Albright, Justice, dissenting:
I respectfully dissent from
the majority opinion because I firmly believe that the defendant was deprived
of a fair trial by the introduction into evidence of the photograph depicting
him barefoot and in shackles.
When presented with the
analogous situation of a criminal defendant appearing at trial before a jury
in prison attire, this Court said that such appearance communicates a condition
of guilt to the jury and violates a fundamental tenet of our system of criminal
justice _ that an accused person is innocent until proven guilty. We also
have recognized the substantial prejudice created against a criminal defendant
by his appearance before a jury in physical restraints, and have concluded
that it is only in extreme circumstances, when an accused poses an immediate
threat to the security of the court room, that a trial court is justified
in allowing such appearance. Notwithstanding these prior decisions, the majority
somehow manages to find that these same principles do not apply to the admission
of photographs depicting that which we find legally objectionable to occur
livein the court room. I discern no difference. My belief is that
the defendant in this case was robbed of the presumption of innocence by the admission of the photograph in question
and thereby was denied a fair trial which constituted reversible error.
Additionally, I believe
the majority is mistaken in its reliance on State v. McGinnis, 193
W.Va. 147, 455 S.E.2d 516 (1994) for its discussion of whether the jury was
properly instructed regarding the use of the two prior convictions of the
defendant, which were introduced by the State through cross-examination of
the defendant's character witness, for the sole purpose of testing the credibility
of the witness. I agree that the instruction given by the lower court was
correct, but not under the standard set forth in McGinnis but under
the controlling case of State v. Banjoman, 178 W.Va. 311, 359 S.E.2d
331 (1987). McGinnis governs the jury instruction to be given when
evidence is introduced pursuant to Rule 404 (b) of the Rules of Evidence.
Banjoman, on the other hand, addresses the jury instruction to be given
when prior convictions of the defendant are raised during cross-examination
of a character witness under Rule 405 (a) of the Rules of Evidence. While
both of these rules deal in some fashion with the subject of character evidence,
the procedures to be followed under each are not interchangeable either within
the language of these rules or in our case law regarding them.
The conviction should have
been reversed and new trial ordered.
I am authorized to state that Justice Starcher joins in this dissent.