IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2014 Term
FILED
October 30, 2014
No. 12-1259
released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Plaintiff Below, Respondent
v.
JAMES EVERETT MARCUM,
Defendant Below, Petitioner
Appeal from the Circuit Court of Wayne County
The Honorable James H. Young, Jr., Judge
Criminal Action No. 10-F-017
AFFIRMED
Submitted: September 17, 2014
Filed: October 30, 2014
Dana F. Eddy, Esq. Patrick Morrisey, Esq.
WV Public Defender Service Attorney General
Charleston, West Virginia Scott E. Johnson, Esq.
Attorney for the Petitioner Senior Assistant Attorney General
Julie Blake, Esq.
Assistant Attorney General
Charleston, West Virginia
Attorney for the Respondent
JUSTICE WORKMAN delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “‘The trial court has wide discretion as to the admission of confessions
and ordinarily this discretion will not be disturbed on review.’ Syllabus point 2, State v.
Lamp, 163 W. Va. 93, 254 S.E.2d 697 (1979).” Syl. Pt. 2, State v. Woods, 169 W. Va. 767,
289 S.E.2d 500 (1982).
2. “This Court is constitutionally obligated to give plenary, independent,
and de novo review to the ultimate question of whether a particular confession is voluntary
and whether the lower court applied the correct legal standard in making its determination.
The holdings of prior West Virginia cases suggesting deference in this area continue, but that
deference is limited to factual findings as opposed to legal conclusions.” Syl. Pt. 2, State v.
Farley, 192 W. Va. 247, 452 S.E.2d 50 (1994).
3. “The special safeguards outlined in Miranda are not required where a
suspect is simply taken into custody, but rather only where a suspect in custody is subjected
to interrogation. To the extent that language in State v. Preece, 181 W. Va. 633, 383 S.E.2d
815 (1989), and its progeny, may be read to hold differently, such language is expressly
overruled.” Syl. Pt. 8, State v. Guthrie, 205 W. Va. 326, 518 S.E.2d 83 (1999).
i
4. “‘The State must prove, at least by a preponderance of the evidence, that
confessions or statements of an accused which amount to admissions of part or all of an
offense were voluntary before such may be admitted into the evidence of a criminal case.’
Syllabus point 5, State v. Starr, 158 W. Va. 905, 216 S.E.2d 242 (1975).” Syl. Pt. 1, State v.
Woods, 169 W. Va. 767, 289 S.E.2d 500 (1982).
5. “To safeguard the integrity of its proceedings and to insure the proper
administration of justice, a circuit court has inherent authority to conduct and control matters
before it in a fair and orderly fashion.” Syl. Pt. 2, State v. Fields, 225 W. Va. 753, 696
S.E.2d 269 (2010).
ii
Workman, Justice:
This case is before the Court upon the appeal of the Petitioner, James Marcum,
from the September 14, 2012, Order re-sentencing1 the Petitioner to a determinate term of
forty years in prison following his jury conviction for second degree murder. The Petitioner
argues that the circuit court erred: 1) in the manner it conducted the suppression hearing, by
shifting the burden to the Petitioner and requiring him to put on evidence first in order to
make a showing that would trigger the State’s rebuttal of the Petitioner’s suppression
grounds; and, 2) in finding that the Petitioner’s statement to police was voluntarily given.
Based upon a review of the parties’ briefs and oral arguments, the appendix record, and all
other matters before the Court, we affirm the trial court’s decision.
I. Facts
On December 9, 2009, the Petitioner and his cousin, Jim Ward, were together
at Mr. Ward’s home in Wayne County, West Virginia. The two men had been drinking and
both were intoxicated. They got into an altercation, which evolved into Mr. Ward stabbing
the Petitioner twice with a bayonet. The Petitioner, in turn, got the bayonet from Mr. Ward
and stabbed his cousin in the back three times, killing him.
1
The Petitioner was originally sentenced on August 26, 2011, following his jury
conviction on July 29, 2011. The Petitioner was re-sentenced on September 14, 2012, for
appellate purposes.
1
The Petitioner was taken to Three Rivers Medical Center in Louisa, Kentucky,
for treatment of his injuries. He underwent surgery and received pain medicine.2
Trooper R. J. Drake of the West Virginia State Police3 went to the medical
center to interview the Petitioner as part of his investigation into Mr. Ward’s murder. Shortly
after midnight on December 10, 2009, Trooper Drake took a statement from the Petitioner.
