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State of WV v. Potter
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA September 1996 Term _________ No. 23406 _________ STATE OF WEST VIRGINIA, Plaintiff Below, Appellee V. LARRY POTTER, Defendant Below, Appellant _______________________________________________________________ APPEAL FROM THE CIRCUIT COURT OF MORGAN COUNTY HONORABLE DONALD C. HOTT, SPECIAL JUDGE NO. 94-F-1 AFFIRMED _______________________________________________________________ Submitted: September 25, 1996 Filed: October 11, 1996 Dawn E. Warfield Deputy Attorney General Charleston, West Virginia Attorney for Appellee Deborah Lawson Public Defender Martinsburg, West Virginia Attorney for Appellant JUSTICE CLECKLEY delivered the Opinion of the Court. SYLLABUS BY THE COURT 1. A defendant, in order to assert his or her right to counsel during a police interrogation, must make some affirmative indication that he or she desires to speak with an attorney or wishes to have counsel appointed. Absent such an affirmative showing by the defendant, the right to counsel is deemed waived. 2. When 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. 3. A communication will be privileged, in accordance with W. Va. Code, 57-3-9 (1992), if four tests are met: (1) the communication must be made to a clergyman; (2) the communication may be in the form of a confidential

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confession or a communication; (3) the confession or communication must be made to the clergyman in his professional capacity; and (4) the communication must have been made in the course of discipline enjoined by the rules of practice of the clergyman's denomination. 4. If evidence of religion is offered for purposes other than impairing or enhancing a witness's credibility, Rule 610 of the West Virginia Rules of Evidence does not require its exclusion. 5. For religious belief or affiliation evidence to be admissible, the trial court must make the following findings: (1) the evidence of religion is offered for a specific purpose other than to show generally that the witness's credibility is impaired or enhanced; (2) the evidence is relevant for that specific purpose; (3) the trial court makes an on-the-record determination under Rule 403 of the West Virginia Rules of Evidence that the probative value of the evidence was not substantially outweighed by its potential for unfair prejudice; and (4) the trial court, if requested, delivers an effective limiting instruction advising the jury of the specific purpose(s) for which the evidence may be used. If these elements are met, it may be presumed that the complaining party was protected from undue prejudice. Cleckley, Justice: The defendant below and appellant herein, Larry Potter, appeals a jury verdict entered June 1, 1995, by the Circuit Court of Morgan County, which found him guilty of three counts of first degree sexual assault and three counts of sexual abuse by a custodian. He also appeals a final order of the Circuit Court of Morgan County, dated August 14, 1995, sentencing him to three sentences of not less than fifteen years nor more than thirty-five years for three counts of first degree sexual assault and three sentences of not less than five years nor more than fifteen years for three counts of sexual abuse by a custodian. The circuit court ordered the three first degree sexual assault sentences to run consecutive to each other, and the three sexual abuse by a custodian sentences to run concurrent with the respective sexual assault sentences to which they relate. On appeal to this Court, the defendant asserts the circuit court erred by: (1) admitting into evidence the defendant's confession where the interrogating police officer continued his interrogation after the defendant allegedly invoked his right to counsel; (2) permitting the Reverend Martin Rudolph to testify in violation of W. Va. Code, 57-39 (1992), the clergy-communicant privilege; and (3) allowing the State to elicit, on cross- examination, evidence regarding the defendant's religious beliefs. Upon a review of the record, we find no reversible error and affirm the decision of the circuit court. I. FACTUAL AND PROCEDURAL HISTORY In 1991, seven-year-old Joshua H.,See footnote 1 1 his two sisters, and his parents began attending the Paw Paw Bible Church in Paw Paw, West Virginia, after Joshua's mother, Tammy H., had received counseling from the church's pastor, Larry Potter. Mr. Potter and his wife soon became friends with Joshua's family, and the two families often visited in each other's homes and had dinner together. Mr. Potter also befriended Joshua and one of his sisters, taking them places and inviting them to spend the night at the apartment Mr. Potter shared with his wife. After a period of time, Mr. Potter began inviting only Joshua to spend the night. These overnight visits progressed from one night per week to approximately two nights per week. During these visits, Joshua slept on a mattress on the Potters' basement floor. Joshua told his mother that Mr. Potter often slept on the mattress with him and engaged in anal intercourse with him on at least three or four occasions. Joshua also indicated he was afraid to report this abuse earlier because Mr. Potter allegedly told him he would regret revealing this information. Tammy H. reported the allegations of sexual abuse to the Morgan County Sheriff's Department in the fall of 1993. In October, 1993, Morgan County Chief Deputy John Ketterman began an investigation of Mr. Potter because the Sheriff's Department had received numerous reports alleging that Mr. Potter had sexually abused several young boys, including Joshua. After interviewing Joshua, Deputy Ketterman asked Mr. Potter to meet with him at the Morgan County Sheriff's Office; Deputy Ketterman desired to speak with Mr. Potter to inform him of the numerous allegations

