January 1995 Term
STATE OF WEST VIRGINIA,
Plaintiff below, Appellee
SAMUEL MARTIN MOORE,
Defendant below, Appellant
Appeal from the Circuit Court of Wood County
Honorable George W. Hill, Judge
Civil Action No. 93-F-12
Submitted: January 11, 1995
Filed: March 24, 1995
Assistant Attorney General
Charleston, West Virginia
Attorney for Appellee
Patrick E. McFarland, Esq.
Hague & McFarland
Parkersburg, West Virginia
Attorney for Appellant
CHIEF JUSTICE NEELY delivered the Opinion of the Court.
JUSTICE BROTHERTON did not participate.
JUDGE FOX sitting by temporary assignment.
1. "When a trial judge is made aware of a possible
problem with defendant's competency, it is abuse of discretion to
deny a motion for psychiatric evaluation. To the extent that State
v. Arnold, 159 W.Va. 158, 219 S.E.2d 922 (1975), differs from this
rule, it is overruled." Syl. pt. 4, State v. Demastus, 165 W.Va.
572, 270 S.E.2d 649 (1980).
2. In the interests of future judicial economy,
whenever a trial court is confronted with a Motion for Mental
Status Evaluation and orders an examination believing that the
defendant may be incompetent or insane, the court should order that
said examination shall be conducted by "one or more psychiatrists,
or a psychologist and a psychiatrist", in accordance with W. Va.
Code, 27-6A-1 . [Emphasis added.]
3. "It is the general rule that the intelligence of a
person making a confession is but one factor to be considered in
determining whether a waiver of rights was voluntary." State v.
Adkins, 170 W.Va. 46, 53, 289 S.E. 2d 720, 727 (1982).
4. "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." Syl.
Pt. 3, State v. Vance, 162 W.Va. 467, 250 S.E.2d 146 (1978).
5. Retardation or intoxication at the time of interrogation does 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." See Syl. pt. 7, in part, State v. Farley, ___ W. Va. ___, 452 S.E.2d 50 (1994).
Neely, C. J.:
Samuel Martin Moore appeals from his 16 November 1993
conviction before the Circuit Court of Wood County of one count of
sexual abuse in the first degree and one count of burglary. In
January, 1994, Mr. Moore was sentenced to the penitentiary for one
to five years for first degree sexual abuse, and one to fifteen for
burglary. Mr. Moore assigns a number of errors relating to his
court ordered competency evaluation; the admission of his
confession; the sufficiency of the evidence proving that Mr. Moore
engaged in sexual contact; and other matters allegedly violative of
his rights to due process and a fair trial.See footnote 1 After examining the
record, we conclude that the trial court committed no reversible
error, and we affirm Mr. Moore's conviction.
Mr. Moore is thirty-one years old with an eighth grade
education and he has been diagnosed as mildly retarded.See footnote 2 On 18
August 1992, Maude Gay Matherly hired Mr. Moore to mow her lawn for
fifteen dollars. Ms. Matherly is a single working mother raising
two sons, Robbie, age ten, and Justin, age eight. Upon discovering
that Mr. Moore was cutting the grass with a sickle, she told him
someone else would mow the lawn, and sent Mr. Moore away after
paying him five dollars.
Mr. Moore returned to Ms. Matherly's house at ten 'o-
clock that night. Ms. Matherly was in the bathtub when he arrived
and the children answered the door. At that time, the boys told
Mr. Moore to "just go away, that [they] didn't need him." (Tr. 52)
Mr. Moore once again left the Matherly residence.
At approximately three o'clock in the morning, 22 August
1992, Ms. Matherly and her sons were awakened by an intruder in
their house. According to Mr. Moore's confession, he decided to
return to the Matherly's house intending to "go inside, screw [Ms.
Matherly,] and leave". (Tr. 148) He broke the windowpane out of
a side door, reached in, unlocked the door and entered the two story house. While he was downstairs, he stole money from Ms.
Matherly's purse, went into the kitchen and took an apple and a
meat fork, and then he undressed and went upstairs.
Naked, Mr. Moore walked into the room where both boys
were sleeping together in a double bed. Mr. Moore then lay on top
of Robbie, who was lying face down, uncovered and wearing
undershorts and red gym shorts. Mr. Moore began moving back and
forth apparently attempting to engage in anal intercourse with the
Robbie woke up and started to cry, awakening his older
brother Justin. Justin testified that he recognized Mr. Moore by
the light of the bedroom window. He saw Mr. Moore attempting to
restrain Robbie by holding him by the shoulders. Robbie managed to
slide from underneath Mr. Matherly and ran to his mother's room,
leaving his brother Justin alone in the room with Mr. Moore.
