The majority
opinion concluded that the defendant was not entitled to bifurcate the status
element of his offenses. I agree with this result. However, this result should
have been attained by different rationale.
[a]
trial court must grant bifurcation in all cases tried before a jury in which
a criminal defendant seeks to contest the validity of any alleged prior conviction
as a status element and timely requests that the jury consider the issue of prior
conviction separately from the issue of the underlying charge. To the extent
that our decision in State v. Nichols, 208 W. Va. 432, 541 S.E.2d
310 (1999), conflicts with this holding it is hereby modified.
Syl. pt. 11, McCraine. In the instant case, the majority refused to
apply McCraine retroactively to the defendant's case because he allegedly (See
footnote 1) failed to satisfy our retroactivity
principles. In my view, McCraine should not be applied in this case
because McCraine should be overruled.
In McCraine I
argued against the creation of mandatory bifurcation for a status element
of an offense. I gave the following reasons for rejecting mandatory bifurcation:
As a result of the majority decision, every defendant convicted of an offense having a status element should now be strongly motivated to demand a bifurcated trial. I so conclude because a defendant will have nothing to lose by requiring the State to have a separate jury determine the issue. I have little doubt in further concluding in an overwhelming majority of all such cases, defendants will not prevail. Consequently, the majority's decision has encouraged a terrible waste of judicial resources. Simply put, the majority is clogging an already overburdened judicial system.
McCraine, 214 W. Va. at 206, 588 S.E.2d at 195 (Davis, J., concurring
in part and dissenting in part).
My criticism
of the majority decision in McCraine was also due to this Court's previously
established procedures for handling a status element of an offense in State
v. Nichols, 208 W. Va. 432, 541 S.E.2d 310 (1999). This procedure was
enunciated in syllabus points 3, 4 and 5 of Nichols as follows:
3.
When a prior conviction constitute(s) a status element of an offense, a defendant
may offer to stipulate to such prior conviction(s). If a defendant makes an offer
to stipulate to a prior conviction(s) that is a status element of an offense,
the trial court must permit such stipulation and preclude the state from presenting
any evidence to the jury regarding the stipulated prior
conviction(s). When such a stipulation is made, the record must reflect a colloquy
between the trial court, the defendant, defense counsel and the state indicating
precisely the stipulation and illustrating that the stipulation was made voluntarily
and knowingly by the defendant. To the extent that State v. Hopkins,
192 W. Va. 483, 453 S.E.2d 317 (1994) and its progeny are in conflict
with this procedure they are expressly overruled.
4.
A defendant who has been charged with an offense that requires proof of a prior
conviction to establish a status element of the offense charged, and who seeks
to contest the existence of an alleged prior conviction, may request that the
trial court bifurcate the issue of the prior conviction from that of the underlying
charge and hold separate jury proceedings for both matters. The decision of whether
to bifurcate these issues is within the discretion of the trial court. In exercising
this discretion, a trial court should hold a hearing for the purpose of determining
whether the defendant has a meritorious claim that challenges the legitimacy
of the prior conviction. If the trial court is satisfied that the defendant's
challenge has merit, then a bifurcated proceeding should be permitted. However,
should the trial court determine that the defendant's claim lacks any relevant
and sufficient evidentiary support, bifurcation should be denied and a unitary
trial held.
5.
At a hearing to determine the merits of a defendant's challenge of the legitimacy
of a prior conviction pursuant to Syllabus point 4 of State v. Nichols,
208 W. Va. 432, 541 S.E.2d 310 (1999), the defendant has the burden of presenting
satisfactory evidence to show that the alleged prior conviction is invalid as
against him or her.
At the
time of this defendant's trial, Nichols was the law on the issue of bifurcation
of a status element of an offense. Thus, the defendant could have asserted syllabus
point 4 of Nichols and obtained a hearing to determine if there was any
merit to the issue of whether he was the person named in the abstracts of the
prior convictions. Instead,
the defendant chose, pursuant to syllabus point 3 of Nichols, to stipulate
to the prior offenses. Consequently, under Nichols the defendant's appeal
is without merit. For this reason, I concur in the judgment of this case.
I believe
the Court should have taken the opportunity to examine the viability of McCraine's mandatory
bifurcation and overrule the opinion on that narrow point of law. The instant
case points out exactly what the Nichols Court was trying to avoid. Nichols sought
to prevent the unjustifiable waste of judicial resources and time that results
from requiring mandatory bifurcation in every case involving a status element
offense. In this case, the defendant had no valid reason for challenging the
abstract of his prior convictions. That is the reason he voluntarily chose to
so stipulate. Unfortunately, as a result of McCraine, the defendant contends
that he should have been allowed to bifurcate a meritless and worthless issue
for jury determination. Had the majority opinion not applied the law of retroactivity,
the defendant would have been entitled to a new trial for a clearly absurd reason.
In fact, this case is a perfect example of the mischief that will be cultivated
by McCraine's illogical rule of mandatory bifurcation. I look forward
to the day when this Court will realize the absurdity of the McCraine opinion
and overrule its mandatory bifurcation requirement.
In view
of the foregoing, I concur in the judgment in this case.