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and the possible upcoming charges of sexual abuse. On October 27, 1993, Mr. Potter went to the Sheriff's Office to speak with Deputy Ketterman. It seems Deputy Ketterman informed Mr. Potter of the sexual abuse allegations, reiterated the severity of the charges, and suggested that he leave the police station without speaking further to Deputy Ketterman.See footnote 2 2 Apparently, Mr. Potter then indicated he wanted to speak to Ketterman because he "had some things that he wanted to get off of his chest." At that point, Deputy Ketterman left the interrogation room to obtain a tape recorder so he could record Mr. Potter's statement.See footnote 3 3 Upon returning to the interrogation room, Deputy Ketterman read Mr. Potter his Miranda rightsSee footnote 4 4 and obtained a signed waiver of these rights, including Mr. Potter's right to counsel. Deputy Ketterman then reiterated Mr. Potter's right to have an attorney present before proceeding with questioning and asked Mr. Potter whether he understood his rights.See footnote 5 5 Following this exchange, Mr. Potter admitted to sexually assaulting Joshua by way of three or four incidents of anal intercourse. After Mr. Potter completed his statement, Deputy Ketterman informed him that he could either wait while the secretary typed the statement and read and sign it that day, or he could return the next day to read and sign the statement. Mr. Potter remained at the Sheriff's Office while the statement was prepared. The next day, a warrant was obtained for Mr. Potter's arrest. Following his arrest, Mr. Potter was held in the Eastern Regional Jail in Martinsburg, West Virginia. On November 2, 1993, Mr. Potter received a visit from the Reverend Martin Rudolph, Minister of the Woodrow Union Church in Paw Paw, West Virginia. Reverend Rudolph comforted and consoled Mr. Potter, and the two men prayed together. It appears that Mr. Potter also discussed with Reverend Rudolph the sexual assault allegations and Mr. Potter's involvement in those episodes. It is unclear whether Mr. Potter believed this conversation to be private and confidential or whether he gave Reverend Rudolph permission to disclose this information in order to help others. Mr. Potter was subsequently released from the Eastern Regional Jail and placed on home detention. On January 11, 1994, a Morgan County grand jury returned an indictment chargingSee footnote 6 6 Mr. Potter with five counts of first degree sexual assault in violation of W. Va. Code, 61-8B-3 (1991),See footnote 7 7 and five counts of sexual abuse by a custodian, in violation of W. Va. Code, 61-8D-5 (1991).See footnote 8 8 Suppression hearings were held in this case with regard to the defendant's motion to suppress the statement he gave to Deputy Ketterman. Mr. Potter asserted that he invoked his right to counsel and that Deputy Ketterman continued his interrogation despite the defendant's request for an appointed attorney. By order dated May 5, 1995, the circuit court denied the defendant's motion to suppress and ruled, as it had during the April 7, 1995, suppression hearing, that the defendant did not invoke his right to counsel and that Deputy Ketterman did not improperly interrogate him in violation of his right to counsel. The defendant stood trial, by jury, for these charges in Morgan County on April 17, 1995. During the trial, the State introduced the defendant's statement that he gave to Deputy Ketterman in October of 1993. Counsel for the defendant raised an objection to this evidence, claiming the statement was impermissibly obtained after the defendant invoked his right to counselSee footnote 9 9 ; the trial court overruled this objection on the basis of its earlier ruling that such statement would be admissible. In addition, the defendant testified as to his religious background and prior profession as a pastor. Upon cross- examination, the State inquired as to the defendant's religious beliefs and whether he believed that his actions toward Joshua constituted a sin for which he had received forgiveness from God. Defense counsel objected to the State's inquiry arguing that evidence of the defendant's religious beliefs was irrelevant and inflammatory.See footnote 10 10 The trial court overruled the defendant's objection and permitted the State's line of questioning. Finally, the trial court permitted Reverend Rudolph to testify regarding his visit with the defendant in the Eastern Regional Jail. The defendant's attorney objected to this evidence asserting that it violated the clergy-communicant
