*1 J., DAVIS, dissenting. not ask this requiring Court to issue the writ resentencing. Crupe initially pe- Mr. filed proceeding majority opinion In this tition By for habeas relief the trial court. petitioner, granted Crupe, William habe- order entered November the trial corpus for purpose relief of resentenc- granted Crape court habeas relief in below, ing. For the reasons stated I dissent. part. granted pro- The relief the habeas Request The Petitioner Did Not Habeas ceeding by trial court was as follows: Resentencing Relief for “Accordingly, the Court shall schedule majority opinion The concluded that Mr. hearing Petitioner, if resentence the he so Crupe presented “essentially desires, four issues for give so as him an additional four our assessment: a transcript failure obtain appeal.” months for timely fashion; in a the State’s failure to The granted by habeas relief the trial witness; regarding alleg- disclose evidence court is majority the exact same relief the edly insufficient evidence of thе crime of opinion purports Crupe. to award Mr. It is assault; improper sexual selection simply illogical purporting the writ issue petit jury.”1 majority opinion correctly grant already same relief that has found proper- that none of these issues were granted by the trial court. ly before the proceeding, Court a habeas reason, then, For respectfully this I dis- granted therefore relief could be on the sent. petition. issues raised Accordingly, majority opinion should simply denied the writ. Instead of writ, however,
denying majority opin- sponte
ion sua determined that the writ
should
commanding
be issued
the trial court
Crupe
appeal purposes.
resentence Mr.
for
proceeding,
In
Crupe
did
ask
even when the issue is a constitutional DeWEESE, Millard J. Defendant Greene, 500, dimension.” 196 W.Va. Below, Appellant. 505, 921, J., (Cleckley, No. 30733. Lockhart, concurring). See also 4, 443, 627 n. n. 4 Supreme Appeals Court of (2000) (“Assignments of error are not Virginia. West waived.”); briefed are deemed State v. LaR March 2003. ock, Submitted (1996) (“Although liberally construe briefs April Decided 2003. determining review, presented issues Opinion Dissenting of Justice issues which are not raised ... are not con Maynard July sidered!!.]”). majority opinion violates prohibits our time honored rule that review
of and relief for matters have not been
properly raised. my case, review of the record in this quite why Crape
has become obvious did Crupe There was a fifth issue raised Mr. no merit. The trial court extended time majority indirectly opinion which the Mr. appeal addressed. period appeal Crupe so that Mr. would be argued Crupe that he was denied the appeal. able to file his underlying conviction. This issue has
341 *3 II, Windom, Morrison, home people were the DeWeese Several Rodney Paul V. C. Among pres- girls returned. those Isner, Harrisville, when the Appel- for the A. Judith Lawrence, boyfriend former ent Lee lant. Crystal’s present was broth- Crystal’s. Also General, McGraw, Jr., Attorney V. Darrell ill, er, Crystal Trader. After became Robert II, Loughry, Assistant Attor- H. Senior Allen were told that and Mr. Trader Lawrence General, Charleston, ney Appellee. for the pills Mr. Rol- purchased from she had taken young men also told
lins. The two girls for DAVIS, propositioned both Mr. Rollins Justice: unidentified and an oral sex. Lee Lawrence *4 DeWeese, appellant/defendant Millard J. to confront to Mr. Rollins’ home person went (hereinafter DeW- to “Mr. below referred allegations. him about the eese”), felony-murder conviction appeals his companion his found Lee Lawrence and of jury the Circuit Court decided drinking with a at beer Mi'. Rollins home County. The circuit sentenced Ritchie dispute erupt- A guest, Mike Slater. verbal Mr, imprisonment life without DeWeese to Mr. Lee Lawrence and Rollins. ed between Here, assigns to mercy. Mr. DeWeese error kill Mr. Rollins Lawrence threatened to Lee made he the admission pills. Crystal of the Mike if died because being magistrate, presеnted to a to apparently things able calm to Slater was of statements admission everyone go suggested that down and examinations, and of two course Crystal’s on condi- home to check DeWeese hearing in which was held the manner tion. juror Af- investigate alleged misconduct.1 four arrived at the DeWeese Once the men record, briefs and ter a careful review the they Crystal’s condition home learned arguments having the oral heard appeared It she would be improved. sen- parties, we the conviction and reverse However, dispute flared outside the fine. tence, trial. new and remand case home Mr. Rollins DeWeese between During confron- verbal Robert Trader. I. tation, Mr. punched Rollins Robert Trader face. The blow ren- side of his on left AND FACTUAL PROCEDURAL No further unconscious. dered Mr. Rollins HISTORY sub- physical