State v. Rummer

compel a decision may instituted to decide. not how

but Richardson, Lyons Syllabus Point

See (1993);

189 W.Va. 429 S.E.2d Egnor,

ex rel. Dillon v. W.Va.

S.E.2d 624 reasons,

For the above stated the writ

prohibition granted as moulded and proceedings is remanded for consis-

case opinion.

tent with this granted as moulded.

Writ

432 S.E.2d 39 Virginia,

STATE of West Plaintiff

Below, Appellee, RUMMER,

Ronald Dean Defendant

Below, Appellant.

No. 21095.

Supreme Appeals Court of Virginia.

of West

Submitted Jan. 1993. May

Decided

Concurring Opinion of Justice 28, 1993. May

Workman

Dissenting Opinion of Justice

Neely May

MILLER, Justice: appeal This is an from the final order of the Circuit Court of County, Wood entered September sentencing the defen- dant, Rummer, Ronald Dean to two concur- imprisonment rent terms of upon his con- by jury a viction two counts of sexual degree. first abuse The defendant contends that both sentences arose from they the same transaction and that there- fore constitute unconstitutional double jeopardy. He also cites as error the trial at trial of his court’s admission out-of-court police and the statements admission of prosecuting witness’s out-of-court iden- tification of the defendant. Because we below, judgment find no error is affirmed. trial court charges against the defendant arose early an that occurred from incident C.D.,1 morning hours of June a woman, spent had twenty-one-year-old evening riding earlier around Parkersburg in a with friends friend’s car. a.m., approximately 1:00 as C.D. and her At home, friends neared C.D.’s C.D. informed go she her friends that wanted home. argument This a minor her led to friends desired to because continue Therefore, driving. was let C.D. out of eight her approximately car blocks from home. friends, taking leave

After of her C.D. began walking, home. she was to walk As following aware of she became a vehicle speed. very her at slow rate of C.D. a noticed that the driver of the vehicle was appeared as he hunched over drove passed balding. Gradually, the vehicle Shortly and turned corner. there- C.D. after, man became aware of a follow- C.D. ing her foot. concerned oh She became pace, fol- her but the man and increased to- faster. As C.D. turned lowed even Gen., McGraw, Jr., Atty. Bar- Darrell V. again, caught her and man he wards the Gen., Charleston, Koerber, Atty. ry Asst. yelled and told roughly grabbed her. C.D. appellee. put hand He one him to leave her alone. rubbing rough- began Jacobs, Parkersburg, ap- legs her between William L. up other hand ly. attempted put his He pellant. matter, Peyatt, initials. See we the victim As this case involves sensitive n. 315 S.E.2d practice and to W.Va. n. traditional refer shall follow our shirt, grabbed her waived them. gave tape and then breasts He then C.D.’s record- escape, through her shirt. C.D. tried to during ed statement any which he denied top The man fell ground. fell to the but knowledge of the incident. He also denied again roughly her and fondled her knowing Thereafter, C.D. in way. through her hands. breasts shirt with both defendant was arrested Mil- Detective finally pushed got him off of her and She ler, presented and was to magistrate. phone. up nearby pay and ran to a The record does not reveal how much time Upon reaching pay phone, C.D. first elapsed between defendant’s arrival police dialed 9-1-1 and informed the presentment station and his be- location, policeman attack and her and a magistrate. fore the immediately dispatched to take her trial, defendant At testified that he mother, phoned statement. She then her had, fact, in followed C.D. in his car and nearby, who lived and her mother drove to approached later her on foot and asked her meet her. go Although out with him. he admitted minutes, mother within C.D.’s arrived waist, putting his arm around her the de- and, and her mother waited for the as C.D. touching fendant her denied breasts or sex arrive, police to noticed the vehicle C.D. organ. upon He asserted that he left her pass by. that had earlier followed her request her that he do He so. contended thereafter, policeman, Shortly Officer C.D., that he was familiar with whom he Parsons, arrived. Officer Parsons asked suggested prostitute. was a He also as- complaint, if she wanted to file a C.D. “picked serted up” that he had C.D. several agreed she to do so. He asked C.D. to sit incident, weeks before the and that police give in his cruiser and a statement. had had sexual intercourse at that time. so, began telling She did the officer the C.D. testified rebuttal that she did not details of the assault. She told him that know the defendant and had never seen the wearing the man who assaulted her was socially. defendant She testified that the pants white and a white shirt with red or only may time she have seen pink stripes. the defendant years was several before the incident when sitting in police While she was car she drive-through worked store. The Parsons, giving her statement to Officer State also called testify Detective Miller to C.D. noticed the car that had earlier fol- regarding the given defendant’s statement again pass by. lowed her When she told police at the station which he denied Parsons, gave this to Officer he chase to knowing C.D. The defendant’s earlier ob- pursuing the car. After it for several jection to the use of this statement blocks, was stop he was the car. He able heard hearing, at an in driver, camera and the then him if asked C.D. to advise car, objection was denied. occupant the lone was the man approaching her. who attacked After trial, At the conclusion of the the defen- car, C.D. identified the man as her attack- guilty dant was by jury found of two er. counts of sexual degree. abuse the first the defendant After was identified By September 13, 1991, order entered C.D., Officer Parsons obtained his name trial court sentenced the defendant to two and address and allowed him to leave the concurrent sentences of not than less one following day, scene. a Detective Ken- year nor more than years imprison- five telephoned Miller neth the defendant and ment in the penitentiary. police him to asked come station and make a statement. Prior to the defen- I. arrival, dant’s Detective Miller obtained a Jeopardy Double Upon

warrant for the defendant’s arrest. station, regard at the With

his arrival the defen- the defendant’s double rights,2 claim, dant was read his Miranda and he jeopardy he contends that his two Arizona, (1966). 2. Miranda v. 384 U.S. 86 S.Ct. 16 L.Ed.2d 694 jeopardy principles through sexual abuse late double degree first for convictions only one offense imposition multiple punishments for the improper because is based This conclusion pointed Zaccag- committed. same offense. We out touching of the that the upon premise beginning point nini such an organ occurred her sex breasts and analysis Blockburger victim’s out in is the test set and should be period of time a brief States, within v. United 284 U.S. S.Ct. asserts The defendant one act. considered 76 L.Ed. 306 We summarized circumstances, he is re- that, under these Syllabus 8 of Blockburger test Point the same ceiving multiple punishments Zaccagnini: under the offense, prohibited a situation “Where the same act or transaction our State of both Jeopardy Double Clause constitutes a violation of two distinct constitutions. and the federal statutory provisions, ap- the test principles double Our plied to determine whether there are two the United States Su patterned after been offenses or one is. whether each interpretation of the Double preme Court’s proof provision requires of an additional in the Fifth Amend Jeopardy found Clause other does fact which the not.” Constitution.3 to the United States ment scope general pronouncement recognized in Zaccagnini Our We further Clause, in contained Jeopardy our Double test was not Blockburger that the Virginia III of the West construction, 5 of Article Section statutory rule of but was also Constitution,4 1 Syllabus in Point is set out recognized by Supreme the United States 680, 288 Griffith, 160 W.Va. of Conner v. identifying legisla means of Court to be a (1977): 529 S.E.2d intent where such intent is unclear. tive following in cited the statement from Alb Jeopardy Clause Arti- We “The Double States, 333, 340, III, Virginia 5 of the ernaz v. 450 U.S. cle Section West United 275, Constitution, immunity 1137, 1143, provides 67 L.Ed.2d 282 101 S.Ct. having prosecution (1981), a court further where in Zaccagnini: accused. It jurisdiction acquitted “ ‘The test is a “rule of Blockburger prosecution for protects against a second construction,” it statutory and because It after conviction. the same offense discerning congres- means of serves as a multiple punishments for prohibits also purpose the rule should not be sional the same offense.” where, example, there is a controlling for is derived foregoing Syllabus Point The contrary legislative in- clear indication Pearce, v. 395 U.S. from North Carolina ” 502, at 172 W.Va. at 308 S.E.2d tent.’ (1969), 2072, 711, 23 L.Ed.2d 656 89 S.Ct. omitted). (Citation 142. v. Alabama grounds, on other overruled 2201, 794, Smith, 109 104 U.S. S.Ct. 490 in Albemaz elabo- Supreme Court (1989).5 L.Ed.2d 865 test’s role in Blockburger rated on the in a double determining legislative intent 172 W.Va. Zaccagnini, In quoted this lan- jeopardy analysis when (1983), in 491, 131 we discussed 308 S.E.2d of Iannelli v. United guage from note 17 decided the United those cases detail 1284, 770, 785, States, 95 S.Ct. 420 U.S. dealt with Supreme Court which States (1975): 616, 1293-94, L.Ed.2d to vio- that were claimed statutes criminal Griffith, quoted supra, we provision Amend- 5.In Conner applicable of the Fifth subject following language Carolina v. any from North shall be states: "Nor ment 2076, 717, put jeopardy Pearce, in at offense to be twice at 89 S.Ct. for the same 395 U.S. Jeopardy limb.” of life or Double “‘[The L.Ed.2d at 664-65: prosecution against protects a second Clause] acquittal. protects It offense after for the same Virginia the West of Article III of 4. Section 5 of- prosecution for the same against second jeopardy lan- this double contains Constitution protects against And it after conviction. fense any person, criminal guage: “Nor shall offense.’” multiple punishments for the same case, put life or ... be twice 682, at 530. 238 S.E.2d 160 W.Va. at liberty the same offence.” “ in Blockburger ‘The test articulated Clause not binding upon it and con- 299, States, cluded: U.S. v. United S.Ct. [52

180, (1932), gener- “[S]imply 76 L.Ed. serves a because two criminal statutes 306] identifying may con- be ally proscribe similar function of construed to the same impose conduct under gressional Blockburger intent test does not mean that Jeopardy the Double multiple arising sanctions offenses precludes imposition, Clause in a sin single of a the course act transaction. gle trial, punishments pur cumulative determining separate punish- In whether suant to those statutes. The rule of might imposed, Blockburger ment re- statutory construction noted Whalen quires courts examine offenses States, 684, 100 United 445 U.S. [v. S.Ct. provision each to ascertain “whether re- (1980)] 63 L.Ed.2d 715 is not a proof quires of a which the fact other constitutional rule requiring courts to ne Id., does not.” at S.Ct. [52 gate expressed clearly legislative intent.” Blockburger As L.Ed. and other 306]. 459 U.S. at 103 S.Ct. at applying principle decisions its reveal ... L.Ed.2d 543-44. application of the test Court’s focus- statutory es on the recently elements the of- We have and applied discussed proof If these requires jeopardy principles fense. each of a double fact State v. Gill, not, (1992), other 187 W.Va. 416 S.E.2d 253 Blockburger does satisfied, upheld separate where we convictions notwithstanding test is un- a sub- der both our sexual offense statute overlap proof stantial offered to ” W.Va.Code, 61-8D-5(a) (1991), where the establish the crimes.’ 450 U.S. at 337- same conduct formed the basis for both 1141-42, 101 S.Ct. at 67 L.Ed.2d at Gill, convictions. the child’s custodian had committed several sex acts her in Hunter, 359, In 459 U.S. Missouri 103 W.Va.Code, 61-8B-3(a)(2) violation of 673, (1983), 5.Ct. 74 L.Ed.2d 535 the Su- (1984), degree our first assault stat- preme aspect Court considered the of dou- ute. The charged State also and convicted jeopardy relating multiple punish- ble W.Va.Code, the defendant under 61-8D- regard the ments for same offense 5(a), which relates to sexual offenses com- two Missouri statutes. statute One related guardian, mitted parent, or custodian felony of robbery with the use of a of a child. The defendant claimed that he deadly weapon. provided The other statute was being punished twice for the same act. any felony that who committed Gill, In recognized Supreme we the deadly weapon use of a guilty the was acknowledgment Court’s legisla- the that of armed criminal action. latter crime power ture has the to define crimes and provided penalty for a of not less than punishment. determine their quoted We years, any punishment three addition to language Johnson, this from Ohio v. 467 provided by underlying law for the felony 499, 493, 2536, 2541, U.S. 104 S.Ct. 81 deadly weapon. committed the use of a “ (1984): L.Ed.2d 433 ‘Because the 6 power prescribe substantive crimes and Appeals The Missouri Court of conclud- punishments determine is with the vested that, statutes, ed under imposi- these legislature, the question ... under the tion upon of two sentences a defendant Jeopardy Double punish- Clause whether who crime had committed the of armed “multiple” ments essentially is one of robbery jeopardy prohi- violated double legislative (Citations omitted).” intent[.]’ against multiple bition sentences for the (Foot- 187 W.Va. at 416 S.E.2d at certiorari, granting same offense.7 After omitted). note Supreme the United States Court estab- Appeal’s lished that the Missouri Gill, Court also we discussed Missouri v. interpretation legal Hunter, Jeopardy of the Double supra, and the later case of Gar- Supreme Hunter, (Mo.App. 6. The Missouri Court did not issue an 7. State v. 622 374 S.W.2d opinion 1981). in Hunter it denied because review.

