                         STATE OF WEST VIRGINIA
                       SUPREME COURT OF APPEALS

State of West Virginia,                                                           FILED
Plaintiff Below, Respondent                                                November 21, 2014
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 13-1240 (Berkeley County 11-F-244)                                     OF WEST VIRGINIA


Roy Wisotzkey,

Defendant Below, Petitioner



                          MEMORANDUM DECISION
        Petitioner Roy Wisotzkey, by counsel Christopher J. Prezioso, appeals his convictions for
felony murder, robbery in the first degree, burglary, and conspiracy to commit robbery. The
Circuit Court of Berkeley County entered petitioner’s sentencing order on November 7, 2013.
The State of West Virginia, by counsel Cheryl K. Saville, filed a response in support of the
circuit court’s order, to which petitioner replied.

        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 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.

        Sometime near midnight on May 26, 2011, petitioner and his co-defendant, Joshua
Stitley, went to the home of Mr. Stitley’s mother and step-father, Vickie and Jack Clem, to rob
them. Once there, Mr. Stitley stabbed Mr. Clem and beat him with a baseball bat. Mrs. Clem was
then beaten repeatedly on her head with a baseball bat and stabbed twice in the chest; she died
that night from her injuries. Early the next morning, petitioner and Mr. Stitley were arrested for
these crimes. When they were searched, the Clems’s property was found on Mr. Stitley’s person.

        Following his arrest, Mr. Stitley was taken to a hospital for emergency treatment due to
his ingestion of drugs and alcohol. At the hospital, Mr. Stitley told a nurse that he “had hurt his
mother.”

        The arresting officers took petitioner to a police station. At about 9:45 a.m., petitioner
was read his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and then interrogated
by a police officer, Trooper Hart, for about seven minutes. Throughout this brief interview,
petitioner repeatedly claimed that he had been drinking heavily the day before and could not
remember anything about the preceding night.

       Less than one hour after the first interview began, a second officer, Sergeant Walker,
questioned petitioner for about seventy minutes. Sergeant Walker did not read petitioner the

                                         1

Miranda warnings prior to his second interview. Petitioner initially told Sergeant Walker that the
last thing he remembered was being at his own home in Maryland on Wednesday, May 25, 2011,
where Mr. Stitley gave him two “yellow pills” and told him they were going to West Virginia.
However, as the interview progressed, petitioner admitted that (1) he and Mr. Stitley went to the
Clems’s house because Mr. Stitley wanted to rob the Clems; (2) they entered the Clems’s house
with Mr. Stitley’s key; (3) Mr. Clem came upon them as they were sneaking up the interior stairs
of the home; (4) he (petitioner) was holding a sword that he gave to Mr. Clem; (5) Mr. Stitley
was holding petitioner’s baseball bat; (5) Mr. Stitley and Mr. Clem got into “a scuffle”; (6) Mr.
Stitley stabbed Mr. Clem; (7) Mr. Stitley hit Mr. Clem with the bat; (8) during Mr. Stitley’s fight
with Mr. Clem, petitioner went into another room and “drank a whole bunch and passed out”; (9)
he went with Mr. Stitley to the Clems’s house because he was “a lot bigger than [Mr. Stitley]”
and “looked intimidating”; (9) he did not see Mr. Stitley harm Mrs. Clem; (10) there was
supposed to be no violence, only a robbery; (11) Mr. Stitley woke him the next morning and said
they had to “go right now”; and (12) he presumed Mr. Stitley had robbed the Clems. At the
conclusion of the second interview, petitioner orally stated that he had freely given the interview.
Petitioner then signed the written statement drafted by Sergeant Walker during the interview.

