          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                  September 2014 Term
                                                                  FILED

                                                              October 30, 2014

                                      No. 12-1259
              released at 3:00 p.m.
                                                                RORY L. PERRY II, CLERK
                                                              SUPREME COURT OF APPEALS
                                                                  OF WEST VIRGINIA



                              STATE OF WEST VIRGINIA,

                               Plaintiff Below, Respondent


                                           v.


                          JAMES EVERETT MARCUM,

                           Defendant Below, Petitioner




                   Appeal from the Circuit Court of Wayne County

                     The Honorable James H. Young, Jr., Judge

                           Criminal Action No. 10-F-017


                                      AFFIRMED



                          Submitted: September 17, 2014
                             Filed: October 30, 2014

Dana F. Eddy, Esq.                                   Patrick Morrisey, Esq.
WV Public Defender Service                           Attorney General
Charleston, West Virginia                            Scott E. Johnson, Esq.
Attorney for the Petitioner                          Senior Assistant Attorney General
                                                     Julie Blake, Esq.
                                                     Assistant Attorney General
                                                     Charleston, West Virginia
                                                     Attorney for the Respondent


JUSTICE WORKMAN delivered the Opinion of the Court.
                              SYLLABUS BY THE COURT




              1.     “‘The trial court has wide discretion as to the admission of confessions

and ordinarily this discretion will not be disturbed on review.’ Syllabus point 2, State v.

Lamp, 163 W. Va. 93, 254 S.E.2d 697 (1979).” Syl. Pt. 2, State v. Woods, 169 W. Va. 767,

289 S.E.2d 500 (1982).



              2.     “This Court is constitutionally obligated to give plenary, independent,

and de novo review to the ultimate question of whether a particular confession is voluntary

and whether the lower court applied the correct legal standard in making its determination.

The holdings of prior West Virginia cases suggesting deference in this area continue, but that

deference is limited to factual findings as opposed to legal conclusions.” Syl. Pt. 2, State v.

Farley, 192 W. Va. 247, 452 S.E.2d 50 (1994).



              3.     “The special safeguards outlined in Miranda are not required where a

suspect is simply taken into custody, but rather only where a suspect in custody is subjected

to interrogation. To the extent that language in State v. Preece, 181 W. Va. 633, 383 S.E.2d

815 (1989), and its progeny, may be read to hold differently, such language is expressly

overruled.” Syl. Pt. 8, State v. Guthrie, 205 W. Va. 326, 518 S.E.2d 83 (1999).




                                               i
              4.      “‘The 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.’


Syllabus point 5, State v. Starr, 158 W. Va. 905, 216 S.E.2d 242 (1975).” Syl. Pt. 1, State v.


Woods, 169 W. Va. 767, 289 S.E.2d 500 (1982).




              5.      “To safeguard the integrity of its proceedings and to insure the proper


administration of justice, a circuit court has inherent authority to conduct and control matters


before it in a fair and orderly fashion.” Syl. Pt. 2, State v. Fields, 225 W. Va. 753, 696


S.E.2d 269 (2010).





                                               ii

Workman, Justice:



              This case is before the Court upon the appeal of the Petitioner, James Marcum,

from the September 14, 2012, Order re-sentencing1 the Petitioner to a determinate term of

forty years in prison following his jury conviction for second degree murder. The Petitioner

argues that the circuit court erred: 1) in the manner it conducted the suppression hearing, by

shifting the burden to the Petitioner and requiring him to put on evidence first in order to

make a showing that would trigger the State’s rebuttal of the Petitioner’s suppression

grounds; and, 2) in finding that the Petitioner’s statement to police was voluntarily given.

Based upon a review of the parties’ briefs and oral arguments, the appendix record, and all

other matters before the Court, we affirm the trial court’s decision.