375 States, States, burger 471 U.S. United U.S. rett v. United (1932), In those 85 L.Ed.2d 764 L.Ed. S.Ct. S.Ct. to deter- recog- cases, expressly Supreme Court requires mine whether each offense an intended to legislature that where the nized of proof element the other does not. If make criminal acts would constitute punishable, this could be done even under the double two mine whether when the the face of the statute tion be case history.’ “ ‘Where the same the same conduct the Blockburger rule is statutory provisions, ^[******] Congress We have Blockburger legislative separate jeopardy (Citations and, —intended recently therefore, same offense.... analysis is to legislature intent test, omitted).” conduct violates the first offense: subject of two indicated that clear controlling each separately legislative —in though step crimes deter- viola- this Blockburger-Zaccagnini be discerned. provisions the elements of with an tent to guage tive forth in this there is an legislature ferent, Thus, offenses.” Our “[i]n intent, conclusion Gill was that the lan- require separate the cited analysis then the addition W.Va.Code, 61-8D-5(a), then an code, intended to create determine element of If proof there is of the relevant criminal to any Syllabi presumption analysis should be made. Legislature if a other offenses set proof punishments can from Gill test concerning no legislative clear is that the under the separate legisla- stating hereby is begin dif- in- separate declares and distinct offense at 259. W.Va. S.E.2d subsection,” sufficiently under this ex- discussing foregoing After plicit legislature demonstrate that cases, Supreme States Court we United parent-custo- separate intended to create a principles Syllabus summarized their dial sexual offense in misconduct addition Gill, supra: Points 7 and 8 of general to our sexual offense statutes.8 A“7. claim that double Thus, punishments per- two punish- multiple been violated based on jeopardy principles under double missible imposed single after a trial re- ments though they arose even from same act.9 by determining legislative in- solved jeopardy We have also discussed double punishment. tent as to in to of- considerations relation sexual intent, ascertaining legislative In “8. other cases. In v. fenses several State initially the a look at lan- court should Carter, and, W.Va. S.E.2d 277 if guage of the involved statutes (1981),the defendant had been convicted of necessary, legislative history to deter- degree two of first sexual assault. counts legislature has a mine if the made clear oral intercourse first count related to aggregate to expression of its intention and the second to anal intercourse. We If no such sentences for related crimes. discerned, the of “sexual inter- reviewed definition legislative intent can be clear W.Va.Code, 61-8B- analyze the stat- course” contained then the court should 1(7)(1986), part, provided, which relevant under the test set forth in Block- utes Gill, obviously Syllabus Syllabus supra, v. Gill modifies Point Point 9 of State we In Reed, said: 276 S.E.2d 313 4 of State W.Va. states, "W.Va.Code, (1981): multiple 61-8D-5(a) (1988), jeopardy prohibits “Double offense, any other part: punishment ‘In addition offenses set the same therefore un- code, Legislature hereby statute, in this the de- forth W. criminal sexual conduct Va. der our separate and under clares a distinct offense [1976], Code, single seq. a sexual act 61-8B-1 et Thus, legislature the subsection!.]' this multiple result in criminal convictions.” cannot clearly unequivocally declared its inten- on whether double issue in Reed centered involving parents, abuse cus- tion that sexual for a lesser of- "bars the conviction 61-8D-5, todians, W.Va.Code, guardians, or has been convicted of fense when the accused general separate and distinct crime from a 565-66, greater 166 W.Va. at offense.” W.Va.Code, 61-8B-1, offenses, seq., et sexual S.E.2d at 319. punishment.” purposes of slight, regard separate “penetration, however of the female with punishments, as organ organ, or by However, sex the male sex involv- case in applying was the Gill. organs sex contact between the one Blockburger-Zaccagnini analysis to W.Va. person and mouth anus of another or Code, 61-8B-3(a), among we note that person,” came to this conclusion: components degree of first sexual assault ‘or,’ “The use of word which is a is the term “sexual intercourse.” “Sexual conjunction, expresses legislative in- W.Va.Code, intercourse” is defined in 61- tent that sexual intercourse can com- 8B-1(7), and of three consists alternative mitted in each of the various alternative (1) “penetration, slight, acts: however ways, type prohibited with each con- organ by sex female the male sex or- constituting separate tact offense. gan,” (2) or “contact between the sex or- this, apparent Legisla- From gans person of one and the mouth ... of broadly ture chose define term (3) person,” another contact between the ‘sexual intercourse’ that it so would cov- person sex organs of one ... the anus variety er sexual encounters.” 168 person.” of another 92, 282 W.Va. at S.E.2d at 279-80. Clearly, by statutory definition, the ele- omitted).10 (Footnote degree ments of the crime first sexual Carter, although we did not utilize the through assault sexual intercourse can be test, Blockburger-Zaccagnini same re- committed three distinct acts or meth- would sult have been reached under it as ods.12 Under the Blockburger-Zaccagnini interpreted by Supreme the United States test, “requires each of the proof crimes accepted Court us Under Gill. an additional fact which the other does test, Blockburger-Zaccagnini we Syllabus part, not.” Point State v. analyzed legislative would have intent by Zaccagnini, supra. In the context of determining any expres- if there was clear intercourse,” “sexual the female or- sex sion of such intent. In the of any absence gans, mouth, and the anus are each intent, expression of clear such would we separate distinct and proof, matters of any applied Blockburger-Zaccagnini have one of which prove is sufficient test to the elements crimes. It is crime. If a defendant commits both degree clear the offense of first unlaw- intercourse, ful oral and W.Va.Code, out in anal assault set 61-8B- as occurred in 3(a) (1991),11 not, face, Carter, does on its contain defendant has committed two legislative clear statement intent offenses.13 Carter, "(2) person, 10. In State v. W.Va. at being 282 S.E.2d years Such fourteen old or more, engages we made this comment: in sexual intercourse or sexual intrusion another who is eleven "Most courts which have had occasion con years old or less.” strue similar sexual offense [to statutes our own] reached same conclusion. Ha Supreme 12. The Court of California reached the (Wyo.1979); Wyoming, v.mill 602 P.2d 1212 Perez, 545, People same result in 553, v. 23 Cal.3d State, (Wyo.1979); Padilla v. 601 P.2d 189 cf. 40, 44, 63, Cal.Rptr. (1979), 153 591 P.2d 68 238, Hill, State v. 104 P.2d Ariz. 450 696 where attempts it concluded: “A defendant who (1969) ]; Ware, 210, App.2d v. State 53 Ohio [ gratification by committing to achieve sexual (1977), aff'd, 372 N.E.2d 1367 84, 63 Ohio St.2d number of base criminal on his is acts victim (1980); 406 N.E.2d 1112 Commonwealth substantially culpable more than a defendant 452, Romanoff, Pa.Super. v. (1978).” 258 A.2d 392 881 who commits one act." such analysis apply 13. The same would to the term W.Va.Code, 61-8B-3(a), provides: intrusion,” "sexual which is also used W.Va. in person guilty Code, 61-8B-3, "A is of sexual assault in degree the our first sexual assault degree 11, first when: supra. statute. See note "Sexual intrusion” “(1) person engages W.Va.Code, 61-8B-1(8), Such in "any sexual inter- is defined in act person course or persons sexual intrusion another between not married each other in- and, doing: in so volving penetration, slight, however of the fe- “(i) bodily upon injury any- Inflicts organ any serious person male of of sex or the anus one; or object purpose degrading an for the of or humil- "(ii) Employs deadly weapon iating penetrated gratifying the in com- or the so act; mission of the or party.” the sexual desire of either

S77 ‘or,’ i.e., ‘buy Peyatt, 173 W.Va. tive or or in v. receive’ ‘aid both State In Trail, v. (1983), concealing’ or ‘transfer.’ We State have cus- S.E.2d 574 315 (1985), tomarily disjunc- stated the 328 S.E.2d 671 we ‘that where 174 W.Va. used, Blockburger-Zaccagnini analy- ordinarily the tive “or” is connotes applied jeopardy violations. and found no double an between the two clauses it sis alternative State, Peyatt, Albrecht v. assault In affirmed a sexual 173 we connects.’ W.Va. arising 268, 271, (1984), incest cit- and an conviction S.E.2d conviction Trail, Elder, In 571, 577, act. we affirmed ing v. same W.Va. State intent to (1968)." for abduction with de- convictions 165 S.E.2d W.Va. arising degree sexual assault file and first 825-26. 346 S.E.2d at In neither case out of same incident. first Although this is the occasion Blockburger-Zac- we elaborate on the did jeopardy double we have to discuss the had cagnini test as a identifying leg- means of contact,” find aspect of “sexual we that its separate to create offenses. islative intent substantially pattern is similar to statutory so, end we done result would have Had intercourse,” of which we dis that “sexual the same. been regard jeopardy princi cussed in double case, Carter, deal supra. Applying the instant we with ples in State degree of first sexual two convictions Blockburger-Zaccagnini test to the in is degree First sexual abuse de case, abuse. principal find ele stant we Code, 61-8B-7(a) (1984),14 in W.Va.Code, 61-8B-7, fined W.Va. ment which de of the term “sexual contact.” and utilizes degree, fines abuse the first in sexual term, like the term “sexual inter This per volves “sexual contact” with another course,” W.Va.Code, 61-8B-1, is defined son. The term “sexual contact” defined states, pertinent part: which W.Va.Code, 61-8B-1(6), and identifies “ acts sex several different which constitute any ‘Sexual contact’ means intention- proof requires ual Each act of a contact. through touching, directly either or al not. fact which the other does Conse of clothing, any part the anus or quently, a defendant who commits two or organs or person, of another sex separate more of the acts of sexual contact a female intentional touch- breasts of sepa may on a be convicted of each person’s body victim another jeopar rate act without violation of double organs, sex where actor’s dy principles. is married to the actor and the victim not grati-

touching purpose is done jurisdictions to other When we look party.” of either fying the sexual desire challenges double have dealt with legislative statute, Again, use their contact we find that we note definition, throughout “or” this word reached result similar to which, statutory rules of con- today. Appeals under our one we reach Court struction, clearly designed to New Mexico addressed facts almost may constitute “sexu- the various acts State presented to those here identical v. Tay- Williams, As we stated al contact.” N.M. 730 P.2d 1196 (1986)(a lor, 346 S.E.2d 822 case, W.Va. In that defendant was statute, involving property our stolen case convicted of two of criminal sexual counts W.Va.Code, [1923]): 61-3-18 from un- contact. The convictions resulted lawfully touching his breasts and set victim’s

“Each the forbidden acts forth of of than disjunc- genital during span a time less separated by the area in the is statute states, "(2) person W.Va.Code, 61-8B-7(a), to pertinent person subjects another in Such helpless; or part: physically is sexual contact who years "(3) being old or "(a) person, fourteen guilty abuse person A is of sexual in Such more, degree subjects person to sexual contact when: another first “(1) person subjects another years Such or less.” who is old eleven consent, and the without their sexual contact compul- results forcible of consent lack sion; or 378 ple punishment in

five minutes. The relevant statute stated the same trial.” 112 13, N.M. at P.2d sexual contact is intention- 810 at 1233. “[c]riminal ally touching applying or force without con- approach entirely This is consistent with parts sent to the intimate unclothed an- that which we have evoked and discussed eighteenth other who has his birth- reached jeopardy in our analysis double herein. * * * day* purposes For of this section Appeals v. The Court Utah in parts’ primary genital ‘intimate means the Suarez, 736 P.2d 1040 (Utah App.1987), area, groin, buttocks, anus or breast.” 105 was a also faced with situation like the one 216, 1198, citing N.M. at 730 P.2d There, this case. defendant was (1984). N.M.Stat.Ann. 30-9-12 The § charged counts of with two forcible sexual Appeals that the Court held intent of the abuse in Utah Code violation of Ann. 76- § protect legislature New Mexico was to (1982). 5-404 placed The defendant had his to each victim from intrusions enumerated mouth on the victim’s breasts and touched and, part, therefore, “[s]eparate pun- genitals her same in the transaction. The ishments where are sustainable evidence applicable statute, Utah Code Ann. 76-5- § distinctly touchings separate shows 404(1) stated: 217, parts.” different N.M. at “ 730 P.2d ‘(1) person A commits forcible sexual at 1199. if, abuse under circumstances not amounting rape or sodomy, Williams, or at- supra, State v. Although did tempted rape sodomy, or the actor any lengthy analysis not involve of United any part touches the or geni- anus Supreme jeopardy States Court double deci- or another, otherwise takes inde- tals of sions, analysis recently such an was under- another, cent liberties with or causes an- by Supreme taken the New Mexico Court other to take indecent liberties with the State, 112 N.M. P.2d Swafford another, actor or with intent cause Swafford, the New Mexico bodily pain substantial emotional or recognized court some confusion its dou- any person or with the decisions, intent to arouse ble reviewed recent gratify the sexual desire of any per- United Supreme States Court cases that son, other, without the consent of the Blockburger, had construed and came to regardless sex of participant.’ this conclusion: Hunter, true: whether part of U.S. adopt today two-part islative L.Ed.2d Supreme ing legislative tions limitation on “Taking 508, 517, 74 L.Ed.2d 535 our intent, as our cue the 459 U.S. Court inquiry Supreme multiple intent 110 S.Ct. precedents Grady asks the (1990)]; conduct underlying punishments Court that the sole test for determin- punish. ^[542] repeated 2084, 2091, 103 S.Ct. assume to be Corbin, question Missouri v. (1983), The first admoni- [495 leg- we vagina. proof of different elements and constitute flawed the victim’s separate offenses.” 736 P.2d at 1042. liberties, found that instant case. Although same sized (Emphasis conjunctive “or,” just section, These and then that he first both breasts, added).” charges charges Therefore, “[defendant's Court placed the taking of indecent placed were defined in the were separated 736 P.2d at 1042. his hand on her the Utah court Appeals acts his mouth on argument are in the requiring empha- i.e., unitary, the offenses is Appeals whether the Maryland Court of Boozer, same State v. conduct both violates statutes. 304 Md. A.2d part (1985), The second focuses on the statutes appeal confronted with an at issue to whether legisla- determine the State from a court’s trial dismissal of ture intended to separately pun- degree charge create fourth assault Only ishable if against offenses. the first previ- defendant. State had of the test is ously charged answered the affirma- the defendant with unlawful- tive, and negative, ly the second engaging will act with a a sexual prohibit the double clause jeopardy age years youn- multi- fourteen and four or more

