State v. Persinger

• Decision Date: 19 January 1982
• Docket Number: No. 14630,14630
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Dana PERSINGER.

Page 261

286 S.E.2d 261

169 W.Va. 121

STATE of West Virginia v. Dana PERSINGER.

No. 14630.

Supreme Court of Appeals of West Virginia.

Jan. 19, 1982.

Syllabus by the Court

1. In light of the judicially-sanctioned procedures set out in State v. Green, W.Va., 260 S.E.2d 257 (1979), the provisions of W.Va.Code, 61-8B-12, limiting the defendant's right to present evidence of the victim's prior sexual conduct are constitutional under the provisions of the Sixth Amendment to the United States Constitution and Section 14 of Article III of the West Virginia Constitution.

2. "It is the mandatory duty of a trial court, whether requested or not, to hear the evidence and determine in the first instance, out of the presence of the jury, the voluntariness of an oral or written confession by an accused person prior to admitting the same into evidence." Syllabus Point 1, State v. Fortner, 150 W.Va. 571, 148 S.E.2d 669 (1966), overruled in part, State ex rel. White v. Mohn, W.Va., 283 S.E.2d 914 (1981).

3. "The State must prove, at least by a preponderance of the evidence, that confessions or statements of an accused which amount to admissions of part or all of an offense were voluntary before such may be admitted into the evidence of a criminal case." Syllabus Point 5, State v. Starr, W.Va., 216 S.E.2d 242 (1975).

4. "Once a suspect in custody has expressed his clear, unequivocal desire to be represented by counsel, the police must deal with him as if he is thus represented. Thereafter, it is improper for the police to initiate any communication with the suspect other than through his legal representative, even for the limited purpose of seeking to persuade him to reconsider his decision on the presence of counsel." Syllabus Point 1, State v. McNeal, W.Va., 251 S.E.2d 484 (1978).

5. "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 [magistrate] of the county in which the arrest is made,' is hereafter mandatory." Syllabus Point 1, State v. Mason, W.Va., 249 S.E.2d 793 (1978).

6. The delay in taking the defendant to a magistrate may be a critical factor where it appears that the primary purpose of the delay was to obtain a confession from the defendant.

7. "When the representations of one in authority are calculated to foment hope or despair in the mind of the accused to any material degree, and a confession ensues, it cannot be deemed voluntary." Syllabus, State v. Parsons, 108 W.Va. 705, 152 S.E. 745 (1930).

Edwin C. Runner, Kingwood, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., Gregory W. Bailey, Deputy Atty. Gen., James V. Cann, Spe. Asst. Atty. Gen., Charleston, for defendant in error.

MILLER, Chief Justice:

The defendant, Dana Persinger, was convicted by a jury of third degree sexual assault in the Circuit Court of Preston County in June of 1977. His primary grounds of error are a constitutional challenge to our rape shield statute, W.Va.Code, 61-8B-12, and the voluntariness of his confession. Other errors involve evidentiary points and the sufficiency of the indictment.

On April 21, 1977, the victim was living with her cousin, the defendant, and his wife and infant child in Preston County, West Virginia. The victim testified that she had lived with the Persingers for approximately three weeks. On the evening of the alleged offense, the victim and the defendant were the only people present in the house. The defendant after making a series of advances toward the victim who was in her bedroom threatened to use a belt on her. The defendant then proceeded to have sexual intercourse with the victim. At the time of the offense, the victim was fourteen years old and the defendant was twenty-one.

After the offense was completed, the victim fled from the Persinger's home to that of a neighbor, Gladys Losh. The neighbor testified that the victim was upset, nervous, and complained that her stomach hurt and that she had a headache. The victim told the neighbor that the defendant had attacked and hurt her, and had warned her that if she told anybody of the offense he would kill her. A second neighbor, who was summoned to the Losh residence, testified that the victim said she had been raped.

Shortly thereafter the defendant's mother-in-law was summoned by the neighbors, and she transported the victim to the Garrett County Memorial Hospital in nearby Oakland, Maryland, where she was examined by a physician. This examination revealed bruising around both breasts and abrasion and redness around the opening of the vagina. In addition a yellow exudate was found in the vagina, which laboratory tests showed to contain sperm. Later that evening the defendant's mother-in-law telephoned a complaint to the Preston County Sheriff's Department.

