State v. Hopkins

Decision Date31 January 1995
Docket NumberNo. 22079,22079
Citation192 W.Va. 483,453 S.E.2d 317
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia, Plaintiff Below, Appellee, v. Brian HOPKINS, Defendant Below, Appellant.

Part, Opinion of Justice Cleckley

Jan. 31, 1995.

Syllabus by the Court

1. "Volunteered admissions by a defendant are not inadmissible because the procedural safeguards of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) were not followed, unless the defendant was both in custody and being interrogated at the time the admission was uttered." Syllabus Point 2, State v. Rowe, 163 W.Va. 593, 259 S.E.2d 26 (1979).

2. " 'Error in the admission of testimony to which no objection was made will not be considered by this Court on appeal or writ of error, but will be treated as waived.' Syl. pt. 4, State v. Michael, 141 W.Va. 1, 87 S.E.2d 595 (1955)." Syllabus Point 7, State v. Davis, 176 W.Va. 454, 345 S.E.2d 549 (1986).

3. Our holding in State v. Armstrong, 175 W.Va. 381, 332 S.E.2d 837 (1985) is overruled because it imposes an unnecessary restriction on the use of valid uncounseled previous convictions and we find that under the sixth amendment to the U.S. Constitution and article III, section 14 of the West Virginia Darrell V. McGraw, Jr., Atty. Gen., Shawn Anthony Taylor, Asst. Atty. Gen., Charleston, for appellee.

[192 W.Va. 485] Constitution, "an uncounseled misdemeanor conviction, valid under Scott [v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979) ], because no prison term was imposed, is also valid when used to enhance punishment at a subsequent conviction." Nichols [v. United States] 511 U.S. 738, ----, 114 S.Ct. 1921, 1928, 128 L.Ed.2d 745, 755 (1994).

Warren R. McGraw, II, Beckley, for appellant.

NEELY, Justice:

Brian Hopkins appeals his conviction for shoplifting, third offense and the fines imposed as part of his sentence. On appeal, Mr. Hopkins argues that his conviction should be reversed because the circuit court improperly used his prior uncounseled shoplifting convictions to enhance his sentence. Because a sentencing court is not prohibited from considering a defendant's previous valid uncounseled misdemeanor convictions in sentencing him for a subsequent offense, we affirm his conviction and the fines imposed as part of his sentence.

On 26 October 1992, Mr. Hopkins allegedly shoplifted two cigarette packs from the Food-4-Less grocery store in Beckley, West Virginia. Richard Pyatt, who is employed by the store as a security officer, saw Mr. Hopkins pick up and put two cigarette packs in his pocket. After two persons who accompanied Mr. Hopkins noticed Mr. Pyatt watching them, Mr. Hopkins left the cigarette sales area and walked down and up an aisle. Finally Mr. Hopkins, without paying, walked through the check-out counter, after which he was stopped by Mr. Pyatt. When Mr. Pyatt asked Mr. Hopkins where the two cigarette packs were, Mr. Hopkins responded that he did not have any cigarettes. When Mr. Pyatt told Mr. Hopkins the brands of cigarettes, Mr. Hopkins said, "Man, you're slick; I didn't see you. How did you see me do that? Where were you at?" The persons who accompanied Mr. Hopkins told Mr. Pyatt that the cigarettes were in aisle nine, the makeup and hair spray area.

Mr. Pyatt then told Mr. Hopkins he was under arrest for shoplifting. After Mr. Hopkins showed Mr. Pyatt the cigarettes' location, Mr. Hopkins said, "Okay, man, you got your stuff back; let me go." Mr. Hopkins followed Mr. Pyatt to the store's security office where Mr. Hopkins' picture was taken with the cigarettes. Without advising Mr. Hopkins of his Miranda rights 1, Mr. Pyatt questioned Mr. Hopkins, who responded by giving a false name and address. 2 Later as they were returning to the store's front, Mr. Hopkins walked out of the store. The Beckley City Police Department, who were called when Mr. Hopkins was first stopped, recognized Mr. Hopkins from the picture and arrested him several days later.

