State v. Wyer

All that Therefore, not be favored. I should libel cases man. reasonable to the ous in this case necessary extent to for our decision today’s ruling to the from dissent ques- as ex- some factual privacy recognize of that it was to defines invasion than a a trial rather and that cluding class of individuals remained unanswered a tions record for the particular develop of claims. sufficient class a would Attempting legal issues. of determination inconsistency in by an confused I am also in a factual legal questions to answer those legal to different majority’s approach foolhardy at is best vacuum difficult dealing with recovery. of When theories worst. theory, majority appropriation that, fact an uncontradicted as states example of “More opinion This is published “Crump’s photograph was majority tells philosophy. The is Better” publish- likeness it was it was her his returned with that at the time Moses us a it likeness of woman was the ed because tablets, single of consisted libel sacred Therefore, majority holds miner.” coal Today majority of falsehood. element is not enti- Crump of law that as matter a there are now the definition so that refines appropriation the- recovery under an tled to that offense. What six elements theory, Turning light to the false ory. im- have made! Think of the progress we the state- states that whether majority grafted on to the that can be provements appel- to the in the article referred ments nine commandments. other question individually is of fact for lant against lying edict the ancient Of course If blatantly inconsistent. jury. This law do the modern has little more to with gen- to a picture relate the statements miracle of the than the of defamation miner and not the individu- eral female coal current has to do with the loaves and fishes jury. is left for the plaintiff, al no issue selling food without proscriptions regarding one Something that is a fact majority If the wish vending license. theory It cannot be mirac- legal fact. writing guidance for to the Bible look ulously “question for transformed into in- opinions suggest I would their future attaching a jury” simply by different Book of Prov- they to the stead that turn legal theory recovery. of label they sage find the advice would erbs where disturbing thing about this confusion 28: Chapter Verse simply unnecessary. This case it is fool, peace, he holdeth Even a when summary comes before us on a motion shutteth wise: and counted Virginia long has a histo judgment. West understanding. lips is esteemed a man ry disfavoring motions as method such genuine is disposition of where cases remain, Syl.Pt. of material fact sues Co., v. Junior Pocahontas Coal

Johnson (1977), Inc., 234 S.E.2d 309 160 W.Va. 320 S.E.2d 92 different inferences can be drawn where Virginia STATE West true, Aetna accepted facts are from Company v. Federal Casualty Surety York, 148 Company New Insurance Wayne WYER. Kenneth No. 15839. judg “summary We have also noted that granted be entertained ments should Appeals of involving in civil actions with due restraint Virginia. West Anderson v. negligence issues of ....” 21, 1984. March Turner, 283, 296, 184 S.E.2d (1971). Similarly, in Hutchinson Dissenting July Opinion Proxmire, 443 120 fn. 9, 61 2680 fn. L.Ed.2d Burger indicated that Chief Justice summary judgment use motions

MILLER, Justice: defendant, Wayne Kenneth Wyer, was convicted of sexual assault in the first degree in the Circuit Court of Wood Coun- ty. appeal On claims that trial court denying erred his motion for instructions on lesser included offenses. He also claims suppressed the court should have by police statement taken from him offi- cers after his arrest. forth,

For the reasons hereinafter set we conclude that the defendant’s in- claim of error structional is without merit. The issue, suppression hand, on the other raises questions magnitude of constitutional un- der Sixth Amendment to counsel. inadequately Because the record is devel- oped question, on the we remand so that regarding evidence the circumstances sur- rounding taking of the statement can developed. The trial court recon- should suppression light sider the in issue of that principles evidence and the enunciated in opinion. this According to witnesses called State, defendant, married, who was en- neighbor, tered the home of a female who married, approximately was also 2:30 p.m. April stocking 1982. He had a over his head at the time and a knife his recognized by hand. He nonetheless was the victim who had known him for about a year and who had on occasion visited his present. home when he and were his wife victim, According to the the defendant stat- ed as he entered the house: “You know what I want.” He directed her to a bed- pushed room he her onto a As where bed. display of a result of these actions and the knife, testified she felt threat- she compelled perform ened and felt oral sex defendant, requested. on the as he deny The defendant did not the incident deny that he had threatened her but did with a knife. He admitted that he had a pocket that it fell to knife his and stated during the floor sometime the incident. He old kitchen knife described the knife as an Finnerin, Parkersburg, ap- David M. having a five- or six-inch blade. The defen- pellee. pushing the victim onto dant also denied voluntarily Durig, Atty., Pros. Par- the bed. He testified that she C. Scott Asst. kersburg, appellant. and consented to the went to the bedroom not quires the inclusion of element wearing a stock- He admitted act. sexual face, required greater in the offense.” it did cover

ing, said but of his keep hair out it was used Daggett, also State v. eyes. Bailey, evidence, de- presentation of After the 220 S.E.2d 432 pro- discussing the court’s fense counsel inquiry requires other The is factual and in- court requested that the charge posed of whether is evi- a determination there included sexual on lesser jury struct in the case particular which tends dence warranted argued were offenses which the evidence the elements contradict theory of case. under the defendant’s greater offense are different considering question, court, after elements of lesser included from the they jury that instructed the refused and principle We summarized offense. guilty of the defendant find could either 2 of Neider: Syllabus Point degree in the first sexual assault dispute jury evidentiary returned a verdict no guilty. The “Where there is degree. in first guilty of assault of the insufficiency sexual on the elements or from are different

greater offense which lesser included of- the elements of the I. fense, entitled then the defendant is not Neider, in We stated State a lesser included offense instruction.” 170 W.Va. of whether a defendant the determination de- In order first to determine whether lesser included is entitled to instructions on includes a sexual gree sexual assault lesser two-part inquiry.1 a The offenses involves offense, necessary analyze it is W.Va. legal issue of question first centers a Code, apparent under It is 61-8B-3.2 charge a defendant whether the offense can committed this statute the This included offenses. is contains lesser acts. Under the evi- by several distinct applying principle con by resolved case, of language the relevant dence of Louk, Syllabus in Point of tained State the statute is: (1982): 285 S.E.2d 432 “(a) person guilty A as- is of sexual determining “The whether a test degree sault in the first when: particular offense is a lesser included “(1) engages He in sexual intercourse the lesser must be offense is that offense compul- person by forcible with another impossible such it is to commit the sion; and having greater com- offense without first “(i) bodily injury He inflicts serious An offense mitted the lesser offense. is anyone; upon if it re- or not a lesser included offense Neider, “(ii) deadly weapon language employed He a in com- The 1. relevant crime; 664-665, 904-05, or is: mission 295 S.E.2d at "(iii) voluntary was not social The victim legal having inquiry "The is a do first one companion on the of the actor occasion by is virtue of whether lesser offense crime; or legal in its or elements definition included "(2) engages He in sexual intercourse with greater offense.... incapable person of consent another who inquiry “The second one which a factual helpless; physically because he is or by court involves a determination trial if more, He, “(3) years being old or fourteen prove there is evidence would tend to engages with another in sexual intercourse such lesser included offense.” incapable person of consent who is years he is less than eleven old. W.Va.Code, 61-8B-3, The full text of is: “(b) Any provisions person who violates the and, “(a) guilty person guilty felony, A of sexual assault in of this shall be of a section thereof, degree imprisoned upon when: first shall be conviction “(1) years, engages twenty more He sexual intercourse with not less than ten nor than compulsion; dollars person than ten thousand another forcible or fined not more "(i) injury upon imprisoned penitentiary less bodily in the He inflicts serious years.” twenty anyone; ten than than nor more or “(ii) employed deadly weapon bodily injury in serious or employment He deadly weapon. crime; commission or “(iii) voluntary way, Stated another The victim was not a where a volun tary involved, companion social companion the occa- State social of the actor on proving degree first sexual assault must crime.” sion show the prerequisite initial of sexual inter fully In order to understand the above ter- course compulsion forcible on the vic minology, necessary it is to refer to the addition, In prove tim. it must one of the which, definition of “sexual intercourse” aggravating circumstances, i.e., infliction W.Va.Code, 61-8B-1(7), under includes oral bodily injury of serious employment or sex,3 W.Va.Code, 61-8B-1(1), defining deadly weapon. compulsion.”4 “forcible This arises result because our first de- swpra, deter Daggett, we gree begins sexual assault statute with the degree mined that third sexual assault was “(a) person statement that is guilty of [a] not a lesser included offense under the degree (1) sexual assault the first when: general facts of that case. made this We engages in sexual intercourse with an- [h]e regard statement with to the offense of person by compulsion; other forcible and.” degree: sexual assault the first “First There follows three enumerated subdivi- degree proscribes sexual also assault en sions, separated by each the word “or”: gaging in sexual intercourse forcible “(i) bodily injury He inflicts serious compulsion inflicting bodily in serious (ii) anyone; employed deadly weap- He jury, employing deadly weapon, or com crime; (iii) on in commission of the mitting the crime a victim who is voluntary compan- victim was not a social W.Va.Code, voluntary companion. a social ion of the actor occasion of the 61-8B-3(a)(1).” Daggett, 167 crime.”

