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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2006 Term
STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee
RONNIE ALLEN RUSH,
Defendant Below, Appellant
Appeal from the Circuit Court of Calhoun County
The Honorable Thomas C. Evans, III, Judge
Criminal Case No. 04-F-26
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
Submitted: October 3, 2006
Filed: November 30, 2006
Teresa C. Monk
Darrell V. McGraw, Jr.
Rocky D. Holmes Attorney General
Robert D. Goldberg
Public Defender Corporation Assistant Attorney General
Spencer, West Virginia Charleston, West Virginia
Attorneys for the Appellant
Attorneys for the Appellee
The Opinion of the Court was delivered PER CURIAM.
JUSTICE MAYNARD dissents and reserves the right to file a dissenting opinion.
JUSTICE BENJAMIN concurs and reserves the right to file a concurring opinion.
SYLLABUS BY THE COURT
1. Generally, findings of fact are reviewed [by this Court] for clear error and
conclusions of law are reviewed de novo. However, ostensible findings of fact, which entail
the application of law or constitute legal judgments which transcend ordinary factual
determinations, must be reviewed de novo. Syl. Pt. 1, in part, State ex rel. Cooper v.
Caperton, 196 W.Va. 208, 470 S.E.2d 162 (1996).
2. The Court is constitutionally obligated to give plenary, independent, and de novo review to the ultimate question of whether a particular confession was obtained as
a result of the delay in the presentment of a juvenile after being taken into custody before
a referee, circuit judge, or a magistrate when the primary purpose for the delay was to obtain
a confession from the juvenile. The factual findings upon which the ultimate question of
admissibility is predicated will be reviewed under the deferential standard of clearly
erroneous. Syl. Pt. 2, State v. Hosea, 199 W. Va. 62, 483 S.E.2d 62 (1996).
3. Under W.Va. Code, 49-5-8(d), when a juvenile is taken into custody, he
must immediately be taken before a referee, circuit judge, or magistrate. If there is a failure
to do so, any confession obtained as a result of the delay will be invalid where it appears that
the primary purpose of the delay was to obtain a confession from the juvenile. Syl. Pt. 3, State v. Ellsworth, 175 W.Va. 64, 331 S.E.2d 503 (1985).
4. [O]nce a defendant is in police custody with sufficient probable cause to
warrant an arrest, the prompt presentment rule . . . is triggered. Syl Pt. 2, in part, State v.
Humphrey, 177 W.Va. 264, 351 S.E.2d 613 (1986).
5. Where there are substantial defects in the transfer hearing that go to the
validity of the probable cause finding, we will reverse and remand the case for a further
transfer hearing. Syl. Pt. 7, in part, In the Matter of Mark E.P., 175 W.Va. 83, 331 S.E.2d
This case involves the appeal of Ronnie Allen Rush (hereinafter referred to
as Appellant) of his conviction as an adult by a jury in the Circuit Court of Calhoun
County of two counts of manslaughter, one count of first-degree robbery, one count of
burglary and one count of conspiracy to commit burglary. Appellant claims that reversal is
warranted on several grounds: failure to suppress statements obtained through prompt
presentment violation and coercion; inappropriate transfer of the case from juvenile to
criminal jurisdiction of the circuit court; refusal to set aside the verdict for first-degree
robbery due to insufficient evidence; not returning the case to juvenile status when the jury
failed to find Appellant guilty of the charges which elevated his case to adult status; and
refusal to sentence Appellant as a juvenile. Having before us the petition for appeal, briefs
of the parties and designated record of the proceedings and decisions below, this Court
affirms the transfer of the case to the court's criminal jurisdiction but reverses the conviction
on prompt presentment grounds.
I. Factual and Procedural Background
In the late night or early morning hours of May 14 and 15, 2003, sixty-nine
year-old Warden Groves and his companion, sixty-year-old Mary Hicks, were murdered
while asleep in separate bedrooms in Mr. Groves' house at Sand Ridge, Calhoun County,
West Virginia. Both were shot at close range with a shotgun. Appellant, who was sixteen
years old at the time, (See footnote 1) was present when the shooting occurred as he was an overnight guest
at Mr. Groves' home. After the shooting, Appellant drove one of Mr. Groves' vehicles to
his father's home less than a mile (See footnote 2) away to telephone 911. (See footnote 3) Appellant informed the 911
operator that two elderly persons had been shot and, although he was actually making the
call to 911 from his father's trailer, he had been sleeping in an upstairs bedroom of the house
where and when the shootings occurred.
