1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia,

Plaintiff Below, Respondent

vs.) No. 19-1075 (McDowell County 18-F-61)

Charles Hassel Kennedy,

Defendant Below, Petitioner

MEMORANDUM DECISION

Petitioner Charles Hassel Kennedy, by counsel Thomas H. Evans, III, appeals the October 

25, 2019, order of the Circuit Court of McDowell County convicting petitioner of first-degree 

murder and sentencing him to imprisonment in the penitentiary for life with mercy. Respondent

State of West Virginia, by counsel Lara K. Bissett, filed a response in support of the circuit court’s 

order. Petitioner filed a reply.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, 

a memorandum decision affirming the order of the circuit court is appropriate under Rule 21 of 

the Rules of Appellate Procedure.

On December 22, 2017, Emily Nichole Hatfield (“the victim”) died from a single gunshot 

wound to her head. At the time of her death, she was in the home she shared with petitioner, her 

long-time boyfriend, in Raysal, West Virginia. Petitioner called 911 at 4:37 p.m., reporting that 

the victim had been shot. The Raysal Fire Department, the McDowell Ambulance Authority, and 

the West Virginia State Police were dispatched to the scene. 

Emergency responders with the fire department and ambulance authority arrived first, 

locating the victim in the living room. She was deceased, lying on her back on a mattress with her 

legs curled underneath her and her arms splayed out at her sides. Petitioner was covered in blood

and yelling, “Help her” and “She’s dead.” The emergency responders described petitioner as 

“pacing” and “hysterical,” which caused them to fear for their safety and prompted them to ask

911 to dispatch a police officer to the home. Bradshaw Police Officer Nicholas Bailey was 

dispatched, and, upon his arrival, he detained petitioner in his cruiser.

FILED

March 23, 2021

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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West Virginia State Police Senior Trooper J.A. Tupper and another trooper arrived at the 

scene at 5:27 p.m. A third trooper arrived shortly thereafter. All three troopers investigated the 

shooting by taking photographs and measurements inside the home; by collecting evidence at the 

scene, including a bag of a green leafy substance consistent with marijuana, a bag of a crystal-like 

substance consistent with methamphetamine, and fourteen strips of Suboxone; and by swabbing 

the victim and petitioner for gunshot residue. The troopers discovered a Taurus .38 Special 

revolver underneath the victim, lying between the victim’s back and the mattress. The revolver 

contained one spent shell casing and one unfired round.

While the troopers investigated the scene, Petitioner made several different statements to 

explain the shooting. Petitioner claimed that the victim was shot when the gun, which he said was 

underneath a pillow, accidentally went off as the victim rolled over on the mattress. The troopers 

found no bullet holes in the mattress or in the bedding. Petitioner also claimed that someone had 

broken into the home and shot the victim. The troopers found no evidence of a forced entry.

Trooper Tupper believed, based on petitioner’s highly erratic behavior, that petitioner may 

have been experiencing a drug overdose. Upon completing his investigation at the home, Trooper 

Tupper drove petitioner to Welch Community Hospital to obtain a “medical clearance” before 

attempting to take a statement from him. Petitioner was admitted to the hospital at 9:21 p.m., and 

Trooper Tupper sat with petitioner during the examination at the hospital. Petitioner was treated 

for an upper respiratory infection and an abrasion to his forehead, and he was discharged from the 

hospital shortly after 11:40 p.m. Trooper Tupper then drove petitioner directly to the West Virginia 

State Police detachment in Welch, which was a five to seven-minute drive from the hospital. The 

drive took them past the magistrate court, and Trooper Tupper observed a lack of vehicles in the 

magistrate parking area, which he believed indicated that no magistrate was on duty.

Upon arriving at the Welch detachment, Trooper Tupper secured evidence. Thereafter, he 

told petitioner that petitioner was under arrest for the murder of the victim and read petitioner his 

Miranda rights. He also directed petitioner to complete a DPS Form 79, indicating that petitioner 

understood his rights and that he was under arrest. The pre-interview section of the form contained 

three lines, with spaces to the left of each line for a suspect to place his or her initials. Those three 

lines appeared on petitioner’s form as follows:

You are under arrest for the crime of: Murder

You are being questioned in regard to the crime of: Murder

You are not under arrest and are free to leave at any time.

Petitioner placed his initials next to each of these three lines, despite having been informed by 

Trooper Tupper that he was under arrest.

Trooper Tupper started an interrogation of petitioner at 1:07 a.m. that was audio recorded. 