The defendant was arrested at his home at approximately 10:15 on the evening of April 22, 1977, by a Deputy Sheriff and a Terra Alta City Policeman. Upon arrest the police officers did not take the defendant before a magistrate. Neither did they take him to the Preston County Jail. Rather they transported the defendant to the Terra Alta City Hall for questioning. They arrived at approximately 10:48 p. m., and after the defendant had signed a waiver of rights form, he was questioned about the alleged sexual assault.

As a result of the questioning, the defendant made two statements both of which were tape recorded. The first statement was taken between 12:03 and 12:22 a. m. In it the defendant denied committing the offense. The second statement was taken between 1:39 and 1:48 a. m. In it, the defendant said that he had lied in the first statement, and that he had sexual intercourse with the victim. The defendant was then transported to the Preston County Jail, where he was booked at approximately 2:16 a. m.

At trial, the defendant was not permitted to cross-examine prosecution witnesses on the issue of the victim's past sexual conduct because of the prohibition contained in W.Va.Code, 61-8B-12. On the basis of evidence presented, the jury found the defendant guilty of third degree sexual assault.

I.

The defendant first argues that our rape shield statute, W.Va.Code, 61-8B-12, ¹ is unconstitutional because it infringes upon his right to confront the witness against him as guaranteed by the Sixth Amendment to the United States Constitution and Section 14 of Article III of the West Virginia Constitution. ² The defendant sought to cross-examine the victim about her past sexual behavior. The statute provides basically that the defendant may introduce evidence of the prior sexual conduct with others if the victim makes such conduct an issue in the trial or of the prior sexual history of the victim with the defendant on the issue of consent.

There is no dispute that the victim did not make her prior sexual conduct with third parties an issue at the trial. In State v. Green, W.Va., 260 S.E.2d 257, 261 (1979), we held our rape shield statute constitutional stating that "[a] rape victim's previous sexual conduct with other persons has very little probative value about her consent to intercourse with a particular person at a particular time. That portion of the law which prohibits such evidence is constitutional." We did, however, recognize in Green that there may be limited instances where the broad prohibition against evidence of the victim's prior sexual conduct with persons other than the accused may deny a defendant his constitutional right to effectively confront his accusers:

"[T]here may be unusual cases where the probative value is precisely demonstrated, and outweighs the prejudicial effect of the testimony.... [S]uch evidence, that is specifically, directly related to the act for which a defendant stands charged, must be of a quality that its admission is necessary to prevent manifest injustice and therefore outweigh the State's interest in protecting persons who have been sexually abused, from attempts at besmirchment of their character by ones who have trespassed upon their bodies." Green, at 264.

We recognized that an in camera hearing is the appropriate procedure to determine whether evidence of a victim's past sexual behavior is relevant and material to an accused's consent defense. In light of the judicially-sanctioned procedures set out in Green, the provisions of W.Va.Code, 61-8B-12, limiting the defendant's right to present evidence of the victim's prior sexual conduct are constitutional under the confrontation clause of the Sixth Amendment to the United States Constitution and Section 14 of Article III of the West Virginia Constitution. However, Green involved a case where consent was a relevant issue and the question was whether evidence of the victim's prior sexual relations with third parties was admissible on the consent issue, we held it was not.

Here, consent is not a defense to the third degree sexual assault with which the defendant was charged. ³ At the time of the act of which the victim complains she was fourteen years of age, and the defendant was twenty-one years of age. Thus, the victim, being less than sixteen years of age and at least four years younger than the defendant, is deemed incapable of consent by statute. ⁴ This holding is compatible with cases decided under our prior sexual offense statute, W.Va.Code, 61-2-15, that consent was not a defense to the charge of statutory rape where the victim was under the age of sixteen. State v. Adkins, 106 W.Va. 658, 146 S.E. 732 (1929); State v. Tippens, 91 W.Va. 504, 113 S.E. 751 (1922).

II.

The defendant also claims error in the introduction of his tape recorded confession. We have recognized that "[i]t is the mandatory duty of a trial court, whether requested or not, to hear the evidence and determine in the first instance, out of the presence of the...