The opinion
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia,
Plaintiff Below, Respondent FILED
vs.) No. 19-1024 (Mercer County 18-F-148-WS) March 23, 2021
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
Roger Lee Lemons, Jr., OF WEST VIRGINIA
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Roger Lee Lemons, Jr., by counsel David B. Kelley, appeals from the Circuit
Court of Mercer County’s August 9, 2019, order memorializing the jury verdict and the circuit
court’s October 8, 2019, order denying his motion for a new trial. The State of West Virginia, by
counsel Andrea Nease Proper, filed a response in support of the circuit court’s orders.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,
a memorandum decision affirming the order of the circuit court is appropriate under Rule 21 of
the Rules of Appellate Procedure.
On December 23, 2017, Angela Seal obtained an emergency domestic violence protective
order (“DVP”) against petitioner, her boyfriend, noting that he had threatened to strangle her.
Petitioner, who had been living with Ms. Seal, was served with the DVP on that same day, and he
was escorted out of the apartment by law enforcement.
On December 24, 2017, Ms. Seal’s cousin could not reach her by phone. Ms. Seal’s cousin
went to Ms. Seal’s residence the following day. Upon his arrival, the cousin discovered Ms. Seal’s
body and reported his findings to the police. Responding officers from the West Virginia State
Police (“WVSP”) came to the residence to secure the scene. The medical examiner also came to
the scene and transported Ms. Seal’s body to Princeton Community Hospital for further
examination. 1
1
When the medical examiner discovered a number of stab wounds to Ms. Seal’s neck, he
alerted the WVSP of his findings so that they could photograph the wounds.
1
In addition to the WVSP, the Princeton Police Department also responded to the scene.
Officers from both departments conducted a search of the residence and the surrounding areas,
including the alleyway behind the residence. During their investigation, officers uncovered a knife
handle and a blade that fit the handle, Ms. Seal’s keys, and the remains of Ms. Seal’s cell phone,
which were scattered in the alley behind the residence. The investigating officers also spoke with
a neighbor who saw petitioner at the residence after he was served with the DVP.
Petitioner voluntarily went to the police department on Christmas Day. After being given
his Miranda warnings, 2 he gave a statement to the officers and allowed the officers to view the
contents of his cell phone. Petitioner did not volunteer any information relevant to the murder
investigation and was not detained or under arrest at that time.
Petitioner was arrested the following day, on December 26, 2017, on several charges,
including outstanding warrants for public intoxication, failure to pay a child support obligation,
and violation of the DVP obtained by Ms. Seal. After he was arrested, he was not processed
immediately, but instead was held until the lead investigator returned to the police department.
Before petitioner received any Miranda warnings on December 26, 2017, he made several
statements which are at issue on appeal as to his DNA being on the victim’s keys and on the murder
weapon. The lead investigator asked petitioner to submit to a cheek swab and fingernail scraping,
and petitioner consented.
Petitioner was indicted on June 12, 2018, on one count of violation of a protective order,
one count of strangulation, and one count of first-degree murder. Petitioner moved to sever the
DVP violation from the remaining counts, arguing that evidence from this count would be
prejudicial to petitioner if it was not severed from the other counts. The court denied petitioner’s
motion to sever reasoning that “I think in the murder case [the State is] entitled to get into that as
part of the motive.”
Petitioner also filed motions to exclude or suppress evidence, and several hearings were
held on the suppression issues. First, petitioner moved to exclude information obtained from his
cell phone, arguing that the phone was searched without his permission and then seized, making
the information that was later obtained pursuant to a search warrant the fruit of the poisonous tree,
due to the initial illegal search. Petitioner maintained that the officers did not know that there was
any evidence on the phone that was at risk of being destroyed.
At a hearing on October 19, 2018, Detective Butler from the WVSP testified that he seized
petitioner’s cell phone to prevent the destruction of evidence due to exigent circumstances after
petitioner voluntarily gave him the phone to review because petitioner was a prime suspect in the
murder investigation. Another officer testified that petitioner allowed them to review the contents
of the phone and noted that all call logs and all but one text message had been deleted. The officer
testified that he seized the phone to prevent the destruction of further evidence on December 25,
2017. Although petitioner had allowed the investigating officers to view his phone, he did not
agree to the seizure of the phone. However, the phone was not formally searched until after a
search warrant was obtained.
