STATE of West Virginia, Appellee, v. GEORGE ANTHONY W., An Infant Under the Age of 18 Years, and Joann W. O., Parent And/Or Custodian of Said Child, Respondents Below, George Anthony W., An Infant Under the Age of 18 Years, Appellant. STATE of West Virginia, Appellee, v. STEPHFON W., An Infant Under the Age of 18 Years, and Betty B., Parent and/or Custodian of Said Child, Respondents Below, Stephfon W., An Infant under the Age of 18 Years, Appellant.
Nos. 23393, 23394
Supreme Court of Appeals of West Virginia
Decided Dec. 13, 1996
488 S.E.2d 361
ALBRIGHT, Justice
Submitted Oct. 1, 1996.
For the above stated reasons, the decision of the Circuit Court of Kanawha County is affirmed, in part, reversed, in part, and remanded with directions to enter an order extending the rehabilitative alimony award until the end of the dependency of the parties’ child.
Affirmed, in part, reversed, in part, and remanded.
McHUGH, C.J., and WORKMAN, J., dissent and reserve the right to file dissenting opinions.
James Robert Amos, D. Conrad Gall, Fairmont, for Appellant George Anthony W.
Frances C. Whiteman, Fairmont, for Appellant Stephfon W.
ALBRIGHT, Justice:
The appellants in this proceeding,1 George Anthony W. and Stephfon W., who are infants, claim that the Circuit Court of Marion County, acting as the Juvenile Court of that County, erred in transferring them to the adult jurisdiction of the court and in directing that they be tried as adults for the
The record in this case shows that the stabbed, strangled, and beaten body of Dortha Minor was found in her home in Fairmont on November 23, 1992. Ms. Minor had previously given money to members of the appellants’ family, and early in the investigation of the crime police officers questioned the appellant Stephfon W.‘s mother, Y.B., and aunt, C.W. or C.B.W. or C.B. or C., about it. As a result of the questioning, the aunt, on November 25, 1992, notified the police that Stephfon W., who was then fifteen years old, might have been involved in the homicide.2
Stephfon W. had previously been involved in criminal activity, had been adjudicated a delinquent, and had been placed on probation. He had violated the terms of his probation and had failed to appear at a juvenile probation revocation hearing scheduled for approximately 1:00 or 1:30 p.m. on November 25, 1992. As a consequence, a capias was issued for his arrest, and Stephfon was located at around 3:30 p.m.
However, shortly after the issuance of the capias, Stephfon was taken into custody and was taken to the Fairmont City Police Station rather than to a court or a juvenile detention center. There the city police informed Stephfon that they wanted to talk to him about the Minor murder. Police Chief Ted Offutt read Stephfon his Miranda rights and asked him if he knew anything about the murder. He denied any knowledge.
From the police station, Stephfon W. was taken before a judge of the Circuit Court of Marion County for a hearing on the probation revocation question. Upon arriving, a police officer informed the court and the prosecuting attorney that the police wanted to question Stephfon about the murder of Dortha Minor after the hearing. It does not appear that the attorney representing Stephfon in the probation revocation was informed or undertook to advise Stephfon with regard to the questioning or the murder.3 It appears that his representation was limited to the probation revocation matter. At the conclusion of the revocation hearing, the court revoked Stephfon W.‘s probation and sentenced him to one year at the Industrial Home for Youth at Salem.
Stephfon W. remained at the court for approximately one hour while paper work was being completed. Then, in violation of
At 6:30 p.m., after the oral statement was concluded, Stephfon W. and his mother, who was not his legal guardian, executed a “Juvenile Rights and Waiver” form, and shortly thereafter Stephfon W. signed a written transcription of his taped statement.7
At around 8:20 p.m., the police, with the assistance of George W.‘s mother and his “stepfather“, located George at a friend‘s house.8 He and his stepfather were then taken to the police station in a police vehicle. His mother followed in her vehicle.
There is no evidence that George was notified that he was not under arrest or free to leave when he arrived at the police station. To the contrary, a Detective Retton indicated that George was not free to leave. Detective Retton‘s testimony on this point proceeded as follows:
Q: Now, at the—was George free to leave at 8:20 when this questioning was started?
