State v. Nichols

Virginia, Plaintiff STATE of West

Below, Appellee, NICHOLS,

Bobby Defendant Lee

Below, Appellant.

No. 26009. Appeals

Supreme Virginia.

West Sept.

Submitted 3, 1999. Dec.

Decided

Dissenting Opinion of Justice

Maynard Dec.

I. AND FACTUAL PROCEDURAL HISTORY April evening On Pontiac Prix struck a tree on the Grand property of Mr. Ernest Summerville near County. Upon hearing Route 36 Roane accident, Mr. walked out- Summerville standing side and observed Mr. Nichols alone car. Mr. then the rear of the Summerville Cleckley, Morgantown, his Franklin D. West returned inside home. Attorney Appellant.

Virginia, for the accident, Shortly Deputy Sheriff after the Trooper L. Todd and Rick Hull re- Cole McGraw, Jr., General, Attorney Darrell V. sponded to accident scene. When the Warfield, General, Attorney Deputy Dawn E. arrived, officers Mr. Nichols was not at the Charleston, Attorneys Virginia, for the West Deputy accident site. Cole searched the car Appellee. containing and found documents the name “Bobby investigating Nichols.”2 While scene, a call accident the officers received DAVIS, Justice: company. from a local wrecker Nichols Mr. Nichols, Bobby appellant and Lee defen- requested had that his car be towed. The (hereinafter dant to as “Mr. below referred call from Mr. Nichols was made from the Nichols”), by was convicted for the home of Mr. Leonard Cottrell. crime of third offense DUI. Mr. Nichols was of Mr. proceeded The officers the home driving suspended also convicted of on a arriving, Upon Cottrell. the officers were circuit court Mr. license. The sentenced was told that Mr. Nichols taken the home years Nichols to one to three for confinement proceeded of A Nichols. The officers then conviction. The circuit court also DUI they A Nichols found to the home of where Mr. Nichols to six months confine- sentenced Deputy Mr. that he Nichols. Cole testified driving suspended on a ment license. strong Mr. odor of alcohol on detected concurrently. appeal, ran On The sentences eyes Nichols and that Mr. Nichols’ were red argues assignments Mr. Nichols two of error. Additionally, Deputy ob- glassy. Cole open trial court on Mr. Nichols’ head. Mr. Nichols first contends that the served an wound sobriety to Mr. A test was administered by by lay field permitting opinion testimony erred officers Nichols. He failed the test. The Next, witnesses. Mr. Nichols asserts placed then Mr. Nichols under arrest.3 by admitting trial into court erred evi- Mr. convictions.1 dence Nichols DUI subsequently A trial was held on June ap- parties’ arguments on Based presented 1998. Mr. Nichols peal, designated appellate the record re- driver of car. show that he was not the view, authorities, pertinent and the we re- Mullins, that was driv- Dennis Jr. testified he decision of the Circuit verse the Mr. ing car at the time of the accident.4 pas- County. Mullins that Mr. Nichols was a Roane testified transported accident 1. An was filed on behalf of the West 3. Mr. Nichols was to the amicus brief Association, Attorneys Virginia Prosecuting seek- as He was identified Mr. Summerville scene. only ing ruling of the trial as addition, affirmation court’s person seen at the accident site. DUI convictions. key pocket Mr. was used a car found in Nichols’ ignition wrecked to turn on the switch of the strong Deputy Cole testified that he smelled a vehicle. He odor of alcohol the car. also testified car was the windshield on the driver’s side fragments cracked. Hair were found on the bro- of Mr. Mullins. 4. Mr. Nichols is the uncle ken windshield. senger in eat*when wrecked. III. Accord- Mullins, ing after the to Mr. accident Mr. So, angry. Mr. Nichols became Mullins left DISCUSSION Mr. Nichols’

the scene of the accident. testi- mony testimony Opinion Testimony consistent A. The Admission Mr. Mullins. by Lay Witness witnesses, presented two The State Ms. Mr. Nichols first contends that trial Mace, Ruth Denzil Pinson and Mr. both of court allowing committed reversible error neighbors whom of Mr. are Summerville. express two witnesses to as to they Ms. Pinson Mace and Mr. testified they whether Mr. Nichols believed was driv- saw Mr. Nichols the accident scene. ing car at the time the accident. Over Both Mr. Nichols was witnesses believed objections, Mr. Nichols’ following ex- 3, 1998, On the driver the car. June change prosecutor occurred between the guilty returned a verdict for third of- Ms. Pinson: guilty also fense DUI. The returned a against driving verdict Mr. Nichols for while Q. again, you Ma’am ques- let me ask The circuit license was revoked. court you tion. Do have who was September sentenced Mr. Nichols driving night? vehicle years to one-to-three confinement for you A. Common sense would tell it had to conviction, and six the DUI months confine- Bobby. be driver’s side windshield suspended a driving ment for on It license. was up. busted and head was cut And court’s from the circuit sentence that Mr. there was no one else around. appeals. Nichols now Additionally, prosecutor asked Mr. Mace

