JUSTICE WORKMAN delivered the Opinion of the Court.
JUSTICE KETCHUM dissents and reserves the right to file a dissenting opinion.
This case is before the Court upon an Order of the Circuit Court of Greenbrier County, West Virginia, certifying questions concerning the upcoming retrial of the mercy phase of the Defendant's, (See footnote 1) Billy Ray McLaughlin's, first degree murder case. After examining the briefs submitted, (See footnote 2) hearing oral arguments and reviewing the relevant law, the Court has reformulated the questions with answers as explained in detail below. (See footnote 3)
On August 28, 1998, the Defendant filed a petition for writ of habeas corpus
in Fayette County, West Virginia, which was transferred to Greenbrier County. (See footnote 7) In his habeas
petition, the Defendant alleged that he was denied his right to due process when the trial
court erroneously instructed the jury that if it recommended mercy, he would be eligible for
parole in ten years when, in fact, he would be required to serve fifteen years before becoming
eligible for parole. Based upon State v. Doman, 204 W. Va. 289, 512 S.E.2d 211 (1998)(per
curiam), (See footnote 8) the circuit court agreed that the instruction was erroneous and granted habeas relief
to the Defendant in the form of a new trial solely on the issue of whether he should receive
a recommendation of mercy.
The Defendant appealed the circuit court's habeas decision to this Court, arguing that he should be granted a new trial on all issues. The appeal was refused. The Defendant then filed a Petition for Writ of Certiorari to the United States Supreme Court, which was denied on February 21, 2006. See McLauglin v. McBride, 546 U.S. 1186 (2006).
During the pretrial proceedings for the retrial of the mercy phase, the trial court certified three questions regarding the retrial. (See footnote 9) The questions posed by the trial court are as follows:
Question 1: Whether or not Chapter 62 Article 3 section 15 of the West Virginia Code unconstitutionally shifts the burden of persuasion on the issue of mercy to the defendant in the penalty phase of a case?
Answer: [Y]es, if the language of the statute permits the burden of proving mercy to shift to the Defendant or permits less than a unanimous verdict of the jury on the issue of mercy.
Question 2: Is it required that the jury, which determined guilt, be the same jury that determines the issue of mercy in a first degree murder case given the language of W. Va. Code 62-3-15 that provides: if the jury find in their verdict that . . . [the accused] is guilty of murder in the first degree . . . the jury may, in their discretion, recommend mercy, and if such recommendation is added to their verdict, such a person shall be eligible for parole[.]?
Question 3: Is the prosecution limited in the mercy stage of a bifurcated trial to the presentation of evidence introduced in the guilt stage of trial and rebuttal of evidence presented by the defendant?
Answer: This Court finds that the answer to this question depends in part on the determination on how the first two questions are answered. With respect to Question 3, it is this Court's position that since the burden is on the State, (based on the answer to Question 1), the State would be required to present its case first.
[i]n State v. LaRock, 196 W. Va. 294, 470 S.E.2d 613 (1996), our Supreme Court indicated the (mercy) statute was unconstitutional, and they did so because they said insofar as the statute-and they quote it-shifts to a defendant, the burden of disproving a material element of the State's case, in violation of the due process clauses found in Article 3, Section 10, of the Constitution of West Virginia, and the 14th Amendment of the United States Constitution, that individual provision, severed from the remainder of the statute, is unconstitutional and unenforceable. Justice Davis in that case goes on to summarize due process, stating the due process requirement places on the defendant no burden of proving mitigation, excuse, or justification in a First Degree Murder Case.
The trial court's reliance upon LaRock in reaching its answer that the provisions of West Virginia Code § 62-3-15 unconstitutionally shifts the burden of proof to the defendant is misplaced. Significantly, in LaRock, which was authored by Justice Cleckley, not Justice Davis, there is absolutely no discussion or suggestion that the provisions of West Virginia Code § 62-3-15 are unconstitutional because the statute shifts the burden of disproving a material element of the State's case to the defendant as the trial court found in the case sub judice. Rather, in LaRock, the issue before the Court was whether the consolidation of both the guilt and sentencing phases effectively denied the defendant a fair trial. 196 W. Va. at 313, 470 S.E.2d at 632. The defendant argued that the statute should be construed to permit discretionary bifurcation. Id. This Court agreed, holding that [a] trial court has discretionary authority to bifurcate a trial and sentencing in any case where a jury is required to make a finding as to mercy. 196 W. Va. at 299, 470 S.E.2d at 618, Syl. Pt. 4.
