State of West Virginia v. Campbell

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2022 Term FILED

_____________ January 28, 2022

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

No. 20-0099 SUPREME COURT OF APPEALS

OF WEST VIRGINIA

_____________

STATE OF WEST VIRGINIA,

Plaintiff Below, Respondent

V.

JOHN THOMAS CAMPBELL,

Defendant Below, Petitioner

________________________________________________

Appeal from the Circuit Court of Greenbrier County

The Honorable Robert E. Richardson, Judge

Criminal Action No. 12-F-34

AFFIRMED

________________________________________________

Submitted: January 4, 2022

Filed: January 28, 2022

Eric M. Francis Patrick Morrisey, Attorney General

Lewisburg, West Virginia Scott E. Johnson,

Attorney for the Petitioner Assistant Attorney General

Charleston, West Virginia

Attorneys for the Respondent

JUSTICE JENKINS delivered the Opinion of the Court.

SYLLABUS BY THE COURT

1. “‘The obligation of police to warn a suspect of both his right to

counsel and his right against self-incrimination applies only to custodial or other settings

where there is a possibility of coercion.’ Syl. pt. 2, State v. Andriotto, 167 W. Va. 501, 280

S.E.2d 131 (1981).” Syllabus point 5, State v. Hardway, 182 W. Va. 1, 385 S.E.2d 62

(1989).

2. “‘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.’ Syllabus Point 2, State v. Middleton, 220 W. Va. 89, 640 S.E.2d 152 (2006)[,

overruled on other grounds by State v. Eilola, 226 W. Va. 698, 704 S.E.2d 698 (2010)].”

Syllabus point 4, Damron v. Haines, 223 W. Va. 135, 672 S.E.2d 271 (2008).

3. “We adopt the ‘Massachusetts’ or ‘humane’ rule whereby the jury can

consider the voluntariness of the confession, and we approve of an instruction telling the

i

jury to disregard the confession unless it finds that the State has proved by a preponderance

of the evidence it was made voluntarily.” Syllabus point 4, State v. Vance, 162 W. Va.

467, 250 S.E.2d 146 (1978).

4. “It is not reversible error to refuse to give instructions offered by a

party that are adequately covered by other instructions given by the court.” Syllabus point

20, State v. Hamric, 151 W. Va. 1, 151 S.E.2d 252 (1966).

ii

Jenkins, Justice:

This is a direct appeal by Petitioner, Mr. John Thomas Campbell (“Mr.

Campbell”), of an order entered by the Circuit Court of Greenbrier County on January 24,

2020, that re-sentenced him, for purposes of appeal, to an indeterminate term of not less

than ten nor more than twenty years for his conviction of one count of the felony offense

of Sexual Abuse by a Parent, Guardian, Custodian, or Person in a Position of Trust to a

Child, in violation of West Virginia Code section 61-8D-5 (eff. 2010). In this appeal, Mr.

Campbell raises four issues. First, he argues that the circuit court erred by failing to

suppress his recorded confession. Next, he claims the circuit court further erred by failing

to give two jury instructions he proposed. Mr. Campbell also alleges that his trial counsel

was ineffective, and he asserts cumulative error. We have considered the parties’ briefs

and oral arguments, the appendix record submitted, and the relevant statutes and legal

precedent, and we find no error with respect to the first two issues raised by Mr. Campbell.

We decline to address his claim of ineffective assistance of counsel in a direct appeal.

Finally, because we find no error, we reject his claim of cumulative error. Accordingly,

we affirm the circuit court’s order of January 24, 2020.

1

I.

FACTUAL AND PROCEDURAL HISTORY

In November 2011, a seventeen-year-old juvenile resident of Davis-Stuart

School (“Davis-Stuart” or “School”) 1 disclosed to a School employee that she had engaged

in consensual sexual intercourse with Mr. Campbell, who was employed by Davis-Stuart

as a childcare worker. The incident, which also occurred in November 2011, took place

on school premises while Mr. Campbell was working his shift as a childcare worker and

was responsible for the care and safety of his victim as well as other student residents of

the cottage to which he was assigned. Mr. Campbell was twenty-six years old at the time.

The incident was reported to law enforcement officials, and Corporal Roger

Baker (“Corporal Baker”) of the Greenbrier County Sheriff’s Department was assigned to

investigate. As described more fully below, Corporal Baker approached Mr. Campbell at

Davis-Stuart on November 29, 2011, and asked Mr. Campbell to accompany him to the

Lewisburg Police Department to discuss “some issues.” Mr. Campbell agreed to go, was

1

The parties do not explain what Davis-Stuart School is. The indictment

describes the school as “a therapeutic residential center for adolescents.” According to the

trial testimony of the School’s executive director, it is a residential treatment home for

youth aged twelve to eighteen who have suffered abuse and neglect and have been removed

from their homes. The students may reside at the School until permanency is established

by either returning to their home or being placed in a foster or adoptive home.

2

interviewed by Corporal Baker, and admitted to engaging in consensual sexual intercourse

with the student victim. A video recording was made of the interview.

On February 8, 2012, Mr. Campbell was indicted for a single count of the

felony offense of Sexual Abuse by a Parent, Guardian, Custodian, or Person in a Position

of Trust to a Child, in violation of West Virginia Code section 61-8D-5. 2 After numerous

delays that are not relevant to this appeal, trial was set for May 21, 2013. 3 Prior to trial,

2

Under the relevant provision of West Virginia Code section 61-8D-5 (eff.

