State v. Humphrey, No. 16895

CourtSupreme Court of West Virginia
Writing for the CourtMILLER
Citation351 S.E.2d 613,177 W.Va. 264
PartiesSTATE of West Virginia v. Terry Wayne HUMPHREY.
Decision Date10 December 1986
Docket NumberNo. 16895

Page 613

351 S.E.2d 613
177 W.Va. 264
STATE of West Virginia
v.
Terry Wayne HUMPHREY.
No. 16895.
Supreme Court of Appeals of
West Virginia.
Dec. 10, 1986.

Page 614

[177 W.Va. 265] Syllabus by the Court

1. " 'The delay in taking a defendant to a magistrate may be a critical factor [in the totality of circumstances making a confession involuntary and hence inadmissible] where it appears that the primary purpose of the delay was to obtain a confession from the defendant.' Syllabus Point 6, State v. Persinger, [169 W.Va. 121], 286 S.E.2d 261 (1982), as amended." Syllabus Point 1, State v. Guthrie, --- W.Va. ---, 315 S.E.2d 397 (1984).

2. Our prompt presentment rule contained in W.Va.Code, 62-1-5, and Rule 5(a) of the West Virginia Rules of Criminal Procedure, is triggered when an accused is placed under arrest. Furthermore, once a defendant is in police custody with sufficient probable cause to warrant an arrest, the prompt presentment rule is also triggered.

3. The delay occasioned by reducing an oral confession to writing ordinarily does not count on the unreasonableness of the delay where a prompt presentment issue is involved.

[177 W.Va. 266] 4. Ordinarily the delay in taking an accused who is under arrest to a magistrate after a confession has been obtained from him does not vitiate the confession under our prompt presentment rule.

5. "The crime of felony-murder in this State does not require proof of the elements of malice, premeditation or specific intent to kill. It is deemed sufficient if the homicide occurs accidentally during the commission of, or the attempt to commit, one of the enumerated felonies." Syllabus Point 7, State v. Sims, 162 W.Va. 212, 248 S.E.2d 834 (1978).

6. Competency differs from credibility. The former is a question that arises before considering the evidence given by the witness; the latter concerns the degree of credit to be given to his testimony. The former denotes the personal qualifications of the witness; the latter his veracity.

7. " 'The question of the competency of a witness to testify is left largely to the discretion of the trial court and its judgment will not be disturbed unless shown to have been plainly abused resulting in manifest error.' Point 8, Syllabus, State v. Wilson, 157 W.Va. 1036, 207 S.E.2d 174 (1974)." Syllabus Point 3, State v. Butcher, 165 W.Va. 522, 270 S.E.2d 156 (1980).

8. " 'In the trial of an indictment for murder all instruments which the evidence tends to show were used in the perpetration of the crime, may be produced for the inspection of the jury.' Syl. pt. 1, State v. Henry, 51 W.Va. 283, 41 S.E. 439 (1902)." Syllabus Point 8, State v. Gum, --- W.Va. ---, 309 S.E.2d 32 (1983).

9. Our general rule is that nonjurisdictional trial error not raised in the trial court will not be addressed on appeal.

James C. Blankenship, III, Fayetteville, for appellant.

Charles Brown, Atty. Gen. and Paul Reese, Asst. Atty. Gen., Charleston, for appellee.

MILLER, Chief Justice:

Terry Humphrey was convicted by a jury in the Circuit Court of Fayette County of first degree murder without a recommendation of mercy. The main issue raised by the defendant involves the admissibility of a written statement he gave to the police, which the defendant contends was taken in violation of our prompt presentment statute. Other asserted errors relate to various evidentiary rulings and the failure to give a lesser included offense instruction. After examining the record and all of the issues raised by the defendant, we conclude the trial court committed no reversible error and, therefore, we affirm the conviction.

On the night of February 17, 1984, Odell Washington was shot once in the chest in the alley beside his grocery store. After being shot, he managed to walk to the front of the store where he collapsed and

Page 615

died from the shotgun wound. His body was discovered soon thereafter.

