Submitted: October 4, 1994
Filed: November 18, 1994
Mary B. McLaughlin
Assistant Attorney General
Charleston, West Virginia
Attorney for Appellee
Dana R. Shay
Fairmont, West Virginia
Attorney for Appellant
JUSTICE CLECKLEY delivered the opinion of the Court.
CHIEF JUSTICE BROTHERTON did not participate.
RETIRED JUSTICE MILLER sitting by temporary assignment.
1. "'"A trial court's decision regarding the
voluntariness of a confession will not be disturbed unless it is
plainly wrong or clearly against the weight of the evidence."
Syllabus Point 3, State v. Vance, 162 W.Va. 467, 250 S.E.2d 146
(1978).' Syl. pt. 7, State v. Hickman, 175 W.Va. 709, 338 S.E.2d
188 (1985)." Syllabus Point 2, State v. Stewart, 180 W. Va. 173,
375 S.E.2d 805 (1988).
2. This Court is constitutionally obligated to give
plenary, independent, and de novo review to the ultimate question
of whether a particular confession is voluntary and whether the
lower court applied the correct legal standard in making its
determination. The holdings of prior West Virginia cases
suggesting deference in this area continue, but that deference is
limited to factual findings as opposed to legal conclusions.
3. In circumstances where a trial court admits a
confession without making specific findings as to the totality of
the circumstances, the admission of the confession will
nevertheless be upheld on appeal, but only if a reasonable review
of the evidence clearly supports voluntariness.
4. "'Once a person under interrogation has exercised
the right to remain silent guaranteed by W. Va. Const., art. III §
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.' Syllabus Point 3, State v. Rissler, 165
W.Va. 640, 270 S.E.2d 778 (1980)." Syllabus Point 1, State v.
Woodson, 181 W. Va. 325, 382 S.E.2d 519 (1989).
5. To assert the Miranda right to terminate police
interrogation, the words or conduct must be explicitly clear that
the suspect wishes to terminate all questioning and not merely a
desire not to comment on or answer a particular question.
6. "Misrepresentations made to a defendant or other
deceptive practices by police officers will not necessarily
invalidate a confession unless they are shown to have affected its
voluntariness or reliability." Syllabus Point 6, State v. Worley,
179 W. Va. 403, 369 S.E.2d 706 (1988).
7. Representations or promises made to a defendant by
one in authority do not necessarily invalidate a subsequent
confession. In determining the voluntariness of a confession, the
trial court must assess the totality of all the surrounding
circumstances. No one factor is determinative. To the extent that
State v. Parsons, 108 W. Va. 705, 152 S.E. 745 (1930), is
inconsistent with this standard, it is overruled.
The defendant, Robert Russell Farley, was convicted in
February, 1993, by a jury in the Circuit Court of Marion County of
two counts of first-degree arson, four counts of second-degree
arson, one count of fourth-degree arson, and one count of falsely
reporting an emergency incident. He was sentenced to serve from
three to thirty years.See footnote 1 His primary assignment of error is the
admission of his confession, which he contends was rendered
involuntary by improper police conduct. We find no prejudicial
error and affirm the convictions.
In September and October, 1991, several suspicious fires occurred in Mannington, West Virginia. Fires were set in Sandy's Yarn Shop, the Old Bank Building, Shawn's Playhouse, the Community Hardware, the Masonic Lodge, the East High Street Methodist Church, and two dwellings. An arson attempt was committed upon the Old Theater, also known as the Old Show Building.
On November 3, 1991, a false fire alarm was reported to
9-1-1. Chief of Police David L. James, who had known the defendant
most of his life, identified the defendant as the caller.
Thereafter, Chief James asked a number of suspects, including the
defendant, if they would come to the police station for questioning
and a polygraph test concerning the fires. On Monday, November 4,
1991, at approximately 3:00 p.m., the defendant went to the
Mannington Police Department and met with Chief James and Robert
Hall, an investigator for the State Fire Marshal's Office.
After being advised of his Miranda rightsSee footnote 2 by the
officers present, the defendant stated that he understood his
rights and signed a waiver form. The defendant was specifically
informed that he was not under arrest and could leave at any time.
At this time, a polygraph test was administered by Sergeant Ronald
Lee Catlett.See footnote 3 Sergeant Catlett was the only person present in the
room while the defendant took the test. At its conclusion, Sergeant Catlett left the room and reviewed the results with Mr.
Hall and Chief James. These three men then questioned the
defendant about the fires in the area. It was at this time that
the defendant was informed that he did not do well on the polygraph
test. At first, he denied involvement with the fires and the false
fire alarm call; however, after the tape recording of the 9-1-1
call was played to the defendant, he admitted that he placed the
The defendant subsequently confessed to setting the fires
at the Old Bank Building, the Masonic Lodge, the East High Street
Methodist Church, and to the attempted arson at the Old Theater (Show) Building.See footnote 4 He denied involvement with any other fire in the area.
