State v. Rissler

• Decision Date: 07 October 1980
• Docket Number: No. 14116,14116
• Citation: 270 S.E.2d 778,165 W.Va. 640
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Donald G. RISSLER, Jr.

Page 778

270 S.E.2d 778

165 W.Va. 640

STATE of West Virginia v. Donald G. RISSLER, Jr.

No. 14116.

Supreme Court of Appeals of West Virginia.

Oct. 7, 1980.

Syllabus by the Court

1. It is not invariably necessary that a person under interrogation make an explicit oral or written statement of waiver in order that it may be properly concluded as a matter of law that the person has waived the right to counsel as guaranteed by W.Va.Const. art. III § 14 and U.S.Const. amend. VI, or has waived the right to remain silent as guaranteed by W.Va.Const. art. III § 5 and U.S.Const. amend. V.

2. In the trial of a criminal case, the State must prove, at least by a preponderance of the evidence, that a person under custodial interrogation has waived the right to remain silent and the right to have counsel present.

3. Once a person under interrogation has exercised the right to remain silent guaranteed by W.Va.Const. art. III § 5, and U.S.Const. amend. V, the police must scrupulously honor that privilege. The failure to do so renders subsequent statements inadmissible at trial.

4. The purpose of vouching the record is to place upon the record excluded evidence, or to show upon the record what the excluded evidence would have proved in order that the appellate court may properly evaluate the correctness of the trial court's ruling excluding it.

Radosh & Askin and Steven M. Askin, Martinsburg, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., Lawrence R. Frail, Asst. Atty. Gen., Charleston, for defendant in error.

CAPLAN, Justice:

At the January Term, 1977, of the Circuit Court of Jefferson County, the grand jury returned an indictment charging the appellant, Donald G. Rissler, Jr. with breaking and entering the High's Dairy Products Store, located in the Town of Ranson, in Jefferson County. After entering a plea of not guilty, the appellant was tried before a jury on March 16, 1977 and found guilty as charged in the indictment. Appellant's motion to arrest judgment, set aside the verdict, and grant a new trial was denied and he was sentenced to an indeterminate term of one to ten years in the State Penitentiary at Moundsville.

Appellant challenges the correctness of the trial court's rulings on the admissibility of certain oral and written statements he gave to authorities shortly after his arrest. Appellant also assigns other errors relating to the conduct of the trial.

During the early morning hours of January 9, 1977, members of the West Virginia State Police and the police forces of the Towns of Ranson and Charles Town responded to a report of a fire along State Route 9 in Jefferson County. Although they found no evidence of a fire at the address to which they had been summoned, their attention was drawn to the High's Dairy Store located across State Route 9 from the location of the reported fire. Two individuals were observed leaving the store and fleeing into an orchard located in the vicinity. Trooper W. F. Shoop of the West Virginia State Police gave chase and apprehended the appellant and another person in a field behind the store.

After being apprehended and placed in a police cruiser the appellant made an incriminating oral statement to Trooper Shoop. Prior to the commencement of the trial of the case defense counsel made a motion to suppress that oral statement. After an in camera hearing the trial judge concluded that the oral "confession" had been freely and voluntarily made after the appellant had been advised of his constitutional rights and had knowingly and intelligently waived them.

Trooper Shoop testified that shortly after he apprehended the appellant and was walking him toward the cruiser, he was met by Patrolman Nichols of the Charles Town Police Department. It was at that time Shoop said, "... I advised the two subjects that they had these constitutional rights." And, although the trooper testified, "I just advised him of his rights from memory. I didn't read from anything," he was confident he told the appellant and the other arrestee that they had the right to remain silent, that anything they said could be used against them in court, that they had the right to an attorney and if they couldn't afford an attorney one would be appointed for them, and that they had a right to stop answering questions at any time until they had an opportunity to talk to a lawyer. When asked what response the appellant made, Shoop testified the appellant had indicated he understood his rights. The appellant was placed in the cruiser's back seat, and Shoop got in the front seat. Shoop testified:

"I asked Donnie first off I said Donnie, I thought you had straigtened up. Donnie said, 'You wouldn't believe my story if I did tell you.' Then I asked Donnie, I said, 'Did you take anything out of the store or did you hide it before I caught you?' Donnie replied ... 'after we got inside, we seen all the police crusiers and we didn't have time to get anything.' "

Patrolman Nichols' version of these events was consistent with Trooper Shoop's with the significant exception that Nichols testified the appellant made no response after being informed of his rights.

