David Karickhoff, Esq. Darrell
V. McGraw, Jr., Esq.
Sutton, West Virginia Attorney General
Attorney for Appellant Colleen A. Ford, Esq.
Assistant Attorney General
Charleston, West Virginia
Attorneys for Appellee
The Opinion of the Court was delivered PER CURIAM.
constitutional rights are so inherently personal and so tied to fundamental
concepts of justice that their surrender by anyone other than the accused acting
voluntarily, knowingly, and intelligently would call into question the fairness
of a criminal trial. Syllabus point 5, State v. Neuman, 179 W. Va.
580, 371 S.E.2d 77 (1988).
the trial of a criminal offense, the presumption of innocence existing in favor
of a defendant continues through every stage of the trial until a finding of
guilty by the jury. Syllabus point 11, State v. Pietranton, 140
W. Va. 444, 84 S.E.2d 774 (1954).
This is an appeal by John David Pullin, appellant/defendant below (hereinafter Mr. Pullin), from an order of the Circuit Court of Braxton County sentencing him to two consecutive terms of imprisonment of not less than one nor more than five years. The sentences resulted from Mr. Pullin's conviction under an indictment charging him with two counts of delivery of a controlled substance. In this appeal, Mr. Pullin has alleged seven assignments of error: (1) invalid verdict form, (2) denial of jury instruction, (3) admission of prejudicial testimony, (4) admission of certain documents, (5) improper examination by the court, (6) improper sentence, and (7) insufficiency of evidence to support convictions. After careful review of the briefs and record in this case, we reverse the convictions and sentences and remand this case for a new trial.
Shortly after the informants
entered Mr. Pullin's trailer home, another person, David Facemire, arrived. (See
footnote 1) Mr. Pullin met separately with Mr. Facemire.
Apparently during this private meeting, Mr. Facemire gave Mr. Pullin the marijuana
that was to be sold to the informants. After the exchange between Mr. Pullin
and Mr. Facemire, Mr. Pullin took the two informants to another room and sold
each of them a bag of marijuana.
After the drug transaction,
Mr. Pullin was indicted on October 2, 2002. The indictment charged Mr. Pullin
with two counts of felony delivery of a controlled substance. A jury trial
was held on February 25-26, 2003. Mr. Pullin was found guilty of both counts.
Mr. Pullin filed motions for judgment of acquittal and new trial, both of which
were denied. The circuit court subsequently sentenced Mr. Pullin to two consecutive
terms of imprisonment of one to five years. This appeal followed.
challenges to findings and rulings made by a circuit court, we apply a two-pronged
deferential standard of review. We review the rulings of the circuit court concerning
a new trial and its conclusion as to the existence of reversible error under
an abuse of discretion standard, and we review the circuit court's underlying
factual findings under a clearly erroneous standard. Questions of law are subject
to a de novo review.
With respect to Mr. Pullin's motion for judgment of acquittal based upon insufficiency of evidence, the standard of review was stated in Syllabus point 1 of State v. Starkey, 161 W. Va. 517, 244 S.E.2d 219 (1978), as follows:
criminal case, a verdict of guilt will not be set aside on the ground that it
is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt
of the defendant beyond a reasonable doubt. The evidence is to be viewed in
the light most favorable to the prosecution. To warrant interference with a
verdict of guilt on the ground of insufficiency of evidence, the court must
be convinced that the evidence was manifestly inadequate and that consequent
injustice has been done.
We will now apply the foregoing standards to the case at hand.
Mr. Pullin contends, and we agree, that this language impermissibly shifted the burden of proof to him and violated the presumption of innocence. The state contends, however, that any error in the language of the verdict form was waived, because the trial judge asked both parties if there were any objections to the verdict form, and the defendant stated that he had no objections. Mr. Pullin does not dispute the fact that defense counsel approved of the verdict form. In spite of this invited error, Mr. Pullin has asked this Court to invoke the plain error doctrine to resurrect the issue.
As a general rule, '[a] judgment will not be reversed for any error in the record introduced by or invited by the party seeking reversal.' Syl. pt. 21, State v. Riley, 151 W. Va. 364, 151 S.E.2d 308 (1966). Syl. pt. 4, State v. Johnson, 197 W. Va. 575, 476 S.E.2d 522 (1996). In State v. Crabtree, 198 W. Va. 620, 627, 482 S.E.2d 605, 612 (1996), we made the following observations:
error is a cardinal rule of appellate review applied to a wide range of
conduct. It is a branch of the doctrine of waiver which prevents a party from
inducing an inappropriate or erroneous response and then later seeking to profit
from that error. The idea of invited error is not to [legitimize the error] but
to protect principles underlying notions of judicial economy and integrity by
allocating appropriate responsibility for the inducement of error. Having induced
an error, a party in a normal case may not at a later stage of the trial use
the error to set aside its immediate and adverse consequences.
