State v. Middleton

• Decision Date: 29 November 2006
• Docket Number: No. 33048.,33048.
• Citation: 640 S.E.2d 152
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Kevin Ray MIDDLETON, Defendant Below, Appellant.

640 S.E.2d 152

STATE of West Virginia, Plaintiff Below, Appellee, v. Kevin Ray MIDDLETON, Defendant Below, Appellant.

No. 33048.

Supreme Court of Appeals of West Virginia.

Submitted: October 24, 2006.

Decided: November 29, 2006.

Dissenting Opinion of Justice Starcher November 30, 2006.

Dissenting Opinion of Justice Albright December 11, 2006.

Concurring Opinion of Justice Maynard January 8, 2007.

Syllabus by the Court

1. A trial court's determination of whether a custodial interrogation environment exists for purposes of giving Miranda warnings to a suspect is based upon whether 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.

2. The factors to be considered by the trial court in making a determination of whether a custodial interrogation environment exists, while not all-inclusive, include: the location and length of questioning; the nature of the questioning as it relates to the suspected offense; the number of police officers present; the use or absence of force or physical restraint by the police officers; the suspect's verbal and nonverbal responses to the police officers; and the length of time between the questioning and formal arrest.

3. A police officer may continue to question a suspect in a noncustodial setting, even though the suspect has made a request for counsel during the interrogation, so long as the officer's continued questioning does not render statements made by the suspect involuntary.

4. If, during the course of noncustodial interrogation of a suspect, the police are made aware that legal counsel has been retained for the suspect, the police are under no obligation to inform the suspect that counsel has been retained.

5. "The State must prove, at least by a preponderance of the evidence, that confessions or statements of an accused which amount to admissions of part or all of an offense were voluntary before such may be admitted into the evidence of a criminal case." Syllabus point 5, State v. Starr, 158 W. Va. 905, 216 S.E.2d 242 (1975).

6. Consistent with our decision in Echard v. Holland, 177 W. Va. 138, 351 S.E.2d 51 (1986), when a trial court awards credit for presentence incarceration to a defendant receiving consecutive sentences, the period of presentence incarceration must be credited against the aggregated maximum term of the consecutive sentences. To the extent that language in the decision of State v. Scott, 214 W. Va. 1, 585 S.E.2d 1 (2003), suggests a different allocation of presentence credit to consecutive sentences, it is disapproved.

Kathleen T. Pettigrew, Charleston, West Virginia, Herbert L. Hively, II, Hurricane, for Appellant.

Darrell V. McGraw, Jr., Attorney General, Barbara H. Allen, Deputy Attorney General, Nicole A. Cofer, Third Year Law Student, Charleston, for Appellee.

DAVIS, Chief Justice.

Kevin Ray Middleton (hereinafter "Mr. Middleton") appeals a final order from the Circuit Court of Kanawha County convicting him of and sentencing him for the crimes of sexual abuse by a parent, custodian or guardian and first degree sexual abuse. Mr. Middleton was sentenced to not less than ten nor more than twenty years imprisonment on the sexual abuse by a parent, custodian or guardian conviction and sentenced to not less than one nor more than five years imprisonment on the first degree sexual abuse conviction. The sentences were to be served consecutively.¹ Here, Mr. Middleton assigns error to (1) the admission of an inculpatory statement he gave to the police; (2) the exclusion of evidence concerning the victim's father; and (3) failure to provide credit to both sentences for presentencing incarceration. After a careful review of the briefs and record, and after listening to the oral arguments of the parties, we affirm.

I. FACTUAL AND PROCEDURAL HISTORY

This case resulted because of a telephone conversation Tom W. had with one of his daughters, S.W.,² on January 14, 2002.³ During the phone conversation, S.W. informed Tom W. that her mother's boyfriend, Mr. Middleton, had inappropriate sexual contact with her.⁴ Tom W. contacted the police and informed them of the allegations. The police subsequently picked up S.W., and her sister, from the home of a babysitter and placed the children with Tom W. Shortly after Tom W. obtained custody of S.W., he took her to a local hospital for an examination. The medical examination revealed no signs of sexual abuse.