         In October of 2011, petitioner and Mr. Stitley were jointly indicted as follows: Count
One, murder in violation of West Virginia Code § 61-2-1 (Mrs. Clem); Count Two, felony
murder in violation of West Virginia Code § 61-2-1 (the underlying crime was the commission
of, or the attempt to commit, first degree robbery); Count Three, first degree robbery in violation
of West Virginia Code § 61-2-12(a) (Mrs. Clem); Court Four, first degree robbery in violation of
West Virginia Code § 61-2-12(a) (Mr. Clem); Count Five, conspiracy to commit robbery in
violation of West Virginia Code § 61-10-31; Count Six, burglary in violation of West Virginia
Code § 61-3-11(a); Count Seven, attempted murder in violation of West Virginia Code § 61-11-8
(Mr. Clem); Count Eight, malicious assault in violation of West Virginia Code § 61-2-9(a) (Mr.
Clem); Count Nine, assault during the commission of a felony in violation of West Virginia
Code § 61-2-10 (Mr. Clem); and Count Ten, assault during the commission of a felony in
violation of West Virginia Code § 61-2-10 (Mrs. Clem).

       At a July 20, 2013, pre-trial hearing, the trial court denied petitioner’s motion to suppress
the recordings of his two police interviews and his signed statement. However, the trial court
granted petitioner and Mr. Stitley’s motion to sever their trials. The State elected to try petitioner
first.

        Petitioner’s trial began on July 31, 2013. At trial, Mr. Clem testified as follows: Mr.
Stitley had lived in the Clems’s home; however, a few months before the crimes at issue herein,
Mr. Clem had physically thrown Mr. Stitley out of the house and told him never to return. With
regard to the night of the crimes, Mr. Clem testified that he heard a noise, went to investigate,
and saw Mr. Stitley standing in the hallway holding a baseball bat and petitioner standing behind
him holding a sword. Mr. Clem testified that he wrestled the sword away from petitioner. Mr.
Stitley then hit Mr. Clem in the head with the baseball bat and the two began to wrestle. At that
juncture, Mr. Stitley stabbed Mr. Clem in the groin with a knife. Mr. Stitley called out to
petitioner, “I thought you were going to help me.” In response, petitioner struck Mrs. Clem on
the head with the baseball bat. Mr. Clem then fell into the bathroom, kicked the door shut, and
begged the men not to kill Mrs. Clem. Despite his pleas, Mr. Clem could hear Mrs. Clem being

                                          2

struck multiple times until she stopped moaning. Mr. Clem eventually passed out, but awoke
when it was light, left the bathroom, saw his assailants asleep in the living room, and snuck out
of the house. He then made his way to his neighbors’ house where the police and an ambulance
were called.

      Sergeant Walker testified at petitioner’s trial regarding the items taken from the Clems’s
home. The Sergeant found the following items on Mr. Stitley’s person when he was arrested: Mr.
Clem’s 1911 nickel, key chain, and wallet; Mrs. Clem’s check card, AAA Plus card, and
Mountain State card; six rolls of nickels and one roll of quarters belonging to Mr. Clem; and
$475.00 in United States currency which had been taken from Mr. Clem’s wallet and from an
ATM using Mrs. Clems’s bank card. The total value of these items was about $500.00. Sergeant
Walker also testified that petitioner had $3.00 on his person when he was arrested.

        On August 7, 2013, a jury found petitioner guilty of Count Two (felony murder based on
the underlying first degree robbery of Mrs. Clem); Count Four (first degree robbery of Mr.
Clem); Count Five (conspiracy to commit robbery); and Count Six (burglary). Petitioner was
acquitted of counts One, Three, Seven, Eight, and Nine.1

        Post-trial, petitioner filed a renewed motion for a judgment of acquittal and a motion for a
new trial. By order entered November 4, 2013, the circuit court denied both motions and
sentenced petitioner to life in prison with the possibility of parole for felony murder, fifty years
in prison for first degree robbery, not less than one nor more than five years in prison for felony
conspiracy to commit robbery, and not less than one nor more than fifteen years in prison for
burglary. The circuit court ordered that the sentences for felony murder and first degree robbery
be served consecutively, and that the sentences for felony conspiracy and burglary be served
concurrent to each other and concurrent to the sentences for felony murder and first degree
robbery.