W.Va. 280 S.E.2d at 558. Thus, provisions under the of W.Va. Code, 61-8B-3(a)(l), relating degree to first analyze por When we the relevant assault, sexual we have as a threshold ele- degree tion of our first sexual assault stat ment of the crime the fact that there must ute we believe that several conclusions can compul- be sexual intercourse with forcible First, reached. be where there sexual Additionally, sion. the first two subdivi- by compulsion intercourse forcible and the give aggravating condi- sions two alternate in addition either inflicts “seri (i) bodily injury, tions: inflicted serious or bodily upon anyone” ous harm or “em (ii) employed deadly weapon. a Proof of ploy[s] deadly weapon” guilty a he is aggravating conditions either one of these degree. Second, in sexual assault the first completed is sufficient to constitute the language as a result of the contained However, (iii)which is offense. subdivision (iii) W.Va.Code,' subdivision 61-8B- begins another alternative since it also with 3(a)(1), voluntary if the a victim is not poses third circum- disjunctive “or” a companion social then there is no need to complete stance can the offense of aggravated degree an sexual assault.5 It occurs show circumstance such as first " W.Va.Code, 61-8B-1(7), bodily injury or anoth- 3. ‘Sexual inter- ate death or to himself states: any persons person course' means act person between not mar- er or in fear that he or another involving penetration, ried to each other how- kidnapped. will be slight, organ by ever sex the female sex the male purposes definition ‘resist- "For the of this organ involving or contact between the sex any physical resistance or clear ance’ includes organs person of one and the mouth or anus of of the victim’s lack of con- communication person.” another sent." W.Va.Code, 61-8B-1(1), states: Elder, 5. In State v. compulsion’ ‘“Forcible means: stated: "The word ‘or’ S.E.2d we "(a) Physical force that overcomes such ear- phrases two denotes an alternative between the might reasonably expect- nest resistance as connects.” circumstances; it or ed under intimidation, "(b) expressed Threat or implied, placing person a in fear of immedi- (Me. Grover, In voluntary 460 A.2d is not a social when the victim Maine, 1983), Dela stated that intercourse court companion; then sexual ware, bring Virginia, West have compulsion and Hawaii is sufficient forcible type companion voluntary some social degree about first sexual assault. statutory provision. indicated in State As words, there is no need under other Grover, statute Maine’s sexual abuse 61-8B-3(a)(l), W.Va.Code, to a victim permits voluntary utilization of social companion, voluntary social who is not B concept as companion a defense to Class cir- prove aggravating for the State quoted The court in from an rape. Grover i.e., cumstance, bodily injury serious voluntary case where social earlier anyone deadly that a was inflicted on “ concept was companion discussed: ‘[It] in the commission of weapon employed Legislature prescribed by the to be of suffi the crime. significance mitigating justify cient is reinforced Our conclusion of the jury’s reduction seriousness degree our second sexual assault fact that Reed, 459 A.2d offense.’ State statute, W.Va.Code, 61-8B-4,6 does not use (Me.1983).” n. at 584. A.2d companion. It voluntary the term social Tyre Delaware deals a sexual offense which sexual with (Del.1980), State, 412 A.2d 328 n. no compulsion forcible with intercourse regard first to its made statement aggravating such as found circumstance rape degree statute: degree As the first sexual assault statute. “Under our statute and the indictment degree in the sexual we have seen first case, present rape in the to establish the victim is volun assault statute where degree, first have the State would companion, aggravat tary one of the social de- prove was not the had victim ing circumstances must be shown obtain voluntary companion on fendant’s social degree a first sexual assault conviction. of the crime and had the occasion subjects Consequently, defendant who previously permitted him sexual contact voluntary companion to sexual inter social general requirements in addition to compulsion by course forcible without one rape, i.e., of the defendant’s intentional circumstances, i.e., in aggravating of the engagement in sexual intercourse with- bodily injury employ fliction or of serious the 11 Del.C. out victim’s consent. deadly weapon, guilty of sec ment of a 763, 764.”8 §§ degree ond sexual assault.7 have a Hawaiian case appears It that this distinction between a We not found speak has occasion companion where the court had voluntary social and nonvolun- companion companion legisla- voluntary social distinc- tary social also been The in statute.9 tively adopted jurisdictions. several other tion under its sexual assault 6.W.Va.Code, 61-8B-4, degree provides: first second sexu 7. We construe our pari assault statutes in materia under al “(a) person guilty sexual assault in A of which relate traditional rubric statutes degree the second when: subject same matter should be construed the together "(1) engages in with He sexual intercourse legislative intent. ascertain the person by compulsion; or forcible another Dailey, Newton v. "(2) By compulsion, pen- forcible he causes Flinn, S.E.2d State etration, slight, however of the female sex any person, by any organ or the anus statute 8. should be noted that the Delaware It object purpose gratifying for the inanimate higher penalty to requires that in order for party. either the sexual desire of apply, "the the victim must not be defendant’s "(b) Any person provisions who violates voluntary companion on the occasion social and, guilty felony, of a this section shall be previously permitted him the crime and had thereof, upon imprisoned conviction shall (Emphasis 764. § contact." 11 Del.Code sexual penitentiary in not less five nor more than added) language is our italicized not in The years, fined not more than ten than ten or statute. imprisoned peni- dollars and in the thousand statute, tentiary portions Ha- than five nor more than ten of Hawaii’s less The material (1981), provide: years." § waii Rev.Stat. 707-730 commentary rape official in Hawaii’s crime of sexual assault in degree. the first degree first statute does elaborate on the Where the victim is a nonvoluntary social policy reasons and distinction companion, between prove the State only need voluntary nonvoluntary compan- social subjected fact and that she was to sexual ion.10 by compulsion. intercourse forcible Where voluntary companion involved, social concept voluntary The social com- must (1) addition show either panion origin had its in the Model Penal the infliction of bodily injury serious Code, (1962).11 Article 213.1 In the com- anyone (2) employment or deadly mentary on this article similar statements weapon in the commission of the crime. regard are made with to utilization of a Finally, voluntary compan- where a social voluntary nonvoluntary versus social com- ion is involved and there is sexual inter- panion distinction as found in the official compulsion course forcible but without commentary degree rape first stat- either of foregoing aggravating circum- ute of the Hawaiian Code. note stances, the crime is then sexual assault supra. degree W.Va.Code, the second under 61- summary, legislature, we believe (1976).12 8B-4 W.Va.Code, 61-8B-3(a)(l) enactment of (1976), relating to sexual assault The defendant the time the in degree, first created a distinction between structions were discussed asked the court a voluntary nonvoluntary and a social com- to consider sexual degree abuse the first panion regard with W.Va.Code, the elements of the However, under 61-8B-6.13 (1) "Rape degree. "(b) person in the substantially A com- impaired pow- he has her first rape degree mits the offense of in the appraise first if: er to or control her conduct ad- (a) person intentionally engages ministering in sex- employing or without her knowl- intercourse, by compulsion, ual forcible edge drugs, intoxicants or other means for the person another and: resistance; purpose preventing or (i) not, person upon The other "(c) unconscious; the occa- the female is or sion, voluntary companion social who had "(d) years the female is less than 10 old. previous thirty days permitted within the him "Rape felony degree is a of the second un- involved; sexual intercourse of the kind (i) less in the course thereof the actor inflicts (ii) Recklessly bodily injury inflicts serious (ii) bodily injury upon anyone, serious upon person.” the other voluntary companion victim was not a social of the actor the occasion of the crime 10. “The degree and nature of the victim’s ac- previously permitted and had not him sexual quaintance mitigating with the actor as a cir- liberties, felony in which cases the is a offense (or acquaintance- cumstance the absence of an degree.” of the first circumstance) ship aggravating as an is based provision employs It is noted that this an addi- theory person on the that a who resorts to phrase previously permitted tional "not him sex- aggression against per- sexual a female who has phrase voluntary ual liberties” with the “not a previous presents mitted sexual intercourse ... companion," phrase social which is not in our danger person less of a social than the who statute. aggression against commits sexual a female who voluntary companion is not his social or with 12. We note that the legislature in 1984 amended previously whom he has not been familiar. statute, degree the sexual assault in the first Moreover, a male who forces sexual intercourse W.Va.Code, 61-8B-3, and the eliminated con- in such situations does not deserve the same cept voluntary companion. social The condemnation, degree or moral as the male who change July effective date of this is 1984. forces sexual intercourse a female with 1984 Acts Ch. 56. acquaintance.” whom he has little or no Offi- Commentary, cial Hawaii Rev.Stat. 707-730 § 13. The defendant did not argue below that the (Rev. 1976). ed. voluntary companion. victim was his social 11. Section 213.1 of the Model Penal Code (1962) argument, he an Even had made such the court provides: submitting would have been warranted in a first “(1) Rape. degree charge A man who has sexual inter- sexual assault since the State’s guilty course with a female not his wife is of evidence that the victim was threatened with a rape compulsion if: knife satisfied the test for forcible "(a) W.Va.Code, 61-8B-1(1)(6). compels he her to submit force or under See note death, addition, bodily supra. threat of imminent serious the use the knife would injury, pain kidnapping, aggravating extreme or to be in- also be under an circumstance W.Va.Code, anyone; 8B—3(a)()(ii), employment flicted on or 61— hearing, suppression the officer At the offense, carries which of this the hallmark years, is “sexual that be- penalty of one to five the confession testified who took inter- than “sexual rather statement, contact” taking he advised the the fore definition, contact” By “sexual course.” rights. He stat- of his Miranda defendant touching of sex the generally involves voluntarily executed ed the defendant person or the organs another or anus of of those a written waiver years or old older a female eleven breast of suppression was introduced at waiver sexual de- gratifying purpose for the question some hearing. While there was from distinguished This to be sire.15 hearing suppression as raised at in set out which as intercourse” “sexual appoint- had counsel whether defendant exception one involves supra, note with taken, time the confession was ed at the Yoshimoto, 64 penetration.16 See State by the developed was not defen- matter There was 635 P.2d Hawaii trial counsel. dant’s that an act of no the evidence conflict therefore, and, occurred sexual intercourse precise presented is whether The issue under State v. court was correct trial rights will suf waiver of Miranda written Neider, instructing on sexual supra, in not Amend waive the defendant’s Sixth fice to abuse. right to counsel once defendant arrested, brought magis before has been II. trate, In order requested assignment of error rests The second necessary to question, it is answer ineffective a claim that trial counsel was that Miranda suppression hearing he understand argue the defendant’s confes- failed to taken in violation of Sixth sion was Court dealt with the right to counsel. Defendant’s rights under the question of the accused’s appellate filed this Court a being Amendment when he was sub Fifth signed by the defendant purportedly form jected interrogation before to a custodial magistrate appeared

