State Ex Rel. Rasnake v. Narick

227 S.E.2d 203, 159 W. Va. 542, 1976 W. Va. LEXIS 195

• Court: West Virginia Supreme Court
• Decided: April 6, 1976
• Docket: 13669, 13670
• Status: Published

Opinions

Berry, Chief Justice:

These two original proceedings in prohibition involve multiple challenges to the constitutionality of West Virginia’s rape statute, W. Va. Code, 61-2-15, as amended. Because the cases involve substantially identical matters, this Court, on joint motion of the parties, consolidated the cases for briefing and argument and they will be decided together.

William Clifford Rasnake was indicted by a grand jury of Marshall County, West Virginia, on July 8, 1975, on a charge of forcible rape. Rickey Lee Schnelle was also indicted for forcible rape by a grand jury of Marshall County, West Virginia on November 12, 1975. Both criminal prosecutions are still in preliminary stages, neither petitioner having entered a plea to the charges against him.

The important language in the statute under attack, W. Va. Code, 61-2-15, as amended, provides:

“If any male person carnally knows a female person, not his wife, against her will by force . .. he shall be guilty of a felony, and, upon conviction, shall be punished with confinement in the penitentiary for life, and he, notwithstanding the provisions of Article 12 [§62-12-1 et seq.], 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 punished with confinement in the penitentiary for not less than ten nor more than twenty years: Provided, however, that if the accused pleads guilty, the court, may, in its discretion, provide that such person shall be punished with confinement in the penitentiary for not less than ten nor more than twenty years.” [emphasis supplied.]

The repetitious multiple challenges made to the statute can be consolidated into three basic issues: (1) whether W. Va. Code, 61-2-15 as amended, is invalid in that it encourages an accused to plead guilty in violation of the Fifth Amendment to the United States Constitution, and concomitantly that it invites the defendant to relinquish his constitutional right to a trial by jury as guaranteed by the Sixth Amendment to the Constitution of the United States; (2) whether the statute is invalid in that it provides for a unitary trial to determine the issue of guilt as well as the possible sentence upon a finding of guilt, thus depriving the accused of his right to an impartial jury under the provisions of the Sixth Amendment to the United States Constitution; and (3) whether the statute is invalid in that it grants to the judge or jury the authority to impose a life sentence, or discretionarily, a sentence of from ten to twenty years imprisonment, without sufficient standards to guide in the discretionary exercise in violation of the equal protection and due process clauses of the Fourteenth Amendment to the United States Constitution and in violation of the prohibition against cruel and unusual punishment of the Eighth Amendment to the United States Constitution.

I

With regard to the first issue, the petitioners contend that the statute in question encourages them to plead guilty in order to avoid a potentially more harsh sentence which may result from a jury trial. The petitioners rely heavily on the case of United States v. Jackson, 390 U.S. 570, 20 L.Ed.2d 138, 88 S.Ct. 1209 (1968), in support of their argument.

In Jackson, the United States Supreme Court invalidated a provision of the Federal Kidnapping Act which made the offense punishable by death if recommended by the jury, but provided no procedure for the imposition of the death penalty by the court where the accused waived the right to a jury trial and pleaded guilty. The Court ruled that the statute imposed an impermissible burden upon the defendant’s exercise of his Fifth Amendment right to not plead guilty and his Sixth Amendment right to a jury trial.

The same result was reached in Spillers v. State, 84 Nev. 23, 436 P.2d 18 (1968), in which the Supreme Court of Nevada found that a statute similar to the Federal Kidnapping Act was unconstitutional. In that case, the Nevada statute allowed a jury to impose the death penalty if a defendant were found guilty of rape by violence but limited the trial court’s power to punish to a term of imprisonment of not less than twenty years.

Obviously, if the law under scrutiny here possessed the same characteristics as the statutes struck down in Jackson and Spillers, its constitutionality would be in serious doubt. However, the West Virginia statute is entirely different from the federal kidnapping statute and the Nevada rape statute in that it vests the same discretion in the trial court as it does in the jury. If the defendant pleads not guilty and the jury finds him guilty and goes no further, a life sentence will be imposed. If it recommends mercy, the sentence of ten to twenty years will be imposed. On the other hand, if the defendant pleads guilty, the judge may either impose a life sentence or, in his discretion, show mercy and impose a sentence of ten to twenty years. With virtually identical alternatives, the statute encourages neither a guilty plea nor the relinquishment of a jury trial.

Both state and federal courts have found no constitutional flaw in statutes vesting identical discretion in both the court and the jury. For example, it was held in People v. Bradley, 130 Ill. App.2d 1061, 264 N.Ed.2d 892 (1970) that a defendant was not coerced into surrendering his right to a trial by jury and was not encouraged to plead guilty to a charge of voluntary manslaughter because the death penalty might be invoked on the murder charge on the jury’s recommendation, since the judge sitting without a jury in a murder case could also impose the death sentence.

In Commonwealth v. Hargrove, 434 Pa. 393, 254 A.2d 22 (1969), the Supreme Court of Pennsylvania held that a plea of guilty to a murder charge was not unconstitutionally encouraged, notwithstanding the defendant’s claim that he had been induced to plead guilty because of his belief that if he were to stand trial there was a greater likelihood that he would receive the death sentence. This decision was based on the fact that under the Pennsylvania statute the defendant faced the same possibility of a death sentence whether he pleaded guilty or not guilty since both the judge and the jury had the authority to impose the death sentence. In discussing the Jackson case, the Pennsylvania Court stated:

“It is a clear cut choice between avoiding and risking the death penalty which the Supreme Court found to be such an overbearing one in Jackson. Here no such decision was placed before the defendant. At worst the defendant had to make a choice between probabilities, neither of which carried any guarantee that the death penalty would not ultimately be imposed .... [W]e do not believe that the Pennsylvania procedure suffers from the same constitutional infirmities as that struck down in Jackson.” [emphasis in original.]