379 subsequently en- of The State dents unlawful sexual ger he. contact while she than charge and prosequi to that was under the effects of tered a nolle nitrous oxide dur alleging charges of ing a new statement the course of a procedure issued root canal attempt- unlawfully had that the defendant could be convicted four counts of sexual vaginal intercourse with degree. ed to have in the first People abuse v. Yan charges fourteen-year-old victim. Both kowitz, 748, A.D.2d 169 564 N.Y.S.2d 488 incident, upon same were based (1991). Perez, also supra; See State v. charges upon the same both were based Smith, (1981); 276 S.C. 280 S.E.2d 56 describing as- degree fourth sexual statute Eisch, 96 v. Wis.2d 291 N.W.2d 464C. saults. Md.Ann.Code art. § (1980). DeCorte, 800 United States v. Cf. However, Mary- separate a article of the (7th Cir.1988); 851 F.2d 948 Robinson v. provided for “sexual land definitions Code Lockhart, (8th Cir.1987); F.2d 823 210 intercourse,” “vaginal act” Solomon, v. 753 F.2d 1522 States United that, Appeals held Court of because Cir.1985); Anderson, (9th United v. States defined, separately two consti- (D.C.Cir.1988), denied, F.2d 384 851 cert. crimes not the separate tuted and were 102 L.Ed.2d 488 U.S. S.Ct. jeopardy purposes.15 same for double (1989). generally Project, Twen See Supreme Kentucky Court of ty-First Annual Review Criminal Pro Commonwealth, 666 S.W.2d Hampton Supreme cedure: United States Court where (Ky.1984), dealt a situation Appeal, Georgetown L.J. and Courts charged degree a with first defendant (1992). degree first sexual abuse. sodomy and Finally, unpersuasive argu- we find charges arose from an incident where degree first under ment that sexual abuse performed on the the defendant fellatio W.Va.Code, 61-8B-7(a), consid- should be perform victim and caused the victim to battery like a since it involves an ered simultaneously him either or same act on touching parts of the unlawful various Supreme continuously. The Court of Ken- statute, W.Va.Code, body. battery 61- Our charge “the tucky separate held that 2-9(c) (1978), attempt makes no to delineate is based not on incidental sexual abuse portions body either the crime contact, separate on a act of sexual but touched, statute, as does our sexual abuse gratification. The fact that the two sexual by the number of blows struck. Conse- simultaneously or acts occurred either quently, the traditional double irrelevant.” at 739. nearly so is 666 S.W.2d battery through legislative analysis of a Therefore, charges stemming from both would fail to intention intent reveal did not violate double same transaction sepa- separate upon crime create based jeopardy principles. out, our pointed As we rate blows.16 have charges of have held that Other courts statute, through specific its sexual abuse degree and sexu- in the first sexual assault ways in which enumeration different may degree in the third be al assault accomplished, abuse can be shows sexual occurring conduct in the same brought for punish intent to sexu- legislative separately they require proof of because transaction body. parts to different al abuse of each independent other. State facts battery Mezrioui, that have discussed the Conn.App. 602 A.2d 29 Courts jeop- attempted a double question also been that a dentist It has held intent. ardy analysis legislative inci- patient upon female to four based subjects a who analysis type might used in This well be court further stated: 15. The Boozer touched abuse case where the defendant country little of this have had "The courts concluding separate difficulty acts result- same time. victim’s at the both of the breasts W.Va.Code, person of the insults to the 61-8B- The term "sexual contact" separately charged punished may victim 1(6), fe- phrase of a breasts uses the "or the proximity though they very occur in close even male.” though they of a and even to each other episode single or transaction.” criminal 497 A.2d Md. at Instead, they any detailed following conclude without admitted to C.D. both car and night incident, multiple during struck foot on the analysis that blows in his Miller, statement to separate Detective battery are not crimes. defen- same State, knowing dant denied See, C.D. 733 P.2d 1331 When e.g., Weatherly v. attempted impeach to Berner, testimony his People (Okla.Cr.App.1987). Cf. through the use of given the statement (1979) to P.2d Colo.App. Miller, Detective objected defendant (where time, separated in the batteries are hearing and an in camera was conducted. occurred).

two crimes are deemed to have hearing, At the conclusion of the the defen- foregoing It is clear from the cases that objected again dant to the use of his state- jurisdictions most that have addressed ment, alleging that such use violated our legislature whether intended distin- “prompt presentment” rule. guish separate by listing sexual crimes dif- presentment prompt Our rule is stated in ferent or methods sexual assault abuse W.Va.Code, 62-1-5: legislature did found intend making “An arrest distinguish. officer an under to so conclude We also upon complaint, warrant issued Virginia legislature, the West in establish- person making an arrest without a war- the crime of sexual abuse the first rant for an offense committed in W.Va.Code, 61-8B-7(a), his degree under in- presence, take person shall the arrested tended to make offenses of each unnecessary without delay jus- before a of the various methods to commit the crime [magistrate] county tice in which W.Va.Code, 61-8B-l(b). outlined There- is made. arrest When a ar- fore, subjected the defendant was not rested without a is brought warrant be- unconstitutional double when he justice [magistrate], fore a a complaint of two convicted counts sexual shall be filed and a warrant issued forth- degree separately abuse the first executing with. officer The the warrant touching unlawfully his victim’s breasts shall make return justice thereof to the organ single and sex in a episode. criminal [magistrate] before whom the defendant brought.” II. interpreted We prompt presentment PROMPT PRESENTMENT Syllabus rule in Point 2 of State v. Hum- defendant further asserts that phrey, W.Va. 351 S.E.2d 613 allowing the trial court erred in (1986): use of the defendant’s statement to Detective Mil presentment prompt “Our rule con- ler impeach testimony. his We note that tained [1965], W.Va.Code 62-1-5 voluntarily agreed appear defendant 5(a) Rule Virginia West Rules of police questions at the station and answer Procedure, triggered Criminal when upon request. Detective Miller’s Detective placed an accused is under arrest. Fur- Miller had obtained a warrant the de thermore, once a is in police defendant prior fendant’s arrest to the defendant’s custody probable with sufficient cause to police arrival at the station. defendant arrest, warrant an prompt present- freely rights his waived Miranda and was ment rule is also triggered.” any way making coerced into his Applying case, Humphrey to the instant Furthermore, statements. the defendant it seems prompt presentment clear that the did not confess crime. “triggered” rule was upon the defendant’s however, trial,

At attempt- police defendant arrival at the station because the persuade jury ed to that C.D. probable was a had sufficient cause for his prostitute recently fact, whom he had had arrest. already obtained had Nonetheless, intercourse. While defendant an arrest warrant. there is 5(a) W.Va.Code, Virginia 17. Rule of the West Rules of Crim- 62-1-5. parallel language inal Procedure contains

381 detailing the III. in the record no evidence ques- Miller Detective length of time that SUGGESTIVE IDENTIFICATION any Nor is there tioned the defendant. The defendant also asserts that the length of time concerning the testimony in denying trial court erred his motion to the defendant’s arriv- elapsed that between suppress evidence of C.D.’s out-of-court presentment police station and his al at the of him night identification on the of the however, magistrate. Assuming, before The incident. defendant claims that unrea- delay presentment was prior by identification of him C.D. was so sonable, defendant’s state- we note that the suggestive by Officer Parsons that it taint voluntary. No unquestionably ment was identification of him ed C.D.’s at trial. alleged. allegation of coercion is The de- any It has been said that almost time a police station on his fendant drove to the one-on-one confrontation between a crime request Miller’s own at Detective suspect arranged by crime is victim and a rights prior to answer- waived his Miranda police, procedure inherently sug such a questions. ing the detective’s gests suspect victim that the is the perpetrator of the crime. The Seventh Cir facts, find that even if Under these we Appeals stated in cuit Court United subjected to an unneces- the defendant was Kirby Sturges, 510 F.2d States ex rel. v. presentment to a sary delay prior to his 397, (7th Cir.), denied, 421 403 cert. U.S. magistrate, properly could use his State 1016, 2424, (1975): 44 95 S.Ct. L.Ed.2d 685 testimony impeach his at trial. statement question, “Without almost one-on- voluntary statement This is because one confrontation between a victim of a that is inadmissible by made a defendant police person pres- crime and a whom the to violations of the State’s case-in-chief due suspect convey ent to him as a must is neverthe- prompt presentment rule message police have reason to impeachment pur- solely admissible less psychological guilty. believe him Syllabus 3 of poses. As we stated in Point [present] factors create a real risk of 795, Knotts, 421 v. 187 W.Va. S.E.2d State circum- misidentification such (1992): stances start then from .... must] [One of commit- “Where a accused significant suggestion premise ting voluntary state- any showup[.]” a crime makes inherent in the use of omitted). (Citations inadmissible ment which declared due to a violation the State’s case-in-chief California, also Foster v. 394 U.S. See prompt presentment of the accused’s (1969); 440, 1127, 22 L.Ed.2d 402 89 S.Ct. Virginia Code rights pursuant to West Denno, 293, v. 388 U.S. 87 S.Ct. Stovall Virginia [(1965)] 1967, (1967); and West 62-1-5 18 L.Ed.2d 1199 United § 5(a), Wade, 218, 1926, Procedure 388 U.S. 87 S.Ct. Rule of Criminal States (1967); Peyton, 18 L.Ed.2d 1149 Palmer v. solely for may be admissible statement (4th Cir.1966). Thus, F.2d 199 in this if the accused impeachment purposes case, that the identification of we conclude and offers the stand at his trial takes at the defendant his vehicle the victim prior vol- testimony inconsistent with unduly sug- request police untary statement.” gestive. Syllabus Point Good also See Upon finding confrontation (1981); mon, 170 W.Va. S.E.2d identifi- procedure used the defendant’s York, 91 S.Ct. New 401 U.S. Harris v. suggestive, have followed cation to be we (1971). 28 L.Ed.2d Biggers, 409 U.S. the rationale Neil v. case, the statement made In this because (1972). 375, 34 L.Ed.2d 401 93 S.Ct. voluntary, and was defendant was Braithwaite, 432 U.S. Manson v. See also trial, testimony impeach his used 53 L.Ed.2d 97 S.Ct. ini- though error on this court committed no cases hold that even the lower These defendant was tial identification point. may speed still slow rate of unduly suggestive, walking as she was to be found the cir- totality adjacent public under the sidewalk to a be admitted street in it was meant that By Parkersburg. cumstances. lighted area was well surrounding the witness’s circumstances only lights, lights with street but from the time of defendant at contact with the from a car lot. She observed that the the witness was crime were such that the of the car driver was hunched over the indepen- sufficiently reliable able to form a steering wheel and was Subsequent- bald. the identification other than dent basis for ly, footsteps she became aware of behind suggestive identification. the turned and her and observed the defen- pace dant. She increased her and turned summarized the test to be uti We again to observe defendant was determining totality of the cir lized in the grabbed her. struggled closer and he She Syllabus Point 3 of State v. cumstances ground him fell to the landing with on 472, 182 W.Va. 388 S.E.2d 498 Spence, top her back the defendant on her. (1989): “ opportunity She had sufficient to observe determining an out-of- ‘In whether adequate lighting. the defendant under identification of a defendant is so court require suppression of an tainted as to Another factor to be considered is that testimony as to in-court identification only the victim’s attention was directed [or out-of-court identification the approached itself] the defendant as he her and in totality the of the court must look to ensuing struggle. the It is clear that she and determine whether circumstances gave her undivided attention to the defen- reliable, the identification was even by dant. This is borne out her accurate procedure though the confrontation description of the defendant and his cloth- suggestive, regard given to with due ing gave police that she to the when opportunity factors as the of the such arrived within one-half hour of the event. witness to view the criminal at the time Finally, confronting defendant his crime, degree of the the witness’ of at- car, stopped which the had a short tention, accuracy pri- of the witness’ crime, distance from the scene criminal, description of the the level of difficulty identifying victim had no the de- certainty by witness demonstrated Therefore, agree fendant. we with the tri- confrontation, length and the of time al court’s determination that there was a between the crime and the confronta- independent reliable basis for the victim’s 3, amended, Syllabus tion.’ Point as identification of the defendant other than Casdorph, 159 W.Va. suggestive one-on-one identification in (1976).” S.E.2d car, his and we find no reversible error on Here, court the trial held an in camera ground. this proceeding prior to trial and evaluated the factors and found the victim’s iden- IV.

Biggers tification of the defendant to be reliable CONCLUSION upon totality based of the circum- reasons, foregoing judgment For the stances, particularly the witness’s view of County Circuit Court Wood during the defendant the crime.19 The evi- affirmed. hearing dence at the in disclosed camera driving that the victim observed a car at a Affirmed. Watson, explained Spence, supra,