2010):

(a) In addition to any other offenses set forth in this

code, the Legislature hereby declares a separate and distinct

offense under this subsection, as follows: If any parent,

guardian or custodian of or other person in a position of trust

in relation to a child under his or her care, custody or control,

shall engage in or attempt to engage in sexual exploitation of,

or in sexual intercourse, sexual intrusion or sexual contact

with, a child under his or her care, custody or control,

notwithstanding the fact that the child may have willingly

participated in such conduct, or the fact that the child may have

consented to such conduct or the fact that the child may have

suffered no apparent physical injury or mental or emotional

injury as a result of such conduct, then such parent, guardian,

custodian or person in a position of trust shall be guilty of a

felony and, upon conviction thereof, shall be imprisoned in a

correctional facility not less than ten nor more than twenty

years, or fined not less than $500 nor more than $5,000 and

imprisoned in a correctional facility not less than ten years nor

more than twenty years.

3

The judge who presided over Mr. Campbell’s trial and the subsequent

sentencing hearings was the Honorable James J. Rowe.

3

the circuit court conducted an evidentiary hearing to determine the admissibility of Mr.

Campbell’s recorded interview, which included his confession. The circuit court

determined that the interview was admissible, and the recording was played for the jury

during Mr. Campbell’s two-day trial. The jury found Mr. Campbell guilty of the offense

as charged.

At Mr. Campbell’s sentencing hearing on October 18, 2013, the circuit court

denied Mr. Campbell’s request for an alternative sentence and imposed an indeterminate

term of incarceration of not less than ten nor more than twenty years. However, after

hearing Mr. Campbell’s motion for reconsideration of sentence on March 14, 2014, the

circuit court suspended his sentence and imposed an alternative sentence of probation.4

Thereafter, Mr. Campbell violated the conditions of his probation, 5 and, as a result, his

probation was revoked and his sentence reinstated. On February 18, 2018, Mr. Campbell,

as a self-represented litigant, filed a petition for writ of habeas corpus in the circuit court

4

The alternative sentence was a tiered probation under an intensive

supervision program for a minimum of twenty years. Mr. Campbell was also required to

complete 1,000 hours of community service.

5

Mr. Campbell violated the conditions of his probation by residing on

property where children were present.

4

claiming, in part, that his trial counsel 6 had failed to perfect an appeal on his behalf. 7

Counsel was appointed, and Mr. Campbell was re-sentenced on January 24, 2020, for

purposes of allowing him to appeal his conviction. This timely appeal followed.

Additional relevant facts are included in our discussion of the issues to which they pertain.

II.

STANDARD OF REVIEW

The standard for our review is different for each of the three issues

considered below. Therefore, the standard for our review of each issue is set out below in

our discussion of the issue to which it pertains.

III.

DISCUSSION

Mr. Campbell raises four assignments of error; however, only three need be

addressed. 8 In these three assignments, Mr. Campbell asserts that the circuit court erred

6

Mr. Campbell’s trial counsel was E. Lavoyd Morgan, Jr.

7

The Honorable Robert E. Richardson presided over Mr. Campbell’s petition

for writ of habeas corpus.

8

Mr. Campbell’s fourth assignment of error raises cumulative error;

however, as explained in the body of this opinion, we find no error committed in the circuit

court. Accordingly, we summarily reject Mr. Campbell’s claim of cumulative error.

5

by failing to suppress his recorded interview of November 29, 2011; the circuit court

further erred by failing to give two jury instructions he requested; and his trial counsel was

ineffective. We consider these issues in turn.

A. Suppression of Interview

Mr. Campbell first argues that the circuit court erred by failing to suppress

his recorded interview of November 29, 2011. His argument on this issue is quite

convoluted, and, as the State aptly points out, it is not clear whether he is attempting to

argue that his interview should have been suppressed based upon an alleged violation of

his Fifth Amendment right against self-incrimination 9 as set forth in Miranda v. Arizona, 10

which also implicates article III, § 5 of the West Virginia Constitution, 11 or on the basis

that his confession was not voluntary and therefore violated his rights under the Due

Process Clause of the Fourteenth Amendment and § 10 of article III of the West Virginia

Constitution. 12 In this regard, it has been recognized that “‘[t]he question of the

According to the Fifth Amendment, “No person . . . shall be compelled in

9

any criminal case to be a witness against himself[.]” U.S. Const. amend. V.

10

See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694

(1966).

Pursuant to Article III, § 5 of the West Virginia Constitution, “nor shall

11

any person, in any criminal case, be compelled to be a witness against himself[.]”

12

According to the Due Process Clause of the Fourteenth Amendment, “No

State shall . . . deprive any person of life, liberty, or property, without due process of

law[.]” U.S. Const. amend. XIV. Similarly, the West Virginia Constitution provides that

6

voluntariness of a waiver of Miranda rights is separate and differs from the determination

of the voluntariness of a confession.’” State v. Bradshaw, 193 W. Va. 519, 534, 457 S.E.2d

456, 471 (1995) (quoting Smith v. Duckworth, 856 F.2d 909, 911 (7th Cir. 1988)).

Therefore, after setting out some relevant facts and the proper standard for our review, we

will discuss Mr. Campbell’s assertions under each standard.

The facts relevant to this assignment of error are that, following the female

student’s disclosure of her consensual sexual intercourse with Mr. Campbell, Mr. Campbell

was approached on November 29, 2011, at Davis-Stuart, by Corporal Baker. Corporal

Baker asked Mr. Campbell if he would ride to a law enforcement office to discuss some

issues. Mr. Campbell voluntarily rode in the front seat of Corporal Baker’s unmarked

police vehicle to the Lewisburg Police Department. Once at the police department, Mr.

