State of WV v. Johnson
Annotate this CaseJanuary 1992 Term
___________
No. 20197
___________
STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee
v.
PATRICK SHAWN JOHNSON,
Defendant Below, Appellant
_______________________________________________________
Appeal from the Circuit Court of Fayette County
Honorable J. Zane Summerfield, Judge
Criminal Indictment No. 90-F-22
Affirmed
________________________________________________________
Submitted: January 22, 1992
Filed: May 29, 1992
Teresa A. Tarr
Assistant Attorney General
Charleston, West Virginia
Attorney for the Appellee
Frank W. Helvey, Jr.
West Virginia Public Defender Services
Charleston, West Virginia
Attorney for the Appellant
Patrick Shawn Johnson
JUSTICE MILLER delivered the Opinion of the Court.
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 1992 Term
___________
No. 20198
___________
STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee
v.
LARRY BARBER,
Defendant Below, Appellant
_______________________________________________________
Appeal from the Circuit Court of Cabell County
Honorable L. D. Egnor, Judge
Criminal Indictment No. 90-F-13
Affirmed
________________________________________________________
Submitted: January 22, 1992
Filed: May 29, 1992
Teresa A. Tarr
Assistant Attorney General
Charleston, West Virginia
Attorney for the Appellee
J. William St. Clair
St. Clair & Levine
Huntington, West Virginia
Attorney for the Appellant
Larry Barber
JUSTICE MILLER delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. W. Va. Code, 62-12-2 (1986), prohibits a grant of
probation to any person convicted of committing a felony with the
use, presentment, or brandishing of a firearm.
2. Under W. Va. Code, 62-12-2 (1986), the State has two
options by which it may notify the defendant of its intent to seek
an enhanced penalty. Under W. Va. Code, 62-12-2(c)(1), it may set
out the charge in the indictment, or, under W. Va. Code, 62-12-2(c)(2)(C), it may elect to give notice of the enhancement by a
writing. In this latter event, the grounds must be set out as
fully as such grounds are otherwise required to be stated in an
indictment.
3. In the absence of specific legislation, the trial
court is not required to inform the jury as to the penalty
enhancement imposed under W. Va. Code, 62-12-2 (1986), where the
defendant is found to have used a firearm in the commission of or
attempt to commit a felony.
Miller, Justice:
These two cases have been consolidated for appeal. Both
defendants appeal based on the application of our statutes
mandating a minimum three-year incarceration for use of a firearm
in the commission of a felony. We take this opportunity to clarify
the rules regarding application of this law. However, we decline
to alter the results in these two cases.
In State v. Johnson, the defendant was charged by
indictment with "[m]urder . . . with the use of a firearm." He was
convicted of voluntary manslaughter. Following the jury verdict,
on a motion by the State, the jury was given a special
interrogatory on the use of a firearm. The interrogatory did not
include any instruction regarding the consequences of an
affirmative finding. The jury returned the special interrogatory,
finding that the defendant had used a firearm. The defendant was
sentenced to one-to-five years in the penitentiary "with the
finding of a firearm[.]"
In State v. Barber, the defendant was charged by
indictment with "first degree murder . . . by shooting [the victim]
with a shotgun." At the close of all the evidence, arguments of
counsel, and jury instructions, the jury was given its verdict
form. The verdict form allowed for five conviction options and an
acquittal option. The jury was also given an envelope containing
a special interrogatory regarding the use of a firearm, which they
were instructed to open only upon reaching a verdict for
conviction. Following deliberations, the jury returned a verdict
of guilty of voluntary manslaughter. The jury also answered the
special interrogatory in the affirmative, finding that the
defendant had committed the homicide "through the use of a
firearm." Noting that the defendant had been found guilty of
"voluntary manslaughter with use of a firearm," the judge sentenced
him to one-to-five years in the penitentiary, "until released by
due process of law as provided by the Statutes of the State of West
Virginia."
