Gregory L. Ayers
Darrell V. McGraw, Jr.
Deputy Public Defender Attorney General
Charleston, West Virginia Barbara H. Allen
Attorney for the Appellant Managing Deputy Attorney General
Charleston, West Virginia
Attorney for the Appellee
The Opinion of the Court was delivered PER CURIAM.
CHIEF JUSTICE MAYNARD dissents and reserves the right to file a dissenting opinion.
JUSTICE STARCHER concurs and reserves the right to file a concurring opinion.
1. Under the Due Process Clause of the West Virginia Constitution,
Article III, Section 10, and the presumption of innocence embodied therein, and Article III,
Section 5, relating to the right against self-incrimination, it is reversible error for the
prosecutor to cross-examine a defendant in regard to his pre-trial silence or to comment on
the same to the jury. Syllabus point 1, State v. Boyd, 160 W. Va. 234, 233 S.E.2d 710
2. Generally, a witness who testifies to certain matters cannot be
impeached by showing his or her failure on a prior occasion to disclose a material fact unless
the disclosure was omitted under circumstances rendering it incumbent or natural for the
witness to state it. Syllabus point 2, State v. Blake, 197 W. Va. 700, 478 S.E.2d 550 (1996).
3. 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.
Syllabus point 6, State v. Sugg, 193 W. Va. 388, 456 S.E.2d 469 (1995).
This appeal was filed by Gene Harold Walker, appellant/defendant (hereinafter referred to as Mr. Walker), from his conviction in the Circuit Court of Kanawha County of voluntary manslaughter with the use of a firearm. Mr. Walker was sentenced to prison for 15 years. Arguing to this Court that the circuit court committed error by denying his motion for a mistrial, Mr. Walker contends that a mistrial resulted from: (1) the prosecutor's cross examination of Mr. Walker on his post-Miranda silence, and (2) prosecutorial comments, during closing arguments, regarding Mr. Walker's post-Miranda silence. Based upon the parties' arguments on appeal, the record designated for appellate review, and the pertinent authorities, we reverse the decision of the Circuit Court of Kanawha County.
During his trial, Mr. Walker presented evidence that Mr. Belcher approached
him, cut him on the arm with a knife, and stated that he was going to gut [Walker] like a
hog. Mr. Walker admitted firing a shot into Mr. Belcher's shoulder after being cut with the
knife. Other patrons in the nightclub then attacked Mr. Walker, at which time a second shot
was fired from his gun. The second shot struck Mr. Belcher in the chest area fatally
wounding him. Mr. Walker testified that the second shot was fired accidentally after the
other patrons attacked him.
Mr. Walker was hospitalized following the shooting incident as a result of the
severe beating he received from the nightclub patrons. A Charleston Police detective,
Richard Westfall, visited Mr. Walker in the hospital. Detective Westfall first read Mr.
Walker his Miranda rights, and then asked him if he wished to make a statement about the
shooting. Mr. Walker indicated that he did not want to make a statement. Detective Westfall
immediately turned and proceeded to leave. As Detective Westfall was leaving, Mr. Walker
stated, I'm sorry I shot the old man. It was an accident.
On April 3, 1996, Mr. Walker was indicted by a grand jury on the charge of first degree murder for the death of Mr. Belcher. After a subsequent trial, Mr. Walker was convicted by a jury of voluntary manslaughter with the use of a firearm on February 18, 1998. He was sentenced to prison for fifteen years. Following the circuit court's denial of his post-trial motions, Mr. Walker filed this appeal.
1. Preservation of the cross-examination issue. Mr. Walker concedes that he did not make a contemporaneous objection to the prosecutor's cross examination of his post-Miranda silence. However, subsequent to the cross examination, Mr. Walker motioned the trial court for a mistrial resulting therefrom. The trial court denied the motion stating that the cross examination was proper because Mr. Walker did not unequivocally invoke his Miranda rights.
We believe that Mr. Walker properly preserved for appellate review the issue of the State's cross examination on his post-Miranda silence. In fact, one of the justifications behind the requirement of contemporaneous objections is to give the trial court an opportunity to rule on an objection, before it is brought to this Court on appeal. See Loar v. Massey, 164 W. Va. 155, 159-60, 261 S.E.2d 83, 86-87 (1979) ('[I]t has always been necessary for a party to object or except in some manner to the ruling of a trial court, in order to give said court an opportunity to rule on such objection before this Court will consider such matter on appeal.' (quoting Konchesky v. S.J. Groves & Sons Co., Inc., 148 W. Va. 411, 414, 135 S.E.2d 299, 302 (1964))). Obviously, Mr. Walker did not make a contemporaneous objection to the cross examination on his post-Miranda silence. However, Mr. Walker did present the matter to the trial court and obtained a definitive ruling by that court. Therefore, we find Mr. Walker's asserted error regarding the State's cross examination on the issue of his post-Miranda silence was properly preserved for review by this Court.
