2. In order to obtain a new trial on a claim that the prosecutor presented false testimony at trial, a defendant must demonstrate that (1) the prosecutor presented false testimony, (2) the prosecutor knew or should have known the testimony was false, and (3) the false testimony had a material effect on the jury verdict.
3. West Virginia does not grant a criminal defendant a first appeal of right, either statutorily or constitutionally. However, our discretionary procedure of either granting or denying a final full appellate review of a conviction does not violate a criminal defendant's guarantee of due process and equal protection of the law. Syllabus point 4, Billotti v. Dodrill, 183 W. Va. 48, 394 S.E.2d 32 (1990).
4. Prison disciplinary action against an inmate, for conduct for which he or she was criminally prosecuted, does not violate the Double Jeopardy Clauses of Article III, Section 5 of the West Virginia Constitution and the Fifth Amendment to the United States Constitution.
Warren D. Franklin (hereinafter referred to as Mr. Franklin) appeals from
an order of the Circuit Court of Harrison County denying his petition for habeas corpus
relief. Before this Court, Mr. Franklin assigns error as follows: (1) the State knowingly
allowed witnesses to lie during his trial; (2) the trial court failed to give an instruction on
accomplice testimony; (3) his due process rights were violated when his petition for appeal
was denied; and (4) imposition of administrative segregation constituted double jeopardy.
After careful review of the parties' briefs and the record submitted on appeal, and having
listened to the arguments of the parties, we affirm.
[i]n reviewing challenges to the findings and conclusions of the circuit court in a habeas corpus action, we apply a three- prong standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard; the underlying factual findings under a clearly erroneous standard; and questions of law are subject to a de novo review.
Syl. pt. 1, Mathena v. Haines, 219 W. Va. 417, 633 S.E.2d 771 (2006). With these standards in mind, we now consider the issues presented in this appeal.
Corrections Officers knew or should have known that
[Mr. Franklin] did not commit murder, but they charged him and
his brother in an attempt to persuade him to testify against the
inmate they thought was guilty. The testimony in the habeas
proceedings of other inmates is consistent with [Mr. Franklin's]
insistence that he was not in the vicinity of Kent Slie and did not
witness his killing. . . .
The decision to prosecute [Mr.] Franklin was somewhat arbitrary; the State had to decide whether to believe those convicted criminals who accused him, with full knowledge that many (if not all of them) had ample reasons to lie.
The trial court concluded that this purported evidence amounted to conclusory statements that the State use[d] perjured testimony to obtain [Mr. Franklin's] conviction. We agree.
The best that we are able to determine from Mr. Franklin's conclusory allegations is that the State's two inmate witnesses had reason to lie and that the State knew the witnesses had reason to lie. (See footnote 12) This Court rejected a similar argument in State v. Brown, 210 W.Va. 14, 552 S.E.2d 390 (2001). The defendant in Brown was convicted by a jury of two murders. One of the issues raised in the appeal involved alleged false testimony by the State's witnesses. The Brown opinion set forth the argument as follows:
[T]he defendant claims that the prosecuting attorney should have known there was a substantial probability that some evidence against the defendant was false, and that this false evidence materially affected the verdict. . . . The defendant points to the low character and incentive to lie of the State's witnesses, and appears to argue that this should have put the prosecutor on notice that these witnesses were not telling the truth.
Brown, 210 W. Va. at 27, 552 S.E.2d at 403. We rejected the defendant's argument in Brown. In doing so, we stated:
We are not convinced by the defendant's argument. Not
only is there no evidence in the record which supports the claim
that the prosecutor knew or should have known that evidence
was false, there is no proof that any of the State's evidence was
actually false. Rather, all that the defendant can demonstrate is
that [the] State's witnesses were disreputable persons who had
reasons to lie. The witnesses' characters and motives were
adduced at trial and argued at length to the jury.
. . . It was the role of the jury to weigh the evidence and make credibility assessments after it observed the witnesses and heard their testimony. The jury made its determination, and this Court will not second guess it simply because we may have assessed the credibility of the witnesses differently.
Brown, 210 W.Va. at 27, 552 S.E.2d at 403. See also State v. Rivera, 109 P.3d 83, 89 (Ariz.
2005) (Absent a showing that the prosecution was aware of any false testimony, the
credibility of witnesses is for the jury to determine.).