                                          I. Facts

              On December 9, 2009, the Petitioner and his cousin, Jim Ward, were together

at Mr. Ward’s home in Wayne County, West Virginia. The two men had been drinking and

both were intoxicated. They got into an altercation, which evolved into Mr. Ward stabbing

the Petitioner twice with a bayonet. The Petitioner, in turn, got the bayonet from Mr. Ward

and stabbed his cousin in the back three times, killing him.


       1
        The Petitioner was originally sentenced on August 26, 2011, following his jury
conviction on July 29, 2011. The Petitioner was re-sentenced on September 14, 2012, for
appellate purposes.

                                              1

                 The Petitioner was taken to Three Rivers Medical Center in Louisa, Kentucky,

for treatment of his injuries. He underwent surgery and received pain medicine.2



                 Trooper R. J. Drake of the West Virginia State Police3 went to the medical

center to interview the Petitioner as part of his investigation into Mr. Ward’s murder. Shortly

after midnight on December 10, 2009, Trooper Drake took a statement from the Petitioner.

The interview lasted about thirty minutes and was videotaped. During this time, Trooper

Drake informed the Petitioner that the officer was outside his jurisdiction, that he was not

arresting the Petitioner, that he was not fully aware of what was going on, although he knew

that Mr. Ward was dead, that criminal charges may be pending, and that the Petitioner may

be arrested in the near future for murder. Trooper Drake also confirmed that the Petitioner

could read and understood English. Trooper Drake gave the Petitioner his Miranda4 rights

and confirmed with the Petitioner that he understood those rights. The officer then asked the

Petitioner to sign a waiver of Miranda form.



                 The Petitioner gave Trooper Drake a statement about the events leading up to

his cousin’s death. The Petitioner stated that both he and his cousin had been drinking. The



       2
           According to the record, the Petitioner was taking Demerol and Percocet for his pain.

       3
           Trooper Drake was accompanied by another state trooper.

       4
           See Miranda v. Arizona, 384 U.S. 436 (1966).


                                                 2

two argued about money. The Petitioner stated that his cousin, Mr. Ward, got up and pulled

“a big sword5” out of the case and told the Petitioner that he was going to kill him. The

Petitioner stated that Mr. Ward stabbed him two times. The Petitioner stated that he grabbed

the sword by the blade and the next thing he knew Mr. Ward was down and the Petitioner

“must have hit him.” The Petitioner stated he must have hit Mr. Ward “two or three” times

to get him off the Petitioner. The Petitioner could not remember where he had struck his

cousin.



                  The Petitioner was indicted by a grand jury for the murder of Mr. Ward on

March 2, 2010. The Petitioner moved to suppress his videotaped statement that he gave to

Trooper Drake. In the motion, the Petitioner admitted that he was not under arrest at the time

the statement was made and that he signed a waiver of rights form. Nonetheless, the

Petitioner contended that “he was under the influence of medications which rendered him

incapable of voluntarily and knowingly waiving his constitutional right to remain silent and

to be represented by an attorney at this critical stage of the criminal investigation against

him.”



                  On October 4, 2010, the trial court held a suppression hearing regarding the

Petitioner’s statement. During the hearing, the Petitioner’s counsel conceded that his motion


        5
            The sword was later identified as a bayonet.

                                                3

was not predicated upon the Petitioner not receiving his Miranda warnings, as the Petitioner

stated that he had signed a Miranda form, referring to the waiver signed by the Petitioner.

Additionally, the Petitioner’s counsel also conceded that the motion was not based upon any

coercion or threats as he stated:

              I think the officers were there to take a statement from him and
              didn’t do anything wrong. It’s just that under the circumstances,
              with his hospital condition, having just gone through surgery,
              having been on pain medication for the entire day, we feel that
              that raises an issue as to whether his statement was knowing,
              whether he knew the rights that he was waiving in light of all
              the medication that he was . . . undergoing at the time.

