Gibson v. McBride

• Decision Date: 12 June 2008
• Docket Number: No. 33321.,33321.
• Citation: 222 W.Va. 194,663 S.E.2d 648
• Parties: Gary Allen GIBSON, Petitioner Below, Appellee v. Thomas McBRIDE, Warden, Mount Olive Correctional Facility, Respondent Below, Appellant.
• Court: West Virginia Supreme Court

663 S.E.2d 648

222 W.Va. 194

Gary Allen GIBSON, Petitioner Below, Appellee v. Thomas McBRIDE, Warden, Mount Olive Correctional Facility, Respondent Below, Appellant.

No. 33321.

Supreme Court of Appeals of West Virginia.

Submitted January 9, 2008.

Decided June 12, 2008.

Dissenting Opinion of Justice Benjamin June 23, 2008.

Syllabus by the Court

1. "In reviewing challenges to the findings and conclusions of the circuit court in a habeas corpus action, we apply a three-prong standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard; the underlying factual findings under a clearly erroneous standard; and questions of law are subject to a de novo review." Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

2. "`"The right to a trial by an impartial, objective jury in a criminal case is a fundamental right guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and Article III, Section 14 of the West Virginia Constitution." Syllabus point 4, [in part,] State v. Peacher, 167 W.Va. 540, 280 S.E.2d 559 (1981).' Syllabus point 4, in part, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994)." Syl. Pt. 2, State v. Varner, 212 W.Va. 532, 575 S.E.2d 142 (2002).

Darrell V. McGraw, Jr., Attorney General, Robert D. Goldberg, Assistant Attorney General, Charleston, Counsel for the Appellant.

R. Lee Booten, II Huntington, for the Appellee.

PER CURIAM:

This is an appeal by Thomas McBride, Warden, Mount Olive Correctional Facility ("Appellant"), from an order entered in the Circuit Court of Cabell County, West Virginia, on May 10, 2006. In that order, the circuit court set aside the conviction and sentence of Gary Allen Gibson ("Defendant") for conspiracy to commit murder. Upon careful review of the briefs, record, arguments of counsel, and applicable precedent, this Court is of the opinion that Defendant's constitutional right to a fair trial was violated when the trial court allowed key witnesses for the State, who were incarcerated at the time of trial, to testify in civilian clothing and without shackles while key defense witnesses—who were also incarcerated—testified wearing prison attire and were forced to wear shackles. Accordingly, the order granting Defendant's petition for writ of habeas corpus is affirmed.

I. Factual and Procedural Background

In 1985, Defendant was sentenced to a term of life imprisonment after he was tried and convicted under the recidivist statute.¹ See W.Va.Code § 61-11-18 (2000) (Repl.Vol. 2005). It was during his confinement in the West Virginia Penitentiary, in Moundsville, West Virginia, that the State of West Virginia ("State") indicted Defendant on the felony charge of conspiracy. The indictment charged that on or about November 26, 1986, Defendant conspired with four other named inmates to commit the murder of Danny Lehman, a fellow prisoner.

During the trial on the conspiracy charge, Defendant's version of the events leading up to and including Danny Lehman's death was presented through the testimony of several fellow inmates. Specifically, Defendant called seven witnesses who were incarcerated at Moundsville at the time of trial. All seven witnesses were shackled and wore prison attire while they testified.²

According to the record in this case, over Defendant's objection, the trial court ordered Defendant's incarcerated witnesses to remain "bound and shackled" during their testimony for unspecified "security reasons":

Prior 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.

Although the foregoing April 17, 1989, order did not also indicate that the trial court had ordered defense witnesses to appear in prison clothing, it is undisputed that all of the defense witnesses who were incarcerated at Moundsville at the time of trial testified wearing prison attire.

At trial, Defendant argued that he was not part of a conspiracy to murder Danny Lehman. Inmate Gary Gillespie testified that he acted alone when he stabbed Lehman in self defense. Gillespie testified that there was a history of trouble between him and Lehman and that, on the day of the murder, the two were involved in a verbal altercation over a piece of exercise equipment in the prison recreation yard.³ According to Gillespie, Lehman told him he was going to go arm himself and when he returned, Gillespie should be armed, too. Gillespie testified that when Lehman returned,

I noticed—I can't remember—quite remember if it was the left or his right hand, was hidden out of view behind his leg, and in my mind when I seen that I assumed that he might have had a weapon there out of my sight, but as far as seeing him with a weapon, no, I didn't.