occurred. Mike Slater attacks his sequently placed Mr. Rollins on shoulder 30, 1999, August Mr. On the afternoon him and carried home. Josephine Spears, stepdaughter, DeWeese’s Trader, approxi- Crystal both and her friend Mr. arrived at Rollins’ When Mr. Slater old, resi- mately years went to the fifteen home, on the front placed Mr. Rollins he case, year victim in this fifty old dence of to the porch. Mr. then returned Slater drugs. girls buy Paul Rollins. The wanted stayed approxi- home DeWeese where drinking beer at his home Mr. Rollins was mately hour. Mr. then returned one Slater girls Rollins, arrived. companions lying two when the him with Mr. and found to check on mon- companions living Mr. Mr. Rollins’ offered room. Rollins One on couch ey girls perform if would Mr. one she his encounter with had no recollection fact, Mr. explained on The was declined. oral sex him. offer Trader. Mr. Slater pills and knocked Crystal eventually purchased green six he had been hit Rollins that pur- Mr. pills Mr. observed that from Mr. Rollins.2 unconscious. Slater After chased, and he eye beginning to swell girls proceeded to the DeWeese Rollins’ both Mr. would “have a real joked Rollins they later consumed wine where home beer, Mr. then left consuming nice shinеr tomorrow.” Slater the wine and beer. After nearby of another to the home vomiting. and went Crystal began ill and became green what the argues not disclose record does cumulative Mr. DeWeese also fair assigned pills him a errors denied effect were. trial. friend, briefly but returned on to cheek Mr. before a being while he was held County Rollins. Cabell officials. p.m. At on September 5:00 Later, sometime between 2:00 a.m. and Trooper picked up Mr. a.m., DeWeese and trans- DeWeese, Lawrence, 2:30 Mr. ported him to the State Police Detachment in Mr. Trader to Mr. Rollins’ went home. The Hamsville, County. Ritchie Trooper three broke into Mr. men Rollins’ home and arrived p.m. with Mr. about 8:00 sleeping They found him proceeded in bed. interrogated upon his ar- trial, to beat him. During Mr. DeWeese’s rival in gave Harrisville. He statement conflicting the evidence was as to the extent implicating his beating involvement in the actually to which each man beat Rollins.3 statement, Mr. Rollins. The which was re- clear, however, The record is in demonstrat- corded, was concluded p.m. at 9:30 At about ing that all in fact three men did assault Mr. morning, 10:45 a.m. the next Mr. DeWeese ended, beating Rollins. When the all three presented very for the first time to a men left the home. magistrate. and, in custody He remained on left, After the again three men Mr. Slater September submitted two con- During returned Mr. Rollins’ home. *5 secutive During examinations. trial, Mr. testified Slater that he found Mr. examinations, gave additional incrimi- badly a Rollins in beaten condition. His face nating statements about his in role the beat-
was swollen and having he was trouble ing of Mr. Rollins.5 breathing. Mr. Slater emergency summoned ultimately Mr. DeWeese was a indicted (EMTs). medical technicians When the grand jury for the murder of Mr. Rollins. they EMTs arrived examined Mr. Rollins jury August, He was tried before a in and requested permit that he them to take A mistrial was jury declared when the was hospital. him to a He refused. The EMTs unable to reach a verdict. A trial second pack an left ice for Mr. Rollins and then began 3, 2001, on April March 2001. On departed. stayed Mr. Slater with Mr. Rollins jury a felony-murder, returned verdict of daybreak. until after sometime Mr. Slater mercy.6 without Mr. DeWeese filed a motion testified that Mr. Rollins was alive when he for a new trial. His motion was denied. He a.m., left the home. At about 11:00 Mr. subsequently was imprison- sentenced to life Slater was advised that Mi-. Rollins was ment without possibility parole. From dead.4 rulings, these Mr. appeals. DeWeese now Shortly after authorities learned Mr. death, Rollins’ arrest warrants were issued II. DeWeese, Lawrence, for Mr. and Mr. STANDARD OF REVIEW a.m., Trader. At September 4:00 on appeal Mr. DeWeese’s is from circuit DeWeese arrested at his mother-in- denying court’s order in motion a new Huntington. law’s home Mr. DeWeese general trial. Our standard reviewing County jail was taken to pending the Cabell a such case been stated as follows: County. transfer Ritchie While at the County jail, Cabell In reviewing challenges findings warnings. subsequently gave court, rulings He a made a circuit apply we a denying any statement in two-pronged involvement Mr. deferential standard of re- Rollins’ death. Mr. not taken view. rulings We review the of the circuit golf There evidence that a B., club and fan 5. See Section III. for additional details infra, against were used Mr. Rollins the attack. about these examinations. A4. medical