State v. Woodson

• Decision Date: 08 June 1989
• Docket Number: No. 18321,18321
• Citation: 382 S.E.2d 519,181 W.Va. 325
• Parties: STATE of West Virginia v. Dewaine WOODSON.
• Court: West Virginia Supreme Court

Page 519

382 S.E.2d 519

181 W.Va. 325

STATE of West Virginia v. Dewaine WOODSON.

No. 18321.

Supreme Court of Appeals of West Virginia.

June 8, 1989.

Syllabus by the Court

1. "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." Syllabus Point 3, State v. Rissler, 165 W.Va. 640, 270 S.E.2d 778 (1980).

2. Rule 404(a)(2) of the West Virginia Rules of Evidence essentially codifies the common law rules on the admission of character evidence of the victim of a crime. In particular, under our traditional rule, a defendant in a homicide, malicious wounding, or assault case who relies on self-defense or provocation may introduce evidence concerning the violent or turbulent character of the victim, including prior threats or attacks on the defendant. This is reflected by State v. Louk, 171 W.Va. 639, 301 S.E.2d 596(1983):

"In a prosecution for murder, where self-defense is relied upon to excuse the homicide, and there is evidence showing, or tending to show, that the deceased was at the time of the killing, making a murderous attack upon the defendant, it is competent for the defense to prove the character or reputation of the deceased as a dangerous and quarrelsome man, and also to prove prior attacks made by the deceased upon him, as well as threats made to other parties against him; and, if the defendant has knowledge of specific acts of violence by the deceased against other parties, he should be allowed to give evidence thereof." (Citations omitted).

3. Under Rule 405(b) of the West Virginia Rules of Evidence, a defendant in a criminal case who relies on self-defense or provocation may introduce specific acts of violence or threats made against him by the victim, and if the defendant has knowledge of specific acts of violence against third parties by the victim, the defendant may offer such evidence.

4. Where a police officer is present where he has a lawful right to be and sees in plain view an object that constitutes contraband or evidence of a crime, if this object is also in a public place, it may be seized without a warrant.

5. The initial detention or seizure of a person must be found to have been lawful in order to justify the subsequent seizure of his clothing.

James T. Kratovil, Kratovil & Kratovil, Weston, for Dewaine Woodson.

Charles G. Brown, Atty. Gen., J. Bradley Russell, Sr. Asst. Atty. Gen., Kevin Thompson, Asst. Atty. Gen., Charleston, for State of W.Va.

MILLER, Justice:

The defendant, Dewaine Woodson, appeals a verdict by a jury in the Circuit Court of Lewis County convicting him of unlawful assault under W.Va.Code, 61-2-9. The defendant on appeal challenges the trial court's ruling that an oral statement he made after he invoked his right to remain silent was admissible. We agree with the defendant's position and find reversible error. The defendant also assigns as error other rulings made by the trial judge at the suppression hearing, which rulings we find to be correct. The State makes a cross-assignment of error regarding the suppression of an oral statement made by the defendant, which we do not consider.

I.

During the early morning hours of June 27, 1986, Officers Donald Rohrbough and Timothy Greiner of the Weston City Police Department responded to a citizen's call and found the beaten body of Steven Simons lying in hedges near Route 119 in Weston. The police were told by the neighbors that at approximately 3:00 a.m., a light colored van pulled up and parked outside the home of Lucille Malone. Two individuals got out of the van and began fighting. Shortly thereafter, one of them drove off in the van toward downtown Weston.

The police located the van and the defendant at 375 John Street in Weston. Upon knocking on the front door of the house, the officers saw the defendant come out of the side door. They obtained the defendant's written consent to search his van and, while the officers were proceeding with the search, the defendant blurted out that he had "kicked the fagot's ass." The officers gave the defendant his Miranda rights. ¹ The defendant was given a written Miranda form, and he indicated on that form that he did not want to speak with the police officers.

