IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2013 Term FILED _______________ June 13, 2013 released at 3:00 p.m. No. 11-1675 RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS _______________ OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Respondent
v.
WILLIAM BEVEL,
Petitioner
____________________________________________________________
Appeal from the Circuit Court of Marshall County
The Honorable David W. Hummel, Jr., Judge
Criminal Action No. 11-F-43
REVERSED AND REMANDED
Submitted: April 17, 2013
Filed: June 13, 2013
John R. Anderson, Esq. Patrick Morrisey Assistant Public Defender Attorney General Moundsville, West Virginia Laura Young, Esq. Counsel for the Petitioner Assistant Attorney General Marland L. Turner Assistant Attorney General Charleston, West Virginia Counsel for the Respondent
CHIEF JUSTICE BENJAMIN delivered the Opinion of the Court.
JUSTICE WORKMAN and JUSTICE LOUGHRY dissent and reserve the right to file dissenting opinions. SYLLABUS BY THE COURT
1. “On appeal, legal conclusions made with regard to suppression
determinations are reviewed de novo. Factual determinations upon which these legal
conclusions are based are reviewed under the clearly erroneous standard. In addition,
factual findings based, at least in part, on determinations of witness credibility are
accorded great deference.” Syl. pt. 3, State v. Stuart, 192 W. Va. 428, 452 S.E.2d 886
(1994).
2. “For a recantation of a request for counsel to be effective: (1) the
accused must initiate a conversation; and (2) must knowingly and intelligently, under the
totality of the circumstances, waive his right to counsel.” Syl. pt. 1, State v. Crouch, 178
W. Va. 221, 258 S.E.2d 782 (1987).
3. “If police initiate interrogation after a defendant’s assertion, at an
arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s
right to counsel for that police-initiated interrogation is invalid because it was taken in
violation of the defendant’s Sixth Amendment right to counsel. To the extent that State v.
Wyre, 173 W.Va. 720, 320 S.E.2d 92 (1984), is in conflict with this principle, it is
overruled.” Syl. pt. 1, State v. Barrow, 178 W. Va. 406, 359 S.E.2d 844 (1987).
i 4. “An appellate court should not overrule a previous decision recently
rendered without evidence of changing conditions or serious judicial error in
interpretation sufficient to compel deviation from the basic policy of the doctrine of stare
decisis, which is to promote certainty, stability, and uniformity in the law.” Syl. pt. 2,
Dailey v. Bechtel Corp., 157 W. Va. 1023, 207 S.E.2d 169 (1974).
5. If police initiate interrogation after a defendant asserts his right to
counsel at an arraignment or similar proceeding, any waiver of the defendant’s right to
counsel for that police-initiated interrogation is invalid as being taken in violation of the
defendant’s right to counsel under article III, section 14 of the Constitution of West
Virginia.
ii Benjamin, Chief Justice:
Consistent with the United States Supreme Court’s decision in Michigan v.
Jackson, 475 U.S. 625 (1986), this Court has held it to be a violation of a defendant’s
right to counsel for the police to initiate interrogation after the defendant has asserted his
right to counsel at an arraignment or similar proceeding, even if the police procure a
waiver of the right to counsel from the defendant. In 2009, the U.S. Supreme Court
issued Montejo v. Louisiana, 556 U.S. 778 (2009), which overruled their decision in
Michigan v. Jackson. The Montejo court held that it does not violate a defendant’s right
to counsel under the Sixth Amendment to the United States Constitution for the police to
approach and interrogate a defendant after he has asserted his right to counsel at an
arraignment or similar proceeding if a valid waiver is obtained.
In the instant case, the petitioner, William Bevel, requested that counsel be
appointed to him at his arraignment. However, prior to receiving an opportunity to
confer with his counsel, Mr. Bevel was approached by a police officer and asked to sign a
waiver of his right to counsel. Mr. Bevel signed the waiver and proceeded to make
inculpatory statements to the police. In its October 26, 2011, order, the circuit court
denied Mr. Bevel’s motion to suppress the statements, finding that the interrogation was
not conducted in violation of his right to counsel pursuant to Montejo. The question now
before this Court is whether West Virginia will continue to follow our existing precedent
or whether we will instead adopt the conclusions and rationale of the U.S. Supreme Court
in Montejo.
