Darrell V. McGraw, Jr., Esq.
Joseph P. Albright, Jr., Esq.
Attorney General Bradley & Albright
Allen H. Loughry, II, Esq. Parkersburg, West Virginia
Assistant Attorney General Attorney for the Appellant
Charleston, West Virginia
Attorneys for the Appellee
The Opinion of the Court was delivered PER CURIAM.
CHIEF JUSTICE MCGRAW concurs in part and dissents in part and reserves the right to file a separate opinion.
JUSTICE STARCHER dissents and reserves the right to file a dissenting opinion.
JUSTICE ALBRIGHT, deeming himself disqualified, did not participate in the decision of this case.
JUDGE JAY M. HOKE sitting by special assignment.
1. When a defendant fails to object to an alternate juror retiring to the jury
room with the regular jurors, we will consider the circumstances under the plain error rule
of West Virginia Rule of Criminal Procedure 52(b). We expressly overrule and no longer
adhere to the rigid standard of State v. Hudkins, 35 W.Va. 247, 13 S.E. 367 (1891), which
states that when thirteen jurors are impaneled and render a verdict, the judgment of the circuit
court must be reversed and set aside. Syllabus Point 2, State v. Lightner, 205 W.Va. 657,
520 S.E.2d 654 (1999).
2. 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. Syllabus Point 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).
3. It is within the sound discretion of the court in the trial of a felony case, if a juror, at any time after he is sworn, and before verdict, becomes, from any cause, unable to discharge his duties as such juror, to discharge such juror, and substitute another qualified juror in his place[.] Syllabus Point 1, in part, State v. Davis, 31 W.Va. 390, 7 S.E. 24 (1888).
4. The defendant has a right under Article III, Section 14 of the West Virginia Constitution to be present at all critical stages in the criminal proceeding; and when he is not, the State is required to prove beyond a reasonable doubt that what transpired in his absence was harmless. Syllabus Point 6, State v. Boyd, 160 W.Va. 234, 233 S.E.2d 710 (1977).
5. A critical stage of a criminal proceeding is where the defendant's right to a fair trial will be affected. Syllabus Point 2, State v. Tiller, 168 W.Va. 522, 285 S.E.2d 371 (1981).
6. A motion for continuance is addressed to the sound discretion of the trial court, and its ruling will not be disturbed on appeal unless there is a showing that there has been an abuse of discretion. Syllabus Point 2, State v. Bush, 163 W.Va. 168, 255 S.E.2d 539 (1979).
7. Whether there has been an abuse of discretion in denying a continuance must be decided on a case-by-case basis in light of the factual circumstances presented, particularly the reasons for the continuance that were presented to the trial court at the time the request was denied. Syllabus Point 3, State v. Bush, 163 W.Va. 168, 255 S.E.2d 539 (1979).
8. Under the provisions of W.Va. Code, 51-7-1 and -2, all proceedings in the criminal trial are required to be reported; however, the failure to report all of the proceedings may not in all instances constitute reversible error. Syllabus Point 5, State v. Bolling, 162 W.Va. 103, 246 S.E.2d 631 (1978).
9. Omissions from a trial transcript warrant a new trial only if the missing portion of the transcript specifically prejudices a defendant's appeal. Syllabus Point 8, State v. Graham, ___ W.Va. ___, 541 S.E.2d 341 (2000).
10. Upon request for additional expert fees under [W.Va. Code § 29-21- 13a(e)(1997)]: (1) the request should be made in writing; (2) the request should detail why the expert is needed; (3) defense counsel should be permitted an opportunity to elaborate on the motion; and (4) in denying the motion, the trial judge should place in the record the specific reasons for his ruling. Syllabus Point 1, State ex rel. Foster v. Luff, 164 W.Va. 413, 264 S.E.2d 477 (1980).
11. A motion for a jury view lies peculiarly within the discretion of the trial court, and, unless the denial of such view works probable injury to the moving party, the ruling will not be disturbed. Syllabus Point 1, Collar v. McMullin, 107 W.Va. 440, 148 S.E. 496 (1929).
12. An appellate court must . . . credit all . . . credibility assessments that the jury might have drawn in favor of the prosecution. . . . Credibility determinations are for a jury and not an appellate court. Syllabus Point 3, in part, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).
13. Where the record of a criminal trial shows that the cumulative effect of numerous errors committed during the trial prevented the defendant from receiving a fair trial, his conviction should be set aside, even though any one of such errors standing alone would be harmless error. Syllabus Point 5, State v. Smith, 156 W.Va. 385, 193 S.E.2d 550 (1972).
