State v. Murray, 33193.

• Court: Supreme Court of West Virginia
• Citation: 649 S.E.2d 509
• Decision Date: 05 June 2007
• Docket Number: No. 33193.,33193.
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Brian Daniel MURRAY, Defendant Below, Appellant.

649 S.E.2d 509 STATE of West Virginia, Plaintiff Below, Appellee,
v.
Brian Daniel MURRAY, Defendant Below, Appellant. No. 33193. Supreme Court of Appeals of West Virginia. Submitted: April 17, 2007. Decided: June 5, 2007. Dissenting Opinion of Justice Davis June 29, 2007. Dissenting Opinion of Justice Maynard June 8, 2007. Concurring Opinion of Justice Benjamin July 25, 2007.

[649 S.E.2d 510]

Syllabus by the Court

1. "This Court reviews the circuit court's final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo." Syllabus Point 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996).

2. "Failure to observe a constitutional right constitutes reversible error unless it can be shown that the error was harmless beyond a reasonable doubt." Syllabus Point 5, State, ex rel. Grob v. Blair, 158 W.Va. 647, 214 S.E.2d 330 (1975).

3. "Four factors are taken into account in determining whether improper prosecutorial comment is so damaging as to require reversal: (1) the degree to which the prosecutor's remarks have a tendency to mislead the jury and to prejudice the accused; (2) whether the remarks were isolated or extensive; (3) absent the remarks, the strength of competent proof introduced to establish the guilt of the accused; and (4) whether the comments were deliberately placed before the jury to divert attention to extraneous matters." Syllabus Point 6, State v. Sugg, 193 W.Va. 388, 456 S.E.2d 469 (1995).

4. "It is prejudicial error in a criminal case for the prosecutor to make statements in final argument amounting to a comment on the failure of the defendant to testify." Syllabus Point 3, State v. Noe, 160 W.Va. 10, 230 S.E.2d 826 (1976), overruled on other grounds by State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

5. "Remarks made by the State's attorney in closing argument which make specific reference to the defendant's failure to testify, constitute reversible error and defendant is entitled to a new trial." Syllabus Point 5, State v. Green, 163 W.Va. 681, 260 S.E.2d 257 (1979).

6. "An unpreserved error is deemed plain and affects substantial rights only if the reviewing court finds the lower court skewed

[649 S.E.2d 511]

Darrell V. McGraw, Jr., Attorney General, R. Christopher Smith, Assistant Attorney General, Charleston, for Appellee.

Byron Craig Manford, Esq., Martinsburg, for Appellant.

PER CURIAM.

The appellant appeals his conviction for failure to render aid at an automobile accident involving death and his conviction for failure to maintain control of his automobile. The appellant assigns ten grounds as error. For the reasons stated herein we reverse and remand for a new trial.

I.

On the evening of June 15, 2004, the appellant, Brian Daniel Murray, was driving home from a friend's house in McConnellsburg, Pennsylvania. As he neared his home in Morgan County, West Virginia, at approximately 9:30 p.m., appellant's vehicle collided with a bicycle ridden by Justin McAnulty, who was eighteen years of age. In his statement to a police officer, the appellant claims that he did not see what he collided with, but that he immediately stopped his vehicle, got out, looked around, and did not see anything except some damage to the right front fender and passenger side of his car.

Appellant then drove home from the accident scene and told his wife about the incident. The appellant and his wife returned to the scene and made two slow passes of the area where the collision occurred, but did not find anything. Upon returning home, the appellant's wife called the local police who came to their home and took a report.

The appellant further claims that the next morning he inspected his car in the daylight and discovered blood and shreds of clothing imbedded around the right headlight of his car. He then returned to the scene of the accident and found the body of Justin McAnulty. The appellant returned home and called 911 and went back to the scene to assist authorities in locating the body of the victim.

On September 7, 2004, the appellant was indicted by the grand jury of Morgan County for: "COUNT I (Failure to Render Aid at Accident Involving Death)," a violation of W.Va.Code, 17C-4-1; "COUNT II (Obstructing)," a violation of W.Va.Code, 61-5-17(a); and "COUNT III (Failure to Maintain Control)," a violation of W.Va.Code, 17C-6-1.

The trial on these charges began on Wednesday, February 23, 2005. At the beginning of the trial, during the voir dire process, the trial judge discussed with jurors how long the instant case might take to complete, indicating that a jury worked until 11:00 p.m. to complete a case the previous week. Similar comments were made by the judge on several other occasions during the trial.

