No. 11-1675 – State v. William Robert Bevel
                                                                              FILED
                                                                            June 19, 2013
                                                                         RORY L. PERRY II, CLERK
                                                                       SUPREME COURT OF APPEALS
LOUGHRY, Justice, dissenting:                                              OF WEST VIRGINIA




                   I disagree with the majority on two fundamental grounds. First, I think the

majority was severely shortsighted in deciding to diverge from the federal approach and hold

instead, that law enforcement officers may never approach an accused after a request for

counsel has been made and thereafter obtain a valid waiver of the right to counsel.1 Second,

I think the majority, by abrogating the effect of valid police-initiated waivers,2 has wholly

disregarded both the critical need to sanction waivers that are properly obtained and the

obstructive effect the majority’s ruling is likely to have on law enforcement efforts in this

state.



                   The United States Supreme Court made clear in Montejo v. Louisiana, 556 U.S.

778 (2009), that states are free to refuse to seek interviews with criminal defendants when


         1
             See U.S. Const. amend. VI; W.Va. Const. art. III, § 14.
         2
        The majority took the position that the waiver that the State relied upon in this case
“was per se invalid” based on its determination that a waiver can never be obtained as a result
of law enforcement’s efforts. The majority continues to view accused-initiated waivers as
valid. See Syl. Pt. 1, State v. Crouch, 178 W.Va. 221, 358 S.E.2d 782 (1987) (upholding
recanting of request for counsel when accused initiates conversation and applying totality of
circumstances test to determine whether accused knowingly and intelligently waived right
to counsel).

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counsel is not present. See id., 556 U.S. at 793. In opting to go down that path, however,

this Court has overlooked the important role that waivers play in the quotidian operation of

law enforcement. Not only that, but as the high court astutely commented in Montejo: “We

suspect the public would be surprised to learn that a criminal can freely sign away his right

to a lawyer, confess his crimes, and then ask the courts to assume that the confession was

coerced–on the ground that he had, at some point earlier in time, made a pro forma statement

requesting that counsel be appointed on his behalf.” 556 U.S. at 793 n.4.



              Upon reexamining its holding in Michigan v. Jackson, 475 U.S. 625 (1986),

overruled by Montejo, that a police-initiated interrogation of a defendant following the

assertion of his right to counsel at an arraignment or similar proceeding renders a subsequent

waiver of the right to counsel invalid, the high court determined in Montejo that there were

enough protections in place already to protect an individual’s right to have counsel during

custodial interrogation and to prevent badgering-induced waivers from either occurring in

the first instance or secondarily, being immune from challenge upon their occurrence. 475

U.S. at 794-95. What the high court concluded was that in light of “the Miranda-Edwards-

Minnick line of cases,”3 “Jackson is simply superfluous.” Id. (footnote added). As the


       3
        See Miranda v. Arizona, 384 U.S. 436 (1966) (holding that any suspect subject to
custodial interrogation must be advised of his/her right to have counsel present); Edwards
v. Arizona, 451 U.S. 477 (1981) (barring instances of self-initiated communications of
accused with police, further interrogation is not permitted upon request for counsel); Minnick
                                                                                 (continued...)

                                              2

United States Supreme Court elucidated: “Miranda and the cases that elaborate upon it

already guarantee not simply noncoercion in the traditional sense, but what Justice Harlan

referred to as ‘voluntariness with a vengeance.’ There is no need to take Jackson’s further

step of requiring voluntariness on stilts.” 556 U.S. at 796 (internal citation omitted).



              In its haste to separate itself from the federal position, the majority reasoned,

without further explanation, that instability would necessarily result in this state’s “right-to­

counsel jurisprudence” if we opted to follow Montejo. Because the constitutional right to

counsel itself is not altered as the result of allowing police-initiated waivers of counsel from

being upheld, the majority’s supposition is premised on a “sky is falling” mentality rather

than the reasoned analysis typical of this Court’s opinions. Moreover, in stating that the right

to counsel guaranteed by our state constitution no longer mirrors the rights accorded by the

Sixth Amendment, the majority has proceeded down a path that is likely to create the very

uncertainty in the law that it sought to avoid. As a result of the majority’s decision to diverge

from federal law, each time the United States Supreme Court or the Fourth Circuit issues a

ruling that applies the Sixth Amendment right to counsel, a correspondent decision will be

required from this Court to determine its applicability to this state.




       3
        (...continued)
v. Mississippi, 498 U.S. 146 (1990) (requiring cessation of interrogation until counsel arrives
upon request for legal representation).

