FILED
December 6, 2022
STATE OF WEST VIRGINIA EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
State of West Virginia,
Plaintiff Below, Respondent
vs.) No. 21-0683 (Berkeley County CC-02-2020-F-38)
Brooklyn Zavion Johnson,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Brooklyn Zavion Johnson appeals his convictions for first-degree murder,
conspiracy to commit murder, and use of a firearm in the commission of a felony and the August
3, 2021, sentencing order of the Circuit Court of Berkeley County. 1 Petitioner argues that the
circuit court improperly (1) admitted evidence at trial that should have been excluded; (2) found
that his detention was lawful; (3) allowed evidence of prior bad acts at trial; (4) transferred him to
adult status; and (5) responded to a jury question during deliberations. Upon our review, we
determine that oral argument is unnecessary and that a memorandum decision affirming the circuit
court’s order is appropriate. See W. Va. R. App. Proc. 21.
1.
Petitioner initially argues that the circuit court erred in denying his motion to suppress
because the warrantless search of his motel room was an unlawful search, and, therefore, any
evidence that was obtained from the search should be suppressed as fruit of the poisonous tree.
The State maintains that petitioner, a minor, was in a motel room that was rented by another
individual, and that the search was appropriate because law enforcement officers were granted
voluntary consent to enter the motel room by the individual who rented the room. We apply the
following standard of review:
When reviewing a ruling on a motion to suppress, an appellate court should
construe all facts in the light most favorable to the State, as it was the prevailing
party below. Because of the highly fact-specific nature of a motion to suppress,
particular deference is given to the findings of the circuit court because it had the
1
Petitioner appears by counsel Christian J. Riddell. The State of West Virginia, by counsel
Patrick Morrisey and Lara K. Bissett, filed a response in support of the circuit court’s order.
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opportunity to observe the witnesses and to hear testimony on the issues. Therefore,
the circuit court’s factual findings are reviewed for clear error.
Syl. Pt. 1, State v. Lacy, 196 W. Va. 104, 468 S.E.2d 719 (1996). Further, “a circuit court’s denial
of a motion to suppress evidence will be affirmed unless it is unsupported by substantial evidence,
based on an erroneous interpretation of the law, or, based on the entire record, it is clear that a
mistake has been made.” Id. at 107, 468 S.E.2d at 722, Syl. Pt. 2, in part.
Addressing consent, this Court has held:
“[t]he general rule is that the voluntary consent of a person who owns or
controls premises to a search of such premises is sufficient to authorize such search
without a search warrant, and that a search of such premises, without a warrant,
when consented to, does not violate the constitutional prohibition against
unreasonable searches and seizures.” Syl. Pt. 8, State v. Plantz, 155 W.Va. 24, 180
S.E.2d 614 (1971), overruled in part on other grounds by State ex rel. White v.
Mohn, 168 W.Va. 211, 283 S.E.2d 914 (1981).
“‘Whether a consent to a search is in fact voluntary or is the product of
duress or coercion, express or implied, is a question of fact to be determined from
the totality of all the circumstances.’ Syllabus Point 8, State v. Craft, 165 W.Va.
741, 272 S.E.2d 46 (1980).” Syl. Pt. 4, State v. Worley, 179 W.Va. 403, 369 S.E.2d
706, cert. denied, 488 U.S. 895, 109 S.Ct. 236, 102 L.Ed.2d 226 (1988).
The circuit court, and this Court on review, should consider the following
six criteria when evaluating the voluntariness of a [consenter’s] consent: 1) the
[consenter’s] custodial status; 2) the use of duress or coercive tactics by law
enforcement personnel; 3) the [consenter’s] knowledge of his right to refuse to
consent; 4) the [consenter’s] education and intelligence; 5) the [consenter’s] belief
that no incriminating evidence will be found; and 6) the extent and level of the
[consenter’s] cooperation with the law enforcement personnel. While each of these
criteria is generally relevant in analyzing whether consent is given voluntarily, no
one factor is dispositive or controlling in determining the voluntariness of consent
since such determinations continue to be based on the totality of the circumstances.
Syl. Pts. 1-3, State v. Buzzard, 194 W. Va. 544, 461 S.E.2d 50 (1995).
