State v. Williams

438 S.E.2d 881, 190 W. Va. 538, 1993 W. Va. LEXIS 202
CourtWest Virginia Supreme Court
DecidedDecember 16, 1993
DocketNo. 21565
StatusPublished
Cited by3 cases

This text of 438 S.E.2d 881 (State v. Williams) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Williams, 438 S.E.2d 881, 190 W. Va. 538, 1993 W. Va. LEXIS 202 (W. Va. 1993).

Opinion

PER CURIAM:

This case is before this Court upon an appeal from the September 20,1991, order of the Circuit Court of Berkeley County, West Virginia. The appellant, Joseph J. Williams, was found guilty by a jury of four counts of breaking and entering. On October 28,1991, the circuit court committed the appellant to the custody of the Department of Corrections for assignment to the Anthony Center, a center for youth offenders, for a period not to exceed two years. On appeal, the appellant asks that this Court reverse the order of the circuit court. This Court has before it the briefs of counsel and all matters of record. For the reasons stated below, the judgment of the circuit court is affirmed.

I

During the fall and winter of 1990, it is alleged that the appellant and his brother broke into and burglarized four buildings in Berkeley County which included a vo-tech center, a middle school, a flea market and a karate club. Two warrants were issued for the appellant’s arrest; one warrant charged the appellant with the breaking and entering of the middle school and the second warrant charged the appellant with breaking and entering the flea market. The appellant was arrested on January 7, 1991, by a Morgan County Deputy Sheriff upon two Berkeley County warrants.1 Two Berkeley County Deputy Sheriffs were also present at the time of the appellant’s arrest.

The appellant was then taken to the Morgan County magistrate for arraignment. While the officers and the appellant were waiting for the magistrate to arrive, the appellant was advised of his constitutional rights and he signed a waiver of those rights. Following his signing of the waiver, the appellant made a statement wherein he admitted only to being involved in the breaking and entering of the middle school. His statement was recorded in writing by Berkeley County Deputy Sheriff Shackelford.

On January 8, 1991, arrest warrants were obtained by the Martinsburg Police Department charging the appellant with breaking and entering a bakery thrift shop2 and the karate club. The appellant denied any participation in the crimes in a tape-recorded statement he gave to the Martinsburg City Police on January 11, 1991.

On January 9, 1991, Deputy Shackelford testified that he received a message that the appellant wanted to speak with the police. The appellant denied the fact that he wanted the police to come and talk with him regarding his case; rather, he claimed that he was calling the police to give them information on a break-in of a local church. Regardless, the appellant was advised of his rights, he signed a waiver and he gave a statement which again was reduced to writing by Deputy Shackelford. In this statement, the appellant admitted to being involved in the breaking and entering of the middle school, the flea market and the vo-tech school, even though he had yet to be charged with that crime. The appellant signed the statement.3

[541]*541The question regarding the admissibility of this statement was addressed by the trial court on September 18, 1991, in a suppression hearing. The appellant testified that he was coerced and threatened into giving his January 9, 1991, statement. The appellant alleged that Deputy Shackelford threatened his mother and girlfriend, and he was coerced by the deputy who kept coaxing him with accusatory statements. The State maintained that the statement was voluntary.

The trial court, in ascertaining the admissibility of the appellant’s statement, determined that the appellant initiated the conversation and the subsequent statement made by the appellant was freely and voluntarily made upon a knowing execution of a waiver of his Fifth and Sixth Amendment privileges. The statement was ruled admissible.

On September 20, 1991, a jury found the appellant guilty of four counts of breaking and entering the middle school, the vo-tech center, the flea market and the karate club. On that same day, the circuit court entered an order on the conviction, from which the appellant now appeals.

II

The appellant raises three issues on appeal: (1) The appellant’s January 9, 1991, statement given to the police was improperly admitted into evidence in that it was taken in violation of his constitutional right against self-incrimination and his right to counsel; (2) The evidence was insufficient as a matter of law to sustain the appellant’s conviction of breaking and entering into the karate club; (3) The Due Process Clause of the West Virginia Constitution was violated when the police failed to electronically tape record the dialogue which took place during the custodial interrogation of the appellant.

The appellant’s first contention is that his constitutional right against self-incrimination was violated when the trial court improperly admitted the January 9, 1991, statement given by the appellant to the police. The appellant argues that, when he told the magistrate at his initial arraignment on January 7,1991, that he would arrange for counsel and he would later advise the court as to who that would be, that communication was the equivalent to a request for an attorney. The appellant asserts that his subsequent statement of January 9, 1991, was a result of a police interrogation and violative of his constitutional rights.

The State does not refute the proposition that it is improper for the pólice to initiate any communication with the accused who is represented by counsel. The State, however, argues that this proposition is inapplicable to the case herein because it was the appellant who initiated the conversation with the police.

In syllabus point 1 of State v. Crouch, 178 W.Va. 221, 358 S.E.2d 782 (1987), this Court set forth a two-part test for determining whether or not a recantation of a request for counsel was effective: “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.”

In this case, the appellant admitted that he wanted to talk to law enforcement authorities. The appellant asserts, however, that he wanted to talk with the sheriff regarding information he had on another crime that he read about in the “crime solver” section of the local newspaper. Deputy Shackelford testified that he was told by Deputy LeMaster that the appellant wanted to talk with them, and the two deputies subsequently went to see the appellant at the regional jail. As further attested to by Deputy Shackelford, the appellant then advised them that he wanted to make a statement because a co-defendant had made a statement and he wanted to be truthful as well. Deputy Shackelford further testified that the appellant was made aware of and he fully understood his rights, including his right to have an attorney present; and yet, after indicating he understood his rights, he signed a form waiving those rights prior to making the January 9, 1991, statement.

Clearly, this evidence demonstrates the appellant’s initiative and willingness to have a discussion with the deputies absent the presence of counsel. The record is void of any [542]*542evidence which would allude to the fact that the appellant’s waiver of counsel was anything but a knowing and intelligent waiver.

In State v. Vance, 162 W.Va. 467,

Related

State v. Lockhart
4 A.3d 1176 (Supreme Court of Connecticut, 2010)
State v. James
678 A.2d 1338 (Supreme Court of Connecticut, 1996)
State v. Linkous
460 S.E.2d 288 (West Virginia Supreme Court, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
438 S.E.2d 881, 190 W. Va. 538, 1993 W. Va. LEXIS 202, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-williams-wva-1993.