On January 15, 2002, Tom W. took S.W. to a local state police detachment for further questioning. While at the detachment, S.W. stated that on separate occasions, Mr. Middleton had touched her vagina with his fingers and an object. Additionally, on January 15, Mr. Middleton voluntarily went to the state police detachment and gave a statement proclaiming his innocence of any sexual contact with S.W. Subsequent to his leaving the detachment, Mr. Middleton was contacted by phone and asked to take a polygraph test. Mr. Middleton agreed to do so.

On January 16, 2002, Mr. Middleton voluntarily returned to the detachment to take a polygraph test. Prior to taking the test, Mr. Middleton executed a document waiving his Miranda rights. At the conclusion of the polygraph examination, Mr. Middleton was told that he had failed the test. Subsequent post-polygraph questioning of Mr. Middleton took place for several hours. During the course of the interrogation, an attorney contacted the detachment by phone and stated that he would be representing Mr. Middleton and that the police should not further question Mr. Middleton until he arrived. Mr. Middleton was not informed that the attorney had called.⁵ Moreover, Mr. Middleton alleged that during the interrogation he requested a lawyer.

Near the conclusion of the post-polygraph questioning, Mr. Middleton stated that on one occasion, while sleeping in bed with S.W.'s mother, he accidentally rubbed S.W., who had sneaked onto the bed. He believed that it was her mother that he was rubbing. Mr. Middleton stated that as soon as he realized that he was rubbing S.W. and not her mother, he stopped. After making this statement, Mr. Middleton left the detachment.

Mr. Middleton was arrested approximately two weeks after taking the polygraph test. He was subsequently indicted for sexual abuse by a parent, custodian or guardian and first degree sexual abuse.

Prior to trial, Mr. Middleton filed a motion to suppress the statement he had made to the police regarding his accidental rubbing of S.W. The trial court denied the motion. Mr. Middleton also requested that he be allowed to introduce evidence, through a police officer, that Tom W. had previously filed numerous false police reports against S.W.'s mother, and at least one false report against one of her former boyfriends. The trial court denied introduction of the evidence through a police officer. Thereafter a jury trial followed. Although Mr. Middleton put on a case-in-chief, he did not testify. The jury returned a verdict finding Mr. Middleton guilty of both charges. After sentencing and the denial of post-trial motions, Mr. Middleton filed this appeal.

II. STANDARD OF REVIEW

Mr. Middleton has presented three assignments of error. One of the issues raised involves the trial court's denial of Mr. Middleton's motion to suppress the incriminating statement he gave to the police. In Syllabus point 3 of State v. Stuart, 192 W.Va. 428, 452 S.E.2d 886 (1994), this Court explained the proper standard of review of a trial court's decision on a motion to suppress, as follows:

On appeal, legal conclusions made with regard to suppression determinations are reviewed de novo. Factual determinations upon which these legal conclusions are based are reviewed under the clearly erroneous standard. In addition, factual findings based, at least in part, on determinations of witness credibility are accorded great deference.

See also Syl. pt 1, State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996) ("When reviewing a ruling on a motion to suppress, an appellate court should construe all facts in the light most favorable to the State, as it was the prevailing party below. Because of the highly fact-specific nature of a motion to suppress, particular deference is given to the findings of the circuit court because it had the opportunity to observe the witnesses and to hear testimony on the issues. Therefore, the circuit court's factual findings are reviewed for clear error.").

The second issue raised by Mr. Middleton involves the trial court's exclusion of testimony by a witness. We have held as a general rule that "[a] trial court's evidentiary rulings, as well as its application of the Rules of Evidence, are subject to review under an abuse of discretion standard." Syl. pt. 4, State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998). See also State v. Guthrie, 194 W.Va. 657, 680, 461 S.E.2d 163, 186 (1995) ("[M]ost rulings of a trial court regarding the admission of evidence are reviewed under an abuse of discretion standard.... [A]n appellate court reviews de novo the legal analysis underlying a trial court's decision.").

The third assignment of error involves the sentence imposed by the circuit court. As a general rule, "[s]entences imposed by the trial court, if within statutory limits and if not based on some unpermissible factor, are not subject to appellate review." Syl. pt. 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982). However, in cases such as the one before us in which it is alleged that the circuit court has failed to impose a sentence consistent with the law, appellate review is warranted. This Court reviews a circuit court's sentencing decision under an abuse of discretion standard. See generally Syl. pt. 1, State v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996).

III. DISCUSSION

On appeal to this Court, Mr. Middleton assigns error to (1) the admission of an inculpatory statement he gave to the police; (2) the exclusion...