        Petitioner now appeals the denial of his post-trial motions. We review such appeals under
the following standards:

               “‘“Although the ruling of a trial court in granting or denying a motion for
       a new trial is entitled to great respect and weight, the trial court’s ruling will be
       reversed on appeal when it is clear that the trial court has acted under some
       misapprehension of the law or the evidence.” Syl. pt. 4, Sanders v. Georgia–
       Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976).’ Syllabus point 1, Andrews
       v. Reynolds Memorial Hospital, Inc., 201 W.Va. 624, 499 S.E.2d 846 (1997).”
       Syllabus point 1, Lively v. Rufus, 207 W.Va. 436, 533 S.E.2d 662 (2000).

Syl. Pt. 1, State v. White, 228 W.Va. 530, 722 S.E.2d 566 (2011). Further,

             “[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

       1
          The State opted not to proceed on Count Ten (assault during the commission of a felony
in violation of West Virginia Code § 61-2-10 (Mrs. Clem)).
                                         3

       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.” Syllabus point 3, State v. Vance, 207
       W.Va. 640, 535 S.E.2d 484 (2000).

Syl. Pt. 2, White, 228 W.Va. at 533, 722 S.E.2d at 569.

      With regard to the standard of review for a circuit court’s denial of a motion for a
judgment of acquittal, we have said,

       The trial court’s disposition of a motion for judgment of acquittal is subject to our de
       novo review; therefore, this Court, like the trial court, must scrutinize the evidence in the
       light most compatible with the verdict, resolve all credibility disputes in the verdict’s
       favor, and then reach a judgment about whether a rational jury could find guilt beyond a
       reasonable doubt.

State v. LaRock, 196 W.Va. 294, 304, 470 S.E.2d 613, 623 (1996).

        Petitioner raises four assignments of error on appeal. Petitioner first argues that the circuit
court erred in failing to grant his motion for a judgment of acquittal because the State presented
insufficient evidence to convict petitioner of felony murder in the first degree, robbery in the first
degree, burglary, and conspiracy to commit robbery.

       This Court has stated,

               “A criminal defendant challenging the sufficiency of the evidence to
       support a conviction takes on a heavy burden. An appellate court must review all
       the evidence, whether direct or circumstantial, in the light most favorable to the
       prosecution and must credit all inferences and credibility assessments that the jury
       might have drawn in favor of the prosecution. The evidence need not be
       inconsistent with every conclusion save that of guilt so long as the jury can find
       guilt beyond a reasonable doubt. Credibility determinations are for a jury and not
       an appellate court. Finally, a jury verdict should be set aside only when the record
       contains no evidence, regardless of how it is weighed, from which the jury could
       find guilt beyond a reasonable doubt. To the extent that our prior cases are
       inconsistent, they are expressly overruled.” Syllabus Point 3, State v. Guthrie, 194
       W.Va. 657, 461 S.E.2d 163 (1995).

Syl. Pt. 1, State v. Miller, 204 W.Va. 374, 513 S.E.2d 147 (1998).

        The circuit court denied petitioner’s post-trial motions on the ground that the State
entered sufficient evidence at petitioner’s trial for the jury to find petitioner guilty of each crime
beyond a reasonable doubt. Having reviewed the record on appeal in the light most favorable to
the prosecution, we concur with the circuit court’s findings in regard to each crime and address
each in turn.

                                          4

       With regard to petitioner’s conviction for felony murder, West Virginia Code § 61-2-1
defines murder in the first degree, in part, as “[m]urder . . . in the commission of, or attempt to
commit . . . robbery . . .” However, we have distinguished felony murder from traditional first
degree murder as follows:

               Unlike traditional first degree murder, felony-murder does not “require
       proof of the elements of malice, premeditation, or specific intent to kill. It is
       deemed sufficient if the homicide occurs accidentally during the commission of,
       or the attempt to commit, one of the enumerated felonies.” Syllabus Point 7, in
       part, State v. Sims, 162 W.Va. 212, 248 S.E.2d 834 (1978). Thus, the State was
       required to prove “(1) the commission of, or attempt to commit, one or more of
       the enumerated felonies; (2) the defendant’s participation in such commission or
       attempt; and (3) the death of the victim as a result of injuries received during the
       course of such commission or attempt.” State v. Williams, 172 W.Va. 295, 311,
       305 S.E.2d 251, 267 (1983) (citing State v. Beale, 104 W.Va. 617, 141 S.E. 7
       (1927)).