We have thoroughly reviewed the record presented, the briefs, the relevant
legal authorities, and the arguments of Mr. Bevel and the State. For the reasons provided
herein, we decline to adopt Montejo and find that the right to counsel that has been
recognized in this state for more than a quarter century continues to be guaranteed by
article III, section 14 of the West Virginia Constitution. Consequently, we find that the
circuit court erred by failing to suppress the inculpatory statements made by Mr. Bevel
We therefore reverse the circuit court’s November 2, 2011, conviction and sentencing
order, and we remand the case for further proceedings consistent with this opinion.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Before we begin our description of the facts in this case, we call attention to
the point that the underlying order of the circuit court is devoid of factual findings.
Furthermore, the parties’ briefs include few facts about the victim or the events leading
up to Mr. Bevel’s arrest. The following relevant background information has been
gleaned from documents included in the appendix record provided to this Court by the
petitioner.
The victim in this case, a child named S.H.,1 was born on May 6, 2005.
After her birth, she lived with her mother, Carrie Bevel, and then with both her mother
and the petitioner, Mr. Bevel. On February 2, 2008, when S.H. was two years old, she
was placed in the legal custody of her grandmother, Tammy H. The change in custody
was pursuant to an abuse and neglect proceeding brought against Ms. Bevel. alleging that
the home was unsafe for S.H. due to lack of heat and broken glass. Ms. Bevel and Mr.
Bevel were married on February 19, 2008.
Sometime in September or October of 2008, Tammy H. witnessed S.H.
“acting out sexually.” Tammy H. promptly contacted the state police and Harmony
House.2 Employees of Harmony House conducted multiple interviews of S.H., the
results of which were provided to investigating police officers in December of 2010.
During the interviews, S.H. revealed that Ms. Bevel and Mr. Bevel had touched her in a
sexual manner while she was in their care. Using dolls that represented her and Mr.
Bevel, S.H. indicated that Mr. Bevel had penetrated her vagina with his penis and with
his fingers.
1 Consistent with this Court’s practice in cases involving sensitive matters, we refer to the parties using their initials. 2 Harmony House is located in Wheeling, West Virginia. According to its website, “[t]he mission of Harmony House is to create and sustain a fully operational Children’s Advocacy Center (CAC) for Ohio and Marshall Counties, West Virginia and Belmont County, Ohio to serve child victims and non-offending family members in a neutral, child-focused environment.” Harmony House, http://harmonyhousecacwv.org/ (last visited May 23, 2013).
Pursuant to the December 14, 2010, criminal complaint of the Magistrate
Court of Marshall County, which alleged that Mr. Bevel had sexually abused S.H., a
warrant was issued for Mr. Bevel’s arrest. Upon his arrest, he was taken to the Northern
Regional Jail & Correctional Facility.
On December 17, 2010, a Marshall County magistrate conducted Mr.
Bevel’s initial appearance via closed circuit video conferencing. During the initial
appearance, Mr. Bevel was given a form titled “Initial Appearance: Rights Statements.”
The first page of the form included the following:
DEFENDANT MUST INITIAL ONE OF THE FOLLOWING THREE CHOICES IF A JAIL PENALTY IS POSSIBLE:
_____ (a) I give up my right to have an attorney represent me. _____ (b) I want to hire an attorney to represent me. _____ (c) I want an attorney appointed to represent me.
Mr. Bevel placed his initials next to the third option, requesting that counsel be appointed
to him. The form was faxed to the magistrate. The dates and times imprinted on the
form as a result of the faxing process suggest that the initial appearance occurred
sometime between 10:00 a.m. and noon.
