State v. Atkins

Decision Date17 July 1979
Docket NumberNo. 14133,14133
Citation261 S.E.2d 55,163 W.Va. 502
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia v. Calvin O. ATKINS.

Syllabus by the Court

1. The right to obtain a private prosecutor in this State is not absolute and is subject to judicial control and review. A private prosecutor is subject to the same high standards of conduct in the trial of the case as is the public prosecutor.

2. Where improper evidence of a nonconstitutional nature is introduced by the State in a criminal trial, the test to determine if the error is harmless is: (1) the inadmissible evidence must be removed from the State's case and a determination made as to whether the remaining evidence is sufficient to convince impartial minds of the defendant's guilt beyond a reasonable doubt; (2) if the remaining evidence is found to be insufficient, the error is not harmless; (3) if the remaining evidence is sufficient to support the conviction, an analysis must then be made to determine whether the error had any prejudicial effect on the jury.

3. It is not improper on cross-examination to direct a witness to specific previous testimony of another witness and ask the witness whether he agrees or disagrees with such testimony. It is objectionable on cross-examination to require a witness to state whether another witness' testimony is true or false, since this is the ultimate question that a jury must decide. However, the failure to sustain an objection to such improper question will not necessarily result in error, unless the technique has been used so pervasively and abusively in the cross-examination as to substantially distort the witness' testimony on critical trial issues.

David L. Solomon and S. J. Angotti, Morgantown, for plaintiff-in-error.

Chauncey H. Browning, Jr., Atty. Gen., Frances W. McCoy, Asst. Atty. Gen., Charleston, for defendant-in-error.

MILLER, Justice:

In this appeal the defendant, Calvin O. Atkins, challenges his second degree murder conviction on two principal grounds. First, he challenges the validity of the practice relating to the employment of a private prosecutor to assist the public prosecutor. Second, he alleges the trial court erred in permitting the State to impeach the defendant by questioning him on cross-examination as to his two prior criminal convictions, a practice condemned by this Court in State v. McAboy, W.Va., 236 S.E.2d 431 (1977).

I PRIVATE PROSECUTOR

Defendant urges us to declare that the practice of employing a private prosecutor to assist the public prosecutor is an anachronism and that it should be abolished on the ground that it essentially leads to overzealous and unfair criminal prosecution. He also contends that in the present case, the private prosecutor exceeded normal bounds by virtually trying the entire case. Finally, he asserts error was committed when the trial court refused to require the private prosecutor to disclose the amount of fee he was receiving to act as private prosecutor.

The right to hire a private prosecutor appears to have evolved from the common law, where under old English practice the Crown did not supply a public prosecutor to handle routine felonies. The victim or his family was therefore required to hire counsel to bring the guilty party into the criminal justice system. 1 J. Bishop, New Criminal Procedure (2d ed. 1913), p. 245; 63 Am.Jur.2d Prosecuting Attorneys § 9; Note, Private Prosecution The Entrenched Anomaly, 50 N.C.L.Rev. 1171 (1972).

W.Va.Code, 7-7-8, explicitly recognizes the practice. 1 This statute makes a clear distinction between a special prosecutor, who is appointed by the court because of a disqualification or inability to act on the part of a public prosecutor, and the private prosecutor. We discussed at some length the court appointment of a special prosecutor in State ex rel. Goodwin v. Cook, W.Va., 248 S.E.2d 602 (1978).

The role of a private prosecutor has not received extensive treatment by this Court, although in several cases the specific conduct of the private prosecutor has been discussed. See, e. g., State ex rel. Moran v. Ziegler, W.Va., 244 S.E.2d 550 (1978); State v. Lohm, 97 W.Va. 652, 125 S.E. 758 (1924); State v. Stafford, 89 W.Va. 301, 109 S.E. 326 (1921). In none of these cases, however, was there a total challenge to the employment of a private prosecutor.

