*1 Virginia of West STATE
Kathy J. SCHOFIELD.
Kathy J. SCHOFIELD McCOY, Joseph
W. Commissioner of Virginia Department
West
Corrections.
Nos. 16389. of Appeals Court Virginia.
Feb. 1985.
Rehearing Denied June 1985.
Dissenting Opinion July 1985. *3 Fleisher, Wilson, H.
Barbara Preiser & Charleston, Kathy J. Schofield. Taylor, Gen., Atty. Silas B. Asst. Charleston, McCoy. for State and NEELY, Justice: Chief appeal ha- Kathy Schofield’s and writ of corpus beas opinion are consolidated address validity because both below, given conviction. For reasons appeal is denied and corpus writ of habeas likewise dismissed. James Preston Gill was shot in the back by a bullet on 2-3 night .22-caliber May pathologist 1982. A forensic testified that the was fired from a bullet distance Virginia but officers to West the victim come with the and that both or more two feet baby as to her as soon standing to return wished murderer were and the possible. af- body discovered time. just inside the May 1982 hours of 3
ternoon that she was Miss Schofield learned apartment the victim’s slightly ajar door shooting of James Gill. suspect death Parkersburg. Buffington’s Bar in above rights read to her with Her Miranda She read regular patron one line at time. care Gill James form and a waiver signed he lived. the Miranda On over which establishment silent. Schofield, that she could remain Kathy that she knew Jo May Miss mother, later testified that she was seen the bar young unwed up *4 get free really was to offering uncertain that she was overheard the victim and with (The leave. appellant later and “company.” him her that remark was reference explained during question- admitted Miss Schofield services.) Apparently the prostitution to the and had been ing that she knew victim offer, min- accepted her few victim Buffington’s apart- in his him and at shortly he left the bar followed utes later At night of Mr. Gill’s death. ment on the reap- by Miss Schofield. Miss Schofield asked her if she point the detectives one and Buffington’s night later that peared at laughed she Gill to which had shot James midnight, after Sometime had a few beers. had affirmatively that she and answered taxi, dined at a restau- she summoned kill him it was like to “shot to see what rant, her another cab take and hired someone,” quickly added she was but then home. joking. of the detectives only When one her she consider suggested that should inquiries Mr. result of made after As a future, appellant, infu- daughter’s baby discovered, corpse the Parkers- Gill’s riated, abruptly concluded conversation be- police sought out Miss Schofield burg immediately Belpre. took and a cab person to have lieving that she was last police The learned been with victim. During May the afternoon parents and child she lived with her Parkersburg Po- Douglass of Detective Belpre Washington a trailer outside Department acquired a warrant lice Parkersburg police re- County, Ohio. The Based on the West Kathy’s trailer. search layed their to interview Miss Scho- desire search Virginia warrant Ohio warrant County Washington Marietta, to the sheriff of field subsequently issued Ohio Belpre police department. Ohio by and the Schofields’ trailer and taken to subsequently ap- law officers Washington County enforcement sheriff’s deputy mid- peared accompa- at trailer at Miss Schofield’s This detective was department. Parkersburg told morning May on 3 1982 and members nied four Parkersburg Department. wished to no one then two detectives Since Police home, Hall. Miss speak Belpre City at the the officers waited until with her to the speak parents were summoned The consented Schofield’s who, offi- although p.m., tes- 5:30 admitted the Virginia trailer authorities daughter’s their no cers and directed them to that she knew she was under tified containing (The Two James Gill’s explained room. wallets obligation to officers do so. effects, re- the .22-caliber accompany identification and to her that she did (all in a dress- under blankets them.) volver hidden containing er), .22-caliber purse as well as a Miss Parkersburg The detectives asked room. shells were found speak River and Schofield to cross the Ohio validity fruits of this search war- The The Parkersburg. detectives with them disputed appeal. are not rant explained that she was to Miss Schofield Anticipating that the search of the Scho- arrest, not under did not have answer appel- field trailer would incriminate that she was free questions, and lant, Department Parkersburg Police she wished. leave whenever patrolman standing in Parkers- agreed to had a replied that she understood burg waiting lawyer provided for an order to obtain an could be to her without mother, however, Immediately charge. arrest warrant. after Her reiterated patrolman trailer’s search this was in- to remain silent until she had a lawyer. telephonically procure structed a war- Although ample probable rant. cause ex- Nonetheless, began to tell isted, patrolman relay adequate did not happened” night officers “what County magis- information to the Wood of Mr. Gill’s testified death. officers police trate why to establish believed spoke spontaneously and was not “probable had cause” to arrest Miss trial, however, answering questions. At Inexplicably simply Schofield. officer only Miss spoke Schofield insisted that she Kathy stated that Schofield murdered get my order to the officers “off back.”
