                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent                                                            FILED
                                                                                     April 6, 2020
vs.) No. 18-1079 (Ritchie County 17-F-61)                                         EDYTHE NASH GAISER, CLERK
                                                                                  SUPREME COURT OF APPEALS
                                                                                      OF WEST VIRGINIA
William Michael Lamb,
Defendant Below, Petitioner



                               MEMORANDUM DECISION


        Petitioner William Michael Lamb, by counsel George J. Cosenza, appeals the Circuit Court
of Ritchie County’s November 13, 2018, order sentencing him to an effective term of not less than
eight nor more than forty years of incarceration following the entry of his conditional guilty plea
to two counts of attempted murder and one count of malicious assault. The State of West Virginia,
by counsel Scott E. Johnson, filed a response. On appeal, petitioner argues that the circuit court
erred in denying his motion to suppress his statements to law enforcement officers.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,
a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the
Rules of Appellate Procedure.

         In June of 2017, petitioner was approached for questioning by law enforcement officers
who were investigating the shooting of petitioner’s wife. Petitioner, who had not been placed under
arrest, agreed to speak to officers and, during the interviews, eventually confessed to shooting his
wife. 1 In October of 2017, a Ritchie County Grand Jury returned a five-count indictment against
petitioner, charging him with two counts of attempted murder, one count of malicious assault, and
two counts of use of a firearm during the commission of a felony.

        Petitioner filed a motion to suppress any statements he made to law enforcement officers
during his interviews on the basis that he invoked his right to counsel prior to his confession. The
circuit court held a hearing on petitioner’s motion to suppress in January of 2018. The State

       1
         As more fully explained below, petitioner underwent two interviews separated by his
participation in a polygraph examination.
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presented the testimony of Corporal J.L. Brewer of the West Virginia State Police. Corporal
Brewer testified that, around June of 2017, he approached petitioner in the waiting room of Ruby
Memorial Hospital in Morgantown, West Virginia, during the course of investigating the shooting
of petitioner’s wife. 2 Corporal Brewer testified that he asked petitioner to accompany him to the
police station and that petitioner agreed to go. Corporal Brewer testified that petitioner was not
under arrest at that time. Upon arriving at the police station, Corporal Brewer read petitioner his
Miranda 3 rights, which petitioner waived. Corporal Brewer testified that he conducted two
interviews with petitioner. The first interview lasted approximately thirty minutes; thereafter,
petitioner agreed to take a polygraph examination. Following the examination, petitioner asked to
speak to Corporal Brewer. 4 This second interview lasted approximately twenty to thirty minutes.
Corporal Brewer testified that, approximately nine to ten minutes into the first interview, petitioner
stated “maybe I need to clam up until I get an attorney, I don’t know.” Following a brief pause,
Corporal Brewer resumed questioning petitioner. According to Corporal Brewer, he did not
believe that petitioner made a clear request for an attorney at that time and continued with
questioning, as petitioner had waived his Miranda rights. Petitioner continued to answer Corporal
Brewer’s questions and did not refuse to answer any questions. During the second interview,
petitioner confessed to shooting his wife.

        Petitioner testified that he was never informed that he needed to make a specific statement
to request an attorney, and that his statement that “maybe I need to clam up until I get an attorney”
was his way of asking to speak to counsel. Petitioner agreed that he never requested counsel or
invoked his right to remain silent following his brief comment. Ultimately, the circuit court found
that petitioner’s interrogation was not custodial so as to invoke petitioner’s Miranda rights.
Further, the circuit court found that petitioner’s statement to Corporal Brewer that “maybe I need
to clam up until I get an attorney, I don’t know” did not constitute an unambiguous invocation of
his right to counsel. Lastly, the circuit court found that there was no evidence indicating that
petitioner’s statements were not knowingly, voluntarily, and intelligently made. As such, the
circuit court denied petitioner’s motion to suppress his statement in an order entered on February
6, 2018.

         In August of 2018, petitioner entered into a conditional plea agreement whereby he pled
guilty to two counts of attempted murder and one count of malicious assault in exchange for the
State’s agreement to dismiss the remaining charges in the indictment. Petitioner reserved his right
to appeal the denial of his motion to suppress. At a November of 2018 sentencing hearing, the
circuit court sentenced petitioner to not less than three nor more than fifteen years of incarceration
for each of his convictions for attempted murder and not less than two nor more than ten years for
his conviction of malicious assault. The circuit court further ordered that the sentences were to run
consecutively. It is from the November 13, 2018, sentencing order that petitioner appeals.


       2
           The shooting occurred in Ritchie County, West Virginia.
       3
           See Miranda v. Arizona, 384 U.S. 436 (1966).
       4
        Law enforcement officers read petitioner his Miranda rights again prior to the polygraph
examination, and petitioner waived those rights. Corporal Brewer also “reminded” petitioner of
his Miranda rights during the second interview.
                                                  2
       This Court has previously expressed that

               [w]hen 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.

Syl. Pt. 1, State v. Lacy, 196 W. Va. 104, 468 S.E.2d 719 (1996).

        On appeal, petitioner argues that the circuit court erred in denying his motion to suppress.
According to petitioner, his Miranda rights were violated when Corporal Brewer continued to
question him after he expressed his desire to speak to an attorney. Petitioner relies on Syllabus
Point 1 of State v. Barrow, 178 W. Va. 406, 359 S.E.2d 844 (1987), which holds, in relevant part,
that “if police initiate interrogation after a defendant’s assertion, at an arraignment or similar
proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police-
initiated interrogation is invalid because it was taken in violation of the defendant’s Sixth
Amendment right to counsel.” Petitioner contends that his statement was sufficient to invoke his
right to counsel and that there are no “magic words” that need to be uttered in order to invoke this
right. Petitioner argues that he made an affirmative assertion that he wanted to speak with an
attorney and that, once that statement was made, Corporal Brewer was required to terminate the
interview until petitioner spoke with an attorney. As such, petitioner concludes the circuit court
erred in denying his motion to suppress any statements made after his request for counsel. We
disagree.

