State v. Marcum
| Decision Date | 30 October 2014 |
| Docket Number | No. 12–1259.,12–1259. |
| Citation | 765 S.E.2d 304,234 W.Va. 415 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia, Plaintiff Below, Respondent, v. James Everett MARCUM, Defendant Below, Petitioner. |
Dana F. Eddy, Esq., WV Public Defender Service, Charleston, WV, for Petitioner.
Patrick Morrisey, Esq., Attorney General, Scott E. Johnson, Esq., Senior Assistant Attorney General, Julie Blake, Esq., Assistant Attorney General, Charleston, WV, for Respondent.
This case is before the Court upon the appeal of the Petitioner, James Marcum, from the September 14, 2012, Order re-sentencing1 the Petitioner to a determinate term of forty years in prison following his jury conviction for second degree murder. The Petitioner argues that the circuit court erred: 1) in the manner it conducted the suppression hearing, by shifting the burden to the Petitioner and requiring him to put on evidence first in order to make a showing that would trigger the State's rebuttal of the Petitioner's suppression grounds; and, 2) in finding that the Petitioner's statement to police was voluntarily given. Based upon a review of the parties' briefs and oral arguments, the appendix record, and all other matters before the Court, we affirm the trial court's decision.
On December 9, 2009, the Petitioner and his cousin, Jim Ward, were together at Mr. Ward's home in Wayne County, West Virginia. The two men had been drinking and both were intoxicated. They got into an altercation, which evolved into Mr. Ward stabbing the Petitioner twice with a bayonet. The Petitioner, in turn, got the bayonet from Mr. Ward and stabbed his cousin in the back three times, killing him.
The Petitioner was taken to Three Rivers Medical Center in Louisa, Kentucky, for treatment of his injuries. He underwent surgery and received pain medicine.2
Trooper R.J. Drake of the West Virginia State Police3 went to the medical center to interview the Petitioner as part of his investigation into Mr. Ward's murder. Shortly after midnight on December 10, 2009, Trooper Drake took a statement from the Petitioner. The interview lasted about thirty minutes and was videotaped. During this time, Trooper Drake informed the Petitioner that the officer was outside his jurisdiction, that he was not arresting the Petitioner, that he was not fully aware of what was going on, although he knew that Mr. Ward was dead, that criminal charges may be pending, and that the Petitioner may be arrested in the near future for murder. Trooper Drake also confirmed that the Petitioner could read and understood English. Trooper Drake gave the Petitioner his Miranda4 rights and confirmed with the Petitioner that he understood those rights. The officer then asked the Petitioner to sign a waiver of Miranda form.
The Petitioner gave Trooper Drake a statement about the events leading up to his cousin's death. The Petitioner stated that both he and his cousin had been drinking. The two argued about money. The Petitioner stated that his cousin, Mr. Ward, got up and pulled “a big sword5 ” out of the case and told the Petitioner that he was going to kill him. The Petitioner stated that Mr. Ward stabbed him two times. The Petitioner stated that he grabbed the sword by the blade and the next thing he knew Mr. Ward was down and the Petitioner “must have hit him.” The Petitioner stated he must have hit Mr. Ward “two or three” times to get him off the Petitioner. The Petitioner could not remember where he had struck his cousin.
The Petitioner was indicted by a grand jury for the murder of Mr. Ward on March 2, 2010. The Petitioner moved to suppress his videotaped statement that he gave to Trooper Drake. In the motion, the Petitioner admitted that he was not under arrest at the time the statement was made and that he signed a waiver of rights form. Nonetheless, the Petitioner contended that “he was under the influence of medications which rendered him incapable of voluntarily and knowingly waiving his constitutional right to remain silent and to be represented by an attorney at this critical stage of the criminal investigation against him.”
On October 4, 2010, the trial court held a suppression hearing regarding the Petitioner's statement. During the hearing, the Petitioner's counsel conceded that his motion was not predicated upon the Petitioner not receiving his Miranda warnings, as the Petitioner stated that he had signed a Miranda form, referring to the waiver signed by the Petitioner. Additionally, the Petitioner's counsel also conceded that the motion was not based upon any coercion or threats as he stated:
I think the officers were there to take a statement from him and didn't do anything wrong. It's just that under the circumstances, with his hospital condition, having just gone through surgery, having been on pain medication for the entire day, we feel that that raises an issue as to whether his statement was knowing, whether he knew the rights that he was waiving in light of all the medication that he was ... undergoing at the time.
The Petitioner, however, argued that “it's the state's burden to establish that the statement in this case, which was given by Mr. Marcum in his hospital room after his surgery, was a knowing and voluntary waiver.” The trial court responded: The Petitioner's counsel countered:
In seeking to ascertain exactly what issue the Petitioner sought to have resolved regarding the statement he gave to police in light of the concessions made, the trial court found that the Petitioner was raising a “knowing issue and understanding issue,” and that essentially “I think what you're saying is either his medical state made him in such a position that he did not understand, know what he was signing or know the statement that he was giving.” The Petitioner's counsel agreed with the circuit court's assessment of the motion to suppress. The Petitioner's counsel then stated: “Then let's swear [in] ... Mr. Marcum....”
The Petitioner testified that he was in pain and did not feel like he “was all there” or was “groggy.” Despite this feeling, however, the Petitioner stated that he remembered the officers coming to get a statement from him. When he gave the statement, he remembered being informed of his Miranda rights and he remembered signing the Miranda rights waiver form. He also stated that he agreed to give the statement and understood that he could stop the statement at any time, but did not choose to do so. He testified that he gave the officer his side of the story. He further stated that he did not have any trouble reading and writing. The Petitioner also testified that the officers did not threaten or coerce him. The Petitioner, however, stated that he did not know that he was waiving his constitutional rights when he initialed the form and signed his name.
After the Petitioner testified, the trial court found that “I think his testimony has raised some issues, at least on the knowing and the more narrow issue, his saying that it may have—that the medication may have reduced his voluntariness to provide the statement.” The trial court then allowed the State to put on evidence regarding this issue. Trooper Drake testified that the Petitioner appeared to be coherent and understood the questions he asked. According to the trooper, the Petitioner responded in an appropriate manner to the questions. Further, after he gave the statement, he was asked to go over the statement again and the Petitioner recited his statement a second time in a manner consistent with the first time.
By order entered October 21, 2010, the trial court denied the motion to suppress. The court determined that the statement “given by the Defendant was voluntarily and knowingly given after the Defendant intelligently and knowingly waived his constitutional rights.” The issue came up again on July 29, 201l, during the jury instruction conference. The Petitioner offered an instruction concerning the jury's consideration of whether the statement was freely and voluntarily given.6 The circuit court, in reviewing the instruction, stated “I thought the standard was you had to raise it [referring to the issue of voluntariness]”. The circuit court then stated: There was no other issue or objection raised by the Petitioner at this time regarding the manner in which the trial court had conducted the suppression hearing.
On August 29, 2011, at the conclusion of all the evidence, the jury convicted the Petitioner of second degree murder. The Petitioner was sentenced to a determinate term of forty years in prison and now appeals.
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