Darrell V. McGraw, Jr., Esq.
Attorney General
Silas B. Taylor, Esq.
Senior Deputy Attorney General
Leah Perry Macia, Esq.
Assistant Attorney General
Charleston, West Virginia
Attorneys for Appellee

Damon B. Morgan, Jr., Esq.
Nibert & Morgan
Point Pleasant, West Virginia
Attorney for Appellant

The Opinion of the Court was delivered PER CURIAM.

        1.    “To successfully challenge the validity of a search warrant on the basis of false information in the warrant affidavit, the defendant must establish by a preponderance of the evidence that the affiant, either knowingly and intentionally or with reckless disregard for the truth, included a false statement therein.” Syllabus Point 1, in part, State v. Lilly, 194 W.Va. 595, 461 S.E.2d 101 (1995).

        2.    “The constitutional guarantee under W.Va. Const., Article III, § 6 that no search warrant will issue except on probable cause goes to substance and not to form; therefore, where it is conclusively proved that a magistrate acted as a mere agent of the prosecutorial process and failed to make an independent evaluation of the circumstances surrounding a request for a warrant, the warrant will be held invalid and the search will be held illegal.” Syllabus Point 2, State v. Dudick, 158 W.Va. 629, 213 S.E.2d 458 (1975).

        3.    “If the count in an indictment on which a conviction is had is good, it is immaterial whether a demurrer to other counts should have been sustained. If error is committed in overruling the demurrer, it is clearly not prejudicial to the accused.” Syllabus Point 1, State v. Hoke, 76 W.Va. 36, 84 S.E. 1054 (1915).

        4.    “To trigger application of the 'plain error' doctrine, there must be (1) error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings.” Syllabus Point 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

        5.    “Under the Due Process Clause of the West Virginia Constitution, Article III, Section 10, and the presumption of innocence embodied therein, and Article III, Section 5, relating to the right against self-incrimination, it is reversible error for the prosecutor to cross-examine a defendant in regard to his pre-trial silence or to comment on the same to the jury.” Syllabus Point 1, State v. Boyd, 160 W.Va. 234, 233 S.E.2d 710 (1977).

        6.    “Under Rule 801(d)(2)(E) of the West Virginia Rules of Evidence, a declaration of a conspirator, made subsequent to the actual commission of the crime, may be admissible against any co-conspirator if it was made while the conspirators were still concerned with the concealment of their criminal conduct or their identity.” Syllabus Point 3, State v. Helmick, 201 W.Va. 163, 495 S.E.2d 262 (1997).

        7.    “The decision of a trial court to deny probation will be overturned only when, on the facts of the case, that decision constituted a palpable abuse of discretion.” Syllabus Point 2, State v. Shafer, 168 W.Va. 474, 284 S.E.2d 916 (1981).

Per Curiam:

        The defendant, Larry Ramsey, appeals his December 3, 1998 conviction by jury of the felony offenses of manufacturing a controlled substance and of conspiracy to manufacture a controlled substance. By order dated December 7, 1998, the Circuit Court of Jackson County entered the guilty verdicts. The defendant was sentenced to the penitentiary for a term of one to five years for each offense, with the sentences to run concurrently. The defendant now raises several assignments of error on appeal to this Court.

        Todd Ramsey entered a plea of guilty to manufacturing a controlled substance and was sentenced to one to five years. He testified at the defendant's trial that he had grown the marijuana plants himself and that, prior to July 20, 1997, the defendant had no knowledge of the plants. The defendant also testified that he had no knowledge of the marijuana plants prior to his discovery of them on July 20, 1997.

        The defendant was found guilty of manufacturing a controlled substance and conspiracy to manufacture a controlled substance. He was acquitted of possession with intent to deliver a controlled substance and conspiracy to possess with intent to deliver a controlled substance.

        We will now discuss the several assignments of error raised by the defendant.

         The defendant attacks the validity of the search warrant executed for the search of his home on two grounds.See footnote 5 ⁵ First, the defendant argues that the search warrant was invalid due to the reckless insertion of false facts. Both the affidavit and complaint for the search warrant, executed by Officer Metz, and the search warrant stated in pertinent part:

            . . . Cpl. C.C. Metz and Dep. Roger Rhodes did observe Larry B. Ramsey and Todd Ramsey his son bringing water to and taking care of seven [7] marijuana plants located next to the residence of the suspect.
        
