September 2000 Term
KARLA ALEXANDER, an infant child by her next friend,
HENRIETTA RAMSEY, her mother,
Plaintiff Below, Appellant
SHIRLEY WILLARD, SYLVESTER WILLARD,
FREDERICK WILLARD, JOHN TYSON and
STATE FARM MUTUAL AUTOMOBILE INSURANCE,
Defendants Below, Appellees
Appeal from the Circuit Court of McDowell County
Honorable W. Kendrick King, Judge
Civil Action No. 98-C-41-K
REVERSED AND REMANDED
Carter Elkins, Esquire
Campbell, Woods, Bagley & Emerson
Huntington, West Virginia
Attorney for Tyson and State Farm
The Opinion of the Court was delivered PER CURIAM.
1. The plain language
of Rule 614(b) of the West Virginia Rules of Evidence authorizes trial courts
to question witnesses--provided that such questioning is done in an impartial
manner so as to not prejudice the parties. Syl. Pt. 3, State v. Farmer,
200 W. Va. 507, 490 S.E.2d 326 (1997).
2. The judge of the
court when engaged in the trial of a case before a jury should studiously abstain
from indicating by word, gesture or otherwise his personal views upon the weight
of the evidence, or the credibility or incredibility of the witnesses, or the
extent of the damages sued for, thereby to invade the province of the jurors,
the proper triers of the facts. Syl. Pt. 1, Dye v. Rathbone, 102
W. Va. 386, 135 S.E. 274 (1926).
3. An unpreserved error
is deemed plain and affects substantial rights only if the reviewing court finds
the lower court skewed the fundamental fairness or basic integrity of the proceedings
in some major respect. In clear terms, the plain error rule should be exercised
only to avoid a miscarriage of justice. The discretionary authority of this
Court invoked by lesser errors should be exercised sparingly and should be reserved
for the correction of those few errors that seriously affect the fairness, integrity,
or public reputation of the judicial proceedings. Syl. Pt. 7, State
v. LaRock, 196 W. Va. 294, 470 S.E.2d 613 (1996).
4. To trigger application
of the 'plain error' doctrine, there must be (1) an error; (2) that is plain;
(3) that affects substantial rights; and (4) seriously affects the fairness,
integrity, or public reputation of the judicial proceedings. Syl. Pt.
7, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).
5. Under Rule 406 of
the West Virginia Rules of Evidence, evidence of a person's habit must be shown
to be a regularly repeated response to similar factual situations. The trustworthiness
of habit evidence lies in its regularity, such that the act or response is shown
to be almost semiautomatic. Syl. Pt. 14, Rodgers v. Rodgers, 184
W. Va. 82, 399 S.E.2d 664 (1990).
This is an appeal by Karla
Alexander (hereinafter Appellant), an infant child, by her next
friend and mother, Henrietta Ramsey, from a defense verdict in the Circuit Court
of McDowell County in favor of the Appellees, Shirley Willard, Sylvester Willard,
and State Farm Mutual Automobile Insurance (hereinafter Appellees).
We reverse and remand for a new trial.
The investigating officer,
Deputy Lyle Noe, measured thirty-six feet of skid marks at the accident scene.
The only witnesses to the accident were Mrs. Willard, the Appellant, and Mr.
Michael Whistlehunt. Mr. Whistlehunt was subpoenaed but did not appear at trial,
and both parties' attempts to depose him were unsuccessful. A jury trial was
conducted in the lower court on July 12, 1999, and July 13, 1999. The jury returned
a verdict for Mrs. Willard, finding that she had not been negligent in the operation
of the vehicle.
THE COURT: Well, let's try to be a little more specific. When we talk about this bike riding and so forth, are we talking about the time frame of what would amount to the summer of 1997, immediately prior to the accident and two or three months before that? Is that correct, Mrs. Stephens?
Appellant's counsel, Mrs. Stephens, replied, Yes, Your Honor. The court continued: So, Ms. Alexander, we're talking about the summer of 1997 before your August 30th bike accident occurred, so that's the time frame we're using.
The Appellant's counsel then
conducted the examination regarding the location of the accident scene in relation
to the Kwik Serv store and Jimmy's Supermarket. Apparently suspecting confusion
regarding the physical layout of the area, the court intervened and asked the
jury to retire to the jury room. The court, the Appellant, and Appellant's counsel
thereafter engaged in a discussion regarding the location of Route 7, the Kwik
Serv, and the grocery store. The Appellant's counsel offered to stipulate to
the location of the Kwik Serv, and the court replied: I don't think there's
any question whatsoever. The Kwik Serv has been in the same spot for years.
