State ex rel. Rhonda L. Wade, Marshall County Prosecuting Attorney v. Hon. David W. Hummel, Jr., Judge and H.D. ( 2020 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2020 Term FILED
_____________
June 16, 2020
released at 3:00 p.m.
No. 19-1047 EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
_____________ OF WEST VIRGINIA
STATE OF WEST VIRGINIA EX REL. RHONDA L. WADE,
MARSHALL COUNTY PROSECUTING ATTORNEY,
Petitioner
V.
THE HONORABLE DAVID W. HUMMEL, JR.,
JUDGE OF THE CIRCUIT COURT OF MARSHALL COUNTY;
AND H.D.,
Respondents
________________________________________________
PETITION FOR WRIT OF PROHIBITION
WRIT GRANTED
________________________________________________
Submitted: May 19, 2020
Filed: June 16, 2020
Andrea C. Poling Michael B. Baum
Eric M. Gordon Edmond & Baum, PLLC
Marshall County Prosecuting Wheeling, West Virginia
Attorney’s Office Attorneys for Respondent H.D.
Moundsville, West Virginia
Attorneys for the Petitioner Brett M. Ferro
Chief Public Defender
Moundsville, West Virginia
Attorney for Amicus Curiae,
Public Defender Corporation for the
Second Judicial Circuit
JUSTICE JENKINS delivered the Opinion of the Court.
CHIEF JUSTICE ARMSTEAD, deeming himself disqualified, did not participate in
the decision of this case.
JUDGE J.D. BEANE, sitting by temporary assignment.
JUSTICE WORKMAN not participating.
SYLLABUS BY THE COURT
1. “‘Prohibition lies only to restrain inferior courts from proceeding in
causes over which they have no jurisdiction, or, in which, having jurisdiction, they are
exceeding their legitimate powers and may not be used as a substitute for [a petition for
appeal] or certiorari.’ Syllabus Point 1, Crawford v. Taylor, 138 W. Va. 207, 75 S.E.2d
370 (1953).” Syllabus point 1, State ex rel. Franklin v. Tatterson, 241 W. Va. 241, 821
S.E.2d 330 (2018).
2. “‘In determining whether to entertain and issue the writ of prohibition
for cases not involving an absence of jurisdiction but only where it is claimed that the lower
tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether
the party seeking the writ has no other adequate means, such as direct appeal, to obtain the
desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not
correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as a matter
of law; (4) whether the lower tribunal’s order is an oft repeated error or manifests persistent
disregard for either procedural or substantive law; and (5) whether the lower tribunal’s
order raises new and important problems or issues of law of first impression. These factors
are general guidelines that serve as a useful starting point for determining whether a
discretionary writ of prohibition should issue. Although all five factors need not be
satisfied, it is clear that the third factor, the existence of clear error as a matter of law,
should be given substantial weight.’ Syllabus Point 4, State ex rel. Hoover v. Berger, 199
i
W. Va. 12, 483 S.E.2d 12 (1996).” Syllabus point 2, State ex rel. Franklin v. Tatterson,
241 W. Va. 241, 821 S.E.2d 330 (2018).
3. “The Fifth Amendment privilege against self-incrimination has been
interpreted to provide protection only where incriminating evidence of a testimonial or
communicative nature is sought from a witness through the vehicle of state compulsion.”
Syllabus point 8, Marano v. Holland, 179 W. Va. 156, 366 S.E.2d 117 (1988).
4. A defendant’s Fifth Amendment privilege against self-incrimination
is not violated by the admission into evidence and/or publication to the jury of an
audio/video recording of the defendant’s voluntary statement made to law enforcement
officers.
ii
Jenkins, Justice:
The petitioner in this original jurisdiction case, Rhonda L. Wade (“Ms.
