                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


State of West Virginia,                                                          FILED
Plaintiff Below, Respondent                                                 October 17, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
vs) No. 13-1070 (Roane County 12-F-41)                                        OF WEST VIRGINIA


Adam Scott Lytle,
Defendant Below, Petitioner


                             MEMORANDUM DECISION
       Petitioner Adam Scott Lytle, by counsel Duane C. Rosenlieb Jr., appeals the judgment
order of the Circuit Court of Roane County, entered on July 25, 2013, finding him guilty of
murder in the first degree subsequent to a jury trial. The State appears by counsel Benjamin F.
Yancey III.

       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 order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.

                                                I.

        The circumstances of the crime itself are undisputed for the purpose of this appeal.
Several individuals, including petitioner and the victim, Jeremy Smith, had been drinking,
watching movies, playing videogames, wrestling, and lifting weights at the home of Slade Thorn
in December of 2011, when petitioner suddenly jumped up, grabbed Thorn’s shotgun, shot Smith
twice, and threatened at least one individual. Petitioner asked Thorn to drive him away and help
hide Smith’s body. Thorn agreed. The two men left the residence, with petitioner pointing the
gun at Thorn. Eventually, Thorn convinced petitioner to lower the shotgun, and then took it
away. Thorn fired two shots—either in the air or in the direction of petitioner—and petitioner ran
into nearby woods. West Virginia State Police Trooper Joshua Bragg was dispatched to
investigate. While surveying the scene, Trooper Bragg discovered that petitioner was on the
phone with the 911 dispatcher. He convinced petitioner to exit the woods, and petitioner was
ordered at gunpoint to the ground, handcuffed, and placed in a local sheriff’s deputy’s cruiser at
around 2 a.m.1 He was arraigned approximately nine and one-half hours later. After he was taken

       1
          Though petitioner had to wait in the car while Trooper Bragg completed his
investigation of the crime, the cruiser was running, and the heat was turned on.


                                                1

into custody, but prior to presentment to the magistrate, petitioner gave a statement implicating
himself in the murder. Petitioner was found guilty by a jury of his peers in July of 2013 of the
first-degree murder of Smith, and later was sentenced to a period of life in the state penitentiary,
with the possibility of parole.

        Petitioner presents two assignments of error on appeal. He argues, first, that the circuit
court abused its discretion in giving “an unnecessary cumulative instruction permitting the jury
to conclude . . . [p]etitioner had ‘consciousness’ of his own guilt;” and, second, that the circuit
court erred in denying his motion to suppress the statement that petitioner argues was taken in
violation of the prompt presentment rule.

                                                II.

        We begin with petitioner’s first assignment of error. In this Court’s review of the
petitioner’s assertion regarding instructional error, the following standards are applicable:

               A trial court’s instructions to the jury must be a correct statement of the
       law and supported by the evidence. Jury instructions are reviewed by determining
       whether the charge, reviewed as a whole, sufficiently instructed the jury so they
       understood the issues involved and were not misled by the law. A jury instruction
       cannot be dissected on appeal; instead, the entire instruction is looked at when
       determining its accuracy. A trial court, therefore, has broad discretion in
       formulating its charge to the jury, so long as the charge accurately reflects the
       law. Deference is given to a trial court’s discretion concerning the specific
       wording of the instruction, and the precise extent and character of any specific
       instruction will be reviewed only for an abuse of discretion.

Syl. Pt. 4, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995). Guided by this precedent,
this Court addresses the issue presented in this case.

        As noted above, petitioner was handcuffed and placed in the police cruiser at about 2 a.m.
He remained there while Trooper Bragg completed tasks necessary to the investigation, until he
was transported to the Roane County State Police detachment, arriving at the detachment at
about 4:30 a.m. Approximately twenty minutes after arrival, and after signing an
acknowledgment that he had been advised of his Miranda rights2, petitioner gave Trooper Bragg
a recorded statement claiming that Thorn had shot and killed Smith. After giving that statement,
petitioner told Trooper First Class Robert Richards in an unrecorded interview that he
accidentally shot Smith. This confession prompted a second recorded statement, taken by
Sergeant Frederick Hammack.3 Petitioner argues that he was prejudiced by the following
instruction, addressing the conflicting statements, given at trial:

       2
           See Miranda v. Arizona, 384 U.S. 436 (1966).
       3
          The statement given to Trooper Hammack—presumably of seminal importance to the
issue before us—was played for the jury but not transcribed into the record. Neither the transcript
of the original recording, nor the recording itself, has been made part of the appendix record on
                                                 2

       The jury is further instructed that if you find from the evidence and believe
       beyond a reasonable doubt that a pretrial statement given by the defendant to the
       police as to matters under investigation in this case was willfully and deliberately
       false or misleading, such fact may be considered by you as a circumstance
       indicating the defendant’s consciousness of guilt. The circumstances should be
       carefully considered, since a false or misleading statement may be attributed to a
       number of reasons other than consciousness of guilt. The jury is cautioned,
       however, that if they find such a pretrial statement to be willfully and deliberately
       false or misleading, that is but one factor which they may consider in weighing
       the evidence on the defendant’s guilt or innocence.

When the court informed counsel it intended to give the above instruction, the following
transpired:

       The court:	                           I will hear any objection anybody has to
                                             that.

       [Assistant pros.] Mr. Downey:	        State has none, your Honor.

       [Def. counsel] Mr. Mitchell:	         I don’t really like that, Judge, but I don’t
                                             know that I can argue against it.

       The court:	                           Well—

       Mr. Mitchell:	                        That applies for        everybody,     all     the
                                             witnesses, right?

       The court:	                           No. It applies to the defendant’s pretrial
                                             statement to the law enforcement officer.

       Mr. Mitchell:	                        What about a witness statement pretrial that
                                             he changes?

       The court:	                           That he changes?

       Mr. Mitchell:	                        Yes, sir. We have that in one of the
                                             witness’s statements.

       The court:	                           Oh, no, that is in there. Contradictory
                                             statements?

       Mr. Mitchell:	                        Yes.


appeal. We are thus unable to fully evaluate the differences in petitioner’s statements.
Nevertheless, we find that the absence of the statement does not affect the analysis herein.
                                                3
       The court:                              Yes. That is in there.

       Mr. Mitchell:                           Okay.

        Petitioner argues that the above exchange demonstrates a timely objection on his behalf
to the circuit court’s instruction. We disagree. “To preserve an issue for appellate review, a party
must articulate it with such sufficient distinctiveness to alert a [trial] court to the nature of the
claimed defect.” State ex rel. Cooper v. Caperton, 196 W.Va. 208, 216, 470 S.E.2d 162, 170
(1996) (citations omitted). Not only did petitioner’s trial counsel fail to articulate any claim of
defect in the court’s instruction, he affirmatively stated, “I don’t know that I can argue against
it.” The circuit court was provided no notice that would have “afford[ed] an opportunity to
correct the problem before irreparable harm occur[red].” See State v. LaRock, 196 W.Va. 294,
316, 470 S.E.2d 613, 635 (1996).

        Nevertheless, the “raise or waive” rule does not bar our review where, in extraordinary
circumstances, trial court error is plain. “The ‘plain error’ doctrine grants appellate courts, in the
interest of justice, the authority to notice error to which no objection has been made.” State v.
Miller, 194 W.Va. 3, 18, 459 S.E.2d 114, 129 (1995). “Under plain error, appellate courts will
notice unpreserved errors in the most egregious circumstances. Even then, errors not seasonably
brought to the attention of the trial court will justify appellate court intervention only where
substantial rights are affected.” LaRock, 196 W.Va. at 316, 470 S.E.2d at 635.4 We explained in
LaRock:

                To satisfy the plain error standard, a court must find: (1) there was error in
       the trial court’s determination; (2) the error was plain or obvious; and (3) the error
       affected “substantial rights” in that the error was prejudicial and not harmless.
       [Miller,] 194 W.Va. at 18, 459 S.E.2d at 129, citing United States v. Olano, 507
       U.S. 725, 730–32, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508, 518 (1993). If these
       criteria are met, this Court may, in its discretion, correct the plain error if it
       “‘seriously affect[s] the fairness, integrity or public reputation of judicial
       proceedings.’” Olano, 507 U.S. at 732, 736, 113 S.Ct. at 1776, 1779, 123 L.Ed.2d
       at 518, 521, quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391,
       392, 80 L.Ed. 555, 557 (1936).

Id. at 316-17, 635-36.