At approximately 1:00 p.m. that same day, police officers took Mr. Bevel to
an interrogation room in the jail. He was then provided with a one-page form which
described his rights with regard to interrogation. The first portion of the form, titled
“YOUR RIGHTS”, said:
You have the right to remain silent and refuse to answer questions Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions and to have your lawyer with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning, if you wish. If you decide to answer questions now without a lawyer present, you still have the right to stop answering at any time until you talk to a lawyer. I have been advised that I am to be questioned about Sexual Assault Charges. I understand that I am under arrest for the crime(s) of Sexual Assault Charges and that I have the right to taken [sic] to a magistrate and arraigned on this charge or charges without delay. If taken before a magistrate, I would have the following rights explained to me: 1. I would be informed of the charges against me and have the charges read and explained to me. I would be explained the penalties that the Court may impose should I be found guilty of those charges. 2. That I would have the right to a jury trial on all charges lodged against me. 3. That, under the United States Constitution and the Constitution and laws of the State of West Virginia, I do not have to say anything to the law enforcement officer, to the magistrate, or to the judge, which might tend to incriminate me. 4. That anything I say, write, or sign may be introduced into evidence at any trial in connection with the charges against me. 5. That I have the right to have the assistance of counsel during criminal proceedings against me and that if I cannot afford counsel, the State will supply me with counsel at no cost. 6. That no person other than a lawyer can represent me during these proceedings.
7. That if I decide to represent myself in the trial of the charges against me, I cannot later claim that I was deprived of my right to a lawyer. 8. That I have a right to a preliminary examination by a magistrate if the charges against me are presented to a Grand Jury for indictment. At such a preliminary examination, I can call witnesses to testify and may cross- examine any witness. That I would have the right to communicate with my lawyer, a relative, or any other person to obtain a lawyer or to arrange bail.
(Underlined text indicating a handwritten entry onto the form). Sergeant Ross Lockhart
testified that he read this portion of the form aloud to Mr. Bevel because Mr. Bevel
asserted that he has difficulty reading.3 Mr. Bevel was then presented with the option to
sign next to one of two options: “I understand my rights” or “I do not wish to answer any
questions or make any statements at this time.” Mr. Bevel placed his signature next to
the first option: “I understand my rights.”
Sgt. Lockhart then proceeded to read aloud to Mr. Bevel the final paragraph
on the form, titled “WAIVER OF RIGHTS”. This section stated:
I have had this statement of my rights read to me and I fully understand what my rights are, and I hereby waive said rights. I am willing to make a statement and to answer questions before being taken to a magistrate. I do not want a lawyer at this time. I understand and know what I am doing.
3 According to a March 29, 2010, report of a psychological evaluation of Mr. Bevel, he reads on a third grade level, and his IQ is 68. The report describes Mr. Bevel as being “mentally retarded.”
No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.
Mr. Bevel placed his signature on the signature line following the waiver-of-rights
paragraph.
During the interrogation, Mr. Bevel made incriminating statements,
admitting that he digitally penetrated S.H. while Ms. Bevel simultaneously manually
stimulated his penis.
The grand jury returned an indictment against Mr. Bevel on July 19, 2011.
The indictment charged Mr. Bevel with sexual abuse by a custodian, parent or person in a
position of trust; incest; first degree sexual assault; and displaying obscene matter to a
minor.
The State filed a motion to determine the voluntariness of Mr. Bevel’s
statements to the police officers during the December 17, 2010, interrogation. Mr. Bevel
then filed a motion to suppress those statements. An evidentiary hearing was held on
October 17, 2011, to address the admissibility of Mr. Bevel’s incriminating statements.
During that hearing, the court heard testimony on the motions from the interviewing
officers and from the magistrate presiding over Mr. Bevel’s initial hearing. Near the
conclusion of the hearing, the court said,
So I think the -- the argument proverbially -- is proverbially dead in the water, but I will allow an opportunity to brief it. I think the gap in time between the initial appearance and the State’s agents going to do the interview may have been sufficient, and that at that time Mr. Bevel failed to reassert his right to counsel.
In the order memorializing the evidentiary hearing, dated October 18, 2011, the court
said, “Further, the court placed on the record that the typed interview of December 17,
2010, has been thoroughly read by the Court, however it is the COURT’S FINDING on
this day, that the Statement of December 17, 2010 is DEFERRED, at this time.”