14. The West Virginia Rules of Criminal Procedure are the paramount authority controlling criminal proceedings before the circuit courts of this jurisdiction[.] Syllabus Point 5, in part, State v. Wallace, 205 W.Va. 155, 517 S.E.2d 20 (1999).
This appeal was brought by Michael E. Brown, defendant below, from the
Circuit Court of Cabell County. The defendant appeals his conviction of two counts of first
degree murder with mercy, and his sentence of two consecutive life terms in the penitentiary.
After considering the defendant's numerous assignments of error, we affirm the defendant's
conviction but reverse his sentence and remand for a presentence report and a new sentencing
At the outset, the defendant argues that the trial court committed reversible
error by allowing a thirteenth juror to attend the jury deliberations. He urges this Court to
reconsider its recent holding in State v. Lightner, 205 W.Va. 657, 520 S.E.2d 654 (1999), and
find that the presence of a thirteenth juror during jury deliberations constitutes reversible
error. This we decline to do.
In Syllabus Point 2 of State v. Lightner, we held:
When a defendant fails to object to an alternate juror retiring to the jury room with the regular jurors, we will consider the circumstances under the plain error rule of West Virginia Rule of Criminal Procedure 52(b). We expressly overrule and no longer adhere to the rigid standard of State v. Hudkins, 35 W.Va. 247, 13 S.E. 367 (1891), which states that when thirteen jurors are impaneled and render a verdict, the judgment of the circuit court must be reversed and set aside.
Because the defendant did not object at trial to the presence of the thirteenth juror at the jury deliberations, we will consider the circumstances under the plain error rule.
In criminal cases, plain error is error which is so conspicuous that the trial
judge and prosecutor were derelict in countenancing it, even absent the defendant's timely
assistance in detecting the error. State v. Marple, 197 W.Va. 47, 52, 475 S.E.2d 47, 52
(1996) (citation omitted). 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. Syllabus Point 7, State
v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).
Under the first Miller factor, we must determine if there was error. Allowing
an alternate juror to attend jury deliberations of the regular twelve member jury panel is
obviously an error. Rule 24(c) of the West Virginia Rules of Criminal Procedure states that
[a]n alternate juror who does not replace a regular juror shall be discharged after the jury
retires to consider its verdict. Under the second factor of the Miller test, we also find that
the error is plain or, in other words, clear or obvious. It is uncontested that the alternate
juror, rather than being discharged at the appropriate time, proceeded to the jury room with
the regular twelve jurors.
The third factor requires us to determine whether the alternate juror's presence
during jury deliberations affected the substantial rights of the defendant. [T]his requirement
means that the error must result in prejudice to the defendant. The defendant bears the
burden of persuasion on this issue. State v. Lightner, 205 W.Va. at 662, 520 S.E.2d at 659
(citation omitted). In other words, we must ask whether the error affected the outcome of the
proceedings in the trial court. See State v. Miller, 194 W.Va. at 18, 459 S.E.2d at 129.
Unless there is a reasonable possibility that the alternate's participation caused the jury to
convict rather than acquit, the convictions will stand. State v. Lightner, id. In the instant
case, we do not believe there is a reasonable possibility that the thirteenth juror's mere
presence during jury deliberations caused the jury to convict rather than acquit.
In Lightner, supra, this Court found that the defendant was not prejudiced
where thirteen people actually deliberated and voted on the verdict which found the
defendant guilty. We reasoned that the alternate is chosen in the same way as a regular
juror, is subjected to the same test of impartiality and is required to possess all the
qualifications of a regular juror. State v. Lightner, 205 W.Va. at 663, 520 S.E.2d at 660
(citation omitted). The instant case is distinguished from Lightner in that the thirteenth juror,
although present in the jury room, did not participate in the jury deliberations.
transcript reveals that the trial court instructed the thirteenth juror not to participate in the
deliberations in any way. In addition, the record includes the affidavits of three jurors which
certify that, pursuant to the trial court's instructions, the jury alternate did not participate in,
or influence, the jury's deliberations. These assertions are not challenged by the defendant
on appeal. Finally, having found no reversible error in Lightner where the thirteenth juror
actually deliberated and voted on the verdict, we are even less disposed to find reversible
error in the instant case where the thirteenth juror was merely present in the jury room but
did not take part in the deliberations. Accordingly, we conclude that there is no likelihood
that the thirteenth juror's presence during jury deliberations prejudiced the defendant or
affected the outcome of the proceedings.