Both defendants ask us to set aside the jury findings of
use of a firearm on the basis of procedural irregularities. We
have not previously had occasion to outline the procedural
requirements of the sentence enhancement mandated by a finding of
use of a firearm in the commission of a felony under W. Va. Code,
62-12-2 (1986), and W. Va. Code, 62-12-13 (1988). These statutes
contain rather similar procedural language relating to proving the
sentence enhancement.
W. Va. Code, 62-12-2 (1986), prohibits a grant of
probation to any person convicted of committing a felony "with the
use, presentment or brandishing of a firearm." Under subsection
(c)(1), the use of the firearm must be "clearly stated and included
in the indictment or presentment" and must be found to exist either
by the court, in the event of a plea agreement or bench trial, or
by the jury.See footnote 1
W. Va. Code, 62-12-2(c)(2)(C), requires "the submission
of a special interrogatory to the jury[.]" This section also
contains language in a proviso that "the state shall give notice in
writing of its intent to seek such finding . . . which notice shall
state with particularity the grounds upon which such finding shall
be sought as fully as . . . required to be stated in an indictment
. . . unless the grounds therefor are alleged in the
indictment[.]"See footnote 2
Much the same language is contained in W. Va. Code, 62-12-13, which is addressed to the Board of Probation and Parole. It
limits eligibility for parole of those convicted of committing or
attempting to commit a felony "with the use, presentment or
brandishing of a firearm." However, the controlling statute is
W. Va. Code, 62-12-2, which sets out how the factors mandating such
enhancement shall be proven. Thus, our focus is on the
requirements of W. Va. Code, 62-12-2.
Under the foregoing language cited from W. Va. Code, 62-12-2, the State has two options by which it may notify the
defendant of its intent to seek the enhanced penalty. Under W. Va.
Code, 62-12-2(c)(1), it may set out the charge in the indictment,
or, under W. Va. Code, 62-12-2(c)(2)(C), it may elect to give
notice of the enhancement by a writing. In this latter event, the
grounds must be set out "as fully as such grounds are otherwise
required to be stated in an indictment[.]" The statute on notice,
however, is silent regarding the time frame in which notice must be
given to a defendant. Other jurisdictions have held that due
process requires such notice to be received a reasonable time
before trial. In order for it to be meaningful, the notice must be
received at a time when the defendant can still choose between
alternative courses of action, such as plea bargaining or
proceeding to trial. See, e.g., State v. Waggoner, 144 Ariz. 237,
697 P.2d 320 (1985); State v. Frazier, 81 Wash. 2d 628, 503 P.2d 1073 (1972); State v. Rodgers, 134 Ariz. 296, 655 P.2d 1348 (App.
1982).
A further procedural requirement with regard to proof of
the elements for enhancement of the penalty is found in W. Va.
Code, 62-12-2(c)(2)(D), which requires that, for enhancement
purposes, the use of a firearm "shall be proved beyond a reasonable
doubt in all cases tried by the jury or the court."See footnote 3
The procedural language of our statutes is mandatory. Thus, failure by the state to notify the defendant of the intent to seek sentence enhancement will make the statutes inapplicable. We have held that a specific finding of use of a firearm must be made in order to invoke the enhancement provisions of the statutes.
State v. Davis, 176 W. Va. 454, 345 S.E.2d 549 (1986); State v.
Ranski, 170 W. Va. 82, 289 S.E.2d 756 (1982). In Syllabus Point 13
of Davis, we made this summary:
"Under West Virginia Code § 62-12-2(c)(1) (1984 Replacement Vol.), the
commission or attempted commission of a felony
with the use, presentment, or brandishment of
a firearm must be clearly stated in the
indictment or presentment by which a person is
charged and must be found by the jury upon
submission of a special interrogatory for such
purpose in order to make any person ineligible
for probation upon conviction in a jury trial
of a felony prosecution."
We have also held it to be error for the court to make its own
finding of the use of a firearm after a jury verdict has been
returned, because this is the prerogative of the jury under the
statute. State v. Pannell, 175 W. Va. 35, 330 S.E.2d 844 (1985).
