State v. Stout
| Decision Date | 15 January 1982 |
| Docket Number | No. 14757,14757 |
| Citation | 285 S.E.2d 892,169 W.Va. 90 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia v. Clyde Junior STOUT. |
Syllabus by the Court
"A preliminary hearing, when accorded an accused by a justice of the peace pursuant to Code, 1931, 62-1-8, as amended, is a critical stage in a criminal proceeding to which the right to counsel, guaranteed by the Sixth Amendment to the Constitution of the United States, attaches and a denial of counsel in those circumstances constitutes error for which a defendant is entitled to relief, unless it is clear beyond a reasonable doubt that the denial of counsel was harmless error." Syl. pt. 3, Spaulding v. Warden, West Virginia State Penitentiary, W.Va., 212 S.E.2d 619 (1975).
Dailey & Miller and Lawrance S. Miller, Jr., Kingwood, for appellant.
Chauncey H. Browning, Atty. Gen. and Paula Dean Maas, Asst. Atty. Gen., Charleston, for appellee.
The appellant, Clyde Junior Stout, was convicted in the Circuit Court of Preston County of third degree sexual assault. On the basis of the presentence report, the appellant was sentenced to confinement in the West Virginia State Penitentiary for a period of not less than one nor more than five years.
The appellant lived with a woman named Mary Cuppett and her four children for approximately one year. On 2 January 1979 the appellant and Mrs. Cuppett terminated their relationship, and the appellant left her home. That evening, Mrs. Cuppett complained to an officer of the Terra Alta Police Department that the appellant had sexually assaulted her ten-year-old daughter, Janet Leigh Kight, on 16 October 1978. A warrant for the appellant's arrest was issued on 10 January 1979; he learned of the warrant and turned himself in on 15 January 1979. Taken before a magistrate, the appellant indicated that he had counsel to represent him. The preliminary hearing was then scheduled for 13 February 1979.
On 13 February 1979 attorney Clark Frame called the magistrate's office, told them that he represented the appellant, and requested a continuance because he could not be at his client's preliminary hearing. The magistrate denied the request and proceeded with the preliminary hearing in the absence of the appellant's attorney. At the conclusion of the hearing, the magistrate found probable cause and bound the appellant over to the Grand Jury which indicted him for first, second and third degree sexual assault on 13 March 1979.
After pleading not guilty to all three counts the appellant was tried and found guilty of third degree sexual assault. The State's case consisted of testimony from the investigating officer, an examining doctor, and the victim. The defense presented only a doctor who had given the victim a quick examination and the appellant who denied everything. The sole issue on appeal is whether holding the preliminary hearing in the absence of the appellant's attorney constituted reversible error. 1
In West Virginia a preliminary hearing is not constitutionally required. State ex rel. Rowe v. Ferguson, W.Va., 268 S.E.2d 45 (1980). However, when a preliminary hearing is held it is regarded as a "critical stage" at which a defendant has a right to counsel under the Sixth Amendment. Spaulding v. Warden, West Virginia State Penitentiary, W.Va., 212 S.E.2d 619 (1975).
Since the appellant had a constitutional right to counsel during his preliminary hearing, holding that hearing in the absence of counsel was error. We do not, of course, pass upon the propriety of counsel's failure to appear. Under our doctrine of harmless constitutional error, the State can avoid a reversal only by a showing that the error was harmless beyond a reasonable doubt. See State v. Boyd, W.Va., 233 S.E.2d 710 (1977).
In State v. Bradley, W.Va., 260 S.E.2d 830 (1979), this Court found the failure to provide counsel at a preliminary hearing to be harmless error. The defendant had shot and killed a man with whom he had a long running feud. Since there were many witnesses to the shooting and since the defendant made a voluntary confession shortly after being arrested, the only purpose...
To continue reading
Request your trial
-
State v. Sheppard, 15901
...309 (1978) and Webb v. State, 533 S.W.2d 780 (Tex.Cr.App.1976) (demand made on day of trial held per se untimely).11 State v. Stout, 169 W.Va. 90, 285 S.E.2d 892 (1982); State ex rel. Rowe v. Ferguson, supra; Gibson v. McKenzie, 163 W.Va. 615, 259 S.E.2d 616 (1979); Lycans v. Bordenkircher,......
-
State v. Gravely, 15545
...to show that the error was harmless beyond a reasonable doubt." 160 W.Va. at 245, 233 S.E.2d at 718. Similarly, in State v. Stout, 169 W.Va. 90, 285 S.E.2d 892 (1982), this Court stated: "Under our doctrine of harmless constitutional error, the State can avoid a reversal only by a showing t......
-
Desper v. State
...is held, it is regarded as a "critical stage" at which a defendant has a constitutional right to counsel. State v. Stout, --- W.Va. ---, 285 S.E.2d 892, 893 (1982). In Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), Justice Brennan, writing for the majority, set forth ......
-
Bartz v. Wheat
... ... From this order, the appellants, Rickey and Martin Bartz, appeal ... "This State is committed to and has repeatedly followed the family purpose doctrine." Bell v. West, 284 S.E.2d 885 (W.Va.1981). Essentially, the family purpose ... ...