In Re: D.M., 16-0947

Background

Petitioner D.M., age 14, was charged in juvenile proceedings with multiple counts of first-degree sexual assault and sexual abuse for allegedly forcing a younger child to perform oral sex and later sending a Facebook message apologizing to the victim’s mother.
At trial, Sergeant Brad Miller was asked by the State whether he attempted to obtain a statement from petitioner; defense objected as implicating the Fifth Amendment and moved for a mistrial.
The court recognized the question was improper, advised petitioner he was entitled to a mistrial, and gave him a recess; petitioner, after consulting counsel and his mother, knowingly and expressly waived the mistrial to continue the trial.
The jury convicted petitioner of one count of first-degree sexual assault; petitioner moved to set aside the verdict, which was denied.
At disposition the State recommended secure juvenile placement due to offense severity and community safety concerns; petitioner refused to accept responsibility and the court found no less restrictive alternative suitable.
The circuit court committed petitioner to the Department of Juvenile Services until age 21; petitioner appealed, arguing the mistrial should have been granted and that the court abused discretion by committing him without a required pre-disposition evaluation.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court erred in denying a mistrial after State’s question about a statement	D.M.: Court should have declared mistrial because question violated Fifth Amendment and prejudiced him	State/Court: Petitioner waived mistrial knowingly after being informed of right and given advice/recess	Court: Waiver was knowing and intelligent; no error in denying mistrial
Whether a juvenile can waive constitutional rights without counsel’s agreement	D.M.: Taylor requires counsel’s agreement for any juvenile waiver	State/Court: Taylor requires counsel/adult presence for waiver of counsel, not all waivers; here counsel and mother were present and advised	Court: Taylor not violated; petitioner had counsel and guardian input; waiver valid
Whether the court abused discretion by committing petitioner to secure detention	D.M.: Commitment was improper because court failed to order mandatory psychological evaluation and didn’t consider alternatives	State/Court: Rule 40(b) permits but does not require evaluations; community safety and lack of alternatives justified detention	Court: "May" is discretionary; court properly considered factors and did not err
Whether the court failed to consider required dispositional factors before incarceration	D.M.: Court didn’t adequately consider less restrictive alternatives and mitigating background	State/Court: Court considered petitioner’s lack of responsibility, severity, treatment history, recommendations, and danger to community	Court: Court made express findings addressing J.S. factors; disposition within sound discretion

Key Cases Cited

State v. Kirk N., 214 W.Va. 730, 591 S.E.2d 288 (disposition review standard; abuse of discretion) (W. Va. 2003)
State ex rel. D.D.H. v. Dostert, 165 W.Va. 448, 269 S.E.2d 401 (discretionary dispositional rulings reviewed for support in evidence) (W. Va. 1980)
In the Interest of Thomas L., 204 W.Va. 501, 513 S.E.2d 908 (juvenile disposition within circuit court’s sound discretion) (W. Va. 1998)
State ex rel. Dept. of Health & Human Resources v. Frazier, 198 W.Va. 678, 482 S.E.2d 663 (discretion in juvenile dispositions) (W. Va. 1996)
State v. Kenneth Y., 217 W.Va. 167, 617 S.E.2d 517 (standard for reviewing juvenile disposition) (W. Va. 2005)
State v. Eden, 163 W.Va. 370, 256 S.E.2d 868 (requirements for knowing and intelligent waiver) (W. Va. 1979)
State v. Blair, 158 W.Va. 647, 214 S.E.2d 330 (harmless error and waiver doctrines) (W. Va. 1975)
State ex rel. J.M. v. Taylor, 166 W.Va. 511, 276 S.E.2d 199 (juvenile waivers of counsel require advice/presence of counsel or adult) (W. Va. 1981)
Pioneer Pipe, Inc. v. Swain, 237 W.Va. 722, 791 S.E.2d 168 (interpreting "may" as discretionary) (W. Va. 2016)
State v. J.S., 233 W.Va. 198, 757 S.E.2d 622 (factors trial court must address when committing juvenile) (W. Va. 2014)

For these reasons the Supreme Court of Appeals affirmed the circuit court’s September 27, 2016 sentencing order.