State v. Neuman

Citation179 W.Va. 580,371 S.E.2d 77
Decision Date01 July 1988
Docket NumberNo. 17903,17903
CourtSupreme Court of West Virginia
PartiesSTATE of West Virginia v. Mark Stewart NEUMAN.

Syllabus by the Court

1. "Until attacked by the defense, the deceased's character for peaceable and quiet conduct is presumed to have been good, and the state may not make it a subject of primary proof." Syl.Pt. 4, State v. Arrington, 88 W.Va. 152, 106 S.E. 445 (1921).

2. It is improper for the prosecution to offer evidence of the victim's peacefulness until after the defense has offered evidence which either attacks a pertinent character trait of the victim or tends to show that the victim was the first aggressor.

3. The West Virginia Constitution, art. III, § 10, provides a criminal defendant a level of due process protection at least equal to that provided through the fifth and fourteenth amendments to the United States Constitution, and may, in certain circumstances, require higher standards of protection.

4. A criminal defendant's right to give testimony on his own behalf is protected under article three, section ten of our Constitution, as well as the due process provisions of the federal constitution.

5. Certain constitutional rights are so inherently personal and so tied to fundamental concepts of justice that their surrender by anyone other than the accused acting voluntarily, knowingly, and intelligently would call into question the fairness of a criminal trial.

6. "Courts indulge every reasonable presumption against waiver of a fundamental constitutional right and will not presume acquiescence in the loss of such fundamental right." Syl.Pt. 2, State ex rel May v. Boles, 149 W.Va. 155, 139 S.E.2d 177 (1964).

7. A trial court exercising appropriate judicial concern for the constitutional right to testify should seek to assure that a defendant's waiver is voluntary, knowing, and intelligent by advising the defendant outside the presence of the jury that he has a right to testify, that if he wants to testify then no one can prevent him from doing so, that if he testifies the prosecution will be allowed to cross-examine him. In connection with the privilege against self-incrimination, the defendant should also be advised that he has a right not to testify and that if he does not testify then the jury can be instructed about that right.

Silas Taylor, Deputy Atty. Gen., State Capitol, for plaintiff.

David L. White, Bluefield, for defendant.

McGRAW, Justice:

This is an appeal by Mark Stewart Neuman from a final judgment order entered in the Circuit Court of Mercer County following a jury verdict finding him guilty of first degree murder, but recommending mercy. Because we agree with the Appellant that the circuit court erred in allowing introduction of evidence of the victim's peacefulness and in not ascertaining whether the Appellant had properly waived his right to testify, the judgment of the circuit court is reversed and the case remanded for a new trial. 1

David Reid, a Concord College student, was shot on November 15, 1985, and the Appellant was charged with his murder. The prosecution was based on circumstantial evidence, there being no witnesses to the actual shooting.

The State established that, exactly a year prior to Reid's death, the Appellant had been injured in a fight involving Reid, and that the Appellant harbored considerable resentment about that incident. The State also presented evidence regarding the Appellant's presence near the crime scene on the night of the murder, and the Appellant's dress at that time. Other witnesses testified that they saw someone similarly dressed running away from the body. Two policemen testified that a car similar to the Appellant's almost ran into their patrol car just before they found Reid's body in the street. The police recovered two .22 caliber shells from the Appellant's dresser. Reid was killed by .22 caliber bullets.

During the State's case-in-chief, three witnesses testified as to the victim's peaceful character. The Appellant's trial counsel objected to this testimony, but the circuit judge overruled that objection. The judge later explained that he thought the character evidence was admissible under the rules of evidence, while noting his concern that "they might be suggesting to do it in rebuttal, although it's not clear."

The presentation of the defense's case-in-chief was brief, concentrating on two matters involving physical evidence. A state trooper testified that the clothing taken from the Appellant's apartment, which was similar to that worn by the man seen running away from the crime scene, had been tested for gun powder residue and blood stains with negative results. Two policemen then testified that when they examined Reid's body at the scene, they observed that he clutched a four inch long tip from a lawn dart in his hand.

Following the closing arguments, the jury returned a guilty verdict, with a recommendation of mercy.

I.

The Appellant first contends that the circuit court misapplied West Virginia Rules of Evidence 404(a)(2) in permitting the introduction of testimony regarding the victim's peaceful character in the State's case-in-chief. That rule declares that character evidence is generally not admissible to prove that someone acted in conformity with that trait on a particular occasion, with certain specified exceptions. The exception to the general rule relevant here is that the "evidence of a character trait of peacefulness of the victim [may be] offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor." W.Va.R.Evid. 404(a)(2) (emphasis added).

Rule 404 is essentially a codification of the common law concerning the admission of character evidence, State v. Welker, 178 W.Va. 47 , 50, 357 S.E.2d 240, 244 (1987), and it has long been the case in West Virginia that "[u]ntil attacked by the defense, the deceased's character for peaceable and quiet conduct is presumed to have been good, and the state may not make it a subject of primary proof." Syl.Pt. 4, State v. Arrington, 88 W.Va. 152, 106 S.E. 445 (1921). The West Virginia policy is consistent with the general rule. McCormick on Evidence § 193 (2d ed. 1972).