A: When it started?
Q: Yes, sir.
A: I—that wouldn‘t have been my decision. I don‘t know—I don‘t believe he would have been able to leave.
Q: Do you know if he would have been able to leave at the conclusion of the interview at 9:05?
A: At the conclusion, I don‘t believe he would have been allowed to leave.
At the police station, George was given his Miranda rights, and he signed a “Juvenile Rights and Waiver” form.9 His mother did not sign the portion of the form indicating recognition of the right of George to be taken before a juvenile referee or circuit judge. She did sign the addendum indicating that she was willing to have George talk to police officers. George also agreed to give a taped statement.
When the taping began, Police Chief Offutt again recited Miranda rights to George. In the statement, George suggested that Stephfon W. had murdered Dortha Minor and that he had assisted. George also agreed to take the police to search for physical evidence.
[I] didn‘t think there would be a need to call a Magistrate at that point. It was after hours. It was Thanksgiving eve. We would need a Magistrate, a Prosecutor, a defense attorney, the Department of Human Services. That takes an hour or so to set up. I saw no need to do it. Why not do it when we were all ready, and when we were ready is when I called.
Detective Cain further explained that if a magistrate had been called, “the Magistrate wants the juvenile forthwith. I‘m not going to call them and say I‘m ready to come when I‘m not ready to come.”
After George gave his statement, the questioning of Stephfon proceeded, and Stephfon was informed of the differences between his statement and that of George. At length, Stephfon admitted that he stabbed Dortha Minor a couple of times and agreed to give an amended statement.
At 9:36 p.m., Stephfon gave a second statement, which suggested that he was more involved in the murder than was indicated by his first statement. He also suggested where physical evidence involved in the crime might be located.
After obtaining this statement, the police, accompanied by George, his mother and stepfather, conducted a search for the physical evidence. The search was unsuccessful, and the police asked George and his family for permission to search an automobile and their home. The permission was granted, and the search revealed articles of clothing which the police believed were connected to the crime.
With the hope of locating other physical evidence, two other officers took Stephfon W. and his mother on a further search. This search was conducted with Stephfon‘s consent and produced a cooking pot and a knife mentioned in the confessions.
At around 10:00 p.m. on this same day, November 25, 1992, George W. was taken to a magistrate court for a detention hearing. Upon arrival, Stephfon W. was already there.
A preliminary hearing was held on December 4, 1992. The State presented evidence to establish probable cause, including the juveniles’ confessions and the testimony of officers who were involved in the investigation. Although counsel for Stephfon W. and George W. did not offer evidence, they did cross-examine the State‘s witnesses. At the conclusion of the hearing, Judge Merrifield, upon findings of fact and conclusions of law, found probable cause to believe that Stephfon W. and George W. had participated in the death of the decedent. He ordered that they be held without bond, pending adjudication of their cases.
On December 16, 1992, the court held a hearing on the State‘s motion to transfer both juveniles to the criminal jurisdiction of the court. The defense attorneys moved for continuances for both juveniles, stating that they had not had sufficient time to prepare their responses to the State‘s motion to transfer. Defense counsel for both juveniles appealed to this Court, where we reversed and remanded for a new transfer hearing.10
On remand, the court held a seven-day hearing. The first four days of the hearing were devoted to the defense counsels’ motions to suppress certain evidence, and the last three days were devoted to the State‘s motion to transfer. By order dated June 14, 1995, the court denied the defendants’ motions to suppress and granted the State‘s motion to transfer. It is from this order that the appellants now appeal.11
A child in custody must immediately be taken before a referee or judge of the circuit court and in no event shall a delay exceed the next succeeding judicial day: Provided, That if there be no judge or referee then available in the county, then such child shall be taken immediately before any magistrate in the county for the sole purpose of holding a detention hearing. The judge, referee or magistrate shall inform the child of his or her right to remain silent, that any statement may be used against him or her and of his or her right to counsel, and no interrogation shall be made without the presence of a parent or counsel. If the child or his or her parent, guardian or custodian has not retained counsel, counsel shall be appointed as soon as practicable....
