State of West Virginia v. Chaz A. Simmons , 239 W. Va. 515 ( 2017 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2017 Term FILED
_______________
June 16, 2017
released at 3:00 p.m.
No. 15-0715 RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
_______________ OF WEST VIRGINIA
STATE OF WEST VIRGINIA, Plaintiff Below,
Respondent
v.
CHAZ A. SIMMONS, Defendant Below,
Petitioner
____________________________________________________________
Appeal from the Circuit Court of Roane County
The Honorable Thomas C. Evans, III, Judge
Criminal Action No. 14-F-23
AFFIRMED
____________________________________________________________
Submitted: May 3, 2017
Filed: June 16, 2017
Jason D. Parmer, Esq. Patrick Morrisey, Esq.
Appellate Advocacy Division Attorney General
Public Defender Services Benjamin F. Yancey, III, Esq.
Charleston, West Virginia Assistant Attorney General
Counsel for the Petitioner Charleston, West Virginia
Counsel for the Respondent
JUSTICE WALKER delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “Where the issue on an appeal from the circuit court is clearly a
question of law or involving an interpretation of a statute, we apply a de novo standard of
review.” Syllabus Point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415(1995).
2. “‘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 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).” Syllabus Point 2, State v. Johnson, 219 W.Va.
697, 639 S.E.2d 789 (2006).
3. “As a general matter, a defendant may not assign as error, for the
first time on direct appeal, an issue that could have been presented initially for review by
the trial court on a post-trial motion.” Syllabus Point 2, State v. Salmons, 203 W.Va. 561,
509 S.E.2d 842 (1998).
i
4. “When a defendant assigns an error in a criminal case for the first
time on direct appeal, the state does not object to the assignment of error and actually
briefs the matter, and the record is adequately developed on the issue, this Court may, in
its discretion, review the merits of the assignment of error.” Syllabus Point 3, State v.
Salmons, 203 W.Va. 561, 509 S.E.2d 842 (1998).
5. “The West Virginia Rules of Criminal Procedure are the paramount
authority controlling criminal proceedings before the circuit courts of this jurisdiction;
any statutory or common-law procedural rule that conflicts with these Rules is
presumptively without force or effect.” Syllabus Point 5, State v. Wallace, 205 W.Va.
155, 517 S.E.2d 20 (1999).
6. Under Rule 12(f) of the West Virginia Rules of Criminal Procedure,
if a defendant fails to seek to suppress a confession or other inculpatory statement prior to
trial as required under Rule 12(b)(3), such failure constitutes waiver, absent a showing of
good cause.
7. Syllabus Point 1 of State v. Fortner, 150 W Va. 571, 148 S.E.2d 669(1966), has been superseded by Rule 12 of the West Virginia Rules of Criminal
Procedure and is of no force or effect.
ii
8. “‘Our prompt presentment rule contained in W. Va. Code, 62–1–5,
and Rule 5(a) of the West Virginia Rules of Criminal Procedure, is triggered when an
accused is placed under arrest. Furthermore, once a defendant is in police custody with
sufficient probable cause to warrant an arrest, the prompt presentment rule is also
triggered.’ Syl. Pt. 2, State v. Humphrey, 177 W.Va. 264, 351 S.E.2d 613 (1986).”
Syllabus Point 4, State v. Rogers, 231 W.Va. 205, 744 S.E.2d 315 (2013).
9. “‘The delay in taking a defendant to a magistrate may be a critical
factor [in the totality of circumstances making a confession involuntary and hence
inadmissible] where it appears that the primary purpose of the delay was to obtain a
confession from the defendant.’ Syllabus Point 6, State v. Persinger, [169] W.Va. [121],
286 S.E.2d 261 (1982), as amended.” Syllabus Point 1, State v. Guthrie, 173 W.Va. 290,
291, 315 S.E.2d 397 (1984).
10. “The delay between the time of the arrest or custodial interrogation
and the giving of a confession is most critical for prompt presentment purposes because
during this time period custodial confinement and interrogation can be used to attempt to
produce a confession.” Syllabus Point 2, State v. Wickline, 184 W.Va. 12, 399 S.E.2d 42(1990).
11. “Ordinarily the delay in taking an accused who is under arrest to a
magistrate after a confession has been obtained from him does not vitiate the confession
iii
under our prompt presentment rule.” Syllabus Point 4, State v. Humphrey, 177 W.Va.
264, 351 S.E.2d 613 (1986).
iv
WALKER, Justice:
Chaz A. Simmons appeals the July 21, 2015, Amended Order of the Circuit
Court of Roane County, West Virginia, entering a guilty verdict on a two count
Indictment for driving under the influence of alcohol (“DUI”). The circuit court
sentenced him to two to ten years for the felony Count I, DUI Resulting in Death, and
one year for the misdemeanor Count II, DUI Resulting in Injury.
On appeal to this Court, Mr. Simmons argues the circuit court erred in
admitting his statements to police into evidence at trial. Specifically, in his first
assignment of error, Mr. Simmons argues that the circuit court committed reversible error
for failing to fulfill its mandatory duty to conduct a hearing on the voluntariness of a
written (“first”) statement he signed while at the hospital shortly after the vehicular
accident. Mr. Simmons asserts that, pursuant to State v. Fortner, 150 W.Va. 571, 148
S.E.2d 669 (1966), this Court must remand this case for that hearing. In his second
assignment of error, Mr. Simmons argues that the circuit court committed reversible error
in admitting a recorded (“second”) statement into evidence at trial. He asserts that the
police delayed presenting him to the magistrate for the primary purpose of obtaining that
second statement in violation of the prompt presentment rule codified in West Virginia
Code § 62-1-5(a)(1) (2014) and Rule 5(a) of the West Virginia Rules of Criminal
Procedure.
