State v. Wyer
| Decision Date | 21 March 1984 |
| Docket Number | No. 15839,15839 |
| Citation | 173 W.Va. 720,320 S.E.2d 92 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia v. Kenneth Wayne WYER. |
Syllabus by the Court
1. The determination of whether a defendant is entitled to instructions on lesser included offenses involves a two-part inquiry. The first question centers on a legal issue of whether the charge against a defendant contains lesser included offenses. This is resolved by applying the principle contained in Syllabus Point 1 of State v. Louk, W.Va., 285 S.E.2d 432 (1982):
The other inquiry is factual and is summarized in Syllabus Point 2 of State v. Neider, W.Va., 295 S.E.2d 902 (1982):
"Where there is no evidentiary dispute or insufficiency on the elements of the greater offense which are different from the elements of the lesser included offense, then the defendant is not entitled to a lesser included offense instruction."
2. The legislature, by enactment of W.Va.Code, 61-8B-3(a)(1) (1976), relating to sexual assault in the first degree, created a distinction between a voluntary and a nonvoluntary social companion with regard to the elements of the crime of sexual assault in the first degree. Where the victim is a nonvoluntary social companion, the State need prove only that fact and that she was subjected to sexual intercourse by forcible compulsion. Where a voluntary social companion is involved, the State must in addition show either (1) the infliction of serious bodily injury on anyone or (2) the employment of a deadly weapon in the commission of the crime. Finally, where a voluntary social companion is involved and there is sexual intercourse by forcible compulsion but without either of the foregoing aggravating circumstances, the crime is then sexual assault in the second degree under W.Va.Code, 61-8B-4 (1976).
3. There is no per se rule against a waiver of the Sixth Amendment right to counsel. We do, however, hold that a waiver of the Sixth Amendment right to counsel should be judged by stricter standards than a waiver of the Fifth Amendment right to counsel. Furthermore, we do not equate a general request for counsel at the initial appearance before a magistrate as foreclosing in all cases the right of police officials to initiate a further discussion with the defendant to determine if he is willing to waive his Sixth Amendment right to counsel for purposes of procuring a confession.
4. Because of the higher standard against which the Sixth Amendment right-to-counsel waiver is measured, we hold that once the Sixth Amendment right to counsel has attached, it can only be waived by a written waiver signed by the defendant. It must also be shown at the time that the waiver is executed that the defendant was aware that he was under arrest and had been informed of the nature of the charge against him. These elements must be shown in addition to the customary Miranda warnings.
5. If at the time waiver is sought, the defendant indicates his desire to have counsel to the interrogating officer, interrogation must cease until counsel is made available to him, unless the defendant initiates further communications with the police evidencing his desire to waive his Sixth Amendment right to counsel.
David M. Finnerin, Parkersburg, for appellee.
C. Scott Durig, Asst. Pros. Atty., Parkersburg, for appellant.
The defendant, Kenneth Wayne Wyer, was convicted of sexual assault in the first degree in the Circuit Court of Wood County. On appeal he claims that the trial court erred in denying his motion for instructions on lesser included offenses. He also claims that the court should have suppressed a statement taken from him by police officers after his arrest.
For the reasons hereinafter set forth, we conclude that the defendant's claim of instructional error is without merit. The suppression issue, on the other hand, raises questions of constitutional magnitude under the Sixth Amendment right to counsel. Because the record is inadequately developed on the question, we remand so that evidence regarding the circumstances surrounding the taking of the statement can be developed. The trial court should reconsider the suppression issue in light of that evidence and the principles enunciated in this opinion.
According to witnesses called by the State, the defendant, who was married, entered the home of a female neighbor, who was also married, at approximately 2:30 p.m. on April 6, 1982. He had a stocking over his head at the time and a knife in his hand. He nonetheless was recognized by the victim who had known him for about a year and who had on occasion visited his home when he and his wife were present. According to the victim, the defendant stated as he entered the house: "You know what I want." He directed her to a bedroom where he pushed her onto a bed. As a result of these actions and the display of the knife, she testified that she felt threatened and felt compelled to perform oral sex on the defendant, as he requested.
The defendant did not deny the incident but did deny that he had threatened her with a knife. He admitted that he had a knife in his pocket and stated that it fell to the floor sometime during the incident. He described the knife as an old kitchen knife having a five-or-six inch blade. The defendant also denied pushing the victim onto the bed. He testified that she voluntarily went to the bedroom and consented to the sexual act. He admitted wearing a stocking, but said it did not cover his face, and that it was used to keep his hair out of his eyes.
After the presentation of evidence, defense counsel in discussing the court's proposed charge requested that the court instruct the jury on lesser included sexual offenses which he argued were warranted under the defendant's theory of the case. The court, after considering the question, refused and instructed the jury that they could either find the defendant guilty of sexual assault in the first degree or not guilty. The jury returned a verdict of guilty of sexual assault in the first degree.
We stated in State v. Neider, W.Va., 295 S.E.2d 902 (1982), that the determination of whether a defendant is entitled to instructions on lesser included offenses involves a two-part inquiry. 1 The first question centers on a legal issue of whether the charge against a defendant contains lesser included offenses. This is resolved by applying the principle contained in Syllabus Point 1 of State v. Louk, W.Va., 285 S.E.2d 432 (1982):
See also State v. Daggett, W.Va., 280 S.E.2d 545 (1981); State v. Bailey, 159 W.Va. 167, 220 S.E.2d 432 (1975).
The other inquiry is factual and requires a determination of whether there is evidence in the particular case which tends to contradict the evidence of the elements of the greater offense which are different from the elements of the lesser included offense. We summarized this principle in Syllabus Point 2 of Neider:
"Where there is no evidentiary dispute or insufficiency on the elements of the greater offense which are different from the elements of the lesser included offense, then the defendant is not entitled to a lesser included offense instruction."
In order to determine whether first degree sexual assault includes a lesser sexual offense, it is necessary to analyze W.Va.Code, 61-8B-3. 2 It is apparent that under this statute the offense can be committed by several distinct acts. Under the evidence of this case, the relevant language of the statute is:
In order to fully understand the above terminology, it is necessary to refer to the definition of "sexual intercourse" which, under W.Va.Code, 61-8B-1(7), includes oral sex, 3 and W.Va.Code, 61-8B-1(1), defining "forcible compulsion." 4
In State v. Daggett, supra, we determined that third degree sexual assault was not a lesser included offense under the facts of that case. We made this general statement with regard to the offense of sexual assault in the first degree: State v. Daggett, 280 S.E.2d at 558.
When we analyze the relevant portion of our first degree sexual assault statute we believe that several conclusions can be reached. First, where there is sexual intercourse by forcible compulsion and the defendant in addition either inflicts "serious bodily harm upon anyone" or "employ[s] a deadly weapon" he is guilty of sexual assault in the first degree. Second, as a result of the language contained in subdivision (iii) of W.Va.Code, 61-8B-3(a)(1), if the victim is not a voluntary social companion then there is no need to show an aggravated circumstance such as serious bodily injury or the...
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...improper since no waiver could have been given before counsel was consulted. Id., p. 1190. 19 The most recent decision is State v. Wyer, 320 S.E.2d 92 (W.Va.1984). After reviewing numerous cases, the West Virginia Supreme Court concluded that there is no rule per se against waiver of the Si......
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...We previously rejected the New York rule, which requires the presence of counsel to waive the right to counsel, in State v. Wyer, 173 W.Va. 720, 320 S.E.2d 92 (1984). In Wyer, we discussed at some length the difference between the right to counsel under the Fifth and Sixth Amendments. We ci......