State v. Campbell, 20-0099

Case DateJanuary 28, 2022
CourtSupreme Court of Virginia

STATE OF WEST VIRGINIA, Plaintiff Below, Respondent

JOHN THOMAS CAMPBELL, Defendant Below, Petitioner

No. 20-0099

Supreme Court of Appeals of West Virginia

January 28, 2022

Submitted: January 4, 2022

Appeal from the Circuit Court of Greenbrier County The Honorable Robert E. Richardson, Judge Criminal Action No. 12-F-34

Eric M. Francis

Lewisburg, West Virginia

Attorney for the Petitioner

Patrick Morrisey, Attorney General

Scott E. Johnson,

Assistant Attorney General

Charleston, West Virginia

Attorneys for the Respondent


1. "'The obligation of police to warn a suspect of both his right to counsel and his right against self-incrimination applies only to custodial or other settings where there is a possibility of coercion.' Syl. pt. 2, State v. Andriotto, 167 W.Va. 501, 280 S.E.2d 131 (1981)." Syllabus point 5, State v. Hardway, 182 W.Va. 1, 385 S.E.2d 62 (1989).

2. "'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)[, overruled on other grounds by State v. Eilola, 226 W.Va. 698, 704 S.E.2d 698 (2010)]." Syllabus point 4, Damron v. Haines, 223 W.Va. 135, 672 S.E.2d 271 (2008).

3. "We adopt the 'Massachusetts' or 'humane' rule whereby the jury can consider the voluntariness of the confession, and we approve of an instruction telling the


jury to disregard the confession unless it finds that the State has proved by a preponderance of the evidence it was made voluntarily." Syllabus point 4, State v. Vance, 162 W.Va. 467, 250 S.E.2d 146 (1978).

4. "It is not reversible error to refuse to give instructions offered by a party that are adequately covered by other instructions given by the court." Syllabus point 20, State v. Hamric, 151 W.Va. 1, 151 S.E.2d 252 (1966).



Jenkins, Justice

This is a direct appeal by Petitioner, Mr. John Thomas Campbell ("Mr. Campbell"), of an order entered by the Circuit Court of Greenbrier County on January 24, 2020, that re-sentenced him, for purposes of appeal, to an indeterminate term of not less than ten nor more than twenty years for his conviction of one count of the felony offense of Sexual Abuse by a Parent, Guardian, Custodian, or Person in a Position of Trust to a Child, in violation of West Virginia Code section 61-8D-5 (eff. 2010). In this appeal, Mr. Campbell raises four issues. First, he argues that the circuit court erred by failing to suppress his recorded confession. Next, he claims the circuit court further erred by failing to give two jury instructions he proposed. Mr. Campbell also alleges that his trial counsel was ineffective, and he asserts cumulative error. We have considered the parties' briefs and oral arguments, the appendix record submitted, and the relevant statutes and legal precedent, and we find no error with respect to the first two issues raised by Mr. Campbell. We decline to address his claim of ineffective assistance of counsel in a direct appeal. Finally, because we find no error, we reject his claim of cumulative error. Accordingly, we affirm the circuit court's order of January 24, 2020.




In November 2011, a seventeen-year-old juvenile resident of Davis-Stuart School ("Davis-Stuart" or "School")[1] disclosed to a School employee that she had engaged in consensual sexual intercourse with Mr. Campbell, who was employed by Davis-Stuart as a childcare worker. The incident, which also occurred in November 2011, took place on school premises while Mr. Campbell was working his shift as a childcare worker and was responsible for the care and safety of his victim as well as other student residents of the cottage to which he was assigned. Mr. Campbell was twenty-six years old at the time.

The incident was reported to law enforcement officials, and Corporal Roger Baker ("Corporal Baker") of the Greenbrier County Sheriff's Department was assigned to investigate. As described more fully below, Corporal Baker approached Mr. Campbell at Davis-Stuart on November 29, 2011, and asked Mr. Campbell to accompany him to the Lewisburg Police Department to discuss "some issues." Mr. Campbell agreed to go, was


interviewed by Corporal Baker, and admitted to engaging in consensual sexual intercourse with the student victim. A video recording was made of the interview.