1
Upon consideration of the parties’ briefs and arguments, the submitted
record and pertinent authorities, we affirm the order of the circuit court.
I. FACTUAL AND PROCEDURAL BACKGROUND
At approximately 2:34 a.m. on July 18, 2013, Mr. Simmons drove a truck
into a building located along Route 36 near Looneyville, Roane County, West Virginia,
killing a woman and seriously injuring a man while they slept. The police arrived at the
scene approximately twenty-five minutes later and instructed the first responders to
transport Mr. Simmons to Roane General Hospital (“RGH”) to be evaluated for any
injuries. Police arrested Mr. Simmons between 4:30 and 6:00 a.m. and subsequently
presented him to the magistrate between 8:00 a.m. and 10:00 a.m. that same morning.
On January 29, 2014, a Roane County Grand Jury issued a two count
Indictment charging Mr. Simmons with violation of West Virginia Code § 17C-5-2(a),
DUI Resulting in Death and West Virginia Code § 17C-5-2(c), DUI Resulting in Bodily
Injury.
On May 27, 2014, counsel for Mr. Simmons filed a motion to suppress all
“statements made by the defendant,” asserting that “[a]ny statement taken from the
defendant was not free and voluntary.” The motion was not specific as to what statement
or statements Mr. Simmons was seeking to suppress. Two days later, on May 29, 2017,
2
the circuit court held a pre-trial hearing for the presentation of arguments on the motion
to suppress.
Sergeant Matthew “Bo” Williams (“Deputy Williams”)1 testified regarding
the second statement he obtained from Mr. Simmons after his arrest. Deputy Williams
testified that he arrested Mr. Simmons at RGH between 4:30 a.m. and 6:00 a.m. With
respect to the time period between Mr. Simmons’s arrest and his presentment to the
magistrate, Deputy Williams testified as follows:
He was taken to the sheriff’s department, placed in the
holding cell while I – I believe while I worked on the search
warrant for the vehicle, and then after that he was taken from
the cell, we went back into the kitchen area, conducted our
interview and then he was, I believe, taken back to the cell
while I finished my criminal complaint, and then we went to
magistrate court.
***
And our – the processing – our processing is basically a
criminal complaint, fingerprints, CDR, and then they go to
magistrate court. And then they’re in – anything else we do
after the fact so that we don’t waste a lot of time before hand
and waste people’s time, judge’s time and stuff.
1
At the time of the vehicular accident on July 18, 2013, Matthew “Bo” Williams
was a deputy employed by the Roane County Sheriff’s Office. At the time of the
suppression hearing on May 29, 2015, he had changed employment and now worked for
the City of Spencer as a sergeant. For the sake of simplicity, we refer to Sergeant
Williams as Deputy Williams.
3
With respect to the interview itself, Deputy Williams testified that he filled
out the Miranda2 form and read the entirety of the document to Mr. Simmons in the
presence of State Police Sergeant Fred Hammick. He testified that the interview took
place in the “kitchen/interrogation” room at the table in the Roane County Sheriff’s
Department. According to Deputy Williams, the process he uses when taking a
statement is to read each question and put a check-mark beside that line and turn the
paper over to the suspect to sign by each line. He testified that when he is finished with
the whole form, he puts an “X” by the signature line for the waiver of rights and turns the
form over to the suspect to sign and date. Deputy Williams testified that he advised Mr.
Simmons at the time of the interview that he was under arrest. He further testified that
Mr. Simmons signed the waiver form and gave a second statement confessing to driving
the truck into the building off Route 36, killing Kelly Casto and injuring William Cottrell.
Deputy Williams indicated that he recorded the statement on a disc.
In response to various questions about how he conducted the interview,
Deputy Williams testified as follows:
Q: Was Mr. Simmons handcuffed at the time?
A: I don’t believe so.
***
2
Miranda v. Arizona, 384 U.S. 436 (1966).
4
Q: Did he ever ask to stop the interview?
A: No, sir.
***
Q: At any time did he ask this statement to stop?
A: No.
***
Q: Were there any threats or promises made to him?
A: No, sir.
***
Q: During the course of the statement, did you
promise him anything, lenience, or that you [would] put in a
good word [with] the prosecuting attorney?
A: I don’t believe so.
As to questions regarding Mr. Simmons’s demeanor, Deputy Williams
reported that he was emotional, but not belligerent or extremely intoxicated. He further
explained that Mr. Simmons could understand questions, initial the forms, sign his name,
and read the Miranda form, all without difficulty.
Deputy Williams testified that he recorded the second statement taken at
7:30 a.m., and that the magistrates are usually available between 8:30 a.m. and 9:00 a.m.
When asked what time he took Mr. Simmons to the magistrate, Deputy Williams stated
5
that he first had to finish processing paperwork after the interview, but it was “anywhere
between 8:00 and 10:00 probably.” As a final question, the prosecutor asked Deputy
Williams, “[w]as there any intended delay in taking him up to the magistrate?” Mr.
Simmons responded, “[n]o, sir.”