Meanwhile, Mr. Moore spit on Justin's leg, got off of the bed and
started toward the stairs. Justin also testified that he saw Mr.
Moore walking down the stairs, naked, with an erection.
Robbie shook his mother awake and told her someone was in
the house. When a shadowy figure appeared in the hallway, Ms.
Matherly got out of the bed and told him she had a gun. The
intruder continued past her room and down the stairs. Upon hearing shuffling sounds downstairs, Ms. Matherly dialed 911 and reported
an intruder in her home. Neither Robbie nor Ms. Matherly was able
to see the intruder's face.
Mr. Matherly picked up his pants from downstairs, put
them on without bothering to zip them, and went outside. Mr. Moore
was sitting on the corner, shirtless, putting his shoes and socks
on when an officer stopped him approximately 150 feet from the
house. Later, the officer went upstairs where he found Ms.
Matherly and her sons. When the Matherlys went outside, Justin
identified Mr. Moore as the intruder.
Investigating officers arriving on the scene discovered
where glass had been knocked out of the side door, the kitchen
cabinets had been ransacked and they found a pair of men's
underwear and a t-shirt lying inside the house at the top of the
stairs. They also found a barbecue fork and an apple lying on the
floor in the boy's room and they discovered that sixty dollars had
been stolen from Ms. Matherly's wallet. Mr. Moore's wallet was
lying on the living room floor.
Mr. Moore was taken to police headquarters and advised of
his Miranda rights by Detective Bradley. In addition to being
orally informed of the Miranda rights, the detective placed a
written copy on the table in front of Mr. Moore, and the officer pointed to each line as he read it aloud to the defendant. Mr.
Moore indicated that he understood his rights and signed and dated
the waiver of rights form. Detective Bradley then asked Mr. Moore
if he wanted to discuss what had happened that night. Mr. Moore
indicated he was willing to talk and proceeded orally to confess.
Mr. Moore subsequently refused to give a recorded statement. Mr.
Moore asserts that he was intoxicated when he confessed. Detective
Bradley does not recall Mr. Moore's physical or emotional state
during his confession, and he was unaware of the defendant's
retardation at the time of questioning.
Mr. Moore asserts that the trial court erred when it
ordered Mr. Moore's competency evaluation to be conducted by only
one psychologist rather than by one or more psychiatrists, or by
one psychiatrist and one psychologist, pursuant to W. Va. Code, 27-
6A-1 . West Virginia Code, 27-6A-1 states in pertinent part:
(a) Whenever a court of record, . . . believes that a defendant in a felony case or a defendant in a misdemeanor case in which an indictment has been returned, or a warrant or summons issued, may be incompetent to stand trial or is not criminally responsible by reason of mental illness, mental retardation or addiction, it may at any stage of the proceedings after the return of an indictment or the issuance of a warrant or summons against the defendant, order an examination of such defendant to be conducted by one or more psychiatrists, or a psychiatrist and a psychologist . . . . [Emphasis added.]
Mr. Moore's lawyer made a Motion for Mental Status Examination
asking the court to provide a psychiatric examination to determine
whether Mr. Moore was competent to stand trial, and to determine
whether Mr. Moore was criminally responsible at the time of the
alleged offense. The trial court granted the defense motion, but
ordered a psychological examination of the defendant, instead of a
The lawyer for the prosecution then suggested that W. Va.
Code, 27-6A-1  states that a psychiatric, not a psychological
examination is required. However, the court concluded that the
language of the statute was discretionary on this issue, and
proceeded to order the psychological examination. Despite the
prosecution's concern about using a psychologist rather than a
psychiatrist to examine Mr. Moore, the defense expressly stated
that it had no objection to the court's decision. Nonetheless, the
court stated: "[i]f it gets to the point where the Defendant needs
and wants, for a witness, a psychiatrist on the ground that he may
have more impact on a jury than a psychologist, we will reach that
then...." (Tr. 6)
The psychologist's report concluded that Mr. Moore was
competent to stand trial. During the subsequent proceeding to set a trial date, the issue of a formal competency hearing was
discussed. In response to the prosecution's inquiry as to whether
a competency hearing was necessary, Mr. Moore's lawyer stated:
"[a]ctually, we just need to get the Court's ruling." (Tr. 10)
Again, the prosecuting attorney asked if they needed to set a date
for a competency hearing. The court responded by stating that "we
may not need a hearing, just a ruling." Mr. Moore's lawyer agreed.
