State v. Potter
| Decision Date | 11 October 1996 |
| Docket Number | No. 23406,23406 |
| Citation | 478 S.E.2d 742,197 W.Va. 734 |
| Parties | STATE of West Virginia, Plaintiff Below, Appellee, v. Larry POTTER, Defendant Below, Appellant. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. A defendant, in order to assert his or her right to counsel during a police interrogation, must make some affirmative indication that he or she desires to speak with an attorney or wishes to have counsel appointed. Absent such an affirmative showing by the defendant, the right to counsel is deemed waived.
2. When a suspect willingly goes to the police station for questioning at the request of the investigating officer, and the suspect responds that he or she wishes to give a statement despite the officer's warnings regarding the severity of the allegations against the suspect, such statement is admissible as a voluntary confession, unless the suspect can show that he or she was in custody or that the statement was not voluntary.
3. A communication will be privileged, in accordance with W. Va.Code, 57-3-9 (1992), if four tests are met: (1) the communication must be made to a clergyman; (2) the communication may be in the form of a confidential confession or a communication; (3) the confession or communication must be made to the clergyman in his professional capacity; and (4) the communication must have been made in the course of discipline enjoined by the rules of practice of the clergyman's denomination.
4. If evidence of religion is offered for purposes other than impairing or enhancing a witness's credibility, Rule 610 of the West Virginia Rules of Evidence does not require its exclusion.
5. For religious belief or affiliation evidence to be admissible, the trial court must make the following findings: (1) the evidence of religion is offered for a specific purpose other than to show generally that the witness's credibility is impaired or enhanced; (2) the evidence is relevant for that specific purpose; (3) the trial court makes an on-the-record determination under Rule 403 of the West Virginia Rules of Evidence that the probative value of the evidence was not substantially outweighed by its potential for unfair prejudice; and (4) the trial court, if requested, delivers an effective limiting instruction advising the jury of the specific purpose(s) for which the evidence may be used. If these elements are met, it may be presumed that the complaining party was protected from undue prejudice.
Dawn E. Warfield, Deputy Attorney General, Charleston, for Appellee.
Deborah Lawson, Public Defender, Martinsburg, for Appellant.
The defendant below and appellant herein, Larry Potter, appeals a jury verdict entered June 1, 1995, by the Circuit Court of Morgan County, which found him guilty of three counts of first degree sexual assault and three counts of sexual abuse by a custodian. He also appeals a final order of the Circuit Court of Morgan County, dated August 14, 1995, sentencing him to three sentences of not less than fifteen years nor more than thirty-five years for three counts of first degree sexual assault and three sentences of not less than five years nor more than fifteen years for three counts of sexual abuse by a custodian. The circuit court ordered the three first degree sexual assault sentences to run consecutive to each other, and the three sexual abuse by a custodian sentences to run concurrent with the respective sexual assault sentences to which they relate.
On appeal to this Court, the defendant asserts the circuit court erred by: (1) admitting into evidence the defendant's confession where the interrogating police officer continued his interrogation after the defendant allegedly invoked his right to counsel; (2) permitting the Reverend Martin Rudolph to testify in violation of W. Va.Code, 57-3-9 (1992), the clergy-communicant privilege; and (3) allowing the State to elicit, on cross-examination, evidence regarding the defendant's religious beliefs. Upon a review of the record, we find no reversible error and affirm the decision of the circuit court.
In 1991, seven-year-old Joshua H., 1 his two sisters, and his parents began attending the Paw Paw Bible Church in Paw Paw, West Virginia, after Joshua's mother, Tammy H., had received counseling from the church's pastor, Larry Potter. Mr. Potter and his wife soon became friends with Joshua's family, and the two families often visited in each other's homes and had dinner together.
Mr. Potter also befriended Joshua and one of his sisters, taking them places and inviting them to spend the night at the apartment Mr. Potter shared with his wife. After a period of time, Mr. Potter began inviting only Joshua to spend the night. These overnight visits progressed from one night per week to approximately two nights per week. During these visits, Joshua slept on a mattress on the Potters' basement floor. Joshua told his mother that Mr. Potter often slept on the mattress with him and engaged in anal intercourse with him on at least three or four occasions. Joshua also indicated he was afraid to report this abuse earlier because Mr. Potter allegedly told him he would regret revealing this information.
