Franklin D. Cleckley
Darrell V. McGraw, Jr.
Morgantown, West Virginia Attorney General
Attorney for the Appellant Dawn E. Warfield
Deputy Attorney General
Charleston, West Virginia Attorneys for the Appellee
JUSTICE DAVIS delivered the Opinion of the Court.
JUDGE FRED RISOVICH, II, sitting by temporary assignment.
JUSTICE MAYNARD dissents and reserves the right to file a dissenting opinion.
JUDGE FRED RISOVICH, II, concurs and reserves the right to file a concurring
JUSTICE SCOTT did not participate.
2. In order for a lay witness to give opinion testimony pursuant to Rule 701
of the West Virginia Rules of Evidence (1) the witness must have personal knowledge or
perception of the facts from which the opinion is to be derived; (2) there must be a rational
connection between the opinion and the facts upon which it is based; and (3) the opinion
must be helpful in understanding the testimony or determining a fact in issue.
3. When a prior conviction constitute(s) a status element of an offense, a
defendant may offer to stipulate to such prior conviction(s). If a defendant makes an offer
to stipulate to a prior conviction(s) that is a status element of an offense, the trial court must
permit such stipulation and preclude the state from presenting any evidence to the jury
regarding the stipulated prior conviction(s). When such a stipulation is made, the record
must reflect a colloquy between the trial court, the defendant, defense counsel and the state
indicating precisely the stipulation and illustrating that the stipulation was made voluntarilyand knowingly by the defendant. To the extent that State v. Hopkins, 192 W. Va. 483, 453
S.E.2d 317 (1994) and its progeny are in conflict with this procedure they are expressly
4. A defendant who has been charged with an offense that requires proof
of a prior conviction to establish a status element of the offense charged, and who seeks to
contest the existence of an alleged prior conviction, may request that the trial court bifurcate
the issue of the prior conviction from that of the underlying charge and hold separate jury
proceedings for both matters. The decision of whether to bifurcate these issues is within the
discretion of the trial court. In exercising this discretion, a trial court should hold a hearing
for the purpose of determining whether the defendant has a meritorious claim that challenges
the legitimacy of the prior conviction. If the trial court is satisfied that the defendant's
challenge has merit, then a bifurcated proceeding should be permitted. However, should the
trial court determine that the defendant's claim lacks any relevant and sufficient evidentiary
support, bifurcation should be denied and a unitary trial held.
5. At a hearing to determine the merits of a defendant's challenge of the
legitimacy of a prior conviction pursuant to Syllabus point 4 of State v. Nichols, ___ W. Va.
___, ___ S.E.2d ___ (No. 26009 December ___, 1999), the defendant has the burden of
presenting satisfactory evidence to show that the alleged prior conviction is invalid as against
him or her.
Bobby Lee Nichols, appellant and defendant below (hereinafter referred to as Mr. Nichols), was convicted by a jury for the crime of third offense DUI. Mr. Nichols was also convicted of driving on a suspended licence. The circuit court sentenced Mr. Nichols to one to three years confinement for the DUI conviction. The circuit court also sentenced Mr. Nichols to six months confinement for driving on a suspended license. The sentences ran concurrently. On appeal, Mr. Nichols argues two assignments of error. Mr. Nichols first contends that the trial court erred by permitting opinion testimony by lay witnesses. Next, Mr. Nichols asserts that the trial court erred by admitting into evidence Mr. Nichols prior DUI convictions.See footnote 1 1 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 Roane County.
Shortly after the accident, Deputy Sheriff L. Todd Cole and Trooper Rick Hull
responded to the accident scene. When the officers arrived, Mr. Nichols was not at the
accident site. Deputy Cole searched the car and found documents containing the name
Bobby Nichols.See footnote 2
While investigating the accident scene, the officers received a call from
a local wrecker company. Mr. Nichols had requested that his car be towed. The call from
Mr. Nichols was made from the home of Mr. Leonard Cottrell.
The officers proceeded to the home of Mr. Cottrell. Upon arriving, the officers were told that Mr. Nichols was taken to the home of Al Nichols. The officers then proceeded to the home of Al Nichols where they found Mr. Nichols. Deputy Cole testified that he detected a strong odor of alcohol on Mr. Nichols and that Mr. Nichols' eyes were red and glassy. Additionally, Deputy Cole observed an open wound on Mr. Nichols' head. A field sobriety test was administered to Mr. Nichols. He failed the test. The officers then placed Mr. Nichols under arrest.See footnote 3 3
A trial was subsequently held on June 2, 1998. Mr. Nichols presented evidence to show that he was not the driver of the car. Dennis Mullins, Jr. testified that he was driving the car at the time of the accident.See footnote 4 4 Mr. Mullins testified that Mr. Nichols was a passenger in the car when it wrecked. According to Mr. Mullins, after the accident Mr. Nichols became angry. So, Mr. Mullins left the scene of the accident. Mr. Nichols' testimony was consistent with the testimony of Mr. Mullins.