Whether the appellants were entitled to such a hearing and whether one was appropriately conducted is of some importance for, under the law of this State, the failure of police authorities to afford a juvenile the appropriate hearing can affect the validity of any confession which results from the failure to conduct such a hearing. As stated in syllabus point 3 of State v. Ellsworth J.R., 175 W.Va. 64, 331 S.E.2d 503 (1985):
Under
W.Va.Code, 49-5-8(d) , when a juvenile is taken into custody, he must immediately be taken before a referee, circuit judge, or magistrate. If there is a failure to do so, any confession obtained as a result of the delay will be invalid where it appears that the primary purpose of the delay was to obtain a confession from the juvenile.12
Under the quoted standards, two relevant questions arise in the present proceeding: The first is whether the appellants were taken into custody without being provided with the hearing required by
In Ellsworth, the Court indicated that custody, as used in
“An arrest is the detaining of the person of another by any act or speech that indicates an intention to take him into custody and that subjects him to the actual control and will of the person making the arrest.” Syllabus point 1, State v. Muegge, 178 W.Va. 439, 360 S.E.2d 216 (1987).13
In State v. Moss, 180 W.Va. 363, 376 S.E.2d 569 (1988), this Court explained that, in the juvenile context, an arrest may occur even though a juvenile is not actually taken into custody initially for a crime in issue. In that case, the juvenile was confined in the Ohio State Reformatory for crimes committed in Ohio. West Virginia authorities learned of his whereabouts and lodged a detainer against him so that he would not be released from custody before they could transport him to West Virginia to answer West Virginia charges. Upon being transported to West Virginia, he was not given a
In examining the present case, the Court believes that the evidence supports the conclusion that both the appellants were held in custody without being presented before a judicial officer, in violation of
In the case of George W., the record conclusively shows that the police, after obtaining the statement of Stephfon W. implicating George in the crime, made a deliberate effort to locate George W. and, upon finding him, placed him in a police cruiser. Three witnesses in this case testified that George W. was taken by the arms and escorted to the police cruiser and handcuffed. A detective present testified that he was not handcuffed. He was then taken to the police station for interrogation. It is clear that George was not advised that he could walk away from interrogation at any time, and Detective Retton, an officer involved in the case, testified that he did not believe that George was free to leave when he arrived at the police station for questioning.
Recently, in State v. Jones, 193 W.Va. 378, 456 S.E.2d 459 (1995), this Court examined the circumstances under which the stop of a person for interrogation by the police was converted into a custodial detention. The Court indicated that controlling factors were the length, duration, and purpose of the stop; the extent of the questioning; and the location of detention and interrogation. The Court also indicated that limited police investigatory interrogation was allowable when a suspect was expressly informed that he was not under arrest, he was not obligated to answer questioning, and he was free to go. Here, George was detained for a lengthy period of time and questioned extensively. He was detained in a police cruiser and at a police station, and the obvious purpose of the questioning was to explore his involvement in the murder of Dortha Minor and possibly to extract a confession from him. He was not told that he was free to leave.
Accordingly, under the overall circumstances of this case, this Court believes that both Stephfon W. and George W. were in custody within the meaning of our juvenile cases.
The record in the case also conclusively shows that Stephfon W. and George W. were not given
When there is a failure to conduct a timely
The Court notes that Stephfon W. also argues that, under the fruit of the poisonous tree doctrine, physical evidence in this case discovered as a result of the confessions was inadmissible. See State v. Mullins, 177 W.Va. 531, 355 S.E.2d 24 (1987); State v. Stanley, 168 W.Va. 294, 284 S.E.2d 367 (1981); and State v. Canby, 162 W.Va. 666, 252 S.E.2d 164 (1979).
We cannot discern from the record that the confessions were the only sources leading the police to the discovery of the physical evidence, and it appears that there might have been consents, other than those given by Stephfon W. and George W., which impact on the admissibility of this evidence. In light of the Court‘s confusion on this point, we believe that, upon remand, the trial court should take such steps as are reasonably necessary to develop the full facts surrounding the seizure of the physical evidence and should then reassess the admissibility of that evidence in light of the law.