examination subsequent revealed 6. The verdict felony-murder was based upon injuries, that Mr. Rollins numerous includ- jury's finding murder occurred ing skull fractures and fourteen frac- multiple burglary. the course a tured ribs. It was the medical examiner's opin- ion that Mr. Rollins died of blunt force multiple injuries. injuries traumatic The most serious injuries. were the skull magistrate. a being taken to its concerning a trial and conclu- new of reversible error these sion as to the existence Mr. DeWeese asserts statements standard, and of discretion they under an abuse suppressed as should have been underlying circuit court’s we review the present- obtained violation clearly findings a erroneous factual under rule. ment subject Questions of law are standard. prompt prеsentment rule is contained Our a de review. novo 62-l-5(a)(l) (Repl. § in W. Va.Code Vance,
Syl. pt. W.Va. State Vol.2000) provides part: relevant also, Crouch, See making a An an arrest under officer ..., (1994) (“The complaint upon a shall question trial warrant issued of whether new granted person is within the discretion without should be take arrested unneces- only magistrate trial court and reviewable sary delay the coun- before (citation omitted)). case abuse.” ty where the arrest made. in Mr. DeW- dispositive issues raised 5(a) (“An also, W. P. officer See Va. R.Crim. appeal the trial court’s denial eese’s concern making an arrest under a warrant issued suppress pretrial of his motion to upon complaint ... shall take the arrested custody. Syllabus point In given while unnecessary delay person without Lacy, of State v. county ar- magistrate within the where the (1996), out the standard review set made.”). Syllabus point 1 of rest is ruling on a of a circuit court's motion “ Guthrie, delay ‘[t]he we held that suppress: may taking a defеndant to ruling reviewing a motion to on When *6 totality of [in critical factor the circumstances appellate con- suppress, an court should involuntary making a confession and hence light in the favorable to strue all facts most appears pri- the it inadmissable] where State, party prevailing the as was the delay mary purpose of was to obtain a the highly fact-specific below. Because ” 173 from the defendant.’ W.Va. confession suppress, particular a motion to nature of Syl. (quoting pt. S.E.2d 397 findings to the of the deference Persinger, State opportunity it had circuit court because (1982)). and to hear testi- observe the witnesses Therefore, mony the issues. the circuit on quite in instant case is The record for findings factual reviewed court’s are Mr. was taken to clear. DeWeese clear error. County in the initial magistrate Cabell when has this that “we It also been held Court also occurred.7 The record reveals arrest questions law novo and the reviеw de was to Ritchie that when Mr. DeWeese taken conclusion as to the circuit court’s ultimate jail approximately County he held in for ac constitutionality of law enforcement being presented to a hours before fifteen 595, 600, Lilly, tion.” 194 W.Va. State During pre-presentment magistrate. his 101, 106 S.E.2d County, in Mr. confinement Ritchie DeWeese gave incriminating that he now statements III. suppressed. should have We contends been DISCUSSION support Mr. con- believe facts DeWeese’s n tention.8 Prompt A. Presentment clearly that the reason The facts establish presented by Mr. The first issue DeWeese promptly was not taken to incriminating concerns the statements magistrate taking to a will Although prompt presentment was vio- rule 7. him/her initially County, prompt trigger lated in Cabell our concern is of the violation sanctionable County. rule Ritchie with the violation of the presentment violation oc- rule. A sanctionable incriminating oc- That where the detaining purpose the defendant is if the curs curred. interrogation to obtain an incrimi- to conduct an nating about or from the defendant statement clear, merely detaining To a defendant be which he she involvement in the crime for her jail for fifteen hours under an arrest warrant magistrate Comity warnings. argu- Ritchie was that be- 1. Miranda Under the State, law long cause enforcement officials wanted raised ment so as the police During suspect obtain from him. read statement to a they may indefinitely suspect of cross-examination of lead course inves- withhold the case, tigating Trooper magistrate hopes obtaining officer M. from Adams, delayed “voluntary” reject the officer summarily testified that statement. We taking magistrate argument, completely DeWeese to a because as it would abolish very presentment he wanted to obtain a from him.9 the of the prompt statement essence Trooper Adams as testified follows: rule. Q. your primary And the truth is that prompt presentment rule is not him; getting concern was a statement from merely nullified Mi read it, Trooper?