18. We in State v. 19. In State v. 164 W.Va. 264 S.E.2d (1980), portion Syllabus Syllabus bracketed was de- we stated in Point 1: "‘A signed point to cover made Manson v. defendant must be allowed an in camera hear- Braithwaite, supra, admissibility pending which was ‘"that the same on the of a in-court determining apply challenges criteria should also wheth- identification when he because the party pre-trial er the out-of-court identification itself should be witness was a identification ” suppressed.’ procedures constitutionally allegedly 182 W.Va. at 388 S.E.2d at that were 385, 395, Pratt, Boyd, Syllabus quoting State v. 167 W.Va. infirm.’ Point State v. (1978).” 280 S.E.2d W.Va. 244 S.E.2d 227 Justice, WORKMAN, concurring: other Chief contexts. In all of the cases cited Court, from this joined the dissenter opinion majority I with the be- concur majority without Why comment. is the totally consistent with law cause it blazing dissenter such a civil libertarian many cases this other enunciated the context of a sexual offense? Court as well the United States Su- (Generally, ready he is to uphold the maxi- preme Court. pettiest mum sentence for the petit lar- only about one-third the dis- Because cenists.) actually fifty-page senter’s diatribe relates (the opinion other majority two- Reading against dissent backdrop his upon everything thirds of which touches position cases, of his in other criminal one sink, full of but the kitchen incredible inescapable reaches the conclusion he that stereotypes,1 and which of course attrib- principles apply believes different should society’s working all of ills to utes almost sexual offenses than other criminal of- women), only part I address II. fenses. ' recognize, fails much The dissent less Johnson, State v. example, For in 179 discuss, Supreme recent United States 619, (1988), W.Va. 340 371 S.E.2d de- Court cases have fashioned Double breaking fendant convicted for both relating multiple pun Jeopardy Clause larceny. entering and and We held that act ishments for same criminal as an jeop- such convictions did not violate double legislative inquiry majori into intent. ardy breaking principles, recognizing that ty beginning rule traces this constitutional entering grand larceny sepa- and and are States, v. with Iannelli United 420 U.S. jeop- rate and offenses distinct for double 1284, (1975) 770, 616 95 S.Ct. 43 L.Ed.2d ardy purposes. though Even two of- States, through Albernaz v. United 450 time,” in fenses close “occurred conviction 1137, 333, 101 S.Ct. 67 L.Ed.2d 275 U.S. for both did double offenses not violate with Missouri v. (1981), culminating and jeopardy principles. Id. at 632, 371 S.E.2d Hunter, 359, 673, 459 U.S. 103 S.Ct. 74 at 353. 535 L.Ed.2d Drennen, v. State in 185 Moreover, Similarly, majority traces this same 445, (1991), 24 W.Va. 408 S.E.2d we found jeopardy in our law development double Gill, v. State recently jeopardy principles in no violation of double most articulated 136, (1992), 416 253 and had W.Va. S.E.2d where defendant been convicted Trail, v. State extending through separate back arising three offenses of the out 656, (1985); State v. 328 S.E.2d 671 Although W.Va. drug-dealing same transaction. 317, 315 Peyatt, 173 W.Va. S.E.2d 574 marijuana one was contained Carter, v. (1983), State 168 W.Va. time of container at the the defendant’s (1981). Furthermore, as the 282 S.E.2d arrest, purchased the defendant had demonstrates, jurisdictions other majority marijuana joint juve- funds of three accepted jeopardy those double same marijuana niles and had delivered the principles in other similar sexual offense in the of the juveniles presence one cases. point 1 syllabus other two. As we noted in “ Drennen, ‘Although under double thing astounding most about the dis- jeopardy proper procedure principles gross inconsistency of the dis- is the sent arising a trial of out all offenses position jeopardy on the double senter’s separate jointly, case same ‘criminal transaction’ in this sexual with his issue abuse imposed punishments may position on the same issue numerous large part stereotypes, to a among pathologies are due in sets related The dissent forth these public "simply working population; parents who most defenders others: hacks”; 73% female prosecutors are there assistant for the self-absorbed the home are both work outside "government ous, lieu of more coffee suck in ardu- drug industry is negligent; entire and the work”; challenging violent stress-laden youth from sin- by sociopathic reckless fueled always poor stupid; are almost criminals police (Archie again!) gle-parent lives Bunker homes. lie; family- always most officers almost single criminal arising of a “when defendant is accused of the offenses out (any current crime of fashion crime with Syllabus point State ex rel. transaction.’ it), Hamilton, 266 the word ‘sexual’ in his constitutional 164 W.Va. Johnson denied, (1980) rights cease to exist.” U.S. S.E.2d [cert. L.Ed.2d 498 101 S.Ct. only irresponsi- a statement is not Such at

(1980)].” 408 S.E.2d 185 W.Va. inaccurate, bly but the whole tenor of the (which suggests dissent conviction foregone 185 W.Va. sexual assault/abuse cases is a Finally, George, conclusion) (1991), abysmal an we held that reveals lack of 408 S.E.2d 291 attempted knowledge difficulty murder of assault and these cases malicious Lastly, on the level. different offenses for trial dissent’s the same victim were other purposes because mali- characterization of the members of double engaging Gestapo-like this proof Court as tac- required of serious bod- cious assault gross appel- tics is disservice whole required not be for an ily injury that would process Virginia. late West The true Attempted attempted murder conviction. civil libertarian on this Court is the writer proof premeditation required murder majority opinion. of the kill lying specific in intent to and wait with an overt act toward commission NEELY, Justice, dissenting: Thus, though the two offenses crime. even transaction, out of the exact same arose majority’s holding I in dissent to this they were two and distinct of- contrary general case because it is purposes jeopardy. fenses for double law on and has led to an double Thus, unjust result cases. I future Neely in Justice dissented none these take the time to write this dissent in a case Why, may ponder, opinions. one is the (he where no harm is done to the defendant arising principle multiple offenses is to his two concurrently) serve sentences objectionable transactions close in time so I majority’s opin because believe that the Neely in context of sexual to Justice aiding abetting growing ion is a trend when he has concurred with the offenses rights in American law to civil abolish majority on similar criminal matters not destroy right citizens’ by jury. trial Al involving sexual offenses? though hysterical this sounds like an overstatement must also conclude that the dissen- One , hope through 1 I opinion this on in puts ter his civil libertarian clothes a warning sound a hap about what has been chameleon-like fashion because he essen- pening in federal courts—models to which (as tially “grope” a he believes that so long paradigms the states have looked as it) crudely really describes is a de minimis judicial competence likely is what —and (One saying, him act. can almost hear to follow in state courts. deal?”). grope big what’s “Just a ... Accordingly, this dissent is divided into The dissent’s reliance on assault cases is parts: three Part my I is brief historical singularly misplaced simply because as- outrages overview to show how the I shall attempt sault statutes do not to differenti- catalogue were II allowed to occur. Part by ate the various methods which an as- simply analysis majority an how the accomplished, sault can be as is the hall- acquiesced Gestapo techniques this case mark of our sexual offense statutes. This “politically achieve a correct” result. by majority. distinction was addressed analysis Part III tech- is an of how such that, suggests pen- no The dissent because niques overcharging in state and both involved, this etration was shouldn’t even courts, sentencing federal and the federal a sexual offense. be guidelines, virtually have abolished crimi- Perhaps why the jury. a clue to writer of the right nal defendants’ to trial In- adopts positions regularly plead dissent such inconsistent people now must nocent sweeping rigged guilty system can be found his statement is so because II, discussing majority’s cynical manipulation 1. See Part note 2 the facts.

against them that cant take the scene and demand to a court-appoint- peers! lawyer, lawyer ed a by jury might of a verdict of their appointed, chance

but it was frequently the case with over- Part I worked courts judge indicated ei- outright, ther in open court but off the History record, through hints delivered informal- always commit- Violent crime is almost ly by parties third that things go would uneducated, poor, or the ted lot easier for the defendant if he would stupid. passion committed Crimes of plead guilty rather than make a lot of course, involving by everyone, of but a trial asking lawyer trouble for a demanding planning meticulously a middle-class man jury trial. If a pleaded guilty, wife, the murder of his so he can collect the it—off he prison, went to having secretary, insurance and run off with his grounds appeal waived all except the precisely sensational it is so rare. because court, jurisdiction of the just and he sat Traveling spend salesmen who their off- prison until the expired sentence or the stores, robbing all-night grocery hours parole board released him. Often pro- this nights married schoolteachers who take off entirely cess ran an innocent man through rape sixteen-year-old girls, prosper- frightened its machine—a man so competi- ous farmers who eliminate market against circumstantial evidence him that he neighborhood by setting tion fire to agree plead guilty would to a lesser neighbors’ their barns are real oddities. offense or to confess to a crime he did not Consequently, sys- the entire criminal law hope receiving commit more le- powerful tem most often boils down to the system nient treatment from a that was weapons police, prosecu- state with all its going get — anyway. to him tors, courts, prisons, probation and offi- usually happened It any that in small uneducated, going poor, stupid after cers— folks. city particular town or where this form of (That however, say, is not to expedited process due occurred par- all the uneducated, poor, stupid the folks did not friends, buddies, ticipants were and col- crimes.) commit the This lower class of sheriff, leagues. prosecutor, The and suspects exactly possessed criminal is not judge probably were all members of the political power protect of enormous to their political party exchanged fishing same who rights, particularly they because when together jail, stories over lunch down at the receiving sys- not on the end of the whole prisoners while the served them a subsi- it, geared up get they group tem to are the meal, any dized and because each in official society crying loudly in for most more law county power courthouse has some over poor, and order because it is the the weak courthouse, other officials in the the tradi- helpless disproportionately and the who are in my tion childhood was live-and-let-live the victims of crime. got go along get because: “You’ve to along!” everywhere prosecutors, Almost 1960s, early average In the the criminal sheriffs, judges and were elected and their piece defendant was treated like a of meat service, they staffs were not civil so that way dressing processing. on its and A presented no alli- counterbalance to the arrested, brought in person was for interro- Furthermore, party politics. ances of crim- (seldom gation gentlemanly conducted a expensive inal trials were and a lot of work manner), many threatened with the dire concerned, everyone the and because consequences that him if he did not awaited judge, prosecutor and the sheriff were (such cooperate thirty-year as a sentence case, paid process not real due took simple burglary), encouraged and money away payrolls for relatives plead guilty. lawyer course a could do Of away and a lot from the farm and of time him, ordinarily wonders for but there was the trout stream. lawyer any and would not be law- up money yer system unless he came with the at the Not was the a fiasco confinement, capital interrogation, pretrial hire one or was accused of a crime. and enough plea stages process; it resem- guilty For those who knew to make a of ing police unpleasant against by group features recovered a more some of the bled suspicious-looking unsavory people Russia or Communist of and Germany Nazi of stages. Men were rou- investigative involved criminal activities was remote. without a off the street tinely picked up four damage Of actions filed Marion police sta- warrant, brought down County, against a Virginia, West tion, without on hard benches left to sit group Caligulaesque troopers state who food, water, sometimes even or access to patrons of local routinely beat beer at a time be- for hours working restroom joints, damage none award resulted frequently in- which “questioning,” fore lie, partic- jury. routinely Police officers good humiliating insults and a bit volved ularly skins, to save their own and when cases, police many slapping around. In do, they they enormously make credible them to their nothing to direct had more witnesses. rec- suspect prior than a criminal particular The criminal institutional abuses ord, “suspicious of the ar- behavior” justice system just I described animosity. The personal person, rested unnecessary created substantial un- process went with- “questioning” entire suffering, seriously merited reduced the person’s need to be any regard for out degree personal liberty among people school, job, his wife’s side in the his his particular socioeconomic racial back- anywhere else. conve- hospital, or grounds, got and generally worse rather organized the lives nience of the authorities society than better as became more urban- power those without who came to people increasingly ized and without attention. And who was avail- authorities’ financial, emotional, political sup- political process, give redress? The able port family. an extended The U.S. Su- aspirants for office run on a where most preme and other Court federal state platform? on crime” The lo- “crack down courts, consequently, began widespread judge, who need to dress down cal would development principles of “constitutional” sheriff or chief in the morn- the local to correct these institutional abuses. The before all out for lunch went recognized Supreme Court tradi- together? authority, whose executive damage against responsible tional award rights very all these violators henchmen officials, years which for a over hundred very likely. were? Not mythical remedy had been the for invasions However, parade horrors not the of did personal rights, simply of did not work and there, the of end for there was entire area remedy necessary that some other was to It search and seizure be abused. often applied by automatically could be the police happened that when the came to jury intervention the courts without to hurt 1960s, house in the their routine search a enough change system to force it to its turning or procedure involved out dresser ways. drawers, wall, making desk holes in the pass early And so it came to in the 1960’s beds, tearing up ripping apart all the the Supreme Court of the United pillows, kicking down the doors of locked States, Warren, by led Chief Justice Earl cabinets, rousting people closets and and began wholesale revision and its “nationali- night’s Again, from their slumber. what procedure zation” of the rules of criminal political a recourse did victim have? The Rights using vague Bill as clauses damage process? See above. A suit? Enter, then, “exclusionary the lever. Only lawyer if the victim could afford a new, judge-made, rule”—a constitutional willing find to take on the and could one many remedy unknown to state courts. political incumbent local machine with doctrine, According ingenious to this if the compelled to lawyer which the was work comply Furthermore, police any to new every given gener- failed day. concerning procedure, any evidence ally regard that rules high the middle class ac- during period the rules police, gathered when cords the the likelihoodof a substan- (which being to excluded jury award then had to the were violated was be tial be example, judgment persons) proceedings. from all court For unanimous twelve be- suspect excluded that the lawful arrest or what extraordinary evidence could be cir- police gave police if the failed felony himself cumstances —such as a committed in right to remain suspect of his to warn presence of an justified ar- an officer— silent, of his right to retain counsel his rest without a warrant. began Officers questions, he was asked choice before carrying cards with the warning official counsel if right court-appointed his to and (known as warning” the “Miranda from the lawyer afford to hire a on his he could not Miranda v. Arizona case in 1966), they so Usually the evidence excluded be- own. informing would not make an error in de- give proper police failed to cause rights fendants of their to remain silent sus- warnings or otherwise observe lawyer and to appointed they if pect’s rights made the difference between time, indigent. At the same lower acquittal, the de- a conviction and an and systems state courts instituted appoint to exclusionary rule fendant went free. The lawyers prosecutions, for criminals in all questions of search and applied also misdemeanor, felony both and where there police person’s If seizure: entered sentence, any possibility jail was of a and proper and discov- house without a warrant legislatures appropriated money state exactly they thought would ered what be pay private lawyers ap- to serve as court there, none of the evidence could ever be pointees pay public or to sys- defender court, all the evidence was used because required tems. The courts not suspect’s the violation of the tainted being prosecuted represented those be rights. “constitutional” counsel, they represented also that but began The streets to swarm with re- counsel, by “competent” which meant that agents leased criminals. All the who, appointing some hack for court but justice system criminal concluded that the appointments, was such a dud that he finally gone raving courts had stark mad longer would otherwise find work no envisaged a world of fel- wall-to-wall supposed pass muster. first, police prosecu- At officers and ons. longer permissible it was no Since Supreme did not tors believe U.S. by intimidating obtain confessions a sus- said, Court meant what it so continued pect, keeping night op- him all an without usual, Supreme to do business bathroom, depriving portunity to use the forced to reverse hundreds Court itself was long periods questioning, him of food accuseds, convictions, release the subjecting him to dire for failure threats span years that it over a ten indicate himself, testify against police had to rights. was serious about individual ways crimes. It think of new to solve Meanwhile, going what was on back investigation, regular dawned on them that prosecu- the station house? The laboratory analysis patrols, and scientific sitting saying, around “Son of a tors were of clues á la Sherlock might Holmes substi- (policemen say are known to this on b—!” techniques, for some of their cruder so tute occasion) feeling very and insecure about training programs they inaugurated jobs. Many criminals were on the their they were un- these areas as well. When procedure of criminal viola- streets because equipment, necessary new able to finance tions, leading citizens to which was irate government came to the rescue the federal “changes and talk about of administration” grants help and other from the with cash enough, jury “department Oddly reform.” Administra- Enforcement Assistance Law suits, mandates, the damage constitutional (LEAA). tion political process, general no- elective and ruled that Supreme Court As the U.S. suffering unmerited and consid- tions about delay between must no substantial there for one’s fellowman could not clean eration magis- a appearance before an arrest and up system, unemploy- but the fear of bond, along with setting of for the trate managed very neatly. Suddenly ment con- instructions training formal court-administered departments sponsored pro- police counsel, states be- cerning appointment of and grams to instruct their members where so that judiciaries reorganizing their necessary gan to make a a warrant was when one-gallused, illiterate of whether the defendant tobacco-chewing, guilty was and appeared “coddling refused to hold more interested in peace who justice of season, season, criminals” protecting deer than it did in during squirrel inno- court cent, working Second, a hard became citizens. ille- p.m., or on weekends after gitimacy rates appeared soaring, were past. place In his divorce was thing of the soaring, and the lawyer magistrate with number of families professional lay or self-absorbed, negligent parents training, who who state-sponsored both extensive outside the home judicial soaring; officials worked was con- pool of a of minor family-structure-related sequently, patholo- notice around the at a moment’s available warrants, creating bond, gies rapidly expanding issue and oth- un- clock to set increasingly savage justice according people. to a mod- derclass erwise mete out And, third, drug problem rights. entirely Further- concept em of individual more, changed the face of American everyone feared that the na- crime. since pretrial confinement ture and conditions of drugs, gangs longer Because of are no court, the more inhu- would be raised teenagers engaged in groups pet- of bored aspects of local incarceration facili- mane crime; ty teenage gangs are now the distri- eliminated, pro- and a nationwide ties were state-of-the-art, bution network of billion gram upgrading criminal detention facil- industry. typical Angeles A dollar Los promoted. ities was gang may street have two hundred mem- twenty-six years catalogued positive I bers between thirteen and So far have old, side, negative gang typically and each will move be- there was a side well. but twenty-five forty negative side was that lots and lots tween and kilos crack brutal, Angeles dangerous, violent socio- or cocaine a month. In Los Coun- and lots of society roughly gangs, ty released into there are 600 such ac- paths were back 70,000 exclusionary counting for through operation over active members. rule, they depart custody Although gangs most are either black or and no sooner did robbed, murdered, Asian, raped Hispanic, there are Samoan but now, again again again. gangs Al- white as well. Even as urban burned saturated, cities, though ordinary citizen favored the ex- markets become our small general, being he or and rural pansion of civil liberties suburbs towns invaded outraged specifics big-city over the dealers who are much more she became police released violent than the local truly when evil defendants were criminals handling. have been accustomed to on mere “technicalities.” here, talking Martinsburg, Virginia, since I am for the West for exam- And record, ple away I an hour historical I shall admit that town and a half —a car, exclusionary Washington by rule with state and federal always applied the sought forty-six suspected drug surpassing every reluctance and arrested dealers technicality applying along 1986. All corridor that possible to avoid tech- rural My question always parallels first Interstate 95 from Florida to New nicalities. Therefore, York, if guy guilty?” “Is the the Jamaicans have cornered the been: Town, judges system administered the crack cocaine network. Small who U.S.A., early profits drug easy crafted in the 1960’s and 1970’s offers dealers ambiguous at low initial risk rural communi- the Warren Court were about because system drug big that ties lack the of cities legitimacy had been awareness protect prepared at the and are even less than their ur- designed to civil liberties safety, counterparts cope how much more ban with naked sav- expense of citizen or, easily ambiguous frequently, outright agery. police hos- Local forces can be overpowered easily corrupt- ordinary citizens? and even more tile were ed. By three historical devel- First, with all general pub- The violence associated