Similarly, in Sims v. Eyman, 405 F.2d 439 (9th Cir. 1969), the court held:

“Under Arizona law either the judge or the jury can impose the death penalty so that a defendant must risk death regardless of whether he pleads guilty or chooses a jury trial. The ‘burden’ petitioner complains of is simply that slightly different evidence may be introduced before a judge, on a guilty plea, than before a jury. This does not constitute the type of burden on the assertion of constitutional rights which Jackson would forbid.” Id. at 446.

The petitioners suggest that, as a practical matter, they are under a subtle compulsion to plead guilty to obtain a plea bargain which would enhance the probability of their obtaining the mitigated sentence. We note that there are uncertainties in every criminal prosecution and trial, many of which can be reduced to a greater degree of probability by engaging in plea bargaining. The mere fact that an accused pleads guilty with the belief that he may receive a mitigated sentence, without more, does not mean that the plea was unconstitutionally coerced or encouraged. Commonwealth v. Morrow, 363 Mass. 601, 296 N.E.2d 468 (1973). See also, Brady v. United States, 397 U.S. 742, 25 L.Ed.2d 747, 90 S.Ct. 1463 (1970).

We are compelled to the conclusion that the petitioners’ first attack on the statute is without foundation.

II

The petitioners argue that by virtue of the fact that the statute allows a single jury to determine both the issue of guilt and degree of punishment, that their right to a fair and impartial jury is violated. This contention is founded on the assertion that an accused must either take the stand and give testimony in an attempt to mitigate the sentence, thereby subjecting himself to cross-examination on matters which may be prejudicial to his defense to the crime with which he is charged, or remain silent and run the risk of inferences that may be drawn from his failure to testify. The Supreme Court of the United States has held on more than one occasion that a unitary trial on multiple issues is not unconstitutional. See, McGautha v. California, 402 U.S. 183, 28 L.Ed.2d 711, 91 S.Ct. 1454 (1971); Spencer v. Texas, 385 U.S. 554, 17 L.Ed.2d 606, 87 S.Ct. 648 (1967).

In Spencer, the Supreme Court examined a Texas procedure which provided a unitary trial on both the substantive offense and a recidivism charge. The Court observed that although a two-stage jury trial or some other alternative might have been used instead of the procedures established, those procedures, in view of the limiting instructions given to the jurors, were not an unconstitutional means of serving the valid state purpose. In McGautha, the Supreme Court upheld a unitary trial procedure in which the jury determined both issues of guilt and punishment. The court specifically rejected the same arguments as are advanced by the petitioners here. Similarly, the Supreme Court of Virginia, in Johnson v. Commonwealth, 208 Va. 481, 158 S.E.2d 725 (1968), ruled that a defendant was not denied due process by a single verdict procedure in which issues of guilt and punishment were submitted simultaneously to a jury.

While many courts have indicated sympathy for the concept of a bifurcated trial procedure in some circumstances, the authorities have been uniform in holding that such a procedure is not constitutionally mandated. Two-part trials are uncommon in our jurisprudence although the legislature has established a bifurcated trial system for cases of recidivism in this State. See, W. Va. Code, 61-11-19. So, if there is to be any change in the jury procedure in rape cases or any other case in which the jury is presently charged with the responsibility of determining guilt and punishment, the change is one of policy which must be left to the legislature. Spencer v. Texas, supra; Johnson v. Commonwealth, supra.

Ill

The third and final issue raised in the case at bar relates to the assertion that the West Virginia rape statute is violative of due process because it permits either the judge or jury to impose a life sentence or in the alternative a sentence of ten to twenty years without establishing some standards to guide the discretion of either the court or jury in their action.

The Supreme Court of the United States in McGautha v. California, supra, specifically held that the absence of standards to determine whether the death penalty or a lesser penalty should be imposed did not violate due process. The Court stated that to express standards in language that could be fairly understood and applied appeared to be a task beyond present human ability; that no list of variables or circumstances to be considered would ever be complete and that the variety of cases and facets of each case would make general standards either meaningless or a statement that no jury would need.

The decision of the Supreme Court in Furman v. Georgia, 408 U.S. 238, 33 L.Ed.2d 346, 92 S.Ct. 2726 (1972), has caused some confusion relative to the continued vitality of the McGautha case. In a brief per curiam opinion in Furman, the Court held that the imposition of the death penalty in the three cases before it constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The reasoning behind this decision can only be gleaned, by inference, from the nine separate opinions of the Justices. A reading of those separate opinions seems to indicate that the majority ruling was based, at least in part, on the rationale that the discriminatory imposition of the death penalty on the members of certain groups was constitutionally offensive. Apparently it was the abuse of discretion rather than discretion itself which was condemned. The decision in Furman in no way overruled the rationale of the McGautha case with regard to the necessity of standards to govern the exercise of discretion. In any event, no evidence has been introduced in the instant cases of any discriminatory conduct by West Virginia juries in the imposition of a life sentence for forcible rape and, therefore, the logic in the Furman case is inapplicable.

In addition to the Supreme Court’s decision in McGautha, many courts throughout the country have held that the lack of standards for the imposition of penalties does not constitute a violation of a constitutional right. See, e.g., Johnson v. Commonwealth, supra; Sims v. Eyman, supra; In Re Anderson, 69 Cal.2d 613, 447 P.2d 117 (1968). It has also been held that the imposition of a life sentence for the offense of rape does not constitute cruel and unusual punishment per se. Commonwealth v. Morrow, supra; Martin v. Commonwealth, 493 S.W.2d 714 (Ky. 1973).

For the reasons stated herein, the writs prayed for are denied.

Writs denied.