Damron v. Haines

• Decision Date: 26 November 2008
• Docket Number: No. 33900.,33900.
• Citation: 672 S.E.2d 271
• Court: West Virginia Supreme Court
• Parties: Mark DAMRON, Petitioner Below, Appellant v. William HAINES, Warden, Huttonsville Correctional Facility, Respondent Below, Appellee.

672 S.E.2d 271

Mark DAMRON, Petitioner Below, Appellant v. William HAINES, Warden, Huttonsville Correctional Facility, Respondent Below, Appellee.

No. 33900.

Supreme Court of Appeals of West Virginia.

Submitted: October 8, 2008.

Decided: November 26, 2008.

Concurring Opinion of Justice Benjamin January 9, 2009.

Syllabus by the Court

1. "Findings of fact made by a trial court in a post-conviction habeas corpus proceeding will not be set aside or reversed on appeal by this Court unless such findings are clearly wrong." Syllabus Point 1, State ex rel. Postelwaite v. Bechtold, 158 W.Va. 479, 212 S.E.2d 69 (1975).

2. "In reviewing challenges to the findings and conclusions of the circuit court in a habeas corpus action, we apply a three-prong standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard; the underlying factual findings under a clearly erroneous standard; and questions of law are subject to a de novo review." Syllabus Point 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

3. "The 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. To the extent that language in State v. Preece, 181 W.Va. 633, 383 S.E.2d 815 (1989), and its progeny, may be read to hold differently, such language is expressly overruled." Syllabus Point 8, State v. Guthrie, 205 W.Va. 326, 518 S.E.2d 83 (1999).

4. "The factors to be considered by the trial court in making a determination of whether a custodial interrogation environment exists, while not all-inclusive, include: the location and length of questioning; the nature of the questioning as it relates to the suspected offense; the number of police officers present; the use or absence of force or physical restraint by the police officers; the suspect's verbal and nonverbal responses to the police officers; and the length of time between the questioning and formal arrest." Syllabus Point 2, State v. Middleton, 220 W.Va. 89, 640 S.E.2d 152 (2006).

5. "Failure to observe a constitutional right constitutes reversible error unless it can be shown that the error was harmless beyond a reasonable doubt." Syllabus Point 5, State ex rel. Grob v. Blair, 158 W.Va. 647, 214 S.E.2d 330 (1975).

6. "The Double Jeopardy Clause in Article III, Section 5 of the West Virginia Constitution provides immunity from further prosecution where a court having jurisdiction has acquitted the accused. It protects against a second prosecution for the same offense after conviction. It also prohibits multiple punishments for the same offense." Syllabus Point 1, Conner v. Griffith, 160 W.Va. 680, 238 S.E.2d 529 (1977).

7. "A claim that double jeopardy has been violated based on multiple punishments imposed after a single trial is resolved by determining the legislative intent as to punishment." Syllabus Point 7, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992).

8. "In ascertaining legislative intent, a court should look initially at the language of the involved statutes, and, if necessary, the legislative history to determine if the legislature has made a clear expression of its intention to aggregate sentences for related crimes. If no such clear legislative intent can be discerned, then the court should analyze the statutes under the test set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), to determine whether each offense requires an element of proof the other does not. If there is an element of proof that is different, then the presumption is that the legislature intended to create separate offenses." Syllabus Point 8, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992).

9. "`Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.' Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932)." Syllabus Point 4, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992).

10. "A building which contains an apartment, intended for habitation, whether occupied, unoccupied or vacant, is a `dwelling house' for purposes of W.Va.Code, 61-3-1, as amended." Syllabus Point 3, State v. Mullins, 181 W.Va. 415, 383 S.E.2d 47 (1989).

Douglas V. Reynolds, Esq., W. Harrison White, Esq., Reynolds & Associates, Huntington, for Appellant.

Darrell V. McGraw, Jr., Esq., Attorney General, R. Christopher Smith, Esq., Assistant Attorney General, Charleston, for Appellee.