wasn’t suspect to a who is under Absolutely. speak A. I purpose prompt wanted to arrest.10 The sole Absolutely. presentment DeWeese. bring rule “is to a detached
judicial ojficer
process
into the
once an ar
meaningful
ha[s]
rest
furnish
Q.
you honestly
Did
care whether [Ca- protection
defendant’s constitutional
County
presented
bell
him a
officers]
Ellsworth,
rights.”
175W.Va.
required by
law?
(emphasis
507-08
add
No,
A.
sir.
ed).
Grubbs,
See also State v.
(The
spite
explicit
showing
presentment
“requires
rule
an individual to
prompt presentment
that the
rule
violat-
promptly
magis
taken before a neutral
ed,
argued
the State
the circuit
arrest. This is
trate after
to insure that the
ruling
court’s
correct. The
sub-
fully
accused is
informed of
con
his various
that Mr.
mits
of his
advised
statutory rights.”).
stitutional and
several
times
thirty
only
period
course
hour
to his
Introduction of
statement con-
arraignment. Therefore,
similarly unpersuaded by
the statement was
tents. We are
*7
voluntary
Furthermore,
only
admissible.
the State’s contention that
con-
since
the
State notes that the statement itself was not
of Mr.
tents
DeWeese’s
was intro-
statement
duced,
only
itself,
admitted into
legal
evidence. There
tes-
and not the statement
no
timony regarding
consequence
delay
some of its contents. We
should flow from
the
up
argument
will
separately.
take
each
presenting
magistrate.11
him to a
Mr. DeW-
Milburn,
3,
Syl. pt.
Humphrey,
was arrested. See State v.
204 W.Va.
See
177
ment.
State v.
203,
(1998) (holding
delay
264,
(1986) ("The
delay
W.Va.
If this
did not extend the fruits
not
Miranda
Court
interrogations began.15
graph
poisonous
tree doctrine to a violation
customary,
polygraph
exаmi-
law was
if not
14. At the conclusion of
first
"At common
nation,
he did
Mr. DeWeese was informed that
person
brought
obligatory,
be
for an arrested
to
truthfully.
responded
Consequently, a sec-
not
peace shortly
justice of the
after arrest.”
before a
shortly after the first
ond test was administered
854,
Pugh,
v.
420
S.Ct.
Gerstein
U.S.
95
test concluded.
863,
(1975).
347
any
appointed
ques-
At
that no
will be
for him
the outset we note
evi
Miranda,
jury
tioning
if he so desires.”
384
dence was introduced to the
that
U.S.
479,
1630,
polygraph
took
at
at
tests. We have
86 S.Ct.
349
by
finding
[because
to be surrendered
decision
this
the]
rendered
Court
assertion
”
Farley
rights,
rel.
v.
of] another.’
State ex
Kram
valid waiver of Miranda
the facts
er,
159, 186,
106,
W.Va.
