STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

State of West Virginia, Plaintiff Below,
 

Respondent FILED
 

November 5, 2018 

vs) No. 17-0099 (Randolph County 15-F-94) released at 3:00 p.m. 

EDYTHE NASH GAISER, CLERK
 

SUPREME COURT OF APPEALS
 

OF WEST VIRGINIA
 Derrick William Adamson, Defendant Below, 

Petitioner 

MEMORANDUM DECISION 

Petitioner Derrick William Adamson, by counsel J. Brent Easton, appealed his jury 

convictions for first degree murder, grand larceny, and possession of a stolen vehicle, which 

resulted in the circuit court sentencing him to life in prison without the possibility of parole 

for first degree murder, one to ten years for grand larceny and one to five years for 

possession of a stolen vehicle, with the latter two sentences to run concurrently to one 

another, but consecutively to the life sentence. Petitioner argued that the circuit court erred 

by: 1) refusing to question, or permit counsel to question, the prospective jurors as to 

whether they could give a recommendation of mercy if a guilty verdict were returned on first 

degree murder; 2) upholding the jury conviction for first degree murder as the State presented 

insufficient evidence of premeditation and deliberation; 3) denying petitioner’s motion to 

compel the State to elect between the charges of grand larceny and possession of a stolen 

vehicle, subjecting him to multiple punishments in violation of double jeopardy1

 and due 

process principles;2

 4) denying petitioner’s pretrial motion to suppress statements taken by 

law enforcement well after the attachment of probable cause to arrest in violation of the 

prompt presentment rule; 5) failing to grant a mistrial or give an instruction after the 

prosecutor made the inflammatory remark during his opening statement that petitioner 

“executed” the victim; and 6) failing to make required findings of fact and conclusions of law 

prior to admitting “proposed” evidence under Rule 404(b) of the West Virginia Rules of 

Evidence. Respondent State of West Virginia, by counsel Shannon Kiser, filed a response. 

Upon petitioner’s appeal, this Court affirmed his conviction and sentence in State v. 

Adamson, No. 17-0099, 2018 WL 1225534 (W. Va. March 9, 2018) (memorandum decision), 

1

Article III, section 5 of the West Virginia Constitution provides, in relevant part: 

“No person shall . . . be twice put in jeopardy of life or liberty for the same offense.” 

2

Petitioner provides no authority or argument concerning what due process principles 

were violated and, therefore, we do not address this portion of his argument. 
determining that no error was committed by the circuit court. Following review of 

petitioner’s petition for rehearing,3

 the Court, by order entered May 9, 2018, granted 

petitioner’s request for a rehearing and scheduled the case for oral argument. 

Having considered the petition for rehearing, the parties’ briefs and oral arguments, 

the appendix record and the applicable legal authority, the Court finds no substantial question 

of law and no prejudicial error and, therefore, we again affirm petitioner’s convictions and 

sentences. The Court also disposes of the case through a memorandum decision as 

contemplated under Rule 21 of the West Virginia Rules of Appellate Procedure. 

I. Factual and Procedural History 

Donovan Nicholson was shot in the head at close range on April 20, 2015, in Elkins, 

West Virginia. On that day, around 11:00 p.m., Richard Foresi, a college student at Davis 

& Elkins, testified that he had an encounter with petitioner. Mr. Foresi was walking through 

Elkins when petitioner, whom he did not know, began asking him strange questions, 

including where he was going and how far his home was. Mr. Foresi found petitioner to be 

“definitely on edge[,] [n]ervous[,] [s]trange, for sure.” Mr Foresi told petitioner that he was 

asking “some pretty strange questions[,]” and asked him if he was okay. Petitioner told him 

that “if he hadn’t believed my story about, like where I was coming from, like I was coming 

from Davis & Elkins College, that he would have shot me already.” 

About 11:30 p.m., Cpl. G. L. Brown and Cpl. M. J. Sigley, both with the Elkins Police 

Department, responded to a call from the Mountaineer Mart of possible shots being fired. 

The officers spoke with the manager, who stated that she thought she had heard a gunshot 

outside of the Mountaineer Mart and that two males appeared to her to be talking prior to her 

hearing the shot. The manager provided the officers with a detailed description of one of the 

men she had observed. The officers left and proceeded to search for someone matching the 

description given. 

