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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2005 Term
No. 32693
STATE OF WEST VIRGINIA,
Plaintiff Below , Appellee,
V.
Defendant Below, Appellant.
Appeal from the Circuit Court of McDowell County
Honorable Booker T. Stephens, Judge
Criminal Action No. 01-F-130
AFFIRMED
Submitted: November 15, 2005
Filed: November 30, 2005
Charles B. Mullins, II
Darrell
V. McGraw, Jr.
Mullins and Morgan, P.L.L.C. Attorney
General
Pineville, West Virginia Dawn
E. Warfield
Attorney for the Appellant, Deputy
Attorney General
James Blaine Waldron
Attorneys
for the Appellee,
State
of West Virginia
The Opinion of the Court was delivered PER CURIAM.
CHIEF JUSTICE ALBRIGHT AND JUSTICE STARCHER dissent and reserve the right to
file dissenting opinions.
SYLLABUS BY THE COURT
1. “'A reviewing court should not reverse
a criminal case on the facts which have been passed upon by the jury, unless
the court can say that there is reasonable doubt of guilt and that the verdict
must have been the result of misapprehension, or passion and prejudice.' Syllabus
point 3,
State v. Sprigg, 103 W. Va. 404, 137 S.E. 746 (1927).”
Syllabus point 1,
State v. Easton, 203 W. Va. 631, 510 S.E.2d 465
(1998).
2. “There is no absolute right under
either the West Virginia or the United States Constitutions to plea bargain.
Therefore, a circuit court does not have to accept every constitutionally valid
guilty plea merely because a defendant wishes so to plead.” Syllabus point
2,
State ex rel. Brewer v. Starcher, 195 W. Va. 185, 465 S.E.2d 185
(1995).
3. “'West Virginia Rules of Criminal
Procedure, Rule 11, gives a trial court discretion to refuse a plea bargain.'
Syllabus Point 5,
State v. Guthrie, 173 W. Va. 390, 315 S.E.2d 397
(1984).” Syllabus point 2,
Myers v. Frazier, 173 W. Va. 658,
319 S.E.2d 782 (1984).
4. “A primary test to determine whether
a plea bargain should be accepted or rejected is in light of the entire criminal
event and given the defendant's prior criminal
record whether the plea bargain enables the court to dispose of the case in
a manner commensurate with the seriousness of the criminal charges and the
character and background of the defendant.” Syllabus point 6,
Myers
v. Frazier, 173 W. Va. 658, 319 S.E.2d 782 (1984).
5. “The admissibility of photographs
over a gruesome objection must be determined on a case-by-case basis pursuant
to Rules 401 through 403 of the West Virginia Rules of Evidence.” Syllabus
point 8,
State v. Derr, 192 W. Va. 165, 451 S.E.2d 731 (1994).
6. “Although Rules 401 and 402 of the
West Virginia Rules of Evidence strongly encourage the admission of as much evidence
as possible, Rule 403 of the West Virginia Rules of Evidence restricts this liberal
policy by requiring a balancing of interests to determine whether logically relevant
is legally relevant evidence. Specifically, Rule 403 provides that although relevant,
evidence may nevertheless be excluded when the danger of unfair prejudice, confusion,
or undue delay is disproportionate to the value of the evidence.” Syllabus
point 9, State v. Derr, 192 W. Va. 165, 451 S.E.2d 731 (1994).
7. “Rule 401 of the West Virginia Rules
of Evidence requires the trial court to determine the relevancy of the exhibit
on the basis of whether the photograph is probative as to a fact of consequence
in the case. The trial court then must consider whether
the probative value of the exhibit is substantially outweighed by the counterfactors
listed in Rule 403 of the West Virginia Rules of Evidence. As to the balancing
under Rule 403, the trial court enjoys broad discretion. The Rule 403 balancing
test is essentially a matter of trial conduct, and the trial court's discretion
will not be overturned absent a showing of clear abuse.” Syllabus point
10, State v. Derr, 192 W. Va. 165, 451 S.E.2d 731 (1994).
Per Curiam:
James Blaine Waldron (hereinafter “Mr.