Officer Rhodes testified at the pre-trial suppression hearing and at trial that he did not observe the defendant and his son at the marijuana plants, but that he did observe the defendant and his son walking toward the area where the marijuana plants were located, and both were carrying milk jugs containing water. Officer Metz, on the other hand, testified that he did not see the defendant and his son bringing water to the plants but he did see them inspecting the plants. The defendant concludes that the warrant affidavit contains false statements because both officers did not see the defendant bringing water to the marijuana plants, and because Officer Metz testified that he saw the defendant “inspecting” the plants which, says the defendant, is different from “taking care” of them.

        We recently set forth the standard governing this issue in Syllabus Point 1 of State v. Lilly, 194 W.Va. 595, 461 S.E.2d 101 (1995) where we stated in part:

                To successfully challenge the validity of a search warrant on the basis of false information in the warrant affidavit, the defendant must establish by a preponderance of the evidence that the affiant, either knowingly and intentionally or with reckless disregard for the truth, included a false statement therein.

Thus, the defendant must show by a preponderance of the evidence both that there was a false statement in the search warrant, and that it was placed there intentionally and knowingly or with a reckless disregard for the truth. “Mere negligence or innocent mistake is insufficient to void a warrant.” State v. Lilly, 194 W.Va. at 601, 461 S.E.2d at 107, citing Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667, 682 (1982). In determining whether a statement is false, this Court has said that “a statement in a warrant is not false . . . merely because it summarizes facts in a particular way; if a statement can be read as true, it is not a misrepresentation.” Lilly, 194 W.Va. at 601, 461 S.E.2d at 107. Finally, we give great deference to a trial court's findings so that “findings of a circuit court concerning whether an affidavit contains deliberatelyfalsified information are not subject to reversal unless they are clearly wrong.” Id., citing State v. Wood, 177 W.Va. 352, 354-55, 352 S.E.2d 103, 105-06 (1986).

        Applying this law to the instant facts, we do not believe that the warrant affidavit contains false statements. Rather, the affidavit may be read as merely summarizing facts in a particular way. The defendant was seen by one of the officers listed in the warrant affidavit both walking toward the marijuana plants with a jug of water and inspecting the plants. Also, we believe that “inspecting” marijuana plants may fairly be characterized as “taking care” of them. Even presuming that the statements at issue constitute misrepresentations, however, the defendant has failed to prove that they are the result of more than mere negligence or mistake.

        Second, the defendant attacks the validity of the search warrant on the basis that the magistrate who issued it failed to exercise independent judgment. The defendant bases this claim on Officer Metz's testimony that Deputy Sheriff Bruce DeWees wrote the warrant affidavit and the body of the search warrant, and that the magistrate signed and dated it. In addition, avers the defendant, the evidence fails to demonstrate that the magistrate questioned the police officers concerning the existence of probable cause. The defendant concludes from this that the magistrate failed to exercise independent judicial judgment.

        In Syllabus Point 2 of State v. Dudick, 158 W.Va. 629, 213 S.E.2d 458 (1975), this Court stated:

                The constitutional guarantee under W.Va. Const., Article III, § 6 that no search warrant will issue except on probable cause goes to substance and not to form; therefore, where it is conclusively proved that a magistrate acted as a mere agent of the prosecutorial process and failed to make an independent evaluation of the circumstances surrounding a request for a warrant, the warrant will be held invalid and the search will be held illegal.

The facts of Dudick were that during a motion to suppress the evidence seized under the search warrant, defendant's counsel called to the stand the justice of the peace who issued the warrant. The justice of the peace testified that he signed or stamped the search warrant without being aware that the search warrant was being sought upon the information of “a reliable informant,” 158 W.Va. at 641, 213 S.E.2d at 466, without knowing who the informant was, and without making an independent determination as to whether the informant was reliable. This Court found that the magistrate became a mere agent of the prosecution and held the search warrant invalid.

        In State v. Slonaker, 167 W.Va. 97, 280 S.E.2d 212 (1981), we reiterated our holding in Dudick. In Slonaker, as in Dudick, the magistrate who issued the search warrant was not involved in the preparation of the affidavit or the warrant. However, we found that the magistrate's subsequent questioning of the affiant was adequate to permit him to make an independent evaluation of probable cause.

        Finally, in State v. Bates, 181 W.Va. 36, 380 S.E.2d 203 (1989), it was claimed that the magistrate who issued the search warrant did not direct the police officer in filling out the search warrant but merely watched the officer sign the affidavits under oath. The record revealed, however, that after reading the affidavit and warrant prepared by the officer, the magistrate requested the officer to relate the circumstances leading to his request for a search warrant. This Court concluded that, like the magistrate in Slonaker, the magistrate acted in a sufficiently independent manner, by conducting an examination of the affiant under oath, to validate the search warrant.

        In the instant case, there is evidence that the search warrant was prepared by Officer DeWees and not the magistrate. But unlike Dudick, Slonaker, and Bates, the record does not reveal the process that occurred prior to the magistrate's issuance of the search warrant. “[O]rdinarily this Court will not go behind the thought processes of a judge or magistrate” when examining the validity of a search warrant. Dudick, 158 W.Va. at 641, 213 S.E.2d at 465. We depend, rather, upon the affidavit in support of the search warrant which is usually the only available evidence of the facts and circumstances justifying the issuance of the warrant. We will only go beyond the warrant affidavit to examine the thought processes of the magistrate “when other evidence conclusively demonstrates that a magistrate is so influenced by the police that he becomes a mere agent of the prosecution[.]” Dudick, 158 W.Va. at 642, 213 S.E.2d at 466. There is no such evidence in the present case.See footnote 6 ⁶ Instead, the defendant presents us with only the search warrant prepared by Officer DeWees and signed and dated by the magistrate and the naked assertion that the magistrate failed to exercise independent judicial judgment. Therefore, the defendant has not conclusively shown that the magistrate failed to make an independent evaluation of the circumstances surrounding the request for a warrant. Accordingly, we find that the circuit court did not err in holding that the search warrant issued for the search of the defendant's house was valid.

        In Syllabus Point 1 of State v. Hoke, 76 W.Va. 36, 84 S.E. 1054 (1915), this Court stated “[i]f the count in an indictment on which a conviction is had is good, it is immaterial whether a demurrer to other counts should have been sustained. If error is committed in overruling the demurrer, it is clearly not prejudicial to the accused.” The defendant in this case was convicted of only one count of conspiracy. Further, he does not contend that the evidence is insufficient to support his conviction of this single conspiracy. Therefore, the defendant's complaint that he was tried for another conspiracy count forwhich he was not convicted is rendered immaterial. The defendant was not prejudiced by the improper conspiracy count, if such it was, a question we need not decide.

        At this point, we note that the defendant's next three assignments of error, concerning the admission of evidence, were not objected to at trial.See footnote 8 ⁸ Therefore, the admission of this evidence must invoke the plain error doctrine before this Court will reverse the defendant's conviction. In Syllabus Point 7 of State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995), this Court held that in order “[t]o trigger application of the 'plain error' doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings.” Accordingly, we will analyze the next three assignments of error under our plain error rule.

            If things happened the way Larry Ramsey tried to tell you, he would have just walked down the road. He knew what was going on. Somebody had caught them. He didn't say, “Don't shoot.” He just left. He and Todd went in opposite directions. That's not a coincidence either.

                When Mr. Ramsey came out of the brush, he was confronted by a person he's known for years and knows to be a law enforcement officer. Did he say, “Oh, Roger, thank goodness you came along; I was in somebody's marijuana patch and I saw somebody up there. You better go see who's up there.” No, he didn't say that. He didn't say anything, because he knew what had happened.

The defendant now claims that these admissions into evidence of his silence undermined the presumption of innocence.

        In Syllabus Point 1 of State v. Boyd, 160 W.Va. 234, 233 S.E.2d 710 (1977), this Court stated:

                Under the Due Process Clause of the West Virginia Constitution, Article III, Section 10, and the presumption of innocence embodied therein, and Article III, Section 5, relating to the right against self- incrimination, it is reversible error for the prosecutor to cross-examine a defendant in regard to his pre-trial silence or to comment on the same to the jury.