2
See Miranda v. Arizona, 384 U.S. 436 (1966).
2
Petitioner also moved to exclude statements that he made to the investigating officers due
to the prompt presentment rule. He maintained that he was kept in custody for several hours while
the officers were attempting to obtain a confession from him, despite the fact that he had requested
an attorney. The State argued that for the prompt presentment rule to apply, the purpose of the
delay had to be to obtain a statement, which did not occur in this case. Specifically, when petitioner
gave Detective Butler permission to obtain a DNA swab, the officer told petitioner that Ms. Seal’s
keys were found to which petitioner responded that his DNA would be on the keys because he also
used them. 3 Also, Detective Butler told petitioner that the murder weapon was found, to which
petitioner replied that his DNA would be all over Ms. Seal’s knives, although petitioner had not
been told that the murder weapon was a knife. The officer testified that he was not asking petitioner
questions but was responding to petitioner’s questions about the investigation. Petitioner
maintained that although the officer was not technically asking him questions, he was offering
details of the investigation and eliciting responses, which is the same thing.
When the circuit court examined the suppression issue, it found that because petitioner was
clearly in custody on December 26th, the issue was whether petitioner was interrogated. After
thoroughly considering the testimony, the court found that petitioner was not being interrogated
by the officer at the time that he gave his statements and therefore he did not require a Miranda
warning. Additionally, the circuit court examined petitioner’s prompt presentment argument and
found that petitioner was arrested in the early morning but was not presented to the magistrate until
the evening. However, the court found that the primary reason for the delay in presentment was
not to obtain a statement, as Detective Butler did not question petitioner. Thus, the circuit court
found there was no prompt presentment violation.
Petitioner’s case was tried to a jury in August of 2019. He was convicted of second-degree
murder and violation of a protective order; the resulting order was entered on August 9, 2019. On
September 9, 2019, he filed a motion for judgment of acquittal notwithstanding verdict and/or new
trial. This motion was denied by order entered on October 8, 2019. Petitioner appeals from these
orders.
On appeal, petitioner raises multiple assignments of error. He argues that the circuit court
erred when it made several evidentiary rulings. Initially, he alleges that the circuit court erred when
it admitted his cell phone information and records, his statement to police, and prejudicial
assumptions made by witnesses. Next, petitioner argues that the circuit court erred when it denied
his motion to sever the offense of violation of a protective order from the other charges in the
indictment. Further, he claims that there was insufficient evidence presented to the jury to justify
his second-degree murder conviction. Finally, he contends that the circuit court erred in denying
his motion for a new trial. We will address these issues in turn.
On appeal, petitioner claims that the circuit court erred when it admitted testimony and
evidence concerning his cell phone at the trial of this matter. Petitioner concedes that he allowed
the officers to review his phone but contends that he did not authorize the officers to seize the
3
Petitioner also moved to suppress this DNA evidence arguing that it was obtained by
duress, noting he was refused food and water but told officers he would consent to a DNA swab if
he could get food and be allowed to smoke.
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phone. Thus, he argues that “[a]ny and all evidence obtained from [petitioner’s] cell phone
including, but not limited to, call logs, text messages, tracking [petitioner’s] movements via third-
party cell towers, any opinions or testimony by any and all police officers as to information being
deleted from the cell phone, and all other information recovered from the cell phone should have
been excluded.”
We have stated 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).
We recently addressed the seizure of a phone in State v. Deem, __ W. Va. __, 849 S.E.2d
918 (2020). In Deem, unlike the present case, petitioner refused to give officers the phone when
they asked. However, this case is analogous to Deem in that both petitioner and Mr. Deem sought
return of the phone. The officers in Deem believed that seizure of the phone was necessary to
prevent destruction of potential evidence. On appeal, we found that exigent circumstances existed
that would lead a reasonable, experienced officer to believe that the warrantless seizure of the cell
phone was necessary to prevent the destruction of or damage to potential evidence within. Id. at
927. As we set forth in Deem,
[e]xigent circumstances “may exist . . . when police reasonably believe [that] quick
action is necessary to prevent the destruction of potential evidence . . . .” “The test
for the existence of exigent circumstances is whether the facts would lead a
reasonable, experienced police officer to believe the evidence might be destroyed
or removed before a warrant could be secured.” “The existence of a reasonable
belief should be analyzed from the perspective of the police officers at the scene;
an inquiring court should not ask what the police could have done but whether they
had, at the time, a reasonable belief that there was a need to act without a warrant.”