The State presented two witnesses, Ms. Ruth Pinson and Mr. Denzil Mace,
both of whom are neighbors of Mr. Summerville. Ms. Pinson and Mr. Mace testified that
they saw only Mr. Nichols at the accident scene. Both witnesses believed that Mr. Nichols
was the driver of the car. On June 3, 1998, the jury returned a guilty verdict for third offense
DUI. The jury also returned a guilty verdict against Mr. Nichols for driving while his license
was revoked. The circuit court sentenced Mr. Nichols on September 14, 1998, to one-to-
three years confinement for the DUI conviction, and six months confinement for driving on
a suspended license. It is from the circuit court's sentence that Mr. Nichols now appeals.
Q. Do you know who was driving the automobile that evening
that was involved in that accident?
A. I assumed it was him. There was no other--no other people around the vehicle than him.
Mr. Nichols argues that the opinion testimony by Ms. Pinson and Mr. Mace fails to comply with Rule 701 of the West Virginia Rules of Evidence. As a general rule, a lay witness must confine his or her testimony to a report of the facts. A lay witness may testify in the form of inferences or opinions only when from the nature of the subject matter no better or more specific evidence can be obtained. See United States v. Fowler, 932 F. 2d 306, 312 (4th Cir. 1991) (finding requirements for admission of lay opinion satisfied). We have previously explained that [n]ormally, opinion testimony by a lay witness is limited to opinions rationally based on the witness' perception which are helpful for a clear understanding of the witness' testimony or a determination of a fact in issue. Evans v. Mutual Min., 199 W. Va. 526, 530, 485 S.E.2d 695, 699 (1997).See footnote 5 5 Rule 701 states:
If the witness is not testifying as an expert, his or her testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.See footnote 6 6
We have previously explained the rule as having only a two part test; that is, whether the witness' testimony was (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue. Evans v. Mutual Mining, 199 W. Va. 526, 530, 485 S.E.2d 695, 699 (1997). See 29 Wright & Gold, Federal Practice and Procedure § 6254, at 126 (1997) (recognizing the traditional two part test). However, both parties have outlined a test for analyzing three distinct factors required under Rule 701: (1) personal perception, (2) rational connection, and (3) helpfulness. We do not disagree with this approach. In fact, a few federal courts have applied the requirements of Rule 701 with such a three-part test. See Swajian v. General Motors Corp., 916 F. 2d 31, 36 (1st Cir.1990) (For opinion testimony of a layman to be admissible three elements must be present. First, the witness must have personal knowledge of the facts from which the opinion is to be derived. Second, there must be a rational connection between the opinion and the facts upon which it is based. Third, the opinion must be helpful in understanding the testimony or determining a fact in issue); Lubbock Feed Lots, Inc. v. Iowa Beef Processors, 630 F. 2d 250, 263 (5th Cir.1980) (same). Because the three-part test is a workable explanation of Rule 701, we believe the test has a practical value for trial courts and therefore hold that in order for a lay witness to give opinion testimony pursuant to Rule 701 (1) the witness must have personal knowledge or perceptionSee footnote 7 7 of the facts from which the opinion is to be derived;See footnote 8 8 (2) there must be a rational connection between the opinion and the facts upon which it is based; and (3) the opinion must be helpful in understanding the testimony or determining a fact in issue. If these requirements are satisfied, a layman can under certain circumstances express an opinion even on matters appropriate for expert testimony. Lubbock Feed Lots, Inc. v. Iowa Beef Processors, 630 F. 2d 250, 263 (5th Cir.1980).See footnote 9 9 Having adopted the three-part test, we proceed to utilize that test to analyze the evidence in this case.
1. Personal Knowledge or Perception. The first prong of the test requires
that a witness have personal knowledge or perception of the facts from which the opinion is
to be derived. Evans v. Mutual Mining, 199 W. Va. 526, 530, 485 S.E.2d 695, 699 (1997)
(lay opinion testimony must be based on the witness' perception of events).See footnote 10
is firmly established in this state that the opinion of a witness who is not an expert may be
given in evidence if he has some peculiar knowledge concerning the subject of the
opinion[.]See footnote 11
Syl. pt. 2, State v. Haller, 178 W. Va. 642, 363 S.E.2d 719 (1987). Accord
State v. McWilliams, 177 W. Va. 369, 378, 352 S.E.2d 120, 129 (1986); Syl. pt. 2, Cochran
v. Appalachian Power Co., 162 W. Va. 86, 246 S.E.2d 624 (1978); Moore v. Shannondale,
152 W. Va. 549, 566, 165 S.E.2d 113, 124 (1968); Syl. Pt. 8, Toppins v. Oshel, 141 W. Va.
152, 89 S.E.2d 359 (1955); Syl. Pt. 4, State v. Fugate, 103 W. Va. 653, 138 S.E. 318 (1927).
