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West Virginia Supreme Court Announces in the Absence of a Deadline, Trial Court Must Permit Defendant to Stipule to Prior Conviction During Trial

by Douglas Ankney

The Supreme Court of Appeals of West Virginia held that, where a trial court has not set a deadline for submitting a stipulation to a prior conviction, the court must permit a defendant to so stipulate when (1) that prior conviction is an essential element of a current crime charged and (2) the purpose of the stipulation is to prevent the State from informing the jury of the name and nature of the prior conviction.

In relation to the shooting death of Troy Williams, Tremaine Lamar Jackson was tried and convicted by jury of (1) first-degree murder, (2) use or presentation of a firearm during the commission of first-degree murder, (3) being a felon in possession of a firearm, and (4) use or presentation of a firearm during the commission of being a felon in possession of a firearm. He was sentenced to an aggregate term of life with mercy and 30 years running consecutively.

During the trial, the State sought to elicit testimony from a detective about Jackson’s prior 2017 conviction for voluntary manslaughter. Jackson objected. The State explained that the evidence was being offered to “establish the status element necessary to prove that Mr. Jackson was a felon in possession of a firearm.” The State also revealed “its intent to introduce the 2017 sentencing order” from the manslaughter conviction, which “identified the offense and noted the use of a firearm.”

Jackson then offered to stipulate that he had a prior felony conviction. The State argued that accepting the stipulation during trial would be unfair because Jackson had refused to stipulate pretrial, requiring the State to prepare its case accordingly. The court overruled Jackson’s objection. The detective informed the jury that Jackson “had a prior conviction for voluntary manslaughter.” The sentencing order for the manslaughter conviction was entered into evidence and examined by the jury.

After Jackson was sentenced, he timely appealed. He argued that the trial court “erred by refusing his stipulation to a prior felony conviction as a status element of the offense of being a felon in possession of a firearm.” The State argued the trial court did not err because Jackson’s stipulation was made during trial and was not reduced to writing, signed, and filed with the circuit court clerk as required by West Virginia Trial Court Rules, Rule 42.05 (“Rule 42.05”).

The Court stated “[w]hen a prior conviction constitutes a status element of an offense, a defendant may offer to stipulate to such prior conviction. If a defendant makes an offer to stipulate to a prior conviction that is a status element of an offense, the trial court must permit such stipulation and preclude the state from presenting any evidence to the jury regarding the stipulated prior conviction. When such stipulation is made, the record must reflect a colloquy between the trial court, the defendant, defense counsel and the state indicating precisely the stipulation and illustrating that the stipulation was made voluntarily and knowingly by the defendant.” State v. Nichols, 541 S.E.2d 310 (W. Va. 1999) (cleaned up).

The Court explained the “fact that a defendant has been previously convicted of a crime is a status element when: (1) his/her prior conviction makes otherwise legal conduct illegal, meaning that the prior conviction is an element of the current crime charged (e.g., a felon possessing a firearm); or (2) the prior conviction is merely a penalty enhancer, meaning it enhances the penalty for conduct that is itself illegal even without the defendant’s prior convictions (e.g., third-offense driving under the influence).” State v. Herbert, 767 S.E.2d 471 (W. Va. 2014).

The Court also noted that Rule 42.05 provides “[u]nless otherwise ordered, stipulations must be in writing, signed by the parties making them or their counsel, and promptly filed with the clerk.” While the word “must” is mandatory language, Rule 42.05 acknowledges the trial court’s discretion with the phrase “unless otherwise ordered.”

In determining when or whether a circuit court must exercise its discretion to accept a last-minute stipulation that does not comply with Rule 42.05, the Court considered the rationale behind Nichols, which “centered on addressing the risk of a conviction tainted by a jury’s improper consideration of a prior conviction for similar conduct.” In Nichols, the Supreme Court explained: “Evidence of a prior conviction may lead a jury to convict a defendant for crimes other than the charged crime, convict because a bad person deserves punishment rather than based on the evidence presented, or convict thinking that an erroneous conviction is not so serious because the defendant already has a criminal record.”

And in the present case, the jury was informed of the name and nature of the prior conviction (involuntary manslaughter committed with a firearm) while Jackson’s current charges included murder with a firearm. “When a defendant is charged with a crime in which a prior conviction is an essential element of the current crime charged (e.g., being a felon in possession of a firearm) … and stipulates to having been previously convicted of a crime, the trial court shall inform the jury that the defendant stipulated to the prior conviction. The jury shall be informed that the defendant was convicted of a prior felony or misdemeanor, but shall otherwise not be informed of the name or nature of the defendant’s prior convictions.” Herbert.

“[T]here can be no question that evidence of the name or nature of the prior offense generally carries a risk of unfair prejudice to the defendant.… Where a prior conviction was for a gun crime is one similar to other charges pending in a case the risk of unfair prejudice would be especially obvious” Old Chief v. United States, 519 U.S. 172 (1997).

The Court determined that the unfair prejudice to Jackson, combined with the observation that Rule 42.05 imposed no specific time frame for stipulations, led to the conclusion that the trial court abused its discretion in refusing Jackson’s stipulation. The Court instructed that “the better practice is for a defendant to timely enter into a stipulation that complies with the writing, signing, and filing requirements” of Rule 42.05, and the trial court exercise its authority to establish a deadline for submission of stipulations in compliance with Rule 42.05.

The Court held “that a trial court may establish and enforce a pretrial deadline for producing stipulations in criminal proceedings. However, when no deadline has been set, a trial court must permit a defendant to stipulate to a prior conviction during trial when (1) that prior conviction is an essential element of a current crime charged, and (2) the purpose of the stipulation is to prevent the State from informing the jury of the name and nature of the prior conviction.”

Accordingly, the Court reversed the trial court’s sentencing order and remanded for a new trial consistent with the Court’s opinion. See: State v. Jackson, 889 S.E.2d 77 (W. Va. 2023).  

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