Shortly thereafter, Cpl. Sigley located an individual matching the description given 

on the front side of the railroad depot. The individual was identified as petitioner, who was 

described as being responsive to the officer’s commands. In searching petitioner, the officer 

found a box of PMC Bronze .25-caliber ammunition in petitioner’s pocket, but no gun was 

found. The officers received another call about an active burglary, unrelated to their stop of 

3

Petitioner only reargued three of the original six assigned errors in his petition for 

rehearing; however, as the grant of rehearing was not limited to the errors raised in the 

rehearing petition, the Court will again address all the assigned errors originally argued by 

petitioner. 

2
 
petitioner. They left petitioner as there was not enough probable cause at that time to arrest 

him. 

Approximately twenty minutes later, after the officers cleared the burglary call, they 

received another call from the manager of the Mountaineer Mart. The manager told the 

officers that the other male individual she had observed prior to hearing the gunshot was 

back. That individual was identified as Timothy Summerfield, whom the manager had 

observed with petitioner prior to hearing the gunshot. Mr. Summerfield told the officers that 

he had engaged in a casual conversation with petitioner for about five to eight minutes, when 

petitioner pulled a small pistol, pointed it at him and squeezed the trigger. The gun failed to 

fire and petitioner “walked up to me and shook my hand. Said, ‘It wasn’t your day,’ and 

walked off.”4 The officers found no spent .25-caliber casing, no spent bullet and no bullet 

hole at the scene. 

While still at the Mountaineer Mart, around 1:30 a.m., on April 21, 2015, the officers 

received a call about a vehicle, described as a 2006 Ford 500 gold car, which was stolen from 

the parking lot of a GoMart convenience store that was located about four to five blocks 

away from the Mountaineer Mart, and responded to that call. The officers viewed 

surveillance video from the store and were able to identify petitioner as the person driving 

away in the stolen vehicle. The officers put out a “be on the lookout” for the stolen car and 

petitioner. Cpl. Brown, thinking that petitioner may have disposed of the gun related to the 

earlier incident somewhere between the GoMart and the Mountaineer Mart, began a foot 

patrol of the area looking for the gun. Cpl. Brown ended up back where he had previously 

made contact with petitioner. It was at this time, he discovered the victim’s body. The 

officer also found a PNC Bronze .25-caliber cartridge lying beside the victim’s body, which 

was consistent with the ammunition earlier seized from petitioner. 

Later that day, around 11:36 a.m., Trooper Eric E. Bostic, with the West Virginia 

State Police, located the stolen vehicle and petitioner in Webster County. The trooper was 

aware that a grand larceny warrant had been issued for petitioner and that there had been a 

shooting. The trooper patted petitioner down, placed petitioner in handcuffs, and put him in 

the back of his car until additional help arrived. The trooper found petitioner wearing a 

bulletproof vest. 

4

Petitioner brought out in cross-examination of Mr. Summerfield that during the 

preliminary hearing and in a statement to police on the night of the incident that Mr. 

Summerfield did not mention seeing a gun. Mr. Summerfield clarified that he never saw a 

gun “prior to while we were talking, but he did pull a gun and shoot at me. I mean he fired 

a round.” 

3
 
Backup arrived for Trooper Bostic around 11:45 a.m. and, at that time, the trooper 

searched petitioner, read him his Miranda5

 rights and again placed him in the back of his 

cruiser. Around 11:54 a.m., petitioner proceeded to make a voluntary statement to the 

trooper, which was audio-recorded and lasted approximately eight minutes. Petitioner began 

talking about his twelve-year-old daughter, who petitioner thought had been killed.6

 The 

trooper asked petitioner for his daughter’s age, name and description. The trooper also asked 

petitioner about where his daughter was staying and how he came to know that she was 

missing. It was during this exchange about petitioner’s missing daughter that petitioner 

disclosed that he was walking around the train tracks in Elkins, when a man petitioner stated 

he did not know told him, “We killed her.” The trooper asked petitioner what happened then 

and petitioner stated, “I shot him.” Petitioner went on to tell the trooper that he shot the man 

in Elkins at the train station with a .25 caliber pistol. He also admitted to stealing the car he 

had been driving. Petitioner indicated that he was searching for his daughter.7

 Petitioner was 

transported to a magistrate, arriving at 12:55 p.m. He was indicted on counts of first degree 

murder, attempted first degree murder, wanton endangerment involving a firearm, grand 

larceny of a vehicle, possession of a stolen vehicle and receiving or transferring stolen 

goods.8 

Petitioner’s defense was one of conceding that he was responsible for shooting the 

victim. But petitioner maintained that he could only be convicted of second degree murder, 

because he had diminished capacity and could not have formed the requisite premeditation 

and deliberation necessary for first degree murder. Petitioner did not testify. In support of 

his defense, petitioner called Dr. Timothy Saar, a licensed psychologist, who testified that 

he had evaluated and interviewed petitioner. He stated that he had reviewed petitioner’s 

medical records, which indicated that petitioner had a history of substance-induced psychosis 

for which he had been hospitalized at William Sharpe Hospital in 2007. Records the doctor 

reviewed also indicated that petitioner had been treated at Ohio State University Medical 

