State v. Miller, 17490

• Citation: 363 S.E.2d 504,178 W.Va. 618
• Decision Date: 19 November 1987
• Docket Number: No. 17490,17490
• Court: Supreme Court of West Virginia
• Parties: STATE of West Virginia v. Michael Dean MILLER.

Page 504

363 S.E.2d 504

178 W.Va. 618

STATE of West Virginia v. Michael Dean MILLER.

No. 17490.

Supreme Court of Appeals of

West Virginia.

Nov. 19, 1987.

Syllabus by the Court

1. An instruction outlining factors which a jury should consider in determining whether to grant mercy in a first degree murder case should not be given.

2. "When a trial court grants a pre-trial discovery motion requiring the prosecution to disclose evidence in its possession, non-disclosure by the prosecution is fatal to its case where such non-disclosure is prejudicial. The non-disclosure is prejudicial where the defense is surprised on a material issue and where the failure to make the disclosure hampers the preparation and presentation of the defendant's case." Syllabus Point 2, State v. Grimm, 165 W.Va. 547, 270 S.E.2d 173 (1980).

3. Rule 16(a)(1)(A) of the West Virginia Rules of Criminal Procedure, unlike its federal counterpart, requires the prosecution to disclose the substance of any oral statement of the defendant it intends to offer in evidence at trial, and is not limited to oral statements made to law enforcement officers.

4. Our traditional appellate standard for determining whether the failure to comply with court-ordered pretrial discovery is prejudicial is contained in Syllabus Point 2 of State v. Grimm, 165 W.Va. 547, 270 S.E.2d 173 (1980). This was evolved prior to the adoption of our Rules of Criminal Procedure, but is applied to Rule 16 discovery.

5. Rule 16(d)(2) enables a trial court to impose sanctions that may have the effect of curing a late discovery problem.

6. "Most courts have held that in the absence of some express constitutional or statutory provision, a prosecutor has no inherent authority to grant immunity against prosecution." Syllabus Point 16, Myers v. Frazier, 173 W.Va. 658, 319 S.E.2d 782 (1984).

David W. Johnson, Asst. Atty. Gen., for the State.

Gregory J. Campbell, Charleston, for defendant.

MILLER, Justice:

The defendant appeals from a conviction in the Circuit Court of Marshall County of first degree murder without a recommendation of mercy for having killed a fellow inmate at the West Virginia State Penitentiary. The defendant assigns three errors. First, he contends the trial court gave an erroneous instruction to the jury on the factors it could consider in determining whether to grant mercy in the event it found him guilty of murder in the first degree. Second, he contends that the State failed to disclose his incriminating oral statements to two inmates at the Penitentiary. Third, he contends the prosecuting attorney engaged in prosecutorial misconduct by obtaining from the circuit court a grant of immunity to two inmates who testified against him.

I.

The defendant maintains that State's Instruction No. 4, ¹ which contains a list of factors for the jury to consider in recommending mercy, was erroneous. He points out that this type of instruction has never been sanctioned by this Court, and argues it is misleading and confusing. He emphasizes the fact that after the jury began its deliberations, it sent a note asking the court to reread the list of factors it should consider in determining whether to recommend mercy. Ten minutes after the jury was given a copy of all the instructions and advised that State's Instruction No. 4 was the one it had expressed an interest in reviewing, it reached a verdict without a recommendation of mercy.

The State argues that the factors listed in State's Instruction No. 4 were generally held to be proper for jury consideration in State ex rel. Leach v. Hamilton, W.Va., 280 S.E.2d 62 (1980), and urges this Court to specifically adopt this instruction as a permissible method for guiding the jury in its deliberation as to mercy, in what it submits would otherwise be a vague and confusing task. Furthermore, the State argues that the defendant only preserved by objection two very limited areas of the instruction. This was an objection to Section G dealing with insanity and intoxication, and the last sentence of the instruction relating to not utilizing sympathy to grant mercy.

We have traditionally held that it is the mandatory duty of the trial court to instruct the jury that it may add a recommendation of mercy to its first degree murder verdict. ² Syllabus Point 3, State v. Lindsey, 160 W.Va. 284, 233 S.E.2d 734 (1977) ³; see also, Syllabus Point 4, State v. Headley, 168 W.Va. 138, 282 S.E.2d 872 (1981); Syllabus Point 3, State v. Loveless, 139 W.Va. 454, 80 S.E.2d 442 (1954). This rule is based on the fact that juries in this State are given a limited sentencing role by letting them decide whether to return a first degree murder conviction with a recommendation of mercy under the provisions of W.Va.Code, 62-3-15 (1965). ⁴ This statute provides that in the event of a recommendation of mercy, the defendant is then eligible for parole under the provisions of W.Va.Code, 62-12-13(a)(1)(B). ⁵ We pointed out the jury's limited role in a murder case in State ex rel. Leach v. Hamilton, W.Va., 280 S.E.2d at 64:

"The West Virginia first-degree murder statute leaves very little sentencing discretion to juries. A finding of guilt automatically results in a life sentence and a jury's only discretion is whether to grant parole eligibility by recommending mercy. The factors that a jury should consider in deciding whether to recommend mercy are not delineated, but these are for legislative determination."

