          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                   January 2013 Term                         FILED
                                   _______________
                                                                       June 13, 2013
                                                                        released at 3:00 p.m.
                                     No. 11-1675                      RORY L. PERRY II, CLERK
                                                                    SUPREME COURT OF APPEALS
                                   _______________                       OF WEST VIRGINIA


                              STATE OF WEST VIRGINIA,

                                     Respondent


                                           v.

                                  WILLIAM BEVEL,

                                     Petitioner


       ____________________________________________________________

                  Appeal from the Circuit Court of Marshall County

                    The Honorable David W. Hummel, Jr., Judge

                            Criminal Action No. 11-F-43


                          REVERSED AND REMANDED


       ____________________________________________________________

                                Submitted: April 17, 2013

                                  Filed: June 13, 2013


John R. Anderson, Esq.	                         Patrick Morrisey
Assistant Public Defender	                      Attorney General
Moundsville, West Virginia	                     Laura Young, Esq.
Counsel for the Petitioner	                     Assistant Attorney General
                                                Marland L. Turner
                                                Assistant Attorney General
                                                Charleston, West Virginia
                                                Counsel for the Respondent


CHIEF JUSTICE BENJAMIN delivered the Opinion of the Court.

JUSTICE WORKMAN and JUSTICE LOUGHRY dissent and reserve the right to file
dissenting opinions.
                             SYLLABUS BY THE COURT



              1.     “On appeal, legal conclusions made with regard to suppression

determinations are reviewed de novo. Factual determinations upon which these legal

conclusions are based are reviewed under the clearly erroneous standard. In addition,

factual findings based, at least in part, on determinations of witness credibility are

accorded great deference.” Syl. pt. 3, State v. Stuart, 192 W. Va. 428, 452 S.E.2d 886

(1994).



              2.     “For a recantation of a request for counsel to be effective: (1) the

accused must initiate a conversation; and (2) must knowingly and intelligently, under the

totality of the circumstances, waive his right to counsel.” Syl. pt. 1, State v. Crouch, 178

W. Va. 221, 258 S.E.2d 782 (1987).



              3.     “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.

Wyre, 173 W.Va. 720, 320 S.E.2d 92 (1984), is in conflict with this principle, it is

overruled.” Syl. pt. 1, State v. Barrow, 178 W. Va. 406, 359 S.E.2d 844 (1987).




                                             i
              4.     “An appellate court should not overrule a previous decision recently

rendered without evidence of changing conditions or serious judicial error in

interpretation sufficient to compel deviation from the basic policy of the doctrine of stare

decisis, which is to promote certainty, stability, and uniformity in the law.” Syl. pt. 2,

Dailey v. Bechtel Corp., 157 W. Va. 1023, 207 S.E.2d 169 (1974).



              5.     If police initiate interrogation after a defendant asserts his right to

counsel at an arraignment or similar proceeding, any waiver of the defendant’s right to

counsel for that police-initiated interrogation is invalid as being taken in violation of the

defendant’s right to counsel under article III, section 14 of the Constitution of West

Virginia.




                                             ii
Benjamin, Chief Justice:


              Consistent with the United States Supreme Court’s decision in Michigan v.

Jackson, 475 U.S. 625 (1986), this Court has held it to be a violation of a defendant’s

right to counsel for the police to initiate interrogation after the defendant has asserted his

right to counsel at an arraignment or similar proceeding, even if the police procure a

waiver of the right to counsel from the defendant. In 2009, the U.S. Supreme Court

issued Montejo v. Louisiana, 556 U.S. 778 (2009), which overruled their decision in

Michigan v. Jackson. The Montejo court held that it does not violate a defendant’s right

to counsel under the Sixth Amendment to the United States Constitution for the police to

approach and interrogate a defendant after he has asserted his right to counsel at an

arraignment or similar proceeding if a valid waiver is obtained.



              In the instant case, the petitioner, William Bevel, requested that counsel be

appointed to him at his arraignment. However, prior to receiving an opportunity to

confer with his counsel, Mr. Bevel was approached by a police officer and asked to sign a

waiver of his right to counsel. Mr. Bevel signed the waiver and proceeded to make

inculpatory statements to the police. In its October 26, 2011, order, the circuit court

denied Mr. Bevel’s motion to suppress the statements, finding that the interrogation was

not conducted in violation of his right to counsel pursuant to Montejo. The question now

before this Court is whether West Virginia will continue to follow our existing precedent




                                              1

or whether we will instead adopt the conclusions and rationale of the U.S. Supreme Court

in Montejo.



