Cases

Defendant appeals the questions of law certified by the circuit court in this action while on remand to the circuit court for a new trial solely on the question of whether defendant should receive a recommendation of mercy. Defendant asks that this Court accept and rule upon these certified questions which, with one exception, were decided adversely to defendant.

CERTIFIED QUESTIONS:  QUESTION 1:  Whether or not Chapter 62 Article 3 section 15 of the West Virginia Code unconstitutionally shifts the burden of persuasion on the issue of mercy to the defendant in the penalty phase of a case? Specifically, the language of the statute indicates; [sic] "if a person indicted for murder pleads guilty to murder of the first degree, he or she shall be punished by imprisonment in the penitentiary for life, and he or she, notwithstanding the provisions of Article Twelve, Chapter Sixty Two of this code, shall not be eligible for parole: Provided, That the jury may, in their discretion, recommend mercy, and if such recommendation is added to their verdict, such person shall be eligible for parole in accordance with the provisions of said Article Twelve. (W.Va. Code 62-3-15).

THE COURT'S ANSWER TO QUESTION 1 is yes, if the language of the statute permits the burden of proving mercy to shift to the Defendant or permits less than a unanimous verdict of the jury on the issue of mercy.

QUESTION 2:  Is it required that the jury, which determined guilt, be the same jury that determines the issue in a first degree murder case given the language of W.Va. Code 62-3-15 that provides: "if the jury find in their verdict that ...[the accused] is guilty of murder in the first degree...the jury may, in their discretion, recommend mercy, and if such recommendation is added to their verdict, such a person shall be eligible for parole[.]"? (Emphasis added).

THE COURT'S ANSWER TO QUESTION 2 is no.

QUESTION 3:  Is the prosecution limited in the mercy stage of a bifurcated trial to the presentation of evidence introduced in the guilt stage of trial and rebuttal of evidence presented by the defendant?

THE COURT'S ANSWER TO QUESTION 3:  This Court finds that the answer to this question depends in part on the determination on how the first two questions are answered. With respect to Question 3, it is this Court's position that since the burden is on the State, (based on the answer to Question 1), the State would be required to present its case first.