In Washington v. Department of Transportation, 8 F.3d 296, 300 (5th Cir. 1993) it was
observed that under Rule 701 of the Federal Rules of Evidence, speculative opinion
testimony by lay witnesses--i.e., testimony not based upon the witness's perception--is
generally considered inadmissible. The modern trend favors the admission of [lay] opinion
testimony, provided that it is well founded on personal knowledge[.] Teen-Ed, Inc. v.
Kimball Int'l, Inc., 620 F. 2d 399, 403 (3d Cir. 1980). This may include the motivation or
intent of another person, if the witness has an adequate basis for his or her opinion, such as
personal knowledge or an opportunity to observe the surrounding circumstances. Hart v.
O'Brien, 127 F.3d 424, 438 (5th Cir. 1997).See footnote 12
Where a lay witness's testimony is based upon
perceptions, which are insufficient to allow the formation of an opinion but, instead, merely
expresses the witness' beliefs, then the opinion testimony should be excluded. United States
v. Cortez, 935 F. 2d 135, 139-40 (8th Cir.1991).
Mr. Nichols contends the witnesses did not satisfy the first prong of the test. He argues that the witnesses were not at the scene when the car crashed. Therefore, they did not see who was driving the vehicle. The State argues to the contrary. The State asserts that because the witnesses were at the accident scene immediately following the crash, they acquired personal knowledge of what took place immediately after the crash. We believe Mr. Nichols' interpretation of the first prong of the test is misguided. All that is required is that a witness have personal knowledge of an event in litigation. In the instant case, it is clear to us that the witnesses arrived at the scene of the accident immediately after the crash.
While present, the witnesses made certain observations. Those observations constitute
personal knowledge of certain matters pertaining to the accident in litigation. Thus, the first
prong of the test is met.
(2) Rational Connection. Under the second prong of the test, there must be
a rational connection between the opinion and the facts upon which the opinion is based.
Federal courts have acknowledged that federal Rule 701, like our rule 701, specifically
permits lay opinion testimony if those opinions are rationally based on the perception of the
witness[.] Carter v. DecisionOne Corp., 122 F.3d 997, 1005 (11th Cir. 1997). The Fifth
Circuit Court of Appeals has interpreted the rational connection requirement to mean that,
while a lay witness might express an opinion that requires personal knowledge, the opinion
must be one that a normal person would form from those perceptions. United States v.
Riddle, 103 F.3d 423, 428 (5th Cir. 1997). Accord United States v. Figueroa-Lopez, 125
F.3d 1241, 1244-46 (9th Cir. 1997); Wactor v. Spartan Transp. Corp., 27 F.3d 347, 351 (8th
Cir. 1994); United States v. Garcia, 994 F.2d 1499, 1506 (10th Cir. 1993); United States v.
Fowler, 932 F.2d 306, 312 (4th Cir. 1991); Swajian v. General Motors Corp., 916 F. 2d 31,
36 (1st Cir. 1990); Williams Enterprises v. Sherman R. Smoot Co., 938 F.2d 230, 233-34
(D.C.Cir. 1991); Lubbock Feed Lots, Inc. v. Iowa Beef Processors, 630 F.2d 250, 263 (5th
Cir. 1980).See footnote 13
The opinion or inference must be one that a rational person would draw based
on the observed facts. This requirement reflects the common law objection to opinion
testimony based on the superfluousness of the testimony. Michael D. Blanchard & Gabriel
J. Chin, Identifying the Enemy in the War on Drugs: A Critique of the Developing Rule
Permitting Visual Indentification [sic] of Indescript White Powder in Narcotics
Prosecutions, 47 Am. U. L. Rev. 557, 576 (1998). See Glen Weissenberger,
Weissenberger's Federal Evidence §701.3, at 339 (1995) (observing that lay opinion must
be one that a rational person would make from observed facts). Obviously, [w]hen a
witness has not identified the objective bases for his opinion, . . . there is no way for the
court to assess whether it is rationally based on the witness's perceptions[.] United States
v. Rea, 958 F. 2d 1206, 1216 (2d Cir. 1992).
Mr. Nichols contends that the second prong was not satisfied for two reasons.