Ultimately, the test for exigent circumstances is an objective one based on the
totality of the circumstances.
__ W. Va. at __, 849 S.E.2d at 924 (footnotes and citations omitted) (emphasis in original).
When petitioner allowed the investigating officers to view his phone, they found that all
call logs and all but one text message had been deleted. Considering that petitioner was a suspect
in Ms. Seal’s murder – where he was the victim’s boyfriend, he had a DVP filed against him by
the victim a few days earlier, and he was seen at the victim’s residence after he was barred from
the premises by the DVP – the police immediately feared that petitioner had or was attempting to
destroy evidence. Here, the facts and circumstances supported probable cause. Thus, akin to Deem,
and viewing the circuit court’s ruling from the perspective of the police officers at the scene, it
appears that exigent circumstances existed to act without a warrant. Since seizure of the phone was
appropriate, this assignment of error fails.
Next, petitioner argues that the circuit court erred when it admitted certain statements, that
could have been interpreted as self-incriminating, to police following his arrest on December 26,
2017, when he was not given a renewed Miranda warning. He asserts that the prompt presentment
rule was violated. Further, he claims that his statements were obtained by duress and taken in
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violation of his Fifth Amendment right against self-incrimination. The State maintains that the
delay in presentment was reasonable and that the purpose of any delay was not to obtain a
confession from the defendant. We agree with the State.
Prompt presentment is a statutory rule:
An officer making an arrest under a warrant issued upon a complaint, or any person
making an arrest under a warrant issued upon a complaint, or any person making
an arrest without a warrant for an offense committed in his presence or as otherwise
authorized by law, shall take the arrested person without unnecessary delay before
a magistrate of the county where the arrest is made.
W. Va. Code § 62-1-5(a)(1) (1997). West Virginia’s prompt presentment rule “is triggered when
an accused is placed under arrest,” or “once a defendant is in police custody with sufficient
probable cause to warrant an arrest.” Syl. Pt. 3, in part, State v. Wickline, 184 W. Va. 12, 399
S.E.2d 42 (1990). The prompt presentment rule “requires an individual to be promptly taken before
a neutral magistrate after arrest. This is to ensure that the accused is fully informed of his various
constitutional and statutory rights.” State v. Grubbs, 178 W. Va. 811, 814, 364 S.E.2d 824, 827
(1987).
However, it is not delay itself that triggers application of the rule. Instead, the delay in
taking a defendant to a magistrate may become a critical factor in evaluating the voluntariness of
a defendant’s statement “where it appears that the primary purpose of the delay was to obtain a
confession from the defendant.” Syl. Pt. 6, in part, State v. Persinger, 169 W. Va. 121, 286 S.E.2d
261 (1982).
The circuit court specifically found that there was no testimony that petitioner made the
statements out of duress. Upon our review of the record, we agree with the circuit court and note
that petitioner failed to prove that he made any statements under duress. There was no evidence
elicited as to how long petitioner was even in custody prior to being taken to the magistrate. Since
petitioner did not present evidence of this below, this Court has recognized that “[a] party cannot
establish facts in a case by asserting them in a brief. Those are nothing more than an attorney’s
statements, which are not evidence.” State v. Benny W., 242 W. Va. 618, 629, 837 S.E.2d 679, 690
(2019). Further, as petitioner’s claim is based entirely on counsel’s statements, it is not sustainable.
