State v. Farley, No. 22139

• Court: Supreme Court of West Virginia
• Writing for the Court: CLECKLEY; BROTHERTON; MILLER
• Citation: 192 W.Va. 247,452 S.E.2d 50
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Robert Russell FARLEY, Defendant Below, Appellant.
• Decision Date: 18 November 1994
• Docket Number: No. 22139

Page 50

452 S.E.2d 50 192 W.Va. 247 STATE of West Virginia, Plaintiff Below, Appellee,
v.
Robert Russell FARLEY, Defendant Below, Appellant. No. 22139. Supreme Court of Appeals of
West Virginia. Submitted Oct. 4, 1994.
Decided Nov. 18, 1994.

Page 53

[192 W.Va. 250]

Syllabus by the Court

1. " ' "A trial court's decision regarding the voluntariness of a confession will not be disturbed unless it is plainly wrong or clearly against the weight of the evidence." Syllabus Point 3, State v. Vance, 162 W.Va. 467, 250 S.E.2d 146 (1978).' Syl. pt. 7, State v. Hickman, 175 W.Va. 709, 338 S.E.2d 188 (1985)." Syllabus Point 2, State v. Stewart, 180 W.Va. 173, 375 S.E.2d 805 (1988).

2. This Court is constitutionally obligated to give plenary, independent, and de novo review to the ultimate question of whether a particular confession is voluntary and whether the lower court applied the correct legal standard in making its determination. The holdings of prior West Virginia cases suggesting deference in this area continue, but that deference is limited to factual findings as opposed to legal conclusions.

3. In circumstances where a trial court admits a confession without making specific findings as to the totality of the circumstances, the admission of the confession will nevertheless be upheld on appeal, but only if a reasonable review of the evidence clearly supports voluntariness.

4. " 'Once a person under interrogation has exercised the right to remain silent guaranteed by W.Va. Const., art. III § 5, and U.S. Const. amend. V, the police must scrupulously honor that privilege. The failure to do so renders subsequent statements inadmissible at trial.' Syllabus Point 3, State v. Rissler, 165 W.Va. 640, 270 S.E.2d 778 (1980)." Syllabus Point 1, State v. Woodson, 181 W.Va. 325, 382 S.E.2d 519 (1989).

5. To assert the Miranda right to terminate police interrogation, the words or conduct must be explicitly clear that the suspect wishes to terminate all questioning and not merely a desire not to comment on or answer a particular question.

6. "Misrepresentations made to a defendant or other deceptive practices by police officers will not necessarily invalidate a confession unless they are shown to have affected its voluntariness or reliability." Syllabus Point 6, State v. Worley, 179 W.Va. 403, 369 S.E.2d 706 (1988).

7. Representations or promises made to a defendant by one in authority do not necessarily invalidate a subsequent confession. In determining the voluntariness of a confession, the trial court must assess the totality of all the surrounding circumstances. No one factor is determinative. To the extent that State v. Parsons, 108 W.Va. 705, 152 S.E. 745 (1930), is inconsistent with this standard, it is overruled.

Mary B. McLaughlin, Asst. Atty. Gen., Charleston, for appellee.

Page 54

[192 W.Va. 251] Dana R. Shay, Fairmont, for appellant.

CLECKLEY, Justice:

The defendant, Robert Russell Farley, was convicted in February, 1993, by a jury in the Circuit Court of Marion County of two counts of first-degree arson, four counts of second-degree arson, one count of fourth-degree arson, and one count of falsely reporting an emergency incident. He was sentenced to serve from three to thirty years. ¹ His primary assignment of error is the admission of his confession, which he contends was rendered involuntary by improper police conduct. We find no prejudicial error and affirm the convictions.

I.

In September and October, 1991, several suspicious fires occurred in Mannington, West Virginia. Fires were set in Sandy's Yarn Shop, the Old Bank Building, Shawn's Playhouse, the Community Hardware, the Masonic Lodge, the East High Street Methodist Church, and two dwellings. An arson attempt was committed upon the Old Theater, also known as the Old Show Building.

On November 3, 1991, a false fire alarm was reported to 9-1-1. Chief of Police David L. James, who had known the defendant most of his life, identified the defendant as the caller. Thereafter, Chief James asked a number of suspects, including the defendant, if they would come to the police station for questioning and a polygraph test concerning the fires. On Monday, November 4, 1991, at approximately 3:00 p.m., the defendant went to the Mannington Police Department and met with Chief James and Robert Hall, an investigator for the State Fire Marshal's Office.