This Court has also noted, in State v. Knuckles, 196 W. Va. 416, 421, 473 S.E.2d 131, 136 (1996) (per curiam), that waiver necessarily precludes salvage by plain error review.
In rare instances however,
this Court has used the plain error doctrine to review an error that was invited. See State
v. Redden, 199 W. Va. 660, 487 S.E.2d 318 (1997) (using plain error to address an invited error issue that involved
a fundamental right secured by the state and federal constitutions); State
v. Miller, 184 W. Va. 367, 400 S.E.2d 611 (1990) (same). We believe the
invited error in this case is an instance where the plain error doctrine must
be invoked. 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). The error in this case satisfies the requirements
of the plain error doctrine.
Our cases have recognized
that [c]ertain constitutional rights are so inherently personal and so
tied to fundamental concepts of justice that their surrender by anyone other
than the accused acting voluntarily, knowingly, and intelligently would call
into question the fairness of a criminal trial. Syl. pt. 5, State
v. Neuman, 179 W. Va. 580, 371 S.E.2d 77 (1988). The constitutional right
that was waived by defense counsel, not by Mr. Pullin directly, involved the
presumption of innocence.
[U]nder our law the
presumption of innocence is an integral part of criminal due process and . . .
such presumption is itself a constitutional guarantee embodied in Article III,
Section 10 of the West Virginia Constitution. State v. Boyd, 160
W. Va. 234, 241, 233 S.E.2d 710, 716 (1977). See Pinkerton v. Farr,
159 W. Va. 223, 229, 220 S.E.2d 682, 687 (1975) (The right to a presumption of innocence
is so firmly embedded in our law, . . . that a violation of that
right would result in such unfairness as to constitute a deprivation of one's
right to due process of law.). We have also held that [i]n the
trial of a criminal offense, the presumption of innocence existing in favor
of a defendant continues through every stage of the trial until a finding of
guilty by the jury. Syl. pt. 11, State v. Pietranton, 140 W. Va.
444, 84 S.E.2d 774 (1954). Therefore, the burden of alleging and proving
each element of a criminal offense beyond a reasonable doubt rests with the
state and may not be shifted to the defendant. State v. Hulbert,
209 W. Va. 217, 226, 544 S.E.2d 919, 929 (2001) (citing In re Winship,
397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); Bowman
v. Leverette, 169 W. Va. 589, 289 S.E.2d 435 (1982)). Thus, '[i]t
is unconstitutional to shift the burden of proof to a defendant on any element
of a crime.' State v. Jenkins, 191 W. Va. 87, 93, 443 S.E.2d
244, 250 (1994) (quoting Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct.
2450, 61 L. Ed. 2d 39 (1979)).
In this proceeding, the verdict form unquestionably required the jury to find that Mr. Pullin was not guilty only if he presented evidence to establish beyond a reasonable doubt that he was innocent. This requirement by the verdict form violated Mr. Pullin's constitutional right to a presumption of innocence because it shifted the burden to him to prove his innocence.
The state contends that, because the trial judge instructed the jury that the prosecution had the burden of proving Mr. Pullin guilty beyond a reasonable doubt and that Mr. Pullin was presumed innocent, any error in the verdict form was harmless. See Syl. pt. 5, State ex rel. Grob v. Blair, 158 W. Va. 647, 214 S.E.2d 330 (1975) (Failure to observe a constitutional right constitutes reversible error unless it can be shown that the error was harmless beyond a reasonable doubt.). We are not persuaded that this error was harmless beyond a reasonable doubt because the verdict form had the effect of nullifying the jury instructions given by the trial judge. We have previously indicated that an . . . error which unconstitutionally shifts the burden of proof . . . to the defendant, causing a serious question about the accuracy of the guilty verdict, is not an error that did not contribute to the guilty verdict. Angel v. Mohn, 162 W. Va. 795, 798, 253 S.E.2d 63, 66 (1979). See also State v. DeWeese, 213 W. Va. 339, 353, 582 S.E.2d 786, 800 (2003) ([W]e simply cannot conclude that the incriminating statements provided to the jury by the polygraph examiner were harmless beyond a reasonable doubt.); State v. Ladd, 210 W. Va. 413, 431, 557 S.E.2d 820, 838 (2001) ([W]e are unable to conclude beyond a reasonable doubt that the improper admission of . . . out-of-court statement was harmless to the jury's determinations on the first and second counts of the indictment.); State v. Hicks, 198 W. Va. 656, 662, 482 S.E.2d 641, 647 (1996) (The record . . . falls short of demonstrating beyond a reasonable doubt that what transpired in the defendant's absence was harmless[.]); State v. Jenkins, 191 W. Va. 87, 99, 443 S.E.2d 244, 256 (1994) (It cannot be said beyond a reasonable doubt that the unconstitutional instruction could not have contributed to the verdict of first degree murder without a recommendation of mercy.). Consequently, the convictions and sentences in this case must be reversed, and Mr. Pullin is entitled to a new trial.
