State of West Virginia v. Daniel L. Herbert
234 W. Va. 576
| W. Va. | 2014Background
- Defendant Daniel L. Herbert was convicted of two counts of attempted murder, three counts of malicious assault, two counts of wanton endangerment, and one count of fleeing; a separate felon-in-possession count was tried earlier and severed.
- Defendant argued trial court violated compulsory process by not forcing a key witness, Gabriel McGuire, to testify in front of the jury.
- McGuire, a non-party witness and victim, refused to testify; the court permitted immunity after McGuire asserted or implied self-incrimination.
- Eight witnesses testified they saw Herbert chase McGuire and shoot him in the back, while a bystander was shot, and the jury ultimately rejected self-defense.
- The court declined to bifurcate the felon-in-possession charge when the defendant did not stipulate to prior conviction; conviction on that count was entered before the remaining counts were tried.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Compulsory process and witness invocations | Herbert | Herbert | Circuit court erred but harmless |
| Negative inference from witness refusal | Whitt controls negative inferences | Whitt entitles negative inference | No negative-inference instruction allowed |
| Officer comment on cooperation and striking | Comment was permissible | Comment was prejudicial and should have been struck | Comment harmless; no reversible error |
| Transferred intent instruction | Instruction properly transfers intent under Julius | Confusing transfer of intent to another count | No reversible error; instruction valid or harmless |
| Bifurcation of felon-in-possession count | McCraine required bifurcation | Different treatment warranted depending on element vs penalty | Abandoned McCraine; bifurcation governs essential-element status; no bifurcation here |
Key Cases Cited
- State v. Harman, 165 W.Va. 494 (1980) (Non-party witness may invoke privilege after question; not an invitation to compel in front of jury)
- State v. Whitt, 220 W.Va. 685 (2007) (Court may exclude witness from jury when privilege to testify is invoked; later modified)
- State v. Nichols, 208 W.Va. 432 (1999) (Stipulations to prior convictions; discretion in bifurcation and evidentiary treatment)
- State v. McCraine, 214 W.Va. 188 (2003) (Per se rule requiring bifurcation for status elements overturned; discretion restored)
- State v. Dews, 209 W.Va. 500 (2001) (Prior conviction used as penalty enhancer; different bifurcation considerations)
- State v. Julius, 185 W.Va. 422 (1991) (Transferred intent doctrine referenced and applied in serious cases)
- State v. Guthrie, 194 W.Va. 657 (1995) (Deference to trial court discretion in jury instruction wording)