254 S.E.2d 805 (W.Va. 1979), 14145, State ex rel. McMannis v. Mohn

Docket Nº:14145.
Citation:254 S.E.2d 805, 163 W.Va. 129
Opinion Judge:MILLER, Justice:
Party Name:STATE ex rel. Richard R. McMANNIS v. Richard MOHN, Acting Superintendent, West Virginia Penitentiary as successor to Bobby J. Leverette.
Attorney:[163 W.Va. 131] Royce B. Saville, Romney, for relator. Chauncey H. Browning, Atty. Gen., Gregory W. Bailey, Asst. Atty. Gen., Charleston, for respondent.
Case Date:January 30, 1979
Court:Supreme Court of Appeals of West Virginia
 
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Page 805

254 S.E.2d 805 (W.Va. 1979)

163 W.Va. 129

STATE ex rel. Richard R. McMANNIS

v.

Richard MOHN, Acting Superintendent, West Virginia

Penitentiary as successor to Bobby J. Leverette.

No. 14145.

Supreme Court of Appeals of West Virginia.

January 30, 1979

On Rehearing May 22, 1979.

Page 806

Syllabus by the Court

1. "Where a prisoner being proceeded against under the habitual criminal statute remains silent or says he is not the same person who was previously convicted and sentenced to the penitentiary[163 W.Va. 130] offense or offenses alleged in the information, a circuit court has no jurisdiction to impose an enhanced sentence under the statute where the State fails to prove beyond a reasonable doubt that each penitentiary offense, including the principal penitentiary offense, was committed subsequent to each preceding conviction and sentence. W.Va.Code §§ 61-11-18, 19." Syllabus, State v. McMannis, W.Va., 242 S.E.2d 571 (1978).

2. 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. However, where a criminal defendant is tried in identifiable prison attire without any initial objection, and the offense for which he is tried is prison-related such that the jury necessarily knows from the evidence that he was in prison at the time of the commission of the offense, the error will be deemed not prejudicial under the doctrine of harmless constitutional error.

3. A criminal defendant has no constitutional right to have his witnesses appear at trial without physical restraints or in civilian attire.

4. 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.

5. The void portion of a judgment can be attacked in a habeas corpus proceeding, but if there remains a valid portion of the sentence yet to be served, the relator is not entitled to a discharge.

6. Since a recidivist proceeding does not involve a separate substantive offense, double jeopardy principles do not bar a retrial of that proceeding.

[163 W.Va. 131] Royce B. Saville, Romney, for relator.

Chauncey H. Browning, Atty. Gen., Gregory W. Bailey, Asst. Atty. Gen., Charleston, for respondent.

MILLER, Justice:

In this original habeas corpus proceeding the relator contends that his life sentence under our recidivist statute, W.Va.Code, 61-11-18 and -19, is void. He further urges that his conviction for second degree sexual assault be set aside in that he was compelled to wear prison clothes at the time of the trial, in violation of the principle of Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). Finally, he states this same principle applies to his witnesses, who were brought to the trial in prison garb and handcuffs.

The State admits that the life imprisonment sentence is void under the principles stated in the Syllabus of State v. McMannis, W.Va., 242 S.E.2d 571 (1978), which requires the State to prove "that each penitentiary offense, including the principal penitentiary offense, was committed subsequent to each preceding conviction

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and sentence." We agree, and therefore do not discuss this assignment of error.

McMannis was confined in the State Penitentiary on a previous felony conviction. At the time of the present trial, he was returned to Mineral County to be tried for a sexual offense which allegedly occurred in the Mineral County Jail while he was awaiting a hearing on a writ of habeas corpus relating to a previous felony conviction. Throughout the present trial he was clothed in prison issue bearing the inscriptions "West Virginia Penitentiary" and "WVP" both on the seat of the pants and the back of the shirt.

Relator's counsel did not object to this attire until after he had examined the first defense witness and had [163 W.Va. 132] called his second witness, Ray Hott. At this point Hott, along with Robert Kerns, another defense witness, both of whom were inmates of the Penitentiary and had been fellow jail inmates with the defendant at the time the sexual assault occurred, were brought into the courtroom. Each was dressed in prison garb identical to that of the defendant and each was handcuffed.

At this juncture, defense counsel moved for a mistrial on the ground that the appearance of Hott and Kerns in prison garb identical to that worn by the accused, and in handcuffs, raised "an unfavorable opinion" and "inference" in the jurors' minds about the defendant.

Interpreting this contention as in part an assertion that the defendant himself ought not be wearing prison clothing, the trial court stated that "it's been noted all through the trial that, and I assume that (it is) Richard Ray McMannis' choice, in the best sense of the word, but it is his choice that he is here in prison garb. . . ." As to witnesses Hott and Kerns, the court ordered that the guards put on and remove their handcuffs outside the presence of the jury during the remainder of the trial. Thereupon, the trial resumed and Hott and Kerns testified.

I

Estelle v. Williams determined that a criminal defendant may not be compelled to wear prison attire at his trial. 1 The basis of this rule was found to rest on the principle that "(T)he presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice." 425 U.S. at 503, 96 S.Ct. at 1692, 48 L.Ed.2d at 130.

Estelle involved a Texas state trial where the defendant, who had been held in jail because he was unable to make bond, was brought to the trial in prison garb. He [163 W.Va. 133] had asked for his civilian clothes before trial, but this was denied by the jail authorities. At the trial during the Voir dire, his attorney made reference to his attire, but did not make objection to the court that his client was compelled to attend the trial in prison attire.

Obviously, since it was dealing with a state conviction, the Court had to utilize the Due Process Clause of the Fourteenth Amendment to apply the constitutional standard to the states: "The right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment." 425 U.S. at 503, 96 S.Ct. at 1692, 48 L.Ed.2d at 130.

After setting the issue on the constitutional pedestal, the Court indicated that it was not a fundamental right such that a knowing and intelligent waiver of the right must be shown, and concluded:

"Accordingly, although the State cannot, consistently with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothes, the failure to make an objection to the court as to being tried in such clothes, for whatever reason, is sufficient to negate the presence of compulsion necessary to establish a constitutional violation." (425 U.S. at 512-13, 96 S.Ct. at 1697, 48 L.Ed.2d at 135)

Page 808

We recognize that Estelle differs factually from the present situation, in that the defendant in Estelle was not being tried, as was the defendant McMannis, for a crime committed while he was in jail. Estelle noted that in this latter situation, courts have concluded that being tried in prison garb is not prejudicial, since the jury will learn of the defendant's confinement in the course of the development of the evidence:

"In other situations, when, for example, the accused is being tried for an offense committed in confinement, or in an attempted escape, courts have refused to find error in the practice. In United States ex rel. Stahl v. Henderson, 472 F.2d [163 W.Va. 134] 556 (CA5), cert. denied, 411 U.S. 971, 93 S.Ct. 2166, 36 L.Ed.2d 694 (1973), the Court of Appeals declined to overturn a conviction where the defendant, albeit tried in jail clothes, was charged with having murdered another inmate while confined in prison. 'No prejudice can result from seeing that which is already known.' 472 F.2d at 557. In the present case, the Court of Appeals concluded:

" 'A different result may be appropriate where the defendant is on trial for an offense allegedly committed while he was in prison, because the jury would learn of his incarceration in any event.' (5 Cir.) 500 F.2d (206), at 209 n. 5.

"Contra:People v. Roman, 35 N.Y.2d 978, 365 N.Y.S.2d 527, 324 N.E.2d 885 (1975)." (425 U.S....

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