. . .

I was just moving along slowly and he was moving at me slowly and it happened so quick. It was more or less a clash. He fell into me and it was just maybe a five or six second thing . . . . we're clutching each other, and I reached down with my left hand and pull out my knife and I strike out.

. . .

Well, I had overpowered him with my right arm I had around his neck, and I just brought it around in an arc with my left hand, my knife, and struck and he fell, he collapsed[.]

Gillespie testified that he acted alone in killing Lehman and did not enlist the help of Defendant or any of the other named co-conspirators.⁴

Following Gillespie's testimony, Defendant called six witnesses who were being housed at Moundsville at the time of trial. The purpose of the testimony of five of these witnesses was to directly contradict the State's theory that, as a co-conspirator, Defendant was standing with the other co-conspirators when and where the murder occurred in order to help facilitate the commission of the murder. Four of these witnesses testified that, after having just come in from recreation, they were talking to Defendant in a different part of the penitentiary when Lehman was murdered.⁵ Inmate David Morgan testified that although he was standing near to where the murder occurred, Defendant was not. Morgan also testified that neither he nor any of the other indicted co-conspirators, including Defendant, participated in the murder of Danny Lehman.⁶

The foregoing witnesses' testimony corroborated Defendant's own testimony that he did not conspire to murder Lehman and did not know Lehman was going to be killed.⁷ According to Defendant, he was not present when Lehman was stabbed but was in another location of the prison talking to some other inmates. He testified that when "all of a sudden it got real noisy and there was a lot of movement," he started walking toward the direction of his cell and eventually saw Lehman's dead body lying on the ground.

Contrary to Defendant's version of events, the manner in which Lehman was murdered, who was involved in carrying out the murder, and the identity of the person who committed the murder itself were depicted much differently by the State. Two of the State's key witnesses, Ervil Bogard and Wallace Jackson, were Defendant's fellow inmates at Moundsville when the murder occurred; however, sometime prior to trial, they were transferred to different facilities in exchange for their testimony in this case.⁸ The testimony of these witnesses was critical to proving the State's case. Unlike their former prison mates, Bogard and Jackson were permitted to wear civilian clothing at trial. In an order entered on January 4, 1989, the trial court directed the Department of Corrections to furnish these witnesses each with "one noninstitutional shirt and pair of pants for trial."⁹ Furthermore, they were not forced to wear shackles during their testimony before the jury.

Inmate Wallace Jackson testified that on the evening of the murder, Defendant, Gillespie and three other inmates stopped outside his cell door. According to Jackson, Gillespie handed him a knife through the door and told him to put it under his pillow. Jackson testified that while Defendant and the other three men were still standing outside Jackson's cell, several of them talked about getting ready to kill Lehman and told the men who had gathered, including Defendant, where to stand. According to Jackson, when Defendant and David Morgan were directed to stand outside Jackson's cell door to the left, both men, who were already standing to the left of the door, complied and "stayed on the left-hand side" of the door. Jackson also testified that he saw Defendant carrying a knife.

Finally, Jackson testified that when he saw Lehman come down the tier, Gillespie grabbed him from behind and pulled Lehman towards him. Jackson stated that he saw John Perry and Paul Brumfield stab Lehman. He testified that, meanwhile, he saw Defendant standing less than fifteen feet away.¹⁰

A second key prosecution witness, inmate Ervil Bogard, testified that the day before the murder, he was approached by all of the inmates who were indicted in the conspiracy to murder Lehman, including Defendant. According to Bogard, several of these men told him they were going to kill Lehman and asked Bogard to be a "cut off" person, to "make sure nobody else from the Avenger's [Lehman's gang] jumped in to help [Lehman] when it came down." Bogard further testified that Defendant and two others, Gillespie and Brumfield, asked Bogard if he was going to join their group, the Aryan Brotherhood. Bogard testified that he understood this question as an inquiry into whether he would help them murder Lehman.¹¹

Bogard testified that, on the evening of the murder, he watched from his cell as Lehman was lured to the area where Defendant and the other indicted co-conspirators were standing and that one of the men, Gillespie, grabbed Lehman from behind while Perry made a stabbing motion...