169
121
warnings
153
S.E.2d
revealed that Miranda
were
(1969)
States,
(quoting
v.
rights
Simmons
United
enunciated therein were
377,
967,
e.g.,
390
88 S.Ct.
ments him that could otherwise not be S.E.2d giving obtained without first him re This Court has never held that the actual quirеd warnings.” Hayles, United States reading warnings may of Miranda be (5th Cir.1973). Thus', 471 F.2d we addition, In waived. after an exhaustive hold giving polygraph that exami search, found other court that nation, must inform the defendant may has ruled that defendant waive the rights though his Miranda even defense reading warnings. actual of Miranda present in- counsel room with the de held, reason no court has so found in fendant when examination is decision, opinion Miranda wherein the held: about to given. be To the that extent any questioning person Prior trial court found that pres defense counsel’s be a right must warned that he has for giving ence obviated need Miranda silent, any remain statement does DeWeese, warnings to Mr. finding may make against be used evidence erroneous. him, right pres- and that he has a warnings. 2. Waiver of Miranda As attorney, ence of an or either retained noted, previously the trial also conclud- appointed. may The defendant waive ef- expressly ed that defense counsel waived the rights, provided feсtuation of these warnings given. have Miranda voluntarily, knowingly waiver is made clear, absolutely While the record does intelligently. suggest that defense counsel was asked Miranda, 444-45, at 384 U.S. 86 S.Ct. reading warnings whether Miranda added.) (Emphasis recog- necessary. Defense counsel indicated the only rights nizes to which a waiver warnings given.18 did be not have to Assum- Syl. pt. defendant has been informed. See occur, ing this scenario did fact Plantz, part, W.Va. help does not the State. (“A freely statement recognized voluntarily
Our cases have
that the
made
an accused while in cus-
articulated in
may
tody
deprived
the Miranda
his freedom
the au-
Syllabus
subjected
In
point
questioning
waived.
of State
thorities and
is ad-
Bragg, 160
against
clearly
ingly and
added)).
The
polygraph
examination.
defendant
(Emphasis
during
self-incriminating statements
made
police to
a defen
permit
ask
To
the
prior
After
arrest and
his
the examination.
the
if
to be informed of
dant
wants
he/she
trial,
sup-
motion to
filed a
to
the defendant
rights articulated in Miranda
would defeat
poly-
press
warnings. The
Miranda
of
very purpose
test, asserting
given
that he
graph
accurately
warnings is
those
of
essence
immediately prior
Miranda
warnings
funda
fully
inform defendant
his/her
Miranda
that
agreed
The trial court
test.
lights. Nothing but
mental constitutional
sup-
required
warnings
and therefore
flow
that would
would
from rule
mischief
appealed
The State
pressed the statements.
right
waive
to be
permit a defendant to
in the Mi
suppression order.
issue raised
rights
One
embodied
informed
randa
warnings. Consequently,
appeal
was that
we hold
in the
the defen-
the State
Miranda
may
rights
warnings
artic
given
waive the
while a defendant
dant
been
warnings, a
under the Miranda
ulated
defen
prior
taking
polygraph
hours
twelve
cannot,
law,
as a matter
waive
poly-
dant
argued
also
that the
test. The State
To the
of the Miranda
reading
warnings.
graph examiner informed the defendant
court found that defense
extent that the trial
appel-
his Miranda
rights
applied.
still
The
right
to have
counsel waived
DeWeese’s
arguments
rejected the
late court
State’s
Miranda,
him,
finding
warnings given to
ruling suppressing
trial
affirmed the
court’s
Miranda
right
was error. The
have
doing,
In so
polygraph statements.
given simply cannot be waived.
appellate court held that:
warnings.
Miranda
Effect
examiner’s] statement
[the
We find that
Lastly,
trial
found that Mr. DeW-
defendant],
that his Miranda
rights
[the
Miranda
given
warn-
not have to be
eese did
Miranda
proper
applied,
still
took
ings
polygraph
examinations
before
warning....
defendant] should
[The
place
рreviously
he had
been
his
properly
Miranda
advised
Miranda
warnings.
issue of the renew-
rights again before the
exam.
al of Miranda
warnings presents a matter
exam
conducted
impression
first
this Court.
