State v. Herbert

234 W.Va. 576

767 S.E.2d 471

STATE of West Virginia, Plaintiff Below, Respondent

v.Daniel L. HERBERT, Defendant Below, PetitionerandState of West Virginia, Plaintiff Below, Respondent

v.Daniel L. Herbert, Defendant Below, Petitioner.

Nos. 13–1264

13–0962.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 1, 2014.

Decided Nov. 25, 2014.

Ben J. Crawley–Woods, Esq., Martinsburg, WV, for the Petitioner in No. 13–1264.

Matthew L. Harvey, Esq., Taylor and Harvey, Martinsburg, WV, for Petitioner in No. 13–0962.

Cheryl K. Saville, Esq., Assistant Prosecuting Attorney, Martinsburg, WV, for the Respondent.

Opinion

Justice KETCHUM :

The Defendant, Daniel L. Herbert, appeals his convictions arising from deliberately shooting a man twice in the back and, in the process, accidentally shooting an eight-year-old girl.

The Defendant's primary argument is that the circuit court violated his constitutional right to compulsory process for obtaining witnesses in his favor. At trial, the Defendant claimed he acted in self-defense, but the circuit court refused to require a victim, the alleged aggressor, to take the stand in the jury's presence on the ground that the witness refused to testify and that he was a security risk. The Defendant also argues that the count alleging he was a felon illegally in possession of a firearm should have been bifurcated for trial. He contends the circuit court erred by refusing to bifurcate the issue of whether he was previously convicted of a felony crime of violence against another person from the issue of whether he carried a firearm.

Based upon our review, we find no reversible error and affirm the Defendant's convictions.

I.FACTUAL AND PROCEDURAL BACKGROUND

On July 4, 2012, an estimated 2,000 people attended a celebration at War Memorial Park in Martinsburg, West Virginia. The Defendant and one of the gunshot victims, Gabriel McGuire, were acquaintances who attended the celebration. Their interaction began as conversation.

The dialogue between the Defendant and McGuire deteriorated. McGuire momentarily flashed a folding knife with a blade measuring about four to five inches. However, he folded the knife, put it back in his pocket, and resumed his conversation with the Defendant.

About thirty to forty-five seconds later, the Defendant shot once or twice at McGuire with a .38 caliber revolver but did not initially hit McGuire. McGuire ran away, but the Defendant chased him and continued to shoot. The Defendant ultimately shot McGuire twice in the back. In the process, he also shot and wounded a bystander, an eight-year-old girl. The Defendant fled on foot until police officers caught him close-by.

A Berkeley County grand jury indicted the Defendant on two counts of attempted murder, three counts of malicious assault, five counts of wanton endangerment, and one count of fleeing from a law enforcement officer by means other than use of a vehicle. An additional count alleged that he carried a firearm while he was a felon prohibited from possessing a firearm.

The circuit court severed the “felon illegally in possession of a firearm” count from the other counts. The Defendant was first tried on the “felon illegally in possession of a firearm” count on May 28, 2013. Before trial, the Defendant moved to bifurcate the question of whether he had a prior felony conviction from the question of whether he possessed a firearm. The circuit court denied his motion, and he was found guilty by the jury on that count.

The Defendant was then tried on the remaining counts on September 3, 2013. At trial, the Defendant alleged he acted in self-defense. However, eight witnesses testified to seeing him shoot while chasing McGuire. The jury found the Defendant guilty of two counts of attempted murder of the first degree, three counts of malicious assault, two counts of wanton endangerment involving a firearm, and one count of fleeing from a law enforcement officer by means other than use of a vehicle. Following the jury's verdict, the Defendant filed a motion for a new trial, which the circuit court denied.

II.STANDARD OF REVIEW

The standard of review of a decision by a circuit court denying a new trial is as follows:

In reviewing challenges to findings and rulings made by a circuit court, we apply a two-pronged deferential standard of review. We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error 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. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000).

