Kristen L. Keller, Esq.
Gregory
L. Ayers, Esq.
Chief Deputy Prosecuting Attorney
Deputy
Public Defender
Beckley, West Virginia
Charleston,
West Virginia
Attorney for Appellee
Attorney
for Appellant
The Opinion of the Court was delivered PER CURIAM.
JUSTICE MCGRAW, deeming himself disqualified, did not participate in the decision
in this case.
JUDGE ALSOP, sitting by special assignment.
JUSTICE ALBRIGHT concurs, in part, and dissents, in part, and reserves the
right to file a separate opinion.
1. “The language of W.Va. Code, 62-3-3 (1949), grants a defendant the specific right to reserve his or her peremptory challenges until an unbiased jury panel is assembled. Consequently, if a defendant validly challenges a prospective juror for cause and the trial court fails to remove the juror, reversible error results even if a defendant subsequently uses his peremptory challenge to correct the trial court's error.” Syllabus Point 8, State v. Phillips, 194 W.Va. 569, 461 S.E.2d 75 (1995).
2. “A
prospective juror's consanguineal, marital or social relationship with an
employee of a law enforcement agency does not operate as a per se disqualification
for cause in a criminal case unless the law enforcement official is actively
involved in the prosecution of the case. After establishing that such a relationship
exists, a party has a right to obtain individual voir dire of the challenged
juror to determine possible prejudice or bias arising from the relationship.”
Syllabus Point 6, State v. Beckett, 172 W.Va. 817, 310 S.E.2d 883 (1983).
3. “The
object of the law is, in all cases in which juries are impaneled to try the
issue, to secure [persons] for that responsible duty whose minds are wholly
free from bias or prejudice either for or against the accused[.]” Syllabus
Point 1, in part, State v. Hatfield, 48 W.Va. 561, 37 S.E. 626 (1900).
4. “Remarks
made by the State's attorney in closing argument which make specific reference
to the defendant's failure to testify, constitute reversible error and defendant is entitled to a new trial.” Syllabus Point 5, State v.
Green, 163 W.Va. 681, 260 S.E.2d 257 (1979).
5. “It
is prejudicial error in a criminal case for the prosecutor to make statements
in final argument amounting to a comment on the failure of the defendant to
testify.” Syllabus Point 3, State v. Noe, 160 W.Va. 10, 230 S.E.2d
826 (1976), overruled on other grounds by State v. Guthrie, 194 W.Va.
657, 461 S.E.2d 163 (1995).
6. “Under
the Due Process Clause of the West Virginia Constitution, Article III, Section
10, and the presumption of innocence embodied therein, and Article III, Section
5, relating to the right against self-incrimination, it is reversible error
for the prosecutor to cross-examine a defendant in regard to his pre-trial
silence or to comment on the same to the jury.” Syllabus Point 1, State
v. Boyd, 160 W.Va. 234, 233 S.E.2d 710 (1977).
7. “A
judgment will not be reversed for any error in the record introduced by or
invited by the party asking for the reversal.” Syllabus Point 21, State
v. Riley, 151 W.Va. 364, 151 S.E.2d 308 (1966), overruled on other
grounds by Proudfoot v. Dan's Marine Service, Inc., 210 W.Va. 498, 558
S.E.2d 298 (2001).
8. “To
preserve error with respect to closing arguments by an opponent, a party need
not contemporaneously object where the party previously objected to the trial
court's in limine ruling permitting such argument, and the argument
pursued by the opponent reasonably falls within the scope afforded by the
court's ruling.” Syllabus Point 3, Lacy v. CSX Transp. Inc.,
205 W.Va. 630, 520 S.E.2d 418 (1999).
Per Curiam:
The defendant, Marvin Mills,
appeals his conviction in the Circuit Court of Raleigh County of first degree
murder with the use of a firearm. He was sentenced to life in the penitentiary
without the possibility of parole. For the reasons that follow, we reverse
the defendant's conviction and remand for a new trial.
It is undisputed that the
defendant, Marvin Mills, fatally shot Pamela Cabe. The evidence at trial revealed
the following. On September 8, 1999, the defendant entered Richmond Cleaners
in downtown Beckley, West Virginia, where Mrs. Cabe worked, and shot her with
a .38-caliber pistol once in the back and once in the head. Mrs. Cabe was
dead by the time paramedics arrived moments later.