Additionally, the circuit court found that although petitioner was in custody, he was not
subject to custodial interrogation when the relevant statements were made. This Court has noted
that “[i]t is well-settled that a person’s Miranda right to counsel attaches only when the person is
subject to custodial interrogation: ‘Two elements must be present before Miranda warnings are
required: first, the person must be in custody, and, second, he or she must be interrogated.’ State
v. Honaker, 193 W. Va. 51, 60, 454 S.E.2d 96, 105 (1994).” State v. Farley, 238 W. Va. 596, 606-
07, 797 S.E.2d 573, 583-84 (2017). Miranda defined custodial interrogation as “questioning
initiated by law enforcement officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way.” 384 U.S. at 444. Further, this Court
expanded its discussion on how to define custodial interrogation stating:
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The factors to be considered by the trial court in making a determination of
whether a custodial interrogation environment exists, while not all-inclusive,
include: the location and length of questioning; the nature of the questioning as it
relates to the suspected offense; the number of police officers present; the use or
absence of force or physical restraint by the police officers; the suspect’s verbal and
nonverbal responses to the police officers; and the length of time between the
questioning and formal arrest.
Farley, 238 W. Va. at 601, 797 S.E.2d 572, Syl. Pt. 4, in part.
Applying the Farley factors, it is apparent that petitioner’s statements were not made
during the course of a custodial interrogation, but were merely inculpatory statements made to an
officer. Based upon our review of the record, there was no questioning by the officer. Additionally,
the officer did not hold petitioner outside for a long time, as the two were outside so petitioner
could smoke at petitioner’s request, rather than any nefarious attempt to corner him. Moreover,
petitioner was with only one officer – not a fleet of officers. He was not physically restrained nor
was there anyone using or attempting to use force against him. This Court has repeatedly affirmed
cases where an inculpatory statement was made to an officer outside of a custodial interrogation.
In State v. Bouie, 235 W. Va. 709, 776 S.E.2d 606 (2015), this Court found that the defendant’s
rights were not violated when he asked a police officer for a copy of the criminal complaint against
him and then indirectly admitted his presence on the premises, and, in turn, confirmed his role in
the victim’s death. That is precisely the case here: petitioner asked about the investigation, and
once he was told by the detective what had been found, he made inculpatory statements, including
identifying the then-undisclosed murder weapon as a knife and confirming his fingerprints would
be on it.
Further, this Court has held that “[a] spontaneous statement by a defendant made prior to
any action by a police officer or before an accusation, arrest or any custodial interrogations is made
or undertaken by the police may be admitted into evidence without the voluntariness thereof first
having been determined in an in camera hearing.” Syl. Pt. 4, in part, State v. Gibson, 181 W. Va.
747, 384 S.E.2d 358 (1989). Here, the statements were voluntary and were given prior to
petitioner’s arrest on the murder charge. Petitioner has not shown that he made the statements
under duress, despite his blanket assertion that his statements were made against his will. Further,
although petitioner argues that he was deprived of food and water, the record is devoid of
supporting evidence.
Petitioner also argues that the circuit court erred in allowing the presentation of prejudicial
assumptions made by the police in violation of the West Virginia Rules of Evidence. Specifically,
officers testified that the scent of the liquid in a popcorn canister found in a dumpster smelled like
a burning agent. 4 Officers also described a small wound on petitioner’s cheek as a defensive
wound, despite petitioner’s testimony that he had cut himself shaving. Petitioner further
complained that the officers’ testimony that petitioner was “extremely nervous,” was “sweating,
4
Several items, including a can of paint thinner, were recovered from a search of
petitioner’s bedroom.
6
breathing hard,” and that “you could see basically his heart pumping through his chest” was
inappropriate in light of the fact that he appeared at the police station voluntarily. Per petitioner,
these were just the first impressions or assumptions of the officers, and this testimony was highly
prejudicial to petitioner. Respondent maintains that the statements complained of by petitioner are
“rationally based upon the witness’s perception” and are specifically allowed pursuant to Rule
701(a) of the West Virginia Rules of Evidence. We agree with respondent.
Rule 701 of the West Virginia Rules of Evidence governs the testimony of lay witnesses
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at trial. We have held that
[i]n order for a lay witness to give opinion testimony pursuant to Rule 701
of the West Virginia Rules of Evidence, (1) the witness must have personal
knowledge or perception of the facts from which the opinion is to be derived; (2)
there must be a rational connection between the opinion and the facts upon which
it is based; (3) the opinion must be helpful in understanding the testimony or
determining a fact in issue; and (4) the opinion must not be based on scientific,
technical, or other specialized knowledge within the scope of Rule 702.
