State v. McClure
| Citation | 253 S.E.2d 555,163 W.Va. 33 |
| Decision Date | 10 April 1979 |
| Docket Number | No. 13953,13953 |
| Parties | STATE of West Virginia v. Hubert Nello McCLURE. |
| Court | Supreme Court of West Virginia |
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, . . . ." Part, Point 3, Syllabus, State v. Simon, 132 W.Va. 322, 52 S.E.2d 725 (1949).
2. Where it clearly and objectively appears in a criminal case from statements of the jurors that the jury has failed to comprehend an instruction on a critical element of the crime or a constitutionally protected right, the trial court must, on request of defense counsel, reinstruct the jury.
Stevens & Jackson, C. Joseph Stevens, Hamlin, for McClure.
Chauncey H. Browning, Jr., Atty. Gen., Woodrow H. Berry, Asst. Atty. Gen., Charleston, for State.
On October 19, 1976, the Circuit Court of Lincoln County sentenced the appellant to from one to ten years in the State Penitentiary for breaking and entering.
In this appeal the appellant contends:
1. That the trial court erred in permitting the prosecuting attorney, during closing argument, to indicate that the appellant had introduced no evidence rebutting the State's case, thereby insinuating that the appellant had some duty to take the stand and to testify in his own behalf; and
2. That the trial court erred in not reconvening and reinstructing the jury after the jury had asked the court if the defendant could be required to take the stand and testify.
The State, during the trial of the case, introduced circumstantial evidence linking the appellant with the crime charged. The State also introduced the testimony of Mickie Vannatter, a participant in the crime, who implicated the appellant.
The defense adduced no evidence whatsoever.
After both the State and the defense had rested, the court gave the jury various instructions, including Defendant's Instruction No. 9 which stated, in part:
" . . . the jurors are instructed that the fact that the defendant did not go upon the witness stand to testify in his own behalf in this case, is not to be looked upon or considered by the jury as any evidence or even a circumstance showing or tending to show his guilt."
The prosecuting attorney concluded his closing argument by saying: At the conclusion of these remarks defense counsel moved for a mistrial on the ground that they would lead the jury to believe that the appellant was under an obligation to take the stand and deny Vannatter's testimony. The trial court denied the motion for mistrial.
After the jury had retired and had considered their verdict for approximately an hour, the court bailiff delivered a message to the judge. That message, from the jury, indicated that they wished to know if there was any way to get the appellant to testify.
Upon learning of the message, defense counsel moved that the instructions be reread. The judge refused and instructed the bailiff to inform the jury that their request could not be honored. Defense counsel renewed his motion, and the court again denied it. Approximately twenty minutes later the jury returned a guilty verdict.
The appellant's first contention is that the prosecutor's remarks during closing argument constituted an impermissible comment on the appellant's failure to take the stand and testify in his own behalf.
W.Va.Code, 57-3-6 provides that a defendant's failure to testify shall create no presumption against him and shall not be the subject of comment before the court or jury by anyone.
This Court in State v. Simon, 132 W.Va. 322, 52 S.E.2d 725 (1949), held that:
"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, . . ."
After carefully examining the record in this case, we conclude that the prosecutor in his closing remarks did not specifically refer to the appellant's failure to testify, and that the remarks fall within the class of those held permissible under Simon.
The appellant's second contention is that the trial court erred in...
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State v. Davis
...Romine, 166 W.Va. 135, 272 S.E.2d 680 (1980); State v. Butcher, 165 W.Va. 522, 528, 270 S.E.2d 156, 160 (1980); State v. McClure, 163 W.Va. 33, 37, 253 S.E.2d 555, 557-58 (1979); Syl. pt. 3, State v. Belcher, 161 W.Va. 660, 245 S.E.2d 161 (1978); Syl. pt. 3, State v. Starr, 158 W.Va. 905, 2......
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...wanted the trial court to answer. We addressed a similar issue in the context of a criminal prosecution. In Syllabus Point 2 of State v. McClure, 163 W.Va. 33, 253 S.E.2d 555 (1979), we "Where it clearly and objectively appears in a criminal case from statements of the jurors that the jury ......
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...constitutionally protected right, the trial court must, on request of defense counsel, reinstruct the jury." Syllabus Point 2, State v. McClure, 163 W.Va. 33, 253 S.E.2d 555 (1979). 10. "An instruction for a statutory offense is sufficient if it adopts and follows the language of the statut......