After shooting Mrs. Cabe,
the defendant walked across the street, sat on a wall, and watched emergency
vehicles arrive while he smoked a cigarette. He was arrested without incident
moments later after a police officer recognized him as the shooter from a
description given by a witness. The defendant stated to the police that he
had gone to Richmond Cleaners to talk with Mrs. Cabe concerning a dispute between Mrs.
Cabe's son and the defendant's daughter over the custody of the couple's child.
According to the defendant, he wanted merely to scare Mrs. Cabe, and he did
not intend for the shooting to occur. He explained that something built up
in him and he did not realize that he had shot Mrs. Cabe until she fell to
the floor.
The State charged the defendant
with first-degree murder. At trial, the defense attempted to show that there
was no premeditation or deliberation. The State presented evidence that, upon
learning the results of a custody hearing earlier that day involving Mrs.
Cabe's son and the defendant's daughter, the defendant retrieved his .38-caliber
pistol, drove seven miles, which took at least twelve minutes, to Richmond
Cleaners, stepped inside of the Cleaners, pulled the gun from a manilla envelope,
and shot four shots, hitting Mrs. Cabe twice.
The defendant did not testify
but presented the testimony of his daughter and two neighbors which indicated
that he spent a lot of time with and loved his granddaughter who was the subject
of the custody dispute. After deliberating for thirty-two minutes, the jury
found the appellant guilty of first-degree murder without mercy.
The defendant raises
five assignments of error in his appeal to this Court. We find merit in two
of the assigned errors and proceed to discuss those errors.
According to the defendant,
Venireman Billings' friendship with Corporal Bowers and his indication that
this friendship would cause him to give greater weight to Corporal Bowers'
testimony automatically disqualified Venireman Billings from serving as a
juror.
The State replies that defense
counsel effectively withdrew his initial challenge to Venireman Billings by
declining the circuit court's offer to investigate further whether Officer
Bowers' testimony was going to be at issue. Also, the State argues that the
defendant makes no showing that Venireman Billings was prejudiced because Corporal
Bowers had minimal involvement in the case and his testimony was not inconsistent
with the defendant's version of what occurred on the day of the killing. Finally,
the State emphasizes that Venireman Billings indicated that he would not favor
one party over the other.
We note at the outset that
although Venireman Billings was not struck by the trial court for cause, the
defendant exercised a peremptory challenge against him so that he was not
on the jury that convicted the defendant. Nevertheless, W.Va. Code §
62-3-3 (1949) requires a panel of twenty jurors “free from exception.”
This Court has previously found “if proper objection is raised at the
time of impaneling the jury, it is reversible error for the court to fail
to discharge a juror who is obviously objectionable.” State v. West,
157 W.Va. 209, 219, 200 S.E.2d 859, 866 (1973). Thus, we have held:
The
language of W.Va. Code, 62-3-3 (1949), grants a defendant the specific right
to reserve his or her peremptory challenges until an unbiased jury panel is
assembled. Consequently, if a defendant validly challenges a prospective juror
for cause and the trial court fails to remove the juror, reversible error
results even if a defendant subsequently uses his peremptory challenge to
correct the trial court's error.
Syllabus Point 8, State v. Phillips, 194 W.Va. 569, 461 S.E.2d 75 (1995).
The issue before us is whether the trial court should have removed Venireman Billings for cause.
[T]he
true test of whether a juror should be struck for cause is whether that juror
can render a verdict based solely on the evidence. The trial court is afforded
considerable discretion in this determination, and we will reverse the trial
court's decision only if there has been an abuse of discretion.
State v. Sampson, 200 W.Va. 53, 57, 488 S.E.2d 53, 57 (1997), citing
State v. Phillips, 194 W.Va. at 588, 461 S.E.2d at 94. Further, “[w]hen
a defendant seeks the disqualification of a juror, the defendant bears the burden
of 'rebut[ting] the presumption of a prospective juror's impartiality[.]'”
State v. Phillips, 194 W.Va. at 588, 461 S.E.2d at 94, quoting Irvin
v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642-43, 6 L.Ed.2d 751, 756 (1961).