In the instant proceeding, Mr. Franklin has done no more than argue, like the defendant in Brown, that the State's witnesses had motives to lie. Such an assertion is legally insufficient to sustain a claim that the State presented false testimony. Therefore, we find no error in the trial court's rejection of this assignment of error. (See footnote 13)
Conviction for a crime may be had upon the uncorroborated testimony of an accomplice; but in such case the testimony must be received with caution and the jury should, upon request, be so instructed.
It has been correctly observed that in order to be an accomplice, the witness
must have played a knowing role in the crime_ the witness' mere presence at the scene is not
sufficient. State v. Pendleton, 759 N.W.2d 900, 907 (Minn. 2009). The State points out
that, during Mr. Franklin's trial, it did not call an accomplice to testify. It called two inmate
witnesses who were near the scene of the crime. Mr. Franklin has not disputed this fact.
Instead, Mr. Franklin simply argues that [t]he inmates who testified on behalf of the State
were unreliable and the jury was not instructed about the weight they should give such
testimony. The decision in Humphreys does not require a cautionary instruction be given
for mere witnesses to a crime. A Humphreys instruction is required when an accomplice to
the crime testifies for the State. (See footnote 14) Consequently, the circuit court's summary rejection of this
issue in its habeas order was correct.
Mr. Franklin asserts, without citation to any authority, that the highest appellate court in almost every other state provides for automatic review of a sentence of life imprisonment without parole. This assertion is simply wrong. In our review of state laws, we have found that, while a large minority of state high courts grant an appeal of right in criminal cases, (See footnote 15) the majority of state high courts provide only for discretionary review of criminal convictions, except for cases involving a sentence of death. (See footnote 16)
Without acknowledging the fact in his brief, Mr. Franklin is asking this Court to overrule our decision in Billotti v. Dodrill, 183 W.Va. 48, 394 S.E.2d 32 (1990). (See footnote 17) The decision in Billotti involved a habeas proceeding wherein one of the arguments raised by the defendant was that it is a violation of due process of law to deny an individual an automatic right to full appellate review when the individual has been convicted of first-degree murder and sentenced to life in prison with no possibility of parole. Billotti, 183 W. Va. at 52, 394 S.E.2d at 36. We rejected the argument and held the following in Syllabus point 4 of Billotti:
West Virginia does not grant a criminal defendant a first
appeal of right, either statutorily or constitutionally. However,
our discretionary procedure of either granting or denying a final
full appellate review of a conviction does not violate a criminal
defendant's guarantee of due process and equal protection of the
Subsequent to the decision in Billotti, the defendant filed a federal habeas corpus petition alleging discretionary appellate review of his case violated due process principles. The issue was taken up by the Fourth Circuit Court of Appeals in Billotti v. Legursky, 975 F.2d 113 (4th Cir. 1992), cert. denied, 507 U.S. 984, 113 S. Ct. 1578, 123 L. Ed. 2d 146 (1993). The Fourth Circuit rejected the argument and, in doing so, made the following observations:
It is plain that West Virginia has afforded Billotti an
adequate opportunity to challenge the alleged errors in his trial.
The Fourteenth Amendment does not authorize the federal
courts to micromanage state criminal justice systems. In our
federal system, the states are allowed to structure their systems
of criminal justice as they see fit, as long as their systems satisfy
the basic demands of due process. There is often no one best
way of doing things. . . .
Indeed, petitioner has not explained exactly how an appeal as of right would have increased the accuracy of the determination that he received. In many jurisdictions, appeal as of right is conducted without oral argument, with screening by staff attorneys, or with limited briefing. We cannot see how such streamlined systems deliver a more meaningful opportunity to be heard than does West Virginia's system of discretionary appeals. West Virginia allowed Billotti to communicate his claims of legal error to the reviewing tribunal, accompanied by a record of the proceedings below necessary to evaluate his arguments. We believe that due process requires no more.
Billotti, 975 F.2d at 116-17 (internal citations omitted).
Mr. Franklin has not presented any valid basis for revisiting our ruling in Billotti and the well-reasoned analysis by the Fourth Circuit in Billotti v. Legursky. Therefore, we reject his contention that due process required automatic review of his initial petition for appeal. See State v. Legg, 151 W. Va. 401, 404-05, 151 S.E.2d 215, 218 (1966) (One convicted of a criminal offense is not entitled to a writ of error as a matter of right. The Constitution and statutes create an absolute right merely to apply for a writ of error.).
