State v. Vance

• Decision Date: 19 December 1978
• Docket Number: No. 13820,13820
• Citation: 250 S.E.2d 146,162 W.Va. 467
• Parties: STATE of West Virginia v. Thurman Matthew VANCE.
• Court: West Virginia Supreme Court

Page 146

250 S.E.2d 146

162 W.Va. 467

STATE of West Virginia v. Thurman Matthew VANCE.

No. 13820.

Supreme Court of Appeals of West Virginia.

Dec. 19, 1978.

Syllabus by the Court

1. "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 or a 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).

2. It is a well-established rule of appellate review in this state that a trial court has wide discretion in regard to the admissibility of confessions and ordinarily this discretion will not be disturbed on review.

3. A trial court's decision regarding the voluntariness of a confession will not be disturbed unless it is plainly wrong or clearly against the weight of the evidence.

4. We adopt the "Massachusetts" or "humane" rule whereby the jury can consider the voluntariness of the confession, and we approve of an instruction telling the jury to disregard the confession unless it finds that the State has proved by a preponderance of the evidence it was made voluntarily.

5. In all trials conducted hereafter where a confession or admission is objected to by the defendant at trial or prior to trial on the grounds of voluntariness, the trial court must instruct the jury on this issue if requested by the defendant.

6. A pre-trial orientation meeting, held at the beginning of the term with all members of the newly-called jury panel present, is not a critical stage of the trial proceeding requiring the presence of an accused.

7. At any orientation meeting held in the future, a court reporter must be present to record those proceedings.

Valentine, Wilson & Partain, William G. Wilson and Eric H. O'Briant, Logan, for plaintiff in error.

Chauncey H. Browning, Atty. Gen., and Claude A. Brown, Asst. Atty. Gen., Charleston, for defendant in error.

McGRAW, Justice:

Defendant, Thurman Matthew Vance, appeals a judgment of conviction entered after a jury found him guilty of breaking and entering in violation of W.Va. Code § 61-3-12 (1923). We granted Vance a writ of error and supersedeas and now affirm the judgment.

Vance makes several assignments of error; we begin by addressing his claim that the trial court erred in admitting his confession.

The defendant contended in the trial court that he was assaulted by one of the arresting officers and that he was told by police officials that if he did not confess to the crime he would be sorry. The trial court held the mandatory In camera hearing as to voluntariness outside of the presence of the jury, See e. g., Syl. pt. 1, Spaulding v. Warden, W.Va., 212 S.E.2d 619 (1975) and after hearing all the evidence adduced thereon, both on behalf of the State and the defendant, ruled that the confession was admissible in evidence.

I

As a matter of constitutional law in this country "(t)he State must prove, at least by a preponderance of the evidence, that confessions or statements of an accused which amount to admissions of part or all 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), Citing, Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972), and it is a well-established rule of appellate review in this state that a trial court has wide discretion in regard to the admissibility of confessions and ordinarily this discretion will not be disturbed on review. State v. Starr, supra, and the cases cited therein. This is but another way of expressing the concept, as is the law followed in most jurisdictions, that a trial court's decision regarding the voluntariness of a confession will not be disturbed unless it is plainly wrong or clearly against the weight of the evidence. See 3 C. Torcia, Wharton's Criminal Evidence, § 672, n. 82 (13th ed. 1973).

Although the trial judge made no specific findings of fact on the credibility issues involved, which would have been a preferable procedure, it is clear from the evidence that the required standard was met and the confession used at trial was voluntarily given.

The defendant, however, urges this Court to overrule the recent decision in Starr and hold that the State must prove the voluntariness of the extrajudicial confession, admission or incriminating statement beyond a reasonable doubt as a condition precedent to its admissibility. The United States Supreme Court in Lego v. Twomey, supra, in a 4 to 3 opinion per Mr. Justice White, expressly rejected the argument that a beyond a reasonable doubt standard is constitutionally required under the Due Process Clause of the Fourteenth Amendment. We likewise at this time decline to require a beyond a reasonable doubt standard under the supervisory power of the court or under the state constitution, although we are aware that several state courts currently employ the reasonable doubt standard urged on this Court by the defendant. ¹ Despite our rejection of defendant's argument, we conclude the procedures to be employed by the trial courts in this state for determining the voluntariness of confessions should be clarified.