II. following: OF REVIEW STANDARD Q. you Do who driving know was appeal by raised on The two issues evening that automobile that was involved Mr. Nichols the admission concern of certain in that accident? by trial court. It evidence is a well A. I assumed it was him. There was no principle of law in Virginia established West people other —no around other the vehicle “[rjulings admissibility that of evi than him. a largely dence within trial court’s are sound Louk, 639, 171 discretion!.]” State W.Va. argues opinion Mr. Nichols (1983). 643, 596, 599 syllabus 301 S.E.2d testimony by and Mr. Ms. Pinson Mace fails point Kopa, 43, 6 of State v. W.Va. comply 701 of Virginia Rule the West (1983), S.E.2d 412 this Court held that “[t]he rule, general Rules of a lay Evidence. As a in admitting action of a trial court or exclud witness must his or testimony confine her ing in exercise of evidence its discretion report a lay of A may the facts. witness appellate will not be disturbed court testify in opinions the form of or inferences such appears unless it action amounts to subject when from of the nature an abuse of Accord discretion.” specific matter no better or more evidence Crabtree, W.Va. S.E.2d can be obtained. See United States v. Fowl (1996) (“Our of review a trial court’s (4th er, Cir.1991) 932 F.2d (finding ruling prem to admit or [is] exclude evidence requirements lay opinion admission law, permissible ised on a view of the [and] satisfied). previously explained We have discretion”). only for have abuse “[n]ormally, testimony opinion laya judgment also “[a] ruled will not be opinions rationally witness is limited to based improp reversed of the admission of because perception helpful the witness’ which are er or irrelevant when it is clear understanding for a clear the witness’ verdict of could not have been Syl. Wade, testimony thereby.” affected Pt. or a determination fact (1997). Min., 200W.Va. issue.” S.E.2d Evans v. Mutual (1997).5 526, 530, Swajian Corp., Role General Motors 916 F.2d (1st Cir.1990) (“For opinion testimony 701 states: layman aof to be admissible three elements testifying If is not as an the witness First, present. must be the witness must testimony in expert, his or her the form of personal knowledge have of the facts from opinions or is limited to those inferences opinion Second, which the is to be derived. (a) opinions or which inferences are ration- there must be a rational connection between ally perception based on the of the witness opinion and the facts which it is (b) helpful understanding to a clear Third, opinion based. helpful must be testimony witness’ or the determina- understanding testimony determining or tion of a fact in issue.6 issue”); Lots, a fact in Lubbock Feed Inc. v. (footnote added). Processors, (5th Iowa 630 F.2d Beef previously explained We have the Cir.1980) (same). three-part Because the test; is, having only part as rule two explanation test is a workable Rule “(a) testimony whether the ra witness’ practical we believe the test has a value for tionally perception based on the of the wit trial courts and therefore hold that in order (b) helpful understanding ness and to a clear give opinion for a testimony witness to testimony or the witness’ the determina 701(1) pursuant to Rule must witness tion of a fact issue.” Evans v. Mutual personal knowledge have perception7 or 526, 530, Mining, 199 opinion the facts from which the is to be Wright Alan See 29 Charles & derived;8 there must be a rational con- Gold, Victor James Federal Practice and nection between the and the facts § (recognizing Procedure at 126 based; upon which it test). However, part the traditional two both helpful understanding must the testi- parties analyzing have outlined a test for mony determining fact issue. “If required three distinct factors under Rule satisfied, requirements layman these are 701:(1) personal perception, rational con express can under certain circumstances an nection, helpfulness. We do not dis opinion appropriate even on matters for ex- fact, agree approach. Lots, with this In pert testimony.” few Lubbock Feed Inc. v. (5th Processors, applied requirements 250, federal courts have Iowa 630 F.2d 263 Beef Cir.1980).9 a three-part Having adopted three-part of Rule 701 with such test. See " ("The perception requirement ‘[t]he 5. This Court has held determination of stems from F.R.E. knowledge lay whether a sufficient of requires witness has 602 which witness to have first- question qualified knowledge the material in so as to be testifying hand of the events he is give opinion largely is within the of discretion present about so as to the most accurate court, ordinarily the trial and will fact”). not be dis- information to the finder of Unlike an ” clearly appeal turbed on unless erroneous.’ witness, may expert opinion express who an Haller, 642, 647, State v. 178 W.Va. 363 S.E.2d expertise, lay about a matter within his or her 719, (1987), 4, Syl. quoting Galigh- 724 Pt. Coxv. may testify only witness about matters within his Co., 685, er Motor Sales 158 W.Va. 213 S.E.2d personal knowledge. principle or her This (1975). 475 602, expressly embodied under Rule where it is may testify "[a] held that witness not to a matter 6. Our Rule 701 identical Rule 701 of the sup- unless evidence is introduced sufficient to lay Federal Rules of Evidence. Authorization of port finding personal the witness has testimony opinion under federal Rule 701 was Thus, knowledge pro- of the matter.” Rule 602 difficulty adopted because often find "[witnesses lay testifying hibits a witness from about matters expressing language themselves in which is personal knowledge that are not within the of the opinion not that of an or conclusion." Fed. 340, 346, witness. State v. Whitt 184 W.Va. 400 701, Advisory R.Evid. Committee Note on 1972 584, (1990). S.E.2d 590 See also United States v. Proposed Rules. F;2d 777, (8th Cir.1977) (Rule Lyon, 567 783-84 testimony concerning 602 "excludes matter 701, In relation to Rule our cases have used opportunity witness did not or had observe no interchangeably "knowledge” terms observe”). "perception.” lay Virginia topics 9.The which been 8. Rule 602 of the West Rules of Evi- on witnesses have permitted express opinion prong “[t]he dence furnishes the basis for the first of include identity, appearance persons things, the test under Rule 701. See United v. of or States 1423, (10th Cir.1985) conduct, Hoffner, competency person, 111 F.2d 1425 manner of aof 438 Evidence, analyze “speculative the Federal Rules test, to utilize test to proceed we i.e., opinion testimony by lay tes this case. the evidence witnesses — timony upon percep not based the witness’s Percep Knowledge or Personal generally inadmissible.” tion —is considered requires test prong tion. The first favors the admission of The “modern trend knowledge or personal that a witness have [lay] opinion testimony, provided that it is opin from which the the facts perception of personal knowledge[.]” well founded Evans v. Mutual Min ion is to be derived. Inc., Teen-Ed, Inc. v. Kimball Int'l 620 F.2d 530, 695, 526, 699 ing, 199 W.Va. S.E.2d Cir.1980). 399, (3d may “This include testimony (lay opinion must be “based person, if the motivation or intent another events).10 In perception” of the witness’ adequate has an basis for his or the witness deed, firmly in this state “[i]t is established opinion, personal knowledge or her such as not an opinion of a witness who is surrounding opportunity to observe the if expert may given in evidence he O’Brien, Hart v. 127 F.3d circumstances.” knowledge concerning sub peculiar some Cir.1997).12 (5th 424, Where a wit 2, v. State Syl. pt. ject opinion[.]”11 of the testimony perceptions, is based ness’s (1987). Haller, 642, 178 W.Va. which are insufficient to allow the formation McWilliams, 369,

