J. W. Feuchtenberger
Stone, McGhee, Feuchtenberger & Barringer
Bluefield, West Virginia
Attorney for the Appellant
Sidney H. Bell
Welch, West Virginia
Attorney for the Appellee
This Opinion was delivered PER CURIAM.
"'When the representations of one in authority are calculated to foment hope or despair in the mind of the accused to any material degree, and a confession ensues, it cannot be deemed voluntary.' Syllabus, State v. Parsons, 108 W.Va. 705, 152 S.E. 745 (1930." Syllabus point 7, State v. Persinger, 169 W.Va. 121, 286 S.E.2d 261 (1982).
This is an appeal by Milton Justice, who has been
convicted of delivering a controlled substance, from an order of
the Circuit Court of McDowell County denying him habeas corpus
relief. The appellant claims, among other things, that he was
convicted through the unconstitutional use of an involuntary
confession procured by a promise of lenient treatment and that,
under the circumstances, he is entitled to relief. After reviewing
the record of the habeas corpus proceedings and the questions
presented, this Court agrees with the appellant's assertions.
Accordingly, the order of the Circuit Court of McDowell County
denying the appellant relief is reversed.
The record shows that the appellant met with the
prosecuting attorney of McDowell County after he learned that a
grand jury had charged him with violating the controlled substances
act. At that meeting, the prosecutor, according to the appellant,
assured him that he was not the principal subject of a broad-ranging drug investigation and that he would not be prosecuted if
he cooperated with State Trooper J. J. Miller and Deputy Don Hicks,
who were conducting the investigation. After receiving this
assurance, the appellant cooperated with the officers and gave a
written statement in which he admitted that he had illegally sold
Dilaudid capsules. The statement also indicated that the appellant
had obtained prescriptions for additional Dilaudid tablets from a
physician, Dr. Bello, who was an object of the investigation.
After the appellant gave the statement, the prosecuting
attorney's office, in spite of the assurances previously given,
proceeded to prosecute him. During the prosecution, the statement,
which the trial court refused to suppress, was read to the jury and
was later sent to the jury room as State's Exhibit No. 1.
At the conclusion of the trial, the jury found the
appellant guilty, and after the appellant's original appeal time
had expired, he was incarcerated. He was subsequently allowed to
make appeal bond, and he filed an appeal with this Court. This
Court refused to grant the application for appeal and also refused
to grant a reapplication. The Court, in denying the reapplication,
noted, however, that the denial was "without prejudice to file a
petition for a writ of habeas corpus in the Circuit Court of
The appellant filed a petition for habeas corpus with the
Circuit Court of McDowell County, but he was denied the opportunity
to be heard or to present witnesses. He filed another habeas
corpus with this Court in March, 1992. This Court referred the
matter to the Circuit Court of McDowell County, and after
conducting a hearing, the circuit court refused to grant the
defendant habeas corpus relief.
It is from the circuit court's last denial of habeas corpus relief that the appellant now appeals.
On appeal, the appellant essentially claims that his
confession was obtained by promises of leniency and that under the
law it must be deemed to be a constitutionally inadmissible,
involuntary statement. He also claims that he is entitled to
relief from his conviction since his conviction was based on the
This Court has rather consistently recognized that when
a confession is elicited from a criminal defendant by
representations of one in authority calculated to foment hope in
the accused, such a confession is a type of coerced confession and
cannot be deemed voluntary and is thus not admissible into
evidence. The general rule is summarized in syllabus point 7 of
State v. Persinger, 169 W.Va. 121, 286 S.E.2d 261 (1982), as
"When the representations of one in authority are calculated to foment hope or despair in the mind of the accused to any material degree, and a confession ensues, it cannot be deemed voluntary." Syllabus, State v. Parsons, 108 W.Va. 705, 152 S.E. 745 (1930).
See also, State v. Hanson, 181 W.Va. 353, 382 S.E.2d 547 (1989);
State v. Adkison, 175 W.Va. 706, 338 S.E.2d 185 (1985); and State
v. Harman, 174 W.Va. 731, 329 S.E.2d 98 (1985).
The Court has also held that a promise of immunity from
prosecution, even when made by a prosecuting attorney, rather than
by a court as required by W.Va. Code, 57-5-2, is the type of
inducement which will render a subsequent confession based on such
promise involuntary and, therefore, inadmissible in evidence
against the defendant at trial. State v. Hanson, supra.
Further, procedurally, it is generally recognized that:
Habeas corpus is an appropriate remedy to challenge a conviction based on a confession which, because coerced, was obtained in violation of the Fifth and Fourteenth Amendments. This is true regardless of the truth or falsity of the confession, and whether or not there is ample evidence aside from the confession to support the conviction.
39 Am.Jur.2d Habeas Corpus § 54 (1968). See also, Flournoy v.
Peyton, 297 F.Supp. 727 (W.D.Va. 1969); Pemberton v. Peyton, 288
F.Supp. 920 (E.D.Va. 1968); Arthur v. McKenzie, 161 W.Va. 747, 245
S.E.2d 852 (1978).
During the proceedings in the present case, substantial
evidence was adduced relating to the remarks which the prosecuting
attorney made to the appellant and the inducements which were
extended to him for making a confession. The appellant testified
that the prosecuting attorney told him:
[N]ow, listen. Just go in there and cooperate with them and nothing will be held against you. He said, I'm gonna appoint Mr. Cunningham . . . . He said, now, I'm going to ask for the bond to be set at a very minimum that it can be and said, but just go in there and cooperate and nothing will be held against you. And he said, that way I can help you. He said, I can help you and everything. Said, everything will be all right. It won't be nothing to come of it.
