Filed: October 16, 1991
Joseph A. Colosi, Esq.
Welch, West Virginia
Attorney for the Appellant
Mario J. Palumbo, Attorney General
James P. Carbone, Assistant Attorney General
Charleston, West Virginia
Attorneys for the Appellee
JUSTICE NEELY delivered the Opinion of the Court.
1. "In the determination of a claim that an accused was
prejudiced by ineffective assistance of counsel violative of
Article III, Section 14 of the West Virginia Constitution and the
Sixth Amendment to the United States Constitution, courts should
measure and compare the questioned counsel's performance by whether
he exhibited the normal and customary degree of skill possessed by
attorneys who are reasonably knowledgeable of criminal law, except
that proved counsel error which does not affect the outcome of the
case, will be regarded as harmless error." Syllabus Point 19,
State v. Thomas, 157 W. Va. 640, 203 S.E.2d 445 (1974).
2. Confessions may be involuntary in law or involuntary
in fact. Confessions that are involuntary in law are not
admissible as part of the State's case-in-chief, but may be used to
impeach the defendants's testimony.
3. A confession that is involuntary in fact is
inherently unreliable. A confession under torture is worthless for
4. "A confession that has been found to be involuntary
in the sense that it was not the product of the freewill of the
defendant cannot be used by the State for any purpose at trial."
Syllabus Point 2, State v. Goff, 169 W. Va. 778, 289 S.E.2d 473
5. Consent to a search or seizure, not given as a product of the defendant's free will, is not a valid exception to the prohibition in U. S. Const. amend. IV against unreasonable searches and seizures.
A jury convicted James William Smith of second-degree
murder of Paul Thompson, and the judge sentenced him to five to
eighteen years in prison. Mr. Smith appealed to this Court
alleging that involuntary confessions were used at trial and that
the assistance of his counsel was ineffective.See footnote 1 We were unable to
resolve a number of issues raised by Mr. Smith in his appeal
because of an insufficient factual record. Consequently, we
remanded the case for an evidentiary hearing. On remand, the
Circuit Court of McDowell County determined that the State proved
by a preponderance of the evidence that the appellant's statements
were voluntary and that the appellant did not show that the
assistance of his counsel was ineffective. Mr. Smith now appeals
from these findings of the circuit court. We reverse and remand
for a new trial consistent with this opinion.
On 16 February 1986 at approximately 10:30 p.m., Paul Thompson was killed when he was struck by a train, after he had been left unconscious and bleeding on the railroad tracks near Hensley, West Virginia. During his preliminary investigation, Trooper Marvin Smoot discovered that Mr. Thompson had spent part of
the evening drinking with Mr. Smith. At approximately midnight,
Trooper Smoot went to Mr. Smith's home to ask him questions about
Mr. Thompson's death. While questioning Mr. Smith, Trooper Smoot
noticed what he thought were blood stains on Mr. Smith's pants and
boots, and he asked Mr. Smith to hand over the pants. Mr. Smith
refused. After talking with Trooper Smoot, Mr. Smith went into his
home, changed his clothes, and came back out with the intention of
visiting his in-laws who lived across the public highway. Trooper
Smoot waited, and after Mr. Smith walked across the public road,
arrested him for public intoxication. Trooper Smoot then took Mr.
Smith to the police barracks where Mr. Smith was "processed" for
approximately seven hours before appearing in front of a
After Mr. Smith appeared before a magistrate, he was
taken to the Welch Emergency Hospital. The hospital records show
that Mr. Smith had a raised bruise on the lower part of his chest
and a ruptured left eardrum. The records also indicate that Mr.
Smith complained of soreness and explained to the doctor that he
had been hit and kicked by the police officers. After treating Mr.
Smith, the hospital physician, Dr. Erme, referred Mr. Smith to Dr.
Dr. Miller, a Board Certified Otolaryngologist, testified about Mr. Smith's ear injury. In his deposition, Dr. Miller stated that Mr. Smith's left ear had been "freshly" ruptured at the time
of his visit, 21 February 1986. Dr. Miller also testified that the
rupture was consistent with Mr. Smith's story--that one of the
officers had "hit him with an open fist." Finally, Dr. Miller said
that the injury was not consistent with the State's explanation
that the rupture was caused by an ear infection.
Mr. Smith's parents testified that they saw the appellant
shortly after he was released by the police and that he was
bleeding from the mouth, that he had dried blood in his nose, and
that his hair came out when it was combed. The appellant testified
that he was beaten by Trooper Smoot, Trooper Steve Cox, and a
civilian friend of Trooper Smoot, Doug West. The appellant claims
that he asked to see a lawyer numerous times but that the police
officers refused to allow him to call one. The officers denied
using force against appellant.
During appellant's "processing," he gave two statements
to the police officers. In one of those statements, he admitted to
being an accomplice to Mr. Thompson's murder. He claims, however,
that he gave these statements only to make the police officers stop
beating him. After Mr. Smith was released, Trooper Smoot returned
with him to his trailer and accompanied him inside. Mr. Smith then
gave his blood-stained trousers to Trooper Smoot.See footnote 2
Ordinarily we will not inquire into tactical trial
decisions by lawyers in criminal cases because lawyers face
difficult choices during trials. We will not find ineffective
assistance because 20/20 hindsight shows a lawyer's choice to have
been the wrong one. This case, however, involves no such choice.