Second, the defendant contends that the trial court erred in discharging a tardy juror prior to jury deliberations. The record reveals that the juror telephoned the trial court to say that he would be late because of a flat tire. As a result, the trial court discharged the juror and replaced him with an alternate juror without objection. On appeal, the defendant claims that the juror was only minutes late, and that such a brief and temporary absence does not constitute an inability to perform the duty of juror under W.Va. Code, 62-3-7See footnote 4 4 and West Virginia Rule of Criminal Procedure 24(c).See footnote 5 5 The defendant argues that he had a right to have his case decided by the original twelve persons selected as jurors, and that this right limits the trial court's discretion.
It is a long-held rule of this Court that,
It is within the sound discretion of the court in the trial of a felony case, if a juror, at any time after he is sworn, and before verdict, becomes, from any cause, unable to discharge his duties as such juror, to discharge such juror, and substitute another qualified juror in his place[.]
Syllabus Point 1, in part, State v. Davis, 31 W.Va. 390, 7 S.E. 24 (1888) (footnote omitted). Also, because this alleged error was not objected to at trial, the defendant must show plain error or prejudice. We simply do not believe that the dismissal of the tardy juror and his replacement with an alternate juror constituted an error under the circumstances of this case.
Despite the defendant's claim to the contrary, we are unable to find in the record when or even if the dismissed juror arrived at the trial court. The transcript simply indicates that the dismissed juror was not present at the time the trial court instructed the jury. Common sense dictates that when a juror is not present, he or she is, at that time, unable to perform the duty of a juror. In addition, we do not believe that the trial court acted unreasonably in choosing to dismiss the tardy juror rather than wait on his arrival given the fact that the giving of jury instructions, closing arguments, and jury deliberations were expected to be lengthy, and alternate jurors were available.
Further, even if this Court were to find that the trial court abused its discretion
or erred in dismissing the tardy juror and replacing him with an alternate juror, the defendant
has failed to show prejudice. There is no evidence that participation by the discharged juror
would have changed the jury verdict, or that the juror who took his place was prejudiced
against the defendant. Accordingly, we find no merit to the defendant's arguments on this
Third, the defendant avers that the trial court erred in conducting discussions
with counsel regarding jury instructions while the defendant was not present. The record
shows that in the defendant's absence, a discussion was held between counsel and the trial
court in which defendant's counsel agreed to the court's general charge and the State's
proposed instructions one, two, and four; the trial court overruled the defense objection to
State's proposed instruction three; and State's instruction five was considered.See footnote 6
prosecutor, at that point, reminded the trial court that the defendant was not present, and the
discussion was suspended until the defendant arrived. The trial court then summarized what
had occurred in the defendant's absence.See footnote 7
The defendant now argues that his absence at a
critical stage in the proceedings mandates a reversal of his conviction under State v.
Hamilton, 184 W.Va. 722, 403 S.E.2d 739 (1991), where this Court reversed the defendant's
conviction because he was not present during jury selection even though a record was made
of those proceedings. The defendant asserts that the discussion of the jury instructions was
important, and that he may have had meaningful input.
We have held that,
The defendant has a right under Article III, Section 14 of the West Virginia Constitution to be present at all critical stages in the criminal proceeding; and when he is not, the State is required to prove beyond a reasonable doubt that what transpired in his absence was harmless.
Syllabus Point 6, State v. Boyd, 160 W.Va. 234, 233 S.E.2d 710 (1977). This right to be present arises from and is implicit in the fundamental right to confront one's accusers[.]
State v. Eden, 163 W.Va. 370, 375, 256 S.E.2d 868, 871 (1979). In addition, W.Va. Code
§ 62-3-2 (1923) provides, in part, that [a] person indicted for felony shall be personally
present during the trial therefor. Finally, Rule 43(a) of the West Virginia Rules of Criminal
Procedure mandates that [t]he defendant shall be present at the arraignment, at the time of
the plea, at every stage of the trial including the impaneling of the jury and the return of the
verdict, and at the imposition of sentence, except as otherwise provided by this rule.
This Court recently clarified that [t]he right to be present is not a right to be
present at every moment, but a right to be present at all 'critical stages' in a criminal
proceeding. State v. Shabazz, 206 W.Va. 555, 557, 526 S.E.2d 521, 523 (1999), cert.
denied, Shabazz v. West Virginia, 529 U.S. 1113, 120 S.Ct. 1971, 146 L.Ed.2d 801 (2000).
