State v. Boyd

• Decision Date: 29 March 1977
• Docket Number: No. 13727,13727
• Citation: 233 S.E.2d 710,160 W.Va. 234
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Jim BOYD.

Page 710

233 S.E.2d 710

160 W.Va. 234

STATE of West Virginia v. Jim BOYD.

No. 13727.

Supreme Court of Appeals of West Virginia.

March 29, 1977.

Syllabus by the Court.

1. Under the Due Process Clause of the West Virginia Constitution, Article III, Section 10, and the presumption of innocence embodied therein, and Article III, Section 5, relating to the right against self-incrimination, it is reversible error for the prosecutor to cross-examine a defendant in regard to his pre-trial silence or to comment on the same to the jury.

2. A criminal defendant, who elects to testify at trial, may be impeached on pre- trial statements inconsistent with his trial testimony. Before such impeachment can be undertaken, the trial court is required, out of the presence of the jury, to determine the voluntariness of such statements.

3. The prosecuting attorney occupies a quasi-judicial position in the trial of a criminal case. In keeping with this position, he is required to avoid the role of a partisan, eager to convict, and must deal fairly with the accused as well as the other participants in the trial. It is the prosecutor's duty to set a tone of fairness and impartiality, and while he may and should vigorously pursue the State's case, in so doing he must not abandon the quasi-judicial role with which he is cloaked under the law.

4. The standard of fair and impartial presentation required of the prosecutor may become more elevated when the offense charged is of a serious or revolting nature, as it is recognized that a jury in this type of case may be more easily inflamed against the defendant by the very nature of the crime charged.

5. "Failure to observe a constitutional right constitutes reversible error unless it can be shown that the error was harmless beyond a reasonable doubt." Syllabus point 5, State ex rel. Grob v. Blair, W.Va., 214 S.E.2d 330 (1975).

6. The defendant has a right under Article III, Section 14 of the West Virginia Constitution to be present at all critical stages in the criminal proceeding; and when he is not, the State is required to prove beyond a reasonable doubt that what transpired in his absence was harmless.

Wade H. Ballard, III, Peterstown, John R. Frazier, Princeton, for boyd.

Chauncey H. Browning, Jr., Atty. Gen., Betty L. Caplan, Asst. Atty. Gen., Charleston, for the State.

MILLER, Justice:

In this appeal from a first degree murder conviction in the Circuit Court of Mercer County, we consider assignments of error as to the use of defendant's silence for impeachment, the alleged prejudicial conduct of the prosecutor, and the absence of the accused during a hearing at trial. We reverse the conviction on each of these grounds.

On December 1, 1972, the defendant, Jim Boyd, shot and killed James Baldwin while Baldwin was seated in his car in Matoaka, West Virginia, with his nephew, Sammy Rutledge. Rutledge was also shot and was seriously wounded in the same incident. It appears that earlier in the day Boyd, Baldwin and Rutledge had an argument and this encounter was its fatal culmination. Baldwin was shot twice at close range by Boyd.

A companion of Boyd at the time of the shooting, Earl Cline, testified that Boyd had a pistol with him while they sat in Boyd's parked car and had the gun in hand when the car with Baldwin and Rutledge stopped beside them.

After the shooting Boyd drove to Princeton where he turned himself in at the jail, admitted the shooting and stated that he had thrown the gun away near Black Oak Road. The gun was never found. This was the extent of the information volunteered by Boyd. Shortly afterwards his attorney was contacted and appeared at the jail.

At the trial, the defendant testified that after the shooting he threw the gun from his car near the Hollywood Service Station, a different location than Black Oak Road. The defendant Boyd also asserted that he acted in self-defense in the shooting since he thought Baldwin had a gun and was coming after him.

The prosecutor, on cross-examination, sought to impeach the defendant by asking him why he had not disclosed his self-defense story to the police at the jail. ¹ This was objected to by defense counsel. The court overruled the objection, but did advise the jury that the defendant at the time of his arrest was not required to make any pre-trial statement if he did not elect to do so. The defendant responded with the statement: "That is what they told me down there" (apparently meaning at the jail). Whereupon, the prosecutor proceeded to comment on the defendant's election to remain silent at the jail. ²

The defendant urges that the foregoing cross-examination violated his privilege against self-incrimination. It is defendant's theory that, as a part of his constitutional privilege against self-incrimination, the State can neither impeach him by his pre-trial silence nor require him to justify such silence.

Before discussing this aspect of the constitutional right against self-incrimination, it may be appropriate to briefly summarize the status of our law on this subject.

This Court has recognized that Article III, Section 5 of the West Virginia Constitution provides the constitutional right to remain silent. State v. Fortner, 150 W.Va. 571, 148 S.E.2d 669 (1966). Similar language is, of course, to be found in the 5th Amendment to the United States Constitution.

Fortner also reaffirmed that in determining the admissibility of a confession, the court is required, whether requested or not, to hold a hearing out of the presence of the jury to take evidence to determine its voluntariness. ³

Although Fortner did not hold that a right to a hearing out of the jury's presence was a constitutional right, this was later established in State v. Starr, W.Va., 216 S.E.2d 242 (1975). ⁴ The Court in Starr did not identify the provision of the West Virginia Constitution on which it based its holding, but we conclude that the mandatory duty to hold any voluntariness hearing out of the presence of the jury is grounded in the Due Process Clause of the West Virginia Constitution, Article III, Section 10.

The Fortner decision preceded by one week Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), which dealt exhaustively with a defendant's 5th Amendment right to remain silent as it relates to pre-trial confessions. Miranda also made clear that the right to assistance of counsel embodied in the 6th Amendment extends to those proceedings where defendant's 5th Amendment rights may be imperiled.

This latter constitutional point was not discussed in Fortner, but was decided in State v. Plantz, 155 W.Va. 24, 180 S.E.2d 614 (1971). Again, in Plantz, the Court made no reference to a particular constitutional provision of either this State or the United States, but did cite Miranda v. Arizona, supra.

It perhaps may be useful to quote from that portion of State v. Plantz, 155 W.Va. at 38, 180 S.E.2d at 623, that quoted from and applied the holding of Miranda, which we determine to have also been based upon Article III, Section 5 of the West Virginia Constitution:

" 'To summarize, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized.

Procedural safeguards must be employed to protect the privilege, and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.' " 384 U.S. at 478-79, 86 S.Ct. at 1630.

With this background we turn to the question of whether defendant Boyd's constitutional right to remain silent, under Article III, Section 5 of the West Virginia Constitution, was infringed when he was required to answer why he did not divulge his self-defense story at the time he was in custody and after he had elected to remain silent. ⁵

The United States Supreme Court in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), held that the constitutional right to remain silent carries with it the principle that a defendant cannot be impeached at trial by his pre-trial silence. In Doyle, the defendant took the stand and was subsequently cross-examined on why he had not told the same story to the arresting officers. The defendant did not seek to explain his pre-trial silence as a reliance on his Miranda warning, as did the defendant Boyd. However, the Supreme Court concluded that it was unnecessary to show reliance on Miranda warnings to preclude impeachment of the defendant on his pre-trial silence.

The holding of Doyle was based on two grounds. First, because it is constitutionally mandated that a person be advised immediately upon being taken into custody that he has the right to remain silent, the warning itself can create the act of silence. It would, therefore, be unfair to permit the State to obtain an advantage by being able to utilize the silence to impeach the defendant.

The second reason is that one of the purposes of a Miranda warning is to assure the defendant that if he asserts his privilege to remain silent no...