First, an unknown time interval between the point of the accident and the arrival of the
witnesses occurred. Mr. Nichols asserts that during this unknown time interval, the witnesses
had no knowledge of who was present at the scene and who left before the witnesses actually
arrived. Second, Mr. Nichols contends that, because someone could have been present at the
scene and left before the witnesses arrived, the opinion given was no more than uninformed
speculation. The State argues that the second prong was satisfied because the facts
observed by the witnesses were rationally connected to the opinion rendered. We agree with
Mr. Nichols correctly argues that during the unknown time interval between
the accident and the arrival of Ms. Pinson and Mr. Mace, someone involved in the accident
could have fled the scene. Mr. Nichols presented evidence suggesting someone else was at
the scene who drove the car and who fled after the accident. However, the veracity of that
evidence was left for jury determination. Ms. Pinson and Mr. Mace testified to seeing only
Mr. Nichols at the accident scene. They observed him placing something in the trunk of the
car. Both witnesses testified to seeing the cracked windshield and to noticing a cut on Mr.
Nichols' head. Based upon this knowledge the witnesses could rationally conclude that Mr.
Nichols was the driver of the car at the time of the accident.
(3) Helpful In Understanding Testimony. Under the third prong of the test
the opinion must be helpful in understanding the testimony or determining a fact in issue.
In Lightfoot v. Union Carbide Corp., 110 F.3d 898, 911 (2d Cir. 1997), the court held
[e]ven when a lay opinion is rationally based upon objective facts, it may still be
inadmissible if it does not help the jury to understand the witness' testimony or to decide a
fact in issue. In other words, where the jury is capable of drawing their own conclusions,
the lay witness's testimony is unhelpful and thus should not be permitted. Blanchard &
Chin, Identifying the Enemy in the War on Drugs, 47 Am. U. L. Rev. at 611 n.235. The
helpfulness requirement is designed to provide assurance against the admission of opinions
which would merely tell the jury what result to reach. United States v. Rea, 958 F. 2d 1206,
1215 (2d Cir. 1992). Therefore, if attempts are made to introduce meaningless assertions
which amount to little more than choosing up sides, exclusion for lack of helpfulness is
called for by [Rule 701]. Fed. R. Evid. 701, Advisory Committee Note on 1972 Proposed
Rules. Similarly, we have long held that
When the opinion of a witness, not an expert, is offered in evidence, and he is no better qualified than the jurors to form an opinion with reference to the facts in evidence and the deductions to be properly drawn from such facts, his opinion evidence is not admissible.
Syl. pt. 4, Overton v. Fields, 145 W. Va. 797, 117 S.E.2d 598 (1960). It is generally acknowledged that [l]ay opinions are not helpful when the jury can readily draw the necessary inferences and conclusions without the aid of the opinion. Lynch v. City of Boston, 180 F. 3d 1, 17 (1st Cir. 1999). Accord United States v. Ness, 665 F. 2d 248, 249 (8th Cir. 1981); United States v. Baskes, 649 F. 2d 471, 478 (7th Cir. 1980); United States v. Southers, 583 F. 2d 1302, 1306 (5th Cir. 1978). Therefore, an opinion is 'helpful' to the trier of fact . . . if it aids or clarifies an issue that the jury would not otherwise be as competent to understand. Lauria v. National R.R. Passenger Corp., 145 F.3d 593, 600 (3d Cir. 1998). See also Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 169, 109 S.Ct. 439, 450 102 L.Ed.2d 445 (1988) (Rule 701 permits . . . a lay witness to testify in the form of opinions . . . when testimony in that form will be helpful to the trier of fact); Government of V.I. v. Knight, 989 F. 2d 619, 629 (3d Cir. 1993) (As long as the circumstances can be presented with greater clarity by stating an opinion, then that opinion is helpful to the trier of fact); United States v. Skeet, 665 F. 2d 983, 985 (9th Cir. 1982) (Opinions of non-experts may be admitted where the facts could not otherwise be adequately presented or described to the jury in such a way as to enable the jury to form an opinion or reach an intelligent conclusion).
Mr. Nichols asserts that the third prong was not satisfied because the jury could
readily draw the necessary inferences and conclusions without the aid of an opinion. The
State contends that the third prong was satisfied because [a] foundation was laid by the State
in its questioning of the witnesses to clearly show that the witnesses had sufficient perception
to form an opinion that would be helpful to the jury. We disagree with the State's position.
The helpfulness element of the Rule 701 test is not intended to permit lay witnesses to given opinions on every observation. See United States v. Hoffner, 777 F. 2d 1423, 1426 (10th Cir. 1985) (Although most courts opt for the broad admissibility of lay opinion, that does not mean that all such testimony ought to be indiscriminately admitted).