              We have thoroughly reviewed the record presented, the briefs, the relevant

legal authorities, and the arguments of Mr. Bevel and the State. For the reasons provided

herein, we decline to adopt Montejo and find that the right to counsel that has been

recognized in this state for more than a quarter century continues to be guaranteed by

article III, section 14 of the West Virginia Constitution. Consequently, we find that the

circuit court erred by failing to suppress the inculpatory statements made by Mr. Bevel

We therefore reverse the circuit court’s November 2, 2011, conviction and sentencing

order, and we remand the case for further proceedings consistent with this opinion.



                                             I.


                 FACTUAL AND PROCEDURAL BACKGROUND


              Before we begin our description of the facts in this case, we call attention to

the point that the underlying order of the circuit court is devoid of factual findings.

Furthermore, the parties’ briefs include few facts about the victim or the events leading

up to Mr. Bevel’s arrest. The following relevant background information has been

gleaned from documents included in the appendix record provided to this Court by the

petitioner.




                                             2

               The victim in this case, a child named S.H.,1 was born on May 6, 2005.

After her birth, she lived with her mother, Carrie Bevel, and then with both her mother

and the petitioner, Mr. Bevel. On February 2, 2008, when S.H. was two years old, she

was placed in the legal custody of her grandmother, Tammy H. The change in custody

was pursuant to an abuse and neglect proceeding brought against Ms. Bevel. alleging that

the home was unsafe for S.H. due to lack of heat and broken glass. Ms. Bevel and Mr.

Bevel were married on February 19, 2008.



               Sometime in September or October of 2008, Tammy H. witnessed S.H.

“acting out sexually.” Tammy H. promptly contacted the state police and Harmony

House.2    Employees of Harmony House conducted multiple interviews of S.H., the

results of which were provided to investigating police officers in December of 2010.

During the interviews, S.H. revealed that Ms. Bevel and Mr. Bevel had touched her in a

sexual manner while she was in their care. Using dolls that represented her and Mr.

Bevel, S.H. indicated that Mr. Bevel had penetrated her vagina with his penis and with

his fingers.


       1
          Consistent with this Court’s practice in cases involving sensitive matters, we
refer to the parties using their initials.
       2
         Harmony House is located in Wheeling, West Virginia. According to its website,
“[t]he mission of Harmony House is to create and sustain a fully operational Children’s
Advocacy Center (CAC) for Ohio and Marshall Counties, West Virginia and Belmont
County, Ohio to serve child victims and non-offending family members in a neutral,
child-focused environment.” Harmony House, http://harmonyhousecacwv.org/ (last
visited May 23, 2013).

                                           3

              Pursuant to the December 14, 2010, criminal complaint of the Magistrate

Court of Marshall County, which alleged that Mr. Bevel had sexually abused S.H., a

warrant was issued for Mr. Bevel’s arrest. Upon his arrest, he was taken to the Northern

Regional Jail & Correctional Facility.



              On December 17, 2010, a Marshall County magistrate conducted Mr.

Bevel’s initial appearance via closed circuit video conferencing.        During the initial

appearance, Mr. Bevel was given a form titled “Initial Appearance: Rights Statements.”

The first page of the form included the following:


              DEFENDANT MUST INITIAL ONE OF THE
              FOLLOWING THREE CHOICES IF A JAIL PENALTY IS
              POSSIBLE:

              _____ (a) I give up my right to have an attorney represent me.
              _____ (b) I want to hire an attorney to represent me.
              _____ (c) I want an attorney appointed to represent me.


Mr. Bevel placed his initials next to the third option, requesting that counsel be appointed

to him. The form was faxed to the magistrate. The dates and times imprinted on the

form as a result of the faxing process suggest that the initial appearance occurred

sometime between 10:00 a.m. and noon.



