226 W. Va. 375 701 S.E.2d 97

701 S.E.2d 97

STATE of West Virginia ex rel. Warren D. FRANKLIN, Appellant, v. Thomas McBRIDE, Warden, Mount Olive Correctional Complex, Appellee.

No. 34595.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 23, 2009.

Decided Oct. 9, 2009.

*377J.L. Hiekok, Public Defender Services, Charleston, WV, Attorney for Appellant.

Darrell V. McGraw, Jr., Attorney General, Robert D. Goldberg, Assistant Attorney General, Charleston, WV, Attorneys for Appellee.

DAVIS, Justice:

Warren D. Franklin (hereinafter referred to as “Mr. Franklin”) appeals from an order of the Circuit Court of Harrison County denying his petition for habeas corpus relief. Before this Court, Mr. Franklin assigns error as follows: (1) the State knowingly allowed witnesses to lie during his trial; (2) the trial court failed to give an instruction on accomplice testimony; (3) his due process rights were violated when his petition for appeal was denied; and (4) imposition of administrative segregation constituted double jeopardy. After careful review of the parties’ briefs and the record submitted on appeal, and having listened to the arguments of the parties, we affirm.

I.

FACTUAL AND PROCEDURAL HISTORY

On January 1, 1986, prisoners at the former state penitentiary in Moundsville, West Virginia, started a riot.1 Mr. Franklin was an inmate at the prison when the riot erupted.2 During the riot, an inmate by the name of Kent Slie was killed. In August 1986, the State indicted Mr. Franklin and two other inmates for the murder of Mr. Slie.3

Mr. Franklin’s trial began in February 1988. During the trial, the State called two inmate witnesses.4 One inmate witness, Donald Lane, testified to seeing Mr. Franklin and two other inmates dragging and beating Mr. Slie. The State’s second inmate witness, Wallace Jackson, testified to seeing Mr. Franklin and two other inmates stabbing Mr. Slie.

Mr. Franklin did not testify at the trial; however, he called nine inmate witnesses.5 Three of those witnesses — Fred Hamilton, Michael Kirk, and Jimmy Westfall gave direct testimony as to how Mr. Slie was killed. Mr. Hamilton testified that he was the per*378son who killed Mr. Slie, not Mr. Franklin.6 Mr. Kirk and Mr. Westfall testified that they saw Mr. Hamilton kill Mr. Slie.

At the conclusion of all the evidence, the jury returned a verdict finding Mr. Franklin guilty of murder in the first degree. The jury did not recommend mercy. On April 13, 1988, Mr. Franklin was sentenced to life imprisonment without the possibility of parole. Mr. Franklin subsequently filed a petition for appeal with this Court, which was denied.

Mr. Franklin filed a habeas corpus petition directly with this Court on May 18, 1994. This Court remanded the habeas petition to the circuit court for further review. The circuit court subsequently dismissed the habeas petition because Mr. Franklin failed to prosecute the matter. Mr. Franklin filed a second habeas petition with the circuit court in 2006. After counsel was appointed, the habeas petition was amended.

The circuit court helij several evidentiary hearings on the amended habeas petition in 2007 and 2008. During those hearings, Mr. Franklin called two inmate witnesses: Gary Gibson and Charles Peacher.7 Both witnesses testified that Mr. Franklin was not present when Mr. Slie was killed. Further, both witnesses testified that they saw William Snyder kill Mr. Slie. At the conclusion of the evidentiary hearings, the trial court entered an order on April 15, 2008, denying Mr. Franklin’s request for habeas relief. From this ruling, Mr. Franklin now appeals.

II.

STANDARD OF REVIEW

We are called upon to review an order of the circuit court that was entered after an omnibus habeas corpus hearing that included testimony by witnesses. The circuit court’s order set out findings of fact and conclusions of law. We previously have held that “[findings of fact made by a trial court in a post-conviction habeas corpus proceeding will not be set aside or reversed on appeal by this Court unless such findings are clearly wrong.” Syl. pt. 1, State ex rel. Postelwaite v. Bechtold, 158 W.Va. 479, 212 S.E.2d 69 (1975). We have explained more fully that,

[i]n reviewing challenges to the findings and conclusions of the circuit court in a habeas corpus action, we apply a three-prong standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard; the underlying factual findings under a clearly erroneous standard; and questions of law aré subject to a de novo review.

Syl. pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006). With these standards in mind, we now consider the issues presented in this appeal.

III.

DISCUSSION

Mr. Franklin’s amended habeas petition sets out a number of grounds for relief. Howeyer, only four issues asserted below have been raised in this appeal.8 The four grounds for relief presented in this appeal are: (1) the State knowingly allowed witnesses to lie during Mr. Franklin’s trial; (2) the trial court failed to give an instruction on accomplice testimony; (3) Mr. Franklin’s due pi’ocess rights were violated when his petition for appeal was denied; and (4) the imposition of administrative segregation constituted double jeopardy. We will address each issue separately.

A. False Testimony

The first issue raised by Mr. Franklin is that the State knowingly allowed inmate witnesses to testify falsely against him during his trial. It is a basic principle of *379law that “[pjrosecutors have a duty to the court not to knowingly encourage or present false testimony.” State v. Rivera, 210 Ariz. 188, 109 P.3d 83, 89 (2005).9 It has been correctly observed that “[wjhen the State obtains a conviction through the use of evidence that its representatives know to be false, the conviction violates the Due Process Clause of the Fourteenth Amendment.” State v. Wilkerson, 363 N.C. 382, 683 S.E.2d 174, 187 (2009). See also People v. Diaz, 297 Ill.App.3d 362, 231 Ill.Dec. 523, 696 N.E.2d 819, 827 (1998) (“The State’s knowing use of perjured testimony to obtain a criminal conviction constitutes a violation of due process of law.”). This Court has previously held that “[ajlthough it is a violation of due process for the State to convict a defendant based on false evidence, such conviction will not be set aside unless it is shown that the false evidence had a material effect on the jury verdict.” Syl. pt. 2, Matter of Investigation of W. Va. State Police Crime Lab., Serology Din, 190 W.Va. 321, 438 S.E.2d 501 (1993). See also United States v. Bagley, 473 U.S. 667, 678-79, 105 S.Ct. 3375, 3381-82, 87 L.Ed.2d 481 (1985) (“ ‘[A] conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.’ United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976).”).

Although this Court has had occasion to address the issue of the State presenting false testimony, we have never articulated a concise test for analyzing the issue. Other courts that have addressed the issue take the position that, in order to succeed on a claim that the prosecutor presented false testimony at trial, a defendant “must demonstrate (1) that the prosecutor presented false testimony, (2) that the prosecutor knew or should have known it was false, and (3) that there is a reasonable likelihood that the perjured testimony could have affected the verdict.” O’Brien v. United States, 962 A.2d 282, 315 (D.C.2008). See also Jones v. State, 998 So.2d 573, 580 (Fla.2008) (“[T]he defendant must demonstrate that (1) the prosecutor presented or failed to correct false testimony; (2) the prosecutor knew the testimony was false; and (3) the evidence was material.”); Gates v. State, 252 Ga.App. 20, 555 S.E.2d 494, 496 (2001) (similar test); State v. Hebert, 277 Kan. 61, 82 P.3d 470, 487 (2004) (similar test); Howard v. State, 945 So.2d 326, 370 (Miss.2006) (similar test); State v. Allen, 360 N.C. 297, 626 S.E.2d 271, 279 (2006) (similar test); Simpson v. Moore, 367 S.C. 587, 627 S.E.2d 701, 708 (2006) (similar test); Teleguz v. Commonwealth, 273 Va. 458, 643 S.E.2d 708, 729 (2007) (similar test). Based upon the foregoing, we now hold that in order to obtain a new trial on a claim that the prosecutor presented false testimony at trial, a defendant must demonstrate that (1) the prosecutor presented false testimony, (2) the prosecutor knew or should have known the testimony was false,10 and (3) the false *380testimony had a material effect on the jury verdict.11

Turning to the instant case, we find that Mr. Franklin is unable to satisfy the first element of the test which requires that the State presented false testimony. This is the central problem with Mr. Franklin’s argument. Mr. Franklin has failed to produce any evidentiary material establishing that the State’s witnesses testified falsely. The sole basis for Mr. Franklin’s contention that the State provided false testimony is the following, as set out in his brief:

Corrections Officers knew or should have known that [Mr. Franklin] did not commit murder, but they charged him and his brother in an attempt to persuade him to testify against the inmate they thought was guilty. The testimony in the habeas proceedings of other inmates is consistent with [Mr. Franklin’s] insistence that he was not in the vicinity of Kent Slie and did not witness his killing....
The decision to prosecute [Mr.] Franklin was somewhat arbitrary; the State had to decide whether to believe those convicted criminals who accused him, with full knowledge that many (if not all of them) had ample reasons to lie.

