                           STATE OF WEST VIRGINIA

                         SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent                                             FILED
                                                                   February 12, 2014
vs. No. 12-0836 (Jefferson County 11-F-88)                            released at 3:00 p.m.
                                                                      RORY L. PERRY II, CLERK
                                                                    SUPREME COURT OF APPEALS
Ray Dwayne Cook,                                                        OF WEST VIRGINIA

Defendant Below, Petitioner

                              MEMORANDUM DECISION

               Petitioner Ray Dwayne Cook, by counsel Kevin D Mills and Shawn R.
McDermott, appeals an order entered by the Circuit Court of Jefferson County sentencing
him to life without mercy and a consecutive sentence of one year following his convictions
for first degree murder and brandishing a firearm. The State, by counsel Brandon C. H. Sims
and Hassan S. Rasheed, Assistant Prosecutors from the Jefferson County Prosecuting
Attorney’s Office, has filed its response.

              Mr. Cook raises numerous errors. This Court has considered the parties’ briefs,
the appendix record designated for our review, the pertinent authorities, and oral argument.
We find no new or significant questions of law and, upon application of the standards for our
review of the various issues raised, we find no prejudicial error. For these reasons, a
memorandum decision affirming the order of the circuit court is appropriate under Rule 21
of the Rules of Appellate Procedure.

              On the afternoon of July 15, 2011, Mr. Ray Cook, the defendant, met his
estranged girlfriend, Jenny Perrine, in the parking lot of the Southern States Store in Ranson,
West Virginia. Jenny Perrine had told friends she was meeting Mr. Cook to take possession
of two pet dogs that had been in his care. Mr. Cook did not bring the dogs with him to meet
Ms. Perrine. Instead, Mr. Cook shot Ms. Perrine multiple times and killed her while she sat
in her car in the Southern States parking lot. Following the shooting, which had been
witnessed by several people, Mr. Cook called 911 and reported that he had shot Ms. Perrine
and that he had not taken his medication that day.

              Mr. Cook was indicted on one count of murder in the first degree and one count
of brandishing a firearm. A bifurcated jury trial followed. During the guilt phase, Mr. Cook
did not deny shooting Ms. Perrine, but instead presented a diminished capacity defense. He
claimed his Bipolar Disorder and side effects of medication he was taking rendered him

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incapable of forming the necessary intent of premeditation and deliberation to commit first
degree murder. The jury returned a verdict of guilty on both counts. The same jury decided
the mercy phase and recommended no mercy. The circuit court subsequently sentenced Mr.
Cook to life without mercy for his conviction of murder in the first degree, and one year in
the Eastern Regional jail for his conviction of brandishing. The two sentences were ordered
to be served consecutively. It is from this order that Mr. Cook appeals.

               Because Mr. Cook alleges various errors to which we apply different standards
of review, we will set out the particular standard for our review of each issue, or group of
similar issues, in connection with our discussion of the issue or issues.

                Mr. Cook asserts several errors pertaining to the circuit court’s failure to
suppress evidence. This Court has previously declared that, “[o]n 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.” Syl. pt. 3, State v. Stuart, 192 W. Va. 428,
452 S.E.2d 886 (1994). 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.”); Syl. pt. 2, in part, id. (“In contrast to a review of the circuit
court’s factual findings, the ultimate determination as to whether a search or seizure was
reasonable under the Fourth Amendment to the United States Constitution and Section 6 of
Article III of the West Virginia Constitution is a question of law that is reviewed de
novo. . . . Thus, a circuit court’s denial of a motion to suppress evidence will be affirmed
unless it is unsupported by substantial evidence, based on an erroneous interpretation of the
law, or, based on the entire record, it is clear that a mistake has been made.”).

               We begin by addressing Mr. Cook’s contention that the circuit court erred in
failing to suppress various statements that he alleges were elicited in violation of his rights
under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and/or his
Sixth Amendment right to counsel. Mr. Cook first argues that the circuit court erroneously
failed to suppress his statement to a law enforcement officer, made while the crime scene was
being initially secured and Mr. Cook was being detained, regarding the location of his gun.
The circuit court allowed this statement to be admitted based upon the public safety
exception to Miranda. He next complains that the circuit court should have suppressed
statements he made in the interview room of the Ranson Police Department prior to being

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read his Miranda rights. The circuit court found that the questions Mr. Cook was asked prior
to the reading of Miranda were not interrogation in that they could not reasonably be viewed
as an attempt by the officer to elicit incriminating responses. Finally, Mr. Cook asserts that
his statement “I am sorry. I screwed other people’s lives up[,]” which was made while he
was being booked and after he had asserted his right to counsel, should have been
suppressed. The circuit court concluded that Mr. Cook’s statement “was not the product of
questioning by an agent of the [S]tate, and thus is voluntary.”

