663 S.E.2d 648
“A criminal defendant has no constitutional right to have his witnesses appear
at trial without physical restraints or in civilian attire.” Syl. pt. 3, State ex rel. McMannis v.
Mohn, 163 W. Va. 129, 254 S.E.2d 805 (1979), cert. denied, 464 U.S. 831, 104 S.Ct. 110,
78 L.Ed.2d 112 (1983). Despite this well-established principle, the majority grants habeas
corpus relief to Gary Allen Gibson (hereinafter “the defendant”) on the basis that a number,
but not all, of his incarcerated witnesses testified at trial in prison attire and shackles. In
general, habeas corpus relief, such as that sought in this proceeding, is not available to
correct ordinary trial error, but is reserved for addressing constitutional violations. See, Syl.
pt. 4, McMannis, 163 W. Va. 129, 254 S.E.2d 805 (“A habeas corpus proceeding is not a
substitute for a writ of error in that ordinary trial error not involving constitutional violations
will not be reviewed.”); Pethel v. McBride, 219 W. Va. 578, 588-9, 638 S.E.2d 727, 737-8
(2006) (“The right to habeas relief is, by necessity, limited. If it were not, criminal
convictions would never be final and would be subject to endless review. . . . Accordingly,
habeas relief is available only where: (1) there is a denial or infringement upon a person's
constitutional rights; (2) the court was without jurisdiction to impose the sentence; (3) the
sentence exceeds the legal maximum; or (4) the conviction would have been subject to
collateral attack by statute or at common-law prior to the adoption of W. Va. Code § 53-4A-
1.”). Recognizing that the physical appearance of these witnesses when testifying does not,
standing alone, rise to a constitutional level, the majority finds that under the facts of this
case, it impacted the defendant's constitutional right to a fair trial because the State's
incarcerated witnesses were permitted to testify in civilian clothing and unshackled.
However, the facts of this case, demonstrate that there was no violation of the defendant's
constitutional right to a fair trial and that valid reasons existed for those incarcerated defense
witnesses to appear and testify in prison attire and shackles.
Defendant was tried and convicted in January 1989 in the Circuit Court of
Cabell County (See footnote 1) for conspiracy to commit the murder of Danny Lehman. (See footnote 2) Mr. Lehman's
murder occurred on November 26, 1986, in the North Hall of the West Virginia State
Penitentiary at Moundsville (hereinafter “Moundsville”), where the defendant was serving
a life sentence. On January 1, 1986, the worst prisoner riot in the history of Moundsville
occurred. (See footnote 3) In March 1986, this Court issued an opinion in Crain v. Bordenkircher, 176
W. Va. 338, 342 S.E.2d 422 (1986), finding the conditions at Moundsville unconstitutional.
In November 1988, finding the conditions at Moundsville had not improved, this Court
ordered the facility closed by July 1, 1991. Crain v. Bordenkircher, 180 W. Va. 246, 247-8,
376 S.E.2d 140, 141-2 (1988). (See footnote 4) In light of the publicity surrounding the January 1986 riots
and this Court's ordering that Moundsville be closed, the dangerous nature of the facility
and persons incarcerated therein was undoubtedly well-known to the jurors without
comment from anyone.
Of the seven defense witnesses who testified at defendant's trial, six were
incarcerated at Moundsville at the time of trial. All six were serving life sentences, two of
these witnesses were housed in maximum security and the remaining four were housed in
the general population. These six witnesses testified wearing prison attire and shackled.
The seventh defense witness, who was incarcerated at the Huttonsville Correctional Facility
at the time of trial, testified wearing civilian attire with no physical restraints. In order to
testify, the Moundsville inmates were required to be transported approximately 200 miles
from the Moundsville facility to Cabell County. While in Cabell County, they were held in
an unsecure courtroom, not in a jail cell, while awaiting their turn to testify and return to
Moundsville. The record does not include a motion by the defendant to have the
Moundsville witnesses appear in civilian attire or unrestrained, nor does it include evidence
that the defendant attempted to arrange their appearance in civilian attire with custodial
authorities. A post-trial order was entered, however, on April 17, 1989, stating, in pertinent
part, that “[p]rior to the presentation of evidence and testimony by the Defense, the Court
ordered that witnesses for the defendant, those who were inmates transported from the
Penitentiary at Moundsville, would remain bound and shackled for security reasons, to
which ruling the defendant, by counsel, objects and excepts.”
With respect to the disparity in appearance between the States's two
incarcerated witnesses and six of the seven incarcerated defense witnesses, two things are
clear. First, the jury was informed that the two State witnesses who appeared in civilian
clothing and unrestrained were incarcerated at the Huttonsville Correctional Center at the
time of their testimony and had been given special consideration in exchange for their
testimony. Second, the judge gave a strong cautionary instruction prior to the presentation
of the defense witnesses that their physical appearance was not to impact judgment of their
credibility. (See footnote 5)
This trial occurred nearly twelve years before this Court issued its decision in State v. Allah Jamaal W., 209 W. Va. 1, 543 S.E.2d 282 (2000), wherein guidelines for the
appearance of defense witnesses in prison attire and physical restraints were established.
Nevertheless, the record herein demonstrates that, under the facts of this case, these
guidelines were met. In Allah Jamaal W., this Court stated:
In view of McMannis and other authorities, we hold as
follows. The issue of whether a witness for the defendant
should be physically restrained or required to wear prison attire
while testifying before a jury is, in general, a matter within the
sound discretion of the trial judge and will not be reversed
absent a showing of an abuse of that discretion. The trial judge
should not permit an incarcerated defense witness to appear at
trial in the distinctive attire of a prisoner. However, the burden
is upon the defendant to timely move that an incarcerated
witness be permitted to testify at trial in civilian clothes. If the
trial judge denies the motion, the judge must set forth on the
record the reasons for denying said motion. An incarcerated
defense witness should not be subjected to physical restraint
while in court unless the trial judge has found such restraint
reasonably necessary to prevent escape, provide safety, or
maintain order in general. The burden is upon the defendant to
timely move that an incarcerated defense witness be permitted
to testify at trial without physical restraints. If the trial judge
orders such restraint, the judge must enter into the record of the
case the reasons therefor. Whenever the wearing of prison attire
or physical restraint of a defense witness occurs in the presence
of jurors trying the case, the judge should instruct those jurors
that such attire or restraint is not to be considered in assessing
the evidence and determining guilt.
Allah Jamaal W., 209 W. Va. at 6-7, 543 S.E.2d at 287-8. In the instant matter, there is no
evidence that the defendant made a motion to either have the Moundsville witnesses appear
in civilian attire or unrestrained, these men posed significant security risks readily apparent
to the trial court, the jury and the public in general, and the judge issued the proper
cautionary instruction. I do not see where the trial judge abused his discretion in permitting
these witnesses to testify in prison attire and shackles. Nor do I agree that the disparity in
appearance between the State's incarcerated witnesses and some of the defense incarcerated
witnesses, under the facts of this case which involved a murder in the Moundsville
Penitentiary, rises to the level of a constitutional infringement of the defendant's right to a
fair trial. The jury was well aware of who all witnesses were and their crimes. As such, I
respectfully dissent from the majority's decision to grant habeas corpus relief herein.