       IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                               January 2020 Term                     FILED
                                 _____________
                                                                  June 16, 2020
                                                                    released at 3:00 p.m.
                                 No. 19-1047                    EDYTHE NASH GAISER, CLERK
                                                                SUPREME COURT OF APPEALS
                                _____________                        OF WEST VIRGINIA



         STATE OF WEST VIRGINIA EX REL. RHONDA L. WADE,
           MARSHALL COUNTY PROSECUTING ATTORNEY,
                            Petitioner

                                      V.

              THE HONORABLE DAVID W. HUMMEL, JR.,
        JUDGE OF THE CIRCUIT COURT OF MARSHALL COUNTY;
                               AND H.D.,
                              Respondents
           ________________________________________________

                 PETITION FOR WRIT OF PROHIBITION

                            WRIT GRANTED
            ________________________________________________

                           Submitted: May 19, 2020
                             Filed: June 16, 2020

Andrea C. Poling                           Michael B. Baum
Eric M. Gordon                             Edmond & Baum, PLLC
Marshall County Prosecuting                Wheeling, West Virginia
Attorney’s Office                          Attorneys for Respondent H.D.
Moundsville, West Virginia
Attorneys for the Petitioner               Brett M. Ferro
                                           Chief Public Defender
                                           Moundsville, West Virginia
                                           Attorney for Amicus Curiae,
                                           Public Defender Corporation for the
                                           Second Judicial Circuit


JUSTICE JENKINS delivered the Opinion of the Court.
CHIEF JUSTICE ARMSTEAD, deeming himself disqualified, did not participate in
the decision of this case.

JUDGE J.D. BEANE, sitting by temporary assignment.

JUSTICE WORKMAN not participating.
                              SYLLABUS BY THE COURT

              1.     “‘Prohibition lies only to restrain inferior courts from proceeding in

causes over which they have no jurisdiction, or, in which, having jurisdiction, they are

exceeding their legitimate powers and may not be used as a substitute for [a petition for

appeal] or certiorari.’ Syllabus Point 1, Crawford v. Taylor, 138 W. Va. 207, 75 S.E.2d

370 (1953).” Syllabus point 1, State ex rel. Franklin v. Tatterson, 241 W. Va. 241, 821

S.E.2d 330 (2018).



              2.     “‘In determining whether to entertain and issue the writ of prohibition

for cases not involving an absence of jurisdiction but only where it is claimed that the lower

tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether

the party seeking the writ has no other adequate means, such as direct appeal, to obtain the

desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not

correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as a matter

of law; (4) whether the lower tribunal’s order is an oft repeated error or manifests persistent

disregard for either procedural or substantive law; and (5) whether the lower tribunal’s

order raises new and important problems or issues of law of first impression. These factors

are general guidelines that serve as a useful starting point for determining whether a

discretionary writ of prohibition should issue. Although all five factors need not be

satisfied, it is clear that the third factor, the existence of clear error as a matter of law,

should be given substantial weight.’ Syllabus Point 4, State ex rel. Hoover v. Berger, 199



                                               i
W. Va. 12, 483 S.E.2d 12 (1996).” Syllabus point 2, State ex rel. Franklin v. Tatterson,

241 W. Va. 241, 821 S.E.2d 330 (2018).



             3.     “The Fifth Amendment privilege against self-incrimination has been

interpreted to provide protection only where incriminating evidence of a testimonial or

communicative nature is sought from a witness through the vehicle of state compulsion.”

Syllabus point 8, Marano v. Holland, 179 W. Va. 156, 366 S.E.2d 117 (1988).



             4.     A defendant’s Fifth Amendment privilege against self-incrimination

is not violated by the admission into evidence and/or publication to the jury of an

audio/video recording of the defendant’s voluntary statement made to law enforcement

officers.




                                           ii
Jenkins, Justice:

              The petitioner in this original jurisdiction case, Rhonda L. Wade (“Ms.