State v. Lanham, 219 W.Va. 710, 715, 639 S.E.2d 802, 807 (2006). In this case, petitioner argues
that, at trial, the State failed to prove that he committed, or attempted to commit, the underlying
first degree robbery of Mrs. Clem and, as a result, failed to prove felony murder.

        This Court has established that “[a]t common law, the definition of robbery was (1) the
unlawful taking and carrying away, (2) of money or goods, (3) from the person of another or in
his presence, (4) by force or putting him in fear, (5) with intent to steal the money or goods.” Syl.
Pt. 1, State v. Harless, 168 W.Va. 707, 285 S.E.2d 461 (1981). Also under the common law,
“robbery could be accomplished either by actual physical force or violence inflicted on the
victim or by intimidating the victim by placing him in fear of bodily injury.” Syl. Pt. 2, id. While
there were no degrees or grades of robbery at common law, the Legislature has codified two
degrees of robbery, first and second degree robbery. First degree robbery is set forth at West
Virginia Code § 61–2–12(a) and, is defined, in relevant part, as

       [a]ny person who commits or attempts to commit robbery by: (1) Committing
       violence to the person, including, but not limited to, partial strangulation or
       suffocation or by striking or beating; or (2) uses the threat of deadly force by the
       presenting of a firearm or other deadly weapon, is guilty of robbery in the first
       degree. . . .

        Pursuant to this definition, we find that the State presented sufficient evidence at trial for
the jury to find beyond a reasonable doubt that petitioner attempted or committed the first degree
robbery of Mrs. Clem. At petitioner’s trial, Mr. Clem’s testimony established that petitioner
struck Mrs. Clem in the head with the baseball bat. Further, in his statement to Sergeant Walker,
petitioner admitted that he went to the Clems’s home, with a sword and baseball bat, for the
purpose of robbing them. Finally, when petitioner and Mr. Stitley were arrested, the police found
Mrs. Clem’s property. Therefore, given that the State presented sufficient evidence for the jury to
find petitioner guilty of the first degree robbery of Mrs. Clem, we find that the jury had sufficient
evidence to find petitioner guilty of felony murder beyond a reasonable doubt.

                                          5

         The State also presented sufficient evidence for the jury to have found petitioner guilty
beyond a reasonable doubt of the first degree robbery of Mr. Clem. Mr. Clem testified that when
he came upon petitioner on the night of the crime, petitioner was holding a sword. Mr. Clem also
testified that he wrestled with petitioner for possession of the sword. Petitioner’s use of the
sword, a potentially lethal weapon, clearly established the threat of deadly force.

        With regard to petitioner’s burglary conviction, the State presented sufficient evidence
for the jury to find petitioner guilty of burglary beyond a reasonable doubt. West Virginia Code §
61-3-11(a), in relevant part, defines burglary as follows: “If any person shall, in the nighttime,
break and enter, or enter without breaking, or shall, in the daytime, break and enter, the dwelling
house, or an outhouse adjoining thereto or occupied therewith, of another, with intent to commit
a crime therein, he shall be deemed guilty of burglary.”

       The State presented evidence at petitioner’s trial that showed petitioner and Mr. Stitley
entered the Clems’s home, without breaking, at midnight, with the intent to commit a crime.
Consequently, petitioner’s burglary conviction must be upheld.