When Deputy Mark E. Fetty from the Marion County
Sheriff's Department arrived at the police department, the
defendant was again advised of his Miranda rights. Immediately
after Deputy Fetty began to question him, the defendant stated that
he would not answer any further questions without an attorney. The
interrogation ceased, and the defendant was arrested and taken into
On March 5, 1992, a hearing was held on the defendant's
pretrial motion to suppress his confession. The defendant did not
testify. Sergeant Catlett, Mr. Hall, Chief James, Officer Cross,
and Deputy Fetty testified that the defendant was properly advised
of his Miranda rights and that his statement was given voluntarily.
The police contended that no promises of leniency were given in
exchange for his confession. The circuit court, without
elaboration, found that the defendant was properly advised of his
rights and that the statement was "freely and voluntarily made,"
and was therefore admissible.
At trial, the defendant recanted his confession. He
testified that he made the statement because the officers
repeatedly questioned him, "kept on promising [him] things," and
said "we'll get you help." However, on cross-examination, the
defendant stated that he was not swayed by these offers.
Following his convictions, the circuit court denied the
defendant's motion for judgment of acquittal and motion for a new
trial. This appeal ensued.
"'"A trial court's decision regarding the voluntariness of a confession will not be disturbed unless it is plainly wrong or clearly against the weight of the evidence." Syllabus Point 3, State v. Vance, 162 W.Va. 467, 250 S.E.2d 146 (1978).' Syl. pt. 7, State v. Hickman, 175 W. Va. 709, 338 S.E.2d 188 (1985)."
Although we give deference to the factual findings of the
trial court when the voluntariness of a confession is in issue, the
ultimate determination of "voluntariness is a legal question
requiring independent [appellate] . . . determination." Arizona v.
Fulminante, 499 U.S. 279, 287, 111 S. Ct. 1246, 1252, 113 L.Ed.2d
302, 316 (1991).See footnote 5 To be specific, we hold that this Court is
constitutionally obligated to give plenary, independent, and de
novo review to the ultimate question of whether a particular
confession is voluntary and whether the trial court applied the
correct legal standard in making its determination. See State v.
Starr, 158 W. Va. at 916, 216 S.E.2d at 249 ("trial court's
discretion does not include applying an improper standard of
proof").See footnote 6 The holdings of prior West Virginia cases suggesting deference in this area continues, but that deference is limited to
factual findings as opposed to legal conclusions.
Whether police activity meets constitutional muster in
any particular context depends on the facts which are unique to the
situation. In this regard, the trial court has a superior sense of
what actually transpired during the taking of a confession, by
virtue of its ability to see and hear the witnesses who have
firsthand knowledge of the events. Appellate oversight is
therefore deferential, and we should review the trial court's
findings of fact following a suppression hearing, including mixed
fact/law findings, under the clearly erroneous standard. If the
trial court makes no findings or applies the wrong legal standard,
however, no deference attaches to such an application. Of course,
if the trial court's findings of fact are not clearly erroneous and
the correct legal standard is applied, its ultimate ruling will be
affirmed as a matter of law.
No deference is required in this case because the trial
court made no findings except to express its ultimate legal
conclusion that the statement was "freely and voluntarily made" and
was therefore admissible. Because the trial court failed to make
specific factual findings, we must first decide whether it is
necessary to remand this case for a new hearing to give the trial court an opportunity to offer to this Court and the parties the
benefit of its in-court observations and evaluations. Where
findings of fact and conclusions of law are not made as required by
law, this Court has authority to remand for noncompliance. See
Commonwealth Tire Co. v. Tri-State Tire Co., 156 W. Va. 351, 193
S.E.2d 544 (1972); Chandler v. Gore, 170 W. Va. 709, 296 S.E.2d 350
(1982) (cases decided under W.Va.R.Civ.P. 52). Relevant factors to
be considered in making this determination are the nature of the
controversy, the extent of the conflict of testimony, the
centrality of credibility to the issue to be decided, and the
completeness of the transcript of the hearing below. After
reviewing the transcript and carefully reviewing the briefs of the
parties, we believe that any conflict in testimony is minimal, at
least in the most crucial areas. The defendant did not testify at
the hearing on the motion to suppress nor did he offer any other
evidence other than the cross-examination of the police officers.See footnote 7 More significantly, the defendant does not raise as an appellate
issue the failure of the trial court to make findings. Rather, the
defendant challenges the ruling of the trial court as a matter of
law. Finally, we note that there is ample testimony to demonstrate
the reliability of the confession and the absence of the trial
court's findings on this point is not considered fatal.See footnote 8 In circumstances where a trial court admits a confession without
making specific findings as to the totality of the circumstances,
the admission of the confession will nevertheless be upheld on
appeal, but only if a reasonable review of the evidence clearly
supports voluntariness. See United States v. Carter, 569 F.2d 801
(4th Cir. 1977); United States v. Lewis, 528 F.2d 312 (4th Cir.
