State v. Blair

• Decision Date: 01 April 1975
• Docket Number: No. 13404,13404
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. John R. GROB v. Reece H. BLAIR, Sheriff, etc.

Page 330

214 S.E.2d 330

158 W.Va. 647

STATE ex rel. John R. GROB v. Reece H. BLAIR, Sheriff, etc.

No. 13404.

Supreme Court of Appeals of West Virginia.

April 1, 1975.

Syllabus by the Court

1. The fundamental right to confront one's accusers, which contemplates the opportunity of meaningful cross-examination, is guaranteed by Article III, Section 14 of the West Virginia Constitution.

2. Correlative with the constitutional right of confrontation is the right of presence which requires that an accused charged with a felony shall be present in person at every critical stage of a criminal trial where anything may be done which affects the accused; the right of presence, originating in the common law, is secured to an accused by W.Va.Code 1931, 62--3--2.

3. W.Va.Code 1931, 62--3--2 requires that one accused of a felony shall be present at every stage of the trial during which his interest may be affected; and if anything is done at trial in the accused's absence which may have affected him by possibly prejudicing him, reversible error occurs.

4. The remedial doctrines of knowing and intelligent waiver and harmless error are firmly established by statute, court rule and decisions as salutary aspects of the criminal law of this State.

5. Failure to observe a constitutional right constitutes reversible error unless it can be shown that the error was harmless beyond a reasonable doubt.

6. Insofar as the decisions of State v. Vance, 146 W.Va. 925, 124 S.E.2d 252 (1962) and its progenitors held that prejudice is not a necessary element for reversal of a felony conviction where the defendant was absent during a trial occurrence in which anything was done affecting him, such cases are disapproved.

7. Insofar as the decisions of State ex rel. Boner v. Boles, 148 W.Va. 802, 137 S.E.2d 418 (1964); State v. Vance, 146 W.Va. 925, 124 S.E.2d 252 (1962); State v. Grove, 74 W.Va. 702, 82 S.E. 1019 (1914) and State v. Sheppard, 49 W.Va. 582, 39 S.E. 676 (1901), held that the common-law/statutory right of presence is inalienable and cannot be waived, such decisions are disapproved; an accused, by declaration and conduct, may waive a fundamental right protected by the Constitution if it is demonstrated that such waiver was made knowingly and intelligently.

8. If an accused demonstrates that his right to confront his accusers was abridged by the State or that he was absent during a critical stage of the trial proceeding, his conviction of a felony will be reversed where a possibility of prejudice appears from the abrogation of the constitutional or statutory right.

9. An In camera hearing conducted by the court to determine whether a principal prosecution witness will recant testimony directly related to the guilt or innocence of the defendant, is a critical stage occurrence in the trial proceeding held after arraignment and before final judgment; and where the accused was excluded from such hearing, his constitutional right to confront his accusers and his statutory right to be present at trial were abridged, to his prejudice.

Riley & Yahn, Robert A. Yahn and Arch W. Riley, Wheeling, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., Richard E. Hardison, Deputy Atty. Gen., David P. Cleek, Asst. Atty. Gen., Charleston, for defendant in error.

HADEN, Chief Justice:

This is an appeal by John R. Grob from a final judgment of the Circuit Court of Ohio County discharging a writ of habeas corpus ad subjiciendum previously granted by this Court and made returnable to that circuit court.

The sole question to be resolved on this appeal is whether the circuit court erred in its ruling that the appellant's presence in a previous murder trial was not required at a meeting held in the court's chambers during trial to determine whether the State's principal witness wished to change the substance of testimony previously given which identified Grob as a perpetrator of the crime charged.

The circuit court ruled that the In camera hearing, conducted in the absence of Grob, was not a part of the trial proceeding and that it did not affect his rights. Appellant contends that his right to confront his accusers as guaranteed by Article III, Section 14 of the West Virginia Constitution; to be personally present at all proceedings at his trial, as guaranteed by West Virginia Code, Chapter 62, Article 3, Section 2; and his rights, as one accused of a crime, to due process of law as guaranteed by Article III, Section 10 of the West Virginia Constitution, and the Fourteenth Amendment to the United Stated Constitution, were violated when a meeting was held concerning testimony adduced at trial against him, in the judge's chambers, and in his absence.