Mr. Hopkins was charged and convicted by a jury of third offense shoplifting. At trial the State introduced evidence of Mr. Hopkins' three prior convictions for shoplifting, two of which occurred in 1987, and one in 1988. Mr. Hopkins pled guilty to both 1987 convictions and pled nolo contendere to the 1988 conviction. For each prior conviction, the State presented a witness who had seen Mr. Hopkins shoplift and the final judgment sheet.

After the jury found Mr. Hopkins guilty, Mr. Hopkins was sentenced to a term of 1 to 10 years, and fined $500 for the conviction, $50 as a mandatory penalty, payable to the mercantile establishment, and the costs of the proceeding.

Mr. Hopkins appeals his conviction to this Court asserting the following assignments of error: (1) Mr. Hopkins' statements to Mr. Pyatt were improperly admitted into evidence; (2) The circuit court improperly failed to sever evidence of Mr. Hopkins' prior shoplifting convictions; (3) The circuit court improperly allowed uncounseled convictions to

[192 W.Va. 486] enhance the sentence; and (4) The $50 mandatory fine is an unconstitutional taking without due process.

I

Mr. Hopkins alleges that because Mr. Pyatt failed to advise him of his Miranda rights, his statement to Mr. Pyatt should not have been admitted. According to Mr. Pyatt, shortly after he stopped and asked Mr. Hopkins about the cigarettes 3 and Mr. Pyatt told Mr. Hopkins the brands of the cigarettes allegedly taken, Mr. Hopkins said, "Man, you're slick; I didn't see you. How did you see me do that? Where were you at?" Because Mr. Hopkins objected to having the jury consider his statement to Mr. Pyatt, the circuit court held an in camera hearing. During the hearing, Mr. Pyatt testified that Mr. Hopkins was arrested after his "[m]an, you're slick ..." statement and that Mr. Hopkins was not restrained in any way. Mr. Pyatt said that after they returned to the store's selling area, Mr. Hopkins who had followed him around the store and to the security office, simply walked out the store's front door before the police arrived.

The circuit court, first noting that Miranda warnings are required before an interrogation, found in this case that "there was no interrogation ... of the defendant by this witness." The circuit court found the statement to be spontaneous and not the result of an interrogation. Mr. Hopkin's objection to the use of his statement was not renewed after the circuit court made his decision.

We have long held that "Miranda warnings are required whenever a suspect has been formally arrested or subject to custodial interrogation, regardless of the nature or severity of the offense." Syl. pt. 1, State v. Preece, 181 W.Va. 633, 383 S.E.2d 815 (1989). 4 In State v. Preece, the sole issue was when a traffic investigation escalated into an accusatory custodial environment, requiring Miranda warnings. State v. Preece held that Miranda warnings are required when "a reasonable person in the suspect's position would have considered his or her freedom of action curtailed to a degree associated with a formal arrest." Syl. pt. 3, in part, State v. Preece.

