State v. Wimer

• Decision Date: 10 December 1981
• Docket Number: No. 14744,14744
• Citation: 168 W.Va. 417,284 S.E.2d 890
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Scottie Lee WIMER.

Page 890

284 S.E.2d 890

168 W.Va. 417

STATE of West Virginia v. Scottie Lee WIMER.

No. 14744.

Supreme Court of Appeals of West Virginia.

Dec. 10, 1981.

Syllabus by the Court

1. "The trial court has a wide discretion as to the admission of confessions and ordinarily this discretion will not be disturbed on review." Syl. pt. 1,State v. Lamp, W.Va., 254 S.E.2d 697 (1979).

2. "The general rule is that the voluntary consent of a person who owns or controls premises to a search of such premises is sufficient to authorize such search without a search warrant, and that a search of such premises, without a warrant, when consented to, does not violate the constitutional prohibition against unreasonable searches and seizures." Syl. pt. 8, State v. Plantz, 155 W.Va. 24, 180 S.E.2d 614 (1971).

3. "There exists in the trial of an accused a presumption of sanity. However, should the accused offer evidence that he was insane, the presumption of sanity disappears and the burden is on the prosecution to prove beyond a reasonable doubt that the defendant was sane at the time of the offense." Syl. pt. 2, State v. Daggett, W.Va., 280 S.E.2d 545 (1981).

Marvin L. Downing, and William McCoy, Jr., Franklin, for plaintiff in error.

Chauncey H. Browning, Atty. Gen. and Paula D. Maas, Asst. Atty. Gen., Charleston, for defendant in error.

McHUGH, Justice:

This action is before this Court upon the petition of Scottie Lee Wimer (hereinafter "appellant") for an appeal from his 1979 conviction in the Circuit Court of Pendleton County, West Virginia, of the offense of murder in the first degree. By order of the circuit court entered April 16, 1979, the appellant was sentenced to life imprisonment Specifically, the appellant in November, 1978, was indicted by a Pendleton County grand jury for the murder of Raymond Swats. Subsequently, various pre-trial proceedings were conducted by the circuit court including the taking of evidence concerning: (1) the appellant's mental competency at the time of the alleged crime, (2) the admissibility of the appellant's confessions to police officers, and (3) the validity of certain warrantless searches of the home of the appellant's parents. The circuit court ruled adversely to the appellant upon those three issues. The appellant's trial was held on April 2 and April 3, 1979, at the conclusion of which the jury found the appellant guilty of murder in the first degree. Upon the denial of the appellant's post-trial motions, the appellant was sentenced to the penitentiary.

in the West Virginia Penitentiary without a recommendation of mercy. This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel.

The testimony at trial and other matters of record indicate that on October 14, 1978, the appellant hired the victim, Raymond Swats, a cab driver, to drive the appellant from Staunton, Virginia, to West Virginia. During the trip to West Virginia the appellant consumed whiskey. While the cab was parked along a secluded road near Cherry Grove, Pendleton County, West Virginia, the appellant drew a .22 caliber pistol and shot the victim several times in the head, resulting in death. The appellant then took money from the victim, removed the victim from the cab, and drove the cab to Cherry Grove.

At the appellant's trial, Trooper George Worden of the West Virginia State Police testified that after he observed the body of the victim at the scene of the homicide, he went to Cherry Grove where the cab was found parked approximately 150 yards from the home of the appellant's parents. A resident of that area reported that the appellant had been seen near the cab, and a general search for the appellant was instituted.

On October 14, 1978, the day of the homicide, two warrantless searches were conducted by police of the home of the appellant's parents. The evidence indicates that during the first search of the home, Trooper Worden found a .32 caliber revolver lying on a shelf. That revolver was later identified as belonging to the victim, Raymond Swats, and admitted into evidence. Subsequent to the second search of the home, Trooper Worden discharged a tear gas cannister in the home resulting in the appellant's surrender to police and arrest.

As described below, the appellant on October 14, 1978, gave two confessions to police officers concerning the shooting of the victim. A third confession was given to police officers by the appellant on October 16, 1978. All three confessions were admitted into evidence at the appellant's trial.