That's not a mystery. The Appellant's counsel then explained that she
had inadvertently phrased a question in a manner the Appellant failed to understand.
The Appellant's counsel requested
permission to speak with her client regarding the confusion over the physical layout of the area surrounding the
accident location. The court replied, Well, let's just - - I'm going to
bring the jury out and we're going to go ahead. We're in the second day of this
trial. Upon the return of the jury, the Appellant's counsel attempted
to conduct examination of her client. The Appellant's counsel referred the Appellant
to two photographs of the area, Exhibit 3 depicting Schoolhouse Road and Exhibit
1 depicting a portion of the street right outside of Old Schoolhouse Road.
The court interrupted:
THE COURT: Again, Ms. Stephens, let's use one at a time. She has Defendants' Exhibit No. 1 in her hand. Let's use that, refer to it, whatever, and go from there.
MS. STEPHENS: Your Honor, I'd like for her to describe using the exhibits how the accident happened.
THE COURT: Well, are you wanting her to describe how the accident occurred and also point out certain things on the photograph - -
MS. STEPHENS: Yes, Your Honor.
THE COURT: - - with regard to identifying locations as to where it happened?
MS. STEPHENS: Yes, Your Honor.
THE COURT: Certainly - - is there objection to that, Counsel?
MS. BANDI: No, Your Honor.
As the Appellant thereafter began to explain her route through her own yard, the court interrupted again:
THE COURT: Just one second.
Okay, Ms. Alexander - - Ms. Stephens - -
MS. STEPHENS: Did - -
THE COURT: Mrs. Stephens, pay a little bit of attention to the Court, please. Let's put that exhibit back in hand. Put the other exhibit down. Hold that exhibit, that's Defendants' Exhibit No. 1, up, please, for us. (emphasis added).
Now, Ms. Alexander, you were describing the accident. Okay, let's start again. Show us your home where you lived back then.
THE COURT: Okay, the Old Schoolhouse Road?
THE COURT: That's the dirt road. Right?
THE WITNESS: Yes.
THE COURT: Now, that's the road you just described to us you came down on your bicycle that day. Is that right?
THE WITNESS: Yes.
THE COURT: Now, show us where the public road is, the main highway, County Route 7, if it's on that photograph?
THE COURT: So that's the paved portion at the bottom. Is that correct?
THE WITNESS: Yes.
THE COURT: Now, show us the direction back then you would be going if you were going in what we have referred to as the Kwik Serv at Roderfield?
THE COURT: That would be going to your right facing the photograph. Right?
THE WITNESS: Yes.
THE COURT: What would be going back the other way to the left if you go down the road?
THE WITNESS: Big Sandy.
THE COURT: All right. Fall River Elementary School?
THE WITNESS: Yes.
THE COURT: Now, you described you came down to the foot of the Old Schoolhouse Road at that time. Is that right?
THE WITNESS: Yes.
THE COURT: About what time of day was it?
THE WITNESS: Around 11:30 - 12:00.
THE COURT: Noon?
THE WITNESS: Morning.
THE COURT: Near noon?
THE WITNESS: Yes.
THE COURT: Were you alone on the bicycle?
THE WITNESS: Yes.
THE COURT: Was anyone with you at all?
THE WITNESS: No, sir.
THE COURT: Where were you going?
THE WITNESS: To the Kwik Serv.
THE COURT: Now, you indicated you saw Mrs. Willard's truck on the main road. Is that correct?
THE WITNESS: Yes.
THE COURT: As best you can point out on that photograph, Defendants' Exhibit No. 1, show us where you were when you saw the truck and the approximate area where you were and the approximate - -
MS. STEPHENS: (Picks up an exhibit)
THE COURT: No. Mrs. Stephens - -
MS. STEPHENS: I'm sorry. I thought you said No. 1.
THE COURT: I thought that's what she had in her hand.
MS. STEPHENS: No, that's - - it's No. 3.
THE COURT: Okay, we're back to Defendants' Exhibit 3. I'm lost now.
MS. STEPHENS: This is - -
THE COURT: Anyway, let's not be switching photographs.
MS. STEPHENS: I'm sorry. I thought you wanted - - you said No. 1.
THE COURT: Unless we want to be held in contempt of court. (emphasis added).