Thereafter, the circuit court ruled that the second statement could be
admitted into evidence at trial. In response to Mr. Simmons’s argument that the State
violated the prompt presentment rule, the court reasoned:
There is no evidence here that this man was impaired
to the extent that he could not understand what his
constitutional rights were. There’s no evidence of police
mistreatment, extended delays, any of that. What the
policeman was doing here [were] legitimate law enforcement
activities. The delay was occasioned by the requirement[s]
under state law that the policeman process the person who is
arrested and that includes fingerprinting and other steps in the
processing of a person that’s arrested. All that’s mandated by
state law. In addition, some of the delay here was obviously
occasioned by the application for these two warrants or at
least one of the warrants. So there’s no evidence that this man
was promised anything or threatened in any way [or that] the
police used other unlawful [i]nducements.
The trial took place on February 10, 11, and 12, 2015. The State called
West Virginia State Police Corporal Pete Fisher to testify about the circumstances
surrounding the first statement taken from Mr. Simmons. Corporal Fisher first saw Mr.
Simmons in the emergency room. Corporal Fisher testified that he did not arrest or
detain Mr. Simmons, but he did take a statement from him. After the first statement was
6
admitted into evidence without objection from Mr. Simmons, Corporal Fisher answered
questions from defense counsel regarding whether Mr. Simmons drove the truck that
night. Corporal Fisher explained:
When I first got there, I asked him what happened this
evening, he said – and this is where the statement comes in,
when I asked him, he says – and this is prior to taking the
statement – that I was driving my truck and I got in an
accident. I then get my paper out, I write the statement of
everything that was written there.
West Virginia State Police Sergeant Fred Hammick also testified at trial
that he assisted Deputy Williams. Sergeant Hammick affirmed that he performed the
search of the pickup truck and that he was present when Deputy Williams recorded the
second statement. He testified that “… [Deputy Williams] wanted to do an interview
with the suspected driver of the vehicle, and we did a search warrant as well.”
At the close of the State’s case-in-chief, counsel for Mr. Simmons made a
motion for acquittal arguing that the State’s evidence was insufficient to support a case
for DUI because the State had not presented evidence on all of the elements of that crime.
Mr. Simmons did not raise any objection regarding admission of the first or second
statements at this time. The circuit court denied the motion on the grounds that the
evidence was sufficient to support both counts of DUI.
7
Mr. Simmons presented witnesses and testified on his own behalf. He did
not testify that Deputy Williams or Sergeant Hammick interrogated him or engaged in
conduct that in any way coerced or induced him to give an incriminating statement.
When asked if he was so intoxicated he did not know what he was doing when he signed
the Miranda waiver form, Mr. Simmons testified “I’m not saying that at all. I was in
shock.”
At the close of the trial, the jury returned a verdict convicting Mr. Simmons
on both counts of DUI. Thereafter, Mr. Simmons filed a post-trial motion for a new
trial.3 At the hearing on March 17, 2015, Mr. Simmons argued that the second statement
should not have been admitted because he was intoxicated and therefore, could not
knowingly and intelligently have waived his Miranda rights. Mr. Simmons did not argue
at this hearing that the circuit court admitted the second statement into evidence at trial in
violation of the prompt presentment rule. He also did not argue that the circuit court
erroneously admitted the first statement for failure to fulfill his mandatory duty to
conduct the voluntariness hearing. The circuit court stated at the hearing “I’m not
presented with anything to change the ruling on the admissibility of Chaz’s [Mr.
Simmons’s] statement . . . .” Likewise, in the order entered on April 6, 2015, the circuit
3
Mr. Simmons also filed a post-trial motion for acquittal based upon the same
arguments made at the close of the State’s case-in-chief. The circuit court denied this
motion as well.
8
court formally ruled that “[u]pon consideration of argument of counsel the Court finds no
reason to change any prior rulings concerning the admission of the Defendant’s
[Simmons’s] [second] statement . . . .” Thus, the court denied the motion for a new trial
and set the hearing date for sentencing. The circuit court subsequently sentenced Mr.
Simmons to two to ten years in the custody of the Department of Corrections for the
felony conviction on Count I (DUI Resulting in Death) and one year in the custody of the
Regional Jail Authority for the misdemeanor conviction on Count II (DUI Resulting in
Injury). The circuit court ordered that Mr. Simmons serve the sentences consecutively.
The circuit court entered the July 21, 2015, Amended Order,4 and Mr. Simmons filed the
instant appeal.
II. STANDARD OF REVIEW
The first assignment of error Mr. Simmons raises relates to the duty of the
circuit court, as a matter of law, to conduct a voluntariness hearing on the admissibility of
his first statement. “Where the issue on an appeal from the circuit court is clearly a
question of law or involving an interpretation of a statute, we apply a de novo standard of
review.” Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415(1995).
4
Mr. Simmons’s appellate counsel was appointed on July 1, 2015, after entry of
the verdict order. For purposes of appeal, the circuit court entered the July 21, 2015
Amended Order, which the Public Defender Appellate Division appealed on July 24,
2015.
9
Mr. Simmons’s next assignment of error relates to the circuit court’s ruling
at the pre-trial hearing permitting the admission of his second statement into evidence at
trial. In this regard, 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 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).
Syl. Pt. 2, State v. Johnson, 219 W.Va. 697, 639 S.E.2d 789 (2006).
With these standards of review in mind, we proceed with addressing the
merits of the issues before us.