There is a split of authority on the procedures to be followed in making voluntariness determinations; the disagreement concerns the allocation of responsibility as between the trial court and the jury for determining the voluntariness issue. ² A majority of jurisdictions follow the "Wigmore" or "orthodox" rule. Under this rule, the trial judge makes the final and sole determination as a matter of law as to the voluntariness of the confession. If found to be voluntary, the confession is admitted into evidence and the jury is to consider the voluntariness of the confession only as affecting the weight or credibility to be given it.

In other jurisdictions following the "Massachusetts" or "humane" rule, the trial court makes an initial determination as to voluntariness, and if the court finds the confession voluntary, the jury is instructed that it must find the confession to be voluntary before they can consider it as evidence in the case.

In this jurisdiction there are two lines of authority on the question. ³ As a result of this inconsistency, both approaches are being employed simultaneously in the trial courts of this state. An examination of the records in various cases currently before the Court indicates a lack of uniformity in trial practice; that is, in some cases the trial court judge makes the final determination as to admissibility while in others the jury also considers the voluntariness issue under instructions advising them that they have the right to reject any confession and wholly disregard it in their deliberations if they should find that the confession of the defendant was not freely and voluntarily made. ⁴

We now reconcile the inconsistency relating to the procedure to be employed on the issue of voluntariness by adopting the "Massachusetts" or "humane" rule whereby the jury can consider the voluntariness of a confession, and we approve of an instruction telling the jury to disregard the confession unless it finds that the State has proved by a preponderance of the evidence that it was made voluntarily.

We are concerned, as have been other appellate courts ⁵ adopting the "Massachusetts" or "humane" rule with the constitutional right to a trial by jury on all issues of fact. As the Supreme Court of Vermont recently stated in State v. Harbaugh, 132 Vt. 569, 579, 326 A.2d 821, 827 (1974):

(W)e feel the so-called "orthodox rule" contains aspects of harshness inconsistent with the general administration of criminal law in this jurisdiction. It attaches to the preliminary determination of the court an aura of infallibility which, while it may be consistent with the requirements of the constitution, is not consistent with the general concepts of the right to jury trial.

In this case the defense did not proffer an instruction, and the court did not give any instruction with respect to the confession. ⁶ We must determine whether the failure to instruct the jury on the voluntariness issue constitutes reversible error.

First, we note that there is no Sixth Amendment right to have a jury redetermine the voluntariness issue once the trial judge has decided the matter, Lego v. Twomey, supra, 404 U.S. at 490-91, 92 S.Ct. at 627, 30 L.Ed.2d at 627-28, and as a general rule trial courts have no duty to give instructions Sua sponte on collateral issues not involving an element of the offense being tried. Given the state of law at trial on this issue, we cannot say that the trial court committed reversible error by not on its own motion submitting the voluntariness issue to the jury. However, in all trials conducted hereafter where a confession or admission is objected to by the defendant at trial on the grounds of voluntariness, he is entitled to an instruction upon request.

The writer of this opinion, however, is of the view that the better rule is that the trial court is under a duty to instruct on the issue of voluntariness whether counsel requests it or not. See, e. g., State v. Scott, 200 Neb. 265, 263 N.W.2d 659 (1978); State v. Bray, 106 Ariz. 185, 472 P.2d 54 (1970) (In Banc).

II

The defendant also assigns as error the denial of a pretrial motion to disqualify the entire panel of petit jurors called for service at the January 1975, term of the Circuit Court of Logan County, on the ground that the judge conducted an unrecorded, private orientation meeting with the entire panel on the first day of the jury's service.

The defense does not argue they were purposefully excluded by the trial court from the orientation meeting, rather it is argued that there is no justification for removing a panel of petit jurors from the main court room and that there is no reliable way of ascertaining whether or not improper remarks and statements were made to...