Our holding in Boyd was based on the United States Supreme Court holding in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) that the constitutional right to remain silent carries with it the principle that a defendant cannot be impeached at trial by his pre-trial silence. The Doyle-Boyd rule does not apply in the instant case, however, because there is evidence that the defendant's silence occurred prior to his arrest and the giving of Miranda warnings.

        In State ex rel. Boso v. Hedrick, 182 W.Va. 701, 391 S.E.2d 614 (1990), the defendant claimed ineffective assistance of counsel because his lawyer failed to object to the State's cross-examination of him regarding his pre-trial silence. The defendant claimed at trial that he was at his mother's home when the crime was committed. On cross-examination, he was asked why he had not disclosed this exculpatory information when he surrendered to police.See footnote 9 ⁹ This Court found that the Doyle-Boyd principle did not apply, and explained:

                We recognized in [State v.] Oxier, . . . [175 W.Va. 760, 338 S.E.2d 360 (1985)], that in Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982), the United States Supreme Court held the prosecutor's cross-examination of the defendant regarding his post-arrest silence did not violate Doyle because there were no Miranda warnings given. [175] W.Va. at [761], 338 S.E.2d at 361. In Oxier, we noted that the Supreme Court in Jenkins v. Anderson, 447 U.S. 231, 240, 100 S.Ct. 2124, 2130, 65 L.Ed.2d 86, 96 (1980), reasoned:

                “In this case, no governmental action induced petitioner to remain silent before arrest. The failure to speak occurred before the petitioner was taken into custody and given Miranda warnings. Consequently, the fundamental unfairness present in Doyle is not present in this case. We hold that impeachment by use of prearrest silence does not violate the Fourteenth Amendment.”

        Our rationale in Hedrick applies to the facts of the instant case. In his brief to this Court, the defendant argues that the silence admitted at trial was post-arrest.See footnote 10 ¹⁰ The State's evidence, however, was that the defendant's silence when he encountered Officer Rhodes occurred prior to the defendant's arrest. Specifically, Officer Rhodes testified that after his encounter with the defendant, in which the defendant said only that he was walking his dogs, Officers Metz and Taylor arrived, identified themselves, read the defendant the Miranda warnings, and placed them under arrest. Because of the evidence that the defendant's silence occurred prior to his arrest and the giving of Miranda warnings, we conclude that the use of this silence at trial was not plainly wrong.See footnote 11 ¹¹

        In Syllabus Point 3 of State v. Helmick, 201 W.Va. 163, 495 S.E.2d 262 (1997), we stated:

                Under Rule 801(d)(2)(E) of the West Virginia Rules of Evidence, a declaration of a conspirator, made subsequent to the actual commission of the crime, may be admissible against any co-conspirator if it was made while the conspirators were still concerned with the concealment of their criminal conduct or their identity.

In Helmick, an alleged co-conspirator to murder testified at the defendant's trial that the day following the murder, the defendant admitted to killing the victim. The defendant contended in his appeal to this Court that this alleged statement to the alleged co- conspirator was not admissible under Rule 801(d)(2)(E) of the West Virginia Rules of Evidence because it was made after the termination of the conspiracy. We disagreed and found that the statement was made during the course of the conspiracy because the conspirators were still concerned with the concealment of their criminal conduct and their identity. However, we concluded that the statement did not fall within the co-conspirator exemption to the hearsay rule because it did not serve to further the conspiracy.See footnote 13 ¹³

        In the instant case, the statement made by Todd Ramsey to Officer Rhodes was made when the co-conspirators were still concerned with the concealment of their criminal conduct and their identity. Therefore, it was made in the course of the conspiracy. Also, unlike in Helmick, the statement was clearly made to serve the purpose of concealing the conspiracy to grow marijuana in that it was designed to persuade Officer Rhodes, a long-time acquaintance, not to arrest the defendant and his son. Accordingly, we find no error in the admission of Todd Ramsey's statement to Officer Rhodes.

        Officer Metz testified that when he and the defendant arrived at the defendant's house subsequent to the arrest, the defendant's wife said to him, “I warned you about this. I'm not comin' to get you out.” The defendant argues that Officer Metz's testimony was a violation of the husband-wife privilege and the hearsay rule. While W.Va. Code, 57-3-3 (1923) provides that generally a husband and wife shall not be allowed to be called as a witness against the other in criminal cases, as conceded by the defendant, this code section applies only to the spouse's in-court testimony and, thus, is not applicable here. State v. Bailey, 179 W.Va. 1, 365 S.E.2d 46 (1987).