Wade”), the Marshall County, West Virginia, Prosecuting Attorney, asks this Court to

prohibit the Circuit Court of Marshall County from enforcing a ruling that found an

audio/video recording of a voluntary statement made to law enforcement officers by a

respondent herein, H.D., 1 who is the defendant in the underlying criminal proceeding,

violated H.D.’s privilege against self-incrimination as guaranteed by the Fifth Amendment

to the United States Constitution. The circuit court’s ruling was based upon its finding that

playing the incriminating recording for the jury was commensurate with compelling H.D.

to testify against himself. Ms. Wade argues that, because H.D. was not compelled to give

the statement, but did so voluntarily, it is not a violation of his privilege against self-

incrimination to allow the State to introduce the audio/video recording into evidence,

and/or publish it to the jury, during its case-in-chief. Ms. Wade further asserts that the

circuit court’s contrary ruling misapplies the Fifth Amendment privilege against self-

incrimination. Based upon our review of the parties’ arguments, the amicus brief, 2 the



              1
                 Due to the sexual nature of the crime allegedly committed by H.D., and the
tender age of his victim at the time of his alleged acts, we follow our long standing practice
and use initials to refer to those involved in this case. See W. Va. R. App. P. 40(e)(1)
(restricting use of personal identifiers in cases involving certain sexual crimes or juveniles).
See, e.g., State ex rel. Harvey v. Yoder, 239 W. Va. 781, 782 n.2, 806 S.E.2d 437, 438 n.2
(2017); State v. Potter, 197 W. Va. 734, 737 n.1, 478 S.E.2d 742, 745 n.1 (1996).
              2
                We acknowledge and appreciate the Amicus Curiae brief filed by the Public
Defender Corporation for the Second Judicial Circuit of West Virginia, which was filed in
support of the respondent, Judge David W. Hummel, Jr.

                                               1
appendix record, and the relevant authority, we agree with Ms. Wade. Therefore, we grant

the requested writ of prohibition.



                                             I.

                     FACTUAL AND PROCEDURAL HISTORY

              These facts, as presented by Ms. Wade, are not refuted by H.D.            On

December 12, 2018, H.D. was visited at his home by a Marshall County Deputy Sheriff

who asked if H.D. would be willing to make a statement about allegations that he had

engaged in improper sexual contact with E.D., a child.         Later that same day, H.D.

voluntarily arrived at the Marshall County Sheriff’s Department, where he was shown to

the interview room and advised that he was not under arrest and was free to leave.

Nevertheless, H.D. was read his Miranda rights. 3 He then signed a document stating that

he understood his rights and that he waived all of them. Prior to being interviewed, H.D.

was informed that a video recording of his interview was being made. He was interviewed

by Deputy Doug Sayman and Detective Bear Mobly, both of the Marshall County Sheriff’s




              3
                 See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966). The requirement for advising an individual of his/her Miranda rights arises only
in the context of a custodial interrogation. See State v. George, 185 W. Va. 539, 545, 408
S.E.2d 291, 297 (1991) (“It is clear that in this jurisdiction Miranda warnings are required
only when a suspect has either been formally arrested or subjected to custodial
interrogation.” (quotations and citation omitted)). To the extent that H.D. was not under
arrest and was free to leave, it was not necessary for law enforcement officers to advise
him of his rights. See State v. Farley, 192 W. Va. 247, 255 n.10, 452 S.E.2d 50, 58 n.10
(1994) (“Telling a suspect that he/she is not under arrest and is free to leave usually is
sufficient to prevent a finding of custody[.]”).
                                             2
Department. During the course of the interview, H.D. also prepared a two-page, hand-

written statement. When the interview concluded, H.D. was permitted to leave.



               On December 13, 2018, Deputy Sayman filed a criminal complaint charging

H.D. with sexual abuse by a parent, guardian, custodian, or person in a position of trust,

and with a misdemeanor charge of contributing to the delinquency of a minor. H.D. waived

his right to a preliminary hearing, and, in July 2019, he was indicted by a Marshall County

grand jury on two counts: (1) sexual abuse in the first degree; and (2) sexual abuse by a

parent, guardian, custodian, or person in a position of trust. The State subsequently filed a

motion to dismiss, without prejudice, the charge of sexual abuse in the first degree, which

was granted.



               In preparation for trial on the remaining count of sexual abuse by a parent,

guardian, custodian, or person in a position of trust, the State filed a motion to determine

the voluntariness of H.D.’s interview by law enforcement, the audio/video recording of

which is the subject of the instant petition, as well as his written statement. During the

circuit court’s hearing on the motion, the State presented the testimony of Deputy Sayman

to authenticate three exhibits: (1) the form signed by H.D. on December 12, 2018,

acknowledging and waiving his “Miranda Rights”; (2) the two-page, hand-written

statement prepared by H.D. on the same date; and (3) an audio/video recording of H.D.’s

interview of December 12, 2018, with Deputy Sayman and Detective Mobly. These

exhibits were entered into the circuit court’s record for purposes of the hearing only. At

                                             3
the conclusion of the hearing, the circuit court advised the parties that it would review the

evidence and then issue an order.