Waldron”) appeals from a July 23, 2004, sentencing order entered by the
Circuit Court of McDowell County. In that order, the circuit court sentenced
Mr. Waldron to seven years confinement in the penitentiary based on his conviction
for voluntary manslaughter. On appeal, Mr. Waldron asserts four assignments of
error, arguing that the circuit court: (1) abused its discretion when it refused
to accept a plea agreement, (2) improperly allowed the introduction into evidence
of gruesome photographs, (3) failed to preserve an observer's notes, and (4)
improperly instructed the jury. Based upon the parties' arguments, the record
designated for our consideration, and the pertinent authorities, we affirm the
decisions of the circuit court.
I.
FACTUAL AND PROCEDURAL HISTORY
The facts of this case center around the
criminal actions of Mr. Waldron and a co-defendant, Mose Douglas Mullins, Jr.
(hereinafter “Mr. Mullins”). Mr. Mullins' criminal actions are not
an issue before us; however, to understand the factual backdrop of this case,
it is necessary to discuss Mr. Mullins and his actions in connection with Mr.
Waldron. Mr. Waldron was indicted on one count of murder, and Mr. Mullins was
indicted on one count of murder and two counts of malicious assault. The record
reveals that Mr. Mullins was illegally selling the prescription drug, OxyContin,
on behalf of a third party. Mr.
Mullins testified that he was a drug addict and used more of the drugs than
he sold. He became indebted to the third party for the remainder of the money
due for the OxyContin pills. The third party worked out a deal with Mr. Mullins
whereby Mr. Mullins would kill four people who had allegedly broken into the
third party's home. The third party offered to waive Mr. Mullins' debt, and
would also give him five thousand dollars for each murder, for a total of twenty
thousand dollars. Thereafter, on May 13, 2001, Mr. Mullins was out of pills.
He discovered that he did not have the money to purchase new pills or to pay
the third party for the pills that he had used for his personal addiction.
Mr. Mullins testified that he determined that he had to go through with the
four killings.
Later that same day, Mr. Mullins invited
Mr. Waldron to ride around with him. Mr. Mullins testified that he planned on
killing the four targets if he happened to run into them. Further, Mr. Mullins
testified that Mr. Waldron, at this time, had no idea of the murder plan. While
driving around, the two ran into Jeffrey Mullins, Don Ball, and Chantel Webb.
Jeffrey Mullins and Chantel Webb were two of the people whom Mr. Mullins was
supposed to kill.
(See footnote
1)
Mr. Mullins offered Oxycontin pills to the
others, and plans were made to meet
at a secluded location. The two groups drove in separate cars and met at the
chosen location. Mr. Mullins claims that it was during this drive that he told
Mr. Waldron of his plan, and further, that Mr. Waldron agreed to be a look-out
for the sum of one thousand dollars. Mr. Waldron avers that he at no time had
any idea about Mr. Mullins' plan to kill anyone.
After arriving at the specified location,
Mr. Mullins retrieved a gun that had been provided by the third party. He shot
Chantel Webb, Don Ball, and Jeffrey Mullins. Don Ball fled the scene with five
gunshot wounds, and Jeffrey Mullins was shot and left for dead. Chantel Webb
was killed at the scene. Jeffrey Mullins survived, but was paralyzed as a result
of his injuries. Don Ball eventually recovered. Mr Waldron testified that he
remained in the car the entire time, and that he didn't pay attention to the
gunshots being fired because he was breaking up marijuana to roll a joint. However,
Don Ball testified that he remembers seeing Mr. Waldron out of the car at the
crime scene during the shootings. Further, Jeffrey Mullins testified that prior
to being shot, he heard Mr. Mullins ask Mr. Waldron if everything was okay, and
Mr. Waldron responded in the affirmative.
Following the shootings, Mr. Mullins threw
the bodies of Chantel Webb and Jeffrey Mullins over an embankment. He and Mr.
Waldron rode to a carwash where Mr. Mullins washed the blood stains from the
car. They then disposed of the murder weapon and Mr. Mullins' blood-stained clothing.
After a stop at a relative's house and a convenience
store, Mr. Mullins then drove them to their homes, which were located beside
of each other. The police were waiting for them when they arrived, and both
were arrested.
