Submitted: May 3, 2017
from the Circuit Court of Roane County The Honorable Thomas
C. Evans, III, Judge Criminal Action No. 14-F-23
D. Parmer, Esq. Appellate Advocacy Division Public Defender
Services Charleston, West Virginia Counsel for the
Patrick Morrisey, Esq. Attorney General Benjamin F. Yancey,
III, Esq. Assistant Attorney General Charleston, West
Virginia Counsel for the Respondent.
BY THE COURT
"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).
"'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
"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
"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).
"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
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.
Syllabus Point 1 of State v. Fortner, 150 W.Va. 571');">150 W.Va. 571,
148 S.E.2d 669');">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
"'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).
"'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,  W.Va. , 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).
"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
"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." Syllabus Point 4, State v.
Humphrey, 177 W.Va. 264, 351 S.E.2d 613 (1986).
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.
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');">150 W.Va. 571, 148 S.E.2d 669');">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.
consideration of the parties' briefs and arguments, the
submitted record and pertinent authorities, we affirm the
order of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
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.
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
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, the circuit court
held a pre-trial hearing for the presentation of arguments on
the motion to suppress.
Matthew "Bo" Williams ("Deputy
Williams") 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
respect to the interview itself, Deputy Williams testified
that he filled out the Miranda 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 Sheriffs 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.
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.
Q: Did he ever ask to stop the interview?
A: No, sir.
Q: At any time did he ask this statement to stop?
Q: Were there any threats or promises made ...