State v. Waugh

• Citation: 650 S.E.2d 149
• Decision Date: 16 February 2007
• Docket Number: No. 32773.,32773.
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Allen Dewayne WAUGH, Defendant Below, Appellant.
• Court: Supreme Court of West Virginia

650 S.E.2d 149

STATE of West Virginia, Plaintiff Below, Appellee, v. Allen Dewayne WAUGH, Defendant Below, Appellant.

No. 32773.

Supreme Court of Appeals of West Virginia.

Submitted: January 10, 2007.

Decided: February 16, 2007.

Syllabus by the Court

1. "In reviewing challenges to the findings and conclusions of the circuit court, we apply a two-prong deferential standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review." Syl. Pt. 2, Walker v. West Virginia Ethics Com'n, 201 W.Va. 108, 492 S.E.2d 167 (1997).

2. "An unpreserved error is deemed plain and affects substantial rights only if the reviewing court finds the lower court skewed the fundamental fairness or basic integrity of the proceedings in some major respect. In clear terms, the plain error rule should be exercised only to avoid a miscarriage of justice. The discretionary authority of this Court invoked by lesser errors should be exercised sparingly and should be reserved for the correction of those few errors that seriously affect the fairness, integrity, or public reputation of the judicial proceedings." Syl. Pt. 7, State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996).

3. "A defendant's constitutional rights to due process and trial by a fair and impartial jury, pursuant to amendment VI and amendment XIV, section 1 of the United States Constitution and article III, sections 10 and 14 of the West Virginia Constitution are violated when a sheriff, in a defendant's trial, serves as a bailiff and testifies as a key witness for the State in that trial." Syl. Pt. 3, State v. Kelley, 192 W.Va. 124, 451 S.E.2d 425 (1994).

4. "The plain language of Rule 614(b) of the West Virginia Rules of Evidence authorizes trial courts to question witnesses-provided that such questioning is done in an impartial manner so as to not prejudice the parties." Syl. Pt. 3, State v. Farmer, 200 W.Va. 507, 490 S.E.2d 326 (1997).

5. "A trial court must exercise its sound discretion when questioning a witness pursuant to Rule 614(b) of the West Virginia Rules of Evidence." Syl. Pt. 1, in part, State v. Farmer, 200 W.Va. 507, 490 S.E.2d 326 (1997).

6. "A trial judge in a criminal case has a right to control the orderly process of a trial and may intervene into the trial process for such purpose, so long as such intervention does not operate to prejudice the defendant's case." Syl. Pt. 4, in part, State v. Burton, 163 W.Va. 40, 254 S.E.2d 129 (1979).

Darrell V. McGraw, Jr., Attorney General, Barbara H. Allen, Assistant Attorney General, Charleston, for the Appellee.

Kevin W. Hughart, Sissonville, for the Appellant.

PER CURIAM.

Appellant Allen D. Waugh seeks a new trial in connection with his conviction for second degree murder in 1999¹ on grounds that a deputy sheriff, who testified for the State at trial, had improper contact with the jury panel while acting as a bailiff and that the trial court improperly rehabilitated one of the State's witnesses following her cross examination. Although this case raises valid concerns with regard to the actions at issue, we do not find that the deputy sheriff's limited exercise of bailiff duties in this case resulted in a violation of Appellant's right to due process or a denial to Appellant of a trial by a fair and impartial jury. And, while the trial court's questioning of the victim's mother was arguably inappropriate in both scope and duration, we do not find that the judicial examination amounted to plain error on the facts of this case. Accordingly, we affirm.

I. Factual and Procedural Background

On the evening of December 19, 1997, Appellant and the victim, Ronald Plumley, were both at the Dallas Bar. The neighborhood bar was filled with people as it was karaoke night. Before the murder of Mr. Plumley occurred, Appellant had been asked by Dallas Howard, the owner of the bar, to leave because he was harassing another customer. Mr. Howard asked both the Appellant and his brother, Daniel, to leave the bar. While Appellant and his brother apparently did leave the bar, they later returned to the bar and Appellant became embroiled in another disturbance.

The victim, Mr. Plumley, had approached the bar area to get some quarters because he, his brother, and his mother were all playing pool. According to the testimony of Mr. Howard, the following exchange occurred when the victim overheard Mr. Howard again demand that Appellant and his brother leave the bar:

He [the victim] told Allen [Appellant], . . . "Allen, why don't you guys go ahead and leave." He [the victim] said, "The man [Mr. Howard] asked you to leave." He [the victim] said, "He don't have no problem in this bar."