A critical stage of a criminal proceeding is where the defendant's right to a fair trial will be
affected. Syllabus Point 2, State v. Tiller, 168 W.Va. 522, 285 S.E.2d 371 (1981). Further,
the right to be present at trial may be waived. We stated in Syllabus Point 7, in part, of State
ex rel. Grob v. Blair, 158 W.Va. 647, 214 S.E.2d 330 (1975):
Insofar as the decision in State ex rel. Boner v. Boles, [148 W.Va. 802, 137 S.E.2d 418 (1964)] . . . held that the common law/statutory right of presence is inalienable and cannot be waived, such decisions are disapproved; an accused, by declaration and conduct, may waive a fundamental right protected by the Constitution if it is demonstrated that such waiver was made knowingly and intelligently.
As noted above, we also have recognized that the requirement that the
defendant be present at all critical stages of the trial is subject to the harmless error test. See
State v. Boyd, 160 W.Va. at 247, 233 S.E.2d at 719. Consequently, there are two defenses
available when it is claimed that the accused's absence creates reversible error. The first is
that the absence occurred at a non-critical stage of the criminal proceeding. The second is
that even if at a critical stage, it was harmless error. State v. Boyd, id. Of course, the State
also may show that the defendant knowingly and intelligently waived his right to be present.
Boyd also provides that the State has the burden of proving its defenses beyond a reasonable
In order to rebut the defendant's claim of reversible error in the instant case, the State responds that the defendant's absence during several minutes of the instruction conference was harmless error, and that the defendant signed a Notice of Requirement to be Present at Hearings in which he expressly waived his right to be present at any stage of the trial. To support its harmless error claim, the State argues that nothing occurred during the portion of the instructions conference during which the defendant was absent that could have affected the outcome of the trial. Further, the State asserts that any harm caused by the defendant's absence was cured by the fact that, upon the defendant's arrival, the trial court summarized for the defendant what occurred in his absence.
We agree with the State that the defendant's absence at the beginning of the discussion concerning jury instructions amounted to harmless error.See footnote 8 8 The record indicates that the trial court succinctly summarized for the defendant what occurred in his absence. This gave the defendant an opportunity to address the proposed jury instructions which were discussed prior to his arrival. In fact, the transcript shows that the defendant expressly concurred with the withdrawal of State's instruction five because of his desire not to pursue a verdict of lesser included offenses. Of the remaining instructions discussed in the defendant's absence, only instruction three was objected to by defense counsel, and this instruction has not been assigned as error on appeal. Further, according to Rule of Criminal Procedure 43(c)(3), a defendant need not be present at a conference or argument upon a technical question of law. The transcript indicates that the discussion of the instructions during the defendant's absence concerned questions of law and not questions of fact that would be within the knowledge of the defendant. Finally, the circumstances of this case are distinguishable from those in State v. Hamilton, supra, relied upon by the defendant. In Hamilton, the defendant was not present during any of the jury selection, whereas in the instant case, the defendant was absent from the instructions conference only briefly, and the proceedings which occurred in his absence were summarized when he arrived. Therefore, we find that the State has met its burden of proving beyond a reasonable doubt that the defendant's absence from the instructions conference did not prejudice the defendant or affect the outcome of the trial, and thus did not constitute reversible error.See footnote 9 9
Fourth, the defendant asserts that the trial court abused its discretion in denying his motion to continue the trial. According to the defendant, more time was needed for his gunshot residue expert to replicate the tests performed by the State on the defendant's vehicle. The State's gunshot tests on the defendant's vehicle, conducted approximately two to three weeks after the murders, were negative for the presence of any gunshot residue in the vehicle's interior. The State's explanation for this at trial was that gunshot residue can be easily transferred from one surface to another, washed off, blown away, or diminished to the point of non-detection. The defendant sought to counter the State's explanation with the testimony of his own expert witness to show that if the defendant had fired the gun which killed the victims and then driven from the crime scene in his own vehicle, as alleged by the State, gunshot residue would have been present in the interior of the defendant's vehicle. The defendant now avers that the trial court's failure to allow additional time for his expert to complete his testing constituted prejudicial error.
