649 S.E.2d 509
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. Clark, 170 W.Va. 224, 227, 292 S.E.2d 643, 646 (1982) (citations omitted).
In finding that the prosecutor below improperly commented on the defendant's
decision to not testify, the majority first cites the prosecutor's remarks concerning the
defendant's failure to accept responsibility. Unfortunately, the majority completely
misinterprets these remarks and takes them out of context. When one considers the
prosecutor's comments in the context of the crimes charged against the defendant, it is clear
that the prosecutor was not making specific reference to the defendant's failure to testify but
rather the defendant's failure to accept his legal responsibility to stop and render aid at the
scene of the accident. I am confident that this is what the prosecutor intended and it is how
the jury understood the prosecutor's remarks. In fact, even the defendant's lawyer did not
think the prosecutor's statements were error because he did not object and demand a mistrial
at the time the statements were made. Simply put, the prosecutor was commenting on the
defendant's state of mind at the time he struck and killed Justin McAnulty and decided to
leave the scene.
The defendant was charged with, inter alia, “Failure to Render Aid at Accident
Involving Death.” This crime is defined in W.Va. Code § 17C-4-1 (1999), which provides
in part,
(a) The driver of any vehicle involved in an accident resulting in injury to
or death of any person shall immediately stop the vehicle at the scene of the
accident or as close thereto as possible but shall then forthwith return to and
shall remain at the scene of the accident until he or she has complied with the
requirements of section three [§ 17C-4-3] of this article[.]
According to W.Va. Code § 17C-4-3 (1998), the driver of any vehicle involved in an
accident resulting in injury to or the death of another person is charged with the responsibility
of rendering aid to the injured person, “including the carrying, or the making arrangements
for the carrying of such person to a physician, surgeon or hospital for medical or surgical
treatment if it is apparent that such treatment is necessary.” Essentially, the defendant was
on trial for not fulfilling his legal obligation to stop and render aid to the person he hit with
his car. In light of the nature of the crime alleged, which unlike most criminal statutes
charges an affirmative duty, the prosecutor's comments are more warranted in this case than
in those involving other crimes. Here, the defendant had an affirmative duty imposed by law
to stop and render aid to Mr. McAnulty, and he failed to do so. Therefore, the fact that the
defendant failed to meet his legal responsibility, which is the essence of the crime charged,
made this a fair area of comment for the prosecutor. Accordingly, any reasonable juror
would take the prosecutor's words to mean that the defendant is guilty of the crimes charged
because he did not meet his legal responsibility to the decedent.
The majority also cites as improper a line from the prosecutor's closing
argument, “So, how do I prove this? Do I just ask the Defendant, 'Did you know? Did you
see him? Okay, you said you didn't know, you said you didn't see him, we'll let you go . .
. .'” It is obvious to me that the prosecutor refers here to statements the defendant made to
police officers during their investigation of the accident. Specifically, the prosecutor
indicates that the jury may infer the defendant's intent from these statements. Although a
defendant may remain silent without detriment, juries are called upon every day to examine
the evidence before them and infer a defendant's mental state and intent from what the
defendant may have said or done.
In addition, the defendant cites the prosecutor's slip of the tongue in confusing
the defendant's statement to the police with testimony, an error that the prosecutor
immediately corrected without prompting
(See footnote 1)
. The record shows that this misstatement was
acknowledged by the defendant's trial counsel to be without a change in the tone of the
prosecutor's voice. Therefore, this mistake was minor and incidental and had no negative
impact on the jury.
In sum, when one considers all of the prosecutor's statements as a whole, I fail
to see how these statements come close to constituting specific references to the defendant's
decision to not testify. There simply is no evidence in the record to suggest that these
statements were manifestly intended to be a reminder of the defendant's election to not
testify, nor can I imagine how a jury would necessarily take these statements as such.
Instead, I see two wholly permissible arguments and an innocent, promptly-corrected slip of
the tongue. In short, there was no improper commentary on the defendant's silence.
Further, it is very significant that the defendant failed to preserve the alleged
error for appeal purposes. Therefore, in order to reverse the defendant's conviction, the
majority found the prosecutor's comments to be plain error which is utter nonsense. This
Court has held that “[t]o 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.” Syllabus Point 7, State v. Miller,
194 W.Va. 3, 459 S.E.2d 114 (1995). We have also held,
An unpreserved error is deemed plain and affects substantial rights only
if the reviewing court finds the lower court skewed the fundamental fairness
or basic integrity of the proceedings in some major respect. In clear terms, the
plain error rule should be exercised only to avoid a miscarriage of justice. The
discretionary authority of this Court invoked by lesser errors should be
exercised sparingly and should be reserved for the correction of those few
errors that seriously affect the fairness, integrity, or public reputation of the
judicial proceedings.
Syllabus Point 7, State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996). Incredibly, the
majority finds that the prosecutor's comments, which were not timely objected to and which
at worst were susceptible to more than one interpretation, amounted to plain error. In other
words, the majority actually concludes that the alleged error affected the defendant's
substantial rights and seriously affected the fairness, integrity, or public reputation of the
judicial proceedings. This is a gross misapplication of the plain error doctrine.
For anyone who fairly evaluates the evidence in this case in the real world,
what really occurred here is plain. The defendant, who admitted he had been drinking, was
either drunk or impaired at the time he struck Justin McAnulty. The defendant knew when
the accident happened that he had struck and seriously injured or killed a person. But the
defendant left Mr. McAnulty lying mortally wounded or dead because he did not want to be
arrested and charged with the crime of DUI causing death. The next morning, after he was
sober and knew he could pass a Breathalyzer or Blood Test, the defendant returned to the
scene of the accident and pretended to find Mr. McAnulty's body for the first time. That is
what really happened here and everybody familiar with the evidence knows it. However, I
long ago gave up believing that trials are a search for the truth.
Finally, by so unnecessarily restricting the arguments of prosecutors, the
majority has effectively muzzled them, rendering them unable to fairly present their side of
the case. In so doing, the majority has left the State at a significant disadvantage in the
prosecution of criminal defendants which will result in more guilty persons going free. Of
course, the ultimate losers are law-abiding citizens who depend upon the State to protect
them, their loved ones and their property from dangerous criminals.
Accordingly, for the reasons stated above, I dissent.