Hatcher v. McBride

• Decision Date: 21 November 2006
• Docket Number: No. 32977.,32977.
• Citation: 650 S.E.2d 104
• Parties: Frederico HATCHER, Petitioner Below, Appellant v. Thomas McBRIDE, Warden, Respondent Below, Appellee.
• Court: West Virginia Supreme Court

650 S.E.2d 104

Frederico HATCHER, Petitioner Below, Appellant v. Thomas McBRIDE, Warden, Respondent Below, Appellee.

No. 32977.

Supreme Court of Appeals of West Virginia.

Submitted September 6, 2006.

Decided November 21, 2006.

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." Syllabus Point 1 of Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

2. "As to the balancing under Rule 403 [of the West Virginia Rules of Evidence], the trial court enjoys broad discretion. The Rule 403 balancing test is essentially a matter of trial conduct, and the trial court's discretion will not be overturned absent a showing of clear abuse." Syllabus Point 10, in part, of State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994).

3. "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." Syllabus Point 4 of 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).

4. Judges are not per se disqualified from being called as witnesses but should be called as witnesses with caution.

5. A judge who is requested to testify as a witness shall discourage the party from requiring him or her to testify; however, the judge may testify when properly summoned upon approval of the trial court and with such limitations as may be imposed by the trial court.

6. In the event a party persists in its effort to require a judge to testify the trial judge shall conduct a hearing and apply the balancing test in Rule 403 of the West Virginia Rules of Evidence. At the hearing, the party calling the witness must: (a) state the testimony expected from the judge; (b) explain why the judge's testimony is relevant and necessary to the party's case; and (c) describe the efforts made to obtain the same evidence from alternate sources. The party seeking the judge's testimony must show that the testimony it seeks to introduce is material and favorable to its case, that the testimony is the only possible source of testimony on the relevant information, and, if the case is being tried before a jury, that the testimony is highly pertinent to the jury's task.

7. When a judge testifies as a witness the examining attorney, the testifying judge, and the trial judge shall not refer to the fact that the judge-witness is a "judge" except when the judge's testimony relates to the exercise of the judge's judicial function the examining attorney, the testifying judge, and the trial judge may refer to the judge by his or her title only to the extent necessary to identify the judge at the beginning of his or her testimony.

8. When a judge testifies as a witness before a jury and the testifying judge's title is expected to be known by members of the jury or is disclosed to the jury, the trial judge shall, both before the judge testifies, and again before the case is submitted to the jury, give a cautionary instruction advising the jury that a judge's testimony is not entitled to greater weight merely because the witness is a judge.

Susan Breece, Huntington, for Appellant.

Darrell V. McGraw, Jr., Attorney General, Robert D. Goldberg, Assistant Attorney General, Charleston, for Appellee.

STARCHER, J.:

Appellant appeals from an order entered by the circuit court of Cabell County denying his petition for a writ of habeas corpus. The appellant claims in his petition that his sentencing following the penalty phase of a bifurcated trial in which the appellant was convicted of murder in the first degree was prejudiced by highly prejudicial and opinionated statements made by a circuit judge who testified as a witness on behalf of the State. For the reasons set forth below, we affirm the dismissal of appellant's petition.

I. Facts & Background

On October 22, 1995, a clerk at the Convenient Food Mart in Huntington was shot three times with a.357 Magnum revolver and killed. Mike Walker and Shawn Tabor confessed to the offense after which Walker, Tabor, and the appellant were arrested for the murder.

On February 8, 1996, the grand jury of Cabell County returned an indictment for murder against the appellant, Frederico Hatcher, and also against Michael Walker and Shawn Tabor. On June 24, 1996, the trial against the appellant was commenced. Both Walker and Tabor testified at the trial of the appellant.

At trial Walker testified that during an attempt to shoplift beer from the convenience store, the appellant shot the victim twice and then handed him [Walker] the gun and told him [Walker] to "shoot him or else." Walker further testified that he was afraid of the appellant, and was in fear for himself, or for his sister. Walker then also shot the victim. Tabor testified that the appellant stated an intention to shoot the clerk during the robbery because the appellant already had one criminal charge pending and that he "did not need any witnesses." After the shooting and while leaving the store, Walker dropped the gun outside and all three men fled.

The appellant's trial concluded on the 27th day of June, 1996, with a verdict of guilty of first degree murder.

The penalty phase of the trial was commenced on the same day, the 27th day of June, after the guilty verdict was returned. During the penalty phase of the trial, the prosecuting attorney called Judge Alfred E. Ferguson to testify. Judge Ferguson was not listed as a witness for the State until about three hours before the penalty phase of the trial began. The record does not indicate that the appellant objected to the State's decision to call the judge as a witness. During the judge's testimony, the prosecuting attorney repeatedly referred to Judge Ferguson as "Judge."¹

Following Judge Ferguson's testimony which centered on the judge's experience with the defendant as a juvenile, the jury completed its work in the penalty phase of the trial. The jury did not return a recommendation for mercy.

On August 13, 1996, the circuit court sentenced the appellant to the custody of the Commissioner of Corrections for assignment to the "Penitentiary of this State, there to be confined for a period `Life Without a Recommendation of Mercy.'" The appellant appealed his conviction, and on October 1, 1997, this Court refused to grant the direct appeal.

The appellant filed the instant habeas corpus petition in circuit court on December 22, 1998. For some reason it was not until May 23, 2005, that the circuit court held the habeas corpus hearing. On May 27, 2005, the circuit court entered an order denying the petition. It is from this order that the appellant appeals.

This Court granted the petition for appeal of the denial of appellant's writ of habeas corpus, limited to Assignment of Error No. 1: "Whether Mr. Hatcher's sentencing was unfairly prejudiced by highly prejudicial statements made by a Circuit Judge."

II. Standard of Review

"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." Syllabus Point 1 of Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

III. Discussion

A.

The appellant's argument essentially is that the probative value of the judge's testimony was grossly outweighed by its unfair prejudice to the appellant. This argument is to be considered under Rule 403 of the West Virginia Rules of Evidence.² Assessing the potential prejudice and how it should be weighed is generally within the broad discretion of the trial court, and such assessment will not be disturbed unless we find an abuse of discretion. In Syllabus Point 10 of State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994), we said, in part:

... As to the balancing under Rule 403 [of the West Virginia Rules of Evidence], the trial court enjoys broad discretion. The Rule 403 balancing test is essentially a matter of trial conduct, and the trial court's discretion will not be overturned absent a showing of clear abuse.

In the instant case the appellant asserts that the judge's testimony violates the Canons 1, 2 and 3 of the Code of Judicial Conduct.³

It is Canon 2.B. of the Code of Judicial Conduct that addresses the issue of a judge testifying as a character witness. The Canon states, in part, as follows:

... A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or knowingly permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness.

(Emphasis added.)

Furthermore, the commentary following Canon 2.B. contemplates judicial testimony. The commentary, in part, suggests that:

Maintaining the prestige of judicial office is essential to a system of government in which the judiciary functions independently of the executive and legislative branches. Respect for the judicial office facilitates the orderly conduct of legitimate judicial functions. Judges should distinguish between proper and improper use of the prestige of office in all of their activities....

. . .

A judge must not testify voluntarily as a character witness because to do so may lend the prestige of the judicial office in support of the party for whom the judge testifies. Moreover, when a judge testifies as a witness, a lawyer who regularly appears before the judge may be placed in the awkward...