The defendant was taken by the officers to the Lewis County jail where the police had radioed for a magistrate to meet them. While they were waiting for the magistrate to arrive, Officer Rohrbough asked the defendant if he wanted to make a statement. The defendant said that he did not wish to make a written statement because he was unable to write, but that he would talk to Officer Rohrbough. He then told the officer about the altercation.

The defendant appeared before a magistrate and indicated that he wished to have counsel appointed to represent him. Thereafter, the police seized the clothing worn by the defendant at the time of his arrest.

At a suppression hearing conducted on April 7, 1987, the trial judge ruled that the oral statements made by the defendant at John Street should be suppressed. The trial judge further ruled, however, that neither the oral statements made by the defendant at the Lewis County jail nor the clothing worn by the defendant at the time of his arrest would be suppressed.

II.

The defendant first contends that the trial judge erred by allowing the oral statements he made at the Lewis County jail to be admitted into evidence. The defendant asserts that he had invoked his right to silence and that the police officers did not honor that right. The State, however, asserts that the defendant voluntarily made the statement at the jail and that the further inquiry by the police officers was not an attempt to undermine the intent of the defendant to remain silent.

The United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), recognized the procedure which must be followed once an individual has been given the warnings of the right to remain silent and the right to counsel. The Court clearly stated:

"If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise." 384 U.S. at 474, 86 S.Ct. at 1627, 16 L.Ed.2d at 723.

The Supreme Court further observed in Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 326, 46 L.Ed.2d 313, 321 (1975), that the admissibility of statements made after an individual has invoked his right to remain silent "depends under Miranda on whether his 'right to cut off questioning' was 'scrupulously honored.' " The Court stated that "to permit the continuance of custodial interrogation after a momentary cessation would clearly frustrate the purposes of Miranda by allowing repeated rounds of questioning to undermine the will of the person being questioned." 423 U.S. at 102, 96 S.Ct. at 326, 46 L.Ed.2d at 320.

Consistent with these Supreme Court decisions, we held in Syllabus Point 3 of State v. Rissler, 165 W.Va. 640, 270 S.E.2d 778 (1980):

"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."

See also Syllabus Point 5, State v. Farley, 167 W.Va. 620, 280 S.E.2d 234 (1981).

The evidence from the suppression hearing shows that after the defendant was given his Miranda warnings, he indicated on a written Miranda form that he did not want to speak with police. Furthermore, Officer Greiner testified that it was his impression that the defendant did not want to talk to the police and that he wished to speak with an attorney. ² Yet, after arriving with the defendant at the Lewis County jail, Officer Rohrbough once again asked the defendant whether he wished to make a statement. Clearly, the initiation of this custodial interrogation after the defendant had invoked his privilege to remain silent rendered the defendant's subsequent statements inadmissible at trial.

III.

The defendant next assigns as error the trial court's refusal to allow at the trial evidence of the victim's prior convictions. The defendant contends that the victim's two prior convictions in West Virginia for burglary indicate the violent nature of the victim. The State argues, however, that the two burglary convictions do not demonstrate a violent nature, and, therefore, the admission of those convictions would not have demonstrated any pertinent character traits of the victim pursuant to Rule 404(a)(2) of the West Virginia Rules of Evidence.

Rule 404(a)(2) essentially codifies the common law rules on the admission of character evidence of the victim of a crime. State v. Neuman, 179 W.Va. 580, 371 S.E.2d 77 (1988); State v. Welker, 178 W.Va. 47, 357 S.E.2d 240 (1987). In particular, under our traditional rule, ³ a defendant in a homicide, malicious wounding, or assault case who relies on self-defense or provocation may introduce evidence concerning the violent or turbulent character of the victim, including prior threats or attacks on the defendant. Moreover, if the defendant has knowledge of specific acts of violence by the victim against third parties, he may give evidence thereof, as indicated in Syllabus Point 2 of State v. Louk, 171 W.Va. 639, 301 S.E.2d 596 (1983):

" ' "In a prosecution for murder, where self-defense is relied upon to excuse the homicide, and there is evidence showing, or tending to show, that the deceased was at the time of the killing, making a murderous attack upon the defendant, it is competent for...