              Following the hearing, H.D. filed a motion labeled “Defendant’s Fourth

Motion in Limine” in which he requested that the circuit court “prohibit the showing and/or

listening by the jury [of] any and all portions of the Defendant’s audio and video recorded

statement, and to prohibit the introduction of the Defendant’s written statement at trial.”

In the motion, H.D. argued that introducing the recorded and written statements would be

unduly prejudicial to him because the State will have the opportunity to admit evidence of

his statements through the testimony of law enforcement officers, which would make the

introduction of the statements themselves “cumulative and superfluous.” He additionally

argued that the admission into evidence of the recorded and written statements would

violate his Fifth Amendment right against self-incrimination. He reasoned that, if this

evidence was published to the jury, he would effectively “be compelled to be a witness

against himself.”



              During a pretrial hearing on October 21, 2019, the motion in limine filed by

H.D. was addressed. From the bench, the circuit court announced that it found H.D.’s

statements were given “willingly, knowingly, voluntarily, without coercion, without

duress, and with full knowledge of the consequences.” The court explained that, because

the statement was voluntary, the law enforcement officers would be permitted to testify

about H.D.’s statements. However, the court found that playing the audio/video recording

                                             4
“is a violation of the constitutional right to remain silent.” Therefore, the State would be

permitted to use the recording only for impeachment purposes if H.D. chose to testify. In

its subsequent order, which was entered on October 28, 2019, the circuit court reiterated

that both of H.D.’s statements had been voluntarily given. However, the circuit court

granted H.D.’s motion in limine with respect to the audio/video recording, among

announcing other rulings. 4 The circuit court found that “publishing of the audio/video

statement of [the] Defendant to the jury was [sic] in violation of the Defendant’s 5th

amendment right to not be compelled to give testimony against himself.” It is the

enforcement of this ruling that the State seeks to prohibit.



                                             II.

                       STANDARD FOR ISSUANCE OF WRIT

              In this case, the State seeks to prohibit the circuit court from enforcing the

portion of its order of October 28, 2019, that prevents the State from publishing to the jury

an audio/video recording of a statement voluntarily given by H.D. With respect to the

extraordinary remedy of a writ of prohibition, we have explained that

                      “[p]rohibition lies only to restrain inferior courts from
              proceeding in causes over which they have no jurisdiction, or,
              in which, having jurisdiction, they are exceeding their
              legitimate powers and may not be used as a substitute for [a
              petition for appeal] or certiorari.” Syllabus Point 1, Crawford
              v. Taylor, 138 W. Va. 207, 75 S.E.2d 370 (1953).

              4
               The circuit court’s order of October 28, 2019, contains multiple rulings.
We are asked to prohibit only the ruling granting “Defendant’s Fourth Motion in Limine.”
Accordingly, our decision in this case has no impact on the remainder of the circuit court’s
order.
                                              5
Syl. pt. 1, State ex rel. Franklin v. Tatterson, 241 W. Va. 241, 821 S.E.2d 330 (2018). We

have set out the following test for determining whether to grant a writ of prohibition where,

as here, the circuit court’s ruling is challenged on the basis that the court has exceeded its

legitimate powers:

                      “In determining whether to entertain and issue the writ
              of prohibition for cases not involving an absence of jurisdiction
              but only where it is claimed that the lower tribunal exceeded
              its legitimate powers, this Court will examine five factors: (1)
              whether the party seeking the writ has no other adequate
              means, such as direct appeal, to obtain the desired relief; (2)
              whether the petitioner will be damaged or prejudiced in a way
              that is not correctable on appeal; (3) whether the lower
              tribunal’s order is clearly erroneous as a matter of law; (4)
              whether the lower tribunal’s order is an oft repeated error or
              manifests persistent disregard for either procedural or
              substantive law; and (5) whether the lower tribunal’s order
              raises new and important problems or issues of law of first
              impression. These factors are general guidelines that serve as
              a useful starting point for determining whether a discretionary
              writ of prohibition should issue. Although all five factors need
              not be satisfied, it is clear that the third factor, the existence of
              clear error as a matter of law, should be given substantial
              weight.” Syllabus Point 4, State ex rel. Hoover v. Berger, 199
              W. Va. 12, 483 S.E.2d 12 (1996).

Syl. pt. 2, State ex rel. Franklin v. Tatterson, 241 W. Va. 241, 821 S.E.2d 330.