III. DISCUSSION
Mr. Simmons raises two assignments of error in this appeal. The first issue
is whether the circuit court had a mandatory duty to conduct a hearing, sua sponte, out of
the presence of the jury, as to the voluntariness of his first statement prior to its admission
into evidence at trial. The second issue is whether Mr. Simmons’s second statement
should have been admitted into evidence, as Mr. Simmons argues it was obtained in
violation of the prompt presentment rule.
10
A. Mandatory Duty of Circuit Court to Conduct Voluntariness Hearing
Mr. Simmons argues that West Virginia law establishes that a circuit court
has a mandatory duty to conduct a voluntariness hearing on its own motion, despite the
fact that he failed to file a motion to suppress the first statement or raise the issue in a
post-trial motion. He asserts that the first statement was not voluntarily given and should
have been excluded from evidence because the record shows that he was intoxicated and
in a custodial environment. The State argues that the mandatory hearing requirement
does not apply in this case because Mr. Simmons was coherent when he signed the first
statement and it was taken prior to any action by Corporal Fisher or any other police
officer and before any accusation, arrest, or custodial interrogation.
Before considering Mr. Simmons’s first assignment of error, however, we
must first consider whether the issue is properly before this Court. In State v. Salmons,
203 W.Va. 561, 509 S.E.2d 842 (1998), we held “[a]s a general matter, a defendant may
not assign as error, for the first time on direct appeal, an issue that could have been
presented initially for review by the trial court on a post-trial motion.” Id. at Syl. Pt. 2.
We have, in criminal cases presenting a narrow set of circumstances on a significant
issue, exercised our discretion under the “raise or waive” rule as follows:
When a defendant assigns an error in a criminal case
for the first time on direct appeal, the state does not object to
the assignment of error and actually briefs the matter, and the
record is adequately developed on the issue, this Court may,
in its discretion, review the merits of the assignment of error.
11
Id. at Syl. Pt. 3. The facts in the record demonstrate that Mr. Simmons did not raise the
involuntariness of his first statement at the trial court level, and for purposes of appeal, he
has waived the issue. However, the State has not objected to the assignment of error and
actually briefed the matter. Thus, we find the record is adequately developed, and we
exercise our discretion to review the merits of this assignment of error given the narrow
circumstances under which our current common law imposes a mandatory duty on a trial
court to conduct a voluntariness hearing on its own motion, despite the obligation of a
criminal defendant to raise the issue prior to trial.
Whether the circuit court had a mandatory duty to conduct a pre-trial
voluntariness hearing regarding the first statement, in the absence of a motion to
suppress, is controlled by Rule 12 of the West Virginia Rules of Criminal Procedure.
Specifically Rule 12(b)(3) requires that a motion to suppress an inculpatory statement be
raised as follows:
(b) Pretrial motions. – Any defense, objection or request
which is capable of determination without the trial of the
general issue may be raised before trial by motion. Motions
may be written or oral at the discretion of the judge. The
following must be raised prior to trial:
***
12
(3) motions to suppress evidence unless the grounds
are not known to the defendant prior to trial; . . .5
***
W.Va. R. Crim. Pro. 12(b)(3) (footnote added).
Rule 12(f) sets out the consequences of a defendant’s failure to properly
move the trial court to suppress a confession:
(f) Effect of Failure to Raise Defenses or Objections.
Failure by a party to raise defenses or objections or to make
requests which must be made prior to trial, at the time set by
the court pursuant to subdivision (c), or prior to any extension
thereof made by the court, may constitute waiver thereof, but
the court for cause shown should grant relief from the waiver.
W.Va. R. Crim. Pro. 12(f).
A review of these provisions of Rule 12 establishes three points
unequivocally. First, the rule does not require the circuit court, sua sponte, to conduct a
hearing prior to trial, out of the presence of the jury, to determine whether an inculpatory
statement is voluntary. Second, the rule imposes an obligation on a defendant to raise the
issue. And third, the rule establishes that if a defendant fails to timely raise the issue of
the voluntariness of his or her inculpatory statement, the issue may be deemed waived.
5
Nothing in the record suggests that Mr. Simmons was unaware of his first
statement prior to trial.
13
This Court summarily addressed the issue of waiver under Rule 12 in State
v. Strock, 201 W.Va. 190, 495 S.E.2d 561 (1997). In Strock the defendant was charged
with alcohol related driving offenses and providing false information to a police officer.
The defendant was convicted of the charges in magistrate court. The defendant brought a
de novo appeal in circuit court. Although the defendant made an oral confession when he
was arrested, he failed to ask the circuit court to suppress the statement prior to trial.
After his confession was introduced into evidence, the defendant moved the circuit court
to strike the testimony. The trial court denied the motion to strike. On appeal, the
defendant argued that the trial court erred in failing to strike his confession. We rejected
the argument succinctly as follows:
This Court believes that the appellant’s first claim on
appeal, that the trial court erred in failing to strike the
testimony relating to his statements, is without merit. Rule
12(b) of the West Virginia Rules of Criminal Procedure
specifically states: “The following must be raised prior to
trial: . . . (3) Motions to suppress evidence unless the grounds
are not known to the defendant prior to trial . . . [.]” The
Court believes that the appellant, by failing to move to
suppress the statements in issue, of which he was well aware,
prior to trial, effectively waived his right to challenge their
admission into evidence.
Id. at 192, 495 S.E.2d at 563. In Strock we said:
“The following must be raised prior to trial: . . . (3) Motions to
suppress evidence unless the grounds are not known to the defendant
prior to trial . . . [.]” Part, Rule 12(b), West Virginia Rules of
Criminal Procedure.