The interview lasted about thirty minutes and was videotaped. During this time, Trooper
Drake informed the Petitioner that the officer was outside his jurisdiction, that he was not
arresting the Petitioner, that he was not fully aware of what was going on, although he knew
that Mr. Ward was dead, that criminal charges may be pending, and that the Petitioner may
be arrested in the near future for murder. Trooper Drake also confirmed that the Petitioner
could read and understood English. Trooper Drake gave the Petitioner his Miranda4 rights
and confirmed with the Petitioner that he understood those rights. The officer then asked the
Petitioner to sign a waiver of Miranda form.
The Petitioner gave Trooper Drake a statement about the events leading up to
his cousin’s death. The Petitioner stated that both he and his cousin had been drinking. The
2
According to the record, the Petitioner was taking Demerol and Percocet for his pain.
3
Trooper Drake was accompanied by another state trooper.
4
See Miranda v. Arizona, 384 U.S. 436 (1966).
2
two argued about money. The Petitioner stated that his cousin, Mr. Ward, got up and pulled
“a big sword5” out of the case and told the Petitioner that he was going to kill him. The
Petitioner stated that Mr. Ward stabbed him two times. The Petitioner stated that he grabbed
the sword by the blade and the next thing he knew Mr. Ward was down and the Petitioner
“must have hit him.” The Petitioner stated he must have hit Mr. Ward “two or three” times
to get him off the Petitioner. The Petitioner could not remember where he had struck his
cousin.
The Petitioner was indicted by a grand jury for the murder of Mr. Ward on
March 2, 2010. The Petitioner moved to suppress his videotaped statement that he gave to
Trooper Drake. In the motion, the Petitioner admitted that he was not under arrest at the time
the statement was made and that he signed a waiver of rights form. Nonetheless, the
Petitioner contended that “he was under the influence of medications which rendered him
incapable of voluntarily and knowingly waiving his constitutional right to remain silent and
to be represented by an attorney at this critical stage of the criminal investigation against
him.”
On October 4, 2010, the trial court held a suppression hearing regarding the
Petitioner’s statement. During the hearing, the Petitioner’s counsel conceded that his motion
5
The sword was later identified as a bayonet.
3
was not predicated upon the Petitioner not receiving his Miranda warnings, as the Petitioner
stated that he had signed a Miranda form, referring to the waiver signed by the Petitioner.
Additionally, the Petitioner’s counsel also conceded that the motion was not based upon any
coercion or threats as he stated:
I think the officers were there to take a statement from him and
didn’t do anything wrong. It’s just that under the circumstances,
with his hospital condition, having just gone through surgery,
having been on pain medication for the entire day, we feel that
that raises an issue as to whether his statement was knowing,
whether he knew the rights that he was waiving in light of all
the medication that he was . . . undergoing at the time.
The Petitioner, however, argued that “it’s the state’s burden to establish that the statement
in this case, which was given by Mr. Marcum in his hospital room after his surgery, was a
knowing and voluntary waiver.” The trial court responded: “I think you have to raise the
issue, what it is. I think you have to put something on, whether it’s – you have to make the
issue – raise the issue. I don’t think you have the burden, but I do think you have to raise
which issues we’re talking about. Is it knowing? Is it voluntary? Is it both?” The
Petitioner’s counsel countered: “Okay. That’s fair.”
In seeking to ascertain exactly what issue the Petitioner sought to have resolved
regarding the statement he gave to police in light of the concessions made, the trial court
found that the Petitioner was raising a “knowing issue and understanding issue,” and that
essentially “I think what you’re saying is either his medical state made him in such a position
4
that he did not understand, know what he was signing or know the statement that he was
giving.” The Petitioner’s counsel agreed with the circuit court’s assessment of the motion
to suppress. The Petitioner’s counsel then stated: “Then let’s swear [in] . . . Mr. Marcum .
. . .”
The Petitioner testified that he was in pain and did not feel like he “was all
there” or was “groggy.” Despite this feeling, however, the Petitioner stated that he
remembered the officers coming to get a statement from him. When he gave the statement,
he remembered being informed of his Miranda rights and he remembered signing the
Miranda rights waiver form. He also stated that he agreed to give the statement and
understood that he could stop the statement at any time, but did not choose to do so. He
testified that he gave the officer his side of the story. He further stated that he did not have
any trouble reading and writing. The Petitioner also testified that the officers did not threaten
or coerce him. The Petitioner, however, stated that he did not know that he was waiving his
constitutional rights when he initialed the form and signed his name.
After the Petitioner testified, the trial court found that “I think his testimony
has raised some issues, at least on the knowing and the more narrow issue, his saying that it
may have – that the medication may have reduced his voluntariness to provide the
statement.” The trial court then allowed the State to put on evidence regarding this issue.
5
Trooper Drake testified that the Petitioner appeared to be coherent and understood the
questions he asked. According to the trooper, the Petitioner responded in an appropriate
manner to the questions. Further, after he gave the statement, he was asked to go over the
statement again and the Petitioner recited his statement a second time in a manner consistent
with the first time.
