State v. Bennett

• Decision Date: 29 April 1988
• Docket Number: No. 17540,17540
• Parties: STATE of West Virginia v. Rusty Allen BENNETT.
• Court: West Virginia Supreme Court

Page 120

370 S.E.2d 120

179 W.Va. 464

STATE of West Virginia v. Rusty Allen BENNETT.

No. 17540.

Supreme Court of Appeals of West Virginia.

April 29, 1988.

Dissenting Opinion May 9, 1988.

Syllabus by the Court

1. Rule 11(e)(6)(D)(ii) of the West Virginia Rules of Criminal Procedure expressly recognizes that a defendant's statements under oath, in the presence of counsel, and on the record during a guilty plea proceeding, can be used in a subsequent criminal proceeding for false swearing when the guilty plea is withdrawn.

2. "Admonitions by the prosecutor to a potential defense witness to refrain from lying, combined with threats of prosecution as an accomplice and for perjury, which result in the witness's assertion of his right against self-incrimination effectively deprive a criminal defendant of due process of law by denying him the opportunity to present witnesses in his own defense." Syllabus, State v. Goad, 177 W.Va. 582, 355 S.E.2d 371 (1987).

3. The perjury exception in Rule 11(e)(6)(D)(ii) of the West Virginia Rules of Criminal Procedure does not violate the Fifth Amendment privilege against self-incrimination.

4. Under Rule 11(e)(6)(D)(ii) of the West Virginia Rules of Criminal Procedure, a defendant whose plea agreement is withdrawn or rejected by a trial court may be subsequently indicted for perjury or false swearing if he testifies at trial contrary to the statements made during the plea agreement hearing.

5. Rule 11(e)(6)(D)(ii) of the West Virginia Rules of Criminal Procedure requires that before plea agreement statements can form the basis for a subsequent perjury or false swearing charge, they must be made by the defendant under oath, on the record, and in the presence of counsel.

6. " ' "The delay in taking a defendant to a magistrate may be a critical factor [in the totality of circumstances making a confession involuntary and hence inadmissible] where it appears that the primary purpose of the delay was to obtain a confession from the defendant." Syllabus Point 6, State v. Persinger, , 286 S.E.2d 261 (1982), as amended.' Syllabus Point 1, State v. Guthrie, 173 W.Va. 290, 315 S.E.2d 397 (1984)." Syllabus Point 1, State v. Hutcheson,177 W.Va. 391, 352 S.E.2d 143 (1986).

7. " 'Ordinarily where objections to questions or evidence by a party are sustained by the trial court during the trial and the jury instructed not to consider such matter, it will not constitute reversible error.' Syllabus Point 7, State v. Arnold, W.Va. , 219 S.E.2d 922 [ (1975) ]; Syllabus Point 18, State v. Hamric, 151 W.Va. 1, 151 S.E.2d 252 (1966)." Syllabus Point 5, State v. Gwinn, 169 W.Va. 456, 288 S.E.2d 533 (1982).

Charles G. Brown, Atty. Gen., Charleston, for State.

Laurence W. Hancock, Hancock & Sears, Ravenswood, for Bennett.

MILLER, Justice.

The defendant was convicted in the Circuit Court of Jackson County of nighttime burglary and petit larceny for the theft of a postal money order. ¹ The defendant appeals his convictions, contending the trial court erred: (1) in coercing him into not testifying at trial by informing him that he could be prosecuted for false swearing or perjury if his testimony at trial contradicted a sworn statement he made during an earlier guilty plea proceeding; (2) in refusing his motion for a mistrial after a police officer testified the defendant, before waiving his Miranda rights, had remarked that he had "been through it before"; (3) in denying a motion to suppress his confession based upon an alleged prompt presentment violation; and (4) in denying his motion to amend an instruction so as to require the State to prove the serial number of the money order stolen. Finding no merit in these contentions, we affirm.

I.

The record reveals that the Ravenswood City Police Department commenced an investigation of a nighttime burglary that occurred in May, 1985, and soon learned that one Raymond Allen Mahan had attempted to cash a postal money order in a nearby town. He was arrested shortly thereafter and gave a statement implicating the defendant in the theft.

Subsequently, an arrest warrant was obtained for the defendant who had been working at a traveling carnival in Ravenswood. The defendant had already left the State with the carnival and was later arrested in Ohio and waived extradition. The defendant was picked up in Ohio by Ravenswood police officers on May 10, 1985, and was returned to the police station in Ravenswood. The defendant was given Miranda ² warnings in Ohio and West Virginia and waived his rights. He maintained his innocence until he was confronted with the alleged accomplice, Mr. Mahan, at the police station. After this confrontation, the defendant confessed to the crimes and was indicted for nighttime burglary and petit larceny.

Mr. Mahan pled guilty to petit larceny and, pursuant to a plea agreement, agreed to testify against the defendant. Thereafter, the defendant agreed to plead guilty to a felony information charging him with conspiracy to commit a felony in violation of W.Va. Code, 61-10-31. The agreement provided that the State would move to nolle the indictment upon acceptance of the plea. During the guilty plea proceeding, the defendant essentially admitted under oath his guilt to the offenses charged in the indictment. The trial court conditionally accepted, but ultimately rejected, the plea based on the presentence report and the defendant's conduct while in the county jail.

The case then went to trial. The defense presented three alibi witnesses and the defendant indicated his intent to take the stand. At this point, the judge conducted an in camera hearing. He cautioned the defendant that if he took the stand and contradicted his sworn statements made during the earlier guilty plea proceeding, he could be subject to prosecution for perjury or false swearing. The judge also explained that the decision whether to testify should be made by the defendant personally, after weighing all the circumstances. The judge concluded his remarks by saying that it was not the policy of the court to discourage anyone from testifying on his own behalf. The defendant after consulting with counsel and reviewing the guilty plea transcript decided not to take the stand.

II.

The defendant first claims that he was denied due process of law as guaranteed by the Fifth Amendment of the United States Constitution and Article III, Section 10 of the West Virginia Constitution. This argument is premised on the fact that the trial court required the defendant in the guilty plea proceeding to testify under oath that a factual basis existed for his guilty plea. Since his statements can subsequently be utilized to prove a false swearing or perjury charge if the plea agreement is withdrawn or rejected and the defendant testifies differently at trial, the defendant argues that he was effectively prevented from testifying at trial.

Guilty pleas are governed by Rule 11 of the West Virginia Rules of Criminal Procedure, which is patterned after Rule 11 of the Federal Rules of Criminal Procedure. Rule 11(f) provides that a court should not enter a judgment upon a guilty plea "without making such inquiry as shall satisfy it that there is a factual basis for the plea." Rule 11(g), W.Va.R.Cr.P., further provides that a verbatim record of the guilty plea proceeding must be made which must include "the court's advice to the defendant, the inquiry into the voluntariness of the plea, including any plea agreement, and the inquiry into the accuracy of a guilty plea."

As the Supreme Court recognized in McCarthy v. United States, 394 U.S. 459, 467, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418, 426 (1969), one purpose of the requirement of Rule 11(f) is to "protect a defendant who is in the position of pleading voluntarily with an understanding of the nature of the charge but without realizing that his conduct does not actually fall within the charge." See also United States v. Oberski, 734 F.2d 1030, 1031 (5th Cir.1984); United States v. Johnson, 546 F.2d 1225, 1226-27 (5th Cir.1977); Carreon v. United States, 578 F.2d 176 (7th Cir.1978). ³

Rule 11(e)(6)(D)(ii) expressly recognizes that a defendant's statements under oath, in the presence of counsel and on the record during a guilty plea proceeding, can be used in a subsequent criminal proceeding for false swearing when the guilty plea is withdrawn. ⁴ We are not cited nor are we aware of any law that holds that the plea procedure in Rule 11(e)(6) violates due process.

The only analogous case that our research has revealed is United States v. Gleason, 766 F.2d 1239 (8th Cir.1985), cert. denied, 474 U.S. 1058, 106 S.Ct. 801, 88 L.Ed.2d 777 (1986), where the defendant claimed that she had been denied the right to testify because the prosecutor had threatened to seek a perjury indictment if she testified differently from a prior sworn statement made at a plea bargain hearing. The defendant had been allowed to withdraw from the plea bargain. The court in declining to find error stated:

"Rule 11(e)(6)(D)(ii) of the Federal Rules of Criminal Procedure specifically contemplates the use of a statement made by a defendant in a proceeding involving a guilty plea, which is later withdrawn, in a subsequent criminal proceeding for perjury. The prosecutor's 'threat' of perjury, therefore, was nothing more than a statement of intent to do that which he had an express right to do." 766 F.2d at 1245-46. ⁵

The defendant's due process argument, insofar as it involves the potential for chilling trial testimony because of a future indictment for perjury or false swearing, is derived from Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972). Webb holds that if a trial court judge becomes overzealous in threatening perjury or false swearing charges, thereby causing the defendant or a witness whose testimony is substantial not to testify, due process might be violated. E.g., United States v. Morrison, 535 F.2d 223 (3d Cir.1976); Marshall v. State...