Susan J. Van Zant, Esq.
Williamson, West Virginia
Attorney for Appellant
Darrell V. McGraw, Jr.
Robert D. Goldberg, Esq.
Assistant Attorney General
Charleston, West Virginia
Attorney for Appellee
4. A criminal defendant challenging the sufficiency of the evidence to support a conviction takes on a heavy burden. An appellate court must review all the evidence, whether direct or circumstantial, in the light most favorable to the prosecution and must credit all inferences and credibility assessments that the jury might have drawn in favor of the prosecution. The evidence need not be inconsistent with every conclusion save that of guilt so long as the jury can find guilt beyond a reasonable doubt. Credibility determinations are for a jury and not an appellate court. Finally, a jury verdict should be set aside only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt. Syl. Pt. 3, in part, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995).Per Curiam:
This case is before the Court upon the appeal of Mark Gilman from the September 14, 2009, final sentencing Order entered by the Circuit Court of Logan County, West Virginia. The Appellant was sentenced to a term of forty years in the West Virginia State Penitentiary after being convicted by a jury of second degree murder, (See footnote 1) arising from the death of Mary Pelfry. On appeal, the Appellant argues that: 1) the circuit court erred in not suppressing the Appellant's statement given to the police; 2) the evidence presented at trial did not support his conviction of second degree murder; (See footnote 2) 3) the circuit court erred in the jury selection; and 4) the Appellant was denied due process of law by the prosecuting attorney's misleading comments to the jury. Upon review of the parties' briefs and arguments, the record, and all other matters submitted before the Court, the decision of the circuit court is hereby affirmed.
Trooper Vance then interviewed the Appellant. The officer testified that he did not Mirandize the Appellant again as he was advised prior to obtaining any statement from the Appellant that the Appellant had been given his Miranda warnings. Sgt. Casto did not tell Trooper Vance about the Appellant's request for a lawyer; however, the Appellant never asked Trooper Vance for an attorney. Trooper Vance testified that he went over the Appellant's statement with him several times before committing it to writing. He further stated that the Appellant was cooperative and did not appear to be under the influence of any drugs or alcohol. According to Trooper Vance, the Appellant understood the questions he asked and responded accordingly. The Appellant never told the officer he was tired and the Appellant was given something to eat and drink.
The Appellant told Trooper Vance that he had picked up Ms. Pelfry at a gas station and that they had gone to Pine Creek to engage in sex. Once they arrived, Ms. Pelfry asked the Appellant to take off his clothes. As he started taking his clothes off, Ms. Pelfry began laughing. The Appellant asked her why she was laughing and she told him that it was none of his business. The Appellant stated that that is when he got mad and lost it. He stated that he slapped the victim and she said to the Appellant, 'That didn't hurt,' like she was tough or something. So, the Appellant stated that he picked up a stick and hit her in the face four or five times until she fell. The Appellant checked to see if she was dead and got scared. He stated that he left Pine Creek and went to his house and collected . . . [his] thoughts. The Appellant stated that he returned to the scene an hour or two later. He then poured gas on the victim's body and her clothes and put straw over the body. He set the victim's body on fire. The Appellant stated that he left the crime scene again only to return an hour or two later to see if the victim was burnt. Because the victim's body had not burned completely, the Appellant tried to cover the body with straw and a piece of tin. He then left the crime scene.
During the trial, the Appellant moved for a judgment of acquittal at the close of the Appellee's case, arguing that the State had failed to prove any involvement of the Appellant with Ms. Pelfry's murder. The trial court denied the motion.
