          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                   January 2015 Term
                                   _______________                        FILED
                                                                       April 9, 2015
                                                                       released at 3:00 p.m.
                                     No. 14-0245                     RORY L. PERRY II, CLERK
                                                                   SUPREME COURT OF APPEALS
                                   _______________                      OF WEST VIRGINIA




                     DAVID BALLARD, WARDEN, ex rel.

                   MOUNT OLIVE CORRECTIONAL CENTER

                        Respondent Below, Petitioner


                                          v.

                            PATRICK J. MECKLING,

                           Petitioner Below, Respondent


      ____________________________________________________________

                   Appeal from the Circuit Court of Ohio County

                       The Honorable David J. Sims, Judge

                            Civil Action No. 09-C-163


                               REVERSED

      ____________________________________________________________

                             Submitted: March 4, 2015

                               Filed: April 9, 2015




Scott R. Smith, Esq.                           Brent A. Clyburn, Esq.
Ohio County Prosecuting Attorney               Law Office of Brent A. Clyburn
Brian A. Ghaphery, Esq.                        Wheeling, West Virginia
Assistant Ohio County                          Counsel for the Respondent
Prosecuting Attorney
Wheeling, West Virginia
Counsel for the Petitioner


JUSTICE KETCHUM delivered the Opinion of the Court.
                              SYLLABUS BY THE COURT


              1.     “In reviewing challenges to the findings and conclusions of the

circuit court in a habeas corpus action, we apply a three-prong standard of review. We

review the final order and the ultimate disposition under an abuse of discretion standard;

the underlying factual findings under a clearly erroneous standard; and questions of law

are subject to a de novo review.” Syllabus Point 1, Mathena v. Haines, 219 W.Va. 417,

633 S.E.2d 771 (2006).



              2.     “Ordinarily, it is not reversible error nor grounds for a mistrial to

proceed to try a criminal defendant with a jury panel that may have seen him in handcuffs

for a brief period of time prior to trial.” Syllabus Point 2, State v. Linkous, 177 W.Va.

621, 355 S.E.2d 410 (1987).



              3.     Ordinarily, it is not reversible error nor grounds for a mistrial to

continue to try a criminal defendant after one or more jurors may have seen the defendant

in handcuffs for a brief period of time after the trial has begun.
Justice Ketchum:

              Petitioner Warden David Ballard (“Warden Ballard”) appeals the February

4, 2014, order of the Circuit Court of Ohio County that granted Respondent Patrick J.

Meckling’s (“Mr. Meckling”) writ of habeas corpus petition. Following a jury trial, Mr.

Meckling was convicted of one felony count of abduction with intent to defile and one

misdemeanor count of battery. In his petition for a writ of habeas corpus, Mr. Meckling

argued that he did not receive a fair trial because he was briefly placed in handcuffs in

view of some members of the jury. The circuit court agreed with Mr. Meckling, granted

the requested writ of habeas corpus, and vacated his convictions. After entry of the

circuit court’s order, Warden Ballard filed the present appeal with this Court.

              Upon review, we reverse the circuit court’s February 4, 2014, order

granting Mr. Meckling’s habeas corpus petition.



                                             I.

                A. FACTUAL AND PROCEDURAL BACKGROUND

              In September 2007, Mr. Meckling was indicted by the Ohio County grand

jury on four counts: (1) kidnapping in violation of W.Va. Code § 61-2-14a [1999]; (2)

abduction with intent to defile in violation of W.Va. Code § 61-2-14 [1984]; (3)

malicious assault in violation of W.Va. Code § 61-2-9 [2004]; and (4) “driving while

revoked for driving under the influence of alcohol, second offense” in violation of W.Va.

Code § 17B-4-3 [2004].       This indictment resulted from an incident in which Mr.


                                             1

Meckling allegedly assaulted and kidnapped his longtime girlfriend (“alleged victim”)

outside of a bar and allegedly forced her to give him money to buy crack cocaine.