[the defendant]
12 hours after
more than
requirement that an
“There is no
Consequently,
was first read Miranda....
rights
continually
his
reminded of
accused be
Mi-
important
[the defendant’s]
it was
them[,]”
Bid
intelligently waived
once he has
him,
explained
including
rights
be
Diamond,
(5th
dy v.
F.2d
122
Cir.
516
silent,
poly-
to remain
1975). Nevertheless,
warnings,
“Miranda
graph exam.
given,
not to be
unlimited
once
are
accorded
v.
United States
efficacy
perpetuity.”
DuPont,
also Ex
407-408. See
659 So.2d
(5th Cir.1970).
Hopkins,
F.2d
1045
433
J.D.H.,
(Ala.2001)
(lapse
parte
797
1130
So.2d
is,
knowingly
suspect
That
who
criminal
“[a]
of Miranda
required
days
16
renewal
voluntarily
rights
his Miranda
waives
Doe, Mass.
v.
Commonwealth
warnings);
of those
need not be re-advised
(lapse of
App.Ct.
351 law, adopted the court DuPont found that re- some courts have While the follow- warnings required ing Miranda af- newed were test: hours, lapse ter twelve determining In whether Miranda warn- Diamond, 118,
Biddy v.
held that
516 F.2d
ings became so stale as to dilute their
warnings
not re-
renewed Miranda
were
significant lapse
of a
effectiveness because
quired
lapse
days.
after a
of 14
process
interrogation,
the follow-
Biddy
the defendant was convicted
ing totality-of-the-circumstances
criteria
manslaughter by Mississippi jury.
After
(1)
length
should be considered:
exhаusting
appeals,
direct
the defendant
giving
between
time
of the first warn-
Biddy
corpus petition.
filed a federal habeas
(2)
ings
subsequent
interrogation,
petition
One of the issues
in the
raised
warnings
subsequent
whether the
and the
police
failed to read Miranda
interrogation
given
were
in the same or
warnings
to the defendant
an inter
(3)
places,
warnings
different
whether the
rogation
gave incriminating
in which she
given
interroga-
were
subsequent
and the
statements. The federal district court de
tion conducted
the same or different
appealed
nied relief. The defendant
to the
(4)
officers,
the extent which the subse-
Appeals.
Fifth
Court of
Circuit
The Fifth
quent
any previ-
statement
from
differed
warnings
Circuit held that Miranda
were
(5)
statements,
apparent
ous
intel-
necessary
not
because the
had in
lectual and emotional
suspect.
state
warnings
formed the defendant of
People
971,
Delgado,
See also
v.
832 P.2d
days prior
obtaining
incriminating
(Colo.Ct.App.1991); See also
v.
DeJesus
opinion
statements. The
in the case stated
State,
1180,
(Del.1995);
655 A.2d
petition
that “a further
... of
delineation
Lester,
853,
App.3d
v.
126 Ohio
709 N.E.2d
rights,
er’s
which she had stated that she
(1998);
Birmingham,
State v.
527 A.2d
explanations,
from prior
understood
would
(Me.1987);
761-762
Commonwealth v.
needlessly repetitious.” Biddy,
have been
Hughes,
521 Pa.
555 A.2d
States,
Cir.1968) (lapse
The decisions in DuPont and and the interrogation con- regarding officers; illustrate lack of consensus ducted the same or different when renewed subsequent must be the extent to which the statement given. help statements; To any previous resolve this unsettled area differed from *13 prior necessary warnings were not apparent intellectual emotional the given. suspect. had been
state the upon analysis, foregoing the we con- Based case, in the For of the issue resolution in circuit court clude that the erred each dispositive as matter of first criterion that Miranda ruling for its the three bases Virginia. public policy in Mr. West When warnings required poly- 2,1999, were not before the September on DeWeese was arrested graph given. Consequently, the tests were officials, Mi- by County given was he Cabell by Mr. statements made DeWeese warnings. Mr. waived the DeWeese polygraph the examinations should have been rights gave informed state- suppressed. any with the denying ment involvement later, Rollins. hours on death Mi*. Several picked up day, the Mr. same DeWeese Harmless Error C. by Trooper and taken to Ritchie Finally, any the State contends that County. up picked Mi*. When DeWeese pre-ar Mr. error admitting DeWeese’s Miranda again given warnings. he was raignment polygraph statements and his record to disclose whether Mr. DeWeese fails statements constituted harmless error. We rights warnings waived after the were his “[ejrrors disagree. long held that We have given a time. second Once rights involving deprivation of constitutional arrived at the Police detachment regarded only if as harmless there is will be Miranda County, again given Ritchie he was possibility that the violation reasonable warnings. Mr. DeWeese thereafter waived Syl. pt. conviction.” contributed to the rights incriminating gave an state- Thomas, 640, 203 State v. 157 W.Va. ment.19 52(a) also Va. R.Crim. W. P. See again interrogated was not defect, error, (“Any irregularity or variance by police September the until when the rights which does not substantial shall affect Thus, polygraph tests were administered. Further, disregarded.”). “[f]ailure be to ob lapsed roughly days since the last seven had serve a constitutional constitutes re Miranda Mr. DeWeese time unless it can be shown that versible error the warnings. find the We re- beyond a error was harmless reasonable Miranda quired the to read Mr. DeWeese State ex rel. Syl. pt. Grob doubt.”