Tammy H. reported the allegations of sexual abuse to the Morgan County Sheriff's Department in the fall of 1993. In October, 1993, Morgan County Chief Deputy John Ketterman began an investigation of Mr. Potter because the Sheriff's Department had received numerous reports alleging that Mr. Potter had sexually abused several young boys, including Joshua. After interviewing Joshua, Deputy Ketterman asked Mr. Potter to meet with him at the Morgan County Sheriff's Office; Deputy Ketterman desired to speak with Mr. Potter to inform him of the numerous allegations and the possible upcoming charges of sexual abuse.
On October 27, 1993, Mr. Potter went to the Sheriff's Office to speak with Deputy Ketterman. It seems Deputy Ketterman informed Mr. Potter of the sexual abuse allegations, reiterated the severity of the charges, and suggested that he leave the police station without speaking further to Deputy Ketterman. 2 Apparently, Mr. Potter then indicated he wanted to speak to Ketterman because he "had some things that he wanted to get off of his chest." At that point, Deputy Ketterman left the interrogation room to obtain a tape recorder so he could record Mr. Potter's statement. 3
Upon returning to the interrogation room, Deputy Ketterman read Mr. Potter his Miranda rights 4 and obtained a signed waiver of these rights, including Mr. Potter's right to counsel. Deputy Ketterman then reiterated Mr. Potter's right to have an attorney present before proceeding with questioning and asked Mr. Potter whether he understood his rights. 5 Following this exchange, Mr Potter admitted to sexually assaulting Joshua by way of three or four incidents of anal intercourse. After Mr. Potter completed his statement, Deputy Ketterman informed him that he could either wait while the secretary typed the statement and read and sign it that day, or he could return the next day to read and sign the statement. Mr. Potter remained at the Sheriff's Office while the statement was prepared.
The next day, a warrant was obtained for Mr. Potter's arrest. Following his arrest, Mr. Potter was held in the Eastern Regional Jail in Martinsburg, West Virginia. On November 2, 1993, Mr. Potter received a visit from the Reverend Martin Rudolph, Minister of the Woodrow Union Church in Paw Paw, West Virginia. Reverend Rudolph comforted and consoled Mr. Potter, and the two men prayed together. It appears that Mr. Potter also discussed with Reverend Rudolph the sexual assault allegations and Mr. Potter's involvement in those episodes. It is unclear whether Mr. Potter believed this conversation to be private and confidential or whether he gave Reverend Rudolph permission to disclose this information in order to help others. Mr. Potter was subsequently released from the Eastern Regional Jail and placed on home detention.
On January 11, 1994, a Morgan County grand jury returned an indictment charging 6 Mr. Potter with five counts of first degree sexual assault in violation of W. Va.Code, 61-8B-3 (1991), 7 and five counts of sexual abuse by a custodian, in violation of W. Va.Code, 61-8D-5 (1991). 8 Suppression hearings were held in this case with regard to the defendant's motion to suppress the statement he gave to Deputy Ketterman. Mr. Potter asserted that he invoked his right to counsel and that Deputy Ketterman continued his interrogation despite the defendant's request for an appointed attorney. By order dated May 5, 1995, the circuit court denied the defendant's motion to suppress and ruled, as it had during the April 7, 1995, suppression hearing, that the defendant did not invoke his right to counsel and that Deputy Ketterman did not improperly interrogate him in violation of his right to counsel.
The defendant stood trial, by jury, for these charges in Morgan County on April 17, 1995. During the trial, the State introduced the defendant's statement that he gave to Deputy Ketterman in October of 1993. Counsel for the defendant raised an objection to this evidence, claiming the statement was impermissibly obtained after the defendant invoked his right to counsel 9; the trial court overruled this objection on the basis of its earlier ruling that such statement would be admissible. In addition, the defendant testified as to his religious background and prior profession as a pastor. Upon cross-examination, the State inquired as to the defendant's religious beliefs and whether he believed that his actions toward Joshua constituted a sin for which he had received forgiveness from God. Defense counsel objected to the State's inquiry arguing that evidence of the defendant's religious beliefs was irrelevant and inflammatory. 10 The trial court overruled the defendant's objection and...
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