              On September 19, 2007, Mr. Meckling entered a “not guilty” plea to all

four counts in the indictment and was released after posting a $50,000.00 surety bond.

The bond stated that Mr. Meckling was not to have any contact with the alleged victim.

Four days before Mr. Meckling’s trial was scheduled to begin, the State of West Virginia

filed a motion to revoke Mr. Meckling’s bond after discovering that he had contacted the

alleged victim. The circuit court granted the State’s motion and issued a warrant for Mr.

Meckling’s arrest. However, Mr. Meckling was not immediately apprehended and had

not been taken into custody prior to appearing for his trial on October 29, 2007.

              Mr. Meckling was not taken into custody upon appearing for his trial on the

morning of October 29, 2007. Instead, a jury was seated, both sides made opening

statements and the alleged victim testified. Following the alleged victim’s testimony, the

court was preparing to take its lunch recess. The court excused the jurors for lunch and

then ordered that Mr. Meckling be taken into custody for violating his bond.          Mr.

Meckling was then placed in handcuffs and taken into custody.

              After the lunch recess, Mr. Meckling’s lawyer moved for a mistrial, arguing

that Mr. Meckling was prejudiced by being placed in handcuffs and taken into custody in

front of the jury. The circuit court denied this motion, stating, “He’s in custody because

he violated the terms of his bond. Period. That could happen. There’s no, no other way

of handling that matter.”


                                             2

                It is unclear how many jurors witnessed Mr. Meckling being placed in

handcuffs. The circuit court’s order granting Mr. Meckling’s habeas corpus petition

states that Mr. Meckling was “handcuffed and taken into custody in the presence of at

least some of the jurors.” The circuit court’s order does not cite to testimony from Mr.

Meckling or any other witness who testified that the jury saw him being placed in

handcuffs. Instead, the circuit court’s order cites the portion of the trial transcript in

which Mr. Meckling’s trial lawyer moved for a mistrial and stated that Mr. Meckling had

been “taken into custody and . . . handcuffed in front of the jury[.]” At the time Mr.

Meckling’s trial lawyer moved for a mistrial, neither counsel for the State, nor the trial

judge attempted to refute the statement that Mr. Meckling had been “handcuffed in front

of the jury.”     In addition to this statement from Mr. Meckling’s trial lawyer, Mr.

Meckling submitted an affidavit from one of the jurors who stated, “I do recall observing,

during a break in trial proceedings . . . [Mr.] Meckling being shackled and taken into

custody.” Mr. Meckling also submitted an affidavit from his trial lawyer who stated, “I

do recall observing Mr. Meckling being shackled and taken into custody . . . while in the

presence of the jury.”1




       1
         While it is unclear how many of the jurors witnessed Mr. Meckling being placed
in handcuffs, Warden Ballard concedes in his brief to this Court that “it appears that at
least one petit juror witnessed [Mr. Meckling] being placed in handcuffs.”



                                            3

              Mr. Meckling was not placed in handcuffs following the lunch recess and

was not restrained in any manner for the duration of his trial. At the conclusion of his

trial, the jury found Mr. Meckling guilty of the felony offense of abduction with intent to

defile and of the misdemeanor offense of battery, a lesser included offense of malicious

assault.2 After the jury returned its verdict finding Mr. Meckling guilty on these two

counts, the State filed a recidivist information charging Mr. Meckling with being the

same person who had previously been convicted of two felony offenses. Mr. Meckling

admitted that he was the same person who had been convicted of these previous felony

offenses. The circuit court sentenced Mr. Meckling to a term of imprisonment for life.3

              Mr. Meckling’s initial appeal to this Court was refused by order entered on

May 22, 2008.4 After this Court refused his petition for appeal, Mr. Meckling filed a pro

se petition for a writ of habeas corpus which the circuit court denied by order entered on

December 9, 2008. The circuit court did not conduct a hearing on this petition and stated


       2
         This trial was only on the abduction with intent to defile count and the malicious
assault count. The circuit court had previously granted a severance motion on the other
counts contained in the indictment.
       3
          The circuit court also sentenced Mr. Meckling to serve one year for his
conviction of misdemeanor battery, and ruled that this sentence “shall run concurrent
with the life sentence.”
       4
          Mr. Meckling raised two errors in this petition: (1) the circuit court erred by
failing to grant a mistrial after it ordered that he be taken into custody in view of the jury,
and (2) the circuit court erred when it held that only two of the three felonies required for
a life recidivist sentence need to be violent.