Accord 177 W.Va. State but, instead, merely expresses anof (1986); 2, Syl. pt. 352 S.E.2d beliefs, then the testimo witness’ Co., Appalachian Power Cochran ny should be excluded. United States v. (1978); Moore 246 S.E.2d W.Va. (8th Cir.1991). Cortez, 935 F.2d 139-40 Shannondale, 549, 566,165 152 W.Va. Oshel, Toppins (1968); did not Syl. Pt. Mr. Nichols contends the witnesses (1955); Syl. satisfy prong argues Pt. the first the test. He 89 S.E.2d Fugate, 103 W.Va. not at scene 138 S.E. the witnesses were Therefore, (1927). Washington Department they when the ear crashed. did (5th Transportation, driving F.3d Cir. not see who was the vehicle. The 1993) argues contrary. that under Rule 701 State was observed darkness, sound, size, (1997) (concluding feeling, light degrees or S.E.2d 695 the owner of de things stroyed damaged weight, personal property quali and an endless number of distance factually apart lay testimony give described in words that cannot be fied to as to the value of the Graham, personal Michael H. Federal property personal from inferences.” based on his or her Haller, 642, 646, § knowledge); Practice and Procedure (1987) (permitting a witness drug physical who is familiar with a and objective its number of factual bas- 10. "There are a give opinion possible properties chemical of the es from which it is to infer with some person given identity drug); Royal City confidence that a fact. of the Furniture Co. v. knows 400, 407, directly, person Morgantown, These what the was told W.Va. 263 S.E.2d include 164 of hear, 878, (1980) position (finding operators what he was in a to see or what of retail 882-83 others, years he himself made to conduct experience special statements businesses 30 had engaged, background and what his and which he knowledge relative to the fair market value of Rea, experience items); Steinbrecher, were.” United States v. 958 F.2d damaged Spencer v. 1206, (2d Cir.1992). 490, 497, 710, 164 S.E.2d (deciding may give opinion an owner of values of personal property specu where it is not based on "[t]he 11. This Court has also ruled that determi- 7, lation); Syl. Hope pt. Stenger a witness has sufficient knowl- v. Natural Gas nation of whether Co., 549, (1954) (allow edge question of the material so as to 139 W.Va. 80 S.E.2d 889 opinion largely qualified give ing knowledge opinion his within the based issue of value of court, 182, 190, Lilly, property); discretion of the trial and will not ordi- v. 123 W.Va. Mullens 634, clearly narily appeal lay unless erro- (concluding be disturbed wit 4, Syl. Galigher Pt. knowledge give opinion neous.” Cox Motor Sales had as to dece nesses Co., 685, (1975). 8, Syl. 158 W.Va. 213 S.E.2d 475 See capacity); pt. mental Cochran v. dent’s also, 3, Haller, 642, Syl. 281, Pt. 178 W.Va. Craig, (per 88 W.Va. 106 S.E. 633 (1987). mitting knowledge opinion based witness on is 14, Syl. property); pt. sue of value of Tucker Co., contexts, Fire 58 W.Va. 51 S.E. 86 Colonial Ins. In several different this Court has (1905) (determining owner liberally knowledge requirement that with sufficient construed the See, may knowledge intelligence give lay testimony. Syl. speak with opinion e.g., pt. for value). opinion Mining, Evans v. Mutual objection asserts that because the witnesses were at common law opinion testimo immediately following ny the accident scene superfluousness based on the testi crash, they acquired personal knowledge of mony.” Michael D. Blanchard & Gabriel J. place immediately Chin, what took after the crash. “Identifying Enemy in the War on interpretation Mr. Nichols’ believe Drugs: Critique A the Developing Rule prong misguided. first of the test is All that Permitting Visual [sic] Indentification required personal is that a witness have Indescript White Powder in Narcotics Prose knowledge litigation. of an event in In the cutions,” 47 Am. U.L.Rev. case, instant is clear us the wit- Weissenberger, See Glen Weissenberger’s nesses arrived at the scene of the accident 701.3, (1995) (ob § Federal Evidence at 339 immediately present, crash. after the While serving lay opinion must be one that a the witnesses made certain observations. person rational would make from observed personal Those observations constitute facts). Obviously, “[w]hen witness has not knowledge of pertaining certain matters objective opinion, identified the bases Thus, litigation. the accident the first ... way there is no for the court to assess prong of the test is met. rationally whether it is based on the wit perceptions[.]” Rea, ness’s United States v. 2. Rational Connection. Under the sec (2d 1206, 1216 Cir.1992). 958 F.2d test, prong ond must there be a ration al opinion connection between the and the Mr. Nichols contends that the second opinion facts which the is based. Fed prong was not satisfied two reasons. acknowledged eral courts have that federal First, an unknown time interval between the Rule “specifically per like our rule point of the accident and the arrival of the lay opinion testimony mits if opinions those witnesses occurred. Mr. Nichols asserts that rationally perception are based on the of the interval, during this unknown time the wit- Corp., witness[.]” Carter v. DecisionOne knowledge had no present nesses of who was (11th Cir.1997). F.3d The Fifth at the scene and who left before the wit- Appeals interpreted Circuit Second, actually nesses arrived. Mr. Nichols requirement rational connection to mean that, contends because someone could have that, might express while a witness present been at the scene left before the requires personal knowledge, arrived, opinion given witnesses “the was no “the must per be one a normal speculation.” than more uninformed son would form from perceptions.” those argues prong the second was satis- Riddle, United States 103 F.3d fied because the facts observed the wit- (5th Cir.1997). Accord United States v. Fi rationally opin- nesses were connected to the (9th gueroa-Lopez, 125 F.3d 1244-46 agree ion rendered. We with the State. Cir.1997); Spartan Transp. Corp., Wactor (8th Cir.1994); correctly argues F.3d during United Mr. Nichols Garcia, (10th States v. 994 F.2d the unknown time interval between the acci- Cir.1993); Fowler, United States 932 F.2d arrival of dent Ms. Pinson and Mr. (4th Cir.1991); Mace, Swajian v. General someone involved in the accident could 31, (1st Cir.1990); Corp., Motors presented 916 F.2d have fled the scene. Mr. Nichols Enterprises suggesting Williams v. R. Sherman Smoot someone else was at the Co., (D.C.Cir.1991); 938 F.2d 233-34 scene who drove the car and who fled after Lots, However, Lubbock veracity Feed Inc. v. Iowa Pro the accident. the of that Beef (5th Cir.1980).13 cessors, jury 630 F.2d evidence was left for determination. opinion “The or seeing inference must be one that a Pinson and to Ms. Mr. Mace testified person rational would draw based on Mr. Nichols the accident scene. requirement observed facts. They placing something This reflects observed him in the " " testimony knowledge experience.’ 