2. Preservation of the closing argument issue. Mr. Walker next concedes
that he made no objection to the State's comments about his post-Miranda silence during
closing arguments. However, Mr. Walker claims that because the trial court had previously
ruled that the State could cross examine him on his post-Miranda silence, no further
objection was necessary to preserve the matter for appellate review. In contrast, the State
argues that Mr. Walker was obligated to make such an objection so that the trial court would
have an opportunity to reconsider its earlier ruling.
Neither Mr. Walker nor the State cite to any case law, rendered by this Court
or any other jurisdiction, addressing this precise issue. But, our recent ruling in Lacy v. CSX
Transp. Inc., 205 W. Va. 630, 520 S.E.2d 418 (1999), provides some guidance. In Lacy, we
were asked to determine whether a party was required to make an objection to remarks made
during closing argument when the trial court had previously ruled by motion in limine that
such remarks were permissible. The issue was resolved in Syllabus point 3 of Lacy as
To preserve error with respect to closing arguments by an opponent, a party need not contemporaneously object where the party previously objected to the trial court's in limine ruling permitting such argument, and the argument pursued by the opponent reasonably falls within the scope afforded by the court's ruling.
See also Syl. pt. 1, Wimer v. Hinkle, 180 W. Va. 660, 379 S.E.2d 383 (1989) (An objection to an adverse ruling on a motion in limine to bar evidence at trial will preserve the point, even though no objection was made at the time the evidence was offered, unless there has been a significant change in the basis for admitting the evidence.); Syl. pt. 2, State v. Garrett, 195 W. Va. 630, 466 S.E.2d 481 (1995) (same); Syl. pt. 6, Bennett v. 3 C Coal Co., 180 W. Va. 665, 379 S.E.2d 388 (1989) (same).
Consistent with Lacy, to preserve error with respect to objections to closing
argument by the State, a defendant need not contemporaneously object when the defendant
has previously made an objection concerning the substance of the argument and obtained a
ruling on the objection by the trial court.See footnote 1
Therefore, we conclude that the question of
whether the State's closing argument improperly addressed Mr. Walker's post-Miranda
silence was preserved for appeal. Having concluded that both of the errors raised by Mr.
Walker were, in fact, properly preserved for appeal, we proceed to a discussion of the
1. The cross examination of Mr. Walker on his post-Miranda silence. The
evidence is clear that the State cross examined Mr. Walker regarding his post-Miranda
silence during Detective Westfall's attempted questioning.See footnote 3
At trial, the following exchange
between the State and Mr. Walker occurred:
Q. Then, of course, you were at the hospital and Detective Westfall, who was investigating the shooting, came to see you, didn't he?
A. Yes, him and Tommy Ransom.
Q. And you didn't tell him a day afterwards that Mr.
Belcher had pulled a knife on you, did you?
A. It was two days. No, I couldn't talk to him.
. . . .
Q. You recall Detective Westfall testifying that you told
him that this was all an accident, don't you?
Q. You didn't tell him that Harold Belcher threatened to
gut you like a hog, did you?
Q. You didn't show Detective Westfall the cut, did you?
A. No, I didn't. I meant to do that for a reason.
The State argues that the foregoing cross examination of Mr. Walker was
proper as it involved prior inconsistent statements.See footnote 4
This Court has ruled that the State may
impeach a defendant on pre-trial statements inconsistent with his trial testimony. Boyd, 160
W. Va. at 241, 233 S.E.2d at 716. [I]t is not an unfair use of silence to cross-examine a
criminal defendant concerning prior inconsistent statements made after receiving Miranda
warnings. Syl. pt. 6, in part, Acord v. Hedrick, 176 W. Va. 154, 342 S.E.2d 120 (1986).