                                              4

in its order that it had “examined the petition and the underlying criminal matters and has

concluded that the grounds for relief [Mr. Meckling] has asserted have been previously

and finally adjudicated or waived.”

              Mr. Meckling renewed his pro se petition for a writ of habeas corpus,

arguing that the circuit court did not make specific findings of facts and conclusions of

law in its December 9, 2008, order. The circuit court denied Mr. Meckling’s renewed

motion, concluding that the court’s previous order had “made the specific finding of fact

and conclusion of law that ‘the grounds for relief the Petitioner has asserted have been

previously and finally adjudicated or waived.’”

              On March 15, 2009, Mr. Meckling filed a pro se petition for a writ of

habeas corpus with this Court. By order entered on May 13, 2009, this Court remanded

the matter to the circuit court for an omnibus habeas hearing and ordered that the circuit

court appoint a lawyer to represent Mr. Meckling. The circuit court appointed counsel

for Mr. Meckling. By order entered on February 4, 2014, the circuit court granted Mr.

Meckling’s petition for a writ of habeas corpus, concluding that Mr. Meckling did not

receive a fair trial because he was briefly placed in handcuffs in view of “at least some of

the jurors.” The circuit court’s order states that the trial court “deprived [Mr. Meckling]

of his due process rights, as such have been prescribed under both State and Federal

Constitutions, when it ordered him shackled during the course of the trial in the presence

of the jury, and security and order did not warrant such intrusive conduct.” The circuit

court vacated Mr. Meckling’s convictions of felony abduction with intent to defile and


                                             5

misdemeanor battery, and vacated Mr. Meckling’s recidivist sentence of imprisonment

for life.5 After entry of the circuit court’s order, Warden Ballard filed the present appeal.



                                             II.

                               STANDARD OF REVIEW

              Our standard of review is set forth in Syllabus Point 1, Mathena v. Haines,

219 W.Va. 417, 633 S.E.2d 771 (2006). It states:

                     In reviewing challenges to the findings and
              conclusions of the circuit court in a habeas corpus action, we
              apply a three-prong standard of review. We review the final
              order and the ultimate disposition under an abuse of
              discretion standard; the underlying factual findings under a
              clearly erroneous standard; and questions of law are subject to
              a de novo review.

With this standard in mind, we proceed to consider the arguments of the parties.



                                             III.

                                        ANALYSIS

              The issue is whether the circuit court abused its discretion by granting Mr.

Meckling’s writ of habeas corpus petition based on its ruling that he did not receive a fair


       5
         The circuit court’s order states: “Petitioner’s sentence . . . is automatically
vacated as a result of the underlying felony conviction being vacated.” The circuit court
stayed the execution of its order “to permit the Respondent [Warden Ballard] an
opportunity to appeal . . . if it so chooses.”



                                              6

trial because “at least some of the jurors” briefly observed Mr. Meckling being

handcuffed during a trial recess. Warden Ballard asserts that the circuit court erred by

relying on previous cases from this Court addressing whether a defendant may be

handcuffed or shackled throughout the duration of the trial.              These cases are

distinguishable from the present case, according to Warden Ballard, because Mr.

Meckling was not handcuffed throughout the duration of the trial, rather, he was briefly

placed in handcuffs during the lunch recess because he violated the terms of his bond.

By contrast, Mr. Meckling states that the circuit court correctly determined that he

suffered substantial prejudice as a result of being handcuffed in front of “at least some of

the jurors.”