              At approximately 1:00 p.m. that same day, police officers took Mr. Bevel to

an interrogation room in the jail. He was then provided with a one-page form which

                                             4

described his rights with regard to interrogation. The first portion of the form, titled

“YOUR RIGHTS”, said:


                    You have the right to remain silent and refuse to
             answer questions
                    Anything you say can be used against you in court.
                    You have the right to talk to a lawyer for advice before
             we ask you any questions and to have your lawyer with you
             during questioning.
                    If you cannot afford a lawyer, one will be appointed
             for you before any questioning, if you wish.
                    If you decide to answer questions now without a
             lawyer present, you still have the right to stop answering at
             any time until you talk to a lawyer.
                    I have been advised that I am to be questioned about
             Sexual Assault Charges.
                    I understand that I am under arrest for the crime(s) of
             Sexual Assault Charges and that I have the right to taken [sic]
             to a magistrate and arraigned on this charge or charges
             without delay. If taken before a magistrate, I would have the
             following rights explained to me:
                    1. I would be informed of the charges against me and
             have the charges read and explained to me. I would be
             explained the penalties that the Court may impose should I be
             found guilty of those charges.
                    2. That I would have the right to a jury trial on all
             charges lodged against me.
                    3. That, under the United States Constitution and the
             Constitution and laws of the State of West Virginia, I do not
             have to say anything to the law enforcement officer, to the
             magistrate, or to the judge, which might tend to incriminate
             me.
                    4. That anything I say, write, or sign may be
             introduced into evidence at any trial in connection with the
             charges against me.
                    5. That I have the right to have the assistance of
             counsel during criminal proceedings against me and that if I
             cannot afford counsel, the State will supply me with counsel
             at no cost.
                    6. That no person other than a lawyer can represent me
             during these proceedings.

                                           5

                    7. That if I decide to represent myself in the trial of the
              charges against me, I cannot later claim that I was deprived of
              my right to a lawyer.
                    8. That I have a right to a preliminary examination by
              a magistrate if the charges against me are presented to a
              Grand Jury for indictment. At such a preliminary
              examination, I can call witnesses to testify and may cross-
              examine any witness.
                    That I would have the right to communicate with my
              lawyer, a relative, or any other person to obtain a lawyer or to
              arrange bail.


(Underlined text indicating a handwritten entry onto the form). Sergeant Ross Lockhart

testified that he read this portion of the form aloud to Mr. Bevel because Mr. Bevel

asserted that he has difficulty reading.3 Mr. Bevel was then presented with the option to

sign next to one of two options: “I understand my rights” or “I do not wish to answer any

questions or make any statements at this time.” Mr. Bevel placed his signature next to

the first option: “I understand my rights.”



              Sgt. Lockhart then proceeded to read aloud to Mr. Bevel the final paragraph

on the form, titled “WAIVER OF RIGHTS”. This section stated:


                     I have had this statement of my rights read to me and I
              fully understand what my rights are, and I hereby waive said
              rights. I am willing to make a statement and to answer
              questions before being taken to a magistrate. I do not want a
              lawyer at this time. I understand and know what I am doing.


       3
        According to a March 29, 2010, report of a psychological evaluation of Mr.
Bevel, he reads on a third grade level, and his IQ is 68. The report describes Mr. Bevel as
being “mentally retarded.”

                                              6

              No promises or threats have been made to me and no pressure
              or coercion of any kind has been used against me.


Mr. Bevel placed his signature on the signature line following the waiver-of-rights

paragraph.



              During the interrogation, Mr. Bevel made incriminating statements,

admitting that he digitally penetrated S.H. while Ms. Bevel simultaneously manually

stimulated his penis.



              The grand jury returned an indictment against Mr. Bevel on July 19, 2011.

The indictment charged Mr. Bevel with sexual abuse by a custodian, parent or person in a

position of trust; incest; first degree sexual assault; and displaying obscene matter to a

minor.



              The State filed a motion to determine the voluntariness of Mr. Bevel’s

statements to the police officers during the December 17, 2010, interrogation. Mr. Bevel

then filed a motion to suppress those statements. An evidentiary hearing was held on

October 17, 2011, to address the admissibility of Mr. Bevel’s incriminating statements.

During that hearing, the court heard testimony on the motions from the interviewing

officers and from the magistrate presiding over Mr. Bevel’s initial hearing. Near the

conclusion of the hearing, the court said,



                                             7

                     So I think the -- the argument proverbially -- is
             proverbially dead in the water, but I will allow an opportunity
             to brief it. I think the gap in time between the initial
             appearance and the State’s agents going to do the interview
             may have been sufficient, and that at that time Mr. Bevel
             failed to reassert his right to counsel.


In the order memorializing the evidentiary hearing, dated October 18, 2011, the court

said, “Further, the court placed on the record that the typed interview of December 17,

2010, has been thoroughly read by the Court, however it is the COURT’S FINDING on

this day, that the Statement of December 17, 2010 is DEFERRED, at this time.”



