State v. Flippo

Decision Date06 November 2002
Citation212 W.Va. 560,575 S.E.2d 170
CourtWest Virginia Supreme Court

Syllabus by the Court

1. Consent to search may be implied by the circumstances surrounding the search, by the person's prior actions or agreements, or by the person's failure to object to the search. Thus, a search may be lawful even if the person giving consent does not recite the talismanic phrase: "You have my permission to search."

2. When a person summons the police to a dwelling he/she owns, possesses, or controls, and that person states that a crime was committed against him/her or others by a third person at the premises, he/she implicitly consents to a search of the premises reasonably related to the routine investigation of the offense and the identification of the perpetrator, absent a contrary limitation imposed by the person summoning the police. As long as the person summoning the police is not a suspect in the case or does not affirmatively revoke his/her implied consent, the police may search the premises without a warrant for the purposes of investigating the reported offense and identifying the perpetrator, and evidence obtained thereby is admissible. If the person affirmatively revokes his/her implied consent or becomes a suspect during the investigation, the police must stop the search and obtain a warrant for the purpose of continuing the search. The implied consent exception is valid only for the initial investigation conducted at the scene, and does not carry over to future visits to the scene.

3. Under the inevitable discovery rule, unlawfully obtained evidence is not subject to the exclusionary rule if it is shown that the evidence would have been discovered pursuant to a properly executed search warrant.

4. To prevail under the inevitable discovery exception to the exclusionary rule, Article III, Section 6 of the West Virginia Constitution requires the State to prove by a preponderance of the evidence: (1) that there was a reasonable probability that the evidence would have been discovered by lawful means in the absence of police misconduct; (2) that the leads making the discovery inevitable were possessed by the police at the time of the misconduct; and (3) that the police were actively pursuing a lawful alternative line of investigation to seize the evidence prior to the time of the misconduct.

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)." Syllabus point 14, State v. Salmons, 203 W.Va. 561, 509 S.E.2d 842 (1998).

George Castelle, Ira Mickenberg, Kanawha County Public Defender Corporation, Charleston, WV, for Appellant.

Darrell V. McGraw, Jr., Attorney General, Silas B. Taylor, Senior Deputy Attorney General, Charleston, WV, for Appellee.

DAVIS, Chief Justice.

James Michael Flippo (hereinafter referred to as "Mr. Flippo"), appellant/defendant below, appeals from an order of the Circuit Court of Fayette County denying his motion for a new trial. In the motion for a new trial, Mr. Flippo contended that photographs of a third party, Joel Boggess (hereinafter referred to as "Mr. Boggess"), were unlawfully seized and therefore should not have been introduced as evidence during the trial. The trial court held that the photographs were lawfully seized under the implied consent or inevitable discovery exception to the warrant requirement. Therefore, the photographs were admissible during the trial. Alternatively, the trial court ruled that the introduction of the photographs was harmless error. Here, Mr. Flippo contends that the trial court committed reversible error by concluding that the photographs were admissible under the implied consent or inevitable discovery exception, and in finding harmless error in allowing the introduction of the photographs. After a thorough review of the briefs and record in this case, we find that the photographs were inadmissible under the implied consent or inevitable discovery exception. Having so ruled, however, we do agree with the trial court that introduction of the photographs in this case was, beyond a reasonable doubt, harmless error. We therefore affirm the circuit court's order denying a new trial.


On March 1, 1996, Mr. Flippo and his wife, Cheryl Flippo, purchased a $100,000.00 life insurance policy on her life. The policy became effective on April 1, 1996. The policy named Mr. Flippo as the beneficiary. On April 27, 1996, Mr. Flippo accompanied Mr. Boggess to Babcock State Park for the purpose of having Mr. Flippo, who was a minister, baptize Mr. Boggess in a park stream. They went to the park in Mr. Boggess' red Camaro. After the baptism, Mr. Flippo took pictures of Mr. Boggess as he removed his wet clothing. At some point during the same day, Mr. Flippo telephoned the park and made reservations to rent a cabin for him and his wife on April 29, 1996, two days after the baptism.