MS. STEPHENS: No, Your Honor.
The lower court thereafter continued questioning the Appellant regarding the
accident scene before permitting the Appellant's counsel to proceed with her
own examination of the Appellant.
The Appellant asserts that the
lower court assumed an inappropriately dominate role in the direct examination
of the Appellant, interrupting the presentation of the Appellant's evidence and
prejudicing the Appellant's case. The Appellant further contends that the court's
questioning interfered with her attorney's presentation of evidence and prevented
her attorney from pursuing her theory of the case. The Appellant also contends
that the unjustified threat of contempt made in the presence of the jury unreasonably
compromised the neutrality of the jurors by generating a bias against the position
espoused by the Appellant and casting suspicion upon the credibility of counsel
for the Appellant. It is important to note that during his entire period of questioning,
the trial judge was seated in the jury box.
The Appellees maintain that
the questioning was proper under Rule 614 of the West Virginia Rules of EvidenceSee
footnote 2 2 and that the threat of contempt against the Appellant's counsel was not inappropriate or prejudicial. The Appellees also contend that
the Appellant waived her right to appeal these issues by failing to object to
the judge's actions during trial.
In syllabus point three of
State v. Farmer, 200 W. Va. 507, 490 S.E.2d 326 (1997), we explained
that [t]he plain language of Rule 614(b) of the West Virginia Rules of
Evidence authorizes trial courts to question witnesses--provided that such questioning
is done in an impartial manner so as to not prejudice the parties. We
examined the proper role and demeanor of the trial judge during a jury trial
in McDonald v. Beneficial Standard Life Ins. Co., 160 W. Va. 396, 235
S.E.2d 367 (1977), and explained as follows:
The paramount function of the trial judge is to conduct trials fairly and to maintain an atmosphere of impartiality. That is why both common sense and our law demand that trial judges refrain from making prejudicial remarks in the presence of the jury. Stenger v. Hope Natural Gas Co., 141 W.Va. 347, 90 S.E.2d 261 (1956). It is improper for a judge to express verbally or by conduct an opinion on questions of fact, or to indicate in any manner to the jury his personal views on the credibility of the witness or the weight of the evidence.
160 W. Va. at 398, 235 S.E.2d at 368. In syllabus point one of Dye v. Rathbone, 102 W. Va. 386, 135 S.E. 274 (1926), this Court explained:
The judge of the court when engaged in the trial of a case before a jury should studiously abstain from indicating by word, gesture or otherwise his personal views upon the weight of the evidence, or the credibility or incredibility of the witnesses, or the extent of the damages sued for, thereby to invade the province of the jurors, the proper triers of the facts.
Thus, in defining the role of a judge in interrogating a witness, Rule 614 permits the judge to ask questions to prevent misunderstanding, but extended examination of any witness has not been favored. Nash v. Fidelity-Phenix Fire Ins. Co., 106 W. Va. 672, 146 S.E. 726 (1929). In Nash, an allegation of error was based upon the trial judge's interrogation of the plaintiff with regard to repudiation of his confession to burning his automobile. Id. at 674, 146 S.E. at 726. This Court stated that [a] judge may ask questions for the purpose of clearing up points that seem obscure, and supplying omissions which the interest of justice demands, but it is not proper that he conduct an extended examination of any witness. Id. at 679, 146 S.E.2d at 728.
In Sharpton v. State,
57 S.E. 929 (Ga. Ct. App. 1907), the court commented:
It is almost an intellectual impossibility for a judge to engage in an examination of a witness on vital questions of the case on trial without in some manner and to some extent indicating his own opinion. Every practitioner knows how eagerly alert jurors are to every utterance from the bench, and how sensitive is the mind of the juror to the slightest judicial expression.
Id. at 932; see also Rivas v. Brattesani, 94 F.3d 802, 807 (2d Cir. 1996) (discussing whether judge conveyed to the jury the impression that it held a fixed and unfavorable opinion of defendant[ ], [his] counsel, and [his] position); Santa Maria v. Metro-North Commuter R.R., 81 F.3d 265, 273 (2d Cir. 1996) (basing inquiry upon whether judge's conduct went beyond judicial skepticism); United States v. Tilton, 714 F.2d 642, 644 (6th Cir. 1983) (explaining that potential prejudice lurks behind every intrusion into a trial made by a presiding judge).