Id. at Syl. Pt. 1. See Walker v. Ballard, No. 12-0138, 2013 WL 1632113, at *17 (W. Va.
Apr. 16, 2013) (memorandum decision).
14
As such, consistent with our opinion in Strock, we now hold that under
Rule 12(f) of the West Virginia Rules of Criminal Procedure, if a defendant fails to seek
to suppress a confession or other inculpatory statement prior to trial as required under
Rule 12(b)(3), such failure constitutes waiver, absent a showing of good cause. See State
v. Sugg, 193 W.Va. 388, 403, 456 S.E.2d 469, 484 (1995) (“[f]ailure to make this motion
[to suppress] will under most circumstances constitute waiver under Rule 12(f) of the
Rules of Criminal Procedure.”). Likewise, under Rule 12 of the Federal Rules of
Criminal Procedure, defendants are required to raise the issue of the voluntariness of an
inculpatory statement, or the matter may be deemed waived. See, e.g., United States v.
Jones, 558 F. App’x 557, 560 (6th Cir. 2014) (objection to government’s technique in
obtaining confession was waived because of failure to file a pretrial suppression motion);
United States v. Lugo Guerrero, 524 F.3d 5, 11 (1st Cir. 2008) (motion to suppress filed
two-and-one-half months after the deadline set by court constitutes waiver); United States
v. Kirkland, 567 F.3d 316, 322 (7th Cir. 2009) (defendant must raise a suppression
motion prior to trial to avoid waiver or forfeiture as well as comply with any timing
requirements set by the district court); United States v. Nayyar, 221 F. Supp.3d 454
(S.D.N.Y. 2016) (a suppression motion that is not made before trial “is untimely,” and
may not be considered unless good cause shown).
15
Although it is clear that under Rule 12(b)(3) Mr. Simmons waived the issue
of the suppression of his first statement, he nonetheless contends that the issue is not
waived in reliance upon our holding in Syllabus Point 1 of State v. Fortner, 150 W.Va.
571, 148 S.E 2d 669 (1966), overruled in part by State ex rel. White v. Mohn, 168 W.Va.
211, 212, 283 S.E. 914 (1981), which states:
It is the mandatory duty of the trial court, whether
requested or not, to hear the evidence and determine in the
first instance, out of the presence of the jury, the
voluntariness of an oral or written confession by an accused
person prior to admitting the same into evidence, and the
failure to observe this procedure constitutes reversible error.
Syl. Pt. 1, Fortner. However, the holding in Fortner must be placed in its proper context.
The decision in Fortner was rendered prior to our adoption of Rule 12 of the West
Virginia Rules of Criminal Procedure in 1981. Fortner created a prophylactic procedure
to protect the rights of defendants from coerced confessions at a time when no criminal
procedures existed. With the adoption of these procedural rules, and Rule 12 in particular,
we put a system in place to protect the rights of defendants in all aspects of criminal
proceedings. Nevertheless, even though beginning in 1981 Rule 12 specifically addressed
and controlled the issue of determining the voluntariness of an inculpatory statement, our
cases continued to recognize the Fortner holding. See, e.g., State v. Holpp, No. 14-0758,
2015 WL 1740293, at *2 (W.Va. Apr. 13, 2015) (memorandum decision); State v. Black,
227 W.Va. 297, 304, 708 S.E.2d 491, 498 (2010); State v. Haller, 178 W.Va. 642, 644,
363 S.E.2d 719, 721 (1987); State v. Gwinn, 169 W.Va. 456, 462, 288 S.E.2d 533, 537
(1982).
16
In the final analysis, Fortner conflicts with Rule 12, and when there is a
conflict between the rules of criminal procedure and a judicial opinion of this Court on
that subject, Syllabus Point 5 of State v. Wallace, 205 W.Va. 155, 517 S.E.2d 20 (1999),
instructs as follows:
The West Virginia Rules of Criminal Procedure are the
paramount authority controlling criminal proceedings before
the circuit courts of this jurisdiction; any statutory or
common-law procedural rule that conflicts with these Rules is
presumptively without force or effect.
Id. See State v. Davis, 178 W.Va. 87, 90, 357 S.E.2d 769, 772 (1987) (holding that
W.Va. R. Crim. Pro. 7(c)(1) supersedes the provisions of W. Va. Code § 62-9-1 (1931),
to the extent that the statute requires the indorsement of the grand jury foreman and
attestation of the prosecutor on the reverse side of the indictment), overruled on other
grounds, State ex rel. R.L. v. Bedell, 192 W.Va. 435, 452 S.E.2d 893 (1994); Reed v.
Wimmer, 195 W. Va. 199, 205, 465 S.E.2d 199, 205 (1995) (“[T]o the extent our prior
cases are inconsistent or incompatible with the West Virginia Rules of Evidence, they
have been implicitly overruled by Rule 402.”). In light of this holding in Wallace, we
now hold that Syllabus Point 1 of State v. Fortner, 150 W. Va. 571, 148 S.E.2d 669(1966), has been superseded by Rule 12 of the West Virginia Rules of Criminal
Procedure and is of no force or effect.
17
Notably, our recognition that Rule 12 does not require the circuit court to
conduct, sua sponte, a voluntariness hearing is consistent with federal law in general. For
instance, in the federal courts, a district court need not conduct a voluntariness hearing
unless the defendant objects to the admissibility of his or her statement. Wainright v.
