Darrell V. McGraw, Jr.
Attorney General Jack L. Hickok
Kimberly Stitzinger Jones WV Public Defender Services
Assistant Attorney General Charleston, West Virginia
Charleston, West Virginia Attorneys for the Appellant
Attorneys for the Appellee
The Opinion of the Court was delivered PER CURIAM.
Shawna James (hereinafter Appellant)
appeals from an order of the Circuit Court of Kanawha County entered September
25, 2000, which denied her motion seeking a new trial in connection with her
conviction for malicious assault in 1998. Appellant asserts that the trial
court erred in giving an instruction which Appellant asserts is a version
of the so-called missing witness instruction. After a careful
review of the record, the parties' briefs and arguments, and the applicable
law, we affirm for the reasons that follow.
Appellant was indicted for the altercation by a
grand jury on February 18, 1997. At trial before a Kanawha County jury, Mark
Bolin, a bouncer at the bar who witnessed at least a part of the fight, stated
that Ms. Ferguson was trying to block Appellant's punches and Appellant was
doing the majority of the fighting. He further stated that Appellant stabbed
Ms. Ferguson repeatedly with a broken bottle. There was conflicting testimony
regarding whether Appellant's cousin held Ms. Ferguson's arms behind her back
while Appellant cut Ms. Ferguson. Appellant's cousin was also indicted as
a co-defendant but not tried with Appellant or called as a witness in her
footnote 4) Appellant did testify in her trial. She claimed
that she fought Ms. Ferguson in self defense and denied that she hit or cut
Ms. Ferguson with a bottle.
In his opening statement, counsel for Appellant
called attention to the likelihood that the State would only call a few of
the persons present at the fight, although
perhaps 175 people were in the bar and at least 20 or more in the immediate
area where the fight occurred. The State responded by requesting that the charge
to the jury include the instruction which is at issue here. The State offered
to withdraw the requested instruction if defense counsel would agree not to
raise the question of missing witnesses in his closing argument. Counsel declined
to give that assurance, and the trial court included the requested instruction
in its charge to the jury. The instruction at issue reads as follows: The
State and the defendant both have the authority to subpoena witnesses to trial.
If there is a witness the defendant believes would be helpful to her case, she
may subpoena that witness if the State does not. Defense counsel did address
the failure of the State to call additional witnesses in his closing argument,
and the State responded in rebuttal that the defense had the right to subpoena
any witness it wished, as the trial court had instructed the jury.
The jury found Appellant guilty of malicious assault
on June 16,1998, and she was incarcerated forthwith by reason of the violent
nature of the offense. Appellant filed a timely motion for new trial, asserting
that the instruction given constituted reversible error and that the evidence
was insufficient to support the jury's verdict.
(See footnote 5)
On October 16, 1998, the trial court heard argument
on the motion for new trial and considered matters relating to the appropriate
sentence. By order entered October 19, 1998, the court deferred its ruling on the motion for a new trial, continued
the case to December 18, 1998, and placed Appellant on supervised release.
By order entered November 30, 1998, the court ordered the arrest of Appellant
after the State filed a petition alleging violation of the conditions attached
to Appellant's supervised release. Ultimately, the circuit court suspended
the imposition of sentence and released Appellant on three years probation,
effective on the date of the order, February 1, 1999.
Subsequently, Appellant was charged with and admitted
violating the terms of her probation, and the trial court, by order entered
June 23, 1999, committed Appellant to the Department of Corrections for a
sixty-day diagnostic evaluation at Pruntytown. After receiving the report
of that evaluation, the circuit court, by order entered December 2, 1999,
revoked Appellant's probation and sentenced her to the penitentiary for a
term of two-to-ten years, with 418 days of credit for time served in jail
awaiting trial and conviction.
The trial court failed to address the merits of
Appellant's pending motion for a new trial in any of its post-conviction orders.