Defense counsel further stated that it had "no objection if the
court were to make a written ruling". (Tr. 11) Accordingly, after
repeated reassurance by defense counsel that a ruling would
suffice, the court did not schedule a hearing.
By Order issued on 23 June 1993, the Court ruled "based
upon the totality of evidence", that Mr. Moore was capable of
understanding and participating in his defense, and that he was
capable of understanding the nature and consequences of the crime.
In recognition of the statutory protections afforded by W. Va.
Code, 27-6A-1 , the court further ordered that:
. . . [I]f the State of West Virginia or the Defendant or his attorney request a hearing on the findings above set forth, the Prosecuting Attorney or Defendant's counsel shall notify this Court within a reasonable period of time after receipt of a copy of these findings and request a hearing on such findings to be held in accordance with Chapter 27, Article 6A, Section 2 of the West Virginia Code.
The defense made no subsequent request for a competency hearing.See footnote 3
Although the statute states that the court "may" order an
examination, we have previously held that the trial court has no
discretion to deny a request for mental examination of a defendant
if an appropriate request has been made. Franklin D. Cleckley,
Handbook on West Virginia Criminal Procedure, Vol. II, at 131 (2nd
ed. 1993), citing State v. Flint, 301 S.E.2d 765 (1983); State v.
Audia, 301 S.E.2d 199 (1983); State v. Demastus, 270 S.E.2d 649
(1980); State v. Pauley, 276 S.E.2d 792 (1981).
However, even after the results of the psychological exam
had been received, and the Court issued a competency ruling,
defense counsel did not challenge the results or request a
psychiatric evaluation. Furthermore, the psychologist's report did
not indicate that another examination by a psychiatrist was needed.
Thus, the court had no reason to doubt the competency of Mr.
Moore.See footnote 4
In Syl. pt. 4, State v. Demastus, 165 W.Va. 572, 270
S.E.2d 649 (1980) we held that:
When a trial judge is made aware of a possible problem with defendant's competency, it is abuse of discretion to deny a motion for psychiatric evaluation. To the extent that State v. Arnold, 159 W.Va. 158, 219 S.E.2d 922 (1975), differs from this rule, it is overruled.
We find that in this case defense counsel simply never pursued the
trial court's offer to provide a psychiatric evaluation.
In State v. Myers, 167 W. Va. 663, 280 S.E.2d 299 (1981)
we held that when there is some initial showing that the defendant
may be mentally incompetent the court should order a psychiatric
evaluation. However, a trial court may conclude that there is no
competency problem based upon "observations, various pro se motions
and letters filed by the defendant." Cleckley, supra, Vol. II at
131, citing State v. Dye, 171 W. Va. 361, 298 S.E.2d 898 (1982).
Likewise, reliance by the court on the conclusions of a
psychological exam can lead a judge reasonably to conclude a
defendant is competent to stand trial. The trial court apparently
relied upon the assertions of defense counsel and the findings of
the psychologist and concluded that there was no initial showing
that Mr. Moore was incompetent. Accordingly, the court found that
there was no need to order a psychiatric examination sua sponte.
We do not find it to be reversible error when the defense counsel repeatedly turns down opportunities to request a psychiatrist and waives his client's right to a full competency hearing. In State v. Baker, 169 W.Va. 357, 287 S.E.2d 497 (1982), we held that when an initial defense lawyer requests a competency examination of his client under W. Va. Code, 27-6A-1(a), but the lawyer replacing him as defense counsel fails to have the psychiatric examination conducted, it is not reversible error. Specifically, we stated that "the trial judge did not have the responsibility to insure the psychiatric examination was conducted because it was not brought to his attention." Baker, 169 W.Va. at 357, 287 S.E.2d at 500. In this case, Mr. Moore's lawyer was apparently satisfied with the psychological examination, thus no psychiatric evaluation was requested.See footnote 5
Mr. Moore argues he was prejudiced as a result of the
trial judge's failure to order a psychiatric evaluation. Mr.
Moore's lawyer had notice of the findings and opinions of the psychologist who examined his client. He did not request a
psychiatric evaluation, nor did he request a competency hearing.
Instead, Mr. Moore's lawyer chose to present a defense of
incapacity due to intoxication and mild retardation, apparently
having decided that a psychiatric examination was not needed. Mr.
Moore was not therefore prejudiced by the trial court's failure to
order a psychiatric evaluation in compliance with W. Va. Code,
27-6A-1 . This is especially significant in light of defense
counsel's admission of his client's competency during arraignment.
That finding is adequately supported by the record.