Petitioner’s explanation as to how the victim was shot changed throughout the interrogation. First, 

petitioner stated that he heard the revolver fire as he returned from the bathroom. He then indicated 

that he bumped a chair on which the revolver sat and that the revolver fired upon falling from the 

chair. Finally, petitioner said that he bumped a chair on which the revolver sat, causing the revolver 

to fall, and it fired as he tried to grab it. The interrogation ended at 2:35 p.m. 
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Shortly after the first interrogation ended, a second recorded interrogation began. During

the second interrogation, petitioner gave another explanation for how the shooting occurred: 

Petitioner claimed the gun fired as he was removing it from the pocket of his pants. Throughout 

both interrogations, petitioner maintained that the shooting was an accident and that he and the 

victim had not been fighting before the shooting. Petitioner also asserted that he had been firing

“+P” earlier in the day of the shooting or the day before the shooting.1 At the conclusion of the 

second interrogation, Trooper Tupper processed petitioner and prepared a criminal complaint. 

Sometime thereafter, petitioner was presented to a magistrate.

On June 19, 2018, petitioner was indicted for the first-degree murder of the victim. Leading 

up to petitioner’s trial on the charge, the circuit court held a suppression hearing and a McGinnis 

hearing2 to consider whether certain evidence would be admissible at petitioner’s trial. 

At the suppression hearing, the circuit court considered petitioner’s motion to suppress the 

statements he made during the two recorded interrogations. Petitioner argued that his statements

were not made voluntarily due to intoxication and that they were obtained in violation of his 

prompt presentment right. Testing on specimens obtained from petitioner at the Welch Community 

Hospital revealed that petitioner had numerous controlled substances in his system on the night of 

the shooting, including cocaine, methamphetamine, amphetamine, barbiturates, benzodiazepine, 

and marijuana. Petitioner received a CT scan for “head trauma” while at the hospital; however, the 

results of the scan showed “[n]o large areas of hemorrhage” and “[n]o extra-axial fluid 

collections,” and he required no further treatment or monitoring for his head injury. The circuit 

court heard testimony from Trooper Tupper concerning the interrogations and his decision to take 

petitioner to the hospital prior to the interrogations. Trooper Tupper was questioned as follows:

Q [Petitioner’s counsel] So would you -- is it fair to say that the 

purpose of seeking medical clearance was so that you could take a statement from 

[petitioner] and have it be something that would -- was that -- would that be the 

purpose of that -- of that delay?

1 “+P” refers to ammunition that contains a higher amount of gun powder than standard 

ammunition.

2 See Syl. Pt. 2, in part, State v. McGinnis, 193 W. Va. 147, 455 S.E.2d 516 (1994) (“Where 

an offer of evidence is made under Rule 404(b) of the West Virginia Rules of Evidence, the trial 

court, pursuant to Rule 104(a) of the West Virginia Rules of Evidence, is to determine its 

admissibility. Before admitting the evidence, the trial court should conduct an in camera hearing 

as stated in State v. Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986). After hearing the evidence and 

arguments of counsel, the trial court must be satisfied by a preponderance of the evidence that the 

acts or conduct occurred and that the defendant committed the acts. If the trial court does not find 

by a preponderance of the evidence that the acts or conduct was committed or that the defendant 

was the actor, the evidence should be excluded under Rule 404(b). If a sufficient showing has been 

made, the trial court must then determine the relevancy of the evidence under Rules 401 and 402 

of the West Virginia Rules of Evidence and conduct the balancing required under Rule 403 of the 

West Virginia Rules of Evidence.” 
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A [Trooper Tupper] Yeah, that would be part of it, to make sure they’re 

not overdosing or some other kind of physical danger going on to their well-being.

The circuit court also listened to the interrogations in their entirety.

On September 4, 2019, the circuit court entered an order denying petitioner’s motion to 

suppress the statements. The circuit court observed that, although petitioner was upset and 

sometimes excited during the interrogations, he was alert, oriented, and able to provide detailed 

information including his name, birth date, social security number, address (excluding zip code), 

the date, the location of the victim and various pieces of furniture in his house, and the events 

leading up to and following the shooting. The circuit court found, under the totality of the 

circumstances, that petitioner’s statements in both interrogations were voluntary; however, the 

circuit court determined that certain questions and responses concerning prior charges against 

petitioner, petitioner’s drug use, petitioner’s history of fighting with the victim, and Trooper 

Tupper’s thoughts about petitioner’s veracity should be excluded under Rules 403 and 404 of the 

West Virginia Rules of Evidence.3 The circuit court redacted the transcript of the two 

interrogations and provided the redacted transcript to the parties for their use at trial. 