opments converged: unusual from a aspects drug business arises against system lic turned a of criminal law readily money, question appeared to look last to sinister combination utterly weapons police and an Increased instances of corruption, available hi-tech course, directly are related savage willing drug to use both with- underclass industry. Being corrupt policeman drug industry re- scruple. The entire out perils that must be offset for an officer to sociopathic recklessness of teen- flects the career, risk pension, his and a term in largely from sin- agers young and adults prison. profits Unlike ordinary poverty and de- gle-parent families whose crime, however, drug profits big are them to privation have immunized both enough turn the head of all but the most fear; accep- hope they and a casual exhibit honest officers. And there is more than enthusiasm for— tance of—and sometimes enough drug money go around: Most of murder, torture, “drive-by” shootings and an officer’s friends and associates will be public mayhem. In Florida the multi-billion sufficiently involved that no one is inclined drug industry dollar dwarfs all other indus- to blow the whistle. may Involvement not tries, including agriculture and tourism. selling dealers; include drugs tipping off type activity unique is not This to. just protecting a drugs friend’s bar where February Florida. In the De- South are sold is sufficient involvement to dis- published copyrighted story troit News courage outrage. an officer’s moral showing police atmosphere Detroit officers such an lone whistle-blower likely to have a fatal accident. alleged to have committed 151 crimes each 1,000 Allegations, year every officers. People drugs usually who sell are in- course, News, cheap, but the Detroit volved in other criminal activities. Conse- availing Michigan itself of the Freedom of quently, once an officer becomes involved Act, Information found out that there were drug perhaps justifying with his dealers— allegations against 7.2 substantiated offi- theory conduct on the that the dealers are every engaged only cers in Detroit for 1000 officers. in “victimless” crime—it is easy step collaborating an in other crimi- surveyed police corrup- Other cities enterprises. nal York, allegations tion were New with 112.7 then, Drugs, prosecutors pop- have made 1,000 officers; 109.5; per Angeles, Los unpopular, ular and civil liberties and our 42.7; Dallas, 65.6; Houston, Philadelphia, family-related pathologies widespread ille- — Phoenix, 20.7; 13.6; Chicago, 10.7. rate, gitimacy, fifty percent divorce men alle- Houston finished first substantiated living generations or three with two officers; 1,000 gations, per 12.7 then with married, women to whom are not 10; 9.5; Dallas, Angeles, Los followed participation a female labor force rate na- York, by police a few and New 7.5. Crimes (so seventy-three percent tionwide of ago usually using involved excessive years neighborhoods today most are devoid force. Now Detroit officers have been ac- during presence weekday adult all the rape, hiring an arsonist to set fire cused of school)— hours children are home from occupied apartment building, car to an abuse, abuse, rape, have made child fraud, theft, insurance cocaine heroine incest, extraordinarily and related crimes selling gun per- possession, robbery, armed Thus, prosecute. case fashionable to mits, hiring concealing property stolen us, before we see what has become a tradi- a contract killer. prosecutorial jury tool to avoid trials tional suspects, namely wildly exces- and coerce probably say every fair to that for It is accepted ap- overcharging, and even sive police instance of miscon- substantiated court, plauded by this as shown duct, likely there are to be five to ten more opinion. majority’s reported or not satis- that were either factorily are no- substantiated. Part II another, protecting torious for one and not- Bending of the Law for withstanding police efforts of the dedicated Fashionable Ends departments, investigating internal affairs along walking corruption presents problem 21 C.D. was still On June Parkersburg she in when guarding cabbages. Seventh Street goats 390 Code [1984]; Ronald 61-8B-7 touch- appellant, one count for accosted

was earlier, ing breasts, Ms. D.’s moments and one count A few Dean Rummer. following touching jury her sex organ. Rummer convict- spotted Mr. Ms. D. had counts, him she walked. ed on both circuit court in his while and the slowly car her block, Mr. Rummer sentenced him to circling concurrent terms of one After car, prison. got years chased Ms. D. to five I and dissent because parked his out Appellant her. the conviction on first-de- caught up with both counts of he until gree the victim’s sexual jeopardy abuse violates double stuck one hand between then up the victim’s provisions Virginia both the his other hand West legs and Constitutions. I to screw United States “Baby, want and said blouse tripped process, the victim you.” tum- Mr. Rummer the victim and and both A. then broke ground. The victim

bled to Appellant's assignment main of error street, and called the free, ran down the of first- that his conviction on two counts police.2 sexual abuse under W.Va.Code degree 61- Appellant was charged two counts 8B-7 ^[1984] violates constitutional protec- sexual abuse under W.Va. against The fact first-degree jeopardy.3 tions double Yes, majority, its recital of A on side—it was on the sidewalk I note facts, ground. interpreted the Q the facts to include second you top? top How did land? Who was on fell on incident when Mr. Rummer A He was. roughly "again he fondled her the victim face, you Q face Were back to back or through with both hands." her shirt breasts side to side or However, what? description majority’s Slip op. 2. No, like face to because—but— A face alleged is not second sexual incident based of an you point? up Q Did look in his face at that testimony of the victim who testified to on the A Yes. following description the entire incident: long stay position Q you how And did in that Now, you? you Q did he first do to —what you looking up when were to his face? Well, saying, like I whenever I went A was long very just trying Not I was A because grabbed next me. And he to turn the time he know, get you me. was him off of I I was— up just put kind of like—he his arm had— just wanting go him so I could off of me And, know, my legs. you I was tell- between kept yelling get away. because I wanted to I know, and, stop telling you him to I was him, stop. you at him I didn’t want get away yelling him to from me and at him telling just right him—I said—I come know— out Q all. And— know, quit doing stop, you and said to it. long you to face like that? How face Well, seconds. A A few grabbed he started A me and he like hunching up against my body. And— III, Virginia § 5 the West Constitu- 3. Article provides, part: “No shall be ... tion saying, you trying was know—he [H]e put jeopardy liberty of life or for the twice get get up my shirt And he didn’t and stuff. same offense.” up my pushing shirt his because I was arms pro- V of the U.S. Constitution Amendment he, know, away. you saying But he was like— vides, any person part: be sub- shall ”[N]or he— put in ject same offense to be twice for the limb_” life or said, grabbed A And like I had whenever he jeopardy clause Fifth Amendment double behind, know, you rubbing me from he was prosecution against for the "protects a second my legs in between real hard. And I was against protects acquittal. It offense sifter same get trying away from him. And so that’s prosecution offense after for the same a second hunching saying, you when he started against multiple protects And it conviction. know, "Baby, you.” I want to screw And he offense. punishments [Footnotes for the same couple said it times. And— Pearce, 395 U.S. North Carolina v. omitted.]” stay you standing up Q hap- Did or what 711, 717, L.Ed.2d 656 S.Ct. 23 pened? Ohio, accord, (1969); 432 U.S. Brown v. got A No. Somehow was like (1977); we we L.Ed.2d S.Ct. Pizzu —I—it got tripped ground. 742, 756, I to, can’t recall exact- P.2d Idaho ly happened, tripped Virginia how it if I fell, him or he Constitu- held that West We have tripped But protection: me. we and he— provides tion identical III, you ground Q Jeopardy Were sidewalk or the in Article The Double Clause Constitution, Virginia or where? Section 5 West

391 multiple convictions resulted in merely assault, incidental to the sexual concurrent sentences does not render the jeopardy then double would bar conviction double, jeopardy issue moot.4 punishment for both offenses. As we part: W.Va.Code 61-8B-7 ^[1984] provides, held in Syl. pt. 276 S.E.2d 313 State v. (1981): Reed, 166 W.Va. jeopardy prohibits Double multiple (a) guilty A of sexual abuse punishment offense, for the same there- degree the first when: fore under our criminal sexual conduct (1) person subjects per- Such another statute, W.Va.Code, 61-8B-1, seq. et son to sexual contact their without con- [1986], single sexual act cannot result sent, and the lack of consent results in multiple criminal convictions. compulsion. from forcible Fortner, Legislature similarly We held defined “sexual contact” in W.Va. 61-8B-1(6) 387 S.E.2d at W.Va.Code 830: [1986]: any “Sexual contact” means intention- only the evidence shows one con- [W]here touching, al directly through either tinuing culminating sexual offense in a clothing, of the anus or any single intercourse, act of sexual convic- organs sex person, of another or the tion punishment of the accused for breasts of a female or intentional touch- entirely unlawful sexual behavior ancil- any part person’s body of another lary to such sexual intercourse violates organs, the actor’s sex where the jeopardy. double victim is not married to the actor and the A comparison of Fortner and Reed touching is purpose grati- done for the jeopardy shows the intricacies of double fying party. the sexual desire of either protections that the Blockburger test can- Syl. pt. In 8 of Zaccagnini, State v. adequately Fortner, handle. (1983), W.Va. 308 S.E.2d 131 we charged defendant was with ten counts of adopted Blockburger test5 for deter- second-degree assault, sexual ten counts of mining multiple arising whether convictions abuse, first-degree sexual two counts of from the same transaction violate double conspiracy, and one kidnap- count each of jeopardy protections: ping defile; and abduction with intent to Where the same act or con- transaction Reed involved a situation where the defen- stitutes a violation of two distinct statu- charged separate dant was counts of tory provisions, the applied test assault, sexual sexual abuse and sexual determine whether there are two of- Although misconduct. the circumstances fenses or provi- one is whether each passed both Reed and Fortner requires proof sion of an fact additional test, Blockburger jeop- we found a double the other does not. ardy for acts violation for the convictions assault, incident to the sexual but we did

