State ex rel. Wade v. Hummel

• Decision Date: 16 June 2020
• Docket Number: No. 19-1047,19-1047
• Parties: STATE of West Virginia EX REL. Rhonda L. WADE, Marshall County Prosecuting Attorney, Petitioner v. The Honorable David W. HUMMEL, Jr., Judge of the Circuit Court of Marshall County; and H.D., Respondents
• Court: West Virginia Supreme Court

844 S.E.2d 443

STATE of West Virginia EX REL. Rhonda L. WADE, Marshall County Prosecuting Attorney, Petitioner

v.The Honorable David W. HUMMEL, Jr., Judge of the Circuit Court of Marshall County; and H.D., Respondents

No. 19-1047

Supreme Court of Appeals of West Virginia.

Submitted: May 19, 2020

Filed: June 16, 2020

Andrea C. Poling, Eric M. Gordon, Marshall County Prosecuting Attorney's Office, Moundsville, West Virginia, Attorneys for the Petitioner.

Michael B. Baum, Edmond & Baum, PLLC, Wheeling, West Virginia, Attorneys for Respondent H.D.

Brett M. Ferro, Chief Public Defender, Moundsville, West Virginia, Attorney for Amicus Curiae, Public Defender Corporation for the Second Judicial Circuit.

Jenkins, Justice:

The petitioner in this original jurisdiction case, Rhonda L. Wade ("Ms. Wade"), the Marshall County, West Virginia, Prosecuting Attorney, asks this Court to prohibit the Circuit Court of Marshall County from enforcing a ruling that found an audio/video recording of a voluntary statement made to law enforcement officers by a respondent herein, H.D.,¹ who is the defendant in the underlying criminal proceeding, violated H.D.’s privilege against self-incrimination as guaranteed by the Fifth Amendment to the United States Constitution. The circuit court's ruling was based upon its finding that playing the incriminating recording for the jury was commensurate with compelling H.D. to testify against himself. Ms. Wade argues that, because H.D. was not compelled to give the statement, but did so voluntarily, it is not a violation of his privilege against self-incrimination to allow the State to introduce the audio/video recording into evidence, and/or publish it to the jury, during its case-in-chief. Ms. Wade further asserts that the circuit court's contrary ruling misapplies the Fifth Amendment privilege against self-incrimination. Based upon our review of the parties’ arguments, the amicus brief,² the appendix record, and the relevant authority, we agree with Ms. Wade. Therefore, we grant the requested writ of prohibition.

I.FACTUAL AND PROCEDURAL HISTORY

These facts, as presented by Ms. Wade, are not refuted by H.D. On December 12, 2018, H.D. was visited at his home by a Marshall County Deputy Sheriff who asked if H.D. would be willing to make a statement about allegations that he had engaged in improper sexual contact with E.D., a child. Later that same day, H.D. voluntarily arrived at the Marshall County Sheriff's Department, where he was shown to the interview room and advised that he was not under arrest and was free to leave. Nevertheless, H.D. was read his Miranda rights.³ He then signed a document stating that he understood his rights and that he waived all of them. Prior to being interviewed, H.D. was informed that a video recording of his interview was being made. He was interviewed by Deputy Doug Sayman and Detective Bear Mobly, both of the Marshall County Sheriff's Department. During the course of the interview, H.D. also prepared a two-page, hand-written statement. When the interview concluded, H.D. was permitted to leave.

On December 13, 2018, Deputy Sayman filed a criminal complaint charging H.D. with sexual abuse by a parent, guardian, custodian, or person in a position of trust, and with a misdemeanor charge of contributing to the delinquency of a minor. H.D. waived his right to a preliminary hearing, and, in July 2019, he was indicted by a Marshall County grand jury on two counts: (1) sexual abuse in the first degree; and (2) sexual abuse by a parent, guardian, custodian, or person in a position of trust. The State subsequently filed a motion to dismiss, without prejudice, the charge of sexual abuse in the first degree, which was granted.