On February 8, 2012, Mr. Campbell was indicted for a single count of the felony offense of Sexual Abuse by a Parent, Guardian, Custodian, or Person in a Position of Trust to a Child, in violation of West Virginia Code section 61-8D-5.[2] After numerous delays that are not relevant to this appeal, trial was set for May 21, 2013.[3] Prior to trial,


the circuit court conducted an evidentiary hearing to determine the admissibility of Mr. Campbell's recorded interview, which included his confession. The circuit court determined that the interview was admissible, and the recording was played for the jury during Mr. Campbell's two-day trial. The jury found Mr. Campbell guilty of the offense as charged.

At Mr. Campbell's sentencing hearing on October 18, 2013, the circuit court denied Mr. Campbell's request for an alternative sentence and imposed an indeterminate term of incarceration of not less than ten nor more than twenty years. However, after hearing Mr. Campbell's motion for reconsideration of sentence on March 14, 2014, the circuit court suspended his sentence and imposed an alternative sentence of probation.[4]Thereafter, Mr. Campbell violated the conditions of his probation, [5] and, as a result, his probation was revoked and his sentence reinstated. On February 18, 2018, Mr. Campbell, as a self-represented litigant, filed a petition for writ of habeas corpus in the circuit court


claiming, in part, that his trial counsel[6] had failed to perfect an appeal on his behalf.[7]Counsel was appointed, and Mr. Campbell was re-sentenced on January 24, 2020, for purposes of allowing him to appeal his conviction. This timely appeal followed. Additional relevant facts are included in our discussion of the issues to which they pertain.



The standard for our review is different for each of the three issues considered below. Therefore, the standard for our review of each issue is set out below in our discussion of the issue to which it pertains.



Mr. Campbell raises four assignments of error; however, only three need be addressed.[8] In these three assignments, Mr. Campbell asserts that the circuit court erred


by failing to suppress his recorded interview of November 29, 2011; the circuit court further erred by failing to give two jury instructions he requested; and his trial counsel was ineffective. We consider these issues in turn.

A. Suppression of Interview

Mr. Campbell first argues that the circuit court erred by failing to suppress his recorded interview of November 29, 2011. His argument on this issue is quite convoluted, and, as the State aptly points out, it is not clear whether he is attempting to argue that his interview should have been suppressed based upon an alleged violation of his Fifth Amendment right against self-incrimination[9] as set forth in Miranda v. Arizona, [10]which also implicates article III, § 5 of the West Virginia Constitution, [11] or on the basis that his confession was not voluntary and therefore violated his rights under the Due Process Clause of the Fourteenth Amendment and § 10 of article III of the West Virginia Constitution.[12] In this regard, it has been recognized that "'[t]he question of the


voluntariness of a waiver of Miranda rights is separate and differs from the determination of the voluntariness of a confession.'" State v. Bradshaw, 193 W.Va. 519, 534, 457 S.E.2d 456, 471 (1995) (quoting Smith v. Duckworth, 856 F.2d 909, 911 (7th Cir. 1988)). Therefore, after setting out some relevant facts and the proper standard for our review, we will discuss Mr. Campbell's assertions under each standard.

The facts relevant to this assignment of error are that, following the female student's disclosure of her consensual sexual intercourse with Mr. Campbell, Mr. Campbell was approached on November 29, 2011, at Davis-Stuart, by Corporal Baker. Corporal Baker asked Mr. Campbell if he would ride to a law enforcement office to discuss some issues. Mr. Campbell voluntarily rode in the front seat of Corporal Baker's unmarked police vehicle to the Lewisburg Police Department. Once at the police department, Mr. Campbell was taken into a small, windowless interrogation room in the basement and seated beside a desk that was against the wall at the back of the room. Corporal Baker sat between Mr. Campbell and the door to the room, but the door remained unlocked. At one point, Mr. Campbell was momentarily left alone in the unlocked room. While there, Mr. Campbell participated in an interview that lasted approximately forty-five minutes and was recorded. According to a transcript of the recording, Mr. Campbell was not provided with


a Miranda warning; however, Corporal Baker advised Mr. Campbell that he was free to leave at any time:

CORPORAL BAKER: John Thomas Campbell. Okay. You come in voluntarily, correct? I mean, I didn't drag you in a headlock --
CORPORAL BAKER: -- and say, "Come in here." You know, you're free to leave any time. You're not -- you're not going to --

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