        This Court has previously explained that “the Miranda right to counsel has no applicability
outside the context of custodial interrogation,” that “until the defendant [is] taken into custody,
any effort on his part to invoke his Miranda rights [is], legally speaking, an empty gesture” and
that “the ‘window of opportunity’ for the assertion of Miranda rights comes into existence only
when that right is available.” State v. Bradshaw, 193 W. Va. 519, 530, 457 S.E.2d 456, 467 (1995).
We also noted that the defendant in Bradshaw

       apparently argues the Miranda right to counsel attaches when Miranda warnings
       are given irrespective of whether he is in custody. Some support for this position
       may be gleaned from note 10 in State v. Farley, 192 W.Va. at 252, 452 S.E.2d at
       57, and note 3 in State v. Jones, 193 W.Va. 378, 381, 456 S.E.2d 459, 462 (1995).
       These cases were intended to suggest under special circumstances that Mirandizing
       a defendant could create a situation where the failure to honor those rights could
       create such a state of confusion that a defendant might reasonably believe even his
       right to leave has been changed. See United States v. Obasa, 15 F.3d 603 (6th Cir.
       1994) (Miranda warnings are necessary only prior to custodial interrogation; the
       issuance of Miranda warnings may transform a legal Terry stop into an illegal
       arrest). Absent these unique circumstances, which obviously are not present here,
       we believe the great weight of authority in this country is that a suspect may not
       invoke his Miranda right to counsel outside the context of custodial interrogation.

                                                 3
193 W. Va. at 530 n.9, 457 S.E.2d at 467 n.9 (citations omitted).

        Here, petitioner’s contention that his right to counsel under Miranda was violated is
prefaced on his claim that his statements were given in the context of a custodial interrogation.
However, the circuit court found that petitioner’s “interrogation was not custodial so as to invoke
[petitioner’s] Miranda rights.” Petitioner entirely fails to address this finding in his brief on appeal
and simply concludes that his rights were violated because he stated that “maybe” he should remain
quiet until he spoke to an attorney. Having reviewed the record, we find that there is no evidence
that petitioner’s interrogation was custodial. 5

         We previously addressed a similar situation in State v. Finley, 229 W. Va. 690, 735 S.E.2d
565 (2012). In Finley, the defendant agreed to speak to police officers regarding the suspicious
death of his wife. Id. at 691, 735 S.E.2d at 566. The defendant voluntarily went to the police station,
was read his Miranda rights, and was informed he was not under arrest. Id. The defendant then
gave three statements, the first lasting an hour and forty-eight minutes, the second lasting two
minutes, and the third lasting approximately eight to nine minutes. Id. at 692, 735 S.E.2d at 567.
During the second statement, the defendant asked to speak to an attorney, but changed his mind
and continued speaking to officers, eventually confessing to his wife’s murder during the third
statement. Id. at 692-93, 735 S.E.2d at 567-68. On appeal, the defendant argued that his confession
was inadmissible given that he invoked his right to counsel and the questioning continued. Id. at
694, 735 S.E.2d at 569. This Court found that the evidence did not support a finding that the
defendant could have reasonably believed that his freedom of action was curtailed such that his
right to counsel under Miranda attached. Id. at 695, 735 S.E.2d at 570. We noted that the defendant
was not under arrest, was told he was free to leave, and failed to present any evidence of coercion.
Id.

       We find the analysis in Finley applicable to the case at bar. In the instant matter, petitioner
agreed to accompany Corporal Brewer to the police station and testified that he rode in the front
passenger seat on the way there. Petitioner was not placed under arrest prior to the first statement,


       5
         In Syllabus Point 1 of State v. Middleton, 220 W. Va. 89, 640 S.E.2d 152 (2006), overruled
on other grounds by State v. Eilola, 226 W. Va. 698, 704 S.E.2d 698 (2010), we explained that
“[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.” Factors that should be considered when making a determination
of whether a custodial environment exists 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.

Middleton, 220 W. Va. at 93, 640 S.E.2d at 156, syl. pt. 2, in part.
                                                   4
nor does there appear to be any evidence that he was handcuffed or prevented from leaving. His
statements lasted approximately thirty minutes each with a two-hour break in between. Further,
after petitioner made an ambiguous statement regarding speaking to an attorney, he continued to
answer questions, eventually confessing to shooting his wife during the second interview. Simply
put, there is no evidence to suggest that petitioner’s freedom was restricted such that the interviews
could be construed as a custodial interrogation. Petitioner was not under arrest, was free to leave
at any time, and was under no compulsion to stay. As such, petitioner’s argument that his
statements should have been suppressed is without merit, as his right to counsel under Miranda
would only attach in the context of custodial interrogations. Bradshaw, 193 W. Va. at 523, 457
S.E.2d at 456, syl. pt. 5. Given that we find that petitioner’s interview did not constitute a custodial
interrogation and that his rights under Miranda had not yet attached, we need not address whether
petitioner’s ambiguous statement was sufficient to invoke his right to counsel under Miranda.

       For the foregoing reasons, the circuit court’s November 13, 2018, sentencing order is
hereby affirmed.

                                                                                             Affirmed.

ISSUED: April 6, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison




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