                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

State of West Virginia,
Plaintiff Below, Respondent                                                             FILED
                                                                                      May 23, 2016
vs) No. 15-0404 (Mercer County 14-F-254-OA)                                          RORY L. PERRY II, CLERK
                                                                                   SUPREME COURT OF APPEALS
                                                                                        OF WEST VIRGINIA
Cassidy B.,

Defendant Below, Petitioner



                              MEMORANDUM DECISION
         Petitioner Cassidy B., by counsel Elizabeth A. French and Michael P. Cooke, appeals the
Circuit Court of Mercer County’s April 28, 2015, order sentencing him to consecutive terms of
incarceration of one year for his conviction of involuntary manslaughter and forty years for his
conviction of child abuse by parent resulting in death.1 The State, by counsel Jonathan E. Porter,
filed a response. On appeal, petitioner alleges that the circuit court erred in denying his motion to
suppress statements.

        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.

        At approximately 4:30 a.m. on April 5, 2014, 911 received a call regarding petitioner’s
infant son, E.B. According to the caller, the child was experiencing trouble breathing. It is
uncontested that, on the night in question, petitioner and the child were sleeping alone in
petitioner’s bed. An ambulance was dispatched and transported the child to the emergency room;
however, the child died shortly thereafter. Police responded to the scene, and Detective Kenny
Adams of the Bluefield Police Department ultimately assumed control of the investigation.
Detective Adams made contact with all of the individuals in the home, including petitioner; the
child’s mother, Ashely O.; and two other adult occupants, Eric A. and Frankie H. According to
the record, Detective Adams asked all these individuals to go to the Bluefield Police Department
to give statements about the incident.

       1
         Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183
W.Va. 641, 398 S.E.2d 123 (1990).


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        On April 8, 2014, Detective Adams interviewed Eric A. and Frankie H. According to
these individuals, petitioner and the child were sleeping in the same bed on the night in question.
Around 4:30 a.m., petitioner woke both individuals and said that the child was not breathing.
After contacting 911, both individuals went to the mother’s place of employment to bring her
home. On April 9, 2014, Detective Adams interviewed petitioner and the mother. According to
the mother, around 3 a.m., she woke to get ready for work and told petitioner she prepared a
bottle for the child before she left. Petitioner confirmed this statement to Detective Adams and
informed him that he fell asleep after the mother left. According to petitioner, when he woke up
again the child was having trouble breathing. At this point, he confirmed the statements of Eric
A. and Frankie H. During this interview, petitioner denied knowledge of what happened to the
child.

        On May 16, 2014, Dr. Mock, state coroner, advised Detective Adams that he ruled the
child’s death a homicide. Three days later, Detective Adams contacted petitioner and the mother
and indicated he would like to speak with them on May 20, 2014. He also indicated that he
received the child’s autopsy. Neither individual appeared for the May 20, 2014, appointment.
The appointment was rescheduled for May 22, 2014, but again both individuals failed to appear.
However, petitioner contacted Detective Adams that day and stated both he and the mother
intended to meet the detective. Ultimately, only the mother appeared, at which time Detective
Adams indicated that he wanted to speak with both parents. As such, Detective Adams verified
that both parents would be working the following day. On May 23, 2014, Detective Adams went
to the parents’ place of employment, picked them up, and transported them to the Bluefield
Police station. Detective Adams interviewed both parents individually that day and neither
received Miranda warnings.2 During his statement, petitioner told Detective Adams that it was
possible he struck the child inadvertently while experiencing a nightmare. Detective Adams
ended the interview and told petitioner he would speak with him again after further investigation.

        On June 6, 2014, Detective Adams called the parents to schedule another interview,
though neither ultimately appeared. Detective Adams then called the mother, who agreed to go to
the station. During this statement, the mother advised Detective Adams that petitioner refused to
appear for another interview and was speaking with an attorney. Thereafter, Detective Adams
obtained a warrant for petitioner’s arrest. On June 17, 2014, officers attempted to execute the
warrant at petitioner’s mother’s home, at which point petitioner attempted to flee from a back
window and was apprehended. Petitioner was taken to the police station, advised of his Miranda
rights, and gave a third statement to Detective Adams, wherein he claimed that he inadvertently
struck the child with his elbow while sleeping.

        After being indicted on charges related to the child’s death, petitioner was tried in March
of 2015. Ultimately, the jury found him guilty of one count of involuntary manslaughter and one
count of child abuse by a parent resulting in death. He was later sentenced to a term of
incarceration of one year for his conviction of involuntary manslaughter and forty years for his
conviction of child abuse by a parent resulting in death. It is from the sentencing order that
petitioner appeals.

       2
           See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966).
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        We have previously set forth the following standard of review:

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

Syl. Pt. 1, State v. Kimble, 233 W.Va. 428, 759 S.E.2d 171 (2014). Further,

               “[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.” Syllabus Point 3, State v. Stuart, 192
       W.Va. 428, 452 S.E.2d 886 (1994).