'While the ... rule confines mon or United.States lay Oliver, (8th Cir.1990) a edge witness to concrete facts within his knowl- (quot v. 908 F.2d observation, may rightly States, [c]ourt exer- ing 217 F.2d Batsell United permitting cise a certain amount of latitude in 1954)). (8th Cir. upon witness to state his conclusions based com- “Therefore, opinion ‘helpful’ is to the trier to an Both witnesses testified car. of the trank an noticing ... if it aids or clarifies issue windshield and to of fact seeing cracked compe upon this not be as jury head. Based would otherwise on Mr. Nichols’ cut rationally con- v. National could understand.” Lauria knowledge the witnesses tent to (3d the driver of the Passenger Corp., Mr. Nichols was 145 F.3d clude that R.R. Cir.1998). Corp. accident. car at time of the also Beech See Aircraft 153, 169, Rainey, 109 S.Ct. 488 U.S. Understanding Helpful In Testi (1988) (“Rule permits 102 L.Ed.2d 445 mony. prong of test the the third Under testify in form of lay ... a witness helpful understanding opinion must be testimony in that form will ... opinions when determining a fact issue. testimony or fact”); helpful to trier of Government be Corp., 110 F.3d Lightfoot v. Union Carbide (3d 619, 629 Knight, 989 F.2d VI. v. (2d Cir.1997), “[e]ven the court held Cir.1993) (As long “circumstances can as the rationally lay opinion is based when a clarity by stating greater presented with be facts, may if objective still be inadmissible helpful opinion to the opinion, an then that is jury help the to understand the it does not fact”); Skeet, United States trier a fact in testimony or decide witness’ Cir.1982) (9th (“Opinions of F.2d words, jury where the issue.” “In other facts may admitted where the non-experts conclusions, drawing own capable of their presented adequately could not otherwise be testimony unhelpful and thus lay witness’s way jury in as to such or described permitted.” Blanchard & should not be jury opinion or reach to form an enable the Chin, Enemy in the Identifying the War conclusion”). intelligent at 611 n. 235. The Drugs, 47 Am. U.L.Rev. prong third Nichols asserts that the Mr. designed pro requirement helpfulness jury could not satisfied because the against admission of vide “assurance necessary “readily draw the inferences merely tell opinions which would opinion.” aid of an Rea, conclusions without the States v. what result to reach.” United (2d Cir.1992). prong was that the third The State contends There 958 F.2d foundation was laid “[a] satisfied because fore, “attempts to introduce if are made questioning of the witnesses the State its which amount to little meaningless assertions had suffi- sides, clearly show that the witnesses choosing up exclusion for than more to form an perception cient helpfulness [Rule is called for lack of disagree helpful jury.” We would be Advisory Committee 701].” Fed.R.Evid. position. with the State’s Similarly, Proposed on 1972 Rules. we Note long have held “helpfulness” element of the Rule The witness, opinion not an When permit lay witnesses not intended to test is evidence, expert, and he is no is offered opinions every given observation. See jurors qualified than to form an better 1423, 1426 Hoffner, 777 F.2d United States to the facts in evi- opinion with reference Cir.1985) (10th opt (“Although most courts properly to be dence and the deductions admissibility lay opinion, for the broad facts, drawn from such evi- testimony all not mean that such does not admissible. dence is admitted”). indiscriminately ought to be Fields, approach would allow witnesses Syl. pt. Such Overton to act as the “thirteenth” generally It is ac in all criminal eases “[l]ay juror. helpfulness knowledged opinions help not element seeks are clarify factual issue. dis readily for the ful can draw the neces when the jury being difficulty in the sary without cern no inherent inferences conclusions Boston, whether the observations opinion.” Lynch City v. able to decide aid of the Mace, (1st Cir.1999). which 1, 17 Pinson and Mr. Accord made Ms. 180 F.3d United evidence, (8th Ness, could properly admitted into 665 F.2d Cir. were States Baskes, 1981); reasonably conclusion that Mr. 649 F.2d lead to the States United (7th Cir.1980); driving time of the the car Nichols was United States South (5th Cir.1978). ers, accident. 583 F.2d Ness, United States argued any error in [the] witnesses.]” The State lay opinion testimony by (8th Cir.1981). allowing must, Ms. Pinson 665 F.2d and Mr. Mace was harmless error. We dis therefore, admission of “[t]he conclude agree. Mr. Nichols’ sole defense was that testimony lay opinion [in this was an case] person driving ear. That another Swajian v. General abuse of discretion.” person fled the accident scene. The (1st Cir.1990). Corp., Motors 916 F.2d testimony of Ms. Pinson and Mr. Mace was directed the defense. This Court indicat B. Admission of Evidence of Blake, State v. syllabus point 4 of ed Prior DUI Convictions (1996), part, W.Va. 478 S.E.2d 550 Stipulation. Mr. Nichols’ sec Although evidentiary rulings erroneous assignment ond of error is that the trial reversal, alone do not to automatic lead precluded court should have the State from reviewing obligated court to reverse introducing into evidence Mr. Nichols’ two improper [in]elusion where the of evidence prior stipu DUI convictions.16 Mr. Nichols places underlying fairness of the entire lated the two DUI convictions. trial in doubt or [in]clusion where the af- However, court, upon the circuit in reliance rights fected the substantial of a criminal Hopkins, State v. W.Va. defendant.14 (1994) (Cleckley, dissenting), required J. (footnote added). present the State to to establish defendant’s two convictions. Mr. Nich improper