Furthermore, because we are reviewing an evidentiary ruling by the circuit court, we note

that “‘[a] trial court’s evidentiary rulings, as well as its application of the Rules of

Evidence, are subject to review under an abuse of discretion standard.’ Syl. Pt. 4, State v.

Rodoussakis, 204 W. Va. 58, 511 S.E.2d 469 (1998).” Syl. pt. 11, State v. Wasanyi, 241

W. Va. 220, 821 S.E.2d 1 (2018). This discretionary standard applies even when the

evidentiary ruling affects constitutional rights. See State v. Kaufman, 227 W. Va. 537,


                                               6
548, 711 S.E.2d 607, 618 (2011) (“It is well settled that a trial court’s rulings on the

admissibility of evidence, ‘including those affecting constitutional rights, are reviewed

under an abuse of discretion standard.’” (quoting State v. Marple, 197 W. Va. 47, 51, 475

S.E.2d 47, 51 (1996))). Guided by these standards, we consider Ms. Wade’s petition.



                                           III.

                                     DISCUSSION

              Succinctly stated, the issue presented in this proceeding in prohibition asks

whether a defendant’s Fifth Amendment privilege against self-incrimination is violated by

the admission into evidence and/or publication to the jury of an audio/video recording of a

defendant’s voluntary statement made to law enforcement officers.



              Ms. Wade argues that the circuit court clearly erred as a matter of law by

concluding that the video recording of H.D.’s voluntary statement violated his Fifth

Amendment right against self-incrimination and, therefore, could not be played for the jury

during the State’s case-in-chief. Petitioner Wade contends that this Court’s decision in

State v. Harris, 169 W. Va. 150, 286 S.E.2d 251 (1982), provides the general test for the

admissibility of a tape recorded inculpatory statement, and under Harris, H.D.’s statement

should be admissible during the State’s case-in-chief. 5 Ms. Wade additionally asserts that




              We note that, under Syllabus point 3 of State v. Harris, 169 W. Va. 150,
              5

286 S.E.2d 251 (1982),

                                            7
the State has no other means to obtain relief from the circuit court’s ruling insofar as “the

State has no right of appeal in a criminal case, except as may be conferred by the

Constitution or a statute.” Syl. pt. 1, in part, State v. Jones, 178 W. Va. 627, 363 S.E.2d

513 (1987). H.D. responds that the circuit court did not abuse its discretion in making this

evidentiary ruling, and, therefore, the requested writ of prohibition should be denied.



              The Fifth Amendment to the Constitution of the United States provides, in

relevant part, that no person “shall be compelled in any criminal case to be a witness against

himself[.]” U.S. Const. amend. V. 6 This right is often referred to as the “privilege against




                      [t]he general rule is that tape recorded inculpatory
              statements may be admitted into evidence and played to the
              jury, if they meet the following criteria: (1) A showing that the
              recording device was capable of taking testimony; (2) a
              showing that the operator of the device was competent; (3) an
              establishment of the authenticity and correctness of the
              recording; (4) a showing that changes, additions, or deletions
              have not been made; (5) a showing of the manner of the
              preservation of the recording; (6) an identification of the
              speakers; and (7) a showing that the testimony was voluntarily
              made without any kind of inducement.

This holding pertains to establishing a proper foundation for admitting a recorded statement
and allowing it to be played to the jury. Thus, as H.D. points out in his brief, because the
only issue presently before this Court is whether the Fifth Amendment privilege against
self-incrimination is violated by admitting into evidence a defendant’s recorded voluntary
statement, Harris is not applicable to our resolution of this proceeding.
              6
                Similarly, under the West Virginia Constitution “[n]o person shall . . . in
any criminal case, be compelled to be a witness against himself[.]” W. Va. Const. art. III,
§ 5. However, the circuit court’s order did not rely on the West Virginia Constitution in
finding H.D.’s statement could not be presented to the jury in the State’s case-in-chief, and
H.D.’s “Fourth Motion In Limine,” which sought to exclude his statement on Fifth
                                              8
self-incrimination.” See Quinn v. United States, 349 U.S. 155, 163, 75 S. Ct. 668, 673, 99

L Ed. 964 (1955) (observing that “in popular parlance and even in legal literature, the term

‘Fifth Amendment’ in the context of our time is commonly regarded as being synonymous

with the privilege against self-incrimination”). “The privilege against self-incrimination

‘is an exception to the general principle that the Government has the right to everyone’s

testimony.’” Salinas v. Texas, 570 U.S. 178, 183, 133 S. Ct. 2174, 2179, 186 L. Ed. 2d

376 (2013) (quoting Garner v. United States, 424 U.S. 648, 658 n.11, 96 S. Ct. 1178, 1184

n.11, 47 L. Ed. 2d 370 (1976)).