After examining the record, it is also clear to this Court that the decision to transfer the appellants to the jurisdiction of the circuit court from the jurisdiction of the juvenile court was based upon the confessions. Since the Court believes that the confessions and physical evidence were inadmissible, the decision of the circuit court transferring jurisdiction of the case was based upon improper evidence and must be reversed.
For the reasons stated, the decision of the Circuit Court of Marion County transferring the jurisdiction of these cases is reversed, and the Court declares that the confessions discussed herein were illegally obtained and are inadmissible against the appellants and should be suppressed. The cases are remanded for such further proceedings under the juvenile or criminal jurisdiction of the circuit court as may be appropriate and necessary.
Reversed and remanded.
STATE of West Virginia v. GEORGE ANTHONY W., et al.
Nos. 23393, 23394
Supreme Court of Appeals of West Virginia
Decided Dec. 13, 1996
The result reached by the majority is patently absurd. It has stretched the intent of the juvenile procedural protections to the point of shattering. The complexity of this matter has been exaggerated, and the entire predicament boils down to one simple question: were the confessions of these two juveniles legally obtained? The lower court held, quite properly in my view, that they were. A majority of this Court disagreed.
I. Prompt Presentment
The factual recitation undertaken by the majority is quite thorough; its interpretation of those facts, however, is profoundly flawed. The essence of the juveniles’ argument is that the requirements of
Under
W.Va.Code, 49-5-8(d) , when a juvenile is taken into custody, he must immediately be taken before a referee, circuit judge, or magistrate. If there is a failure to do so, any confession obtained as a result of the delay will be invalid where it appears that the primary purpose of the delay was to obtain a confession from the juvenile.
The juvenile in Ellsworth had also challenged the validity of his confession, taken while he was in custody and without counsel or relatives present. Based upon information from the victim‘s sister-in-law, the police had approached the juvenile, asked his if he would accompany them to the police station, and provided the juvenile with his Miranda warnings. 175 W.Va. at 67, 331 S.E.2d at 506. Confronted with some of the statements that the police had obtained, the juvenile confessed to pushing the victim into a quarry. Id. “Upon the arrival at the police barracks a short time later, he was again read his Miranda warnings and gave a seven-page written statement. He was taken before a magistrate within two and one-half hours after he was initially picked up by the police.” Id.
The juvenile in Ellsworth attacked the confession based upon the prompt presentment statute,
The pivotal question in the midst of this inquiry is the moment at which this requirement of prompt presentment is triggered. Ellsworth noted the “similarity between a juvenile detention hearing and the initial presentment of an adult before a magistrate ...” In State v. Persinger, 169 W.Va. 121, 286 S.E.2d 261 (1982), for instance, we discussed
All of this was designed to bring a detached judicial officer into the process once an arrest had been made to furnish meaningful protection for a defendant‘s constitutional rights. These same considerations apply to juvenile defendants even more forcibly because of their age and immaturity. Furthermore, because of the likelihood that a juvenile who commits a serious crime may be transferred to the adult jurisdiction of the circuit court under
While holding in syllabus point three of Ellsworth, as quoted above, that a confession obtained as a result of the delay will be invalid where it appears that the primary purpose of the delay was to obtain a confession from the juvenile, we specifically acknowledged “that in certain situations a confession otherwise proper is not necessarily invalid because it was obtained before the juvenile was brought before a referee, judge or magistrate.” Id. at 70, 331 S.E.2d at 508. Time consumed in transportation is not counted, and the “State can justify delay by
Regarding the meaning of the word “custody,” in
The analysis in Humphrey proceeded as follows:
In the present case, the defendant voluntarily went with the State police to be interrogated. Several of the State police officers who were involved in the interrogation testified that the defendant was not under arrest initially and could have left at any time of his own free will. Before the interrogation, the defendant was a suspect in the case, but it is not clear, based upon the record, that the police had probable cause to arrest until he orally confessed by stating, “I did it.” It was at this point shortly after 9:00 p.m. that the prompt presentment rule was triggered.
Id. at 268, 351 S.E.2d at 617.