        Finally, the record on appeal shows that the State presented sufficient evidence for the
jury to find, beyond a reasonable doubt, that petitioner conspired with Mr. Stitley to commit
robbery. West Virginia Code § 61-10-31 provides that

         [i]t shall be unlawful for two or more persons to conspire (1) to commit any
         offense against the State or (2) to defraud the State, the state or any county board
         of education, or any county or municipality of the State, if, in either case, one or
         more of such persons does any act to effect the object of the conspiracy.

        Petitioner admitted to Sergeant Walker that he and petitioner went to the Clems’s home
to rob them. In furtherance of this act, both men drove to the Clems’s home bearing petitioner’s
sword and bat. Mr. Clem’s testimony with regard to petitioner’s use of the sword and the bat
firmly established that petitioner acted in concert with Mr. Stitley during the robbery. As such,
petitioner’s conviction for conspiracy to commit robbery must be upheld.

       Petitioner’s second assignment of error is that the circuit court abused its discretion in
denying his motion for a new trial where the circuit court improperly denied his proposed petit
larceny jury instruction. Petitioner claims that instruction should have been given to the jury
because petit larceny is a lesser-included offense of robbery, and the value of the items taken
from the Clems’s home was about $500. See West Virginia Code § 61-3-13.2 Petitioner




2
    West Virginia Code § 61-3-13 provides as follows:

         (a) If a person commits simple larceny of goods or chattels of the value of one
         thousand dollars or more, such person is guilty of a felony, designated grand
         larceny . . . .


                                          6

highlights that if he had been convicted of misdemeanor petit larceny, instead of robbery, he
could not have been convicted of felony murder based on the robbery conviction.

        West Virginia Code § 61-3-13(b) defines petit larceny as follows: “If a person commits
simple larceny of goods or chattels of the value of less than one thousand dollars, such person is
guilty of a misdemeanor, designated petit larceny. . . .” Petit larceny is the taking of property
without violence. However, in this case, the taking of the Clems’s property was accompanied by
violence. We have said, “Instructions must be based upon the evidence and an instruction which
is not supported by evidence should not be given.” Syl. Pt. 4, State v. Collins, 154 W.Va. 771,
180 S.E.2d 54 (1971). Given that no evidence was entered at petitioner’s trial showing that
petitioner took any of the Clems’s property prior to his use of violence, we find that the circuit
court did not err in denying petitioner’s petit larceny instruction because it was not supported by
the evidence at trial.

        Petitioner’s third assignment of error is that the circuit court abused its discretion in
failing to suppress petitioner’s statements to the police on the following five grounds. First,
petitioner claims that he was so intoxicated during the interviews that his waiver of rights cannot
be considered voluntary, knowing, and intelligent. Second, petitioner contends that he was
coerced into making a statement because Sergeant Walker put “serious pressure” on him. Third,
petitioner avers that his statements were wrongfully coerced with promises of leniency. Fourth,
petitioner alleges that Sergeant Walker wrongfully failed to stop the interview when petitioner
asked for counsel. Fifth and last, petitioner asserts that, even though he was read his Miranda
rights prior to his first interview, Sergeant Walker wrongfully failed to repeat them at the start of
his second interview.

       We review an appeal on a motion to suppress under the following standard:

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

Syl. Pt. 13, State v. White, 228 W.Va. 530, 722 S.E.2d 566 (2011).

        In regard to petitioner’s intoxication claim, we have said that, “[a] claim of intoxication
may bear upon the voluntariness of a defendant’s confession, but, unless the degree of
intoxication is such that it is obvious that the defendant lacked the capacity to voluntarily and
intelligently waive his rights, the confession will not be rendered inadmissible.” Syl. Pt. 1, State
v Hall, 174 W.Va. 599, 328 S.E.2d 206 (1985). Here, although petitioner claimed to have been