The trial court concluded that this purported evidence amounted to “eonclusory statements that the State use[d] perjured testimony to obtain [Mr. Franklin’s] conviction.” We agree.

The best that we are able to determine from Mr. Franklin’s eonclusory allegations is that the State’s two inmate witnesses had reason to lie and that the State knew the witnesses had reason to lie.12 This Court rejected a similar argument in State v. Brown, 210 W.Va. 14, 552 S.E.2d 390 (2001). The defendant in Brown was convicted by a jury of two murders. One of the issues raised in the appeal involved alleged false testimony by the State’s witnesses. The Brown opinion set forth the argument as follows:

[T]he defendant claims that the prosecuting attorney should have known there was a substantial probability that some evidence against the defendant was false, and that this false evidence materially affected the verdict____ The defendant points to the low character and incentive to lie of the State’s witnesses, and appears to argue that this should have put the prosecutor on notice that these witnesses were not telling the truth.

Brown, 210 W.Va. at 27, 552 S.E.2d at 403. We rejected the defendant’s argument in Brown. In doing so, we stated:

We are not convinced by the defendant’s argument. Not only is there no evidence in the record which supports the claim that the prosecutor knew or should have known that evidence was false, there is no proof that any of the State’s evidence was actually false. Rather, all that the defendant can demonstrate is that [the] State’s witnesses were disreputable persons who had *381reasons to lie. The witnesses’ characters and motives were adduced at trial and argued at length to the jury.
... It was the role of the jury to weigh the evidence and make credibility assessments after it observed the witnesses and heard their testimony. The jury made its determination, and this Court will not second guess it simply because we may have assessed the credibility of the witnesses differently.

Brown, 210 W.Va. at 27, 552 S.E.2d at 403. See also State v. Rivera, 210 Ariz. 188, 109 P.3d 83, 89 (2005) (“Absent a showing that the prosecution was aware of any false testimony, the credibility of witnesses is for the jury to determine.”).

In the instant proceeding, Mr. Franklin has done no more than argue, like the defendant in Brown, that the State’s witnesses had motives to lie. Such an assertion is legally insufficient to sustain a claim that the State presented false testimony. Therefore, we find no error in the trial court’s rejection of this assignment of error.13

B. Instruction on Accomplice Testimony

The next issue raised by Mr. Franklin concerns the trial court’s failure to give an accomplice jury instruction. Mr. Franklin contends that under our decision in State v. Humphreys, 128 W.Va. 370, 36 S.E.2d 469 (1945), the trial court had a duty to instruct the jury on how it should receive testimony by an accomplice. This Court held the following in syllabus point 1 of Humphreys:

Conviction for a crime may be had upon the uncorroborated testimony of an accomplice; but in such case the testimony must be received with caution and the jury should, upon request, be so instructed.

It has been correctly observed that “in order to be an accomplice, the witness must have played a knowing role in the crime — the witness’ mere presence at the scene is not sufficient.” State v. Pendleton, 759 N.W.2d 900, 907 (Minn.2009). The State points out that, during Mr. Franklin’s trial, it did not call an accomplice to testify. It called two inmate witnesses who were near the scene of the crime. Mr. Franklin has not disputed this fact. Instead, Mr. Franklin simply argues that “[t]he inmates who testified on behalf of the State were unreliable and the jury was not instructed about the weight they should give such testimony.” The decision in Humphreys does not require a cautionary instruction be given for mere witnesses to a crime. A Humphreys instruction is required when an accomplice to the crime testifies for the State.14 Consequently, the circuit court’s summary rejection of this issue in its habeas order was correct.

C. Denial of Petition for Appeal

The next issue raised by Mr. Franklin involves this Court’s denial of his petition for appeal of his conviction. Mr. Franklin contends that, under the due process clauses of the state and federal constitutions, he was entitled to a direct appeal on the merits of his case.