The trial transcript reveals that in a February 5, 1999 pre-trial hearing, the
defendant moved for a continuance of the February 22, 1999 trial date. One of the stated
reasons for the motion was that the defendant had received the murder weapon only a week
prior to the hearing. After listening to the arguments of counsel, the trial court denied the
motion to continue at this time. However, another pre-trial hearing occurred on February
19, 1999 at which time the defendant clearly moved to withdraw his motion to continue the
Evidence presented by the defendant at trial indicates that the defendant's
gunshot residue expert received the murder weapon on January 28, 1999, and performed his
first test on February 11, 1999. Essentially, the expert fired the murder weapon eight times,
then drove his vehicle for ten minutes. Three samples were then collected from the vehicle's
interior and tested for gunshot residue. Numerous particles of gunshot residue were
identified on each of the three samples. The expert reported these results to the defendant
on February 16, at which time it was decided that additional testing would be done. On
February 18, additional testing was conducted and gunshot residue was again identified on
each of three samples. The results of both tests were presented at trial.
A motion for continuance is addressed to the sound discretion of the trial
court, and its ruling will not be disturbed on appeal unless there is a showing that there has
been an abuse of discretion. Syllabus Point 2, State v. Bush, 163 W.Va. 168, 255 S.E.2d
539 (1979). Further, [w]hether there has been an abuse of discretion in denying a
continuance must be decided on a case-by-case basis in light of the factual circumstances
presented, particularly the reasons for the continuance that were presented to the trial court
at the time the request was denied. Syllabus Point 3, State v. Bush, id. In the instant case,
however, the defendant not only did not object to the denial of his motion to continue but
withdrew the motion at the February 19 conference. Therefore, in order to prevail on this
issue, the defendant must show that he was prejudiced by the denial of his February 5 motion
to continue. This the defendant is unable to do.
In his written motion to continue submitted to the trial court on approximately
February 3, 1999, the defendant listed eight grounds for the motion, three of which are
specific and worth consideration by this Court. The first is that the defendant's expert's lab
reports were not complete due to late production of the murder weapon by the State. As
noted above, the defense expert's tests were completed and submitted to the defendant by the
time of trial, and this evidence was presented at trial. Second, the defendant claimed that the
interviewing of three witnesses, Terry Michael Mount, Erica Oblinger, and Daniel Gosnay
were not complete. The transcript shows that Terry Michael Mount and Daniel Gosnay
testified at the trial and were thoroughly questioned by the defendant. Erica Oblinger was
not called as a witness by either the State or the defendant. Finally, the defendant claimed
that he needed more time to review the State's audio of the crime scene. The hearing on
defendant's motion to continue was held on February 5, which was 17 days prior to the trial
date. The Court is confident that the defendant had the opportunity to review this evidence
during that period. Finally, the fact that the defendant withdrew his motion to continue three
days prior to trial indicates to us that he was confident at that time of his preparation for trial.
Under these circumstances, we are unable to conclude that the trial court abused its
discretion, much less that the defendant was prejudiced by plain error.
The fifth assignment of error raised by the defendant is that the trial court erred
by going off the record at least nine times during the trial. The defendant lists nine
instances in which it is noted in the trial transcript that discussions were held between the
trial court and counsel which were not recorded by the court reporter. The defendant argues
that several of the matters discussed off the record involved serious issues or unknown
discussions and that the cumulative effect of this error should operate to infer prejudice to
W.Va. Code § 51-7-1 (1923) authorizes the circuit courts of the State to
appoint competent reporters to take and report the proceedings of these courts. Under the
provisions of W.Va. Code, 51-7-1 and -2, all proceedings in the criminal trial are required
to be reported; however, the failure to report all of the proceedings may not in all instances
constitute reversible error. Syllabus Point 5, State v. Bolling, 162 W.Va. 103, 246 S.E.2d
631 (1978). Whether failure to report constitutes reversible error or not cannot be
determined by a mechanistic rule, but must depend on the facts of each case. State v.
Messinger, 163 W.Va. 447, 453, 256 S.E.2d 587, 590 (1979). Recently, in Syllabus Point
8 of State v. Graham, ___ W.Va. ___, 541 S.E.2d 341 (2000), we held that [o]missions from
a trial transcript warrant a new trial only if the missing portion of the transcript specifically
prejudices a defendant's appeal.
Our review of the nine instances listed by the defendant wherein the trial court
went off the record reveals the following. The first unrecorded instance, the defendant
concedes, was simply a discussion with counsel whether to recess for the day. In the second
instance, it appears that the trial court went off the record to have the court reporter read a
previous portion of the transcript, after which an in-depth discussion of the objection
continued on the record. The third and fourth instances do not appear to concern objections.