James Gill because: “James Gill was shot She admitted that she knew that she could to death.” He later testified that he af- remain silent. firmed under oath the information con- investigating Miss Schofield told the offi- complaint tained was correct and “Buddy,” cers that she and a friend magistrate perfunctorily issued hers, planned to rob Mr. Gill and it was the arrest warrant without further ado. “Buddy” ultimately who shot the victim. *5 Thereafter Parkersburg the Police De- “Buddy” however, No was ever found de- partment telephoned Washington the Coun- spite thorough a neighbor- search ty sheriff’s office and told them that a by police. anybody hood Nor had else warrant for Miss Schofield’s arrest had alleged accomplice. ever met this Virginia been executed West and re- Miss Schofield later at trial admitted that quested that Miss Schofield be arrested fact, “Buddy” she fabricated the In story. pending and held extradition. Based on stated, she shot she Mr. Gill herself but did information, this the Ohio authorities ar- so in in response self-defense and to his appellant rested the one her brothers’ sexual advances. Miss Schofield testified An deputy trailers. Ohio testified at trial “emotionally upset” that she was when she gained entry that he into the trailer as killed the victim and that she had been follows: by past. abused Mr. Gill in the Further- door, I knocked on the a male came to more, night question, she testi- door, in, I invited me told him I was fied, she was drugs under the influence of looking Kathy. for Kathy He stated was calling and goaded by Mr. Gill her her a in the trailer. After I entered the trailer “just coward. She fired the revolver once Kathy sitting I observed in the chair. I to scare him” but the victim turned his Kathy it was knew because she had iden- away.” on “kept walking back her and Kathy tified herself as and Schofield also response pulled I trigger again “... Captain Birch knew her and identified ground.” him and fell shot he to the being Kathy her as Schofield. apologized Miss Schofield noted that she I I teletype told her that had a and that expired. her victim he After he before being charged Virginia she was a pockets died she searched his list of going with murder and I was arrest prostitutes kept appar- the victim that justice charge. her on a fugitive from list, ently Finding her. included was very up- She She was handcuffed. pornographic photographs also took that set and I took her out trailer. Mr. Gill had taken of her and the victim’s apartment. excitement, wallet. She then left appel-
After some initial with hysterics seeing baby lant in her I detective’s arms and one her brothers officer, taking a arresting appel- blow at an brief numerous contains lant assignments calmed down. testified of error that we shall address that, upon being maintains read her constitutional seriatim. first rights, County had understood her that the Circuit Court Wood admitting post-arrest silent but stated she erred statements was unaware requests.” colorable warrant about all since these statements into evidence 918-19, 104 3418-19. S.Ct. at See had “framed” U.S. “Buddy” and that she been Sheppard, 468 Massachusetts arrest and also product of an unlawful were the 82 L.Ed.2d States, 104 S.Ct. thus, U.S. United Wong under Sun 9 L.Ed.2d 371 U.S. poisonous “fruit of tree.” Whether, however, this case would come such, argues, could
As
good
Leon’s,
exception to the
supra,
within
against
into evidence
her.
not be admitted
if
disallows the defense
faith defense that
agrees
that West
Although this Court
facially
proble-
defective
the warrant is
Virginia
issued
the Par-
arrest warrant
matic;
we need not reach
nevertheless
defective,
magistrate
kersburg
this
a warrantless
issue in
case because
that,
circum-
hold nonetheless
entirely justified.
arrest
stances,
was valid
Miss Schofield's arrest
appellant's
ar-
No one contends
entry
trailer
and that the
brother’s
valid. The state’s brief
rest warrant was
not unlawful.
to arrest
“did an infuriat-
patrolman
admits that the
by failing to
inexplicable thing”
ing and
arrest
An affidavit
warrant
cornucopia
present
magistrate
only
the victim was shot to
stated
gathered.
colleagues
of information his
magistrate
to con
death does
enable
However,
dispositive of
mistake is not
probable cause exists
clude that sufficient
question
post-arrest
state-
whether
Indeed,
the warrant.
un
for him to issue
by the defendant were admis-
ments made
Const,
Ill,
der
art.
§
Furthermore,
mag-
we note that the
sible.
