The defendant, Dewaine Woodson, appeals a verdict by a jury in the Circuit Court of Lewis County convicting him of unlawful assault under W.Va.Code, 61-2-9. The defendant on appeal challenges the trial court’s ruling that an oral statement he made after he invoked his right to remain silent was admissible. We agree with the defendant’s position and find reversible error. The defendant also assigns as error other rulings made by the trial judge at the supprеssion hearing, which rulings we find to be correct. The State makes a cross-assignment of error regarding the suppression of an oral statement made by the defendant, which we do not consider.
I.
During the early morning hours of June 27, 1986, Officers Donald Rohrbough and Timothy Greiner of the Weston City Police Department responded to a citizen’s call and found the beaten body of Steven Si-mons lying in hedges near Route 119 in Weston. The police wеre told by the neighbors that at approximately 3:00 a.m., a light colored van pulled up and parked outside the home of Lucille Malone. Two individuals got out of the van and began fighting. Shortly thereafter, one of them drove off in the van toward downtown Weston.
The police located the van and the defendant at 375 John Street in Weston. Upon knocking on the front door of the house, the officers saw the defendant cоme out of the side door. They obtained the defendant’s written consent to search his van and, while the officers were proceeding with the search, the defendant blurted out that he had “kicked the fagot’s ass.” The officers gave the defendant his Miranda rights. 1 The defendant was given a written Miranda form, and he indicated on that form that he did not want to speak with the police officers.
The defendant was taken by the officers
The defendant appeared before a magistrate and indicated that he wished to have cоunsel appointed to represent him. Thereafter, the police seized the clothing worn by the defendant at the time of his arrest.
At a suppression hearing conducted on April 7, 1987, the trial judge ruled that the oral statements made by the defendant at John Street should be suppressed. The trial judge further ruled, however, that neither the oral statements made by the defendant at the Lewis County jail nor the clothing worn by the defendant at the time of his arrest would be suppressed.
II.
The defendant first contends that the trial judge erred by allowing the oral statements he made at the Lewis County jail to be admitted into evidence. The defendant asserts that he had invoked his right to silence and that the police officers did not honor that right. The State, however, asserts that the defendant voluntarily made the statement at the jail and that the further inquiry by the police officеrs was not an attempt to undermine the intent of the defendant to remain silent.
The United States Supreme Court in
Miranda v. Arizona,
“If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise.”384 U.S. at 474 ,86 S.Ct. at 1627 ,16 L.Ed.2d at 723 .
The Supreme Court further observed in
Michigan v. Mosley,
Consistent with these Supreme Court decisions, we held in Syllabus Point 3 of
State v. Rissler,
“Once a person under interrogation has exercised the right to remain silent guaranteed by W. Va. Const., art. Ill § 5, and U.S. Const, amend. V, the police must scrupulously honor that privilege. The failure to do so renders subsequent statements inadmissible at trial.”
See also
Syllabus Point 5,
State v. Farley,
The evidence from the suppression hearing shows that after the defendant was given his Miranda warnings, he indicated on a written Miranda form that he did not want to speak with police. Furthermore, Officer Greiner testified that it was his impression that the defendant did not want to talk to the police and that he wished to speak with an attorney. 2 Yet, after arriving with the defendant at the Lewis County jail, Officer Rohrbough once again asked the defendant whether he wished to make a statement. Clearly, the initiatiоn of this custodial interrogation after the defendant had invoked his privilege to remain silent rendered the defendant’s subsequent statements inadmissible at trial.
III.
The defendant next assigns as error the trial court’s refusal to allow at the trial evidence of the victim’s prior convictions. The defendant contends that the victim’s two prior convictions in West Virginia for burglary indicate the violent nature of the victim. The State argues, however, that the two burglary convictions do not demonstrate a violent nature, and, therefore, the admission of those convictions would not have demonstrated any pertinent character traits of the victim pursuant to Rule 404(a)(2) of the West Virginia Rules of Evidence.
Rule 404(a)(2) essentially codifies the common law rules on the admission of character evidence of the victim of a crime.
State v. Neuman,
“ ‘ “In a prosecution for murder, where self-defense is relied upon to excuse the homicide, and there is evidence showing, or tending to show, that the deceased was at the time of the killing, making a murderous attack upon the defendant, it is competent for the defense to prove the character or reputation of the deceased as a dangerous and quarrelsome man, and also to prove prior attacks made by the deceased upon him, as well as threats made to other parties against him; and, if the defendant has knowledge of specific acts of violence by the deceased against other parties, he should be allowed to give evidence thereof.” Syllabus Point 1, State v. Hardin,91 W.Va. 149 ,112 S.E. 401 (1922).’ Syllabus Point 3, State v. Gwinn, [169] W.Va. [169 W.Va. 456 ],288 S.E.2d 533 (1982).”