             By order dated October 26, 2011, the court denied Mr. Bevel’s motion to

suppress:

                    In support of the Court’s determination as set forth in
             this order, it applies Montejo v. Louisiana, 556 U.S. 778, 129
             S.Ct. 2079 (2009) and finds that Mr. Bevel’s Sixth
             Amendment right to counsel was not violated.

                     Furthermore, on December 17, 2010, Mr. Bevel, prior
             to making the subject statement(s) to law enforcement, did (in
             the totality of the circumstances) willingly, knowingly, and
             intelligently waive his right to be represented by counsel
             during the custodial interrogation. Accordingly, neither Mr.
             Bevel’s Fifth nor his Sixth Amendment right to counsel were
             [sic] violated.


(In part).




                                           8

              On October 31, 2011, Mr. Bevel entered a Kennedy plea,4 whereby he

pleaded guilty to sexual abuse by a parent, guardian, custodian, or person in a position of

trust, while preserving his right to seek an appeal of the denial of his motion to suppress

his December 17, 2010, statement. By order dated November 2, 2011, he was sentenced

to not less than ten nor more than twenty years in the West Virginia Penitentiary for Men.

His sentence requires that he register as a sex offender for life upon his release from the

penitentiary and that he serve a period of supervised release.



              Mr. Bevel now appeals the circuit court’s November 2, 2011, conviction

and sentencing order, arguing that the circuit court erred by denying his motion to

suppress his December 17, 2010, statement.



                                            II.


                               STANDARD OF REVIEW


              On appeal, Mr. Bevel’s challenge involves suppression of an inculpatory

statement. We have held,


                    On appeal, legal conclusions made with regard to
              suppression determinations are reviewed de novo. Factual
              determinations upon which these legal conclusions are based

       4
         See syl. pt. 1, Kennedy v. Frazier, 178 W. Va. 10, 357 S.E.2d 43 (1987) (“An
accused may voluntarily, knowingly and understandingly consent to the imposition of a
prison sentence even though he is unwilling to admit participation in the crime, if he
intelligently concludes that his interests require a guilty plea and the record supports the
conclusion that a jury could convict him.”).

                                             9

              are reviewed under the clearly erroneous standard. In
              addition, factual findings based, at least in part, on
              determinations of witness credibility are accorded great
              deference.


Syl. pt. 3, State v. Stuart, 192 W. Va. 428, 452 S.E.2d 886 (1994).



                                             III.

                                        ANALYSIS

              Mr. Bevel asserts that the interrogation conducted on December 17, 2010,

was in violation of his constitutional right to counsel. The State urges the Court to adopt

the United States Supreme Court’s holding in Montejo v. Louisiana, 556 U.S. 778 (2009),

under which the police-initiated interrogation would not have violated Mr. Bevel’s right

to counsel.



              The right to counsel is guaranteed by both the United States Constitution

and the West Virginia Constitution.        The Sixth Amendment to the United States

Constitution declares, “In all criminal prosecutions, the accused shall enjoy the right to . .

. have the Assistance of Counsel for his defence.”           Likewise, the West Virginia

Constitution requires that “[i]n all [trials of crimes and misdemeanors], the accused . . .

shall have the assistance of counsel.” W. Va. Const. art. III, § 14. The Court has

explained the importance and purpose of the right:


              The right to be heard would be, in many cases, of little avail if
              it did not comprehend the right to be heard by counsel. Even

                                             10
              the intelligent and educated layman has small and sometimes
              no skill in the science of the law. If charged with crime, he is
              incapable, generally, of determining for himself whether the
              indictment is good or bad. He is unfamiliar with the rules of
              evidence. Left without the aid of counsel he may be put on
              trial without a proper charge, and convicted upon incompetent
              evidence, or evidence irrelevant to the issue or otherwise
              inadmissible. He lacks both the skill and knowledge
              adequately to prepare his defense, even though he have a
              perfect one. He requires the guiding hand of counsel at every
              stage of the proceedings against him.


State ex rel. Sims v. Perry, 204 W. Va. 625, 630, 515 S.E.2d 582, 587 (1999) (quoting

Powell v. Alabama, 287 U.S. 45, 68–69 (1932).



