State v. Lindsey, 13701
| Decision Date | 05 April 1977 |
| Docket Number | No. 13701,13701 |
| Citation | 160 W.Va. 284,233 S.E.2d 734 |
| Parties | STATE of West Virginia v. Robert LINDSEY. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. It is the duty of the jury to determine the guilt or innocence of the accused in accordance with the evidence introduced at the trial and it must not concern itself with matters of possible parole or probation.
2. A person convicted of a crime shall be considered for parole only after he becomes eligible therefor under the appropriate statute.
3. In a case in which a jury may return a verdict of guilty of murder of the first degree, it is the mandatory duty of the trial court, without request, to instruct the jury that to such verdict it may add a recommendation of mercy, that such recommendation would mean that the defendant could be eligible for parole consideration only after having served a minimum of ten years and that otherwise the defendant would be confined to the penitentiary for life without possibility of parole.
Robert H. Burford, William C. Beatty and Thomas H. Gilpin, Huntington, for plaintiff in error.
Chauncey H. Browning, Jr., Atty. Gen., Richard E. Hardison, Deputy Atty. Gen., Anne Little, Asst. Atty. Gen., Charleston, for defendant in error.
This is an appeal from a final order of the Circuit Court of Cabell County wherein that court denied an appeal from a judgment of the then Common Pleas Court of said county. The defendant was indicted at the January Term, 1972, of the then Common Pleas Court, on a charge of murder. Upon his plea of not guilty, he was tried before a jury and a verdict of guilty of murder of the first degree was returned. This appeal resulted.
The defendant assigns as error the action of the trial court (1) in instructing the jury as to the defendant's right to parole after conviction; (2) in orally instructing the jury; and (3) in permitting prosecutorial comment, allegedly referring to the failure of the accused to testify.
The facts of the case as they relate to the assignments of error may be succinctly stated. All of the principal assignments relate to matters that occurred subsequent to the presentation of testimony by the state and defendant. The assistant prosecuting attorney during closing argument related to the jury his recollection of the testimony of some of the state's witnesses. He then asked the question, "Do you believe the testimony the State had produced in this case? The best testimony is from the very lips of the defendant himself who in a moment of his activity related ". Objection was interposed by defense counsel at this point and the court overruled the objection, permitting the state's attorney to proceed. He then recited what events he contended were related to certain witnesses by the defendant and concluded that these witnesses could not possibly have known of these events except from the defendant. The state's attorney then made the statement that "A man who is charged with guilt will deny that guilt is he is innocent." The purport of this argument was that the defendant did not deny the crime to these witnesses and that if he were innocent he would have done so.
After this closing argument by the assistant prosecutor, the court proceeded to tell the jury orally that there were three possible verdicts that could be returned. He listed them as follows: "We the Jury agree and find the Defendant, Robert Lindsey, not guilty as charged in Indictment No. 8774, or We the Jury agree and find the Defendant, Robert Lindsey, guilty of murder in the first degree as charged in Indictment No. 8774, or We the Jury agree and find the Defendant, Robert Lindsey, guilty of murder in the first degree as charged in Indictment No. 8774 and recommend mercy and under the last verdict, Ladies and Gentlemen of the Jury, if you so find the defendant, Robert Lindsey, guilty and you recommend mercy, he will be entitled to parole under the applicable statute of the State of West Virginia."
Neither party had offered an instruction indicating the possible verdicts. After a short conference at the bench, the jury was directed to retire and consider of its verdict. After approximately thirty-five minutes, the jury indicated that it had a question for the court. The jury was returned to the courtroom where the court attempted to answer the questions propounded. The questions propounded concerned the defendant's right to parole if certain verdicts were returned. The court instructed the jury that it was its function to "determine the facts based upon the sworn testimony that you have heard from the witness stand and based upon also the evidence that has been submitted . . . The punishment related to this or any other offense is the function of the Court . . .". The court then again proceeded to inform the jury that there were only three possible verdicts that could be returned in the case. It then said, "If the jury should come back with a verdict of guilty with a recommendation of mercy that means that the accused will be subject to parole under the applicable statutes of this State." The jury again retired and less than thirty minutes later returned with a verdict of first degree murder without recommendation.