warnings
polygraph
before
tests were Blair,
(1975).20
158 W.Vа.
given.
public policy in
a matter of
West
As
Here,
the Miranda violation result
Virginia,
lapse
days
an
seven
between
taking
in the
rights
initial
enunciated
ed
examiner
waiver
informing
jury
warnings
subsequent
and a
interro-
stand and
Mr. DeW
Dur
gation
beating
Rollins.
requires renewed
eese admitted
polygraph ex
interrogation may
ing
occur.
direct examination of the
subsequent
Conse-
State,
following exchange
quently,
aminer
the circuit court committed error
renewed finding
occurred.
remaining
presume
in-
made as whether the
evi-
We
that Mr. DeWeese was also
nation
'
taken before a
impartial
formed of his
when was
dence is
to convince
minds of
sufficient
arraignment.
magistrate
doubt;
beyond
guilt
a reasonable
defendant's
remaining
if the
evidence is found
be
previously pointed
We
out
insufficient,
harmless; (3) if the
the error is not
constitutionally
prompt presentment rule is not
remaining
support
is sufficient to
evidence
Therefore,
analysis
harmless error
based.
conviction,
analysis
an
must then be made to
rule in this case would be
the violation
any prejudicial
determine whether
error had
Syl. pt.
governed by a different
See
standard.
jury.”).
we find that ad-
effect on the
Because
Atkins,
502,
Q. you Did ask if arraignment Mr. DeWeese he had Mr. DeWeese to his be- participated in that homicide? fore Yes, Consequently,
A. I did. examinations. we reverse Mr. what, Q. conviction and anything, And if DeWeese’s sentence. We re- did he indi- you participation cate been his mand this case for a new trial consistent with that? rulings herein. *14 explained A. He to me that had hit he and Reversed Remanded. apрroximately
Mr. Rollins 20 times. That he had him kicked several times and that
he hit him with a fan. box Justice MAYNARD dissents and a files
Q. Did
indicate
all
he
where
he had hit
dissenting opinion.
and
Mi-.
kicked
Rollins?
(Filed
2, 2003)
July
A. He indicated that
was standing
against
on the bed with his hands
the wall
MAYNARD, Justice, dissenting.
support,
kicked him several times. He
stated that
had hit him
about the head
majority
I believe the
has confused two
saying
face.
I am not
he did it 20 separate legal
gone
by
doctrines and
far
too
times, but he
he hit him
indicated
and that
extending
poisonous
the fruits of the
tree
of
one
the areas.
physical
doctrine to
as a
discovered
polygraph
The
examiner was State Police
result of a statement obtained in violation of
sergeant.
position
The
examiner’s
as
law
prompt presentment
the
fruits
rule. The
of
undoubtedly provided
enforcement officer
poisonous
the
free
first an-
doctrine was
heightened
veracity
of
sense
as to the truth
by
Supreme
nounced
the United States
by
of the matters asserted
examiner.
the
As
States,
Wong
Court
Sun v. United
illustrates,
aptly
Mr. DeWeese’s brief
this
U.S.