              The U.S. Supreme Court, in Miranda v. Arizona, 384 U.S. 436 (1966), has

also declared that the Fifth Amendment to the United States Constitution implicitly

provides the right to counsel. Miranda, relied on the Fifth Amendment’s guarantee that

“[n]o person . . . shall be compelled in any criminal case to be a witness against himself”

in holding that “the right to have counsel present at the interrogation is indispensable to

the protection of the Fifth Amendment.” 384 U.S. at 469. The Court continued, “Our aim

is to assure that the individual’s right to choose between silence and speech remains

unfettered throughout the interrogation process.” Id.



              The purpose of the Fifth Amendment right to counsel is to protect a

defendant’s right against self-incrimination. The right “is triggered when a defendant is

taken into custody by law enforcement officials who desire to interrogate him.” State v.


                                            11

Williams, 226 W. Va. 626, 629, 704 S.E.2d 418, 421 (2010) (quoting State v. Hickman,

175 W. Va. 709, 716, 338 S.E.2d 188, 195 (1985)). A defendant may waive his right to

counsel and proceed with the interrogation. If he chooses to invoke his Fifth Amendment

right to counsel, all interrogation must cease unless the defendant initiates further

communication with the police. Edwards v. Arizona, 451 U.S. 477, 484–85 (1981) (“[A]n

accused . . . , having expressed his desire to deal with the police only through counsel, is

not subject to further interrogation by the authorities until counsel has been made

available to him, unless the accused himself initiates further communication, exchanges,

or conversations with the police.” (“The Edwards rule”)). The Fifth Amendment right to

counsel attaches before adversarial judicial proceedings are brought against a defendant

upon invocation of the right by the defendant.



              Once adversarial judicial proceedings commence against a defendant, right

to counsel guaranteed by the Sixth Amendment and article III, § 14 attaches. Syl. pt. 1,

Bowyer, 181 W. Va. 26, 380 S.E.2d 193 (“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.”); State ex rel. Riffle v. Thorn, 153 W. Va. 76, 81, 168 S.E.2d 810, 813

(1969) (“We are firmly of the view that the due process clauses of the Constitutions of

the United States and of this State guarantee to one indicted for a felony counsel at every

stage of his trial, at least from the date of his arraignment until final judgment is



                                            12

entered.”). Thus, the right to counsel may arise in one or both of two contexts: under the

Fifth Amendment and/or under the Sixth Amendment.



              Because the interrogation at issue in this case took place after Mr. Bevel

was arraigned, at which time he requested the assistance of counsel, only the right to

counsel under the Sixth Amendment and article III, § 14 is at issue in this case.



              The interpretation of the Sixth Amendment right to counsel has varied over

time in both West Virginia and across the nation. In 1984, in State v. Wyre, 173 W. Va.

720, 731, 320 S.E.2d 92, 103 (1984), this Court recognized that the operation of the right

to counsel had not been clearly explained by our court or the U.S. Supreme Court:

“Regretfully, [the U.S. Supreme Court] offer[s] little guidance as to what limitations on

waiver [of the right to counsel] are appropriate.” Subsequently, we attempted to clarify

the right, holding,


              [W]e do not equate a general request for counsel at the initial
              appearance before a magistrate as foreclosing in all cases the
              right of police officials to initiate a further discussion with the
              defendant to determine if he is willing to waive his Sixth
              Amendment right to counsel for purposes of procuring a
              confession.


Id. at syl. pt. 3 (in part). The Court continued,


                     Because of the higher standard against which the Sixth
              Amendment right-to-counsel waiver is measured, we hold
              that once the Sixth Amendment right to counsel has attached,

                                              13
              it can only be waived by a written waiver signed by the
              defendant. It must also be shown at the time that the waiver is
              executed that the defendant was aware that he was under
              arrest and had been informed of the nature of the charge
              against him.


Id. at syl. pt. 4 (in part). Thus, under Wyre, police could lawfully initiate interrogation

after a defendant had requested counsel at an initial appearance if the police obtained the

defendant’s written waiver of his right to counsel.



              Two years later, the U.S. Supreme Court decided Michigan v. Jackson, 475

U.S. 625, 636 (1986), providing the clarity this Court lacked in Wyre. The Supreme

Court held, “[I]f 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.” Michigan, 475 U.S. at

636. The Supreme Court justified its decision by examining both the Fifth and Sixth

Amendment rights to counsel. It referred to the Edwards rule, quoted supra, and decided

that


              the reasons for prohibiting the interrogation of an
              uncounseled prisoner who has asked for the help of a lawyer
              are even stronger after he has been formally charged with an
              offense than before. . . . Indeed, after a formal accusation has
              been made—and a person who had previously been just a
              “suspect” has become an “accused” within the meaning of the
              Sixth Amendment—the constitutional right to the assistance
              of counsel is of such importance that the police may no longer
              employ techniques for eliciting information from an
              uncounseled defendant that might have been entirely proper
              at an earlier stage of their investigation.

