State v. Harriston, 13933
| Court | Supreme Court of West Virginia |
| Citation | 253 S.E.2d 685,162 W.Va. 908 |
| Docket Number | No. 13933,13933 |
| Parties | STATE of West Virginia v. Steven Charles HARRISTON. |
| Decision Date | 10 April 1979 |
Page 685
v.
Steven Charles HARRISTON.
Syllabus by the Court
1. "It is within the judicial discretion of the trial court to permit a witness for the state, who is familiar with the facts on which the prosecuting attorney relies to establish the guilt of the accused, to be present in court during the trial to aid him in conducting the examination of other witnesses. Point 5, syllabus, State v. Hoke, 76 W.Va. 36 (84 S.E. 1054)." Point 5, syllabus, State v. Wilson, W.Va., 207 S.E.2d 174 (1974).
2. If a state witness is excluded from sequestration he or she ordinarily should be called first to ensure, as far as possible, that the witness will not be educated by testimony of other witnesses, which, of course, is the harm sequestration seeks to prevent.
Page 686
3. It is not reversible error for a trial judge, who presided at a deposition proceeding, to exclude from the reading of the report of those proceedings to the jury, his own remarks that were merely introductory to the interrogation by counsel of the deposing witness.
4. Where a trial judge questioned deposing witness at a proceeding over which he presides, and there was no objection to his inquiries at the time nor later when the testimony elicited from [162 W.Va. 909] the witness was proposed to be read to a jury, and the questions were to clarify the witness' testimony after questioning by counsel, we will not find the questioning to be reversible error.
Brown H. Payne, Beckley, Franklin D. Cleckley, Morgantown, for petitioner.
Chauncey H. Browning, Jr., Atty. Gen., Michael G. Clagett, Asst. Atty. Gen., Charleston, for defendant.
HARSHBARGER, Justice:
After having been tried by a jury which could not agree, Steven Harriston was again tried, and convicted by a jury in the Circuit Court of Mingo County of delivery of marijuana and sentenced to one to five years in the penitentiary.
The State's evidence was that he sold a quantity of the substance to Trooper Faulknier, a state police undercover agent.
I.
Did the court err in allowing Faulknier to be excluded from witness sequestration? The government moved for sequestration of witnesses, asking at the same time that the trooper be allowed to remain and "assist the State." Defendant's objection was overruled on the basis of State v. Wilson, W.Va., 207 S.E.2d 174 (1974).
Sequestration has never been a matter of absolute right in this State. 1 We last addressed the question in the Wilson case. There the defendant was convicted of voluntary manslaughter and appealed, contending Inter alia, that it was error for the court to exclude police [162 W.Va. 910] officers from the sequestration of the witnesses. The pertinent Wilson Points are:
4. The question as to which witnesses may be exempt from a sequestration of witnesses ordered by the court lies within the discretion of the trial court, and unless the trial court acts arbitrarily to the prejudice of the rights of the defendant the exercise of such discretion will not be disturbed on appeal.
5. "It is within the judicial discretion of the trial court to permit a witness for the state, who is familiar with the facts on which the prosecuting attorney relies to establish the guilt of the accused, to be present in court during the trial to aid him in conducting the examination of other witnesses." Point 5, syllabus, State v. Hoke, 76 W.Va. 36 (84 S.E. 1054).
6. The rule with regard to excluding police officers from a sequestration of witnesses is that it is not error to do so if the testimony of such police officers is not crucial to the state's case and not prejudicial to the defendant.
Petitioner would have us adopt the further standard expressed in James v. State, 143 Ga.App. 696, 240 S.E.2d 149 (1977), to refine Wilson. 2
The burden of showing an exception (where the witness is needed to advise the district attorney, or where the absence of an official witness would impair the efficiency of the court) is on the state. If that burden is carried, the witness
Page 687
should then be sworn first in order that his testimony be taken before he has the unfair advantage of hearing the other witnesses for the state . . . (and) failure to do so or offer a sufficient reason [162 W.Va. 911] for not doing it is reversible error. (Citations omitted) 240 S.E.2d at 150.The State contends that one officer should be allowed to remain in the courtroom, excluded from sequestration, to assist the prosecution.
Most jurisdictions and authorities agree that sequestration of witnesses is a matter within the discretion of the trial court, 3 and is reviewable only upon a showing of abuse of that discretion or manifest injustice to the defendant. 4 At least one state has held that such discretion is not reviewable, 5 and another that where sequestration is granted and then violated, there is reversible error only upon a showing of prejudice. 6
[162 W.Va. 912] The majority rule automatically excludes law enforcement officers from sequestration orders, either by statute or judicial tradition. 7 Grace v. State, Del.Supr., 314 A.2d 169 (1973). See also, Ratliff v. State, Fla.Dist.Ct.App., 256 So.2d 262 (1972) (police officers excluded because they are disinterested in the outcome of the case). However, some courts have specifically stated that police officers are not exempt from sequestration merely because of their position, Nickerson v. State, 22 Md.App. 660, 325 A.2d 149 (1974) and Allen v. State, Tex.Cr.App., 536 S.W.2d 364 (1976). The rule has been qualified somewhat by the Massachusetts Court in Commonwealth v. Clark, 3 Mass.App. 481, 334 N.E.2d 68 (1975) where the court approved the exemption of an investigating officer only when his presence was essential to the management of the case.
Following the majority rule, as we did in Wilson, we find that the trial court in this case did not abuse its discretion by excepting Trooper Faulknier from its sequestration order.
"The primary purpose of the rule . . . (sequestration) is to insure, as far as possible, that one witness shall not be taught, schooled or prompted by another's testimony; its application avoids an artificial harmony of testimony and may also avoid the outright manufacture of testimony." (Citations omitted) Nickerson
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