                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


State of West Virginia,                                                           FILED
Plaintiff Below, Respondent
                                                                              January 9, 2017
                                                                               RORY L. PERRY II, CLERK
vs) No. 16-0086 (Mercer County 15-F-90-OA)                                   SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
Nathaniel Showalter,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
       Petitioner Nathaniel Showalter, by counsel Ward Morgan, appeals the June 12, 2015,
order of the Circuit Court of Mercer County denying petitioner’s motion to suppress his
confession to the police first-degree robbery. Respondent State of West Virginia, by counsel
Zachary Aaron Viglianco, filed a response in support of the circuit court’s order. Petitioner filed
a reply. On appeal, petitioner alleges that the circuit court erred in denying his motion to
suppress his confession.

       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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        In June of 2014, petitioner was arrested for possession of a controlled substance with
intent to deliver. The magistrate court set petitioner’s bond in the amount of $10,000.00. Unable
to post bond, petitioner was remanded to the Southern Regional Jail. While being held on only
the possession charge, Detective Adams of the Bluefield Police Department interviewed
petitioner regarding an unrelated bank robbery. Prior to the interview, Det. Adams thoroughly
explained petitioner’s rights to him pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,
16 L.E.2d 694 (1966). Subsequently, petitioner signed a Miranda rights waiver form prior to
giving a recorded statement to Det. Adams wherein he confessed to the bank robbery of First
Community Bank.

       In February of 2015, a Mercer County grand jury indicted petitioner on one count of first-
degree robbery and the unrelated count of delivery of a controlled substance.

        Petitioner filed a motion to suppress his statement regarding the bank robbery to Det.
Adams. On June 11, 2015, the circuit court held a hearing on the motion to suppress. Det.
Adams’ testimony revealed that he Mirandized petitioner and that petitioner signed a Miranda
rights waiver form prior to giving his statement; that Det. Adams advised petitioner that he did

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not have to speak to him; and that petitioner’s statement corroborated facts of the robbery,
including his description of the pellet gun used during the commission of the offense, the black
clothing worn, and the direction in which he fled following the crime. On cross-examination,
Det. Adams admitted that petitioner did not, at the time of the confession, have an attorney
appointed to represent him on the robbery charge, but that petitioner was instructed prior to the
interview that he could speak to an attorney. Det. Adams also acknowledged that despite the fact
that the DNA test results had yet to be completed, certain DNA evidence linked petitioner to the
robbery. Thereafter, petitioner testified that while he confessed to the robbery, his confession
was coached, that Det. Adams promised to get his drug charge dismissed, that he would be
placed in the Anthony Center following sentencing, and threatened to “jail” everyone in
petitioner’s grandmother’s home. After considering the testimony, the circuit court denied
petitioner’s motion to suppress his confession finding that he was properly Mirandized prior to
giving his confession to Det. Adams, and “that the confession was voluntary and not the product
of duress or coercion by law enforcement.” The circuit court further found petitioner’s testimony
regarding Det. Adams’ alleged promise to get petitioner’s drug charge dismissed or to have him
placed at the Anthony Center to be “incredible.” The circuit court also appropriately considered
and rejected petitioner’s stance that his low intelligence affected his ability to provide a
voluntary statement.1

        Following a two-day jury trial, petitioner was convicted of one count of first-degree
robbery. Subsequently, the circuit court sentenced petitioner to a term of incarceration of sixty
years. Petitioner filed a Motion for Reduction of Sentence pursuant to Rule 35(b) of the West
Virginia Rules of Criminal Procedure arguing that he should receive an alternative sentence.
Ultimately, the circuit court denied petitioner’s motion by order entered on December 29, 2015.
This appeal followed.

        On appeal, petitioner argues that the circuit court erred in denying his motion to suppress
his statement to Det. Adams because it was obtained through the use of threats and implied
promises of leniency as noted during his testimony at the hearing.

       This Court has held 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, 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.”