               We have reviewed the record pertaining to the various statements Mr. Cook
contends were improperly admitted by the circuit court and also the relevant law pertaining
thereto. We find no error in the circuit court’s admission of these statements.1 See New York
v. Quarles, 467 U.S. 649, 657, 104 S. Ct. 2626, 2632, 81 L. Ed. 2d 550 (1984) (“We
conclude that the need for answers to questions in a situation posing a threat to the public
safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s
privilege against self-incrimination.”); Syl. pt. 8, in part, State v. Guthrie, 205 W. Va. 326,
518 S.E.2d 83 (1999) (“The special safeguards outlined in Miranda are not required where
a suspect is simply taken into custody, but rather only where a suspect in custody is subjected
to interrogation. . . .”); State v. Kilmer, 190 W. Va. 617, 625, 439 S.E.2d 881, 889 (1993)
(“Interrogation has been defined by the United States Supreme Court as ‘express
questioning . . . [or] any words or actions on the part of the police . . . that the police should
know are reasonably likely to elicit an incriminating response from the suspect.’ Rhode
Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 1689-90, 64 L. Ed. 2d 297 (1980)
(footnotes omitted). Further, the ‘definition of interrogation can extend only to words or
actions on the part of police officers that they should have known were reasonably likely to
elicit an incriminating response.’ Id. at 302, 100 S. Ct. at 1690 (footnote omitted).”); State
v. Bradshaw, 193 W. Va. 519, 528, 457 S.E.2d 456, 465 (1995) (“‘an accused . . . having
expressed his desire to deal with the police only through counsel, is not subject to further
interrogation by the authorities until counsel has been made available to him, unless the
accused himself initiates further communication, exchanges or conversation with the police.’
[Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 1885, 68 L. Ed. 2d 378


               1
               Mr. Cook additionally argues that the circuit court should have suppressed
statements he made while in a police cruiser when he had not been read his Miranda
warnings. Mr. Cook claims the statements were elicited as the result of the functional
equivalent of questioning. Notably, however, Mr. Cook fails to provide details regarding
how the officer improperly elicited the statements. Therefore, we decline to address this
argument as inadequately briefed. See State v. White, 228 W. Va. 530, 541 n.9, 722 S.E.2d
566, 577 n.9 (2011) (“Typically, this Court will not address issues that have not been
properly briefed.”).

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(1981).]”).

              We next address Mr. Cook’s challenge to the admission of evidence he claims
should have been suppressed due to insufficient search warrant affidavits. Mr. Cook asserts
that two separate warrants issued in this matter were based upon inadequate affidavits.
Therefore, evidence seized in reliance on the warrants should have been suppressed. One
affidavit was provided to obtain a warrant to search Mr. Cook’s vehicle and to seize a
weapon, holster and ammunition that were plainly visible. The second affidavit was offered
to secure a warrant to search the contents of Mr. Cook’s cellular phone.2

              This court has held that

                     [u]nder 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 nor is an
              affidavit based on hearsay acceptable unless there is a
              substantial basis for crediting the hearsay set out in the affidavit
              which can include the corroborative efforts of police officers.

Syl. pt. 4, State v. Adkins, 176 W. Va. 613, 346 S.E.2d 762 (1986). We have reviewed the
parties’ representations of the information that was included in the documents presented to
the magistrate court to obtain the requested search warrants3 and we find them to have been
sufficient. Therefore, the circuit court did not err in refusing to suppress the evidence seized
in reliance on the challenged warrants.