In syllabus point two of State v. Hosea, 199 W.Va. 62, 483 S.E.2d 62 (1996), we explained as follows:
The Court is constitutionally obligated to give plenary, independent, and de novo review to the ultimate question of whether a particular confession was obtained as a result of the delay in the presentment of a juvenile after being taken into custody before a referee, circuit judge, or a magistrate when the primary purpose of the delay was to obtain a confession from the juvenile. The factual findings upon which the ultimate question of admissibility is predicated will be reviewed under the deferential standard of clearly erroneous.
Applying that standard of review, this Court competently navigated the facts and procedural requirements relevant to Hosea, a case very similar to the one to which I am presently dissenting. In Hosea, the juvenile also challenged the admission of his confession given prior to presentment to a magistrate under
- there was a substantial delay between the time the defendant was taken into custody and the time he was presented to a magistrate in Summers County;
- prior to the time the defendant was presented before the magistrate in Summers County, a statement was taken from the defendant
in which he described what occurred during the critical times on September 18, 1994; - the statement was obtained from the defendant after he had an opportunity to confer in person with his mother and after he was advised of and waived his rights to which he was entitled under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Id. at 69, 483 S.E.2d at 69. We then quite logically explained that “[b]uilding upon these factual predicates, the issue to address is whether the primary purpose for the delay between the time the defendant was taken into custody and the time of his presentment to a magistrate was to obtain a confession from the defendant.” Id. We ultimately concluded that issues of the extent of the victim‘s injuries, the identity of the victim, and notification of the juvenile defendant‘s mother, were being addressed and we were “convince[d] ... by a preponderance of the evidence that the primary reason for delay was not to obtain a confession.” Id.
I disagree with the majority on two major elements encompassed within the prompt presentment discussion. First, I disagree regarding the point at which the prompt presentment rule was activated. The triggering event is not upon suspicion, not upon initial questioning, not upon denials of involvement, but only upon the advent of probable cause to arrest. Second, even if the majority had determined that the prompt presentment rule had been triggered, a confession prior to presentment is not invalidated unless the primary purpose of the delay in presentment was to obtain a confession. Either avenue would have resulted in an affirmance of the determination of the lower court.
I am also troubled by the majority‘s ineffective management of the issue of admissibility of the physical evidence. The majority appears to conclude that the admissibility is an issue for consideration on remand by stating as follows:
We cannot discern from the record that the confessions were the only sources leading the police to the discovery of the physical evidence, and it appears that there might have been consents, other than those given by Stephfon W. and George W., which impact on the admissibility of this evidence. In light of the Court‘s confusion on this point, we believe that, upon remand, the trial court should take such steps as are reasonably necessary to develop the full facts surrounding the seizure of the physical evidence and should then reassess the admissibility of that evidence in light of the law.
However, the following paragraph appears to indicate a retreat from that position: “Since the Court believes that the confessions and physical evidence were inadmissible, the decision of the circuit court transferring jurisdiction of the case was based upon improper evidence and must be reversed.” (Emphasis supplied).
Justice Neely penned a ravishing assault upon the majority the first time it remanded this juvenile matter in In re Stephfon, 191 W.Va. 20, 442 S.E.2d 717 (1994), for another juvenile transfer hearing. He accurately noted as follows:
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, signaled 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.
191 W.Va. at 25, 442 S.E.2d at 722.
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
Id. I must say, I miss Justice Neely sometimes.
II. Policy Argument
Turning its decision upon the prompt presentment requirements, the majority did not focus upon the evidentiary constraints applicable to a juvenile transfer hearing. An extremely disconcerting trend has insidiously crept into our recent jurisprudence, affording juveniles unwarranted and unnecessary protections at juvenile transfer hearings. Absent a constitutional or statutory requirement, I believe that the presentation of evidence at juvenile transfer hearings should not be subject to the same evidentiary constraints that a trial on the merit demands and that transfer hearings should be treated more in the nature of preliminary hearings and grand jury proceedings.1 At both preliminary hearings and grand jury proceedings, adherence to the West Virginia Rules of Evidence is relaxed—at least partially due to fact the guilt or innocence of an accused is not to be determined.2 The purpose of such hearings and proceedings is to ascertain whether, at that time, a particular case against an accused should proceed toward trial. Likewise, the purpose of a juvenile transfer hearing is not to decide the guilt or innocence of a juvenile, but it is to determine whether there is “probable cause to believe” the juvenile proceeding should be transferred to the criminal jurisdiction.
