Defendant below, Jason Devon Williams (hereinafter Appellant), appeals from the judgment order of the Circuit Court of Mercer County, entered on August 7, 2009, involving the charge of third-degree sexual assault. The sole issue on appeal stems from an order dated August 4, 2009, wherein the trial court denied Appellant's motion to suppress his confession to police. (See footnote 1) Appellant maintains that his confession to the police was improperly obtained because his counsel was not present during the questioning which occurred at a time after his constitutional right to counsel had attached. Having duly considered the briefs and arguments of the parties in relation to the record and pertinent case law, we find no reversible error and affirm the decision of the lower court.
On August 6, 2009, Appellant entered into a plea agreement in which he agreed to plead guilty to the indictment, conditioned on the right to pursue an appeal of the denial of the suppression motion, and to withdraw the guilty plea should the lower court's ruling be reversed. The circuit court accepted the plea and sentenced Appellant on August 7, 2007, to one to five years in the penitentiary. Appellant was also granted a stay of execution and post-conviction bond with home confinement pending appeal.
Appellant filed his petition for appeal with this Court on December 7, 2009; the appeal was granted by order dated February 11, 2010.
If police initiate interrogation after a defendant's assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid because it was taken in violation of the defendant's Sixth Amendment right to counsel. To the extent that State v. Wyer, 173 W.Va. 720, 320 S.E.2d 92 (1984), is in conflict with this principle, it is overruled.
Appellant also asks the Court to revisit Barrow and verify its vitality in light of the 2009 United States Supreme Court case of Montejo v. Louisiana, U.S. , 129 S.Ct. 2079. In Montejo, the Supreme Court overruled its prior holding in Michigan v. Jackson, 475 U.S. 625 (1986), establishing a presumption that a police-initiated interrogation occurring after appointment of counsel renders a confession derived from such questioning invalid and inadmissible. (See footnote 5)
The State agrees that Barrow needs revisited because of the Montejo decision. However, the State goes on to say that the Sixth Amendment right to counsel on which Barrow, Montejo, Michigan and Wyer turned is not at issue here. The State maintains that the trial court was correct in concluding that the right to counsel had not attached at the time the questioning by Cpl. Long took place. While Appellant had been appointed counsel at the arraignment on the probation violation, his Sixth Amendment right to counsel attached only as to the matter therein charged _ being in the company of persons under the age of 18. As such, that charge was different from the subject of the confession _ third-degree sexual assault.
At this juncture we note that the issue in this case warrants a brief discussion of a criminal defendant's right to counsel under the Fifth and Sixth Amendments to the U.S. Constitution. As summarized in State v. Hickman, 175 W. Va. 709, 716, 338 S.E.2d 188, 195 (1985), the Fifth Amendment right to counsel was created in Miranda [v. Arizona, 384 U.S. 436 (1966)], as an adjunct to the defendant's right against self-incrimination. This Fifth Amendment right to counsel is triggered when a defendant is taken into custody by law enforcement officials who desire to interrogate him. The Sixth Amendment [explicit] right to counsel arises . . . when adversary judicial proceedings have been commenced against a defendant. We elaborated on the meaning of adversary judicial proceedings in syllabus point one of State v. Bowyer, 181 W.Va. 26, 380 S.E.2d 193 (1989), as follows: The Sixth Amendment right to counsel attaches at the time judicial proceedings have been initiated against a defendant whether by way of formal charges, preliminary hearing, indictment, information, or arraignment.
Thus, the critical determination in the present case is whether Appellant's Sixth Amendment right to counsel was abridged because the pending charges for which appointment of counsel had been made were the same as the crime which the police were investigating. The conclusion of the trial court with regard to this issue is found in the following provision of the August 4, 2009, order denying the motion to suppress:
(11) Accordingly, the Court FINDS and CONCLUDES that the State has proven by a preponderance of the evidence that the Defendant's statements were provided after he voluntarily, knowingly, and intelligently signed a waiver of his right to counsel regarding the criminal charge of Sexual Assault-Third Degree, which is a crime separate and distinct from probation violation matter for which Mr. Mancini was appointed for legal representation thereon.
Antecedent to this conclusion in the August 4 order is the lower court's finding that no formal charges were pending regarding the third-degree sexual assault offense at the time counsel was appointed in the probation revocation proceeding.
This Court had occasion to discuss the reach of the constitutional right to counsel in the Sixth Amendment context in State v. Wilder, 177 W.Va. 435, 352 S.E.2d 723 (1986). It is clear from our discussion in Wilder that the Sixth Amendment right to counsel arises as to the specific offense which is charged. The defendant in Wilder was charged in an indictment with receiving stolen goods. During the trial regarding the receipt of stolen goods, a defense witness told the prosecution that the defendant had paid him to lie to defense counsel about his receiving the stolen goods in question. The witness tape recorded a conversation he had with the defendant regarding the witness's testimony about the stolen goods, which taping occurred outside of the courtroom but during the course of the trial. After reviewing the recording in camera, the trial judge allowed the tape to be admitted over defense counsel's objection. On appeal, the defendant claimed that the introduction of the tape violated his Sixth Amendment right to counsel because the statements were recorded without his counsel being present after his right to counsel had attached. In Wilder, this Court found that it was appropriate for the tape to be introduced for impeachment purposes during the trial on the stolen goods charge. This conclusion was reached after finding that there was no basis to suppress the tape because no formal subornation charges had yet been initiated and the defendant's Sixth Amendment right to counsel had not yet attached with respect to that charge. Id. at 438, 352 S.E.2d at 726. As further noted in Wilder, because the recorded statements were made before subornation charges were levied, [t]he statements made on the tape would [also] . . . have been admissible in a subsequent trial on a charge of subornation even though they were recorded while Mr. Wilder was indicted under another charge. Id. Accord Maine v. Moulton, 474 U.S. 159, 180 (1985) (Pursuant to the Sixth Amendment right to counsel, incriminating statements [obtained by police] pertaining to pending charges are inadmissible at the trial of those charges. . . ; [i]ncriminating statements pertaining to other crimes, as to which the Sixth Amendment right has not yet attached, are, of course, admissible at a trial of those offenses.)
In the present case, the offense of third-degree sexual assault was under investigation when the custodial interrogation occurred. Since judicial proceedings had not yet been initiated against Appellant regarding the sexual assault charge, the right to counsel under the Sixth Amendment had not yet attached. (See footnote 6) Syl. Pt. 1, State v. Bowyer, 181 W. Va. at 27, 380 S.E.2d at 194. To the extent that Appellant's Fifth Amendment right to counsel was triggered during the police interrogation, he had been apprised of his right to counsel and signed a waiver of his rights prior to the questioning. Thus we conclude that the lower court committed no reversible error regarding attachment of the right to counsel in this case, and we affirm the trial court's denial of the motion to suppress the confession.