Such an approach would allow lay witnesses in all criminal cases to act as the thirteenth
juror. The helpfulness element seeks to clarify for the jury a factual issue. We discern no
inherent difficulty in the jury being able to decide whether the observations made by Ms.
Pinson and Mr. Mace, which were properly admitted into evidence, could reasonably lead
to the conclusion that Mr. Nichols was driving the car at the time of the accident.
The State argued that any error in allowing lay opinion testimony by Ms.
Pinson and Mr. Mace was harmless error. We disagree. Mr. Nichols' sole defense was that
another person was driving the car. That person fled the accident scene. The opinion
testimony of Ms. Pinson and Mr. Mace was directed to the defense. This Court indicated in
syllabus point 4 of State v. Blake, 197 W. Va. 700, 478 S.E.2d 550 (1996), in part, that
Although erroneous evidentiary rulings alone do not lead to automatic reversal, a reviewing court is obligated to reverse where the improper [in]clusion of evidence places the underlying fairness of the entire trial in doubt or where the [in]clusion affected the substantial rights of a criminal defendant.See footnote 14 14
We are concerned that the improper admission of opinion testimony in this case has placed the underlying fairness of the judgment in doubt.See footnote 15 15 The danger here is that the jury could [have] easily accord[ed] too much weight to the pronouncement of [the] lay witness[es.] United States v. Ness, 665 F. 2d 248, 250 (8th Cir. 1981). We must, therefore, conclude that [t]he admission of lay opinion testimony [in this case] was an abuse of discretion. Swajian v. General Motors Corp., 916 F. 2d 31, 36 (1st Cir. 1990).
Hopkins held that prior convictions were necessary elements under the
shoplifting statute. The Hopkins ruling was made without any analysis of how the prior
shoplifting convictions were to be used. Additionally, Hopkins failed to discuss the necessity
of their use or the prejudicial impact of their use. Hopkins merely cited to our decisions in
State v. Cozart, 177 W. Va. 400, 352 S.E.2d 152 (1986), and State v. Barker, 179 W. Va.
194, 366 S.E.2d 642 (1988), as support for its conclusory holdings.See footnote 17
The decision in Cozart involved a third offense DUI conviction. In footnote one of Cozart this Court summarily disposed of the defendant's argument that the trial court should not have permitted the State to introduce evidence of his prior DUI convictions. In a sweeping, nonanalytical fashion, this Court rejected the argument by stating that where a prior conviction is a necessary element of the current offense charged or is utilized to enhance the penalty after a jury finding that the defendant has committed such prior offense, it is admissible for jury purposes[.] Cozart, 177 W. Va. at 402 n.1, 352 S.E.2d at 153 n.1. Our decision in Barker also involved a third offense DUI conviction. An issue raised by the defendant in Barker involved admission of evidence of his prior DUI convictions. Again, this Court disposed of the issue by citing to Cozart which held that a prior conviction is admissible where it is necessary element of current offense charged or is utilized to enhance penalty. Barker, 179 W. Va. at 199 n.12, 366 S.E.2d at 647 n.12 .
To place matters in perspective, Hopkins created, without providing any analytical discussion as to the justification for its holding, the rule of law in this State that evidence of prior convictions must be presented to the jury during the trial of the underlying offense. Hopkins simply referred to Cozart and Barker.See footnote 18 18 Neither Cozart nor Barker establish any judicial reasoning or discussion supporting the assertions in both opinions that prior convictions must be submitted to the jury. In sum, the rule of law in this State that prior convictions must be submitted to the jury is a principle of law created without any analytical support. Hopkins, Cozart and Barker are summations without legal foundation.
Here, Mr. Nichols seeks to have this Court adopt the rule established by the United States Supreme Court in Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). The defendant in Old Chief was charged with possession of a weapon by a convicted felon. One element of the offense was that the defendant had been previously convicted of a felony. The government wanted to introduce a copy of the judgment of his prior conviction, which contained the name and nature of the offense committed. The defense objected on the ground of undue prejudice. The defendant offered to stipulate to the fact that he had been previously convicted of a felony. The trial court refused to permit the defendant to stipulate to the prior conviction. On appeal to the Ninth Circuit, that court affirmed the trial court's decision precluding the defendant from stipulating to a prior felony conviction. The United States Supreme Court granted certiorari as there was a split of authority on the issue among the federal circuit courts of appeal.See footnote 19 19
Justice Souter, writing for the majority in Old Chief, held that it was error for the trial court to deny the defendant the ability to stipulate to the prior conviction. Justice Souter stated
[i]n this case, as in any other in which the prior
conviction is for an offense likely to support conviction on some
improper ground, the only reasonable conclusion [is] that the
risk of unfair prejudice . . . substantially outweigh[ed] the
discounted probative value of the record of conviction, and it
was an abuse of discretion to admit the record when an
admission was available.