However, necessarily this test is not dis- not find error in Fortner positive of the multiple punish- issue of involving separate convictions acts in dif- ments for the same offense. In State v. Miller, ferent locations at different times. We 175 W.Va. 336 S.E.2d 910 guid- (1985), dealt with our unease at the lack of though we noted that even from Blockburger ance we received Blockburger technically by sep- test is met limiting the rule of to ancil- kidnapping arate convictions for and first- test Reed (each relating single pen- degree requires proof lary assault acts acts of fact), if kidnapping of a different etration: 345, 360, Fortner, immunity provides prosecution 182 W.Va. further 4. See State 812, 827, (1989) ("The having jurisdiction acquit- court where a S.E.2d n. 12 fact that protects against accused. It a second ted the in concurrent sen- these convictions resulted prosecution for the same offense after convic- not render the double is- tences does prohibits multiple punishments moot”). It also tion. sue same offense. for the 299, 304, States, Blockburger

Syl. Griffith, 284 U.S. pt. Conner v. 160 W.Va. v. United 180, 182, (1932). L.Ed. 52 S.Ct. S.E.2d 392 this hold- U.S. explain that S.Ct. L.Ed.2d 370 important

It is (1957) (examining legislative of this case. history the facts of ing is limited to Robbery demonstrated at the sexual contact Federal Bank Act for indicia of Here ancillary permit multiple punishment), to one act of sexual intent trial was repeatedly are not confronted the Court has stated that the intercourse. We intercourse, question punishments nor are two acts of sexual whether are un- in- constitutionally multiple depends an act of sexual on we confronted with legislature sexual con- and then an act of whether the has authorized tercourse period multiple See, of time. separated by punishment. e.g., some tact Whalen States, 684, 688-89, court that unlaw- appear It v. United 445 U.S. would 1432, 1435-36, possibly could not ful sexual intercourse 100 S.Ct. 63 L.Ed.2d 715 (1980). Indeed, legislature certain amount of sexual occur without a where the explicitly multiple unreasonable to us punishment and it seems authorized contact end, contemplated the di- Legislature judicial inquiry multiple is at an that rape compo- its punishment proper, of one act of into is authorized and vision purposes pun- Blockburger elements for the test is irrelevant. nent Mis- Hunter, 359, 368, ishment. 459 U.S. souri [Footnote omitted.] S.Ct. 74 L.Ed.2d 535 Reed, 568-569, at 276 S.E.2d at 166 W.Va. examining After the limitations of the test, Blockburger the court went on to departures from the ad hoc Block- Such comprehensive develop two-part a more in the area of sexual- burger test show that determining validity multiple test for behavior, the test fails to clar- ly assaultive punishments for the same conduct: multiple counts ify when a conviction part inquiry The first of our asks the essentially same offense violates question Supreme precedents that Court jeopardy protections. It has be- double assume to be true: whether the conduct come easier for courts to cite the Blockbur- underlying unitary.... the offenses pretext it ger test and then use as a part The second focuses on the statutes decisions than to determine whether their legisla- at issue to determine whether the given multiple convictions instance vio- separately pun- ture intended to create jeopardy principles. Reliance late double Only if ishable offenses. the first gives only us type jurisprudence on this cases; of the test is answered in the affirma- comparisons prior anecdotal tive, negative, in the and the second will give which does not us framework with jeopardy prohibit clause multi- the double the double to determine whether punishment in the ple same trial. in this case. protections have been violated 112 N.M. at 810 P.2d at 1233. Swafford, Many jurisdictions courts other two-part test exam- Because the grappled come have with these issues have Swafford ining the of the conduct and the nature conclusion. The New Mexico to the same punish- legislative separate intent to create Court, State, Supreme Swafford comprehensive, this able offenses is more 3, 9, (1991), N.M. 810 P.2d iden- adopted by the ma- test should have been utility Blockburger: tified the limited jority.6 early manifestations of the Block- While may Appeals indicated the test in Har burger test Wisconsin Court State, 546, 277 N.W.2d well have been a constitutional test for rell v. 88 Wis.2d (1979), analyzing the factors that determining the sameness of two of- 462 after cases, fenses, later decisions courts have used to decide similar [United Supreme] developed specific retreated more framework that States Court have unitary substantially position. Begin- analyzing is useful in conduct States, ning question: with Prince v. United by ignoring majority "ap-

6. The notes that suit can be reached Swafford. Swafford ap- proach entirely consistent with” their Op. 432 S.E.2d at however, "politically proach; their correct” re- cases, analysis reported may prosecuted our we act punished aas following: identify been able offense. (3) act; (2) time; place; (1) of nature 2, Syl. pt. Carter, 90, v. 168 W.Va. intent; (5) (6) (4) punishment; cumulative (1981). Accord, 282 S.E.2d 277 v. Johnson contraction; (7) of and number muscular State, 493, (Alaska 762 App.1988) P.2d 495 of presence or a victims. absence (“Separate convictions for multiple of acts of factor or a factors single combination penetration involving openings different than the nature of the act is not other the victim’s or the body defendant’s are of the issue. conclusive permissible”); People Johnson, v. 320, Harrell, Mich. 279 N.W.2d 534 88 Wis.2d at 277 N.W.2d at applied We many 472-473. have these However, a close examination of the act Reed, deciding in as factors cases such in this case shows us that the analysis used Fortner, Miller, majority and and the penetration (such in the cases as Reed and adopted this to de- should framework Carter) not Appellant does fit. committed termine when conduct is unitary.7 grope which one in he made contact with organ, victim’s breast sex the factors in are but he did When listed Harrell choose to case, repeatedly violate the applied the circumstances of this victim’s body at different identifiable times. In they conclusively prove the conduct that deed, first-degree sexual aggra abuse is an unitary. was in fact battery

vated form heightened penalties overlay. B. due the sexual This akin battery case is more cases than 1. Berner, penetration People cases. See NATURE THE OF ACT 520, 522, 42 Colo.App. 600 P.2d clear in there It is cases where (1979) (holding that a two blows struck in penetrations multiple the victim’s different fight separate ten “were not minute trans orifices, mouth, anus, vagina, whether of single actions of a but were criminal separate pen- a conviction is each valid for arising single impulse”); transaction from a Oregon Appeals As the etration. Court of Wilson, 395, 397, People Ill.App.3d 491, 499, Steele, Or.App. held in State v. 146, 147(1981) Ill.Dec. 417 N.E.2d (1978), 577 P.2d review denied 285 (finding argument “inane” that each (1979) State, (quoted in Or. 195 Harrell v. separate blow a crime aggra constituted 546, 567-568, 88 Wis.2d 277 N.W.2d murder). battery attempted vated Ac (Wis.Ct.App.1979)): 470-471 State, cord, Weatherly v. 733 P.2d do not (Okla.Crim.App.1987). We believe that the convictions 1336-1337 The dou sodomy battery for oral and anal in the first multiple limitations on ble degree merge one constituting by single but clear: Each convictions is blow a exposed single crime. victim was to addi- upon victim one con defendant fear, danger humiliation dur- tional transaction cannot serve as temporaneous the second no sodomy. multiple battery. We see rea- a basis for convictions for why we should man son hold that a who examining the nature of When the act again one so sodomy may commits do grope here—one that was over a few again impu- to the same victim with appellant’s conduct is much seconds—the nity. [Citations omitted.] battery penetration. closer to than Accord- agree reasoning with that and have We unitary appellant’s ingly, the nature of the holding: previously made the same against multiple convictions of act militates Although first-degree sexual abuse. defendant commits Where perhaps strongest “sex- nature act is statutorily of our defined term acts conduct, ways, determining unitary this intercourse” in each factor for ual different guide Although majority provide systemic framework that would mentions several prosecutors application the Block- and lower courts future factors in their test, both Harrell piecemeal approach burger their fails to cases. and, organ happened and sex simulta- breasts necessarily dispositive is not factor Similarly, place all contact took neously. impor- most therefore, the next I examine Street Parkers- place, one on Seventh factors, place. time and tant time or burg. interruption No either (even majority’s under the place occurred AND PLACE TIME facts), indicating further statement ap- Harrell, described the the court first-degree conviction for one evaluating the time propriate method appropriate. abuse sexually behavior: assaultive element 3. of time between greater the interval INTENT, CONTRACTION MUSCULAR sexually episode of constituting an acts NUMBER OF VICTIMS AND behavior, greater like- assaultive That the separate offenses. lihood of intent, by as evidenced “The defendant’s or even sec- merely minutes interval is utterances, sexually his conduct and onds, elements and the other as with from gratification or obtain abuse discussed, solely de- be a cannot factors his desire for may demonstrate his victim episode An factor.... terminative separate means or acts of differing and can and usu- sexually behavior assaultive Harrell, gratification.” 88 or abuse multiple invasions ally does involve 574, 277 N.W.2d at 473. Obvi- at Wis.2d body. parts of the victim’s the intimate events ously passing of time between single of- are a such invasions Whether intent; moving indication of may be an can some- separate offenses fense or may of an assault of a victim and renewal by the placed perspective times be Furthermore, a defen- intent. also indicate specific acts. interval between time concen- dant his statements 572-573, Harrell, starting contact on the (e.g., at 277 N.W.2d his 88 Wis.2d tration shifting after a time focus 473. breasts and at may that he intends to organ) the sex show strongly related to place element is why the multiple offenses. This is commit grabs a woman in a If a defendant time. treated dif- multiple penetration cases are says by the parking garage breasts pen- each ferently battery from cases: drags her you,” I to screw “Baby, want prima evidence of a new etration is facie puts his hand nearby stairwell and into a See body. the victim’s intent to invade legs she can her and rubs before between Fortner, Carter, supra. supra; (garage places away, then the different run stairwell for the other for one contact and pen- viewing multiple way Another contact) significant factor that be a would battery is on etration distinction separate convictions. support two would If a de- principle: “muscular contraction” contact, in time or interruption either An commit a consciously chooses to fendant resumption indicates space, followed trigger on a (e.g., pulling the separate act of two offenses. the occurrence twice) to com- gun he must have intended cases, the penetration In However, interruption of mit two acts. no such either consciously moved his here. The entire fact that a defendant space time or occurred a second or third lasted, according organ to insert it into to the victim’s sex episode of intent to com- Fur- orifice is further evidence testimony, only “a few seconds.”8 thermore, mit two crimes.9 contact with both victim’s therefore, Williams, multiple convictions Although majority cites State v. 8. (1986) present- N.M. 730 P.2d multiple double victims do not violate presented ing here", identical to those “facts almost See, protections. Syl. pt. ex rel. Watson "distinctly sepa- two Williams concerned Ferguson, 274 S.E.2d 166 W.Va. "during touchings” a time that occurred rate (1980) (“Where even multiple occur homicides 377-78, Op. span of less than 5 minutes." time, if though they proximity in are in close S.E.2d at 47-48. single act of violative are not the result of defendant, punished they may be tried and Similarly, attacks two or more if a defendant Jeopardy victims, Clause separately the Double to harm each under indicated an intent he has c. However, appellant separate- did not parts body; ly attack different of Ms. D.’s today Until this Court had not squarely express any separately he did not intent addressed the issue of whether conviction parts body; abuse various of Ms. D.’s rath- multiple counts of sexual abuse stem- er, grope he committed one “few second” ming from one incident that lasted a few simultaneously made contact with the seconds violates double jeopardy. Unfortu- organ. Although and sex victim’s breasts nately, deciding issue, this majority appellant intended to cause “sexual forgot obligation its to read statutes “with victim, contact” with the he did not intend saving grace of common sense.” Bell multiple contacts. This lack of cause States, 81, 83, v. United U.S. 75 S.Ct. intent appellant’s makes the dual convic- 620, 622, (1955).10 99 L.Ed. Reed, tions for sexual abuse violate his constitu- supra, found it we unreasonable to divide protections against tional jeopardy. double rape one act of into its component ele- ments; it seems even more unreasonable Legislature wanted the courts to CUMULATIVE PUNISHMENT wrestling stand as a referee in a match appellant counting Because the was sentenced the number of contacts to to various terms, body parts single concurrent the in factor of incident cumulative that lasts a punishment is minor in few seconds. this case. Howev See, tionate tion 5 of the West portionality protection tions). (1981) (limiting kircher, board. might S.E.2d 631 er, should severely disproportionate to the crime it it is State v. influence the decision of the punishment weigh If possible 166 W.Va. concern or even as a (1987); Glover, more punishments that the two convictions Virginia application under Article Wanstreet v. Borden heavily 177 W.Va. gross 276 S.E.2d 205 permitting two imposed Constitution. as a double dispropor dispropor mouth III, parole were pro Sec 355 and unwanted where a defendant As not tion of “sexual contact” in W. Code 61- fense, but rather ty 8B-1(6) ent offenses: unwanted contact with the anus, agrees) that the convictions in this case are The State maintains ignored support, multiple unwanted contact with the and anus ^[1986] the State convictions for the same of- actually defines three differ- contact with the sex “saving grace convictions the victim. The penetrated points (and statutory the Va. to our rule of common situations both the majority breasts, majori- organ. defini- noticing sense” the difference be- penetration tween this case and the cases.