1975).See footnote 9
The defendant first contends that he invoked his right under Miranda to remain silent and the police officers did not honor that right as required by this Court's decisions.See footnote 10 The State, however, asserts that the defendant's statement was voluntary and that the defendant made no request to terminate the interrogation or to otherwise assert the right to silence. Thus, we deal with the issues of whether the statement obtained after the suspect allegedly decided to remain silent is admissible and whether his right to cut off questioning was scrupulously honored.
In Syllabus Point 1 of State v. Woodson, 181 W. Va. 325,
382 S.E.2d 519 (1989), we stated that violation of these rights
would render a statement inadmissible:
"'Once a person under interrogation has exercised the right to remain silent guaranteed by W.Va. Const., art. III § 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.' Syllabus Point 3, State v. Rissler, 165 W.Va. 640, 270 S.E.2d 778 (1980)."
The transcript of the tape-recorded confession shows that
at one point during the questioning Mr. Hall asked the defendant if
he was having difficulty talking about the fires. The defendant
vaguely stated that he could not talk about them, but he did not
otherwise indicate that he wanted the interrogation to end nor did
he state that he did not want to answer any further questions.
Therefore, we find that the defendant failed to invoked his right
to remain silent. He merely expressed his reluctance to give
specific and detailed information about the fires.
In an analogous situation, the United States Supreme
Court addressed a suspect's ambiguous references to counsel in
Davis v. United States, ___ U.S. ___, 114 S. Ct. 2350, 129 L.Ed.2d
362 (1994). Reviewing its application of the Edwards rule, the
Supreme Court held that the rule comes into play only if a suspect
"unambiguously" requests counsel. In Davis, although the suspect
initially waived his Miranda rights, about an hour and a half into
the interview, he said: "Maybe I should talk to a lawyer." At this
point, according to the uncontradicted testimony of the agents,
"'[We m]ade it very clear that . . . we weren't going to pursue the
matter unless we have it clarified is he asking for a lawyer or is
he just making a comment about a lawyer, and he said, ["]No, I'm not asking for a lawyer" and then he continued on, and said, "No,
I don't want a lawyer."'" After a short break, the agents then
reminded Davis of his Miranda rights and the interview continued
for another hour -- until Davis said, "'I think I want a lawyer
before I say anything else.'" At this point, questioning ceased.
___ U.S. at ___, 114 S. Ct. at 2353, 129 L.Ed.2d at 368-69.
In discussing the issue, the Supreme Court stated:
"The rationale underlying Edwards is that the police must respect a suspect's wishes regarding his right to have an attorney present during custodial interrogation. But when the officers conducting the questioning reasonably do not know whether or not the suspect wants a lawyer, a rule requiring the immediate cessation of questioning . . . would needlessly prevent the police from questioning a suspect in the absence of counsel even if the suspect did not wish to have a lawyer present." ___ U.S. at ___, 114 S. Ct. at 2355-56, 129 L.Ed.2d at 372. (Citation omitted).
The Court acknowledged "that requiring a clear assertion
of the right to counsel might disadvantage some suspects who--
because of fear, intimidation, lack of linguistic skills, or a
variety of other reasons--will not clearly articulate their right
to counsel although they actually want to have a lawyer present."
But, it said, "the primary protection afforded suspects subject to
custodial interrogation is the Miranda warnings themselves." ___
U.S. at ___, 114 S. Ct. at 2356, 129 L.Ed.2d at 372.
In a concurring opinion, four Justices expressed the view
that the rule should be that "when a suspect under custodial
interrogation makes an ambiguous statement that might reasonably be
understood as expressing a wish that a lawyer be summoned (and
questioning cease), interrogators' questions should be confined to
verifying whether the individual meant to ask for a lawyer." ___
U.S. at ___, 114 S. Ct. at 2364, 129 L.Ed.2d at 382. The majority
observed that asking such clarifying questions would "often be good
police practice," but made it clear that it was not required. ___
U.S. at ___, 114 S. Ct. at 2357, 129 L.Ed.2d at 373.
Obviously, the situation sub judice is not controlled by
Edwards. See generally Michigan v. Mosley, 423 U.S. 96, 96 S. Ct.
321, 46 L.Ed.2d 313 (1975). Rather, the defendant contends that
the request here was to terminate the interrogation in its entirety
and that request was not "scrupulously honored." Interestingly,
the decisions of the United States Supreme Court suggest that a
defendant who requests counsel has a stronger position than a
defendant who merely asserts a right to silence, if he later gives
statements in the course of further discussion with the police.