Center in 2011 for a mood disorder associated with substance abuse. Petitioner was seen 

again at the same facility in 2014 in which the treating physician “talked about [the] previous 

5

See Miranda v. Arizona, 384 U.S. 436, 444 (1966) (defining custodial interrogation 

as “questioning initiated by law enforcement officers after a person has been taken into 

custody or otherwise deprived of his freedom of action in any significant way.”). 

6

The trooper found petitioner’s alleged missing daughter in school. 

7

Gunshot residue was found on petitioner’s hands. 

8

The circuit court granted petitioner’s motion to sever the attempted first degree 

murder count and the wanton endangerment count as they related to a different victim, Mr. 

Summerfield. 

4
 
diagnosis of substance-induced psychosis[,]” but also had “some concerns of maybe some 

malingering going on[.]” Dr. Saar, based upon the records reviewed, found that “there [was] 

reason to believe that he was suffering a psychosis” on or about the day of the crimes alleged. 

Specifically, Dr. Saar opined that petitioner “was so grossly intoxicated, based on his selfreports, that his executive functioning was impaired to the point that he was incapable of 

deliberating and premeditating the shooting on the day in question[.]” During crossexamination by the State, Dr. Saar testified that he had to throw out the entire assessment 

related to his administration of the Minnesota Multiphasic Personality Inventory given to 

petitioner because petitioner was not being truthful. Dr. Saar also testified that he had no 

toxicology report or any other scientific evidence that showed petitioner was abusing drugs 

or intoxicated on the day of the events giving rise to the criminal charges. The doctor relied 

entirely upon petitioner’s self-reporting and admitted that petitioner had a significant history 

of malingering–“intentionally lying to present a certain diagnosis[,]” or “overexaggeration 

of his symptons.” 

Petitioner also called Dr. David A. Clayman, a licensed psychologist, who examined 

petitioner for the State. He acknowledged that petitioner had a history of substance abuse. 

Dr. Clayman also noted the history of malingering found by Dr. Saar’s report. But, contrary 

to petitioner’s assertion in his petition for rehearing that Dr. Clayman failed to address 

petitioner’s ability to premeditate or deliberate the shooting, Dr. Clayman testified that 

there is nothing to suggest that he was under the influence of 

any type of substance or suffering from a mental condition that 

would have prevented him from forming intent or to form . . . 

malice. He demonstrated a consistent ability to form intent 

whether it be to cause harm or to restrict his own behaviors up 

to and including the shooting death of Donovan Nicholson. 

Dr. Clayman further stated that petitioner “did not suffer from diminished capacity.” Dr. 

Clayman admitted that he did not address premeditation or deliberation; but, he also testified 

that petitioner “was behaving in a purposeful, goal-directed, and sequential manner” on the 

day of the shooting. 

Following a three-day trial, a jury convicted petitioner of first degree murder, grand 

larceny of a vehicle and possession of a stolen vehicle. The jury did not recommend mercy. 

Petitioner was acquitted of receiving or transferring stolen property relating to the bulletproof vest. The circuit court denied petitioner’s post-trial motions for judgment of acquittal 

and for a new trial. This appeal followed. 

II. Standard of Review 

5
 
Our review of the various assigned errors necessitates application of different 

standards of review and each will be set forth within the discussion of the error raised by 

petitioner. 

III. Discussion 

Petitioner first argues that during voir dire the circuit court denied him “a meaningful 

opportunity to question the jurors regarding the issue of mercy.” Petitioner sought to inquire 

of the prospective jurors regarding whether they “would be predisposed with respect to a 

recommendation either for or against mercy,” and “whether the panel fully understood that 

the possibility of parole after fifteen years was not absolute.” 

