State v. Sugg, No. 22486

• Court: Supreme Court of West Virginia
• Writing for the Court: CLECKLEY; BROTHERTON; FOX
• Citation: 456 S.E.2d 469,193 W.Va. 388
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Marvin D. SUGG, Defendant Below, Appellant.
• Docket Number: No. 22486
• Decision Date: 10 March 1995

Page 469

456 S.E.2d 469 193 W.Va. 388 STATE of West Virginia, Plaintiff Below, Appellee,
v.
Marvin D. SUGG, Defendant Below, Appellant. No. 22486. Supreme Court of Appeals of
West Virginia. Submitted Jan. 18, 1995.
Decided March 10, 1995.

Page 474

[193 W.Va. 393] Syllabus by the Court

1. The validity of a juvenile's waiver of his or her rights should be evaluated in light of the totality of the circumstances surrounding the waiver, and the presence or absence of the parents is but one factor to be considered in reaching this determination.

2. Where neither legal counsel nor the parents are present during interrogation, the greatest care must be taken by the trial court to assure that the statement of the juvenile is voluntary, in the sense not only that it was not coerced or suggested, but that it was not the product of ignorance of rights or of adolescent fantasy, fright, or despair.

3. The absence of a parent or counsel when a juvenile waives his rights is not necessarily a bar to a voluntary Miranda waiver and ultimately a confession.

4. The appropriate inquiry in regard to parental notification is whether, after a careful review of the record in its entirety, the reasons underlying the delay in notifying the parents, as agreed to by the juvenile, set forth a sufficient factual basis which support a finding that the delay was initiated or suggested by the juvenile and the police did nothing during the period of the delay to take advantage of the juvenile's youth and inexperience. If a juvenile affirmatively requests that his parents not be notified until after he talks to the police and this request is not coerced or suggested by the police, a juvenile cannot take advantage of that discrete period of time it takes to conduct the interview.

5. A judgment of conviction will not be set aside because of improper remarks made by a prosecuting attorney to a jury which do not clearly prejudice the accused or result in manifest injustice.

6. Four factors are taken into account in determining whether improper prosecutorial comment is so damaging as to require reversal: (1) the degree to which the prosecutor's remarks have a tendency to mislead the jury and to prejudice the accused; (2) whether the remarks were isolated or extensive; (3) absent the remarks, the strength of competent proof introduced to establish the guilt of the accused; and (4) whether the comments were deliberately placed before the jury to divert attention to extraneous matters.

7. " 'Sentences imposed by the trial court, if within statutory limits and if not based on some unpermissible factor, are not subject to appellate review.' Syl. pt. 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982)." Syllabus Point 2, State v. Farmer, 193 W.Va. 84, 454 S.E.2d 378 (1994).

8. Rule 11 of the West Virginia Rules of Criminal Procedure requires that a judge explore a plea agreement once disclosed in open court; however, it does not license discussion of a hypothetical agreement that he may prefer.

Mary Beth Kershner, Asst. Pros. Atty., Charleston, for appellee.

Jack W. DeBolt, Charleston, for appellant.

CLECKLEY, Justice:

The appellant and defendant below, Marvin D. Sugg, was convicted of aggravated robbery and was sentenced to forty-five years in prison. He appeals his conviction on three grounds: (1) his incriminating statement to police on the night of the arrest should have been excluded at trial because the defendant did not make a knowing and intelligent waiver of his Miranda rights ¹ and the police failed to immediately present him to a magistrate and notify his parents; (2) evidence regarding coin wrappers was improperly admitted at trial; and (3) the sentence was disproportionate to the crime committed and was imposed for retaliatory reasons. For the following reasons, we reject these challenges and affirm the judgment of the circuit court.

I.

FACTS

On December 5, 1992, a Chevron Station in South Charleston was robbed by a young African-American male. After being notified of the robbery, Sergeant Steve Young of the

Page 475

[193 W.Va. 394] South Charleston Police Department observed a young African-American male pedestrian (later identified as the defendant) approximately one-fourth mile from the Chevron Station. Sergeant Young, who was dressed in civilian clothes, emerged from his unmarked car with his gun drawn and ordered the defendant to halt. The defendant fled and was later apprehended by Sergeant Young with the assistance of other South Charleston police officers.

