State v. Blackburn
| Decision Date | 08 May 2014 |
| Docket Number | No. 13–0270.,13–0270. |
| Citation | 233 W.Va. 362,758 S.E.2d 566 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia, Plaintiff Below, Respondent v. Byron BLACKBURN, Defendant Below, Petitioner. |
OPINION TEXT STARTS HERE
SYLLABUS BY THE COURT
1. Syl. pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000).
2. When a person charged in a criminal case has requested the assistance of counsel pursuant to U.S. Const. amend VI and W.Va. Const. art. III, § 14, the police may subsequently initiate a custodial interrogation of the accused regarding a wholly unrelated offense for which he or she has not been charged, provided that, prior to the interrogation, the accused is apprised of his or her rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), including the right against compulsory self-incrimination and the right to consult with an attorney.
3. “In determining whether an out-of-court identification of a defendant is so tainted as to require suppression of an in-court identification a court must look to the totality of the circumstances and determine whether the identification was reliable, even though the confrontation procedure was suggestive, with due regard given to such factors as the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” Syl. pt. 3, State v. Casdorph, 159 W.Va. 909, 230 S.E.2d 476 (1976), vacated on other grounds, State v. Persinger, 169 W.Va. 121, 286 S.E.2d 261 (1982).
Ryan J. Flanigan, Esq., Sanders, Austin, Flanigan & Flanigan, Princeton, West Virginia, Thomas L. Fuda, Esq., Fuda Law Offices, Princeton, WV, for the Petitioner.
Patrick Morrisey, West Virginia Attorney General, J. Zak Ritchie, Assistant Attorney General, Robert D. Goldberg, Assistant Attorney General, Charleston, WV, for the Respondent.
Valena Beety, WVU College of Law, Morgantown, WV, for Amicus Curiae, WV Innocence Project and The Innocence Project, Inc.
Byron Blackburn (“Blackburn”) appeals his conviction in the Circuit Court of Mercer County of robbery in the first degree. Blackburn was indicted for entering a Wendy's restaurant in Bluefield, West Virginia, and attempting to obtain money by holding a machete against the throat of a restaurant employee. Blackburn was sentenced to a forty-year term in the penitentiary.
Raising two assignments of error, Blackburn asks this Court to set aside his conviction and grant a new trial. First, Blackburn contends that his confession to the police should have been excluded from the trial because it was given in violation of his right to counsel and because it was involuntary under the totality of the circumstances. Second, emphasizing that the assailant at Wendy's was in disguise, Blackburn contends that his in-court identification by the employee threatened with the machete was tainted because of suggestion by the State and should also have been excluded from the trial. 1
Upon review, this Court concludes that Blackburn's assignments of error are without merit. Accordingly, we affirm Blackburn's conviction of robbery in the first degree and his sentence of forty years in the penitentiary.
On November 28, 2011, an assailant wearing a bandana across his face and a hat or hoodie partially covering his head entered a Wendy's Restaurant in Bluefield, West Virginia. The assailant was carrying a machete. The assailant jumped over the counter and walked into the kitchen. He held the machete against the throat of a Wendy's employee, Daniel Back, and demanded money. Two other Wendy's employees, Nikko Jansen and Kip Davis, were in the kitchen and witnessed the assault.
Daniel Back, the assaulted employee, got away from the assailant and ran out of the restaurant through the back door. The two other employees told the assailant that the cash register could not be opened and also ran out the back door. The assailant, obtaining no money, fled the restaurant.
Neither the machete nor the clothing worn by the assailant were ever found. However, video footage of the attempted robbery from Wendy's security camera was downloaded by the Bluefield Police Department and released to the news media. Soon after, the police were contacted by several anonymous callers who indicated that the assailant in the video was Blackburn. No arrest was made at that time.
On the night of December 4, 2011, one week after the attempted robbery, Blackburn made 911 calls from his residence during which he threatened to shoot someone if he did not get a cigarette. Officers from the Bluefield Police Department proceeded to Blackburn's residence and arrested him on a charge of domestic terrorism. The arrest for that offense took place in the early morning hours of December 5, 2011. Blackburn appeared to have consumed alcohol, and cigarettes were found on his dining room table. He later claimed that he made the 911 calls because he wanted to commit suicide by provoking the police to shoot him.
In the course of the arrest, Blackburn sustained a hairline fracture of his forearm and an additional fracture in his elbow. He was taken to Bluefield Regional Medical Center for treatment and subsequently arraigned in magistrate court. During the arraignment, Blackburn completed a printed form upon which he requested court-appointed counsel on the domestic terrorism charge.
The following day, December 6, 2011, while solely in custody on the domestic terrorism charge, Blackburn confessed to the attempted robbery at Wendy's. The confession was audiotaped by a Bluefield police officer.
In February 2012, the Mercer County grand jury returned a one count indictment charging Blackburn with robbery in the first degree, i.e., attempting to rob Wendy's restaurant by demanding money from Daniel Back, a Wendy's employee, through the threat of deadly force.2
Blackburn filed a motion to suppress his confession, alleging that his Sixth Amendment right to counsel attached upon his December 5, 2011, arraignment on the domestic terrorism charge and that, since he had requested counsel on that charge, the police had no right to question him about the attempted robbery at Wendy's restaurant.
In addition, Blackburn alleged that his confession to the attempted robbery was involuntary based on the totality of the circumstances. Blackburn asserted, inter alia, that he was interrogated multiple times on December 5th and 6th, 2011, about the robbery and that, during that period, he was in pain from his arm injuries and in a depressed mental state. Moreover, Blackburn contended that the police told him that, if he confessed to the attempted robbery at Wendy's, the police “would make the domestic terrorism criminal charge disappear.” 3
On November 5, 2012, the circuit court conducted a hearing on the motion to suppress. The evidence revealed that, after his arrest on the charge of domestic terrorism, Blackburn was taken to the hospital on December 5, 2011, by police detective Crook for treatment of his arm. Later that day, Blackburn was arraigned on the terrorism charge. The next day, December 6, 2011, Blackburn voluntarily submitted to a polygraph examination concerning the attempted robbery at Wendy's. The examination was under the supervision of Trooper Smith of the West Virginia State Police, and Blackburn's rights were read to him pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Blackburn signed a waiver of his Miranda rights.
Although Blackburn was told that the result of the polygraph examination indicated deception, Blackburn continued to deny any involvement in the attempted robbery. That afternoon, Blackburn spoke with officer Davis who had known Blackburn for five years and was friendly with Blackburn's family. During the conversation, Davis referred to the stress Blackburn was under in his personal life and encouraged Blackburn to be honest about the incident at Wendy's. According to Davis, Blackburn then confessed to the attempted robbery and stated that he did it to obtain money for the Christmas holidays. Officer Davis left the room, and Blackburn was again Mirandized by detective Crook. Blackburn also signed another waiver of his Miranda rights. Thereafter, he gave an audiotaped confession to the attempted robbery.
Blackburn asserted that he was interrogated nine times between his arrest on the domestic terrorism charge and his audiotaped confession to the attempted robbery. Included in that alleged number is a conversation with detective Crook at the hospital and a conversation with Crook while being driven back to the police department from the hospital. Another alleged conversation took place during the drive back from the polygraph examination. The State disputed Blackburn's assertion that he was interrogated nine times. Moreover, the officers who testified at the hearing, including detective Crook and officer Davis, denied that they told Blackburn that the domestic terrorism charge would be dropped in exchange for his confession.
Blackburn testified at the hearing that his confession was involuntary because he was in pain from his arm injuries and was under stress from various personal problems, including family issues and a conviction for...
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