The circuit court also determined that the interrogations were not conducted in violation of 

petitioner’s prompt presentment right. The circuit court found that directly after petitioner was 

taken into police custody, the troopers secured and processed the crime scene, and that immediately 

following this process, petitioner was transported to the hospital to ensure his wellbeing. The 

circuit court further found that because Trooper Tupper did not observe any vehicles in the 

magistrate court parking area, “a magistrate likely would have been unavailable.” The circuit court 

determined that the time that passed between petitioner being taken into custody and giving his 

statements was justifiable. The circuit court concluded that the interrogations were admissible at 

trial.

At the McGinnis hearing, the circuit court considered the admissibility of an alleged prior 

instance of domestic violence involving the victim and petitioner under Rule 404(b) of the West 

Virginia Rules of Evidence. The circuit court heard testimony from the victim’s sister and Trooper 

Matthew Shifflette who indicated that on May 7, 2016, in Wyoming County, petitioner was 

arrested and charged with domestic assault for threating the victim with the same Taurus .38 

3 Rule 403 allows a court to “exclude relevant evidence if its probative value is substantially 

outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, 

misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” 

W.Va.R.Evid. 403.

Rule 404(a), except in limited circumstances, prohibits the admission of “[e]vidence of a 

person’s character or character trait . . . to prove that on a particular occasion the person acted in 

accordance with the character or trait.” W.Va.R.Evid. 404(a). Rule 404(b) prohibits the admission 

of “[e]vidence of a crime, wrong, or other act . . . to prove a person’s character in order to show 

that on a particular occasion the person acted in accordance with the character” except where the 

evidence is admitted to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, 

absence of mistake, or lack of accident.” W.Va.R.Evid. 404(b).
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Special revolver involved in her death. The victim’s sister testified that, during the incident, 

petitioner held the revolver to the victim’s pregnant belly and asked the victim, “How much do 

you love me?” Trooper Shifflette explained that the case against petitioner was dropped at the 

victim’s request. Two orders were entered by the Circuit Court of Wyoming County dismissing 

the case against petitioner. Both orders stated the dismissal was “due to the Investigating Officer 

and victim not wishing to pursue the charge,” although Trooper Shifflette testified he never 

indicated to that court that he did not wish to pursue the charge.

By order entered on August 15, 2019, the circuit court found that the testimony of the 

victim’s sister and Trooper Shifflette was credible, that the incident occurred as described by these 

witnesses, that the incident was relevant to petitioner’s murder case, and that the evidence was 

more probative than prejudicial by showing lack of accident or mistake, motive, preparation and 

plan. The circuit court decided that evidence of the incident would be admissible at petitioner’s 

trial under Rule 404(b).

Petitioner’s trial commenced on September 9, 2019. The State presented testimony from 

various individuals who responded to the scene on the evening of December 22, 2017. Petitioner’s 

call to 911 was played, in which petitioner repeatedly stated, “I’m sorry” and “I love you.” The 

State also presented evidence through various forensic experts who testified that gunshot residue 

was found on petitioner’s hands and that the Taurus .38 Special revolver “was operable as received 

based on no problems being encountered during examination and test firing under laboratory 

conditions.” Dr. Allen Ray Mock, the chief medical examiner for West Virginia, testified that the 

victim’s wound was a “classic . . . tight-contact-range entrance gunshot wound,” indicating that 

the muzzle of the revolver was in contact with the victim’s head when the revolver discharged. 

The trajectory of the bullet in the victim’s head was front to back, slightly left to right, and 

downward, and the bullet did not exit the victim’s skull. Dr. Mock characterized the shooting as a 

homicide. The victim’s toxicology report showed the presence of controlled substances including 

methamphetamine and buprenorphine. It was noted at trial that the victim had been experiencing 

gallbladder issues in the week before her death and that petitioner had taken her to the hospital for 

these issues. The State presented evidence of the May 7, 2016, Wyoming County incident through 

testimony of the victim’s sister and Trooper Shifflette.

At trial, petitioner again asked that the circuit court suppress the two recorded 

interrogations. The circuit court refused the request and gave petitioner the option of proceeding 

with the admission of either the redacted transcripts or the recordings in their entirety. Petitioner 

chose to proceed with the entire recordings to allow for more complete cross-examination of 

Trooper Tupper. The circuit court told the jury: 

Now, you’re about to hear a statement. Actually, it’s more an interrogation 

than a statement, and for that reason, when we had a prior hearing, there were large 

parts of it that I chose to redact.

. . . .

But I tried to remove -- which we’ve got a written copy of this -- all that I 

thought was more prejudicial than it was probative value. But I asked the defendant, 

you know, we can either read the parts that are left or we can play it as is, and he 
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chose to -- he wanted to play it as is, because I guess he wanted you to hear 

everything.