The fifth instance appears to concern an objection by the prosecutor that defense counsel had
asked the same question of a State's witness three times. The sixth and seventh instances do
not appear to concern objections. The eighth instance appears to concern a defense objection
to the elicited alleged double hearsay testimony of Trooper Divita, a State's witness, on direct
examination. The ninth instance concerns the substitution of the juror to which the defense
specifically stated that he had no objection.
We conclude from this review that the defendant's appeal was not specifically prejudiced by any of these off the record discussions. Only one of these discussions relates to an issue raised on appeal, the dismissal of the tardy juror, which was not objected to by the defendant and which we have already determined was not error. Also, defense counsel never objected to any of the off the record conferences, and never attempted to vouch the record.
Finally, the defendant is unable to articulate specific prejudice to his appeal but rather urges
infer prejudice from the off the record discussions. This we decline to do.
Next, the defendant avers that the trial court erred in denying his motion to hire a jury specialist at public expense. According to the defendant, a jury specialist was reasonably necessary to his development of the relevant issues in the case in order to provide research and statistical data useful in the jury selection process. Further, says the defendant, the trial court did not set forth its reason for denying the motion in violation of State ex rel. Foster v. Luff, 164 W.Va. 413, 264 S.E.2d 477 (1980).
W.Va. Code § 29-21-13a(e) (1997) provides that court-appointed attorneys
shall be reimbursed for [a]ctual and necessary expenses incurred in providing legal
representation for proceedings of any kind involving felonies for which a penalty of life
imprisonment may be imposed, including, but not limited to, expenses for travel, transcripts,
contracted investigative services and expert witnesses[.] We held in Syllabus Point 1 of State ex rel. Foster v. Luff, supra:
Upon request for additional expert fees under [W.Va. Code § 29-21-13a(e)]:See footnote 10 10 (1) the request should be made in writing; (2) the request should detail why the expert is needed; (3) defense counsel should be permitted an opportunity to elaborate on the motion; and (4) in denying the motion, the trial judge should place in the record the specific reasons for his ruling. (Footnote added).
By written motion filed on November 2, 1998, the defendant's court-appointed counsel requested that he be allowed to hire a jury specialist at State expense because this case is a murder case in which the defendant faces a possible life sentence. In a January 11, 1999 hearing, defense counsel supported his written motion by stating that he had previously hired a jury specialist and the results were excellent. After the State argued against the motion, the trial court stated I'm going to deny that at this time.
We find no merit to this assignment of error. The defendant completely failed
to present any facts, particular to this case, which justified the hiring of a jury specialist.
Instead, defense counsel merely opined that this was a murder case where a life sentence was
possible, and that he had retained a specialist in a previous case with excellent results. This
is plainly insufficient detail under Luff to support reimbursement for a jury specialist. In
addition, because defense counsel failed to specify his reasons for requesting a jury specialist,
any error by the trial court in failing to specify its reasons for denying the motion would be
The defendant next posits that the trial court erred in denying his motion for
a jury view of the crime scene. According to the defendant, Matthew Fortner's eyewitness
testimony of the murders described the relative positions of Fortner and the defendant when
Ron Davis was shot at the door, and that evidence of spent shell casings indicate that the shot
may have been fired from where Fortner was standing. Also, a neighbor testified about
hearing a gunshot, and a jury view would have aided the jury in assessing the validity of the
testimony. Finally, the videotape of the scene presented at trial did not show the decedent's
body and its relation to the front door.
Concerning our standard of reviewing this issue, this Court has held that [a] motion for a jury view lies peculiarly within the discretion of the trial court, and, unless the denial of such view works probable injury to the moving party, the ruling will not be disturbed. Syllabus Point 1, Collar v. McMullin, 107 W.Va. 440, 148 S.E. 496 (1929).
At the February 5, 1999 hearing, defense counsel supported his motion for a
view of the crime scene by stating:
Although [the house] was burned partially,See footnote 11 11 there's enough of it left for the jury to get an idea of where things were at the time the police entered the crime scene . . . .
* * *
To see the crime scene, Your Honor, will reveal
much as to -- I don't want to speak too much today. I
don't want to divulge too much of the defense's case.
But it would show the jury an enormous amount about
what was going on in that house at the time and prior to
the arson of it. (Footnote added).
In response, the State argued that the crime scene was not the same as at the time of the murders due to the subsequent arson; the damage to the crime scene rendered it dangerous, i.e., someone could fall through the floor; photographs and a videotape of the crime scene would enable the jury to visualize the scene; the scene was an hour's bus ride away; and the jurors would have to walk up a steep driveway. The trial court concluded that the defendant made an insufficient showing of need for a view of the crime scene.