On the following day, Hudon Nicholes went to the State police headquarters in Oak Hill and related that in a conversation he had with the defendant prior to the shooting, the defendant admitted waiting outside of Mr. Washington's store on a prior occasion with the intent to rob Mr. Washington, but did not do so at that time. Mr. Nicholes agreed to aid the State police in their investigation of the shooting by meeting with the defendant while wearing a transmitting device that allowed the State police to listen and record their conversation. In the course of one of these tape-recorded discussions with the defendant, he again mentioned to Mr. Nicholes that a few days prior to the shooting, he had gone down to Mr. Washington's store with a butcher knife to rob him, but for some reason changed his mind.

Based on this information, on February 20, 1984, at about 8:15 in the evening, State police officer Gary McGraw contacted the defendant at his sister's house and asked him if he would voluntarily go to State police headquarters to answer some questions regarding the shooting of Mr. Washington. The defendant agreed to do so voluntarily and was driven to the headquarters in a State police cruiser.

[177 W.Va. 267] When they arrived at the headquarters, the defendant was taken to a room by Officer McGraw who advised him of his Miranda rights 1 and asked some preliminary questions. This testimony at the suppression hearing, at which the defendant did not testify, indicated that several other State police officers were in and out of the room during this time. The defendant was not restrained by handcuffs or any other devices, was not under arrest, and, according to the State police officers, was free to leave at any time. The defendant initially denied any involvement in the shooting. A tape recording of his conversation with Mr. Nicholes was then played for the defendant. Upon further questioning about the shooting, the defendant started crying and stated, "I did it." The statement was made at approximately 9:00 p.m. which was shortly after he had arrived at the headquarters.

After this oral statement, Officer McGraw again read the Miranda rights to the defendant from a waiver of rights form. The defendant was allowed to read the rights form and subsequently he signed it. The time noted on the rights form was 9:10 p.m. After the defendant signed the waiver of rights form, Officer McGraw proceeded to question the defendant in more detail about the incident and recorded his answers by writing them down on a legal pad. He began taking this written statement at about 9:16 p.m.

According to the suppression hearing testimony, it took approximately one hour and fifteen minutes for Officer McGraw to complete the defendant's written statement which consisted of eight pages. After the questioning was finished, the defendant read and signed each page of the statement.

In his statement, the defendant explained that on February 17, 1984, he had been drinking beer and worrying about some money he owed. At some time after 8:00 p.m., he went to his father's house and obtained a shotgun. Thereafter, at approximately 10:15 p.m., he waited in the alley beside Mr. Washington's store with the loaded shotgun for about one hour. When Mr. Washington walked into the alley, the defendant said, "Hold it. This is a stickup." When Mr. Washington subsequently yelled for help, the defendant fired the shotgun, panicked, and ran. He also stated that after hiding the shotgun in two different locations, he retrieved the shotgun and gave it to someone to pay off a debt. While the interrogation continued, a State police officer went to the address where the defendant said the shotgun would be found and recovered the shotgun at approximately 10:17 p.m.

When the statement was completed around 10:30 p.m., the State police sought

Page 616

to corroborate some of the information given by the defendant. Officers were sent to a dumpster described by the defendant, where he claimed to have disposed of some articles, but were unable to find anything. The officers then proceeded to the home of the defendant's parents, where the defendant claimed the clothes he wore on the night of the shooting would be found. At 11:00 p.m., the State police retrieved the clothing described by the defendant from his mother, who had consented to the search.

During this time, the defendant remained at State police headquarters. The defendant was taken before a magistrate shortly after midnight. At the presentment, one State police officer overheard the defendant explain to his mother, "Mommy, I didn't mean to kill him."

At trial, the State proceeded on a felony-murder theory, contending the murder occurred in the course of an attempted robbery, and also under a first degree murder theory. As previously noted, the jury found the defendant guilty of first degree murder with no recommendation of mercy.

I.

ADMISSIBILITY OF WRITTEN STATEMENT

The defendant argues that his written confession should not have been admitted [177 W.Va. 268] because the State failed to promptly present him to a magistrate, in violation of W.Va.Code, 62-1-5, and Rule 5(a) of the West Virginia Rules of Criminal Procedure. 2 In State v. Persinger, 169 W.Va. 121, 286 S.E.2d 261 (1982), we discussed at some length the rationale behind this rule and concluded in Syllabus Point 6:

"The delay in taking the defendant to a magistrate may be a critical factor where it appears that the primary purpose of the delay was to obtain a confession from the defendant." 3

We recognized in Persinger the general rule that the voluntariness of a defendant's confession depends upon the totality of the circumstances under which it was obtained 4 and we said that "an unjustifiable and unreasonable delay in taking the accused before a magistrate after his initial arrest may in itself be sufficient to render a confession involuntary." Persinger, 169 W.Va. at 137-38, 286 S.E.2d at 271.