In the interests of future judicial economy, whenever a
trial court is confronted with a Motion for Mental Status
Evaluation and orders an examination believing that the defendant
may be incompetent or insane, the court should order that said
examination shall be conducted by "one or more psychiatrists, or a
psychologist and a psychiatrist", in accordance with W. Va. Code,
27-6A-1 . [Emphasis added.]
Mr. Moore also asserts that the trial court erred by
failing to suppress his confession because he was not fully
informed of his Miranda rights. Detective Bradley testified at trial that he read the following warnings from the Parkersburg
Police Department rights sheet to Mr. Moore:
You have the right to remain silent and not make a statement to me or any other police officer. You have the right to refuse to answer any questions and be represented by an attorney before any questions are asked. If you want an attorney but are unable to afford one, an attorney will be appointed for you at no cost. You must understand that any statement you do make can be used as evidence in a court of law. You have the right to stop answering questions at any time during this statement. [Emphasis added.]
Detective Bradley further testified that he was unaware of Mr.
Mr. Moore was orally read his Miranda warnings, and
concurrently shown a written copy. Detective Bradley pointed to
each line on the waiver form as he read it out loud, and asked Mr.
Moore if he understood his rights. Mr. Moore subsequently
confirmed that he understood and signed the form waiving those
The defense claims that the failure specifically to state
that any statement Mr. Moore made could be used against him
negated his ability to make a knowing and intelligent waiver of
those rights.See footnote 6 It is not a constitutional requirement that Miranda
warnings be given in the exact form stated in that decision. Furthermore, Miranda itself stated that "[t]he warnings required
and the waiver necessary in accordance with our opinion today are,
in the absence of a fully effective equivalent, prerequisites to
the admissibility of any statement made by the defendant."
[Emphasis added.] Miranda v. Arizona, 384 U.S. 436, 476, 86 S.Ct.
1602,1629, 16 L.Ed.2d 694 (1966).
The inquiry is simply whether the warnings reasonably
communicate to the suspect his rights as required by Miranda. See
U.S. v. Tillman, 963 F.2d 137, 141 (6th Cir. 1992); California v.
Prysock, 453 U.S. 355, 101 S.Ct. 2806, 2810, 69 L.Ed.2d 696 (1966);
Duckworth v. Eagan, 492 U.S. 195, 202-3, 109 S.Ct. 2875, 2879-80,
106 L.Ed.2d 166 (1989). In this case, the defendant was adequately
advised of his rights despite the omission of the word "against."
The psychologist concluded that: "In spite of Mr. Moore's lower
intellectual abilities and limited reading skills, he demonstrated
adequate memory and understanding of both court proceedings and the
charges against him. The preceding suggests that Mr. Moore can be
considered competent to stand trial and actively participate in his
In State v. Adkins, 170 W.Va. 46, 53, 289 S.E.2d 720, 727
(1982) we stated that: "[i]t is the general rule that the
intelligence of a person making a confession is but one factor to
be considered in determining whether a waiver of rights was voluntary." We find that (1) the essence of the rights conveyed in
Miranda were presented to Mr. Moore both orally and in writing;
(2) the psychologists concluded that Mr. Moore displayed adequate
understanding of court proceedings and the nature of the charges
against him; (3) Mr. Moore had a eighth grade education; and,
(4) Mr. Moore had past experience as a criminal defendant
indicating that he was no stranger to the law.See footnote 7 Accordingly, we
conclude that despite being mildly retarded, Mr. Moore made a
knowing and intelligent waiver of his right to remain silent.
Therefore, the trial court did not err by failing to exclude Mr.
Moore's confession on that basis.
Mr. Moore also asserts that his confession was not
voluntary because he was never informed of the charges against him
and he was intoxicated. The testimony of Mr. Moore's mother
supports his claim that he was intoxicated; however, Detective
Bradley had no recollection of any intoxication. In Syl. Pt. 3 of
State v. Vance, 162 W.Va. 467, 250 S.E.2d 146 (1978) we held that:
"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." In State v. Goff, 169
W.Va. 778, 289 S.E.2d 473 (1982)
The totality of the circumstances in this case shows that the defendant was informed as to the nature of the charge against him and he did knowingly and intelligently waive his Miranda rights. Mr. Moore, wearing unzipped pants, was found approximately 150 feet from the house of the victims just minutes after the crime occurred. Despite mild retardation and intoxication, he still had the presence of mind to give the officer who initially detained him on the scene a fictitious name. His underwear, shirt, shoes, and wallet were found inside the victims' home. He was taken into custody from the reported crime scene and interviewed approximately two hours later.
The facts of this case can be distinguished from State v.