See Arizona v. Roberson, 486 U.S. 675, 683, 108 S. Ct. 2093, 2099,
100 L.Ed.2d 704, 714 (1988) ("a suspect's decision to cut off
questioning, unlike his request for counsel, does not raise the
presumption that he is unable to proceed without a lawyer's
We do not find it necessary to decide under our
Constitution and laws whether the rights protected by Edwards are
stronger than those supposedly invoked by the defendant.See footnote 11 It is
clear, however, that the reasoning of Davis is more applicable to
this case, and, in either context, we agree that "the primary
protection afforded suspects subject to custodial interrogation is
the Miranda warnings themselves." ___ U.S. at ___, 114 S. Ct. at
2356, 129 L.Ed.2d at 372.See footnote 12 We believe that under Davis insubstantial and trivial doubt, reasonably caused by the
defendant's ambiguous statements as to whether he wants the
interrogation to end, should be resolved in favor of the police and
that under these circumstances further interrogation by the police
does not offend the West Virginia Constitution. See generally
State v. Clawson, 165 W. Va. 588, 270 S.E.2d 659 (1980). Therefore,
as suggested by the Fourth Circuit in United States v. Gordon, 895
F.2d 932, 938 (4th Cir. 1990), we hold that to assert the Miranda
right to terminate police interrogation, the words or conduct must
be explicitly clear that the suspect wishes to terminate all
questioning and not merely a desire not to comment on or answer a
Furthermore, we conclude as the United States Supreme
Court stated in Mosley: "This is not a case, therefore, where the
police failed to honor a decision . . . to cut off questioning,
either by refusing to discontinue the interrogation upon request or
by persisting in repeated efforts to wear down . . . [the
suspect's] resistance and make him change his mind." 423 U.S. at
105-06, 96 S. Ct. at 327, 46 L.Ed.2d at 322.
The defendant next contends that the police used deceptive practices in obtaining his confession. Specifically, he argues that he was informed that he did not do well on the polygraph test. The problem with the defendant's factual showing on this point is that there is no evidence in the record showing the results of the polygraph. In fact, the specific results of the test were not shown or given to the defendant at the time of the interrogation. Although of questionable relevancy, the defendant states that he was not informed that the results of the test could not be used at trial. Even if we assumed that the results of the polygraph were misrepresented to the defendant, this misrepresentation standing alone would be insufficient to render the confession involuntary.See footnote 13
In State v. Worley, 179 W. Va. 403, 369 S.E.2d 706
(1988), we stated that misrepresentations made by police do not automatically render a confession inadmissible. Syllabus Point 6
of Worley states:
"Misrepresentations made to a defendant or other deceptive practices by police officers will not necessarily invalidate a confession unless they are shown to have affected its voluntariness or reliability."See footnote 14
Because the defendant has failed to make any showing that
there was in fact a misrepresentation, our discussion of this issue
is brief. We find it significant that the defendant failed to show
any causal connection between alleged misrepresentation and the
confession. The record clearly demonstrates that the defendant did
not confess upon hearing that he had performed poorly on the
polygraph. Rather, it was the 9-1-1 tape, not the polygraph
results, that sparked his confession. Confronting the defendant
with a fact that may affect his trial "does not make his confession
inadmissible." State v. Sparks, 171 W. Va. 320, 327, 298 S.E.2d
857, 864 (1982) (statement of brother who implicated the defendant
in crime); State v. Goldizen, 93 W. Va. 328, 116 S.E. 687 (1923)
(accomplice's statement threw blame on defendant).
Moreover, the evidence indicates that the confession was
reliable. Mr. James testified that the attempted arson at the Old
Theater was not public knowledge. Also, the defendant detailed the times, dates, and manner in which the fires were set. For
instance, he knew that the curtains in the Old Theater were flame
retardant. This evidence was corroborated by the fire marshal
The thrust of the defendant's involuntariness claim is that his confession was the product of impermissible promises used to foment the hope of favorable treatment and, therefore, the confession was involuntary per se. He relies on the Syllabus of State v. Parsons, 108 W. Va. 705, 152 S.E. 745 (1930): "When the representations of one in authority are calculated to foment hope or despair in the mind of the accused to any material degree, and a confession ensues, it cannot be deemed voluntary." In Parsons, we relied upon the standard enunciated by the United States Supreme Court in Bram v. United States, 168 U.S. 532, 543, 18 S. Ct. 183, 187, 42 L.Ed. 568, 573 (1897)See footnote 15:
"A confession can never be received in evidence where the prisoner has been influenced by any threat or promise; for the law cannot measure the force of the influence used, or decide upon its effect upon the mind of the prisoner, and therefore excludes the declaration if any degree of influence has been exerted."