As related in the record, law enforcement officers from the county sheriff's
office and the State Police responded to the murder scene and discovered the bodies. A
deputy sheriff was sent to the home of Appellant to request that he accompany the deputy
to the crime scene. Appellant obliged the officer and they arrived at the crime scene around
2:00 a.m.; Appellant was left in the sheriff's car upon arrival. At some point before 3:30
a.m., the deputy sheriff returned to the vehicle to perform a gun residue test on Appellant
at the request of Trooper Douglas Starcher of the State Police, which test later proved
negative. Around 3:30 a.m., Trooper Starcher had Appellant move to his vehicle where he
informed Appellant that he was not under arrest and free to leave before apprising Appellant
of his Miranda rights. Following Appellant's waiver of rights, the trooper set up a tape
recorder on the hood of his cruiser and proceeded to conduct and record (See footnote 4) Appellant's
interview outside of the vehicle. The interview lasted about forty minutes. (See footnote 5) Afterward,
Appellant waited in the State Police car while Trooper Starcher and the deputy sheriff
returned to reinvestigate the crime scene in light of the explanations Appellant had provided
during the interview. Trooper Starcher testified that there were troubling inconsistencies
between the crime scene and facts related in Appellant's statement.
When Trooper Starcher returned to his car he drove Appellant to the
Grantsville, West Virginia, State Police Detachment. (See footnote 6) At around 6:00 a.m., another trooper,
First Sergeant Dale Fluharty, (See footnote 7) began questioning Appellant at the detachment after again
informing Appellant of his Miranda rights. Appellant testified that Trooper Fluharty told
him that he could leave at this time, but when Appellant started to leave Trooper Fluharty
asked me if I was getting smart with him and he would rip my F-ing head off after which
the trooper said that Appellant was not permitted to leave the detachment. (See footnote 8) Although
Trooper Fluharty's interview (See footnote 9) lasted approximately two hours, no statement was taken
allegedly because Appellant had agreed to take a polygraph test. (See footnote 10) After Appellant
consented to take the test he was moved to another office to await the arrival of the
polygraph tester from the Fairmont area.
According to testimony, the State Police polygraph tester, Sergeant Karl
Streyle, arrived at the detachment at 2:30 p.m. that day and met alone with Appellant.
Trooper Streyle began the pre-test interview with Appellant which included providing
Miranda warnings and completing a waiver of rights statement. During the course of the
interview, Appellant said that he would probably fail the test if Trooper Streyle asked if he
could truthfully respond to the question of who killed the victims. Appellant also asked
Trooper Streyle if he could go home that evening because he was a juvenile and he had a
paper stating that he was mentally retarded. (See footnote 11) As reflected in the record, after knocking on
the door where Trooper Streyle was interviewing Appellant, Trooper Fluharty entered the
room very upset and told Appellant in a raised voice that new evidence had been found and
warned Appellant to tell what he knew about what went on at the Groves house. (See footnote 12) According to Trooper Streyle, immediately thereafter Appellant's demeanor changed and
he appeared frightened and asked the trooper if he would ask Trooper Fluharty to return to
the room to find out what the evidence was. Trooper Streyle left the room, asked Trooper
Fluharty to calmly return to the interview room. Trooper Fluharty returned to the room and
told Appellant that he was not sure about what evidence existed but that he should keep
talking to Trooper Streyle. When Trooper Fluharty then left the room for a second time,
Trooper Streyle related that Appellant became very upset, stood up from his chair and
indicated that he wanted an attorney before he talked with anyone else. After Appellant
invoked his right to counsel and right to remain silent, Trooper Streyle stopped the pre-test
interview; the official ending of the pre-test interview is reflected in the record as 5:00 p.m.
According to Trooper Streyle's testimony, (See footnote 13) he informed Trooper Fluharty and Trooper
Starcher of Appellant's assertion of the rights to counsel and silence. (See footnote 14) Trooper Streyle
testified that he left the detachment about an hour after the interview ended and no trooper
had approached or talked with Appellant during that time. Trooper Fluharty testified that
at some point after the pre-test interview concluded he told Appellant that he was free to
leave and he would take Appellant home, or he could wait at the detachment until the
detachment commander, Sergeant Jeff Cooper, returned from speaking with the prosecutor.
