Cleckley, Justice, concurring, in part, and dissenting, in part:
In State v. Hambrick, 160 W. Va. 673, 236 S.E.2d 247
(1977), we adopted Miranda v. Arizona, 384 U.S. 436, 86 S. Ct.
1602, 16 L.Ed.2d 694 (1966), as part of our state constitutional
jurisprudence which established a prophylactic procedural shield to
support every citizen's Fifth Amendment right against compelled
self-incrimination. Part of this shield is the requirement that,
prior to custodial interrogation, the police must advise the
individual of his or her right to silence and his or her right to
an attorney. The majority seeks to avoid application of this
important procedural right by holding that the confrontation
between the defendant and the security officer did not amount to
"interrogation" or "custody."
Although I believe the majority is probably wrong as to both points, out of deference to the trial court, I concur as to the ruling on Miranda warnings. As an appellate court we are to give deference to factual findings and factual conclusions of the trial court, and I cannot conclude that the trial court was clearly wrong as to custody. On the other hand, the trial court and the majority's factual and legal conclusion that there was no interrogation is clearly wrong. Of course, as the majority states,
if there is no custody, the mere existence of interrogation is not
sufficient to trigger Miranda warnings. Nevertheless, unless the
opinion of the majority is challenged, I believe that no trial
court would ever feel obligated, short of actual arrest, to find
custody for Miranda purposes. Establishing bright line rules for
custodial interrogation determinations is not always desirable, but
there are some well recognized legal principles that must be
honored by the courts, including us.
As the majority opinion suggests, the question whether a
person is in custody for purposes of Miranda is answered by the
"objective circumstances" of the interrogation. It does not depend
on the subjective view of either the person interrogated or the
officers who conduct the interrogation. See Stansbury v.
California, __ U.S. __, 114 S. Ct. 1526, 128 L.Ed.2d 293 (1994)
Thus, there are several objective factors I would
consider crucial in determining whether there was custody. See
United States v. Griffin, 922 F.2d 1343 (8th Cir. 1990) (detailed
discussion of relevant factors which includes most of those listed
below). The first and most important factor is whether the officer
informed the suspect at the time of questioning that the
questioning was voluntary, that the suspect was free to leave, or
that the suspect was not under arrest. Although the officer did
not tell the defendant that he was under arrest or that he was not
free to walk away, the evidence shows that he did not tell the
defendant he could.
(See footnote 1) It should come as no surprise that the court in Griffin states "the absence of police advisement that the
suspect is not under formal arrest, or that the suspect is at
liberty to decline to answer questions, has been identified as an
important indicium of the existence of a custodial setting." 922
F.2d at 1350. Similarly, even under the "objective circumstances" rule articulated in Stansbury, the Supreme Court stated that the
officer's subjective view of custody is relevant "but only if the
officer's views or beliefs were somehow manifested to the
individual under interrogation and would have affected how a
reasonable person in that position would perceive his or her
freedom to leave." __ U.S. at __, 114 S. Ct. at 1530, 128 L.Ed.2d
The second factor is the absence of restraints. There
were no physical restraints in this case, and this factor weighs
heavily for the police.
The third factor is whether the suspect initiated contact
with the authorities or did the suspect voluntarily acquiesce to
the police requests to respond to questions. Certainly, it was the
security officer who stopped the defendant; and, although the
defendant somewhat engaged the police in conversation, it is clear
the defendant did not voluntarily agree to this stop and
The fourth factor deals with the tactics used, and I find
nothing to suggest any misconduct on the part of the officer.
While relevant, police tactics are not considered as crucial in
determining custody. "An interrogation can still be custodial even
though no strong-arm tactics are used, but the absence of such
tactics is a factor which can assist us in reaching an objective conclusion that the suspect could not have associated the
questioning with formal arrest." Griffin, 922 F.2d at 1351
The fifth factor deals with whether the atmosphere of the
questioning was dominated by the police. Any fair and objective
reading of what took place indicates that this was exclusively the
security officer's show. The statements made by the defendant were
all in response to the interrogation of the security officer. This
leads to the sixth factor of whether the defendant was placed under
arrest at the termination of questioning. The majority opinion
concludes that the defendant was orally placed under arrest once
the security officer was told where the cigarettes had been placed.
Although the defendant later "escaped," it is apparent the
defendant understood that he was under arrest. After the security
officer retrieved the cigarettes, the defendant stated: "Okay, man
you got your stuff back; let me go."