Old Chief, 519 U.S. at 191, 117 S.Ct. at 655, 136 L. Ed. 2d at ___. In reaching its result, the opinion in Old Chief made a distinction between stipulations to a status element of an offense, as opposed to a stipulation to other elements of an offense. Justice Souter wrote that proof of the defendant's status goes to an element entirely outside the natural sequence of what the defendant is charged with thinking and doing to commit the current offense. Old Chief, 519 U.S. at 191, 117 S.Ct. at 655, 136 L. Ed. 2d at ___. Old Chief reasoned that because a status element of an offense is independent of an offense's mental and physical requirements, it was not necessary that a jury be informed of a status element. However, a defendant's admission is, of course, good evidence. Old Chief, 519 U.S. at 186, 117 S.Ct. at 653, 136 L. Ed.2d at ___. We believe Old Chief provides the better approach for the use of prior convictions. Therefore, we conclude that our decision in Hopkins and its progeny was clearly wrong.
The decision in Old Chief is distinguishable from the instant case insofar as the defendant in Old Chief wanted the name and nature of his prior offense kept from the jury.
In Old Chief, the defendant was not seeking to keep from the jury the fact that he had a prior
conviction. However, in the instant proceeding, Nichols seeks to keep the jury from learning
of his prior convictions. In spite of this distinction, when a defendant offers to stipulate to
the prior convictions Old Chief has provided the basis for some state courts to preclude the
mention of a prior conviction that is a status element of the underlying offense.
For example, the Wisconsin Supreme Court addressed the issue of prior DUI
conviction evidence in State v. Alexander, 571 N.W.2d 662 (Wis. 1997). The defendant in
Alexander was convicted of third offense DUI. On appeal, the defendant assigned error to
the trial court's refusal to permit him to stipulate to his prior DUI convictions for the purpose
of preventing the jury from learning of the prior offenses. The Court in Alexander described
the legal nature of prior DUI convictions by stating that [t]he element that the defendant has
two or more prior convictions is a status element of the offense which places him or her in
a certain category of alleged offenders. Alexander, 571 N.W.2d at 669. Proof of a status
element goes to an element entirely outside the gravamen of the offense: operating a motor
vehicle with a prohibited alcohol concentration. Id. at 671. Alexander held [a]ny evidence
of the defendant's admission to his prior [DUI] convictions has little probative value as to
whether the defendant was operating a motor vehicle with a prohibited alcohol
concentration. Id. at 669.
Evidence of prior convictions may lead a jury to convict
a defendant for crimes other than the charged crime, convict
because a bad person deserves punishment rather than based on
the evidence presented, or convict thinking that an erroneous
conviction is not so serious because the defendant already has a
Id. at 668 (citations omitted). Such evidence had no place in the prosecution, other than to lead the jurors to think that because the defendant has two prior convictions, suspensions or revocations, he was probably driving while intoxicated on the date in question. Id. at 671. The Court in Alexander reasoned that
[w]here prior convictions is an element of the charged crime, the risk of a jury using a defendant's prior convictions as evidence of his or her propensity or bad character is great. And where the prior offense is similar or of the same nature or character as the charged crime, the risk of unfair prejudice is particularly great.
571 N.W.2d at 668 (citation omitted). Therefore,
[t]he evidence of the defendant's prior convictions, suspensions or revocations should be excluded and the status element not submitted to the jury because the probative value of the defendant's admission is substantially outweighed by the danger of unfair prejudice to the defendant.
Alexander, 571 N.W.2d at 669. In reaching this result, the decision recognized that a defendant's admission dispenses with the need for proof of the status element, either to a jury or to a judge. Id. at 668.
Alexander is not alone in using Old Chief as the basis for excluding evidence
of prior convictions that are status elements of an offense. In Brown v. State, 719 So. 2d 882
(Fla. 1998), the court held
consistent with Old Chief, when a criminal defendant offers to stipulate to [the prior DUI convictions], the Court must accept that stipulation, conditioned by an on-the-record colloquy with the defendant acknowledging the underlying prior  conviction(s) and acceding to the stipulation. The State should also be allowed to place into evidence, for record purposes only, the actual judgment(s) and sentence(s) of the previous conviction(s) used to substantiate the prior [conviction] element of charge.