Where the jury determines the enhancement issue, W. Va.
Code, 62-12-2 requires this question of fact to be submitted by a
special interrogatory.See footnote 4 There are certain factors which should be
included in the special interrogatory. The court should explain to
the jury that the special interrogatory is required by W. Va. Code,
62-12-2. In addition, the court should instruct the jury on the
statutory definition of a firearm.See footnote 5 Finally, as earlier noted,
under W. Va. Code, 62-12-2(c)(2)(D), the use of a firearm must be
found beyond a reasonable doubt. Thus, the special interrogatory
must state that this standard of proof should be utilized by the
jury. We agree with the statement of Supreme Court of Washington
in State v. Tongate, 93 Wash. 2d 751, 756, 613 P.2d 121, 123-24
(1980), that reliance on the general instructions regarding burden
of proof is not enough:
"The special verdict is a separate finding
made after the guilt-determining stage of the
jury's deliberations. It cannot be assumed
that a reasonable jury, in the absence of an
explicit instruction on the standard of proof,
will understand the applicable standard to be
applied to the separate finding[.]"
Turning to the particular facts in these cases, we find
that both defendants were given notice of the State's intent to
seek sentence enhancement in the original indictments. No
objection was made to the failure to instruct on the requisite
burden of proof at the trial.
The major objection made by both defendants is that the
trial court should have informed the jury of the consequences of an
affirmative answer to the special interrogatory, i.e., that it
would preclude the availability of probation or parole. They rely
on State v. Lindsey, 160 W. Va. 284, 233 S.E.2d 734 (1977), where
we held in a first degree murder case that the jury must be
informed of the consequences of a recommendation of mercy.See footnote 6
The basis for our holding in Lindsey was that the verdict
form for first degree murder with a recommendation of mercy can be
confusing to the jury because it may suggest that the defendant
will spend little or no time in prison. Thus, unless the
consequence of this sentence is explained, the jury may well ignore
this verdict option.
We went on to point out in Lindsey that this rule did not
abrogate our general rule, which we set out in Syllabus Point 1:
"It is the duty of the jury to
determine the guilt or innocence of the
accused in accordance with the evidence
introduced at the trial and it must not
concern itself with matters of possible parole
or probation."
See also State v. Cook, 175 W. Va. 185, 332 S.E.2d 147 (1985);
State v. Parks, 161 W. Va. 511, 243 S.E.2d 848 (1978). See
generally Annot., 8 A.L.R.2d 1001 (1949).
The same reason for not presenting parole or probation
matters before the jury exists as to matters involving the
enhancement of a sentence. The jury's role is to determine guilt
or innocence. The imposition of the sentence and probation or
parole is, as a matter of law, left to the discretion of the court.
This is not a situation, as in Lindsey, where the verdict form can
create jury confusion. Here, the underlying felony must be found
by the jury before it can proceed to resolve the specific
interrogatory on the use of a firearm. The legislative procedure
is sufficiently detailed to lead us to conclude that the
legislature did not intend to have the jury advised as to the
consequences of the affirmative finding. In the absence of
specific legislation on this issue, we decline to adopt a rule
which would require the trial court to inform the jury as to the
penalty enhancement imposed under W. Va. Code, 62-12-2, where the
defendant is found to have used a firearm in the commission or
attempt to commit a felony.
As we initially stated, the defendants below did not make
specific objections to the enhancement procedure sufficient to
warrant a reversal on this issue. The defendant in Johnson did
request that the jury be instructed as to the possible enhancement
of his underlying sentence. As we have explained, this is not
required. The defendant in Johnson also objected on the ground
that the indictment did not provide written notice of the State's
intention to seek the enhanced penalty. However, a reading of the
record reveals that the indictment did charge that defendant
Johnson committed the crime "with the use of a firearm."
