State of West Virginia ex rel. Perri DeChristopher v. Phillip D. Gaujot ( 2021 )

No. 20-0601 – State of West Virginia ex rel. Perri DeChristopher v. The Honorable Phillip
D. Gaujot, Circuit Court Judge of Monongalia County, West Virginia, and Cesar Felix
FILED
March 16, 2021
released at 3:00 p.m.
Wooton, Justice, dissenting: EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Fewer propositions of law are more firmly established in this State than this:
“A writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court.
It will only issue where the trial court has no jurisdiction or having such jurisdiction
exceeds its legitimate powers.” Syl. Pt. 1, in part, State ex rel. N. River Ins. Co. v. Chafin,
233 W. Va. 289, 758 S.E.2d 109, 110 (2014). Additionally, “[w]here the State claims that
the trial court abused its legitimate powers, the State must demonstrate that the court's
action was so flagrant that it was deprived of its right to prosecute the case or deprived of
a valid conviction.” Syl. Pt. 5, in part, State ex rel. Harris v. Hatcher, 236 W. Va. 599,
760 S.E.2d 847, 848 (2014)); see also State ex rel. State v. Wilson, 239 W. Va. 802, 808,
806 S.E.2d 458, 464 (2017) (to same effect). In the instant case, the majority has given
these limiting principles of review mere lip service, engaging in extensive appellate
factfinding and substituting its judgment for that of the circuit court.
Initially, it must be emphasized that the petitioner, State of West Virginia
(“the State”), has utterly failed to establish that the circuit court’s suppression of the DNA
evidence is a death knell for its case against the respondent, Cesar Felix (“Mr. Felix”). On
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this point we have only the dueling representations of the attorneys: the prosecuting
attorney says that the DNA evidence is “compelling” and “absolutely necessary” to the
State’s case, while the defense attorney ripostes that the State has other evidence,
specifically: statements from Mr. Felix’s coworkers at Casa, where the events leading up
to the alleged rape were set in motion; the testimony of the victim, who was shown video
footage from Casa and identified Mr. Felix as a possible suspect; photographs of Mr.
Felix’s vehicle; surveillance video footage from outside Casa; and evidence supplied by
the so-called translator, Stephanie Mayhew (“Ms. Mayhew”), concerning a house to which
Mr. Felix allegedly attempted to take the victim. As the party seeking extraordinary relief,
the State has the burden of proof on this key point, yet the appendix record does not contain
any documentation or other evidence of any sort. Amazingly, although the voluntariness
issue in this case rises or falls on what was said and done during the course of Detective
Daniel Trejo’s (“Detective Trejo”) interview of Mr. Felix, neither the tape nor the
transcript of this interview has been made a part of the record. 1 Thus, although it cannot
be gainsaid that admission of the DNA evidence would have some effect on a jury’s
determination of Mr. Felix’s guilt or innocence, there is nothing in the record before this
Court to show that suppression of this evidence was so flagrantly erroneous that the State
“was deprived of its right to prosecute the case or deprived of a valid conviction.” Harris,
236 W. Va. at 600, 760 S.E.2d at 848. Therefore, the writ of prohibition should not issue.
1
At oral argument, counsel informed the Court that both a tape and a transcript exist.
2
Additionally, the State has utterly failed to demonstrate that the circuit court
abused its discretion in determining that Mr. Felix’s consent to the DNA testing was not
voluntarily given. This Court has held that
[w]hen 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) (emphasis added); see
also State v. Blevens, 231 W. Va. 135, 148, 744 S.E.2d 245, 258 (2013) (circuit court’s
voluntariness ruling can only be reversed where it is plainly wrong or clearly against the
weight of the evidence). I can think of no principled reason that the Lacy/Blevens rule
should not apply with equal force, but in the converse, where it is the State seeking reversal
of a suppression ruling: an appellate court should construe all facts in the light most
favorable to Mr. Felix, who was the prevailing party below. Further, particular deference
should be given to the circuit court’s ruling on an issue of voluntariness, because the
determination of this issue is based on the most fact-driven inquiry possible: the totality of
the circumstances. See, e.g., State v. Smith, 218 W. Va. 127, 132, 624 S.E.2d 474, 479
(2005); State v. Milburn, 204 W. Va. 203, 210, 511 S.E.2d 828, 835 (1998); State v.
Bradshaw, 193 W. Va. 519, 527, 457 S.E.2d 456, 464 (1995); State v. Goff, 169 W. Va.
778, 783, 289 S.E.2d 473, 476-77 (1982). A trial court’s ruling on a voluntariness issue
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“requires careful evaluation of all the circumstances of the interrogation.” Goff, 169 W.
Va. at 780, 289 S.E.2d at 485 (citing Mincey v. Arizona, 437 U.S. 385, 401 (1983)), and
“[n]o one factor is determinative.” Syl. Pt. 7, in part, State v. Farley, 192 W. Va. 247, 452
S.E.2d 50 (1994); see also State v. Showalter, No. 16-0086, 2017 WL 75958, at *3 (W. Va.
Jan. 9, 2017) (memorandum opinion).
Historically, this Court has always applied a deferential standard of review to
a circuit court’s determination of whether a waiver of rights was voluntary. See, e.g., State
v. Lamp, 163 W. Va. 93, 96, 254 S.E.2d 697, 699 (1979) (“The trial court has a wide
discretion as to the admission of confessions and ordinarily this discretion will not be
disturbed on review.”) (citing Syl. Pt. 2, in part, State v. Vance, 162 W. Va. 467, 250 S.E.2d
146 (1978)); State v. Woods, 169 W. Va. 767, 770, 289 S.E.2d 500, 502 (1982) (same). We
reformulated the standard of review to some extent in State v. Farley, 192 W. Va. 247, 452
S.E.2d 50 (1994), where we held in syllabus point two that
[t]his 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.