I believe that considering all the objective facts and
circumstances of this interrogation, a reasonable person would
conclude that the defendant was in custody within the contemplation
of Miranda. The facts of this case are distinguishable from those
in Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138, 82 L.Ed.2d
317 (1984), where the Supreme Court held "the roadside questioning
of a motorist detained pursuant to a routine traffic stop" does not
amount to "custodial interrogation." Syllabus Point 2, in part. As Justice Marshall suggested, "detention of a motorist pursuant to
a traffic stop is presumptively temporary and brief. The vast
majority of roadside detentions last only a few minutes." 468 U.S.
at 437, 104 S. Ct. at 3149, 82 L.Ed.2d at 333. Also, the Supreme
Court stated the "atmosphere surrounding an ordinary traffic stop
is substantially less 'police dominated' than that surrounding the
kinds of interrogation at issue in Miranda itself, and in the
subsequent cases in which we have applied Miranda." 486 U.S. at
439, 104 S. Ct. at 3149, 82 L.Ed.2d at 334. (Citation omitted).
In the case sub judice, the purpose of the stop was to investigate
criminal conduct that the security officer had "probable cause" to
know had taken place. There was no chance this defendant would be
released without being charged.
As I suggested earlier, however, resolution of this issue
falls initially in the hands of the trial court; and, under the
guiding principles of judicial restraint, an appellate court should
not interfere as to factual determinations unless the lower court
was clearly erroneous. See State v. Stuart, ___ W. Va. ___, ___
S.E.2d ___ (No. 22033 12/8/94) (legal conclusions involved in
suppression determinations reviewed de novo; factual determinations
informing those legal conclusions reviewed under clearly erroneous
standard). Under these facts, I cannot make such a pronouncement.
I am comforted in this conclusion by the awareness that most courts conclude that absent special circumstances (such as drawn guns or
the use of physical force), interrogation in a public place is not
"Finally Mr. Hopkins, without paying, walked
through the check-out counter, after which he
was stopped by Mr. Pyatt. When Mr. Pyatt
asked Mr. Hopkins where the two cigarette
packs were, Mr. Hopkins responded that he did
not have any cigarettes. When Mr. Pyatt told
Mr. Hopkins the brands of cigarettes, Mr.
Hopkins said, 'Man, you're slick; I didn't see
you. How did you see me do that? Where were
you at?'" (Emphasis added).
Based on the above, the majority concludes there was no
interrogation. In my opinion, the conclusion that no interrogation
took place is clearly wrong both legally and commonsensically. If
asking a stopped shoplifting suspect where the shoplifted
merchandise is located does not amount to interrogation by a
security officer, it is hard to imagine what would, short of the
In analyzing this issue, I believe there are two problems
with the majority's reasoning. First, in assessing whether there
was interrogation, a court should look at the entire conversation,
not just one isolated sentence. The majority seems concerned only
with the latter portion of the above statement that was emphasized.
This approach seems to miss the forest for the trees. The better
way to assess the facts under an "objective reasonable" standard is
to view the exchange in its full context, with an eye toward
whether incriminating information from the suspect is being sought
in light of all the circumstances. Artificial division in the
sequence of a conversation does not aid a court's evaluation of
whether interrogation existed. It seems far better in these cases
to frame the interrogation determination in a larger perspective,
evaluating all relevant parts of the conversation rather than any
one sentence in isolation.
Second, even if we looked in isolation to the emphasized
portion of the conversation, the only reasonable conclusion is that
the response came as the result of interrogation. It must be
remembered that the defendant's initial denial was followed by an
effort of the security officer to identify the merchandise.
Obviously, the security officer was trying to demonstrate his
knowledge of the theft to convince the defendant to come clean.
His statement seems clearly to be an interrogation under Rhode
Island v. Innis, 446 U.S. 291, 300-01, 100 S. Ct. 1682, 1689-90, 64
L.Ed.2d 297, 307-08 (1980):
"We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term 'interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. . . . A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation." (Emphasis added).
