Conviction Reversed

The West Virginia Supreme Court of Appeals reversed a criminal conviction as a result of the prosecutor's impermissible comments concerning the failure of the defendant to testify. The defendant had been charged with having a sexual relationship with a minor. When she became aware of the investigation, she consulted a Maryland state trooper friend and followed his advice to promptly confess to police. The confession was the key evidence at trial. The court concluded:

"Based upon the evidence before the jury, we cannot pronounce with any degree of certainty that the State has proven beyond a reasonable doubt that the prosecutor's comments did not contribute to the jury's verdict. As discussed above, the State presented essentially two elements tending to prove the Appellant's guilt: the testimony of J.G. and the Appellant's own confession. Only the Appellant could have contradicted the contents of her confession. In three distinct statements, the prosecutor specifically referred to the absence of any individual appearing to offer contrary evidence, drawing attention to the fact that the Appellant had not appeared to testify regarding her actions or her confession. Thus, we find reversible error in the State's impermissible comment on the Appellant's failure to testify. We cannot conclude beyond a reasonable doubt that the improper comment did not contribute to the guilty verdict, and we therefore reverse the Appellant's conviction on this basis." (Mike Frisch)