Rodney C. Windom Darrell V. McGraw, Jr.
Paul V. Morrison, II Attorney General
Judith A. Isner Allen H. Loughry, II
Harrisville, West Virginia Senior Assistant Attorney General
Attorneys for the Appellant Charleston, West Virginia
Attorneys for the Appellee
JUSTICE DAVIS delivered the Opinion of the Court.
JUSTICE MAYNARD dissents and reserves the right to file a dissenting opinion.
1. When a statement is obtained from an accused in violation of the
prompt presentment rule, neither the statement nor matters learned directly from the
statement may be introduced against the accused at trial.
2. Miranda warnings must be given to a criminal suspect, who is in
custody, prior to conducting a polygraph examination.
3. Prior to giving a polygraph examination, the police must inform the
defendant of his Miranda rights even though defense counsel is present in the room with
the defendant when a polygraph examination is about to be given.
4. While a defendant may waive the rights articulated under the Miranda
warnings, a defendant cannot, as a matter of law, waive the reading of the Miranda
5. In determining whether the initial Miranda warnings have become so stale as to dilute their effectiveness so that renewed warnings should have been given due to a lapse in the process of interrogation, the following totality-of-the-circumstances criteria should be considered: (1) the length of time between the giving of the first warnings and subsequent interrogation; (2) whether the warnings and the subsequent interrogation were given in the same or different places; (3) whether the warnings were given and the subsequent interrogation conducted by the same or different officers; (4) the extent to which the subsequent statement differed from any previous statements; and (5) the apparent intellectual and emotional state of the suspect.
Millard J. DeWeese, appellant/defendant below (hereinafter referred to as Mr. DeWeese), appeals his felony-murder conviction decided by a jury in the Circuit Court of Ritchie County. The circuit court sentenced Mr. DeWeese to life imprisonment without mercy. Here, Mr. DeWeese assigns error to (1) the admission of statements he made prior to being presented to a magistrate, (2) the admission of statements made during the course of two polygraph examinations, and (3) the manner in which a hearing was held to investigate alleged juror misconduct. (See footnote 1) After a careful review of the briefs and record, and having heard the oral arguments of the parties, we reverse the conviction and sentence, and remand this case for a new trial.
Several people were at the DeWeese home when the girls returned. Among
those present was Lee Lawrence, a former boyfriend of Crystal's. Also present was
Crystal's brother, Robert Trader. After Crystal became ill, Mr. Lawrence and Mr. Trader
were told that she had taken pills purchased from Mr. Rollins. The two young men were
also told that Mr. Rollins had propositioned both girls for oral sex. Lee Lawrence and an
unidentified person went to Mr. Rollins' home to confront him about the allegations.
Lee Lawrence and his companion found Mr. Rollins at home drinking beer
with a guest, Mike Slater. A verbal dispute erupted between Lee Lawrence and Mr. Rollins.
Lee Lawrence threatened to kill Mr. Rollins if Crystal died because of the pills. Mike Slater
was apparently able to calm things down and suggested that everyone go to the DeWeese
home to check on Crystal's condition.
Once the four men arrived at the DeWeese home they learned that Crystal's
condition had improved. It appeared she would be fine. However, a dispute flared outside
the DeWeese home between Mr. Rollins and Robert Trader. During the verbal
confrontation, Robert Trader punched Mr. Rollins on the left side of his face. The blow
rendered Mr. Rollins unconscious. No further physical attacks occurred. Mike Slater
subsequently placed Mr. Rollins on his shoulder and carried him home.
When Mr. Slater arrived at Mr. Rollins' home, he placed Mr. Rollins on the
front porch. Mr. Slater then returned to the DeWeese home where he stayed for
approximately one hour. Mr. Slater then returned to check on Mr. Rollins, and found him
lying on a couch in his living room. Mr. Rollins had no recollection of his encounter with
Mr. Trader. In fact, Mr. Slater explained to Mr. Rollins that he had been hit and knocked
unconscious. Mr. Slater observed that Mr. Rollins' eye was beginning to swell and he
joked that Mr. Rollins would have a real nice shiner tomorrow. Mr. Slater then left and
went to the nearby home of another friend, but returned briefly to check on Mr. Rollins.
Later, sometime between 2:00 a.m. and 2:30 a.m., Mr. DeWeese, Mr.
Lawrence, and Mr. Trader went to Mr. Rollins' home. The three men broke into Mr.
Rollins' home and found him sleeping in bed. They proceeded to beat him. During Mr.
DeWeese's trial, the evidence was conflicting as to the extent to which each man actually
beat Mr. Rollins.
(See footnote 3)
The record is clear, however, in demonstrating that all three men did in
fact assault Mr. Rollins. When the beating ended, all three men left the home.
After the three men left, Mr. Slater again returned to Mr. Rollin's home.
During the trial, Mr. Slater testified that he found Mr. Rollins in a badly beaten condition.
His face was swollen and he was having trouble breathing. Mr. Slater summoned
emergency medical technicians (EMTs). When the EMTs arrived they examined Mr.
Rollins and requested that he permit them to take him to a hospital. He refused. The EMTs
left an ice pack for Mr. Rollins and then departed. Mr. Slater stayed with Mr. Rollins until
sometime after daybreak. Mr. Slater testified that Mr. Rollins was alive when he left the
home. At about 11:00 a.m., Mr. Slater was advised that Mr. Rollins was dead.
(See footnote 4)
Shortly after authorities learned of Mr. Rollins' death, arrest warrants were
issued for Mr. DeWeese, Mr. Lawrence, and Mr. Trader. At 4:00 a.m., on September 2,
1999, Mr. DeWeese was arrested at his mother-in-law's home in Huntington. Mr.
DeWeese was taken to the Cabell County jail pending transfer to Ritchie County. While
at the Cabell County jail, Mr. DeWeese was given Miranda warnings. He subsequently
gave a statement denying any involvement in Mr. Rollins' death. Mr. DeWeese was not
taken before a magistrate while he was being held by Cabell County officials.
At 5:00 p.m. on September 2, a State Trooper picked up Mr. DeWeese and
transported him to the State Police Detachment in Harrisville, Ritchie County. The Trooper
arrived with Mr. DeWeese at about 8:00 p.m. Mr. DeWeese was interrogated upon his
arrival in Harrisville. He gave a statement implicating his involvement in the beating of Mr.
Rollins. The statement, which was recorded, was concluded at 9:30 p.m. At about 10:45
a.m. the next morning, Mr. DeWeese was presented for the very first time to a magistrate.
He remained in custody and, on September 9, 1999, he submitted to two consecutive
polygraph examinations. During the examinations, he gave additional incriminating
statements about his role in the beating of Mr. Rollins.
(See footnote 5)
Mr. DeWeese ultimately was indicted by a grand jury for the murder of Mr.
Rollins. He was tried before a jury in August, 2000. A mistrial was declared when the jury
was unable to reach a verdict. A second trial began on March 26, 2001. On April 3, 2001,
the jury returned a verdict of felony-murder, without mercy.
(See footnote 6)
Mr. DeWeese filed a motion
for a new trial. His motion was denied. He was subsequently sentenced to life
imprisonment without possibility of parole. From these rulings, Mr. DeWeese now appeals.
The dispositive issues raised in Mr. DeWeese's appeal concern the trial
court's denial of his pretrial motion to suppress statements given while in custody. In
Syllabus point 1 of State v. Lacy, 196 W. Va. 104, 468 S.E.2d 719 (1996), we set out the
standard of review of a circuit court's ruling on a motion to suppress:
When reviewing a ruling on a motion to suppress, an appellate court should construe all facts in the light most favorable to the State, as it was the prevailing party below. Because of the highly fact-specific nature of a motion to suppress, particular deference is given to the findings of the circuit court because it had the opportunity to observe the witnesses and to hear testimony on the issues. Therefore, the circuit court's factual findings are reviewed for clear error.
It has also been held by this Court that we review de novo questions of law and the circuit court's ultimate conclusion as to the constitutionality of the law enforcement action. State v. Lilly, 194 W. Va. 595, 600, 461 S.E.2d 101, 106 (1995).
Our prompt presentment rule is contained in W. Va. Code § 62-1-5(a)(1) (1997) (Repl. Vol. 2000) and provides in relevant part:
An officer making an arrest under a warrant issued upon
a complaint . . ., shall take the arrested person without
unnecessary delay before a magistrate of the county where the
arrest is made.
See also, W. Va. R. Crim. P. 5(a) (An officer making an arrest under a warrant issued upon a complaint . . . shall take the arrested person without unnecessary delay before a magistrate within the county where the arrest is made.). In Syllabus point 1 of State v. Guthrie, we held that '[t]he delay in taking a defendant to a magistrate may be a critical factor [in the totality of circumstances making a confession involuntary and hence inadmissable] where it appears that the primary purpose of the delay was to obtain a confession from the defendant.' 173 W. Va. 290, 315 S.E.2d 397 (1984) (quoting Syl. pt. 6, State v. Persinger, 169 W. Va. 121, 286 S.E.2d 261 (1982)).
The record in the instant case is quite clear. Mr. DeWeese was not taken to
a magistrate in Cabell County when the initial arrest occurred.
(See footnote 7)
The record also reveals that
when Mr. DeWeese was taken to Ritchie County he was held in jail for approximately
fifteen hours before being presented to a magistrate. During his pre-presentment
confinement in Ritchie County, Mr. DeWeese gave incriminating statements that he now
contends should have been suppressed. We believe the facts support Mr. DeWeese's
(See footnote 8)
The facts clearly establish that the reason Mr. DeWeese was not promptly
taken to a magistrate in Ritchie County was that because law enforcement officials wanted
to obtain a statement from him. During the course of cross-examination of the lead
investigating officer in the case, Trooper M. Adams, the officer testified that he delayed
taking Mr. DeWeese to a magistrate because he wanted to obtain a statement from him.
(See footnote 9)
Trooper Adams testified as follows:
Q. And the truth is that your primary concern was getting a statement from him; wasn't it, Trooper?
A. Absolutely. I wanted to speak to Mr. DeWeese. Absolutely.
. . . .
Q. Did you honestly care whether [Cabell County
officers] presented him to a magistrate as required by law?
A. No, sir.
In spite of the explicit evidence showing that the prompt presentment rule was violated, the State has argued that the circuit court's ruling was correct. The State submits that Mr. DeWeese was advised of his Miranda rights several times during the course of the thirty hour period prior to his arraignment. Therefore, the statement was voluntary and admissible. Furthermore, the State notes that the statement itself was not admitted into evidence. There was only testimony regarding some of its contents. We will take up each argument separately.
1. Miranda warnings. Under the argument raised by the State, so long as
the police read Miranda warnings to a suspect they may indefinitely withhold the suspect
from a magistrate in hopes of obtaining a voluntary statement. We summarily reject this
argument, as it would completely abolish the very essence of the prompt presentment rule.
The prompt presentment rule is not nullified merely because the police read
Miranda warnings to a suspect who is under arrest.
(See footnote 10)
The sole purpose of the prompt
presentment rule is to bring a detached judicial officer into the process once an arrest ha[s]
been made to furnish meaningful protection for a defendant's constitutional rights. State
v. Ellsworth, 175 W. Va. 64, 69, 331 S.E.2d 503, 507-08 (1985) (emphasis added). See also
State v. Grubbs, 178 W. Va. 811, 814, 364 S.E.2d 824, 827 (1987) (The prompt presentment
rule requires an individual to be promptly taken before a neutral magistrate after arrest.
This is to insure that the accused is fully informed of his various constitutional and statutory
2. Introduction of only statement contents. We are similarly unpersuaded
by the State's contention that since only the contents of Mr. DeWeese's statement was
introduced, and not the statement itself, no legal consequence should flow from the delay
in presenting him to a magistrate.
(See footnote 11)
Mr. DeWeese contends that the fruits of the poisonous
tree doctrine precluded use of the contents of his statement. For the reasons discussed, we
agree with Mr. DeWeese.
Under the fruits of the poisonous tree doctrine '[e]vidence which is located
by the police as a result of information and leads obtained from illegal [conduct],
constitutes 'the fruit of the poisonous tree' and is . . . inadmissible in evidence.' State v.
Stone, 165 W. Va. 266, 272, 268 S.E.2d 50, 54-55 (1980) (quoting French v. State, 198
So. 2d 668 (Fla. Dist. Ct. App. 1967)). We have observed, however, that absent a
constitutional violation, the 'fruits of the poisonous tree' doctrine has no applicability.
State v. Bradshaw, 193 W. Va. 519, 540, 457 S.E.2d 456, 477 (1995).
The prompt presentment rule is not a constitutional doctrine. It is a
legislatively created and judicially adopted rule.
