State ex rel. Franklin v. McBride

• Decision Date: 09 October 2009
• Docket Number: No. 34595.,34595.
• Citation: 226 W.Va. 375,701 S.E.2d 97
• Parties: STATE of West Virginia ex rel. Warren D. FRANKLIN, Appellant, v. Thomas McBRIDE, Warden, Mount Olive Correctional Complex, Appellee.
• Court: West Virginia Supreme Court

701 S.E.2d 97

226 W.Va. 375

STATE of West Virginia ex rel. Warren D. FRANKLIN, Appellant,

v.Thomas McBRIDE, Warden, Mount Olive Correctional Complex, Appellee.

No. 34595.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 23, 2009.

Decided Oct. 9, 2009.

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, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

2. In order to obtain a new trial on a claim that the prosecutor presented false testimony at trial, a defendant must demonstrate that (1) the prosecutor presented false testimony, (2) the prosecutor knew or should have known the testimony was false, and (3) the false testimony had a material effect on the jury verdict.

3. "West Virginia does not grant a criminal defendant a first appeal of right, either statutorily or constitutionally. However, our discretionary procedure of either granting or denying a final full appellate review of a conviction does not violate a criminal defendant's guarantee of due process and equal protection of the law." Syllabus point 4, Billotti v. Dodrill, 183 W.Va. 48, 394 S.E.2d 32 (1990).

4. Prison disciplinary action against an inmate, for conduct for which he or she was criminally prosecuted, does not violate the Double Jeopardy Clauses of Article III, Section 5 of the West Virginia Constitution and the Fifth Amendment to the United States Constitution.

J.L. Hickok, Public Defender Services, Charleston, WV, Attorney for Appellant.

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

DAVIS, Justice:

Warren D. Franklin (hereinafter referred to as "Mr. Franklin") appeals from an order of the Circuit Court of Harrison County denying his petition for habeas corpus relief. Before this Court, Mr. Franklin assigns error as follows: (1) the State knowingly allowed witnesses to lie during his trial; (2) the trial court failed to give an instruction on accomplice testimony; (3) his due process rights were violated when his petition for appeal was denied; and (4) imposition of administrative segregation constituted double jeopardy. After careful review of the parties' briefs and the record submitted on appeal, and having listened to the arguments of the parties, we affirm.

I.FACTUAL AND PROCEDURAL HISTORY

On January 1, 1986, prisoners at the former state penitentiary in Moundsville, West Virginia, started a riot.¹ Mr. Franklin was an inmate at the prison when the riot erupted.² During the riot, an inmate by the name of Kent Slie was killed. In August 1986, the State indicted Mr. Franklin and two other inmates for the murder of Mr. Slie.³

Mr. Franklin's trial began in February 1988. During the trial, the State called two inmate witnesses.⁴ One inmate witness, Donald Lane, testified to seeing Mr. Franklin and two other inmates dragging and beating Mr. Slie. The State's second inmate witness, Wallace Jackson, testified to seeing Mr. Franklin and two other inmates stabbing Mr. Slie.

Mr. Franklin did not testify at the trial; however, he called nine inmate witnesses.⁵ Three of those witnesses-Fred Hamilton, Michael Kirk, and Jimmy Westfall gave direct testimony as to how Mr. Slie was killed. Mr. Hamilton testified that he was the personwho killed Mr. Slie, not Mr. Franklin.⁶ Mr. Kirk and Mr. Westfall testified that they saw Mr. Hamilton kill Mr. Slie.

At the conclusion of all the evidence, the jury returned a verdict finding Mr. Franklin guilty of murder in the first degree. The jury did not recommend mercy. On April 13, 1988, Mr. Franklin was sentenced to life imprisonment without the possibility of parole. Mr. Franklin subsequently filed a petition for appeal with this Court, which was denied.

Mr. Franklin filed a habeas corpus petition directly with this Court on May 18, 1994. This Court remanded the habeas petition to the circuit court for further review. The circuit court subsequently dismissed the habeas petition because Mr. Franklin failed to prosecute the matter. Mr. Franklin filed a second habeas petition with the circuit court in 2006. After counsel was appointed, the habeas petition was amended.

The circuit court held several evidentiary hearings on the amended habeas petition in 2007 and 2008. During those hearings, Mr. Franklin called two inmate witnesses: Gary Gibson and Charles Peacher.⁷ Both witnesses testified that Mr. Franklin was not present when Mr. Slie was killed. Further, both witnesses testified that they saw William Snyder kill Mr. Slie. At the conclusion of the evidentiary hearings, the trial court entered an order on April 15, 2008, denying Mr. Franklin's request for habeas relief. From this ruling, Mr. Franklin now appeals.