when he before the on his arrest. April This after was arrested. pro- primary focus Miranda was request- form indicates that tecting the accused’s Fifth Amendment appointed ed for him. His con- following self-incrimination which day.17 was obtained the fession W.Va.Code, deadly weapon. 61- Had there been evidence that Sexual contact defined voluntary companion, 8B-1(6), "any touching anus the victim social and means might organs entitled person, the defendant have been any part of of another the sex degree on second sexual assault un- years instruction old or or the breasts of a female eleven W.Va.Code, 61-8B-4, de- older, der the defendant where victim not married to threatening nied the victim with the knife. touching purpose and the is done for actor party.” gratifying of either the sexual desire 14. W.Va.Code, 61-8B-6, provides: "(a) person guilty A of sexual abuse W.Va.Code, 61- 16. "Sexual intercourse” under degree the first when: 8B-1(7), between the sex does include "contact “(1) subjects person He another sexual organs person and of one the mouth anus compulsion; or contact forcible person.” another "(2) subjects person to He another sexual incapable who consent contact because analyze error decline to under We helpless; physically he is or assistance doctrine However, ineffective He, more, "(3) being years fourteen old or it is a constitutional dimen person subjects contact another sexual who claim, Syllabus under Point 18 of sion we can incapable he is of consent because less than 640, Thomas, 203 S.E.2d 445 years old. eleven (1975), address the issue: "(b) Any person provisions who violates the previously appears that unas- and, "Where it guilty felony, be of a of this section shall involving prejudicial thereof, signed errors fundamen- imprisoned upon be conviction shall constitutionally protected rights of an ac- tal year penitentiary in the not less than one nor trial, errors void the occurred at these cused years, more than or fined not five more than jurisdiction a valid imprisoned of the trial court to render ten thousand dollars in the and, such, plainly penitentiary year judgment command the less than one nor more years.” appellate five court.” than notice brought requirement may mean, about the Miranda “Whatever it right else right against that he be warned of his granted by the Sixth and Four- adjunct self-incrimination. As an teenth Amendments means at least that self-incrimination, right against the Mi person is entitled to help of a required court also randa accused lawyer at or judicial after the time that right be advised of his have proceedings against have been initiated present during but this by way him—‘whether charge, of formal right was based on the Fifth Amendment.18 preliminary hearing, indictment, informa- Williams, 387, In Brewer v. 430 U.S. tion, arraignment.’ Illinois, Kirby v. 1232, (1977), S.Ct. 51 L.Ed.2d the Unit 682, 689, 1877,1882, U.S. 92 S.Ct. [406 Court, Supreme deciding ed States 411, (Other L.Ed.2d citations 417].” right case on the Sixth Amendment omitted) counsel, stated: “Specifically, spoke there is no need to re- We to the issue of when the view in this case the doctrine of Miranda right Sixth Amendment to counsel attaches Arizona, designed a doctrine to secure W.Va., Gravely, State v. 299 S.E.2d 375 privilege against constitutional com- involving right case to counsel pulsory self-incrimination.... For it is line-up at a after the defendant had been judgment clear that the before us must appeared arrested and had magis before a any event be affirmed There, trate. in reliance on Kirby v. Illi ground that deprived Williams was nois, 682, 1877, 406 U.S. 92 S.Ct. right different constitutional —the (1972),19 L.Ed.2d 411 we said: to the assistance of counsel. “In Kirby, recognized the Court right, guaranteed “This by the Sixth an accused’s federal constitutional Sixth Amendments, and Fourteenth is indis- and Fourteenth Amendment pensable to the fair administration of our only counsel ‘attaches at or after the adversary system justice.” of criminal adversary judicial proceedings time that 397-98, 430 U.S. at 97 S.Ct. at have been initiated him.’ 406 L.Ed.2d at 435-36. at U.S. 92 S.Ct. at 32 L.Ed.2d Innis, See also Rhode Island v. 446 U.S. at 417. The Court indicated that adver- 100 S.Ct. 64 L.Ed.2d 297 sary judicial proceedings criminal could Kamisar, Williams, Brewer v. Massiah by way initiated charge, of ‘formal “Interrogation”? Miranda: What is indictment, preliminary hearing, informa- Matter?, Does It When 67 Geo.L.J. tion, arraignment.’ 92 S.Ct. at 32 L.Ed.2d at 417.” Court Brewer found that Gravely, 299 S.E.2d at 380. defendant, Williams, had been arrested case, Consequently, present in the arraigned on a warrant judi- before a cial officer and that his Sixth Amendment Sixth Amendment to counsel attached arrested, to counsel had attached: initially when the defendant was point emphasized rogation attorney 18. This in Edwards v. must cease until an Arizona, 477, 481, present.’ 451 U.S. S.Ct. at U.S. at [384 reh'g den., L.Ed.2d at 723]. (1981): 69 L.Ed.2d 984 accused has “Miranda thus declared that an right to a Fifth and Fourteenth Amendment "In Miranda v. the Court deter during present interro- have counsel custodial mined that the Fifth and Fourteenth Amend gation.” prohibition against compelled ments’ self-in required interroga crimination that custodial preceded by putative Gravely Kirby tion be advice to the dealt with a defen 19. Both post-arrest line-up. that he has the at a remain dant’s to counsel 220, 458, Illinois, right presence the silent and also to the of an In v. 434 U.S. 98 S.Ct. Moore (1977), attorney.... Supreme The Court also indicated the Court the 54 L.Ed.2d 424 procedures subsequent line-up to be iden followed foreclosed the introduction of such warnings. If the in violation accused indicates that he tification at trial as it was obtained silent, right interrogation to coun wishes to remain 'the of defendant’s Sixth Amendment counsel, requests must cease.' If he ‘the inter- sel. 730 right at the magistrate, Amendment when and re- the