Mr. Waldron was incarcerated from the time
of his arrest until approximately three months later when he agreed to assist
law enforcement officers in their investigation in exchange for leniency. Mr.
Waldron submitted to a blood test, gave a voluntary statement, and directed police
to the location of evidence such as the murder weapon and Mr. Mullins' bloody
clothing. Thereafter, Mr. Mullins entered a guilty plea to second degree murder
and two counts of malicious assault. Mr. Mullins was sentenced to forty years
for the murder, and two to ten years for each count of the malicious assaults,
to run consecutively. For Mr. Waldron's assistance in recovering evidence, the
State of West Virginia entered into a plea agreement. The agreement called for
the state to dismiss the felony indictment against Mr. Waldron, Mr. Waldron agreed
to enter a voluntary plea of guilty to the misdemeanor charge of accessory after-the-fact,
and the state agreed to recommend a period of one year confinement in the regional
jail, a fine of two hundred fifty dollars, and all court costs.
On February 6, 2003, the plea agreement was
presented to the circuit court, and it was refused. During the same hearing,
the circuit judge disclosed his close personal relationship with one of the victim's
family. The presiding circuit judge transferred the case
to another circuit judge.
(See
footnote 2) On March 3, 2003, the plea agreement was presented
to the second circuit judge, who also refused to accept it. The court stated
that the only plea it would entertain would be a felony plea.
(See
footnote 3) The case was scheduled for trial, which resulted in
a verdict of guilty of voluntary manslaughter. On July 14, 2004, the circuit
court sentenced Mr. Waldron to seven years in the penitentiary. On September
30, 2004, upon a finding that Mr. Waldron was a recidivist based on his prior
felony conviction, the circuit court sentenced him to an additional five years,
for a total confinement of twelve years.
II.
STANDARD OF REVIEW
The appeal before this Court presents four
assignments of error for our review. Given the various standards of review applicable
to the different issues presented, specific standards of review will be discussed
in relation to the alleged errors to which they pertain. Generally, however,
jury verdicts rendered in criminal cases are accorded great deference:
“A
reviewing court should not reverse a criminal case on the facts which have been
passed upon by the jury, unless the court can say that there is reasonable doubt
of guilt and that the verdict must have been the result of misapprehension, or
passion and prejudice.” Syllabus point 3, State v. Sprigg, 103 W. Va.
404, 137 S.E. 746 (1927).
Syl. pt. 1, State v. Easton, 203 W. Va. 631, 510 S.E.2d 465 (1998).
Mindful of this general standard of review, we proceed to consider the parties'
arguments.
III.
DISCUSSION
On appeal to this Court, Mr. Waldron raises
four assignments of error, arguing that the circuit court: (1) abused its discretion
when it refused to accept a plea agreement, (2) improperly allowed the introduction
into evidence of gruesome photographs, (3) failed to preserve an observer's notes,
and (4) improperly instructed the jury. We will address each of these issues
separately.
A. Rejection of Plea Agreement
Mr. Waldron's primary assignment
of error is the circuit court's refusal of the plea agreement. Mr. Waldron
argues that a plea agreement is subject to principles of contract law, and
that he is entitled to receive the benefit of the contract that he bargained
for because he met his obligations under the agreement. The State argues that
a trial court has the discretion to refuse any plea agreement.
The present case involves the circuit court's
failure to accept a plea agreement. The specific reason for the rejection was
because the plea agreement called for a guilty plea
to a misdemeanor charge, but the trial court disapproved of a guilty plea to
anything less than a felony charge. We have previously held that a trial court
is under no obligation to accept a guilty plea. See West Virginia Rules
of Criminal Procedure, Rule 11 (recognizing court's obligation to inquire into
the accuracy of a guilty plea and satisfaction that there is a factual basis
for the plea); Syl. pt. 2, State ex rel. Brewer v. Starcher, 195 W. Va.
185, 465 S.E.2d 185 (1995) (holding “[t]here is no absolute right under
either the West Virginia or the United States Constitutions to plea bargain.
Therefore, a circuit court does not have to accept every constitutionally valid
guilty plea merely because a defendant wishes so to plead.”).