Subsequent to LaRock, in State v. Rygh, 206 W. Va. 295, 524 S.E.2d 447 (1999), this Court found in footnote one that there is no burden of proof relative to the mercy recommendation. Rather, the Court opined:
We do not believe that conceptually there is any separate or distinctive burden of proof or burden of production (See footnote 14) associated with the jury's mercy/no-mercy determination in a bifurcated mercy phase of a murder trial, if the court in its discretion decides to bifurcate the proceeding. In making its overall verdict, in a unitary trial or a bifurcated trial, the jury looks at all of the evidence that the defendant and the prosecution have put on-and if the jury concludes that an offense punishable by life imprisonment was committed, then the jury determines the mercy/no-mercy portion of its verdict, again based on all of the evidence presented to them at the time of their determination. We would anticipate that a defendant would ordinarily proceed first in any bifurcated mercy phase.
206 W. Va. at 297 n.1, 524 S.E.2d at 449 n.1.
Based upon the foregoing, the Court now holds that the provisions of West Virginia Code § 62-3-15 do not place a burden of proof on either the State or the defendant for the mercy phase of a first degree murder trial where that phase is bifurcated. Because of the lack of a burden of proof in the bifurcated mercy phase of a first degree murder trial, the circuit court incorrectly found that there was an unconstitutional shifting of the burden of proof from the State to the Defendant.
[i]f the person indicted for murder is found by the jury guilty thereof, and if the jury find in their verdict that he or she is guilty of murder of the first degree, or if a person indicted for murder pleads guilty of murder of the first degree, he or she shall be punished by imprisonment in the penitentiary for life . . . . Provided, That the jury may, in their discretion, recommend mercy, and if such recommendation is added to their verdict, such person shall be eligible for parole in accordance with the provisions of said article twelve, except that, not withstanding any other provision of this code to the contrary, such person shall not be eligible for parole until he or she has served fifteen years . . . .
Id. (emphasis added). The Defendant posits that by the Legislature's use of the phrase the jury, the Legislature meant the same jury. Thus, the Defendant reads into the statute the word same, which simply does not exist.
Where the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation. Syl. Pt. 2, State v. Elder, 152 W. Va. 571, 165 S.E.2d 108 (1968). There is a lack of any argument before the Court that the provisions of West Virginia Code § 62-3-15 are ambiguous. This Court's function, therefore, is to accept the plain meaning of West Virginia Code § 62-3-15 without resorting to any interpretation. Id. The plain meaning of the phrase the jury is [a] group of persons selected according to law and given the power to decide questions of fact and return a verdict in the case submitted to them. Black's Law Dictionary 934 (9th ed. 2009). Absent from this plain meaning, as well as the entire statute, is language which indicates that the jury which decides a defendant's guilt must be the same jury that decides whether to recommend mercy if a defendant is convicted of first degree murder. (See footnote 17)
This Court has considered this question of whether different juries can decide
the guilt phase and the mercy phase on three occasions. In three separate opinions, the Court
has upheld remand of the case for a new trial on the mercy phase with a new jury, where the
first degree murder conviction otherwise was valid.
The first case in which the Court delved into this issue is Doman, a case closely akin to the instant matter. The defendant in Doman was convicted of first degree murder and sentenced to life imprisonment without mercy. 204 W. Va. at 290, 512 S.E.2d at 212. On appeal, the defendant claimed that his conviction should be reversed because the circuit court improperly instructed the jury on when the defendant would be eligible for parole if he received a recommendation of mercy. Id.
The Court agreed and reversed and remanded the case, in part, for a new trial on the sole question of whether the defendant should receive mercy. The Court based its decision to reverse only on this question, stating that we cannot see how the improper instruction affected the jury's underlying conclusion that the appellant was guilty of the crime charged. Id. at 292, 512 S.E.2d at 214. Thus, relying on this Court's decision in LaRock, which provided for the bifurcation of the guilty phase and the recommendation of mercy phase of the jury, the Court stated that:
[i]n the present case, where the instructional error could not have, in this Court's view, affected the finding of guilt, the Court believes that it would be a waste of judicial resources to require an entirely new trial, rather than to require a limited trial on the recommendation of mercy.