By order dated October 26, 2011, the court denied Mr. Bevel’s motion to
suppress:
In support of the Court’s determination as set forth in this order, it applies Montejo v. Louisiana, 556 U.S. 778, 129 S.Ct. 2079 (2009) and finds that Mr. Bevel’s Sixth Amendment right to counsel was not violated.
Furthermore, on December 17, 2010, Mr. Bevel, prior to making the subject statement(s) to law enforcement, did (in the totality of the circumstances) willingly, knowingly, and intelligently waive his right to be represented by counsel during the custodial interrogation. Accordingly, neither Mr. Bevel’s Fifth nor his Sixth Amendment right to counsel were [sic] violated.
(In part).
On October 31, 2011, Mr. Bevel entered a Kennedy plea,4 whereby he
pleaded guilty to sexual abuse by a parent, guardian, custodian, or person in a position of
trust, while preserving his right to seek an appeal of the denial of his motion to suppress
his December 17, 2010, statement. By order dated November 2, 2011, he was sentenced
to not less than ten nor more than twenty years in the West Virginia Penitentiary for Men.
His sentence requires that he register as a sex offender for life upon his release from the
penitentiary and that he serve a period of supervised release.
Mr. Bevel now appeals the circuit court’s November 2, 2011, conviction
and sentencing order, arguing that the circuit court erred by denying his motion to
suppress his December 17, 2010, statement.
II.
STANDARD OF REVIEW
On appeal, Mr. Bevel’s challenge involves suppression of an inculpatory
statement. We have held,
On appeal, legal conclusions made with regard to suppression determinations are reviewed de novo. Factual determinations upon which these legal conclusions are based
4 See syl. pt. 1, Kennedy v. Frazier, 178 W. Va. 10, 357 S.E.2d 43 (1987) (“An accused may voluntarily, knowingly and understandingly consent to the imposition of a prison sentence even though he is unwilling to admit participation in the crime, if he intelligently concludes that his interests require a guilty plea and the record supports the conclusion that a jury could convict him.”).
are reviewed under the clearly erroneous standard. In addition, factual findings based, at least in part, on determinations of witness credibility are accorded great deference.
Syl. pt. 3, State v. Stuart, 192 W. Va. 428, 452 S.E.2d 886 (1994).
III.
ANALYSIS
Mr. Bevel asserts that the interrogation conducted on December 17, 2010,
was in violation of his constitutional right to counsel. The State urges the Court to adopt
the United States Supreme Court’s holding in Montejo v. Louisiana, 556 U.S. 778 (2009),
under which the police-initiated interrogation would not have violated Mr. Bevel’s right
to counsel.
The right to counsel is guaranteed by both the United States Constitution
and the West Virginia Constitution. The Sixth Amendment to the United States
Constitution declares, “In all criminal prosecutions, the accused shall enjoy the right to . .
. have the Assistance of Counsel for his defence.” Likewise, the West Virginia
Constitution requires that “[i]n all [trials of crimes and misdemeanors], the accused . . .
shall have the assistance of counsel.” W. Va. Const. art. III, § 14. The Court has
explained the importance and purpose of the right:
The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even
10 the intelligent and educated layman has small and sometimes no skill in the science of the law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every stage of the proceedings against him.
State ex rel. Sims v. Perry, 204 W. Va. 625, 630, 515 S.E.2d 582, 587 (1999) (quoting
Powell v. Alabama, 287 U.S. 45, 68–69 (1932).
The U.S. Supreme Court, in Miranda v. Arizona, 384 U.S. 436 (1966), has
also declared that the Fifth Amendment to the United States Constitution implicitly
provides the right to counsel. Miranda, relied on the Fifth Amendment’s guarantee that
“[n]o person . . . shall be compelled in any criminal case to be a witness against himself”
in holding that “the right to have counsel present at the interrogation is indispensable to
the protection of the Fifth Amendment.” 384 U.S. at 469. The Court continued, “Our aim
is to assure that the individual’s right to choose between silence and speech remains
unfettered throughout the interrogation process.” Id.
The purpose of the Fifth Amendment right to counsel is to protect a
defendant’s right against self-incrimination. The right “is triggered when a defendant is
taken into custody by law enforcement officials who desire to interrogate him.” State v.