By letter dated September 1, 2000, Appellant's counsel wrote to the trial
judge and requested a hearing on the motion for new trial, specifically regarding
the jury instruction at issue here. Counsel asserted that there had been no
ruling on the instruction issue, although it had been discussed on the record
several times. In response, the circuit court held a hearing on the motion
for a new trial September 13, 2000, and denied it by order entered September 25, 2000. Appellant now
appeals that order.
(See footnote 6)
This Court addressed the use of missing witness
instructions in the context of civil cases in McGlone v. Superior Trucking
Co., Inc., 178 W.Va. 659, 363 S.E.2d 736 (1987). In McGlone, we
departed from versions of the instruction previously approved.
(See footnote 7)
McGlone made clear that no presumption arises from the
failure to call a witness, that the instruction, if used, could not direct
the jury to draw an adverse inference from the failure to call a witness,
and that the use of such an instruction in criminal cases did in fact raise
serious constitutional problems. We cautiously approved a non-binding instruction
in McGlone for use in appropriate civil cases based upon this principle
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.
Id. at 661, 363 S.E.2d at 738, syl. pt. 3, in part.
We agree with the State's assertion that the instruction
given does not contain all of the elements of the missing witness instruction
approved in McGlone. In fact, the instruction given neither directs,
nor expressly permits, the jury to draw an inference that the testimony of
a so-called missing witness would have been adverse to the party who failed
to call that potential witness. Appellant maintains, however, that the absence
of the presumption or inference portion of the instruction does not cure the
ill effects of the instruction. Specifically, Appellant argues that the failure
of the instruction to inform the jury what use they might make of the fact
that the defense could have summoned witnesses merely compounds the error
inherent in the instruction by permitting the jury to draw unknown and perhaps
unwarranted conclusions. Appellant argues that the potential for the jury
to draw unwarranted conclusions under the instruction was particularly egregious
in the instant case. Recalling that her cousin was an indicted co-defendant
likely to assert her privilege against self-incrimination if summoned to testify
in this case, Appellant expressed concern that the jury would draw an unwarranted
conclusion adverse to Appellant from the failure to summon the cousin, rather
than recognize that the cousin's right to exercise her self-incrimination
privilege was a matter completely beyond Appellant's control.
Appellant also argues that the instruction is, in essence,
a comment by the judge on the evidence; that it undermines the presumption of
innocence which remains with a criminal defendant until the jury's verdict is
footnote 8) and that the instruction suggests to the jury
that a criminal defendant has an obligation to offer testimonial evidence. With
respect to these arguments, we note that the use of missing witness instructions
in criminal cases has been expressly disapproved by other states. In Russell
v. Commonwealth, 216 Va. 833, 223 S.E.2d 877 (1976), Virginia's highest
court reasoned as follows:
[U]se of the [missing witness] instruction against the defense would run head on into the presumption of innocence to which every accused is entitled and upon which juries are universally instructed. The burden is upon the prosecution to prove its case against the accused. The defense need not prove anything; it may rely upon the presumption of innocence. To tell a jury that the failure of the defense to call a material witness raises an adverse presumption against the accused is to weaken, if not neutralize, the presumption of innocence which, if given its full strength, might be sufficient to tip the scales in favor of acquittal.
Id. at 837, 223 S.E.2d at 879. See also, State v. Malave, 737 A.2d 442 (Conn. 1999); State v. Tahir, 772 A.2d 1079 (Vt. 2001).
If the instruction in this case had been a pure
missing witness instruction, permitting the jury to draw an adverse inference
from the failure to call a witness, we likely would have found the Russell,
Malave and Tahir cases highly persuasive. However, since the instruction
before us lacks the full breadth of the usual missing witness instruction, we
must now examine the precise extent and character of the instruction
under consideration to determine if, in the context of the entire jury charge,
the instruction given constitutes prejudicial error under the abuse of discretion
standard set forth in Guthrie. 194 W.Va. at 664, 461 S.E.2d at 170, syl.