Campbell was taken into a small, windowless interrogation room in the basement and

seated beside a desk that was against the wall at the back of the room. Corporal Baker sat

between Mr. Campbell and the door to the room, but the door remained unlocked. At one

point, Mr. Campbell was momentarily left alone in the unlocked room. While there, Mr.

Campbell participated in an interview that lasted approximately forty-five minutes and was

recorded. According to a transcript of the recording, Mr. Campbell was not provided with

“No person shall be deprived of life, liberty, or property, without due process of law[.]”

W. Va. Const. art. III, § 10.

7

a Miranda warning; however, Corporal Baker advised Mr. Campbell that he was free to

leave at any time:

CORPORAL BAKER: John Thomas Campbell. Okay.

You come in voluntarily, correct? I mean, I didn’t drag you in

a headlock --

MR. CAMPBELL: No.

CORPORAL BAKER: -- and say, “Come in here.” You

know, you’re free to leave any time. You’re not -- you’re not

going to -- you know, we -- with -- you know, it’s -- you’re

willing to talk to me, you know. You know you can leave. I’m

not going to put you into a headlock and make you stay here or

anything like that.

MR. CAMPBELL: Uh-huh.

A second time during the interview, Corporal Baker repeated that Mr. Campbell could

leave any time:

CORPORAL BAKER: Sorry about that, John

(inaudible). John, just real quick. We’ll do it real quick. You’re

in here -- you’re here voluntarily; you know you can leave at

any time, right?

MR. CAMPBELL: Yeah.

CORPORAL BAKER: Okay. Just want to make sure

we -- we understand that. I don’t want anybody to think I have

got you in here in a headlock, so the door is unlocked . . . .

MR. CAMPBELL: All right.

Thereafter, Mr. Campbell admitted that on one occasion in November 2011 he engaged in

consensual sexual intercourse with the female resident of Davis-Stuart who was under his

supervision.

8

Prior to trial, the State filed a motion under Rule 104 of the West Virginia

Rules of Evidence 13 asking the circuit court to hold an evidentiary hearing to determine the

admissibility of Mr. Campbell’s interview, which included his confession. 14 Mr. Campbell

then filed a motion to suppress the interview, arguing that he had been subjected to a

custodial interrogation in violation of his rights as outlined in Miranda v. Arizona.15

13

This rule states, in relevant part, that

(a) In general. — The court must decide any

preliminary question about whether a witness is qualified, a

privilege exists, or evidence is admissible. In so deciding, the

court is not bound by evidence rules, except those on privilege.

(b) Relevance that depends on a fact. — When the

relevance of evidence depends on whether a fact exists, proof

must be introduced sufficient to support a finding that the fact

does exist. The court may admit the proposed evidence on the

condition that the proof be introduced later.

W. Va. R. Evid. 104.

14

This Court has held that

“‘The State must prove, at least by a preponderance of

the evidence, that confessions or statements of an accused

which amount to admissions of all or a part of an offense were

voluntary before such may be admitted into the evidence of a

criminal case.’ Syl. pt. 5, State v. Starr, [158] W. Va. [905],

216 S.E.2d 242 (1975).” Syl. Pt. 1, State v. Vance, 162 W. Va.

467, 250 S.E.2d 146 (1978).

Syl. pt. 1, State v. Wilson, 190 W. Va. 583, 439 S.E.2d 448 (1993) (per curiam).

We note that, in his motion to suppress, Mr. Campbell’s counsel

15

acknowledged that there are two standards to determine the admissibility of a defendant’s

statement. One applies in non-custodial situations and requires that the totality of the

9

The circuit court held a hearing on the admissibility of the statements.

Corporal Baker testified on behalf of the State and was the only witness at the hearing.

According to Corporal Baker’s unrefuted testimony, the interview lasted roughly forty-five

minutes; the door to the interview room was unlocked; Mr. Campbell was never placed in

hand cuffs or arrested; and, after the interview, Corporal Baker transported Mr. Campbell

back to Davis-Stuart. Corporal Baker further testified that he did not threaten, coerce, or

make any promises to Mr. Campbell. Mr. Campbell offered no evidence or witnesses at

the hearing. Based on the evidence presented, the circuit court found Mr. Campbell’s

statements were admissible:

THE COURT: Well, the Court can only go on the

evidence that’s adduced at this hearing, and the evidence is that

he [Mr. Campbell] was picked up. He was approached while

at work, and he [was] asked if he would come and talk with

him [Corporal Baker].

circumstances demonstrates that the statement was voluntary. See Syl. pt. 7, State v.

Farley, 192 W. Va. 247, 452 S.E.2d 50 (1994) (“Representations 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. To the extent that State v.

Parsons, 108 W. Va. 705, 152 S.E. 745 (1930), is inconsistent with this standard, it is

overruled.”). The second applies in custodial circumstances, and requires that the

defendant be advised of his rights pursuant to Miranda v. Arizona. See State v. George,

185 W. Va. 539, 545, 408 S.E.2d 291, 297 (1991) (“Miranda warnings are required only

when a suspect has either been formally arrested or subjected to custodial interrogation.”

(quotations and citation omitted)). Although the existence of two standards was

acknowledged in the motion, the only argument set out therein was the contention that

there was a custodial interrogation and a violation of Mr. Campbell’s Miranda rights.

10

He rode in the front seat, probably five or six miles from

Davis Stewart [sic] to the Lewisburg Police Department, was

taken into a room, which I guess is the interrogation room. It’s

a small room it appears. There’s no window. There is a door

there.

He was seated off to the [--] kind of catty-cornered, at

the corner of the desk, and that interview took place 45

minutes, and I would have to, I guess conceivably those

circumstances could amount to a custodial-type situation of

coercive-type interrogation, but there’s been no testimony as

to his level of sophistication, his intelligence, his demeanor, the

impact it had on him or any of that.