(See footnote 12)
See Rogers v. Albert, 208 W. Va. 473,
477, 541 S.E.2d 563, 567 (2000) (per curiam) ([T]he right to prompt presentment is not
constitutionally guaranteed outside the context of a warrantless arrest, but rather exists as
a statutory and procedural right.). Although the prompt presentment rule is not adorned
by the constitution, it is designed to protect the constitutional rights of an accused. In view
of the significant purpose of the prompt presentment rule, we perceive no legally justifiable
reason for not extending the fruits of the poisonous tree doctrine to preclude the use of
evidence derived directly from a statement that was obtained as a result of a violation of the
prompt presentment rule.
If this Court did not extend the fruits of the poisonous tree doctrine to a
violation of the prompt presentment rule, then prosecutors could get around the legal
consequences of obtaining a statement in violation of the rule by introducing testimony only
of matters learned from the contents of the statement instead of the actual statement itself.
Such conduct is impermissible. Therefore, in light of [the] extreme significance of our
prompt presentment statute to the administration of criminal justice in this state, and in view
of the precious constitutional rights implicated when government officials are permitted to
hold persons in custody for extended periods of time without the intervention of a neutral
and detached judicial officer, State v. Mason, 162 W. Va. 297, 301, 249 S.E.2d 793, 796
(1978), we hold that when a statement is obtained from an accused in violation of the
prompt presentment rule, neither the statement nor matters learned directly from the
statement may be introduced against the accused at trial.
Based upon the foregoing, we find that the trial court committed error in not
suppressing the pre-arraignment statement given by Mr. DeWeese, as well as evidence of
all information learned directly from that statement.
(See footnote 13)
At the outset we note that no evidence was introduced to the jury that Mr.
DeWeese took polygraph tests. We have long held that [p]olygraph test results are not
admissible in evidence in a criminal trial in this State. Syl. pt. 2, State v. Frazier, 162
W. Va. 602, 252 S.E.2d 39 (1979). In addition, we have ruled that [r]eference to an offer
or refusal by a defendant to take a polygraph test is inadmissible in criminal trials to the
same extent that polygraph results are inadmissible. Syl. pt. 2, State v. Chambers, 194
W. Va. 1, 459 S.E.2d 112 (1995). Although evidence of polygraph test results and
reference to offering or refusing to take a polygraph test are prohibited from use in a
criminal prosecution, [t]he general rule . . . is that statements are not inadmissible merely
because they were made during the course of a polygraph examination. People v. Ray, 430
N.W.2d 626, 628 (Mich. 1988). That is, statements made by a defendant during the course
of a properly administered and unobjectionable polygraph test may be used against the
defendant at trial.
In the instant case, Mr. DeWeese contends that the polygraph tests he took
were improperly administered because he was not given Miranda warnings prior to each
test. This Court has never squarely addressed the issue of whether Miranda warnings are
required before a polygraph test is administered. See State v. Frazier, 162 W. Va. 602, 620
n.14, 252 S.E.2d 39, 49 n.14 (1979) (observing in passing that Miranda may apply to the
defendant's taking a polygraph test.). We do so now.
In Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966),
the United States Supreme Court held that law enforcement officers must inform suspects
of certain fundamental constitutional rights prior to initiating custodial interrogation.
Miranda held that a suspect must be warned prior to any questioning that he has the right
to remain silent, that anything he says can be used against him in a court of law, that he has
the right to the presence of an attorney, and that if he cannot afford an attorney one will be
appointed for him prior to any questioning if he so desires. Miranda, 384 U.S. at 479, 86
S. Ct. at 1630, 16 L. Ed. 2d at 726. This Court has recognized that [t]he special safeguards
outlined in Miranda are not required where a suspect is simply taken into custody, but
rather only where a suspect in custody is subjected to interrogation. Syl. pt. 8, in part,
State v. Guthrie, 205 W. Va. 326, 518 S.E.2d 83 (1999). Here, there is no dispute that Mr.
DeWeese was in custody at the time of the polygraph examination.