As to whether the potential jurors were predisposed to recommend either for or against 

mercy, the circuit court inquired of prospective jurors as follows: 

Ladies and gentlemen, are any of you aware of any 

conscientious objection you may have to returning a verdict of 

first degree murder if, that is, that the evidence that you believe 

– the verdict that you believe is appropriate based upon the 

evidence, if you realize that in doing so there may be – you also 

have the opportunity to determine whether or not mercy is 

recommended or whether no mercy is recommended. With the 

idea that no mercy means that the defendant could be 

incarcerated for life. Mercy would indicate that he would have 

the opportunity [to] be paroled. Do you understand that? Do 

you think that there’s – does anyone here believe that they 

would have any conscientious objection to rendering a verdict 

given those circumstances? 

The circuit court further had informed defense counsel that prior to asking this question of 

the prospective jurors that “[i]f there’s anyone who indicates that they have any kind [of] 

objection or conscientious awareness of it, we’ll pull them up[,] talk to them, and we’ll 

resolve it.” Not one of the prospective jurors voiced any conscientious objection and, 

therefore, no follow-up questions were asked by the circuit court or the attorneys on this 

issue. Concerning petitioner’s request to fully inform the prospective jurors that if they 

granted mercy that did not mean that he would automatically get paroled after serving fifteen 

years, the circuit court determined that consequences of granting or not granting mercy was 

better left for the instructions given prior to the jury’s deliberation. And the circuit court did 

instruct the jury, after hearing all the evidence, about what a recommendation of mercy 

meant. 

6
 
We have previously held that “[i]n a criminal case, the inquiry made of a jury on its 

voir dire is within the sound discretion of the trial court and not subject to review, except 

when the discretion is clearly abused.” Syl. Pt. 2, State v. Beacraft, 126 W. Va. 895, 30 

S.E.2d 541 (1944), overruled on other grounds by State v. Dolin, 176 W. Va. 688, 347 

S.E.2d 208 (1986), overruled on other grounds by State v. Edward Charles L., 183 W. Va. 

641, 398 S.E.2d 123 (1990). Under this standard of review, we examine petitioner’s claim. 

Generally, “[a]defendant charged with murder of the first degree is entitled to question 

potential jurors on voir dire to determine whether any of them are unalterably opposed to 

making a recommendation of mercy in any circumstances in which a verdict of guilt is 

returned.” Syl. Pt 7, State v. Williams, 172 W. Va. 295, 305 S.E.2d 251 (1983). But we 

further explained, in Williams, that in the context of a first degree murder case 

[t]his is not to say, however, that counsel for the accused 

is allowed unlimited latitude in the voir dire examination of the 

potential jurors on this issue. The purpose of such questioning 

should be to discover whether any of the prospective jurors hold 

any personal, moral, religious or philosophical beliefs, 

convictions, scruples or opinions which would preclude them 

from considering the imposition of a particular penalty in the 

event of conviction regardless of the circumstances of the case. 

The inquiry must go to the willingness of the prospective jurors 

to exercise their discretion to determine the penalty. Counsel 

may not use the voir dire to suggest a verdict to the jury or to 

elicit a commitment from the jury to return a particular penalty 

in the event of conviction. State v. Ward, 569 S.W.2d 341 (Mo. 

App.1978); State v. McCaine, 460 S.W.2d 618 (Mo.1970). 

Williams, 172 W. Va. at 307, 305 S.E.2d at 264. We subsequently noted this limitation of 

our holding in Williams in syllabus point six of State v. McFarland, 175 W. Va. 205, 332 

S.E.2d 217 (1985), superceded by rule as stated in State v. Joseph, 214 W. Va. 525, 590 

S.E.2d 718 (2003): 

A criminal defendant is not entitled as a matter of right, 

under syl. pt. 7, State v. Williams, 172 W.Va. 295, 305 S.E.2d 

251 (1983), to question potential jurors on voir dire to determine 

their views on the various theories underlying incarceration, 

namely, rehabilitation, punishment and deterrence. It is within 

the discretion of the trial court whether such a question may be 

asked on voir dire to enable the defendant to exercise more 

informed judgment in utilizing his peremptory challenges. 

7
 
In this case, the circuit court inquired of potential jurors whether they had any 

objection to rendering a verdict that would require them either to give or refuse to give 

mercy, meaning that petitioner would be incarcerated for life. But the circuit court refused 

petitioner’s request that it inform potential jurors about the meaning of giving mercy, 

including that being eligible for parole in fifteen years does not automatically allow a person 

to get out of incarceration because other criteria must be weighed. The circuit court explained 

that the purpose of voir dire was not to give the criteria for parole, but to explore whether any 

of the prospective jurors had beliefs, opinions or views that would impact their ability to 

determine a verdict, which could require the imposition of a sentence of life without mercy. 