Wade”), the Marshall County, West Virginia, Prosecuting Attorney, asks this Court to
prohibit the Circuit Court of Marshall County from enforcing a ruling that found an
audio/video recording of a voluntary statement made to law enforcement officers by a
respondent herein, H.D., 1 who is the defendant in the underlying criminal proceeding,
violated H.D.’s privilege against self-incrimination as guaranteed by the Fifth Amendment
to the United States Constitution. The circuit court’s ruling was based upon its finding that
playing the incriminating recording for the jury was commensurate with compelling H.D.
to testify against himself. Ms. Wade argues that, because H.D. was not compelled to give
the statement, but did so voluntarily, it is not a violation of his privilege against self-
incrimination to allow the State to introduce the audio/video recording into evidence,
and/or publish it to the jury, during its case-in-chief. Ms. Wade further asserts that the
circuit court’s contrary ruling misapplies the Fifth Amendment privilege against self-
incrimination. Based upon our review of the parties’ arguments, the amicus brief, 2 the
1
Due to the sexual nature of the crime allegedly committed by H.D., and the
tender age of his victim at the time of his alleged acts, we follow our long standing practice
and use initials to refer to those involved in this case. See W. Va. R. App. P. 40(e)(1)
(restricting use of personal identifiers in cases involving certain sexual crimes or juveniles).
See, e.g., State ex rel. Harvey v. Yoder, 239 W. Va. 781, 782 n.2, 806 S.E.2d 437, 438 n.2
(2017); State v. Potter, 197 W. Va. 734, 737 n.1, 478 S.E.2d 742, 745 n.1 (1996).
2
We acknowledge and appreciate the Amicus Curiae brief filed by the Public
Defender Corporation for the Second Judicial Circuit of West Virginia, which was filed in
support of the respondent, Judge David W. Hummel, Jr.
1
appendix record, and the relevant authority, we agree with Ms. Wade. Therefore, we grant
the requested writ of prohibition.
I.
FACTUAL AND PROCEDURAL HISTORY
These facts, as presented by Ms. Wade, are not refuted by H.D. On
December 12, 2018, H.D. was visited at his home by a Marshall County Deputy Sheriff
who asked if H.D. would be willing to make a statement about allegations that he had
engaged in improper sexual contact with E.D., a child. Later that same day, H.D.
voluntarily arrived at the Marshall County Sheriff’s Department, where he was shown to
the interview room and advised that he was not under arrest and was free to leave.
Nevertheless, H.D. was read his Miranda rights. 3 He then signed a document stating that
he understood his rights and that he waived all of them. Prior to being interviewed, H.D.
was informed that a video recording of his interview was being made. He was interviewed
by Deputy Doug Sayman and Detective Bear Mobly, both of the Marshall County Sheriff’s
3
See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966). The requirement for advising an individual of his/her Miranda rights arises only
in the context of a custodial interrogation. See State v. George, 185 W. Va. 539, 545, 408
S.E.2d 291, 297 (1991) (“It is clear that in this jurisdiction Miranda warnings are required
only when a suspect has either been formally arrested or subjected to custodial
interrogation.” (quotations and citation omitted)). To the extent that H.D. was not under
arrest and was free to leave, it was not necessary for law enforcement officers to advise
him of his rights. See State v. Farley, 192 W. Va. 247, 255 n.10, 452 S.E.2d 50, 58 n.10
(1994) (“Telling a suspect that he/she is not under arrest and is free to leave usually is
sufficient to prevent a finding of custody[.]”).
2
Department. During the course of the interview, H.D. also prepared a two-page, hand-
written statement. When the interview concluded, H.D. was permitted to leave.
On December 13, 2018, Deputy Sayman filed a criminal complaint charging
H.D. with sexual abuse by a parent, guardian, custodian, or person in a position of trust,
and with a misdemeanor charge of contributing to the delinquency of a minor. H.D. waived
his right to a preliminary hearing, and, in July 2019, he was indicted by a Marshall County
grand jury on two counts: (1) sexual abuse in the first degree; and (2) sexual abuse by a
parent, guardian, custodian, or person in a position of trust. The State subsequently filed a
motion to dismiss, without prejudice, the charge of sexual abuse in the first degree, which
was granted.
In preparation for trial on the remaining count of sexual abuse by a parent,
guardian, custodian, or person in a position of trust, the State filed a motion to determine
the voluntariness of H.D.’s interview by law enforcement, the audio/video recording of
which is the subject of the instant petition, as well as his written statement. During the
circuit court’s hearing on the motion, the State presented the testimony of Deputy Sayman
to authenticate three exhibits: (1) the form signed by H.D. on December 12, 2018,
acknowledging and waiving his “Miranda Rights”; (2) the two-page, hand-written
statement prepared by H.D. on the same date; and (3) an audio/video recording of H.D.’s
interview of December 12, 2018, with Deputy Sayman and Detective Mobly. These
exhibits were entered into the circuit court’s record for purposes of the hearing only. At
3
the conclusion of the hearing, the circuit court advised the parties that it would review the
evidence and then issue an order.