The trial court was correct. Defense counsel offered no specific reasons below
to support his motion for a view of the scene while the State offered several legitimate
reasons in opposition. Although on appeal the defendant offers two pieces of testimony in
support of the need for a view, the trial court was never given the opportunity to consider this
evidence. Further, while the defendant now complains that the videotape of the crime scene
did not show Ronald Davis's body and its location relative to the front door, it was the
defendant who moved below for the redaction from the videotape of the victims' bodies.
Accordingly, we conclude that the denial of the crime scene view did not work probable
injury to the defendant.
In his ninth assignment of error, the defendant claims that the trial court erred
in deviating from the alternate juror selection procedure set forth in Rule 24(c) of the West
Virginia Rules of Criminal Procedure and by granting both sides additional peremptory
challenges to the potential alternate jurors.
The trial court initially identified 26 acceptable jurors after voir dire. The trial court then instructed its clerk to randomly choose six jurors to constitute the pool of potential alternates. The clerk chose jurors 10 through 15. The State was then allowed to strike two jurors from the pool of twenty potential regular jurors and two jurors from the pool of six potential alternate jurors. Defense Counsel was then permitted to strike six jurors from the pool of potential regular jurors, leaving 12, and two jurors from the pool of alternate jurors, leaving two.
On appeal, the defendant argues that a clerk should not be allowed to choose potential alternate jurors because he or she could choose jurors believed to be hostile to the outcome desired by the clerk and diminish the chance that those jurors would participate in deliberations. Second, the defendant avers that Rule of Criminal Procedure 24(c) provides that each side has only one peremptory challenge, not two.See footnote 12 12
The defendant did not object below to the trial court's method of choosing the jury panel, and, under a plain error analysis, we find that no prejudice resulted to the defendant. First, the defendant makes no claim of prejudice. While the defendant raises the concern that a biased clerk could selectively choose alternate jurors, he does not contend that this occurred below. Also, we are aware of no statute, rule, or case law indicating that the trial court's method of choosing jurors was error. Finally, the additional peremptory strike, which resulted in two alternate jurors rather than four, caused no prejudice because only one alternate juror ended up on the twelve-juror panel.
Next, the 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. In support of this argument, the defendant cites Rule 3.3(a)(4) of the Rules of Professional Conduct which provides that [a] lawyer shall not knowingly . . . offer evidence that the lawyer knows to be false. 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. Also, the defendant asserts that the prosecuting attorney owed the defendant a more thorough investigation of Matthew Fortner before accepting his version of the facts, and notes that no testing was done on Fortner's vehicle. The defendant clarifies, however, that he is not accusing the prosecuting attorney of any knowing impropriety.
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 Matthew Fortner and other 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.
This Court has recognized that [a]n appellate court must . . . credit all . . .
credibility assessments that the jury might have drawn in favor of the prosecution. . . .
Credibility determinations are for a jury and not an appellate court. Syllabus Point 3, in
part, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995). 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.
As his tenth assignment of error, the defendant claims that his sentence should
be vacated and remanded for a presentence investigation and report, a full opportunity for
allocution, and resentencing.
The defendant's trial and sentencing was bifurcated in accordance with State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996).See footnote 13 13 At the bifurcated LaRock hearing, which occurred five days after the jury reached its guilty verdict, the defendant initially waived a presentence investigation and report, but later reversed himself. The trial court at first agreed that the defendant had a right to an investigation and report, but ultimately determined that no such investigation was needed. The trial court reasoned that a bifurcated LaRock hearing was sufficient for sentencing, adding, I don't understand what a [presentence investigation] could add to a sentencing hearing. At the bifurcated hearing, 11 witnesses testified on behalf of the defendant and seven witnesses testified for the State. Counsel for both sides made opening statements and closing arguments.
On appeal, the defendant contends that the trial court's determination that the LaRock hearing satisfied the requirements of Rule of Criminal Procedure 32 was error. He also avers that he was prejudiced because if his sentences were concurrent instead of consecutive, he would be eligible for parole in fifteen years rather than thirty. The State responds that a presentence investigation is not necessary where there has been a bifurcated sentencing hearing, pursuant to LaRock, because at the close of the bifurcated hearing the trial court has all of the necessary information in order to sentence the defendant.