Fourth Amendment
U.S. Constitu
istrate who issued
warrant was
magistrate
tion a
cannot be
rubber
*6
admittedly scanty
its
contents
misled
police.
magistrate
The
stamp
the
issu
for
his
nor did the affiant believe
information
ing
independent
the warrant must make an
Leon,
false.
United States v.
See
upon
judicial
himself
decision for
based
supra.
provided
by the police
information
to him
e.g.,
a
he can issue warrant. See
before
“the
Although Miss
Schofield
White,
374, 280
167 W.Va.
S.E.2d
entry
State v.
into
target”
police
of the
her broth
(1981);
167
Wotring,
114
State v.
W.Va.
legitimately
trailer
er’s
and was
104,
(1981);
182
v. Du
premises
request,
privacy expecta
279 S.E.2d
State
at his
no
Const,
dick,
629,
(1975).
Ill,
458
213 S.E.2d
protected by
tion
art.
§
and the Fourth Amendment
the U.S.
Nonetheless,
Supreme
re-
Court has
applied to her.
Constitution existed that
apply
exclusionary
fused to
rule
Admittedly the arrest
was defec
warrant
conducting cases in which the officer
tive,
a
to her
but Miss Schofield was visitor
re-
objectively
search acted in
reasonable
any authority or
trailer without
brother’s
magistrate
a warrant issued
a
liance on
in
premises
over the
interest
control
In
invalid.
that was later determined to be
Indeed,
premises.
on the facts of
Leon,
897, 104
468 U.S.
United States v.
case,
no claim could be sustained that
(1984)
Justice
S.Ct.
L.Ed.2d 677
rights
privacy
were violated.
brother’s
White wrote:
priva
if a
But even
breach
her brother’s
exclusionary
“Imposition of the
sanction
found,
cy interest could somehow be
necessary meaningfully
to inform
rely
not be
on such a
would
able
breach
errors,
judicial
their
officers of
and we
trial.
to exclude evidence from
own
admitting
that
cannot conclude
evidence
rights
personal
are
Fourth Amendment
a
pursuant to warrant while at
obtained
rights.
declaring
the same time
that
warrant
any way
plethora
This
notes the
of evi
defective
in
Court
was somehow
will
arresting
in dence before the
officers
judicial
professional
reduce
officers’
permitted
to infer
Miss
comply
with the Fourth
them
Schofield
centives
Amendment, encourage
felony.
committed a
See
repeat
them to
(1980).
mistakes,
granting of
165 W.Va.
Craft,
lead
their
arresting
(1981)
officers knew that
Gill 101
The
James
S.Ct.
Although privacy outweigh privacy Miss Schofield did not in interest legitimate expectation privacy fringed Peacher, have a of upon. State visiting while her his trailer- brother S.E.2d 559 where we house, police insists that needed a held that expectation pri an individual’s of justify entering vacy search warrant to than his automobile is less appellant business, on place brother’s home. The relies his home his im we States, Steagald plicitly recognized varying degrees in- United U.S. 27-6A-2 findings entry, as Miss W.Va.Code A mere [1979]. trusiveness. to right include the case, hearing than would less intrusive Such a is even Schofield’s by an psychological examination another a seizure. present right to independent expert, the Thus, hold that the evidence, to have and the counsel arrest, to an invalid arrest war pursuant medical witness- the State’s cross-examine rant, party of a third the home For opinions. their the basis of es test arresting officers because permissible explained ap- that is not some reason grounds believe that had reasonable for a counsel never asked peal, defense Furthermore, felony. be had committed hearing. appellant’s relatives were aware cause the Instead, September plea on 15 incriminating evidence that had been of the bargain hearing consid- was undertaken might relayed have they well discovered plea degree murder. guilty er a to second her; information defendant, however, unwilling to The Indeed, might fled. as she stat then that, bargain learning accept plea after “I plea-bargaining hearing: at her ed trial, jury could still if the case went to anyone to Canada before should have went manslaughter. At this return a verdict ap arrest of the me.” Since the arrested point the defense counsel filed affidavits valid, subsequent spontane pellant was repre- they outlined their difficulties which suppres did not warrant ous statements senting appellant. Miss Schofield’s sion. lawyers upset that their client would II her four by any one of stories stand lawyers The stat- about Mr. Gill’smurder. the circuit claims ed that the was either unable failing properly to determine court erred her role trial unwilling to understand question appellant’s competency to communication with her was ardu- and that all the facts and circum stand trial under ous at best. main stances of this case. Miss Schofield tains it was error Code hold 27-6A-1(d) competency hearing [1983] for the circuit court not under Va. fail W. re trial competency As a result of court acquiesced examinations. to a second series representations, psychologi- quest neurological examination of Spencer report Hospital cal disagree. appellant. We commented: probably young lady It is felt that trial, Miss Schofield’s coun- Well before identity problems in the has had severe were unable to commu- sel stated past, self-identity has made a as but now effectively nicate with their client. Coun- this, at a murderess and least some the defendant misunder- sel insisted that *8 measure, her identity has con- resolved that stood their and directions and advice flicts. rambled in con- persistently defendant find with counsel. Counsel told The examiners did not Miss Schofield versations incompetent, mentally to to to unable appellant court that refused discuss be truth; only appears it she was necessary matters enable them ade- discern to the truth. quately prepare unwilling to The trial to reveal for trial. judge accordingly ordered the to would have been en by experts to be examined ascertain if she neurological her a consultation had titled to competent to stand trial. was requested one. Since no ex counsel ever made, however, IQ apply we found
The initial examiners
her
to be
amination
Baker,
average
holding in
that
our
W.Va.