Later, in Syllabus Point 1 of State v. Guthrie, --- W.Va. ---, 315 S.E.2d 397 (1984), we...

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69 practice notes
  • State v. DeWeese, No. 30733.
    • United States
    • Supreme Court of West Virginia
    • April 15, 2003
    ...do permit delay in bringing a suspect before a magistrate when the suspect wishes to make a statement. See Syl. pt. 3, State v. Humphrey, 177 W.Va. 264, 351 S.E.2d 613 (1986) ("The delay occasioned by reducing an oral confession to writing ordinarily does not count on the unreasonableness o......
  • State v. Kilmer, No. 21504
    • United States
    • Supreme Court of West Virginia
    • December 10, 1993
    ...does not count on the unreasonableness of the delay where a prompt presentment issue is involved." Syl. Pt. 3, State v. Humphrey, 177 W.Va. 264, 351 S.E.2d 613 5. "Both the Fourth Amendment to the United States Constitution and Article III, Section 6 of the West Virginia Constitution provid......
  • State v. McCartney, No. 101457.
    • United States
    • Supreme Court of West Virginia
    • November 17, 2011
    ...has been obtained from him does not vitiate the confession under our prompt presentment rule.” Syllabus Point 4, State v. Humphrey, 177 W.Va. 264, 351 S.E.2d 613 (1986).’ Syllabus Point 8, State v. Worley, 179 W.Va. 403, 369 S.E.2d 706, cert. denied, 488 U.S. 895, 109 S.Ct. 236, 102 L.Ed.2d......
  • Kevin E. E. v. Seifert, No. 12-1285
    • United States
    • Supreme Court of West Virginia
    • October 1, 2013
    ...is placed under arrest or once the defendant is in police custody with sufficient probable cause to warrant arrest. State v. Humphrey, 177 W.Va. 264; 351 S.E.2d 613 (1986). "The focus is not so much on the length of the detention but whether the police were primarily using the delay in brin......
  • Request a trial to view additional results
70 cases
  • State v. DeWeese, No. 30733.
    • United States
    • Supreme Court of West Virginia
    • April 15, 2003
    ...do permit delay in bringing a suspect before a magistrate when the suspect wishes to make a statement. See Syl. pt. 3, State v. Humphrey, 177 W.Va. 264, 351 S.E.2d 613 (1986) ("The delay occasioned by reducing an oral confession to writing ordinarily does not count on the unreasonableness o......
  • State v. Kilmer, No. 21504
    • United States
    • Supreme Court of West Virginia
    • December 10, 1993
    ...does not count on the unreasonableness of the delay where a prompt presentment issue is involved." Syl. Pt. 3, State v. Humphrey, 177 W.Va. 264, 351 S.E.2d 613 5. "Both the Fourth Amendment to the United States Constitution and Article III, Section 6 of the West Virginia Constitution provid......
  • State v. McCartney, No. 101457.
    • United States
    • Supreme Court of West Virginia
    • November 17, 2011
    ...has been obtained from him does not vitiate the confession under our prompt presentment rule.” Syllabus Point 4, State v. Humphrey, 177 W.Va. 264, 351 S.E.2d 613 (1986).’ Syllabus Point 8, State v. Worley, 179 W.Va. 403, 369 S.E.2d 706, cert. denied, 488 U.S. 895, 109 S.Ct. 236, 102 L.Ed.2d......
  • Kevin E. E. v. Seifert, No. 12-1285
    • United States
    • Supreme Court of West Virginia
    • October 1, 2013
    ...is placed under arrest or once the defendant is in police custody with sufficient probable cause to warrant arrest. State v. Humphrey, 177 W.Va. 264; 351 S.E.2d 613 (1986). "The focus is not so much on the length of the detention but whether the police were primarily using the delay in brin......
  • Request a trial to view additional results

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