Mr. Franklin asserts, without citation to any authority, that the highest appellate court in “almost every other, state” provides for automatic review of a sentence of life imprisonment without parole. This assertion is simply wrong. In our review of state laws, *382we have found that, while a large minority of state high courts grant an appeal of right in criminal cases,15 the majority of state high courts provide only for discretionary review of criminal convictions, except for eases involving a sentence of death.16

Without acknowledging the fact in his brief, Mr. Franklin is asking this Court to overrule our decision in Billotti v. Dodrill, 183 W.Va. 48, 394 S.E.2d 32 (1990).17 The decision in Billotti involved a habeas proceeding wherein one of the arguments raised by the defendant was “that it is a violation of due process of law to deny an individual an automatic right to full appellate review when the individual has been convicted of first-degree murder and sentenced to life in prison with no possibility of parole.” Billotti 183 W.Va. at 52, 394 S.E.2d at 36. We rejected the argument and held the following in Syllabus point 4 of Billotti:

West Virginia does not grant a criminal defendant a first appeal of right, either statutorily or constitutionally. However, our discretionary procedure of either granting or denying a final full appellate review of a conviction does not violate a criminal defendant’s guarantee of due process and equal protection of the law.

Subsequent to the decision in Billotti the defendant filed a federal habeas corpus petition alleging discretionary appellate review of his case violated due process principles. The issue was taken up by the Fourth Circuit Court of Appeals in Billotti v. Legursky, 975 F.2d 113 (4th Cir.1992), cert. denied, 507 U.S. 984, 113 S.Ct. 1578, 123 L.Ed.2d 146 (1993). The Fourth Circuit rejected the argument and, in doing so, made the following observations:

It is plain that West Virginia has afforded Billotti an adequate opportunity to challenge the alleged errors in his trial. The Fourteenth Amendment does not authorize the federal courts to micromanage state criminal justice systems. In our federal system, the states are allowed to structure their systems of criminal justice as they see fit, as long as their systems satisfy the basic demands of due process. There is often no one best way of doing things....
Indeed, petitioner has not explained exactly how an appeal as of right would have increased the accuracy of the determination that he received. In many jurisdictions, appeal as of right is conducted without oral argument, with screening by staff *383attorneys, or with limited briefing. We cannot see how such streamlined systems deliver a more meaningful opportunity to be heard than does West Virginia’s system of discretionary appeals. West Virginia allowed Billotti to communicate his claims of legal error to the reviewing tribunal, accompanied by a record of the proceedings below necessary to evaluate his arguments. We believe that due process requires no more.

Billotti, 975 F.2d at 116-17 (internal citations omitted).

Mr. Franklin has not presented any valid basis for revisiting our ruling in Billotti and the well-reasoned analysis by the Fourth Circuit in Billotti v. Legursky. Therefore, we reject his contention that due process required automatic review of his initial petition for appeal. See State v. Legg, 151 W.Va. 401, 404-05, 151 S.E.2d 215, 218 (1966) (“One convicted of a criminal offense is not entitled to a writ of error as a matter of right. The Constitution and statutes create an absolute right merely to apply for a writ of error.”).

D. Double Jeopardy

The final argument raised by Mr. Franklin involves his apparent placement in administrative segregation while in prison. The best that we are able to discern from Mr. Fi’anklin’s brief is that placement in administx’ative segi’egation x’esulted from his having been found guilty of killing Mr. Slie and, as such, violated double jeopardy.18 The initial problem we have with this argument is that the record in this case does not contain any evidence of the basis for Mr. Franklin being placed in administrative segi’egation. His ai’gument contains only his self-seiwing assei’tions. Fux’ther, it appears that Mr. Fi’anklin has challenged the imposition of administrative segregation in another proceeding that is pending in a lower coui't. Insofar as the recoi’d in this case is inadequate to detei’mine the actual basis for Mr. Franklin having been placed on administrative segregation, we will assume, for the sake of argument, that the sanction was imposed because Mr. Franklin violated prison rules by murdering an inmate.

We begin by noting that the decisions of this Court have held that the double jeopardy clauses of the state and federal constitutions impose the same protections:

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution consists of thi’ee separate constitutional protections. It px’oteets against a second px-osecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.

Syl. pt. 1, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992).

The Double Jeopardy Clause in Article Ill, Section 5 of the West Virginia Constitution, provides immunity from further prosecution whei’e a court having jurisdiction has acquitted the accused. It protects against a second prosecution for the same offense after conviction. It also prohibits multiple punishments for the same offense.

