IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
 

September 2014 Term 

No. 12-1259
 

STATE OF WEST VIRGINIA,
 

Plaintiff Below, Respondent
 

v.
 

JAMES EVERETT MARCUM,
 

Defendant Below, Petitioner
 

FILED
 

October 30, 2014
 

released at 3:00 p.m. 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Appeal from the Circuit Court of Wayne County
 

The Honorable James H. Young, Jr., Judge
 

Criminal Action No. 10-F-017
 

AFFIRMED
 

Submitted: September 17, 2014 

Filed: October 30, 2014 

Dana F. Eddy, Esq. Patrick Morrisey, Esq. 

WV Public Defender Service Attorney General 

Charleston, West Virginia Scott E. Johnson, Esq. 

Attorney for the Petitioner Senior Assistant Attorney General 

Julie Blake, Esq. 

Assistant Attorney General 

Charleston, West Virginia 

Attorney for the Respondent 

JUSTICE WORKMAN delivered the Opinion of the Court. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SYLLABUS BY THE COURT
 

1. “‘The trial court has wide discretion as to the admission of confessions 

and ordinarily this discretion will not be disturbed on review.’ Syllabus point 2, State v. 

Lamp, 163 W. Va. 93, 254 S.E.2d 697 (1979).” Syl. Pt. 2, State v. Woods, 169 W. Va. 767, 

289 S.E.2d 500 (1982). 

2. “This Court is constitutionally obligated to give plenary, independent, 

and de novo review to the ultimate question of whether a particular confession is voluntary 

and whether the lower court applied the correct legal standard in making its determination. 

The holdings of prior West Virginia cases suggesting deference in this area continue, but that 

deference is limited to factual findings as opposed to legal conclusions.” Syl. Pt. 2, State v. 

Farley, 192 W. Va. 247, 452 S.E.2d 50 (1994). 

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.” Syl. Pt. 8, State v. Guthrie, 205 W. Va. 326, 518 S.E.2d 83 (1999). 

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4. “‘The State must prove, at least bya 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.’
 

Syllabus point 5, State v. Starr, 158 W. Va. 905, 216 S.E.2d 242 (1975).” Syl. Pt. 1, State v.
 

Woods, 169 W. Va. 767, 289 S.E.2d 500 (1982).
 

5. “To safeguard the integrity of its proceedings and to insure the proper
 

administration of justice, a circuit court has inherent authority to conduct and control matters
 

before it in a fair and orderly fashion.” Syl. Pt. 2, State v. Fields, 225 W. Va. 753, 696
 

S.E.2d 269 (2010).
 

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Workman, Justice: 

This case is before the Court upon the appeal of the Petitioner, James Marcum, 

from the September 14, 2012, Order re-sentencing1 the Petitioner to a determinate term of 

forty years in prison following his jury conviction for second degree murder. The Petitioner 

argues that the circuit court erred: 1) in the manner it conducted the suppression hearing, by 

shifting the burden to the Petitioner and requiring him to put on evidence first in order to 

make a showing that would trigger the State’s rebuttal of the Petitioner’s suppression 

grounds; and, 2) in finding that the Petitioner’s statement to police was voluntarily given. 

Based upon a review of the parties’ briefs and oral arguments, the appendix record, and all 

other matters before the Court, we affirm the trial court’s decision. 

I. Facts 

On December 9, 2009, the Petitioner and his cousin, Jim Ward, were together 

at Mr. Ward’s home in Wayne County, West Virginia. The two men had been drinking and 

both were intoxicated. They got into an altercation, which evolved into Mr. Ward stabbing 

the Petitioner twice with a bayonet. The Petitioner, in turn, got the bayonet from Mr. Ward 

and stabbed his cousin in the back three times, killing him. 

1

The Petitioner was originally sentenced on August 26, 2011, following his jury 

conviction on July 29, 2011. The Petitioner was re-sentenced on September 14, 2012, for 

appellate purposes. 

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The Petitioner was taken to Three Rivers Medical Center in Louisa, Kentucky, 

for treatment of his injuries. He underwent surgery and received pain medicine.2 

Trooper R. J. Drake of the West Virginia State Police3 went to the medical 

center to interview the Petitioner as part of his investigation into Mr. Ward’s murder. Shortly 

after midnight on December 10, 2009, Trooper Drake took a statement from the Petitioner. 

The interview lasted about thirty minutes and was videotaped. During this time, Trooper 

Drake informed the Petitioner that the officer was outside his jurisdiction, that he was not 

arresting the Petitioner, that he was not fully aware of what was going on, although he knew 

that Mr. Ward was dead, that criminal charges may be pending, and that the Petitioner may 

be arrested in the near future for murder. Trooper Drake also confirmed that the Petitioner 

could read and understood English. Trooper Drake gave the Petitioner his Miranda4 rights 

and confirmed with the Petitioner that he understood those rights. The officer then asked the 

Petitioner to sign a waiver of Miranda form. 