In United States v. Filani, 74 F.3d 378 (2d Cir. 1996), the United States Court of Appeals for the Second Circuit found that reversal of a drug-related conviction was required where the trial judge t[ook] over the role of the prosecutor and display[ed] bias[.] Id. at 385. The court reasoned that a trial court may ask questions for such purposes as 'clarifying ambiguities, correcting misstatements, or obtaining information needed to make rulings.' Id. at 386 (quoting United States v. Pisani, 773 F.2d 397, 403 (2d Cir. 1985)). In Filani, however, the trial court proceeded beyond the acceptable role of the trial court and intensely cross-examined the defendant, questioned his story, and demonstrated his disbelief in the defendant's testimony. 74 F.3d at 385-86. The court emphasized that although it did not have the benefit of seeing the facial expressions of the questioner or the tone used, the trial judge's questions nonetheless betray a tone of incredulity. Id. at 381.
Analyzing the traditional
province of the judge in a jury trial, the court observed that experienced
trial judges have championed the view that our adversarial system gives little
room for trial judges' questioning of witnesses and that intrusions into
questioning of witnesses may offer more confusion than guidance to the
jury because the trial judge looks down at the case from the peak of the mountain of ignorance[.]
Id. at 384, (citing, in part, Marvin E. Fankel, The Search for Truth:
An Umpireal View, 123 U.Pa.L.Rev. 1031, 1042 (1975) (His intrusions
will in too many cases result from partial or skewed insights. . . . He runs
a good chance of pursuing inspirations that better informed counsel have considered,
explored, and abandoned after fuller study). The Filani court concluded
that despite the failure of defense counsel to object, the judge's conduct constituted
plain error under Rule 52(b) of the Federal Rules of Criminal ProcedureSee
footnote 3 3 and reversal was required. 74 F.3d at 387.
With regard to the trial court's action in the case sub judice of threatening Appellant's counsel with contempt, the Appellees contend that the judge's action constituted a proper and necessary control of the presentation of evidence, consistent with Rule 611(a) of the West Virginia Rules of Evidence.See footnote 4 4 We have explained as follows in State v. Cokeley, 159 W. Va. 664, 226 S.E.2d 40 (1976):
Authorities indicate that where the court directs critical remarks at counsel that such conduct should be viewed in the context of the entire trial. A trial court may admonish or rebuke counsel during the trial if counsel's action requires it. However, it is improper and prejudicial for the trial court to threaten counsel with contempt for attempting to offer or elicit evidence which the court deems inadmissible but which is offered in good faith, particularly where, in a criminal case, the evidence of guilt is conflicting. 75 Am.Jur.2d Trial §§ 116, 118 & 119 (1974). Some courts have held it to be reversible error, per se, for a trial court to make unjustified threats of contempt proceedings against counsel in the presence of the jury. See, e.g., Sprinkle v. Davis, 111 F.2d 925 (4th Cir. 1940); Atlantic Refining Co. v. Jones, 70 F.2d 89 (4th Cir. 1934).
159 W. Va. at 671, 226 S.E.2d at 44.See footnote 5 5
Where an allegation is forwarded
that trial court conduct prejudiced the rights of a party to presentation of
its evidence and jeopardized the impartiality of the jury, a reviewing court
is obligated to evaluate 'the entire record and attempt to determine whether
the conduct of the trial has been such that the jurors have been impressed with
the trial judge's partiality to one side to the point that this became a factor in the
determination of the jury.' United States v. Valenti, 60 F.3d 941,
946 (2d Cir. 1995) (quoting United States v. Guglielmini, 384 F.2d 602,
605 (2d Cir. 1967), cert. denied, 400 U. S. 820 (1970)).
Having examined the entire
record regarding the circumstances surrounding the trial court's extensive interrogation
of the Appellant and the threat of contempt against the Appellant's counsel,
we find that the trial court's interruption of the Appellant's presentation
of her case for such an extended period was unwarranted and prejudicial to the
presentation of the Appellant's case. We further find that the threat of contempt
was unjustified, that it was prejudicial to the Appellant's presentation of
her case, and that it presented to the jury the opportunity to infer that the
Appellant's counsel was engaged in some nefarious activity and was not worthy
of their trust and confidence. The magnitude of this error was enhanced by the
presence of the trial judge in the area of the room reserved for the jury alone.
