Pullin v. State, 31659.

• Decision Date: 22 October 2004
• Docket Number: No. 31659.,31659.
• Parties: John David PULLIN, Defendant Below, Appellant, v. STATE of West Virginia, Plaintiff Below, Appellee.
• Court: West Virginia Supreme Court

605 S.E.2d 803

216 W.Va. 231

John David PULLIN, Defendant Below, Appellant, v. STATE of West Virginia, Plaintiff Below, Appellee.

No. 31659.

Supreme Court of Appeals of West Virginia.

Submitted September 8, 2004.

Decided October 22, 2004.

David Karickhoff, Esq., Sutton, for Appellant.

Darrell V. McGraw, Jr., Esq., Attorney General, Colleen A. Ford, Esq., Assistant Attorney General, Charleston, for Appellee.

PER CURIAM.

This is an appeal by John David Pullin, appellant/defendant below (hereinafter Mr. Pullin), from an order of the Circuit Court of Braxton County sentencing him to two consecutive terms of imprisonment of not less than one nor more than five years. The sentences resulted from Mr. Pullin's conviction under an indictment charging him with two counts of delivery of a controlled substance. In this appeal, Mr. Pullin has alleged seven assignments of error: (1) invalid verdict form, (2) denial of jury instruction, (3) admission of prejudicial testimony, (4) admission of certain documents, (5) improper examination by the court, (6) improper sentence, and (7) insufficiency of evidence to support convictions. After careful review of the briefs and record in this case, we reverse the convictions and sentences and remand this case for a new trial.

I. FACTUAL AND PROCEDURAL HISTORY

On December 18, 2001, the state police had information that Mr. Pullin was selling illegal drugs. To confirm this, the state police used two informants. The informants contacted Mr. Pullin by phone and inquired about purchasing marijuana. Mr. Pullin instructed the informants to come to his house because another person was bringing the marijuana to him. The state police placed recording devices on the informants and gave each of them $60.00 to purchase the marijuana. The two informants drove to Mr. Pullin's home alone, but a state police officer, Trooper M. Yost, was nearby in a separate vehicle.

Shortly after the informants entered Mr. Pullin's trailer home, another person, David Facemire, arrived.¹ Mr. Pullin met separately with Mr. Facemire. Apparently during this private meeting, Mr. Facemire gave Mr. Pullin the marijuana that was to be sold to the informants. After the exchange between Mr. Pullin and Mr. Facemire, Mr. Pullin took the two informants to another room and sold each of them a bag of marijuana.

After the drug transaction, Mr. Pullin was indicted on October 2, 2002. The indictment charged Mr. Pullin with two counts of felony delivery of a controlled substance. A jury trial was held on February 25-26, 2003. Mr. Pullin was found guilty of both counts. Mr. Pullin filed motions for judgment of acquittal and new trial, both of which were denied. The circuit court subsequently sentenced Mr. Pullin to two consecutive terms of imprisonment of one to five years. This appeal followed.

II. STANDARD OF REVIEW

In this proceeding, we are called upon to determine whether the circuit court properly denied Mr. Pullin's post-trial motions. We have made clear that "`[a]lthough the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, the trial court's ruling will be reversed on appeal when it is clear that the trial court has acted under some misapprehension of the law or the evidence."' State v. Flippo, 212 W.Va. 560, 567, 575 S.E.2d 170, 177 (2002) (quoting Syl. pt. 4, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976)). In Syllabus point 3 of State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000), we elaborated upon the standard of review as follows:

In reviewing challenges to findings and rulings made by a circuit court, we apply a two-pronged deferential standard of review. We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.

With respect to Mr. Pullin's motion for judgment of acquittal based upon insufficiency of evidence, the standard of review was stated in Syllabus point 1 of State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978), as follows:

In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done.

We will now apply the foregoing standards to the case at hand.

III. DISCUSSION

A. Verdict Form

The first issue raised by Mr. Pullin involves language in the verdict form used in the case. That language, which appeared twice for each count in the indictment, is as follows: "We, the Jury, find, beyond a reasonable doubt, the Defendant, JOHN DAVID PULLIN, not guilty of Delivery of a Controlled Substance, as charged in Count One."