By order entered October 21, 2010, the trial court denied the motion to
suppress. The court determined that the statement “given by the Defendant was voluntarily
and knowingly given after the Defendant intelligently and knowingly waived his
constitutional rights.” The issue came up again on July 29, 201l, during the jury instruction
conference. The Petitioner offered an instruction concerning the jury’s consideration of
whether the statement was freely and voluntarily given.6 The circuit court, in reviewing the
6
The proposed instruction that was given to the jury was as follows:
The Court has admitted into evidence a statement made
by Mr. Marcum to police officers. If you believe by a
preponderance of the evidence that this statement was made by
the Defendant freely and voluntarily, as assessed under the
totality of the surrounding circumstances, both the
circumstances of the Defendant and the details of the
interrogation, then you may consider such statement as part of
the evidence in the case and you may give it such weight and
take part of such statement – such weight and credit, as you may
believe or disbelieve all or any parts of such statements.
However, if you do not believe that the statement was freely and
voluntarily made to the police officers, then you may reject the
(continued...)
6
instruction, stated “I thought the standard was you had to raise it [referring to the issue of
voluntariness]. The circuit court then stated: “I agree with you my understanding of the law
was wrong. I don’t know that you would have had to put him [referring to the Petitioner] on,
and I would have given this instruction whether you would have put him on or not.” There
was no other issue or objection raised by the Petitioner at this time regarding the manner in
which the trial court had conducted the suppression hearing.
On August 29, 2011, at the conclusion of all the evidence, the jury convicted
the Petitioner of second degree murder. The Petitioner was sentenced to a determinate term
of forty years in prison and now appeals.
II. Standard of Review
This Court previously has held that “‘[t]he trial court has wide discretion as to
the admission of confessions and ordinarily this discretion will not be disturbed on review.’
Syllabus point 2, State v. Lamp, 163 W. Va. 93, 254 S.E.2d 697 (1979).” Syl. Pt. 2, State v.
Woods, 169 W. Va. 767, 289 S.E.2d 500 (1982). We, however, also held in syllabus point
two of State v. Farley, 192 W. Va. 247, 452 S.E.2d 50 (1994), that
[t]his Court is constitutionally obligated to give plenary,
independent, and de novo review to the ultimate question of
6
(...continued)
statement from any consideration.
7
whether a particular confession is voluntary and whether the
lower court applied the correct legal standard in making its
determination. The holdings of prior West Virginia cases
suggesting deference in this area continue, but that deference is
limited to factual findings as opposed to legal conclusions.
Keeping the foregoing standards of review in mind, we examine the issues raised by the
Petitioner concerning the admission of his statement.
III. Analysis
The Petitioner argues that the trial court erred in the manner it conducted the
suppression hearing concerning his videotaped statement. The Petitioner maintains that the
trial court erroneously shifted the burden of proof to him to proceed first and produce
evidence showing that the statement was not voluntary. As the Petitioner argues, “the
defendant was required to shoulder the burden to obtain the right to have a suppression
hearing, and[] the State thereby gained the advantage of being able to cross-examine the
defendant without showing first his statement was voluntary.” Conversely, the Respondent
argues that the Petitioner never objected to the procedure put in place by the circuit court
regarding the suppression hearing.
It is well-established law that
[t]he special safeguards outlined in Miranda are not
required where a suspect is simply taken into custody, but rather
only where a suspect in custody is subjected to interrogation. To
the extent that language in State v. Preece, 181 W. Va. 633, 383
8
S.E.2d 815 (1989), and its progeny, may be read to hold
differently, such language is expressly overruled.
Syl. Pt. 8, State v. Guthrie, 205 W. Va. 326, 518 S.E.2d 83 (1999). “Miranda rights are not
triggered unless there is custody[.]” Farley, 192 W. Va. at 254 n.10, 452 S.E.2d at 57 n.10
(citing State v. George, 185 W. Va. 539, 408 S.E.2d 291 (1991)).
In this case, the Petitioner conceded in his motion to suppress and during the
hearing on that motion that he was not in custody at the time he gave a statement. The
safeguards outlined in Miranda, therefore, were not required and whether the Petitioner
waived his Miranda rights is not an issue. See id. Further, notwithstanding the Petitioner
not being taken into custody, he admitted that the state trooper had given him his Miranda
warning and that the Petitioner had signed a waiver of rights form. Finally, the Petitioner
admitted, prior to any request for evidence by the trial court, that the Petitioner was not
coerced and that the state police officers did nothing improper.
Our law is well-established that
“‘[t]he State must prove, at least by a preponderance of
the evidence, that confessions or statements of an accused which
amount to admissions of part or all of an offense were voluntary
before such may be admitted into the evidence of a criminal
case.’ Syllabus point 5, State v. Starr, 158 W. Va. 905, 216
S.E.2d 242 (1975).”