Then, in State v. Finley, 219 W. Va. 747, 753, 639 S.E.2d 839, 845 (2006), cert. denied, 549 U.S. 1298 (2007), the guilty phase and the mercy phase of the defendant's trial for first degree murder and sexual assault in the second degree were bifurcated. During the mercy phase of the proceeding, the trial court denied the defendant's motion to wear civilian clothing, thereby essentially compelling him to wear prison garb during the penalty phase. Id. at 749, 639 S.E.2d at 841. On appeal, the defendant asserted that if the Court found that the penalty phase was fatally flawed due to the trial court's ruling, requiring the appellant to wear prison clothing during the penalty phase, then the only proper remedy is a new trial and not simply a remand for retrial of the mercy determination. Id. at 753, 639 S.E.2d at 845. The defendant argued, similar to the Defendant's argument herein, that the language of West Virginia Code § 62-3-15 mandates that the same jury which determines the issue of guilt must also be the jury that decides the issue of mercy. 219 W. Va. at 753, 639 S.E.2d at 845.
While the Court found that the penalty phase was flawed due to the trial court requiring the defendant to wear prison attire, the Court rejected the defendant's interpretation of the statutory provision, which would have required the entire conviction to be set aside. Instead, just as in Doman, the Court set aside the defendant's penalty phase recommendation. Id. In so doing, the Court instructed:
Upon remand, the court shall empanel a jury for trial of the sole issue of whether mercy is to be recommended for the sentencing of Appellant. Since the jury would not have information regarding the guilt phase of the trial, the lower court should exercise reasonable discretion in determining how the circumstances of the commission of the crime are to be conveyed to the jury in addition to other evidentiary matters appropriate to the mercy phase that the parties may adduce.
Most recently, in State ex rel. Shelton v. Painter, 221 W. Va. 578, 655 S.E.2d 794 (2007), relying on the early cases of Doman and Finley, the Court stated:
In the present case, where the actions of trial counsel could not have affected the finding of guilt, we believe that it would be a waste of judicial resources to require an entirely new trial. Therefore, rather than require a new trial on the issues of guilt and penalty, we believe the more prudent course would be to require a limited new trial only on the penalty issue - whether or not the appellant should or should not receive mercy.
221 W. Va. at 586, 655 S.E.2d at 802.
Consequently, this Court has on three occasions allowed for the sole retrial of
the penalty phase where there is no reason to reverse the conviction. By so doing, the Court
has implicitly construed the provisions of West Virginia Code § 62-3-15 to mean that a
different jury than that which decided the guilt phase of a first degree murder case can be
used to decide the mercy phase of the case, and that the phrase the jury in West Virginia
Code § 62-3-15 refers to the jury in the conceptual and institutional sense. The Court,
therefore, now holds that the provisions of West Virginia Code § 62-3-15 do not require that
the jury that decides the guilt phase of a first degree murder case must also be the same jury
that decides the mercy phase of the case. While it should be a rarity that a different jury is
used, it sometimes becomes a necessity in cases such as the instant one where there are no
meritorious grounds to overturn the underlying conviction and the defendant is only entitled
to a retrial on the mercy phase. The circuit court correctly answered this question.
The Court has discussed in several opinions the scope of evidence which may be admitted during the mercy phase of a bifurcated first degree murder proceeding. For instance, the Court has stated that
the jury looks at all of the evidence that the defendant and the prosecution have put on_and if the jury concludes that an offense punishable by life imprisonment was committed, then the jury determines the mercy/no-mercy portion of its verdict, again based on all of the evidence presented to them at the time of their determination.