               This Court addressed whether a criminal defendant may be shackled or

handcuffed throughout the duration of his or her trial in State v. Brewster, 164 W.Va.

173, 261 S.E.2d 77 (1979). In Brewster, the criminal defendant was forced to wear

handcuffs throughout the duration of his armed robbery trial. After being convicted, the

defendant appealed, arguing that he was prejudiced as a result of being forced to wear

handcuffs throughout the trial.     This Court agreed and held in Syllabus Point 3 of

Brewster that “[a] criminal defendant has the right, absent some necessity relating to

courtroom security or order, to be tried free of physical restraints.”6




       6
         In Brewster, the trial court did not make a record to determine if manifest
necessity existed to place the defendant in handcuffs. This Court therefore remanded the
                                                                          (continued . . .)

                                              7

              This Court again addressed the propriety of placing a criminal defendant in

physical restraints throughout the duration of his or her trial in State v. Peacher, 167

W.Va. 540, 280 S.E.2d 559 (1981). In Peacher, the Court stated that “physical restraints

should be used only after an evidentiary hearing on the question of whether such security

measures are justified by the circumstances of the case.” Id. at 556, 280 S.E.2d at 572.7

              The circuit court’s order granting Mr. Meckling’s habeas corpus petition

relies heavily on Brewster and Peacher.            We find these cases to be factually

distinguishable from the present case, however, because the defendants in Brewster and



case to the trial court for an evidentiary hearing to determine if sufficient facts existed to
warrant trying the defendant in handcuffs.
       7
         The Court in Peacher set forth three reasons why courts generally disfavor
placing a criminal defendant in physical restraints throughout the duration of his or her
trial:

                      There are three valid considerations underlying the
              reluctance on the part of courts to permit the trial of a
              defendant in physical restraints. The first is that such
              treatment of a defendant must inevitably cause the jury to
              infer that the judge thinks him to be a dangerous man. State v.
              Kring, 64 Mo. 591 (1877). Physically restraining the
              defendant may also interfere with his ability to participate in
              his own defense or his privilege of being a competent witness
              on his own behalf. People v. Harrington, 42 Cal. 165 (1871).
              The final consideration commonly advanced for not favoring
              the practice is that such treatment of the defendant detracts
              from the dignity and decorum of the judicial process. Illinois
              v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970).

Id. at 556, 280 S.E.2d at 571.



                                              8

Peacher were forced to wear handcuffs throughout the duration of their trials.8 By

contrast, Mr. Meckling was in handcuffs in view of “at least some of the jurors” for a

brief period of time during a trial recess.

              This Court addressed the distinction between a criminal defendant who is

forced to wear physical restraints throughout the duration of his or her trial with a

criminal defendant appearing in physical restraints for a brief period of time in State v.

Linkous, 177 W.Va. 621, 355 S.E.2d 410 (1987). In Linkous, the defendant was brought

into the courtroom in handcuffs in view of the prospective jurors. Before jury selection

began, defense counsel moved that a new jury panel be selected, arguing that the existing

panel was prejudiced by having seen the defendant enter the courtroom in handcuffs.


       8
          The circuit court’s order also relies on State ex rel. McMannis v. Mohn, 163
W.Va. 129, 254 S.E.2d 805 (1979), and Estelle v. Williams, 425 U.S. 501 (1976), two
cases addressing whether a criminal defendant may be forced to wear identifiable prison
attire during their trial. In McMannis, the defendant was tried while wearing clothes that
were “prison issue bearing the inscriptions ‘West Virginia Penitentiary’ and ‘WVP’ both
on the seat of the pants and the back of the shirt.” McMannis, 163 W.Va. at 131, 254
S.E.2d at 807. Similarly, the defendant in Estelle went to trial wearing clothes that were
clearly marked as prison issue. The circuit court’s order cites Syllabus Point 2 of
McMannis, which states, in relevant part, “A criminal defendant has the right under the
Due Process Clause of our State and Federal Constitutions not to be forced to trial in
identifiable prison attire.” As in Brewster and Peacher, we find that McMannis and
Estelle are distinguishable from the present case because Mr. Meckling was not forced to
wear “identifiable prison attire” during his trial. This Court has drawn a clear distinction
between a criminal defendant being tried while in handcuffs and a criminal defendant on
trial while wearing identifiable prison attire: “There is a critical distinction between being
forced to wear identifiable prison clothing and being forced to appear in physical
restraints. The prison clothing serves no legitimate purpose, whereas physical restraints
may be necessary in certain cases.” Brewster, 164 W.Va. at 181, 261 S.E.2d at 82.



