State v. Linkous

• Decision Date: 19 March 1987
• Docket Number: No. 17177,17177
• Citation: 355 S.E.2d 410,177 W.Va. 621
• Parties: STATE of West Virginia v. Jimmy R. LINKOUS.
• Court: West Virginia Supreme Court

Page 410

355 S.E.2d 410

177 W.Va. 621

STATE of West Virginia v. Jimmy R. LINKOUS.

No. 17177.

Supreme Court of Appeals of

West Virginia.

March 19, 1987.

Syllabus by the Court

1. "A criminal defendant has the right, absent some necessity relating to courtroom security or order, to be tried free of physical restraints." Syllabus Point 3, State v. Brewster, 164 W.Va. 173, 261 S.E.2d 77 (1979).

2. Ordinarily, it is not reversible error nor grounds for a mistrial to proceed to try a criminal defendant with a jury panel that may have seen him in handcuffs for a brief period of time prior to trial.

3. Misconduct or disruptive behavior on the part of a defendant during the course of a criminal trial will not establish grounds for his obtaining a mistrial.

4. "Our general rule is that nonjurisdictional trial error not raised in the trial court will not be addressed on appeal." Syllabus Point 9, State v. Humphrey, --- W.Va. ---, 351 S.E.2d 613 (1986).

5. "Voluntary drunkenness is generally never an excuse for a crime, but where a defendant is charged with murder, and it appears that the defendant was too drunk to be capable of deliberating and premeditating, in that instance intoxication may reduce murder in the first degree to murder in the second degree, as long as the specific intent did not antedate the intoxication." Syllabus Point 2, State v. Keeton, --- W.Va. ---, 272 S.E.2d 817 (1980).

6. "A judgment denying relief in post-conviction habeas corpus is res judicata on questions of fact or law which have been fully and finally litigated and decided...." Syllabus Point 2, in part, Losh v. McKenzie, --- W.Va. ---, 277 S.E.2d 606 (1981).

Maria Fakade, Atty. Gen., Charleston, for appellant.

Phillip D. Mooney, Oak Hill, for appellee.

MILLER, Justice:

The defendant, Jimmy R. Linkous, seeks to overturn his first degree murder conviction without a recommendation of mercy on the primary ground that when he was initially brought into the courtroom for his trial, he was handcuffed. He also complains of the trial court's refusal to grant a mistrial when several jurors witnessed a scuffle that he had with court bailiffs. Additional evidentiary errors are assigned. We conclude that there was no reversible error committed.

The defendant and several other prisoners were brought into the courtroom where the court was disposing of some criminal matters prior to starting the trial of the defendant's case. The jury had not been impaneled, but prospective jurors were in the courtroom. The defendant arrived in the courtroom handcuffed to another prisoner and the handcuffs were then removed.

Prior to the beginning of the selection of the jury, the defendant's counsel moved that a new jury panel be selected because he believed the existing panel would be prejudiced by seeing the defendant enter the courtroom in handcuffs. The trial court refused the defense motion, stating that the period that the defendant appeared in handcuffs was brief. The trial court also stated that other defendants were in the courtroom who had been brought in a similar fashion so that the defendant had not been singled out. Defense counsel did not ask to voir dire the jury over this incident.

The defendant relies upon Syllabus Point 3 of State v. Brewster, 164 W.Va. 173, 261 S.E.2d 77 (1979), which was based on Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), and State ex rel. McMannis v. Mohn, 163 W.Va. 129, 254 S.E.2d 805 (1979), cert. denied, 464 U.S. 831, 104 S.Ct. 110, 78 L.Ed.2d 112 (1983): ¹

"A criminal defendant has the right, absent some necessity relating to courtroom security or order, to be tried free of physical restraints." ²

There is a major distinction between Brewster and this case as to the extent of time the defendant was in restraints before the jury. In Brewster, the defendant was required to remain in physical restraints throughout his entire criminal trial. This case involves only an initial appearance in handcuffs which were removed shortly after he was brought into the courtroom. Most courts that have dealt with this question conclude that ordinarily it is not reversible error nor grounds for a mistrial to proceed to try a criminal defendant with a jury panel that may have seen him in handcuffs for a brief period of time prior to trial. United States v. Figueroa-Espinoza, 454 F.2d 590 (9th Cir.1972); Williams v. State, 361 So.2d 1116 (Ala Crim.App.1978); Moffett v. State, 291 Ala. 382, 281 So.2d 630 (1973), cert. denied, 414 U.S. 1161, 94 S.Ct. 924, 39 L.Ed.2d 114 (1974); State v. George, 98 Ariz. 290, 403 P.2d 932 (1965); Hamrick v. People, 624 P.2d 1320 (Colo.1981); Duonnolo v. State, 397 A.2d 126 (Del.Super.Ct.1978); People v. Hyche, 63 Ill.App.3d 575, 20 Ill.Dec. 395, 380 N.E.2d 373 (1978), aff'd, 77 Ill.2d 229, 32 Ill.Dec. 893, 396 N.E.2d 6 (1979); Marion v. Commonwealth, 269 Ky. 729, 108 S.W.2d 721 (1937); State v. Clark, 340 So.2d 208 (La.1976), cert. denied, 430 U.S. 936, 97 S.Ct. 1563, 51 L.Ed.2d 782 (1977); Annot., 90 A.L.R.3d 17, 125 (1979).

