Albright, Justice:
This case involves an appeal of Jeffrey Lee Finley (hereinafter referred to as
“Appellant”) of his sentence of life without mercy, imposed in the Circuit Court of Cabell
County by order entered on October 28, 2004, as recommended by the jury which found
Appellant guilty of the offense of first-degree murder. (See footnote 1) While Appellant's petition for appeal
assigned six errors committed by the trial court, this Court accepted the petition on the sole
issue of whether it violates due process under the West Virginia and United States
Constitutions to require a criminal defendant to wear jail or prison clothing during the
penalty phase (See footnote 2) of a bifurcated jury trial for murder. For the reasons set forth below, we
reverse the judgment and remand the case only for rehearing of the penalty phase of the trial.
Unlike physical restraints, permitted under [Illinois v.] Allen, [397 U.S. 337 (1970),] . . . compelling an accused to
wear jail clothing furthers no essential state policy. That it may
be more convenient for jail administrators, a factor quite unlike
the substantial need to impose physical restraints upon contumacious defendants, provides no justification for the
practice.
425 U.S. at 505 (internal footnote omitted).
Analyzing the Estelle ruling, this Court in State ex rel. McMannis v. Mohn,
163 W.Va. 129, 254 S.E.2d 805 (1979), noted that “Estelle is bottomed on the defendant's
constitutionally sanctioned presumption of innocence, across which prison attire can cast a
substantial shadow, since the attire communicates a condition of guilt.” Id. at 135, 254
S.E.2d at 808. We went on to hold in syllabus point two of McMannis that “[a] criminal
defendant has the right under the Due Process Clause of our State and Federal Constitutions
not to be forced to trial in identifiable prison attire.” After so finding, we examined in McMannis whether the constitutional principle extended to witnesses for the defense. Again
relying on the pivotal issue of presumption of innocence, this Court found that a defendant
has no constitutional right to have his or her witnesses appear at trial in civilian clothing
because “[t]he defendant's witnesses are not cloaked in his presumption of innocence, nor
do they derive such shelter independently.” Id. Similarly, the presumption of innocence was
the reason why this Court found that criminal defendants in recidivist proceedings were
afforded the same constitutional protections as any similarly situated defendant and could
not be compelled to wear jail clothing. State v. Reedy, 177 W.Va. 406, 352 S.E.2d 158
(1986).
None of these cases _ Estelle, McMannis or Reedy _ specifically discussed the
appearance of a criminal defendant in the context of a bifurcated proceeding. It was not
until the May 23, 2005, decision of the U.S. Supreme Court in Deck v. Missouri, 544 U.S.
622, that the constitutionality of the forced appearance of a criminal defendant at the guilt
phase versus the penalty phase of a bifurcated capital offense trial was definitively
addressed, albeit in a different factual light than the case now pending. The Supreme Court
concluded in Deck that the United States “Constitution forbids the use of visible shackles
during the [capital trial's] penalty phase, as it forbids their use during the guilt phase, unless that use is 'justified by an essential state interest' _ such as the interest in courtroom security
_ specific to the defendant on trial.” Id. at 624 (emphasis in original; citation omitted).
As an initial step in its analysis in Deck, the Supreme Court identified the
following three “reasons that motivate the guilt-phase constitutional rule”: (1) the
presumption of innocence and the related fairness of the fact-finding process; (2) the
constitutional guarantee of the right to counsel; and (3) the obligation of judges to maintain
a dignified judicial process which includes the respectful treatment of defendants. 544 U.S.
at 630-631.
Recognizing that the defendant's presumption of innocence is no longer an
issue at the penalty phase of a capital trial, the court in Deck reasoned that
[t]he appearance of the offender during the penalty phase in
shackles . . . almost inevitably implies to a jury, as a matter of
common sense, that court authorities consider the offender a
danger to the community _ often a statutory aggravator and
nearly always a relevant factor in jury decisionmaking. . . . It
also almost inevitably affects adversely the jury's perception of
the character of the defendant. And it thereby inevitably
undermines the jury's ability to weigh accurately all relevant
considerations . . . when it determines whether a defendant
deserves death.
Id. at 633 (internal citations omitted). Consequently, the court found that even though the
right to the presumption of innocence no longer existed at the penalty phase, the other
fundamental legal principles bearing on fairness of securing a meaningful defense and
maintaining dignified judicial proceedings “that militate against the routine use of visible
shackles during the guilt phase of a criminal trial apply with like force to penalty
proceedings in capital cases . . . . Although the jury is no longer deciding between guilt and
innocence, it is deciding between life and death . . . . [a] decision [that] is no less important
than the decision about guilt.” Id. at 632.
Appellant asserts that the forced wearing of jail clothing is analogous to the
forced shackling addressed in Deck because the readily identifiable orange uniforms
provided residents of regional jails convey the same messages as the shackles Mr. Deck was
required to wear. More specifically, Appellant maintains that the jury could not fairly decide
the mercy issue when a defendant is forced to wear a jail uniform during the penalty phase
since the jail clothing constantly sends the message to the jury that the person wearing the
outfit is in custody because he is a dangerous person and the mere sight of someone wearing
a prison uniform implies a dangerous character.