However, as the Supreme Court recognized in Arizona v. Fulminante, 499 U.S. 279, 285, 111 S. Ct. 1246, 1251, 113 L.Ed.2d 302, 315 (1991), this is no longer the law. "[T]his passage from Bram . . . under current precedent does not state the standard for determining the voluntariness of a confession[.]" The appropriate analysis to determine a confession's voluntariness is the "totality of the circumstances" test. 499 U.S. at 286, 111 S. Ct. at 1252, 113 L.Ed.2d at 315.
Accordingly, we adopt the foregoing standard, and now
hold that representations or promises made to a defendant by one in
authority do not necessarily invalidate a subsequent confession.
In determining the voluntariness of a confession, the trial court
must assess the totality of all the surrounding circumstances. No
one factor is determinative. To the extent that Parsons is
inconsistent with this standard, it is overruled.
In Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93
S. Ct. 2041, 2047, 36 L.Ed.2d 854, 863 (1973), the Supreme Court
explained the application of this standard:
"In determining whether a defendant's will was overborne in a particular case, the Court has assessed the totality of all the surrounding circumstances--both the characteristics of the accused and the details of the interrogation. Some of the factors taken into account have included the youth of the accused, e.g., Haley v. Ohio, 332 U.S. 596,[68 S. Ct. 302, 92 L.Ed. 224 (1948)]; his lack of education, e.g., Payne v. Arkansas, 356 U.S. 560, [78 S. Ct. 844, 2 L.Ed.2d 975 (1958)]; or his low intelligence, e.g., Fikes v. Alabama, 352 U.S. 191, [77 S. Ct. 281, 1 L.Ed.2d 246 (1957)]; the lack of any advice to the accused of his constitutional rights, e.g., Davis v. North Carolina, 384 U.S. 737, [86 S. Ct. 1761, 16 L.Ed.2d 895 (1966)]; the length of detention, e.g., Chambers v. Florida, supra [309 U.S. 227, 60 S. Ct. 472, 84 L.Ed. 716 (1940)]; the repeated and prolonged nature of the questioning, e.g., Ashcraft v. Tennessee, 322 U.S. 143, [64 S. Ct. 921, 88 L.Ed. 1192 (1944)]; and the use of physical punishment such as the deprivation of food or sleep, e.g., Reck v. Pate, 367 U.S. 433, [81 S. Ct. 1541, 6 L.Ed. 2d 948 (1961)]. In all of these cases, the Court determined the factual circumstances surrounding the confession, assessed the psychological impact on the accused, and evaluated the legal significance of how the accused reacted. Culombe v. Connecticut, supra [367 U.S. 568, 81 S. Ct. 1860, 6 L.Ed.2d 1037 (1961)]."
When we examine the totality of the surrounding
circumstances of the confession in this case, we find that the
confession was given voluntarily. The defendant was a thirty-
eight-year-old man who operated a game room in Mannington,
previously owned a restaurant, and had worked in the coal mines.
He went to the police department voluntarily, and his confession
began a little over one hour after his arrival. He was properly
advised of his Miranda rights and no physical punishment took
The transcript of the interrogation does reveal that the
officers wanted to "help" the defendant. However, this suggestion
of help does not meet the threshold that is necessary to establish
unlawful inducement as we discussed in State v. Casdorph, 159
W. Va. 909, 230 S.E.2d 476 (1976). In Casdorph, we stated that the
fact that after the defendant had waived his right to remain
silent, a police officer was friendly, encouraged the defendant to confess, and promised in vague terms that he would help the
defendant, without making any specific promises or threats, did not
render the defendant's confession involuntary.
In the case at bar, the officers testified that they were
referring to psychiatric treatment, not legal help.See footnote 16 Certainly,
no specific promises of leniency were made in exchange for a
confession. Reviewing the record as a whole, we are satisfied that
no representations "calculated to foment hope or despair" in the
mind of the defendant, nor any promise or threats were made to
induce a confession. See State v. Sparks, supra.
The defendant finally argues that after he confessed to
two of the fires, Mr. Hall pressured him into confessing to the other two by insinuating that by doing so his case would be
presented to the court in a more favorable light.See footnote 17 The evidence
shows that Mr. Hall did tell the defendant that he believed he
committed more than two arsons. He urged him to be completely
truthful and to provide the details of the other fires.
Undoubtedly, Mr. Hall's questions were assertive. However, that is the nature of police interrogation.See footnote 18 A claim of coercion and
involuntariness must be objectively reasonable and must be rooted
in specific, concrete facts. We do not find that Mr. Hall's
questions were overly suggestive or coercive. Furthermore, we are
not persuaded that the defendant's freewill was overborne. In his
trial testimony, the defendant conceded on cross-examination that
he was not swayed by these comments and offers of the police.
For all the foregoing reasons, the judgment of the
Circuit Court of Marion County is affirmed.