The majority suggests that the defendant's statements
were volunteered. While I agree with the notion that volunteered
statements are not barred by the fact that they are not preceded by
Miranda warnings, a volunteered statement is usually the exception,
not the rule. Normally, a volunteered statement is (a) where the
suspect walks into the police station and immediately gives a
confession, see Colorado v. Connelly, 479 U.S. 157, 107 S. Ct. 515,
93 L.Ed.2d 473 (1986); State v. Stewart, 180 W. Va. 173, 375 S.E.2d
805 (1988); (b) where the police comments are not directed to the
suspect, see Rhode Island v. Innis, supra; (c) where the police are
merely present, but not directly involved in the oral exchange, see
Arizona v. Mauro, 481 U.S. 520, 107 S. Ct. 1931, 95 L.Ed.2d 458
(1987); or (d) where the suspect in response to greetings or
salutations to law enforcement officers makes an inculpatory
statement, see State v. McFarland, 175 W. Va. 205, 332 S.E.2d 217
(1985). Not only did the police ask a specific question in this case, but after the defendant's denial, the officer followed it
with a detailed description of what he believed the defendant
Viewed in this light, I have no doubt that what took
place was interrogation in its classical and traditional form. See
United States v. Green, 776 F. Supp. 565 (D.D.C. 1991) (threat that
drugs found in the car would be attributed to the defendant
The majority cites State v. Cozart, 177 W. Va. 400, 352
S.E.2d 152 (1986), a DUI enhancement case, for this proposition.
I think this case is wrong. Allowing the admission of prior
convictions in this case on the merits, ostensibly as elements,
conflicts with all the policies behind Rule 404(b) of the West
Virginia Rules of Evidence. See State v. McGinnis, __ W. Va. __,
__ S.E.2d __ (No. 22031 12/8/94). Unquestionably, a jury will be
more inclined to convict on the underlying charge if they know the defendant has been twice convicted of similar conduct. In order to
avoid application of Rule 404(b), the majority suggests that the
two prior convictions are material elements of the present crime.
See United States v. Tran Trong Cuong, 18 F.3d 1132 (4th Cir. 1994)
(the prohibitions of Rule 404(b) against collateral evidence are
inapplicable when evidence is being offered to prove essential
elements of the charge). I emphatically reject this holding as a
torture of sound legal reasoning. The prior convictions are not
elements of the current charge; they are elements of penalty
The trial in these cases should be bifurcated. The jury
should first determine guilt on the underlying charge; and then if,
and only if, guilt is found, evidence should be received of the
prior convictions for enhancement purposes. This is the way
legislative directives operate under our other recidivist statutes.
See W. Va. Code, 61-11-18 (1994); W. Va. Code, 61-11-19 (1943); II
Franklin D. Cleckley, Handbook on West Virginia Criminal Procedure
453 (1993). This suggested procedure ensures fairness and avoids
Rule 404(b) problems, and is the only reasonable way that the DUI
and shoplifting enhancement statutes can be construed.
Finally, although I would not have voted with the
majority in Nichols v. United States, __ U.S. __, 114 S. Ct. 1921,
128 L.Ed.2d 745 (1994), I am not particularly troubled by the
Supreme Court's overruling of Baldasar v. Illinois, 446 U.S. 222, 100 S. Ct. 1585, 64 L.Ed.2d 169 (1980). Thus, I concur with the
majority's adoption of Nichols. To me, the fuss over the vitality
of Baldasar is over nothing. It seems quite debatable whether
uncounseled misdemeanor convictions are reliable enough to be used.
Often, much less reliable information such as gossip, arrests, and
other activities not even resulting in a trial, is considered
during sentencing. My feeling is that Nichols merely allows
evidence that is no worse than what ordinarily comes before the
Rather than evaluating the specific facts of each custody issue on a case-by-case basis, I believe judicial time and resources could be better spent. These questions take up an inordinate and disproportionate amount of time in trial and appellate courts. I see no reason why this Court should not adopt a bright line rule mandating the police to advise a defendant that he is not under arrest, he is not required to answer any questions, and he may leave at any time. Where there is noncompliance with this proposed requirement, we should presume that the custody component of Miranda is satisfied and move on to the issue of whether there was interrogation. Any reasonable doubt as to custody should be resolved in favor of the defendant. Although the presumption would be rebuttable, its mere existence should facilitate decisionmaking on this issue and would prompt the police to more readily comply with the Miranda mandates. History has shown that the giving of Miranda warnings has not undermined the effectiveness of law enforcement. See White, Defending Miranda: A Reply to Professor Caplan, 39 Vand. L.Rev. 1 (1986) (the great weight of empirical evidence supports the conclusion that Miranda's impact on the police's ability to obtain confessions has not been significant).