brought before interrogation, being after initial custodial quested counsel. rights, he had asked for given his Miranda Williams, supra, Although v. Brewer that Supreme The Court indicated right to the dealt with Sixth protection is afforded higher level of waived, it had its and whether been requests the counsel: where around ab of centered discussion waiver that strongly has indicated Court “[T]he Brewer, the In defen principles.20 stract necessary when safeguards are additional having spoken with dant after arrest 451 at the asks for counsel.” U.S. accused transported being back to the counsel was 1884, 484, 386. 101 S.Ct. at 68 L.Ed.2d at crime was committed. county where the regard rule with It then went on to set this accompanying An the defendant officer right: subsequent that to a waiver of necessity of a Christian buri mentioned now that an accused hold when “[W]e ultimately prompted al for the victim which invoked his to have counsel has inculpatory statements. defendant’s interrogation, a present during custodial no Supreme The concluded that waiv Court waiver of that cannot be es- valid requires er “But had been shown: waiver by showing only that he re- tablished relinquish merely comprehension but police-initiated custo- sponded further ment, and Williams’ consistent reliance interrogation even if he has been dial dealing upon the of counsel in advice rights. of further hold advised his We any suggestion that authorities refutes accused, Edwards, such hav- 404, right.” 430 at 97 waived U.S. ing expressed his desire to deal with the 1242, at 51 L.Ed.2d at 440. S.Ct. counsel, police only through is not sub- ject to further the au- analogy may be made to cases Some been made thorities until counsel has under the Fifth Amend decided Miranda him- to him unless the accused available ment to counsel where the defendant communication, ex- self initiates further requests govern initially counsel and changes, po- with the conversations attempts subsequent ment to show waiv 484-85, 101 at lice.” 451 U.S. at S.Ct. 477, Arizona, er. In Edwards v. 1884-85, (Footnote 68 L.Ed.2d at 386. 1880, den., reh’g 101 S.Ct. 68 L.Ed.2d 378 omitted)21 973, 101 3128, 452 S.Ct. 69 L.Ed.2d 984 U.S. (1981), Supreme the United States Court any of We are aware United States question the de where there has been considered whether Court case to discuss whether a Miranda subsequently had waived Fifth occasion fendant plurality opinion. attempt We 20. resulted in Brewer1s statements were: essentially prior to v. had Edwards upon prove was incumbent the State "[I]t adopted Syllabus supra, its rule in Point 1 of relinquishment 'an intentional or abandon 550, McNeal, 162 W.Va. 251 S.E.2d 484 State (1978): privilege.’ Johnson known 1019, Zerbst, U.S. [304 custody suspect expressed "Once a 1023, 1461, That standard has 1466]. L.Ed. 82 clear, represented unequivocal his by desire to many We have said been reiterated in cases. counsel, police deal with him as must depend does not to counsel Thereafter, represented. it is if he improper thus request defendant ... and that any for the to initiate com- indulge every presump courts reasonable suspect munication with the through other than strict tion waiver.... This standard legal representative, even applies equally alleged waiver to an purpose seeking persuade him to limited or at crit to counsel whether at trial presence decision reconsider his stage pretrial proceedings." 430 at ical 404, U.S. counsel.” S.Ct. at 97 439-40. Easter, also State v. 172 W.Va. 305 omitted) (Citations (1983); Persinger, 169 S.E.2d 297 State v. (1982); State v. W.Va. 286 S.E.2d Bradshaw, Oregon Goodmon, 290 S.E.2d Sowards, (1981); L.Ed.2d W.Va. Clawson, attempted clarify what was meant S.E.2d procedures. defendant's "initiation” further

731 the Sixth Amend- without notice counsel waiver will also waive to defense violated right: defendant’s Sixth Amendment right ment to counsel after it has attached. Williams, supra, In Brewer v. the United respondent “We do not hold that was Supreme precluded waiving stated that it States Court from this constitution right. al possible to Sixth Waivers of the assistance of waive the Amendment counsel, however, not right only ‘must be vol specify counsel but did how it untary, but must also constitute a know particular language be done.22 could ing intelligent relinquishment or Brewer is: right privi abandonment of a known hold, “The did not Appeals Court of nor lege, depends a matter “upon ... we, do that under the circumstances of particular facts circumstances not, this case Williams could without case_’” surrounding [each] [Ed counsel, notice to have waived his 482, wards v. 451 U.S. at 101 under the Sixth and Fourteenth Amend- 1884, 384], quoting S.Ct. at 68 L.Ed.2d at held, we, only ments. It as do that he 458, Zerbst, 464, Johnson v. U.S. 58 [304 405-06, did not.” 430 U.S. at 97 S.Ct. at 1019, 1023, 1461, S.Ct. L.Ed. 82 1466.] 1243, (Emphasis 51 L.Ed.2d 441. shown, No such has been waiver original) alleged even here.” However, it seems clear from Brewer expressions These from the United other right Sixth Amendment to coun Supreme strongly suggest States Court cases that prohibi sel there is no absolute per against that a se rule waiver of the against right. In waiving tion such United right Sixth Amendment to counsel will not Wade, 218, 1926, v. States 388 U.S. 87 S.Ct. Regretfully, they sanctioned. offer lit- (1967), 18 L.Ed.2d 1149 which involved the guidance tle as to limitations on what waiv- right Sixth Amendment to counsel at a appropriate. er are post-arrest line-up, the Court indicated that conclude, If do we as we that there is no right the defendant could waive per against se rule waiver Sixth Sublet, counsel. See United States v. 644 counsel, Amendment then the cen (8th Cir.1981); State, F.2d 737 Hatcher v. inquiry there tral is whether are valid rea (Ind.1981). 414 N.E.2d 561 sons a stricter standard of waiver than Even the defendant’s to have for the Fifth Amendment waived, trial assistance counsel at can be imposed by In Miranda. Rhode Island v. although it is clear that waiver of this Innis, 1682, 446 U.S. S.Ct. only can be done before the trial 1689, (1980), 64 L.Ed.2d the Su inquiry after judge searching to deter preme there were differ Court noted that knowingly voluntarily mine it is policies underlying ent these two constitu California, made. Farretta U.S. not, however, protections. did tional It 95 S.Ct. L.Ed.2d 562 on elaborate the distinctions. bearing question Of some waiver on the Illinois, In Kirby supra, Court remark made in note 16 of Estelle v. recognized that once the formal adversarial Smith, 451 U.S. 101 S.Ct. govern procedure has been initiated (1981), 374-75 where defendant, it has commit Court found that court testi time, prosecute. itself to Prior to this ted mony resulting psy Mohabir, from court-ordered court in United States (2nd Cir.1980),pointed chiatric examination of the defendant made 624 F.2d Fields, Wyrick The few Sixth (1982), helpful express cases are not L.Ed.2d waiver decided after Brewer Henry, the waiver issue. In United States v. Fifth Amendment to counsel was found question L.Ed.2d but the Court waiver under avoided the applied it had been the incriminating the Sixth Amendment to bar Sixth Amendment since remand, by a raised the circuit court of statements made below. On jail awaiting appeals had defendant’s written trial who counsel. The concluded that the jail statements were Miranda waiver was to waive his obtained informant sufficient government right to counsel. who had been instructed Sixth Amendment Fields v. Cir.1983). (8th agents Wyrick, to solicit the defendant information. 706 F.2d 879 732 attached, rights police-initiated have ment

out, by cooperating with the the defendant if any legal absolutely to barred even may be able avoid government Thus, willing- entanglement. given a defendant's defendant has been Miranda the right to waive his Fifth Amendment ness to warnings, been notified. unless counsel has of an adver- prior to the institution counsel People Superior Fresno v. Court See of positive may some procedure produce sarial 581, Cal.Rptr. 194 County, Cal.App. 145 However, Cal.App.3d formal for him. once benefit B., (1983); 125 In Re Michael 525 commenced, such bene- proceedings have (1981); Re Cal.Rptr. 790, 291 178 decreased, the markedly fit without has D., 986, Cal.Rptr. Cal.App.3d 127 55 Garth Moreover, once the ad- of counsel. benefit . Valencia, (1976); People v. 267 Cal. 881 begins, process apparent it is versarial 620, (1968); Cal.Rptr. People App.2d 73 303 the full government the has committed 484, Cal.Rptr. Isby, Cal.App.2d 73 v. 267 against prosecutorial weight of its forces The Court California 294 to require To him stand the defendant. to this issue. spoken has not by counsel them unassisted court, highest its based on New York's shown markedly unfair unless there can be relying on earlier constitution and own knowing intelligent of a higher level cases, right to has held that “an ‘indelible’ right to of the Sixth Amendment waiver commencemeqt the upon attaches [t]hus, adversary proceedings ... of formal Appeals in Circuit Court of The Second cannot make an effective [a defendant] Mohabir, at v. 624 F.2d States United and to of his to remain silent waiver 1153, Amend stated that once Sixth unless his the assistance of counsel have of right has attached “a valid waiver ment of waiv attorney present at the time have counsel the Sixth Amendment This so even in instances where er. interroga present during post-indictment requested nor neither retained accused has judicial preceded by a federal tion must be 424 Cunningham, attorney.” People sig explanation the content and officer’s of 424, 421, 400 49 N.Y.2d N.Y.S.2d right.” nificance 360, (1980). Recently, the Su N.E.2d 363 Appeals Fifth The Circuit Court same preme Oregon came Amend indicated that focus Sixth 85, position Sparklin, 296 Or. State right-to-counsel waiver is that (1983), P.2d 1182 based its own 672 government must show that “the defen constitution. knowingly intelligently relin dant questioned in quished not to be 483 653 P.2d Norgaard, In State v. United States v. the absence of counsel.” (Mont.1982), no violation the court found (5th 367, Cir.1983). Shaw, 380 701 F.2d Amendment the defendant’s Sixth Watkins, F.2d 1067 Jordan v. 681 See also police questioned though the even cases, (5th Cir.1982). In both these after counsel him on their own initiative a written waiver made court found that appointed. court stated had been properly of counsel waived absence jurisdictions have majority of vast “[t]he right. Sixth ob waivers which were upheld counselless warnings have written or oral po- tained after courts have taken the The California given.” 653 P.2d 487.23 Amend- been sition that once defendant’s Sixth denied, Norgaard, 98 382 A.2d cert. cases in State v. In five cited (1978); People 1140 incriminating supra, were made statements Green, expressed initially Mich. 274 N.W.2d 448 a desire 405 after the defendant Jackson, Neb. 290 agreed also police to waive talk Ruth, (1980) (one incriminating of two N.W.2d 458 to counsel. State v. 102 Idaho volunteered, clearly (1981); Aldridge, People v. Ill. statements P.2d one opinion not indicate whether other App.3d does 24 Ill.Dec. 385 N.E.2d 396 well). (1979), from aff’d, situation is different was as This Ill.2d 37 Ill.Dec. Costa, initially defen (1980); contact the that where the 228 Kan. N.E.2d State, willing he is waive his Md. dant to see if Watson v. 613 P.2d 1359 problem is acute aff’d, less counsel. The waiver App. A.2d 282 Md. Burbine, (R.I. In 451 A.2d 22 State v. confession was ruled on inadmissible Sixth 1982), held the the court Sixth Amendment grounds. Amendment right had to counsel been waived where the defendant after his arrest executed a Mi Furthermore, because of the gave randa waiver and a confession. The higher against standard the which Sixth attorney facts also that showed an had right-to-counsel Amendment waiver mea police called the station to advise of his sured, we once hold that the Amend Sixth representation and was advised that the right attached, to counsel has it can interrogated defendant would not be only by signed be waived a written waiver However, evening. the defendant had not by the defendant.25 It must be also shown right asserted his to either counsel to a at the time that the waiver is executed magistrate interrogating to the officers the defendant was aware that he was un before the Miranda waiver was taken. arrest der and had been informed of the Bledsoe, Wash.App. also State v. charge against nature of the him. These (1983). 658 P.2d elements in must be shown addition' to the per We believe that is no there customary warnings. Miranda se rule a waiver the of Sixth right do, Amendment to We counsel. how Finally, if at the time waiver is ever, hold that a waiver the Sixth sought, the defendant indicates his desire right Amendment to counsel should be officer, have the interrogating counsel to

judged by stricter standards than waiver interrogation must cease until counsel is right the Fifth Amendment counsel. him, made available to unless defen Furthermore, equate general we do dant initiates further communications with request for at appear counsel the initial police evidencing his desire waive his magistrate ance before foreclosing as right Sixth Amendment to counsel.26 This right all cases the officials to Edwards v. Arizona formula under initiate a further discussion with defen willing right dant to if he the Fifth Amendment determine to waive to counsel Sixth Amendment to counsel for carry which must be deemed to over purposes procuring a confession.24 Sixth Amendment to counsel. A on limitation this rule is illustrated case, present In the of the the fact Campbell, United States 721 F.2d 578 signing magistrate defendant’s form

(6th Cir.1983), interrogating where the offi indicating for his desire counsel was not appeared cer had with the defendant before presented circuit to the court. The form the magistrate request and had him heard appellate began then was attached to defendant’s The officer interro gation led appointed to a confession. This who brief was initially regardless specific request where the defendant volunteers his de- is made. whether Williams, sire to See Brewer v. 430 U.S. at discuss crime. 439, citing Carnley 51 L.Ed.2d at We our note that own case State v. Claw 506, 513, Cochran, son, S.E.2d Furthermore, it seems erroneously Norgaard dealing cited with as ingredient judging to us that one issue is the Sixth Amendment to counsel. interrogating knowledge the quest officer's that a re Clawson, represented by the defendant was for counsel been made. charge. counsel on a sexual offense We found that he had waived his to counsel at the predating In a su case Edwards v. regard time of an to two pra, we said where a had re charges by signing a unrelated murder Miranda context, quested counsel in Fifth Amendment We waiver form. found the Sixth Amendment waiver, State, subsequent order show a inapplicable defendant had not by a had an even heavier burden “best borne charge. been arrested on murder signed by written statement the defendant.” Bradley, general request 24.We do believe that a equated counsel can Edwards with the request though fur- direct interro- 26. Even the defendant does initiate Arizona gating communication, any From the Sixth officers. the Sixth Amendment ther waiver of standpoint, writing. to counsel attaches still be in must -lawyers If questions remain unresolved. counsel. The not trial and who was appeal for answers and struggle still however, developed judges not, factually record well-meaning law agree, how can sign- cannot surrounding the circumstances on the know behavior officers what enforcement matters and the related ing of the form inadmissible will make statements them a situation opinion. In such in this outlined Do these their cases? jeopardize case past, remanded in the we have offi- permit unscrupulous doubtful areas taking of additional circuit court for of con- to wheedle confessions out cers validity of the determine evidence to accuseds? fused legal prin- under statement defendant’s Harris, 169 v. developed. State ciples problems about defendants’ Crucial 251, (1982); 254 150, situation, 286 S.E.2d Wyer’s W.Va. present in counsel are to Mohn, 168 W.Va. they ex rel. White State defendants assert that and when also (1981); 914, lawyers, police they 915 State claim requested orally will Clawson, inquiry questioning, supra. not, Such further continue and did should In both the writ whether the confessions elicited. determine statements are cases, request defendants and new trial awarded oral set aside ten and be are in camera suppress, be affirmed. to there the conviction should move whether admitted, hearings; if a statement and We, therefore, permit case to remand reargued jury the fact of waiver hold an in camera circuit court to appealed to us.1 Edwards and whether, under the hearing determine to 477, 101 378 68 L.Ed.2d 451 S.Ct. U.S. out, guidelines herein set the defendant Louk, 285 (1981); right to coun- his Sixth waived McNeal, (1982); 162 432 S.E.2d sel. (1978). S.E.2d 484 Remanded. requires system to Are we wedded into judicial inquiries continual these Justice, dissenting: HARSHBARGER, in taken violation whether confessions were majority opinion I of I concur Part counsel, or is to defendant’s I dis- Points 1 and 2. Syllabus and with efficient solution? fairer and more there a Syllabus Points 3 Part II and agree with eruditely analyzes federal Miller Justice therefore, dissent. and and cases about fifth sixth amendment and magistrate presented Wyer, to a when Fortunately, we do rights to counsel. him, charges informed be rights constitutional have to decide federal magistrate’s form on the checked a box Virginia court Wyer is our West appointed counsel that indicated wanted Virginia laws system, governed West lawyer appoint- him. But before a Herb v. state constitution. See and our rights waiv- ed, police obtained Miranda Pitcairn, 324 U.S. gave them a interrogation he er and after (1945); v. National Minnesota L.Ed. request for Was his written statement. Co., S.Ct. Tea of his sufficient invocation Corp. v. Film Mul L.Ed. 920 Fox from further prohibit police ler, 80 L.Ed. 296 U.S. S.Ct. course, it was. Of questioning? complied are When state standards with, in 1984 indi- his feder problem is here a defendant still claims That this but abridged, we must the whole area of have then rights how uncertain al been cates and it at- constitution United does look to federal to counsel become. When This is an Supreme Court decisions. it from? When States Where does come tach? important basic rule federalism waived, The adminis- may it be and how? matter, For that strongly which I adhere. impaired when these justice is tration of tardation, by police, promises or threats made problem like occurs when a nature 1. Another I es- drug intoxication. The rule or alcohol of his Miranda asserts his waiver pouse could alleviate much violating later this dissent voluntary opposed as was not litigation prolific about voluntariness of the for this claim to counsel. Reasons disorder, as well. may psychological mental re- confessions include I Su- still sixth right. understand that United States amendment The fifth preme also. Court does requires suspects amendment be told amendment, sixth about the it but does not Wyer’s appeal con Matters raised are part turn their counsel into law, trolled and the majority’s state fifth. discussion of rules to them federal resolve may examples must be dicta. Federal analyses distinguishing When started be- authority persuasive they if to our conform and sixth tween fifth amendment counsel provisions percep constitutional and our here, rights, majority as our did confusion fairness; justness tions of are but we resulted, predict- rather than fairness not bound them here. This rests dissent ability black letter Miranda rule adequate independent state law. intended.

Michigan v. Long, dispute No court would value of the a However, I can observe that our federal opportunity criminal defendant’s to consult tangled regard brethren a have woven web attorney during with police before and ing right right, to That counsel. found interrogation. Supreme The United States applicable the sixth and amendment Court has been when a adamant that defen fourteenth, has, through states the sub custody requests lawyer, dant in all a inter incantations, tle mechanations and become rogation Arizona, must cease. Edwards v. incorporated privi in the fifth amendment supra.2 agreed We have and articulated lege against self-incrimination. inter rule Virginia, the same for West State v. face of the and sixth fifth amendment Louk, supra, even the before United rights Miranda 384 U.S. Court, McNeal, Supreme States 86 S.Ct. 16 L.Ed.2d 10 A.L. supra. right critically important This hardly R.3d 974 is sensible and ob prohibition and deserves absolute Yet, along, seeking scure. somewhere fair against manipulation or ruse. ness, we, judiciary, wrong the took a fork imperspicuity. and reached Justice Miller has on this dis- elaborated fifth Miranda, I tinction between and sixth amendment Supreme As understand the prevent governmen- rights opinion to majority decided that to counsel abridgement tal of one’s fifth amendment A Syllabus and in Points 3 4.3 fifth privilege against compulsory self-incrimina- right absolutely to amendment counsel tion, a citizen be informed he has must that protected against once abridgement exer- silent; right a anything to remain he cised, high is not same but entitled to the says may against him; be used he protection sixth quality of as the amend- regardless has a to of his counsel to Syllabus Points ability lawyer. Right to coun- afford a majority opinion. 3 and 4 of important safeguard preventing sel is an There’s the rub. Prior to circumscription against privilege (whether or not the defendant has been compelled truth self-incrimination. This crime) not, however, charged a or she oral- with when he does convert the right. ly requests lawyer, counsel into a fifth It is a amendment amendment fifth recognize question exception making 2. We rare for the differentiation. The those fifth is not before cases when a defendant amendment to counsel initiates conversation case, is under the lawyer. us in this sixth amendment. matter as no as the issue raised with he after has asked for a Therefore, Bradshaw, will discuss I the for Oregon 462 U.S. meaningful, if if the distinction is (1983); L.Ed.2d v. Ari Edwards my justify dissent from other reason than to zona, 451 U.S. 101 S.Ct. 68 L.Ed.2d majority’s rationale. I will leave another Louk, W.Va., 285 S.E.2d 432 case, day, my displeasure appropriate and more (1982). permitting distinction to with our Court prevail. understanding rights guaranteed His about post-presentment confessions Pre- may us our federal constitution coincide have the effect in a defendant’s trial. See same with the United States Court. I cannot generally, counsel discussion of in ad say, writings versary present I find much confusion in their with in Unit contexts Wade, distinguish on this matter. I cannot between ed States rights comprehend policies nor behind defen- Yet, saying is that a interroga- what we are further right prevents counsel request for written a are ineffective. who has made a Miranda waivers dant tion. charged, may magistrate’s has been office still be lawyer a defendant After a Miranda is, magistrate day, sign and informed presented questioned next charge, his sixth waiver, regardless the nature of about make a statement attaches4 and right to counsel majority amendment amendment. The of the sixth protections its greater even to occur permit all of above would Syllabus Point That is what waiver. with accused has ever consulted before an states. automatically attorney! His attached less, seem sixth amendment Miranda if a conclude that One would reasoning leads to the absurd greater. The fifth inadequate protect waiver request for counsel that an oral conclusion during request made amendment weight gets greater during interrogation interrogation, certainly it would or before interrogation be- one before than written protect greater sixth inadequate to be gins! from waiver. amendment 5. Justice Marshall 4. State v. jected to attempts attorney, he had not grounds. Edwards" that he neither ly through sion. Edwards bars the use petitioner confessed. Before his confession to those of Edwards v. Arizona. tioner asked the court murder. visited him in form. obtained informed tated murder in the commission bery, his Having exercised his length convicted. because Johnson v. ever, moved to confer with his tioner had Marshall Court’s point authorities and attorney 70 12, 1977, "Under the "The facts of this case are expressed L.Ed.2d 231 right to requirement and before During the course of this affirmed. Petitioner was because He then initiated an decision was "so counsel, the had his was believed the court should have petitioner interrogation by At his use petitioner of his Miranda First, petitioner’s signature suppress petitioner was arrested Gravely, requested admissible and the Virginia, Id., knowingly dissent petition his desire circumstances, I petitioner been appointed. jail. distinguish at fn. 2. We it it charged lawyer, a arraignment knew nor cared whether (1981). whereas because points firearm made available. The State This from denial of certiorari agreed should not have been sub- 454 directly had not been The trial to confession, arguing attorney. had out that Edwards clear- U.S. petitioner’s clearly detective later testified Certiorari petitioner here the deal with That appoint local in the commission of the authorities until intelligently waived Edwards on two to consult with an remarkably similar quote his dissent at an on 920, robbery, Virginia interrogation ses- Virginia think afternoon, police court trial, petitioner opportunity point: next of armed rob- On December precisely this interrogation, The detective subsequently counsel. An conflict with timely by Virginia it was denied police only confession. a waiver clear that ruled the day, peti- premedi- Supreme Supreme detective waived simply filed. how- peti- 422, that voluntary. L.Ed.2d is more made the he would like an thereafter, when an accused has made ing (Footnotes accused informs an individual in senting). whether such a tangentially er, tions unaware ney, I whereas formed his mined was his only know about have been whether petitioner had even if the quest, However, an accused stated accused's distinguish quiring accused's sel would be invocation asked that an cisely why “Second, no judge at arraignment. police present 920, were to counsel would in Fare v. Michael whether request, that all 231, state of mind of the accused. I think petitioner only to request, request request 921-923, satisfied, police did not know about state safe to assume that a waiver is valid of his Fifth Amendment omitted.) In 197, 99 S.Ct. 2560 he wants cases based on police is under no the State notes that Edwards counsel; relevant. his hold that the confession should not at the 232-233 petitioner's they attorney substantially diminished. As we prior request determining police expressed petitioner arraignment, interrogation officials, request ask could the of his desire for made no effort arraignment. They the fact that the 102 attorney police. petitioner’s him value of the presumably, knowing, could an Johnson (1981) What is not have discovered that lawyer. S.Ct. obligation to informed had been made. request a desire for an attor attorney had appointed. C., apparently to waive whether was not for counsel the —and suggests easily In both 442 than when he has (Marshall, 422, 423-424, ^[2568] already cease.’ prior request important, v. intelligent, wording petitioner's waiver If we were to authority that U.S. to determine Virginia, is an these condi yet shortly have deter police were prosecutor (1979), disregard that since rights, cases, improper. per However, state exercised 707, 719, attorney, judge to coun did not rights.” J., lawyer of an se an rath only pre But 454 dis his ‘an re re in 70 at it 737 logically might deny It would seem that a repre- written a defendant “effective request provide for counsel should even sentation only stage counsel at the protection greater against subsequent ap legal when help aid and advice would because, by police else, proaches nothing if U.S., 326, S.Ct., him.” 360 at 79 at 1209 “swearing it obviates the inevitable con J., (Douglas, concurring). test” between defendant and about lawyer requested. whether a Cf., was ever reflects a constitutional principle [This] Easter, 338, State v. 172 W.Va. long ago as established as Powell Ala (1983). 294 bama, 287 US 77 L ed 53 S Ct The sixth amendment attaches 84 ALR where the Court noted adversary when judicial proceedings are during perhaps “... the most crit government. initiated United period ical of the proceedings ... Gouveia, 180, 187, States v. 467 U.S. 104 say, from the time arraign of their 2292, 2297, (1984); S.Ct. 81 L.Ed.2d 146 trial, beginning until their Kirby Illinois, 682, 683, 406 U.S. consultation, thoroughgoing when inves S.Ct. L.Ed.2d It tigation preparation vitally im [are] require request by does not defendant. portant, the defendants ... [are] Williams, 387, 404, Brewer v. 430 U.S. much entitled to such aid [of counsel] 1232, 1242, S.Ct. 51 L.Ed.2d 424 during period as at the trial itself.” Cochran, Carnley 369 U.S. Id. at at S.Ct. L.Ed. 164. S.Ct. 8 L.Ed.2d 70 In States, Massiah United supra 377 States,

Massiah v. United U.S., 204-205, at 1199, 12 5.Ct. L.Ed.2d 246 the Unit L.Ed.2d at 249-250. ed States Court found statements by government elicited agents from an in Gravely, dicted defendant in absence of counsel to S.E.2d 375 adversary we ruled that be Citing Spano inadmissible. proceedings New commence when a defendant is York, 315, 1202, 360 U.S. 79 S.Ct. i.e., L.Ed.2d presented a magistrate, to present at 1265, Justice Stewart stated: required when he is statutorily to be informed guarantees charges Constitution which about the nature of a de-

[A] against right fendant the aid him and of counsel at such a about his to trial counsel. surely W.Va.Code, could Assuming arguendo vouchsafe no less to an in- 62-1-6. dicted defendant under interrogation by point right that this is the where the at taches, completely sooner,6 in a extrajudicial not Syllabus and Point less, proceeding. said, Anything entirely it superfluous. empha- was majority The Hamilton v. trievably they ment for tional erally, Escobedo v. rogee surely could S Ct 1050. What 7 L ed 2d at S82 Ct said in amendment cludes showups. 1762, 12 L.Ed.2d at 983-984: 1758, White v. I believe “[Preindictment Alabama, are when an accused 12 L.Ed.2d 977 is the focus of an certainly right any police investigation as critical as was the Escobedo, Maryland, purposes lost, As the United States Alabama, to supra, right, if and the counsel, ‘affect the whole not formal happened should attach before Illinois, since 378 U.S. at interrogation] then interrogation, lineups 368 US US at 54 [82 US comparable preliminary hearing investigation. adversary and there represented by 378 U.S. at this Our state constitu 52, 10 L ‘may 486, arraignment when trial,’ 7 L awas 478, ed S.Ct. at 158] asserted, process ed Hamilton 2d present 84 S.Ct. as 2d coun- inter stage sixth irre gen and in There saying: "Let them have 517-518.” counsel, from nation.’ 2d hollow pend counsel at the formal trial would make the trial no ing). conviction is right to ment. tion, the authorities had secured a formal indict- It would exalt form over substance make the sel waives a "The rule trial.”' ‘One can thing counsel, nothing In re whether at now. interrogation; (Footnote omitted.) Ex 77 S Ct 510 sought by right already [if], Groban, parte They that counsel can do for them at under these imagine assured all Sullivan, strategic purposes.’ can’t the State 352 US ^[519] practical purposes, time and the more a cynical prosecutor [would be] escape circumstances, by pretrial (Black, most 107 F than here, however, ‘right to the noose. J., Supp an illustrious interroga- dissent exami a to use appeal 1 L Ibid. very de- ed adversary proceedings criminal indicted or sixth amendment defendant’s sized that begun that this against have otherwise and waiver protected is better subsequently are right and hence violated when admissions fifth amendment than his in the absence stringent” barriers to waiv- elicited from the accused erected “more clearly case. required Wyer’s written waiver and covers a counsel.” That er. It must have been advised this case on the sixth amend- that defendant If we decided against charge ment, prevail. him and Wyer of the the nature should just As under arrest. we must know is process and to coun Our state due said, statutory already those events are clauses, III, 10 and sel W.Va. Const. art. §§ con- to the attachment our prerequisites they do not control this case. While right. stitutional counsel waiver, they per create se rule knowing voluntary, Waivers must be correct, simple I believe is assure what Zerhst, intelligent. Johnson right to coun that a defendant’s solution: 82 L.Ed. his unless counsel is sel cannot be waived Edwards v. A.L.R. has been afforded notified and defendant prove has the burden to supra. state lawyer’s would elimi advice. This rule by preponderance of the evidence. waiver consequent nate much confusion Rissler, S.E.2d right to It litigation on matters of does If the Sixth Upon simple easy apply.7 a de request for counsel require not even magistrate’s for request at the fendant’s attach, uttered for the have been attorney represent him—whether justice it de is fundamental request was oral or written —his legal advice be has that fendant matter of record.8 to counsel becomes a by pretrial case is sealed fore the State’s on, police may ques From that moment meet its interrogation, how can notifying first tion him or her without A written waiver burden to show waiver? It whether the lawyer. does matter written waiver not suffice because a should present doing questioning officer suffice to waive a fifth does not even magistrate duty or not. It is the court request in an Edwards amendment any prosecutor to know wheth officer request An for counsel situation. Edwards and, presented been if er a defendant has in stops questioning all and further which so, counsel to contact defendant’s before greater terrogation, should not be accorded interrogating him. of a sixth amend weight that an invocation police notify defense officials When writing right to before counsel question to a defen- counsel about desire magistrate, police questioning. Ed before dant, he or counsel informs them that and on the lesser fifth was decided wards speak to the defendant be- she needs with sixth counsel because the amendment continue, police questioning may then fore yet not attached un had amendment after approach defendant until may not Id., 7. In that foot Arizona law. fn. der meeting competent No has occurred. that that Massiah held note the court stated attorneys interrogation of permit would coun to “that Sixth hav- their in their absence without an accused has been clients sel arises whenever 2392, 2400, pre- Battie v. applicable all 29 L.Ed.2d 353 I make it to 7. would Cir.1981); interrogations, Estelle, (5th issue of post-presentment but the United F.2d 699 interrogation pre-presentment Brown, (2d is not before at Cir. 699 F.2d States v. Therefore, today. applicability I limit its court 1983). presented, has been all Once defendant interrogations. post-presentment to duty to his to have a know officers heartily disagree I counsel has attached. Supreme that Court has made it clear 8. The 24, supra. majority's conclusion in footnote attached, a viola to counsel has once the defen the substantive difference to the What is dependent upon rights is not tion of defendant’s or know he if the knew did not dant officer investigating officer. The the bona fides requested thus elicited is counsel? A confession accused, rights of not must be on the focus damaging rep equally effective to defendant’s culpability police. Cf., Unit the innocence or 97, 109, Agurs, resentation ed States v. physical the matter their ing capaci discussed and informed ate clients’ mental or all If options they rights. them about have. Lawyers’ presence ties waive right, forego defendant then chooses to his participation process the confession attorney can corroborate waiver. would assure that defendants’ were cases, upon being most counsel will insist process Right honored and the fair. present. disputes disappear. counsel would Dis putes post-present over voluntariness of prevent This rule would not confessions. ment statements negligible would become only It guarantees that mil confessions prob would have solved by violating be taken defendant’s they lems before Lawyers’ pres occurred. helps they assure will post-presentment ence at voluntary prerequisites be —standard purposes would serve same that admissibility. ques their Inadmissible and Supreme recognized United States Court tionably complicate admissible confessions post-indictment useful line-ups, at prosecutions. expedite rather than Wade, 218, 236, United States brilliantly United States 1926, 1937, argu blasted “lack of confessions” (1967): Illinois, supra ment in Escobedo v. appears grave Since it there is that U.S., S.Ct., 488-490, 1763-1765, at at potential prejudice, not, intentional or 984-986, L.Ed.2d it where concluded: confession], pretrial line-up [and recognized This Court also has may capable not be of reconstruc- “history amply shows that confessions trial, tion presence and since of coun- have often been extorted to save law sel prejudice itself can often avert enforcement officials the and ef- trouble meaningful assure a confrontation at tri- independent obtaining fort of valid and al, there can be little doubt Haynes Washington, evidence Wade post-indictment line-up awas 503, 519, L 373 US 10 ed 2d stage prosecution critical at which S Ct [1346]. he was “as much entitled to such ... aid companion have We also learned the (Citations as at the trial itself.”9 omit- history system lesson of no of crimi- ted.) can, should, justice nal survive if it repeat I depend comes for its effec- need continued Justice Miller’s exten- jurisdictions tiveness the citizens’ abdication sive research about that have adopted through per unawareness of their constitu- se rules in these circum- rights. preserv- jurisdictions system tional have No worth stances: other made that ing should have to that if an ac- wise decision based on their constitutions fear York, permitted rule-making powers. If cused is to consult with a law- New of, yer, Oregon will aware become and exer- and California can function with cise, rules, strong- If rights. certainly these the exercise of can. We similar we ly constitutional will thwart the ef- recommend reader to cases cited system majority’s opinion. Even if fectiveness law enforce- no other ment, something very step, then there is state had this I would not hes- taken system. (Footnotes wrong adopt with that itate to this no-waiver-without-coun- omitted.) judicial economy sel rule. re- Justice quire it. Practically, defendants who want con- so, I guilt recognize

fess to relieve their would still do that a can waive attorneys present. California, their Their law- Faretta v. yers clarify potential could intervene to S.Ct. 45 L.Ed.2d 562 U.S. problems alleged promises rule, change or threats I do not but government, only made and could evalu- can would hold that defendant waive police prosecutors questioning, they manage post-indictment 9. If can function with can requiring post-presentment the Wade and Massiah rules defense with a similar rule for confes- post-indictment lineup counsel notice of a sions. to counsel and notice after have made similar lawyer’s advice. We Jackson, 171 W.Va.

rules State prob (1982) (psychological

298 S.E.2d

lems), Taylor, ex rel. J.M. (1981) (juve 276 S.E.2d recognize

niles), that all and it time to constitu without counsel are

defendants with a disadvantaged when faced

tionally armory police, prose

government of armed interrogators. Cf., professional

cutors Ash, 413 308-

United States 2568, 2573-2574, 93 point that a syllabus

I make a would request for counsel bars

general written prosecutorial ques-

any further to his

tioning requester has talked until

lawyer.

Timothy ALLEN J. ALLEN.

Robin Jeanette Green

No. 16025. Appeals of

Supreme Court of Virginia.

West 26, 1984.

June

Dissenting Opinion July

Case Details

Case Name: State v. Wyer

Court Name: West Virginia Supreme Court

Date Published: Jul 9, 1984

Citation: 320 S.E.2d 92

Docket Number: 15839

Court Abbreviation: W. Va.