The Petitioner gave Trooper Drake a statement about the events leading up to 

his cousin’s death. The Petitioner stated that both he and his cousin had been drinking. The 

2

According to the record, the Petitioner was taking Demerol and Percocet for his pain.
 

3

Trooper Drake was accompanied by another state trooper.
 

4

See Miranda v. Arizona, 384 U.S. 436 (1966).
 

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two argued about money. The Petitioner stated that his cousin, Mr. Ward, got up and pulled 

“a big sword5

” out of the case and told the Petitioner that he was going to kill him. The 

Petitioner stated that Mr. Ward stabbed him two times. The Petitioner stated that he grabbed 

the sword by the blade and the next thing he knew Mr. Ward was down and the Petitioner 

“must have hit him.” The Petitioner stated he must have hit Mr. Ward “two or three” times 

to get him off the Petitioner. The Petitioner could not remember where he had struck his 

cousin. 

The Petitioner was indicted by a grand jury for the murder of Mr. Ward on 

March 2, 2010. The Petitioner moved to suppress his videotaped statement that he gave to 

Trooper Drake. In the motion, the Petitioner admitted that he was not under arrest at the time 

the statement was made and that he signed a waiver of rights form. Nonetheless, the 

Petitioner contended that “he was under the influence of medications which rendered him 

incapable of voluntarily and knowingly waiving his constitutional right to remain silent and 

to be represented by an attorney at this critical stage of the criminal investigation against 

him.” 

On October 4, 2010, the trial court held a suppression hearing regarding the 

Petitioner’s statement. During the hearing, the Petitioner’s counsel conceded that his motion 

5

The sword was later identified as a bayonet. 

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was not predicated upon the Petitioner not receiving his Miranda warnings, as the Petitioner 

stated that he had signed a Miranda form, referring to the waiver signed by the Petitioner. 

Additionally, the Petitioner’s counsel also conceded that the motion was not based upon any 

coercion or threats as he stated: 

I think the officers were there to take a statement from him and 

didn’t do anything wrong. It’s just that under the circumstances, 

with his hospital condition, having just gone through surgery, 

having been on pain medication for the entire day, we feel that 

that raises an issue as to whether his statement was knowing, 

whether he knew the rights that he was waiving in light of all 

the medication that he was . . . undergoing at the time. 

The Petitioner, however, argued that “it’s the state’s burden to establish that the statement 

in this case, which was given by Mr. Marcum in his hospital room after his surgery, was a 

knowing and voluntary waiver.” The trial court responded: “I think you have to raise the 

issue, what it is. I think you have to put something on, whether it’s – you have to make the 

issue – raise the issue. I don’t think you have the burden, but I do think you have to raise 

which issues we’re talking about. Is it knowing? Is it voluntary? Is it both?” The 

Petitioner’s counsel countered: “Okay. That’s fair.” 

In seeking to ascertain exactlywhat issue the Petitioner sought to have resolved 

regarding the statement he gave to police in light of the concessions made, the trial court 

found that the Petitioner was raising a “knowing issue and understanding issue,” and that 

essentially “I think what you’re saying is either his medical state made him in such a position 

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that he did not understand, know what he was signing or know the statement that he was 

giving.” The Petitioner’s counsel agreed with the circuit court’s assessment of the motion 

to suppress. The Petitioner’s counsel then stated: “Then let’s swear [in] . . . Mr. Marcum . 

. . .” 

The Petitioner testified that he was in pain and did not feel like he “was all 

there” or was “groggy.” Despite this feeling, however, the Petitioner stated that he 

remembered the officers coming to get a statement from him. When he gave the statement, 

he remembered being informed of his Miranda rights and he remembered signing the 

Miranda rights waiver form. He also stated that he agreed to give the statement and 

understood that he could stop the statement at any time, but did not choose to do so. He 

testified that he gave the officer his side of the story. He further stated that he did not have 

any trouble reading and writing. The Petitioner also testified that the officers did not threaten 

or coerce him. The Petitioner, however, stated that he did not know that he was waiving his 

constitutional rights when he initialed the form and signed his name. 

After the Petitioner testified, the trial court found that “I think his testimony 

has raised some issues, at least on the knowing and the more narrow issue, his saying that it 

may have – that the medication may have reduced his voluntariness to provide the 

statement.” The trial court then allowed the State to put on evidence regarding this issue. 

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Trooper Drake testified that the Petitioner appeared to be coherent and understood the 

questions he asked. According to the trooper, the Petitioner responded in an appropriate 

manner to the questions. Further, after he gave the statement, he was asked to go over the 

statement again and the Petitioner recited his statement a second time in a manner consistent 

with the first time. 