Williams, 226 W. Va. 626, 629, 704 S.E.2d 418, 421 (2010) (quoting State v. Hickman,
175 W. Va. 709, 716, 338 S.E.2d 188, 195 (1985)). A defendant may waive his right to
counsel and proceed with the interrogation. If he chooses to invoke his Fifth Amendment
right to counsel, all interrogation must cease unless the defendant initiates further
communication with the police. Edwards v. Arizona, 451 U.S. 477, 484–85 (1981) (“[A]n
accused . . . , having expressed his desire to deal with the police only through counsel, is
not subject to further interrogation by the authorities until counsel has been made
available to him, unless the accused himself initiates further communication, exchanges,
or conversations with the police.” (“The Edwards rule”)). The Fifth Amendment right to
counsel attaches before adversarial judicial proceedings are brought against a defendant
upon invocation of the right by the defendant.
Once adversarial judicial proceedings commence against a defendant, right
to counsel guaranteed by the Sixth Amendment and article III, § 14 attaches. Syl. pt. 1,
Bowyer, 181 W. Va. 26, 380 S.E.2d 193 (“The Sixth Amendment right to counsel
attaches at the time judicial proceedings have been initiated against a defendant whether
by way of formal charges, preliminary hearing, indictment, information, or
arraignment.”); State ex rel. Riffle v. Thorn, 153 W. Va. 76, 81, 168 S.E.2d 810, 813
(1969) (“We are firmly of the view that the due process clauses of the Constitutions of
the United States and of this State guarantee to one indicted for a felony counsel at every
stage of his trial, at least from the date of his arraignment until final judgment is
entered.”). Thus, the right to counsel may arise in one or both of two contexts: under the
Fifth Amendment and/or under the Sixth Amendment.
Because the interrogation at issue in this case took place after Mr. Bevel
was arraigned, at which time he requested the assistance of counsel, only the right to
counsel under the Sixth Amendment and article III, § 14 is at issue in this case.
The interpretation of the Sixth Amendment right to counsel has varied over
time in both West Virginia and across the nation. In 1984, in State v. Wyre, 173 W. Va.
720, 731, 320 S.E.2d 92, 103 (1984), this Court recognized that the operation of the right
to counsel had not been clearly explained by our court or the U.S. Supreme Court:
“Regretfully, [the U.S. Supreme Court] offer[s] little guidance as to what limitations on
waiver [of the right to counsel] are appropriate.” Subsequently, we attempted to clarify
the right, holding,
[W]e 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.
Id. at syl. pt. 3 (in part). The Court continued,
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,
13 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.
Id. at syl. pt. 4 (in part). Thus, under Wyre, police could lawfully initiate interrogation
after a defendant had requested counsel at an initial appearance if the police obtained the
defendant’s written waiver of his right to counsel.
Two years later, the U.S. Supreme Court decided Michigan v. Jackson, 475
U.S. 625, 636 (1986), providing the clarity this Court lacked in Wyre. The Supreme
Court held, “[I]f police initiate interrogation after a defendant’s assertion, at an
arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s
right to counsel for that police-initiated interrogation is invalid.” Michigan, 475 U.S. at
636. The Supreme Court justified its decision by examining both the Fifth and Sixth
Amendment rights to counsel. It referred to the Edwards rule, quoted supra, and decided
that
the reasons for prohibiting the interrogation of an uncounseled prisoner who has asked for the help of a lawyer are even stronger after he has been formally charged with an offense than before. . . . Indeed, after a formal accusation has been made—and a person who had previously been just a “suspect” has become an “accused” within the meaning of the Sixth Amendment—the constitutional right to the assistance of counsel is of such importance that the police may no longer employ techniques for eliciting information from an uncounseled defendant that might have been entirely proper at an earlier stage of their investigation.
Id. at 631–32. Again looking to the Fifth Amendment right for guidance, the Supreme
Court continued, “Just as written waivers are insufficient to justify police-interrogations
after the request for counsel in a Fifth Amendment analysis, so too they are insufficient to
justify police-initiated interrogations after the request for counsel in a Sixth Amendment
analysis.” Id. at 635.