The first sentence of the subject instruction, [t]he
State and the defendant both have the authority to subpoena witnesses to trial,
is factually and legally correct and is a balanced statement of the rights
of the State and the defense, although it is abstract and does potentially
draw attention to whether or not a criminal defendant will call or has called
witnesses and offered testimony. While it may be said to be neither erroneous
nor prejudicial as a part of general, introductory instructions given at the
beginning of a trial or the beginning of a charge, the quoted language nevertheless
raises the constitutional concerns we noted in McGlone and our sister
states noted in Russell, Malave and Tahir. Further, it appears
to serve no useful purpose in the overall scheme of a criminal trial.
The second sentence of the instruction presents a more
difficult problem. That sentence reads as follows: If there is a witness
the defendant believes would be helpful to her case, she may subpoena that witness
if the State does not. While that sentence is also factually and legally
correct, we find the language employed wholly inappropriate under the circumstances.
First, there is a difference between being able
to issue a subpoena and actually procuring the attendance of a witness at
trial. As argued by Appellant, factors beyond a defendant's control may render
certain witnesses unavailable or probably unavailable, as in the case of her
co-defendant. Indeed, a proper missing witness instruction in a civil case
requires a showing that the alleged missing witness was also available
to be called. Moreover, the instruction given singles out the conduct of the
defendant, the Appellant here. It may be fairly said to amount to a comment
by the trial court on Appellant's evidence or the lack of evidence offered
by her. Appellant persuasively argues that the effect of the presiding judge
giving such an instruction likely has a far more substantial impact on the
jury than would a similar comment offered in argument by the prosecuting attorney.
We also agree with Appellant that the instruction invites the jury to speculate
as to why a witness was not called and to speculate on the possible effect
of that witness's testimony on the case. Moreover, the instruction tends to
suggest that Appellant had some obligation to produce witnesses to prove or tend to prove her innocence. We conclude that the
instruction, taken as a whole, was inappropriate.
The next question is whether the instruction, in
light of the entire charge to the jury, constitutes prejudicial error in the
circumstances of this case. As we have said in Guthrie,
Jury instructions are reviewed by determining whether the charge, reviewed as a whole, sufficiently instructed the jury so they understood the issues involved and were not mislead by the law. A jury instruction cannot be dissected on appeal; instead, the entire instruction is looked at when determining its accuracy. A trial court, therefore, has broad discretion in formulating its charge to the jury, so long as the charge accurately reflects the law. Deference is given to a trial court's discretion concerning the specific wording of the instruction, and the precise extent and character of any specific instruction will be reviewed only for an abuse of discretion.
194 W.Va. at 663-64, 461 S.E.2d at 169-70, syl. pt. 4, in part.
Having carefully reviewed the charge in its entirety,
this Court believes that the jury was fully and fairly instructed on the law
applicable to the case. Included in the charge was a full explanation of a
criminal defendant's rights, including the presumption of innocence and the
burden of the State to prove each and every element of guilt beyond a reasonable doubt.
(See footnote 9) Even the instruction complained of included
a reference to the power of the State, along with the right of the defendant,
to have compulsory process for the production of witnesses. Moreover, Appellant's
counsel retained and exercised full freedom to argue to the jury the effect
of the State having failed to call additional witnesses who might have confirmed
or challenged the State's version of the events at issue in the trial. We
cannot conclude that the trial court abused its discretion by including the
two-sentence instruction complained of within the body of an otherwise unexceptional
and non-prejudicial charge.
While we strongly suggest that the instruction at
issue here not be given in the future, we also give respectful deference to
the trial court's discretion in formulating the whole charge. Accordingly,
finding no prejudicial error, we affirm the judgment of conviction entered
by the Circuit Court of Kanawha County.
romantically involved with the same man. Ms. Ferguson denied that this man was the reason why she confronted Appellant on June 13, 1996.