In determining whether there has been an abuse of discretion, we must evaluate
each case on its own facts. Sampson, 200 W.Va. at 57, 488 S.E.2d at 57,
citing State v. West, 157 W.Va. at 219, 200 S.E.2d at 865.
First, we disagree with
the defendant's argument that the mere fact that Venireman Billings attended
school with Corporal Bowers, has known him for twenty years, and occasionally
socializes with him required his disqualification for cause. In Syllabus Point
6 of State v. Beckett, 172 W.Va. 817, 310 S.E.2d 883 (1983), this Court
held:
A
prospective juror's consanguineal, marital or social relationship with an
employee of a law enforcement agency does not operate as a per se disqualification
for cause in a criminal case unless the law enforcement official is actively
involved in the prosecution of the case. After establishing that such a relationship
exists, a party has a right to obtain individual voir dire of the challenged juror to determine possible prejudice or bias
arising from the relationship.
We traditionally have not applied this rule to mandate the automatic disqualification
of a prospective juror merely because of a consanguineal, marital, or social
relationship with an employee of a law enforcement agency who is actively
involved in the prosecution of the case.
In State v. King, 183
W.Va. 440, 396 S.E.2d 402 (1990), the defendant, who was convicted of incest,
claimed that a prospective juror should have been removed for cause due to
his friendship with a State trooper who was a key witness for the State. This
Court quoted Syllabus Point 6 of State v. Beckett, but noted that individual
voir dire was conducted on the prospective juror and that the circuit
court did not abuse its discretion in failing to remove the prospective juror
for cause. In State v. Wade, 174 W.Va. 381, 327 S.E.2d 142 (1985),
the defendant alleged error in the circuit court's refusal to dismiss prospective
jurors, one of whom knew the prosecuting attorney and a State witness. This
Court again quoted the rule from State v. Beckett but found no error.
The Court explained, “A more prudent course may have been to strike the
prospective jurors, however, under the circumstances of this case, the trial
court did not err when it denied the appellant's challenges for cause.”
Wade, 174 W.Va. at 386, 327 S.E.2d at 148. Finally, in State v.
White, 171 W.Va. 658, 301 S.E.2d 615 (1983), decided prior to Beckett,
the defendant asserted that two prospective jurors should have been excused
for cause because they knew law enforcement officers actively involved in the defendant's prosecution. This Court could not conclude
from the record that the prospective jurors were unable to render a verdict
solely on the evidence adduced during the trial. Accordingly, the Court found
no error. Likewise, we do not believe that Venireman Billings' friendship
with Corporal Bowers alone automatically disqualified him from serving on
the jury panel.
We do find a problem, however,
with Venireman Billings' responses during individual voir dire. As set forth
above, Venireman Billings first stated that his knowledge of Corporal Bowers
would prevent him from acting impartially. He then explained that he would
give “a little greater weight” to Corporal Bowers' testimony because
he had known Corporal Bowers a long time. Finally, although he said that he
would not favor the State over the defendant, he never disavowed the fact
that he would tend to give Corporal Bowers' testimony greater weight.
Somewhat similar to the
instant case is State v. Archer, 169 W.Va. 564, 289 S.E.2d 178 (1982)
(per curiam), in which a prospective juror whose son was a deputy sheriff
admitted that he thought he would give more weight to a policeman's testimony
because his son was a law enforcement officer. He also stated, however, that
he would not “lean to someone just because I know them, if they are wrong.”
Archer, 169 W.Va. at 566, 289 S.E.2d at 179. This Court held that the
prospective juror “was at least subject to potential prejudice,” Archer, 169 W.Va. at 568, 289 S.E.2d at 180, and
that the defendant's motion to strike for cause should have been granted.
Accordingly, the Court reversed and remanded for a new trial.
The facts of the instant
case actually indicate a higher likelihood of potential prejudice than those
in Archer. Whereas in Archer the prospective juror's son was
not involved in the defendant's case, in the instant case Corporal Bowers
was the arresting officer and he testified at the defendant's trial. “The
object of the law is, in all cases in which juries are impaneled to try the
issue, to secure [persons] for that responsible duty whose minds are wholly
free from bias or prejudice either for or against the accused[.]” Syllabus
Point 1, in part, State v. Hatfield, 48 W.Va. 561, 37 S.E. 626 (1900).
