672 S.E.2d 271
The Opinion of the Court was delivered PER CURIAM.
JUSTICE BENJAMIN concurs and reserves the right to file a concurring opinion.
JUSTICE ALBRIGHT not participating.
SENIOR STATUS JUSTICE MCHUGH sitting by temporary assignment.
2. “In reviewing challenges to the findings and conclusions of the circuit
court in a habeas corpus action, we apply a three-prong standard of review. We review the
final order and the ultimate disposition under an abuse of discretion standard; the underlying
factual findings under a clearly erroneous standard; and questions of law are subject to a de
novo review.” Syllabus Point 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).
3. “The special safeguards outlined in Miranda are not required where a
suspect is simply taken into custody, but rather only where a suspect in custody is subjected
to interrogation. To the extent that language in State v. Preece, 181 W.Va. 633, 383 S.E.2d
815 (1989), and its progeny, may be read to hold differently, such language is expressly
overruled.” Syllabus Point 8, State v. Guthrie, 205 W.Va. 326, 518 S.E.2d 83 (1999).
4. “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).
5. “Failure to observe a constitutional right constitutes reversible error
unless it can be shown that the error was harmless beyond a reasonable doubt.” Syllabus
Point 5, State ex rel. Grob v. Blair, 158 W.Va. 647, 214 S.E.2d 330 (1975).
6. “The Double Jeopardy Clause in Article III, Section 5 of the West
Virginia Constitution, provides immunity from further prosecution where a court having
jurisdiction has acquitted the accused. It protects against a second prosecution for the same
offense after conviction. It also prohibits multiple punishments for the same offense.”
Syllabus Point 1, Conner v. Griffith, 160 W.Va. 680, 238 S.E.2d 529 (1977).
7. “A claim that double jeopardy has been violated based on multiple
punishments imposed after a single trial is resolved by determining the legislative intent as
to punishment.” Syllabus Point 7, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992).
8. “In ascertaining legislative intent, a court should look initially at the
language of the involved statutes, and, if necessary, the legislative history to determine if the
legislature has made a clear expression of its intention to aggregate sentences for related
crimes. If no such clear legislative intent can be discerned, then the court should analyze the
statutes under the test set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180,
76 L.Ed. 306 (1932), to determine whether each offense requires an element of proof the
other does not. If there is an element of proof that is different, then the presumption is that
the legislature intended to create separate offenses.” Syllabus Point 8, State v. Gill, 187
W.Va. 136, 416 S.E.2d 253 (1992).
9. “'Where the same act or transaction constitutes a violation of two
distinct statutory provisions, the test to be applied to determine whether there are two
offenses or only one is whether each provision requires proof of an additional fact which the
other does not.' Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76
L.Ed. 306, 309 (1932).” Syllabus Point 4, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253
(1992).
10. “A building which contains an apartment, intended for habitation,
whether occupied, unoccupied or vacant, is a 'dwelling house' for purposes of W.Va.Code,
61-3-1, as amended.” Syllabus Point 3, State v. Mullins, 181 W.Va. 415, 383 S.E.2d 47
(1989).
In reviewing challenges to the findings and conclusions
of the circuit court in a habeas corpus action, we apply a three-
prong standard of review. We review the final order and the
ultimate disposition under an abuse of discretion standard; the
underlying factual findings under a clearly erroneous standard;
and questions of law are subject to a de novo review.
Syllabus Point 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006). With these
standards in mind, we now consider the issues presented in this appeal.
In Miranda, the United States Supreme Court explained that, “By custodial
interrogation, we mean 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, 86 S.Ct. at 1612, 16 L.Ed.2d at 706. In Rhode Island v. Innis, 446
U.S. 291, 300, 100 S.Ct. 1682, 1689, 64 L.E.2d 297, 307 (1980), the United States Supreme
Court further explained that,
It is clear that the Miranda safeguards were never intended to apply to the typical “on-the-scene” investigation. In that regard, the United States Supreme Court stated in Miranda that,
Our decision is not intended to hamper the traditional
function of police officers in investigating crime. . . . General
on-the-scene questioning as to facts surrounding a crime or other
general questioning of citizens in the fact-finding process is not
affected by our holding.