All courts that have been squarely presented with the issue have held that Miranda warnings must be given to a suspect, who is in custody, prior to conducting a polygraph examination. See Vasser v. Solem, 763 F.2d 975, 977 (8th Cir. 1985) (holding that when a polygraph examination is administered to a suspect while under criminal investigation, full instructions of his rights should be furnished); People v. Gordon, 149 Cal. Rptr. 91, 97 (1978) (holding that where no Miranda warnings were given to defendant before his submission to polygraph test, statements were rendered inadmissible at trial); People v. Algien, 501 P.2d 468, 470 (Colo. 1972) (suppressing confession after finding police failed to advise the defendant of his Fifth Amendment rights as required by Miranda, before administering the polygraph examination); People v. Zimmer, 329 N.Y.S.2d 17, 25 (1972) (suppressing statements made during polygraph test because [t]he defendant's rights against self-incrimination were not adequately protected); Commonwealth v. Bennett, 264 A.2d 706, 708 (Pa. 1970) (We therefore rule that, under the circumstances, it was absolutely essential, before the questioning began during the polygraph test, that Bennett be given a full warning of his constitutional rights, and since he was not, the evidentiary use of any facts secured through such questioning or any subsequent questioning, tainted by the original illegality, was constitutionally proscribed.); State v. Faller, 227 N.W.2d 433, 436 (S.D. 1975) (remanding the case for the trial court to determine whether defendant was given his warnings before submitting to the polygraph examination and, if so, whether he understood such). See also, Wyrick v. Fields, 459 U.S. 42, 44, 103 S. Ct. 394, 394, 74 L. Ed. 2d 214 (1982) (Prior to undergoing the polygraph examination, Fields was given a written consent document, which he signed, informing him of his rights, as required by Miranda[.]). As a result of the foregoing authorities, we have little hesitancy in holding that Miranda warnings must be given to a criminal suspect, who is in custody, prior to conducting a polygraph examination. (See footnote 16)
There is no dispute. Mr. DeWeese was not given Miranda warnings immediately prior to taking the polygraph tests. The State contends, and the trial court found, that failure to provide Miranda warnings was not fatal because Mr. DeWeese's counsel was present in the building when the tests were administered, defense counsel expressly waived the right to have Miranda warnings given, and Miranda warnings had previously been given to Mr. DeWeese by the police. Based upon the trial courts three findings, we will take up each issue separately.
1. Presence of counsel during polygraph interrogation. The trial court
found that the presence of defense counsel in the building where the polygraph tests were
administered obviated the need for giving Miranda warnings. We disagree.
One of the rights afforded by Miranda is the right to have counsel present
during an interrogation. Likewise, Miranda does not stand for the proposition that a
warning regarding the privilege against self-incrimination is not required when counsel is
present at an interrogation.
(See footnote 17)
In fact, Miranda explained the critical need for giving the
warning as follows:
The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. This warning is needed in order to make him aware not only of the privilege, but also of the consequences of forgoing it. It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of the privilege. Moreover, this warning may serve to make the individual more acutely aware that he is faced with a phase of the adversary system--that he is not in the presence of persons acting solely in his interest.
. . . .
. . . [T]his warning is an absolute prerequisite to
interrogation. No amount of circumstantial evidence that the
person may have been aware of this right will suffice to stand
in its stead.
Miranda, 384 U.S. at 469-472 , 86 S. Ct. at 1625-1626.
Under Miranda, the mere presence of defense counsel at an interrogation does
not negate the necessity for providing the warning against self-incrimination. This warning,
as required by the Miranda decision, is an absolute prerequisite to interrogation. Indeed,
we have found no decision wherein a court has ruled that a defendant forfeits his/her right
to be informed of the privilege against self-incrimination merely because he/she has
exercised the right to have counsel present at an interrogation. 'In these circumstances,
we find it intolerable that one constitutional right should have to be surrendered [because
of the] assert[ion of] another.' State ex rel. Farley v. Kramer, 153 W. Va. 159, 186, 169
S.E.2d 106, 121 (1969) (quoting Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19
L. Ed. 2d 1247 (1968)). See State v. Phillips, 600 N.E.2d 825, 827 (Ohio Ct. App. 1991)
(Phillips and his attorney voluntarily went to the police station after the drive-by shooting
occurred. Detective Zimmerman gave Phillips the warnings required by Miranda, and then
talked to Phillips in his counsel's presence.). As one court appropriately observed, the
government may not nullify the protection Miranda affords a defendant by using trickery
to extract incriminating statements from him that otherwise could not be obtained without
first giving him the required warnings. United States v. Hayles, 471 F.2d 788, 791 (5th Cir.
1973). Thus, we hold that prior to giving a polygraph examination, the police must inform
the defendant of his Miranda rights even though defense counsel is present in the room with
the defendant when a polygraph examination is about to be given. To the extent that the
trial court found that defense counsel's presence obviated the need for giving Miranda
warnings to Mr. DeWeese, this finding was erroroneous.
2 Waiver of Miranda warnings. As previously noted, the trial court also
concluded that defense counsel expressly waived the right to have Miranda warnings given.