No child who has been convicted of an offense under the adult jurisdiction of the circuit court shall be held in custody in a penitentiary of this State: Provided, That such child may be transferred from a secure juvenile facility to a penitentiary after he shall attain the age of eighteen years if, in the judgment of the commissioner of the department of corrections and the court which committed such child, such transfer is appropriate: Provided, however, That any other provision of this Code to the contrary notwithstanding, prior to such transfer the child shall be returned to the sentencing court for the purpose of reconsideration and modification of the imposed sentence, which shall be based upon a review of all records and relevant information relating to the child‘s rehabilitation since his conviction under the adult jurisdiction of the court.
Thus, “[j]uveniles who are transferred to and convicted under the adult jurisdiction of a circuit court are nevertheless afforded the same commitment and rehabilitation rights as those adjudged delinquent under juvenile jurisdiction.” State v. Highland, 174 W.Va. 525, 528, 327 S.E.2d 703, 706 (1985). “Accordingly, the legislature has provided at least three alternatives to a sentencing court for the proper disposition of such an individual.” Id.5
Advocates of strict adherence to the rules of evidence contend that, unlike preliminary hearings and grand jury proceedings, juvenile transfers represent a comprehensive change in the way juvenile cases will be examined.6 Indeed, there can be no doubt the United States Supreme Court considers a juvenile transfer hearing “a ‘critically important’ proceeding” that “must measure up to the essentials of due process and fair treatment.” Kent v. United States, 383 U.S. 541, 560, 562, 86 S.Ct. 1045, 1057, 1057, 16 L.Ed.2d 84 (1966) (citation omitted). How-
In State v. Milk, 519 N.W.2d 313 (S.D.1994), the court recognized that the legislature had statutorily defined the list of exceptions to the applicability of the rules of evidence, and refused to judicially expand those exceptions to include juvenile transfer hearings. Id. at 316. The court reasoned that the “decision to admit hearsay at juvenile transfer hearings should be made via the legislative or rulemaking process.” Id.8
In State v. Nicholas H., 131 N.H. 569, 560 A.2d 1156 (1989), the New Hampshire Supreme Court considered the admissibility of hearsay evidence in a juvenile transfer hearing, addressed the absence of any specific
In the absence of a clear and specific exemption, we hold that the rules of evidence apply to juvenile certification hearings. Accordingly, we conclude that the hearsay statements [of a witness] were inadmissible and that the district court improperly considered them in making its finding of prosecutive merit under [N.H.Rev.Stat. Ann. § 169-B:24—the juvenile transfer statute].
Id. 560 A.2d at 1158. Subsequent to the Nicholas decision, New Hampshire‘s Rules of Evidence were specifically amended to provide that the rules of evidence “do not now apply to juvenile certification proceedings.” See In re Eduardo L., 136 N.H. 678, 621 A.2d 923, 930 (1993).
The statutory scheme in West Virginia, codified at
Thus, I urge the legislative branch, and this Court at an appropriate time, to address this issue and to consider moving toward the trend suggested herein, which will afford both juveniles and the state a fair, but more expedited procedure with regard to juvenile transfer to adult jurisdiction.
Notes
(b) Rules inapplicable.—Unless otherwise provided by rules of the Supreme Court of Appeals, these rules other than those with respect to privileges do not apply in the following situations:
(1) Preliminary questions of fact.—The determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under Rule 104(a).
(2) Grand jury.—Proceedings before grand juries.
Of course, as indicated above, any rules with respect to privileges continue to apply. In addition, evidence obtained in violation of the West Virginia Wiretapping and Electronic Surveillance Act of 1987 is inadmissible.
Q: Okay. You had had some conversations with several of Mr. W ...‘s family members, including Ms. B.... What caused you to look in that direction?
A: Well, this isn‘t the first incident we‘ve had involving Dortha Minor and money people going to the house and getting money and checks and taking her to the bank. And this group of people, the B...s, had been doing this for quite sometime.