              2
               The cellular phone was already in police custody when the warrant to search
its contents was sought.
              3
                In seeking the warrant to search Mr. Cook’s vehicle, the magistrate court was
apparently presented with a form titled “Affidavit and Complaint for Search Warrant.” The
title of the documents submitted in relation to the phone are not identified by the parties.
Furthermore, Mr. Cook has failed to provide this Court with copies of these documents in
the appendix record. While this Court has not been provided with copies of the relevant
documents, neither party has challenged the accuracy of the quotes therefrom provided in the
briefs. Therefore, we decide this issue based upon the parties’ representations of what the
documents stated. In the future, counsel is advised to comply with Rule 7(d)(6) of the Rules
of Appellate Procedure, which requires the petitioner to include in the Appendix “[c]opies
of critical exhibits . . . .”

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               Mr. Cook also contends that the circuit court erred by failing to suppress,
during the State’s rebuttal case, statements that had been suppressed pursuant to Miranda
during the State’s case-in-chief. The previously suppressed statements, which were obtained
during questioning that occurred after Mr. Cook had asserted his right to counsel, were used
during the cross-examination of Mr. Cook’s psychological expert, Dr. Lewis. The circuit
court allowed the testimony for impeachment purposes. See Syl. pt. 3, State v. DeGraw, 196
W. Va. 261, 470 S.E.2d 215 (1996) (“When a defendant offers the testimony of an expert in
the course of presenting a defense such as the insanity defense or the diminished capacity
defense, which calls into question the defendant’s mental condition at the time the crime
occurred, and the expert’s opinion is based, to any appreciable extent, on the defendant’s
statements to the expert, the State may offer in evidence a statement the defendant voluntarily
gave to police, which otherwise is found to be inadmissible in the State’s case-in-chief, solely
for impeachment purposes either during the cross-examination of the expert or in rebuttal,
even though the defendant never takes the witness stand to testify.”). We have reviewed this
testimony and find that the circuit court correctly allowed the statements as impeachment
evidence pursuant to State v. DeGraw.

                Mr. Cook additionally complains that the State’s expert, Dr. Clayman, failed
to comply with State v. Jackson, 171 W. Va. 329, 298 S.E.2d 866 (1982), by not recording
his entire interview with Mr. Cook.4 Therefore, Mr. Cook argues, Dr. Clayman’s testimony
should have been stricken or, in the alternative, Mr. Cook’s statements to Dr. Clayman
should have been suppressed. On this issue, the circuit court concluded that

              the breaks in the recording were inadvertent and not the part of
              any improper motive on the part of the state’s expert.
              Furthermore, the breaks go to the weight the jury will give the
              testimony of the state’s expert and do not affect its admissibility.


              4
               In Syllabus point 2 of State v. Jackson, 171 W. Va. 329, 298 S.E.2d 866
(1982), this Court held:

                      Protection of a defendant’s constitutional privilege
              against self-incrimination and right to assistance of counsel at
              pre-trial court-ordered psychiatric examinations, requires that a
              tape-recording of the entire interview be given to his and the
              government’s lawyer, and an in camera suppression hearing be
              held to guarantee that the court-ordered psychiatrist’s testimony
              will not contain any incriminating statements.


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              Accordingly, the Court DENIES the defendant’s motion to
              strike Dr. Clayman’s testimony or to suppress the contents of the
              audio recording.

               We find no error in the circuit court’s ruling. The recording made by Dr.
Clayman was approximately three and one-half hours long, and the unrecorded portions of
the interview appear to amount to only five or six minutes. There has been no allegation that
the gaps in the recording were intentionally created. There likewise was no attempt by the
State to admit into evidence any statements, incriminating or otherwise, that were made
during the unrecorded portions of the interview. Indeed, no evidence was presented to
indicate that any topic of substance was discussed during the gaps in the recording. Finally,
we note that the circuit court’s order of May 22, 2012, expressly notes that the “Defendant
and the State had reached an agreement to redact certain portions of the statement [made by
the Defendant to Dr. Clayman], including references to Defendant’s criminal history and
prior bad acts.” Under these circumstances, we find no error in the circuit court’s ruling and
we conclude that Mr. Cook’s right to counsel and his privilege against self-incrimination
were adequately protected in accordance with State v. Jackson.

              Mr. Cook next argues that he is entitled to a new trial based upon an alleged
violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). We
previously have held that,

                     [i]n reviewing challenges to findings and rulings made by
              a circuit court, we apply a two-pronged deferential standard of
              review. We review the rulings of the circuit court concerning a
              new trial and its conclusion as to the existence of reversible
              error under an abuse of discretion standard, and we review the
              circuit court’s underlying factual findings under a clearly
              erroneous standard. Questions of law are subject to a de novo
              review.

