State v. Stotler

McHugh, Justice,

dissenting-.

I dissent from the holding of the majority of the Court for the reason that this case was submitted to the jury with a proper instruction on the issue of whether or not the confession was voluntarily given. Initially, the trial judge found that the statement of the defendant was voluntarily given. He then again considered the matter during trial and finally instructed the jury on this issue. The defense counsel did not object to such instruction nor was an assignment of error made to this Court on the wording of the instruction. A question of fact arose as to which person or persons testified truthfully on the inducement issue. The jury obviously chose to disbelieve the defendant and his wife.

Syllabus points 2, 3 and 4 of State v. Vance, 250 S.E.2d 146 (W. Va. 1978) cogently set forth the standards to be applied by this Court in regard to the admissibility of confessions. I believe these standards should have been followed in this case:

2. It is a well-established rule of appellate review in this state that a trial court has wide discretion in regard to the admissibility of confessions and ordinarily this discretion will not be disturbed on review.

3. A trial court’s decision regarding the volunt-ariness of a confession will not be disturbed unless it is plainly wrong or clearly against the weight of the evidence.

4. We adopt the ‘Massachusetts’ or ‘humane’ rule whereby the jury can consider the voluntariness of the confession, and we approve of an instruction telling the jury to disregard the confession unless it finds that the State has proved by a preponderance of the evidence it was made voluntarily.

The trial court’s decision on the voluntariness of the confession was not plainly wrong nor was it clearly against the weight of the evidence. The jury was instructed to disregard the confession unless the State proved beyond a reasonable doubt that it was made voluntarily.

Contrary to the holding in State v. Vance, supra, the majority of the Court in this case is improperly substituting its judgment for that of the trial judge and the jury and, therefore, I will not join in the majority opinion.

I am authorized to state that Justice Neely joins me in this dissent.