below
but denied
she was
(1982)
held
ill or
As a
287 S.E.2d
which we
mentally
even deficient.
result
examinations,
implement
the failure of counsel to
an
this first set of
the trial
that
error
competent
to
order for a mental examination
not
court found Miss Schofield
implement
they
counsel failed to act to
counsel
that
where
and notified defense
appellant’s
In
case
hearing
examiners’
that order.
counsel
request
could
a
on the
requested
neurological
never
a
examina-
Ill
request
compe-
tion. Nor did the defense
a
days
trial
Two
before
defense counsel
tency hearing under W.Va.Code 27-6A-2
they
notified the court that
were consider-
requests
no
Because
such
were
[1979].
ing
plea. Nothing
insanity
an
more was
properly
made the court
entered
on
orders
heard, however, until
after the
again
August
1982 and
on 30 November
testified.
requested
The defense then
competent
that found the defendant
recess
additional
time to consider
to stand trial. Both
noted
orders
that
they
whether
present
wished to
further
request,
counsel could
within a reasonable
testimony to
plea
insanity.
buttress a
time,
hearing
evidentiary
on the issue of After this
recess
defense reconsidered
competency.
per-
counsel
present
and decided
to
not
additional evi-
sisted in their solemn silence and
to
failed
still,
insanity.
dence on the
They
issue
request
hearing.
however,
insanity
requested
instructions.
The court refused and
that
stated
it could
Instead, at
opening
of the trial on 13
permit
insanity
go
to
issue
to
jury
December
counsel
for the
asked
jury without further evidence.
competency
to make a
determination.
Miss
that
Schofield maintains
the lower
why
request
hearing
When asked
no
for a
by refusing
court erred
instruct
jury
earlier,
responded
had come
counsel
that
might
that she
have been insane at the
they
preferred
jury
wait until “the
homicide, despite
time of the
dearth
was here to
replied
do this.” The court
evidence
trial and
the record
she
an issue for the court
could have
suppres-
been insane. At the
and,
jury
accordingly,
decide
refused
hearing,
sion
Miss Schofield’s mother testi-
bring
jury.
issue before the
Defense
daughter
poor
fied
ability
had a
counsel demurred and stated that
instructions;
comprehend
she did not main-
ready
proceed
with the trial.
daughter
only
tain her
was insane. The
presented
jury
evidence
trial
In such
it
circumstances
cannot
suggest
mentally
Miss Schofield was
unsta-
be said that
the trial court denied Miss
ble
when
shot
victim was that she
the opportunity
judicial
Schofield
for a
angry during prearrest
became
interview
hearing
competency
to stand trial
after a detective advised her to consider
A request
the murder of James Gill.
hysterical
her child and
became
day
prima
made the
of trial is
un
facie
when she saw her child in a detective’s
Audia,
timely. In State v.
arms at the
of her
time
arrest.
defen-
(1983)
(1981)
(1982)
opined
where we
that the defendant
found
it
may request
hearing
charge
theory
issue
jury
of was error to
with a
*9
competence
any
prior
by any
time
As
unsupported
reasonable
that was
evidence.
unanimity
insanity
defense,
trial.
is an
Furthermore
note the
affirmative
the bur
psychiatric
appellant
produce
contained Miss
re
den is on the
Schofield’s
suffi
ports. As such
holding
jury
our
State v.
cient evidence to allow the
to believe
Milam,
691,
159 W.Va.
S.E.2d 433 that there was a reasonable doubt as to the
226
(1976)
3,
inapplicable.