The Supreme Court’s decision in Michigan contradicted the law as it stood
in West Virginia under Wyre. The contradiction was resolved in State v. Crouch, 178 W.
Va. 221, 358 S.E.2d 782 (1987), and State v. Barrow, 178 W. Va. 406, 359 S.E.2d 844
(1987). In Crouch, following the guidance of Michigan, the Court held, “For a
recantation of a request for counsel to be effective: (1) the accused must initiate a
conversation; and (2) must knowingly and intelligently, under the totality of the
circumstances, waive his right to counsel.” Syl. pt. 1, Crouch, 178 W. Va. 221, 258
S.E.2d 782. The Court went even further in Barrow, finding that “[b]ecause Wyre sets a
more diminished standard than that set in [Michigan], we must overrule Wyer to this
extent.” Barrow, 178 W. Va. at 409, 359 S.E.2d at 847. The Court adopted the holding in
Michigan:
If police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid because it was taken in violation of the defendant’s Sixth Amendment right to counsel. To the extent that State v. Wyre, 173 W.Va. 720,
15 320 S.E.2d 92 (1984), is in conflict with this principle, it is overruled.
Syl. pt. 1, Barrow, 178 W. Va. 406, 359 S.E.2d 844.
Under Crouch and Barrow, police could interrogate a defendant after the
defendant had asserted his Sixth Amendment right to counsel only if the defendant
initiated the conversation with police and only if the defendant knowingly and
intelligently waived his right to counsel. Couch and Barrow, which mirror and, indeed,
go beyond the requirements of Michigan, have acted as the touchstone on the Sixth
Amendment right to counsel in West Virginia for the last twenty-six years. See State v.
Lucas, 178 W. Va. 686, 364 S.E.2d 12 (1987); State v. Tenley, 179 W. Va. 209, 366
S.E.2d 657 (1988); Bowyer, 181 W. Va. 26, 308 S.E.2d 193 (1989); State v. Parker, 181
W. Va. 619, 383 S.E.2d 801 (1989); State v. Marcum, 182 W. Va. 104, 386 S.E.2d 117
(1989); Williams, 226 W. Va. 626, 704 S.E.2d 418 (2010).
In 2009, the U.S. Supreme Court issued Montejo, overruling Michigan. In
Montejo, the defendant was arrested for his believed participation in a murder. 556 U.S.
at 781. Upon his arrest, he was read his Miranda rights, he waived rights including his
Fifth Amendment right to counsel, and he participated in an interrogation conducted by
police detectives. Id. He made incriminating statements to the police during the
interrogation. Id.
Four days after his arrest, the defendant was brought before a judge for a
preliminary hearing, and pursuant to Louisiana law, the court ordered “the Office of
Indigent Defender be appointed to represent the defendant.” Id. (internal quotation
omitted). After the preliminary hearing, the police detectives approached the defendant
again, requesting that he assist them in locating the murder weapon. Id. The defendant
was read his Miranda rights a second time, and he once more waived his right to counsel.
Id. at 782. During the excursion, the defendant made additional inculpatory statements.
Id. The defendant objected to the admission at trial of the statements he made to police
after the preliminary hearing, but the statements were deemed admissible by the court.
He was convicted of first-degree murder and sentenced to death. Id.
Arguing that the statements made after the preliminary hearing were made
in violation of his Sixth Amendment right to counsel, the defendant appealed to the
Louisiana Supreme Court. Id. The Louisiana Supreme Court affirmed the conviction,
reasoning that
the prophylactic protection of [Michigan] is not triggered unless and until the defendant has actually requested a lawyer or has otherwise asserted his Sixth Amendment right to counsel. Because Montejo simply stood mute at his [preliminary] hearing while the judge ordered the appointment of counsel, he had made no such request or assertion.
Id. (internal citation omitted).
The U.S. Supreme Court rejected the Louisiana Supreme Court’s approach
finding that it “would lead either to an unworkable standard, or to arbitrary and
anomalous distinctions between defendants in different States.” Id. at 783. The U.S.