During the early evening hours of April 29, 1996, Mr. Flippo and his wife traveled to Babcock State Park. The Flippos did not secure a key to the cabin as their arrival was late. However, the cabin was unlocked. Shortly after the couple arrived at the cabin, Mr. Flippo left briefly to use a pay phone.

At approximately 2:11 a.m. on the morning of April 30, 1996, the Fayette County 911 operator received a phone call from Mr. Flippo. During the call, Mr. Flippo stated that he and his wife had been attacked in their cabin. The 911 operator told Mr. Flippo to remain at the pay phone and help would be on the way. Deputy C. Bryant of the Fayette County Sheriff's Department responded to the emergency call. Deputy Bryant found Mr. Flippo at the pay phone wearing only his underwear. He had blood on his legs. Mr. Flippo told the deputy that he had traveled to the park in a green Cadillac, but that it had been stolen. The deputy drove Mr. Flippo to the cabin. Upon arrival at the cabin, Deputy Bryant inquired about a red Camaro parked near the cabin. Mr. Flippo stated that he did not know who owned the Camaro, and that he had not come to the park in the Camaro.

Deputy Bryant left Mr. Flippo in his police cruiser and went to the cabin. The deputy found no signs of a forced entry into the cabin. He was also careful to note that, although it had been raining and the ground was soft, he found no footprints (other than his own) around the cabin area. When the deputy entered the cabin, he found the dead body of Mrs. Flippo lying between a bed and a wall. The deputy observed that Mrs. Flippo's skull was opened and her brain matter was exposed.

After discovering the body, Deputy Bryant went outside and found that two paramedics had arrived. One paramedic went into the cabin, while the other tended to Mr. Flippo. Once it was determined by the paramedic that Mrs. Flippo was dead, Mr. Flippo was taken to a local hospital. Deputy Bryant remained at the crime scene and conducted an investigation.

While Mr. Flippo was at the hospital, he was diagnosed as having a small bruise on his forehead and on the back of his head. He also had some scratches, with minimal bleeding, on his legs. During Mr. Flippo's treatment at the hospital, Fayette County Sheriff Detective S. Kessler arrived at the hospital. After receiving treatment at the hospital Mr. Flippo agreed to accompany the detective to police headquarters to give a statement.

While at police headquarters, Mr. Flippo informed the police that once he and his wife arrived at the cabin, he went out to a pay phone to call a sick friend who was at a hospital. After making the telephone call, he returned to the cabin and started a fire. Mr. Flippo stated that after he started the fire, he and his wife ate ice cream and played cards. Mr. Flippo reported that at some point after they went to bed, he heard a noise and saw a person lying between their bed and a wall. The intruder had a rope and was wearing a toboggan over his face. Mr. Flippo further stated that before he could alert his wife, the intruder hit him on the back of the head with a piece of firewood and knocked him unconscious. Mr. Flippo indicated that when he regained consciousness, he found the intruder sitting on him and cutting his legs with a knife. The intruder thereafter struck him in the forehead and knocked him unconscious once again. When Mr. Flippo regained consciousness a second time, the intruder was gone. After regaining consciousness, Mr. Flippo stated that he found his wife on the floor in a pool of blood. He reported that he placed his head on her heart and found it still beating. Thereafter, he rushed out of the cabin to call 911.

Shortly after Mr. Flippo gave his statement, Detective Kessler spoke by phone with a crime scene investigator, Detective G. Burke. Detective Burke reported that there was no forced entry into the cabin, the crime scene looked staged, and that certain items were not where they logically should have been. After the telephone call, at approximately 10:33 a.m., Mr. Flippo was informed that he was a suspect. He was read his Miranda rights. 1 After Mr. Flippo requested to speak with his attorney, all questioning of him stopped. However, at some point after the interrogation ended, Mr. Flippo requested medication and clothing be retrieved from the cabin. 2 Mr. Flippo's attorney arrived at police headquarters several hours later and took him away. On May 3, 1996, the police arrested Mr. Flippo and charged him with murdering his wife. Mr. Flippo was subsequently indicted for first degree murder by a grand jury. Prior to trial, Mr. Flippo made two motions relevant to this appeal. Mr. Flippo requested that the prosecutor be precluded from eliciting testimony that he had a homosexual relationship...

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