Brown, 719 So. 2d at 884. In fact, our research has revealed that a majority of courts which have addressed the issue require trial courts to permit defendants to stipulate to prior convictions that are status elements of an offense.See footnote 20 20
We are persuaded by the state and federal authorities that have relied upon Old Chief to preclude introduction of prior conviction evidence that constitutes a status element of an offense, when a defendant offers to stipulate to such conviction. Therefore, we hold that when a prior conviction(s) constitutes a status element of an offense, a defendant may offer to stipulate to such prior conviction(s). If a defendant makes an offer to stipulate to a prior conviction(s) that is a status element of an offense, the trial court must permit such stipulation and preclude the state from presenting any evidence to the jury regarding the stipulated prior conviction(s).See footnote 21 21 When such a stipulation is made, the record must reflect a colloquy between the trial court, the defendant, defense counsel and the state indicating precisely the stipulation and illustrating that the stipulation was made voluntarily and knowingly by the defendant.See footnote 22 22 To the extent that State v. Hopkins, 192 W. Va. 483, 453 S.E.2d 317 (1994), and its progeny are in conflict with this procedure they are expressly overruled.
Our decision to overrule Hopkins and its progeny is made with an earnest
understanding of the doctrine of stare decisis.See footnote 23
This Court has recognized that [s]tare
decisis is the policy of the court to stand by precedent. Banker v. Banker, 196 W. Va. 535,
546 n.13, 474 S.E.2d 465, 476 n.13 (1996). However, as a practical matter, a
precedent-creating opinion that contains no extrinsic analysis of an important issue is more
vulnerable to being overruled[.] State v. Guthrie, 194 W. Va. 657, 679 n.28, 461 S.E.2d
163, 185 n.28 (1995). Hopkins fails to provide a logical analysis to support its determination
that it is mandatory that the State be allowed to submit evidence of prior convictions to the
jury. Remaining true to an 'intrinsically sounder' doctrine . . . better serves the values of
stare decisis . . . . In such a situation 'special justification' exists to depart from the recently
decided case. Adarand Constr., Inc. v. Pena, 515 U.S. 200, ___, 115 S. Ct. 2097, 2115, 132
L. Ed. 2d 158 (1995). We simply cannot find any persuasive reasoning to continue with the
precedent established in Hopkins.See footnote 24
2. Bifurcation. Mr. Nichols has also suggested that should this Court reject
his request to permit a stipulation to prior DUI offenses, then the Court should permit a
bifurcated trial. Although we have through this opinion required trial courts to permit such
a stipulation, the issue of bifurcation is still relevant and justiciable. That is, we must also
discuss in this opinion the situation that arises when a defendant does not offer to stipulate
to a prior conviction that is a status element of the charged offense; yet, the defendant does
not want his prior conviction(s) presented to the jury during the trial of the underlying
offense. It is necessary to address this issue because to do otherwise suggests that a
defendant is being forced to stipulate to a prior conviction status element or suffer having the
jury be informed of the prior conviction. Such a situation affects a defendant's federal and
state constitutional right against self-incrimination.
Bifurcation, from the underlying charge, of a prior conviction status element
has been addressed by other courts. The Supreme Court of Idaho has adopted a mandatory
bifurcation rule. See State v. Wiggins, 96 Idaho 766, 536 P.2d 1116 (1975). The Supreme
Court of Idaho imposed a bifurcation procedure because 'to place before a jury the charge
in an indictment, and to offer evidence on trial as part of the state's case that the defendant
has previously been convicted of one or more offenses is to run a great risk of creating a
prejudice in the minds of the jury that no instruction of the court can wholly erase.'
Wiggins, 96 Idaho at 768, 536 P.2d at 1118, quoting Edelstein v. Huneke, 140 Wash. 385,
249 P. 784 (1926). Also, the Supreme Court of Alaska has devised the following bifurcation
procedure, which it described in Ross v. State, 950 P.2d 587, 592 (Alaska 1998):
In a bifurcated trial, the jury would first decide whether the defendant was guilty of driving while intoxicated on the date specified in the indictment; if the jury found the defendant guilty, the same jury would then decide the issue of the defendant's prior convictions. This solution would preserve both parties' right to a jury determination of all issues, while at the same time avoiding the potential for unfair prejudice that would otherwise be posed by evidence of the defendant's prior convictions. Moreover, this solution works equally well regardless of whether the defendant is willing to stipulate to the prior convictions or wishes to contest them.
