State v. Goad

Citation177 W.Va. 582,355 S.E.2d 371
Decision Date18 March 1987
Docket NumberNo. 17242,17242
CourtSupreme Court of West Virginia
Parties, 88 A.L.R.4th 381 STATE of West Virginia v. Jimmy GOAD.

Syllabus by the Court

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.

Eric O'Briant, Logan, for appellant.

Gayle Fidler, Asst. Atty. Gen., Charleston, for appellee.

BROTHERTON, Justice:

The petitioner, Jimmy Goad, appeals from the Circuit Court of Logan County, asserting that his conviction for nonaggravated robbery should be overturned. He claims several errors, among them that the county prosecutor violated his constitutional rights by threatening an important witness, so that the witness refused to testify. We find that there was in fact prejudicial prosecutorial misconduct, and reverse the judgment of the circuit court.

The record shows that the appellant intended to call Jimmy Dillard as an alibi witness. Dillard was in jail on an unrelated charge at the time of the trial. Two days before the appellant's trial began, the prosecutor contacted an attorney who had represented the potential witness on two unrelated charges, and asked him to advise Dillard of "the State's position" regarding Dillard's testimony in the upcoming trial. The attorney prepared a letter to Dillard, and met with him late in the afternoon on the day before the trial. The letter, the body of which is reproduced in full in the footnote, 1 conveyed a message from the prosecutor that he had two witnesses who would testify that Dillard drove the getaway car in the robbery with which the appellant was charged. It concluded:

[The prosecutor] said that he will agree not to prosecute you on that robbery charge if you will either tell the truth at trial and not provide Mr. Goad with an alibi or take the fifth amendment when questioned on the matter.

Notably, this threat/promise did not give the witness the option of telling the truth and providing Jimmy Goad with an alibi.

This advice on the eve of trial was followed up by a conference in the judge's chambers, where the appellant, his counsel, the prosecutor, the witness, and the lawyer who prepared the letter all were present. There, the court advised Dillard that he had the right to remain silent. The lawyer explained the fifth amendment right against self-incrimination. He also conveyed a message from the prosecutor (who was in the same room) that the agreement not to prosecute was withdrawn, and that the prosecutor would bring charges or not as he saw fit. The court then asked Dillard what he planned to do, and Dillard replied, "Take the Fifth." Fearing that an assertion of the fifth amendment privilege by an eyewitness would only damage her case, appellant's counsel did not call Dillard to the stand.

Appellant's counsel moved to dismiss the charges against her client on the basis of prosecutorial misconduct in intimidating a defense witness, or alternatively for a grant of immunity to Jimmy Dillard. The court denied both motions. On appeal, Jimmy Goad urges us to overturn his conviction, because the prosecutor's actions deprived him of due process of law by driving his prime alibi witness from the stand. The prosecutor counters that he was merely seeing to it that the witness understood his rights and comprehended fully the consequences of his actions.

I.

We have no way of knowing whether the prosecutor indeed had two witnesses prepared to implicate Dillard in the crime. Further, we have no way of knowing if the testimony offered by those witnesses would have been truthful. We do know, however, that given a free rein to "inform" potential defense witnesses of the "consequences of their testimony," an over-zealous prosecutor could wrongfully suppress a great deal of truthful evidence. If Dillard in fact could have testified truthfully regarding an alibi, the prosecutor's warnings conveyed the message that doing so would only get him into more trouble. For a man already in jail, the threat of further prosecution, even if not justified, is a potent one.

In Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967), the Supreme Court declared:

The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.

The Court applied this due process right in the context of witness intimidation in Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972). There, the trial judge had given a defense witness an extended admonition to refrain from lying, and threatened him with prosecution for perjury and an extended prison term. The witness then refused to testify. On appeal, the Supreme Court held that the judge's threatening remarks effectively drove the witness off the stand and deprived the defendant of due process of law. 409 U.S. at 98, 93 S.Ct. at 353.

The same principles have been held to require reversal when a prosecutor, by threats of prosecution for the same crime and for perjury, causes a witness to withhold testimony. In United States v. Morrison, 535 F.2d 223 (3rd Cir.1976), for example, the defendant's girlfriend was prepared to testify that she, and not the defendant, was involved in a conspiracy to sell hashish, and that the defendant's involvement in the crime was only incidental. During the trial, an assistant United States Attorney sent at least three messages to the witness, through defense counsel, that she was liable to be prosecuted on drug charges, that her testimony could be used against her, and that she could be subject to federal perjury charges. 535 F.2d at 225. He also had the witness brought to his office under an invalid subpoena, where he reiterated his "advice" in person. When called to the stand, the witness answered many of the questions asked, but refused to answer several on the ground that the answers might incriminate her, thus depriving the defendant of much of the evidence he had expected to present to the jury. Id. at 225-26. The United States Court of Appeals for the Third Circuit found that the repeated warnings of the prosecutor were...

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5 cases
  • State v. Bennett
    • United States
    • West Virginia Supreme Court
    • 29 April 1988
    ...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 Fift......
  • State v. Bradshaw
    • United States
    • West Virginia Supreme Court
    • 27 March 1995
    ...of this opinion, violations of W.Va.Code, 57-3-3, are subject to harmless error analysis. State v. Bailey, supra; State v. Goad, 177 W.Va. 582, 355 S.E.2d 371 (1987). The harmless error inquiry involves an assessment of the likelihood that the error affected the outcome of the trial. In the......
  • Cox v. Board of Educ. of Hampshire County
    • United States
    • West Virginia Supreme Court
    • 18 March 1987
    ... ... of the respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy." Syllabus point 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969) ...         2. "A writ of mandamus will not be issued in any case ... ...
  • State v. Hensler
    • United States
    • West Virginia Supreme Court
    • 20 March 1992
    ...in this State on appropriate prosecutorial comment. See, e.g., State v. Bennett, 172 W.Va. 131, 304 S.E.2d 35 (1989); State v. Goad, 177 W.Va. 582, 355 S.E.2d 371 (1987); and State v. Petrice, 183 W.Va. 695, 398 S.E.2d 521 (1990).The defendant also claims that the trial court erred in faili......
  • Request a trial to view additional results

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