384 U.S. at 477, 86 S.Ct. at 1629, 16 L.Ed.2d at 725. Thus, the determination of whether a
person was subjected to custodial interrogation for purposes of Miranda requires a
consideration of the totality of the circumstances. To that end, this Court has set forth a list
of factors which a trial court must consider in determining whether a custodial interrogation
environment exists. In Syllabus Point 2 of State v. Middleton, 220 W.Va. 89, 640 S.E.2d 152
(2006), this Court held 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.
As we indicated, the list of factors set forth in Middleton is not all-inclusive.
Other factors relevant to the determination of whether a custodial interrogation occurred
include “the nature of the interrogator, the nature and condition of the suspect, the time and
length of the questioning, the nature of the questioning_accusatory or investigatory, [and] the
focus of the investigation at the time of questioning[.]” Moore v. Ballone, 488 F.Supp 798,
805 (E.D.Va. 1980). See also Barnes v. State, 174 P.3d 732, 737 (Wyo. 2008). When all of
these factors are considered, we are unable to conclude that the appellant was subjected to
custodial interrogation by Mr. Ellis.
The record shows the appellant was pursued by two fire marshals when he ran
from a burning building. They called the police department for assistance and yelled at the
appellant, “Stop, Freeze!” When the appellant finally stopped running, he was told by Mr.
Ellis to keep his hands in the air. Mr. Ellis then made the appellant lie face down on the
ground. He proceeded to ask the appellant what he was doing in the building.
During proceedings below, Mr. Ellis testified that as a city fire marshal he is
required to carry a firearm. While the appellant testified that he believed that Mr. Ellis was
pointing a gun at the back of his head, Mr. Ellis denied using his weapon. The record also
indicates that after the appellant stopped running, Mr. Palmer stated that he was going to his
car to get his handcuffs. (See footnote 10) Mr. Palmer, as a state deputy fire marshal, had the authority to
arrest the appellant. (See footnote 11) However, before Mr. Palmer returned, Officer Compton arrived on the
scene and actually made the arrest.
With regard to custodial status, this Court has held that such a determination
is “based upon whether a reasonable person in the suspect's position would have considered
his or her freedom of action curtailed to a degree associated with a formal arrest.” Syllabus
Point 1, in part, Middleton. In this case, the appellant was stopped by two fire marshals at
the scene of a fire. No police officers were present although Mr. Ellis did radio the
Huntington Police Department for back up. Mr. Ellis asserted authority over the appellant
in the same manner as a police officer, but he actually had no authority to arrest the appellant.
While Mr. Palmer did have arrest powers, he left the scene. The appellant was actually
arrested by a police officer, and at that point, he was read his Miranda rights.
Upon review of all the facts, it is arguable that a reasonable person in the
appellant's position would have considered his or her freedom of action curtailed to a degree
associated with a formal arrest. However, this is certainly a close case especially in light of
the fact that Mr. Ellis and Mr. Palmer are not police officers. Nonetheless, even if we were
to conclude that the appellant was in custody, our analysis does not end. As discussed above, Miranda warnings are only required when there is both custody and interrogation. Syllabus
Point 4, Guthrie, supra.
In this case, the appellant gave an inculpatory statement in response to a single
question asked by a fire marshal. The appellant was simply asked what he was doing in the
building. Obviously, this cannot be characterized as an accusatory question. Furthermore,
it is certainly not the type of question that is designed to elicit an incriminating response.
Rather, this is a general on-the-scene question that is expected during an arson investigation.
The record also shows that after the appellant responded to Mr. Ellis, he was not questioned
further. When the totality of circumstances is considered, we are unable to find that the
appellant was subjected to custodial interrogation as contemplated by the United States
Supreme Court in Miranda and Innis, supra.