By refusing to accept the specific guilty
plea to a misdemeanor, the trial court, in essence, rejected the proposed plea
agreement. According to Rule 11(e)(1) of the West Virginia Rules of Criminal
Procedure, “[t]he attorney for the state and the attorney for the defendant
. . . may engage in discussions with a view toward reaching an agreement[.]” Further, “[i]f
a plea agreement has been reached by the parties . . . . the court may accept
or reject the agreement[.]” Rule 11(e)(2) of the West Virginia Rules of
Criminal Procedure. Pursuant to Rule 11(e)(4) of the same Rules of Criminal Procedure,
[i]f
the court rejects the plea agreement, the court shall, on the record, inform
the parties of this fact, advise the defendant personally in open court or, on
a showing of good cause, in camera, that the court is not bound by the plea agreement,
afford the defendant the opportunity to then withdraw the plea, and advise the
defendant that if he or she persists in a plea of guilty or plea of nolo contendere,
the disposition of the case may be less favorable to the defendant
than that contemplated by the plea agreement.
In light of the foregoing, we have expressly
held that “'West Virginia Rules of Criminal Procedure, Rule 11, gives a
trial court discretion to refuse a plea bargain.' Syllabus Point 5, State
v. Guthrie, 173 W. Va. 290, 315 S.E.2d 397 (1984).” Syl. pt. 2, Myers
v. Frazier, 173 W. Va. 658, 319 S.E.2d 782 (1984). Further, “[u]nder
Rule 11(e)(2) of the West Virginia Rules of Criminal Procedure, the power is
vested in the circuit court to accept or reject a plea agreement[.]” Syl.
pt. 3, in part, id. As previously recognized, there is no constitutional
right to plea bargain or to have the plea bargain accepted by the court. Weatherford
v. Bursey, 429 U.S. 545, 97 S. Ct. 837, 51 L.Ed.2d 30 (1977); Myers
v. Frazier, 173 W. Va. 658, 319 S.E.2d 782 (1984); State v. Guthrie,
173 W. Va. 290, 315 S.E.2d 397 (1984); United States v. Stamey, 569
F.2d 805 (4th Cir. 1978); United States v. Jackson, 563 F.2d
1145 (4th Cir. 1977).
As previously recognized, a trial court has
discretion whether to receive a plea agreement. In deciding whether a trial court
has acted properly in accepting or rejecting a plea agreement, we are guided
by our earlier holding that “[a] court's ultimate discretion in accepting
or rejecting a plea agreement is whether it is consistent with the public interest
in the fair administration of justice.” Syl. pt. 4, Myers v. Frazier,
173 W. Va. 658, 319 S.E.2d 782. Further,
[a]
primary test to determine whether a plea bargain should be accepted or rejected
is in light of the entire criminal event and given the defendant's prior criminal
record whether the plea bargain enables the court to dispose of the case in a
manner commensurate with the seriousness of the criminal charges and the character
and background of the defendant.
Syl. pt. 6,
id.
Applying these legal principles
to the facts of this case, the record reveals that the State sought Mr. Waldron's
assistance in prosecuting Mr. Mullins. Mr. Waldron was incarcerated when the
prosecuting attorney represented to the trial judge that a plea agreement had
been reached,
(See footnote
4) and that Mr. Waldron, as part of the agreement, offered to
assist the police. Mr. Waldron complied with each request asked of him: he
helped locate evidence, he gave a voluntary statement, and he provided a blood
sample.
In the present case, the parties did not
obtain the trial court's approval prior to entering into the agreement. Significantly,
at the hearing when the state asked for Mr. Waldron's release pursuant to the
plea agreement, the court was not informed of the parameters of the agreement,
or that it consisted of a plea to a misdemeanor charge. Notably, taking into
account the prior felony record of the defendant, and the seriousness of his
current crimes, including one death and two malicious assaults, the trial court
was within its discretion to refuse a misdemeanor plea. Importantly, the circuit
judge stated it was the first time in his nineteen years on the bench that he
had rejected a plea agreement.
(See
footnote 5) Therefore, the trial court did not abuse its discretion
in refusing the plea agreement.