                                               3

              In the process of weighing the “marginal benefits of the Jackson rule . . .

against its substantial costs to the truth-seeking process and the criminal justice system,” the

the Court expounded in Montejo:

                       On the other side of the equation are the costs of adding
              the bright-line Jackson rule on top of Edwards and other extant
              protections. The principal cost of applying any exclusionary
              rule is, of course, letting guilty and possibly dangerous criminals
              go free. . . . Jackson not only operates to invalidate a confession
              given by the free choice of suspects who have received proper
              advice of their Miranda rights but waived them nonetheless, but
              also deters law enforcement officers from even trying to obtain
              voluntary confessions. The ready ability to obtain uncoerced
              confessions is not an evil but an unmitigated good. Without
              these confessions, crimes go unsolved and criminals un­
              punished. These are not negligible costs, and in our view the
              Jackson Court gave them too short shrift.

556 U.S. at 796-97 (internal quotations and citations omitted and emphasis supplied). As the

Court recognized in Montejo, the societal costs of an across-the-board prohibition on law

enforcement-initiated communication with an accused following a request for counsel are

simply too high.



              Rather than sanctioning improperly obtained waivers that result from police

badgering, what the high court did in Montejo was to further validate the use of knowing,

voluntary, and intelligent waivers of previous requests for counsel. The record in this case

demonstrates that just such a waiver was made by Mr. Bevel. After checking the box

indicating that he wanted an attorney appointed to represent him during the initial magistrate


                                               4

appearance which occurred sometime between 10 a.m. and noon on December 17, 2010, Mr.

Bevel was taken into an interrogation room at approximately 1 p.m. Upon being provided

with a one-page form delineating his rights with regard to interrogation,4 Mr. Bevel signed

his name next to the option which indicated that he understood his rights. Sergeant Ross

Lockhart testified at the pretrial hearing on Mr. Bevel’s motion to suppress his statement that

he then read aloud the form entitled “WAIVER OF RIGHTS.” The trial court questioned

Detective Lockhart as to his reading of the Miranda Waiver form to Mr. Bevel:

                 Q: Now, on December 17, did you have occasion to read that
                 document to Mr. Bevel?
                 A: Yes.
                 Q: Okay. You read him the sentences?
                 A: Yes, I did.

Continuing the questioning, the trial court inquired about the use of brackets on the form, and

Detective Lockhart explained:

                 Because when I was speaking to him, I told him, I said, “The
                 first part that I’ve read to you is you–our rights.” Where I had
                 him sign the first time, about three quarters of the way down the
                 page, that was stating that he understood what his rights were,
                 and I continued on the bracket portion, which is the Waiver of
                 Rights. I read him his Waiver of Rights where he waived his
                 right to have counsel present during questioning; asked him if he
                 understood and asked him if he wanted to answer questions. He
                 answered in the affirmative that he did. Therefore, I had him
                 sign that.




       4
           This form was read aloud to Mr. Bevel after he indicated he had trouble reading.

                                                5

              After hearing the testimony of both Detective Lockhart and Detective Zackary

Allman, who testified that Mr. Bevel never asked to end the conversation; never asked to

leave the room; never asked to go to the bathroom or requested a drink, the trial court

concluded that Mr. Bevel had “willingly, knowingly, and intelligently waive[d] his right to

be represented by counsel during the custodial interrogation.” The record in this case

demonstrates that Mr. Bevel’s decision to confess to the police occurred following a freely-

given waiver of his right to counsel.



              The long-term consequences of allowing a “pro forma” request for counsel,

once made, to prevent police officers from even trying to obtain confessions are obvious:

law enforcement efforts to find, convict, and punish persons who have committed crimes

against this state’s citizenry will undoubtedly be hampered. As the high Court recognized

in Montejo, there are multiple protections in place to prevent the police from badgering

criminals into waiving their right to counsel. But when an accused individual decides to

waive that right of representation, as in Mr. Bevel’s case, and confess to the commission of

a crime, this Court should not stand in the way of obtaining a lawful conviction.



              The tragic end result in this case is that Mr. Bevel’s voluntary confession to

sexually molesting his two-year-old stepdaughter will not be admissible, and thus, cannot




                                             6

ever be used against him in any criminal proceeding.5 This is particularly troubling in that

it is highly unlikely that this child will be able to testify against her parental abuser and this

brutal and savage act will likely go unpunished. The majority’s ruling results in an injustice

to this child as well as a monumental step backward for West Virginia’s criminal

jurisprudence.



               For the forgoing reasons, I respectfully dissent. I am authorized to state that

Justice Workman joins in this dissent.




       5
       Mr. Bevel admitted to sexually abusing his stepdaughter by digitally penetrating her
vagina while his wife stroked his penis.

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