In Syllabus point 11 of State
v. Derr, 192 W. Va. 165, 451 S.E.2d 731 (1994), this Court stated the
following regarding a trial court's refusal to give a jury instruction:
A trial court's refusal to give a requested instruction is reversible error only if: (1) the instruction is a correct statement of the law; (2) it is not substantially covered in the charge actually given to the jury; and (3) it concerns an important point in the trial so that the failure to give it seriously impairs a defendant's ability to effectively present a given defense.
Assuming for a moment that Mr. Pullin was entitled to a missing witness instruction, the instruction submitted by Mr. Pullin was not a correct statement of the law. In the context of a civil case, we have stated the following regarding a missing witness instruction:
The unjustified failure of a party in a civil case to call an available material witness may, if the trier of the facts so finds, give rise to an inference that the testimony of the missing witness would, if he or she had been called, have been adverse to the party failing to call such witness.
Syl. pt. 3, in part, McGlone v. Superior Trucking Co., Inc., 178 W. Va. 659, 363 S.E.2d 736 (1987). Under McGlone, a jury is to be instructed that it may infer that a witness would testify adverse to a party. The instruction tendered by Mr. Pullin did not inform the jury that it may infer that Mr. Facemire would have testified adverse to the prosecution. The instruction proffered by Mr. Pullin was couched in language that gave the jury no choice but to infer Mr. Facemire would have testified adverse to the prosecution. See McGlone, 178 W. Va. at 667, 363 S.E.2d at 744 ([A]n instruction directing the jury's attention to the failure of a party to call a particular witness or to produce other particular evidence at trial must be carefully drafted so as not to be binding upon the jury.). Consequently, the instruction should not have been given as proffered.
Further, we will note that a criminal defendant does not possess an absolute right to have a missing witness instruction given to the jury. It has been pointed out that a missing witness instruction 'is not warranted if the defense does not adequately show that the government possesses the sole power to produce the witness.' United States v. Martinez-Figueroa, 363 F.3d 679, 682 (8th Cir. 2004) (quoting United States v. Johnson, 562 F.2d 515, 517 (8th Cir.1977)). See also United States v. DeLuca, 137 F.3d 24, 38 (1st Cir. 1998) (finding that defendants failed to show missing witnesses were 'peculiarly available' to the government, such as being within the government's 'exclusive control'); United States v. Tarantino, 846 F.2d 1384, 1404 (D.C. Cir. 1988) ([A]n instruction or inference that the missing witness' testimony would be unfavorable to the government is generally permissible only when it is within the government's exclusive power to call the witness to testify.); United States v. Montoya, 676 F.2d 428, 431 (10th Cir. 1982) (explaining that a missing witness instruction is not warranted unless it is solely within the prosecution's power to call the witness to testify); State v. Anderson, 867 S.W.2d 571, 576 (Mo. App. 1993) (If a witness is equally available to both parties or unavailable to either party, the trial court should not permit counsel to argue to the jury . . . that an adverse inference arises from the state's failure to call the witness.); State v. McGarrett, 535 N.W.2d 765, 770 (S.D. 1995) ([T]he defense failed to show any evidence that State possessed the sole power to produce [the witness] to testify or that he was under its control. . . . Hence, the trial court did not err in refusing McGarrett's [missing witness] instruction.). In this proceeding, counsel for Mr. Pullin admitted during the trial that he could have called Mr. Facemire as a witness. Under these circumstances, the trial court was correct in refusing to give a missing witness instruction. (See footnote 2)
Reversed and Remanded.