        Applying the considerations described above, we find no plain error that would compel
us to reverse petitioner’s conviction based on the circuit court’s having given the “consciousness
of guilt” instruction. Though petitioner goes to great lengths in urging us to find that his

       4
         Where, however, “there has been a knowing and intentional relinquishment or
abandonment of a known right, there is no error and the inquiry as to the effect of a deviation
from the rule of law need not be determined.” Syl. pt. 8, in part, State v. Miller, 194 W.Va. 3,
459 S.E.2d 114.


                                                  4

inconsistent statements could only be used to aid the jury’s assessment of petitioner’s credibility,
and that the instruction improperly elevated the misleading statement to evidence of guilt, we
note that the circuit court, without objection from counsel, crafted its instruction using language
from an opinion of this Court:

       In addition, it appears that evidence of the appellant’s false declarations was
       clearly admissible. Since the appellant was the only witness who testified as to
       what occurred on the night of his wife’s death, his credibility was a critical issue
       at trial. The State was entitled to offer evidence of the appellant's prior
       inconsistent statements for purposes of impeachment. [Citations omitted.]
       Moreover, like evidence of flight, evidence of false or misleading statements
       given by the accused to the police as to matters under investigation is generally
       held to be relevant and admissible as a circumstance indicating consciousness of
       guilt. See State v. Richey, 171 W.Va. 342, 298 S.E.2d 879 (1982); State v. Payne,
       167 W.Va. 252, 280 S.E.2d 72 (1981). See generally 22A C.J.S. Criminal Law §
       636 (1936). The trial court in this case properly instructed the jury that the
       evidence of the appellant’s false report of suicide was merely a factor which they
       could consider in weighing the evidence on the issue of his guilt of the crime of
       murder. Accordingly, we find no error in the prosecution’s references to the
       appellant's statements.

State v. Berry, 176 W.Va. 291, 295, 342 S.E.2d 259, 263 (1986)(emphasis added).

        Nothing in Berry suggests that the use of evidence of misleading statements is restricted
to credibility determinations; in fact, use of “moreover” in the above passage suggests that
multiple uses of such evidence may be contemplated. Petitioner argues, though, that the above
paragraph is without application to issues involving jury instructions. In support of this
argument, he notes that the Berry Court followed the language quoted above with the transitional
sentence, “The appellant’s other assignments of error relate to the trial court’s instructions to the
jury.” This transition, he suggests, demonstrates that the Court’s discussion of misleading
statements was relevant only to credibility determinations. We disagree. The Berry Court clearly
indicated that it found that “the trial court . . . properly instructed the jury” on the issue of false
or misleading statements, as evident from the language quoted above. Upon consideration of
Berry, we find no plain error in the trial court’s instruction and, thus, decline to disturb the ruling
of the circuit court.

                                                 III.

       We turn to petitioner’s second assignment of error, in which he argues that the circuit
court erred in denying his motion to suppress a statement that he gave after his arrival at the
West Virginia State Police barracks. We review orders concerning motions to suppress as
follows:

       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,

                                                  5

       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). 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.” Syl. Pt. 3, State v. Stuart, 192 W.Va. 428, 452
S.E.2d 886 (1994).

       Prior to trial, petitioner filed a motion to suppress his confession, arguing that he was not
promptly presented to a magistrate.5 The motion to suppress was denied. “Our prompt
presentment rule contained in W.Va. Code, [§] 62–1–5, and Rule 5(a) of the West Virginia Rules
of Criminal Procedure, is triggered when an accused is placed under arrest. Furthermore, once a
defendant is in police custody with sufficient probable cause to warrant an arrest, the prompt
presentment rule is also triggered.” Syl. Pt. 2, State v. Humphrey, 177 W.Va. 264, 351 S.E.2d
613 (1986). However, we have previously recognized that “[c]ertain delays such as delays in the
transportation of a defendant to the police station, completion of booking and administrative
procedures, recordation and transcription of a statement, and the transportation of a defendant to
the magistrate do not offend the prompt presentment requirement.” State v. Sugg, 193 W.Va.
388, 395–96, 456 S.E.2d 469, 476–77 (1995) (citing State v. Ellsworth J.R., 175 W.Va. 64, 70,
331 S.E.2d 503, 508 (1985)) (footnote omitted). Importantly, in State v. Rogers, 231 W.Va. 205,
744 S.E.2d 315 (2013) citing Syllabus Point 4 of State v. Humphrey, 177 W.Va. 264, 351 S.E.2d
613 (1986), we explained that “[o]rdinarily the delay in taking an accused who is under arrest to
a magistrate after a confession has been obtained . . . does not vitiate the confession under our
prompt presentment rule.”