The recordings of the interrogations were played for the jury.

Petitioner chose not to testify during the trial. He called two witnesses to testify: a forensic 

consultant specializing in firearms, ballistics, and shooting reconstruction, and petitioner’s aunt. 

The forensic consultant, Ronald Scott, testified that he did not examine the physical evidence, such 

as the revolver, but that he examined the reports prepared by the State’s expert witnesses. Mr. Scott 

stated that the victim’s wound indicated that the revolver was in tight or loose contact with her 

head when it discharged. Mr. Scott concluded that the revolver would have only fired if pressure 

were applied to the trigger, but that the necessary pressure could have been applied accidentally. 

Petitioner’s aunt testified that she was aware of attempted break-ins at petitioner’s home.

On September 12, 2019, after deliberating for approximately fifty minutes, the jury 

returned its verdict, finding petitioner guilty of first-degree murder. Upon the presentation of 

additional evidence the following day, the jury recommended mercy. The circuit court entered an 

order on September 19, 2019, sentencing petitioner to imprisonment in the penitentiary for life 

with a recommendation of mercy.

Petitioner filed a motion for post-verdict judgment of acquittal, arguing that the evidence 

presented during the trial was insufficient to sustain his conviction. That same day, petitioner also 

filed a motion for a new trial, asserting that the circuit court erred by admitting the recorded 

interrogations during the trial and by admitting evidence of the Wyoming County incident during 

the trial. The motion for a new trial also claimed that the evidence presented was insufficient to 

sustain petitioner’s conviction. The circuit court entered an order denying the motions on October 

25, 2019. The circuit court refused to disturb its prior rulings concerning the recorded 

interrogations and the Wyoming County incident, and the circuit found that substantial evidence 

had been presented to support petitioner’s conviction.

Petitioner now appeals the October 25, 2019, order denying his post-trial motions for 

judgment of acquittal and a new trial. We have held that

[t]he trial court’s disposition of a motion for judgment of acquittal is subject to our 

de novo review; therefore, this Court, like the trial court, must scrutinize the 

evidence in the light most compatible with the verdict, resolve all credibility 

disputes in the verdict’s favor, and then reach a judgment about whether a rational 

jury could find guilt beyond a reasonable doubt.

State v. LaRock, 196 W. Va. 294, 304, 470 S.E.2d 613, 623 (1996). Regarding the review of a 

circuit court’s order denying a motion for a new trial, we have held:

In reviewing challenges to findings and rulings made by a circuit court, we 

apply a two-pronged deferential standard of review. We review the rulings of the 

circuit court concerning a new trial and its conclusion as to the existence of 

reversible error under an abuse of discretion standard, and we review the circuit 
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court’s underlying factual findings under a clearly erroneous standard. Questions 

of law are subject to a de novo review.

Syl. Pt. 3, State v. Vance, 207 W. Va. 640, 535 S.E.2d 484 (2000).

Through his first assignment of error, petitioner argues that the circuit court erred by 

admitting evidence of the Wyoming County incident under Rule 404(b) of the West Virginia Rules 

of Evidence. Petitioner asserts that evidence of the Wyoming County incident was “irrelevant, not 

probative, and also unfairly prejudicial” because the “prior, alleged crime [] was dismissed on the 

merits . . . nineteen months prior to the current events in the case in chief against” petitioner. Our 

review of a circuit court’s admission of evidence under Rule 404(b) has three steps.

First, we review for clear error the trial court’s factual determination that there is 

sufficient evidence to show the other acts occurred. Second, we review de novo

whether the trial court correctly found the evidence was admissible for a legitimate 

purpose. Third, we review for an abuse of discretion the trial court’s conclusion 

that the ‘other acts’ evidence is more probative than prejudicial under Rule 403.

LaRock, 196 W. Va. at 310-11, 470 S.E.2d at 629-30. Ultimately, “we review the trial court’s 

decision to admit evidence pursuant to Rule 404(b) under an abuse of discretion standard.” State 

v. McGinnis, 193 W. Va. 147, 159, 455 S.E.2d 516, 528 (1994). “In reviewing the admission of 

Rule 404(b) evidence, we review it in the light most favorable to the party offering the evidence, 

in this case the prosecution, maximizing its probative value and minimizing its prejudicial effect.” 

Id.