Briefly, the facts show that during the course of Grob's murder trial, Barbara Clem, the State's primary witness, made a positive identification of appellant as one of two persons who perpetrated an assault upon Martin Luther Moss which resulted in Moss's death. On the day following the receipt of the criminating testimony, Miss Clem, then in protective custody in the Brooke County Jail, contacted her court-appointed attorney and informed him that she wanted to change her testimony concerning her previous in-court identification because she was not positive of the identification. Apprised of this, her attorney immediately contacted the Honorable Thomas P. O'Brien, the then judge of the trial court, of the intent of his client to change her testimony. The attorney was directed to meet with the court in chambers the following morning one-half hour in advance of the resumption of trial.

On the next morning, the attorney met with the trial judge and Miss Clem, who had been returned to the courthouse by a deputy sheriff of Ohio County. Grob's counsel and the prosecuting attorney had also been notified to be present in the court's chambers. Before their arrival, however, Miss Clem's attorney informed the court that he had had a second conversation with Miss Clem and it was her then intention not to recant her testimony, contrary to her expressions of the previous evening.

During the hearing which followed, this testimony was taken:

'MR. McCAMIC: At five-thirty last night I received a call from Barbara. Tell the Judge what you told me.

'MISS CLEM: I told him I wasn't sure of either of the two men.

'Mr. McCAMIC: Did I ask you--did I go through it with you?

'MISS CLEM: Yes.

'MR. McCAMIC: What did you tell me?

'MISS CLEM: That I wasn't sure.

'MR. McCAMIC: What did you want to do?

'MISS CLEM: I want to change my testimony.

'MR. McCAMIC: I came over and talked to you, Your Honor.

'THE COURT: Yes, sir.

'Mr. McCAMIC: And told you the problem. The Judge ordered you down here this morning. Now what do you tell me? I am not trying to force you into anything, but you are up and down. What did you tell me this morning?

'MISS CLEM: That I knew who they were, but I am afraid. I am afraid if he goes to Moundsville, he will have me killed.

'THE COURT: Who is going to do that?

'MISS CLEM: I don't know. I am afraid of him.

'THE COURT: Is that the only reason you are going to change your testimony?

'MISS CLEM: Yes.

'THE COURT: That's not sufficient.'

When the foregoing testimony was taken, the appellant was not present. His counsel did not object to his absence. The prosecuting attorney noted defendant's absence at the hearing and, upon inquiry, was informed by the court that Grob's presence was not required.

The witness Clem was not recalled to the stand either by the State or by the defense. At the conclusion of trial, the petitioner was convicted of first degree murder by a jury.

At the habeas hearing resulting in this appeal, Judge O'Brien was asked whether he considered the hearing concerning Miss Clem's intentions to recant testimony to be a part of John Grob's trial. He responded in the negative, and said: '(T)hey (the witness, counsel and court personnel) were purely there to determine whether or not there was to be a change of testimony.'

On this and like testimony adduced at the habeas hearing, the State contended: first, the hearing in question was not a part of appellant's murder trial; and second, the matters covered at the hearing did not affect his rights. In a memorandum opinion filed concurrent with the order discharging the writ of habeas corpus, the Circuit Court of Ohio County wholly agreed with the State. That court concluded that the proceeding regarding the testimony of the witness Barbara Clem was not a part of the trial, and considering 'the fact that the witness Clem did not appear at the Grob trial after her initial testimony was heard . . . the proceeding in question was not one that affected the outcome of petitioner's trial and consequently would not be one that affected his legal or constitutional rights. Therefore, the petitioner's presence was not necessary.'

The right to confront one's accusers is guaranteed by Article III, Section 14 of the West Virginia Constitution. In all trials of crimes, 'the accused shall . . . be confronted with the witnesses against him.' Id. Comparatively, the right of an accused charged with a felony to be present in person at every stage of a criminal trial when anything is done to affect him was a common-law right which antedated our Constitution. The State v. Conkle, 16 W.Va. 736, 746 et seq. (1880); Younger v. The State, 2 W.Va. 579 (1863). The right of presence has been secured by statute in the Virginias since 1849. State v. Vance, 146 W.Va. 925, 936, 124 S.E.2d 252, 258 (1962). Unchanged, it is now found in West Virginia Code 1931, 62-- 3--2: 'A person indicted for felony shall be personally present during the trial therefor.'

With sound basis, courts and commentators have noted that there is a distinction of significance between the constitutional right to confront witnesses at trial and the statutory right, founded in the common law, of presence. Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674, (1934); ...