                                              9

The trial court denied the defense motion, stating that the period of time the defendant

appeared in handcuffs was brief.        The defendant was subsequently convicted and

appealed to this Court, arguing that he was prejudiced because the jurors briefly observed

him in handcuffs. This Court rejected that argument, stating:

              There is a major distinction between Brewster and this case as
              to the extent of time the defendant was in restraints before the
              jury. In Brewster, the defendant was required to remain in
              physical restraints throughout his entire criminal trial. This
              case involves only an initial appearance in handcuffs which
              were removed shortly after he was brought into the
              courtroom. Most courts that have dealt with this question
              conclude that ordinarily it is not reversible error nor grounds
              for a mistrial to proceed to try a criminal defendant with a
              jury panel that may have seen him in handcuffs for a brief
              period of time prior to trial.

Id. at 624, 355 S.E.2d at 413. Based on this reasoning, the Court held in Syllabus Point

2 of Linkous that, “Ordinarily, it is not reversible error nor grounds for a mistrial to

proceed to try a criminal defendant with a jury panel that may have seen him in handcuffs

for a brief period of time prior to trial.” (Emphasis added).

              A number of courts in other jurisdictions have examined this issue and

come to the same conclusion as this Court’s holding in Linkous: a juror’s brief

observation of a criminal defendant in handcuffs does not compel reversal of the

defendant’s conviction. For instance, in Cooper v. State, 912 So.2d 1150, 1158 (Ala.

Crim. App. 2005), the court observed, “It is not ground for a mistrial that an accused

felon appears in the presence of the jury in handcuffs when such appearance is only a part

of going to and from the courtroom. This is not the same as keeping an accused in


                                             10

shackles and handcuffs while being tried.” The First Circuit addressed this issue in

United States v. Pina, 844 F.2d 1, 8 (1st Cir. 1988), finding that any danger of prejudice

to a defendant is slight if a juror’s view of the defendant in custody is brief and

inadvertent. In Wilson v. McCarthy, 770 F.2d 1482, 1485-86 (9th Cir. 1985), the Ninth

Circuit held that a jury’s brief observation of a defendant in custody does not compel

reversal in the absence of an affirmative showing of actual prejudice. The Missouri

Court of Appeals rejected a defendant’s argument that he was prejudiced when the jury

observed him being handcuffed on his way from the courtroom to the restroom, stating:

              A brief, inadvertent exposure of the jury to a handcuffed
              defendant while [the] defendant is being escorted from one
              place to another does not deprive [the] defendant of a fair
              trial. This is so because it is a normal and regular, as well as a
              highly desirable and necessary, practice to handcuff prisoners
              when they are being taken from one place to another, and the
              jury is aware of this. Thus, a brief, inadvertent exposure to the
              jury of a handcuffed defendant does not deprive the defendant
              of a fair trial and cannot be said to result in prejudice. As
              such, even if jurors did briefly observe the appellant in
              handcuffs, as claimed, we find no prejudice to him from this
              fact.

State v. Swopes, 343 S.W.3d 705, 709-10 (Mo. App.W.D. 2011) (internal quotations and

citations omitted).9




       9
         See also Bruce v. State, 318 Md. 706, 569 A.2d 1254 (1990) (finding that
inadvertent viewing by jury of handcuffs being removed from defendant as jury was
being led into courtroom did not prejudice defendant’s right to fair trial); People v.
Harper, 47 N.Y.2d 857, 392 N.E.2d 1244 (1979) (concluding that some jurors who
briefly observed a criminal defendant in handcuffs during the court’s lunch recess was,
                                                                         (continued . . .)