II.STANDARD OF REVIEW

We are called upon to review an order of the circuit court that was entered after an omnibus habeas corpus hearing that included testimony by witnesses. The circuit court's order set out findings of fact and conclusions of law. We previously have held that "[f]indings of fact made by a trial court in a post-conviction habeas corpus proceeding will not be set aside or reversed on appeal by this Court unless such findings are clearly wrong." Syl. pt. 1, State ex rel. Postelwaite v. Bechtold, 158 W.Va. 479, 212 S.E.2d 69 (1975). We have explained more fully that,

[i]n 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). With these standards in mind, we now consider the issues presented in this appeal.

III.DISCUSSION

Mr. Franklin's amended habeas petition sets out a number of grounds for relief. However, only four issues asserted below have been raised in this appeal.⁸ The four grounds for relief presented in this appeal are: (1) the State knowingly allowed witnesses to lie during Mr. Franklin's trial; (2) the trial court failed to give an instruction on accomplice testimony; (3) Mr. Franklin's due process rights were violated when his petition for appeal was denied; and (4) the imposition of administrative segregation constituted double jeopardy. We will address each issue separately.

A. False Testimony

The first issue raised by Mr. Franklin is that the State knowingly allowed inmate witnesses to testify falsely against him during his trial. It is a basic principle oflaw that "[p]rosecutors have a duty to the court not to knowingly encourage or present false testimony." State v. Rivera, 210 Ariz. 188, 109 P.3d 83, 89 (2005).⁹ It has been correctly observed that "[w]hen the State obtains a conviction through the use of evidence that its representatives know to be false, the conviction violates the Due Process Clause of the Fourteenth Amendment." State v. Wilkerson, 363 N.C. 382, 683 S.E.2d 174, 187 (2009). See also People v. Diaz, 297 Ill.App.3d 362, 231 Ill.Dec. 523, 696 N.E.2d 819, 827 (1998) ("The State's knowing use of perjured testimony to obtain a criminal conviction constitutes a violation of due process of law."). This Court has previously held that "[a]lthough it is a violation of due process for the State to convict a defendant based on false evidence, such conviction will not be set aside unless it is shown that the false evidence had a material effect on the jury verdict." Syl. pt. 2, Matter of Investigation of W. Va. State Police Crime Lab., Serology Div., 190 W.Va. 321, 438 S.E.2d 501 (1993). See also United States v. Bagley, 473 U.S. 667, 678-79, 105 S.Ct. 3375, 3381-82, 87 L.Ed.2d 481 (1985) (" '[A] conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.' United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976).").

Although this Court has had occasion to address the issue of the State presenting false testimony, we have never articulated a concise test for analyzing the issue. Other courts that have addressed the issue take the position that, in order to succeed on a claim that the prosecutor presented false testimony at trial, a defendant "must demonstrate (1) that the prosecutor presented false testimony, (2) that the prosecutor knew or should have known it was false, and (3) that there is a reasonable likelihood that the perjured testimony could have affected the verdict." O'Brien v. United States, 962 A.2d 282, 315 (D.C.2008). See also Jones v. State, 998 So.2d 573, 580 (Fla.2008) ("[T]he defendant must demonstrate that (1) the prosecutor presented or failed to correct false testimony; (2) the prosecutor knew the testimony was false; and (3) the evidence was material."); Gates v. State, 252 Ga.App. 20, 555 S.E.2d 494, 496 (2001) (similar test); State v. Hebert, 277 Kan. 61, 82 P.3d 470, 487 (2004) (similar test); Howard v. State, 945 So.2d 326, 370 (Miss.2006) (similar test); State v. Allen, 360 N.C. 297, 626 S.E.2d 271, 279 (2006) (similar test); Simpson v. Moore, 367 S.C. 587, 627 S.E.2d 701, 708 (2006) (similar test); Teleguz v. Commonwealth, 273 Va. 458, 643 S.E.2d 708, 729 (2007) (similar test). Based upon the foregoing, we now hold that in order to obtain a new trial on a claim that the prosecutor presented false testimony at trial, a defendant must demonstrate that (1) the prosecutor presented false testimony, (2) the prosecutor knew or should have known the testimony...