III.ANALYSIS

The Defendant alleges the circuit court committed reversible error by: (1) failing to make a witness invoke his constitutional privilege against self-incrimination in front of the jury, thereby ostensibly violating the Defendant's constitutional right to compulsory process for obtaining witnesses in his favor; (2) failing to instruct the jury it could make a negative inference from the witness's refusal to testify; (3) failing to exclude an officer's comment that the Defendant refused to consent to a gunshot residue test; (4) improperly instructing the jury on the transferred intent doctrine; and (5) declining to bifurcate the question of whether the Defendant was previously convicted of a felony crime from the issue of whether he possessed a firearm.

We find no reversible error as to any of the assignments of error the Defendant raises. As set forth below, we affirm the Defendant's convictions.

A. The handling of McGuire as a potential witness

The Defendant alleged at trial that he acted in self-defense when he shot McGuire. McGuire survived the shooting, but he indicated before the trial that he would refuse to testify. McGuire was brought from an out-of-state federal penitentiary to the Defendant's trial. After arriving in West Virginia, when asked by a detective whether he was willing to testify, McGuire said that the prosecutors in the Defendant's case could “s––t in one hand and wish in the other and see which one fills first.”

The prosecutor informed the court at the end of the first day of the Defendant's trial that he would call McGuire as a witness the next day, but he warned the court that McGuire might physically resist being placed on the stand and refuse to testify. Likewise, defense counsel stated that extra bailiffs may be necessary when McGuire is brought into the courtroom. The circuit court added two bailiffs to handle McGuire in the courtroom.

The State called McGuire to testify the next day. Over the Defendant's protests, the court sent the jury into the jury room before having McGuire brought into the courtroom. The circuit court explained to the parties, outside the presence of the jury, that it had been informed that McGuire's presence would constitute a security issue.

Although McGuire was in shackles and handcuffs, he was very combative and was cursing when he was brought into the courtroom. At one point, he was beating his head against the wall. When the bailiffs were bringing him into the courtroom, he exclaimed: “Get off me, man. How can you (inaudible) in the f––king courtroom, man? I don't care. I'm not coming in here, man.”

Once McGuire was brought into the courtroom, the following exchange took place outside the jury's presence:

COURT REPORTER: Mr. McGuire, is your last name spelled M–C–G–U–I–R–E?

MCGUIRE: (No response.)

...

COURT: Sir, are you willing to take the stand?

MCGUIRE: No, I'm not.

COURT: Okay. I'm going to hold you in contempt ...

The court subsequently had McGuire removed from the courtroom. Upon the jury's return into the courtroom, the court told the jury that McGuire refused to take the oath and testify. The circuit court also told the jurors that it determined that McGuire could not be physically forced to testify.

Near the end of the trial, the Defendant called McGuire as a witness. Again, the circuit court sent the jury to the jury room over the Defendant's objections before having McGuire brought into the courtroom. McGuire again refused to testify and, on one occasion (outside the jury's presence), he abruptly stated, “I plead the Fifth.” The Defendant's lawyer moved that McGuire be granted immunity and the prosecution agreed. Therefore, the circuit court granted McGuire immunity against any charges the State could bring against him arising out of his testimony.¹ After the grant of immunity, the following exchange took place outside the jury's presence:

MCGUIRE: ... I have no intentions on testifying. I am not taking the stand and I am not testifying.

COURT: Are you saying that you refuse to take the stand?

MCGUIRE: That's what I'm saying. I refuse to take the stand and I refuse to testify.

COURT: Are you saying-so you are no longer taking the Fifth? You're just saying you refuse-

MCGUIRE: I refuse to talk, period, that's what I'm saying. I refuse to talk. I refuse to take the stand and I refuse to testify.

COURT: Would you raise your right hand and be sworn in?

MCGUIRE: No, I am not.

COURT: Okay. I'm not going to make any further inquiry. You may take him back....

After dismissing McGuire from the courtroom, the circuit court brought the jury back into the courtroom. The court informed the jury that, like the day before, McGuire refused to testify. This time, however, the court added that McGuire had to be physically restrained while in the courtroom and that bringing him into the jury's presence would be a safety issue for the jury. The jury never saw McGuire.²

After the trial, the court entered a contempt order against McGuire. The order stated that McGuire was in custody and that the State secured his appearance for the Defendant's trial pursuant to a writ of habeas corpus ad testificandum. Importantly, the trial court found:

The Court was advised by court security, out of the presence of the jury, that witness McGuire would not physically take the stand and expressed his

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