The circuit court did not abuse its discretion in its handling of the voir dire in this case. 

In his second assigned error, petitioner contends that the evidence presented at trial 

was insufficient to support a first degree murder conviction as the State failed to prove 

premeditation and deliberation. In his rehearing petition, petitioner maintains that he 

presented “unrebutted evidence of Mr. Adamson’s diminished capacity[,]” which showed 

that at the time of the shooting he suffered from diminished capacity caused by substanceinduced psychosis and was incapable of premeditation and deliberation. See Joseph, 214 W. 

Va. at 526-27, 590 S.E.2d 719-20, Syl. Pt. 3 (holding that “[t]he diminished capacity defense 

is available in West Virginia to permit a defendant to introduce expert testimony regarding 

a mental disease or defect that rendered the defendant incapable, at the time the crime was 

committed, of forming a mental state that is an element of the crime charged. . . .”). Thus, 

petitioner argues he could not be convicted of anything greater than second degree murder. 

This Court has previously held: 

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. 

To the extent that our prior cases are inconsistent, they are 

expressly overruled. 

Syl. Pt. 3, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995). 

8
 
 

Regarding, the elements of premeditation and deliberation, we have held that 

[a]lthough premeditation and deliberation are not 

measured by any particular period of time, there must be some 

period between the formation of the intent to kill and the actual 

killing, which indicates the killing is by prior calculation and 

design. This means there must be an opportunity for some 

reflection on the intention to kill after it is formed. 

Id. at 664, 461 S.E.2d at 170, Syl Pt. 5. Further, 

[i]n criminal cases where the State seeks a conviction of 

first degree murder based on premeditation and deliberation, a 

trial court should instruct the jury that murder in the first degree 

consists of an intentional, deliberate, and premeditated killing 

which means that the killing is done after a period of time for 

prior consideration. The duration of that period cannot be 

arbitrarily fixed. The time in which to form a deliberate and 

premeditated design varies as the minds and temperaments of 

people differ and according to the circumstances in which they 

may be placed. Any interval of time between the forming of the 

intent to kill and the execution of that intent, which is of 

sufficient duration for the accused to be fully conscious of what 

he intended, is sufficient to support a conviction for first degree 

murder. 

Id., Syl. Pt. 6. Hence, “[t]here must be some evidence that the defendant considered and 

weighed his decision to kill in order for the State to establish premeditation and deliberation 

under our first degree murder statute.” Id. at 675, 461 S.E.2d at 181. As the Court indicated 

in Guthrie, 

[i]n the absence of statements by the accused which 

indicate the killing was by prior calculation and design, a jury 

must consider the circumstances in which the killing occurred 

to determine whether it fits into the first degree category. 

Relevant factors include the relationship of the accused and the 

victim and its condition at the time of the homicide; whether 

plan or preparation existed either in terms of the type of weapon 

utilized or the place where the killing occurred; and the presence 

of a reason or motive to deliberately take life. No one factor is 

controlling. Any one or all taken together may indicate actual 

9
 
reflection on the decision to kill. This is what our statute means 

by “willful, deliberate and premeditated killing.” 

Id. at 675 n.23, 461 S.E.2d at 181 n.23. 

Despite petitioner’s argument, he ignores the fact that his own expert’s opinion was 

based on petitioner’s self-reports that he was so grossly intoxicated on the day of the 

shooting that he was incapable of deliberation and premeditation. But Dr. Saar admitted that 

petitioner had a significant history of malingering or “intentionally lying to present a certain 

diagnosis[,]” or “overexaggeration of his symptons.” Further, Dr. Saar testified that he had 

to throw out the entire assessment related to his administration of the Minnesota Multiphasic 

Personality Inventory to petitioner because petitioner was not being truthful. Dr. Saar also 

testified that he had no toxicology report or any other scientific evidence that showed 

petitioner was abusing drugs or intoxicated on the day of the events giving rise to the 

criminal charges. Additionally, Dr. Clayman’s testimony was that petitioner was not under 

the influence of any substance or suffering from any mental condition that would have 

prevented him from forming intent or malice. Dr. Clayman affirmatively concluded that 

petitioner “did not suffer from diminished capacity.” Dr. Clayman admitted that he did not 

address premeditation or deliberation; but, he also testified that petitioner “was behaving in 

a purposeful, goal-directed, and sequential manner” on the day of the shooting. 