Following the hearing, H.D. filed a motion labeled “Defendant’s Fourth
Motion in Limine” in which he requested that the circuit court “prohibit the showing and/or
listening by the jury [of] any and all portions of the Defendant’s audio and video recorded
statement, and to prohibit the introduction of the Defendant’s written statement at trial.”
In the motion, H.D. argued that introducing the recorded and written statements would be
unduly prejudicial to him because the State will have the opportunity to admit evidence of
his statements through the testimony of law enforcement officers, which would make the
introduction of the statements themselves “cumulative and superfluous.” He additionally
argued that the admission into evidence of the recorded and written statements would
violate his Fifth Amendment right against self-incrimination. He reasoned that, if this
evidence was published to the jury, he would effectively “be compelled to be a witness
against himself.”
During a pretrial hearing on October 21, 2019, the motion in limine filed by
H.D. was addressed. From the bench, the circuit court announced that it found H.D.’s
statements were given “willingly, knowingly, voluntarily, without coercion, without
duress, and with full knowledge of the consequences.” The court explained that, because
the statement was voluntary, the law enforcement officers would be permitted to testify
about H.D.’s statements. However, the court found that playing the audio/video recording
4
“is a violation of the constitutional right to remain silent.” Therefore, the State would be
permitted to use the recording only for impeachment purposes if H.D. chose to testify. In
its subsequent order, which was entered on October 28, 2019, the circuit court reiterated
that both of H.D.’s statements had been voluntarily given. However, the circuit court
granted H.D.’s motion in limine with respect to the audio/video recording, among
announcing other rulings. 4 The circuit court found that “publishing of the audio/video
statement of [the] Defendant to the jury was [sic] in violation of the Defendant’s 5th
amendment right to not be compelled to give testimony against himself.” It is the
enforcement of this ruling that the State seeks to prohibit.
II.
STANDARD FOR ISSUANCE OF WRIT
In this case, the State seeks to prohibit the circuit court from enforcing the
portion of its order of October 28, 2019, that prevents the State from publishing to the jury
an audio/video recording of a statement voluntarily given by H.D. With respect to the
extraordinary remedy of a writ of prohibition, we have explained that
“[p]rohibition lies only to restrain inferior courts from
proceeding in causes over which they have no jurisdiction, or,
in which, having jurisdiction, they are exceeding their
legitimate powers and may not be used as a substitute for [a
petition for appeal] or certiorari.” Syllabus Point 1, Crawford
v. Taylor, 138 W. Va. 207, 75 S.E.2d 370 (1953).
4
The circuit court’s order of October 28, 2019, contains multiple rulings.
We are asked to prohibit only the ruling granting “Defendant’s Fourth Motion in Limine.”
Accordingly, our decision in this case has no impact on the remainder of the circuit court’s
order.
5
Syl. pt. 1, State ex rel. Franklin v. Tatterson, 241 W. Va. 241, 821 S.E.2d 330 (2018). We
have set out the following test for determining whether to grant a writ of prohibition where,
as here, the circuit court’s ruling is challenged on the basis that the court has exceeded its
legitimate powers:
“In determining whether to entertain and issue the writ
of prohibition for cases not involving an absence of jurisdiction
but only where it is claimed that the lower tribunal exceeded
its legitimate powers, this Court will examine five factors: (1)
whether the party seeking the writ has no other adequate
means, such as direct appeal, to obtain the desired relief; (2)
whether the petitioner will be damaged or prejudiced in a way
that is not correctable on appeal; (3) whether the lower
tribunal’s order is clearly erroneous as a matter of law; (4)
whether the lower tribunal’s order is an oft repeated error or
manifests persistent disregard for either procedural or
substantive law; and (5) whether the lower tribunal’s order
raises new and important problems or issues of law of first
impression. These factors are general guidelines that serve as
a useful starting point for determining whether a discretionary
writ of prohibition should issue. Although all five factors need
not be satisfied, it is clear that the third factor, the existence of
clear error as a matter of law, should be given substantial
weight.” Syllabus Point 4, State ex rel. Hoover v. Berger, 199
W. Va. 12, 483 S.E.2d 12 (1996).
Syl. pt. 2, State ex rel. Franklin v. Tatterson, 241 W. Va. 241, 821 S.E.2d 330.