The Appellant's case consisted of trying to convince the jury that his confession was false. To that end, the Appellant tried to show that, given his low IQ and psychological profile, he was more prone to give a false confession when under pressure. The Appellant denied knowing Ms. Pelfry, let alone killing her. The Appellant also testified that nothing in the statement that he gave to Trooper Vance was true. The Appellant offered Dr. Robert Miller, an expert forensic psychiatrist, who testified that he had evaluated the Appellant on November 13, 2006. Dr. Miller stated that there are twenty-five variables and factors associated with persons prone to making false confessions. Of these twenty-five factors, Dr. Miller opined that the Appellant had fourteen at the time of his confession. These factors included sleep deprivation, marijuana use, and an IQ of 83. Dr. Miller described the Appellant as being submissive to authority. However, Dr. Miller relied almost entirely on the Appellant's self-reporting in forming his opinion. (See footnote 7)
The Appellant also introduced evidence that he was not with Ms. Pelfry when her death occurred. Various family members and friends testified that the Appellant was with friends and family members at his brother's house on December 31, 2005, through January 1, 2006, for New Year's Eve. On January 2, the Appellant's brother and nephew were killed in a fire and there was testimony from the Appellant's brother and father that they had been with the Appellant on January 2, which is when the Appellant learned of his brother's death. (See footnote 8) The Appellant testified that on January 2, he had slept all day at Eugene Johnson's home (See footnote 9) and that he returned to work on January 3. Mr. Johnson, however, testified that the Appellant came to his home on January 1 and that he and the Appellant, who also worked together, returned to work on January 2. Mr. Johnson testified that the Appellant learned of his brother's death on January 2. The Appellant also offered testimony from one witness who last saw the victim on January 1 and another witness who last saw the victim on December 31. Despite the fact that there was testimony that the Appellant had been with various friends and family members during some periods of time prior to the discovery of the victim's body, there was no evidence presented by the Appellant of any individual that had constantly been with the Appellant in the days prior to the discovery of the victim. Likewise, there was no evidence regarding the exact time of Ms. Pelfry's death. Randy Frye, a field trooper with the West Virginia State Police, testified he was one of the officers who arrived first at the crime scene on January 5, 2006. Upon his arrival, the fire where the victim was burned was still smoldering.
Finally, the Appellant tried to show that another individual, Ada Sloane, killed Ms. Pelfry. Ms. Sloane testified that, in a moment of anger, she had said to her girlfriend that she killed Ms. Pelfry. Ms. Sloane, however, denied killing Ms. Pelfry. The state police also investigated Ms. Sloane and blood stains on a mattress at Ms. Sloane's apartment. The state police found that the blood stains pre-dated Ms. Pelfry's murder. Further, Ms. Sloane testified that her statement about killing Ms. Pelfry was made when she was under the influence of drugs.
At the conclusion of the trial, the jury found the Appellant guilty of murder in the second degree. The trial court sentenced the Appellant to a term of forty years in the state penitentiary.
On appeal, legal conclusions made with regard to suppression determinations are reviewed de novo. Factual determinations upon which these legal conclusions are based are reviewed under the clearly erroneous standard. In addition, factual findings based, at least in part, on determinations of witness credibility are accorded great deference.
Syl. Pt. 3, State v. Stuart, 192 W. Va. 428, 452 S.E.2d 886 (1994); Syl Pt. 2, State v. Farley, 192 W. Va. 247, 452 S.E.2d 50 (1994)(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 suggest deference in this area continue, but that deference is limited to factual findings as opposed to legal conclusions.).
A review of the lengthy and thorough suppression hearing reveals that the trial court did not err in finding that the Appellant was not in police custody at the time he confessed. The Appellant had not been charged with a crime and was repeatedly told by law enforcement officers that he was free to leave at any time. There was no evidence that the Appellant was under the influence of any drugs or alcohol and every officer who testified stated that, although the Appellant could not read, there was no indication that the Appellant did not understand the nature of what he was saying or what he was signing when he signed the waiver.
Although the Appellant asked for a lawyer at one point, the unrefuted evidence was that he was not in police custody at the time. Moreover, right after he asked for a lawyer, he indicated that he wanted to continue speaking with a different state police officer. He never indicated to the second officer that he wanted an attorney. This Court held in syllabus point three of State v. Bradshaw, 193 W. Va. 519, 457 S.E.2d 456, cert. denied 516 U.S. 872 (1995), that [t]o the extent that any of our prior cases could be read to allow a defendant to invoke his Miranda rights outside the context of custodial interrogation, the decisions are no longer of precedential value. Id. at 523, 457 S.E.2d at 560. Thus,
the Miranda right to counsel has no applicability outside the context of
custodial interrogation. Therefore, until the defendant was taken into custody,
any effort on his part to invoke his Miranda rights was, legally speaking, an
empty gesture. We believe the window of opportunity for the assertion of
Miranda rights comes into existence only when that right is available.