While not absolutely clear, the record does suggest that defense counsel was asked whether
reading Miranda warnings were necessary. Defense counsel indicated the warnings did not
have to be given.
(See footnote 18)
Assuming that this scenario did in fact occur, it does not help the State.
Our cases have recognized that the rights articulated in the Miranda warnings
may be waived. In Syllabus point 2 of State v. Bragg, 160 W. Va. 455, 235 S.E.2d 466
(1977) we held that [a] defendant may waive his constitutional rights, as enunciated in
Miranda, provided the waiver is made voluntarily, knowingly and intelligently. In every
decision rendered by this Court finding a valid waiver of Miranda rights, the facts revealed
that Miranda warnings were given before the rights enunciated therein were waived. See
e.g., State v. Ivey, 196 W. Va. 571, 577, 474 S.E.2d 501, 507 (1996) (finding waiver after
Miranda warnings given); State v. Moore, 193 W. Va. 642, 648, 457 S.E.2d 801, 807 (1995)
(same); State v. Sugg, 193 W. Va. 388, 399, 456 S.E.2d 469, 480 (1995) (same); State v.
Parsons, 181 W. Va. 131, 135, 381 S.E.2d 246, 250 (1989) (same); State v. McDonough,
178 W. Va. 1, 4, 357 S.E.2d 34, 37 (1987) (same); State v. Hambrick, 177 W. Va. 26, 29,
350 S.E.2d 537, 540 (1986) (same); State v. Wimer, 168 W. Va. 417, 422, 284 S.E.2d 890,
893 (1981) (same).
This Court has never held that the actual reading of Miranda warnings may
be waived. In addition, after an exhaustive search, we have found no other court that has
ruled that a defendant may waive the actual reading of Miranda warnings. The reason no
court has so held, is found in the Miranda decision, wherein the opinion held:
Prior to any questioning the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right of the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently.
Miranda, 384 U.S. at 444-45, 86 S. Ct. at 1612. (Emphasis added.) Miranda recognizes a waiver only of rights to which a defendant has been informed. See Syl. pt.7, in part, State v. Plantz, 155 W. Va. 24, 180 S.E.2d 614 (1971) (A statement freely and voluntarily made by an accused while in custody or deprived of his freedom by the authorities and subjected to questioning is admissible in evidence against him if it clearly appears that such statement was freely and voluntarily made after the accused had been advised of his constitutional right[s] . . . [and] after he has been so advised, he knowingly and intelligently waives such rights. (Emphasis added)).
To permit the police to ask a defendant if he/she wants to be informed of the
rights articulated in Miranda would defeat the very purpose of Miranda warnings. The
essence of those warnings is to accurately and fully inform a defendant of his/her
fundamental constitutional rights. Nothing but mischief would flow from a rule that would
permit a defendant to waive the right to be informed of the rights embodied in the Miranda
warnings. Consequently, we hold that while a defendant may waive the rights articulated
under the Miranda warnings, a defendant cannot, as a matter of law, waive the reading of
the Miranda warnings. To the extent that the trial court found that defense counsel waived
Mr. DeWeese's right to have Miranda warnings given to him, this finding was error. The
right to have Miranda warnings given simply cannot be waived.
3. Effect of prior Miranda warnings. Lastly, the trial court found that Mr.
DeWeese did not have to be given Miranda warnings before the polygraph examinations
took place because he had previously been given Miranda warnings. The issue of the
renewal of Miranda warnings presents a matter of first impression for this Court.
There is no requirement that an accused be continually reminded of his rights
once he has intelligently waived them[,] Biddy v. Diamond, 516 F.2d 118, 122 (5th
Cir. 1975). Nevertheless, Miranda warnings, once given, are not to be accorded unlimited
efficacy or perpetuity. United States v. Hopkins, 433 F.2d 1041, 1045 (5th Cir.1970). That
is, [a] criminal suspect who knowingly and voluntarily waives his Miranda rights need not
be re-advised of those rights during subsequent interrogations, so long as the initial waiver
retains its efficacy. Yung v. State, 906 P.2d 1028, 1033 (Wyo. 1995).