83 S.Ct.
9 L.E.2d. 441
testimony
coming
from “a co-defen-
Sun,
Wong
In
the defendant’s fourth amend-
dant or
unsavory
some other
character!.]”
police
ment
violated when
were
the
Further,
proffered
because the statements
probable
arrested him in his home without
against
given
M\
were
con-
the
grounds
cause or reasonable
do
In
so.
examinations,
polygraph
of
text
defense
arrest,
making
the
found narcotics.
effectively challenge
counsel could not
Supreme
The
Court held that the narcotics
veracity
alerting
of the statements without
illegal
which were derived from
arrest
jury
polygraph
that
examinations had
must be
from the
tidal
excluded
defendant’s
though
present-
occurred.21 Even
the State
poisonous
as “fruits of
tree.”
U.S. at
testimony
ed
from co-defendants
488,
IV. there was no constitutional At violation. CONCLUSION most, prompt pres- was violation of there - clearly find that entment rule which is not constitu- We the trial court committed tionally suppressing eiTor statements made based. argued manslaughter. before the trial court Mr. Lawrence was voluntary incriminating Court, degree poly- convicted second murder received graph made statements were approxi- sentence years. thirty grueling seven nine hours mately repetitious questioning. reversing 23.Because are this case we need remaining assignments not address the of error. agreement Trader entered a plea resulted in a sentence of three to fifteen years majority, present! Apparently, for the presentment is de- 62-l-5(a)(l) majority good enough. need- § this is not
rived from W.Va.Code requiring lessly rule bright-line creates a provides that: which given immediate- that Miranda a war- making an under An officer arrest my any polygraph ly examination. before any per- complaint, or upon a rant issued totality opinion, a consideration making without a warrant an arrest son necessary is all that de- circumstances presence committed in his for an offense by a crim- termine whether statements law, shall take authorized otherwise examination suspect inal unnecessary person without the arrested voluntarily. given fi’eely county delay the arrest made. where above, case, In this as stated the defen- 5(a) Also, Virginia Rules Rule of West warnings at the Miranda dant *15 offi- “[a]n mandates Criminal Procedure poly- four before he took the least times making an arrest under a warrant issued cer graph. was not the Miranda While he any person making complaint an upon warnings immediately polygraph before the warrant shall the ar- arrest without a take examination, record establishes unnecessary delay without be- person restеd fully aware of defendant county within where fore voluntarily agreed to In that take the test. § is made.” “Both 62-1-5 and the arrest regard, shows that the defen- record 5(a) analogues Rule are of Federal Rule present and indicated to dant’s counsel 5(a) ... [and] [t]he Procedure Su- Criminal administering test that officer has that neither preme made clear Court necessary was not to advise the defendant 5(a) exclusionary Rule nor the rules Federal yet again warnings. Given the Miranda constitutionally underpinning it re- are facts, suppressing I find no basis for these Albert, Rogers v. quired.” the defendant made the statements (2000), citing Galle- examination. Nebraska, gos 342 U.S. S.Ct. opinion needlessly majority The creates Consequently, L.Ed. 86 “the law offi- additional hurdles for enforcement constitutionally presentment is not prompt protect law-abiding cers them efforts outside the context a warrant- guaranteed very dangerous citizens from criminals. arrest, statutory as a but exists less rather in this case indicates the defеn- evidence procedural right.” Rogers, at dant, friends, along victim with two beat the 477, 541 at 567. lying in to death he was bed. There while above, I light can find basis testimony at trial the defendant extending poisonous fruits of tree victim, bed, climbed onto the straddled the from a physical derived doctrine evidence punched eight him least times. as a of a statement that was obtained result jury properly convicted this violent defen- prompt presentment violation of the rule. mercy. first-degree murder without dant of Simply put, no constitutional viola- there was Now, majority opinion, thanks to the respect with to the statement the defen- tion try go has to back defendant gave police in this to the case. There- dant again. all over fore, majority applied should not have poisonous tree doctrine to the fruits Accordingly, for reasons set forth presentment rule. violation above, respectfully I dissent. majority gone I also believe that the by excluding far obtained dur- too
ing simply examination given the was not
the defendant
warnings immediately the test was you, Mind the defendant
administered.
already given Miranda four lawyer polygraph, and his
times before the