We are concerned that the ols now asks this Court to revisit the issue testimony admission of in this case mandatory placed whether that evidence of underlying fairness of the judgment convictions danger doubt.15 be submitted “The here is easily prosecution subsequent could of a [have] accord[ed] DUI offense. weight Hopkins, pronouncement too much State the seminal case this also, Pt., Rahman, (d) Syl. Anyperson 14. See 4 State v. who: ("Where (1996) W.Va. (1) S.E.2d 273 im- Drives a vehicle in while: this state proper evidence of a nonconstitutional nature is (A) alcohol; He under the influence of or trial, introduced a criminal (B) any He is under the influence of con- test to determine if the error is harmless is: the inadmissible evidence must be removed from substance; trolled or (C) any He is under the influence of other the State’s case and a determination made as to drug; or remaining whether the evidence is sufficient to (D) He is under the combined influence of impartial guilt convince minds of the defendant’s any any alcohol and controlled substance or doubt; (2) beyond remaining a reasonable if the drug; other or insufficient, evidence is found to be the error is (E) He has an alcohol concentration in his harmless; remaining not if the evidence is percent her or blood ten hundredths of one conviction, support analysis sufficient to more, by weight; must then be made to determine whether the misdemeanor, and, guilty upon Is of a any prejudicial jury. Syl. error had effect on the thereof, jail conviction shall be confined in Atkins, Pt. (1979)”). day not months, less than one nor more than six jail which term shall include actual appellate obligated "An court is to see that the twenty-four confinement of not less than guarantee of a fair trial under Section 10 of hours, and be fined not shall less than one Virginia Article III of the West Constitution is hundred dollars nor more than five hundred Thus, only high prob- honored. where there is a dollars. ability process proportion that an error of due did not contribute to the criminal conviction will (k) person violating any provision A of sub- appellate High probability court affirm. re- shall, (d) section ... ... of this section for the quires appellate possess that an court a sure any subsequent third or tion, offense under this sec- prejudice conviction that the error did not and, guilty felony, conviction Guthrie, Syl. pt. defendant.” thereof, penitentiary imprisoned shall be in the for not less than one nor more than three discretion, years, may, and the court in its provisions 16. The relevant of the State's DUI 17C-5-2(d) (k) impose §§ a fine of not than three thousand statutes are W. less Va.Code (1996), provide which as follows: dollars nor more than five thousand dollars. “prior “[b]ecause evidence of the which that a Court held held conviction is admissi- r necessary prio convictions is element of necessary ble where element of current charged, the evidence is admissible the crime charged offense or is utilized enhance at jury purposes.” Id. S.E.2d at Barker, penalty.” at 199 n. principle 323. Mr. Nichols seeks have this 366 S.E.2d at 647 n. 12. of law overruled. place perspective, Hopkins To matters in Hopkins prior held that convictions were created, providing any analytical without dis necessary shoplifting elements under the justification cussion holding, as to the for its Hopkins ruling statute. The was made with- the in this rule law State that evidence of analysis any prior shoplifting out of how the prior presented convictions must be Additionally, convictions were to be used. jury during trial of underlying the the of Hopkins necessity failed to discuss the Hopkins simply fense. referred Cozart prejudicial impact their use the of their Barker,18 and Neither nor Barker Cozart Hopkins merely use. cited to our decisions judicial any reasoning establish or discussion Cozart, in State v. 177 W.Va. supporting opinions assertions both (1986), Barker, 179 W.Va. prior convictions must be submitted (1988), support as for its sum, jury. of law in rule this conclusory holdings.17 prior State that convictions must be submit The decision in Cozart involved third jury principle ted is a of law created offense DUI conviction. In footnote one of any analytical support. Hopkins, without summarily disposed this Court Cozart Cozart Barker are summations without argument defendant’s the trial court legal foundation. permitted should not have to intro- Here, Mr. Nichols seeks to have this Court prior duce of his DUI convictions. adopt by the rule established the United fashion, sweeping, nonanalytical In a this Supreme States Court Old v. United rejected argument by stating Chief States, 519 U.S. 117 S.Ct. prior necessary “where a conviction is a ele- (1997). L.Ed.2d 574 The defendant in Old charged ment of the current offense or is charged possession weap- penalty utilized to enhance after a Chief by finding convicted felon. One element of defendant has committed offense, offense was that prior such the defendant had been it is admissible Cozart, previously purposes[.]” felony. gov- convicted of a at The 177 W.Va. 402 n. copy n. ernment wanted to introduce a S.E.2d 1. Our decision in conviction, judgment prior Barker of his also involved a third which con- offense DUI by conviction. An issue tained the name and raised the defendant nature of the offense objected Barker involved admission evidence of committed. The defense prior Again, ground prejudice. DUI convictions. this Court of undue The defendant disposed citing the issue stipulate Cozart offered to fact that he had Hopkins per opin- cally reject holding also referenced a curiam this as a torture of sound ion, Wilkinson, legal reasoning. prior convictions are not they charge; elements of the current are ele- penalty ments of enhancement. dissenting opinion Hopkins 18. The addressed 495-496, Hopkins, 192 W.Va. at 453 S.E.2d at very the majority concerns this Court now has with the (Cleckley, dissenting). 329-330 J. We are not Hopkins: decision necessarily persuaded the dissent’s character- Allowing prior admission convictions ization of mere convictions as "enhance- merits, ostensibly in this case on the as ele- ments,” though analysis in the final that is the ments, policies conflicts with all the behind effect of the use of convictions. From a 404(b) Virginia Rule of West Rules of Evi- legal standpoint, repeat our offender statute is an Unquestionably, dence. will be more § "enhancement” statute. See W. Va.Code 61— underlying charge inclined to convict on the if Whereas, (Repl.Vol.1997). pri- 11-19 they know the defendant has been twice con- statute, or DUI conviction as discussed in the victed of similar conduct. In order to avoid body opinion, of this is a "status” element stat- 404(b), application majority sug- of Rule ute. gests that the two convictions are materi- al present emphati- elements of the I crime. Therefore, previously felony. convicted of a The we that our been conclude decision in permit Hopkins progeny clearly court refused to to and its wrong. trial the defendant was prior appeal to stipulate the conviction. On distinguishable The decision Old Chief Circuit, Ninth to the court affirmed the from instant case as the insofar the defen- precluding trial court’s defen- decision dant in Old wanted the name and Chief stipulating prior from to a felony dant convic- prior kept nature of his offense from the Supreme The States tion. United Court jury. Chief, In Old the defendant was not granted split certiorari as there was a of seeking keep jury from the the fact that authority among on issue federal prior However, he had a conviction. appeal.19 circuit courts of proceeding, keep instant Nichols seeks to jury prior learning from of Souter, his convictions. writing majority for Justice distinction, spite of this when a defendant Chief, held that it was trial Old error for the stipulate prior offers to to the convictions Old deny ability court to defendant provided has the basis for some state stipulate prior conviction. Justice Chief preclude prior courts to mention stated Souter is a conviction status element of the case, any [i]n this as in which other in underlying offense. prior likely is for an conviction offense support improper conviction some example, For Supreme the Wisconsin ground, [is] reasonable conclusion prior of addressed the issue con- DUI prejudice that the risk of unfair ... sub- Alexander, viction evidence stantially outweigh[ed] pro- the discounted Wis.2d N.W.2d The conviction, bative value of the record of defendant Alexander was convicted of and was an abuse of admit discretion to appeal, third offense DUI. On the defendant the record when an admission avail- assigned error to the trial court’s refusal to able. permit stipulate prior him to DUI purpose preventing convictions for the of Chief, Old U.S. at S.Ct. at learning prior from of the offenses. result, reaching 136 L.Ed.2d at 594-95. In its legal Court in Alexander described the na- opinion in Old made distinction Chief prior stating ture of DUI convictions stipulations to between a status element offense, “[t]he element the defendant has two or opposed as stipulation prior more convictions status is a element of other elements of an offense. Justice Souter places which him or in a offense her “proof wrote of the defendant’s status category alleged certain offenders.” Alex- goes entirely to an element natu outside the ander, 571 N.W.2d at “Proof of a 669. status sequence ral of what the defendant entirely to an goes element element charged outside thinking doing to commit gravamen operating the offense: Chief, the current offense.” Old at 519 U.S. prohibited motor with a alcohol con- 191, 117 655,136 vehicle at S.Ct. L.Ed.2d at 594. Old Id. at centration.” 671. Alexander held reasoned that because a status element Chief “[a]ny the defendant’s admission independent offense of an offense’s pro- to his [DUI] convictions little physical requirements, mental it was not value as to bative whether the defendant was necessary that a be informed of a status operating prohibited a motor with a vehicle However, “a element. defendant’s admission at course, alcohol concentration.” Id. 669. is, of good Chief, evidence.” Old may U.S. S.Ct. at 136 L.Ed.2d at Evidence convictions lead a provides believe Old convict a the better defendant crimes oth- Chief crime, approach charged the use of convictions. er than the convict because Breitkreutz, Wacker, (10th See United States 8 F.3d United States v. 72 F.3d 1453 Cir. (9th 1993) (Government may stipula reject 1995) Cir. (permitting stipulation); United States v. tion); Burkhart, (6th United Jones, States v. 545 F.2d 14 (D.C.C.A.1995)(same); F.3d 320 Unit- 1976); (recognizing right part Cir. of the Tavares, (1st Cir.1994) ed States F.3d stipulation); Government to refuse an offered Poore, (same); (4th United States v. F.2d 39 Smith, (8th States United 520 F.2d 544 Cir. 1979) (same). Cir. see, 1975) may (stipulation rejected). But substantially danger punishment outweighed rather deserves person a bad prejudice unfair to the defendant. presented, on the or evidence than based thinking convic- Alexander, that an erroneous convict In reaching 571 at 669. N.W.2d result, recognized defen- not so serious because the this the that a tion is decision dispenses with a defendant’s “admission the already has criminal record. dant element, proof for of need the status either omitted). (citations Such evidence Id. at 668 jury judge.” or to a at 668. to a Id. prosecution, “other than place had no using is Alexander not alone Old Chief jurors to that think because the to lead the excluding prior for of as the basis evidence convictions, suspen- prior has two defendant convictions that status elements of an are revocations, probably driving was or he sions State, In 719 offense. Brown v. So.2d 882 question.” date intoxicated while (Fla.1998), the court held The Court in Alexander reasoned Id. at 671. Chief, consistent with when a criminal Old stipulate prior offers to [the defendant to [wjhere prior convictions is element convictions], must accept DUI the Court crime, jury charged the risk stipulation, by of the conditioned an on-the- using prior colloquy a convictions as defendant’s record with the defendant ac- knowledging underlying prior or propensity [] of his or bad con- evidence her victions) stipulation. acceding and great. prior And where character place The State also be allowed to should nature is similar or of the same or offense evidence, purposes only, into crime, record charged risk of character as the sentence(s) judgment(s) of actual and great. prejudice particularly unfair conviction(s) previous used to substantiate (citation omitted). at 668 There 571 N.W.2d prior charge. [conviction] element fore, Brown, fact, 719 our So.2d at 884. re- prior the defendant’s [t]he majority search has revealed that a of courts convictions, suspensions revocations require which have addressed the issue trial and status element be excluded permit stipulate should to courts defendants to to jury pro- to because the prior not submitted convictions status that are elements of the value defendant’s admission is an offense.20 bative Lee, stipulate can v. 266 Kan. 977 P.2d defendant offer to that he has 20. See State 263 been rejection (finding that court’s prior felony the district convicted of that satisfies offense stipulate defendant's offer to abuse of the identifying particular felony element without proof of defendant’s status State, (Alaska of discretion conviction); Ross 950 P.2d 587 v. adequately a convicted felon was shown as 1998) App. (approving pri in DUI of bifurcation Harvey, through stipulation); a v. State 318 State, cases) or conviction Sams v. 688 N.E.2d N.J.Super. (holding 723 A.2d 107 (holding (Ind.Ct.App.1997) 1323 defendant al prior that a defendant’s admission to conviction convictions). stipulate prior lowed to to DUI disclosing current as element of offense bars Saul, (N.D.1989) (find 434 State v. N.W.2d 572 State, conviction); prior v. nature of Johnson 751 that, ing prior stipulated where to defendant (reversing (Ala.Crim.App.1999) convic So.2d 30 convictions, prior submission of evidence of stipu defendant allowed to tion where was not prejudicial jury convictions to the constituted Hall, convictions); People prior to DUI 67 late Cardin, error); and reversible 129 State N.H. (1998) (con Cal.App.4th Cal.Rptr.2d 79 690 (1987) (deciding 523 A.2d 105 that defen cluding charged with car defendant who is prior stipulate offer to dant's to conviction of weapon rying in a vehicle is a concealed entitled driving precluded prosecu under the influence stipulate prior to the truth of a conviction to trial); introducing prior tion from conviction at elevating alleged purposes which is present Berkelman, (Minn. 1984) N.W.2d 394 State felony, a from a misdemeanor to offense (trial refusing accept stipulation erred court may thereby preclude and defendant from and let defendant from the remove issue conviction); learning prior State v. John prior of whether defendant had a DUI convic (1998) (find son, Wash.App. P.2d 981 tion). Courts that have held that a defendant stipulate ing to allow defendant to error not stipulate prior pur Faison, cannot convictions for the offense); N.C.App. prior State v. keeping pose such evidence from (indicating Old Chief Mewbourn, followed, case, include: 993 S.W.2d 771 proper where in a would Galati, (Tex.App.1999); Ariz. stipulate convic defendant offered tions); Morvan, (1999); Court, City County People 973 P.2d 1198 District State, Denver, 1998); (Colo.1998) (holding (La.Ct.App. Norris v. 953 P.2d 184 So.2d 515 persuaded understanding state of the doctrine of are stare deci- recognized This that have sis.23 and federal authorities relied policy of Old preclude “[s]tare introduction of decisis is the the court to Chief Banker, Banker v. precedent.” stand that constitutes a status conviction evidence offense, when a n. n. element of an defendant W.Va. (1996). However, matter, practical “as a stipulate offers to such conviction. There conviction(s) fore, precedent-creating opinion we hold that when that contains no offense, analysis important of an a status element extrinsic of an constitutes issue stipulate being to State may prior overruled[.]” offer to such more to defendant vulnerable Guthrie, eonviction(s). 657, makes an offer v. 28, If a 194 679 n. defendant W.Va. 461 eonviction(s) (1995). 163, Hopkins stipulate prior a to to a that is 185 n. 28 fails offense, provide analysis support the to a logical status element of an trial court to its permit stipulation mandatory and preclude must such determination that it is that the presenting any prior the state from evidence to the State be to submit evidence of allowed prior jury regarding stipulated jury. “Remaining convictions the convict true to ion(s).21 made, stipulation ‘intrinsically ... such a is sounder’ doctrine When better _ colloquy a the the record must reflect between serves values stare decisis In court, defendant, justification’ ‘special trial coun such a the the defense situation to exists indicating precisely depart recently and the from sel the state the decided case.” Constr., Pena, Adarand 200, Inc. v. stipulation illustrating stipula 515 and U.S. 2097, 2115, voluntarily knowingly by tion was and 115 made S.Ct. 132 158 L.Ed.2d (1995). v. the extent that State simply any persua- To We cannot find the defendant.22 Hopkins, precedent 453 reasoning 192 W.Va. S.E.2d 317 sive to continue with the (1994), Hopkins.24 progeny are in in and its conflict with established they procedure expressly this are overruled. 2. Bifurcation. Mr. Nichols has Hopkins suggested reject also decision to overrule that should this Court Our request a progeny permit stipulation prior and its is made with an earnest to to (1997); (2) surprise; Ga.App. importance furthering S.E.2d 875 ward Anderson, expeditious adjudication by (Ct.App. eliminating fair and 318 S.C. 458 S.E.2d 56 1995); Commonwealth, relitigate every Va.App. proposition need to relevant Glover (1986). case; (3) every necessity in 348 S.E.2d 434 and maintain ing public judiciary in the as a faith source of impersonal judgments. Although and reasoned Obviously, affirmatively pres- 21. if a defendant Hopkins long the rule of is law overruled not prior no ents to show a convic- evidence standing, Moragne’s princi we exits, are confident that may present appropri- tions then state ples by are deviation testimony. satisfied our from this ate evidence to rebut such In other words, precedent. binding short-lived "The effect of a stipulation not a license is for a defen- judicial opinion generations affirmatively on future should not dant to inform the that he or years involving charged be based number prior on the of. that have she has conviction no Court, by passed opinion since the was issued a offense. strength rather in the but should be found of the opinion, reasoning Court's in the and the fairness engage require trial do not courts Morris, of its 510, result.” State requirements under Rule 11 of the formal J., (Starcher, Virginia West Rules of Criminal Procedure for dissenting). agreements. stipulation pri- accepting plea A to acknowledgment or convictions of a fact that, case, every nearly will be matter that is today holding applicable any 24.While our public Nichols, record. retrial of Mr. our decision no retro- application active and cannot be used or relied Lines, Inc., Moragne and v. States Marine defendant convicted sentenced 1772, 1789, opinion. filing judi- “[A] U.S. S.Ct. 26 L.Ed.2d before date of this (1970), Supreme given States cial decision in a criminal case is to be the United (a) analysis prospective application if: It enunciated three factors in stare decisis established law; (b) weighed prior rejection principle appli- which a new its retroactive should be (c) operation; longstanding its rule. These factors are: cation would retard its desirability guide application produce inequita- furnish a retroactive would that the law clear Blake, individuals, Syl. pt. part, results.” State to enable them to ble conduct against plan unto their affairs assurance offenses, permit avoiding potential prejudice Court should then the unfair DUI Although posed a bifurcated trial. we have that would otherwise be required trial through this courts to prior the defendant’s convictions. permit stipulation, such a the issue of bifur- Moreover, equally solution this works well justiciable. cation is still relevant That regardless of whether defendant is, this we must also discuss willing prior stipulate convictions when defendant situation arises does them. wishes contest to a stipulate offer to conviction not Commonwealth, See also Dedic v. 920 S.W.2d charged is a of the of- status element (bifurcation (Ky.1996) required); Barker fense; yet, the does not want his defendant State, Ark.App. S.W.2d conviction(s) presented dur- bifurcation); (recognizing underlying trial of ing the offense. It is Cottrell, (Tenn.Cr.App.1992) S.W.2d necessary to address this Issue because to do bifurcation). (permitting Rodriguez, suggests being otherwise defendant is (Fla. 1991) (requiring 575 So.2d 1262 bifurca stipulate to a conviction status forced tion); Weathington, People Cal.App.3d 231 having jury or suffer the in- element Cal.Rptr. 282 170 (allowing bifurca prior of conviction. a formed the Such situa- tion); Baril, 155 State Vt. 583 A.2d a tion affects defendant’s federal and state bifurcation); 621 (recognizing Ray v. right against constitutional self-incrimination. State, (Okl.Cr.1990) (recogniz 788 P.2d 1384 Bifurcation, underlying charge, from the of ing bifurcate); statutory right People to prior a conviction status element has been Mich.App. 182 453 257 N.W.2d Smith Supreme addressed other courts. The (bifurcation State, required); Smith v. adopted of a mandatory Court Idaho has (Ind.Ct.App.1983) N.E.2d (requiring bifur v. Wiggins, bifurcation rule. State See cation). fact, In our research has uncovered (1975). Idaho 536 P.2d 1116 The Su jurisdictions minority a prohibit of preme imposed Court of Idaho a bifurcation prior bifurcation in context of of the evidence “ procedure place jury because ‘to before a DUI Lugar, offenses. State v. So.2d See indictment, charge in an and to the offer Cir.1999); 14 (La.App. Superior of part evidence on trial as the state’s case Court, 176 Ariz. 863 P.2d 906 previously that the defendant has been con However, we do not believe of victed one more offenses is to run a impose necessary is a mandatory to bifur great prejudice a creating risk of in the 25procedure cation on trial courts a whenever jury minds of no the instruction of the ’ prior defendant alleged contest an wholly wishes Wiggins, court can erase.” 96 Idaho conviction a status of quoting element the 536 P.2d at Edelstein v. Huneke, (1926). offence for which he or being 249 P. she is tried. Wash. Also, Therefore, a defendant who Supreme the of Alaska has been has de charged proof following procedure, requires the an offense that vised bifurcation State, prior of a which it in conviction to described Ross 950 P.2d establish a status (Alaska 1997): App. of charged, element the offense who and trial, alleged seeks to the of jury In a contest existence bifurcated the would first prior conviction, may request that the trial guilty decide whether the defendant was of court driving prior the issue of convic speci- while intoxicated on bifurcate the the date indictment; tion underlying charge in from that jury fied if of and found separate jury proceedings hold guilty, the defendant the same for both mat would then of decide the ters. The of issue the defendant’s decision whether to bifurcate pre- convictions. This solution these would issues is within the discretion parties’ discretion, serve right exercising both trial determi- court. this issues, nation of all while at the trial court hold a hearing same time should for the ("A prosecution degree In the context of a S.E.2d ary trial first court has discretion- murder, discretionary authority sentencing this Court established bi a trial bifurcate guilt mercy. any required furcation on the issue of See case make a where LaRock, Syl. finding mercy”). Pt. as to purpose determining agree I do not whether defen- with the new law formulated majority challenges syllabus point dant has a meritorious claim that concern- ing preclusion regarding legitimacy pri- conviction. If or convictions which constitute status trial court is defendant’s ele- satisfied merit, ments of an offense. challenge pro- then a bifurcated However, ceeding permitted. should be majority The reverses the defendant’s con- should the trial court determine that viction for driving third offense DUI and any defendant’s claim lacks and suf- relevant based, suspended part, license on the evidentiary support, ficient bifurcation should testimony of one of the witnesses unitary be denied and a trial fur- held. We defendant’s automobile accident. Ms. Pinson hearing ther hold that at a to determine the testified, “[cjommon part, sense would challenge legit- merits of a defendant’s you tell it had to be [the defendant who was imacy pursuant Sylla- conviction driving automobile]. The driver’s side Nichols, point 4 bus W.Va. windshield was busted and his head was cut (1999), the defendant has up. And there was no one else around.” presenting satisfactory the burden evi- witness, Mace, agreed Another Mr. with Ms. alleged prior to show that dence convic- majority Pinson. The concludes that in- against tion is invalid as him or her.26 troduction of this evidence could have jury. disagree. affected the verdict of the I procedure bifurcation We believe the out- opinion testimony The of Ms. Pinson and Mr. fundamentally lined this fair to Mace, improper, merely superfluous if parties. all Trial courts will not be forced to testimony. per- the remainder of their hold meritless bifurcated trials. Defendants testimony missible two these witnesses legitimate grounds contesting pri- for was sufficient for the conclude or conviction status not element will the defendant was the driver the automo- challenge forced to through surrender their Therefore, bile when it crashed. I believe stipulation keep in order convic- clear reached its own conclu- Likewise, jury. tion issue from the the State permissible testimony sion based on and was opportunity prove challenge has an that a by impermissible opinion not affected testi- to a conviction is without merit. mony. addition, majority’s I believe the cre-