Milam,
Syllabus
supra,
sanity,
is
defendant’s
Point
State
this
held
grant
Daggett,
Court
failure to
the
v.
167
After mistrial, may may then or at a granting a overruled not be awarded the court by requested later date the State Board of Parole. or offered. Nor are man- 30, The Board of Parole makes its decision dated statute. Under Rule W.Va. upon investigation
based
alleged
the De- R.Crim.P. 30 an
error must be
complete
record,
fendant’s
criminal
raised in the trial court to be considered on
record,
prison
including report
appeal
particular
on con-
and unless a
instruction is
duct,
prison
work and attitude in
and
fundamental to a
theory
defendant’s
mental,
case,
complete physical,
psycho-
required
the trial court is not
to act
logical
Butcher,
sponte.
examinations conducted
sua
within
See State
evaluation,
522,
(1980).
preceding
two months
W.Va.
McGRAW, Justice, dissenting:
Supreme
in
Court Katz v. United
347,
507,
L.Ed.2d 576
389
88 S.Ct.
19
U.S.
that because
majority’s
The
conclusion
as the United
Unquestionably,
in her own
appellant “was not arrested
Supreme Court stated
Silverman
States
Supreme
home,
of the
Court
the strictures
505,
States,
511, 81
v. United
365 U.S.
exigent
a
absent
requiring
valid warrant
734,
679, 683, 5 L.Ed.2d
S.Ct.
person
a
his
arrest
circumstances to
very
“At
fourth amend-
core
[of
inapplicable,” maj. op. at
home are
own
man to
of a
retreat
stands
ment]
pertinent
105, directly
with
au-
conflicts
free
into
own home and there be
from
his
thority.
governmental
intrusion.”
unreasonable
Payton
on
majority’s reliance
v. New
The
emphasis,
The
how-
majority’s exclusive
573,
1371,
York,
445 U.S.
100 S.Ct.
ever,
“home”
back
harkens
(1980) misplaced.
Pay-
is
L.Ed.2d 639
simplistic
“a constitution-
overly
concept of
Court,
ton,
Supreme
ex-
the United States
ally
protected
expressly
area”
discarded
than
hibiting considerably more restraint
Katz,
350, 88
389 U.S. at
S.Ct.
Court
that,
majority,
careful
note
does the
510,
at
At the
at
19 L.Ed.2d
581.
core of
any question
“[Tjhese cases
raise
not]
[do
that,
holding
Katz is the Court’s
“[T]he
concerning
authority
police,
of
without
people,
protects
Amendment
Fourth
warrant,
enter
either a search or arrest
511,
351,
at
places.”
Ill ably to be within the home of a believed party: third Robert David JONES circumstances, exigent In the absence of consistently judi- that such we have held
cial are not PERRINE, untested determinations reli- Transport H. William Roles enough justify entry able an into Inc., Cab, City Arby dba B. Smith. him person’s home to arrest without a No. 16380. warrant, or a search a home for ob- Supreme Appeals Court of jects in of a the absence search warrant. Virginia. depart reason to ... We see no from this settled course when the search of a home March 1985. person is for a rather than object. Rehearing Denied June 1985. contrary A police, conclusion—that acting alone and the absence of exi- circumstances,
gent may decide when justification
there is sufficient for
searching the party home of a third for subject of an arrest warrant —would significant potential
create for abuse. solely
Armed with an arrest warrant for single person, police could search
all the homes of that individual’s friends
See,
acquaintances.
e.g.,
Lankford
Gelston,
(CA 1966)
(enjoining police practice under which pursuant
300 homes were searched fugitives).
arrest warrants two
Moreover, may an arrest warrant serve pretext entering
as the a home in police suspicion,
which the have a but believe,
probable illegal cause to ac-
tivity taking place. Cf. Chimel v. Cal- 752, 767,
ifornia, 395 U.S. 23 L.Ed.2d 213-15, 101 1648-49,
451 U.S. at S.Ct. at Therefore, Steag-
L.Ed.2d at 46-47.
ald, separate search warrant should have
been obtained for the when the
police grounds reasonable believe
that she was at her home. brother’s
Because I believe that the United States appel- Court would reverse the upon
lant’s conviction based the admission pursuant
of her confession obtained to an arrest,
illegal respectfully I dissent.