The opinion
Neely, Justice,
dissenting:
I respectfully dissent to syllabus point 2 which authorizes a unitary jury verdict with regard both to guilt and sentence.
Under both the West Virginia rape and first degree murder statutes, W. Va. Code, § 62-3-15 [1965] and § 61-2-15 [1965] the jury determines guilt in the first instance and simultaneously determines whether life imprisonment or a lesser sentence will be imposed. While it is impossible to dictate standards to guide jury discretion in determining the question of whether mercy should be accorded a defendant, it does not follow that evidence with regard to the circumstances surrounding the perpetration of the crime, the motives of the accused, and the provocation which prompted the act are all irrelevant. 1
*552 While the civil rules provide that a civil litigant may plead inconsistent defenses it is unreasonable to believe that a simultaneous assertion of innocence and mitigation is workable in a criminal jury trial. It is impossible for a criminal defendant to maintain his innocence, introduce evidence in support of that proposition, and simultaneously introduce all of the evidence which would tend to mitigate the punishment. Since evidence of mitigation can only be taken as a confession of guilt, the criminal defendant will frequently be forced, as a matter of strategy, to curtail or eliminate his presentation of evidence on mitigating circumstances. Any such compelled choice undeniably burdens the criminal defendant’s right to be heard on the issues of punishment and sentence. 2
*553 On the other hand, a criminal defendant who chooses, from necessity, to introduce evidence on mitigation suffers the loss of his right to have the State prove its case beyond a reasonable doubt while he stands mute and offers no evidence on the issue of innocence. This is the time-tested way of securing a jury acquittal, and as the right is constitutionally guaranteed to a defendant, any procedure which circumscribes its use is inherently unconstitutional. W. Va. Constitution, Article 3, section 5; U.S. Constitution amend. V; Malloy v. Hogan, 378 U.S. 1 (1964); see, United States v. Jackson, 390 U.S. 570 (1968); Garrity v. New Jersey, 385 U.S. 493 (1967); Simmons v. United States, 390 U.S. 377 (1968).
Under our current unitary trial procedure it is necessary for a defendant to set forth all the mitigating circumstances which would bear upon a recommendation of mercy before the question of guilt is determined. There is no reason why a jury cannot hear evidence on mitigation after it has returned a verdict, as such a procedure imposes no unreasonable burden on the court which would outweigh the advantages to be obtained in terms of rational procedure. 3
*554 I have long held the opinion that even in an ordinary trial where all of the discretion with regard to the length of sentence (where the sentence is determinant), suspension of sentence, and probation is vested in the trial court a criminal defendant is absolutely entitled to a full and fair hearing on the question of punishment. While there are no recent cases in this jurisdiction discussing the problem, it appears to be the procedure in the better courts of record to accord the defendant a fair hearing on the question of punishment. See e.g., McKinney’s Consolidated Laws of N.Y. Ann. CPL §390.10 et seq.; Ga. Code Ann., §27-2502 et seq.; Mass. General Laws Ann, c. 279, §3A et seq., Commonwealth v. Celeste, 358 Mass. 307 , 264 N.E.2d 683 (1970). Frequently it escapes the attention of appellate courts that it makes a great deal of difference to the defendant whether he is sentenced to ten or thirty years for armed robbery, or whether he is confined at all, or placed on probation. It seems obvious from the clear direction of national authority that whenever there is a substantial question *555 with regard to liberty, in this case twenty years confinement or life confinement, and in other cases incarceration as opposed to probation or a suspended sentence, a person is entitled to all of the due process rights which are traditionally accorded before a question involving a substantial right is decided, namely: (1) notice; (2) hearing; (3) confrontation; and (4) the right to call witnesses in one’s own behalf. Pointer v. Texas, 380 U.S. 400 (1965); Douglas v. Alabama, 380 U.S. 415 , 13 L.Ed.2d, 85 S.Ct. 1074 (1965); Washington v. Texas, 388 U.S. 14 (1967); In re Gault, 387 U.S. 1 (1967). It would appear at first blush that all these requirements are met at a criminal trial, but in practice the unitary procedure authorized by the majority opinion focuses exclusively on the question of guilt or innocence. One wonders, in fact, if under the strict rules of evidence in a trial in which the jury did not have discretion, evidence of mitigation would be admissible.