For me to conclude that what it -- it was custodial or he

was coerced, I can’t based on the testimony so the

preponderance at this point is that it was not custodial. A

preponderance is that it was voluntarily given at this point, and

so it may be admitted into evidence at trial.

We apply an abuse of discretion standard of review to a circuit court’s

decision on the admissibility of a confession. “It is a well-established rule of appellate

review in this state that a trial court has wide discretion in regard to the admissibility of

confessions and ordinarily this discretion will not be disturbed on review.” Syl. pt. 2, State

v. Vance, 162 W. Va. 467, 250 S.E.2d 146 (1978). Moreover, “A trial court’s decision

regarding the voluntariness of a confession will not be disturbed unless it is plainly wrong

or clearly against the weight of the evidence.” Syl. pt. 3, Id. However,

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

11

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). With these standards in

mind, we address whether the circuit court erred in admitting Mr. Campbell’s recorded

confession.

1. Whether Mr. Campbell was in custody such that his right to Miranda

warnings had attached. In an argument that seems to focus primarily on the voluntariness

of Mr. Campbell’s statement under the totality of the circumstances, Mr. Campbell

confoundingly argues that he was never read his Miranda warning, and, therefore, his

statement cannot be voluntary.16 The State contends that Mr. Campbell was not in custody

when he was interviewed by Corporal Baker; therefore, Corporal Baker had no obligation

to secure a waiver of Miranda rights from Mr. Campbell. We agree with the State.

16

In a footnote in his appellate brief, counsel for Mr. Campbell states that

“Out of an abundance of caution, current counsel wishes to include arguments found in the

Motion to Suppress the Defendant’s Statement found on pages 538 – 543 in the appendix.”

The pages noted refer to the motion to suppress filed on behalf of Mr. Campbell before

trial, in which trial counsel argued that Mr. Campbell was subjected to a custodial

interrogation without being advised of his Miranda rights. We caution counsel that this

reference in his appellate brief does not comport with Rule 10(c)(7) of the West Virginia

Rules of Appellate Procedure, under which “The brief must contain an argument exhibiting

clearly the points of fact and the law presented, the standard of review applicable, and

citing the authorities relied on, under headings that correspond with the assignments of

error.”

12

It is well established that Miranda rights apply only to custodial

interrogations. As this Court has previously held, “‘The obligation of police to warn a

suspect of both his right to counsel and his right against self-incrimination applies only to

custodial or other settings where there is a possibility of coercion.’ Syl. pt. 2, State v.

Andriotto, 167 W. Va. 501, 280 S.E.2d 131 (1981).” Syl. pt. 5, State v. Hardway, 182

W. Va. 1, 385 S.E.2d 62 (1989). See also State ex rel. DeChristopher v. Gaujot, 244

W. Va. 631, ___, 856 S.E.2d 223, 232 (2021) (“[A] police officer’s obligation to administer

[Miranda] warnings is triggered only during custodial interrogation.”); State ex rel. Wade

v. Hummel, 243 W. Va. 408, 410 n.3, 844 S.E.2d 443, 445 n.3 (2020) (“The requirement

for advising an individual of his/her Miranda rights arises only in the context of a custodial

interrogation.”); 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)).

In addressing the question of whether an individual was subjected to a

custodial interrogation, this Court has applied an objective test:

Whether the individual was “in custody” is determined

by an objective test and asking whether, viewing the totality of

the circumstances, a reasonable person in that individual’s

position would have considered his freedom of action

restricted to the degree associated with a formal arrest. [State

v. Potter,] 197 W. Va. [734,] 744, 478 S.E.2d [742,] 752

[(1996)]; see also Thompson v. Keohane, 516 U.S. 99, 113-14

13

n.13, 116 S. Ct. 457, 133 L. Ed. 2d 383 (1995); State v.

Honaker, 193 W. Va. 51, 60-61, 454 S.E.2d 96, 105-06 (1994)

(utilizing “objective circumstances” test to determine whether

the defendant was in custody). In State v. Bradshaw, 193

W. Va. 519, 457 S.E.2d 456 (1995), this Court explained that

“[t]he ‘inherent compulsion’ that is brought about by the

combination of custody and interrogation is crucial for the

attachment of Miranda rights.” 193 W. Va. at 530, 457 S.E.2d

at 467 (citation omitted).

State v. McCracken, 218 W. Va. 190, 195, 624 S.E.2d 537, 542 (2005) (per curiam). We

also have acknowledged that

“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.” Syllabus

Point 2, State v. Middleton, 220 W. Va. 89, 640 S.E.2d 152

(2006)[, overruled on other grounds by State v. Eilola, 226

W. Va. 698, 704 S.E.2d 698 (2010)].

Syl. pt. 4, Damron v. Haines, 223 W. Va. 135, 672 S.E.2d 271 (2008).

Our review of the record in light of the foregoing standards leads us to

conclude that Mr. Campbell’s interview was not a custodial interrogation. In this instance,

the location of the interview, a police station, does not suggest that Mr. Campbell was in

custody, particularly because the undisputed evidence is that Mr. Campbell voluntarily

accompanied Corporal Baker to the station. “[T]he fact that an interview takes place at a

14

police station . . . does not necessarily render it a custodial interview. Indeed, interviews

conducted at police stations have been held to be non-custodial when the defendants have

volunteered to meet or accompany officers there.” Montoya v. United States, No.

1:09CR247, 2013 WL 633586, at *8 (E.D. Va. Feb. 19, 2013).