This issue is governed by Rule 32 of the West Virginia Rules of Criminal
Procedure which provides, in relevant part:
(b) Presentence investigation and report. -- (1) When made. -- The probation officer shall make a presentence investigation and submit a report to the court before the sentence is imposed, unless:
(A) the defendant waives a presentence investigation and report;
(B) the court finds that the information in the record enables it to meaningfully exercise its sentencing authority; and
(C) the court explains on the record its finding that the information in the record enables it to meaningfully exercise its sentencing authority.
It is undisputed that a presentence report is mandatory under Rule 32 unless the three factors listed in (A), (B), and (C) are all present. While (B) and (C) were present below, in that the trial court found that the evidence adduced at the bifurcated hearing enabled it to meaningfully exercise its sentencing authority and explained this on the record, it is uncontested that the defendant did not waive a presentence investigation and report. We recently recognized that [t]he West Virginia Rules of Criminal Procedure are the paramount authority controlling criminal proceedings before the circuit courts of this jurisdiction[.] Syllabus Point 5, in part, State v. Wallace, 205 W.Va. 155, 517 S.E.2d 20 (1999). Because of the unambiguous nature of Rule 32, we decline to adopt the State's position that a presentence investigation and report are not necessary when the defendant receives a bifurcated sentencing hearing. Therefore, we conclude that a presentence investigation and report were required by Rule 32 prior to the defendant's sentencing.
Even though the defendant did not specifically object below to this error, we find that the failure to prepare a presentence report constitutes plain error that resulted in prejudice to the defendant. As noted above, the defendant's sentence of consecutive life terms means that he would not be eligible for parole for thirty years, whereas a sentence of concurrent life sentences would result in parole eligibility after fifteen years. Therefore, a presentence investigation and report could result in a significant change in the defendant's sentence. Accordingly, because the trial court failed to properly apply Rule 32, and this failure may have adversely affected the defendant's sentence, we reverse the defendant's sentence and remand for the preparation of a presentence report in accordance with Rule 32 and a new sentencing hearing.See footnote 14 14
Last, the defendant urges this Court to reverse his convictions under the cumulative error doctrine. According to the defendant, this case is particularly ripe for use of the doctrine because of the weak nature of the evidence against him. For example, Michael Fortner testified against the defendant after receiving a plea bargain granting him mercy on one first degree murder charge. Joey France escaped prosecution for breaking and entering to testify against the defendant. Also, he owned the murder weapon and his palm print was the only print found on the weapon. In addition, Michael Mount was given immunity for breaking and entering in exchange for testifying against the defendant. Finally, none of the testimony was corroborated by scientific evidence.
In Syllabus Point 5 of State v. Smith, 156 W.Va. 385, 193 S.E.2d 550 (1972), this Court held that [w]here the record of a criminal trial shows that the cumulative effect of numerous errors committed during the trial prevented the defendant from receiving a fair trial, his conviction should be set aside, even though any one of such errors standing alone would be harmless error.
We have heretofore determined that allowing a thirteenth juror to attend jury deliberations; the defendant's absence from a discussion concerning jury instructions; the trial court's off the record discussions with counsel; and permitting counsel of both sides an additional peremptory strike of potential alternate jurors constituted harmless error. We believe that these errors, when viewed in the context of the entire trial below and the evidence adduced, were not numerous and did not prevent the defendant from receiving a fair trial. Accordingly, we affirm the defendant's conviction of two counts of first degree murder with mercy.
For the reasons stated above, we affirm the defendant's conviction of two
counts of first degree murder with mercy. However, we reverse his sentence of consecutive
life terms and remand for the preparation of a presentence report, in accordance with Rule
32 of the West Virginia Rules of Criminal Procedure, and a new sentencing hearing.
Affirmed in part, reversed in part, and remanded.
it may be inferred that a person intends that which is the
natural and probable consequences of his own act; and
that if one voluntarily and willfully does an act, the direct
and natural tendency of which is to injure another it may
be inferred that the injury of the other person was
State's instruction number three explained that an aider and abettor, and a principal in the second degree, may be criminally liable for the criminal act as if he were the absolute perpetrator of the crime. State's instruction number four described in more detail the felony- murder rule. Finally, the State withdrew its instruction number five, concerning lesser included offenses, after the defendant decided on an all or nothing strategy, i.e., the only two choices provided to the jury would be a finding of guilty of first-degree murder or not guilty.
All right. So, let's run though [sic] these again. You have no objection to [State's] 1, no objection to the State's charge -- or to the Court's charge, no objection to State's 2. You object to State's 3, but I'm going to give it over your objection. And no objection to State's 4. You objected to State's 5 because it offered lesser included offenses?