Finally, the State also offered evidence that petitioner had recently purchased a pistol, 

that the same pistol was used to shoot the victim in the head at close range, that petitioner 

was wearing a bullet-proof vest on the night of the killing, and that petitioner stated that his 

motive to kill the victim was his belief that the victim had killed his daughter, even though 

that turned out to be not true. See id. Based upon our review of the record, there was 

sufficient evidence to sustain the first degree murder conviction. 

Petitioner’s third assigned error concerns the circuit court’s denial of petitioner’s 

motion to compel the State to elect between the charges of grand larceny and possession of 

a stolen vehicle. Petitioner contends that the circuit court subjected him to multiple 

punishments in violation of double jeopardy principles by allowing the State to pursue both 

grand larceny and possession of a stolen vehicle charges. We disagree. The State charged 

petitioner in Count 4 of the indictment with grand larceny,9

 arising out of the theft of the 

2006 Ford 500 vehicle from the convenience store in Elkins. Petitioner was also charged in 

Count 5 with possession of the same vehicle described in Count 4.10 

9

See W. Va. Code § 61-3-13 (distinguishing grand and petit larceny). 

10See id. § 17A-8-5. 

10
 
The standard of review applicable to this constitutional issue is as follows: “‘Where 

the issue on an appeal from the circuit court is clearly a question of law or involving an 

interpretation of a statute, we apply a de novo standard of review.’ Syllabus Point 1, Chrystal 

R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).” State v. Smith, 225 W. Va. 

706, 709, 696 S.E.2d 8, 11 (2010). 

When examining claimed double jeopardy violations, we follow the law enunciated 

in syllabus points seven and eight of State v. Gill, 187 W. Va. 136, 416 S.E.2d 253 (1992): 

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. 

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. 

Under the applicable statutes, “‘[t]o support a conviction for larceny11 at common law, 

it must be shown that the defendant took and carried away the personal property of another 

against his will and with the intent to permanently deprive him of the ownership thereof.’ 

Syllabus Point 3, State v. Louk, [169] W. Va. [24], 285 S.E.2d 432 (1981).” Syl. Pt 1, State 

v. Houdeyshell, 174 W. Va. 688, 329 S.E.2d 53 (1985) (footnote added). Conversely, West 

Virginia Code § 17A-8-5 provides: 

Any person who, with intent to procure or pass title to a 

vehicle which he knows or has reason to believe has been stolen 

or unlawfully taken, receives, or transfers possession of the 

same from or to another, or who has in his possession any 

vehicle which he knows or has reason to believe has been stolen 

or unlawfully taken, and who is not an officer of the law 

11See id. § 61-3-13 (requiring value of stolen goods to be $1,000 or more for grand 

larceny). 

11
 
engaged at the time in the performance of his duty as such 

officer, is guilty of a felony. 

(Emphasis added). Thus, this statute requires the State prove that a person 1) possess; 2) a 

vehicle; 3) that the person knew or had reason to believe it to be unlawfully taken in order 

to be convicted of possession of a stolen vehicle. Id. 

It is readily discerned from our review of both grand larceny and possession of a 

stolen vehicle, West Virginia Code § 17A-8-5, that each requires the State to prove elements 

that are different. We, therefore, reject petitioner’s argument that double jeopardy principles 

were violated and find the circuit court did not err in denying petitioner’s motion to compel 

the State to pursue only one of the aforementioned charges. 

Petitioner’s fourth assignment of error is that the circuit court erred in admitting his 

confession as it was given in violation of the prompt presentment rule. According to 

petitioner in his petition for rehearing, the Court “misunderstands the prompt presentment 

rule.” Petitioner contends that probable cause to arrest him attached, “at the very latest” when 

he was discovered inside the stolen vehicle on the roadside in Webster County as Trooper 

Bostic testified that he was aware of an arrest warrant for petitioner at the time he stopped 

petitioner. Petitioner argues that he should have been taken directly to a magistrate and that 

the reason he was not was for the purpose of obtaining a confession. 

Our review of this issue is governed by the following standard of review: “On 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); accord Syl. Pt. 1, State v. Rogers, 231 W. Va. 205, 

744 S.E.2d 315 (2013). 

Our prompt presentment rule is set forth in West Virginia Code 62-1-5(a)(1), which 

provides: 

An officer making an arrest under a warrant issued upon 

a complaint, or any person making an arrest without a warrant 

for an offense committed in his presence or as otherwise 

authorized by law, shall take the arrested person without 

unnecessary delay before a magistrate of the county where the 

arrest is made. 