Furthermore, although Mr. Campbell was taken into a small room and seated

at a desk with Corporal Baker situated between Mr. Campbell and the door, it appears that

Corporal Baker was the only officer conducting the interview, the door to the room

remained unlocked throughout the interview, Mr. Campbell was not handcuffed or

restrained in any way, he was at one point left alone in the room, and he was repeatedly

advised that he was free to leave. This Court has previously observed that “Telling a

suspect that he/she is not under arrest and is free to leave usually is sufficient to prevent a

finding of custody and will circumvent a finding of de facto arrest.” State v. Farley, 192

W. Va. at 255 n.10, 452 S.E.2d at 58 n.10. See also State ex rel. Wade v. Hummel, 243

W. Va. 408, 411 n.3, 844 S.E.2d 443, 446 n.3 (“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.”). Mr. Campbell was also told that he would be returned to his vehicle at Davis-

Stuart following the interview. Once the interview concluded, Mr. Campbell was, in fact,

returned to his vehicle. He was not placed under arrest. Instead, Corporal Baker advised

Mr. Campbell that “I’m going to talk to the prosecutor and see -- and see where we need

to go with it. I’m not -- I’m not going to make any promises. I can’t do that.” Mr.

15

Campbell was not indicted until February 8, 2012. Additionally, during the suppression

hearing, Corporal Baker testified to his belief that Mr. Campbell had a cell phone that he

could have used to call someone if he desired to leave the police station. Finally, at no

point during the interview, which lasted approximately forty-five minutes, did Mr.

Campbell express any desire to leave, and at no point was he prevented from leaving the

station.

Other courts have found a defendant was not in custody under circumstances

similar to what occurred in this case. See, e.g., California v. Beheler, 463 U.S. 1121, 103

S. Ct. 3517, 77 L. Ed. 2d 1275 (1983) (defendant who had been identified as a suspect,

voluntarily accompanied police to station house, interviewed less than thirty minutes, and

permitted to return to his home was not in custody); Oregon v. Mathiason, 429 U.S. 492,

495, 97 S. Ct. 711, 714, 50 L. Ed. 2d 714 (1977) (“[T]here is no indication that the

questioning took place in a context where respondent’s freedom to depart was restricted in

any way. He came voluntarily to the police station, where he was immediately informed

that he was not under arrest. At the close of a ½-hour interview respondent did in fact

leave the police station without hindrance. It is clear from these facts that Mathiason was

not in custody or otherwise deprived of his freedom of action in any significant way.”

(quotations omitted)); United States v. Uzenski, 434 F.3d 690, (4th Cir. 2006) (interrogation

was not custodial where defendant was told he was not under arrest, he was allowed to

leave the interrogation room to use the restroom, the door was left partially open at times,

16

defendant was not forcefully restrained, and the agents did not use a threatening tone

towards the defendant or brandish weapons); Davis v. Allsbrooks, 778 F.2d 168, 171 (4th

Cir. 1985) (defendant was not in custody where he voluntarily rode with detectives to

police station, and commenting that a two-hour session of questioning “was not a marathon

session designed to force a confession”). See also United States v. Budd, 549 F.3d 1140,

(7th Cir. 2008) (defendant was not in custody and Miranda warnings were not required for

series of three interviews at a police station where defendant was told the interviews were

voluntary and he could leave at any time, he voluntarily rode to police station in front seat

of detective’s unmarked vehicle, he was not placed in handcuffs, the two interviewing

officers did not raise their voices, and there was no display of force by the officers);

McCown v. Callahan, 726 F.2d 1 (1st Cir. 1984) (defendant was not in custody when he

was questioned because he went to station voluntarily, was told he was not under arrest,

and left the station undisturbed).

Despite the foregoing authority, Mr. Campbell’s primary argument appears

to be that the circuit court failed to engage in a meaningful discussion of Mr. Campbell’s

mental capacity, or lack thereof, presumably in the context of his ability to waive his

Miranda rights knowingly and intelligently. However, Mr. Campbell’s mental capacity

was never raised to the circuit court, and the court observed the lack of evidence in that

regard when rendering its ruling on the admissibility of the interview. Moreover, as the

State rightly notes, “In the absence of the right to the warnings detailing one’s rights under

17

Miranda, the Petitioner’s ability to intelligently and knowingly waive those rights is of no

moment.” Since Mr. Campbell was never in custody, there was no need for him to waive

his Miranda rights, or demonstrate the absence of an ability to do so. See, e.g.,

Commonwealth v. Walton, No. CP46CR000046592015, 2016 WL 3014810, at *5 (Pa. Ct.

Com. Pl. Jan. 22, 2016) (“Because [defendant] was not in custody, the police were not

obligated to administer the Miranda warnings. Because they were under no obligation to

do so, it follows that they were under no obligation to obtain a waiver of those rights from

her. Therefore[,] it is immaterial whether her waiver of her constitutional rights was

knowing, intelligent or voluntary[.]”). See also United States v. Garcia-Garcia, No. 2:21-

CR-29, 2021 WL 1550075, at *5 (S.D. Tex. Apr. 19, 2021) (“[T]he interview was

noncustodial as that term has been defined by the courts for Miranda purposes. Therefore,

[the officer] was not required to obtain [the defendant’s] waiver of Miranda rights[.]”);

State v. Judecki, No. CR-03-533, 2004 WL 1433628, at *5 (Me. Super. Apr. 22, 2004)

(because interrogations were noncustodial, “Miranda warnings and waivers were not

required”).

Based upon the foregoing analysis, we conclude that there was no custodial

interrogation of Mr. Campbell, and, therefore, Officer Baker was not required to advise

Mr. Campbell of his Miranda rights. As such, the circuit court did not abuse its discretion

by denying Mr. Campbell’s motion to suppress and allowing the interview to be played for

the jury.