By order entered October 21, 2010, the trial court denied the motion to 

suppress. The court determined that the statement “given by the Defendant was voluntarily 

and knowingly given after the Defendant intelligently and knowingly waived his 

constitutional rights.” The issue came up again on July 29, 201l, during the jury instruction 

conference. The Petitioner offered an instruction concerning the jury’s consideration of 

whether the statement was freely and voluntarily given.6 The circuit court, in reviewing the 

6

The proposed instruction that was given to the jury was as follows: 

The Court has admitted into evidence a statement made 

by Mr. Marcum to police officers. If you believe by a 

preponderance of the evidence that this statement was made by 

the Defendant freely and voluntarily, as assessed under the 

totality of the surrounding circumstances, both the 

circumstances of the Defendant and the details of the 

interrogation, then you may consider such statement as part of 

the evidence in the case and you may give it such weight and 

take part of such statement – such weight and credit, as you may 

believe or disbelieve all or any parts of such statements. 

However, if you do not believe that the statement was freely and 

voluntarily made to the police officers, then you may reject the 

(continued...) 

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instruction, stated “I thought the standard was you had to raise it [referring to the issue of 

voluntariness]. The circuit court then stated: “I agree with you my understanding of the law 

was wrong. I don’t know that you would have had to put him [referring to the Petitioner] on, 

and I would have given this instruction whether you would have put him on or not.” There 

was no other issue or objection raised by the Petitioner at this time regarding the manner in 

which the trial court had conducted the suppression hearing. 

On August 29, 2011, at the conclusion of all the evidence, the jury convicted 

the Petitioner of second degree murder. The Petitioner was sentenced to a determinate term 

of forty years in prison and now appeals. 

II. Standard of Review 

This Court previously has held that “‘[t]he trial court has wide discretion as to 

the admission of confessions and ordinarily this discretion will not be disturbed on review.’ 

Syllabus point 2, State v. Lamp, 163 W. Va. 93, 254 S.E.2d 697 (1979).” Syl. Pt. 2, State v. 

Woods, 169 W. Va. 767, 289 S.E.2d 500 (1982). We, however, also held in syllabus point 

two of State v. Farley, 192 W. Va. 247, 452 S.E.2d 50 (1994), that 

[t]his Court is constitutionally obligated to give plenary, 

independent, and de novo review to the ultimate question of 

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(...continued)
 

statement from any consideration.
 

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whether a particular confession is voluntary and whether the 

lower court applied the correct legal standard in making its 

determination. The holdings of prior West Virginia cases 

suggesting deference in this area continue, but that deference is 

limited to factual findings as opposed to legal conclusions. 

Keeping the foregoing standards of review in mind, we examine the issues raised by the 

Petitioner concerning the admission of his statement. 

III. Analysis 

The Petitioner argues that the trial court erred in the manner it conducted the 

suppression hearing concerning his videotaped statement. The Petitioner maintains that the 

trial court erroneously shifted the burden of proof to him to proceed first and produce 

evidence showing that the statement was not voluntary. As the Petitioner argues, “the 

defendant was required to shoulder the burden to obtain the right to have a suppression 

hearing, and[] the State thereby gained the advantage of being able to cross-examine the 

defendant without showing first his statement was voluntary.” Conversely, the Respondent 

argues that the Petitioner never objected to the procedure put in place by the circuit court 

regarding the suppression hearing. 

It is well-established law that 

[t]he 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 

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S.E.2d 815 (1989), and its progeny, may be read to hold 

differently, such language is expressly overruled. 

Syl. Pt. 8, State v. Guthrie, 205 W. Va. 326, 518 S.E.2d 83 (1999). “Miranda rights are not 

triggered unless there is custody[.]” Farley, 192 W. Va. at 254 n.10, 452 S.E.2d at 57 n.10 

(citing State v. George, 185 W. Va. 539, 408 S.E.2d 291 (1991)). 

In this case, the Petitioner conceded in his motion to suppress and during the 

hearing on that motion that he was not in custody at the time he gave a statement. The 

safeguards outlined in Miranda, therefore, were not required and whether the Petitioner 

waived his Miranda rights is not an issue. See id. Further, notwithstanding the Petitioner 

not being taken into custody, he admitted that the state trooper had given him his Miranda 

warning and that the Petitioner had signed a waiver of rights form. Finally, the Petitioner 

admitted, prior to any request for evidence by the trial court, that the Petitioner was not 

coerced and that the state police officers did nothing improper. 

Our law is well-established that 

“‘[t]he 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.’ Syllabus point 5, State v. Starr, 158 W. Va. 905, 216 

S.E.2d 242 (1975).” 

