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;



       1
         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).’”
                                               1


                (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.”


                                               2


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.




                                             3