Denying petitioner’s motion to suppress, the circuit court noted that the individual who
rented the room gave law enforcement officers verbal consent to the search the room. Consistent
with the circuit court’s findings, the appellate record reflects that the individual who gave consent
to law enforcement officers to search the room was not in custody nor under duress. Additionally,
law enforcement officers did not employ coercive tactics to procure his consent; instead, they
repeatedly advised him that he had the right to refuse consent to search the room. Moreover, the
circuit court found that petitioner, a minor, did not have a reasonable expectation of privacy in the
motel room. Reviewing this ruling in the light most favorable to the State, and giving particular
deference to the findings of the circuit court, we find that the individual who rented the room did
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voluntarily consent to allow law enforcement officers to search the room. Thus, we decline to
disturb this ruling on appeal.
2.
Petitioner also maintains that it was unlawful for the State to detain him because his
“seizure” was made without probable cause to believe that he had committed a felony, arguing that
law enforcement officers were merely investigating his involvement in a misdemeanor brandishing
incident at the time he was detained. The State, however, argues that it was appropriate for law
enforcement officers to detain petitioner because he was reported as a juvenile runaway and
because investigating officers had probable cause to believe that he had taken part in a murder.
This Court has held that
“[a]n officer, with authority to conserve the peace, may, without a warrant, arrest
any person who he, upon probable cause, believes has committed or is committing
a felony, though it afterwards appears that no felony was actually perpetrated.”
Syllabus Point 2, State v. Duvernoy, 156 W.Va. 578, 195 S.E.2d 631 (1973).
“‘Probable cause to make an arrest without a warrant exists when the facts
and the circumstances within the knowledge of the arresting officers are sufficient
to warrant a prudent man in believing that an offense has been committed.’ Point 1
Syllabus, State v. Plantz, (155) W.Va. (24) (180 S.E.2d 614).” Syllabus Point
3, State v. Duvernoy, 156 W.Va. 578, 195 S.E.2d 631 (1973).
Syl. Pts. 6 and 7, State v. Craft, 165 W. Va. 741, 272 S.E2d 46 (1980).
Based upon the trial testimony, law enforcement officers were looking for two young black
males in connection with a murder investigation at the time petitioner was detained. The males —
one described as having a light complexion and the second as having a dark complexion — were
reported to go by the name the “D.C. Boys,” operating a silver vehicle, and frequenting hotel rooms
in Berkeley County. One of the officers also learned that law enforcement had recently interacted
with a male, fitting the description of one of the suspects, who was in a silver Nissan with Virginia
license plates. The officer was provided a Facebook picture showing the suspects standing side by
side, and, at the time that petitioner was detained, he compared the photo and confirmed that he
had located his suspects. Inasmuch as the record suggests that the investigating officers had
probable cause to suggest that petitioner had committed a murder, they had authority to detain him
without a warrant. Accordingly, we find that the circuit court did not err in determining that
petitioner’s detention was lawful.
3.
Petitioner also argues that the court erroneously admitted evidence that should have been
excluded pursuant to Rule 404(b) of the West Virginia Rules of Evidence. Specifically, petitioner
contends that the court should have excluded the testimony from a witness that petitioner showed
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the witness a gun and told her he wanted to “pop off” two days before the murder. The State,
however, maintains, that the testimony was intrinsic to the crime and, therefore, did not implicate
Rule 404(b). We have held that “[a] trial court’s evidentiary rulings, as well as its application of
the Rules of Evidence, are subject to review under an abuse of discretion standard.” Syl. Pt. 4,
State v. Rodoussakis, 204 W. Va. 58, 511 S.E.2d 469 (1998). “‘Other act’ evidence is ‘intrinsic’
when the evidence of the other act and the evidence of the crime charged are ‘inextricably
intertwined’ or both acts are part of a ‘single criminal episode’ or the other acts were ‘necessary
preliminaries’ to the crime charged.” State v. LaRock, 196 W. Va. 294, 312 n.29, 470 S.E.2d 613,
631 n.29 (1996) (quoting United States v. Williams, 900 F.2d 823, 825 (5th Cir.1990)). Here, the
testimony that petitioner showed the witness a gun that he wanted to “pop off” was inextricably
intertwined to the crime charge. We agree with the State that Rule 404(b) was not implicated, as
the testimony was intrinsic, not extrinsic to the murder. Thus, we find that the circuit court did not
abuse its discretion in concluding that the evidence was admissible.
4.