                                            14

Id. at 631–32. Again looking to the Fifth Amendment right for guidance, the Supreme

Court continued, “Just as written waivers are insufficient to justify police-interrogations

after the request for counsel in a Fifth Amendment analysis, so too they are insufficient to

justify police-initiated interrogations after the request for counsel in a Sixth Amendment

analysis.” Id. at 635.



              The Supreme Court’s decision in Michigan contradicted the law as it stood

in West Virginia under Wyre. The contradiction was resolved in State v. Crouch, 178 W.

Va. 221, 358 S.E.2d 782 (1987), and State v. Barrow, 178 W. Va. 406, 359 S.E.2d 844

(1987).   In Crouch, following the guidance of Michigan, the Court held, “For a

recantation of a request for counsel to be effective: (1) the accused must initiate a

conversation; and (2) must knowingly and intelligently, under the totality of the

circumstances, waive his right to counsel.” Syl. pt. 1, Crouch, 178 W. Va. 221, 258

S.E.2d 782. The Court went even further in Barrow, finding that “[b]ecause Wyre sets a

more diminished standard than that set in [Michigan], we must overrule Wyer to this

extent.” Barrow, 178 W. Va. at 409, 359 S.E.2d at 847. The Court adopted the holding in

Michigan:


                     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. Wyre, 173 W.Va. 720,

                                            15
              320 S.E.2d 92 (1984), is in conflict with this principle, it is
              overruled.


Syl. pt. 1, Barrow, 178 W. Va. 406, 359 S.E.2d 844.



              Under Crouch and Barrow, police could interrogate a defendant after the

defendant had asserted his Sixth Amendment right to counsel only if the defendant

initiated the conversation with police and only if the defendant knowingly and

intelligently waived his right to counsel. Couch and Barrow, which mirror and, indeed,

go beyond the requirements of Michigan, have acted as the touchstone on the Sixth

Amendment right to counsel in West Virginia for the last twenty-six years. See State v.

Lucas, 178 W. Va. 686, 364 S.E.2d 12 (1987); State v. Tenley, 179 W. Va. 209, 366

S.E.2d 657 (1988); Bowyer, 181 W. Va. 26, 308 S.E.2d 193 (1989); State v. Parker, 181

W. Va. 619, 383 S.E.2d 801 (1989); State v. Marcum, 182 W. Va. 104, 386 S.E.2d 117

(1989); Williams, 226 W. Va. 626, 704 S.E.2d 418 (2010).



              In 2009, the U.S. Supreme Court issued Montejo, overruling Michigan. In

Montejo, the defendant was arrested for his believed participation in a murder. 556 U.S.

at 781. Upon his arrest, he was read his Miranda rights, he waived rights including his

Fifth Amendment right to counsel, and he participated in an interrogation conducted by

police detectives. Id.   He made incriminating statements to the police during the

interrogation. Id.



                                            16

              Four days after his arrest, the defendant was brought before a judge for a

preliminary hearing, and pursuant to Louisiana law, the court ordered “the Office of

Indigent Defender be appointed to represent the defendant.” Id. (internal quotation

omitted). After the preliminary hearing, the police detectives approached the defendant

again, requesting that he assist them in locating the murder weapon. Id. The defendant

was read his Miranda rights a second time, and he once more waived his right to counsel.

Id. at 782. During the excursion, the defendant made additional inculpatory statements.

Id. The defendant objected to the admission at trial of the statements he made to police

after the preliminary hearing, but the statements were deemed admissible by the court.

He was convicted of first-degree murder and sentenced to death. Id.



              Arguing that the statements made after the preliminary hearing were made

in violation of his Sixth Amendment right to counsel, the defendant appealed to the

Louisiana Supreme Court. Id. The Louisiana Supreme Court affirmed the conviction,

reasoning that


              the prophylactic protection of [Michigan] is not triggered
              unless and until the defendant has actually requested a lawyer
              or has otherwise asserted his Sixth Amendment right to
              counsel. Because Montejo simply stood mute at his
              [preliminary] hearing while the judge ordered the
              appointment of counsel, he had made no such request or
              assertion.


