This Court has consistently held that the burden is on the State to establish that the Appellant made an explicit oral or written waiver of his Miranda rights. See State v. Boxley, 201 W. Va. 292, 496 S.E.2d 242 (1997), cert. denied, Boxley v. West Virginia, 525 U.S. 863, 119 S.Ct. 151, 142 L.Ed.2d 123 (1998); State v. Rissler, 165 W. Va. 640, 270 S.E.2d 778 (1980); State v. McNeal, 162 W. Va. 550, 251 S.E.2d 484 (1978). Syllabus point two of Rissler explained: "In the trial of a criminal case, the State must prove, at least by a preponderance of the evidence, that a person under custodial interrogation has waived the right to remain silent and the right to have counsel present."
"'Ordinarily the delay in taking an accused who is under arrest to a magistrate after a confession has been obtained from him does not vitiate the confession under our prompt presentment rule.' Syl. pt. 4, State v. Humphrey, 177 W.Va. 264, 351 S.E.2d 613 (1986)." Syl. Pt. 2, State v. Boxley, 201 W.Va. 292, 496 S.E.2d 242 (1997). We believe the circuit court properly concluded that, without further information, it is unclear whether the delay was justifiable due to logistics, transport, or other issues.
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.Accord syl., State v. Finley, 229 W.Va. 690, 735 S.E.2d 565 (2012); syl. pt. 1, State v. Boxley, 201 W.Va. 292, 496 S.E.2d 242 (1997), cert. denied,525 U.S. 863, 119 S.Ct. 151, 142 L.Ed.2d 123 (1998). See State v. Lilly, 194 W.Va. 595, 600, 461 S.E.2d 101, 106 (1995) (In reviewing the denial of a motion to suppress, this Court considers “the evidence in the light most favorable to the prosecution.”)
It is intent without malice, not heat of passion, which is the distinguishing feature of voluntary manslaughter." State v. Boxley, 201 W.Va. 292, 300, 496 S.E.2d 242, 250 (1997), cert. denied, 525 U.S. 863, 119 S.Ct. 151, 142 L.Ed.2d 123 (1998). The defendant does not claim he was suddenly provoked by something Randy Nestor said or did; he claims he did not kill him, Brian White did.
In recent years, this Court has clarified the standard of review applicable to a trial court's decision regarding the voluntariness of a confession. In Syllabus Point 1 of State v. Boxley, 201 W. Va. 292, 496 S.E.2d 242 (1997), we explained that: "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.