18

2. Whether Mr. Campbell’s Due Process rights were violated because

his non-custodial confession was not voluntary. As noted above and explained in

footnote 15, this issue was not raised below. 17 “‘[T]his Court’s general rule is that

nonjurisdictional questions not raised at the circuit court level will not be considered [for]

the first time on appeal.’ State v. Jessie, 225 W. Va. 21, 27, 689 S.E.2d 21, 27 (2009)

(citation omitted).” State v. Akers, No. 20-0926, 2021 WL 3833272, at *2 (W. Va. Aug.

27, 2021) (memorandum decision). See also State v. DeGraw, 196 W. Va. 261, 272, 470

S.E.2d 215, 226 (1996) (declining to address whether trial court improperly admitted

evidence that allegedly violated Rule of Evidence 404(b) where the evidence was only

objected to at trial on the ground that it violated Rule of Evidence 609, and commenting

that “West Virginia Rule of Evidence 103(a)(1) provides, in pertinent part, that ‘[e]rror

may not be predicated upon a ruling which admits or excludes evidence unless a substantial

right of the party is affected, and . . . [i]n case the ruling is one admitting evidence, a timely

objection or motion to strike appears of record, stating the specific ground of objection, if

the specific ground was not apparent from the context . . . .’ Id. (emphasis added).”).

Moreover, in making his argument as to the voluntariness of his confession,

Mr. Campbell argues that he lacked the mental competency to voluntarily confess, and he

17

In his reply brief, Mr. Campbell contends that trial counsel did object to

the admission of his recorded interview on the basis that it was not voluntary. However,

the references to the record he provides do not reflect any such objection.

19

supports this argument with a psychological report that was prepared on August 13, 2013,

after his trial had concluded. 18 However, no argument regarding Mr. Campbell’s mental

competency was asserted during the suppression hearing, and the psychological evaluation

had not yet occurred. In determining whether the circuit court erred in declining to suppress

Mr. Campbell’s recorded interview, we are constrained to consider only arguments and

evidence that were before the circuit court at that time. “‘[W]here a person of less than

normal intelligence does not have the capacity to understand the meaning and effect of his

confession, and such lack of capacity is shown by evidence at the suppression hearing, it

is error for the trial judge not to suppress the confession.’” State v. Parsons, 181 W. Va.

131, 134, 381 S.E.2d 246, 249 (1989) (emphasis added) (quoting State v. Adkins, 170

W. Va. 46, 54, 289 S.E.2d 720, 727 (1982)). See also Fassett v. Delta Kappa Epsilon (New

York), 807 F.2d 1150, 1165 (3d Cir. 1986) (“The . . . proper function of a court of appeals

is to review the decision below on the basis of the record that was before the [lower] court.”

(footnote omitted)). Accordingly, because the voluntariness of Mr. Campbell’s interview

was not addressed by the circuit court in the first instance, we decline to address it on

appeal.

18

Prior to Mr. Campbell’s sentencing, trial counsel filed a “Motion for

Mental Status Evaluation.” By order entered on June 24, 2013, the circuit court granted

the motion “to determine if the Defendant is competent and to determine the Defendant’s

criminal responsibility at the time of the alleged offense.”

20

B. Jury Instructions

Mr. Campbell argues that the circuit court erred in failing to give two jury

instructions requested by the defense on the voluntariness of Mr. Campbell’s November

29, 2011 confession, and whether he made a knowing and voluntary waiver of his Miranda

rights. The State contends that the jury was properly instructed. After setting forth the

relevant facts and our standard of review for this issue, we will address its merits.

During the trial, the judge instructed the jury as follows before Mr.

Campbell’s recorded interview was played:

Ladies and gentleman of the jury, we conducted a hearing prior

to this trial regarding this interview process, and as a

consequence of that, I have ruled that you may observe and see

this, and that ruling only relates to its admissibility during this

trial.

You may consider what is contained in this statement

only if you conclude or believe by a preponderance of the

evidence, which is a preponderance of the evidence as opposed

to proof beyond a reasonable doubt. Preponderance means

more likely so than not. So, in other words, 50.0001 percent in

favor as opposed to 49.999 percent against, that you must find

by a preponderance of the evidence that such statement was

freely and voluntarily made without threat or coercion or

promise of reward.

Then, if you do not believe the State has met its burden

of proof, it is your duty to disregard such statement entirely.

So[,] in determining that, you may consider the

circumstances under which it was made, the defendant’s frame

of mind and any and all other circumstances.

21

You may attach whatever weight to the statement you

deem advisable based upon these considerations of all the

circumstances.

So[,] I tell you that just as a rule, if you will, in

determining how you consider this statement.

In addition, during the jury charge, the circuit court instructed that:

[U]nder the law of this State, the “confession” or “statement”

offered into evidence by the State may be considered by the

jury in determining the guilt or innocence of the defendant of

the crime charged in this case, only if the jury believes that the

state has proven by a preponderance of the evidence that such

statement was freely and voluntarily made without threat or

coercion or a promise of reward, and that if you do not believe

that the State has met this burden of proof, it is your duty to

disregard such statement entirely.