He [the victim] said whatever you got in your pocket — because Allen had his hand behind his back. He said, "Whatever you got in your pocket, just leave it in there." And Allen — Allen told him, he said, "Well, I've got it." And he [the victim] said, "Well, you guys just go ahead and leave." He said, "Whatever you got in your pocket, just go ahead and leave it there."

And he [Appellant] took another step backwards and pulled that pistol out, both hands, just like that.... And when he pulled that pistol out, he brought it around just like that and fired it. And I knew it hit Ronnie [the victim] bad.

Mr. Howard testified that the victim had not made any verbal threats or threatening gestures of any kind to Appellant before the shooting incident. Immediately after the shooting, Appellant "flashed his gun around through the bar . . . and backed out the door and left."² The victim died at the scene before the emergency unit arrived.

In May 1998, the Mason County Grand Jury returned a one-count indictment against Appellant, charging him with murder. At the conclusion of the trial, which began on August 17, 1999, the jury found Appellant guilty of second-degree murder. He was sentenced on May 15, 2000, to a definite term of 30 years for the murder of Mr. Plumley.³ As grounds for this appeal, Appellant asserts that the trial court committed error by allowing a sheriff's deputy, who was a witness for the State, to serve as a bailiff during the trial and that the trial court wrongly rehabilitated the credibility of the victim's mother following her cross-examination.

II. Standard of Review

With regard to Appellant's assignment of error that the trial court abused its discretion in denying his motion to dismiss the entire jury panel before the trial began, we apply the following standard of review:

In reviewing challenges to the findings and conclusions of the circuit court, we apply a two-prong deferential standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.

Syl. Pt. 2, Walker v. West Virginia Ethics Com'n, 201 W.Va. 108, 492 S.E.2d 167 (1997). With regard to the assignment that the trial court committed plain error by wrongly rehabilitating a witness, the following standard is applicable as this issue was not preserved below:

An unpreserved error is deemed plain and affects substantial rights only if the reviewing court finds the lower court skewed the fundamental fairness or basic integrity of the proceedings in some major respect. In clear terms, the plain error rule should be exercised only to avoid a miscarriage of justice. The discretionary authority of this Court invoked by lesser errors should be exercised sparingly and should be reserved for the correction of those few errors that seriously affect the fairness, integrity, or public reputation of the judicial proceedings.

Syl. Pt. 7, State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996). With these standards in mind, we proceed to determine whether the trial court committed reversible error.

III. Discussion

A. Prosecution Witness/Bailiff

Appellant asserts that error was committed by allowing Deputy R.L. Bennett, who testified on behalf of the State, to escort jury members into the jury room and to operate the metal detector that was at the entrance to the court room. Immediately after the jury was impaneled, Appellant's trial counsel objected to the entire jury panel based on Deputy Bennett's contact with the jurors. The trial court held an in camera hearing to address the amount of contact Deputy Bennett had with the jurors. In explanation of the extent of the contact, Deputy Bennett testified to the following:

Witness: I was told to set up the metal detector outside of the doors. So I set it up.

Court: Who told you to do that?

Witness: I think it was Danny Pearson said that it had been requested that I set up the metal detector.

Court: He didn't say who requested that?

Witness: No, he didn't. Not that I can recall.

Court: Did you set it at the entrance to this courtroom?

Witness: Yes, sir.

Court: Do you remember if any jurors passed through that detector?

Witness: No, sir. I didn't run any jurors through the detector.

Court: None at all?

Witness: Not through the detector.

Court: Well, I take it the jurors c[a]me to this courtroom while you had the detector?

Witness: They were sitting in the hallway.

Court: Did you tell them to sit in the hallway or did they just sit on the chairs?

Witness: They were sitting in the chairs there. It got to be quite a few of them. So I took them down there to the jury room.

Court: And left them?

Witness: Right. I took them to the jury room. And once it got filled, I put the rest in the law library.

Court: Is that the extent of what you did?

Witness: Yes, sir.

Court: Did you give them any orders or anything like that?

Witness: No, I just told them if they were jurors, to go down to the end of the hallway, last door on the right.

To support...