Syl. pt. 3, State v. Vance, 207 W. Va. 640, 535 S.E.2d 484 (2000). Accord Syl. pt. 1, Burke­
Parsons-Bowlby Corp. v. Rice, 230 W. Va. 105, 736 S.E.2d 338 (2012). Mr. Cook
complains that the State failed to disclose the existence of a bottle of Ativan pills that was
located in the victim’s purse until the penultimate day of trial. Mr. Cook argues that, due to
the State’s failure to timely disclose the Ativan pills, he should have been granted a new trial.
He admits that the State was unaware of the existence of this evidence, but claims the Ativan
pills were exculpatory. This Court has set out a three-part test for evaluating a Brady
violation:


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                      [t]here are three components of a constitutional due
              process violation under Brady v. Maryland, 373 U.S. 83, 83
              S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and State v. Hatfield, 169
              W. Va. 191, 286 S.E.2d 402 (1982): (1) the evidence at issue
              must be favorable to the defendant as exculpatory or
              impeachment evidence; (2) the evidence must have been
              suppressed by the State, either willfully or inadvertently; and (3)
              the evidence must have been material, i.e., it must have
              prejudiced the defense at trial.

Syl. pt. 2, State v. Youngblood, 221 W. Va. 20, 650 S.E.2d 119 (2007). Applying the
foregoing test, we find no Brady violation. Although the State was initially unaware of the
existence of the container of Ativan pills, the pills were discovered and provided to defense
counsel during the trial. Defense counsel then presented evidence regarding the container
of pills to the jury and the container of pills was actually entered into evidence. Under these
circumstances, there simply was no Brady violation.

               Mr. Cook also argues that the circuit court erred by failing to grant a mistrial
after the State published to the jury on an overhead projector Mr. Cook’s invocation of his
right to counsel. We find this argument has no merit. The portion of transcript projected on
the screen displayed many lines of text and included the following excerpt:

              RAY COOK: (Inaudible).

              CORPORAL NORRIS: Okay.

              RAY COOK: That’s about it.

              CORPORAL NORRIS: All right.

              RAY COOK: Talk to a lawyer.

              CORPORAL NORRIS:           Okay. All right. You need some

              water or bathroom or anything like that?


                In denying Mr. Cook’s subsequent motion for a mistrial, the circuit court noted
that the text was displayed inadvertently and only briefly. The circuit court further observed
that the jury’s attention was being directed away from the complained of text by the assistant
prosecutor drawing a vivid blue circle around text at another area of the page to draw
attention to the circled text. For these reasons, the circuit court concluded that the likelihood
that the jury even saw the statement referring to a lawyer was slim, and, thus, Mr. Cook had
not been prejudiced by the display. In fact, the circuit court itself had not noticed the
complained of text. Additionally, the circuit court opted to not offer to the jury a cautionary
instruction or to inquire whether they had actually seen the complained of text so as to not
unnecessarily draw their attention to the same. It has been established that “[t]he decision

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to declare a mistrial, discharge the jury, and order a new trial in a criminal case is a matter
within the sound discretion of the trial court.” Syl. pt. 8, State v. Davis, 182 W. Va. 482, 388
S.E.2d 508 (1989). We find the circuit court did not abuse its discretion in refusing to grant
a mistrial based upon the foregoing facts.

                Likewise, we find no merit in Mr. Cook’s argument that he was entitled to a
mistrial based upon a reference to Mr. Cook’s incarceration made by the State’s expert
witness, Dr. Clayman. During his testimony, Dr. Clayman commented that “I don’t know
if he was shipped down from the ERJ down to South Central but we held him so he could
come to our office for two days.”5 Mr. Cook argues that it was improper for the State to
elicit testimony regarding his pretrial custody. In support of this argument, Mr. Cook cites
State v. Brewster, 164 W. Va. 173, 261 S.E.2d 77 (1979), in which this Court held at
Syllabus point 3, that “[a] criminal defendant has the right, absent some necessity relating to
courtroom security or order, to be tried free of physical restraints.” The State argues that Dr.
Clayman’s inadvertent reference to Mr. Cook’s incarceration did not warrant a mistrial. The
State compares the comment to one this court considered in State v. Welch, wherein a witness
testified to the defendant’s comment that “he was scared that--he knew he was going to have
to go back to prison.” 229 W. Va. 647, 654, 734 S.E.2d 194, 201 (2012). The Welch Court
considered the comment under the plain error doctrine and found no reversible error.