A review of decisions addressing the issue of renewed Miranda warnings
reveals that there is no generally recognized fixed time period in which warnings must be
renewed. For example, in State v. DuPont, 659 So. 2d 405 (Fla. Dist. Ct. App. 1995), the
defendant was arrested and charged with first-degree murder. Prior to his arrest, the
defendant voluntarily went to police headquarters for a polygraph examination. The
defendant made self-incriminating statements during the examination. After his arrest and
prior to trial, the defendant filed a motion to suppress the statements made during the
polygraph test, asserting that he was not given Miranda warnings immediately prior to the
test. The trial court agreed that Miranda warnings were required and therefore suppressed
the statements. The State appealed the suppression order. One issue raised by the State in
the appeal was that the defendant had been given Miranda warnings twelve hours prior to
taking the polygraph test. The State also argued that the polygraph examiner informed the
defendant that his Miranda rights still applied. The appellate court rejected the State's
arguments and affirmed the trial court's ruling suppressing the polygraph statements. In so
doing, the appellate court held that:
We find that [the examiner's] statement to [the defendant], that his Miranda rights still applied, was not a proper Miranda warning. . . . [The defendant] should have been properly advised of his Miranda rights again before the polygraph exam.
The polygraph exam was conducted more than 12 hours
after [the defendant] was first read Miranda. . . . Consequently,
it was important that [the defendant's] Miranda rights be
explained to him, including his right to remain silent, before the
DuPont, 659 So. 2d at 407-408. See also Ex parte J.D.H., 797 So. 2d 1130 (Ala. 2001) (lapse of 16 days required renewal of Miranda warnings); Commonwealth v. Doe, 636 N.E.2d 308 (Mass. App. Ct. 1994) (lapse of 2 days required renewal of Miranda warnings); Commonwealth v. Coplin, 612 N.E.2d 1188 (Mass. App. Ct. 1993) (lapse of thirty to forty-five minutes required renewal of Miranda warnings); Commonwealth v. Wideman, 334 A.2d 594 (Pa. 1975) (lapse of twelve hours required renewal of Miranda warnings); State v. Walker, 729 S.W.2d 272 (Tenn. Crim. App. 1986) (lapse of four months required renewal of Miranda warnings).
While the court in DuPont found that renewed Miranda warnings were
required after a lapse of twelve hours, the court in Biddy v. Diamond, 516 F.2d 118, held
that renewed Miranda warnings were not required after a lapse of 14 days.
In Biddy the defendant was convicted of manslaughter by a Mississippi jury.
After exhausting direct appeals, the defendant in Biddy filed a federal habeas corpus petition. One of the issues raised in the petition was that the police failed to read Miranda warnings to the defendant during an interrogation in which she gave incriminating statements. The federal district court denied relief. The defendant appealed to the Fifth Circuit Court of Appeals. The Fifth Circuit held that Miranda warnings were not necessary because the police had informed the defendant of the warnings 14 days prior to obtaining the incriminating statements. The opinion in the case stated that a further delineation . . . of petitioner's rights, which she had stated that she understood from prior explanations, would have been needlessly repetitious. Biddy, 516 F.2d at 122. See also United States v. Andaverde, 64 F.3d 1305 (9th Cir.1995) (lapse of one day did not require renewed Miranda warnings); United States ex rel. Henne v. Fike, 563 F.2d 809 (7th Cir. 1977) (lapse of nine hours did not require a renewed Miranda warnings); Puplampu v. United States, 422 F.2d 870 (9th Cir.1970) (lapse of two days did not require renewed Miranda warnings); Maguire v. United States, 396 F.2d 327 (9th Cir. 1968) (lapse of three days did not require renewed Miranda warnings); Fagan v. State, 412 So. 2d 1282 (Ala. Crim. App. 1982)(lapse of three-and-one-half hours did not require renewed Miranda warnings); Commonwealth v. Silanskas, 746 N.E.2d 445 (Mass. 2001) (lapse of two hours did not require renewed Miranda warnings); Koger v. State, 17 P.3d 428 (Nev. 2001) (lapse of 12 days did not require renewed Miranda warnings).
The decisions in DuPont and Biddy illustrate the lack of consensus regarding when renewed Miranda warnings must be given. To help resolve this unsettled area of the law, some courts have adopted the following test:
In determining whether Miranda warnings became so
stale as to dilute their effectiveness because of a significant
lapse in the process of interrogation, the following
totality-of-the-circumstances criteria should be considered: (1)
the length of time between the giving of the first warnings and
subsequent interrogation, (2) whether the warnings and the
subsequent interrogation were given in the same or different
places, (3) whether the warnings were given and the subsequent
interrogation conducted by the same or different officers, (4)
the extent to which the subsequent statement differed from any
previous statements, and (5) the apparent intellectual and
emotional state of the suspect.