Syl. Pt. 1, State v. Hoston, 228 W.Va. 605, 723 S.E.2d 651 (2012). Upon our review, we find no
error in the circuit court’s denial of petitioner’s motion to suppress his statements.

        On appeal, petitioner argues that the circuit court erred in denying his motion because
both his Fifth Amendment right against self-incrimination and his Sixth Amendment right to
representation were violated. The Court, however, disagrees. Specifically, petitioner alleges that
his second interview with Detective Adams was custodial and constituted an interrogation. In
support, petitioner argues that Detective Adams admitted to using interview techniques designed
to elicit incriminating remarks. He further argues that this interview was custodial because
Detective Adams came to his place of employment unannounced and took him to the police
station, where he was isolated from everyone other than law enforcement officers in an interview
room. However, the Court notes that in ruling on his motion to suppress, the circuit court
specifically found that, at the time of the second interview, “[petitioner] was not under arrest,
was not handcuffed or otherwise restrained” and that “he was again advised that he was free to
leave at any time” by a second officer that was present for the interview. Ultimately, the circuit
court ruled that petitioner’s second statement “was . . . a product of a noncustodial and voluntary
interview” that “indicate[d] that it was given freely.” Upon our review, we find no error in this
ruling.

       In discussing Miranda safeguards and the admissibility of defendants’ statements, we
have held as follows:

              “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. To the extent that language in State v. Preece, 181
       W.Va. 633, 383 S.E.2d 815 (1989), and its progeny, may be read to hold

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       differently, such language is expressly overruled.” Syllabus Point 8, State v.
       Guthrie, 205 W.Va. 326, 518 S.E.2d 83 (1999).

Syl. Pt. 3, Damron v. Haines, 223 W.Va. 135, 672 S.E.2d 271 (2008). Additionally, in
determining whether a situation constitutes a custodial interrogation, we set forth the following
standard:

               “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.” Syllabus Point 2, State v. Middleton, 220 W.Va.
       89, 640 S.E.2d 152 (2006).

Id. at 137, 672 S.E.2d at 273, Syl. Pt. 4. As outlined above, the circuit court specifically found
that several of these factors mitigated in favor of a noncustodial interview, including the fact that
petitioner was not restrained in any way and was free to leave. The Court concurs and notes that
several other factors also support this ruling, including the fact that only two officers were
present for the interrogation, it was a relatively short interview, and the extended length of time
between the interview and petitioner’s subsequent arrest. For these reasons, we find that
petitioner’s right against self-incrimination was not violated during his second interview with
Detective Adams because it was noncustodial, and the circuit court did not err in denying his
motion to suppress this statement.

        Finally, in regard to petitioner’s allegation that his Sixth Amendment right to
representation was violated during his third interview, we find no error. In support, petitioner
argues that the child’s mother had previously told Detective Adams of petitioner’s “desire to hire
an attorney.” According to petitioner, the mother’s statement to Detective Adams caused his
right to counsel to attach such that Detective Adams was forbidden from questioning him upon
his arrest. However, the Court notes that, on appeal, petitioner does not address the fact that he
expressly waived his right to counsel during the third interview after Detective Adams went over
petitioner’s Miranda rights. In denying petitioner’s motion to suppress his third statement, the
circuit court specifically found that he waived his rights, including his right to counsel, and gave
a voluntary statement to police. Specifically, the circuit court found that Detective Adams
advised petitioner that he had a right to counsel, at which point petitioner indicated that he had an
attorney but could not recall his name initially. After petitioner later gave Detective Adams the
name of an attorney, Detective Adams indicated that this attorney did not typically handle
criminal matters and again advised petitioner of his right to counsel. However, petitioner chose
to waive this right and voluntarily give his statement, as evidenced by a signed waiver form and
the recording that shows Detective Adams addressed each right and obtained petitioner’s verbal
waiver of the same. Therefore, it is clear that the evidence on appeal overwhelming shows that
petitioner waived his right to counsel before giving his third statement to Detective Adams. As
such, we find no error in the circuit court denying petitioner’s motion to suppress his third
statement.

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       For the foregoing reasons, the circuit court’s April 28, 2015, sentencing order is hereby
affirmed.


                                                                                      Affirmed.

ISSUED: May 23, 2016

CONCURRED IN BY:

Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II

DISSENTING AND WRITING SEPERATELY:

Chief Justice Menis E. Ketchum


Ketchum, C.J., dissenting:

        The second interview by Detective Adams was clearly a custodial interrogation.
Petitioner was not given Miranda warnings.

       When a police officer takes a person from their place of employment to the police station
to be interviewed, the person is in custody and is entitled to be given Miranda warnings.
Therefore, petitioner’s statements obtained during the interview were not admissible evidence
and the admission into evidence was prejudicial error. Therefore, I dissent.




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