Mr. Walker argues that his statements to Detective Westfall were not inconsistent with his trial testimony. Therefore, it was improper for the state to question him about his post-Miranda silence. The statements made by Mr. Walker to Detective Westfall were: I'm sorry I shot the old man. It was an accident. The state argues that these statements are inconsistent with Mr. Walker's testimony at trial that he shot Mr. Belcher initially in self-defense. In Syllabus point 2 of State v. Blake, 197 W. Va. 700, 478 S.E.2d 550 (1996), we observed that [g]enerally, a witness who testifies to certain matters cannot be impeached by showing his or her failure on a prior occasion to disclose a material fact unless the disclosure was omitted under circumstances rendering it incumbent or natural for the witness to state it.
Mr. Walker testified at trial that the initial shooting occurred after Mr. Belcher cut him and verbally threatened him. It was further contended by Mr. Walker at trial that the second shot occurred accidentally when he was attacked by other patrons at the nightclub. Such testimony is not inconsistent with the unsolicited statements made by Mr. Walker. It was not incumbent or natural for Mr. Walker to inform Detective Westfall of matters surrounding the shooting as Mr. Walker had invoked his Miranda rights. The unsolicited statements made by Mr. Walker as Detective Westfall left the room did not nullify his initial assertion of his Miranda rights. Therefore, it was reversible error for the state to cross examine Mr. Walker on his post-Miranda silence.
2. Closing argument by the state regarding Mr. Walker's post-Miranda
silence. The last argument made by Mr. Walker is that the state made improper remarks
about his post-Miranda silence during closing arguments. In Syllabus point 6 of State v.
Sugg, 193 W. Va. 388, 456 S.E.2d 469 (1995), we outlined the factors that are to be
considered in analyzing improper remarks by a prosecutor:
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.See footnote 5 5
During the States closing argument, counsel made repeated remarks concerning Mr. Walker's post-Miranda silence. For example, the State made the following argument:
He never said anything to the police officers that he was cut by Harold Belcher. He never said anything to the police officers that Harold Belcher had a knife to his groin. He never said anything to the police officers that Harold Belcher threatened to gut him like a hog. He never said that stuff because it didn't happen.
. . . Why wouldn't he tell--why wouldn't he tell the police officers that Harold Belcher did these things? It doesn't make sense. If it happened, he would have told them. He would have said that to the police officers.
In view of the Sugg factors, we have little difficulty in finding reversible error in the State's closing argument remarks concerning Mr. Walker's post-Miranda silence. Not only was the State's attack on Mr. Walker's post-Miranda silence improper, the attack was highly prejudicial. Mr. Walker's defense was self-defense. The state told the jury, in essence, that the shooting was not in self-defense. Had it been self-defense, according to the State, Mr. Walker would have so advised the police. To permit the State to do what occurred in this case, would effectively make Miranda warnings meaningless.
Footnote: 1 1Our decision is supported by West Virginia Trial Court Rule 23.04(b), which discourages objections by counsel during closing arguments: Counsel shall not be interrupted in argument by opposing counsel, except as may be necessary to bring to the court's attention objection to any statement to the jury made by opposing counsel and to obtain a ruling on such objection.
Footnote: 2 2We point out that the protections afforded a defendant for post-Miranda silence are generally not available for pre-arrest silence. This Court noted approvingly in Oxier, 175 W.Va. at 761 n.1, 338 S.E.2d at 361 n.1, language from the decision in Jenkins v. Anderson, 447 U.S. 231, 240, 100 S. Ct. 2124, 2130, 65 L. Ed. 2d 86, 96 (1980), that impeachment by use of prearrest silence does not violate the Fourteenth Amendment.
Footnote: 3 3Mr. Walker was arrested by officer Errol Randle of the Charleston Police. Mr. Walker made statements of denial to Officer Randle during the arrest. The State's brief makes a lengthy argument concerning Officer Randle's trial testimony. However, Mr. Walker does not assign any error to matters pertaining to Officer Randle.
Footnote: 4 4The State also argues that Detective Westfall properly questioned Mr. Walker because Mr. Walker did not invoke his Miranda rights. We find no merit to this argument. It is clear from the record that Detective Westfall terminated all questioning of Mr. Walker once Mr. Walker indicated he did not wish to be questioned. The statements made to Detective Westfall by Mr. Walker occurred as Detective Westfall was leaving the room. Detective Westfall did not say anything to Mr. Walker after he made the unsolicited statements.
Footnote: 5 5We recently applied this test in State v. Stephens, ___ W. Va. ___, ___ S.E.2d ___ (No. 25893 Dec. 3, 1999). The State's brief incorrectly refers to these factors as the Stephens test. This test was developed by Justice Cleckley in Sugg and should therefore be referred to as the Sugg test.