Id. (internal citation omitted).



                                           17

              The U.S. Supreme Court rejected the Louisiana Supreme Court’s approach

finding that it “would lead either to an unworkable standard, or to arbitrary and

anomalous distinctions between defendants in different States.” Id. at 783. The U.S.

Supreme Court explained,


                      So on one hand, requiring an initial “invocation” of the
              right to counsel in order to trigger the [Michigan]
              presumption is consistent with the theory of that decision, but
              . . . would be unworkable in more than half the States of the
              Union.5 On the other hand, eliminating the invocation
              requirement would render the rule easy to apply but depart
              fundamentally from the [Michigan] rationale.


Id. at 792 (footnote added). In other words, the U.S Supreme Court appears to have seen

itself as being faced with choosing between (1) an application of the Sixth Amendment

that would not be uniform among the several states and (2) departing from Michigan. It

chose to overrule Michigan, holding, “In sum, when the marginal benefits of the

[Michigan] rule are weighed against its substantial costs to the truth-seeking process and

the criminal justice system, we readily conclude that the rule does not ‘pay its way.’

[Michigan] should be and now is overruled.” Id. at 797 (internal citation omitted).




       5
        In addition to the federal right to counsel, states have also provided their citizens
with the right to counsel under their own laws. What that right entails varies by state.
Montejo illustrates that in Louisiana, counsel is automatically appointed at the
commencement of criminal proceedings. In other states, like West Virginia, a defendant
must request that counsel be appointed to him.

                                             18

              The Montejo Court buttressed its holding by attacking the Michigan Court’s

reliance on the Fifth Amendment in supporting its extension of the Sixth Amendment.

Stating that “[t]he antibadgering rationale is the only way to make sense of [Michigan]’s

repeated citations of Edwards, and the only way to reconcile the opinion with our waiver

jurisprudence,” Id. at 788, the Montejo Court concluded that while “Edwards and

[Michigan] are meant to prevent police from badgering defendants into changing their

minds about their rights, . . . a defendant who never asked for counsel has not yet made

up his mind in the first instance.” Id. at 789. The U.S. Supreme concluded by asserting

that the protections provided by the Miranda-Edwards line of cases are sufficient to

protect the right to counsel, finding that the “doctrines ensuring voluntariness of the Fifth

Amendment waiver simultaneously ensure the voluntariness of the Sixth Amendment

waiver. Id. at 795.



              One year after the U.S. Supreme Court decided Montejo, this Court was

asked in Williams to revisit Barrow. Because the facts of Williams did not provide an

adequate basis for exploring Montejo, we said, “Having concluded that the Sixth

Amendment right to counsel was not at issue in this case, we decline the invitation to

address the impact the 2009 Supreme Court decision in Montejo v. Louisiana may have

on our Sixth Amendment jurisprudence.” Williams, 226 W. Va. at 630 n.6, 704 S.E.2d at

422 n.6. The facts of the case at bar, however, do provide the basis for addressing the

impact of Montejo on our law, and so we proceed to do so now.



                                             19

                 The case sub judice is controlled by both the Constitution of West Virginia

and the Constitution of the United States, and our decision must comply with both

constitutions.     However, under the primary tenant of federalism—on which our

government is based—West Virginia may place higher standards on its police pursuant to

its own laws than those required by the federal government. See, e.g., syl. pt. 2, Pauley v.

Kelly, 162 W. Va. 672, 255 S.E.2d 859 (1979) (“The provisions of the Constitution of the

State of West Virginia may, in certain instances, require higher standards of protection

than afforded by the Federal Constitution.”).



                 Montejo represents a narrower application of the Sixth Amendment right to

counsel than the application of the right under Michigan. West Virginia may continue to

follow Michigan without running afoul of Montejo. The U.S. Supreme Court recognized

as much in Montejo, stating, “If a State wishes to abstain from requesting interviews with

represented defendants when counsel is not present, it obviously may continue to do so.”

556 U.S. at 793. Therefore, West Virginia is not bound to adopt Montejo as it was bound

to adopt Michigan; continued application of our Michigan line of cases would provide

greater protection to citizens’ right to counsel than the protections guaranteed by

Montejo.



                 Our decision on whether to adopt Montejo comes down to one question:

Does the right to counsel under the Sixth Amendment to the United States Constitution,



                                              20

as interpreted in Montejo, provide the same right to counsel under article III, section 14

of the West Virginia Constitution? We find that it does not.