The Petitioner, however, argued that “it’s the state’s burden to establish that the statement

in this case, which was given by Mr. Marcum in his hospital room after his surgery, was a

knowing and voluntary waiver.” The trial court responded: “I think you have to raise the

issue, what it is. I think you have to put something on, whether it’s – you have to make the

issue – raise the issue. I don’t think you have the burden, but I do think you have to raise

which issues we’re talking about. Is it knowing? Is it voluntary? Is it both?” The

Petitioner’s counsel countered: “Okay. That’s fair.”



              In seeking to ascertain exactly what issue the Petitioner sought to have resolved

regarding the statement he gave to police in light of the concessions made, the trial court

found that the Petitioner was raising a “knowing issue and understanding issue,” and that

essentially “I think what you’re saying is either his medical state made him in such a position


                                              4

that he did not understand, know what he was signing or know the statement that he was

giving.” The Petitioner’s counsel agreed with the circuit court’s assessment of the motion

to suppress. The Petitioner’s counsel then stated: “Then let’s swear [in] . . . Mr. Marcum .

. . .”



              The Petitioner testified that he was in pain and did not feel like he “was all

there” or was “groggy.” Despite this feeling, however, the Petitioner stated that he

remembered the officers coming to get a statement from him. When he gave the statement,

he remembered being informed of his Miranda rights and he remembered signing the

Miranda rights waiver form. He also stated that he agreed to give the statement and

understood that he could stop the statement at any time, but did not choose to do so. He

testified that he gave the officer his side of the story. He further stated that he did not have

any trouble reading and writing. The Petitioner also testified that the officers did not threaten

or coerce him. The Petitioner, however, stated that he did not know that he was waiving his

constitutional rights when he initialed the form and signed his name.



              After the Petitioner testified, the trial court found that “I think his testimony

has raised some issues, at least on the knowing and the more narrow issue, his saying that it

may have – that the medication may have reduced his voluntariness to provide the

statement.” The trial court then allowed the State to put on evidence regarding this issue.


                                               5

Trooper Drake testified that the Petitioner appeared to be coherent and understood the

questions he asked. According to the trooper, the Petitioner responded in an appropriate

manner to the questions. Further, after he gave the statement, he was asked to go over the

statement again and the Petitioner recited his statement a second time in a manner consistent

with the first time.



                 By order entered October 21, 2010, the trial court denied the motion to

suppress. The court determined that the statement “given by the Defendant was voluntarily

and knowingly given after the Defendant intelligently and knowingly waived his

constitutional rights.” The issue came up again on July 29, 201l, during the jury instruction

conference. The Petitioner offered an instruction concerning the jury’s consideration of

whether the statement was freely and voluntarily given.6 The circuit court, in reviewing the


       6
           The proposed instruction that was given to the jury was as follows:

                         The Court has admitted into evidence a statement made
                 by Mr. Marcum to police officers. If you believe by a
                 preponderance of the evidence that this statement was made by
                 the Defendant freely and voluntarily, as assessed under the
                 totality of the surrounding circumstances, both the
                 circumstances of the Defendant and the details of the
                 interrogation, then you may consider such statement as part of
                 the evidence in the case and you may give it such weight and
                 take part of such statement – such weight and credit, as you may
                 believe or disbelieve all or any parts of such statements.
                 However, if you do not believe that the statement was freely and
                 voluntarily made to the police officers, then you may reject the
                                                                                    (continued...)

                                                6

instruction, stated “I thought the standard was you had to raise it [referring to the issue of

voluntariness]. The circuit court then stated: “I agree with you my understanding of the law

was wrong. I don’t know that you would have had to put him [referring to the Petitioner] on,

and I would have given this instruction whether you would have put him on or not.” There

was no other issue or objection raised by the Petitioner at this time regarding the manner in

which the trial court had conducted the suppression hearing.



                 On August 29, 2011, at the conclusion of all the evidence, the jury convicted

the Petitioner of second degree murder. The Petitioner was sentenced to a determinate term

of forty years in prison and now appeals.