Upon our examination of the record, we find the circuit court committed no clear error in 

determining that there was sufficient evidence to show that the Wyoming County incident occurred 

as described by the victim’s sister and Trooper Shifflette. Although the domestic assault charge 

arising from the Wyoming County incident was dismissed at the request of the victim (and possibly 

also Trooper Shifflette), the dismissal of the charge under that circumstance did not, as petitioner 

contends, constitute an adjudication on the merits of the charge. The orders of the Circuit Court of 

Wyoming County did not evaluate the facts underlying the charge, nor did the orders contain any 

language indicating that the dismissal constituted an adjudication on the merits of the charge. 

Accordingly, petitioner’s position that the dismissal constituted an adjudication on the merits is 

simply incorrect. Even if petitioner was correct, we have held that “[t]he fact that a criminal charge 

against a defendant is dismissed or that he/she is acquitted of the same does not prohibit use of the 

incident under Rule 404(b) of the West Virginia Rules of Evidence.” Syl. Pt. 4, State v. Mongold, 

220 W. Va. 259, 647 S.E.2d 539 (2007).

We need not linger on the second step of our review as petitioner makes no argument that 

evidence of the Wyoming County incident was not admissible for a legitimate purpose. Upon our 

de novo review, we find that the evidence was admissible for the legitimate purpose of proving 

that the shooting was intentional, rather than a mistake or accidental. See W.Va.R.Evid. 404(b)(2) 

(stating that evidence of a crime, wrong or other act may be admissible to prove “absence of 

mistake, or lack of accident.”)
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The third step of our review requires us to evaluate whether the circuit court abused its 

discretion in determining that evidence of the Wyoming County incident was more probative than 

prejudicial under Rule 403 of the West Virginia Rules of Evidence. Rule 403 allows a court to 

exclude relevant evidence if it is more prejudicial than probative. See W.Va.R.Evid. 403. Petitioner 

asserts that evidence of the incident was irrelevant, not probative, and unfairly prejudicial because 

the incident occurred nineteen months before the victim’s death and because there was no evidence 

of relationship discord between the victim and petitioner directly prior to the shooting. We find no 

merit to petitioner’s argument.

Evidence of the Wyoming County incident was highly relevant and probative at 

petitioner’s trial because, as the circuit court found, the incident was of a domestic nature and the 

same revolver was involved in the incident and the victim’s death. While the incident occurred 

more than a year before the victim’s death, the remoteness of the incident “goes to the weight . . .

accorded the evidence by the jury, rather than to admissibility.” Syl. Pt. 6, in part, State v. Gwinn, 

169 W. Va. 456, 288 S.E.2d 533 (1982); see also State v. McIntosh, 207 W. Va. 561, 573, 534 

S.E.2d 757, 769 (2000) (“[R]emoteness, or the temporal span between a prior crime, wrong, or 

other act offered as evidence under Rule 404[(b)] and a fact to be determined in a present 

proceeding, goes to the weight to be given to such evidence and does not render the evidence of 

the other crime, wrong, or act irrelevant and inadmissible.” (quoting State v. Schaaf, 449 N.W.2d 

762, 772 (1989)). We have held that “[w]hether evidence offered is too remote to be admissible 

upon the trial of a case is for the trial court to decide in the exercise of a sound discretion[.]” Syl. 

Pt. 5, in part, Yuncke v. Welker, 128 W. Va. 299, 36 S.E.2d 410 (1945). In this instance, we find 

that evidence concerning the incident was not so remote that it was immaterial. See McIntosh, 207 

W. Va. at 573, 534 S.E.2d at 769 (listing cases in which courts found evidence admissible despite 

temporal spans of more than eleven years, thirteen years, and seven to eight years). The Wyoming 

County incident bears directly on petitioner’s relationship with the victim and whether discord did,

in fact, exist in their relationship, making the evidence highly relevant and more probative than 

prejudicial. The circuit court did not abuse its discretion by giving the jury the opportunity to 

consider this evidence and to afford it the proper weight. Accordingly, we conclude that the circuit 

court did not abuse its discretion by admitting evidence of the Wyoming County incident pursuant 

to Rule 404(b) at petitioner’s trial.

Through four separate assignments of error, petitioner argues that the circuit court erred by 

admitting the recordings of petitioner’s interrogations at his trial. Petitioner avers that the 

interrogations should have been suppressed because they were obtained in violation of his prompt 

presentment right, because they were not made voluntarily due to his severe intoxication and head 

trauma, because he was forced to choose between testifying and presenting the entire 

interrogations, and because they were full of inaccuracies and misrepresentations by Trooper 

Tupper. 

