State v. Brewster

• Decision Date: 18 December 1979
• Docket Number: No. 14059,14059
• Citation: 261 S.E.2d 77,164 W.Va. 173
• Parties: STATE of West Virginia v. David Harvey BREWSTER.
• Court: West Virginia Supreme Court

Page 77

261 S.E.2d 77

164 W.Va. 173

STATE of West Virginia v. David Harvey BREWSTER.

No. 14059.

Supreme Court of Appeals of West Virginia.

Dec. 18, 1979.

Syllabus by the Court

1. "Before prosecutorial error can occur under the doctrine of suppression of evidence, it must be shown that the evidence suppressed would be relevant to an issue at the criminal trial." Syllabus Point 4, State v. Bolling, W.Va., 246 S.E.2d 631 (1978).

2. "A judgment of conviction will not be reversed because of improper remarks made by a prosecuting attorney . . . to a jury which do not clearly prejudice the accused or result in manifest injustice." Syllabus Point 1 in part, State v. Dunn, W.Va., 246 S.E.2d 245 (1978).

3. A criminal defendant has the right, absent some necessity relating to courtroom security or order, to be tried free of physical restraints.

Edward V. Lee, Huntington, for plaintiff-in-error.

Chauncey H. Browning, Atty. Gen., Richard L. Earles, Asst. Atty. Gen., Charleston, for defendant-in-error.

MILLER, Justice:

David Harvey Brewster appeals his armed robbery conviction in the Circuit Court of Cabell County. He contends that exculpatory evidence was withheld, that the prosecuting attorney made prejudicial remarks in his closing argument, and that he was forced to wear physical restraints at trial.

The following are the facts of the crime as related by the State's witnesses. James W. Newman was a night watchman with the Tradewell Supermarket located on Roby Road and U.S. Route 60 in Huntington, Cabell County. At approximately 11:00 p. m. on May 14, 1974, Mr. Newman was at work at the supermarket, standing at a cash register talking with James Edward Myers, a part-time assistant manager with Tradewell. Mr. Myers was approached by a man who pulled back his coat, revealing a gun, and who said, "This is a stickup; give me your money." The man then turned to Mr. Newman and demanded his billfold. Mr. Newman refused, and after two subsequent similar demands, the man pulled the gun from his belt and shot him. Mr. Myers then gave the robber approximately $1,000 of the store's money.

Two employees of the store, Ronald Ferguson and Melvin E. Spurlock, were in another area of the store stocking shelves. Upon hearing the shot, they went to the front of the store and were robbed. The robber unsuccessfully tried to kick down a door to a locked office where two more employees were present. A short time thereafter, the robber left the store, after warning the witnesses not to follow him. At the trial, the witnesses Newman, Myers, Ferguson and Spurlock identified the defendant, David H. Brewster, as the person who committed these acts.

Defendant's claim that the State suppressed certain exculpatory evidence rests on the following facts. A ballistics report indicated that the bullet found at the scene of the armed robbery matched the gun found in the possession of the defendant when he was arrested one month later in Tucson, Arizona. This information was given to the defendant by way of discovery several months prior to trial. However, on the first day of trial, during the noon recess and after the jury had been impanelled, the defense attorneys claimed they were informed by a police officer that the original report was in error and that, in fact, the bullet did not match the gun. Defense counsel made no objection to the court until after the trial, when the matter first surfaced on motion for new trial.

Defendant's claim of error must be rejected on two grounds. First, assuming that defense counsel learned of the alleged exculpatory evidence the first day of trial, ¹ no action was taken either by way of objection or motion to the court to show how the defendant was prejudiced by the late disclosure. The necessity of a timely objection is implicit in our holding in Wilhelm v. Whyte, W.Va., 239 S.E.2d 735 (1977), where we discussed at some length the timeliness of producing exculpatory material. Cf. State v. Milam, W.Va., 260 S.E.2d 295 (1979); State v. Cowan, 156 W.Va. 827, 197 S.E.2d 641 (1973).

Of even more significance is the rule that a claim of suppression of exculpatory evidence must involve evidence relevant to an issue in the trial. This point was made in Syllabus Point 4 of State v. Bolling, W.Va., 246 S.E.2d 631 (1978):

"Before prosecutorial error can occur under the doctrine of suppression of evidence, it must be shown that the evidence suppressed would be relevant to an issue at the criminal trial."