Furthermore, because we are reviewing an evidentiary ruling by the circuit court, we note
that “‘[a] trial court’s evidentiary rulings, as well as its application of the Rules of
Evidence, are subject to review under an abuse of discretion standard.’ Syl. Pt. 4, State v.
Rodoussakis, 204 W. Va. 58, 511 S.E.2d 469 (1998).” Syl. pt. 11, State v. Wasanyi, 241
W. Va. 220, 821 S.E.2d 1 (2018). This discretionary standard applies even when the
evidentiary ruling affects constitutional rights. See State v. Kaufman, 227 W. Va. 537,
6
548, 711 S.E.2d 607, 618 (2011) (“It is well settled that a trial court’s rulings on the
admissibility of evidence, ‘including those affecting constitutional rights, are reviewed
under an abuse of discretion standard.’” (quoting State v. Marple, 197 W. Va. 47, 51, 475
S.E.2d 47, 51 (1996))). Guided by these standards, we consider Ms. Wade’s petition.
III.
DISCUSSION
Succinctly stated, the issue presented in this proceeding in prohibition asks
whether a defendant’s Fifth Amendment privilege against self-incrimination is violated by
the admission into evidence and/or publication to the jury of an audio/video recording of a
defendant’s voluntary statement made to law enforcement officers.
Ms. Wade argues that the circuit court clearly erred as a matter of law by
concluding that the video recording of H.D.’s voluntary statement violated his Fifth
Amendment right against self-incrimination and, therefore, could not be played for the jury
during the State’s case-in-chief. Petitioner Wade contends that this Court’s decision in
State v. Harris, 169 W. Va. 150, 286 S.E.2d 251 (1982), provides the general test for the
admissibility of a tape recorded inculpatory statement, and under Harris, H.D.’s statement
should be admissible during the State’s case-in-chief. 5 Ms. Wade additionally asserts that
We note that, under Syllabus point 3 of State v. Harris, 169 W. Va. 150,
5
286 S.E.2d 251 (1982),
7
the State has no other means to obtain relief from the circuit court’s ruling insofar as “the
State has no right of appeal in a criminal case, except as may be conferred by the
Constitution or a statute.” Syl. pt. 1, in part, State v. Jones, 178 W. Va. 627, 363 S.E.2d
513 (1987). H.D. responds that the circuit court did not abuse its discretion in making this
evidentiary ruling, and, therefore, the requested writ of prohibition should be denied.
The Fifth Amendment to the Constitution of the United States provides, in
relevant part, that no person “shall be compelled in any criminal case to be a witness against
himself[.]” U.S. Const. amend. V. 6 This right is often referred to as the “privilege against
[t]he general rule is that tape recorded inculpatory
statements may be admitted into evidence and played to the
jury, if they meet the following criteria: (1) A showing that the
recording device was capable of taking testimony; (2) a
showing that the operator of the device was competent; (3) an
establishment of the authenticity and correctness of the
recording; (4) a showing that changes, additions, or deletions
have not been made; (5) a showing of the manner of the
preservation of the recording; (6) an identification of the
speakers; and (7) a showing that the testimony was voluntarily
made without any kind of inducement.
This holding pertains to establishing a proper foundation for admitting a recorded statement
and allowing it to be played to the jury. Thus, as H.D. points out in his brief, because the
only issue presently before this Court is whether the Fifth Amendment privilege against
self-incrimination is violated by admitting into evidence a defendant’s recorded voluntary
statement, Harris is not applicable to our resolution of this proceeding.
6
Similarly, under the West Virginia Constitution “[n]o person shall . . . in
any criminal case, be compelled to be a witness against himself[.]” W. Va. Const. art. III,
§ 5. However, the circuit court’s order did not rely on the West Virginia Constitution in
finding H.D.’s statement could not be presented to the jury in the State’s case-in-chief, and
H.D.’s “Fourth Motion In Limine,” which sought to exclude his statement on Fifth
8
self-incrimination.” See Quinn v. United States, 349 U.S. 155, 163, 75 S. Ct. 668, 673, 99
L Ed. 964 (1955) (observing that “in popular parlance and even in legal literature, the term
‘Fifth Amendment’ in the context of our time is commonly regarded as being synonymous
with the privilege against self-incrimination”). “The privilege against self-incrimination
‘is an exception to the general principle that the Government has the right to everyone’s
testimony.’” Salinas v. Texas, 570 U.S. 178, 183, 133 S. Ct. 2174, 2179, 186 L. Ed. 2d
376 (2013) (quoting Garner v. United States, 424 U.S. 648, 658 n.11, 96 S. Ct. 1178, 1184
n.11, 47 L. Ed. 2d 370 (1976)).