Thus, we conclude in the instant case that Venireman Billings indicated potential
prejudice and was, therefore, not free from exception. Because the defendant
was statutorily entitled to a panel of twenty jurors who were free from exception,
we find that the circuit court abused its discretion in failing to strike
Venireman Billings from the jury panel for cause.
We have carefully considered
the arguments of the State on this issue. As set forth above, the State first
says that defense counsel effectively withdrew his initial challenge to Venireman
Billings by declining the circuit court's offer to investigate further. We disagree. While defense counsel could have argued his objection more clearly
and aggressively, we believe it was adequately preserved. Also, it is true
that defense counsel could have investigated further, but our reading of the
record indicates that any additional investigation would likely have been
of little utility.
In addition, we must differ
with the State's characterization of Corporal Bowers' involvement in the case
as “minimal.” Corporal Bowers testified concerning the arrest of
the defendant and the retrieval of the firearm with which the defendant shot
Mrs. Cabe. He testified further of the defendant's behavior and demeanor during
and immediately after his arrest. Although this testimony was undisputed,
it was a significant part of the State's evidence.
Finally, we believe that
Venireman Billings' statement that he would not favor one party over the other
conflicts with his statement that he would give greater weight to Corporal
Bowers' testimony. This conflict was never resolved. “Any doubt the court
might have regarding the impartiality of a juror must be resolved in favor
of the party seeking to strike the potential juror.” Davis v. Wang,
184 W.Va. 222, 226, 400 S.E.2d 230, 234 (1990), overruled on other
grounds by Pleasants v. Alliance Corp., 209 W.Va. 39, 543 S.E.2d 320 (2000),
citing State v. West, 157 W.Va. 209, 200 S.E.2d 859, 866 (1973). Moreover,
we recently held that “[o]nce a prospective juror has made a clear statement
during voir dire
reflecting or indicating the presence of a disqualifying prejudice
or bias, the prospective juror is disqualified as a matter of law and cannot
be rehabilitated by subsequent questioning, later retractions, or promises
to be fair.” Syllabus Point 5, O'Dell v. Miller, ___ W.Va. ___,
___ S.E.2d ___ (No. 29776 May 23, 2002). Venireman Billings' answers during
voir dire raise substantial doubts that he would have been able to assess
the evidence in an impartial manner.
We have previously said
that “if a defendant validly challenges a prospective juror for cause
and the trial court fails to remove the juror, reversible error results even
if a defendant subsequently uses his peremptory challenge to correct the trial
court's error.” State v. Phillips, 194 W.Va. at 588, 461 S.E.2d
at 94. We find that the defendant validly challenged Venireman Billings for
cause, and the trial court's failure to remove Venireman Billings constitutes
reversible error.
The State responds that the
defendant's own counsel first elicited testimony concerning the appellant's
lack of remorse.
(See footnote 2)
The defendant points to
several specific portions of the transcript in which, he alleges, the prosecutor
improperly commented on his right not to testify at trial. The first instance
was during the prosecutor's direct examination of Mrs. Cabe's daughter, Amy.
[PROSECUTOR]:
Ms. Cabe, I believe the question was, since your mother's killing on September
8th of 1999, has this defendant, Marvin Mills, ever attempted to or actually
contacted you or any member of the family about that killing?
[AMY
CABE]: No.
During the prosecutor's direct
examination of the arresting officer, Corporal Tom Bowers of the Beckley Police
Department, the prosecutor asked Corporal Bowers whether, on the evening of
the killing, the defendant inquired as to the well-being of Mrs. Cabe. Corporal
Bowers responded, “No, I never heard him ask anything about her.”
The prosecutor similarly questioned Beckley Police Officer Gary Lemon.
[PROSECUTOR]:
When you saw the defendant, throughout your opportunity to observe the defendant
on that evening, how would you describe his demeanor?
[OFFICER
LEMON]: Calm.
[PROSECUTOR]:
Did you ever see him cry?
[OFFICER
LEMON]: No, ma'am.
[PROSECUTOR]:
Did you ever hear him make any inquiry about the well-being of Pamela Cabe?
[OFFICER
LEMON]: No, ma'am.