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privilege.See footnote 11 11 On April 20, 1995, the jury returned a verdict finding the defendant guilty of three counts of first degree sexual assault, one count of first degree sexual abuse, and four counts of sexual abuse by a custodian.See footnote 12 12 During the sentencing hearing in this matter, the trial court set aside the defendant's convictions on Count Seven (first degree sexual abuse) and Count Eight (sexual abuse by a custodian) of the indictment finding the evidence at trial did not establish the defendant had committed more than three incidents of sexual assault and sexual abuse by a custodian with regard to Joshua. The trial court also denied the defendant's motion to reconsider evidence, ruling that the evidence did not warrant reconsideration, and the defendant's motion for an arrest of judgment and for a new trial. By order dated August 14, 1995, the trial court sentenced the defendant to three sentences of not less than fifteen years nor more than thirty-five years for three counts of first degree sexual assault and three sentences of not less than five years nor more than fifteen years for three counts of sexual abuse by a custodian. The trial court ordered the three first degree sexual assault sentences to run consecutive to each other, and the three sexual abuse by a custodian sentences to run concurrent with the respective sexual assault sentences to which they relate. Lastly, the trial court continued the defendant on home confinement pending his appeal to this Court. II. DISCUSSION On appeal to this Court, the defendant asserts the trial court erred by: (1) admitting into evidence the defendant's confession where the interrogating police officer continued his interrogation after the defendant allegedly invoked his right to counsel; (2) permitting Reverend Rudolph to testify in violation of W. Va. Code, 57-3-9 (1992), the clergycommunicant privilege; and (3) allowing the State to elicit, on cross-examination, evidence regarding the defendant's religious beliefs.See footnote 13 13 A. Voluntariness of Confession We first address the defendant's assertion that the trial court improperly admitted into evidence the statement he gave to Deputy Ketterman on October 27, 1993.See footnote 14 14 Specifically, the defendant contends that the admission into evidence of his confession violated his rights under Miranda v. Arizona, 384 U.S. 436, 444-45, 478-79, 86 S. Ct. 1602, 1612, 1630, 16 L.Ed.2d 694, 706-07, 726 (1966),See footnote 15 15 in that his right to counsel during the interrogation was not scrupulously honored. Following hearings on the defendant's motion to suppress this statement, the trial court, by order entered May 5, 1995, denied the defendant's motion and found: "[T]he statement given by the Defendant to Morgan County Chief Deputy Sheriff John Ketterman on October 27, 1993, (a recording of which statement was made by audiotape together with a transcription thereof, as are contained in the record) was made voluntarily and . . . the Defendant knowingly, intelligently, and freely waived both his right to have counsel present at the time of the statement and his rights under Miranda, including the right to remain silent and the right to have counsel appointed for him, and . . . the Defendant did thereupon willingly consent to talk to the officer and provide him with the aforesaid statement." During the trial, the trial court noted the defendant's continuing objection to the admission of this statement. As reflected above, the trial court entered written findings that the confession was in all respects voluntary and that the defendant was properly warned. The trial court found, inter alia, that the warnings as testified to were given to the defendant; that he never advised the officer that he wanted an attorney present; and that the defendant, after repeated warnings, knowingly, intelligently, and voluntarily waived his Miranda rights, including his right to counsel. 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
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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. See Miller v. Fenton, 474 U.S. 104, 110-14, 116- 18, 106 S. Ct. 445, 449-52, 453, 88 L.Ed.2d 405, 411-13, 415-16 (1985). Indeed, recognizing the importance of determining whether a defendant's confession is, in fact, voluntary and therefore admissible, we have explicitly delineated this Court's responsibility in this inquiry in Syllabus Point 2 of State v. Farley, 192 W. Va. 247, 452 S.E.2d 50 (1994): "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." In the proceedings below, the trial court determined the defendant did not invoke his right to counsel. Addressing the defendant's arguments, the trial court ruled: "Mr. Potter suggested he requested an attorney prior to answering questions. The only credible evidence that the Court could find here that could possibly be construed as such a request was his quote/unquote okay response at the beginning of the recorded statement. Such a response was ambiguous, at best. "Given the defendant's insistence that he make a statement, even in the face of a policeman's advice that he needed counseling, the Court has no problem with the officer's