Id. at 530, 457 S.E.2d at 467 (footnote omitted); see Syl. Pt. 3, State v. Middleton, 220 W. Va. 89, 640 S.E.2d 152 (2006) (A police officer may continue to question a suspect in a noncustodial setting, even though the suspect has made a request for counsel during the interrogation, so long as the officer's continued questioning does not render statements made by the suspect involuntary.). The trial court's determination that the Appellant was not in police custody at the time he gave his statement was not erroneous. Because he was not in police custody, the right to counsel pursuant to Miranda, does not apply.
Likewise, the trial court did not err in finding that the Appellant voluntarily signed a waiver prior to confessing to Ms. Pelfry's murder. In upholding the trial court's determination regarding the voluntariness of the Appellant's confession, the Court relies upon its prior decision in State v. McCracken, 218 W. Va. 190, 624 S.E.2d 537 (2005). In McCracken, the defendant was charged with three counts of murder and one count of arson, stemming from a house fire. Id. at 193, 624 S.E.2d at 540. The defendant had voluntarily gone to the police station where she was interviewed. Id. During the interview, she explained how she had gone to her boyfriend's parents' home prior to the fire and had tripped over something on the porch, which was possibly a gasoline can. Id. She had then thrown her cigarette on the porch and heard a whooshing sound. Id.
The defendant challenged the admissibility of the statement she gave to the police because she was not given her Miranda warnings until approximately five hours after providing a written statement. Id. at 195, 624 S.E.2d at 542. The focus of the Court, in upholding the trial court's determination that the statement was admissible, was whether the defendant was in police custody. The Court stated that
Whether the individual was in custody is determined by an objective
test and asking whether, viewing the totality of the circumstances, a reasonable
person in that individual's position would have considered his freedom of
action restricted to the degree associated with a formal arrest. 197 W. Va. at
744, 478 S.E.2d at 752; see also Thompson v. Keohane, 516 U.S. 99, 113-14
n. 13, 116 S. Ct. 457, 133 L. Ed.2d 383 (1995); State v. Honaker, 193 W. Va.
51, 60-61, 454 S.E.2d 96, 105-06 (1994) (utilizing objective circumstances
test to determine whether the defendant was in custody). In State v. Bradshaw,
193 W. Va. 519, 457 S.E.2d 456 (1995), this Court explained that [t]he
'inherent compulsion' that is brought about by the combination of custody and
interrogation is crucial for the attachment of Miranda rights. 193 W. Va. at
530, 457 S.E.2d at 467 (citation omitted).
Analyzing the record in this case, we conclude that the lower court
correctly found that the Appellant's statement was voluntary. We find that no
reasonable person in the Appellant's position at the time of interviewing by the
police would have considered his or her freedom to have been curtailed. The
Appellant was told that she was free to leave at any time because she was not
under arrest. She visited the police station voluntarily. We find that the
Appellant's statement was properly admitted as a voluntary statement.
McCracken, 218 W. Va. at 195, 624 S.E.2d at 542.
Likewise, in the instant case, prior to the Appellant confessing to the murder of Ms. Pelfry, he went to the Logan detachment of the West Virginia State Police on his own volition to retrieve a couple of knives that the police had taken from him when he had been transported by the police to the detachment on January 5. Moreover, the Appellant voluntarily remained to speak to the officers. The Appellant was told by the state police officer who interviewed him that he was free to leave. Consequently, the Court finds that the Appellant's statement was properly admitted at trial.
[t]he function of an appellate court when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, is sufficient to convince a reasonable person of the defendant's guilt beyond a reasonable doubt. Thus, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt.
Id. at 663, 461 S.E.2d at 169, Syl. Pt. 1.
[a] criminal defendant challenging the sufficiency of the evidence to support a conviction takes on a heavy burden. An appellate court must review all the evidence, whether direct or circumstantial, in the light most favorable to the prosecution and must credit all inferences and credibility assessments that the jury might have drawn in favor of the prosecution. The evidence need not be inconsistent with every conclusion save that of guilt so long as the jury can find guilt beyond a reasonable doubt. Credibility determinations are for a jury and not an appellate court. Finally, a jury verdict should be set aside only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt.