Sykes, 433 U.S. 72 (1977). In Wainright, the Supreme Court of the United States
reversed an order in a federal habeas corpus proceeding in which the district court
ordered that the state court conduct a voluntariness hearing regarding an inculpatory
statement made by a defendant. The defendant argued that he was entitled to a
voluntariness hearing despite his own failure to object to the admissibility of his
statement prior to or at trial. Justice Rehnquist, writing the majority opinion for the
Court, noted the “[l]anguage in subsequent decisions of this Court has reaffirmed the
view that the Constitution does not require a voluntariness hearing absent some
contemporaneous challenge to the use of the confession.” Id. at 86. Moreover, the
Fourth Circuit Court of Appeals has held that a district court did not abuse its discretion
in concluding that the defendant was not entitled to a hearing on the voluntariness of an
incriminating statement because he failed to raise the issue until the day of trial. United
States v. Wilson, 895 F.2d 168, 173 (1990). The Fourth Circuit explained: “[c]ourts have
never interpreted the statute’s provisions [18 U.S.C. § 3501(1982) requiring pre-trial
voluntariness determination] as imposing a duty on the district court sua sponte to raise
the issue of voluntariness in the absence of a defendant’s objections.” Wilson, 895 F.2d
18at 172-73 (internal citations omitted). The Fourth Circuit confirmed that the waiver also
applied when raised for the first time on appeal:
[Defendant] now contends that the circumstances
surrounding the statement give rise to an inference of
involuntariness. [Defendant] admits that his trial counsel did
not file any motion to suppress the statement, but argues
nevertheless that the trial court had an obligation to review
the voluntariness of his statement sua sponte under United
States v. Powe, 591 F.2d 833, 847 (D.C. Cir. 1978). This
court has held, however, that the issue of voluntariness must
be timely raised or it is thereafter waived. United States v.
Wilson, 895 F.2d 168, 172-73 (4th Cir. 1990). Since the
voluntariness issue was never raised until appeal, it is not
properly before the court.
United States v. Campbell, 935 F. 2d 39, 43-44 (1991).
In the case at hand, Mr. Simmons argues that the admission of the first
statement taken at RGH entitles him to an automatic remand because the circuit court did
not, sua sponte, conduct a voluntariness hearing. However, while Mr. Simmons filed a
motion to suppress generally objecting to the admission of “any statement made by the
defendant,” his counsel only argued to suppress the second statement at the hearing. He
never asked to suppress the first statement. Moreover, when the prosecution moved to
admit the first statement into evidence at trial, counsel for Mr. Simmons stated “[n]o
objection.” In addition, counsel for Mr. Simmons cross-examined Corporal Fisher once
the circuit court admitted the first statement into evidence. This is not the conduct of a
defendant who, along with his counsel, wished to challenge his first statement as
involuntary.
19
Significantly, even after the circuit court read the jury verdict and at the
hearing on the post-trial motions, counsel for Mr. Simmons still did not challenge the
admission of the first statement into evidence. Based upon his failure to raise an
objection as required by Rule 12(b)(3), we hold that Mr. Simmons waived his right to a
voluntariness hearing on the admissibility of his first statement.
B. Prompt Presentment Rule
Mr. Simmons argues that Deputy Williams took him to the Roane County
Sheriff’s Office and failed to timely present him to a magistrate for the primary purpose
of obtaining an incriminatory statement. The State responds that the totality of the
circumstances do not establish that any delay was for the primary purpose of obtaining a
statement. The State further asserts that Deputy Williams performed good police work
and any delays were related to transportation from the hospital and necessary booking,
processing and preparation of the warrant to search the truck involved in the accident.
The prompt presentment rule is codified in West Virginia Code § 62-1­
5(a)(1)(2014):
An officer making an arrest under a warrant issued upon a
complaint, or any person making an arrest without a warrant
for an offense committed in his presence or as otherwise
authorized by law, shall take the arrested person without
unnecessary delay before a magistrate of the county where the
arrest is made.
20
Correspondingly, Rule 5(a) also provides that:
In general. - An officer making an arrest under a warrant
issued upon a complaint or any person making an arrest
without a warrant shall take the arrested person without
unnecessary delay before a magistrate within the county
where the arrest is made . . . .
W.Va. R. Crim. Pro. 5(a).
In providing guidance to the circuit courts as to whether an inculpatory
statement should be suppressed due to a violation of the prompt presentment rule, we
established in Syllabus Point 6 of State v. Persinger, 169 W.Va. 121, 286 S.E.2d 261(1982) that “[t]he delay in taking the defendant to a magistrate may be a critical factor
where it appears that the primary purpose of the delay was to obtain a confession from
the defendant.” Id. at 121, 286 S.E.2d at 263. We emphasized in Persinger that the
prompt presentment rule is “not subject to any precise time period.” Id. at 135, 286
S.E.2d at 270. Rather, the policy behind the rule is “not so much on the length of the
detention but whether the police were primarily using the delay in bringing the defendant
before a magistrate to obtain a confession from him.” Id. at 136, 286 S.E.2d at 270(footnote omitted).