Woods, 169 W. Va. at 767, 289 S.E.2d at 501, Syl. Pt. 1. We, however, also have enunciated 

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the following law in syllabus point two of State v. Potter, 197 W. Va. 734, 478 S.E.2d 742 

(1996) that 

[w]hen a suspect willingly goes to the police station for 

questioning at the request of the investigating officer, and the 

suspect responds that he or she wishes to give a statement 

despite the officer’s warnings regarding the severity of the 

allegations against the suspect, such statement is admissible as 

a voluntary confession, unless the suspect can show that he or 

she was in custody or that the statement was not voluntary. 

(Emphasis added). 

Additionally, under West Virginia Rule Evidence 611, “[t]he court shall 

exercise reasonable control over the mode and order of interrogating witnesses and 

presenting evidence so as to (1) make the interrogation and presentation effective for the 

ascertainment of the truth . . . .” This Court also held in syllabus point two of State v. Fields, 

225 W. Va. 753, 696 S.E.2d 269 (2010), “[t]o safeguard the integrity of its proceedings and 

to insure the proper administration of justice, a circuit court has inherent authority to conduct 

and control matters before it in a fair and orderly fashion.” 

Our review of the record reveals that the sole issue before the trial court during 

the suppression hearing was whether the Petitioner’s voluntariness in giving the statement 

was impacted by the medications that he was taking at the time he spoke with Trooper Drake. 

The circuit court required the Petitioner to produce some evidence on the issue he raised in 

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his motion, prior to requiring the State to produce its evidence of voluntariness. In light of 

the Petitioner’s concessions that he was not in custody, had signed a waiver of his Miranda 

rights, had not been coerced, and that the state police had done nothing wrong, the circuit 

court had the right under Rule 611 to change the order of production of the evidence. The 

circuit court did not alter the burden of proof, it merely required the Petitioner to go first in 

producing evidence regarding how the medications made him incapable of voluntarily and 

knowingly waiving his constitutional right to remain silent. Even if the State had produced 

its evidence first at the suppression hearing, the Petitioner would still have had to offer 

evidence to show that he did not remember giving the statement, that the statement was not 

knowingly given or that the statement was not voluntary. See Potter, 197 W. Va. at 734, 478 

S.E.2d at 742. Moreover, the Petitioner did not challenge the procedure used by the trial 

court or object to the circuit court “requiring” him to testify. As the record indicates, the trial 

court did not require the Petitioner to testify, rather, it was the Petitioner’s counsel who called 

the Petitioner to testify during the hearing. We have often stated that “[g]enerally the failure 

to object constitutes a waiver of the right to raise the matter on appeal.” State v. Asbury, 187 

W. Va. 87, 91, 415 S.E.2d 891, 895 (1992); see also Syl. Pt. 1, in part, Mowery v. Hitt, 155 

W. Va. 103, 181 S.E.2d 334 (1971) (“[T]his Court will not decide nonjurisdictional questions 

which were not considered and decided by the court from which the appeal has been taken.”). 

The Petitioner’s second assignment of error is that the circuit court erred in 

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finding that his statement was voluntarily given to the police. The Respondent argues that 

the State proved by a preponderance of the evidence that the statement was admissible. 

This Court stated in Potter: 

Where the question on appeal is whether a confession 

admitted at trial was voluntary and in compliance with Miranda 

with respect to issues of underlying or historic facts, a trial 

court’s findings, if supported in the record, are entitled to this 

Court’s deference. However, there is an independent appellate 

determination of the ultimate question as to whether, under the 

totality of the circumstances, the challenged confession was 

obtained in a manner compatible with the requirements of 

Miranda and the United States and West Virginia Constitutions. 

197 W. Va. at 741, 478 S.E.2d at 749. 

Reviewing the record in this case, we find that the circuit court correctly 

determined that the Petitioner’s statement was voluntary. The circuit court found that the 

Petitioner testified that he recalled making the statement to Trooper Drake, even though the 

Petitioner was in the hospital and receiving pain medication. The circuit court found that the 

Petitioner never asserted that he did not understand his rights. Further, the Petitioner 

admitted that the statement did not result from any form of coercion. The circuit court also 

found that one of the troopers, who was present when the Petitioner gave his statement, 

testified that the Petitioner appeared to understand the questions and answers contained 

within the statement. Finally, the circuit court viewed the videotape of the Petitioner’s 

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statement and found that “during the videotaped statement, the Defendant appeared to 

understand the questions and answers given.” Under these circumstances, we conclude that 

the circuit court did not err in admitting the Petitioner’s statement into evidence. 

IV. Conclusion 

Based upon the foregoing, the decision of the Circuit Court of Wayne County 

is affirmed. 

Affirmed. 

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