State v. Kilmer, No. 21504

CourtSupreme Court of West Virginia
Writing for the CourtWORKMAN
Citation190 W.Va. 617,439 S.E.2d 881
PartiesSTATE of West Virginia, Plaintiff Below, Appellee, v. Charles R. KILMER, Defendant Below, Appellant.
Docket NumberNo. 21504
Decision Date10 December 1993

Page 881

439 S.E.2d 881
190 W.Va. 617
STATE of West Virginia, Plaintiff Below, Appellee,
v.
Charles R. KILMER, Defendant Below, Appellant.
No. 21504.
Supreme Court of Appeals of
West Virginia.
Submitted Sept. 21, 1993.
Decided Dec. 10, 1993.

Page 882

[190 W.Va. 618] Syllabus by the Court

1. "Once an accused asks for counsel during custodial interrogation, he is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further

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[190 W.Va. 619] communication, exchanges, or conversations." Syl. Pt. 2, State v. Bowyer, 181 W.Va. 26, 380 S.E.2d 193 (1989).

2. "For a recantation of a request for counsel to be effective: (1) the accused must initiate a conversation; and (2) must knowingly and intelligently, under the totality of the circumstances, waive his right to counsel." Syl. Pt. 1, State v. Crouch, 178 W.Va. 221, 358 S.E.2d 782 (1987).

3. "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." Syl. Pt. 6, State v. Persinger, 169 W.Va. 121, 286 S.E.2d 261 (1982).

4. "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." Syl. Pt. 3, State v. Humphrey, 177 W.Va. 264, 351 S.E.2d 613 (1986).

5. "Both the Fourth Amendment to the United States Constitution and Article III, Section 6 of the West Virginia Constitution provide that no warrant shall issue except upon probable cause supported by oath or affirmation." Syl. Pt. 3, in part, State v. Adkins, 176 W.Va. 613, 346 S.E.2d 762 (1986).

6. " 'To constitute probable cause for the issuance of a search warrant, the affiant must set forth facts indicating the existence of criminal activities which would justify a search....' Syllabus point 1, in part, State v. Stone, 165 W.Va. 266, 268 S.E.2d 50 (1980)." Syl. Pt. 5, in part, State v. Hlavacek, 185 W.Va. 371, 407 S.E.2d 375 (1991).

7. "Under the Fourth Amendment to the United States Constitution and Article III, Section 6 of the West Virginia Constitution, the validity of an affidavit for a search warrant is to be judged by the totality of the information contained in it. Under this rule, a conclusory affidavit is not acceptable...." Syl. Pt. 4, in part, State v. Adkins, 176 W.Va. 613, 346 S.E.2d 762 (1986).

8. "Reviewing courts should grant magistrates deference when reviewing warrants for probable cause." Syl. Pt. 5, in part, State v. Thomas, 187 W.Va. 686, 421 S.E.2d 227 (1992).

9. "A confession or statement made by a suspect is admissible if it is freely and voluntarily made despite the fact that it is written by an arresting officer if the confession or statement is read, translated (if necessary), signed by the accused and admitted by him to be correct." Syl. Pt. 2, State v. Nicholson, 174 W.Va. 573, 328 S.E.2d 180 (1985).

10. Based on our decision in State v. Nicholson, 174 W.Va. 573, 328 S.E.2d 180 (1985), we decline to expand the Due Process Clause of the West Virginia Constitution, Article III, § 10, to encompass a duty that police electronically record the custodial interrogation of an accused.

11. "In the determination of a claim that an accused was prejudiced by ineffective assistance of counsel violative of Article III, Section 14 of the West Virginia Constitution and the Sixth Amendment to the United States Constitution, courts should measure and compare the questioned counsel's performance by whether he exhibited the normal and customary degree of skill possessed by attorneys who are reasonably knowledgeable of criminal law, except that proved counsel error which does not affect the outcome of the case, will be regarded as harmless." Syl. Pt. 19, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).

12. "Where a counsel's performance, attacked as ineffective, arises from occurrences involving strategy, tactics, and arguable courses of action, his conduct will be deemed effectively assistive of his client's interests, unless no reasonably qualified defense attorney would have so acted in the defense of an accused." Syl. Pt. 21, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).