In most jurisdictions the courts have generally upheld the private prosecutor system against some specific claim of error without having to deal with the merits of the system as a whole. See, e. g., Powers v. Hauck, 399 F.2d 322 (5th Cir. Tex.1968); Brooks v. State, 45 Ala.App. 196, 228 So.2d 24 (1969); Thomas v. State, 59 So.2d 517 (Fla.1952); Territory v. Chong Chak Lai, 19 Haw. 437 (1909); State v. Bartlett, 105 Me. 212, 74 A. 18 (1909); Commonwealth v. Knapp, 27 Mass. (10 Pick.) 477, 20 Am.Dec. 534 (1830); Goldsby v. State, 240 Miss. 647, 123 So.2d 429, 124 So.2d 297, 129 So.2d 127 (1960); Baca v. Padilla, 26 N.M. 223, 190 P. 730 (1920); State v. Best, 280 N.C. 413, 186 S.E.2d 1 (1972); State v. Kent, 4 N.D. 577, 62 N.W. 631 (1895); Lopez v. State, 437 S.W.2d 268 (Tex.Cr.App.1968); Contra, State v. Harrington, 534 S.W.2d 44 (Mo.1976).

We observe initially that W.Va.Code, 7-7-8, does not affirmatively authorize the system of private prosecutors. The specific statutory language is nothing more than a proviso or exception designed to demonstrate that the Legislature did not intend to abolish the common law rule permitting the employment of a private prosecutor. 2

We do not agree with the defendant's contention that the right to retain a private prosecutor should be abolished. The right to obtain a private prosecutor in this State was never absolute and was always subject to judicial control and review. In State ex rel. Moran v. Ziegler, supra, we clearly established that a private prosecutor is subject to the same high standards of conduct in the trial of the case as is a public prosecutor. This rule blunts, if it does not entirely dissipate, the major criticism of private prosecutors, that they will be overzealous to convict and consequently ignore the public prosecutor's fundamental obligation to do justice. 3

There are several positive reasons for retaining the right to employ a private prosecutor. First, we recognize that there may be occasions when the public prosecutor is in need of assistance in order to carry out his duties effectively. 4 Second, there may be those occasions when the employment of a private prosecutor would satisfy the public's concern that a given case not be accorded perfunctory treatment. Finally, it is not inappropriate to consider that in certain cases, the victim's family may wish to satisfy itself that the case is being vigorously prosecuted.

While we recognize that there are legitimate reasons for retaining private prosecutors, we emphasize again that the right is not absolute. The ultimate responsibility for permitting the participation of a private prosecutor rests with the trial judge. A competent public prosecutor should ordinarily not be forced to accept a private prosecutor as an associate. It should also be stressed that our recognition of the role of a private prosecutor does not imply that he should be favored for selection as special prosecutor where the regular prosecutor is disqualified under W.Va.Code, 7-7-8.

In regard to the specific errors raised by the defendant, we do not find error in the fact that the private prosecutor did not disclose the amount of his fee. As required by State v. Lohm, 97 W.Va. 652, 125 S.E. 758 (1924), he disclosed who had employed him. He also stated that the amount of his fee would be based upon the time spent in connection with the case, an indication that it was to be calculated on a Quantum meruit basis, and thus could not be determined until the trial had been completed. We are not aware of, nor have we been cited, any case where the failure to disclose the amount of the private prosecutor's fee was held to be reversible error.

The defendant also asserts that the private prosecutor dominated the prosecution of the trial and that where the public prosecutor plays only a limited role at trial, error should arise from this fact alone. We decline to adopt such a rule. In State v. Stafford, 89 W.Va. 301, 109 S.E. 326 (1921), a similar argument was advanced and rejected. There, as here, the record revealed that the public prosecutor was present at the trial and assisted in the case, although in Stafford the public prosecutor left the trial when his wife became seriously ill. Here, the public prosecutor was present throughout the trial. It does appear, however, that he did not participate in the examination of witnesses to the same extent as the private prosecutor.

We do not believe it is possible or desirable to establish an arbitrary line as to the degree of participation of the public prosecutor in the trial. The fundamental question is not the extent of the private prosecutor's participation, but whether his actions result in prejudicial error to the defendant. As previously stated, the private prosecutor is bound to follow the same high standards of conduct in the trial of the case as the public prosecutor, and this should afford the defendant adequate protection.

II McABOY AND THE RULE OF HARMLESS ERROR

The defendant contends and the State concedes that it was error under State v. McAboy, W.Va., 236 S.E.2d 431 (1977), for the trial court to permit the State, over the objection of the defendant, to impeach him on cross-examination by questioning him in connection with his two prior criminal convictions. The State, however, urges that under the totality of the evidence, the error should be deemed harmless. It is important to note initially that McAboy is an evidentiary rule and not a constitutional rule.

Few, if any, trials can be conducted completely free of any error. See, e. g.,...

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