Mr. Pullin contends, and we agree, that this language impermissibly shifted the burden of proof to him and violated the presumption of innocence. The state contends, however, that any error in the language of the verdict form was waived, because the trial judge asked both parties if there were any objections to the verdict form, and the defendant stated that he had no objections. Mr. Pullin does not dispute the fact that defense counsel approved of the verdict form. In spite of this invited error, Mr. Pullin has asked this Court to invoke the plain error doctrine to resurrect the issue.

As a general rule, "`[a] judgment will not be reversed for any error in the record introduced by or invited by the party seeking reversal.' Syl. pt. 21, State v. Riley, 151 W.Va. 364, 151 S.E.2d 308 (1966)." Syl. pt. 4, State v. Johnson, 197 W.Va. 575, 476 S.E.2d 522 (1996). In State v. Crabtree, 198 W.Va. 620, 627, 482 S.E.2d 605, 612 (1996), we made the following observations:

"Invited error" is a cardinal rule of appellate review applied to a wide range of conduct. It is a branch of the doctrine of waiver which prevents a party from inducing an inappropriate or erroneous response and then later seeking to profit from that error. The idea of invited error is not to [legitimize the error] but to protect principles underlying notions of judicial economy and integrity by allocating appropriate responsibility for the inducement of error. Having induced an error, a party in a normal case may not at a later stage of the trial use the error to set aside its immediate and adverse consequences.

This Court has also noted, in State v. Knuckles, 196 W.Va. 416, 421, 473 S.E.2d 131, 136 (1996) (per curiam), that "waiver necessarily precludes salvage by plain error review."

In rare instances however, this Court has used the plain error doctrine to review an error that was invited. SeeState v. Redden, 199 W.Va. 660, 487 S.E.2d 318 (1997) (using plain error to address an invited error issue that involved a fundamental right secured by the state and federal constitutions); State v. Miller, 184 W.Va. 367, 400 S.E.2d 611 (1990) (same). We believe the invited error in this case is an instance where the plain error doctrine must be invoked. "To trigger application of the `plain error' doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings." Syl. pt. 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). The error in this case satisfies the requirements of the plain error doctrine.

Our cases have recognized that "[c]ertain constitutional rights are so inherently personal and so tied to fundamental concepts of justice that their surrender by anyone other than the accused acting voluntarily, knowingly, and intelligently would call into question the fairness of a criminal trial." Syl. pt. 5, State v. Neuman, 179 W.Va. 580, 371 S.E.2d 77 (1988). The constitutional right that was waived by defense counsel, not by Mr. Pullin directly, involved the presumption of innocence.

"[U]nder our law the presumption of innocence is an integral part of criminal due process and ... such presumption is itself a constitutional guarantee embodied in Article III, Section 10 of the West Virginia Constitution." State v. Boyd, 160 W.Va. 234, 241, 233 S.E.2d 710, 716 (1977). See Pinkerton v. Farr, 159 W.Va. 223, 229, 220 S.E.2d 682, 687 (1975) ("The right to a presumption of innocence is so firmly embedded in our law, ... that a violation of that right would result in such unfairness as to constitute a deprivation of one's right to due process of law."). We have also held that "[i]n the trial of a criminal offense, the presumption of innocence existing in favor of a defendant continues through every stage of the trial until a finding of guilty by the jury." Syl. pt. 11, State v. Pietranton, 140 W.Va. 444, 84 S.E.2d 774 (1954). Therefore, "the burden of alleging and proving each element of a criminal offense beyond a reasonable doubt rests with the state and may not be shifted to the defendant." State v. Hulbert, 209 W.Va. 217, 226, 544 S.E.2d 919, 929 (2001) (citing In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Bowman v. Leverette, 169 W.Va. 589, 289 S.E.2d 435 (1982)). Thus, "`[i]t is unconstitutional to shift the burden of proof to a defendant on any element of a crime[ ].'" State v. Jenkins, 191 W.Va. 87, 93, 443 S.E.2d 244, 250 (1994) (quoting Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979)).

In this proceeding, the verdict form unquestionably required the jury to find that Mr. Pullin was not guilty only if he presented evidence to establish beyond a reasonable doubt...