The common reason given is that there exists an obvious security need to have some physical restraints on prisoners when they are being moved from the jail to the courthouse. Such security reduces their chance of escape and also protects the public safety. The better practice is to remove restraints before a prisoner is brought before the jury. We agree with the court's observation in Hamrick, 624 P.2d at 1322, that "reasonable efforts should be made to prevent prisoners under such restraints from being seen by prospective or actual jurors." See also People v. Herndon, 98 Mich.App. 668, 296 N.W.2d 333 (1980).

The defendant's second and third grounds of error are closely related and involve the trial court's denial of his motion for a mistrial after several members of the jury saw the defendant scuffling with law enforcement officials at the trial. This incident occurred during an in camera hearing on the second day of trial. The defendant unlocked and proceeded out a door leading into a hallway on the first floor of the courthouse. When a law enforcement officer attempted to stop him, a scuffle ensued during which the defendant was wrestled to the floor and handcuffed by law enforcement officers. The jury panel happened to be in the hallway where they could see the defendant on the floor being handcuffed.

The defendant moved for a mistrial at this point, which the trial court denied. After the jury verdict, the court permitted defense counsel to question the jurors with regard to what they had observed as to the scuffle. Eight of the jurors stated what they had seen. Two of the eight indicated that they had discussed with each other the incident during the jury deliberations. The defense counsel then moved to set aside the verdict and to grant a new trial, which motion the court denied.

It appears to be rather uniformly held that misconduct or disruptive behavior on the part of a defendant during the course of a criminal trial will not establish grounds for his obtaining a mistrial. E.g., Hayes v. State, 340 So.2d 1142 (Ala.Cr.App.1976); Hammond v. United States, 345 A.2d 140 (D.C.App.1975); State v. Olinghouse 605 S.W.2d 58 (Mo.1980); Chamberlain v. State, 453 S.W.2d 490 (Tex.Crim.App.1970); Annot., 89 A.L.R.3d 960 (1979). The basis for this rule is aptly stated in Hayes v. State, 340 So.2d at 1143:

"[W]e hold that one cannot purposefully create grounds for a mistrial by deliberately causing a disturbance during the trial. See Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). Such a conclusion is obviously necessary, otherwise a defendant faced with imminent conviction could disrupt the trial, prejudice himself in the jury's eyes and, therefore, be entitled to another trial."

The Supreme Court in Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), dealt extensively with the various remedies that a court could take with regard to a disruptive defendant. It held that the Sixth Amendment's right to be present at one's criminal trial does not preclude the removal from the courtroom of an unruly defendant and concluded with this statement, with which we also agree:

"Nor can the accused be permitted by his disruptive conduct indefinitely to avoid being tried on the charges brought against him. It would degrade our country and our judicial system to permit our courts to be bullied, insulted, and humiliated and their orderly progress thwarted and obstructed by defendants brought before them charged with crimes." 397 U.S. at 346, 90 S.Ct. at 1062, 25 L.Ed.2d at 360-61.

Accordingly, we conclude that the trial court did not abuse its discretion in refusing to declare a mistrial.

The defendant also raises certain evidentiary errors. He contends that the trial court erred in permitting the State's chief medical examiner, Dr. Ervin Sopher, to testify as to the manner and cause of the victim's death based on an autopsy report prepared by a Dr. Kshirsagar, the assistant medical examiner.

The assistant medical examiner who conducted the autopsy was in Chicago at the time of trial and did not appear to testify. Dr. Sopher testified that the cause of death was a shotgun wound to the chest based upon the autopsy report. The record further shows that Dr. Sopher is responsible for the care, custody, and control of post-mortem medical records.

We find no merit in this assignment of error because no objection to the admissibility of Dr. Sopher's testimony was made at trial. This court ordinarily will not consider alleged evidentiary errors that have not been preserved by specific and timely objection at trial, as stated in Syllabus Point 9 of State v. Humphrey, --- W.Va. ---, 351 S.E.2d 613 (1986):

"Our general rule is that nonjurisdictional trial error not raised in the trial court will not be addressed on appeal." ³

See also State v. Manns, --- W.Va. ---, ---, 329 S.E.2d 865, 871 (1985); Syllabus Point 1,...