To support this testimony, the appellant adduced the
testimony of three other witnesses, Abishi C. Cunningham, the
attorney who was appointed to represent him; Sidney H. Bell, who
was at the time assistant prosecuting attorney of McDowell County;
and Walter Lee Follrod, his brother-in-law, who was present when he
met with the prosecuting attorney.
Mr. Cunningham, who stated that the prosecuting attorney
had contacted him about representing the appellant and who had
discussions with the prosecuting attorney in the presence of the
appellant after the appellant gave the statement, testified: "[I]t
was my impression that he would have some leniency because of the
statement he made." He also testified that he did not believe that
the statement was going to be used against the appellant and that
he was surprised when the statement was brought out during trial.
To support his position further, the appellant adduced
the testimony of Sidney H. Bell, who was assistant prosecuting
attorney at the time the defendant gave his confession. Mr. Bell
[I]t's my recollection that Mr. Justice was assured several times that if he would cooperate and provide information to us, that he would be taken care of, that he had nothing to worry about and it was on those conditions that, that he agreed to give a statement.
Mr. Bell also indicated that the prosecuting attorney had made
representations about the non-usage of the statement. When
questioned whether the prosecutor had promised the appellant
immunity, Mr. Bell testified:
[A]s you know, a Prosecutor has no right to grant immunity without the Court's approval of that, but I do recall that Mr. Camper assured Mr. Justice in layman's terms that he, in effect, had nothing to worry about, that if he cooperated, he would be taken care of, so to speak.
The evidence showed that the prosecutor had offered the
appellant a plea bargain under the terms of which the prosecutor
agreed to waive most of the charges against the appellant if he
would plead guilty to two counts. Assistant Prosecutor Bell
admitted on the stand that possible lenient treatment might involve
plea bargaining, but he also testified that it was his
understanding that the appellant would be "let off the hook." He
stated that, in his opinion, a plea bargain involving guilty pleas
would not involve letting the appellant "off the hook," since
almost certainly under such a bargain the appellant would have to
go to the penitentiary.
The appellant also adduced the testimony of Walter Lee
Follrod, his brother-in-law, who was present during the
conversations with the prosecuting attorney. Mr. Follrod stated
that the prosecuting attorney indicated that he was seeking a
statement from the appellant to aid in his prosecution of certain
other individuals. According to Mr. Follrod, "He said this is to
help their case, not against Milton." Mr. Follrod also indicated
that the prosecuting attorney said that the appellant's statement
would not be used against him.
In the course of the proceedings, the prosecuting
attorney testified that he did not promise the appellant immunity.
He did tell the appellant that he needed a lawyer, and he suggested
Abishi Cunningham as a possible attorney. The prosecuting attorney
also testified that he disagreed with Assistant Prosecutor Sidney
Bell's recollections of the remarks and understandings involving
the appellant. He denied that he ever said that a statement would
not be used.
The testimony of State Trooper J. J. Miller and Deputy
Donald L. Hicks, the officers who actually took the statement, but
who had not been present during the appellant's conversations with
the prosecuting attorney, indicated that in conjunction with the
taking of the statement, the appellant was advised of his rights
and signed a waiver of those rights. Trooper Miller testified that
the appellant was told, as a part of the waiver, that any statement
taken could be used against him in a court of law. Officer Hicks
testified that he believed that he had read the waiver of rights to
the appellant and that it was his opinion that the appellant had
not been promised anything.
This Court believes that the preponderance of the evidence shows that the appellant was offered some form of leniency in exchange for his statement. The appellant himself testified that there was such an offer, and remarks were made to him to the effect that he had nothing to worry about. The appellant's attorney, who was an officer of the court, testified that he believed that the statement would not be used and that, quite frankly, he was surprised when it was brought forth during trial. Perhaps more significantly, the assistant prosecuting attorney, Sidney Bell, who, because of his position on the other side of the case, was adverse to the appellant during the investigation, testified that it was his recollection that the appellant had been assured several times that if he cooperated with the authorities and provided information, he had nothing to worry about. A further examination of his testimony, while not definitively showing that the defendant was promised that the statement would not be used, suggests that the overall understanding was that the appellant would be "let off the hook." In effect, steps would not be taken which would result in the appellant being sent to the penitentiary.
The overall evidence rather clearly suggests and shows
that the appellant's confession was elicited by remarks by one in
authority calculated to foment hope in the mind of the appellant.
Under the holding in Stat v. Persinger, supra, it cannot be deemed
voluntary, and the Court concludes that it was improperly admitted
during the appellant's trial.
Under the circumstances, this Court concludes that the appellant's conviction was improperly and unconstitutionally obtained and that the appellant is entitled to relief from that conviction and confinement.
The Court notes that retrial is not ordinarily precluded
by discharge in habeas corpus, though on retrial any use of the
appellant's confession or evidence derived through use of it would
be inadmissible. See, State ex rel. Morris v. Mohn, 165 W.Va. 145,
267 S.E.2d 443 (1980); Rhodes v. Leverette, 160 W.Va. 781, 239
S.E.2d 136 (1977).
For the reasons stated, the judgment of the Circuit Court
of McDowell County is reversed, and the appellant's conviction is
declared a nullity.