Furthermore, even if we were to conclude that the statement the appellant made
to Mr. Ellis was the product of an improper custodial interrogation, the admission of the
statement at trial was harmless error. This Court has held that, “Failure to observe a
constitutional right constitutes reversible error unless it can be shown that the error was
harmless beyond a reasonable doubt.” Syllabus Point 5, State ex rel. Grob v. Blair, 158
W.Va. 647, 214 S.E.2d 330 (1975). The record shows that Corporal Sexton testified at trial
that after the appellant was arrested and read his Miranda rights, he continued to make
numerous spontaneous statements. Corporal Sexton told the jury that the appellant expressed
his dislike for the owner of the building and stated that “this was payback” and that he had
“come back to finish the job.” (See footnote 12) Essentially, the jury heard the same testimony from Corporal
Sexton and Mr. Ellis with regard to statements made by the appellant. There is no question
that the voluntary statements the appellant made after he was arrested and Mirandized were
admissible evidence. Thus, absent Mr. Ellis's testimony, there was sufficient evidence to
support the jury's convictions. Accordingly, we find no merit to the appellant's argument
that the trial court erred by admitting into evidence the statement he made to Mr. Ellis.
The appellant next contends that the trial court erred by admitting into evidence
Corporal Sexton's report which contained a statement made by a witness, Mike Smith, at the
scene of the fire. Mr. Smith told Corporal Sexton that he had seen a person with an abrasion
on his forehead who was wearing a dark hooded jacket kick the door of the building and
enter the premises before the first fire started. The appellant was wearing clothing matching
this description when he was arrested. Mr. Smith did not appear to testify at trial. (See footnote 13) Thus,
the appellant contends that the admission of Mr. Smith's statement through Corporal
Sexton's report was a violation of the Confrontation Clause of the United States and West
Virginia Constitutions. (See footnote 14)
In Syllabus Point 6 of State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311
(2006), this Court held that,
Pursuant to Crawford v. Washington, 541 U.S. 36, 124
S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Confrontation Clause
contained within the Sixth Amendment to the United States
Constitution and Section 14 of Article III of the West Virginia
Constitution bars the admission of a testimonial statement by a
witness who does not appear at trial, unless the witness is
unavailable to testify and the accused had a prior opportunity to
cross-examine the witness.
Upon review of the record, we are unable to find that the trial court committed reversible
error in admitting this evidence for two reasons. First, the record indicates that this evidence
was presented at trial only to show why Officer Compton believed he had probable cause to
arrest the appellant. The jury was specifically instructed by the trial judge when this
evidence was admitted that it could not be considered as a true identification of the appellant
at the scene of the fire because Mr. Smith was not available to testify. Secondly, even if the
admission of this evidence at trial was improper, it was harmless error. This evidence placed
the appellant at the building prior to the first fire. However, the appellant was acquitted of
all charges related to the first fire. Thus, this evidence did not contribute to the appellant's
convictions. Therefore, we find no merit to this argument.
Finally, the appellant contends that his convictions for both first degree arson
and second degree arson violated the double jeopardy clause of the United States and West
Virginia Constitutions. (See footnote 15) As set forth above, the State alleged that the appellant set two
separate fires, hours apart, in the subject building. The appellant was charged with one count
of first degree arson and one count of second degree arson for each fire for a total of four
counts of arson. The State's theory was that the appellant could be charged with two counts
of arson for each fire because the building contained both businesses and apartments. Thus,
the State maintained that the appellant had committed first degree arson by burning the
apartments and second degree arson by burning the businesses. The jury returned guilty
verdicts for Counts II and IV of the indictment. The appellant was acquitted of all other
charges. Count II charged the appellant with first degree arson for the second fire and Count
IV charged the appellant with second degree arson for the second fire. Thus, the appellant
was found guilty of both first degree arson and second degree arson for setting the second
fire. He now contends that he is being punished twice for one offense in violation of the
double jeopardy clause. We agree.