At the same time Trooper Fluharty informed Appellant that if he decided to leave and the
prosecutor did advise that charges be filed then troopers would pick him up at his father's
trailer later that evening. Appellant remained at the detachment.
It was established that Trooper Cooper arrived at the crime scene between 9:30
and 10:00 a.m. on May 15, 2003. After conducting a walk-through of the Groves house and
speaking with officers at the scene, Trooper Cooper proceeded to the trailer of Appellant's
father. Trooper Cooper collected guns and money at both residences and in vehicles parked
at both locations. (See footnote 15) Given the inconsistencies in Appellant's statements and the evidence he
collected, Trooper Cooper testified that he believed he had sufficient cause to take Appellant
into custody. Based on that conclusion, Trooper Cooper proceeded to try to locate the
prosecutor, who was not in his office or reachable by cell phone, in order to obtain his
opinion. (See footnote 16) Trooper Cooper arrived at the detachment at about 7:45 p.m., (See footnote 17) and he told
Appellant that based on the evidence he uncovered and a discussion with the prosecutor
Appellant was under arrest for both murders and possibly robbery. Appellant became
emotional after hearing about the charges and expressed his sorrow and love for the
deceased victims. Trooper Cooper testified that while he knew through a phone
conversation with Trooper Fluharty before he returned to the detachment that Appellant did
not take the polygraph, he was not informed Appellant had asserted his right to silence and
had asked for an attorney. (See footnote 18) He went on to say that because he felt that Appellant's
statement could be construed as some type of confession, he advised Appellant of his
constitutional rights by reading the rights form statements to Appellant, and had Appellant
initial each statement before signing the form to indicate that he agreed to waive his rights.
After obtaining the rights waiver at 7:52 p.m., Trooper Cooper proceeded to conduct another
tape recorded interview of Appellant, which concluded at 10:02 p.m. (See footnote 19) During the
interview, Appellant indicated that his first statement given to Trooper Starcher earlier that
day was not entirely true. Trooper Cooper testified that no one had informed him at that
juncture Appellant had invoked his right to counsel during the pre-polygraph interview, and
that had he been so informed he would not have attempted to take a statement from
Appellant was taken before the magistrate for an initial appearance at 11:00
p.m. The criminal complaint filed at that time charged Appellant with being an accessory
to murder both before and after the fact. The case proceeded in circuit court as statutorily
required where it was eventually transferred from the juvenile jurisdiction to the adult
criminal jurisdiction of the circuit court.
Two weeks after the arrest, another trooper received a phone call from
Appellant's father. Mr. Rush reported that while emptying the trash in the bathroom of his
trailer he discovered a large sum of money (See footnote 20) he could not account for hidden underneath the
plastic bag lining the trash can. Mr. Rush testified at trial that he could not recall whether
Appellant visited the bathroom the night of the murders before the police arrived to take his
son back to the scene of the crime. In a statement he gave to the investigating trooper, Mr.
Rush said he could not recall whether he had emptied the trash between the night of the
murders and when he discovered the money.
The September 2004 Term of the Calhoun County Grand Jury returned an
eight-count indictment against Appellant charging him with two counts of first-degree
murder, one count of first-degree robbery, one count of nighttime burglary, one count of
grand larceny, two counts of conspiracy to commit murder and one count of conspiracy to
commit robbery. Appellant's trial began on December 13 and ended on December 22, 2004.
The jury returned the verdict of guilty of two counts of the lesser-included offenses of
voluntary manslaughter, one count of first-degree robbery, one count of nighttime burglary
and one count of conspiracy to commit robbery. Appellant moved to be sentenced as a
juvenile offender or, alternatively, that sentence be suspended and that he be confined at the
Anthony Correctional Center. These motions were denied and the court sentenced Appellant
on March 18, 2005, to fifteen years for each count of voluntary manslaughter, thirty-five
years for first-degree robbery, one to fifteen years for burglary, and one to five years for
conspiracy to commit burglary. With the exception of the conspiracy sentence, all sentences
were ordered to be served consecutively. The petition for appeal was filed in this Court on
October 11, 2005, and granted on March 2, 2006.