The trial court overruled defendant's motion to set aside the verdict and grant him a new trial and, on appeal, the Circuit Court of Cabell County affirmed the action of the trial court. This Court, upon petition, granted defendant a writ of error and for reasons to be hereinafter stated, now reverse the action of the circuit court, set aside the verdict and grant the defendant a new trial.
We consider, first, the defendant's assignment of error relating to the court's alleged erroneous instruction to the jury as to the defendant's parole rights. We have been cited to no West Virginia authority, nor have we found any that would resolve this question.
A review of the authorities of other jurisdictions, however, indicates that the majority thereof hold it to be prejudicial error for the court to tell a jury that a prison sentence may be reduced and the prisoner released as a result of parole or pardon. See Annotation, 12 A.L.R.3d 832.
In Jones v. Commonwealth, 194 Va. 273, 72 S.E.2d 693 (1952), the defendant was found guilty of murder of the first degree and was sentenced to death. After the jury had retired to consider of its verdict, it came back into court and inquired as to whether or not it would have any assurance that the defendant would not be released if it fixed his punishment at life imprisonment or a long term of years. The court informed the jury that it could not give that assurance; that that would be in the hands of the executive branch of government. One of defense counsel then inquired of the court, privately, if it would not be proper to further advise the jury that persons sentenced to life imprisonment are not eligible for parole. The court answered in the negative. The jury returned to the jury room for further deliberations and after twenty to twenty-five minutes, returned with a verdict of murder in the first degree and imposed the death penalty. The appeals court held that it was reversible error for the trial court to decline to inform the jury under the circumstances of the case, that persons sentenced to life imprisonment are not eligible for parole. The Virginia court said that proper response to any inquiry of the jury relating to parole or probation was to inform or instruct the jury that it was the duty of the jury, if it finds the accused guilty, to impose such punishment as it considered to be just under the evidence and within the limits stated in the court's instructions and that it must not concern itself with what may thereafter happen.
In Strickland v. State, 209 Ga. 65, 70 S.E.2d 710 (1952), the defendant was convicted of murder without recommendation and was sentenced to death by electrocution. The foreman of the jury, after the jury had retired to consider of its verdict, inquired of the court what the probability was of one sentenced to life imprisonment being released on parole after serving seven years. The trial court in answer to this inquiry, instructed the jury that " . . . the rule there is that, when a prisoner is given life imprisonment, he becomes entitled to a parole after seven years; after he has served seven years he is entitled to parole. Now, whether he gets it or not is a question for determination by the Parole Board; I have nothing to do with that, if he gets life imprisonment, he is sentenced to life imprisonment, but whether he serves more than seven years is a question for the Parole Board to determine; they review his record before and after sentence and say whether he should be released . . . ". Upon appeal it was held that under the circumstances of the case the instruction given by the trial court regarding the inquiry of the foreman was calculated to influence the jury against a recommendation of mercy and the court granted the defendant a new trial.
In Kendrick v. State, 55 Ala.App. 11, 312 So.2d 583 (1975), the defendant was convicted of rape and appealed. One of the assignments of error involved the court's instruction given in response to a question presented by the jury after it began deliberations concerning when a person is eligible for parole. The court said that the trial court should not attempt to explain the functions of the pardon or parole board or to explain how it operates but "to inform the jury in no uncertain terms that such matters are not proper for the jury's consideration and that the jury should determine the guilt or innocence of the defendant and the length of his imprisonment based entirely on the evidence presented to it." The court concluded that the trial court's response was so worded as to convey the idea that the jury in arriving at its verdict should not assume that the defendant would possibly be pardoned or paroled and affirmed the...
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