B. Admission of Photographs
Mr. Waldron's
second assignment of error deals with the introduction into evidence of gruesome
photographs that he avers were prejudicial and inflammatory and,
therefore, violated Rule 403 of the West Virginia Rules of Evidence. The State
argues that the court specifically disallowed certain pictures, and that the
admitted pictures were not gruesome or inflammatory to the extent that it would
bring unfair prejudice to the jury.
We note that “[t]he admissibility of
photographs over a gruesome objection must be determined on a case-by-case basis
pursuant to Rules 401 through 403 of the West Virginia Rules of Evidence.”
(See
footnote 6) Syl. pt. 8,
State v. Derr, 192 W. Va. 165,
451 S.E.2d 731
(1994). The
Derr case further explained as follows:
Although
Rules 401 and 402 of the West Virginia Rules of Evidence strongly encourage the
admission of as much evidence as possible, Rule 403 of the West Virginia Rules
of Evidence restricts this liberal policy by requiring a balancing of interests
to determine whether logically relevant is legally relevant evidence. Specifically,
Rule 403 provides that although relevant, evidence may nevertheless be excluded
when the danger of unfair prejudice, confusion, or undue delay is disproportionate
to the value of the evidence.
Syl. pt. 9, id. Moreover,
Rule
401 of the West Virginia Rules of Evidence requires the trial court to determine
the relevancy of the exhibit on the basis of whether the photograph is probative
as to a fact of consequence in the case. The trial court then must consider whether
the probative value of the exhibit is substantially outweighed by the counterfactors
listed in Rule 403 of the West Virginia Rules of Evidence. As to the balancing
under Rule 403, the trial court enjoys broad discretion. The Rule 403 balancing
test is essentially a matter of trial conduct, and the trial court's discretion
will not be overturned absent a showing of clear abuse.
Syl. pt. 10, id.
During the pretrial hearing held March 22,
2004, Mr. Waldron objected to ten specific photographs on the basis that they
were gruesome, inflammatory, and cumulative. Other photographs were stipulated
to by both parties, and were deemed admissible by the
trial court. The trial court viewed the objectionable photographs and, of the
ten targeted by Mr. Waldron, the trial court admitted five. In so ruling, the
circuit court stated:
And
the Court finds that the five, which the State has selected out of the ten which
the Defendant objected to, they are not gruesome or inflammatory to the extent
that it would bring about unfair prejudice to the jury and that they are not
cumulative now that the Court has reduced them down.
The Rule 403 analysis begins with a finding
of whether a photograph is relevant. If relevant, then and only then is its probative
value weighed against the prejudicial nature of the exhibit. In the case at bar,
we find that the photographs were relevant and, further, that they were not in
any way unfairly prejudicial. Our own review of the objectionable photographs
(See
footnote 7) reveals one depicting the decedent, Chantel Webb, when
she was alive. The record also contains pictures of the same victim on a morgue
table, as well as close-up pictures of shot wounds. We also have been supplied
pictures of blood puddles on pavement.
(See
footnote 8)
Moving to the arguments regarding the admitted
photographs, we have previously held that it is within the discretion of a trial
judge to admit photographs depicting trails of blood and the body of a shooting
victim.
See State v. Wheeler, 187 W. Va. 379, 419 S.E.2d 447 (1992).
Moreover, in
State v. Young, 173 W. Va. 1, 311 S.E.2d 118 (1983),
we recognized that a body of a victim after autopsy procedures may be gruesome;
however, where the body has not undergone such procedures, the picture is not
gruesome.
Accord State v. Harper, 179 W. Va. 24, 365 S.E.2d
69 (1987). We have also relied on the amount of blood and gore in the picture,
and in whether the body is pictured with unnatural facial positions or contortions
in determining that the photograph is not gruesome and in determining whether
a photograph is prejudicial.
See State v. Parsons, 181 W. Va.
56, 380 S.E.2d 223 (1989). Moreover, pictures that do not depict excessive blood
and gore, but show puncture wounds are relevant to corroborate the State's testimony.