Q: And Stephfon was a—or is a B.... In essence, he‘s a member of the same family, is that what you‘re saying?
A: Yes, sir.
Q: So your initial contact was, essentially, to go speak with the B...s, and based upon what—
A: There were other people we talked to who also did the same thing. This was a woman who had given away, what we believe to be large sums of money to people in the community that knew that they could approach her and she would give them money.
Q: Okay, but you fairly quickly had some idea that a member of the B.../B.../W... family might have been involved in this, isn‘t that true?
A: That‘s—you can assume that.
Elsewhere it is discussed in the following terms:
Q: Now, was Mr. W...‘s mother, Y.B., was she questioned at some time in this case?
A: Y.B.?
Q: Yes. That‘s Stephfon‘s mother.
A: Yes, sir. I would have to check the—
Q: You just don‘t recall now?
A: Well, I would have to check. I‘m not sure. I know there were several members of the family questioned.
Q: Let me see if I can—if I showed you your testimony from the first hearing on that issue, would that help jog your recollection?
A: It‘s been awhile.
Q: Here on page 79 of the December 4th, 1992, preliminary hearing. Start at page 78. My co-counsel tells me there‘s more there.
A: I believe at that time I stated that she was questioned, yes, sir.
Q: Okay, and she was in fact a suspect?
A: Well, the family—members of the family had gotten money from Ms. Minor over the years.
Q: Had there been other folks that had gotten money from Ms. Minor as well?
A: Yes, sir.
Q: And was one of those C.W., or C.B.W.?
A: Yes, sir.
Q: And was she also questioned?
A: Yes, sir, she was.
Q: And she was a suspect as well?
A: She was one of the people that we talked to because of the prior incidents with Dortha Minor, yes, sir.
Q: And what led you to believe that you should question Stephfon especially?
A: Information I received from C.B.
Q: And what was that information?
A: Basically, that there had been a confrontation when she refused to give Stephfon money on a prior occasion and that Stephfon was running with a group of people she called a gang and that she believed that they were the ones responsible for the act.
Q: Did you inform Stephfon that in fact you had questioned his mother, Y., and his aunt, C., previously?
A: They were with him, sir.
Q: Yes, but I‘m saying did you tell him, we‘ve questioned them, we suspected them before?
A: I don‘t think I made that statement to him, no, sir.
For instance, in State v. Haught, 179 W.Va. 557, 371 S.E.2d 54 (1988), this Court said “the purpose of a preliminary hearing is to determine whether there is probable cause to believe that an offense has been committed and that the defendant has committed it.” Id. at 562-63, 371 S.E.2d at 59-60. Similarly, in denying an application for a stay of enforcement of a judgment, the Honorable William H. Rehnquist, Justice, stated in Bracy v. United States, 435 U.S. 1301, 98 S.Ct. 1171, 55 L.Ed.2d 489 (1978):The grand jury does not sit to determine the truth of the charges brought against a defendant, but only to determine whether there is probable cause to believe them true, so as to require him to stand trial. Because of this limited function, we have held that an indictment is not invalidated by the grand jury‘s consideration of hearsay, ... or by the introduction of evidence obtained in violation of the Fourth Amendment.... While the presentation of inadmissible evidence at trial may pose a substantial threat to the integrity of that factfinding process, its introduction before the grand jury poses no such threat.
Id. at 1302, 98 S.Ct. at 1172 (citations omitted).
A child under eighteen years of age shall not be committed to a jail or police station, except that any child over fourteen years of age who has been committed to an industrial home or correctional institution may be held in the juvenile department of a jail while awaiting transportation to the institution for a period not to exceed ninety-six hours, and a child over fourteen years of age who is charged with a crime which would be an offense of violence which would be a felony if committed by an adult, may, upon an order of the circuit court, be housed in a juvenile detention portion of a county facility, but not within sight of adult prisoners. A child charged with or found to be delinquent solely under subdivision (3), (4) or (5), section four [§ 49-1-4(3), (4) or (5)], article one of this chapter, shall not be housed in a detention or other facility wherein persons are detained for criminal offenses or for delinquency involving offenses which would be crimes if committed by an adult: Provided, That a child who is adjudicated delinquent under subdivision (5) of said section [§ 49-1-4(5)] and who has violated an order of probation or a contempt order arising out of a proceeding where in the child was adjudicated delinquent for an offense which would be a crime if committed by an adult may not be housed in a detention or other facility wherein persons are detained who have not been adjudicated delinquent for such offenses.