                                             11

              In the present case, Mr. Meckling was handcuffed and taken into custody

during a trial recess. It is undisputed that the amount of time any juror could have seen

Mr. Meckling in handcuffs was brief. Similarly, it is undisputed that Mr. Meckling was

not in handcuffs after the lunch recess and was free of any physical restraints for the

remainder of his trial. Thus, there is a major distinction between the present case in

which Mr. Meckling was briefly placed in handcuffs, and Brewster and Peacher in which

the defendants were handcuffed for the duration of their trials.

              Unlike in Brewster and Peacher, we find that the present case is analogous

to Linkous—the defendant in Linkous and Mr. Meckling were both briefly placed in

handcuffs, in the courtroom, in view of some members of the jury. While the time period

in which the jurors observed Mr. Linkous (prior to the beginning of his trial) and Mr.

Meckling (during the lunch recess after the trial had commenced) wearing handcuffs was

different, we find that the Court’s holding in Linkous is applicable to the present case

because the key determination is the amount of time the defendant was observed wearing

handcuffs. We therefore hold that ordinarily, it is not reversible error nor grounds for a




by itself, insufficient to deny the defendant a fair trial); and Wright v. State of Texas, 533
F.2d 185, 187 (5th Cir. 1976) (finding that brief and inadvertent exposure to jurors of
defendant in handcuffs is not so inherently prejudicial as to require a mistrial, and the
defendant bears the burden of affirmatively demonstrating prejudice).



                                             12

mistrial to continue to try a criminal defendant after one or more jurors may have seen the

defendant in handcuffs for a brief period of time after the trial has begun.10

              Applying this holding to the present case, we conclude that Mr. Meckling

being handcuffed in view of “at least some of the jurors” for a brief period of time was

neither reversible error nor grounds for a mistrial. Mr. Meckling has not demonstrated

that any actual prejudice occurred as a result of him being placed in handcuffs for a brief

period of time in view of “at least some of the jurors.” The affidavit from the juror who

stated that he observed Mr. Meckling being placed in handcuffs does not state that the

jury harbored any prejudice against Mr. Meckling as a result of seeing him being placed

in handcuffs. Nor does that juror’s affidavit state that he was unable to fairly weigh the

evidence as a result of briefly seeing Mr. Meckling in handcuffs.

              Based on all of the foregoing, we find that the circuit court abused its

discretion by granting Mr. Meckling’s habeas corpus petition on the basis that he did not

receive a fair trial because he was briefly handcuffed during a trial recess in view of some


       10
          While we hold that it is not ordinarily reversible error nor grounds for a mistrial
for a defendant to be observed wearing handcuffs by one or more jurors for a brief period
of time after the trial has begun, we agree with this Court’s statement in Linkous that
“[t]he better practice is to remove restraints before a prisoner is brought before the jury
[and that] . . . reasonable efforts should be made to prevent prisoners under such restraints
from being seen” by jurors. Linkous, 177 W.Va. at 624, 355 S.E.2d at 413. Additionally,
in the event that a defendant is observed wearing handcuffs for a brief period of time by
the jury, the circuit court should, if requested by the defendant, give a curative instruction
to the jury. In the present case, Mr. Meckling’s lawyer did not request that a curative
instruction be given.



                                             13

members of the jury. In so ruling, the circuit court relied on two cases, Brewster and

Peacher, that are factually distinguishable from the present case. Similarly, the circuit

court failed to apply this Court’s holding in Linkous that a juror’s brief view of a

defendant in handcuffs is not sufficient to establish reversible error, nor grounds for a

mistrial.



                                             IV.


                                      CONCLUSION


              The circuit court’s February 4, 2014, order granting Mr. Meckling’s

petition for a writ of habeas corpus is reversed.



                                                                               Reversed.




                                             14