              We are bound by the doctrine of stare decisis. The Court has held, “An

appellate court should not overrule a previous decision recently rendered without

evidence of changing conditions or serious judicial error in interpretation sufficient to

compel deviation from the basic policy of the doctrine of stare decisis, which is to

promote certainty, stability, and uniformity in the law.” Syl. pt. 2, Dailey v. Bechtel

Corp., 157 W. Va. 1023, 207 S.E.2d 169 (1974). “Mere disagreement as to how a case

was decided is not a sufficient reason to deviate from [stare decisis].” Id. at 1029, 207

S.E.2d at 173. The only changed condition present in this case is that the U.S. Supreme

Court has decided Montejo, which provides a right to counsel differing from that

provided in Crouch and Barrow. While the U.S. Supreme Court felt compelled to depart

from Michigan for the sake of uniformity among the states, a similar conflict does not

exist on our individual state level. Thus, although Montejo has altered the benefits of the

right to counsel on the federal level, it has not changed the right in such a way that

conflicts with the right as guaranteed by Crouch and Barrow. Wholesale adoption of

Montejo would only produce instability in             West Virginia’s right-to-counsel

jurisprudence.



              Furthermore, we do not find that our holdings in Crouch and Barrow

represent error. The U.S. Supreme Court even recognized that the right to counsel within

                                            21

the meaning of Michigan may still be viable in jurisdictions that choose to reject

Montejo. Upon our review of our own case law, we believe that our law is well-reasoned

and appropriately ensures that statements made by a defendant during interrogation are

voluntary and made with full knowledge of the right to be assisted by counsel.


              [N]o system of criminal justice can, or should, survive if it
              comes to depend for its continued effectiveness on the
              citizens’ abdication through unawareness of their
              constitutional rights. No system worth preserving should have
              to fear that if an accused is permitted to consult with a
              lawyer, he will become aware of, and exercise, these rights.


Wyre, 173 W. Va. at 739, 320 S.E.2d at 111 (Harshbarger, J., dissenting) (quoting

Escobedo v. Illinois, 378 U.S. 478, 490 (1964)). Therefore, we find that stare decisis

requires that we sustain Crouch and Barrow.



              We note that much of our case law examining the right to counsel,

including Crouch and Barrow, only discusses the right in terms of the Sixth Amendment

to the United States Constitution. Although we did not mention the West Virginia

Constitution explicitly, it is clear from the Court’s opinions that until now, the right to

counsel guaranteed by the Constitution of West Virginia mirrored the right guaranteed by

the Sixth Amendment. We now explicitly hold that if police initiate interrogation after a

defendant asserts his right to counsel at an arraignment or similar proceeding, any waiver

of the defendant’s right to counsel for that police-initiated interrogation is invalid as

being taken in violation of the defendant’s right to counsel under article III, section 14 of


                                             22

the Constitution of West Virginia. Our holding today does not change what the right to

counsel has entailed pursuant to this state’s constitution since 1987, including the ability

of a defendant by his or her initiation to knowingly and intelligently waive the right to

counsel after the right has previously been invoked, pursuant to Crouch.



              Under this holding, it is apparent from the undisputed facts in this case that

the police-initiated interrogation of Mr. Bevel on December 17, 2010, after he requested

the assistance of counsel and after criminal proceedings had commenced against him,

was conducted in violation of his right to counsel under article III, section 14 of the

Constitution of West Virginia. Accordingly, the circuit court erred by denying Mr.

Bevel’s motion to suppress the inculpatory statements he made during that interrogation,

and Mr. Bevel’s conviction and sentence must be reversed.6



                                             IV.


                                      CONCLUSION


              For the reasons set forth above, this Court reverses the circuit court’s order

entered November 2, 2011, convicting and sentencing the Mr. Bevel. Because that order



       6
         In addition to arguing that the December 17, 2010, interrogation was conducted
in violation of his right to counsel, Mr. Bevel also asserted that the waiver of his right to
counsel he signed that day was not knowing, intelligent, and voluntary. Because we find
that the police-initiated interrogation was in violation of Mr. Bevel’s right to counsel, it is
unnecessary to analyze the waiver because the waiver, under our holding, was per se
invalid.

                                              23

was entered pursuant to a Kennedy plea, we remand the case for further proceedings

consistent with this opinion.



                                                          Reversed and Remanded.




                                       24