Shortly thereafter, we refined our holding in Persinger to emphasize that
many factors in the particular circumstances of a case may apply when determining
whether a violation of the prompt presentment rule occurred:
21
“The delay in taking a defendant to a magistrate may be a
critical factor [in the totality of circumstances making a confession
involuntary and hence inadmissible] where it appears that the
primary purpose of the delay was to obtain a confession from the
defendant.” Syllabus Point 6, State v. Persinger, [169] W.Va. [121],
286 S.E.2d 261 (1982), as amended.
Syl. Pt. 1, State v. Guthrie, 173 W.Va. 290, 315 S.E.2d 397 (1984).
Nevertheless, in State v. McCartney, 228 W.Va. 315, 719 S.E.2d 785(2011), while we cited the principle established in Persinger and Guthrie, we noted that
our prior decisions on numerous occasions have found that delays in taking the accused
to the magistrate did not violate the prompt presentment rule. Id. at 325-26, 719 S.E.2d
at 795-96. While holding that there was no violation of the prompt presentment rule, we
took the opportunity to make this point by quoting State v. DeWeese, 213 W.Va. 339, 582
S.E.2d 786 (2003) as follows:
To be clear, merely detaining a defendant in jail under an
arrest warrant for fifteen hours before taking him/her to a
magistrate will not trigger a sanctionable violation of the
prompt presentment rule. A sanctionable violation occurs if
the purpose for detaining the defendant is to conduct an
interrogation to obtain an incriminating statement from the
defendant about his or her involvement in the crime for which
he or she was arrested.
Id. at 344 n.8, 582 S.E.2d at 791 n.8 (internal citations omitted) (emphasis added).
Likewise, in State v. Johnson, 219 W.Va. 697, 639 S.E.2d 789 (2006), the defendant
argued that the primary purpose for the delay in presenting him to the magistrate after his
arrest on charges of first-degree robbery was to “obtain an incriminating statement.” Id.22
at 702, 639 S.E.2d at 794. Rejecting his argument, we explained, “Johnson has produced
no evidence that the delay in his presentment was for the purpose of obtaining a
statement, and we can find no evidence of such a motive either.” Id. at 703, 639 S.E.2d at
795 (emphasis added). Thus, we found no violation of the prompt presentment rule.
With respect to the length of a delay, the prompt presentment rule is
triggered when the defendant is placed under arrest. Syl. Pt. 2, in part, State v.
Humphrey, 177 W.Va. 264, 351 S.E.2d 613 (1986). We also defined the scope of the
length of a delay in Humphrey when we stated, “[u]nder our prompt presentment rule, the
significant time period when an accused is in police custody is the time between the
arrest . . . and the time a statement is obtained from the accused.” Id. at 269, 351 S.E.2d
at 617-18. In other words, the delay which precedes the confession is most critical
because that is the window of opportunity for the police or the authorities to coerce or
induce a confession. In State v. Wickline, 184 W.Va. 12, 399 S.E.2d 42 (1990), we
explained:
The delay between the time of the arrest or custodial
interrogation and the giving of a confession is most critical
for prompt presentment purposes because during this time
period custodial confinement and interrogation can be used to
attempt to produce a confession.
Syl. Pt. 4, Wickline. See also, State v. Judy, 179 W.Va. 734, 739, 372 S.E.2d 796, 801
(1988) (“. . . the proper focus in prompt presentment cases is on delay which precedes a
confession.”).
23
Moreover, any delay in presentment after a statement is given does not
render the confession inadmissible. Again, in Humphrey, we held that “[o]rdinarily the
delay in taking an accused who is under arrest to a magistrate after a confession has been
obtained from him does not vitiate the confession under our prompt presentment rule.”
Syl. Pt. 4, Humphrey. (emphasis added).
Within that critical period, however, we have identified a number of
circumstances that are not part of the “delay” for purposes of determining if a violation of
the prompt presentment rule occurred. For instance, time spent by police in certain
activities such as transporting the defendant to the police headquarters or completing
normal booking, processing and paperwork must not be included in the time frame of any
“delay.” See State v. Rogers, 231 W.Va. 205, 211, 744 S.E.2d 315, 321 (2013) (driving
defendant to police barracks and normal booking procedure, including interview of
suspect after arrested if willing to give statement not included in calculating “delay”);
State v. Newcomb, 223 W.Va. 843, 866, 679 S.E.2d 675, 698 (2009) (being kept at scene
“for legitimate law enforcement purposes” not included in calculating “delay”); Wickline,
184 W.Va. at 17, 399 S.E.2d at 47 (finding one hour drive from crime scene to police
barracks not included in calculating “delay”); State v. Whitt, 184 W.Va. 340, 344, 400
S.E.2d 584, 588 (1990) (stating routine processing, side trip agreed to by defendant, and
subsequent inventory of stolen property not included in calculating “delay”); Judy, 179
W.Va. at 739; 372 S.E.2d at 801 (holding one hour delay “attributable in substantial part
24
to transportation and to the performance of routine administrative procedures”). See also,
Persinger, 169 W.Va. at 135, 286 S.E.2d at 270 (itemizing specific types of booking and
administrative procedures for processing arrests).
In the case at hand, Deputy Williams placed Mr. Simmons under arrest at
RGH and drove him from there to the Roane County Sheriff’s Office. This occurred
between 4:30 a.m. and 6:00 a.m. Deputy Williams testified at the suppression hearing
and at trial that upon arrival he prepared the warrant to search the truck that drove into
the building. He also stated that he did not talk to Mr. Simmons but kept an eye on him
through a camera placed in the jail cell area. When finished with the paperwork, Deputy
Williams took Mr. Simmons to the “kitchen/interrogation” room of the sheriff’s office
and proceeded with reading each line of the Miranda rights form to him, each of which
Mr. Simmons separately initialed. This all occurred in the presence of Sergeant
Hammick, according to the undisputed testimony. Deputy Williams then testified that all
three signed the form. After Mr. Simmons waived his Miranda rights, Deputy Williams
asked for a statement to which Mr. Simmons agreed by voluntarily giving a recorded
statement.6 The record reflects from Deputy Williams’s testimony that this process
started at about 7:30 a.m. on July 18, 2013, and did not take very long.