II. Standard of Review
The instant appeal presents assignments of error having varying standards of
review. To the extent necessary, applicable standards of review will be set forth at the outset
of our discussion of a specific alleged error. We simply note at this point that [g]enerally,
findings of fact are reviewed [by this Court] for clear error and conclusions of law are
reviewed de novo. However, ostensible findings of fact, which entail the application of law
or constitute legal judgments which transcend ordinary factual determinations, must be
reviewed de novo. Syl. Pt. 1, in part, State ex rel. Cooper v. Caperton, 196 W.Va. 208,
470 S.E.2d 162 (1996).
Appellant's first contention is that the lower court erred by denying
suppression of all of his out-of-court statements which Appellant maintains were obtained
in violation of the prompt presentment rule. Appellant asserts that he was in custody or
reasonably believed he was in custody from the time that he was taken to the murder scene
by the sheriff's department. Appellant's challenge, therefore, extends to the admissibility
of the statements he made to Trooper Starcher, Trooper Streyle and Trooper Cooper.
We examine this issue under the standard of review this Court announced in
syllabus point two of State v. Hosea, 199 W.Va. 62, 483 S.E.2d 62 (1996), which states:
The Court is constitutionally obligated to give plenary,
independent, and de novo review to the ultimate question of
whether a particular confession was obtained as a result of the
delay in the presentment of a juvenile after being taken into
custody before a referee, circuit judge, or a magistrate when the
primary purpose for the delay was to obtain a confession from
the juvenile. The factual findings upon which the ultimate
question of admissibility is predicated will be reviewed under
the deferential standard of clearly erroneous.
Consequently, our review in this case of whether the trial court properly decided to admit
some or all of Appellant's inculpatory statements is de novo.
The applicable prompt presentment rule at issue appears in West Virginia
Code § 49-5-8 (c)(4) (2006) (See footnote 21) (2006 Supp.) as follows:
(c) Upon taking a juvenile into custody, with or without
a court order, the official shall:
* * *
(4) Take the juvenile without unnecessary delay before
a juvenile referee or judge of the circuit court for a detention
hearing pursuant to section eight-a [§ 49-5-8a] of this article:
Provided, That if no judge or juvenile referee is then available
in the county, the official shall take the juvenile without
unnecessary delay before any magistrate then available in the
county for the sole purpose of conducting such a detention
hearing. In no event may any delay in presenting the juvenile
for a detention hearing exceed the next day after he or she is
taken into custody.
This Court addressed the meaning and consequences related to this statutory provision in
syllabus point three of State v. Ellsworth, 175 W.Va. 64, 331 S.E.2d 503 (1985), by
[u]nder W.Va. Code, 49-5-8(d), when a juvenile is taken
into custody, he must immediately be taken before a referee,
circuit judge, or magistrate. If there is a failure to do so, any
confession obtained as a result of the delay will be invalid
where it appears that the primary purpose of the delay was to
obtain a confession from the juvenile.
After recognizing that the underlying purpose of prompt presentment requirements is to
provide meaningful protection for a defendant's constitutional rights, we stressed in Ellsworth that there is a heightened significance to this purpose in juvenile cases not only
due to this population's immaturity but also because of the likelihood that a juvenile who
commits a serious crime may be transferred to the court's criminal jurisdiction and tried as
an adult. Id. at 69, 331 S.E.2d 507-508. With this in mind we undertake the twofold Ellsworth inquiry to determine: (1) when Appellant was placed in custody, and (2) whether
the primary purpose for the delay in presentment to a judicial officer was to obtain a
In Ellsworth, we also elaborated on the meaning of the term custody as it is
used in West Virginia Code § 49-5-8 by stating that [i]t is apparent from this section that
the term 'custody' is equivalent to an arrest, that is, it must be based upon probable cause
where the juvenile is being taken into custody for an act which if committed by an adult
would be a crime. Id. at 70, 331 S.E.2d at 509. It is well established that an arrest by a law
enforcement officer of either a juvenile or adult means detaining a person by any act or
speech that indicates an intention to take . . . [the person] into custody and . . . subject . . .
[that person] to the actual control and will of the arresting officer. Syl. Pt. 1, in part, State
v. Muegge, 178 W.Va. 439, 360 S.E.2d 216 (1987), overruled on other grounds, State v.