See also State v. McKinney,
It should be noted that in our cases prior to the adoption of Rule 404(a), we did not limit the defendant’s right to show the violent character of the victim to cases where self-defense was asserted. In the text of
Louk,
we quoted Syllabus Point 3 of
State v. Gwinn,
We discussed the term “provocation” at some length in
State v. Kirtley,
The text of our Rule 404(a)(2), as well as its federal counterpart, does not use the term “self-defense,” but refers to the concept of the victim as “the first aggressor.” The notes of the Advisory Committee on the Federal Rules make it plain that this rule covеrs several situations, i.e., “evidence of a violent disposition to prove that the person was the aggressor in an affray” or “an accused may introduce pertinent evidence of the character of the victim, as in support of a claim of self-defense to a charge of homicide.” This is essentially the same as our preexisting evidentiary rules.
Moreover, our law contained in Syllabus Point 2 of
Louk
encompasses the rule set out in Rule 405(b), which enables “рroof ... of specific instances of conduct” where “a trait of character of a person is an essential element of a charge, claim, or defense.”
4
This is on the theory that an essential element of a claim of self-defense or provocation is the defendant’s knowledge of the aggressive and violent character of the victim. This appears to be the general rule elsewherе.
See, e.g., Byrd v.
We, therefore, conclude that under Rule 405(b), W.Va.R.E., a defendant in a criminal case who relies on self-defense or provocation may introduce specific acts of violence or threats made against him by the victim, and if the defendant has knowledge of specific acts of violence against third parties by the victim, the defendant may offer such evidence. 5
In this case, evidence of the victim’s two рrior convictions on burglary charges was not relevant to establish his alleged violent nature. The elements of that crime do not involve violence to the person. Instead, they consist of a nighttime entry into a dwelling house or daytime breaking and entering of it with intent to commit a larceny or other felony. W.Va. Code, 61-3-11; State v. Louk, supra. There was no evidence of a violent felony against a person which had been committed during the course of the burglary. Accordingly, the trial court properly excluded this evidence.
IV.
The defendant also contends that the sweat pants he was wearing at the time of his arrest should not have been admitted into evidence because they were seized pursuant to an invalid arrest. The police officers seized the defendant’s sweat pants in the Lewis County Jail after his arraignment before a magistrate. Officer Rоhrbough testified at the suppression hearing that he seized the clothing worn by the defendant because there appeared to be blood on the defendant’s pants, shirt, and shoes.
The State seeks to justify the seizure of the defendant’s clothing under the “plain view” doctrine contained in Syllabus Point 3 of
State v. Stone,
There is no question that the label “plain view” is confusing, as it is also applied to a situation where the police officer is present where he has a lawful right to be and sees in plain view an object that constitutes contraband or evidence of a crime. If this
“By comparison, the concern here is with plain view in a quite different sense, namely, as descriptive of a situation in which there has been no search at all in the Fourth Amendment sense. This situation, which perhaps is deserving of a different label so as to avoid confusion of it with that discussed in Coolidge, encompasses those circumstances in which an observation is made by a police officer without a prior physical intrusion into a constitutionally protected area....
“It is extremely important to understand that the kind of plain view described in the preceding paragraph, because it involves no intrusion covered by the Fourth Amendment, need not meet the three requirements set out in the Coolidge plurality opinion. By definition, there is no prior valid intrusion.” (Footnote оmitted).
In this case, the police observed blood stains on the defendant’s shirt, pants, and shoes at his arraignment before the magistrate and subsequently had him remove his clothing at the jail. It is apparent that the initial observation was made in a location where the police had a right to be, i.e., at the magistrate’s office. The blood stains were open and apparent. In view of their prior knowledge that the victim had been severely beaten during a fight a few hours earlier, the police obviously believed this to be evidence connected to the crime.
In a rather similar fact setting, the Supreme Judicial Court of Massachusetts in
Commonwealth v. Meehan,
Furthermore, as the United States Supreme Court explained in
Cupp v. Murphy,
The Supreme Court found the initial detention to be justified because the police had probable cause to arrest even though the defendant was not formally arrested. It justified the search under
Chimel v. California,
However, the Court recognized in
Cupp
that since no actual arrest had been made, a “full
Chimel
search would [not] have been justified in this case.”
The State would have us end our inquiry at this point. However, in
Cupp
and the foregoing cases, it is clear that the initial detention or seizure of the person must be found to have been lawful in order to justify the subsequent seizure of his clothing.
