State of West Virginia v. Tyler G. ( 2015 )

No. 14-0937, State of West Virginia v. Tyler G.
FILED
October 7, 2015
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Justice Ketchum, dissenting:
I dissent because this case contains three serious prosecutorial errors. The
cumulative effect of these three prejudicial errors resulted in an unfair trial.
First, the defendant, a nineteen-year-old boy, was forced to go to the police
station on two occasions. He was questioned for ten to twelve hours by six different
police officers during this two-day period. The record is clear that this lengthy grilling
was to elicit a confession—why else would a nineteen-year-old boy be questioned for ten
to twelve hours by six different police officers?
The circuit court failed to properly weigh the factors outlined by our Court
in State v. Farley, 192 W.Va. 247, 452 S.E.2d 50 (1994), to determine whether the
defendant’s confession was made “voluntarily.”1 The Farley factors demonstrating that
the confession was made involuntarily are:
(1) The defendant was nineteen years old;
(2) The defendant only had a 10th grade education;
(3) The defendant was of lower intelligence;
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This Court, in Syllabus Point 1 of State v. Vance, 162 W.Va. 467, 250 S.E.2d
146 (1978), that, “The State must prove, at least by a preponderance of the evidence, that
confessions or statements of an accused which amount to admissions of all or a part of an
offense were voluntary before such may be admitted into the evidence of a criminal
case.’ Syl. pt. 5, State v. Starr, W.Va., 216 S.E.2d 242 (1975).’”
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(4) The ten to twelve hours of grilling, by six different police
officers, over a two-day period, was an exceptionally long
time to interrogate a nineteen-year-old boy with a 10th grade
education.
As a result of the involuntary confession, the nineteen-year-old boy was sentenced to 25
to 100 years in the penitentiary.
The second prejudicial error was the unsealing of the defendant’s juvenile
records. The prosecutor’s office unsealed the defendant’s juvenile records without
providing notice to the trial judge or to the defendant. The chief law enforcement officer
of Hancock County, the prosecutor’s office, illegally opened the defendant’s sealed
juvenile records without the circuit court’s permission. Our law requires that before a
juvenile record may be unsealed, there first must be a hearing and approval by a circuit
judge. See State v. Rygh, 206 W.Va. 295, 524 S.E.2d 447 (1999). The result of this
illegal unsealing of the defendant’s juvenile record was that the nineteen-year-old boy got
25 to 100 years in the penitentiary, while the prosecutor’s office doesn’t even get scolded
for its illegal activity.
The third prejudicial error occurred when a police officer testifying for the
State blurted out that the defendant took a polygraph exam. After six years on the bench,
I’ve seen a steady parade of prosecution witnesses who “inadvertently” blurt out
inadmissible testimony. Once the jury heard the defendant took a polygraph test, with no
explanation of the results, the jury will assume the defendant lied. The prosecutor’s
explanation for this inadmissible testimony was, “Sorry Judge, the experienced police
officer just forgot and blurted out the highly prejudicial remarks! Won’t happen again.”
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This Court has previously addressed an experienced police officer “inadvertently”
testifying about a polygraph exam. In State v. Chambers, 194 W.Va. 1, 3, 459 S.E.2d
112, 114 (1995), the Court stated:
Particularly suspect is the fact that neither Police Chief
Miller, nor State Fire Marshall Investigator Richie, was naive
or inexperienced as a witness such that reference to polygraph
testing might have inadvertently been made. In fact, the
transcript reveals that the polygraph evidence came out
during questioning by the State, in answers that were not
particularly responsive to the questions which preceded them.
It seems highly unlikely that both of these witnesses
innocently injected a reference to polygraph testing.
In any event, the admission of Mrs. Chambers’ refusal
to take a polygraph test was plain error. We hold that
reference to an offer or refusal by a defendant to take a
polygraph test is inadmissible in criminal trials to the same
extent that polygraph results are inadmissible.
In the present case, once the inadmissible polygraph testimony came in, the damage was
done—a cautionary instruction from the court did not undo the prejudice to the
defendant.
The cumulative effect of these errors prevented the defendant from
receiving a fair trial. These errors completely negated the evidence that the young girl
just as likely got the disease from her infected mother.
For the foregoing reasons, I respectfully dissent.
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