                                      II. Standard of Review

                 This Court previously has held that “‘[t]he trial court has wide discretion as to

the admission of confessions and ordinarily this discretion will not be disturbed on review.’

Syllabus point 2, State v. Lamp, 163 W. Va. 93, 254 S.E.2d 697 (1979).” Syl. Pt. 2, State v.

Woods, 169 W. Va. 767, 289 S.E.2d 500 (1982). We, however, also held in syllabus point

two of State v. Farley, 192 W. Va. 247, 452 S.E.2d 50 (1994), that

                       [t]his Court is constitutionally obligated to give plenary,
                 independent, and de novo review to the ultimate question of


       6
           (...continued)

                  statement from any consideration.


                                                 7

              whether a particular confession is voluntary and whether the
              lower court applied the correct legal standard in making its
              determination. The holdings of prior West Virginia cases
              suggesting deference in this area continue, but that deference is
              limited to factual findings as opposed to legal conclusions.

Keeping the foregoing standards of review in mind, we examine the issues raised by the

Petitioner concerning the admission of his statement.



                                        III. Analysis

              The Petitioner argues that the trial court erred in the manner it conducted the

suppression hearing concerning his videotaped statement. The Petitioner maintains that the

trial court erroneously shifted the burden of proof to him to proceed first and produce

evidence showing that the statement was not voluntary.       As the Petitioner argues, “the

defendant was required to shoulder the burden to obtain the right to have a suppression

hearing, and[] the State thereby gained the advantage of being able to cross-examine the

defendant without showing first his statement was voluntary.” Conversely, the Respondent

argues that the Petitioner never objected to the procedure put in place by the circuit court

regarding the suppression hearing.



              It is well-established law that

                     [t]he special safeguards outlined in Miranda are not
              required where a suspect is simply taken into custody, but rather
              only where a suspect in custody is subjected to interrogation. To
              the extent that language in State v. Preece, 181 W. Va. 633, 383

                                                8

              S.E.2d 815 (1989), and its progeny, may be read to hold
              differently, such language is expressly overruled.

Syl. Pt. 8, State v. Guthrie, 205 W. Va. 326, 518 S.E.2d 83 (1999). “Miranda rights are not

triggered unless there is custody[.]” Farley, 192 W. Va. at 254 n.10, 452 S.E.2d at 57 n.10

(citing State v. George, 185 W. Va. 539, 408 S.E.2d 291 (1991)).



              In this case, the Petitioner conceded in his motion to suppress and during the

hearing on that motion that he was not in custody at the time he gave a statement. The

safeguards outlined in Miranda, therefore, were not required and whether the Petitioner

waived his Miranda rights is not an issue. See id. Further, notwithstanding the Petitioner

not being taken into custody, he admitted that the state trooper had given him his Miranda

warning and that the Petitioner had signed a waiver of rights form. Finally, the Petitioner

admitted, prior to any request for evidence by the trial court, that the Petitioner was not

coerced and that the state police officers did nothing improper.



              Our law is well-established that

                     “‘[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.’ Syllabus point 5, State v. Starr, 158 W. Va. 905, 216
              S.E.2d 242 (1975).”

Woods, 169 W. Va. at 767, 289 S.E.2d at 501, Syl. Pt. 1. We, however, also have enunciated


                                             9

the following law in syllabus point two of State v. Potter, 197 W. Va. 734, 478 S.E.2d 742

(1996) that

                      [w]hen a suspect willingly goes to the police station for
               questioning at the request of the investigating officer, and the
               suspect responds that he or she wishes to give a statement
               despite the officer’s warnings regarding the severity of the
               allegations against the suspect, such statement is admissible as
               a voluntary confession, unless the suspect can show that he or
               she was in custody or that the statement was not voluntary.

(Emphasis added).