Rygh, 206 W. Va. at 297 n.1, 524 S.E.2d at 449 n.1 (emphasis added). (See footnote 19)
In Finley, the Court, however, stated that
[a]t the penalty phase, the jury is no longer looking narrowly at the circumstances surrounding the charged offense. In order to make a recommendation regarding mercy, the jury is bound to look at the broader picture of the defendant's character-examining the defendant's past, present and future according to the evidence before it_in order to reach its decision regarding whether the defendant is a person who is worthy of the chance to regain freedom. See Zant v. Stephens, 462 U.S. 862, 900, 103 S. Ct. 2733, 77 L. Ed.2d 235 (1983) (Rehnquist, J., concurring in judgment) (at the penalty stage a jury considers the character and propensities of a defendant in order to make a unique, individualized judgment regarding the punishment that a particular person deserves.).
219 W. Va. at 752, 639 S.E.2d at 844.
Further, in a dissenting opinion to Schofield v. West Virginia Department of Corrections,185 W. Va. 199, 406 S.E.2d 425 (1991) (Workman, J., dissenting), the following rationale for a bifurcated proceeding was set forth:
a bifurcated hearing on the issue of mercy would not only permit the defendant a far broader latitude in presenting to the jury full information concerning the defendant's life and circumstances and any mitigating evidence in an effort to obtain the balm of mercy. It would also permit the state an opportunity to present any information at its disposal as to the propriety (or lack thereof) of a grant of mercy. If a particular defendant has an egregious criminal history or a marked propensity for violence, for example, that would also be an appropriate factor for the jury to consider. The determination of whether a defendant should receive mercy is so crucially important that justice for both the state and defendant would be best served by a full presentation of all relevant circumstances without regard to strategy during trial on the merits.
Id. at 207, 406 S.E.2d at 433.
Just recently, the Court in State ex rel. Dunlap v. McBride,___ W. Va. ___, 691 S.E.2d 183 (2010), addressed the appellant's arguments stemming from the denial of his petition for habeas corpus relief that the underlying criminal trial for first degree murder (See footnote 20) was improperly bifurcated and that evidence was improperly admitted during the penalty phase. (See footnote 21) The trial court in Dunlap ruled, prior to trial, that during the guilt phase of trial the State could present evidence in its case-in-chief that the appellant previously tried to slash the throat of his former wife, Betty Yates, and that he was incarcerated for over two years for stabbing his former wife. Id. at ___, 691 S.E.2d at 191.
Once the trial began, the State moved the court to introduce additional prior bad acts by the defendant against Ms. Yates. Id. The trial court denied the motion as untimely Rule 404(b) evidence. Id.; see W. Va. R. Evid. 404(b). The State then moved the court to bifurcate the trial so that the additional bad acts could be used during the sentencing phase. Id. at ___, 691 S.E.2d at 191-92. The trial court initially denied the motion; however, once the defendant's former wife began to testify, the State moved the trial court again to bifurcate. The trial court took the State's motion under advisement. Id. at ___, 691 S.E.2d at 192. After the defendant put on his case-in-chief, the State called rebuttal witnesses. The State again moved the trial court to bifurcate the trial. The trial court ultimately granted the State's motion and, in so doing, gave the defendant several days to prepare for the sentencing hearing before the jury. Id.
The Court upheld the trial court's ruling, finding that the decision to bifurcate was within the trial court's discretion pursuant to the Court's decision in LaRock. 196 W. Va. at 299, 470 S.E.2d at 618, Syl. Pt. 4 (A trial court has discretionary authority to bifurcate a trial and sentencing in any case where a jury is required to make a finding as to mercy.). The Court found that
[i]t is clear that the LaRock factors are concerned with a party being able to present evidence for sentencing that may not be admissible on the merits of a prosecution. In this case, the State had a considerable amount of additional bad acts evidence involving Mr. Dunlap that may not have been admissible during the guilt phase, even if the State had timely brought the evidence to the court's attention. However, this evidence was highly relevant as to the decision of whether Mr. Dunlap should receive mercy and obtain a sentence that would allow him to be eligible for parole. Ultimately, we agree with the trial court that there is no evidence that would lead [us] to conclude that the bifurcation herein was constitutional error. More importantly, Mr. Dunlap has not articulated any plausible prejudicial effect from the bifurcation.
Dunlap, ___ W. Va. at __, 691 S.E.2d at 192 (emphasis added).