interpretation of such statement as not indicating a desire to have counsel before being questioned by Ketterman." Before this Court, the defendant maintains Deputy Ketterman improperly continued his interrogation after the defendant invoked his Sixth Amendment right to counsel.See footnote 16 16 In this regard, the defendant contends his response of "okay" to Deputy Ketterman's statement that an attorney would be provided for the defendant if he could not afford counselSee footnote 17 17 constituted an affirmative invocation of his right to counsel. Once the defendant made this clear and unambiguous request for counsel, he asserts the holding of Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L.Ed.2d 378 (1981), required Deputy Ketterman to cease the interrogation. In Edwards, 451 U.S. at 484, 101 S. Ct. at 1884-85, 68 L.Ed.2d at 386, the United States Supreme Court held: "[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police- initiated custodial interrogation even if he has been advised of his rights." (Footnote omitted). Thus, the defendant argues that even if he continued to respond to Deputy Ketterman's inquiry, Edwards indicates his further responses did not constitute a waiver of his right to counsel. The State argues the defendant failed to make a clear and unambiguous request for an attorney. In this manner, the State notes that Deputy Ketterman informed the defendant of his right to counsel; that the defendant signed a waiver of his right to counsel; and that Deputy Ketterman reiterated the defendant's right to counsel, asking the defendant if he understood his rights. Despite these warnings, the defendant never expressly told Deputy Ketterman that he wanted to speak with an attorney. Because it is unclear whether the defendant's "okay" response was merely an affirmation that he understood that counsel would be appointed for him or whether "okay" indicated the defendant's intention to invoke his right to counsel, the State urges the ambiguity be resolved in favor of the interrogating police officer. "[I]nsubstantial and trivial doubt, reasonably caused by the defendant's ambiguous statements as to whether he wants the interrogation to end, should be resolved in favor of the police and . . . under these circumstances further interrogation by the police does not offend the West Virginia Constitution." State v. Farley, 192 W. Va. at 256, 452 S.E.2d at 59, citing Davis v. United States, 512 U.S. 452, 114 S. Ct. 2350, 129 L.Ed.2d 362 (1994). Therefore, the State contends the trial court properly found the defendant did not invoke his right to counsel. The record fairly supports the underlying factual determinations of the trial court that the defendant did not invoke his right to counsel. Before the defendant confessed, he signed a waiver form wherein the Miranda warnings were stated at the top and were followed by a statement that the signer had read, understood, and voluntarily waived those

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rights. We find the trial court properly determined the defendant's response was insufficient to invoke his right to counsel. Although Deputy Ketterman made the right to counsel sufficiently clear to the defendant, the defendant did not, in any manner, affirmatively assert his right to an attorney. We hold that a defendant, in order to assert his or her right to counsel during a police interrogation, must make some affirmative indication that he or she desires to speak with an attorney or wishes to have counsel appointed. Absent such an affirmative showing by the defendant, the right to counsel will be deemed waived.See footnote 18 18 We likewise reject the defendant's claim that he was in custody at the time of the interrogation. The trial court found the defendant's confession to Deputy Ketterman was voluntary and was not the result of custodial interrogation. The trial court rejected the defendant's contentions that his statement was involuntary noting: "Mr. Potter had decided well in advance that he had to clear his conscience. . . . It is the opinion of this Court that the defendant's statement was actuated not by some improper activity on the part of the police, but rather by the defendant's own conscience." The defendant maintains his statement was inadmissible because it was the product of a custodial interrogation. He states that, when he arrived at the police station to meet with Deputy Ketterman, he believed the deputy had warrants for his arrest and he was not free to leave.See footnote 19 19 Therefore, although the defendant voluntarily went to the police station to meet with Deputy Ketterman, the deputy's actions turned the innocuous investigatory investigation into an accusatory custodial interrogation. In support of this argument, the defendant cites Syllabus Point 1 of State v. Jones, 193 W. Va. 378, 456 S.E.2d 459 (1995): "'Where police, lacking probable cause to arrest, ask suspects to accompany them to police headquarters and then interrogate them . . . during which time they are not free to leave or their liberty is restrained, the police have violated the Fourth Amendment.' Syllabus Point 1, in part, State v. Stanley, 168 W. Va. 294, 284 S.E.2d 367 (1981)." See also Syl. Pt. 2, in part, State