13. "It is the extremely rare case when this Court will find ineffective assistance of counsel when such a charge is raised as an assignment of error on a direct appeal. The prudent defense counsel first develops the record regarding ineffective assistance of counsel in a habeas corpus proceeding before the lower court, and may then appeal if such relief is denied. This Court may then have a

Page 884

[190 W.Va. 620] fully developed record on this issue upon which to more thoroughly review an ineffective assistance of counsel claim." Syl. Pt. 10, State v. Triplett, 187 W.Va. 760, 421 S.E.2d 511 (1992).

Nancy C. Ulrich, Asst. Pros. Atty., Martinsburg, for appellee.

Frank W. Helvey, Jr., Public Defender Services, Charleston, for appellant.

WORKMAN, Chief Justice:

This case is before the Court upon the March 4, 1991, final order of the Berkeley County Circuit Court denying the Appellant's, Charles R. "Manny" Kilmer's, motion to set aside the verdict and grant a new trial. The Appellant was convicted on January 24, 1991, of first degree murder, without mercy, in the February 16, 1990, homicide of Sharon Lewis, wife of Martinsburg, West Virginia, City Councilman Michael Lewis. The Appellant raises the following assignments of error: 1) the trial court committed reversible error in admitting the Appellant's confession into evidence; 2) the search warrant for hair samples from the Appellant was not supported by probable cause; 3) the failure of the police to tape record the Appellant's custodial interrogation violated the Due Process Clause of the West Virginia Constitution; and 4) the Appellant was denied effective assistance of counsel. Based on a review of the record, the briefs and arguments of the parties, and all other matters submitted before this Court, we find no error was committed by the lower court. Accordingly, we affirm.

On Friday, February 16, 1990, around 1:00 p.m., Martinsburg, West Virginia, police responded to a call at the home of Michael and Sharon Lewis and found the body of Sharon Lewis on the kitchen floor. According to the testimony of Officer Shannon Armel, the victim was brutally beaten and suffered a deep knife wound across her throat. The crime scene evidence indicated that the murder was the result of a violent struggle. Officer Armel also testified that Mrs. Lewis was fully clothed, still wearing jewelry, including ten rings, and there was no money or property missing from the house, causing police to rule out robbery as a motive for the death.

Sergeant Thomas Gaither and Sergeant George Swartwood, both detectives with the Martinsburg Police Department, testified that they learned through interviews with employees at Mr. Lewis' store, Lewis Paint and Wallpaper, that the Appellant was an occasional handyman for Mr. Lewis and that the Appellant was at the Lewis' home the morning of the murder. The officers testified that the Appellant told them on February 17, 1990, that his friend Donald Morris had driven him to the Lewis home on the morning of February 16, so that the Appellant could repair an indoor light fixture at Michael Lewis' request, but the Appellant denied any knowledge of Mrs. Lewis' death. The officers' testimony indicated that both Donald Morris and the Appellant gave formal statements to the police on Sunday, February 18, 1990. Neither statement was incriminating; however, the officers used the statements to obtain a search warrant for Mr. Morris' car. 1

On February 20, 1990, the police attempted to execute a search on the Appellant for hair samples. Sergeant Gaither testified that he and Sergeant Swartwood went to the Appellant's home to execute the warrant, but the Appellant was not there. Later that evening, the Appellant called the police department to inquire as to why they were looking for him. The detective stated that the Appellant was advised that they had obtained a search warrant for his hair samples. The Appellant stated that he would voluntarily go to the police department the next morning.

Between midnight and 1:00 a.m. on February 21, 1990, the Berkeley County Prosecuting Attorney, Diana Cook Risavi, notified the Martinsburg police that Donald Morris was at attorney Steven M. Askin's office and wanted to give a statement to

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[190 W.Va. 621] police about his involvement in Mrs. Lewis' death. 2 The prosecuting attorney contacted the Honorable Patrick G. Henry III, Judge for the Circuit Court of Berkeley County, to have counsel appointed for Mr. Morris. Judge Henry appointed Norwood Bentley as counsel for Mr. Morris. The prosecuting attorney then directed Martinsburg police to take Mr. Morris to Mr. Bentley's office. There, Mr. Morris gave a statement to the police incriminating the Appellant in Mrs. Lewis' murder. 3 Mr. Morris claimed in his statement that he had no prior knowledge that the Appellant intended to murder Mrs. Lewis. He also stated that he learned of the victim's death only after the Appellant returned to the car and told him. Mr. Morris stated that his only participation in the crime was helping the Appellant hide bloody clothing at a roadside dump in an area near the victim's residence known as Flagg's Crossing.