We have held that “[o]n appeal, legal conclusions made with regard to suppression 

determinations are reviewed de novo. Factual determinations upon which these legal conclusions 

are based are reviewed under the clearly erroneous standard. In addition, factual findings based, at 

least in part, on determinations of witness credibility are accorded great deference.” Syl. Pt. 3, 

State v. Stuart, 192 W. Va. 428, 452 S.E.2d 886 (1994). Additionally, we have held: 
9

When reviewing a ruling on a motion to suppress, an appellate court should 

construe all facts in the light most favorable to the State, as it was the prevailing 

party below. Because of the highly fact-specific nature of a motion to suppress, 

particular deference is given to the findings of the circuit court because it had the 

opportunity to observe the witnesses and to hear testimony on the issues. Therefore, 

the circuit court’s factual findings are reviewed for clear error.

Syl. Pt. 1, State v. Lacy, 196 W. Va. 104, 468 S.E.2d 719 (1996).

First, we consider petitioner’s argument that the statements he made during the recorded 

interrogations were obtained in violation of his prompt presentment right. The prompt presentment 

right as set forth in West Virginia Code § 62-1-5(a)(1) (1997) and Rule 5(a) of the West Virginia 

Rules of Criminal Procedure requires that a defendant be presented to a magistrate following arrest 

“without unnecessary delay.” The rule “is triggered when an individual is either arrested or taken 

into police custody with sufficient probable cause to warrant an arrest.” State v. Wickline, 184 W. 

Va. 12, 15, 399 S.E.2d 42, 45 (1990) (citing Syl. Pt. 2, State v. Humphrey, 177 W. Va. 264, 351 

S.E.2d 613 (1986)). We have held that an inculpatory statement obtained in violation of the prompt 

presentment right is inadmissible when “it appears that the primary purpose of the delay was to 

obtain a confession from the defendant.” Wickline, 184 W. Va. at 13, 399 S.E.2d at 43, Syl. Pt. 2, 

in part (quoting Syl. Pt. 1, State v. Guthrie, 173 W. Va. 290, 315 S.E.2d 397 (1984)). We have 

explained that “[t]he delay between the time of the arrest or custodial interrogation and the giving 

of a confession is most critical for prompt presentment purposes because during this time period 

custodial confinement and interrogation can be used to attempt to produce a confession.” Wickline, 

184 W. Va. at 13-14, 399 S.E.2d at 43-44, Syl. Pt. 4; see also Humphrey, 177 W. Va. at 269, 351 

S.E.2d at 617-18 (“Under our prompt presentment rule, the significant time period when an 

accused is in police custody is the time between the arrest or the time probable cause exists to 

arrest and the time a statement is obtained from the accused.”). “[T]he proper focus in prompt 

presentment cases is on delay which precedes a confession.” State v. Judy, 179 W. Va. 734, 739, 

372 S.E.2d 796, 801 (1988).

There is no precise definition of what constitutes an unreasonable delay for prompt 

presentment purposes. See State v. Persinger, 169 W. Va. 121, 135, 286 S.E.2d 261, 270 (1982) 

(“Courts have recognized that whether there has been an unreasonable delay in taking an arrested 

person before a magistrate is not subject to any precise time period.”). Further, some delays in 

presenting an individual to a magistrate are justifiable. For instance, in State v. Sugg, 193 W. Va. 

388, 456 S.E.2d 469 (1995), we stated that “delays in the transportation of a defendant to the police 

station, completion of booking and administrative procedures, recordation and transcription of a 

statement, and the transportation of a defendant to the magistrate do not offend the prompt 

presentment requirement.” Id. at 395-96, 456 S.E.2d at 476-77 (footnote omitted). In Persinger, 

we recognized that a delay necessary for “performing customary booking and administrative 

procedures” is also permissible. 169 W. Va. at 135, 286 S.E.2d at 270. Such procedures may 

include the time needed “to obtain information likely to be a significant aid in averting harm to 

persons or loss to property of substantial value.” Id. at 136, 286 S.E.2d at 270 (quoting Johnson v. 

State, 384 A.2d 709, 717 (1978)). In that same vein, we said, “Obviously, where the arrested person 

is in need of medical attention, a delay occasioned by this fact cannot be deemed unreasonable.” 

Id. at 136 n.14, 286 S.E.2d at 270 n.14.
10

Here, petitioner argues that his prompt presentment right was violated by the delay 

resulting from being transported to the hospital and then from the hospital to the police detachment, 

rather than being presented immediately to a magistrate upon leaving the scene of the shooting. 