Supreme Court explained,
So on one hand, requiring an initial “invocation” of the right to counsel in order to trigger the [Michigan] presumption is consistent with the theory of that decision, but . . . would be unworkable in more than half the States of the Union.5 On the other hand, eliminating the invocation requirement would render the rule easy to apply but depart fundamentally from the [Michigan] rationale.
Id. at 792 (footnote added). In other words, the U.S Supreme Court appears to have seen
itself as being faced with choosing between (1) an application of the Sixth Amendment
that would not be uniform among the several states and (2) departing from Michigan. It
chose to overrule Michigan, holding, “In sum, when the marginal benefits of the
[Michigan] rule are weighed against its substantial costs to the truth-seeking process and
the criminal justice system, we readily conclude that the rule does not ‘pay its way.’
[Michigan] should be and now is overruled.” Id. at 797 (internal citation omitted).
5 In addition to the federal right to counsel, states have also provided their citizens with the right to counsel under their own laws. What that right entails varies by state. Montejo illustrates that in Louisiana, counsel is automatically appointed at the commencement of criminal proceedings. In other states, like West Virginia, a defendant must request that counsel be appointed to him.
The Montejo Court buttressed its holding by attacking the Michigan Court’s
reliance on the Fifth Amendment in supporting its extension of the Sixth Amendment.
Stating that “[t]he antibadgering rationale is the only way to make sense of [Michigan]’s
repeated citations of Edwards, and the only way to reconcile the opinion with our waiver
jurisprudence,” Id. at 788, the Montejo Court concluded that while “Edwards and
[Michigan] are meant to prevent police from badgering defendants into changing their
minds about their rights, . . . a defendant who never asked for counsel has not yet made
up his mind in the first instance.” Id. at 789. The U.S. Supreme concluded by asserting
that the protections provided by the Miranda-Edwards line of cases are sufficient to
protect the right to counsel, finding that the “doctrines ensuring voluntariness of the Fifth
Amendment waiver simultaneously ensure the voluntariness of the Sixth Amendment
waiver. Id. at 795.
One year after the U.S. Supreme Court decided Montejo, this Court was
asked in Williams to revisit Barrow. Because the facts of Williams did not provide an
adequate basis for exploring Montejo, we said, “Having concluded that the Sixth
Amendment right to counsel was not at issue in this case, we decline the invitation to
address the impact the 2009 Supreme Court decision in Montejo v. Louisiana may have
on our Sixth Amendment jurisprudence.” Williams, 226 W. Va. at 630 n.6, 704 S.E.2d at
422 n.6. The facts of the case at bar, however, do provide the basis for addressing the
impact of Montejo on our law, and so we proceed to do so now.
The case sub judice is controlled by both the Constitution of West Virginia
and the Constitution of the United States, and our decision must comply with both
constitutions. However, under the primary tenant of federalism—on which our
government is based—West Virginia may place higher standards on its police pursuant to
its own laws than those required by the federal government. See, e.g., syl. pt. 2, Pauley v.
Kelly, 162 W. Va. 672, 255 S.E.2d 859 (1979) (“The provisions of the Constitution of the
State of West Virginia may, in certain instances, require higher standards of protection
than afforded by the Federal Constitution.”).
Montejo represents a narrower application of the Sixth Amendment right to
counsel than the application of the right under Michigan. West Virginia may continue to
follow Michigan without running afoul of Montejo. The U.S. Supreme Court recognized
as much in Montejo, stating, “If a State wishes to abstain from requesting interviews with
represented defendants when counsel is not present, it obviously may continue to do so.”
556 U.S. at 793. Therefore, West Virginia is not bound to adopt Montejo as it was bound
to adopt Michigan; continued application of our Michigan line of cases would provide
greater protection to citizens’ right to counsel than the protections guaranteed by
Montejo.
Our decision on whether to adopt Montejo comes down to one question:
Does the right to counsel under the Sixth Amendment to the United States Constitution,
as interpreted in Montejo, provide the same right to counsel under article III, section 14
of the West Virginia Constitution? We find that it does not.