Dunaway v. New York,
We believe that there was probable cause for the defendant’s arrest. It appears that after the police had invеstigated the scene where the victim was found, they obtained a description of a light colored, older model van from a resident who had seen two men emerge from the van and begin fighting. This witness also saw the van driving toward downtown Weston after the fight. One of the officers thought the defendant was the owner of the van. About one-half hour earlier, he and a fellow officer had seen the defendant, the victim, and a third party at a Sunoco filling station in Weston. They also observed a light colored, older model van at the station. Finally, Officer Rohrbough stated that he was personally acquainted with these three individuals.
We believe that all of these factors established sufficient probable cause to arrest and detain the defendant. We have defined probable cause in Syllabus Point 1 of
State v. Plantz,
V.
The State asserts as a cross-assignment of error that the trial court should not have exсluded the defendant’s initial admission at John Street. The State contends that the defendant’s initial admission while the officers were searching his van on John Street to the effect that he had “kicked the fagot’s ass,” was not brought on by police questioning. We are not cited any authority by the State which permits it to cross-assign error in a criminal appeal. 8
We are mindful of our general law that limits the State’s right to appeal in а criminal case, which we discussed at some length in
State v. Jones,
We decline, in the absence of any specific statute, to accord a right on the part of the State to cross-assign error. It would appear that to do so would add a variety of additional errors that would have to be addressed when none of them would be dispositive of the appeal. 10
VI.
For the foregoing reasons, the judgment of the Circuit Court of Lewis County is reversed and the case is remanded for a new trial.
Reversed and remanded.
Notes
.
See Miranda v. Arizona,
. The defendant also asserts that his Sixth Amendment right to counsel was violated when he asked for counsel in his initial appearance before the magistrate. The record is not completely develoрed on this issue, and, in view of our Fifth Amendment ruling, we decline to address it.
See Michigan v. Jackson,
“If the police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid because it was taken in violation of the defendant’s Sixth Amendment right to counsel.”
. Rule 404 provides, in pertinent part:
"(a) Character Evidence Generally. — Evidence of a person’s character or а trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
"(1) Character of Accused. — Evidence of a pertinent trait of his character offered by an accused, or by the prosecutor to rebut the same;
"(2) Character of Victim of a Crime Other than a Sexual Conduct Crime. — Evidence of a pertinent trait оf character of the victim of the crime, other than a crime consisting of sexual misconduct, offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor[.]”
. Rule 405(b), W.Va.R.E., states in its entirety: "Specific Instances of Conduct. — In cases in which character or a trait of chаracter of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of his conduct.”
. We expressly overrule any suggestion in note 4 of
State v. Hager,
. Syllabus Point 3 of Stone states:
“It is not a search for the police to discover evidence in plain sight and the warrantless seizure of such evidence is constitutionally permissible provided 1) the police observe the evidence in plain sight without the benefit of a search [without invading one’s reasonable expectation of privacy]; 2) the police have a legal right to bе where they are when they make the plain sight observation; and, 3) the police have probable cause to believe that the evidence seen constitutes contraband or fruits, instrumentalities or evidence of crime.”
. This definition is quite similar to that given in
Michigan v. DeFillippo,
“This Court repeatedly has explained that ‘probable cause’ to justify an arrest means facts and circumstances within the officer’s knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense. See Gerstein v. Pugh, supra, 420 U.S. [103], at 111, 95 S.Ct., [854] at 861 [43 L.Ed.2d 54 ]; Adams v. Williams, supra, 407 U.S. [143], at 148, 92 S.Ct. [1921] at 1924 [32 L.Ed.2d 612 ]; Beck v. Ohio, supra, 379 U.S. [89], at 91, 85 S.Ct. [223], at 225 [13 L.Ed.2d 142 ]; Draper v. United States,358 U.S. 307 , 313,79 S.Ct. 329 , 333,3 L.Ed. 2d 327 (1959); Brinegar v. United States, supra, 338 U.S. [160], at 175-176, 69 S.Ct. [1302], at 1310-1311 [93 L.Ed. 1879 ]; Carroll v. United States,267 U.S. 132 , 162,45 S.Ct. 280 , 288,69 L.Ed. 543 (1925).’’
. We do note that under Rule 10(f) of the Rules of Appellate Procedure for the West Virginia Supreme Court of Appeals, an appellee may make a cross-assignment of error. We spoke about this rule in a general way in
Payne v. Kinder,
. We also stated in
Jones
that "[sjtatutes giving the right of appeal to the State are also subject to scrutiny under constitutional double jeopardy principles.”
. Typical is the cross-assigned error here. It appears from the suppression hearing that the defendant was in custody at the time the officers indicated he was the main suspect and that he would not be permitted to leave the area of his van. He was asked several preliminary questions as to whether he had been with the victim and whether he had hit him. This produced the defendant’s statement, "I kicked the fagot’s ass.” These questions were asked prior to any
Miranda
warnings. The circuit court was correct in its holding.
See
Syllabus Point 2,
State v. Rowe,