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State v. Simmons

Supreme Court of West Virginia

June 16, 2017

STATE OF WEST VIRGINIA, Plaintiff Below, Respondent
v.
CHAZ A. SIMMONS, Defendant Below, Petitioner

          Submitted: May 3, 2017

         Appeal from the Circuit Court of Roane County The Honorable Thomas C. Evans, III, Judge Criminal Action No. 14-F-23

          Jason D. Parmer, Esq. Appellate Advocacy Division Public Defender Services Charleston, West Virginia Counsel for the Petitioner.

          Patrick Morrisey, Esq. Attorney General Benjamin F. Yancey, III, Esq. Assistant Attorney General Charleston, West Virginia Counsel for the Respondent.

         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).

         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');">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 or effect.

         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 under our prompt presentment rule." Syllabus Point 4, State v. Humphrey, 177 W.Va. 264, 351 S.E.2d 613 (1986).

          OPINION

          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');">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.

         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, 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.

         With respect to the interview itself, Deputy Williams testified that he filled out the Miranda[2] 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.

         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.
***
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 ...

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