He claims that the purpose for the delay was to obtain a statement from him. Upon our review of 

the record, we find that the complained-of delay was reasonable and justified under the totality of 

the circumstances and that the purpose of the delay was not to obtain inculpatory statements from 

petitioner. Numerous witnesses testified to petitioner’s erratic behavior at the scene of the 

shooting, the officers found a bag of a crystal-like substance consistent with methamphetamine in 

petitioner’s home, and Trooper Tupper stated that he believed petitioner may have been 

experiencing an overdose. Trooper Tupper’s belief that petitioner was in need of medical attention 

was reasonable under these circumstances, and the time spent transporting petitioner to the hospital 

was justified. Similarly, the time petitioner spent at the hospital being evaluated and treated was 

justified. To the extent that petitioner argues that the time between when he left the hospital and 

when the interrogations began constituted an unjustifiable delay, we disagree. The drive from the 

hospital to the detachment took fewer than ten minutes, and Trooper Tupper spent a reasonable 

amount of time securing the evidence from the scene before beginning the interrogation. Under 

the specific facts of this case, it is clear that the primary purpose of the delay was not to obtain 

inculpatory statements from petitioner and that any delay was justified. Consequently, we conclude 

that the circuit court did not err in denying petitioner’s motion to suppress the recorded 

interrogations on prompt presentment grounds.

 

Next, we consider petitioner’s argument that the statements he made during the recorded 

interrogations were not made voluntarily due to his severe intoxication and head trauma. We have 

held that for inculpatory statements to be admissible, the State must prove, by at least a 

preponderance of the evidence, that the statements were voluntary. See Syl. Pt. 5, State v. Starr, 

158 W. Va. 905, 216 S.E.2d 242 (1975). (“The State must prove, at least by a preponderance of 

the evidence, that confessions or statements of an accused which amount to admissions of part or 

all of an offense were voluntary before such may be admitted into the evidence of a criminal 

case.”). When evaluating whether the inculpatory statements were voluntary, “a determination 

must be made as to whether the defendant knowingly and intelligently waived his constitutional 

rights and whether the [statements were] the product of an essentially free and unconstrained 

choice by [their] maker.” Syl. Pt. 7, in part, State v. Bradshaw, 193 W. Va. 519, 457 S.E.2d 456 

(1995). We have recognized that “[a] claim of intoxication may bear upon the voluntariness of a 

defendant’s confession, but, unless the degree of intoxication is such that it is obvious that the 

defendant lacked the capacity to voluntarily and intelligently waive his rights, the confession will 

not be rendered inadmissible.” Syl. Pt. 1, State v. Hall, 174 W. Va. 599, 328 S.E.2d 206 (1985).

When evaluating the voluntariness of a defendant’s statement on appeal, this Court has 

held that “[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, State v. Vance, 

162 W. Va. 467, 250 S.E.2d 146 (1978). We have further held that “[t]his Court is constitutionally 

obligated to give plenary, independent, and de novo review to the ultimate question of whether a 

particular confession [or statement] is voluntary and whether the lower court applied the correct 

legal standard in making its determination.” State v. Guthrie, 205 W. Va. 326, 340, 518 S.E.2d 83, 

97 (1999) (quoting Syl. Pt. 2, in part, State v. Farley, 192 W. Va. 247, 452 S.E.2d 50 (1994)).
11

In support of his position that his statements were involuntary, petitioner asserts that the 

evidence shows he gave the statements while he was acting erratically, while his system contained 

numerous controlled substances, while he was under the influence of said controlled substances, 

and while he had a head injury that required a CT scan. He states that he initialed the wrong line 

on the DPS Form 79, and he told Trooper Tupper during the interrogation that he did not know 

where he was or what he was doing. The circuit court observed that although petitioner was upset 

and sometimes excited during the interrogations, petitioner was alert, oriented, and able to provide 

detailed information about himself, his home, and the events surrounding the shooting. 

Furthermore, petitioner’s medical records do not indicate that he suffered from severe intoxication 

or injury. Petitioner was read his Miranda rights, he acknowledged he understood those rights, and 

he decided to speak to Trooper Tupper anyway. Having considered the evidence presented below 

and the circuit court’s evaluation of the same, we are satisfied that the circuit court properly 

assessed the voluntariness of petitioner’s statements to Trooper Tupper. Under the totality of the 

circumstances, the circuit court did not err in determining that the statements were voluntary, and 

the circuit court did not err in denying petitioner’s motion to suppress the recorded interrogations 

on the ground that his statements were involuntary.