               Turning to the instant matter, we find that Dr. Clayman’s comment was
inadvertent, brief, and does not compare to the potential for prejudice that accompanies
having a defendant in restraints as was the case in Brewster. Based upon these facts, any
error that resulted from Dr. Clayman’s fleeting reference to Mr. Cook’s incarceration was
harmless. See Syl. pt. 2, State v. Atkins, 163 W. Va. 502, 261 S.E.2d 55 (1979) (“Where
improper evidence of a nonconstitutional nature is introduced by the State in a criminal trial,
the test to determine if the error is harmless is: (1) the inadmissible evidence must be
removed from the State’s case and a determination made as to whether the remaining
evidence is sufficient to convince impartial minds of the defendant’s guilt beyond a
reasonable doubt; (2) if the remaining evidence is found to be insufficient, the error is not
harmless; (3) if the remaining evidence is sufficient to support the conviction, an analysis
must then be made to determine whether the error had any prejudicial effect on the jury.”).

              Finally, Mr. Cook argues that the circuit court failed to provide him the due
process required in a bifurcated mercy phase trial, as delineated in State v. McLaughlin, 226
W. Va. 229, 700 S.E.2d 289 (2010). Although Mr. Cook moved for a bifurcated trial, he


                 5
                     The circuit court instructed the jury to not consider Mr. Cook’s pretrial
incarceration.

                                                 8

chose to not present any testimony during the mercy phase and asked the State to do the
same. In other words, he desired that the parties proceed directly to argument without the
production of any evidence relating to mercy. The State declined. We find no error. See
Syl. pt. 8, State v. McLaughlin, 226 W. Va. 229, 700 S.E.2d 289 (“In the mercy phase of a
bifurcated first degree murder proceeding, the defendant will ordinarily proceed first;
however, the trial court retains the inherent authority to conduct and control the bifurcated
mercy proceeding in a fair and orderly manner.”). Mr. Cook’s decision to present no
evidence on the issue of mercy simply does not require the State to stand silent on the issue.
See Syl. pt. 7, id. (“The type of evidence that is admissible in the mercy phase of a bifurcated
first degree murder proceeding is much broader than the evidence admissible for purposes
of determining a defendant’s guilt or innocence. Admissible evidence necessarily
encompasses evidence of the defendant’s character, including evidence concerning the
defendant’s past, present and future, as well as evidence surrounding the nature of the crime
committed by the defendant that warranted a jury finding the defendant guilty of first degree
murder, so long as that evidence is found by the trial court to be relevant under Rule 401 of
the West Virginia Rules of Evidence and not unduly prejudicial pursuant to Rule 403 of the
West Virginia Rules of Evidence.”).6

              For the reasons set out above, the order of conviction and sentence entered by
the Circuit Court of Jefferson County on June 19, 2012, is affirmed.

                                                                                     Affirmed.




              6
                 Two additional errors raised by Mr. Cook may be disposed of summarily. Mr.
Cook’s argument that the circuit court erred in denying his motion to require the State to
present its medical and psychological evidence as to Defendant’s state of mind in the State’s
case-in-chief, rather than in its rebuttal case, was inadequately briefed. Mr. Cook’s argument
on this issue is one paragraph and he provided no authority to support his position. See State
v. White, 228 W. Va. 530, 541 n.9, 722 S.E.2d 566, 577 n.9 (“Typically, this Court will not
address issues that have not been properly briefed.”).

               Mr. Cook additionally argues that the circuit court impermissibly shifted the
burden of proof and production to the defendant by ordering that Mr. Cook’s case in
surrebuttal would be limited to one witness and would be only for the purpose of entering the
victim’s purse into evidence. We find no merit to this argument, particularly when, as the
State notes, the jury was thoroughly instructed that the State had the burden of proof.


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ISSUED: February 12, 2014

CONCURRED IN BY:

Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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