               Additionally, under West Virginia Rule Evidence 611, “[t]he court shall

exercise reasonable control over the mode and order of interrogating witnesses and

presenting evidence so as to (1) make the interrogation and presentation effective for the

ascertainment of the truth . . . .” This Court also held in syllabus point two of State v. Fields,

225 W. Va. 753, 696 S.E.2d 269 (2010), “[t]o safeguard the integrity of its proceedings and

to insure the proper administration of justice, a circuit court has inherent authority to conduct

and control matters before it in a fair and orderly fashion.”



               Our review of the record reveals that the sole issue before the trial court during

the suppression hearing was whether the Petitioner’s voluntariness in giving the statement

was impacted by the medications that he was taking at the time he spoke with Trooper Drake.

The circuit court required the Petitioner to produce some evidence on the issue he raised in


                                               10

his motion, prior to requiring the State to produce its evidence of voluntariness. In light of

the Petitioner’s concessions that he was not in custody, had signed a waiver of his Miranda

rights, had not been coerced, and that the state police had done nothing wrong, the circuit

court had the right under Rule 611 to change the order of production of the evidence. The

circuit court did not alter the burden of proof, it merely required the Petitioner to go first in

producing evidence regarding how the medications made him incapable of voluntarily and

knowingly waiving his constitutional right to remain silent. Even if the State had produced

its evidence first at the suppression hearing, the Petitioner would still have had to offer

evidence to show that he did not remember giving the statement, that the statement was not

knowingly given or that the statement was not voluntary. See Potter, 197 W. Va. at 734, 478

S.E.2d at 742. Moreover, the Petitioner did not challenge the procedure used by the trial

court or object to the circuit court “requiring” him to testify. As the record indicates, the trial

court did not require the Petitioner to testify, rather, it was the Petitioner’s counsel who called

the Petitioner to testify during the hearing. We have often stated that “[g]enerally the failure

to object constitutes a waiver of the right to raise the matter on appeal.” State v. Asbury, 187

W. Va. 87, 91, 415 S.E.2d 891, 895 (1992); see also Syl. Pt. 1, in part, Mowery v. Hitt, 155

W. Va. 103, 181 S.E.2d 334 (1971) (“[T]his Court will not decide nonjurisdictional questions

which were not considered and decided by the court from which the appeal has been taken.”).



               The Petitioner’s second assignment of error is that the circuit court erred in


                                                11

finding that his statement was voluntarily given to the police. The Respondent argues that

the State proved by a preponderance of the evidence that the statement was admissible.



              This Court stated in Potter:

                      Where the question on appeal is whether a confession
              admitted at trial was voluntary and in compliance with Miranda
              with respect to issues of underlying or historic facts, a trial
              court’s findings, if supported in the record, are entitled to this
              Court’s deference. However, there is an independent appellate
              determination of the ultimate question as to whether, under the
              totality of the circumstances, the challenged confession was
              obtained in a manner compatible with the requirements of
              Miranda and the United States and West Virginia Constitutions.

197 W. Va. at 741, 478 S.E.2d at 749.



              Reviewing the record in this case, we find that the circuit court correctly

determined that the Petitioner’s statement was voluntary. The circuit court found that the

Petitioner testified that he recalled making the statement to Trooper Drake, even though the

Petitioner was in the hospital and receiving pain medication. The circuit court found that the

Petitioner never asserted that he did not understand his rights. Further, the Petitioner

admitted that the statement did not result from any form of coercion. The circuit court also

found that one of the troopers, who was present when the Petitioner gave his statement,

testified that the Petitioner appeared to understand the questions and answers contained

within the statement. Finally, the circuit court viewed the videotape of the Petitioner’s


                                             12

statement and found that “during the videotaped statement, the Defendant appeared to

understand the questions and answers given.” Under these circumstances, we conclude that

the circuit court did not err in admitting the Petitioner’s statement into evidence.



                                      IV. Conclusion

               Based upon the foregoing, the decision of the Circuit Court of Wayne County

is affirmed.

                                                                                       Affirmed.




                                             13