CONCLUSION OF UNITARY The majority yielded popular blood CONDUCT ANALYSIS lust for those who commit a crime of fash- applying title, After the Harrell framework to ion: If a crime has “sexual” its case, inescap- rights. this the conclusion should be defendants automatically lose all appellant unitary pointed above, that committed a act I multiple able As out convic- and, therefore, legisla- upheld I next examine the tions penetration cases rested intent, Legislature tive to see whether the on the penetration fact that each was a punishments act, multiple separate independent intended to allow for not that the unitary this conduct. definition of “sexual intercourse” W.Va. II, Virginia judiciary Congress of West Article Section 5 Consti- unit. When leaves to the tution.") imputing Congress the task of an unde- will, ambiguity clared should be resolved Bell, Supreme Court 10. In U.S. also created lenity. in favor of lenity”: the "rule of Bell, majori- 349 U.S. at 75 S.Ct. at 622. The Congress When has the will it has no difficul- ty forgotten adopted we have seems to have will, ty is, expressing it has the it—when Reed, lenity W.Va. at this rule of as well. defining what it desires to make the unit 568, 276 S.E.2d at 320. and, prosecution particularly, more faggot single make each stick in a criminal Code penetration 61-8B-1(7) of either ^[1986] allows conviction vagina, mouth three different same crime. ways committing or anus. rejected majority’s argu- This Court Boles, very regard Pyles in this ment on majority’s reliance Not does In 148 W.Va. 135 S.E.2d lack justify its decision legislative intent to question was whether Pyles, W.Va. sense”, coherence as it lacks “common defined several dis- 61-2-14a Code [1933]11 stating that begins by majority The well. kidnap- one offense of crete offenses or aggre- rely legislative intent will this Court held that “it is ping. Pyles, legislature has only if “the gate sentences single that the statute ... creates a clear intention.” expression of its made a clear three capital offense and not ... (quoting Syl. at 45 Op. at 432 S.E.2d Pyles, 148 and distinct offenses.” W.Va. Gill, 187 W.Va. pt. State 476, at 699. What would the S.E.2d (1992)). quickly majority The S.E.2d holding today if the defendant majority be legislative requirement this abandons appealing his conviction because the divorced-from-reality clarity murky, charged him with “sexual con- indictment A brief review analysis word “or.” breasts, picking tact” without either the clearly reveal its “analysis” will of this they freeing organ? anus or sex Would be absurdity. defendant, concluding or would “analysis” starts with a majority’s I the code defines one offense? be- saying that the v. Carter that Mr. Rummer would remain con- quote lieve “apparent being disingenuous majority “or” makes it use of the word victed! argument broadly de- in its reliance on the Legislature chose to separate “or” defines Legislature’s use of intercourse’ so that it fine the term ‘sexual offenses.12 variety of sexual encoun- cover a would 46. The Op. at 432 S.E.2d at ters.” State, (Ala. In 528 So.2d Sisson that the use of majority goes on to state 1988) Supreme Court ad the Alabama separate the “clearly designed to “or” is statutory a similar constitution dressed may constitute ‘sexual acts that

various involving driving under the question their ” Op. 432 S.E.2d at contact.’ at provisions. The influence code Alabama Legislature wanted sense: The “(a) That makes stated that A 1975 32-5A-191 Code § that would broadly to define the conduct physi person shall not drive or be in actual then, majority (1) But violate the statute. any control of vehicle while: There cal by concluding that the by weight all coherence alcohol percent loses is 0.10 or more blood; (2) intent to define the crime the influence of Legislature’s in his Under [or] Sisson, at 1161. The Legislature in fact to de- alcohol.” 528 So.2d broadly led (a)(1) (a)(2) crimes, that subsections rather than court held three fine different analy- majority acknowledges battery part: that a provided, in The W.Va.Code61-2-14a [1933] might appropriate in a situation where sis force, threat, duress, any person, fraud If both of the victims "the defendant touched confine, conceal, take, or de- or enticement Op. same time.” at breasts inveigle away, transport coy, or into or entice majority would then S.E.2d at 49 n. 16. The State, or out of this State or within this or looking prosecutors and the have the courts kidnap any person, other for the otherwise is contact with the offense as a whole if there taking, purpose the intent of receiv- or with breasts, counting but the number of contacts demanding extorting per- ing, from such or (and convicting separate of a the defendant son, person persons, any any from other or or touch) is made with for each if contact crime ransom, thing, any money conces- or other or organ. take a and the sex It doesn't the breasts sort, advantage for the or sion or absurdity majority’s lawyer to realize the shielding purpose the intent of or or with lawyer analysis; unfortunately, could bodily from harm protecting himself or others not the up such a scheme. This is come with evading capture he or arrest after or of system; justice criminal basis for a rational crime, he shall be have committed go way majority out of its to create should not felony. [Emphasis guilty added.] of a plain legislative where the scheme an irrational produces reading a rational offense- majority’s opinion of the code reveals 16 of the 12. Footnote absurdity analysis scheme. of the statute. based of their “merely proving alternative methods of Part III and, crime, therefore, not same [do] Repercussions of Majority’s Sisson, constitute offenses.” Rights Decision on Civil State, Hogan So.2d at 1162. Accord majority, The today, its decision Ga.App. 343 S.E.2d cert. denied joined arming national pros- trend of ecutors with tools that will obtain more convictions, but the increase convictions Pyles reasoning of far Sisson disregard will come with total for whether persuasive applicable pres- more actually the accused committed the crime. majority’s ent case than the tortured abuse Although drugs” the “war on has become Appellant of the word “or”. was convicted fashionable, the “war” has done little to charges of two of sexual abuse under stop drugs and the violence associated with 61-8B-7(a)(l) [1984], W.Va.Code which con- Indeed, them! the main casualties of this sists of “another sexu- subjecting justice been “war” have and civil liberties. consent, al contact their without Court, it this seems to me that when a lack of com- consent results forcible defendant accused of the current crime pulsion.” The fact “sexual contact” (any of fashion crime with the word “sexu- may arise from contact with either it), rights al” in his constitutional cease to breasts, organ the sex anus or does exist. This trend toward the erosion of mean that a defendant has three committed rights civil has been set the federal courts, recently supreme if happens offenses he to have touched all but state courts issuing have been decisions that are erod- three. The definition of “sexual contact” prongs of the different offenses. count of may properly leads to the conduct State three fied, I must W.Va.Code legislative assault; analysis: Appellant first-degree conclude that the circuit ways same conclusion as did 61-8B-1(6) Swafford intent convicted of does proving first-degree analysis, not define three test ^[1986] abuse. in this case being therefore, gives only court satis- Both one the any property is indicative of a trend however, I lated to a have of civil I hope today’s al erty “war on Some of prosecutors basic constitutional owners who been well-documented. liberties drugs” Congress drug fear that the these that could be crime, decision is assaults on may the West thus know towards ability protections majority’s opinion Virginia. has armed feder- tangentially depriving prop- an nothing As civil aberration; confiscate liberties as well. erosion about re- appellant erred in convicting on counts property the crime of their without due two first-degree of process.13 Similarly, despite apparent sexual abuse. the See, Wisotsky, government ordinary Society Suspects: tages A over Steven afforded the of Liberties, Drugs proceed- The War on and Civil Insti- in rem Cato citizens. Civil forfeitures are (October 2, 1992); Policy Analysis government against tute No. 180 ings. proceeds prop- The Reed, and, fiction, Terrance G. American Law: by legal erty, resort to a the Forfeiture Prosecutor, Property the Owners Meet Cato Insti- property guilty is held and condemned. Be- Policy Analysis (September tute No. 179 property defendant, cause the is the the itself 1992). guilt property owner or innocence the of property types of There are two of forfeitures The "use" made used irrelevant. legal government: Crimi- the central It is the federal criminal and civil. becomes issue. extremely only many nal forfeitures a defendant is which allows harsh occur fiction after however, forfeitures, repercussions guilty. are to flow from found The civil and unwarranted government people the Moreover, of civil forfeiture. used intimidate use usually police deny property viola- are authorized to and to them use of their keep profits realized in E.E. III least some of the tion of the Constitution. As Edwards provides This with incen- testified in front the House Committee seizure. of can, everything they Operations Legislation rather than Government and Nation- tives to seize resorting Moreover, 30, 1992): Security (September to seizures as a last resort. al Subcommittee however, probable cause forfeiture, police do not even need It is civil which concerns seize, although they property if must return us to the lack of constitutional the most due probable cause. safeguards procedural they cannot show unfair advan- later and the Amendment, (Sen. the fed- Strom Thurmond and Sen. Edward M. of the Sixth

violation prevented Kennedy co-sponsors). goal accused prosecutors eral have The by seizing all hiring counsel people to make criminals who commit similar accused, already including fees an assets of crimes serve similar sentences. However: lawyer.14 As John paid to the accused’s sentencing reforms of the last fif- III, president-elect of the Henry Hingson years pointed teen have some useful Defense National Association Criminal directions, but their current form Lawyers, noted: bankrupt. are These reforms had have defense bar had The federal criminal consequences propo- that few of their the United knocked out of when wind anticipated. things nents Some pre- declared that Supreme Court States sentencing disparity, worse than attorney fee forfeiture did not conviction [Emphasis we have them. added.] found rights to counsel and deny the federal Alschuler, The Failure Albert Sentenc- quick to process due of law. States were ing Aggrega- A Plea Less Guidelines: suit, legisla- enacting forfeiture follow tion, This 58 U.Chi.L.Rev. the federal model. tion that mirrored just example one result more it much easier Prosecutors would have you natural law cannot bureaucratize now, in and federal courts. both the state excellence, only you can bureaucratize me- Depriving citizens accused of their cho- diocrity. public seen it in We have our obtaining the one champions sen makes system way Depart- school and in the much easier. de- verdict so Public word provide ment of Motor Vehicles clerks ser- toiling already under fenders backbreak- vice; injected it into the now we fed- ing conditions will be awash a sea eral courts. cases. complicated criminal III, Henry Hingson Judge “Fee at Last! John José A. Cabranes of the U.S. Dis- Attorney Fee For- State Constitutions and trict Court of Connecticut15 observed that feiture,” April Champion, despite lofty goals set for the federal sentencing guidelines, guidelines do

Although prevent- seizures of assets and not: are the more the retention counsel being by prosecutors obvious methods used achieving come close even the asserted to raise their conviction rates without re- objectives confining discretion and accused, gard to the innocence of the eliminating bogeyman disparity. perhaps more methods are the most subtle Indeed, disparity is not alive and damaging of these insidious. The most well, probably it is now more common implementation methods is the subtle certainly than before and more hidden sentencing guidelines, process the federal than before. This is true be- majority somewhat akin what cause the Guidelines have sub silentio today done the case before us. moved the locus of discretion from the judge prosecutor. largely It is Congress system enacted that creat- prosecutor, example, who deter- sentencing guidelines ed the federal with quantity drugs mines the that will be eye replacing allegedly hap- an towards charged urged appropriate or as the approach sentencing in federal hazard calculating measure in “scientifical- the Guidelines system courts with a new score; prosecutor it is the who will ly” assigned prison terms based on the ignore press charges and other conduct. The measure or the Probation Officer’s strong bipartisan support criminal was enacted with calculation the defendant’s States, 1990) problems Caplin Drysdale to examine the with the Federal 14. & v. United 491 U.S. 617, 2646, (1989); judiciary changes. 109 S.Ct. 105 L.Ed.2d 528 and to recommend He has Monsanto, United States v. 491 U.S. problems guidelines with the at both an seen (1989). S.Ct. 105 L.Ed.2d 512 judge, level as a trial and at the individual system-wide through study level his work on the Judge appointed 15. Cabranes was Chief Jus- commission. Rehnquist represent judiciary tice the federal (1988— Study on the Federal Courts Committee score; history prosecutor quite possible it is the who is judges that we will stipulate will choose whether to facts aspire highest cease to traditions dramatically increasing decreasing humanity personal responsibility range. the defendant’s Guidelines [Em- ought to characterize our office. phasis added.] Hysteria poisoned over crime has much Cabranes, speech society, our University Chicago including justice sys- School, January Moreover, [Emphasis Law tem. added.] judges federal note that even the theoreti Id. at 366. Our own majority’s hysteria cally probation officers, objective com who over crimes with the word “sexual” in reports pile upon the “factual” which poisoned them have their view of the civil judges supposed are to base their sentenc rights of persons accused in exactly the are, ing calculations, all, usually “after Pi- way same that the federal courts have been Gep nocchios the hands of Prosecutorial poisoned by drug prosecutions. They Weinstein, ettos.” Jack A Judge’s Trial setting very precedent bad with their Impression Second Federal Sen today. decision Guidelines, tencing 66 Southern Cal. L.Rev. Another horrible effect of the federal sentencing guidelines on the sentencing guidelines judi Just as the federal federal system cial implemented bi-partisan support, way with is the in which non- (or guidelines charged the call for elimination of the conduct indeed conduct of among people now strident actually who which the defendant actually has been ac system. Judge ) must work under the Rich quitted against is still held the defendant ard Posner described the effects of the sentencing guidelines, under the thus re guidelines “crazy” “loony”; as so judges quiring to sentence defendants for guidelines much so that the use of the crimes of acquitted which were either employed the case that those words de Judge or never tried. As Jon 0. Newman prived equal protec the defendants of their of the Second Circuit stated in his 25 March Marshall, rights. tion United States v. 1993 dissent to the denial of en re banc (7th (Posner, Cir.1990) 908 F.2d view of the decision in United States v. J., dissenting), Chapman sub nom. (2d Concepcion, 983 F.2d 395-396 Cir. aff'd States, United 500 U.S. S.Ct. 1992)reh’g denied sub nom. United States (1991). Judge 114 L.Ed.2d 524 Weinstein (Newman, dissenting): J. Frias of the Eastern District of New York cites aspects One bizarre current colleagues saying one of his “[T]he Sentencing regime Guidelines is that a made Guidelines ... have charlatans defendant can receive the same sentence spend dissemblers of us all. We our time acquitted. whether he is convicted or scheming, bending plotting and and twist phenomenon That occurs when a defen- ing, distorting ignoring in an the law charged multiple dant counts. just effort to achieve a result. All under pending case of Nelson Frias illus- sentencing’!” ‘truth in Wein- the banner of problem. trates the stein, Judge goes Weinstein supra, Frias was convicted of two counts of to note: acquitted of firearms violations and guidelines of the does tend to dead- [U]se conspiracy applicable drug violation. His judge en the sense that a must treat each guideline range solely on the con- based unique being. human defendant as a 12 to victed conduct would have been present system contributes to the guideline range, months. His actual by mentality bureaucratic described Han- drug conspiracy the based analysis nah Arendt in her of the “banali- of acquitted, was 210 to 262 which he was it ty of evil.” While [Footnote omitted.] range months. This is the same that judges is not conceivable that federal will applicable would have been had he been slippery slope the to the utter slide down drug conspiracy. counterparts convicted of the inhumanity judicial of their [Em- Nazi, fascist, regimes, phasis and communist added.] tions, case, now, they prepare guidelines works to the in- The net effect the put judges creasingly, they and to discretion from set the sentences.16 The remove prosecutors. This leads me in the hands of main reason the shift has been the our fed- inescapable drugs. conclusion that the creation of “war” on crime and Cabranes judges justice system have lost what José eral Our criminal has shifted might cajones. process-oriented their jus- call “from a due criminal placed model to a has tice model that in- Indeed, created the commission that creasing emphasis on crime control and expressed that one of concern Guidelines prevention.” Gershman, crime Bennett guidelines is major drawbacks Prosecutors, New 53 U.Pitt.L.Rev. prosecu- “potential turn over to gen- Prosecutors have become power to the sentence tor the determine “war”, in the erals armed with statutes like (or decreasing number increasing or RICO, Forfeiture, Drug Enterprise, content) indictment.” of the counts in an Sentencing Guidelines. Prosecutors Manual, Sentencing Federal Guideline fighters, just crime have become not advo- A, Policy Part Chapter October prosecu- cates for the state. But because 4—The Resolution of Statement Guidelines closely so tors are tied to the detection and de- Major Issues. As Albert Alschuler capture suspects, they cannot review it: scribes objectively: prosecutor’s the case In the system sentencing guidelines [A] view, thing is no there such as an innocent prescribes face severe on its sentences suspect or defendant. plea bargaining unconstrained but leaves result, Sentencing prosecutor’s paradise. today’s prosecutors (especial is a aAs masquerade sentencing prosecutors) as the guidelines ly fairly federal do not act appropri- determination of Brady commission’s towards defendants. In v. Mary reality, guidelines land, 1194, 10 In penalties. ate U.S. 83 S.Ct. L.Ed.2d bargaining weapons (1963), Supreme are Court U.S. held —armaments prosecutors, sentenc- “Society that enable not the wins guilty when commission, sentences to determine are convicted but criminal trials when are guide- fair; operation, system in most cases. our of the administration of sentences; they simply lines do not set is justice suffers when accused treated augment power prosecutors to unfairly.... do ‘The wins United States its justice point so. whenever is done its citizens ” However, today’s in the courts.’ Justice Alschuler, supra, at 926. I believe that Department does not share that view: To today’s majority opinion, by condoning day’s goal simply is maximize convic side, “over-charging” on the indictment tions. exactly the same in state court effect guide- of the more some obscene abuses prosecu- need to driven This convict has sentencing line have in federal court. quick rely plea bargain tors to on the as a way to Today, prosecutors power easy have more and and maximize the number of supervision prosecutor dispose A judicial less than ever before. convictions. can afternoon, bargains Today’s prosecutors plea the sheriffs of in an are like several but They might holding the law. a trial preparing the old wild west: (and lead) then, investiga- or even months.17 Even participate often take weeks Although jurisdictions 16. "In 86% of federal in most the sentence in a all criminal cases Dep't disposed of without a trial. See U.S. bargain judge, plea technically set Justice, Statis- Sourcebook Criminal Justice virtually always implement- prosecutor’s deal (Kathleen Maguire Timothy tbl. 5.25 & tics 502 is, (that prosecu- if ed. If that were not the case eds., 1990). phenome- Flanagan, The same J. non occurs felony credibility), tors had no then defendants would in state cases: in 91% all prosecutors. make deals with the not populous most convictions in the 75 in the counties through guilty pleas. United States obtained Judge the As Frank Easterbrook of Seventh 17. tbl. Rob- Id. at 526 5.51." prosecu- Stuntz, describes on the Circuit the demands Bargain- Plea ert E. Scott and William J. Contract, (1992). ing n. 1 as Yale L.J. tor: is the Handbook’s prosecutor ly] problematic all that time and effort the ... after express endorsement en- might get precious sentence not the conviction: the might acquit! prosecutor What’s a to jury by ‘splitting hancement counts’ be- do? tween two indictments or between fed- prosecutions. and state eral [Emphasis its Prosecu- Department, The Justice Sentencing Handbook on Guidelines tor’s added.] 1987), (1 position November endorsed the Stephen Salky, H. Glickman and Steven M. prosecutors federal must take maxi-