Contrary to the State's argument, we did not suggest in State ex rel. Leach v. Hamilton, supra, that factors for jury consideration of mercy should be delineated in an instruction. Leach dealt with the question of whether a unitary trial was constitutional on a murder charge. We relied on our earlier decision of State ex rel. Rasnake v. Narick, 159 W.Va. 542, 227 S.E.2d 203 (1976), which rejected a similar claim for bifurcation to a charge of rape under former W.Va.Code, 61-2-15 (1965). In the course of delineating what evidence a defendant might seek to introduce at a unitary trial, just as easily as at a bifurcated trial, that would motivate a jury to recommend mercy, we listed: "defendant's age, mental state, defenses, family responsibilities, the nature of the offense and circumstances surrounding the crime." W.Va. at 280 S.E.2d at 65. owhere in the opinion did we suggest, much less direct, that a jury should be instructed on factors in determining whether to recommend mercy.

It does not appear that any court has considered whether a detailed jury instruction on the mercy issue should be given where there is no death penalty. In the past, a number of states had statutes permitting the jury in homicide cases to recommend mercy and thereby avoid imposition of the death penalty. ⁶ In a number of cases, an issue arose as to whether the jury had been properly instructed on their right to recommend mercy. This type of case is illustrated by McLendon v. State, 205 Ga. 55, 52 S.E.2d 294 (1949), where the defendant appealed from a death sentence for first degree murder under a statute which permitted the jury to recommend mercy, resulting in a sentence of life imprisonment. At trial, the jury foreman questioned the trial court as to what the jury should consider in deciding to recommend mercy. The trial court simply stated that this issue was entirely within the discretion of the jury.

On appeal the defendant argued this statement was misleading and that the trial court should have charged the jury as to factors it should consider in deciding whether or not to recommend mercy. The court, in rejecting this claim, stated:

"There is no merit in these contentions. The jury, presumably being men of intelligence, could not have been misled by the instructions, and of necessity must have known that the matter of recommending mercy was within their discretion, and a recommendation or refusal could be made with or without reason. In Hicks v. State, 196 Ga. 671(2), 27 S.E.2d 307, 309, it was held: 'The jury in determining whether or not to recommend mercy is not controlled by any rule of law, nor could the court under any circumstances instruct them as to when they should, or should not, make such a recommendation. They may do so with or without reason, and they may decline to do so with or without a reason. It is a matter wholly within their discretion.' ... 'For ourselves, we think little, if anything, can be added to the words of the statute without qualifying it.' " ⁷ 205 Ga. at 68, 52 S.E.2d at 302.

More recently, in Manor v. State, 223 Ga. 594, 157 S.E.2d 431 (1967), vacated in part, 408 U.S. 935, 92 S.Ct. 2256, 33 L.Ed.2d 750 (1972), the Georgia court held that the trial court properly refused to give an instruction offered by the defendant in a capital case. The instruction would have told the jury it should consider the defendant's intelligence, his mentality and comprehension in determining whether to recommend mercy. The refusal to give such an instruction was upheld on the ground that it would interfere with the jury's unlimited discretion to decide whether to recommend mercy. ⁸

In jurisdictions where the decision to recommend mercy is left entirely within the discretion of the jury and is made binding on the trial court, it is uniformly held that an instruction which enumerates instances or suggests when a mercy recommendation might be appropriate is reversible error. Cohen v. State, 116 Ga. 573, 42 S.E. 781 (1902); State v. Martin, 92 N.J.L. 436, 106 A. 385 (1919); State v. Jones, 201 S.C. 403, 23 S.E.2d 387 (1942); Annot., 138 A.L.R. 1222 (1942); Annot., 87 A.L.R. 1363 (1933); Annot., 17 A.L.R. 1117, 1129 (1922).

One of the difficulties with the mercy instruction in this case is that it contains matters that are directly related to possible defenses to a criminal charge. As a consequence, the jury in its deliberations could be deflected from deciding the merits of a defense issue and treat it as part of the mercy recommendation. Section D...