In the Matter of STEPHFON W., A Child Under 18 Years of Age, and Betty B., Parent or Custodian of Said Child, Appellants. In the Matter of GEORGE ANTHONY W., A Child Under 18 Years of Age, and Joanne O., Parent or Custodian of Said Child, Appellant.
Nos. 21861, 21862.
Supreme Court of Appeals of West Virginia.
Submitted Feb. 8, 1994. Decided March 25, 1994.
442 S.E.2d 717
D.J. Romino, II, D. Conrad Gall, Fairmont, for appellants in No. 21862.
G. Richard Bunner, Pros. Atty. of Marion County, James H. Hearst, First Asst. Pros. Atty. of Marion County, Fairmont, for State of West Virginia.
MILLER, Justice:
We consolidated these two appeals because they involve a common issue in connection with a juvenile transfer hearing under
The Circuit Court of Marion County, by order dated January 20, 1993, transferred Stephfon W. and George Anthony W., from juvenile jurisdiction to adult criminal jurisdiction. The defendants are charged with first degree murder.
I.
The facts surrounding the criminal charges are as follows. Ralph Minor found his sister, Dortha Minor, dead in her Fairmont home on November 23, 1992. Ms. Minor‘s death was believed to be a homicide according to the Fairmont City Police who conducted the investigation. Several suspects and possible witnesses were questioned, including Stephfon W. He was in juvenile court on another charge and also was detained on a capias warrant. During the initial questioning at the courthouse, Stephfon allegedly stated that George Anthony W. murdered Ms. Minor. Police later brought George Anthony to the police station for questioning. He allegedly told the police that he attacked Ms. Minor and that Stephfon was an active participant in the murder. When confronted with this information, Stephfon admitted his active participation in the murder to the police. Inculpatory statements were taken from both juveniles.
Both juveniles were appointed separate counsel and the circuit court held a combined preliminary hearing for them on December 4, 1992. During this hearing, the State introduced the juveniles’ confessions and additional testimony was given by the investigating officer as to the circumstances surrounding the confessions as well as other corroborating evidence. Counsel for the juveniles did not offer any evidence, but did cross-examine the State‘s witnesses.
At the preliminary hearing, the State submitted proposed findings of fact and conclusions of law. Counsel for the juveniles ob-
On December 16, 1992, the circuit court held a combined transfer hearing on the juveniles. Defense counsel moved for a continuance based on the fact that they needed more time to prepare evidence regarding the involuntariness of the juveniles’ confessions. They also sought to obtain the transcript of the preliminary hearing. The motion for continuance was denied.
At the urging of the prosecuting attorney, the circuit court accepted the probable cause findings of fact and conclusions of law made at the preliminary hearing. Over objections by defense counsel, the trial court ordered the juveniles transferred to adult criminal jurisdiction.
II.
There are critical distinctions between a preliminary hearing in a juvenile proceeding and a hearing whereby the juvenile court waives its jurisdiction and transfers a juvenile to adult criminal jurisdiction. The primary purpose of a preliminary hearing under
Moreover, there is no requirement in the juvenile preliminary hearing statute,
The transfer of a juvenile to adult criminal jurisdiction under
“Moreover, the [juvenile] transfer statute,
W.Va.Code, 49-5-10 (1978) , andW.Va.Code, 49-5-1 (1978) , which contains general provisions regarding hearing rights, as well as State v. McArdle, 156 W.Va. 409, 194 S.E.2d 174 (1973), [modified on other grounds, State v. Hatfield, 169 W.Va. 191, 286 S.E.2d 402 (1982)], provide substantial due process rights that must be accorded a juvenile at a transfer hearing, including: (1) an advance written notice of the grounds relied upon for transfer; (2) an opportunity to be heard in person and to present witnesses and evidence; (3) the right to confront and cross-examine adverse witnesses; (4) a neutral hearing officer; (5) the right to have counsel present against him and of his right to counsel.... If the child or his parent, guardian or custodian has not retained counsel, counsel shall be appointed as soon as practicable.”
Moreover, we consistently have required that at a transfer hearing, the circuit court must make an independent determination of whether there is probable cause. As we stated in Syllabus Point 4 of In the Interest of Moss, 170 W.Va. 543, 295 S.E.2d 33 (1982):
”
‘W.Va.Code § 49-5-10(d) [1978] requires that the circuit court make an independent determination of whether there is probable cause to believe that a juvenile has committed one of the crimes specified for transferring the proceeding to criminal jurisdiction.’ Syllabus, In the Interest of Clark, 168 W.Va. 493, 285 S.E.2d 369 (1981).”
See also State v. Largent, 172 W.Va. 281, 304 S.E.2d 868 (1983).
A further indication of the solemnity of a transfer hearing is the requirement contained in Syllabus Point 3 of Moss:
“The probable cause determination at a juvenile transfer hearing may not be based entirely on hearsay evidence.”
In State v. Beaman, 181 W.Va. 614, 383 S.E.2d 796 (1989), overruled, in part, on other grounds, E.B. v. Canterbury, 183 W.Va. 197, 394 S.E.2d 892 (1990), we rejected the contention that an indictment returned against a juvenile was sufficient evidence to establish probable cause at a transfer hearing.5
This case is similar to the case of In the Interest of Clark, 168 W.Va. 493, 285 S.E.2d 369 (1981), where the court held the transfer hearing and took testimony from the juvenile referee. His testimony was that he conducted the preliminary hearing for the juvenile and found probable cause that the juvenile had committed the murder. A police officer testified that he investigated the murder and brought charges against the juvenile. We found this independent determination to be insufficient to show probable cause.