Id. at 663, 461 S.E.2d at 169, Syl. Pt. 3, in part.
Applying the foregoing standard of review, the record in this case reveals that the Appellee introduced several statements made by the Appellant regarding the death of Ms. Pelfry. First, when the state police began investigating the crime by canvassing the area closest to the crime scene, Trooper Holbert testified that he approached the Appellant, who happened to live nearest to the crime scene, and asked him if he had seen anything unusual coming up or down the road in the last couple of days. The Appellant responded by saying, Well, you guys are here for the burnt girl. None of the officers had told the Appellant why they were there. Additionally, Trooper Holbert and Deputy Barker noticed two large five or six gallon gas cans sitting in the middle of the driveway. The police officers also saw straw that by their observations was similar to straw found at the crime scene, which had been used to cover up the victim's body.
The Appellee also introduced the Appellant's voluntarily confession to Ms. Pelfry's murder. In his confession, the Appellant explained that he picked her up to have sex with her, that he killed her after she had made fun of him as he had undressed in front of her, and that then he burned the victim's body to get rid of the evidence of his crime.
Finally, the Appellee offered the testimony of the medical examiner who testified that Ms. Pelfry died from blunt force trauma to her head. Her body was then burned and the only portion of her body which was recognizable were her legs.
The Appellant testified that basically everything he told the police was false. The Appellant also offered the testimony of several family members and friends who all testified either that the Appellant had been with them on December 31 and January 1 or that they had seen the Appellant when he found out about the death of his brother and his nephew. This evidence was offered to show alibi even though none of the Appellant's witnesses testified that they had been with the Appellant continuously during the time period when Ms. Pelfry was murdered. The Appellant also offered evidence that another person, Ada Sloane, had told her roommate that she killed Ms. Pelfry. The evidence, however, showed that the police, contrary to the Appellant's assertions, investigated Ms. Sloane and the blood evidence found at Ms. Sloane's apartment. The officer's found that the blood evidence, which consisted of stains on a mattress, pre-dated the murder. Moreover, Ms. Sloane testified that although she said that she killed Ms. Pelfry, she made the statement in
anger to her roommate and girlfriend, while she was under the influence of drugs. Ms. Sloane testified that she did not kill Ms. Pelfry.
As this Court repeatedly has held, a jury verdict should be set aside only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt. Guthrie, 194 W. Va. at 663, 461 S.E.2d at 169, Syl. Pt. 3, in part. In this case, it is undeniable that the jury was presented with sufficient evidence to support its finding that the Appellant was guilty of second degree murder beyond a reasonable doubt. Id. Therefore, this Court finds no error regarding this issue.
Our cases consistently have demonstrated that, in general, the law ministers to the vigilant, not to those who sleep on their rights. . . . When a litigant deems himself or herself aggrieved by what he or she considers to be an important occurrence in the course of a trial or an erroneous ruling by a trial court, he or she ordinarily must object then and there or forfeit any right to complain at a later time. The pedigree for this rule is of ancient vintage, and it is premised on the notion that calling an error to the trial court's attention affords an opportunity to correct the problem before irreparable harm occurs. There is also an equally salutary justification for the raise or waive rule: It prevents a party from making a tactical decision to refrain from objecting and, subsequently, should the case turn sour, assigning error (or even worse, planting an error and nurturing the seed as a guarantee against a bad result). In the end, the contemporaneous objection requirement serves an important purpose in promoting the balanced and orderly functioning of our adversarial system of justice.
Id. at 316, 470 S.E.2d at 635.
After reviewing the Appellee's closing argument, there was no objection raised by the Appellant when the Appellee stated that the Appellant graduated from high school. Moreover, even if the Appellant had objected to this, from the Court's review of the entire trial transcript, there was evidence before the jury that the Appellant, indeed, graduated from high school. Accordingly, the Court finds no error was committed by the trial court regarding the closing argument made by the Appellee in this case.