Recently the Supreme Court affirmed that "Miranda warnings are required only where there has been such a restriction on a person's freedom as to render him 'in custody.' " Stansbury v. California, 511 U.S. 318, ----, 114 S.Ct. 1526, 1529, 128 L.Ed.2d 293, 299 (1994) (per curiam), quoting, Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 711, 50 L.Ed.2d 714, 714 (1977) (per curiam). In Stansbury, the Supreme Court was concerned that the lower court's decision finding no custodial interrogation was premised on the interrogating "officer's subjective view that the individual under questioning is a suspect, if undisclosed ... [or] if an officer's undisclosed assessment is that the person being questioned is not a suspect." 511 U.S. at ---- - ----, 114 S.Ct. at 1529-30, 128 L.Ed.2d at 299-300. Rather, the Supreme Court's "decisions make clear that the initial determination of custody depends on the objective circumstances of the interrogation In Stansbury, the Supreme Court did not decide whether the Miranda warnings were required under Stansbury's circumstances, but rather, focused on when such warnings are required and the factors to be considered. 5 The defendant in Stansbury was considered a potential witness and not the suspect in a homicide investigation concerning the death of a 10-year-old girl. At about 11:00 p.m., four plain clothes officers went to Mr. Stansbury's trailer and with three officers surrounding the door, one knocked. The officers told Mr. Stansbury they "were investigating a homicide to which Stansbury was a possible witness and asked if he would accompany them to the police station to answer some questions." 511 U.S. at ----, 114 S.Ct. at 1527, 128 L.Ed.2d at 297. Mr. Stansbury agreed to be interviewed and rode to the police station in the front of the police car. Without informing Mr. Stansbury of his Miranda rights, the police questioned him about his activities on the night of the murder. After Mr. Stansbury informed the police that he left his trailer "about midnight in his housemate's turquoise, American-made car" (--- U.S. at ----, 114 S.Ct. at 1528, 128 L.Ed.2d at 297), the officers, aware of a witness' similar car description, asked the defendant about his prior convictions, which Stansbury described and which included rape, kidnapping and child molestation. At that point, Mr. Stansbury stopped the questioning and an officer advised the defendant of his Miranda rights. Thereafter, Mr. Stansbury "declined to make further statements, requested an attorney and was arrested." 511 U.S. at ----, 114 S.Ct. at 1528, 128 L.Ed.2d at 297.

[192 W.Va. 487] not on the subjective views harbored by either the interrogating officers or the person being questioned." [Emphasis added.] 511 U.S. at ----, 114 S.Ct. at 1529, 128...

To continue reading

Request your trial
23 cases
  • State v. Nichols
    • United States
    • West Virginia Supreme Court
    • December 3, 1999
    ...Mr. Nichols stipulated to the two prior DUI convictions. However, the circuit court, in reliance upon State v. Hopkins, 192 W.Va. 483, 453 S.E.2d 317 (1994) (Cleckley, J. dissenting), required the State to present evidence to establish the defendant's two prior convictions. Mr. Nichols now ......
  • State v. Woodruff
    • United States
    • New Mexico Supreme Court
    • November 21, 1997
    ...164 Vt. 515, 671 A.2d 1280, 1283-84 (1996); James v. Commonwealth, 18 Va.App. 746, 446 S.E.2d 900, 902-04 (1994); State v. Hopkins, 192 W.Va. 483, 453 S.E.2d 317, 323-24 (1994). The United States Supreme Court's guidance in Nichols is that state courts now may use an uncounseled prior misde......
  • State v. Lopez
    • United States
    • West Virginia Supreme Court
    • July 18, 1996
    ...not on the subjective views harbored by either the interrogating officers or the person being question.' " State v. Hopkins, 192 W.Va. 483, 453 S.E.2d 317, 320-21 (quoting Stansbury v. California, 511 U.S. 318, 323, 114 S.Ct. 1526, 1529, 128 L.Ed.2d 293 In the instant case, the evidence aff......
  • State v. McCraine
    • United States
    • West Virginia Supreme Court
    • May 16, 2003
    ...defendant. State v. Armstrong, 175 W.Va. 381, 386-87, 332 S.E.2d 837, 842 (1985), overruled on other grounds by State v. Hopkins, 192 W.Va. 483, 453 S.E.2d 317 (1994). This Court has further recognized that once the State produces such evidence it is incumbent upon the accused to present ev......
  • Request a trial to view additional results
1 books & journal articles
  • The right to counsel and collateral sentence enhancement: in search of a rationale.
    • United States
    • University of Pennsylvania Law Review Vol. 144 No. 3, January 1996
    • January 1, 1996
    ...or the Georgia Constitution because the defendant had not been incarcerated for the prior convictions. (224) State v. Hopkins, 453 S.E.2d 317, 324 (W. Va. 1994) (construing W. Va. Const. art. III, [sections] 14). (225) See Paletta. City of Topeka, 893 P.2d 289, Bra (Kan. Ct. App. 1995) (dec......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT