Defendant was convicted before the Circuit Court of Monongalia County, Marvin R. Kiger, Judge, of Murder, and appeal was granted.
The opinion of the court was delivered by: Miller
1. Criminal Law -- Request for Counsel -- Communication with Suspect
"Once a suspect in custody has expressed his clear, unequivocal desire to be represented by counsel, the police must deal with him as if he is thus represented. Thereafter, it is improper for the police to initiate any communication with the suspect other than through his legal representative, even for the limited purpose of seeking to persuade him to reconsider his decision on the presence of counsel." Syllabus Point 1, State v. McNeal, 162 W.Va. 550, 251 S.E.2d 484 (1978).
2. Criminal Law -- Waiver of Counsel
The fact that the defendant has counsel on an unrelated charge does not preclude police officials from obtaining a waiver of counsel for a present interrogation without notice to counsel appointed on the unrelated charge.
3. Criminal Law -- Clarifying Defendant's Desire for Counsel
Where the defendant is equivocal in whether he desires to exercise his constitutional right to counsel, further questions may be asked in order to clarify his position.
4. Trial Court -- Voluntariness of Confession
"It is the mandatory duty of a trial court, whether requested or not, to hear the evidence and determine in the first instance, out of the presence of the jury, the voluntariness of an oral or written confession by an accused person prior to admitting the same into evidence, and the failure to observe this procedure constitutes reversible error." Syllabus Point 1, State v. Fortner, 150 W.Va. 571, 148 S.E.2d 669 (1966).
5. Criminal Law -- Voluntariness Hearing
Where there is a failure to hold an in camera hearing on the defendant's inculpatory statements, we recognize under Jackson v. Denno, 378 U.S. 368, 12 L.Ed.2d 908, 84 S.Ct. 1774 (1964), that the case will not be reversed for a new trial on this basis alone. Instead, it will be remanded for a voluntariness hearing before the trial court. If the trial court finds the statements are voluntary the verdict will stand. If, on the other hand, he finds the statements to be involuntary, the verdict will be set aside unless the trial court determines that this constitutional error is harmless beyond a reasonable doubt.
6. Criminal Law -- Gruesome Photographs
"Gruesome photographs are not per se inadmissible, but they must have something more than probative value, because by the preliminary finding that they are gruesome, they are presumed to have a prejudicial and inflammatory effect on a jury against a defendant. The State must show that they are of essential evidentiary value to its case." Syllabus Point 1, State v. Rowe, 163 W.Va. 593, 259 S.E.2d 26 (1979).
7. Criminal Law -- Scientific Examinations
In order for a scientific test to be initially admissible, there must be general acceptance of the scientific principle which underlies the test.
8. Criminal Law -- Evidence -- Judicial Notice
There are certain scientific tests that have been widely used over a long period of time, such that their general acceptance in the scientific community can be judicially noticed.
9. Criminal Law -- Materiality -- Competency
The necessary foundation before the admission of the results of any test are: (1) That the testing device or equipment was in proper working order; (2) that the person giving and interpreting the test was properly qualified; (3) that the test was properly conducted; and (4) that there was compliance with any statutory requirements.
In November, 1977, we granted this appeal to the defendant, Eugene Clawson, on two first degree murder convictions rendered in the Circuit Court of Monongalia County. Full argument was heard on March 11, 1980, with the defendant asserting multiple errors. The first relates to the admission of one of his confessions as to which he claims he did not initially waive his right to have counsel present. Collateral to this is the further claim that certain statements made at the time he was taken to an area where part of the crime was committed should not have been admitted without first determining in an in camera hearing if they were voluntary.
Another error assigned is that certain photographs of the bodies of the two victims of the crime should not have been admitted as they were extremely gruesome, highly imflammatory and lacking in probative value. He also contends the trial court erred in refusing his motion for a change of venue. The final ground is that expert testimony relating to hair samples was inadmissible.
The crime had its origin on the evening of January 18, 1970, when two female students at West Virginia University were seen accepting a ride from a passing automobile on a street in Morgantown where they had been hitchiking. Their failure to return to their dormitory rooms was reported to local authorities. Efforts to trace them were not successful until certain items of personal property belonging to the victims were discovered along the roadside of Route 119 between Morgantown and Grafton. This resulted in an extensive search of a nearby wooded area located some distance from Goshen Road which intersects with Route 119. The bodies of the students were discovered in a shallow grave on April 16, 1970. Both bodies were decapitated and their heads have never been located.
The homicides remained unsolved until January of 1976 when law enforcement officials in Camden, New Jersey, contacted West Virginia police officials that the defendant, who was being held on other charges, was prepared to confess to the crime. A representative of the West Virginia State Police and a Morgantown police detective went to New Jersey where in cooperation with the New Jersey authorities a detailed confession was obtained from the defendant by way of questions and answers taken down by a court reporter.
On January 16, 1976, three days after this confession, the defendant was brought to the Morgantown area where an attempt was made to have him locate the area in which he claimed he had disposed of the victims' heads. The defendant lead investigators to a hillside near Point Marion, Pennsylvania, where an opening was discovered leading into some abandoned mine passageways. These were explored but neither the heads nor the gun, that the defendant claimed he threw in the opening along with the heads, could be found. The authorities did, however, find some strands of human hairs in several animal nests located in one of the underground passages.
On February 17, 1976, West Virginia officials again travelled to New Jersey to further interrogate the defendant regarding aspects of his first confession that conflicted with the independent information that the officers had obtained in their effort to corroborate that confession. This second confession was taken in the presence of his counsel. *fn1
The defendant furnished further incriminating statements in a letter written February 21, 1976, which he mailed while in jail in New Jersey to one of the West Virginia State police investigators in which he reasserted his responsibility for the offense.
At trial the defendant's counsel sought to have defendant's first confession of January 13, 1976, held inadmissible on the ground that the defendant had not clearly and unequivocally waived his right to have counsel present at the time the confession was taken.
During the in camera hearing on the suppression motion, the State offered testimony of three witnesses who were present in New Jersey at the time the defendant's confession was taken. Two of the witnesses were police officials, Detective McCabe from the Morgantown Police and Trooper Shade of the West Virginia State Police. The third was Allen Lesky, a certified court reporter from New Jersey.
Both of the police officials testified that prior to taking the defendant's formal statement before the court reporter, they had talked to him for about an hour concerning the details of the crime. Before this questioning took place, both stated the defendant had been given his Miranda rights. *fn2 No written waiver of rights was obtained. The officers stated that the defendant agreed to waive his right to remain silent and his right to have counsel. The defendant at the in camera hearing did not challenge these facts.
The controversy arises over the next step in the interrogation when the defendant's formal statement was obtained before the court reporter. At the beginning of this proceeding, the defendant was again given his Miranda rights. It was during the course of this dialogue that the defense attorneys contend that defendant evidenced a desire for counsel and was talked out of the request. *fn3 In consequence the defendant's attorneys claim that no valid waiver of his right to counsel was obtained and the confession should not be admitted. The defense counsel also points to the fact that the interrogation started around 10 p.m. in the evening and the formal statement did not begin until approximately 11:40 p.m. Counsel suggests that the lateness of the hour was deliberately planned by the officers in order to frustrate or coerce the defendant into waiving his right to counsel.
The State argues, however, that the defendant was fully informed of his right to remain silent and the right to counsel at the initial oral interrogation. The State points to the fact that at the in camera hearing the defendant did not offer any contrary evidence.
In Massiah v. United States, 377 U.S. 201, 12 L.Ed.2d 246, 84 S.Ct. 1199 (1964), and Escobedo v. Illinois, 378 U.S. 478, 12 L.Ed.2d 977, 84 S.Ct. 1758 (1964), the Supreme Court established a defendant's Sixth Amendment right to counsel in a criminal case. Massiah dealt with the Government's interrogation of the defendant after he had been indicted and obtained counsel and ruled his inculpatory statements to be inadmissible. Escobedo held that the right to counsel applied at the time of a custodial criminal interrogation.
In Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602 (1966), the Court elaborated on the constitutional right to have the assistance of counsel and to be informed of this right, and held that custodial questioning could not begin unless the defendant waived his right to counsel. *fn4 Miranda made the following two statements. The first dealt with the accused's assertions of his right to counsel and the second related to proof of the waiver of the right to counsel:
"If the individual states that he wants an attorney, the interrogation must cease until an attorney is present." 384 U.S. at 474, 16 L. Ed.2d at 723, 86 S.Ct. at 1628.
"If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-in-crimination and his right to retained or appointed counsel. Escobedo v. Illinois, 378 U.S. 478, 490, note 14, 12 L.Ed.2d 977, 986, 84 S.Ct. 1758, 1765 note 14. This Court has always set high standards of proof for the waiver of constitutional rights, Johnson v. Zerbst, 304 U.S. 458, 82 L.Ed. 1461, 58 S.Ct. 1019, 146 A.L.R. 357 (1938), and we reassert these standards as applied to in-custody interrogation." 384 U.S. at 475, 16 L.Ed.2d at 724, 86 S.Ct. at 1628.
In Syllabus Point 1 of State v. Bradley, 163 W.Va. 148, 255 S.E.2d 356 (1979), we established, under our State constitution, this rule in regard to the effect of a request for counsel:
"When a criminal defendant requests counsel, it is the duty of those in whose custody he is, to secure counsel for the accused within a reasonable time. In the interim, no interrogation shall be conducted, under any guise or by any artifice. W.Va. Const. Art. 3, § 5 and W.Va. Const. Art. 3, § 14."
Much the same point was made in the first syllabus of State v. McNeal, 162 W.Va. 550, 251 S.E.2d 484 (1978):
"Once a suspect in custody has expressed his clear, unequivocal desire to be represented by counsel, the police must deal with him as if he is thus represented. Thereafter, it is improper for the police to initiate any communication with the suspect other than through his legal representative, even for the limited purpose of seeking to persuade him to reconsider his decision on the presence of counsel."
What is at issue in this case is whether there has been an appropriate waiver of the right to counsel by the defendant. The United States Supreme Court has recognized in Brewer v. Williams, 430 U.S. 387, 51 L.Ed.2d 424, 97 S.Ct. 1232 (1977), that even after counsel has been appointed, the defendant may make a knowing and intelligent waiver of his right to have counsel present when he makes an incriminating statement.
"The Court of Appeals did not hold, nor do we, that under the circumstances of this case Williams could not, without notice to counsel, have waived his rights under the Sixth and Fourteenth Amendments. It only held, as do we, that he did not." 430 U.S. at 405-06, 51 L.Ed.2d at 441, 97 S.Ct. at 1243 (Emphasis in original).
The Supreme Court's approach in Brewer that there is no absolute rule against waiving the right to counsel, once counsel is sought or obtained, parallels its Conclusion on the other important right settled in Miranda -- that against self-incrimination. In Michigan v. Mosley, 423 U.S. 96, 46 L.Ed.2d 313, 96 S.Ct. 321 (1975), the court considered whether the Miranda stricture -- "[i]f the individual indicates in any manner, at anytime prior to or during questioning, that he wishes to remain silent, the interrogation must cease," 384 U.S. at 473-74, 16 L.Ed.2d at 723, 86 S.Ct. at 1627 -- should be made absolute in the sense that once the right against self-incrimination is invoked, it may not be waived later. As noted in Mosley, there are several possible literal interpretations to the quoted Miranda language. One is that questioning may be resumed after a momentary hiatus. Another is that questioning may never be resumed. The Supreme Court's Conclusion was:
"It is evident that any of these possible literal interpretations would lead to absurd and unintended results. To permit the continuation of custodial interrogation after a momentary cessation would clearly frustrate the purposes of Miranda by allowing repeated rounds of questioning to undermine the will of the person being questioned. At the other extreme, a blanket prohibition against the taking of voluntary statements or a permanent immunity from further interrogation, regardless of the circumstances, would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity, and deprive suspects of an opportunity to make informed and intelligent assessments of their interests. Clearly, therefore, neither this passage nor any other passage in the Miranda opinion can sensibly be read to create a per se proscription of indefinite duration upon any further questioning by any police officer on any subject, once the person in custody has indicated a desire to remain silent." 423 U.S. at 102-03, 46 L.Ed.2d at 320-21, 96 S.Ct. at 326.
Brewer addressed the waiver of counsel standard in the following terms:
"t was incumbent upon the State to prove 'an intentional relinquishment or abandonment of a known right or privilege.' Johnson v. Zerbst, 304 U.S. at 464, 82 L.Ed. 1461, 58 S.Ct. 1019, 146 A.L.R 357. That standard has been reiterated in many cases. We have said that the right to counsel does not depend upon a request by the defendant, Carnley v. Cochran, 369 U.S. 506, 513, 8 L.Ed.2d 70, 82 S.Ct. 884; cf. Miranda v. Arizona, 384 U.S. at 471, 16 L.Ed.2d 694, 86 S.Ct. 1602, 10 Ohio Misc. 9, 36 Ohio Ops. 2d 237, 10 A.L.R.3d 974, and that courts indulge in every reasonable presumption against waiver, e.g., Brookhart v. Janis, supra, at 4, 16 L.Ed.2d 314, 86 S.Ct. 1245, 7 Ohio Misc. 77, 36 Ohio Ops. 2d 141; Glasser v. United States, 315 U.S. 60, 70, 86 L.Ed. 680, 62 S.Ct. 457." 430 U.S. at 404, 51 L.Ed.2d at 439-40, 97 S.Ct. at 1242.
In its more recent holding in North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979), the Court concluded that a specific waiver of Miranda rights was not necessary, but that a waiver could be implied from all of the circumstances surrounding the administration of the ...