State v. Clark

• Decision Date: 23 June 1982
• Docket Number: No. 14775,14775
• Citation: 170 W.Va. 224,292 S.E.2d 643
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Bill Eugene CLARK.

Page 643

292 S.E.2d 643

170 W.Va. 224

STATE of West Virginia v. Bill Eugene CLARK.

No. 14775.

Supreme Court of Appeals of West Virginia.

June 23, 1982.

Syllabus by the Court

1. "In a criminal case, where the defendant has exercised his right not to testify, statements of the prosecuting attorney, in his argument of the case before the jury, that there had been no denial of the testimony introduced by the State, without specific reference to the failure of the defendant to testify, does not come within the inhibition of Code, 57-3-6...." Syl. pt. 1, State v. McClure, 163 W.Va. 33, 253 S.E.2d 555 (1979), quoting, syl. pt. 3, State v. Simon, 132 W.Va. 322, 52 S.E.2d 725 (1949).

2. "Gruesome photographs are not per se inadmissible, but they must have something more than probative value, because by the preliminary finding that they are gruesome, they are presumed to have a prejudicial and inflammatory effect on a jury against a defendant. The State must show that they are of essential evidentiary value to its case." Syl. pt. 1, State v. Rowe, 163 W.Va. 593, 259 S.E.2d 26 (1979).

3. Where several gruesome photographs are admitted in evidence with an objection being made only to the least gruesome of such photographs, and where defense counsel during closing argument specifically calls the jury's attention to the other gruesome photographs, which photographs were not objected to when admitted in evidence, this Court will not find the admission of the least gruesome photograph reversible error on the ground of prejudice.

Harry G. Deitzler, Pros. Atty., Parkersburg, for plaintiff-defendant in error.

M. E. Mowery, Jr., and Orville L. Hardman, Parkersburg, for defendant-plaintiff in error.

McHUGH, Justice:

Defendant, Bill Eugene Clark, appeals from a judgment of the Circuit Court of Wood County sentencing him to a term of five to eighteen years in the penitentiary upon a jury verdict finding him guilty of second degree murder.

The defendant's two principal assignments of error are that the trial court erred in permitting over objection the introduction of gruesome photographs having no essential evidentiary purpose and that the prosecutor made a statement during closing argument that amounted to an impermissible comment on his failure to testify. The defendant's other assignments of error, including the claim that the trial court should have granted a judgment of acquittal on both first and second degree murder due to the absence of evidence of malice, are without merit and do not warrant separate discussion. For the reasons that follow, we affirm.

I

The defendant and his wife were alone at their Parkersburg residence on the evening of November 28, 1978. Sometime shortly before 10:00 p. m., the defendant shot his wife in the head at close range with a .20 gauge sawed-off shotgun. She was seated in a chair and died almost instantly. The entry wound was from front to back and was approximately 1-inch above the left eyebrow at about the center of the forehead. The weapon was held in a nearly horizontal position in relationship to the floor. All, or nearly all, of the brain was ripped out of the skull by the shotgun blast. Pieces of the brain fell behind and to the left of the chair. The autopsy revealed a blood alcohol level of .26%.

At 10:09 p. m., the defendant telephoned the Parkersburg Police Department, screaming to the radio dispatcher, "I have killed my wife, I have killed my wife. We were playing with the gun. I have killed my wife." Police officers were dispatched to the scene. Upon their arrival, they found the defendant in an emotional and excited condition. The police officers testified that the defendant made spontaneous statements concerning how the shooting occurred. One officer testified that the defendant said he and his wife had been playing on the floor like a couple of kids. Two other officers testified that the defendant said he and his wife were playing like kids at the time of the shooting but they did not testify that the defendant said they were playing on the floor. The police officer who transported him to police headquarters, testified that the defendant made the spontaneous statement that he and his wife were playing on the floor like a couple of kids when the killing occurred. After reaching the headquarters, the defendant signed a written waiver of his Miranda rights and told another officer how the killing occurred.