After being advised of his Miranda rights ² by the officers present, the defendant stated that he understood his rights and signed a waiver form. The defendant was specifically informed that he was not under arrest and could leave at any time. At this time, a polygraph test was administered by Sergeant Ronald Lee Catlett. ³ Sergeant Catlett was the only person present in the room while the defendant took the test. At its conclusion, Sergeant Catlett left the room and reviewed the results with Mr. Hall and Chief James. These three men then questioned the defendant about the fires in the area. It was at this time that the defendant was informed that he did not do well on the polygraph test. At first, he denied involvement with the fires and the false fire alarm call; however, after the tape recording of the 9-1-1 call was played to the defendant, he admitted that he placed the call.

The defendant subsequently confessed to setting the fires at the Old Bank Building, the Masonic Lodge, the East High Street Methodist Church, and to the attempted arson at the Old Theater (Show) Building. ⁴ He

Page 55

[192 W.Va. 252] denied involvement with any other fire in the area.

When Deputy Mark E. Fetty from the Marion County Sheriff's Department arrived at the police department, the defendant was again advised of his Miranda rights. Immediately after Deputy Fetty began to question him, the defendant stated that he would not answer any further questions without an attorney. The interrogation ceased, and the defendant was arrested and taken into custody.

On March 5, 1992, a hearing was held on the defendant's pretrial motion to suppress his confession. The defendant did not testify. Sergeant Catlett, Mr. Hall, Chief James, Officer Cross, and Deputy Fetty testified that the defendant was properly advised of his Miranda rights and that his statement was given voluntarily. The police contended that no promises of leniency were given in exchange for his confession. The circuit court, without elaboration, found that the defendant was properly advised of his rights and that the statement was "freely and voluntarily made," and was therefore admissible.

At trial, the defendant recanted his confession. He testified that he made the statement because the officers repeatedly questioned him, "kept on promising [him] things," and said "we'll get you help." However, on cross-examination, the defendant stated that he was not swayed by these offers.

Following his convictions, the circuit court denied the defendant's motion for judgment of acquittal and motion for a new trial. This appeal ensued.

II.

The defendant assigns as error the admission of his oral and written confession, which he contends was rendered involuntary by improper police conduct. It is axiomatic in West Virginia jurisprudence that the prosecution must show by "affirmative evidence" as a condition precedent to its admissibility that the voluntariness of a confession is established by a preponderance of the evidence. State v. Zaccario, 100 W.Va. 36, 129 S.E. 763 (1925). A mere prima facie showing is insufficient. State v. Starr, 158 W.Va. 905, 216 S.E.2d 242 (1975). Once that decision is made, we accord the trial court's ruling appropriate weight. In Syllabus Point 2 of State v. Stewart, 180 W.Va. 173, 375 S.E.2d 805 (1988), we stated our standard of review in these matters:

" ' "A trial court's decision regarding the voluntariness of a confession will not be disturbed unless it is plainly wrong or clearly against the weight of the evidence." Syllabus Point 3, State v. Vance, 162 W.Va. 467, 250 S.E.2d 146 (1978).' Syl. pt. 7, State v. Hickman, 175 W.Va. 709, 338 S.E.2d 188 (1985)."

Although we give deference to the factual findings of the trial court when the voluntariness of a confession is in issue, the ultimate determination of "voluntariness is a

Page 56

[192 W.Va. 253] legal question requiring independent [appellate] ... determination." Arizona v. Fulminante, 499 U.S. 279, 287, 111 S.Ct. 1246, 1252, 113 L.Ed.2d 302, 316 (1991). ⁵ To be specific, we hold that this Court is constitutionally obligated to give plenary, independent, and de novo review to the ultimate question of whether a particular confession is voluntary and whether the trial court applied the correct legal standard in making its determination. See State v. Starr, 158 W.Va. at 916, 216 S.E.2d at 249 ("trial court's discretion does not include applying an improper standard of proof"). ⁶ The holdings of prior West Virginia cases suggesting deference in this area continues, but that deference is limited to factual findings as opposed to legal conclusions.

Whether police activity meets constitutional muster in any particular context depends on the facts which are unique to the situation. In this regard, the trial court has a superior sense of what actually transpired during the taking of a confession, by virtue of its ability to see and hear the witnesses who have firsthand knowledge of the events. Appellate oversight is therefore deferential, and we should review the trial court's findings of fact following a suppression hearing, including mixed fact/law findings, under the clearly erroneous standard. If the trial court makes no findings or applies the wrong legal standard, however, no deference attaches to such an application. Of course, if the trial court's findings of fact are not clearly erroneous and the correct legal standard is applied, its ultimate ruling will be affirmed as a matter of law.

No deference is required in this case because the trial court made no findings except to...