Most defense lawyers preparing for a criminal case have their witnesses in court to testify on the question of innocence, but do not have witnesses for mitigation. While the better trial courts in this State already give a full hearing before sentencing, no statute dictates such a procedure, and judicial caprice and arbitrariness can be allowed full bridle under the rubric of “did not abuse his sound discretion.”
Accordingly I would hold that whenever there is a trial in which the jury is required both to determine guilt and the degree of punishment that a bifurcated procedure be used in which the defendant is given an opportunity to present evidence bearing on mitigation before the question of a recommendation of mercy is resolved by the jury, and that in other cases the defendant be given a hearing on punishment before imposition of sentence.
I am authorized to say that Mr. Justice Wilson joins in this dissent.
The Model Penal Code, for example, has identified eight relevant mitigating circumstances for juries to consider in murder cases which might equally apply to other serious felonies:
“(4) Mitigating Circumstances.
“(a) The defendant has no significant history of prior criminal activity.
“(b) The murder was committed while the defendant was under the influence of extreme mental or emotional disturbance.
“(c) The victim was a participant in the defendant’s homicidal conduct or consented to the homicidal act.
“(d) The murder was committed under circumstances which the defendant believed to provide a moral justification or extenuation for his conduct.
“(e) The defendant was an accomplice in a murder committed by another person and his participation in the homicidal act was relatively minor.
*552 “(f) The defendant acted under duress or under the domination of another person.
“(g) At the time of the murder, the capacity of the defendant to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect or intoxication.
“(h) The youth of the defendant at the time of the crime.” Model Penal Code §210.6 (Proposed Official Draft, 1962).
This right has long been recognized by the United States Supreme Court, which recently, on July 2, 1976, after the filing of the majority opinion in this case, restated the general rule and imposed in capital cases a specific constitutional requirement for sentencing authorities to consider both the offender and the circumstances of his offense:
“This Court has previously recognized that ‘[f]or the determination of sentences, justice generally requires consideration of more than the particular acts by which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender.’ Pennsylvania v. Ashe, 302 U.S. 51, 55 (1937). Consideration of both the offender and the offense in order to arrive at a just and appropriate sentence has been viewed as a progressive and humanizing development. See, Williams v. New York, 337 U.S. 241, 247-249 (1949); Furman v. Georgia, 408 U.S., at 402-403 (Burger, C. J., dissenting). While the prevailing practice of individualizing sentencing determinations generally reflects simply enlightened policy rather than a constitutional impera *553 tive, we believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment, see Trap v. Dulles, 356 U.S., at 100 (plurality opinion), requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.” Woodson v. North Carolina, U.S. , (plurality opinion).
The obvious advantages of a bifurcated trial have led experts to recommend its adoption as a means of rationalizing jury sentencing. The United States Supreme Court has recently noted this trend:
“Much of the information that is relevant to the sentencing decision may have no relevance to the question of guilt, or may even be extremely prejudicial to a fair determination of that question. This problem, however, is scarcely insurmountable. Those who have studied the question suggest that a bifurcated procedure — one in *554 which the question of sentence is not considered until the determination of guilt has been made — is the best answer. The drafters of the Model Penal Code concluded that if a unitary proceeding is used
‘the determination of punishment must be based on less than all the evidence that has a bearing on that issue, such for example as a previous criminal record of the accused, or evidence must be admitted on the ground that it is relevant to sentence, though it would be excluded as irrelevant or prejudicial with respect to guilt or innocence alone. Trial lawyers understandably have little confidence in a solution that admits the evidence and trusts to an instruction to the jury that it should be considered only in determining the penalty and disregarded in assessing guilt.
‘... The obvious solution ... is to bifurcate the proceeding, abiding strictly by the rules of evidence until and unless there is a conviction, but once guilt has been determined opening the record to further information that is relevant to sentence. This is the analogue of the procedure in the ordinary case when capital punishment is not in issue; the court conducts a separate inquiry before imposing sentence.’ Model Penal Code §201.6, Comment 5, pp. 74-75 (Tent. Draft No. 9, 1959).” Gregg v. Georgia, U.S. , (plurality opinion).