Mr. Smith's trial lawyer did not move to suppress the blood-stained
pants at trial. The State suggests that this was an appropriate
tactical decision. Huh? The State claims that Mr. Smith's trial
lawyer wanted to have the blood-stained pants admitted so that he
could use them as part of an elaborate explanation of the evening's
events, one part of which was the victim's being struck by his
wife, causing a nosebleed that dripped on appellant's pants.
In Syllabus Point 19, State v. Thomas, 157 W. Va. 640, 203 S.E.2d 445 (1974), we stated:
In the determination of a claim that an accused
was prejudiced by ineffective assistance of counsel
violative of Article III, Section 14 of the West
Virginia Constitution and the Sixth Amendment to
the United States Constitution, courts should
measure and compare the questioned counsel's
performance by whether he exhibited the normal and
customary degree of skill possessed by attorneys
who are reasonably knowledgeable of criminal law,
except that proved counsel error which does not
affect the outcome of the case, will be regarded as
We find that a lawyer with the normal and customary degree of skill
would have moved to suppress and that in this case the lawyer's
failure to do so was not harmless.See footnote 3
The trial court also found that Mr. Smith's confession
was voluntary, and that even if it was coerced, its use at trial
was harmless error. Courts do not allow the use of coerced
confessions in trials. We have not developed such a rule to
protect those guilty of crimes but to protect those innocent of
crimes who may be wrongly suspected. If coerced strongly enough,
even innocent people will confess to crimes.
Much of the evidence offered in the circuit court was
provided by interested parties. The police officers had strong
incentives not to admit beating the defendant, and the defendant
had an even stronger incentive to claim that the police officers
did beat him. The objective evidence, however, strongly supports
Mr. Smith's claim. Mr. Smith was uninjured when taken into custody
at midnight, but the next morning he was suffering from cuts,
bruises, and a perforated eardrum.
The State claims that whatever the police officers may
have done to coerce Mr. Smith into making his statements does not
matter because these statements were used only minimally at trial.
Although coerced statements may not be used by the prosecutor in
his case-in-chief, this Court has allowed the use of "involuntary"
statements to impeach a defendant's false or inconsistent
testimony. State v. Goodman, ___W. Va.___, 290 S.E.2d 260 (1981).
However, Goodman involved a situation clearly different from the
one we have before us. The statements in Goodman were
"involuntary" because they were made after the defendant had
requested a lawyer, not because the police had physically coerced
the defendant into making the statements.
As we noted in State v. Randle, ___W. Va.___, 366 S.E.2d
750 (1988), confessions may be involuntary in law or involuntary in
fact. Confessions that are involuntary in law are not admissible
as part of the State's case-in-chief, but may be used to impeach
the defendant's testimony. We allow such statements to be used for
impeachment because the fact that a statement was obtained in
violation of a technical legal requirement does not make it an
unreliable representation of the facts. A confession that is
involuntary in fact, on the other hand, is inherently unreliable.
A confession under torture is worthless for all purposes.
As we stated in Syllabus Point 2 of State v. Goff, 169 W.
Va. 778, 289 S.E.2d 473 (1982):
A confession that has been found to be involuntary in the sense that it was not the product of the freewill of the defendant cannot be used by the State for any purpose at trial.
We find the statements that Mr. Smith made after he was
taken into custody were not the product of his free will and
therefore should not have been used at trial.See footnote 4
Similarly, the consent exception to the 4th Amendment of
the U. S. Constitution implies a voluntary consent. State v.
Williams, ___W. Va.___, 249 S.E.2d 758 (1978). Consent to a search
or seizure, not given as a product of the defendant's free will, is
not a valid exception to the prohibition in U. S. Const. amend. IV
against unreasonable searches and seizures. After seven hours in
police custody, Mr. Smith did not want to be "processed" further,
and, therefore, gave the pants to Trooper Smoot.See footnote 5 In no true sense
of the word was Mr. Smith's consent voluntary.
For the foregoing reasons the judgment of the Circuit
Court of McDowell County is reversed and this case is remanded for
a new trial consistent with this opinion.
Reversed and Remanded.
Footnote: 1 The evidence as it was presented at the original trial and this Court's orders for remand are laid out in State v. Smith, ___W. Va.___, 384 S.E.2d 145 (1989) (Smith I).
Footnote: 2 Trooper Smoot testified that he did not think he needed to get a warrant for the pants because of Mr. Smith's "voluntariness." While Trooper Smoot does know the proper buzz words to use, we question how "voluntary" Mr. Smith's release of the pants could have been after seven hours of "processing."
Footnote: 3 We will address the State's contention that the pants were appropriately admitted into evidence infra p. 7.
Footnote: 4Because of the inherently coerced nature of Mr. Smith's statement, we have not addressed the violation of the prompt presentment statute. However, it is apparent that if Mr. Smith had been promptly presented, as is required by W. Va. Code
§ 62-1-5 , many problems would have been avoided.
Footnote: 5 The State has also conceded that the seizure clearly cannot be justified as one under the "plain view" exception to the 4th Amendment. Appellee's brief at 36.