Footnote: 1 By order dated April 16, 1993, the defendant was sentenced for first-degree arson (Counts I and V of the indictment) to concurrent terms of not less than two nor more than twenty years, with credit for time previously served; for fourth-degree arson (Count VI), he was sentenced to not less than one nor more than two years to run concurrently; for second-degree arson (Count VII), he was sentenced to not less than one nor more than ten years to run consecutively; and for falsely reporting an emergency incident (Count VIII), he was sentenced to six months, to run concurrently.
The defendant contends that his convictions on Counts II, III, and IV violate our rule against multiplicity because these charges arose from the same fire as in Count I. However, the circuit court ordered only one sentence for Counts I, II, III, and IV. It is well established that an accused may be found guilty of all offenses arising out of one transaction, but may be punished only for separate offenses. Missouri v. Hunter, 459 U.S. 359, 103 S. Ct. 673, 74 L.Ed.2d 535 (1983). We find that the sentencing order rendered this issue moot.
Footnote: 2 See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966).
Footnote: 3 The polygraph test also was administered to three or four other individuals. The defendant was the only suspect who was questioned following the test.
Footnote: 4 A transcript was prepared from a portion of the tape- recorded interrogation. During the questioning, Chief James, with help from the defendant, prepared a written statement of the confession. The statement was read to the jury. It stated, in part:
"On September 27th, 1991, there were people
up in the Bank Building on Market Street, the
106 address, upstairs second floor apartment.
I waited until everyone was gone. At around
2:00 a.m. I entered the building. I found a
lighted cigarette burning on the floor of the
second floor. I placed the burning cigarette
in the wiring of the electrical box so it
would look like an electrical fire. I then
went home and went to bed. I was awakened by
Officer Cross at our door evacuating people
from our building. I then watched the fire
and felt sad for what I had done. I didn't
mean to burn the other structures, just the
Old Bank Building. . . .
"On October 20th, 1991, at around 11:00 a.m. I went to the Show Building. The door was already ajar. I went in and checked. No one was inside. I saw a yellow bucket with rags in it and put a match to it in front of the electrical box so it would look like an electrical fire. But I knew it wouldn't burn because of the flame retardant fabric in [the] curtains. This was set for a joke. This wasn't to harm anyone or any other structures.
"At about 1:00 p.m. on the same date I went to the Masonic Building and walked through the open stairway door and went upstairs to the third floor bathroom in the hall and flipped a match in the wastebasket and walked away. I made sure that no one was in the building. I only meant to burn the building. . . .
"On October 25th, 1991, at about 11:00 p.m., after I had been out walking for about an hour I found the door open on East High Methodist Church. I walked in and saw the door open to a small room, a Sunday School
room. I entered the room. I saw a candle and I lit the candle and set it on the shelf so it would burn down and catch the shelf on fire. I then left the church knowing no one was in danger, only the church structure. I turned the lights on to find the candle because I went to church there for years."
Footnote: 5 Justice O'Connor observed in Miller v. Fenton, 474 U.S. 104, 116, 106 S. Ct. 445, 453, 88 L.Ed.2d 405, 415 (1985) (holding that the "voluntariness" of a confession is not a "factual issue," but is a "legal question meriting independent consideration in a federal habeas proceeding"): "[T]he hybrid quality of the voluntariness inquiry, subsuming, as it does, a 'complex of values,' Blackburn v. Alabama, 361 U.S. [199, 207, 80 S. Ct. 274, 280, 4 L.Ed.2d 242, 248 (1960)], itself militates against treating the question as one of simple historical fact."
Footnote: 6 In other contexts, appellate courts using the "abuse of discretion" standard have suggested that the "deferential review ordinarily inherent in that standard is modified by a closer review when the appropriate criteria that are established. . . are in question. See Cooper v. Dyke, 814 F.2d 941, 950 (4th Cir. 1987) (abuse of discretion review appropriate if district court follows proper standards); Daly v. Hill, 790 F.2d 1071, 1085 (4th Cir. 1986) (abuse of discretion not applicable where district
court applies incorrect criteria)." Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 174 (4th Cir. 1994).
Footnote: 7 The defendant testified at trial regarding the confession, but he did not renew or otherwise request the trial court to revisit the suppression issue. Thompson v. Steptoe, 179 W. Va. 199, 366 S.E.2d 647 (1988) (where there is a change in circumstances, the trial court has discretion to reconsider a pretrial ruling on a motion to suppress). In order to preserve the issue for appellate review, a defendant is not required generally to renew a pretrial motion to suppress when relevant evidence is offered at trial. See Lawn v. United States, 355 U.S. 339, 78 S. Ct. 311, 2 L. Ed. 2d 321 (1958). It is another proposition, however, whether a defendant who does not renew the motion to suppress at trial can use the new and additional evidence offered at trial to appeal the trial judge's pretrial ruling. Some guidance on this issue is provided by an earlier decision of the United States Supreme Court in Goulded v. United States, 255 U.S. 298, 312-13, 41 S. Ct. 261, 266, 65 L. Ed. 647, 654 (1921):
"Where, in the progress of a trial, it
becomes probable that there has been an
unconstitutional seizure of papers, it is the
duty of the trial court to entertain an
objection to their admission or a motion for
their exclusion and to consider and decide
the question as then presented, even where a
motion to return the papers may have been
denied before trial." (Emphasis added).