See also People v. Delgado, 832 P.2d 971, 973 (Colo. Ct. App. 1991); See also DeJesus v. State, 655 A.2d 1180, 1195 (Del. 1995); State v. Lester, 709 N.E.2d 853, 856 (Ohio Ct. App. 1998); State v. Birmingham, 527 A.2d 759, 761-762 (Me. 1987); Commonwealth v. Hughes, 555 A.2d 1264, 1276 (Pa. 1989). Courts have also concluded that the most relevant factor in analyzing whether a former Miranda admonition has diminished is the amount of time elapsed between the first reading and the subsequent interview. Koger v. State, 17 P.3d 428, 431 (Nev. 2001).
We believe the above test provides sound guidance for the courts of this State.
Accordingly, we hold that in determining whether the initial Miranda warnings become so
stale as to dilute their effectiveness so that renewed warnings should have been given due
to a lapse in the process of interrogation, the following totality-of-the-circumstances criteria
should be considered: (1) the length of time between the giving of the first warnings and
subsequent interrogation; (2) whether the warnings and the subsequent interrogation were
given in the same or different places; (3) whether the warnings were given and the
subsequent interrogation conducted by the same or different officers; (4) the extent to which
the subsequent statement differed from any previous statements; and (5) the apparent
intellectual and emotional state of the suspect.
For resolution of the issue in this case, the first criterion it is dispositive as a matter of public policy in West Virginia. When Mr. DeWeese was arrested on September 2, 1999, by Cabell County officials, he was given Miranda warnings. Mr. DeWeese waived the rights he was informed of and gave a statement denying any involvement with the death of Mr. Rollins. Several hours later, on the same day, Mr. DeWeese was picked up by a State Trooper and taken to Ritchie County. When Mr. DeWeese was picked up he was again given Miranda warnings. The record fails to disclose whether Mr. DeWeese waived his rights after the warnings were given a second time. Once Mr. DeWeese arrived at the State Police detachment in Ritchie County, he was again given Miranda warnings. Mr. DeWeese thereafter waived his rights and gave an incriminating statement. (See footnote 19)
Mr. DeWeese was not again interrogated by the police until September 9,
when the polygraph tests were administered. Thus, roughly seven days had lapsed since
the last time Mr. DeWeese was given Miranda warnings. We find that the police were
required to read Mr. DeWeese the Miranda warnings before the polygraph tests were given.
As a matter of public policy in West Virginia, a lapse of seven days between an initial
waiver of the rights enunciated in the Miranda warnings and a subsequent interrogation
requires renewed warnings before the subsequent interrogation may occur. Consequently,
the circuit court committed error in finding that renewed Miranda warnings were not
necessary because prior warnings had been given.
Based upon the foregoing analysis, we conclude that the circuit court erred
in each of the three bases for its ruling that Miranda warnings were not required before the
polygraph tests were given. Consequently, the statements made by Mr. DeWeese during
the polygraph examinations should have been suppressed.
Here, the Miranda violation resulted in the polygraph examiner taking the
stand and informing the jury that Mr. DeWeese admitted to beating Mr. Rollins. During
direct examination of the polygraph examiner by the State, the following exchange
Q. Did you ask Mr. DeWeese if he had participated in that homicide?
A. Yes, I did.
Q. And what, if anything, did he indicate to you had been his participation in that?
A. He explained to me that he had hit Mr. Rollins approximately 20 times. That he had kicked him several times and that he hit him with a box fan.
Q. Did he indicate where all he had hit and kicked Mr. Rollins?
A. He indicated that he was standing on the bed with his hands against the wall for support, kicked him several times. He stated that he had hit him about the head and face. I am not saying he did it 20 times, but he indicated he hit him and that was one of the areas.
The polygraph examiner was a State Police sergeant. The examiner's position as a law enforcement officer undoubtedly provided a heightened sense of veracity as to the truth of the matters asserted by the examiner. As Mr. DeWeese's brief aptly illustrates, this testimony was not coming from a co-defendant or some other unsavory character[.] Further, because the statements proffered against Mr. DeWeese were given in the context of polygraph examinations, defense counsel could not effectively challenge the veracity of the statements without alerting the jury that the polygraph examinations had occurred. (See footnote 21) Even though the State presented testimony from the co-defendants that implicated Mr.