Despite the Fifth Amendment, incriminating statements are admissible if
certain conditions have been met. First, the statement must be voluntary. “The Fifth
Amendment privilege against self-incrimination has been interpreted to provide protection
only where incriminating evidence of a testimonial or communicative nature is sought from
a witness through the vehicle of state compulsion.” Syl. pt. 8, Marano v. Holland, 179
W. Va. 156, 366 S.E.2d 117 (1988) (emphasis added).
As the Supreme Court has phrased it: “[T]he privilege protects
an accused only from being compelled to testify against
himself, or otherwise provide the State with evidence of a
testimonial or communicative nature[.]” Schmerber v.
California, 384 U.S. 757, 761, 86 S. Ct. 1826, 1830, 16
L. Ed. 2d 908, 914 (1966). See also State v. Grubbs, 178
W. Va. 811, 364 S.E.2d 824 (1987); State v. Harman, 165
W. Va. 494, 270 S.E.2d 146 (1980).
Amendment grounds, likewise did not mention the West Virginia Constitution.
Accordingly, we address only the Fifth Amendment.
9
Id. at 167, 366 S.E.2d at 128. Additionally, if the statement is given in a custodial setting,
Miranda warnings must be provided. See Waldrop v. Thigpen, 857 F. Supp. 872, 893 (N.D.
Ala. 1994) (“A confession is not admissible unless it is both voluntarily given and, if made
by one in custody, preceded by the prophylactic warnings set out in Miranda v. Arizona,
384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).”), aff’d sub nom. Waldrop v. Jones,
77 F.3d 1308 (11th Cir. 1996).
In this case, the circuit court found that H.D.’s statement was voluntary; thus,
under the authorities discussed above, the statement should not be suppressed on Fifth
Amendment grounds. However, the circuit court concluded that playing the audio/video
recording for the jury would effectively require H.D. to testify, and, therefore, the statement
should be suppressed. This reasoning is misplaced. Video recordings have become a
common method of documenting statements made during investigations into criminal
activities. 7 Numerous courts have allowed videotaped statements to be admitted upon
7
In fact, and contrary to the position taken by H.D., our research has revealed
that many defendants have argued, unsuccessfully, that a statement that is not recorded
should be deemed inadmissible. See Hodges v. Bezio, No. 09-CV-3402 ENV, 2012 WL
607659, at *7 (E.D.N.Y. Feb. 24, 2012) (finding no constitutional violation from failure to
videotape interrogation, and observing that “that there is no federal constitutional right to
a videotaped interrogation”); United States v. Beard, No. CRIM. 05-50026, 2005 WL
3262545, at *4 (E.D. Mich. Nov. 30, 2005) (refusing the defendant’s request that the court
“find Defendant’s statement inadmissible because the statement was not electronically
recorded,” recognizing that “[t]here is no requirement in the Sixth Circuit that confessions
be recorded,” and further noting that “most jurisdictions do not hold that unrecorded
confessions are presumptively inadmissible”); State v. Lockhart, 4 A.3d 1176, 1184 &
1184 n.7 (Conn. 2010) (rejecting defendant’s claim that Connecticut Constitution requires
police to electronically record custodial interrogations, observing that “[t]he federal Courts
10
finding that the defendant’s Fifth Amendment rights had not been violated at the time the
statement was given. See Commonwealth v. Prater, 651 N.E.2d 833, 839 (Mass. 1995)
(concluding that trial court did not err in admitting videotaped confession, in part, because
the defendant had “knowingly and intelligently waived the constitutional rights protected
by Miranda”); State v. Goforth, 881 S.W.2d 256, 261 (Mo. Ct. App. 1994) (affirming trial
court’s denial of defendant’s motion to suppress a videotaped statement where “the trial
court found Appellant knowingly and intelligently waived his right against self-
incrimination . . . during interrogation”); People v. Robles, 691 N.Y.S.2d 697, 706 (Crim.
Ct. 1999) (finding admission of videotaped statement made while defendant was in police
custody did not violate defendant’s right against self-incrimination, even absent Miranda
warnings, because statements were not the product of interrogation); State v. Ash, 611
S.E.2d 855 (N.C. App. 2005) (upholding trial court’s denial of motion to suppress
videotape of interrogation where defendant failed to clearly and unequivocally assert his
right to remain silent during interrogation); State v. Davidson, 509 S.W.3d 156 (Tenn.