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          Petitioner’s psychological evaluation, conducted on December 8, 2014, concluded that
petitioner was “competent to stand trial” and that he “lacked any mental disease or defect to the
extent that he lacked substantial capacity to appreciate the criminality of his conduct or conform .
. . to the requirements of the law.” A second psychological evaluation completed on November
23, 2015, concluded that, while petitioner scored within the “Low Average to Borderline range
of intelligence,” petitioner “did not reveal any impairment that would impact his competency to
stand trial or criminal responsibility.”
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       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). Moreover,

       [b]y employing a two-tier standard, we first review a circuit court’s findings of
       fact when ruling on a motion to suppress evidence under the clearly erroneous
       standard. Second, we review de novo questions of law and the circuit court’s
       ultimate conclusion as to the constitutionality of the law enforcement action.
       Under the clearly erroneous standard, a circuit court’s decision ordinarily will be
       affirmed unless it is unsupported by substantial evidence; based on an erroneous
       interpretation of applicable law; or, in light of the entire record, this Court is left
       with a firm and definite conviction that a mistake has been made. See State v.
       Stuart, 192 W.Va. 428, 452 S.E.2d 886, 891 (1994). When we review the denial
       of a motion to suppress, we consider the evidence in the light most favorable to
       the prosecution.

State v. Lilly, 194 W.Va. 595, 600, 461 S.E.2d 101, 106 (1995). Upon consideration of the above
standard of review, this Court finds no error in the circuit court’s denial of petitioner’s motion to
suppress his statement. Petitioner voluntarily spoke with Det. Adams, and his confession was not
obtained illegally or involuntarily. This Court has stated that

              It is the mandatory duty of a trial court, whether requested or not, to hear
       the evidence and determine in the first instance, out of the presence of the jury,
       the voluntariness of an oral or written confession by an accused person prior to
       admitting the same into evidence.

Syl. Pt. 2, State v. Black, 227 W.Va. 297, 708 S.E.2d 491 (2010) (internal citations omitted).
Moreover, “[t]he State must prove, at least by a preponderance of the evidence, that confessions
or statements of an accused which amount to admissions of part or all of an offense were
voluntary before such may be admitted into the evidence of a criminal case.” Syl. Pt. 10, State v.
Keesecker, 222 W.Va. 139, 663 S.E.2d 593 (2008) (citations omitted). “Whether 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. 4, State v. Jones, 220
W.Va. 214, 640 S.E.2d 564 (2006) (citations omitted).

       In examining the totality of the circumstances, a court must consider a myriad of
       factors, including the defendant’s age, intelligence, background and experience
       with the criminal justice system, the purpose and flagrancy of any police
       misconduct, and the length of the interview. State v. Sugg, 193 W.Va. 388, 456
       S.E.2d 469 (1995).

State v. Bradshaw, 193 W.Va. 519, 527, 457 S.E.2d 456, 464 (1995).

        In the present case, it is clear that petitioner’s confession was voluntary and not obtained
as a result of coercive police activity. The interview was only approximately ten minutes long,
conducted by only one officer, and petitioner affirmatively waived his Miranda rights before

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giving the confession which was corroborated by the facts of the bank robbery including
petitioner’s description of the pellet gun, the black clothing he wore, and the direction in which
he fled following the robbery. Furthermore, the circuit court considered the December 8, 2014,
psychological evaluation which indicated that petitioner had sufficient mental capacity to “assist
in the preparation of his defense” and did not suffer “from a mental disease to the extent that he
lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct
to the requirements of the law.”

         In regard to petitioner’s claim that Det. Adams made promises of leniency in exchange
for a confession, this Court has stated that “[r]epresentations or promises made to a defendant by
one in authority do not necessarily invalidate a subsequent confession. In determining the
voluntariness of a confession, the trial court must assess the totality of all the surrounding
circumstances. No one factor is determinative.” Syl. Pt. 7, in part, State v. Farley, 192 W.Va.
247, 452 S.E.2d 50 (1994). After considering the testimony during the suppression hearing, the
circuit court clearly found that petitioner’s testimony regarding law enforcements promise to
dismiss his drug charge or placement at the Anthony Center to be “incredible.” We have
previously held that “[a] reviewing court cannot assess witness credibility through a record. The
trier of fact is uniquely situated to make such determinations and this Court is not in a position
to, and will not, second guess such determinations.” Michael D.C. v. Wanda L.C., 201 W.Va.
381, 388, 497 S.E.2d 531, 538 (1997). Indeed, this Court has explained that “a trial court’s
credibility determinations are entitled to special deference.” Bartles v. Hinkle, 196 W.Va. 381,
389, 472 S.E.2d 827, 835 (1996). Furthermore, the circuit court was aware of the circumstances
in which Det. Adams questioned petitioner, that petitioner signed a Miranda rights waiver form
before giving his confession, and the brevity of the interview. For these reasons, we find no error
in the denial of the motion to suppress.

       For the foregoing reasons, we affirm.

                                                                                        Affirmed.

ISSUED: January 9, 2017

CONCURRED IN BY:

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




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