Consequently, the trial court properly rejected this objection. In
Barber, the defendant's trial counsel made no objection to the
special interrogatory.See footnote 7
In view of the foregoing, we find no error in these
cases, and the judgments are hereby affirmed.
Affirmed.
Footnote: 1W. Va. Code, 62-12-2(c)(1), in its entirety, states:
"The existence of any fact which
would make any person ineligible for
probation under subsection (b) of this
section because of the commission or
attempted commission of a felony with the
use, presentment or brandishing of a firearm
shall not be applicable unless such fact is
clearly stated and included in the indictment
or presentment by which such person is
charged and is either (i) found by the court
upon a plea of guilty or nolo contendere, or
(ii) found by the jury, if the matter be
tried before a jury, upon submitting to such
jury a special interrogatory for such purpose
or (iii) found by the court, if the matter be
tried by the court, without a jury."
Footnote: 2W. Va. Code, 62-12-2(c)(2)(C), states:
"(2) The amendments to this
subsection adopted in the year one thousand
nine hundred eighty-one:
* * *
"(C) Shall apply with respect to
the submission of a special interrogatory to
the jury and the finding to be made thereon
in any case submitted to such jury . . . or
to the requisite findings of the court upon a
plea of guilty or in any case tried without a
jury: Provided, That the state shall give
notice in writing of its intent to seek such
finding by the jury or court, as the case may
be, which notice shall state with
particularity the grounds upon which such
finding shall be sought as fully as such
grounds are otherwise required to be stated
in an indictment, unless the grounds therefor
are alleged in the indictment or presentment
upon which the matter is being tried[.]"
Footnote: 3The relevant portion of W. Va. Code, 62-12-2(c)(2)(D),
states: "Insofar as such amendments relate to mandatory
sentences without probation, all such matters requiring such
sentence shall be proved beyond a reasonable doubt in all cases
tried by the jury or the court."
Footnote: 4The timing of the special interrogatory is left to the
discretion of the trial court and should be explained at the time
of the submission of the interrogatory. The use of a firearm may
be determined simultaneously with the overall adjudication of
guilt by giving the jury the special interrogatory at the same
time the charge is given, with instructions not to answer it
unless they convict the defendant on the underlying charge. This
was the practice followed at the Barber trial. Alternatively,
the jury may be sent to deliberate regarding the interrogatory
after returning a verdict of guilty, as was done in the Johnson
trial.
Footnote: 5W. Va. Code, 62-12-2(d), defines "firearm" as follows:
"[A]ny instrument which will, or is designed to, or may readily
be converted to, expel a projectile by the action of an
explosive, gunpowder, or any other similar means."
Footnote: 6Syllabus Point 3 of State v. Lindsey, supra, states:
"In a case in which a jury may
return a verdict of guilty of murder of the
first degree, it is the mandatory duty of the
trial court, without request, to instruct the
jury that to such verdict it may add a
recommendation of mercy, that such
recommendation would mean that the defendant
could be eligible for parole consideration
only after having served a minimum of ten
years and that otherwise the defendant would
be confined to the penitentiary for life
without possibility of parole."
See also State v. Headley, 168 W. Va. 138, 282 S.E.2d 872 (1981); State v. Wayne, 162 W. Va. 41, 245 S.E.2d 838 (1978), overruled on other grounds by State v. Kopa, 173 W. Va. 43, 311 S.E.2d 412 (1983). Footnote: 7The defendant in Johnson raises no other trial error on appeal. The defendant in Barber contends that the prosecutor committed reversible error in closing argument. The prosecutor pointed out several gaps in the defendant's case and told the jury that they had a right to have defense counsel "explain to you, for example, why the defendant is so sure his blackout only lasted a few seconds. Why the defendant is so sure that during his blackout the shooting of his brother was accidental." The defendant had testified at trial to this effect. The defendant asserts this was an attempt to shift the burden of proof. We find this argument to be without merit. The prosecutor's closing statements did nothing more than point out inconsistencies in his testimony.
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