       (b) If a person commits simple larceny of goods or chattels of the value of less
       than one thousand dollars, such person is guilty of a misdemeanor, designated
       petit larceny. . . .
                                          7
drinking heavily prior to the interviews, the record on appeal does not support petitioner’s claim
that he was so intoxicated that he obviously lacked the requisite capacity to waive his rights. For
example, after Trooper Hart read petitioner his Miranda rights at the start of the first interview
and advised petitioner about the nature of the questions he would be asked, the Trooper said,
“And you are okay and you’re voluntarily going to answer some questions for me?” Petitioner
answered, “Yeah . . . that’s fine.” Thus, by his own words, petitioner claimed an understanding
and voluntary waiver of his Miranda rights. Further, petitioner was not so intoxicated that he was
unable to lie throughout the first interview and well into the second interview when he said he
did not remember anything about the crimes. Moreover, once petitioner began telling the truth,
he was able to give a detailed account of his and Mr. Stitley’s criminal behavior. Therefore, upon
viewing this evidence in the light most favorable to the State, we find that the circuit court did
not err in denying petitioner’s motion to suppress his statements on the ground of intoxication.

        Turning to petitioner’s coercion arguments, petitioner relies on the following three
statements made by Sergeant Walker, in support of his claim. First, Sergeant Walker advised
petitioner that if he did not cooperate, life as he knew it could “come to an end,” that he could
“go away,” and that it was “your own ass right now.”

         This Court has said, “[w]hether an extrajudicial inculpatory statement is voluntary or the
result of coercive police activity is a legal question to be determined from a review of the totality
of the circumstances.” Syl. Pt. 2, State v. Bradshaw, 193 W.Va. 519, 457 S.E.2d 456 (1995).
Here, the recording of petitioner’s second interview shows that Sergeant Walker did not create a
coercive environment during his interview of petitioner. For example, at one point during the
interview, Sergeant Walker offered to leave the interview room so petitioner could compose
himself. However, petitioner asked him to remain in the room. Further, at the conclusion of the
interview, Sergeant Walker urged petitioner to read the statement the Sergeant had drafted during
the interview for truth and accuracy, and then offered to read the statement to petitioner.
Sergeant Walker then left the room to give petitioner time to read and review the statement, at
which time, petitioner signed the statement. As for Sergeant Walker’s statements that petitioner’s
life could change or he could “go away,” they were accurate statements that petitioner was
potentially facing prison time for his crimes. As for the statement, this is “your own ass right
now,” the Sergeant was clearly encouraging petitioner to think less about Mr. Stitley’s reaction
to petitioner’s confession, and more about his own situation.

       Petitioner also contends that he was coerced by Sergeant Walker’s following promises of
leniency:

       “If you can remember it will help me out. It will only look good for you. What
       happened last night, bud?”

       “Come on, Roy. Do you want to help yourself out or not? . . . . Do you want to
       help yourself out, Roy? It’s a yes or no answer.”

       “I would be scared to death too. But if you’re honest with me, I will take that into
       consideration, okay.”



                                          8

       [W]hat you’re telling me is going to help you. . . . ”

These statements clearly show that Sergeant Walker never promised petitioner that he would
receive leniency from a court of law if he confessed. Thus, based on the totality of the
circumstances in this case, we find that the circuit court did not err in denying petitioner’s
motion to suppress on the ground that his statements were coerced.

        As for petitioner’s claim that Sergeant Walker should have stopped the interview because
petitioner “requested counsel,” we highlight the following exchange during petitioner’s second
interview:

       Sergeant Walker: So you remember watching that right?

       Petitioner: Vaguely, yes. I should have a lawyer, shouldn’t I?

       Sergeant Walker: That’s up to you, sir.

       Petitioner: I don’t know how this works.

       Sergeant Walker: This is how it works. You need to tell me what happened. If you
       did nothing wrong, I need to know. That’s why I need to know what happened.
       Talk to me. So what else happened yesterday? Tell me what happened. . . .

        It is well settled law that “‘[o]nce an accused asks for counsel during [a] custodial
interrogation, he 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
conversations.’ Syl. Pt. 2, State v. Bowyer, 181 W.Va. 26, 380 S.E.2d 193 (1989).” Syl. Pt. 1,
State v. Kilmer, 190 W.Va. 617, 439 S.E.2d 881 (1993). However, this rule applies only if
nothing about the request renders it ambiguous.