Mr. Campbell argues that the circuit court erred in refusing two instructions

he offered. The first, Defendant’s Proposed Jury Instruction Number 1, provided:

You are instructed that, [sic] the burden is upon the

State to prove by a preponderance of the evidence that any

statements made by the Defendant were made voluntarily, and

pursuant to the knowing and intelligent waiver of his [F]ifth

[A]mendment right against self incrimination. If you find that

the State has failed to meet this burden you must not consider

the statement in your deliberations. State v. Bradshaw, 193

W. Va. 519, 457 S.E. 2d 456 (1995).

The second instruction, Defendant’s Proposed Jury Instruction Number 3, would have

advised the jury as follows:

You are instructed that there is a legal presumption

against the waiver of ones [sic] right against self incrimination

as set forth in Miranda v. Arizona, [sic] to overcome this the

State must prove by at least a preponderance of the evidence

22

that the Defendant, John Campbell, made a knowing and

voluntary waiver of his rights pursuant to Miranda v. Arizona

to remain silent and not make a statement to Deputy Baker in

this case. If you find that he did not so waive his rights, you

must not consider any part of any statements made by him

during your deliberations. Brewer v. William[s], 430 U.S. 387

(1977), U.S. v. Grant, [549] F.2d 942 (4th Cir.), cert denied,

432 U.S. 908 (1977).

The circuit court declined to give both instructions on the ground that it had

already determined that there was no custodial interrogation, and, therefore, Miranda rights

did not attach, and Mr. Campbell’s waiver of his right against self-incrimination was not

required. To the extent that Instruction Number 1 commented on the State’s burden to

prove that Mr. Campbell’s confession had been voluntary, the circuit court found that

instruction was already covered in the jury charge.

Our standard of review for this assignment of error is two-part: “As a general

rule, the refusal to give a requested jury instruction is reviewed for an abuse of discretion.

By contrast, the question of whether a jury was properly instructed is a question of law,

and the review is de novo.” Syl. pt. 1, State v. Hinkle, 200 W. Va. 280, 489 S.E.2d 257

(1996). We consider the instructions as a whole to determine their sufficiency.

In general, the question on review of the sufficiency of

jury instructions is whether the instructions as a whole were

sufficient to inform the jury correctly of the particular law and

the theory of defense. We ask whether: (1) the instructions

adequately stated the law and provided the jury with an ample

understanding of the law, (2) the instructions as a whole fairly

and adequately treated the evidentiary issues and defenses

23

raised by the parties, (3) the instructions were a correct

statement of the law regarding the elements of the offense, and

(4) the instructions meaningfully conveyed to the jury the

correct burdens of proof.

State v. Miller, 197 W. Va. 588, 607, 476 S.E.2d 535, 554 (1996).

Mr. Campbell correctly observes that West Virginia follows the

Massachusetts rule with regard to the voluntariness of statements: “We adopt the

‘Massachusetts’ or ‘humane’ rule whereby the jury can consider the voluntariness of the

confession, and we approve of an instruction telling the jury to disregard the confession

unless it finds that the State has proved by a preponderance of the evidence it was made

voluntarily.” Syl. pt. 4, State v. Vance, 162 W. Va. 467, 250 S.E.2d 146 (1978).

We find the jury was properly instructed regarding the State’s burden to

establish, by a preponderance of the evidence, that Mr. Campbell’s confession was

voluntary; thus, the portion of Defendant’s Proposed Jury Instruction Number 1 that

repeated the State’s burden was properly rejected by the trial court as repetitive. A

defendant “is not entitled to repetitive or redundant instructions . . . .” State v. Putnam,

157 W. Va. 899, 903, 205 S.E.2d 815, 818 (1974). In other words, “It is not reversible

error to refuse to give instructions offered by a party that are adequately covered by other

instructions given by the court.” Syl. pt. 20, State v. Hamric, 151 W. Va. 1, 151 S.E.2d

252 (1966).

24

Likewise, Mr. Campbell was not entitled to have the jury instructed to

determine whether he had knowingly and intelligently waived his Fifth Amendment right

to remain silent, which was addressed in both of his proposed instructions. The circuit

court had already determined that Mr. Campbell’s Fifth Amendment rights, as set out in

Miranda v. Arizona, had not attached insofar as he had not been subjected to a custodial

interrogation. We have affirmed this ruling. Because Mr. Campbell’s rights never

attached, he was not required to waive them, 19 and the proposed instructions stating the

contrary were erroneous. “It has been consistently held in criminal cases that instructions

which are confusing, misleading[,] or which incorrectly state the law should not be given.

State v. Bolling, W. Va., 246 S.E.2d 631 (1978); Wilson v. Edwards, 138 W. Va. 613, 77

S.E.2d 164 (1953).” State v. Butcher, 165 W. Va. 522, 528, 270 S.E.2d 156, 160 (1980).

For these reasons, we find the circuit court did not err in refusing Defendant’s Proposed

Jury Instructions Number 1 and Number 3.

19

See, e.g., United States v. Garcia-Garcia, No. 2:21-CR-29, 2021 WL

1550075, at *5 (S.D. Tex. Apr. 19, 2021) (“[T]he interview was noncustodial as that term

has been defined by the courts for Miranda purposes. Therefore, [the officer] was not

required to obtain [the defendant’s] waiver of Miranda rights[.]”); Commonwealth v.

Walton, No. CP46CR000046592015, 2016 WL 3014810, at *5 (Pa. Ct. Com. Pl. Jan. 22,

2016) (explaining that where “the police were not obligated to administer the Miranda

warnings, . . . it follows that they were under no obligation to obtain a waiver of those

rights . . . Therefore[,] it is immaterial whether [a defendant’s] waiver of her constitutional

rights was knowing, intelligent or voluntary[.]”); State v. Judecki, No. CR-03-533, 2004

WL 1433628, at *5 (Me. Super. Apr. 22, 2004) (because interrogations were noncustodial,

“Miranda warnings and waivers were not required.”).