Syl. Pt. 1, State v. Johnson, 238 W. Va. 580, 797 S.E.2d 557 (2017). Further, this Court has
explained “[t]he determination of whether a witness has sufficient knowledge of the material in
question so as to be qualified to give his opinion is largely within the discretion of the trial court,
and will not ordinarily be disturbed on appeal unless clearly erroneous.” Syl. Pt. 4, in part, State v.
Jameson, 194 W. Va. 561, 461 S.E.2d 67 (1996).
All of the testimony and evidence that petitioner argues should have been excluded were
based upon the officers’ personal observations. Moreover, the testimony of which petitioner
complains was subject to pretrial motions, which were thoroughly reviewed by the circuit court.
Inasmuch as the testimony falls within the confines of Rule 701, the circuit court exercised its
discretion in allowing the testimony, and the rulings are not clearly erroneous, we refuse to disturb
these rulings on appeal.
Next, petitioner challenges the sufficiency of the evidence. As to a sufficiency challenge,
we have held that
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Rule 701 provides:
If a witness is not testifying as an expert, testimony in the form of an opinion is
limited to one that is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to determining a fact
in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the
scope of Rule 702.
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[w]hen a criminal defendant undertakes a sufficiency challenge, all the
evidence, direct and circumstantial, must be viewed from the prosecutor’s coign of
vantage, and the viewer must accept all reasonable inferences from it that are
consistent with the verdict. This rule requires the trial court judge to resolve all
evidentiary conflicts and credibility questions in the prosecution’s favor; moreover,
as among competing inferences of which two or more are plausible, the judge must
choose the inference that best fits the prosecution’s theory of guilt.
Syl. Pt. 2, State v. LaRock, 196 W. Va. 294, 470 S.E.2d 613 (1996). Further,
[t]he 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.
Id. at 304, 470 S.E.2d at 623.
Upon our review of the trial transcript, we find that petitioner did not meet this heavy
burden. Petitioner was charged with first-degree murder, but he was found guilty of the lesser-
included offense of second-degree murder. He argues that the evidence presented at trial does not
support this finding and that the only way he could have been convicted would have been for the
jury to infer the murder through the introduction of his domestic violence protective order. We
disagree.
Second-degree murder, a statutory crime codified at West Virginia Code § 61-2-1, is
defined as “all other murder” that is not murder in the first degree. We recently held that “[m]urder
in the second degree is the unlawful, intentional killing of another person with malice, but without
deliberation and premeditation.” Syl. Pt. 2, in part, State v. Drakes, ___ W. Va. ___, 844 S.E.2d
110 (2020).
After the close of the evidence at petitioner’s trial, the court instructed the jury as to the
elements of both first-degree and second-degree murder. At trial, there was evidence presented
that established petitioner was at the victim’s house near the time of the murder. Further, petitioner
volunteered to police that his DNA would be on the victim’s knives, one of which was the murder
weapon, prior to being advised that the murder weapon was a knife. Applying our standard of
review, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact
could have found the essential elements of second-degree murder. This Court will not substitute
its judgment for that of the jury and undertake credibility determinations of the parties and the
witnesses.
Finally, petitioner asserts that the circuit court erred when it failed to grant his motion for
a new trial. We have recognized for some time that “[t]he question of whether a new trial should
be granted is within the discretion of the trial court and is reviewable only in the case of abuse.”
State v. Crouch, 191 W. Va. 272, 275, 445 S.E.2d 213, 216 (1994). More recently, we discussed
that “Rule 33 [of the West Virginia Rules of Criminal Procedure] enables a circuit court to grant a
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new trial to a defendant if required in the interest of justice.” State v. Woodrum, 243 W. Va. 503,
___, 845 S.E.2d 278, 282 (2020).
In Woodrum, we held
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.
Id. at Syl. Pt. 1, in part.
Petitioner generally alleges that he is entitled to a new trial because of the issues addressed
above. Inasmuch as we have determined that the circuit court did not abuse its discretion or act
under some misapprehension of the law or the evidence, we find that petitioner is not entitled to
this relief.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: March 23, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
NOT PARTICIPATING:
Justice William R. Wooton
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