Much the same thought underlies the distinction drawn by the United States Supreme Court in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), between evidence required to be disclosed through formal discovery requests and evidence required to be disclosed regardless of requests under the constitutional rule for producing exculpatory material as set forth in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Cf. State v. Belcher, W.Va., 245 S.E.2d 161 (1978); Annot., 34 A.L.R.3d 16, 38 (1970).

Here, there was direct eyewitness testimony that the defendant robbed the store and several of its employees at gunpoint. The State was not required to show, nor did it attempt to prove, that the gun used in the robbery was the same gun found in the defendant's possession or that the bullet at the scene of the robbery matched that gun.

The second claimed error is that the remarks of the prosecuting attorney in his closing argument on rebuttal were prejudicial. ² It is clear that these remarks were directed at the defendant's failure to produce witnesses and not at the defendant's failure to testify. Thus, the rule in State v. Lindsey, W.Va., 233 S.E.2d 734, 740 (1977), that "the state should studiously avoid even the slightest hint as to the defendant's failure to testify," is not involved here.

It should also be noted that when defense counsel objected to the prosecutor's comments, the court promptly sustained the objection and advised the jury, "The reference to any witnesses who have not testified is not a subject that you can consider in arriving at your verdict." Under the circumstances of this case and in view of the trial court's cautionary instruction, we do not find the remarks so prejudicial as to warrant a reversal on this point. The general rule is stated in Syllabus Point 1 of State v. Dunn, W.Va., 246 S.E.2d 245 (1978):

"A judgment of conviction will not be reversed because of improper remarks made by a prosecuting attorney in his opening statement to a jury which do not clearly prejudice the accused or result in manifest injustice."

While Dunn involves a prosecutor's opening statement, it is obvious that the same rule would be applicable to his closing statement or any remarks made during the trial in front of the jury. Cf. State v. Boyd, W.Va., 233 S.E.2d 710 (1977). The cases of State v. Simon, 132 W.Va. 322, 52 S.E.2d 725 (1949), and State v. Nazel, 109 W.Va. 617, 156 S.E. 45 (1930), involved rather similar statements by the prosecutor which were found not to constitute reversible error.

The defendant's primary ground for error is that over his objection he was forced to wear handcuffs at trial. In State ex rel. McMannis v. Mohn, W.Va., 254 S.E.2d 805 (1979), we discussed the constitutional aspects of requiring a defendant and his witnesses to appear at trial in identifiable prison clothing. Also at issue in McMannis was the propriety of the defendant's witnesses appearing at trial in physical restraints. We concluded that Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), absent some waiver, would require that the defendant could not be forced to wear identifiable prison clothing at trial. We also determined that this constitutional right did not extend to his witnesses. In the course of discussing the handcuff issue, we stated:

"The traditional rule is that a criminal defendant has the right, absent some necessity relating to security or order, to have his witnesses appear at trial free of shackles. (Citations omitted)

"Prior to Estelle most if not all of the courts had evolved the same rule with regard to the defendant appearing at trial in shackles. The basis for the rule as to both the defendant and his witnesses was that physical restraints marked the person as a violent criminal, which would seriously affect his credibility in the jury's mind." (W.Va., 254 S.E.2d at 809-10)

In Note 5 of McMannis we cited a number of authorities supporting the rule that a criminal defendant has the right, absent some necessity relating to courtroom security or order, to be tried free of physical restraints. ³ This general rule is not substantially different from that stated in our early case of State v. Allen, 45 W.Va. 65, 30 S.E. 209 (1898), where we held in Syllabus Point 1:

"While the practice of keeping a prisoner manacled when on trial before a jury has always been held in disfavor in England, and also in this country, yet the trial court has a discretionary power therein, but a power which should not be exercised under ordinary circumstances, or in any case where the prisoner is not violent and obstreperous, or escape be threatened; and such restraint should not be imposed except in cases of immediate necessity."

In fact, Allen stresses that the necessity must be immediate, by which is meant a pressing or manifest necessity. The immediate necessity is implicit in most courts' opinions because of the substantial prejudice created against the defendant by physical restraints.

The difficulty in the present case is that no record was made as to why it was necessary to try the defendant in physical restraints. Several courts have suggested that the question of whether a defendant should undergo trial in physical restraints should be settled at a pretrial hearing where an appropriate record can be made. See, e. g., Kennedy v. Cardwell, 487 F.2d 101 (6th Cir. 1973), Cert. denied, 416 U.S. 959, 94 S.Ct. 1976, 40 L.Ed.2d 310 (1974)...