       5
           W.Va. Code § 62-1-5(a)(1) provides:

              An officer making an arrest under a warrant issued upon a complaint, or
       any person making an arrest without a warrant for an offense committed in his
       presence or as otherwise authorized by law, shall take the arrested person without
       unnecessary delay before a magistrate of the county where the arrest is made.

       In addition, Rule 5 of the West Virginia Rules of Criminal Procedure requires that:

       any person making an arrest without a warrant shall take the arrested person
       without unnecessary delay before a magistrate within the county where the arrest
       is made. If a person arrested without a warrant is brought before a magistrate, a
       complaint shall be filed forthwith which shall comply with the requirements of
       Rule 4(a) with respect to the showing of probable cause. When a person, arrested
       with or without a warrant or given a summons, appears initially before the
       magistrate, the magistrate shall proceed in accordance with the applicable
       subdivision of this rule.
                                                 6

        It is undisputed that petitioner was handcuffed and placed in a police cruiser at around 2
a.m., and that he remained there while Trooper Bragg concluded his on-site investigative duties
and waited for the rest of the investigation team to arrive. The two men left the scene at about 4
a.m. and arrived at the State Police detachment at about 4:30 a.m., at which time Trooper Bragg
read petitioner his Miranda rights and had petitioner sign the acknowledgement form. It is
apparent that this time was spent in the execution of administrative duties and the transport of
petitioner, and thus did not offend the prompt presentment standard.6 Petitioner’s initial recorded
statement—in which he stated that Thorn had killed Smith—began at 4:53 a.m. and concluded at
5:23 a.m. As noted above, time spent in the recording of petitioner’s statement also does not
offend the prompt presentment standard.7

        Upon completion of the statement taken by Trooper Bragg, at 5:25 a.m., Sgt. Hammack
spoke with petitioner, and petitioner requested that he be given a polygraph examination.
Petitioner was told that the only available polygraph examiner, TFC Richards, was in Beckley,
and there would be a delay of at least two hours while TFC Richards traveled to Spencer.
Petitioner agreed to the wait. He was not interrogated while waiting, but was given cake and a
beverage. TFC Richards arrived at the Roane County detachment at approximately 9:30 a.m.,
advised petitioner of his Miranda rights, and began to interview petitioner.8 The period that
elapsed between petitioner’s request for the administration of a polygraph examination and the
time that TFC Richards initiated his interview does not offend the prompt presentment standard,
because any delay occurring during that time was triggered by petitioner’s stated desire to submit
to a polygraph examination.

        Sometime during the unrecorded interview that TFC Richards began at 9:30 a.m. in
preparation for the polygraph examination, petitioner confessed to killing Thorn. TFC Richards
then asked Sgt. Hammack to take a recorded statement from petitioner. Petitioner gave the
second recorded statement to Sgt. Hammack beginning at about 10:30 a.m. and concluding at
10:41 a.m.9 Inasmuch as the confession was then obtained, any delay occasioned between 10:41
a.m. and the time of presentation to the magistrate is inconsequential, at least under the
circumstances here described, to our inquiry. See Rogers, 231 W.Va. at 211, 744 S.E.2d at 321.
Petitioner was transported to the Magistrate Court of Roane County for arraignment at about
11:30 a.m.

       Having given thorough consideration to the timeline of events described above, we find
no evidence of “prolonged interrogation” and no evidence of “delay which precedes, and can



       6
         It is undisputed that petitioner was not questioned while he waited in the police cruiser
or during transport.
       7
        At no time did petitioner ask to stop any interview conducted by any of the officers
mentioned herein.
       8
           See Miranda, 384 U.S. 436.
       9
           No polygraph examination was given.
                                                 7

therefore be used to induce, the confession” See State v. Rogers, 231 W.Va. 205, 211, 744 S.E.2d
315, 321 (2013)(citations omitted). We accordingly find no error in the circuit court’s denial of
petitioner’s motion to suppress his statement.

       For the foregoing reasons, we affirm.

                                                                                       Affirmed.

ISSUED: October 17, 2014

CONCURRED IN BY:

Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II

DISSENTING:

Chief Justice Robin Jean Davis




                                               8