Syl. pt. 1, Conner v. Griffith, 160 W.Va. 680, 238 S.E.2d 529 (1977).

It has been recognized that “[vjii’tually evei’y fedei’al circuit coui’t of appeals has held that prison disciplinary proceedings do not violate the double jeopardy provisions of the Fifth Amendment of the United States Constitution.” State v. Kell, 61 P.3d 1019, 1037 (Utah 2002) (citing United States v. Mayes, 158 F.3d 1215, 1220 (11th Cir.1998); United States v. Brown, 59 F.3d 102, 105 (9th Cir.1995); United States v. Hernandez-Fundora, 58 F.3d 802, 806-08 (2d Cir.1995); Garrity v. Fiedler, 41 F.3d 1150, 1152 (7th Cir.1994); United States v. Newby, 11 F.3d 1143, 1144-45 (3d Cir.1993); United States v. *384Rising, 867 F.2d 1255, 1259 (10th Cir.1989); Kerns v. Parratt, 672 F.2d 690, 691-92 (8th Cir.1982); Fano v. Meachum, 520 F.2d 374, 376 n. 1 (1st Cir.1975); United States v. Lepiscopo, 429 F.2d 258, 261 (5th Cir.1970); Hamrick v. Peyton, 349 F.2d 370, 372 (4th Cir.1965); Gibson v. United States, 161 F.2d 973, 974 (6th Cir.1947)). This Court was called upon in Conley v. Dingess, 162 W.Va. 414, 250 S.E.2d 136 (1978), overruled on other grounds by State ex rel. Faircloth v. Catlett, 165 W.Va. 179, 267 S.E.2d 736 (1980), to address the issue of double jeopardy and prison discipline.

In Conley, the defendant escaped from custody while awaiting resentencing. After the defendant was captured, prison authorities found that he violated prison rules by escaping and, therefore, punished him with 120 days of administrative segregation. The State subsequently prosecuted and convicted the defendant for the crime of escape. The defendant filed a petition for habeas corpus relief directly with this Court. In that petition, the defendant argued that “the sentence for escape and the administrative discipline imposed therefor constitute double jeopardy.” Conley, 162 W.Va. at 415, 250 S.E.2d at 137. We rejected the argument for the following reasons:

The doctrine of double jeopardy clearly contemplates two prosecutions for the same offense before a court of competent jurisdiction. It has strict application to criminal prosecution only and is not applicable to civil actions. Disciplinary proceedings such as the one imposed upon this petitioner are civil rather than criminal in nature and do not subject the recipient of such discipline to double jeopardy.

Conley, 162 W.Va. at 417, 250 S.E.2d at 138. See also De Grijze v. Selsky, 305 A.D.2d 761, 759 N.Y.S.2d 570, 571 (2003) (“[Sanctions imposed in the context of prison disciplinary proceedings ‘do not constitute criminal punishment triggering double jeopardy protections.’ People v. Vasquez, 89 N.Y.2d 521, 532, 655 N.Y.S.2d 870, 678 N.E.2d 482 (1997).”); In re Goulsby, 120 Wash.App. 223, 84 P.3d 922, 925 (2004) (“Prison disciplinary hearings are not criminal prosecutions, and the full panoply of rights due a criminal defendant does not apply. The double jeopardy clause protects against multiple criminal punishments for the same offense. It therefore does not pertain to prison disciplinary hearings that are in the nature of remedial, civil proceedings.”).

In view of the decision in Conley and other authorities, we now hold that prison disciplinary action against an inmate, for conduct for which he or she was criminally prosecuted, does not violate the Double Jeopardy Clauses of Article III, Section 5 of the West Virginia Constitution and the Fifth Amendment to the United States Constitution.

Assuming, as alleged by Mr. Franklin, that prison officials placed him on administrative segregation for killing Mr. Slie, such placement in and of itself did not violate double jeopardy principles. We therefore find no error in the trial court’s rejection of this issue.

IV.

CONCLUSION

Based upon the foregoing, we affirm the circuit court’s order denying Mr. Franklin habeas corpus relief.

Affirmed.

State ex rel. Franklin v. McBride
226 W. Va. 375 701 S.E.2d 97

Case Details

Name
State ex rel. Franklin v. McBride
Decision Date
Oct 9, 2009
Citations

226 W. Va. 375

701 S.E.2d 97

Jurisdiction
West Virginia

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