if the confession or statement is read, translated (if necessary), signed by the accused and admitted by him to be correct.

George P. Stanton, III, and John Ernest Shank, Asst. Attys. Gen., Charleston, for appellee.

William H. Martin, Charles Town, for appellant.

NEELY, Chief Justice:

The appellant, Robert Nicholson, was convicted of welfare fraud under W.Va.Code 9-5-4 [1972]. He maintains that he did not waive his right to counsel and therefore a statement he gave to a Department of Human Services employee and a West Virginia state trooper should not have been admitted at his trial. Although this Court holds that the appellant's waiver and statement were properly admitted by the trial court, we remand this case for sentencing.

In June of 1981, Miss Frances Lantz, an investigator with the Jefferson County Department of Human Services was asked by the Department to review the file of the appellant, Robert Nicholson. After a thorough investigation, Miss Lantz concluded that the appellant had received over six thousand dollars more in food stamps from the Jefferson County welfare office than was his entitlement from March 1979 through the initiation of her investigation. As Miss Lantz testified subsequently, Mr. Nicholson reported an income of just under $15,000 for the two-year period although in fact his actual earnings were over three times that amount.

On 6 January 1982 West Virginia State Trooper W.O. Plantz and Miss Lantz appeared at Paul's Wood Products Company, near Charles Town, West Virginia. They asked the appellant to accompany them to the Charles Town Detachment of the West Virginia Department of Public Safety for [174 W.Va. 575] questioning. Mr. Nicholson agreed to be questioned and the three set off together.

The appellant, who was no stranger to the police, agreed to speak to Trooper Plantz and investigator Lantz. Waiving his right to have a lawyer present during his interrogation, he signed a West Virginia Department of Public Safety form acknowledging that his constitutional rights had been explained to him. The appellant also signed a statement, written in longhand by Trooper Plantz and meticulously read to the appellant before he signed it. Mr. Nicholson's testimony and the record are barren of any suggestion that the appellant was coerced or intimidated in any way to offer this statement.

Mr. Nicholson was tried in February 1983 on five counts of welfare fraud. The jury found him guilty of three of these five

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counts. The appellant did not report almost $31,000 of income earned by various members of his household during the two-year period while at the same time receiving food stamps for those members of the family.

Mr. Nicholson completed only a few years of primary schooling and is, for all intents and purposes, a functional illiterate. (His reading ability was found to be equivalent to that, approximately, of a third grade pupil.) In addition, his IQ was computed at 65, which the experts tell us is "mildly defective." Thus, while Mr. Nicholson can sign his name and command a working, albeit very elementary, knowledge of written and spoken English, he probably cannot read a newspaper or derive much pleasure from a book. Nevertheless the appellant has been a good husband and father of eight children for over a score of years and has maintained steadfast, if not very remunerative, employment for the last seventeen years. Indeed the record indicates that his employer considers him to be an indispensable and very gifted worker.

I

The appellant bases his appeal on two assignments of error. Both of these assignments concern the defendant's alleged below-normal intelligence. First, the appellant insists that he was unable to give an intelligent waiver of his right to counsel and his right to remain silent during his interrogation at the state police barracks. Secondly, he insists that the statement taken from him and prepared by Officer Plantz in the officer's own handwriting was incomprehensible to him and, because it was taken by...