The Double Jeopardy Clause of the Fifth Amendment to
the United States Constitution consists of three separate
constitutional protections. It protects against a second
prosecution for the same offense after acquittal. It protects
against a second prosecution for the same offense after
conviction. And it protects against multiple punishments for the
Syl. pt. 1, State v. Gill, 187 W. Va. 136, 416 S.E.2d 253 (1992).
The Double Jeopardy Clause in Article III, Section 5 of
the West Virginia Constitution, provides immunity from further
prosecution where a court having jurisdiction has acquitted the
accused. It protects against a second prosecution for the same
offense after conviction. It also prohibits multiple punishments
for the same offense.
Syl. pt. 1, Conner v. Griffith, 160 W. Va. 680, 238 S.E.2d 529 (1977).
It has been recognized that [v]irtually every federal circuit court of appeals has held that prison disciplinary proceedings do not violate the double jeopardy provisions of the Fifth Amendment of the United States Constitution. State v. Kell, 61 P.3d 1019, 1037 (Utah 2002) (citing United States v. Mayes, 158 F.3d 1215, 1220 (11th Cir. 1998); United States v. Brown, 59 F.3d 102, 105 (9th Cir. 1995); United States v. Hernandez-Fundora, 58 F.3d 802, 806-08 (2d Cir. 1995); Garrity v. Fiedler, 41 F.3d 1150, 1152 (7th Cir. 1994); United States v. Newby, 11 F.3d 1143, 1144-45 (3d Cir. 1993); United States v. Rising, 867 F.2d 1255, 1259 (10th Cir. 1989); Kerns v. Parratt, 672 F.2d 690, 691-92 (8th Cir. 1982); Fano v. Meachum, 520 F.2d 374, 376 n.1 (1st Cir. 1975); United States v. Lepiscopo, 429 F.2d 258, 261 (5th Cir. 1970); Hamrick v. Peyton, 349 F.2d 370, 372 (4th Cir. 1965); Gibson v. United States, 161 F.2d 973, 974 (6th Cir. 1947)). This Court was called upon in Conley v. Dingess, 162 W.Va. 414, 250 S.E.2d 136 (1978), overruled on other grounds by State ex rel. Faircloth v. Catlett, 165 W.Va. 179, 267 S.E.2d 736 (1980), to address the issue of double jeopardy and prison discipline.
In Conley, the defendant escaped from custody while awaiting resentencing. After the defendant was captured, prison authorities found that he violated prison rules by escaping and, therefore, punished him with 120 days of administrative segregation. The State subsequently prosecuted and convicted the defendant for the crime of escape. The defendant filed a petition for habeas corpus relief directly with this Court. In that petition, the defendant argued that the sentence for escape and the administrative discipline imposed therefor constitute double jeopardy. Conley, 162 W. Va. at 415, 250 S.E.2d at 137. We rejected the argument for the following reasons:
The doctrine of double jeopardy clearly contemplates two prosecutions for the same offense before a court of competent jurisdiction. It has strict application to criminal prosecution only and is not applicable to civil actions. Disciplinary proceedings such as the one imposed upon this petitioner are civil rather than criminal in nature and do not subject the recipient of such discipline to double jeopardy.
Conley, 162 W. Va. at 417, 250 S.E.2d at 138. See also De Grijze v. Selsky, 759 N.Y.S.2d
570, 571 (2003) ([S]anctions imposed in the context of prison disciplinary proceedings 'do
not constitute criminal punishment triggering double jeopardy protections.' People v.
Vasquez, 89 N.Y.2d 521, 532 (1997).); In re Goulsby, 84 P.3d 922, 925 (Wash. Ct. App.
2004) (Prison disciplinary hearings are not criminal prosecutions, and the full panoply of
rights due a criminal defendant does not apply. The double jeopardy clause protects against
multiple criminal punishments for the same offense. It therefore does not pertain to prison
disciplinary hearings that are in the nature of remedial, civil proceedings.).
In view of the decision in Conley and other authorities, we now hold that prison disciplinary action against an inmate, for conduct for which he or she was criminally prosecuted, does not violate the Double Jeopardy Clauses of Article III, Section 5 of the West Virginia Constitution and the Fifth Amendment to the United States Constitution.
Assuming, as alleged by Mr. Franklin, that prison officials placed him on administrative segregation for killing Mr. Slie, such placement in and of itself did not violate double jeopardy principles. We therefore find no error in the trial court's rejection of this issue.