I Rest My Case, Take 2: Two West Virginia Cases On Judges Calling Witnesses After Both Sides Have Rested

In yesterday's post, I noted that I wasn't all that thrilled with the idea of a judge being able to use his Rule 614(a) powers to call witnesses after both the prosecution and defense had rested in a criminal case. A big reason for this was my speculation that judges would principally if not exclusively use this power in this situation to try to erase reasonable doubt rather than to try to create reasonable doubt. I still have no idea about whether this is true, but, in this post, I will present two West Virginia cases where this scenario seemed to play out. In one case, a guilty verdict was upheld. In the other, it was thrown out.

The first of these cases was State v. Loveless, 534 S.E.2d 23 (W.Va. 1955). In Loveless, Melvin Loveless was charged with being an accessory before the fact to murder in first degree. Eugene Sherman and James Jones were also allegedly involved in the murder, and,

After the state and the defense had rested, the prosecuting attorney stated that Sherman and Jones, during their confinement in the state penitentiary at Moundsville, had made contradictory statements, and in view of those statements he, acting for the state, did not intend to use them as witnesses. He also stated that he thought perhaps the defense would put them on the stand, and suggested to the court that the jury would want to hear those two witnesses. Thereupon, the court called Sherman as the court's witness and interrogated him at length, propounding at least 131 questions to the witness. He likewise called Jones as a witness and propounded approximately 172 questions to him. After the court had completed the examination in chief of these two witnesses, the right to cross examine them was accorded to the state and the defendant.

After he was convicted, Loveless appealed, and the Supreme Court of West Virginia reversed, finding, inter alia, that

The witnesses were called after the state and the defense had rested their cases. The introduction of these two witnesses at this stage of the trial was untimely and constitutes another valid objection to the action of the trial court. These witnesses should have been called before the state or the defense had concluded the introduction of testimony to sustains ths issue on their respective parts. This record discloses that the trial judge, though having a right to call Sherman and Jones as witnesses, should not have examined them to the extent he did and in the manner he did. Nor should such witnesses and their testimony been used after the state and the defense had rested their case. Such action of the trial court constitutes reversible error.

To me, that seems like a pretty clear statement that judges cannot call witnesses after the defense and the prosecution have rested. Sure, the court also took issue with the breadth and depth of the judge's interrogation of these two witnesses, but it seems to me that the court found that the timing of the questioning was an independent ground for reversal. But in its subsequent opinion in State v. Parr, 534 S.E.2d 23 (W.Va. 2000), the West Virginia Supremes did not take such a hard line approach.

In Parr, Jason Parr was charged with possession with intent to deliver a controlled substance. Specifically, "[o]n the afternoon of October 1, 1998, a confidential informant advised Deputy Michael Brooks that “one of the Parr twins” was selling drugs on McDowell Street in Welch, West Virginia." Deputy Brooks thereafter arrested one of the Parr brothers but, by his admission, did not know which Parr brother he had arrested.

But it was Jason who was prosecuted, with the prosecution not calling Jason's brother, Mark, to testify that he was not the one who was arrested. So, after the prosecution and the defense rested, the judge called to Mark "to establish from Mark that he was not the person arrested by Deputy Brooks and that he did not switch places with" his brother. 

After he was convicted, Parr appealed, claiming, inter alia, that pursuant to Loveless the judge could not call Mark after both sides had rested. The Supreme Court of West Virginia disagreed, concluding that

The decision in Loveless does not preclude trial courts from calling witnesses after the State or defendant has rested. As was noted by Professor Cleckley in his interpretation of Loveless, calling a witness by the trial court "after the parties have rested must be sparingly used." Franklin D. Cleckley, Vol. 1, Handbook on Evidence for West Virginia Lawyers § 6–14(D) (1994). We have previously noted that "[a] trial judge in a criminal case has a right to control the orderly process of a trial and may intervene into the trial process for such purpose, so long as such intervention does not operate to prejudice the defendant's case." Syl. pt. 4, in part, State v. Burton, 163 W.Va. 40, 254 S.E.2d 129 (1979).  

In the instant proceeding, the trial court stated on the record that Mark was called by the court because it "was necessary and appropriate in the interest of justice in this case[.]" Based upon the questioning of Mark, it is clear to this Court that the trial court sought to establish from Mark that he was not the person arrested by Deputy Brooks and that he did not switch places with Mr. Parr. Mark testified that he was not the person arrested by Deputy Brooks. While this Court will not encourage or permit trial court's to routinely call witnesses after the State has rested, we will not impose a blanket prohibition against calling witnesses under such circumstances. See Capital Marine Supply, Inc. v. M/V Roland Thomas, II, 719 F.2d 104, 107 (5th Cir.1983) (finding no error in a situation where the district court called a witness on its own motion after the party had rested its case); State v. Johnson, 183 Ariz. 623, 635, 905 P.2d 1002, 1014 (1995) (allowing trial court to call witness after both parties rested); Syl. pt. 1, State v. Medeiros, 80 Hawai‘i 251, 909 P.2d 579 (1995) ("It is within the trial court's discretion to decide to call its own witnesses after the parties have rested in a criminal case."). People v. Betts, 155 Mich.App. 478, 482, 400 N.W.2d 650, 652 (1986) (permitting trial court to call witness after both parties rested).

I'm not sure that I agree with the court's interpretation of Loveless, but let's put that issue aside for a second. According to the court in Loveless, (1) judges should sparingly call witnesses after the parties have rested; and (2) the calling of such witnesses must not operate to prejudice the defendant's case. Didn't the judge's calling of Mark prejudice Jason's case? Wasn't the judge calling Mark because there was ostensibly reasonable doubt about whether Jason committed the crime and was the person arrested? The judge wasn't simply seeking further clarity; he was seeking to assist the prosecution in erasing reasonable doubt.

-CM