Although counsel for the Appellant failed to raise a contemporaneous objection to the questioning and the threat of contempt, we find the actions of the trial court in this case to be of such magnitude as to justify reversal upon a plain error analysis. In syllabus point seven of State v. LaRock, 196 W. Va. 294, 470 S.E.2d 613 (1996), this Court explained the utilization of the plain error doctrine, as follows:
An unpreserved error is deemed plain and affects substantial rights only if the reviewing court finds the lower court skewed the fundamental fairness or basic integrity of the proceedings in some major respect. In clear terms, the plain error rule should be exercised only to avoid a miscarriage of justice. The discretionary authority of this Court invoked by lesser errors should be exercised sparingly and should be reserved for the correction of those few errors that seriously affect the fairness, integrity, or public reputation of the judicial proceedings.
Syllabus point seven of State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995), provides:
To trigger application of the 'plain error' doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings.
Specifically, the lower court
[T]he Court finds that the reason for striking No. 2, Ms. Craighead, was for an earnest good faith reason which amounted to a racially neutral reason, meaning that Ms. Craighead was not struck or removed from the panel because that she was black but for other reasons, the pending lawsuit or the fact that her vehicle, she was involved as a party to a lawsuit, and defense counsel has indicated that that's a standard practice of this particular defense counsel, to strike people who are involved in such suits. Plaintiff has not presented to the Court anything satisfactory to indicate that this reason was falsely stated or was a misrepresentation to the Court or anything of that sort. Therefore, the Court will deny the defendants' - - pardon me, the Court will uphold the defendants' right to strike Panel Member No. 2, Ms. Craighead, Elizabeth Craighead, as one of its two preemptory strikes and will deny the plaintiffs' objection thereto, and basically what amounts to plaintiffs' motion under Batson. . . .
Discerning no impropriety in the lower court's ruling on that issue, we affirm the lower court's Batson ruling.
Similarly, we affirm the lower
court's determination that certain evidence offered by the Appellant for the
purpose of establishing the safe bicycle operating habits of the Appellant was
inadmissible. Ms. Shawna Padgett, the Appellant's sister, would have testified
that she taught the Appellant how to ride a bicycle, that the Appellant was
experienced in riding on the road and obeying traffic safety rules, that the
Appellant was aware of her responsibilities as a bicyclist on the roadways,
and that she was very familiar with the area in which the accident occurred.
The trial's judge's determination that the offered evidence did not constitute
habit evidence under Rule 406 of the West Virginia Rules of Evidence was not
in error.See footnote 6 6
We have consistently held that in order to qualify as habit evidence, the testimony must establish a regularly repeated response
of a person such that the response is semi-automatic. Rodgers v. Rodgers,
184 W. Va. 82, 399 S.E.2d 664 (1990). Syllabus point fourteen of Rodgers
Under Rule 406 of the West Virginia Rules of Evidence, evidence of a person's habit must be shown to be a regularly repeated response to similar factual situations. The trustworthiness of habit evidence lies in its regularity, such that the act or response is shown to be almost semiautomatic.
184 W. Va. at 86, 399 S.E.2d at 668, Syl. Pt. 14.
The United States Court of
Appeals for the Fourth Circuit has provided the following guidance on the introduction
of habit evidence:
It is only when the examples offered to establish such pattern of conduct or habit are numerous enough to base an inference of systematic conduct and to establish one's regular response to a repeated specific situation or, to use the language of a leading text, where they are sufficiently regular or the circumstances sufficiently similar to outweigh the danger, if any of prejudice and confusion, that they are admissible to establish a pattern or habit. In determining whether the examples are numerous enough and sufficiently regular, the key criteria are adequacy of sampling and uniformity of response. . . .
Wilson v. Volkswagen of America, Inc., 561 F.2d 494, 511 (4th Cir. 1977), cert. denied, 434
U. S. 1020 (1978) (footnotes and citations omitted).
We find that the lower court
properly excluded the offered habit evidence based upon the fact that the proffered
evidence did not tend to establish a repeated pattern of conduct rising to the
level of systematic conduct. There is no evidence suggesting that the proffered
witness had ever observed the Appellant in a situation similar to that which
existed immediately prior to the accident. General testimony concerning the
Appellant's level of skill in bicycle operation would not constitute habit evidence
demonstrating a regularly repeated response to similar factual situations[,]
as required by Rodgers. 184 W. Va. at 86, 399 S.E.2d at 668, Syl. Pt.
14, in part. We therefore affirm the lower court's ruling on that issue.
protect witnesses from harassment or undue embarrassment.
practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.