Under Goulded, the trial judge's duty "to consider and decide the question as then presented" is triggered only by a defendant's trial objection or motion. Because the defendant did not renew his motion to suppress at trial and, specifically after he had testified, he is now foreclosed from using trial testimony to challenge the trial court's ruling. See generally Wimer v. Hinkle, 180 W. Va. 660, 379 S.E.2d 383 (1989).
Footnote: 8 Although "reliability [is] the linchpin in determining the admissibility' of evidence under a standard of fairness that is required by the Due Process Clause of the Fourteenth Amendment," State v. Michaels, 642 A.2d 1372, 1380 (N.J. 1994), we do not wish by mentioning it as a relevant factor to give it undue and disproportionate weight. The decisive factor in determining the admissibility of a confession is its voluntariness. All the interrogation rules--Miranda, the prompt presentment rule, and the due process/voluntariness test--emphasize fairness, free will, and the voluntary nature of the defendant's statement. Although reliability is not irrelevant, at least as a concern under Rule 403 of the West Virginia Rules of Evidence, see Colorado v. Connelly, 479 U.S. 157, 107 S. Ct. 515, 93 L.Ed.2d 473 (1986) (Constitution does not address the reliability issue independently of the voluntariness issue), it is not the primary consideration as in the identification context, where reliability and the possibility of misidentification is the major concern. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L.Ed.2d 140, 154 (1977). Our constitutional rules in the
confession area are designed to level the playing field by reducing, at least to some extent, the opportunity for coercion and overreaching, and to limit the use of out-of-court statements where this is detected.
Footnote: 9 Concededly, we have vacillated in prior cases regarding the duty of the trial court to make findings of fact and conclusions of law, but we have always strongly recommended it. See State v. Gwinn, 169 W. Va. 456, 288 S.E.2d 533 (1982); State v. Vance, 162 W. Va. 467, 250 S.E.2d 146 (1978). However, our most definitive decision has clearly stated that such findings and conclusions are necessary and mandatory. In State v. Clark, 171 W. Va. 74, 79, 297 S.E.2d 849, 854 (1982), we stated:
"Basing its decision on the preponderance
standard, the trial court must make findings
of fact and conclusions of law regarding the
admissibility of the evidence. When
credibility of the witnesses is determinative
on the issue of whether to admit or exclude
evidence, the trial court must clearly
indicate why it chose to believe one witness
more than another. Such findings and
conclusions are necessary so that this Court
may properly fulfill its appellate review
obligations by ensuring that the state did or
did not meet its burden of proof."
Of course, as we decide in this case, the failure to comply with the Clark mandate is not always fatal. When there are no specific findings, the standard of appellate review must necessarily be de novo and plenary. See State v. Stotler, 168 W. Va. 8, 282 S.E.2d 255 (1981) (this Court made its own findings where trial judge failed to do so).
Footnote: 10 There is a serious question whether the Miranda rights are even applicable in this case. See State v. George, 185 W. Va. 539, 408 S.E.2d 291 (1991) (Miranda rights are not triggered unless there is custody); State v. Preece, 181 W. Va. 633, 383 S.E.2d 815 (1989) (no Miranda warnings necessary unless a reasonable person in the suspect's position would have considered his or her freedom of movement curtailed to a degree associated with a formal arrest). The facts indicate that the defendant was not in custody while the interrogation took place. To the contrary, he was told by the police that he was free to leave at any time he chose to do so. Telling a suspect that he/she is not under arrest and is free to leave usually is sufficient to prevent a finding of custody and will circumvent a finding of de facto arrest. See State v. Wyant, 174 W. Va. 567, 328 S.E.2d 174
(1985); State v. Stanley, 168 W. Va. 294, 284 S.E.2d 367 (1981). Because neither the parties nor the trial court addressed this issue and because the defendant was actually advised of his Miranda rights at the time he was questioned, we too will assume that the full panoply of Miranda rights apply to this interrogation.
Footnote: 11 The pragmatic difference between Michigan v. Mosley, supra, (assertion of the right to silence), and Edwards v. Arizona, supra, (request for a lawyer), is elusive and often difficult to understand. Despite some theoretical difference ("I don't want to talk about this case" versus "I don't want to deal with the police except with the help of a lawyer"), it is doubtful that most criminal defendants are thinking in these terms. Some are savvy enough to effectively assert their rights, but many are not educated or sophisticated enough to deal with police-initiated interrogation irrespective of the Miranda warnings. Many forms of hesitation indicating either an unwillingness to incriminate one's self or a desire to speak with a lawyer are, in reality, an assertion of rights vindicated by the Miranda decision.