In contrast to both Shoop and Nichols appellant testified that he told Shoop he wanted to talk to an attorney. Appellant's testimony also differs from Shoop's as to what happened in the cruiser. He says that when Shoop asked him if they had taken anything out of the store, he had replied, "I don't want to talk about it, I want to talk to a lawyer first."

The question before this Court is whether the evidence supports the trial court's conclusion that appellant knowingly and intelligently waived his right to remain silent and his right to have counsel present.

The starting point for any consideration of this question is Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966):

"If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel." Miranda, supra, 384 U.S. at 475, 86 S.Ct. at 1628.

While Miranda acknowledged that an express statement of waiver followed by the giving of a statement could constitute a waiver, it also indicated that a waiver would not be presumed from the silence of the accused after warnings or from the fact a confession was eventually obtained, and it left open the question of whether an express statement is always necessary to support a finding of waiver.

Then, in 1978, the Supreme Court of North Carolina held that Miranda requires an "explicit" statement of waiver. State v. Butler, 295 N.C. 250, 244 S.E.2d 410 (1978).

The United States Supreme Court vacated this judgment ¹ in part by holding that an explicit or express ² statement of waiver is not invariably necessary to support a conclusion that a defendant has waived one of the "Miranda " rights. North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979). ³

Butler establishes that under some circumstances waiver can be inferred from the actions and words of the person interrogated, and that even absent an explicit statement a court may find an intelligent and understanding waiver of a constitutional right.

While the holding of the United States Supreme Court in Butler is binding on this Court as a matter of federal constitutional law, the appellant urges this Court to adopt the position taken by the Supreme Court of North Carolina and hold that W.Va.Const. art. III §§ 14 and 5 require an explicit waiver of the right to counsel and the right to remain silent. See Fn.1 this opinion. We have not heretofore had occasion to address this question.

We believe the more reasonable course of action is to determine the existence of a waiver upon all of the facts and circumstances of the individual case, ⁴ and we are unwilling to hold that in the absence of an explicit waiver there can be no circumstances in which a valid waiver can be found based on inferences drawn from the words and actions of the person interrogated. Accordingly, we hold that an explicit oral or written statement is not invariably necessary to support a conclusion that a person under interrogation has waived the right not to "be a witness against himself" as guaranteed by W.Va.Const. art. III § 5; and we hold that an explicit, written or oral statement is not invariably necessary to support a conclusion that a person under interrogation has waived the right to the assistance of counsel guaranteed by W.Va.Const. art. III § 14.

Since in the instant case there was no explicit waiver by the defendant of his "Miranda rights", we must determine whether or not the inferences that can be properly drawn from the State's evidence are sufficient to constitute a waiver.

This Court has not addressed the question of the State's burden in proving a waiver of "Miranda rights". However, in regard to the determination of voluntariness of confessions we have held that:

"The State must prove, at least by a preponderance of the evidence, that confessions or statements of an accused which amount to admissions of all are part of an offense were voluntary before such may be admitted into the evidence of a criminal case." Syl. pt. 5, State v. Starr, W.Va., 216 S.E.2d 242 (1975); Syl. pt. 1, State v. Vance, W.Va., 250 S.E.2d 146 (1978).

Defendant urges us to hold that the state is required to prove the waiver of "Miranda rights" beyond a reasonable doubt. We decline to do so. We believe that the burden of proof by a preponderance of the evidence as enunciated in Starr and Vance is appropriate to this question. Accordingly, we hold that in the trial of a criminal case the State must prove, at least by a preponderance of the evidence, that a person under custodial interrogation has waived the right to remain silent or the right to have counsel present. U. S. v....