PER CURIAM.¹

This case is before this Court upon appeal of a final order of the Circuit Court of Cabell County entered on June 8, 2007. In that order, the circuit court denied a petition for a post-conviction writ of habeas corpus filed by the appellant and petitioner below, Mark Damron. The appellant was convicted of one count of first degree arson and one count of second degree arson in March 2005, and was sentenced to thirty years in prison. In this appeal, the appellant contends that a statement he gave to a fire marshal was admitted into evidence at his trial in violation of his rights under the Fifth Amendment of the United States Constitution and Article III, § 5 of the West Virginia Constitution.² He also contends that a statement a witness gave a police officer at the scene of the fire was admitted into evidence in violation of the confrontation clause of the United States and West Virginia Constitutions.³ Finally, the appellant asserts that he received multiple punishments for the same offense in violation of the double jeopardy clause of the United States and West Virginia Constitutions.⁴ Thus, he argues that the circuit court's order denying his petition for a writ of habeas corpus should be reversed.⁵

This Court has before it the petition for appeal, the entire record, and the briefs and argument of counsel. For the reasons set forth below, the final order is affirmed, in part, and reversed, in part, and this case is remanded to the circuit court for entry of an order vacating the appellant's conviction for second degree arson.

I. FACTS

Early in the morning on August 9, 2003, a building located at 2421 Third Avenue, Huntington, West Virginia, was set on fire. The building contained a shoe repair shop and a nightclub on the bottom floor with apartments above. Steve Ellis, a deputy fire marshal for the Huntington Fire Department, was called to the scene of the fire to conduct a cause and origin investigation. By the time Mr. Ellis arrived, firefighters had extinguished most of the fire. Mr. Ellis began conducting his investigation with the assistance of Devin Palmer, an assistant state fire marshal. They determined that the fire had originated at the front of the shoe repair shop.

While conducting their investigation, Mr. Ellis and Mr. Palmer exited the shoe repair shop and observed a man leaving the building from another door which led to the apartments on the second floor. The man was the appellant, Mark Damron. Mr. Ellis yelled, "Hey you," but the appellant kept walking. Mr. Ellis went to the door which opened into a stairwell and found twisted pieces of newspaper on the floor in flames. He then began pursuing the appellant yelling, "Fire Marshal. Stop. Freeze!" The appellant started to go down an alley, but when Mr. Ellis yelled a second time, he finally stopped. Mr. Ellis told the appellant to keep his hands in the air and then had him get down on the ground. Mr. Palmer had joined the pursuit of the appellant and was just a couple steps behind. At this point, Mr. Ellis asked the appellant, "Man, what was you [sic] doing in that building?" The appellant responded that the firefighters had put the fire out too quickly and he was back to finish the job.

Thereafter, Steve Compton, a police officer with the Huntington Police Department, arrived on the scene. Upon observing the appellant with Mr. Ellis, Officer Compton radioed Corporal Jeff Sexton, another Huntington police officer who had been on patrol in the area and who was the first to arrive at the burning building. Officer Compton asked for the description of a suspect which Corporal Sexton had been given earlier by a witness named Mike Smith. Based on the description, Officer Compton believed he had probable cause and arrested the appellant. At that time, the appellant continued to make statements and admissions to Officer Compton. Officer Compton told him to stop talking and informed him of his Miranda rights.⁶

The appellant continued to make several admissions after he was Mirandized. The appellant told Officer Compton that "this was payback" and that he had "come back to finish the job." At police headquarters, Corporal Sexton heard the appellant make numerous spontaneous statements essentially admitting to the crime. The appellant said he did not like the owner of the building and that he owed him money due to a gambling debt. After hearing these statements, Corporal Sexton gave the appellant a Miranda waiver form and told him that if he wanted to make a statement, he should read the warning on the form and put his statement in writing. The appellant refused to do so.

Subsequently, the appellant was charged in a seven-count indictment returned by a Cabell County grand jury on September 19, 2003. The appellant was charged with two counts of first degree arson, two counts of second degree arson, two counts of attempted first degree murder,⁷ and one count of breaking and entering. Prior to trial, counsel for the appellant filed a motion to suppress the statement the appellant gave to Mr. Ellis. A hearing was held on the motion, and the court ruled that the statement was admissible. The case proceeded to trial, and on March 1, 2005, the jury found the appellant guilty of one count of first degree arson and one count of...