V. syllabus point ation of in novel law 3 is an rejection precedent unwarranted of recent in CONCLUSION violation of the doctrine of stare decisis. I foregoing, judgment In view of also believe that the new law created this this case is reversed and remanded for a new syllabus point It is bad. seems to me that trial. only plausible explanation underlying Reversed. majority’s reasoning jurors is its belief properly

are unable use evidence explains convictions. This also the ma- belief RISOVICH, II, Judge sitting by FRED jority’s finding jurors in this could case temporary assignment. disregard testimony not and decide participate. Justice SCOTT did not themselves, evidence, for based the defendant was the driver of the automo- MAYNARD, Justice, dissenting: I, one, majority’s bile. do not share the (Filed 2000) Dec. juries. distrust of I plenty dissent this I do ease because not There was this case guilty believe the admission of witness conclude the defendant was Also, Also, testimony charged any constituted reversible error. crimes. error LaRock, imposed persuasion 26. We have the burden of ("The seeking degree persuasion placed a defendant bifurcation in a first burden of on the bifurcation”). prosecution. Syl. moving pt. part, party murder See shoulders of the of evidence harmless. There- admission

fore, should be affirmed. Ac- conviction

cordingly, I dissent. BOGGESS, Appellant,

Robert L.

WORKERS’ COMPENSATION

DIVISION and Union Carbide

Corporation, Appellees. Payne, Appellant,

Robert L. Compensation and Af-

Workers’ Division Inc., Transport, Montgomery

filiated

Tank Lines and Leaman Tank Chemical

Lines, Appellees.

Nos.

Supreme Appeals Virginia.

West April

Submitted July

Decided 2000.

Concurring Opinion of Justice July

Starcher

Concurring Opinion of Chief Justice

Maynard Dec.

Case Details

Case Name: State v. Nichols

Court Name: West Virginia Supreme Court

Date Published: Dec 15, 1999

Citation: 541 S.E.2d 310

Docket Number: 26009

Court Abbreviation: W. Va.