This Court has held that, “The Double Jeopardy Clause in Article III, Section
5 of the West Virginia Constitution, provides immunity from further prosecution where a
court having jurisdiction has acquitted the accused. It protects against a second prosecution
for the same offense after conviction. It also prohibits multiple punishments for the same
offense.” Syllabus Point 1, Conner v. Griffith, 160 W.Va. 680, 238 S.E.2d 529 (1977). At
issue in this case is the prohibition of multiple punishments for the same offense. It is well
established that, “A claim that double jeopardy has been violated based on multiple
punishments imposed after a single trial is resolved by determining the legislative intent as
to punishment.” Syllabus Point 7, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992).
This Court has held that,
In ascertaining legislative intent, a court should look
initially at the language of the involved statutes, and, if
necessary, the legislative history to determine if the legislature
has made a clear expression of its intention to aggregate
sentences for related crimes. If no such clear legislative intent
can be discerned, then the court should analyze the statutes
under the test set forth in Blockburger v. United States, 284 U.S.
299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), to determine whether
each offense requires an element of proof the other does not. If
there is an element of proof that is different, then the
presumption is that the legislature intended to create separate
offenses.
Syllabus Point 8, Gill.
Our arson statutes do not explicitly indicate whether the Legislature intended,
or did not intend, to permit multiple sentences for multiple offenses arising out of the same
act. Accordingly, we must apply the Blockburger test. Pursuant to Blockburger, “'Where
the same act or transaction constitutes a violation of two distinct statutory provisions, the test
to be applied to determine whether there are two offenses or only one is whether each
provision requires proof of an additional fact which the other does not.' Blockburger v.
United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932).” Syllabus
Point 4, Gill. Multiple punishments are only appropriate if each provision requires proof of
an additional fact which the other does not. State v. Zaccagnini, 172 W.Va. 491, 502, 308
S.E.2d 131, 142 (1983).
W.Va. Code § 61-3-1 (1997) provides that, “Any person who willfully and
maliciously sets fire to or burns, or who causes to be burned, or who aids, counsels, procures,
persuades, incites, entices or solicits any person to burn, any dwelling, whether occupied,
unoccupied or vacant, or any outbuilding, whether the property of himself or herself or of
another, shall be guilty of arson in the first degree[.]” W.Va. Code § 61-3-2 (1997) states
that, “Any person who willfully and maliciously sets fire to or burns, or who causes to be
burned, or who aids, counsels, procures, persuades, incites, entices or solicits any person to
burn, any building or structure of any class or character, whether the property of himself or
herself or of another, not included or prescribed in the preceding section [§ 61-3-1], shall
be guilty of arson in the second degree[.]” (Emphasis added). Thus, the first and second
degree arson statutes each apply to “[a]ny person who willfully and maliciously sets fire to
or burns or causes to be burned or who aids, counsels procures, persuades, incites, entices
or solicits any person to burn,” certain property. The only difference between the two
statutes is that first degree arson requires proof that the property is a dwelling. (See footnote 16) In other
words, all the elements necessary to prove second degree arson are contained within the first
degree arson statute with the added element that the property must be a dwelling. “[W]here
only one offense requires proof of an additional fact, so that all elements of one offense are
present in the other, the offenses are deemed to be the same for double jeopardy purposes.” Thomas v. State, 277 Md. 257, 267, 353 A.2d 240, 247 (1976). Consequently, the appellant's
convictions under both statutes with regard to the second fire cannot stand based on double
jeopardy proscriptions. (See footnote 17)
Upon review of the record, we find that the evidence presented at the
appellant's trial supported a first degree arson conviction. In that regard, the evidence
established that the building that was burned contained apartments on the second floor. This
Court has held that, “A building which contains an apartment, intended for habitation,
whether occupied, unoccupied or vacant, is a 'dwelling house' for purposes of W.Va.Code,
61-3-1, as amended.” Syllabus Point 3, State v. Mullins, 181 W.Va. 415, 383 S.E.2d 47
(1989). See also note 16, supra. Therefore, because the evidence presented at the
appellant's trial supported a conviction for first degree arson and because the appellant
cannot be convicted of both first degree and second degree arson for the reasons set forth
above, (See footnote 18) the appellant's second degree arson conviction must be vacated.
Affirmed, in part, Reversed, in part, and Remanded.