12
 
See W. Va. R. Crim. P. 5(a). The prompt presentment rule “‘is triggered when an accused 

is placed under arrest. Furthermore, once a defendant is in police custody with sufficient 

probable cause to warrant an arrest, the prompt presentment rule is also triggered.’ Syl. Pt. 

2, State v. Humphrey, 177 W. Va. 264, 351 S.E.2d 613 (1986).” Rogers, 231 W. Va. at 207, 

744 S.E.2d at 317, Syl. Pt. 4, in part. Any delay in taking a defendant to a magistrate that is 

due to “‘the primary purpose’” of obtaining a confession “‘may be a critical factor [in the 

totality of circumstances making a confession involuntary and hence inadmissable][.]’” Syl. 

Pt. 1, State v. Guthrie, 173 W. Va. 290, 315 S.E.2d 397 (1984)(quoting, in part, Syl. Pt. 6, 

State v. Persinger, 169 W. Va. 121, 286 S.E.2d 261 (1982)). But necessary delays do not 

render a confession involuntary. “Examples of necessary delay might include those required: 

1) to carry out reasonable routine administrative procedures such as recording, fingerprinting 

and photographing; . . . [and] 4) to obtain information likely to be a significant aid in averting 

harm to persons or loss to property of substantial value[.]” Id. at 135-36, 286 S.E.2d at 270 

(quoting Johnson v. State, 384 A.2d 709, 717 (Md. 1978)). 

In this case, Trooper Bostic testified that on the morning of April 21, around 11:36 

a.m., he located the stolen vehicle and petitioner in Webster County. The trooper was aware 

that a grand larceny warrant had been issued for petitioner and that there had been a shooting. 

Petitioner was then placed in the back of the trooper’s car until additional help arrived. 

Backup arrived for Trooper Bostic around 11:45 a.m. and, at that time, Trooper Bostic 

searched petitioner and read him his Miranda rights. Around 11:54 a.m., petitioner 

proceeded to make a voluntary statement to the trooper, which was recorded and lasted 

approximately eight minutes. Once petitioner completed his voluntary statement, he was 

transported to a magistrate at approximately 12:38 p.m., arriving at the magistrate’s office 

around 12:55 p.m. There is no evidence that the short delay in taking petitioner to the 

magistrate had, as its primary purpose, the goal of obtaining a confession. There is no 

evidence that Trooper Bostic intimidated, threatened, or intentionally delayed taking 

petitioner to a magistrate. Audio evidence showed that petitioner voluntarily began talking 

to the trooper about his twelve-year-old daughter, who petitioner thought had been killed. 

During the trooper’s attempt to gain more information about petitioner’s daughter, petitioner 

confessed to the murder. According to the record, Trooper Bostic did not inquire about any 

crime until petitioner stated that he shot the victim because he believed the victim had killed 

his daughter. Accordingly, we find the circuit court did not err in allowing petitioner’s 

statement to be admitted into evidence. 

The fifth assigned error is whether the circuit court erred in failing to grant a mistrial 

or provide an instruction after the prosecutor used the words “execute” or “execution” on 

three occasions during his opening statement to describe the shooting that occurred in this 

case. As the prosecutor remarked on one occasion, “I say he executed Donovan because he 

shot him in the head at close range . . . .” Petitioner objected after the prosecutor used the 

word the third time in his closing. Following petitioner’s opening statement, petitioner also 

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moved for a mistrial or, at a minimum, an instruction to the jury to disregard the remark. The 

circuit court denied petitioner’s requests. But the circuit court did instruct the jury at the close 

of all the evidence that whatever is said in opening statements and closing arguments is not 

to be considered evidence. 

Petitioner argues that a shooting in the head at close range could be evidence of 

anything ranging from premeditated murder to involuntary manslaughter “to nothing at all.” 

So the prosecutor’s description of the shooting in this case as an execution, because 

petitioner was shot in the head at close range, necessarily predisposed the jury to return a 

verdict of premeditated murder. 

In syllabus points five and six of State v. Sugg, 193 W. Va. 388, 456 S.E.2d 469 

(1995), we held: 

A judgment of conviction will not be set aside because of 

improper remarks made by a prosecuting attorney to a jury 

which do not clearly prejudice the accused or result in manifest 

injustice. 

Four factors are taken into account in determining 

whether improper prosecutorial comment is so damaging as to 

require reversal: (1) the degree to which the prosecutor’s 

remarks have a tendency to mislead the jury and to prejudice the 

accused; (2) whether the remarks were isolated or extensive; (3) 

absent the remarks, the strength of competent proof introduced 

to establish the guilt of the accused; and (4) whether the 

comments were deliberately placed before the jury to divert 

attention to extraneous matters. 