Geoff, 169 W.Va. 778, 289 S.E.2d 473 (1982) involving a retarded
defendant who was not informed of the charges against him. In
Geoff, the defendant's past involvement as a police informant gave
rise to concerns that he may have believed he was being asked to
assist in solving a crime, as opposed to understanding that he was
actually a suspect under investigation for committing a crime. The
Court in Geoff ruled that under the totality of the circumstances,
the confession was involuntary. Although it appears that the
police did not expressly tell Mr. Moore the nature of the charges against him, under the circumstances there could be no confusion
about what Mr. Moore was being charged with.
Mr. Moore also argues that his combined impairments left
him highly susceptible to suggestion. However, Mr. Moore's refusal
to allow his confession to be recorded after his oral confession to
Detective Bradley negates the inference that Mr. Moore was
unusually susceptible to manipulation or influence by the police.
The evidence in this case supports the conclusion that Mr. Moore
had the capacity to understand the meaning and effect of his
confession, and voluntarily waived his rights.
Retardation or intoxication at the time of interrogation
does 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.
See Syl. pt. 7, in part, State v. Farley, ___ W. Va. ___, 452
S.E.2d 50 (1994). We find that under the totality of the
circumstances, the trial court's decision to admit Mr. Moore's
confession was neither "plainly wrong" nor "clearly against the
weight of the evidence". Syl. Pt. 3, Vance, supra.
Mr. Moore also asserts that the trial court erred by
failing to grant his motion for judgment of acquittal on each
charge in the indictment. In count one of the indictment, Mr.
Moore was charged with sexual abuse in the first degree, which
requires proof of "sexual contact". W. Va. Code, 61-8B-1(6)
, states in pertinent part that:
`Sexual contact' means any intentional touching, either directly or through clothing, of the anus or any part of the sex organs of another person,...where the victim is not married to the actor and the touching is done for the purpose of gratifying the sexual desire of either party.
Mr. Moore claims that the State failed to prove beyond a reasonable
doubt that sexual contact occurred between Mr. Moore and Robbie
We find the appellant's contention that the State did not
prove all elements of the crime to be without merit. A close
scrutiny of the record reveals that there was more than enough
evidence to support this conviction. There is direct evidence that
Mr. Moore walked naked into the room where the children were
sleeping, climbed into the bed in which both boys were sleeping,
laid on top of ten year old Robbie who was sleeping face down, and
began moving back and forth.
Robbie testified that someone was on top of him "pushing against...[his] butt", which felt "bad". Robbie's brother Justin testified that he woke up and saw Mr. Moore on top of his brother "holding him on his arms where he couldn't get away." Justin also testified he later saw Mr. Moore walking down the stairs naked, with an erection. Mr. Moore argues that actual anal contact was never proven. We find that the jury could reasonably infer from the circumstances that sexual contact, as defined by the Code, occurred. Therefore, we hold that the trial court did not err by failing to acquit Mr. Moore on the charge of sexual abuse in the first degree.
In count two of the indictment, Mr. Moore was charged with breaking and entering with the specific intent to commit a sexual offense within. Mr. Moore asserts that without his confession, there was insufficient evidence to support a determination that Mr. Moore entered with the requisite intent. However, in view of our ruling upholding the admissibility of Mr. Moore's confession, this assignment of error is without merit.
For the foregoing reasons, the judgment of the Circuit Court of Wood County is affirmed.
Footnote: 2 According to Appellant's brief, Mr. Moore's school records diagnosed him as "severely retarded but trainable". (Appellant's brief at 7.) However, in March 1993, the psychologist who conducted Mr. Moore's competency evaluation concluded that he was mildly retarded.
Footnote: 3 The prosecution also made no further inquiry about a competency hearing.
Footnote: 4 In fact, even Mr. Moore's lawyer made limited representations with respect to his client's competency. At the arraignment hearing on 17 September 1993, the defense lawyer stated "I believe that he knows and understands what he is accused of and can answer any questions that the Court has at this present time."
Footnote: 5 One problem with criminal law is that it is becoming more and more like medicine in that numerous unnecessary (and expensive) procedures are done simply for defensive purposes. Mindlessly filing a sheaf of stock motions does not win criminal cases; indeed, such tactics actually distract judges from what a defendant really needs. Twenty stock motions will probably be dismissed or responded to be rote; three incisive requests that actually help a defendant get an acquittal will be thoughtfully evaluated. The facts of this case indicate that defense counsel was tactically correct as there appears to be no evidence of either incompetency or insanity.
Footnote: 6 There are no allegations of police coercion.
Footnote: 7 Mr. Moore had previously pleaded guilty to a separate second degree sexual offense.