Honaker, 193 W.Va. 51, 454 S.E.2d 96 (1994); see also Syl. Pt. 3, in part, State v. Preece,
181 W.Va. 633, 383 S.E.2d 815 (1989), overruled on other grounds, State v. Guthrie, 205
W.Va. 326, 518 S.E.2d 83 (1999) (an arrest or custodial detention equivalent to an arrest
exists when a reasonable person in the suspect's position would have considered his or her
freedom of action curtailed to a degree associated with a formal arrest.). Essentially, once
a defendant is in police custody with sufficient probable cause to warrant an arrest, the
prompt presentment rule is . . . triggered. Syl Pt. 2, in part, State v. Humphrey, 177 W.Va.
264, 351 S.E.2d 613 (1986). Appellant contends that the prompt presentment rule was
implicated around 2:00 a.m. when the deputy drove him to the crime scene from his father's
trailer, whereas the State contends that it was not until Appellant was actually arrested
around 8:00 p.m. that prompt presentment issues arose. We cannot agree with either
There is no indication in the record that Appellant even subjectively felt he
was under the control of an officer until he arrived at the State Police detachment when
Trooper Fluharty threatened Appellant. Appellant testified that he willingly accompanied
the deputy sheriff from his father's house and knew he was not under arrest. Additionally,
Appellant admitted that he did not hesitate to undergo the gun residue test and had no
problem with telling what happened at the Groves house to Trooper Starcher. Trooper
Starcher testified as well that he informed Appellant that he was free to leave before he read
the Miranda warnings to the young man and subsequently took his statement. Moreover,
probable cause to arrest Appellant did not exist when Trooper Starcher interviewed
The first time Appellant related that he believed his freedom was curtailed was
when he arrived at the State Police detachment around 6 a.m. It was at this time that
Trooper Fluharty told Appellant he was free to leave but, as Appellant related, as soon as
he began to leave the trooper used anger and profanity to intimidate him into staying. After
this incident, Appellant participated in an unrecorded two-hour interview with Trooper
Fluharty and agreed to take a polygraph test.
Based upon the foregoing, we find no evidence that Appellant was in custody
at the time he gave his statement to Trooper Starcher. (See footnote 22) However, we believe that the record
establishes that statements Appellant made to Trooper Streyle and Trooper Cooper were
inadmissible on prompt presentment grounds. Any reasonable person in Appellant's
position would have believed they were subject to the actual control and will of law
enforcement as a result of Trooper Fluharty's intimidating behavior. Appellant testified that
he indeed felt threatened when this occurred around 6:00 a.m. at the State Police
Detachment on May 15, 2003. Once such custodial arrest of a juvenile has occurred, his
right to be immediately taken before a judicial officer arises under W.Va. Code, 49-5-8
(d)[,] unless the primary purpose in such delay in presentment was not to obtain a
confession. Ellsworth, 175 W.Va. at 70, 331 S.E.2d at 509. The State bears the burden of
proving that delay was not for the purpose of obtaining a confession. In the Matter of
Steven William T., 201 W.Va. 654, 661, 499 S.E.2d 876, 883 (1997).
The State contends that Appellant was free to leave the detachment at any time
and that Trooper Fluharty even offered to take Appellant home. It is difficult to imagine that
Appellant, or anyone in Appellant's shoes, would even consider trying to leave when a
trooper had threatened him or her earlier for attempting to leave. It is even harder to believe
that anyone would gladly accept an offer of a ride from, and in so doing being alone in a
closed vehicle with, someone who had exhibited a volatile temper. It is not clear why
Appellant did not call his father for a ride home, but it is clear that walking to his home was
hardly an option since he lived over thirteen miles from Grantsville. Instead, Appellant
stayed at the detachment and underwent two hours of questioning and complied with the
request to undergo a polygraph test. As this Court has previously recognized, a person such
as Appellant with an impaired mental condition has an increased susceptibility to
manipulation, influence and coercion. State v. Goff, 169 W.Va. at 784, 289 S.E.2d at 477.