Further, the defendant argued that the State improperly was allowed to introduce evidence of other bad acts including numerous incidents of violent conduct by the defendant toward his former wife and their children during the penalty phase without the
trial court conducting a McGinnis hearing. Id. The Court found no error, stating
Mr. Dunlap has failed to cite to any decision of this Court where we have required a McGinnis hearing for sentencing purposes only. As a general matter, [t]he rules of evidence, including Evid. R. 404(b) regarding 'other acts,' do not strictly apply at sentencing hearings. State v. Combs, No. CA2000-03-047, 2005 WL 941133, at *2(Ohio Ct. App. 2005). See Patton v. State, 25 S.W.3d 387, 392 (Tex. App. 2000)(It has been held that Rule 404(b) does not apply to the penalty or punishment phase of a bifurcated trial.). Moreover, [a] trial court has wide discretion in the sources and types of evidence used in determining the kind and extent of punishment to be imposed. And a sentencing court is not restricted by the federal constitution to the information received in open court. Elswick v. Holland, 623 F.Supp. 498, 504 (S.D.W. Va. 1985) (citations omitted). Therefore, we find this issue to be without merit.
___ W. Va. at ___, 691 S.E.2d at 193.
Based upon the foregoing, the Court holds that the type of evidence that is admissible in the mercy phase of a bifurcated first degree murder proceeding is much broader than the evidence admissible for purposes of determining a defendant's guilt or innocence. Admissible evidence necessarily encompasses evidence of the defendant's character, including evidence concerning the defendant's past, present and future, as well as evidence surrounding the nature of the crime committed by the defendant that warranted a jury finding the defendant guilty of first degree murder, so long as that evidence is found by the trial court to be relevant under Rule 401 of the West Virginia Rules of Evidence and not unduly prejudicial pursuant to Rule 403 of the West Virginia Rules of Evidence.
Finally, regarding whether the defendant or the State would first present evidence to the jury, as previously mentioned in Rygh, the Court indicated that a defendant would ordinarily proceed first in any bifurcated mercy phase. 206 W. Va. at 297 n.1, 524 S.E.2d at 449 n.1. West Virginia Rule of Evidence 611(a) offers additional guidance on this issue as follows:
The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth; (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.
Further, just recently, in syllabus point two of State v. Fields, No. 34746, ___ W. Va. ___,
___ S.E.2d ___ , 2010 WL 1644057(W. Va. April 21, 2010), the Court held that [t]o
safeguard the integrity of its proceedings and to insure the proper administration of justice,
a circuit court has inherent authority to conduct and control matters before it in a fair and
Under the provisions of West Virginia Code § 62-3-15,
[i]f the person indicted for murder is found by the jury guilty thereof, and if the jury find in their verdict that he or she is guilty of murder of the first degree, or if a person indicted for murder pleads guilty of murder of the first degree, he or she shall be punished by imprisonment in the penitentiary for life . . . .
Id.; see W. Va. Code § 61-2-2 (2005)(Murder of the first degree shall be punished by
confinement in the penitentiary for life.). Given that under the foregoing statute, the
punishment of life imprisonment upon conviction for first degree murder is fixed unless the
jury, in its discretion, recommends mercy, it logically follows that the defendant should generally go first in offering argument and evidence to the jury in his or her quest to show the jury why it should recommend mercy. See id.; W. Va. Code § 62-3-15. Thereafter, the State would be allowed to offer any impeachment or rebuttal evidence as warranted by evidence offered by the defendant, including, but not limited to, evidence surrounding the nature of crime committed, as well as evidence of other bad acts. The defendant then would have the last opportunity to offer any evidence to refute that offered by the State, and have the last argument to the jury before it would make the mercy determination.
The Court, therefore, now holds that in the mercy phase of a bifurcated first degree murder proceeding, the defendant will ordinarily proceed first; however, the trial court retains the inherent authority to conduct and control the bifurcated mercy proceeding in a fair and orderly manner.
State v. Guthrie, 205 W. Va. 326, 343 n. 25, 518 S.E.2d 83, 100 n.25 (1999). Because West Virginia Rule of Criminal Procedure 31 has been in existence for years, with the last amendment occurring in 1995, the Court does not view its holding as establishing a new principle of law.