We are bound by the doctrine of stare decisis. The Court has held, “An
appellate court should not overrule a previous decision recently rendered without
evidence of changing conditions or serious judicial error in interpretation sufficient to
compel deviation from the basic policy of the doctrine of stare decisis, which is to
promote certainty, stability, and uniformity in the law.” Syl. pt. 2, Dailey v. Bechtel
Corp., 157 W. Va. 1023, 207 S.E.2d 169 (1974). “Mere disagreement as to how a case
was decided is not a sufficient reason to deviate from [stare decisis].” Id. at 1029, 207
S.E.2d at 173. The only changed condition present in this case is that the U.S. Supreme
Court has decided Montejo, which provides a right to counsel differing from that
provided in Crouch and Barrow. While the U.S. Supreme Court felt compelled to depart
from Michigan for the sake of uniformity among the states, a similar conflict does not
exist on our individual state level. Thus, although Montejo has altered the benefits of the
right to counsel on the federal level, it has not changed the right in such a way that
conflicts with the right as guaranteed by Crouch and Barrow. Wholesale adoption of
Montejo would only produce instability in West Virginia’s right-to-counsel
jurisprudence.
Furthermore, we do not find that our holdings in Crouch and Barrow
represent error. The U.S. Supreme Court even recognized that the right to counsel within
the meaning of Michigan may still be viable in jurisdictions that choose to reject
Montejo. Upon our review of our own case law, we believe that our law is well-reasoned
and appropriately ensures that statements made by a defendant during interrogation are
voluntary and made with full knowledge of the right to be assisted by counsel.
[N]o system of criminal justice can, or should, survive if it comes to depend for its continued effectiveness on the citizens’ abdication through unawareness of their constitutional rights. No system worth preserving should have to fear that if an accused is permitted to consult with a lawyer, he will become aware of, and exercise, these rights.
Wyre, 173 W. Va. at 739, 320 S.E.2d at 111 (Harshbarger, J., dissenting) (quoting
Escobedo v. Illinois, 378 U.S. 478, 490 (1964)). Therefore, we find that stare decisis
requires that we sustain Crouch and Barrow.
We note that much of our case law examining the right to counsel,
including Crouch and Barrow, only discusses the right in terms of the Sixth Amendment
to the United States Constitution. Although we did not mention the West Virginia
Constitution explicitly, it is clear from the Court’s opinions that until now, the right to
counsel guaranteed by the Constitution of West Virginia mirrored the right guaranteed by
the Sixth Amendment. We now explicitly hold that if police initiate interrogation after a
defendant asserts his right to counsel at an arraignment or similar proceeding, any waiver
of the defendant’s right to counsel for that police-initiated interrogation is invalid as
being taken in violation of the defendant’s right to counsel under article III, section 14 of
the Constitution of West Virginia. Our holding today does not change what the right to
counsel has entailed pursuant to this state’s constitution since 1987, including the ability
of a defendant by his or her initiation to knowingly and intelligently waive the right to
counsel after the right has previously been invoked, pursuant to Crouch.
Under this holding, it is apparent from the undisputed facts in this case that
the police-initiated interrogation of Mr. Bevel on December 17, 2010, after he requested
the assistance of counsel and after criminal proceedings had commenced against him,
was conducted in violation of his right to counsel under article III, section 14 of the
Constitution of West Virginia. Accordingly, the circuit court erred by denying Mr.
Bevel’s motion to suppress the inculpatory statements he made during that interrogation,
and Mr. Bevel’s conviction and sentence must be reversed.6
IV.
CONCLUSION
For the reasons set forth above, this Court reverses the circuit court’s order
entered November 2, 2011, convicting and sentencing the Mr. Bevel. Because that order
6 In addition to arguing that the December 17, 2010, interrogation was conducted in violation of his right to counsel, Mr. Bevel also asserted that the waiver of his right to counsel he signed that day was not knowing, intelligent, and voluntary. Because we find that the police-initiated interrogation was in violation of Mr. Bevel’s right to counsel, it is unnecessary to analyze the waiver because the waiver, under our holding, was per se invalid.
was entered pursuant to a Kennedy plea, we remand the case for further proceedings
consistent with this opinion.
Reversed and Remanded.