Footnote: 12 By using Davis, supra, as an analytical starting point, we do not mean to infer that we are adopting Davis as part of West Virginia's jurisprudence. As stated in note 8, supra, the primary purpose of our interrogation rules is to level the playing field, to some extent, for the criminal defendant faced with custodial interrogation. Given the coercive atmosphere, police pressure, secrecy, and the lack of sophistication of many criminal defendants, it would seem that an expression of reluctance to cooperate, at least insofar as it relates to an expression of an interest in the assistance of a lawyer, ought to be honored by the police. An approach, more consistent with Miranda itself, would be to follow the practice approved by a number of lower courts and, as urged by the concurring opinion in Davis, to require the interrogating officers to ask clarifying questions in order to clear up any ambiguity surrounding an interest in speaking with a lawyer. We note with interest that it took the Hawaii Supreme Court only three months to reject Davis in favor of the more reasonable stop-and-clarify approach. State v. Hoey, 881 P.2d 504 (Haw. 1994).
Footnote: 13 We do not believe that merely telling the defendant that he did not do well on a polygraph examination without further elaboration is likely to encourage an innocent person to confess. Had the police intentionally fabricated more specific false results to obtain a confession, our view may very well be different. This is particularly true if the police had reduced these fabrications to a written report and disclosed it to the defendant. We definitely draw a demarcating line between police deception generally, which does not render a confession involuntary per se, and the manufacturing of false documents by the police which "has no place in our criminal justice system." State v. Cayward, 552 So. 2d 971, 974 (Fla. App. 1989). In Cayward, the District Court of Appeals stated:
"We think . . . that both the suspect's and the public's expectations concerning the built-in adversariness of police interrogations do not encompass the notion that the police will knowingly fabricate tangible documentation or physical evidence against an individual. . . . [T]he manufacturing of false documents by police officials offends our traditional notions of due process. . . . [M]anufactured documents have the potential of indefinite life and the facial appearance of authenticity." 552 So. 2d at 974.
Footnote: 14 In Worley, applying the "totality of circumstances" test, we found a confession voluntary even though the policy allegedly misrepresented to the defendant that his accomplice had confessed.
Footnote: 15 Bram quoted 3 Russell on Crimes 478 (6th American Ed. 1850).
Footnote: 16 We are indeed troubled by some of the comments made by the police during the interrogation. Police expressions of sympathy or compassion are certainly not prohibited. These expressions, like adjurations to tell the truth, are not likely by themselves to cause an innocent defendant to provide a confession. On the other hand, "any statement which is intended to imply or may reasonably be understood as implying that the suspect will not be prosecuted or punished" is absolutely forbidden. See Phillip Johnson, A Statutory Replacement for the Miranda Doctrine, 24 Am. Crim. L. Rev. 303, 305 (1987). The police in this case came perilously close to that line. A closer example of crossing the line is when the police emphasized that it was appropriate for mentally disturbed murderers to receive "good medical help" rather than punishment. Certainly, the defendant could only believe that he has been promised civil commitment as opposed to jail. Cf. Miller v. Fenton, 796 F.2d 598 (3rd Cir.), cert. denied, 419 U.S. 989, 107 S. Ct. 585, 93 L. Ed. 2d 587 (1986) (The panel of the Third Circuit actually concluded, 2-1, that the defendant's confession was voluntary based upon the facts stated above). In the case at bar, we believe from the totality of the circumstances that a reasonable person would not have concluded that police offers to help were tantamount to a promise of no criminal prosecution or imprisonment.
Footnote: 17 The transcript of the defendant's statement reflects the following exchange:
"MR. HALL: You're either completely truthful with me or you're not truthful with me at all, and that's how I'll make my decision. In terms of the fires that you set I stand prepared to prove two of them. I know that you're responsible for more than those and the whole package of the thing shows a pattern, okay, an erratic pattern of somebody crying out for help. Therefore, it's important to you.
"MR. FARLEY: I said I lit the fire, that I set the first one.
"MR. HALL: Okay. But you did more than that. Robert, you don't, apparently, you weren't hearing me before. I know the fear that's in you right now. I know the anxiety that's in you. But the point is that in order for me to be able to show what, in fact, occurred, and it is something that was beyond your control, I'm going to have to show the full and total, and complete picture. You can't just walk in and say, okay, I did one, but I didn't do any of the others because I know differently and you know differently.
"MR. FARLEY: Right, I --
"MR. HALL: Please, please be truthful."
Footnote: 18 We reject any view which would directly or indirectly suggest that it is improper for police to persuade a suspect to
confess and there is nothing in our laws to the contrary. Police are permitted in this context to take legal advantage of the vulnerability of particular criminal suspects.