Woods, 169 W. Va. at 767, 289 S.E.2d at 501, Syl. Pt. 1. We, however, also have enunciated
9
the following law in syllabus point two of State v. Potter, 197 W. Va. 734, 478 S.E.2d 742
(1996) that
[w]hen a suspect willingly goes to the police station for
questioning at the request of the investigating officer, and the
suspect responds that he or she wishes to give a statement
despite the officer’s warnings regarding the severity of the
allegations against the suspect, such statement is admissible as
a voluntary confession, unless the suspect can show that he or
she was in custody or that the statement was not voluntary.
(Emphasis added).
Additionally, under West Virginia Rule Evidence 611, “[t]he court shall
exercise reasonable control over the mode and order of interrogating witnesses and
presenting evidence so as to (1) make the interrogation and presentation effective for the
ascertainment of the truth . . . .” This Court also held in syllabus point two of State v. Fields,
225 W. Va. 753, 696 S.E.2d 269 (2010), “[t]o safeguard the integrity of its proceedings and
to insure the proper administration of justice, a circuit court has inherent authority to conduct
and control matters before it in a fair and orderly fashion.”
Our review of the record reveals that the sole issue before the trial court during
the suppression hearing was whether the Petitioner’s voluntariness in giving the statement
was impacted by the medications that he was taking at the time he spoke with Trooper Drake.
The circuit court required the Petitioner to produce some evidence on the issue he raised in
10
his motion, prior to requiring the State to produce its evidence of voluntariness. In light of
the Petitioner’s concessions that he was not in custody, had signed a waiver of his Miranda
rights, had not been coerced, and that the state police had done nothing wrong, the circuit
court had the right under Rule 611 to change the order of production of the evidence. The
circuit court did not alter the burden of proof, it merely required the Petitioner to go first in
producing evidence regarding how the medications made him incapable of voluntarily and
knowingly waiving his constitutional right to remain silent. Even if the State had produced
its evidence first at the suppression hearing, the Petitioner would still have had to offer
evidence to show that he did not remember giving the statement, that the statement was not
knowingly given or that the statement was not voluntary. See Potter, 197 W. Va. at 734, 478
S.E.2d at 742. Moreover, the Petitioner did not challenge the procedure used by the trial
court or object to the circuit court “requiring” him to testify. As the record indicates, the trial
court did not require the Petitioner to testify, rather, it was the Petitioner’s counsel who called
the Petitioner to testify during the hearing. We have often stated that “[g]enerally the failure
to object constitutes a waiver of the right to raise the matter on appeal.” State v. Asbury, 187
W. Va. 87, 91, 415 S.E.2d 891, 895 (1992); see also Syl. Pt. 1, in part, Mowery v. Hitt, 155
W. Va. 103, 181 S.E.2d 334 (1971) (“[T]his Court will not decide nonjurisdictional questions
which were not considered and decided by the court from which the appeal has been taken.”).
The Petitioner’s second assignment of error is that the circuit court erred in
11
finding that his statement was voluntarily given to the police. The Respondent argues that
the State proved by a preponderance of the evidence that the statement was admissible.
This Court stated in Potter:
Where the question on appeal is whether a confession
admitted at trial was voluntary and in compliance with Miranda
with respect to issues of underlying or historic facts, a trial
court’s findings, if supported in the record, are entitled to this
Court’s deference. However, there is an independent appellate
determination of the ultimate question as to whether, under the
totality of the circumstances, the challenged confession was
obtained in a manner compatible with the requirements of
Miranda and the United States and West Virginia Constitutions.
197 W. Va. at 741, 478 S.E.2d at 749.
Reviewing the record in this case, we find that the circuit court correctly
determined that the Petitioner’s statement was voluntary. The circuit court found that the
Petitioner testified that he recalled making the statement to Trooper Drake, even though the
Petitioner was in the hospital and receiving pain medication. The circuit court found that the
Petitioner never asserted that he did not understand his rights. Further, the Petitioner
admitted that the statement did not result from any form of coercion. The circuit court also
found that one of the troopers, who was present when the Petitioner gave his statement,
testified that the Petitioner appeared to understand the questions and answers contained
within the statement. Finally, the circuit court viewed the videotape of the Petitioner’s
12
statement and found that “during the videotaped statement, the Defendant appeared to
understand the questions and answers given.” Under these circumstances, we conclude that
the circuit court did not err in admitting the Petitioner’s statement into evidence.
IV. Conclusion
Based upon the foregoing, the decision of the Circuit Court of Wayne County
is affirmed.
Affirmed.
13