The police read the defendant the Miranda warnings while held face down on the ground with his hands cuffed behind his back. When the defendant was lifted from the ground, the officers discovered a .22 caliber chrome plated revolver. ² The defendant was then transported to the South Charleston Police Station. After arriving at the station at approximately 10:00 p.m., the police discovered the defendant was only seventeen years old. The State claims that shortly after arriving at the station, the defendant told Lieutenant James Miller he wanted to talk. Counsel for the defendant contends the defendant initially denied any involvement with the Chevron robbery and only changed his statements after further interrogation by the police. This interrogation allegedly took place after the police were told the defendant was a minor.

An information sheet, apparently completed with the cooperation of the defendant, asked whether the defendant was informed of his Miranda rights and whether he waived them. The defendant signed a waiver of rights form outlining his Miranda rights at 10:36 p.m. and placed his initials after every statement explaining his rights. The police took the defendant's formal statement between 10:50 p.m. and 12:45 a.m. It was not until after the police obtained the defendant's statement that the police called the defendant's parents and presented the defendant to the magistrate. Over defense objections, the defendant's confession was admitted at trial.

Because of the gravity of the alleged crime, the defendant's case was transferred from juvenile court to circuit court so that the defendant could be tried as an adult. Following the presentation of the evidence, the jury found the defendant guilty of aggravated robbery with the use of a firearm. By order dated February 4, 1994, the defendant was sentenced to a determinate sentence of forty-five years.

In this appeal, this Court has decided to review the following assignments of error: (1) was the defendant's statement properly admitted at trial; (2) was the evidence of coin wrappers found on the defendant at the time of his arrest properly admitted and argued at trial; and (3) was the sentence imposed upon the defendant disproportionate to the offense and exacted by the judge for retaliatory reasons.

II.

DEFENDANT'S STATEMENT

The defendant contends the admission of his incriminating statement to the police after arriving at the police station on the night of his arrest constitutes reversible error. According to the defendant, his statement should be excluded because: (1) the police interrogated him without the presence of a parent or guardian and did not promptly present him to a magistrate; (2) the police failed to immediately notify his parents of his arrest; and (3) he did not knowingly and voluntarily waive his Miranda rights. We will address each of the defendant's contentions.

A.

Waiver of Rights Under W.Va.Code, 49-5-8(d)

The defendant argues the police violated the statutory prompt presentment requirement and interrogated him without the presence of his parents or counsel. W.Va.Code, 49-5-8(d) (1982), ³ details a juvenile

Page 476

[193 W.Va. 395] standard for prompt presentment that is similar to the adult prompt presentment requirement. ⁴ Although the two standards are similar, it is important to underscore the fact that the juvenile prompt presentment requirement is more rigorous than the general criminal standard for prompt presentment of an adult under W.Va.Code, 62-1-5 (1965); W.Va.R.Crim.P. 5(a). See State v. Ellsworth J.R., 175 W.Va. 64, 331 S.E.2d 503 (1985) (noting the strict requirement for juvenile presentment); State v. Moss, 180 W.Va. 363, 376 S.E.2d 569 (1988) (same). In Ellsworth J.R., we recognized that the primary purpose for the additional juvenile protection is "the likelihood that a juvenile who commits a serious crime may be transferred to the adult jurisdiction of the circuit court[,] ... there is a need to ensure that [a juvenile defendant's] constitutional rights are preserved[.]" 175 W.Va. at 69, 331 S.E.2d at 508. If "it appears that the primary purpose of the delay was to obtain a confession from the juvenile[,]" the confession is inadmissible. Syl. pt. 9, in part, State v. Moss, supra. See also State v. Ellsworth J.R., supra.

The only evidence presented at the suppression hearing regarding the arrest and the immediate circumstances after the defendant was taken into custody came from the police and the defendant's parents. The defendant did not testify at the suppression hearing or at the trial. The parents of the defendant merely confirmed the date and time the police contacted them and their subsequent efforts to determine the whereabouts of the defendant. Uncontradicted evidence reveals the defendant indicated he wanted to talk to the police and wanted neither a lawyer nor his parents present at the time he discussed the case with the police. Based on this evidence, the trial judge ultimately found the defendant's statement admissible.

The defendant argued at the suppression hearing, as he does before this Court, that the statement should be excluded because of the prompt presentment delay, the parental notification delay, and police interrogation without the presence of a parent or counsel. These contentions collapse in the wake of precedent and the facts of this case.

The record indicates the defendant arrived at the police station...