Sergeant Swartwood testified that subsequent to obtaining Mr. Morris' statement, he and two other officers took Mr. Morris to Flagg's Crossing. There the officers retrieved bloody clothing, including a pair of blue jeans, coveralls and a camouflage hat, and a pair of tan work boots with the letters "MAN" on the inside of each boot. 4 All of these articles were introduced into evidence at trial. Based on Mr. Morris' statement and the evidence gathered at Flagg's Crossing, the officers...

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30 practice notes
  • State v. Corey, No. 13–0769.
    • United States
    • Supreme Court of West Virginia
    • April 23, 2014
    ...for crediting the hearsay set out in the affidavit which can include the corroborative efforts of police officers.See State v. Kilmer, 190 W.Va. 617, 627, 439 S.E.2d 881, 891 (1993). Mr. Corey asserts that the decision in State v. Worley, 179 W.Va. 403, 369 S.E.2d 706 (1988), supports his c......
  • State Of Conn. v. Lockhart., No. 17773.
    • United States
    • Supreme Court of Connecticut
    • October 12, 2010
    ...v. State, 692 N.E.2d 1386, 1390 (Ind.App.1998) (strongly recommending policy of recording custodial interrogations); State v. Kilmer, 190 W.Va. 617, 629, 439 S.E.2d 881 (1993) (law enforcement officers would be wise to implement recording policy because it would be beneficial to law enforce......
  • State v. Derr, No. 22101
    • United States
    • Supreme Court of West Virginia
    • November 18, 1994
    ...practice because this case is not one where the error and its effect are apparent from the trial record itself. See State v. Kilmer, 190 W.Va. 617, 439 S.E.2d 881 The proper procedure to handle cases in which Mr. Zain testified is controlled by our prior case of In the Matter of West Virgin......
  • Clark v. State, No. CR 07-1276.
    • United States
    • Arkansas Supreme Court
    • September 25, 2008
    ...review denied, 118 Wash.2d 1024, 827 P.2d 1393 (1992); In re Jerrell C.J., 283 Wis.2d 145, 699 N.W.2d 110 (2005); State v. Kilmer, 190 W.Va. 617, 439 S.E.2d 881 (1993); Gale v. State, 792 P.2d 570 We are also aware that many states, while declining to constitutionally require the recording ......
  • Request a trial to view additional results
30 cases
  • State v. Corey, No. 13–0769.
    • United States
    • Supreme Court of West Virginia
    • April 23, 2014
    ...for crediting the hearsay set out in the affidavit which can include the corroborative efforts of police officers.See State v. Kilmer, 190 W.Va. 617, 627, 439 S.E.2d 881, 891 (1993). Mr. Corey asserts that the decision in State v. Worley, 179 W.Va. 403, 369 S.E.2d 706 (1988), supports his c......
  • State Of Conn. v. Lockhart., No. 17773.
    • United States
    • Supreme Court of Connecticut
    • October 12, 2010
    ...v. State, 692 N.E.2d 1386, 1390 (Ind.App.1998) (strongly recommending policy of recording custodial interrogations); State v. Kilmer, 190 W.Va. 617, 629, 439 S.E.2d 881 (1993) (law enforcement officers would be wise to implement recording policy because it would be beneficial to law enforce......
  • State v. Derr, No. 22101
    • United States
    • Supreme Court of West Virginia
    • November 18, 1994
    ...practice because this case is not one where the error and its effect are apparent from the trial record itself. See State v. Kilmer, 190 W.Va. 617, 439 S.E.2d 881 The proper procedure to handle cases in which Mr. Zain testified is controlled by our prior case of In the Matter of West Virgin......
  • Clark v. State, No. CR 07-1276.
    • United States
    • Arkansas Supreme Court
    • September 25, 2008
    ...review denied, 118 Wash.2d 1024, 827 P.2d 1393 (1992); In re Jerrell C.J., 283 Wis.2d 145, 699 N.W.2d 110 (2005); State v. Kilmer, 190 W.Va. 617, 439 S.E.2d 881 (1993); Gale v. State, 792 P.2d 570 We are also aware that many states, while declining to constitutionally require the recording ......
  • Request a trial to view additional results

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