The issue of whether criminal defendants are deprived a fair trial when they
are required to wear jail or prison clothing during the penalty phase of a murder trial is a
matter of first impression for this Court. As a matter of fact, our research reveals that no
other court has addressed the issue since Deck was decided. The only case decided after Deck we have located which even raises the precise issue now before us is Ochoa v. State
of Oklahoma, 136 P.3d 661 (Okla. 2006). In Ochoa, the Court of Criminal Appeals of
Oklahoma was presented with the argument that Deck extended constitutional protection
against compelling the wearing of prison clothes at the penalty phase of a murder trial.
However, the Oklahoma appellate court, sidestepping any discussion of Deck, concluded
that the defendant had waived his right under Estelle v. Williams by failing to request to
wear civilian clothes.
The State directs our attention to two cases (See footnote 5) , decided before Deck, in which
it was determined that compelling the wearing of prison clothes during the penalty phase of
a trial did not violate due process. We do not find these cases particularly enlightening since
they concur with the conclusion in Deck, that the presumption of innocence no longer has
vitality during the penalty phase of a bifurcated trial. The other two concerns discussed by
the Supreme Court in Deck involving a fair trial, securing a meaningful defense and
maintaining dignified judicial proceedings, are not addressed in these cases.
In examining these two remaining concerns in the context of compelled
appearance in jail or prison clothing during the penalty phase, we find no discernable
difference in the prejudicial effect upon a jury of seeing a person in prison garb versus
seeing that person in shackles in light of the decision the jury is obliged to make at this
portion of the trial. At the penalty phase, the jury is no longer looking narrowly at the
circumstances surrounding the charged offense. In order to make a recommendation
regarding mercy, the jury is bound to look at the broader picture of the defendant's character
_ examining the defendant's past, present and future according to the evidence before it _
in order to reach its decision regarding whether the defendant is a person who is worthy of
the chance to regain freedom. See Zant v. Stephens, 462 U.S. 862, 900 (1983) (Rehnquist,
J., concurring in judgment) (at the penalty stage a jury considers the character and
propensities of a defendant in order to make a “unique, individualized judgment regarding
the punishment that a particular person deserves.”) The jury must be as impartial in reaching
this decision as it was in reaching the conviction decision. Courts bear the burden of
ensuring that necessary steps be taken to maintain the dignity and neutrality of the penalty
phase proceedings, like any other proceedings, in order to provide a fair trial within the
constitutional guarantee of due process. As recognized in Deck, elusive and unquantifiable
considerations must be minimized throughout a murder trial, at both guilt and penalty
phases. While the court in Deck decided that the compelled use of visible shackles at the
penalty phase impugns the integrity of the proceedings and manifests a violation of due
process because the practice essentially puts a thumb on one side of the scale, we find the
same degree of unfairness results when a criminal defendant is forced to wear jail or prison
clothing during the penalty phase of a bifurcated murder trial. It matters not as far as this
analysis goes that the Deck case involved a decision regarding the death penalty because the
parallel degree of punishment which may be levied for the same crime in West Virginia is
life without mercy. Accordingly we hold that the due process afforded by the West Virginia
and United States Constitutions (See footnote 6) demands that a criminal defendant may not routinely be
compelled to appear in jail or prison clothing at the penalty phase of a bifurcated murder
trial. We also adhere to the conclusion reached in Deck that the constitutional requirement
is not absolute in that “[i]t permits a judge, in the exercise of his or her discretion, to take
account of special circumstances, including security concerns.” 544 U.S. at 633. We have
adopted the same view regarding the use of restraints at trial. State v. Youngblood, 217
W.Va. 535, 544, 618 S.E.2d 544, 553 (2005) (discussing and citing case examples). Thus
we find that the decision regarding whether a criminal defendant be required to wear
identifiable prison or jail clothing at the penalty phase of a bifurcated murder trial is within
the sound discretion of the trial court, subject to an evidentiary hearing that establishes an
essential state interest which justifies imposing the requirement.
Appellant also asserts that in the event we find that the penalty phase was
fatally flawed, the only proper remedy is a new trial and not simply a remand for retrial of
the mercy determination. Appellant bases this assertion on the wording of West Virginia
Code § 62-3-15 (1994) (Repl. Vol. 2005), that provides “if the jury find in their verdict that
. . . [the accused] is guilty of murder in the first degree . . . the jury may, in their discretion,
recommend mercy, and if such recommendation is added to their verdict, such person shall
be eligible for parole[.]”. Essentially, Appellant maintains that the language used in this
statute mandates that the same jury which determines the issue of guilt must also be the jury
that decides the issue of mercy. While there is no question that a single jury panel generally
determines both guilt and mercy matters, this Court has on a previous occasion found that
where the error on appeal of a bifurcated proceeding does not affect “the finding of guilt . . .
[then] it would be a waste of judicial resources to require an entirely new trial, rather than
to require a limited trial on the recommendation of mercy.” State v. Doman, 204 W.Va. 289,
292, 512 S.E.2d 211, 214 (1998). Accordingly, the judgment of the lower court finding the
Appellant guilty of first-degree murder is affirmed, but the judgment regarding the jury's
penalty phase recommendation is reversed. Upon remand, the court shall empanel a jury for
trial of the sole issue of whether mercy is to be recommended for the sentencing of
Appellant. Since the jury would not have information regarding the guilt phase of the trial,
the lower court should exercise reasonable discretion in determining how the circumstances
of the commission of the crime are to be conveyed to the jury in addition to other evidentiary
matters appropriate to the mercy phase that the parties may adduce.