The defendant consistently claimed the shooting was an accident, but his statements concerning the shooting were not consistent, particularly in regard to his statements to the officer who interrogated him at police headquarters. In addition, several photographs of the crime scene and the victim's body were introduced in evidence and a firearms expert testified that the shotgun could not be fired unless both the hammer was cocked and the trigger pulled.

The State's theory of the case was that the defendant committed a deliberate and premeditated murder and was attempting to lie his way out of it by asserting the shooting was accidental. The prosecutor emphasized that the defendant's statement about playing on the floor when the weapon discharged was at odds with the physical facts showing she was seated in a chair. Early in the course of closing argument, the prosecutor, while reviewing the testimony of the police officer who transported the defendant to the police station, made the following remark:

"This time he [the defendant] said they were playing on the floor, and he held her in his arms and watched her brains roll out. That is what he said to Ron Poe [the officer]. Now Ron Poe has been around long enough and is trained well enough to know to remember exactly what the defendant says. He knows from his experience in the courtroom that there is no point remembering something, unless you remember it exactly the way it was. So, he told you, ladies and gentlemen, that that is the way it was. There is no evidence to contradict that. There is no evidence to contradict what the defendant said there in the living room so we have to take that as what he said." (emphasis added)

II

The defendant contends the prosecutor's remarks constitute an improper reference to his failure to testify because only he could have controverted the officer's testimony. We cannot agree.

In Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) the United States Supreme Court held that the Self-Incrimination Clause of the Fifth Amendment to the Federal Constitution, applicable to the states by virtue of the Fourteenth Amendment, forbids both comment by the prosecution on a criminal defendant's silence at trial and instructions by the court that such silence may be considered as evidence of guilt. The trial court's instructions and the prosecutor's specific references to the defendant's failure to testify in Griffin were made in accordance with the explicit provisions of the California Constitution, Article 1, § 13. The Court held the constitutional provision and the practice it sanctioned invalid because they penalized the exercise of the Fifth Amendment privilege by permitting a defendant's silence to be used as evidence against him.

Two years later in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the Court held that the question of whether a violation of the Griffin rule constitutes harmless error is governed by federal rather than state law, and that before such constitutional error could be held harmless the court must be able to declare its belief that it was harmless beyond a reasonable doubt. In Chapman, as in Griffin, the state's attorney made numerous references to the defendant's silence at trial and the jury was instructed that it could draw adverse inferences from the defendant's failure to testify.

Since the Griffin decision over fifteen years ago, the Supreme Court has seldom considered what constitutes an impermissible comment on a defendant's failure to testify at trial. The decision in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), however, does provide some guidance as to the question presented here. In that case the Court found that the prosecutor's closing comments did not violate the defendant's Fifth and Fourteenth Amendment rights where the prosecutor made repeated references to the state's evidence as "unrefuted" and "uncontradicted". The court focused on two factual considerations in finding no constitutional violation. Defense counsel had clearly focused the jury's attention on the defendant's silence by outlining her defense in opening statement and by stating to the court and jury near the end of the case that the defendant would be the next witness. The defendant, however, was not called to testify and no evidence was offered in her defense. The Supreme Court concluded that when the situation was viewed against this background the prosecutor's closing remarks added nothing to the impression that had already been created by the defendant's attorney.

The general rule formulated for ascertaining whether a prosecutor's comment is an impermissible reference, direct or oblique, to the silence of the accused is whether the language used was manifestly intended to be, or was of such character that the jury would naturally and necessarily take it to be a reminder that the defendant did not testify. United States v. Harbin, 601 F.2d 773 (5th Cir. 1979); United States v. Muscarella, 585 F.2d 242 (7th Cir. 1978); United States v. Anderson, 481 F.2d 685, 701 (4th Cir. 1973), aff'd, 417 U.S. 211, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1974); United States ex rel. Leak v. Follette, 418 F.2d 1266 (2nd Cir. 1969), cert. denied, 397 U.S. 1050, 90 S.Ct. 1388, 25 L.Ed.2d 665 (1970); Hayes v. Oklahoma, 617 P.2d 223 (Okl.Cr.App.1980).

Under this formula the prosecution is free to stress the strength of the government's case and to argue the evidence and reasonable inferences therefrom, and the prosecutor is not...