               Where nothing about the request for counsel or the circumstances
               leading up to the request would render it ambiguous, all
               questioning must cease. In these circumstances, an accused’s
               subsequent statements are relevant only to the question whether the
               accused waived the right he had invoked. Invocation and waiver
               are entirely distinct inquiries, and the two must not be blurred by
               merging them together.

       Smith v. Illinois, 469 U.S. 91, 98, 105 S.Ct. 490, 494, 83 L.Ed.2d 488 (1984).

Kilmer at 624-25, 439 S.E.2d at 888-89. Here, petitioner did not assert his right to counsel.
Instead, he merely asked, “I should have a lawyer, shouldn’t I?” Given that petitioner’s statement
was ambiguous, Sergeant Walker was under no obligation to stop the interview, nor was it
Sergeant Walker’s place to advise petitioner regarding whether he should retain counsel. As
such, the circuit court did not err in denying petitioner’s motion to suppress on this ground.



                                         9

      With regard to petitioner’s claim that Sergeant Walker should have read the Miranda
warnings at the start of his second interview, we have said,

               In determining whether the initial Miranda warnings have become so stale
       as to dilute their effectiveness so that renewed warnings should have been given
       due to a lapse in the process of interrogation, the following totality-of-the­
       circumstances criteria should be considered: (1) the length of time between the
       giving of the first warnings and subsequent interrogation; (2) whether the
       warnings and the subsequent interrogation were given in the same or different
       places; (3) whether the warnings were given and the subsequent interrogation
       conducted by the same or different officers; (4) the extent to which the subsequent
       statement differed from any previous statements; and (5) the apparent intellectual
       and emotional state of the suspect.

Syl. Pt. 5, State v. DeWeese, 213 W.Va. 339, 582 S.E.2d 786 (2003). In regard to the Deweese
factors, we first note that the second interview began less than forty-five minutes after the first
interview ended and both interviews were conducted in the same room. Further, in both
interviews, petitioner claimed that he could not remember any of the events from the previous
evening. Finally, as for petitioner’s intellectual/emotional state, as we noted above, he was
capable of understanding and waiving his Miranda rights during the first interview and
acknowledged at the end of his second interview that his statement was freely given. Based on
the totality of these circumstances, we find that the circuit court did not err in denying
petitioner’s motion to suppress his statements on Miranda grounds.

       Petitioner’s fourth and final assignment of error is that the circuit court erred in allowing
the State to proceed to trial on two separate robbery counts: (1) felony murder based on the
robbery of Mrs. Clem, and (2) the robbery of Mr. Clem.

        Petitioner was indicted on two separate counts of robbery, one for the robbery of Mrs.
Clem and the other for robbery of Mr. Clem. However, when the State elected to proceed under
the count of felony murder, the robbery charge regarding Mrs. Clem was properly subsumed into
the felony murder charge. As we have said, “[w]hen a defendant commits two separate
aggravated robberies, and in the course thereof kills one of the victims, he can be convicted of
both the aggravated robbery of one victim and the felony murder of the other.” Syl., State ex rel.
Lehman v. Strickler, 174 W.Va. 809, 329 S.E.2d 882 (1985). Further, in Syllabus Point 3 of State
v. Elliott, 186 W.Va. 361, 412 S.E.2d 762 (1991), we concluded that

               [w]here there is more than one underlying felony supporting a felony
       murder conviction and one of the underlying felonies is committed upon a
       separate and distinct victim from the victim who was actually murdered, that
       underlying felony conviction does not merge with the felony murder conviction
       for the purposes of double jeopardy.

Therefore, the circuit court did not err in allowing the State to proceed to trial on the two
separate robbery counts.



                                         10

       For the foregoing reasons, we affirm.
                                               Affirmed.

ISSUED: November 21, 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




                                       11