6
Despite having raised the issue of voluntariness of his second statement at the
suppression hearing, Mr. Simmons does not raise this assignment of error on appeal.
25
At that point, Deputy Williams fingerprinted Mr. Simmons, returned him to
the cell and arranged to have him taken to a magistrate who usually returned to duty at
around 8:30 a.m. Deputy Williams testified that he did not have an exact time but
estimated that he presented Mr. Simmons to the magistrate between 8:00 a.m. and 10:00
a.m. on July 18, 2013.
Based upon the window of opportunity that Deputy Williams and Sergeant
Hammick allegedly had to coerce or induce a confession from Mr. Simmons, the record
reveals nothing to support a violation of the prompt presentment rule. Between 4:30
a.m., the earliest Deputy Williams gave as an arrival time at the sheriff’s office, and
shortly after 7:30 a.m., the latest Deputy Williams gave as the time for completion of the
Miranda rights form and the recording of the second statement, is the critical time in the
case at hand “to attempt to produce a confession.” Syl. Pt. 4, in part, Wickline. From
these three hours, we must exclude the time for travel from RGH to the sheriff’s office,
for the preparation of the search warrant, and other processing. Additionally, none of the
time shortly after 7:30 a.m. until presentment to the magistrate is included in the “delay”
time-frame. More importantly, Mr. Simmons provides no argument or evidence that
persuades us to deviate from this general rule. See Syl. Pt. 4, Humphrey (“Ordinarily the
delay in taking an accused who is under arrest to a magistrate after a confession has been
obtained from him does not vitiate the confession under our prompt presentment rule.”)
(emphasis added).
26
With the minimal amount of time that must have remained, the record
reflects that Deputy Williams observed Mr. Simmons via camera while he processed the
necessary paperwork. Our review of the record does not reveal any other conduct or
activity that suggests any motive or purpose to coerce or induce a confession from Mr.
Simmons by Deputy Williams. Concurrently, Sergeant Hammick spent part of the
relevant time conducting the search of the truck, but as to the time he was at the sheriff’s
office, the record does not contain any evidence of statements, conduct or motive on his
part to coerce or induce Mr. Simmons into giving a confession.
The primary argument raised by Mr. Simmons is that Deputy Williams
delayed presenting him to the magistrate to keep him in the holding cell to sober him up
to give a statement. Deputy Williams’s testimony from the suppression hearing was:
Q. So your purpose for bringing him back to the
sheriff’s department, was to get a statement from him?
A. To get a statement and to process. I mean, I
don’t know what I’d do with them other then take them to the
sheriff’s office to process.
Deputy Williams responded to this question after explaining his normal
procedures for processing a suspect under arrest. In addition, Sergeant Hammick’s
testimony corroborated Deputy Williams’s statements regarding the processing needed in
the case: “. . . [Deputy Williams] wanted to do an interview with the suspected driver of
the vehicle, and we did a search warrant as well.” We find these statements regarding
27
interviewing a cooperative suspect uncharacteristic of a police officer determined to
coerce a confession. Furthermore, Mr. Simmons did not contradict the statements of
these police officers when he testified.
Our prior decisions raising a violation of the prompt presentment rule have
drawn a clear distinction between appropriate police conduct in interviewing a suspect
who wishes to give a voluntary statement and police conduct that reveals coercive or
inappropriate means of obtaining a confession. In Newcomb, after we concluded that the
police officers acted properly in holding the defendant at the crime scene for a reasonable
time to secure the scene, we quoted, with agreement, the circuit court’s response to the
defendant’s argument that the police violated the prompt presentment rule. The circuit
court stated that “it certainly is well within his [Deputy Sutherland’s] purview as an
officer to try and take a statement after giving the Defendant his rights and giving him an
opportunity to exercise those rights which the Defendant chose not to do.” Newcomb,
223 W.Va. at 867, 679 S.E.2d at 699.
As we stated in Persinger and repeated in Humphrey and other cases, the
primary purpose of the prompt presentment rule is to prohibit lengthy interrogations
aimed at coercing or inducing a “confession” out of a suspect. In the circumstances of
this particular case, there is no basis upon which to infer that Deputy Williams or
Sergeant Hammick would have such motives. Furthermore, Deputy Williams testified
28
that while he did paperwork, he let Mr. Simmons rest, and he then read Mr. Simmons his
Miranda rights and requested a statement in the presence of Sergeant Hammick. Mr.
Simmons did not provide any testimony to the contrary on this point. The only evidence
in the record is from the officers who flatly denied that they coerced Mr. Simmons or
made any promises to him. We, therefore, find that the record is simply devoid of any
evidence to support Mr. Simmons’s argument that the circuit court erred in failing to
suppress the second statement due to a violation of the prompt presentment rule.
IV. CONCLUSION
For the reasons set forth above, we affirm the conviction and the July 21,
2015, Amended Order of the Circuit Court of Roane County.
Affirmed.
29