              Despite the Fifth Amendment, incriminating statements are admissible if

certain conditions have been met. First, the statement must be voluntary. “The Fifth

Amendment privilege against self-incrimination has been interpreted to provide protection

only where incriminating evidence of a testimonial or communicative nature is sought from

a witness through the vehicle of state compulsion.” Syl. pt. 8, Marano v. Holland, 179

W. Va. 156, 366 S.E.2d 117 (1988) (emphasis added).

              As the Supreme Court has phrased it: “[T]he privilege protects
              an accused only from being compelled to testify against
              himself, or otherwise provide the State with evidence of a
              testimonial or communicative nature[.]”        Schmerber v.
              California, 384 U.S. 757, 761, 86 S. Ct. 1826, 1830, 16
              L. Ed. 2d 908, 914 (1966). See also State v. Grubbs, 178
              W. Va. 811, 364 S.E.2d 824 (1987); State v. Harman, 165
              W. Va. 494, 270 S.E.2d 146 (1980).




Amendment grounds, likewise did not mention the West Virginia Constitution.
Accordingly, we address only the Fifth Amendment.
                                             9
Id. at 167, 366 S.E.2d at 128. Additionally, if the statement is given in a custodial setting,

Miranda warnings must be provided. See Waldrop v. Thigpen, 857 F. Supp. 872, 893 (N.D.

Ala. 1994) (“A confession is not admissible unless it is both voluntarily given and, if made

by one in custody, preceded by the prophylactic warnings set out in Miranda v. Arizona,

384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966).”), aff’d sub nom. Waldrop v. Jones,

77 F.3d 1308 (11th Cir. 1996).



              In this case, the circuit court found that H.D.’s statement was voluntary; thus,

under the authorities discussed above, the statement should not be suppressed on Fifth

Amendment grounds. However, the circuit court concluded that playing the audio/video

recording for the jury would effectively require H.D. to testify, and, therefore, the statement

should be suppressed. This reasoning is misplaced. Video recordings have become a

common method of documenting statements made during investigations into criminal

activities. 7 Numerous courts have allowed videotaped statements to be admitted upon



              7
                In fact, and contrary to the position taken by H.D., our research has revealed
that many defendants have argued, unsuccessfully, that a statement that is not recorded
should be deemed inadmissible. See Hodges v. Bezio, No. 09-CV-3402 ENV, 2012 WL
607659, at *7 (E.D.N.Y. Feb. 24, 2012) (finding no constitutional violation from failure to
videotape interrogation, and observing that “that there is no federal constitutional right to
a videotaped interrogation”); United States v. Beard, No. CRIM. 05-50026, 2005 WL
3262545, at *4 (E.D. Mich. Nov. 30, 2005) (refusing the defendant’s request that the court
“find Defendant’s statement inadmissible because the statement was not electronically
recorded,” recognizing that “[t]here is no requirement in the Sixth Circuit that confessions
be recorded,” and further noting that “most jurisdictions do not hold that unrecorded
confessions are presumptively inadmissible”); State v. Lockhart, 4 A.3d 1176, 1184 &
1184 n.7 (Conn. 2010) (rejecting defendant’s claim that Connecticut Constitution requires
police to electronically record custodial interrogations, observing that “[t]he federal Courts
                                              10
finding that the defendant’s Fifth Amendment rights had not been violated at the time the

statement was given. See Commonwealth v. Prater, 651 N.E.2d 833, 839 (Mass. 1995)

(concluding that trial court did not err in admitting videotaped confession, in part, because

the defendant had “knowingly and intelligently waived the constitutional rights protected

by Miranda”); State v. Goforth, 881 S.W.2d 256, 261 (Mo. Ct. App. 1994) (affirming trial

court’s denial of defendant’s motion to suppress a videotaped statement where “the trial

court found Appellant knowingly and intelligently waived his right against self-

incrimination . . . during interrogation”); People v. Robles, 691 N.Y.S.2d 697, 706 (Crim.

Ct. 1999) (finding admission of videotaped statement made while defendant was in police

custody did not violate defendant’s right against self-incrimination, even absent Miranda

warnings, because statements were not the product of interrogation); State v. Ash, 611

S.E.2d 855 (N.C. App. 2005) (upholding trial court’s denial of motion to suppress

videotape of interrogation where defendant failed to clearly and unequivocally assert his

right to remain silent during interrogation); State v. Davidson, 509 S.W.3d 156 (Tenn.