In short, the circumstances refute the State's contention that Appellant was free to leave the
detachment. Moreover, there simply is no evidence that the excessive delay in taking
Appellant before a judicial officer was for a reason other than to extract a confession from
Absent proof by the State to the contrary, it appears from the totality of the
circumstances in light of Appellant's juvenile status and mental impairment that the
significant period of delay in this case was to elicit a confession from Appellant. Thus, the
incriminating statements obtained from Appellant by Trooper Streyle at and after 2:00 p.m.
and Trooper Cooper at and after 7:52 p.m. on May 15, 2003, as a result of the delay renders
the statements inadmissible. The lower court's ruling to the contrary must therefore be
reversed. (See footnote 23)
The remaining error raised by Appellant which we will address (See footnote 24) involves the
trial court's decision to transfer this case to the court's criminal jurisdiction. (See footnote 25) Relying on
syllabus points one, two and three of In the Matter of Steven William T., 201 W.Va. 654,
499 S.E.2d 876 (1997), we summarized our standard for reviewing orders in
juvenile-to-adult-jurisdiction transfer proceedings in In re James L.P., 205 W.Va. 1, 3, 516
S.E.2d 15, 17 (1999) as follows: [W]e apply the deferential, 'clearly erroneous' standard
of review to factual findings by the circuit court; we review the circuit court's legal
conclusions under the non-deferential, 'de novo' standard.
While somewhat unclear, it appears that Appellant's essential claim is that the
trial court's probable cause finding is based upon the herein previously discussed statements
Appellant claimed to be inadmissible and was made without adequate appreciation of
Appellant's immaturity and mental deficiency.
The only statements of Appellant which were admitted into evidence and
relied upon by the trial court during the transfer proceeding were those given to Troopers
Starcher and Streyle. Even though we have found the statement given to Trooper Streyle
inadmissible, we see no reason to find this flawed evidence fatal to the lower court's
decision to transfer. It is only when there are substantial defects in the transfer hearing that
go to the validity of the probable cause finding . . . [that] we will reverse and remand the
case for a further transfer hearing. Syl. Pt. 7, in part, In the Matter of Mark E.P., 175
W.Va. 83, 331 S.E.2d 813 (1985). Even without the inadmissible statement, the trial court's
twenty-eight page transfer order details sufficient evidence to support the lower statutory
standard of probable cause. The transfer order also reflects that due consideration was given
to Appellant's age and mental disability in light of all of the evidence before it. We find no
abuse of discretion and the order transferring Appellant to adult jurisdiction is, therefore,
Based upon the above, the trial court's May 18, 2004, order transferring this
case from juvenile to criminal jurisdiction is affirmed. However, we reverse the conviction
obtained in the subsequent criminal trial due to the inadmissibility on prompt presentment
grounds of the statements Appellant made to law enforcement at and after 2:00 p.m. and at
and after 7:52 p.m. on May 15, 2003. The case is remanded for a new trial.
Affirmed, in part, reversed, in part, and remanded.
Appellant's date of birth is October 23, 1986.
According to the record, Appellant's home was approximately three-tenths
of a mile from Mr. Groves' house.
The 911 service had a record of two phone calls about the incident from
Appellant between 12:30 a.m. and 1:30 a.m. on May 15, 2003.
The tape and its transcription were entered into evidence at the transfer
hearing and the criminal trial.
Trooper Starcher testified that during the taped interview he observed
Appellant had a vertical red mark on his right interior shoulder, which is consistent with a
mark left from a shotgun recoil, in addition to marks on his face that could be possible signs
of being present when a shotgun is fired. Another trooper testified Trooper Starcher told
him about these marks and that when he intentionally looked at these areas of Appellant's
body at about 4:30 p.m. during his pre-polygraph interview he observed no marks in these
We take judicial notice that Grantsville, West Virginia, is located 13.3 miles
from Sand Ridge, West Virginia. 2006 Google - Map data ©2006 NAVTEQ..
The record reflects that Trooper Fluharty had been at the crime scene around
4:00 a.m. and had asked Trooper Starcher to transport Appellant to the Grantsville
detachment. Trooper Fluharty drove separately to the detachment where he arrived around
Trooper Fluharty said that he did not threaten Appellant. The State Police
polygraph tester who had been told about the threat by Appellant testified that he questioned
Trooper Fluharty about his using profanity and otherwise intimidating Appellant and
Trooper Fluharty shrugged and told the tester that he had no patience for interviewing any
Trooper Fluharty testified that Trooper Starcher was intermittently present
during this interview.
Appellant informed the trooper who was to administer the lie detector test
about the threatening and profane statements Trooper Fluharty had made.