25

C. Ineffective Assistance of Counsel

Mr. Campbell asserts that his trial counsel’s failure to explore his mental state

prior to the sentencing stage of his criminal proceeding was ineffective assistance of

counsel, particularly where a defendant’s mental state can or should be a factor considered

as part of assessing the voluntariness of his confession under the totality of the

circumstances. The State argues that this claim is not properly before this Court. We agree

with the State.

This Court has explained that

The very nature of an ineffective assistance of counsel claim

demonstrates the inappropriateness of review on direct appeal.

To the extent that a defendant relies on strategic and judgment

calls of his or her trial counsel to prove an ineffective

assistance claim, the defendant is at a decided disadvantage.

Lacking an adequate record, an appellate court simply is

unable to determine the egregiousness of many of the claimed

deficiencies.

State v. Miller, 194 W. Va. 3, 15, 459 S.E.2d 114, 126 (1995). Furthermore,

It is the extremely rare case when this Court will find

ineffective assistance of counsel when such a charge is raised

as an assignment of error on a direct appeal. The prudent

defense counsel first develops the record regarding ineffective

assistance of counsel in a habeas corpus proceeding before the

lower court, and may then appeal if such relief is denied. This

Court may then have a fully developed record on this issue

upon which to more thoroughly review an ineffective

assistance of counsel claim.

26

Syl. pt. 10, State v. Triplett, 187 W. Va. 760, 421 S.E.2d 511 (1992). Mr. Campbell himself

observes in his brief that the reason trial counsel failed to bring all relevant information to

the circuit court at the suppression hearing “is pure speculation.” This Court has

commented that

In a direct appeal . . . it is often difficult, if not

impossible, for this Court to determine “whether the attorney’s

performance below was ineffective or merely the result of trial

strategy.” State v. Bess, 185 W. Va. 290, 293, 406 S.E.2d 721,

724 (1991). In past cases, this Court has cautioned that

“[i]neffective assistance claims raised on direct appeal are

presumptively subject to dismissal.” State v. Miller, 197

W. Va. 588, 611, 476 S.E.2d 535, 558 (1996). See City of

Philippi v. Weaver, 208 W. Va. 346, 351, 540 S.E.2d 563, 568

(2000). Such claims are more properly raised in a post-

conviction collateral proceeding “to promote development of a

factual record sufficient for effective review.” Miller, 197

W. Va. at 611, 476 S.E.2d at 558.

State v. Woodson, 222 W. Va. 607, 621, 671 S.E.2d 438, 452 (2008) (per curiam). We

have further cautioned that

Traditionally, ineffective assistance of counsel claims are not

cognizable on direct appeal. We have urged counsel

repeatedly to think of the consequences of raising this issue on

direct appeal. Claims that an attorney was ineffective involve

inquiries into motivation behind an attorney’s trial strategies.

See State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).

Without such facts trial counsel’s alleged lapses or errors will

be presumed tactical moves, flawed only in hindsight. What is

more, in the event a defendant pursues his claim on direct

appeal and it is rejected, our decision will be binding on the

circuit court through the law of the case doctrine, “leaving

[defendant] with the unenviable task of convincing the [circuit

court] judge that he should disregard our previous ruling.” U.S.

v. South, 28 F.3d 619, 629 (7th Cir. 1994). That is why in

27

Miller we suggested that a defendant who presents an

ineffective assistance claim on direct appeal has little to gain

and everything to lose.

State ex rel. Daniel v. Legursky, 195 W. Va. 314, 317 n.1, 465 S.E.2d 416, 419 n.1 (1995).

In his reply brief, Mr. Campbell notes that his trial counsel’s law license has

been annulled, see Law. Disciplinary Bd. v. Morgan, 243 W. Va. 627, 849 S.E.2d 627

(2020), but he does not allege that the annulment renders him unable to call former counsel

as a witness in a habeas proceeding. Moreover, Mr. Campbell’s argument goes on to pose

various questions regarding counsel’s actions that cannot be answered in this Court and,

therefore, would result in the assumption that they were matters of strategy. Mr. Campbell

also fails to analyze or even quote the relevant test for ineffective assistance of counsel.

See Syl. pt. 5, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (“In the West Virginia courts,

claims of ineffective assistance of counsel are to be governed by the two-pronged test

established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674

(1984): (1) Counsel’s performance was deficient under an objective standard of

reasonableness; and (2) there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceedings would have been different.”). 20 For

20

Mr. Campbell also ostensibly fails to appreciate that

As we stressed in Miller, “[t]he test of ineffectiveness has little

or nothing to do with what the best lawyers would have done.

Nor is the test even what most good lawyers would have done.”

194 W. Va. at 16, 459 S.E.2d at 127. Rather, the focus of any

28

these reasons, we find that Mr. Campbell’s claim of ineffective assistance of counsel is not

properly before this court in a direct appeal; accordingly, it will not be addressed.

IV.

CONCLUSION

For the reasons explained in the body of this opinion, we conclude that the

circuit court did not err by refusing to suppress Mr. Campbell’s recorded confession, or by

refusing to give Mr. Campbell’s two proposed jury instructions. Furthermore, Mr.

Campbell’s claim of ineffective assistance of counsel is not properly before this Court, and

we decline to address the same. Accordingly, we affirm the circuit court’s order dated

January 24, 2020.

Affirmed.

habeas evidentiary hearing as it relates to ineffective assistance

of counsel is affording a petitioner’s trial counsel an

opportunity to explain his actions during the underlying trial.

See id. at 17, 459 S.E.2d at 128 (stating “we intelligently

cannot determine the merits of . . . ineffective assistance

claim[s] without an adequate record giving trial counsel the

courtesy of being able to explain his trial actions.”).

Tex S. v. Pszczolkowski, 236 W. Va. 245, 254, 778 S.E.2d 694, 703 (2015).

29