2016) (holding trial court did not err in denying motion to suppress video recording of

defendant’s statement to law enforcement officers where totality of the circumstances

demonstrated that defendant understood his right to remain silent, among others, and he

knowingly and voluntarily relinquished that right).




of Appeal that have considered a similar claim have uniformly rejected it,” and collecting
cases).
                                             11
              Courts look to the time a statement was given to determine whether a

defendant’s Fifth Amendment rights have been violated because “the ‘general rule’ [is]

that a witness must assert the privilege to subsequently benefit from it.” Salinas, 570 U.S.

at 186, 133 S. Ct. at 2181, 186 L. Ed. 2d 376. Applying this rule, the Salinas Court found

that a “[p]etitioner’s Fifth Amendment claim fails because he did not expressly invoke the

privilege against self-incrimination in response to the officer’s question.” Id. at 181, 133

S. Ct. at 2178, 186 L. Ed. 2d 376 (emphasis added). The Court explained that,

              [i]t has long been settled that the privilege [against self-
              incrimination] “generally is not self-executing” and that a
              witness who desires its protection “‘must claim it.’”
              Minnesota v. Murphy, 465 U.S. 420, 425, 427, 104 S. Ct. 1136,
              79 L.Ed.2d 409 (1984) (quoting United States v. Monia, 317
              U.S. 424, 427, 63 S. Ct. 409, 87 L. Ed. 376 (1943)).

Id. See also Minnesota v. Murphy, 465 U.S. 420, 429, 104 S. Ct. 1136, 1143, 79 L. Ed. 2d

409 (1984) (commenting that “[i]f [a witness] asserts the privilege, he ‘may not be required

to answer a question if there is some rational basis for believing that it will incriminate

him, at least without at that time being assured that neither it nor its fruits may be used

against him’ in a subsequent criminal proceeding. . . . But if he chooses to answer, his

choice is considered to be voluntary since he was free to claim the privilege and would

suffer no penalty as the result of his decision to do so.” (second emphasis added) (quoting

Maness v. Meyers, 419 U.S. 449, 473, 95 S. Ct. 584, 598, 42 L. Ed. 2d 574 (1976) (White,

J., concurring in the result))); United States v. Medunjanin, 752 F.3d 576, 587 (2d Cir.

2014) (“[A] person who wishes to enjoy his constitutional protection against self-

incrimination must invoke the privilege–either generally or vis-à-vis a specific question–


                                            12
at the time he is asked to respond or make a statement.” (emphasis added)); State v. Plouffe,

329 P.3d 1255, 1262 (Mont. 2014) (“Generally, [the] right to be free from compelled self-

incrimination must be affirmatively invoked by the person claiming the right at the time of

questioning; if a person fails to invoke the right then the right will be deemed waived.”

(emphasis added)).



              Based upon the foregoing discussion, we now hold that a defendant’s Fifth

Amendment privilege against self-incrimination is not violated by the admission into

evidence and/or publication to the jury of an audio/video recording of the defendant’s

voluntary statement made to law enforcement officers.



              In this case, H.D. was in a non-custodial setting when he made his

incriminating statement. Even though the setting was non-custodial, H.D. nevertheless was

advised of his rights, and he affirmatively waived them. The circuit court reviewed this

evidence and concluded that H.D.’s statement was, indeed, voluntary. H.D. has not

challenged this finding. Because H.D. waived his privilege against self-incrimination and

voluntarily provided the incriminating statement, of which an audio/video recording was

made, he may not now assert the privilege in his criminal proceeding to avoid the admission

into evidence and/or publication to the jury of that recording. The circuit court’s ruling to

the contrary is clearly erroneous as a matter of law. Furthermore, we agree that, because

the State has no right to appeal this issue, it has no other means to obtain relief from the

circuit court’s ruling. Therefore, we grant the requested writ of prohibition.

                                             13
                                            IV.

                                     CONCLUSION

              For the reasons explained in the body of this opinion, we grant the requested

writ and prohibit the Circuit Court of Marshall County from enforcing that portion of its

order, entered on October 28, 2019, that found the audio/video recording of H.D.’s

voluntary statement could not be admitted into evidence and/or published to the jury

because it violated H.D.’s privilege against self-incrimination.



                                                                            Writ Granted.




                                            14