Finally, during closing argument,
the prosecutor stated:
And
there are cases in which -- in other cases in which, as the detectives all
said, and the police, no murderer is normal, because murder isn't normal.
But there are cases in which the murderer himself calls 911. There are cases
in which the murderer himself says, “I am so sorry; I am so sorry. I
beg your forgiveness.”
Maybe
those murderers -- maybe those first degree murderers should get a second chance. But upon the proof in this
case, upon the unspeakable cruelty of this murder and upon the state of mind
of this defendant, we ask for your verdict of guilty to first degree murder
and no parole; no second chances for Marvin Mills.
“That a defendant's right
not to testify in a criminal case is protected by the constitutional mandate
against self-incrimination has long and repeatedly been affirmed by this Court.”
Pinkerton v. Farr, 159 W.Va. 223, 227, 220 S.E.2d 682, 686 (1975) (citations
omitted).
The
basis for the rule prohibiting the use of the defendant's silence against him
is that it runs counter to the presumption of innocence that follows the defendant
throughout the trial. It is this presumption of innocence which blocks any attempt
of the State to infer from the silence of the defendant that such silence is
motivated by guilt rather than the innocence which the law presumes.
State v. Boyd, 160 W.Va. 234, 240, 233 S.E.2d 710, 716 (1977).
In order to carefully ensure
that a defendant's exercise of his right not to testify is not used against
him, we have held that “[r]emarks made by the State's attorney in closing
argument which make specific reference to the defendant's failure to testify,
constitute reversible error and defendant is entitled to a new trial.”
Syllabus Point 5, State v. Green, 163 W.Va. 681, 260 S.E.2d 257 (1979).
We have also stated that “[i]t is prejudicial error in a criminal case
for the prosecutor to make statements in final argument amounting to a comment
on the failure of the defendant to testify.” Syllabus Point 3, State
v. Noe, 160 W.Va. 10, 230 S.E.2d 826 (1976), overruled on other grounds
by State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995). Finally,
The
general rule formulated for ascertaining whether a prosecutor's comment is
an impermissible reference, direct or oblique, to the silence of the accused
is whether the language used was manifestly intended to be, or was of such
character that the jury would naturally and necessarily take it to be a reminder
that the defendant did not testify.
State v. Swafford, 206 W.Va. 390, 393-394, 524 S.E.2d 906, 909-910 (1999),
quoting State v. Clark,
170 W.Va. 224, 227, 292 S.E.2d 643, 646-47 (1982) (citations
omitted).
A
review of our case law reveals that
this Court has been fairly stringent
in finding prejudicial error when the prosecution has commented, either directly
or indirectly, on the failure of the defendant to testify. See State v. Swafford,
206 W.Va. 390, 393, 524 S.E.2d 906, 909 (1999) (finding prosecutor's question
where would State have been in this case if other witnesses said, “We ain't
telling you nothing . . . We got our constitutional rights” to be reversible
error); State v. Billups, 179 W.Va. 353, 354, 368 S.E.2d 723, 724 (1988)
(finding prosecutor's questions, “you haven't heard [defendant] deny that
he was there, have you? And you haven't heard him deny that the money was on
him, have you?” to constitute reversible error); State v. Bennett, 172
W.Va. 131, 134, 304 S.E.2d 35, 38 (1983) (finding prejudicial prosecutor's repeated
statements that State's evidence was uncontradicted or had not been denied,
certain evidence had not been introduced, and only witnesses who testified said
defendant was guilty); State v. Starcher, 168 W.Va. 144, 145, 282 S.E.2d
877, 878 (1981) (finding prejudicial prosecutor's comment that defendant is
the only man that knows what was in his mind at the time of drug transfer);
State v. Nuckolls, 166 W.Va. 259, 262, 273 S.E.2d 87, 89 (1980) (finding
prosecutor's remarks, “I haven't seen [defendant], you haven't seen her,
nobody in the Court Room has seen her. . . . I want to know what was in [defendant's]
mind when she killed her husband” to be reversible error); State v.
Green, 163 W.Va. 681, 695, 260 S.E.2d 257, 265 (1979) (reversing because
of prosecutor's statements, “None of those facts are in dispute. No one
said those things didn't take place . . . there is no one in this Court Room
that ever said he didn't do it); State v. Noe, supra (reversing due
to prosecutor's remarks that defendant could not have his cake and eat it
too and he either had alibi or he didn't); State v. Self, 130 W.Va.
515, 518, 44 S.E.2d 582, 584 (1947) (finding prejudicial prosecutor's comment
to effect that defendant did not testify on his own behalf); State v. Jones,
108 W.Va. 264, 266, 150 S.E. 728 (1929) (finding prosecutor's argument
that defendant did not deny State's evidence himself to be reversible error);
and State v. Costa, 101 W.Va. 466, 467, 132 S.E. 869, 870 (1926) (finding
prosecutor's argument, “[defendant] does not explain by his own testimony,
or by any other means, these facts and circumstances” to be reversible
error). Further, we have warned prosecutors to “studiously avoid even
the slightest hint as to the defendant's failure to testify.” State
v. Lindsey, 160 W.Va. 284, 293, 233 S.E.2d 734, 740 (1977) (citations
omitted). Several courts have recognized
that it is improper for a prosecutor to comment on a defendant's lack of remorse
at trial where the defendant has chosen not to testify. For example, in Hall
v. State, 13 S.W.3d 115 (Tex.Ct.App. 2000), review dismissed as improvidently
granted by 46 S.W.3d 264 (Tex.Crim.App. 2001), the Court of Appeals of
Texas found error where the prosecutor asked the jury, at the punishment stage,
“[h]as [the defendant] ever shown remorse for this?” The court reasoned:
This
statement clearly asks the jury to consider whether Appellant demonstrated remorse
at any time, which necessarily refers to Appellant's in-court demeanor
as well. As set forth above, the
defendant cites to several specific portions of the transcript which, he alleges,
show improper comments on his right not to testify. First, the defendant complains
that the prosecutor elicited testimony from Mrs. Cabe's daughter, Amy, that,
since her mother's killing, the defendant has never contacted her or any member
of her family. We believe that this testimony is not of such a character that
the jury would naturally and necessarily take it to be a reminder that the
defendant did not testify. The testimony specifically concerns whether the
defendant had contacted the witness or her family, not whether the
defendant had stated or testified to something. In addition,
the testimony does not mention remorse or lack thereof. Accordingly, we find
no error in this testimony. The defendant also complains
about the testimony of Corporal Bowers, Officer Lemon, and Detective Shumate
that, on the evening of the defendant's arrest, the defendant never inquired
about Mrs. Cabe's well-being and never expressed remorse for killing Mrs. Cabe. We believe that this testimony would not naturally and necessarily
be taken by the jury to be a reminder that the defendant did not testify because
the testimony clearly was limited to the defendant's lack of remorse on the
evening of Mrs. Cabe's killing. In addition, while this Court has held: Further, even if we were
to find the above testimony to be improper, it would not amount to reversible
error. The rule in this Court is that “[a] judgment will not be reversed
for any error in the record introduced by or invited by the party asking for
the reversal.” Syllabus Point 21, State v. Riley, 151 W.Va. 364,
151 S.E.2d 308 (1966), overruled on other grounds by Proudfoot v. Dan's Marine Service, Inc.,
210 W.Va. 498, 558 S.E.2d 298 (2001). The first person at trial to use
the word “remorse” was defense counsel who asked Chief Detective
Cedric Robertson, on cross-examination, whether the defendant showed “any
sign of remorse” when Detective Robertson read him his Miranda rights
at the scene of the arrest. This questioning occurred prior to the State's
examination of Officer Lemon and Detective Shumate. The defendant cannot complain
about the testimony concerning his pre-trial lack of remorse when his own
counsel first introduced such testimony. The defendant also alleges
error in the prosecutor's direct examination of Detective Shumate concerning
the defendant's failure to express remorse when he had otherwise expressed
himself in court proceedings in which Detective Shumate was present.
(See footnote 3)
We find the prosecutor's
questioning of Detective Shumate improper. In its brief to this Court, the
State emphasizes that the defendant chose not to remain silent during the
proceedings at issue but rather repeatedly expressed himself in a loud and
obscene manner. However, the fact remains that the defendant elected not to
testify at trial. The defendant's outbursts during his arraignment and the
in-camera hearing did not constitute sworn testimony heard by the jury. Therefore,
what the defendant failed to express in those outbursts should not have been
admitted as evidence against him. A particularly troublesome
aspect of the testimony elicited from Detective Shumate is that it was unfairly
ambiguous. The testimony informed the jury only that the defendant made expressions
of anger in court proceedings in which Detective Shumate was present, and
the defendant failed to indicate remorse or sorrow. The jury was not informed
that these expressions of anger were in the nature of uncontrolled, heated,
and sometimes incoherent rantings. Consequently, the jury could have been left with the
mistaken impression that the defendant had made a formal statement of some
sort concerning Mrs. Cabe's killing in which he had expressed anger at Mrs.
Cabe but no remorse. Moreover, such an impression would naturally have caused
jurors to wonder why the defendant gave a statement in prior court proceedings
but not at trial. This, of course, would have had the effect of highlighting
the defendant's failure to testify at trial. Accordingly, we conclude that
Detective Shumate's testimony concerning the defendant's failure to express
remorse at prior court proceedings was of such character that the jury would
naturally and necessarily take it to be a reminder that the defendant did
not testify. We also believe that the
prosecutor's closing argument constituted an improper reference to the defendant's
election not to testify. We agree with the State that the prosecutor's initial
comment that “there are cases in which the murderer himself calls 911”
does not constitute error. A defendant's lack of concern for the victim at
the crime scene may be used as evidence of the defendant's intent to kill.
See State v. LaRock, 196 W.Va. 294, 304, 470 S.E.2d 613, 623 (1996)
(noting that witness testified that neither parent showed any remorse or regret
after being told of the death of their son and she found their response to
be very inappropriate). The evidence at trial indicated that after shooting
Mrs. Cabe, the defendant strolled across the street, smoked a cigarette, sat
on a wall, and watched emergency vehicles arrive. This evidence indicates
the defendant's lack of remorse at the crime scene.
We
. . . hold that the prosecutor's . . . comment that Appellant has never shown
remorse for his actions was clearly a direct comment on Appellant's failure
to testify. The necessary and natural effect of the prosecutor's comments, viewed
from the standpoint of the jury, was to direct the jury's attention to the Appellant's
invocation of his right to remain silent.
Hall, 13 S.W.3d at 118-19 (footnotes and citation omitted). The court
reversed the appellant's sentence and remanded the case for a new punishment
hearing, and explained:
The
error in this case encroached Appellant's fundamental constitutional right against
self- incrimination. Just before the glaring reference to Appellant's failure
to testify, the State made an improper reference to highly inflammatory evidence
not in the record. Based upon a review of the entire argument and record, and
in light of the maximum sentence assessed, we hold that the State's reference
to Appellant's failure to testify had a significant or injurious affect on the
jury's verdict such that Appellant's substantial rights were affected. As the
Court of Criminal Appeals has instructed, when the State violates article 38.08
[prohibiting the prosecuting attorney from alluding to or commenting on the
accused's invocation of his or her right not to testify], the duty of the reviewing
court is clear, and “the responsibility for the reversal must rest solely
upon the prosecuting attorney.” Dickinson [v. State], 685 S.W.2d
[320], [] 322.
Hall, 13 S.W.3d at 120. See also State v. McClure, 342 S.C. 403,
537 S.E.2d 273 (S.C. 2000) (finding that prosecutor's repeated emphasis on fact
that appellant had not shown remorse and had not testified improperly focused
jury's attention on whether appellant had to testify and express remorse to avoid the death penalty); Patrick v.
State, 516 N.E.2d 63 (Ind. 1987) (concluding that prosecutor's reference
to defendant's lack of remorse was improper but any harm was cured by trial
court's admonition to disregard reference); and Chavez v. State, 960
S.W.2d 829 (Tex.Ct.App. 1997) (holding that any error in comment on defendant's
nontestimonial demeanor as showing lack of remorse was cured where court instructed
jury to disregard the comment).
Under
the Due Process Clause of the West Virginia Constitution, Article III, Section
10, and the presumption of innocence embodied therein, and Article III, Section
5, relating to the right against self- incrimination, it is reversible error
for the prosecutor to cross-examine a defendant in regard to his pre-trial
silence or to comment on the same to the jury.
Syllabus Point 1, State v. Boyd, 160 W.Va. 234, 233 S.E.2d 710 (1977),
the record in the instant case indicates that the defendant did not exercise
his right to remain silent after he was arrested and informed of his Miranda
rights. Instead, the defendant gave a statement to Detective Shumate which
was recorded and played for the jury at trial. Accordingly, because the defendant
did not exercise his pre-trial right to remain silent, the testimony of Corporal
Bowers, Officer Lemon, and Detective Shumate was not improper commentary on
the defendant's pre-trial silence.
As set forth above, after the prosecutor established that Detective Shumate
was present in court proceedings in which the defendant expressed himself, the
prosecutor then asked “[w]hen he has expressed himself in these occasions
. . . has he, in any expression, indicated remorse or sorrow over the killing
of Pam Cabe?” to which Detective Shumate responded “[n]o ma'am.”
The prosecutor then asked Detective Shumate to describe in one word the defendant's
expressions, to which Detective Shumate replied “Anger.”
However,
the prosecutor went on to state “[t]here are cases in which the murderer
himself says, 'I am so sorry; I am sorry. I beg your forgiveness.'” During
oral argument, the State argued that this comment must be read in context
with the one before it so that it amounts simply to a reiteration of the defendant's
lack of remorse at the crime scene. Unfortunately, the statement itself is
not specifically limited to lack of remorse at the crime scene, and such a
construction is not readily apparent. It is likely that one would naturally
understand the comment to mean that the defendant has not asked for forgiveness
for killing Mrs. Cabe at any time, including at trial. Of course, the
only way in which the defendant could beg forgiveness at trial would be to
take the stand and testify in his own behalf. Accordingly, we believe that
the prosecutor's second statement amounts to a comment on the defendant's
failure to testify. As noted above, our law
says that “[i]t is prejudicial error in a criminal case for the prosecutor
to make statements in final argument amounting to a comment on the failure
of the defendant to testify.” Syllabus Point 3, State v. Noe, supra.
Therefore, we find that Detective Shumate's testimony on the defendant's
demeanor at prior court proceedings and the prosecutor's comment in closing
argument that “[t]here are cases in which the murderer himself says,
'I am so sorry,'” constitute prejudicial error.
(See footnote 4)
Concerning the State's contention
that the defendant failed to adequately preserve the alleged error which occurred
during closing argument because he made no objection at that time, this Court
has held:
To
preserve error with respect to closing arguments by an opponent, a party need
not contemporaneously object where the party previously objected to the trial
court's in limine ruling permitting such argument, and the argument pursued
by the opponent reasonably falls within the scope afforded by the court's ruling.
Syllabus Point 3, Lacy v. CSX Transp. Inc., 205 W.Va. 630, 520 S.E.2d
418 (1999). In the instant case, the defendant did not make a previous motion
in limine but he did previously object to evidence of the defendant's
lack of remorse. This is similar to our recent case of State v. Walker,
207 W.Va. 415, 533 S.E.2d 48 (2000) (per curiam), where the defendant
complained of improper comments during the State's closing argument. The defendant
conceded that he made no objection to the comments during closing argument
but he did object when the evidence, which formed the substance of the challenged
comments, was originally adduced during the State's cross-examination of the
defendant. We found that the alleged error was properly preserved and explained:
Consistent
with Lacy, to preserve error with respect to objections to closing
argument by the State, a defendant need not contemporaneously object when
the defendant has previously made an objection concerning the substance of
the argument and obtained a ruling on the objection by the trial court. Therefore,
we conclude that the question of whether the State's closing argument improperly
addressed [the defendant's] post-Miranda silence was preserved for
appeal.
Walker, 207 W.Va. at 419, 533 S.E.2d at 52 (footnote omitted).
The same reasoning applies
in the instant case. Although the defendant did not object to the prosecutor's
closing argument, defense counsel objected twice to the prosecutor's direct
examination of Detective Shumate in which the lack of remorse evidence was elicited, and he received a ruling by the trial court. Accordingly,
we conclude that the defendant properly preserved for appeal his challenge
to the prosecutor's comments during closing argument.
For
the reasons stated above, we reverse the defendant's conviction and we remand
for a new trial.
Reversed and remanded.
Footnote: 1