See also Dedic v. Commonwealth, 920 S.W.2d 878 (Ky. 1996) (bifurcation required); Barker v. State, 916 S.W.2d 775 (Ark. App. 1996) (recognizing bifurcation); State v. Cottrell, 868 S.W.2d 673 (Tenn. Cr. App. 1992) (permitting bifurcation). State v. Rodriguez, 575 So. 2d 1262 (Fla. 1991) (requiring bifurcation); People v. Weathington, 231 Cal. App. 3d 69, 282 Cal.Rptr. 170 (1991) (allowing bifurcation); State v. Baril, 155 Vt. 344, 583 A. 2d 621 (1990) (recognizing bifurcation); Ray v. State, 788 P.2d 1384 (Okl. Cr. 1990) (recognizing statutory right to bifurcate); People v. Smith, 182 Mich. App. 436, 453 N.W.2d 257 (bifurcation required); Smith v. State, 451 N.E.2d 57 (Ind. Ct. App. 1983) (requiring bifurcation). In fact, our research has uncovered only a minority of jurisdictions that prohibit bifurcation in the context of evidence of prior DUI offenses. See State v. Lugar, 734 So. 2d 14 (La. App. 1 Cir. 1999); State v. Superior Court, 176 Ariz. 614, 863 P. 2d 906 (1993).
However, we do not believe that it is necessary to impose a mandatory bifurcationSee footnote 25 25 procedure on trial courts whenever a defendant wishes to contest an alleged prior conviction that is a status element of the offence for which he or she is being tried.
Therefore, a defendant who has been charged with an offense that requires proof of a prior
conviction to establish a status element of the offense charged, and who seeks to contest the
existence of an alleged prior conviction, may request that the trial court bifurcate the issue
of the prior conviction from that of the underlying charge and hold separate jury proceedings
for both matters. The decision of whether to bifurcate these issues is within the discretion
of the trial court. In exercising this discretion, a trial court should hold a hearing for the
purpose of determining whether the defendant has a meritorious claim that challenges the
legitimacy of the prior conviction. If the trial court is satisfied that the defendant's challenge
has merit, then a bifurcated proceeding should be permitted. However, should the trial court
determine that the defendant's claim lacks any relevant and sufficient evidentiary support,
bifurcation should be denied and a unitary trial held. We further hold that at a hearing to
determine the merits of a defendant's challenge of the legitimacy of a prior conviction
pursuant to Syllabus point 4 of State v. Nichols, ___ W. Va. ___, ___ S.E.2d ___ (No. 26009
December ___, 1999, the defendant has the burden of presenting satisfactory evidence to
show that the alleged prior conviction is invalid as against him or her.See footnote 26
We believe the bifurcation procedure outlined in this opinion is fundamentally
fair to all parties. Trial courts will not be forced to hold meritless bifurcated trials.
Defendants with legitimate grounds for contesting a prior conviction status element will not
be forced to surrender their challenge through stipulation in order to keep the prior conviction
issue from the jury. Likewise, the State has an opportunity to prove that a challenge to a
prior conviction is without merit.
(d) Any person who:
(1) Drives a vehicle in this state while:
(A) He is under the influence of alcohol; or
(B) He is under the influence of any controlled substance; or
(C) He is under the influence of any other drug; or
(k) A person violating any provision of subsection . . . (d) . . . of this section shall, for the third or any subsequent offense under this section, be guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary for not less than one nor more than three years, and the court may, in its discretion, impose a fine of not less than three thousand dollars nor more than five thousand dollars.
convicted of offense that satisfies prior felony element without identifying particular felony
conviction); Ross v. State, 950 P.2d 587 (Alaska 1998) (approving of bifurcation in DUI
prior conviction cases) Sams v. State, 688 N.E.2d 1323 (Ind. Ct. App. 1997) (holding
defendant allowed to stipulate to prior DUI convictions). State v. Saul, 434 N.W.2d 572
(N.D. 1989) (finding that, where defendant stipulated to prior convictions, submission of
evidence of the prior convictions to the jury constituted prejudicial and reversible error);
State v. Cardin, 129 N.H. 137, 523 A.2d 105 (1987) (deciding that defendant's offer to
stipulate to prior conviction of driving under the influence precluded prosecution from
introducing prior conviction at trial); State v. Berkelman, 355 N.W.2d 394 (Minn. 1984) (trial
court erred in refusing to accept stipulation and let defendant remove from the jury the issue
of whether defendant had a prior DUI conviction). Courts that have held that a defendant
cannot stipulate to prior convictions for the purpose of keeping such evidence from the jury
include: State v. Mewbourn, 993 S.W.2d 771 (Tex. Ct. App. 1999); State v. Galati, 973 P.2d
1198 (Ariz. 1999); State v. Morvan, 725 So. 2d 515 (La. Ct. App. 1998); Norris v. State, 489
S.E.2d 875 (Ga. App. 1997); State v. Anderson, 458 S.E.2d 56 (S.C. Ct. App. 1995); Glover
v. Commonwealth, 3 Va. App. 152, 348 S.E.2d 434 (1986).