We do not agree with the State‘s argument that the fact that the circuit judge heard the matters presented at the preliminary hearing and made findings of fact and conclusions of law was sufficient to comply with the transfer hearing requirements. To allow such a result would destroy the concept of an independent examination of probable cause at a transfer hearing. Moreover, it would violate the juvenile‘s right to be heard, right to present witnesses, and right to confront and cross-examine adverse witnesses, all of which are due process rights required at a transfer hearing, as we have indicated earlier.
What needs to be emphasized is that a transfer hearing is a separate and distinct proceeding from a preliminary hearing.
Moreover, as this section also states, the judge at the transfer hearing is required to consider the juvenile‘s mental, physical, and emotional conditions. As we outlined in Syllabus Point 4 of State v. Gary F., 189 W.Va. 523, 432 S.E.2d 793 (1993):
“‘Before transfer of a juvenile to criminal court, a juvenile court judge must make a careful, detailed analysis into the child‘s mental and physical condition, maturity, emotional attitude, home or family environment, school experience and other similar personal factors.
W.Va.Code, 49-5-10(d) .’ Syl. Pt. 4, State v. C.J.S., 164 W.Va. 473, 263 S.E.2d 899 (1980), overruled in part on other grounds [in] State v. Petry, 166 W.Va. 153, 273 S.E.2d 346 (1980) and State ex rel. Cook v. Helms, 170 W.Va. 200, 292 S.E.2d 610 (1981). Syl. Pt. 2, State v. Sonja B., 183 W.Va. 380, 395 S.E.2d 803 (1990).”6
For the foregoing reasons, we conclude that the State may not rely on the evidentiary transcript of the preliminary hearing or the findings of fact and conclusions of law made at such hearing to establish probable cause at the transfer hearing.7
We also conclude for the same reason that the circuit court erred in utilizing its findings from the preliminary hearing to determine the confessions were voluntary. This action denied the juveniles their right of cross-examination and their right to testify and present evidence on this issue at the transfer hearing. We consistently have held that if a confession is to be used at a transfer hearing, its voluntariness must be determined at that time. As we stated in Syllabus Point 4 of Matter of Mark E.P., 175 W.Va. 83, 331 S.E.2d 813 (1985):
“‘At a transfer hearing, the court must determine the validity of a confession before allowing it to be used against the accused.’ Syllabus Point 6, In the Interest of Moss, 170 W.Va. 543, 295 S.E.2d 33 (1982).”
For the foregoing reasons, we reverse the order of the circuit court and remand these cases for a new transfer hearing.
Reversed and remanded.
NEELY, Justice, dissenting:
Both Mr. S.W. and Mr. G.A.W. were given ample opportunity to consult with family members; both were afforded the opportunity to enlist the aid of a lawyer; both were read their juvenile rights and Miranda rights; both, with their parents, signalled their full understanding of such rights and signed knowing and voluntary waivers. Both, accompanied by their parents and relatives, confessed to the homicide and each implicated the other. On the request of the police, both voluntarily took officers to the areas where items of evidence were thrown. Both, after thorough discussions with their lawyers, opted to waive detention hearings. Nowhere is there evidence of threats, promises, illegal or improper inducements or any other form of coercion exerted on either Mr. S.W. or Mr. G.A.W. to make such confessions.
Based on this testimony, the State submitted its proposed probable cause findings of
To urge, as the majority does, that Judge Merrifield make an “independent determination” of his own preliminary hearing findings of fact and conclusions of law is not only redundant and flagrantly inefficient; it also amplifies the plethora of procedural punctiliones that are paralyzing the truth-finding functions of courts in criminal cases.
In the late 1960s, courts embarked upon an ambitious program to advance civil liberties through criminal procedure. This strategy might have worked if simultaneously there had not been the beginnings of a relentless rise in the overall level of savagery in this country. Thus, court efforts to use criminal procedure to control ignorant and brutal police, corrupt prosecutors and arrogant and class-biased courts actually backfired; procedural niceties in furtherance of civil liberties caused the average person—including the average judge and the average lawyer—to become extraordinarily impatient about any procedural technicality. In other words, to release an axe murderer who will certainly kill again and again simply because a proper search warrant was not executed to find the axe stashed in his refrigerator so confounded the public‘s legitimate expectations that the government will protect them that all so-called “technicalities” in criminal law came to be held up to ridicule.
When we begin to use “procedural technicalities” as a tool to achieve results motivated by political inclinations, it sours everyone on procedural rules that do, however, contribute to the truth-finding functions of courts—for example, the rules limiting hearsay, the rules setting minimum standards on the qualifications of expert witnesses, and the legitimacy of certain types of scientific evidence. If a pamrockwellization of the law is to be avoided, see State v. Delaney, 187 W.Va. 212, 218, 417 S.E.2d 903, 909 (Neely, J., dissenting), we must distinguish between procedural niceties that strangle truth-finding to advance political agendas from procedural niceties that contribute to and enhance truth finding.
In this case, the majority fails to make just such a distinction. Ignoring the almost incontrovertible evidence presented at the preliminary hearing that Mr. S.W. and Mr. G.A.W. committed deliberate pre-meditated cold-blooded murder of a kindly old woman, that their confessions to this murder were made with all procedural safeguards afforded them, and that the full-blown trial-like transfer hearing that the majority now demands has essentially already occurred, is of record, and is fully transcribed in the preliminary hearing, not only renders what the court orders today redundant and superfluous; it also makes courts look preposterous and adds more fuel to inflame the “get tough on crime” enthusiasts. In plucking from the air procedural technicalities that in this case can only be designed to vindicate the majority‘s denial reflex, to wit, that children should not have evil intent, the majority‘s decision is like the thirteenth chime of a ridiculous clock which is not only in and of itself absurd, but casts aspersions on the legitimacy of the other twelve.