The record contains two reports from court ordered evaluations which
indicate that Appellant scored a 64 and a 69 on previous IQ tests, putting him at a low-
moderate to mild mental retardation level. The reports also relate that Appellant had
completed the ninth grade before quitting school but is functionally illiterate, with reading,
writing and math skills at no more than the first grade level.
The following is an excerpt from the testimony of Trooper Fluharty at the
transfer hearing regarding what spurred him to become upset and interrupt the pre-polygraph
interview: Sergeant Cooper called and informed me that he had found some money in some
vehicles that implicated Ronnie Rush and that, based on what he had found, Ronnie was
definitely involved in this crime.
Trooper Streyle not only testified but he also was the author of memoranda
admitted into evidence about what had occurred before, during and after the pre-test
interview, including receiving a request from a fellow officer to omit from the routine report
any mention of the fact that Appellant had asserted his right to counsel. An internal State
Police investigation was conducted regarding these events.
Trooper Starcher testified at the transfer hearing that Trooper Streyle did not
inform him and Trooper Fluharty that Appellant had requested a lawyer; Trooper Fluharty
testified at the transfer hearing that Trooper Streyle told him that Appellant wanted a lawyer.
Review of any determinations about the admissibility of this evidence is not
before us in this appeal.
The State maintains in its brief that Trooper Cooper began searching for the
prosecutor at 6:00 p.m., but it was established that the basis for Trooper Fluharty
interrupting the polygraph interview between 4:30 p.m. and 5:00 p.m. was that Trooper
Cooper had called him about finding new evidence. Based on the testimony and written
reports in the record of Trooper Streyle, it appears that Trooper Fluharty knew at this earlier
time that Trooper Cooper had begun his search for the prosecutor. Trooper Cooper also
testified at the pretrial hearing that he was trying to locate the prosecutor before he learned
Appellant had refused to take the polygraph [b]ecause I felt that we had uncovered enough
evidence to go ahead and charge Mr. Rush.
Trooper Cooper testified at the suppression hearing that he briefly stopped
at the detachment to use the rest room or switch cars at different times during the day,
including around 5:00 p.m.
On cross examination during the pretrial hearing, Trooper Cooper said that
he probably did tell the prosecutor that he feared Appellant was going to lawyer up. He
explained his fear was [d]ue to the fact that he had refused to take a polygraph examination,
I just became more wary that he might be refusing to cooperate anymore in the matter. I felt
that it was urgent for us to take a stand, if we were going to.
The tape or its transcription was not admitted into evidence during the
transfer hearing; however, during the trial the jury heard this taped interview and received
a copy of the transcribed audio tape.
The amount of money found in the trash can was $2,732.
The 1998 statutory provision in effect at the time relevant to the events in this
case is the same as the current statute.
Appellant also contends that the statement he made to Trooper Starcher was
inadmissible because it was not made voluntarily. We reach a contrary conclusion after
applying the two prong analysis explained in State v. Goff
, 169 W.Va. 778, 782, 289 S.E.2d
473, 476 (1982). First, Appellant was informed of his Miranda
rights. The officer, aware
of Appellant's reading and writing deficiencies, read the rights form to Appellant before
asking him to sign the form, which Appellant did without hesitation. Secondly, there is no
evidence of mental or physical coercion used by the officer in obtaining either of the
statements so as to find that they were not the product of the freewill of Appellant. Id
Syl. Pt. 2.
Based upon this determination, there is no need to separately address whether
the incriminating statements were voluntarily made.
In light of the disposition of this case, we find it unnecessary to address
Appellant's assignments regarding trial and sentencing errors.
The transfer of jurisdiction in juvenile cases is addressed in West Virginia
Code § 49-5-10 (2001) (Repl. Vol. 2004), in which it is stated in pertinent part:
(d) The court shall transfer a juvenile proceeding to
criminal jurisdiction if there is probable cause to believe that:
(1) The juvenile is at least fourteen years of age and has
committed the . . . the crime of murder under sections one, two
and three, article two of . . . chapter [sixty-one of this code].
* * *
(g) The court may, upon consideration of the juvenile's
mental and physical condition, maturity, emotional attitude,
home or family environment, school experience and similar
personal factors, transfer a juvenile proceeding to criminal
jurisdiction . . . .