See
State v. Haddox, 166 W. Va. 630, 276 S.E.2d 788 (1981). In regards to
the prejudicial impact of the picture of the decedent taken during her life,
we are guided by the proposition that the decedent was a murder victim and had
to be identified. Such pictures have been found relevant according to
United
States v. Grandison, 780 F.2d 425 (4
th Cir. 1985).
(See
footnote 9)
The pictures were clearly relevant to identify
the victims, the nature and location of the wounds, and the scene of the crime.
Moreover, the photographs were not prejudicial. In all of the photographs, the
wounds were free of large amounts of blood and gore, and clean penetration wounds
were visible. A careful examination of the morgue pictures illustrates that no
pictures depict the victim after having undergone autopsy procedures. One picture
is a photograph of the victim from the neck up, and reveals no gunshot wounds.
While some blood is present, it is not abnormally bloody or full of gore. Another
picture shows the victim on the table, but shows no unusual contortions or facial
expressions. Another picture shows the victim on her side and reveals the back
wound that was not visible in any other pictures. The exhibits were not hideous,
ghastly, horrible, or dreadful. They were relevant and probative in showing the
jury the condition, identity, and location of wounds on the body, and any speculative
prejudicial effect was outweighed. The photographs simply were not of the nature
to arouse passion and cause the jury to decide this case on improper grounds.
Here, we refuse to interfere with the trial court's exercise of its discretion
in admitting the photographs or in allowing testimony regarding the photographs.
C. Destruction of Confiscated Notes
Mr. Waldron's third assignment
of error concerns the trial judge's destruction of notes that were confiscated
from an observer. This alleged error may be easily resolved. The record reveals
that an observer was seen taking notes. Mr. Waldron avers that the
observer took notes during the testimony of certain witnesses with the alleged
intent of assisting a state's witness who was to testify later in the trial.
(See
footnote 10) The trial court noticed the note-taking and confiscated
the notes and disposed of them. Mr. Waldron argues that he was denied his right
to review, examine, and preserve potential witness tampering evidence because
the trial court destroyed the evidence. The State argues that Mr. Waldron never
asked to see the confiscated notes, nor did he ask the trial court to preserve
them.
We first note that no objection was made
to the confiscation or disposal of the notes during trial. We have previously
stated that “[w]hen a litigant deems himself or herself aggrieved by what
he or she considers to be an important occurrence in the course of a trial or
an erroneous ruling by a trial court, he or she ordinarily must object then and
there or forfeit any right to complain at a later time.”
State v. Salmons,
203 W. Va. 561, 569, 509 S.E.2d 842, 850 (1998) citing
State v. LaRock,
196 W. Va. 294, 316, 470 S.E.2d 613, 635 (1996). “It must be emphasized
that the contours for appeal are shaped at the circuit court level by setting
forth with particularity and at the appropriate time the legal ground upon which
the parties intend to rely.”
State ex rel. Cooper v. Caperton, 196
W. Va. 208, 216, 470 S.E.2d 162, 170 (1996).
The first time an objection was made occurred
during the post-trial motions, after the court had disposed of the notes. An
objection at this time did not afford the circuit court any opportunity to correct
any perceived error. The circuit court heard the post-trial arguments, and found
that there was little or no evidence describing what was in the notes. The circuit
court also found that when the intended recipient of the confiscated notes testified,
Mr. Waldron was afforded every opportunity to impeach her credibility. Significantly,
because the notes were confiscated, they were not available for the speculative
purpose of assisting a subsequent witness. Therefore, the trial court's destruction
of the notes did not prejudice Mr. Waldron, and the timing of Mr. Waldron's objection
waived his right to complain at a later time.
D. Trial Court's Remarks and Instructions to the Jury
Mr. Waldron finally argues
that he was denied a fair trial when the trial court issued an “Allen
charge” by telling the jury that the court was “duty bound” to
finish the trial by a certain date and time. Mr. Waldron also avers that the
trial court rushed the proceedings and made remarks throughout the entire trial
leading the jury to believe that they were forced to render a verdict. The
State argues that the judge committed no errors in his remarks or his charge
to the jury.
