State v. Plantz

• Citation: 180 S.E.2d 614,155 W.Va. 24
• Decision Date: 27 April 1971
• Docket Number: No. 12897,12897
• Court: Supreme Court of West Virginia
• Parties: STATE of West Virginia v. Charles Gratton PLANTZ.

Page 614

180 S.E.2d 614

155 W.Va. 24

STATE of West Virginia v. Charles Gratton PLANTZ.

No. 12897.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 2, 1971.

Decided April 27, 1971.

Syllabus by the Court

1. Probable cause to make an arrest without a warrant exists when the facts and the circumstances within the knowledge of the arresting officers are sufficient to warrant a prudent man in believing that an offense has been committed or is being committed.

2. 'An officer, with authority to conserve the peace, may, without a warrant, arrest any person who he, Upon reasonable grounds, believes has committed a felony, though it afterwards appears that no felony was actually perpetrated. This rule applies to a person charged with a felony in a sister state.' Point 3, syllabus, State ex rel. Brown v. Spangler, 120 W.Va. 72, (197 S.E. 360).

3. Action of the trial court in overruling the motion of the defendant to suppress statements and admissions made by him to the assistant prosecuting attorney and the police officers which amounted to a confession of his guilt was correct and proper, when it appeared that such statements and admissions were freely and voluntarily made after the defendant had been advised of his constitutional right to remain silent and that anything he said could be used against him in a court of law and that he has the right while in custody to have an employed or court appointed attorney present when questioned and it also appeared that the defendant waived his right to the assistance of an attorney.

4. It is the function of the trial court, before admitting a confession in evidence, to determine that such confession was voluntarily made.

5. After the trial court determines that a confession is admissible in evidence it becomes the function of the jury to consider the weight and the credibility of the confession.

6. The mere fact that a confession of guilt was made while the accused was in the custody of the police does not render it inadmissible.

7. A statement freely and voluntarily made by an accused while in custody or deprived of his freedom by the authorities and subjected to questioning is admissible in evidence against him if it clearly appears that such statement was freely and voluntarily made after the accused had been advised of his constitutional right to remain silent and that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney and if he can not afford an attorney one will be appointed for him, and that, after he has been so advised, he knowingly and intelligently waives such rights.

8. The general rule is that the voluntary consent of a person who owns or controls premises to a search of such premises is sufficient to authorize such search without a search warrant, and that a search of such premises, without a warrant, when consented to, does not violate the constitutional prohibition against unreasonable searches and seizures.

Arthur T. Ciccarello, James B. McIntyre, Charleston, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., George E. Lantz, Deputy Atty. Gen., Willard A. Sullivan, Cheryl A. Wheeler, Asst. Attys. Gen., Charleston, for defendant in error.

HAYMOND, Judge.

On January 16, 1968, at a regular term of the Intermediate Court of Kanawha County, West Virginia, the grand jury attending that court returned an indictment for murder in the statutory form against the defendant, Charles Gratton Plantz.

On March 22, 1968, the defendant moved the court to suppress all statements, admissions, conversations and declarations made by him to any officer or any member of the staff of the prosecuting attorney on the ground that they were illegally obtained and were involuntary, and to suppress all evidence obtained by any search of the person of the defendant or the premises of his grandmother on the grounds that such evidence was seized without a warrant and that the search of such premises was illegal. After hearings upon the motion in August and September, 1968, the court, by order of October 25, 1968, denied the motion and held admissible the evidence which the defendant moved the court to suppress.

Upon the trial of the indictment, the jury by its verdict rendered November 22, 1968, found the defendant guilty of murder of the first degree with recommendation of mercy. The court overruled the motion of the defendant to set aside the verdict and to grant him a new trial and by final judgment rendered December 4, 1968, sentenced the defendant to confinement in the pententiary of this State for the rest of his natural life.