We now consider petitioner’s argument that the interrogations should have been suppressed 

because he was forced to choose, in violation of his constitutional rights, between testifying and 

presenting the entire interrogations. He argues, “[T]he court’s decision to unfairly redact the 

statement so that all that was left was a statement which made the Petitioner appear to be giving 

misleading statements without providing the misleading, argumentative and downright wrong 

positions of the Officer’s statements was improper and unfairly prejudiced the Petitioner.” He 

argues that under these circumstances, he had no choice but to ask that the entirety of the recorded 

interrogations be admitted so that the jury could have the proper context for his statements. We 

find that the circuit court committed no error. Having reviewed the redacted version of the 

interrogations, we do not find that they remove essential context for petitioner’s statements. Thus, 

we do not find that the circuit court presented petitioner with an unfair or improper choice on 

which version of the interrogations—the redacted version or the entire version—would be 

admitted. Petitioner does not cite to any law in support of his argument, nor does he specify what 

constitutional rights he alleges the circuit court violated. Consequently, we conclude that the circuit 

court did not err by refusing to suppress the interrogations.

We now turn to petitioner’s argument that the interrogations should have been suppressed 

because they are full of inaccuracies and misrepresentations by Trooper Tupper, which he alleges 

made the interrogations more prejudicial than probative. He states that while the circuit court 

redacted the interrogations to remove various misstatements, accusations, and hypotheticals posed 

by Trooper Tupper during the interrogations, this was improper and ultimately resulted in the 

violation of his constitutional rights. He asserts that because the interrogations “contained so many 

improprieties that it required much ink to redact . . . the court should have excluded the entire 

statement.” Again, we find no error. The redacted interrogations do not remove essential context 

for petitioner’s statements, and petitioner has cited to no law in support of his argument on this 

point. Therefore, we conclude that the circuit court did not err by refusing to suppress the 

interrogations.
12

Through his final assignment of error, petitioner argues that the circuit court erred by 

concluding that the evidence presented at his trial was sufficient to sustain his conviction. He states 

that the evidence demonstrates he was highly intoxicated at the time of the shooting and that there 

was no evidence of relationship discord between the victim and petitioner directly prior to the 

shooting. He also reasserts that evidence concerning the Wyoming County incident was 

improperly admitted.

The function of an appellate court when reviewing the sufficiency of the 

evidence to support a criminal conviction is to examine the evidence admitted at 

trial to determine whether such evidence, if believed, is sufficient to convince a 

reasonable person of the defendant’s guilt beyond a reasonable doubt. Thus, the 

relevant inquiry is whether, after viewing the evidence in the light most favorable 

to the prosecution, any rational trier of fact could have found the essential elements 

of the crime proved beyond a reasonable doubt.

Syl. Pt. 1, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995). Our law is clear that

[a] criminal defendant challenging the sufficiency of the evidence to support 

a conviction takes on a heavy burden. An appellate court must review all the 

evidence, whether direct or circumstantial, in the light most favorable to the 

prosecution and must credit all inferences and credibility assessments that the jury 

might have drawn in favor of the prosecution. The evidence need not be 

inconsistent with every conclusion save that of guilt so long as the jury can find 

guilt beyond a reasonable doubt. Credibility determinations are for a jury and not 

an appellate court. Finally, a jury verdict should be set aside only when the record 

contains no evidence, regardless of how it is weighed, from which the jury could 

find guilt beyond a reasonable doubt.

Id. at 663, 461 S.E.2d at 169, Syl. Pt. 3, in part. With regard to intoxication, the Court has held 

that 

[v]oluntary drunkenness is generally never an excuse for a crime, but where 

a defendant is charged with murder, and it appears that the defendant was too drunk 

to be capable of deliberating and premeditating, in that instance intoxication may 

reduce murder in the first degree to murder in the second degree, as long as the 

specific intent did not antedate the intoxication.

Syl. Pt. 2, State v. Keeton, 166 W. Va. 77, 272 S.E.2d 817 (1980).

We find no merit to petitioner’s argument that the evidence was insufficient to sustain his 

conviction. The jury heard testimony over five days from fifteen witnesses. Significantly, both Dr. 

Mock and Mr. Scott testified that the muzzle of the revolver was in contact with the victim’s head 

when she was shot. Dr. Mock testified that under the totality of the circumstances, he believed the 

shooting was a homicide. Additionally, the victim’s sister and Trooper Shifflette testified that 

petitioner had previously threatened the victim with the same revolver that later caused her death, 

and Trooper Tupper testified in detail about his investigation of the shooting. Petitioner’s phone 
13

call to 911, the testimony of the emergency responders, and the recorded interrogations all indicate 

that petitioner was not so intoxicated that he was incapable of deliberation or premeditation. 

Therefore, we conclude that the circuit court correctly found that any rational juror could convict 

petitioner of first-degree murder based on the evidence presented.

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: March 23, 2021

CONCURRED IN BY:

Chief Justice Evan H. Jenkins

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice John A. Hutchison

Justice William R. Wooton