The first portion of Mr. Waldron's argument
seems to be an allegation that the
trial court pressured the jury to hurry and that the court stated the jury
must reach a decision by a certain time. Our review of the trial transcript
reveals that the trial judge did, indeed, relay to the jury the date by which
he anticipated the case to finish. Further, there were certain days that the
judge requested of the jury members if they could stay late after the five
o'clock hour. However, our impression of the record was not that the judge
was forcing a time frame and a quick verdict on the jury. Rather, the trial
judge was asking the jury members if they could commit to such a time frame
and requesting input on the availability of their schedules. We fail to see
how the trial court's recognition of possible time constraints can be construed
as anything other than an attempt to seat a proper jury who could preside over
the matter free from scheduling issues.
The second portion of Mr. Waldron's
argument revolves around the “Allen charge”
(See
footnote 11) that was given to the jury in the midst of their deliberations.
Mr. Waldron did not object to any of the charge during the trial; however, he
now asserts error on appeal. We first note that “[n]o party may assign as
error the giving or the refusal to give an instruction or the giving of any portion
of the charge unless that party objects thereto . . . but the court or any appellate
court may, in the interest of justice, notice plain error in the giving or refusal
to give
an instruction[.]” West Virginia Rules of Criminal Procedure, Rule 30.
Further, where a party does not object to the giving of an Allen charge, he
must show plain error in order to obtain a reversal of the conviction.
See
United States v. Russell, 971 F.2d 1098, 1107 (4
th Cir. 1992);
State
v. Clark, 175 W. Va. 58, 331 S.E.2d 496 (1985).
In the present case, the jury deliberated
for four and one-half hours. The trial court then instructed them as follows:
Ladies
and Gentlemen of the Jury, the Court instructs you that you have informed the
Court of your inability to reach a verdict in this case. . . . At the outset,
the Court wishes you to know that, although you have a duty to reach a verdict
if that is possible, the Court has neither the power nor the desire to compel
agreement upon a verdict.
The
purpose of these remarks is to point out to you the importance and desirability
of reaching a verdict in this case, provided, however, that you, as individual
jurors, can do so without surrendering or sacrificing your conscientious scruples
or personal convictions. You will recall that, upon assuming your duties in this
case, each of you took an oath. That oath places upon each of you, as individuals,
the responsibility of arriving at a true verdict upon the basis of your own opinion
and not merely upon acquiescence in the conclusions of your fellow jurors.
However,
it, by no means, follows that opinions may not be changed by conference in the
jury room. The very object of the jury system is to reach a verdict by a comparison
of views and by a consideration of the proofs of your fellow jurors.
The jury returned its verdict within an hour of hearing the above charge. While
Mr. Waldron argues that this Allen charge was improper, we note that the charge
is not an original Allen
charge. The instruction is a modified Allen charge and is in line with the
instruction approved by this Court in State v. Blessing, 175 W. Va.
132, 331 S.E.2d 863 (1985) (per curiam). We also note that the instruction
addressed the jury as a whole and was not improperly directed at either the
majority or the minority. See Levine v. Headlee, 148 W. Va.
323, 134 S.E.2d 892 (1964).
The judge allowed the jury to deliberate
for over four hours before giving the modified Allen charge. Moreover, within
that charge, no verdict was coerced and no majority or minority grouping was
singled out for admonishment. We find no error in the instruction as given. Significantly,
because Mr. Waldron did not object to the instruction at the time it was given,
he was required to show clear error on appeal, and he failed to do so.
IV.
CONCLUSION
For the foregoing reasons, we affirm the
July 23, 2004, sentencing order entered by the Circuit Court of McDowell County.
The third person,
Don Ball, does not appear to have been a target. Mr. Mullins testified that
Don Ball happened to be with the wrong people at the wrong time.
Footnote: 2 The second judge
had presided over the co-defendant's, Mr. Mullins' case, and he had entered
some of the previous orders in Mr. Waldron's case.
Footnote: 3 Mr. Waldron did
not enter a felony plea because he had a previous felony offense of unlawful
wounding, and was worried about recidivist consequences.
Footnote: 4 The record is clear,
however, that the trial court was never informed of the terms of the plea agreement
prior to agreeing to release Mr. Waldron into the custody of the State Police.