v. Mays, 172 W. Va. 486, 307 S.E.2d 655 (1983) (holding limited investigatory inquiries to be permissible where the investigating police officer informs the subject that "he is not under arrest, is not obligated to answer questions and is free to go"). The State responds that the defendant's statement is admissible because the defendant was not in custody, and he freely and voluntarily spoke with Deputy Ketterman. Upon being warned by Deputy Ketterman of the severity of the charges against him and counseled not to speak further about these charges, the defendant stated he wanted to speak because he "wanted to get something off his chest." Prior to obtaining the defendant's confession, Deputy Ketterman read the defendant his Miranda rights, obtained a written waiver of those rights, and reiterated the rights immediately before beginning the interrogation. Thus, the State maintains the defendant was not in custody, and he voluntarily gave the statement at issue. We agree with the State.See footnote 20 20 Of course, if the defendant was not in custody at the time of the interrogation, he would not be able to take advantage of a violation of his Miranda rights. In State v. Bradshaw, 193 W. Va. 519, 530, 457 S.E.2d 456, 467, cert. denied, ___ U.S. ___, 116 S. Ct. 196, 133 L.Ed.2d 131 (1995), we stated: "[T]he Miranda right to counsel has no applicability outside the context of custodial interrogation. Therefore, until the defendant [has been] taken into custody, any effort on his part to invoke his Miranda rights [is], legally speaking, an empty gesture. We believe the 'window of opportunity' for the assertion of Miranda rights comes into existence only when that right is available." (Footnote omitted). Thus, Miranda rights must be given and honored "only where there has been such a restriction on a person's freedom as to render him 'in custody.'" Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 714, 50 L.Ed.2d 714, 719 (1977) (per curiam). Whether the defendant was "in custody" is determined by an objective test: viewing the totality of circumstances, would a reasonable person in the defendant's position have considered his freedom of action restricted to the degree associated with a formal arrest. See Thompson v. Keohane, 516 U.S. ___, ___ & n.13, 116 S. Ct. 457, 465-66 & n.13, 133 L.Ed.2d 383, 394-95 & n.13 (1995); California v. Beheler, 463 U.S. 1121, 1125, 103 S. Ct. 3517, 3520, 77 L.Ed.2d 1275, 1279 (1983) (per curiam); State v. Hopkins, 192 W. Va. 483, 453 S.E.2d 317 (1994). See also State v. Honaker,
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193 W. Va. 51, 60-61, 454 S.E.2d 96, 105-06 (1994) (applying "objective circumstances" test to determine whether the defendant was in custody); Syl. Pt. 3, in part, State v. Preece, 181 W. Va. 633, 383 S.E.2d 815 (1989) ("[t]he sole issue before a trial court in determining whether [an] investigation has escalated into an accusatory, custodial environment, requiring Miranda warnings, is whether a reasonable person in the suspect's position would have considered his or her freedom of action curtailed to a degree associated with a formal arrest"). That the questioning took place in a police station is relevant but not controlling. Mathiason, 429 U.S. at 495, 97 S. Ct. at 714, 50 L.Ed.2d at 719; State v. Honaker, 193 W. Va. at 61, 454 S.E.2d at 106. Moreover, the subjective undisclosed beliefs of the defendant and the questioning officer regarding custody are irrelevant. See Stansbury v. California, 511 U.S. 318, 323, 114 S. Ct. 1526, 1529, 128 L.Ed.2d 293, 298 (1994) (per curiam). Both Thompson, 516 U.S. at ___, 116 S. Ct. at 466-67, 133 L.Ed.2d at 395-96, and Farley, supra, require us to apply de novo this objective test to the facts found by the trial court. Reviewing the record in this case, we find the trial court correctly concluded the defendant's statement was voluntary. Consistent with our ruling in Syllabus Point 3 of State v. Preece, supra, we must consider "whether a reasonable person in the suspect's position would have considered his or her freedom of action curtailed to a degree associated with a formal arrest." We find that no reasonable person in the defendant's position would have considered his or her freedom to have been curtailed. The defendant, at the request of Deputy Ketterman, voluntarily went to the Sheriff's Office to speak with the deputy. After informing the defendant of the sexual assault and sexual abuse allegations, Deputy Ketterman specifically advised the defendant to leave, without speaking further, due to the severity of the allegations. The defendant then stated that he wished to give a statement and willingly remained at the police station until his confession had been transcribed. Accordingly, we hold, in a situation such as this, when 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. In this case, it is clear that the defendant tendered a voluntary confession. Despite Deputy Ketterman's warnings to leave and speak no further of the allegations, the defendant remained at the police station and stated that he desired to give a statement. True, the interview was designed to elicit incriminating responses if the defendant was guilty, but he was free to leave at all times prior to his