Next, petitioner argues that the court erroneously transferred him to adult status without
providing notice of the transfer hearing to both of his parents. 2 The State responded that it provided
notice to his grandmother, who was his legal guardian, and his mother, and, therefore, it provided
appropriate notice. 3 Moreover, the State maintained that petitioner’s transfer was mandatory
2
Petitioner, a minor, also claims that the “greatest care” was not taken to assure his rights
were protected because his parents were not present during his interrogation. He argues that he
was given only a “perfunctory” Miranda warning and “was likely in an altered state.” However,
inasmuch as his brief failed to cite to the record or law in support of this argument, we decline to
address this argument.
3
West Virginia Code § 49-4-710 provides, in pertinent part, that
(a) Upon written motion of the prosecuting attorney filed at least eight days prior
to the adjudicatory hearing and with reasonable notice to the juvenile, his or her
counsel, and his or her parents, guardians or custodians, the court shall conduct
a hearing to determine if juvenile jurisdiction should or must be waived and the
proceeding transferred to the criminal jurisdiction of the court. Any motion filed in
accordance with this section is to state, with particularity, the grounds for the
requested transfer, including the grounds relied upon as set forth in subsection (d),
(e), (f) or (g) of this section, and the burden is upon the state to establish the grounds
by clear and convincing evidence. Any hearing held under this section is to be held
within seven days of the filing of the motion for transfer unless it is continued for
good cause.
...
(d) The court shall transfer a juvenile proceeding to criminal jurisdiction if there
is probable cause to believe that:
(continued . . . )
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pursuant to West Virginia Code § 49-4-710(d) because he was charged with an enumerated
offense.
The circuit court’s application of the transfer statute is reviewed de novo. State v. Larry T.,
226 W. Va. 74, 77, 697 S.E.2d 110, 113 (2010) (citing Syl. Pt. 1, Crystal R.M. v. Charlie A.L., 194
W. Va. 138, 459 S.E.2d 415 (1995)). Further, an order transferring a juvenile to adult jurisdiction
may only be set aside where the order is “clearly wrong or against the plain preponderance of the
evidence[.]” Syl. Pt. 1, in part, State v. Bannister, 162 W. Va. 447, 250 S.E.2d 53 (1978). Upon
our review of the record, petitioner’s legal guardian and his mother were given notice of his
transfer. Moreover, murder is an enumerated offense in the transfer statute that required that
petitioner be transferred to adult status. W. Va. Code § 49-4-710(d)(1). Accordingly, we decline
to find that the circuit court’s order transferring petitioner to adult status was clearly wrong or
against the plain preponderance of the evidence, and, therefore, refuse to disturb this ruling on
appeal.
5.
Finally, petitioner maintains that the circuit court improperly responded to the following
jury question:
On page 9 the instructions read, [“and] by acting with another contributed to the
criminal act is criminally liable for such as offense as if he were the sole
perpetrator[.]”. . . . [I]s it a correct understanding of our instructions that if he was
in the car he is guilty of first degree murder[?]
After considering briefing and arguments from the parties, the court provided the jury the
following supplemental instruction:
merely witnessing a crime without intervention does not make a person a party to
its commission unless this interference was a duty and his non-interference was one
of the conditions of the commission of the crime or unless his non-interference was
designed by him and operated as an encouragement to or protection of the
perpetrator . . . . [Proof] that the defendant was present at the time and place of the
crime was committed is a factor to be considered in determining guilt along with
(1) The juvenile is at least fourteen years of age and has committed the crime of
treason under section one, article one, chapter sixty-one of this code; the crime of
murder under sections one, two and three, article two of that chapter; the crime
of robbery involving the use or presenting of firearms or other deadly weapons
under section twelve, article two of that chapter; the crime of kidnapping under
section fourteen-a of article two of that chapter; the crime of first degree arson under
section one, article three of that chapter; or the crime of sexual assault in the first
degree under section three, article eight-b of that chapter[.]
Emphasis added.
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other circumstances such as the defendant’s association with or relation to the
perpetrator and his conduct before and after the commission of the crime.
This Court has noted that “a ‘trial court has discretion in determining how best to respond
to a jury question. We will review any such response for an abuse of discretion.’” State v. Davis,
220 W. Va. 590, 593, 648 S.E.2d 354, 357 (2007) (quoting People v. Sanders, 368 Ill.App.3d 533,
306 Ill.Dec. 549, 857 N.E.2d 948, 952 (2006)). Here, upon receiving the jury question, the court
sought guidance from the parties and eventually provided a supplemental instruction that was
consistent with existing law. Therefore, there is no basis for this Court to find that the circuit court
abused its discretion.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: December 6, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice C. Haley Bunn
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