We also stated in Sugg that “[c]learly, a prosecuting attorney should refrain from 

referring to questionable evidence that may poison the jury’s mind against the defendant. 

However, there is equally clear authority that a prosecuting attorney’s suggestion of a 

plausible inference to be drawn from the evidence is proper.” Id. at 405, 456 S.E.2d at 484. 

In the instant case, petitioner admitted to shooting the victim in the head, so the degree 

to which the prosecutor’s remarks tended to mislead the jury and to prejudice petitioner is 

limited. The prosecutor’s remarks were also isolated and he explained that the term was used 

because the victim was shot in the head at close range. Also, without the prosecutor’s 

remarks, there was other sufficient evidence of the crime and there was no indication that the 

use of the term execute was deliberately placed before the jury to divert its attention from 

other extraneous matters. See id. at 393, 456 S.E.2d at 474, Syl. Pt 6. 

14
 
Finally, petitioner assigned as error that the circuit court erred by not making findings 

of fact and conclusions of law prior to admitting evidence of the incident between Mr. 

Summerfield and petitioner under West Virginia Rule of Evidence 404(b). Specifically, the 

evidence that was sought to be introduced by the State concerned the attempted first degree 

murder and wanton endangerment of Mr. Summerfield. The defense was successful in its 

motion to sever these charges in the indictment. But the State sought to introduce evidence 

regarding these charges during the trial that is the subject of this appeal to show petitioner’s 

“intent, plan, knowledge, and/or absence of mistake or accident in committing the offense 

of Murder” for which he was being tried.12 The circuit court conducted an in camera hearing 

pursuant to State v. McGinnis, 193 W. Va. 147, 455 S.E.2d 516 (1994), to determine the 

admissibility of the evidence. By order entered October 5, 2015, the circuit court determined 

that the State could admit the evidence pursuant to Rule 404(b) “to prove intent or plan as 

to Court 1 (first degree murder) of the Indictment at the trial herein.” Petitioner now claims 

that the circuit court’s order is insufficient. 

As we held in State v. LaRock, 196 W. Va. 294, 470 S.E.2d 613 (1996): 

The standard of review for a trial court’s admission of 

evidence pursuant to Rule 404(b) involves a three-step analysis. 

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. 

196 W. Va. at 310-11, 470 S.E.2d at 629-30. Further, in McGinnis, we explained that this 

Court will “review the trial court’s decision to admit evidence pursuant to Rule 404(b) under 

an abuse of discretion standard.” 193 W.Va. at 159, 455 S.E.2d at 528. We also stated that 

[o]ur function on . . . appeal is limited to the 

inquiry as to whether the trial court acted in a way 

that was so arbitrary and irrational that it can be 

said to have abused its discretion. In reviewing 

12The State supplemented its notice of intention to use the evidence under West 

Virginia Rule of Evidence 404(b) by stating that the evidence also supported petitioner’s 

identity as the perpetrator. 

15
 
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. at 159, 455 S.E.2d at 528. 

A circuit court must follow the following requirements in order to admit evidence 

pursuant to Rule 404(b): 

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. If the trial court is then satisfied that the Rule 

404(b) evidence is admissible, it should instruct the jury on the 

limited purpose for which such evidence has been admitted. A 

limiting instruction should be given at the time the evidence is 

offered, and we recommend that it be repeated in the trial 

court’s general charge to the jury at the conclusion of the 

evidence. 

193 W. Va. at 151, 455 S.E.2d at 520, Syl. Pt. 2. 

The circuit court could have issued a more detailed order. Despite that fact, the 

appendix record shows that the circuit court clearly complied with McGinnis by conducting 

an in camera hearing, identifying in its order the specific bases under which the State could 

offer the evidence pursuant to Rule 404(b), and instructing the jury regarding this limited 

16
 
purpose. The circuit court, therefore, did not err in its determination that the subject evidence 

was admissible. 

IV. Conclusion 

Based upon the foregoing reasons, we again affirm the January 5, 2017, sentencing 

order entered by the Circuit Court of Randolph County. 

Affirmed. 

ISSUED: November 5, 2018 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Elizabeth D. Walker 

Justice Paul T. Farrell sitting by temporary assignment 

Justice Tim Armstead 

Justice Evan H. Jenkins 

Justice Allen H. Loughry II suspended and therefore not participating. 

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