confession. In fact, he was permitted to leave even after he gave the incriminating statement. The circumstances surrounding the defendant's statement suggest neither that he was in a custodial environment nor that his confession was not voluntary. In fact, he was treated with consideration due one who has volunteered to be interviewed, the kind of latitude that is clearly inconsistent with custodial interrogation. Given these circumstances, we have no hesitancy to conclude that the defendant was not in custody at the time of the interrogation. Thus, we find the trial court properly admitted the defendant's statement into evidence. B. Clergy-Communicant Privilege The defendant also assigns as error the trial court's admission of testimony allegedly violating the clergycommunicant privilege. During the suppression hearings in this matter, the Reverend Martin Rudolph testified that he visited the defendant, who was, at that time, confined in the Eastern Regional Jail. Reverend Rudolph related that he and the defendant spoke about the allegations that the defendant had sexually assaulted and/or abused male children who attended the defendant's church. While speaking of these charges, the defendant allegedly stated that "he knew what was happening was wrong, [but he] couldn't quit." The Reverend also reported that the defendant gave him permission to "use [their conversation in] any way that [the Reverend thought] it would be helpful" to others. With regard to his conversation with Reverend Rudolph, the defendant testified that he believed that "what I talked to [the Reverend] about would be between us." The defendant further admitted that he had never before sought spiritual guidance or forgiveness from Reverend Rudolph and that he, the defendant, did not "confess[] to [the Reverend], as a communicant confesses to a priest when [he] talked to [the Reverend] that day." Lastly, the defendant conceded that he could not remember whether he gave

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Reverend Rudolph permission to disclose their conversation to others, but that he may have granted such permission. The circuit court found: "[A]s a matter of fact, that Reverend Rudolph's professional capacity, with reference to his church, which does not have a course discipline required of it, that this was not a type of confessional and therefore that this conversation between these two people does not come within [sic] purview of 5739 [sic], and therefore is not prohibited by that statutory section."See footnote 21 21 On appeal, the defendant argues that his conversation with Reverend Rudolph is protected by the clergycommunicant privilege contained in W. Va. Code, 57-3-9 (1992). The defendant asserts that Reverend Rudolph is, in fact, a member of the clergy within the scope of this statute and that he spoke with the defendant in his professional capacity as a minister. Furthermore, the defendant believed the Reverend visited him for the sole purpose of providing comfort and strength during his confinement. Finally, the defendant, who holds this privilege, asserts that because he has not waived this privilege, the Reverend cannot reveal the contents of their conversation. The State replies that the trial court did not abuse its discretion by admitting into evidence Reverend Rudolph's testimony as to his conversation with the defendant because the defendant has not satisfied the statutory elements of the clergy-communicant privilege. Although the Reverend is a member of the clergy, the defendant has failed to show that he spoke with the Reverend in his role as a professional counselor. In fact, the defendant admitted that he did not attend the Reverend's church and that he had never before confided in him as a pastor. More importantly, the State contends that the defendant expressly waived this privilege by granting permission for the Reverend to use the information in "any way that [the Reverend thought] it would be helpful" to others. To the extent the trial court's admission of evidence was based upon an interpretation of a statute or West Virginia Rule of Evidence, our standard of review is plenary. State v. Omechiniski, ___ W. Va. ___, ___, 468 S.E.2d 173, 177 (1996); Gentry v. Mangum, 195 W. Va. 512, 466 S.E.2d 171 (1995). Our review of a trial court's ruling to admit or exclude evidence if premised on a permissible view of the law, however, is only for an abuse of discretion. Id. Although we do not agree entirely with the trial court's interpretation of the coverage of W. Va. Code, 57-3-9 (1992), in this instance, we do not find the trial court abused its discretion in ruling that the conversation between the defendant and Reverend Rudolph was admissible and not subject to the clergy- communicant privilege provided by the statute. The question of the sacredness of confessions made to a priest has frequently been a matter of judicial consideration. In general, the "confessional seal," now referred to as the priest-penitent or clergyman-communicant privilege, has been recognized in many jurisdictions, although the privilege has no firm foundation in common law. See 1 Franklin D. Cleckley, Handbook on Evidence for West Virginia Lawyers

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