It is well settled that the prosecution cannot, in the first instance and as a part of its evidence in chief, or before the character of the deceased has been attacked by the defense, introduce evidence of the reputation of the deceased for peaceableness or prove that he was a quiet and orderly citizen.

40 Am.Jur.2d Homicide § 308 (1968).

The State does not offer us any compelling reason to abandon the longstanding rule. Instead, we are told that the prosecution at trial relied on what it anticipated the defense theory would be, that is, self-defense. In pretrial proceedings, the Appellant's trial counsel had indicated that a psychologist would testify at trial that the Appellant felt he acted in self-defense. 2 As the trial actually proceeded, the only evidence offered by the Appellant which could possibly be construed as raising a claim of self-defense was the brief testimony that Reid had a lawn dart tip in his hand when his body was found. There was apparently some doubt in the trial judge's mind, which we share, that this evidence was sufficient to raise a claim of self-defense. Nevertheless, even this minimal evidence was presented at the end of the Appellant's case-in-chief, long after the prosecution's character evidence had been introduced.

It is improper for the prosecution to offer evidence of the victim's peacefulness until after the defense has offered evidence which either attacks a pertinent character trait of the victim or tends to show that the victim was the first aggressor. W.Va.R.Evid. 404(a)(2). The prosecution's reliance on anticipated evidence misconstrues Professor Cleckley's discussion of the evidentiary rule. See F. Cleckley, Handbook on Evidence for West Virginia Lawyers § 6.2(F) (2d ed. 1986).

The Appellant's trial counsel objected to the introduction of evidence regarding the victim's peaceful character, and discussion with the trial court makes it clear that the judge and the lawyers understood the nature of the objection under Rule 404 (a)(2). Further, on reviewing the entire record, and the completely circumstantial case put on by the prosecution, we cannot say that presentation of the character evidence was harmless error. See State v. Whitt, 96 W.Va. 268, 122 S.E. 742 (1924). Therefore, we find that the State committed reversible error in presenting evidence of the victim's peacefulness before the defense raised the character issue or presented evidence that the victim was the first aggressor.

II.

The Appellant next contends that the circuit court erred by failing to ascertain on the record that he had made a knowing, voluntary, and intelligent waiver of his right to testify in his own behalf.

Although the early common law considered a defendant incompetent to testify in his own behalf, such a rule has never been recognized in the history of this state. State v. Kincaid, 104 W.Va. 396, 140 S.E. 338 (1927); State v. Chisnell, 36 W.Va. 659, 15 S.E. 412 (1892). Indeed, it is established law in this state that a defendant has a right to testify in his own behalf, State v. Payne, 167 W.Va. 252, 280 S.E.2d 72 (1981); State v. McKinney, 161 W.Va. 598, 599-600, 244 S.E.2d 808, 810 (1978), and this right has been protected by statute since the earliest days of our state's existence. See W.Va.Code § 57-3-6 (1966). Perhaps because of the fact that a defendant's right to testify has always been recognized in West Virginia, this Court has not previously been called upon to determine if this right has a constitutional basis.

The United States Supreme Court has repeatedly recognized a defendant's right to testify, most often grounding such a right in the federal constitution's guarantee that no person shall be deprived of life, liberty, or property without due process of...

To continue reading

Request your trial
74 cases
  • Vay v. Commonwealth
    • United States
    • Court of Appeals of Virginia
    • January 31, 2017
    ...1303 (1995) ; Sanchez v. State, 841 P.2d 85, 89 (Wyo. 1992) ; LaVigne v. State, 812 P.2d 217, 222 (Alaska 1991) ; State v. Neuman, 179 W.Va. 580, 371 S.E.2d 77, 82 (1988) ; People v. Curtis, 681 P.2d 504, 514–15 (Colo. 1984) ; Culberson v. State, 412 So.2d 1184, 1186–87 (Miss. 1982).8 See, ......
  • State v. Savage
    • United States
    • United States State Supreme Court (New Jersey)
    • July 19, 1990
    ...v. Curtis, 681 P.2d 504 (Col.1984) (trial court has obligation to inquire whether a defendant waives the right to testify); State v. Neuman, 371 S.E.2d 77 (W.Va.1988) (trial court must advise defendant of his right to testify and ascertain whether waiver is voluntary, knowing and The questi......
  • State v. Plumley
    • United States
    • Supreme Court of West Virginia
    • July 12, 1989
    ...therefore any waiver of the right must be made voluntarily, knowingly, and intelligently. See Syllabus points 5 and 6, State v. Neuman, 179 W.Va. 580, 371 S.E.2d 77 (1988). We note that no attempt was made to vouch the record of a waiver by the defendant and that the photo identification ma......
  • State v. Denson
    • United States
    • United States State Supreme Court of Wisconsin
    • July 13, 2011
    ...waiver or by engaging in the voir dire procedure set out in the initial decision); and West Virginia, see West Virginia v. Neuman, 179 W.Va. 580, 371 S.E.2d 77, 81–82 (1988). 12. For a comprehensive list of jurisdictions that do not require circuit courts to conduct an on-the-record colloqu......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT