State v. Sugg

Decision Date10 March 1995
Docket NumberNo. 22486,22486
CitationState v. Sugg, 456 S.E.2d 469, 193 W.Va. 388 (W. Va. 1995)
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia, Plaintiff Below, Appellee, v. Marvin D. SUGG, Defendant Below, Appellant.

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 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.2The 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 Millerhe 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 standard for prompt presentment that is similar to the adult prompt presentment requirement.4Although 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).SeeState 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 alsoState 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 shortly before 10:00 p.m. on the night of the robbery and indicated he...

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142 cases
  • State v. Trail
    • United States
    • West Virginia Supreme Court
    • October 07, 2015
    ...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.Syl. pt. 6, State v. Sugg,193 W.Va. 388, 456 S.E.2d 469 (1995). However, we need not apply the Suggfactors in this instance because we do not find the prosecutor's comments were prejudicial.During the mercy phase opening statement by Ms. Trail's counsel, the following relevantestablish the guilt of the accused; and (4) whether the comments were deliberately placed before the jury to divert attention to extraneous matters.Syl. pt. 6, State v. Sugg,193 W.Va. 388, 456 S.E.2d 469 (1995). However, we need not apply the Suggfactors in this instance because we do not find the prosecutor's comments were prejudicial.During the mercy phase opening statement by Ms. Trail's counsel, the following relevant comments were made:I must [seem] like a broken record....
  • Melvin S. v. Ames
    • United States
    • West Virginia Supreme Court
    • April 06, 2020
    ...was unrefuted, and that the victim's mother questioned petitioner about the case but received no answer. Petitioner argues that these statements violated his Fifth Amendment right to remain silent. Petitioner relies on State v. Sugg, 193 W. Va. 388, 456 S.E.2d 469 (1995), where this Court identified the four factors to determine whether an improper comment by the prosecution is so damaging as to require reversal. Those factors are(1) the degree to which the prosecutor's remarks havedetermined by reference to the record in State v. Melvin G.[S.], Case Number 10-F-163." We concur with the habeas court. As stated above, petitioner's arguments for habeas relief are without merit. Petitioner failed to establish, under Sugg, that the prosecution's remarks violated his right to remain silent. He also failed to show that he received ineffective assistance of counsel regarding the failure to move for a judgment of acquittal as to Count One of the indictment, failureextensive; (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.Id. at 393, 456 S.E.2d at 474. Petitioner argues that the prosecution clearly commented on his decision to remain silent, thus satisfying the first prong of Sugg. He states that the prosecution argued that there was no evidence offered to rebut the victim's...
  • Harrison v. Ballard
    • United States
    • West Virginia Supreme Court
    • November 17, 2017
    ...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.Id. at 393, 456 S.E.2d at 474, Syl. Pt. 6. We consider the prosecutor's improper comments in the light of the record on appeal, which reveals that the State's initial closing comprised over thirty pages of the written transcript and its rebuttal was another"It is not enough that prosecutorial remarks are 'undesirable or even universally condemned.' The test is whether the remarks 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Id. at 405, 456 S.E.2d at 486 (citations omitted). Specifically, the Court must consider(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)(1995). However, "[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." Syl. Pt. 5, State v. Sugg, 193 W.Va. 388, 456 S.E.2d 469 (1995). "It is not enough that prosecutorial remarks are 'undesirable or even universally condemned.' The test is whether the remarks 'so infected the trial with unfairness as to make the resulting conviction a denial of...
  • State v. Strock
    • United States
    • West Virginia Supreme Court
    • October 28, 1997
    ...The Court believes that the appellant, by failing to move to suppress the statements in issue, of which he was well aware, prior to trial, effectively waived his right to challenge their admission into evidence. See State v. Sugg, 193 W.Va. 388, 456 S.E.2d 469 (1995). The Court also believes that the appellant's second claim, that the State failed to prove all of the essential elements of the crimes charged and that the defendant's convictions are contrary to the evidence in the case,...
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