By its judgment of May 9, 1969, the Circuit Court of Kanawha County, West Virginia, refused to grant the defendant's petition for a writ of error and supersedeas to the final judgment of the Intermediate Court of Kanawha County; and to that judgment of the Circuit Court this Court granted this writ of error and supersedeas upon the application of the defendant. On February 2, 1971 the case was heard upon the record and the written briefs and the oral arguments of the attorneys in behalf of the respective parties and submitted for decision.

About 9:30 o'clock on the morning of December 28, 1967, during an investigation by the Charleston city police of the disappearance of Helen Louise Miller, a nine year old girl, her body was found in a wooded area between the 1400 block of Red Oak Street and Beech Avenue in the city of Charleston, Kanawha County, West Virginia. Certain Mennen toilet articles were found near and beneath the left arm of the body which was nude from the waist down. An autopsy disclosed that the cause of death was three main stab wounds, one in the chest which penetrated the heart, and two in the back, and that the vagina was torn and contained male seminal fluid.

About 5:00 o'clock in the evening of the same day, Richard Belcher, a resident in the area where the body was found, informed the police that about 7:00 o'clock that morning he found on the front seat of his parked automobile a bowie knife and that a hunting knife and scabbard which Belcher kept in the glove compartment of the automobile were missing.

During the investigation of the death, officer Crouse, who was also investigating a robbery, informed the defendant's brother that he wanted to talk with the defendant about the robbery, and about 11:00 o'clock in the morning of December 29, the defendant and his brother went to police headquarters where, except for a brief absence on the part of the brother, they remained until about 7:00 o'clock that evening. While there the defendant telephoned William T. Brotherton, an attorney who had represented him in a previous matter, and informed Brotherton that he had been in the detective bureau all day under questioning and asked him what he could do and Brotherton told him that if he was not under any charge, he could 'get up and walk out'. Following that conversation they left police headquarters and went to the home of the defendant's grandparents in South Charleston where the defendant and his wife were staying temporarily, and where about 8:15 o'clock the same evening the defendant was arrested without a warrant by two Charleston police officers on the robbery charge, was returned to police headquarters, and was booked on that charge about 8:30 o'clock. Some time after the arrest the defendant's brother called Brotherton to tell him that the defendant had been arrested on two charges but Brotherton told him he could not represent the defendant and said that the defendant should ask for a court appointed attorney. About 11:00 o'clock that night Chief of Police Bias telephoned Brotherton at the request of the defendant and Brotherton told Bias that the defendant should seek court appointed counsel and also told the defendant during the same conversation that he could not represent him and that he should 'get the police to have the court appoint you an attorney' and that he 'shouldn't say anything until you have an attorney present.' At that time Brotherton said that he knew the defendant was under arrest for armed robbery and for murder.

The officers who made the arrest testified that en route to police headquarters they advised the defendant of his constitutional rights, that he did not have to say anything, that anything he might say might be used against him in a court of law, that he was entitled to an attorney to be present when questioned by any police officers and that if he did not have the money to employ an attorney the court would appoint one for him free of charge. Upon his arrival at police headquarters the defendant signed a paper which contained an explanation of his constitutional rights and when officer Crouse asked the defendant what Brotherton had advised him in the telephone conversation to do the defendant replied that Brotherton told him to tell what had happened and to be truthful about it or if he did not want to he did not have to say anything to the officers. After this had taken place the defendant was questioned by Jack Huffman, an assistant prosecuting attorney of Kanawha County, and police officers and during the questioning the defendant consulted with his wife, was supplied adequate food and drink, and was in no way mistreated. During the interrogation, the defendant admitted that he had taken a set of Mennen toilet articles and a pair of binoculars from a home near the scene of the crime; that he had pilfered the hunting knife from the glove compartment of the Belcher car and he identified the bowie knife found in the Belcher car as being the knife that he had purchased from the Cohen drug store; and he admitted that he had used the Belcher knife to stab his victim. He told the officers that when he got to the home of his grandparents in South Charleston he discovered blood on his clothing, that he hid his shirt and trousers in a clothes hamper in the basement, and that he also hid the binoculars in...