In preparation for trial on the remaining count of sexual abuse by a parent, guardian, custodian, or person in a position of trust, the State filed a motion to determine the voluntariness of H.D.’s interview by law enforcement, the audio/video recording of which is the subject of the instant petition, as well as his written statement. During the circuit court's hearing on the motion, the State presented the testimony of Deputy Sayman to authenticate three exhibits: (1) the form signed by H.D. on December 12, 2018, acknowledging and waiving his " Miranda Rights"; (2) the two-page, hand-written statement prepared by H.D. on the same date; and (3) an audio/video recording of H.D.’s interview of December 12, 2018, with Deputy Sayman and Detective Mobly. These exhibits were entered into the circuit court's record for purposes of the hearing only. At the conclusion of the hearing, the circuit court advised the parties that it would review the evidence and then issue an order.

Following the hearing, H.D. filed a motion labeled "Defendant's Fourth Motion in Limine" in which he requested that the circuit court "prohibit the showing and/or listening by the jury [of] any and all portions of the Defendant's audio and video recorded statement, and to prohibit the introduction of the Defendant's written statement at trial." In the motion, H.D. argued that introducing the recorded and written statements would be unduly prejudicial to him because the State will have the opportunity to admit evidence of his statements through the testimony of law enforcement officers, which would make the introduction of the statements themselves "cumulative and superfluous." He additionally argued that the admission into evidence of the recorded and written statements would violate his Fifth Amendment right against self-incrimination. He reasoned that, if this evidence was published to the jury, he would effectively "be compelled to be a witness against himself."

During a pretrial hearing on October 21, 2019, the motion in limine filed by H.D. was addressed. From the bench, the circuit court announced that it found H.D.’s statements were given "willingly, knowingly, voluntarily, without coercion, without duress, and with full knowledge of the consequences." The court explained that, because the statement was voluntary, the law enforcement officers would be permitted to testify about H.D.’s statements. However, the court found that playing the audio/video recording "is a violation of the constitutional right to remain silent." Therefore, the State would be permitted to use the recording only for impeachment purposes if H.D. chose to testify. In its subsequent order, which was entered on October 28, 2019, the circuit court reiterated that both of H.D.’s statements had been voluntarily given. However, the circuit court granted H.D.’s motion in limine with respect to the audio/video recording, among announcing other rulings.⁴ The circuit court found that "publishing of the audio/video statement of [the] Defendant to the jury was [sic] in violation of the Defendant's 5th amendment right to not be compelled to give testimony against himself." It is the enforcement of this ruling that the State seeks to prohibit.

II.STANDARD FOR ISSUANCE OF WRIT

In this case, the State seeks to prohibit the circuit court from enforcing the portion of its order of October 28, 2019, that prevents the State from publishing to the jury an audio/video recording of a statement voluntarily given by H.D. With respect to the extraordinary remedy of a writ of prohibition, we have explained that

"[p]rohibition lies only to restrain inferior courts from proceeding in causes over which they have no jurisdiction, or, in which, having jurisdiction, they are exceeding their legitimate powers and may not be used as a substitute for [a petition for appeal] or certiorari." Syllabus Point 1, Crawford v. Taylor , 138 W. Va. 207, 75 S.E.2d 370 (1953).

Syl. pt. 1, State ex rel. Franklin v. Tatterson , 241 W. Va. 241, 821 S.E.2d 330 (2018). We have set out the following test for determining whether to grant a writ of prohibition where, as here, the circuit court's ruling is challenged on the basis that the court has exceeded its legitimate powers:

"In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight." Syllabus Point 4, State ex rel. Hoover v. Berger , 199 W. Va. 12, 483 S.E.2d 12 (1996).

Syl. pt. 2, State ex rel. Franklin v. Tatterson , 241 W. Va. 241, 821 S.E.2d 330. Furthermore, because we are reviewing an evidentiary ruling by the circuit court, we note that " ‘[a] trial court's evidentiary rulings, as well as its application of the Rules of Evidence, are subject to review under an abuse of discretion standard.’ Syl. Pt. 4, State v. Rodoussakis , 204 W. Va. 58, 511 S.E.2d 469 (1998)." Syl. pt. 11, State v. Wasanyi , 241 W. Va. 220, 821 S.E.2d 1 (2018). This discretionary standard applies even when the evidentiary ruling affects constitutional rights. See State v. Kaufman , 227 W. Va. 537, 548, 711 S.E.2d 607, 618 (2011) ("It is well settled that a trial court's rulings on the admissibility of evidence, ‘including those affecting constitutional rights, are reviewed under an abuse of discretion...