Most importantly, the trial court was not informed that the plea agreement
consisted of a misdemeanor plea. We are concerned, however, regarding the terms
of Mr. Waldron's release from jail to provide assistance to law enforcement.
The record is not clear as to what was said prior to that release, nor is it
clear as to whether Mr. Waldron was advised that the circuit court's approval
of his release would not obligate the court to accept his plea agreement. In
future situations, it is preferable that when a court is asked to release a
defendant pursuant to a plea agreement, that the trial court bring the defendant
into court and make a record that the defendant was advised that such a release
would not necessarily lead to a ratification of the plea agreement. However,
this issue was not raised below or on appeal thereby limiting our review to
plain error. “'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.' Syl. pt. 7,
State v. Miller, 194 W. Va.
3, 459 S.E.2d 114 (1995).” Syl. pt. 2,
State v. Myers, 204 W. Va.
449, 513 S.E.2d 676 (1998). Additionally, “[t]he plain error rule presupposes
that the record is sufficiently developed to discern the error.”
State
v. Spence, 182 W. Va. 472, 481, 388 S.E.2d 498, 507 (1989). Because
the record is not sufficiently developed on this issue and because we find
no error that is plain, we will not invoke the plain error doctrine to review
the decision.
Footnote: 5 The trial court
also stated that he would not accept anything less than a felony plea. While
Mr. Waldron argued that, by this statement, the judge improperly participated
in the plea negotiations, we cannot agree. A review of the March 3, 2003, plea
hearing transcript reveals that the judge was merely stating his reasons for
not accepting the plea. We have specifically recognized that a court may discuss
the specific reasons for rejecting a negotiated plea.
State ex rel. Simpkins
v. Harvey, 172 W. Va. 312, 305 S.E.2d 268 (1983)
overruled on other
grounds by State ex rel. Hagg v. Spillers, 181 W. Va. 387, 382 S.E.2d
581 (1989).
Footnote: 6 Rules 401 through
403 of the West Virginia Rules of Evidence provide:
Rule 401. Definition of “relevant
evidence.”
“Relevant
evidence” means evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable
or less probable than it would be without the evidence.
Rule 402. Relevant evidence
generally admissible; irrelevant evidence inadmissible.
All
relevant evidence is admissible, except as otherwise provided by the Constitution
of the United States, by the Constitution of the State of West Virginia, by these
rules, or by other rules adopted by the Supreme Court of Appeals. Evidence which
is not relevant is not admissible. (As amended by order entered June 15, 1994,
effective July 1, 1994.)
Rule 403. Exclusion of relevant
evidence on grounds of prejudice, confusion, or waste of time.
Although
relevant, evidence may be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or misleading the
jury,
or by considerations of undue delay, waste of time, or needless presentation
of cumulative evidence.
Footnote: 7 We note that Mr.
Waldron did not direct his objections to any specific photograph by exhibit
number. Therefore, we rely on his description of the objectionable pictures
and match them accordingly with the photographs supplied in the record.
Footnote: 8 It appears that
the bloody pavement pictures were not objected to, but rather, the objection
is more to the manner in which the prosecutor was allowed to talk about the
case as a “bloody” case. We dismiss this argument summarily as the
case was, in fact, a murder case involving three shooting victims. The trial
court was well within its discretion to allow argument and testimony about
the blood inherent in such actions.
Footnote: 9 We recognize that
Mr. Waldron argues that this photograph was introduced in an inflammatory manner.
A review of the record transcript illustrates that the decedent's boyfriend
was asked to identify the picture. The witness further testified to initials
on the back of the picture and a writing he had personally written on the back
of the photo. Such testimony does not rise to the level of inflaming the jury,
but rather, served as this witness' verification that he was familiar with
this picture.
Footnote: 10 There is no allegation
that the prosecution was involved in the note-taking process.
Footnote: 11 “The Allen charge,
often called the 'dynamite charge,' is a supplemental instruction given to
encourage deadlocked juries to reach agreement.” Franklin D. Cleckley, Handbook
on West Virginia Criminal Procedure, Vol. II, page 257 (2nd Ed.
1993). The name for this particular instruction originated from the case of Allen
v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L.Ed. 528 (1896).