It is from his conviction and sentencing for first degree murder in the Circuit Court of Pendleton County that the appellant appeals to this Court.

The appellant raises three principal issues before this Court. Specifically, the appellant contends that the circuit court committed error: (1) in the admission of his three confessions before the jury, and (2) in the admission before the jury of a .32 caliber revolver resulting from an alleged illegal search and seizure. Third, the appellant asserts that the circuit court should have ruled as a matter of law that the State failed to meet its burden of proof with respect to the issue of the appellant's sanity at the time the crime was committed.

I THE CONFESSIONS

The record indicates that immediately after the appellant was arrested at the home of his father on October 14, 1978, he gave a tape recorded confession to police officers. On that day, police officers obtained a second confession from the appellant. A third confession was given on October 16, 1978. The second and third confessions were written rather than tape recorded and were more detailed than the first confession.

All three confessions were admitted into evidence.

The appellant alleges that the first confession was improperly obtained and that the second and third confessions, alleged products of the first confession, were also improper. Specifically, the appellant does not dispute the independent validity of the second and third confessions. Rather, the appellant asserts that the second and third confessions were tainted by the first confession.

The appellant asserts that he was not properly advised of his rights by police officers prior to making the first confession. Furthermore, the appellant asserts that, having just fled from a house containing tear gas prior to arrest, he was in no condition at that time to make a confession. Upon a review of a recording of that confession alone, those assertions by the appellant appear to be correct. ¹ However, that recording does not reflect all the circumstances surrounding the first confession, and we hold that the circuit court did not commit error in admitting the appellant's first confession into evidence.

In West Virginia, the admissibility of a confession in a criminal case is determined by the following rule:

It is the mandatory duty of a trial court, whether requested or not, to hear the evidence and determine in the first instance, out of the presence of the jury, the voluntariness of an oral or written confession by an accused person prior to admitting the same into evidence, and the failure to observe this procedure constitutes reversible error.

Syl. pt. 1, State v. Fortner, 150 W.Va. 571, 148 S.E.2d 669 (1966). That rule, however, was modified by Syl. pt. 2, State ex rel. White v. Mohn, W.Va., 283 S.E.2d 914 (1981), which case held that the failure of the trial court to conduct a preliminary in camera hearing upon whether a defendant's inculpatory statements were voluntary does not automatically constitute reversible error. Furthermore, as we held in Syl. pt. 5, State v. Starr, W.Va., 216 S.E.2d 242 (1975): "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." Finally, as we held in Syl. pt. 5, State v. Plantz, 155 W.Va. 24, 180 S.E.2d 614 (1971): "After the trial court determines that a confession is admissible in evidence it becomes the function of the jury to consider the weight and the credibility of the confession."

In the action before this Court, the trial judge took evidence prior to trial concerning the admissibility of the appellant's confessions. The trial judge held as follows: "The Court finds that said statements were freely and voluntarily given by the Defendant after having been advised of his constitutional rights and the Court finds each of said statements including the tape to be admissible in evidence at the trial of this case." ²

Specifically, the record in this action indicates that the appellant received a statement of his constitutional rights prior to each of the three confessions admitted at trial. Importantly, the record indicates that the appellant received a statement of his rights two times before he made his first confession. ³ As the trial judge stated during the appellant's trial:

... [A]s the Court recalls the evidence at the in camera hearing, there were two separate warnings given to the defendant. One by the officer by reading of the card and explaining of the rights and at that time he says the defendant understood his rights and waived them. Then prior to the taking of the statement the warnings were again given as indicated on the tape recording, and if the Court were considering those on the tape recording alone, the Court would be inclined to consider more carefully the motion, but in view of the showing by the officer that proper warnings were given prior to that time and the waiver made, the motion would be overruled. It is only required that the warnings be given one time so long as they are understood and waived, and the Court believes that what occurred here and then the second warnings given rather rapidly to the defendant just prior to interrogation, which was recorded. That was done at the time of the...