that the Criminal Era Sentenc- Defense advantage opportunities to use mum Guidelines, (1989) 150 PLI/Crim 807 guidelines the to maximize convictions: C4-4185). (PLI In Order No. the case be- Handbook prosecu- instructs federal majority basically fore us the have en- ‘imperative’ them to tors that it is for bargaining power by “splitting hanced choosing the Guidelines before consult counts.” charge, par- what offenses or counts to way prosecutors The main federal cases, ticularly in multi-count order to pros- the results” of maximum (i.e., obtain “best most the ‘best’ substantial obtain road_ sentence) [Especial- by encouraging ecutions is defendants to down the Schulhofer, Bargaining bargains] prosecutors Stephen J. Plea as Disas- also benefit [Plea ter, (1992). large. procedural society purchasing at 101 Yale L.J. 1987-1988 Note sentences, prosecu- precious pros- entitlements with lower little in the incentives for the commodity, buy that most valuable time. doing justice. tors That is the role for ecutor involve they prosecute criminals. time can more With just judge, to ensure a result. percent plead eighty When of defendants guilty, given prosecutorial staff obtains five Indeed, remaining jury may only be the it could times the number of convictions prosecutor. As Professor Gersh- check on the if all went to trial. achieve out, heightened points imbalance in man ”[T]he Easterbrook, Bargaining Compro- Frank Plea system prosecutor adversary less makes the However, mise, 101 Yale L.J. peers accountable to his or to the courts than prosecutors optimistic do is an view of what this ever before. Sanctions for misconduct or over- up Stephen time. Prof. J. with their freed advocacy are either nonexistent or not zealous provides a more realistic view: Schulhofer may It be that effective effective. prosecutor and her assis- Both the chief ... jury prosecutorial power lies in the check on diverge numerous incentives that tants have sure, go system. only a fraction of cases To be optimal public's deter- interest trial, of those cases result in convic- to and most usually [prosecutor] is an elected rence. The However, juries instances where tions. in those system] state and whether official [in decisively rejected prosecutor’s case— have goal appointed, is to enhance elected or her high-profile particularly recent cases in several political standing. reputation and An ef- her celebrities, major involving public officials and strategy contrib- crime control could fective perhaps organized figures crime —constitute goal, but deterrence effects at the ute to that charging significant and adver- most check on likely imperceptible margin ... are to be Gershman, prosecutors.” sarial abuse general public, especially short over the supra, n. (such high other factors as a run. Several everything prosecutors It is because rate, good relationship with in- conviction nothing gain by going before to lose and attorneys, private and an absence of fluential to ob- jury have incredible incentives losses) high-profile more di- trial contribute bargain prices. plea bargain, true often at tain a However, [prosecu- effectively rectly and more often will an innocent defendant standing.... political tor’s] to) (and plead guilty to a crime not have should actually negoti- prosecutors who Front-line defen- Yet an innocent that he did not commit. may may plea agreements not share the ate politically face the wrath of a dant must often the of- prosecutor’s] desire to enhance [chief significant potential stature_ prosecutor and a motivated political assistant’s [T]he fice’s go making prosecutor punishment for extra necessarily goal find the is not immediate Although the innocent it is true that to trial. controlling strategy crime or even optimal may acquitted, is also true that Rather, defendant goal superior. reelecting his his stops pull out all prosecutors and model) (in his is to maximize an economic oath) get (including lying convictions. under welfare, by some com- which is defined own dis- Obviously some reasonable advancement, there must be job satisfac- bination of career tion, penalty guilty, of 300 to pleading but a optimal count for Pursuing and and leisure. 1,000 for not enhancement percent sentence strategy may help advance the control crime prosecutor’s process guilty notions career, pleading strains due like- but other factors are breaking point. effectively. ly more to do so majority the de- The should recall the recent plead guilty regardless of whether Woodall, Dale way case of Glenn and the guilty. fendants are Indeed: police prosecutors manufac- may actually penalize Guidelines [T]he him, against tured the case to realize de- presentation of a the unsuccessful prosecutors they do not if behave as pro- at trial. Guideline 3C1.1 fense § seeking justice, try to maximize convic- but increase if for a sentence vides two-level Woodall, tions. See State v. W.Va. ‘attempts impede defendant’s the [sic] (1989) J., (Neely, affirming 385 S.E.2d justice the administration obstruct part, reversing the initial convic- during prosecution of the instant the ... Subsequent tion due to errors at trial. may look rela- On its face this offense.’ prosecu- DNA evidence revealed that the innocuous, com- tively the official but large part tion and manufactured a enhancement mentary says the sentence Woodall, against of their case Mr. and the if, instance, the defendant applies State settled Mr. Woodall’s lawsuit for untruthfully at trial. testifies [Footnote million). wrongful imprisonment for $1 routinely apply If courts omitted.] Moreover, the Woodall case stands out not sentencing defendants who 3C1.1 § rare, prosecu- it is the because but because at trial—and testify to their innocence police got caught tor and the manufactur- present who perhaps also to defendants against a case an innocent defendant. defense on the merits— any unsuccessful prose- Often we see a situation where the significant a disincentive to it will be group suspects cutor offers a a deal: point going to trial. To make the anoth- others, you’ll Turn in the receive a potentially a way, there is four-level er light accepts deal? sentence. So who the sentencing present- difference between deal, truly guilty accept knowing The ing vigorous but unsuccessful defense a However, can do. it’s best pleading guilty ap- with an at trial and group plead, innocent in the will not be- respon- propriate acceptance personal they did commit a crime. At that cause not sibility. point, prosecutor turns full bore (WL *4). Salky, supra Glickman, defendants; against the innocent then the prose- given federal The Guidelines testimony of the other and the combination ability extremely high create cutors the prosecutor’s quest for conviction are often potential prosecutor sentences in order to coerce de- does difficult to overcome. pleading guilty leverage instead of need more to coerce inno- fendants into not however, plead guilty; majori- going majority’s decision cents to trial. ty’s opinion today gives prosecutor Virginia gives us West the case before virtually unlimited ability bring prosecutors power. a similar When it number of counts against a defendant case, majority a sexual abuse comes to violating Jeopardy the Double without carte blanche given prosecutor clause. charge many counts of that as he abuse facing like. An innocent defendant

would is true that in this case the circuit It adding potential of consecutive sentences good judgment to sentence court had years strong pres- feel up to 50 or 60 will Al- appellant to concurrent sentences. plead guilty charge to a lesser sure to appel- though significant injury no befell years sentenced to one to five with post, lant ex problem that does not cure Moreover, prosecutor probation. if the of- appellant’s dou- caused the violation deal to the actual criminal in ex fers the same rights. way There is no ble against exchange testimony for his an inno- ante appellant have known that could defendant, alleged the true criminal cent court would sentence him that the circuit chance, If, trial, jump presented at the while the inno- he way. would before the prosecu- plea prosecution, cent co-defendant would now face offer impressed potential year surely sentence in- would have prosecutor tion and a serving probation simply because the defendant with potential for consec- stead of did plead guilty. if he go to trial. utive sentences he is innocent and demands to falling training ground great today’s opinion, majority lawyers), profes- With trap that the federal sentenc- into the same prosecutors sional federal now have little created for the federal ing guidelines have humanity sense of common and see defense charging judiciary: increased discretion personal counsel not as adversaries but as prosecutor necessarily leads de- enemies. being provided by justice creased Although, perhaps, description this is a courts. caricature, caricatures, bit of a like all it is Finally, I would add one last observation: exaggeration God-given but an of the Specialization relegated in the law has now days my truth. Unlike the youth of when criminal law to the ministrations of a small high quality lawyers most at least from group lawyers top profes- of at the time to time found themselves in criminal sion, incalculably larger group and to an of court, today lawyers political with con- lawyers at the bottom. There is little in nections, high-powered equip- intellectual between. Because criminal law involves ment, good supporting staffs have no exclusively processing impe- almost knowledge anything of nor interest underclass, cunious members of the insuffi- justice. has to do with criminal money cient is at stake in criminal case Further- prominent, more, attract well-connected law- tendency this to have criminal law Although few crimi- yers. white collar practiced by an extraordinarily narrow drug enough nals and a few dealers have group specialists pro- is even more money good lawyers, to hire almost all where, nounced in the federal courts as I represented by criminal defendants are ov- earlier, indicated arduous efforts have been erworked, underpaid public defenders or lifetime, prosecutors made civil service court-appointed lawyers. public Sometimes keep high quality, expensive lawyers ambitious, intelligent, young, defenders are might system. who beat them out of the advocates; time, idealistic most of the how- then, problem, great Part of our is that the ever, simply public defenders are hacks. majority lawyers country partic- in this — Court-appointed lawyers good, are often ularly working in those the enormous cor- lawyers find that can make but who porate absolutely and defense firms—have practice vastly money more in civil seek to crafted, joke no idea what a custom individ- appointments. Virgi- In West avoid court justice in the ualized has become federal nia, court-appointed criminal not does system joke custom court what craft- pay badly, adequate funds never work ed, justice danger is in individualized being appropriated by legislature, becoming systems. in the state court court-appointed criminal work often does Thus, pay legislature, at all. time, then, for us to take a stand on It is bar, coming the courts are to treat and now liberties; frontal assault on our civil this just field of criminal law as the whole time for the courts to reassert their management in- another of the waste justice. proper role in the administration of dustry. majority, yielding regret I its prosecuting attorneys The staffs of that has the word hysteria over a crime composed gov- largely of bureaucratized it, has failed to see “sexual” attached to being lawyers ernment whose interest consequences ruling today. it’s cutting edge vanishingly the law is prosecutors, general, small. Assistant accepted regular

are folks who have security govern- job

hours and fair arduous, coffee suck in lieu of more

ment challenging work. On the

stress-laden secure, side,

federal with the advent

reasonably paid, jobs lifetime as civil well (unlike prosecutors yesteryear

service Attorney’s office was a

when U.S.

Case Details

Case Name: State v. Rummer

Court Name: West Virginia Supreme Court

Date Published: May 28, 1993

Citation: 432 S.E.2d 39

Docket Number: 21095

Court Abbreviation: W. Va.