The events of the consolidated cases began in November 1992. After four years and two appeals, these cases, at the time the majority opinion was released, had progressed no further than the transfer stage. Not only did these juveniles have to wait for a final resolution of their cases, but we must never forget that the family and friends of Ms. Minor, who was brutally beaten and murdered, must endure these seemingly endless court battles.Q: Did Mr. ... [Stephfon] or Ms. B ... [his mother] or her sister Ms. B ... W ... [Stephfon‘s aunt], you call her now, ask for Ms. B ... [Stephfon‘s grandmother] to be there when these rights were being read or anything was being signed?
A: No, no one asked me for anyone else to be there or made any requests for Ms. B ... to be there.
Q: Did Ms. B ... make any request to be there at the time?
A: No, sir.
Q: She was available in case either she or anybody else wanted her to come in, is that correct?
Those three alternatives are explained in Highland as follows:First, under
Second, a sentencing court may initially proceed under the Youthful Male Offender Act, suspending the imposition of an adult sentence and committing the individual to the custody of Commissioner of Corrections for placement in a rehabilitation center for youthful offenders. See
Third, as was done in the case at hand, the court may simply sentence the juvenile as an adult. But, as directed by
Q: And then you left the room for a short time and he talked to his mother and his aunt, correct?
A: That‘s correct.
Q: Did you hear any of their conversation?
A: No, sir.
Q: So you don‘t know if they were telling him, you should tell anything you know or anything of that nature?
A: I would assume that that‘s what they were telling him, because they came out and said that he wanted to make a statement about it.
In our first encounter with these juveniles, we noted that a “transfer of a juvenile to adult criminal jurisdiction underIf you/your child is taken into custody, you/your child is entitled to be taken immediately before a juvenile referee or circuit court judge (in no event can the hearing be delayed until later than the next judicial day) for a detention hearing. The sole issue is whether you/your child will be detained pending further court proceedings.
At that point, there was a signature line for both the juvenile and his “Parent/Guardian/Custodian“. This was followed by an addendum, which stated:
By signing my name below, I am saying that, although I understand those rights above, I am willing (or, as the parent, guardian or custodian, I am willing for my child or ward) to talk to the police officer or other agent of the State of West Virginia or Marion County; and that I do this voluntarily with no undue influence of any kind whatsoever being placed on me.
There were more signature lines for the juvenile and the “Parent/Guardian/Custodian” below this.
Id. at 562, 86 S.Ct. at 1057; see also In re Gault, 387 U.S. 1, 30, 87 S.Ct. 1428, 1445, 18 L.Ed.2d 527 (1967) (reiterating principles espoused in Kent.)A: She was there in the hallway, yes, sir.
(j) At all adjudicatory hearings held under this article, all procedural rights afforded to adults in criminal proceedings shall be applicable unless specifically provided otherwise in this chapter.
(k) At all adjudicatory hearings held under this article, the rules of evidence applicable in criminal cases shall apply, including the rule against written reports based upon hearsay.
The related 1992 version of this provision is contained in
The Court is constitutionally obligated to give plenary, independent, and de novo review to the ultimate question of whether a particular confession was obtained as result of the delay in the presentment of a juvenile after being taken into custody before a referee, circuit judge or a magistrate when the primary purpose of the delay was to obtain a confession from the juvenile. The factual findings upon which the ultimate question of admissibility is predicated will be reviewed under the deferential standard of clearly erroneous.
When analyzing the juvenile prompt presentment standards, we are not as lenient with procedural shortcomings as we are with the adult standards. See State v. Ellsworth J.R., 175 W.Va. at 69, 331 S.E.2d at 508 (consideration of constitutional rights “apply to juvenile defendants even more forcibly [than to adult defendants] because of their age and immaturity“). Therefore, even brief, unexplained delays are magnified when a juvenile‘s rights are at issue.