Id. at 250, 452 S.E.2d at 53; see also Syl. Pt. 1, State v. Bouie, 235 W. Va. 709, 776 S.E.2d
606 (2015); Syl. Pt. 2, State v. Marcum, 234 W. Va. 415, 765 S.E.2d 304 (2014); Syl. Pt.
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2, State v. Jones, 220 W. Va. 214, 640 S.E.2d 564 (2006). Although this reformulation
wasn’t new in any real sense – this Court has always applied a de novo standard of review
to a circuit court’s conclusions of law and a deferential standard of review to its findings
of fact – it appears to have opened the door to the type of judicial activism evidenced in
the majority opinion. Plainly, the members of the majority have put themselves in the
shoes of the circuit court and simply substituted their judgment for the court’s judgment,
ignoring and discounting any evidence that doesn’t support the State’s position – and doing
it all on the basis of a cold (and uninformative) 2 record.
An examination of the evidence adduced at the suppression hearing,
construed in a light most favorable to Mr. Felix, who prevailed below, demonstrates that
the circuit court’s ruling had ample evidentiary support. First, it is critical to note that when
Ms. Mayhew contacted Detective Trejo to set up Mr. Felix’s interview, she was not told
that Mr. Felix was a suspect, let alone the suspect, in an alleged sexual assault; indeed, the
evidence was that everyone at Casa had been led to believe “two black guys” were
suspected of the crime. In this regard, we have held that “some information should be
given to the defendant as to the nature of the charge in order that he can determine whether
to intelligently and voluntarily exercise or waive his . . . rights.” State v. Livermon, No.
15-0087, 2016 WL 6805005, at *5 (W. Va. Nov. 17, 2016) (memorandum opinion) (citing
2
See text supra; the key evidence in this case was not made a part of the appendix
record.
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Goff, 169 W. Va. at 784 n.8, 289 S.E.2d at 477 n.8). Second, in her testimony at the
suppression hearing, Ms. Mayhew did not contest counsel’s assertion that she had asked
far more questions during the interview than Detective Trejo had. Thus, if the circuit
court’s interpretation of the evidence is to be credited – and again, the State has not seen
fit to provide us with either a tape or a transcript that could belie this interpretation -- the
detective was a passive onlooker during the bulk of “his” interview of the suspect. Third,
Detective Trejo did not dispute that during the interview, Ms. Mayhew “volunteered
information from herself without that information coming from Mr. Felix.” Fourth, Ms.
Mayhew agreed that it was she, not the detective, who asked Mr. Felix to sign the
Permission to Search form and give a DNA sample, because she wanted him to prove his
innocence. Fifth, although the form expressly states that Detective Trejo informed Mr.
Felix of his constitutional right to refuse to search, the detective testified that he never
explained or attempted to discuss Mr. Felix’s rights with the suspect and never informed
him of his right to refuse to give a DNA swab. Rather, the detective felt confident that Ms.
Mayhew was doing all this, despite the fact that she was doing it in Spanish, a language in
which the detective is admittedly not fluent. “[I]t appeared to me that – from what I can
gather from the little that I do know, it appeared to me that she was translating to a point
where he understood.” (Emphasis added.) Sixth, although Detective Trejo testified that
when the services of an interpreter are required, the regular protocol in his department is
to go through an agency to retain the services of one “certified by some organization or
some government entity[,]” the detective did not make any attempt to determine whether
Ms. Mayhew, the self-styled “free-lance interpreter,” was actually qualified to perform
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what should have been her sole task: to translate the detective’s question into Spanish and
then to translate Mr. Felix’s answers into English. Seventh, in light of testimony that
numerous questions were asked of Detective Trejo by Ms. Mayhew, in English and without
translation for the benefit of Mr. Felix; that numerous questions were asked of Mr. Felix
by Ms. Mayhew, in Spanish and without translation for the benefit of Detective Trejo; that
Ms. Mayhew was giving legal advice to Mr. Felix – legal advice that no competent attorney
would ever have given; and that Ms. Mayhew was volunteering information to Detective
Trejo on her own, not as a translation of anything Mr. Felix was saying, it is a reasonable
inference that Ms. Mayhew was running the show during this interview and that Mr. Felix
had no clear idea what was going on.
Notwithstanding the clear mandate in our case law as to the limited scope of
appellate review on a motion to suppress, in the instant case the majority has elected to
review the circuit court’s fact-based ruling – granting the respondent’s motion to suppress
evidence on the ground that his consent to DNA testing was not given voluntarily – and to
reverse that ruling as a matter of law. In so doing, the majority has concluded that there
could only be one “correct” answer to the voluntariness issue under the facts and
circumstances presented to the circuit court, despite the fact that only the lower court had
the benefit of hearing the witnesses’ testimony and evaluating their credibility. Further,
the majority has cherry-picked the facts which support the State’s position and discounted
or totally ignored the facts that do not. Finally, in construing all of the facts and possible
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inferences in a light most favorable to the State, despite the fact that Mr. Felix was the
prevailing party below, the majority has put its thumb on the scale of justice rather than
“hold the balance nice, clear and true between the State and the accused.” State v. Varner,
212 W. Va. 532, 538, 575 S.E.2d 142, 148 (2002).
Accordingly, I respectfully dissent.
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