2016) (holding trial court did not err in denying motion to suppress video recording of
defendant’s statement to law enforcement officers where totality of the circumstances
demonstrated that defendant understood his right to remain silent, among others, and he
knowingly and voluntarily relinquished that right).
of Appeal that have considered a similar claim have uniformly rejected it,” and collecting
cases).
11
Courts look to the time a statement was given to determine whether a
defendant’s Fifth Amendment rights have been violated because “the ‘general rule’ [is]
that a witness must assert the privilege to subsequently benefit from it.” Salinas, 570 U.S.
at 186, 133 S. Ct. at 2181, 186 L. Ed. 2d 376. Applying this rule, the Salinas Court found
that a “[p]etitioner’s Fifth Amendment claim fails because he did not expressly invoke the
privilege against self-incrimination in response to the officer’s question.” Id. at 181, 133
S. Ct. at 2178, 186 L. Ed. 2d 376 (emphasis added). The Court explained that,
[i]t has long been settled that the privilege [against self-
incrimination] “generally is not self-executing” and that a
witness who desires its protection “‘must claim it.’”
Minnesota v. Murphy, 465 U.S. 420, 425, 427, 104 S. Ct. 1136,
79 L. Ed. 2d 409 (1984) (quoting United States v. Monia, 317
U.S. 424, 427, 63 S. Ct. 409, 87 L. Ed. 376 (1943)).
Id. See also Minnesota v. Murphy, 465 U.S. 420, 429, 104 S. Ct. 1136, 1143, 79 L. Ed. 2d
409 (1984) (commenting that “[i]f [a witness] asserts the privilege, he ‘may not be required
to answer a question if there is some rational basis for believing that it will incriminate
him, at least without at that time being assured that neither it nor its fruits may be used
against him’ in a subsequent criminal proceeding. . . . But if he chooses to answer, his
choice is considered to be voluntary since he was free to claim the privilege and would
suffer no penalty as the result of his decision to do so.” (second emphasis added) (quoting
Maness v. Meyers, 419 U.S. 449, 473, 95 S. Ct. 584, 598, 42 L. Ed. 2d 574 (1976) (White,
J., concurring in the result))); United States v. Medunjanin, 752 F.3d 576, 587 (2d Cir.
2014) (“[A] person who wishes to enjoy his constitutional protection against self-
incrimination must invoke the privilege–either generally or vis-à-vis a specific question–
12
at the time he is asked to respond or make a statement.” (emphasis added)); State v. Plouffe,
329 P.3d 1255, 1262 (Mont. 2014) (“Generally, [the] right to be free from compelled self-
incrimination must be affirmatively invoked by the person claiming the right at the time of
questioning; if a person fails to invoke the right then the right will be deemed waived.”
(emphasis added)).
Based upon the foregoing discussion, we now hold that a defendant’s Fifth
Amendment privilege against self-incrimination is not violated by the admission into
evidence and/or publication to the jury of an audio/video recording of the defendant’s
voluntary statement made to law enforcement officers.
In this case, H.D. was in a non-custodial setting when he made his
incriminating statement. Even though the setting was non-custodial, H.D. nevertheless was
advised of his rights, and he affirmatively waived them. The circuit court reviewed this
evidence and concluded that H.D.’s statement was, indeed, voluntary. H.D. has not
challenged this finding. Because H.D. waived his privilege against self-incrimination and
voluntarily provided the incriminating statement, of which an audio/video recording was
made, he may not now assert the privilege in his criminal proceeding to avoid the admission
into evidence and/or publication to the jury of that recording. The circuit court’s ruling to
the contrary is clearly erroneous as a matter of law. Furthermore, we agree that, because
the State has no right to appeal this issue, it has no other means to obtain relief from the
circuit court’s ruling. Therefore, we grant the requested writ of prohibition.
13
IV.
CONCLUSION
For the reasons explained in the body of this opinion, we grant the requested
writ and prohibit the Circuit Court of Marshall County from enforcing that portion of its
order, entered on October 28, 2019, that found the audio/video recording of H.D.’s
voluntary statement could not be admitted into evidence and/or published to the jury
because it violated H.D.’s privilege against self-incrimination.
Writ Granted.
14