In her opening statement the prosecuting attorney stated to the jury: "This case is about accepting responsibility when you are behind the wheel of a car and driving that car, and the Defendant, Mr. Murray's failure to accept that responsibility." (Emphasis added.) Additionally, the prosecuting attorney stated to the jury: "Now, he [defendant] did talk to the police and Mr. Murray tells us that he did go back and he looked and he just didn't see anything." (Emphasis added.) The prosecuting attorney also stated to the jury: "How do we intend to prove what the Defendant knew? It's a hard thing to do, what's in somebody's mind, what they saw, okay." (Emphasis added.) Finally, in her opening statement, the prosecuting attorney

649 S.E.2d 512

told the jury: "[T]he State is going to ask you, the jury, to force Brian Daniel Murray to accept the responsibility that he agreed to accept when he got behind that wheel of the car and he drove. . . ." (Emphasis added.)

During closing arguments, the prosecuting attorney said, ". . . accepting responsibility; the Defendant, Brian Daniel Murray, needs to accept responsibility for his conduct." (Emphasis added.) The prosecuting attorney also stated: "So, how do I prove this? Do I just ask the Defendant, `Did you know? Did you see him? Okay, you said you didn't know, you said you didn't see him, we'll let you go. . . .'" (Emphasis added.) Finally, the prosecuting attorney stated, "That's a person [another witness] that saw Justin McAnulty's bicycle at an hour when nobody could have seen it, if you believe the testimony — not the testimony, the statements — of the Defendant."¹ (Emphasis added.)

The defendant did not take the stand in his own defense.

The case was submitted to the jury at 9:56 p.m. on Friday, February 25, 2005, the third day of the trial. Thereafter the appellant noted on the record his objections to the prosecuting attorney's comments during closing argument regarding the prosecuting attorney's use of the phrase "testimony . . . of the Defendant," and moved for a mistrial because the defendant did not testify at the trial. The appellant's motion was denied.

At 12:30 a.m. on Saturday morning, February 26, 2005, the jury sent the judge a note which read, "First charge [Failure to Render Aid at Accident Involving Death] locked 11 guilty to one; second charge [Obstructing] locked, ten guilty to two; three [Failure to Maintain Control], guilty. What do we do?" In response the court read a Blessing, 175 W.Va. 132, 331 S.E.2d 863 (1985)² instruction, and at 12:43 a.m. the jury returned to further consider their verdict.

Eleven minutes later at 12:54 a.m., the jury returned a verdict of guilty to Failure to Render Aid at Accident Involving Death, not guilty to Obstructing, and guilty to Failure to Maintain Control.

Thereafter, on March 8, 2005, the appellant filed a "Motion of the Defendant for New Trial; Motion for Judgment of Acquittal Notwithstanding the Verdict of the Jury." The trial judge denied the appellant's motion and sentenced the appellant to a determinate sentence of three years in the penitentiary on the Failure to Render Aid at Accident Involving Death charge, and fined the defendant one hundred dollars on the Failure to Maintain Control charge. The judge further ordered that if the appellant was not paroled upon the completion of one year in the penitentiary, that he be brought back before the court to be ordered to serve the balance of the sentence on home confinement.

It is from this conviction and sentence that the appellant appeals.

II.

Appellant argues that the trial judge's decision not to grant his motion for a mistrial was error. This Court has indicated that the decision to declare a mistrial and discharge a jury is a matter within the sound discretion of the trial court. State v. Williams, 172 W.Va. 295, 304, 305 S.E.2d 251, 260 (1983)

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citing State v. Craft, 131 W.Va. 195, 47 S.E.2d 681 (1948).

We also stated in Syllabus Point 4 of Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996):

This Court reviews the circuit court's final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo.

We begin our analysis with the appellant's second assignment of error relating to remarks made by the prosecuting attorney during closing argument.³ The appellant's assertion that the prosecuting attorney's remarks were a comment upon the appellant's failure to testify implicates the Fifth Amendment of the Constitution of the United States and Article III, Section 5 of the Constitution of West Virginia.⁴

Historically, this Court has scrupulously protected a defendant's right to remain silent. See State v. Nuckolls, 166 W.Va. 259, 261, 273 S.E.2d 87, 89 (1980). Also, we have consistently held that "[f]ailure to observe a constitutional right constitutes reversible error unless it can be shown that the error was harmless beyond a reasonable doubt." Syllabus Point 5 of State, ex rel. Grob v. Blair, 158 W.Va. 647, 214 S.E.2d 330 (1...