        The defendant also avers that the admission of this statement violated the hearsay rule. Unfortunately, the admission of this evidence was not objected to at trial so that we do not know the trial court's reason for allowing it. While it may be argued that the statement was admissible as a statement against interest pursuant to Rule 804(b)(3) of the West Virginia Rules of Evidence, this Court will presume that the admission of the statement was error. We fail to see, however, how the error affected the substantial rights

of the defendant. In State v. Miller, supra, we said that to affect substantial rights, the error “must have affected the outcome of the proceedings in the circuit court.” 194 W.Va. at 18, 459 S.E.2d at 129. Further, “[i]t is the defendant rather than the [prosecutor] who bears the burden of persuasion with respect to prejudice.” Id., quoting United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 1778, 123 L.Ed.2d 508, 520 (1993). After reviewing the record and the State's evidence, we are unable to conclude, and the defendant has not proved to us, that the admission of his wife's statement affected the outcome of the trial. Accordingly, we find that it does not constitute plain error.

        Finally, the defendant claims that it was an abuse of discretion for the trial court to sentence him to the penitentiary without making specific findings justifying such a sentence. According to the defendant, he met all of the trial court's requirements for probation except for the fact that he was not quick to express remorse. Under any objective standard, says the defendant, this is not a crime that justifies sending an otherwise productive member of society to the penitentiary. The defendant further argues that the order refusing release on probation did not contain a statement of the reasons for the refusal of probation, in violation of W.Va. Code, 62-12-8.

        We have previously recognized that “a defendant convicted of a crime has no absolute right to probation.” State v. Loy, 146 W.Va. 308, 318, 119 S.E.2d 826, 832 (1961). Rather, probation is “a matter of grace.” Syllabus Point 3, State ex rel. Winter v. MacQueen, 161 W.Va. 30, 239 S.E.2d 660 (1977). Accordingly, “[t]he decision of a trial court to deny probation will be overturned only when, on the facts of the case, that decision constituted a palpable abuse of discretion.” Syllabus Point 2, State v. Shafer, 168 W.Va. 474, 284 S.E.2d 916 (1981). There is simply nothing in the facts of this case to persuade us that the trial court's decision to deny probation was either arbitrary or erroneous.

        W.Va. Code § 62-12-8 (1939) states in relevant part that “[o]rders granting or refusing release on probation shall contain a brief statement by the court of the reasons for its action.” The trial court order states:

                Based upon the matters set forth in the within presentence investigation report, the jury verdict filed herein, the statements of the Defendant and his attorney, and all other matters appearing of record to the Court, the Court could not find that the Defendant was unlikely to again commit crime, and that the public weal did not require that the Defendant be imprisoned[.]

We believe that this is sufficient to meet the requirement of W.Va. Code § 62-12-8. In State v. Shafer, this Court found an order denying probation satisfactory which read: “the ends of justice would not be served by placing the defendant on probation.” 168 W.Va. at 477, 284 W.Va. at 919. The Court concluded that “[w]hile such language is conclusory and perhaps not in the true spirit of the statute, we cannot say that it constitutes error.” Id. The order in the instant case is much more detailed than the one found sufficient in Shafer. Accordingly, we find that the trial court did not abuse its discretion in denying probation to the defendant, and that the trial court's order met the requirement of W.Va. Code § 62-12-8.

        In sum, we find, for the foregoing reasons, that the trial court did not commit prejudicial error. Accordingly, we affirm the final order of the Circuit Court of Jackson County.

                                             Affirmed.

testimony constitutes prejudicial error. In State v. Hamilton, 177 W.Va. 611, 355 S.E.2d 400 (1987), a police officer testified that the defendant made no statement after the defendant's arrest and Miranda warnings were given. This Court determined that the comment was not about the defendant's failure to give his story or alibi at the time he was arrested and that its prejudicial effect was minimal. In the instant case, the officer simply stated “no” to the prosecutor's query concerning whether the defendant said anything else to the officer prior to the defendant's arrest. We believe that this was not prejudicial to the defendant.