State of WV v. Jenkins
Annotate this CaseJanuary 1994 Term
___________
No. 21775
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STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee
v.
RONNIE WAYNE JENKINS,
Defendant Below, Appellant
_______________________________________________________
Appeal from the Circuit Court of Lincoln County
The Honorable W. Jack Stevens, Judge
Criminal Indictment No. 90-F-44
REVERSED AND REMANDED
________________________________________________________
Submitted: January 12, 1994
Filed: March 25, 1994
Jacquelyn I. Custer
Assistant Attorney General
Charleston, West Virginia
Attorney for the Appellee
W. Dale Greene
Charleston, West Virginia
Attorney for the Appellant
JUSTICE MILLER delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. "Rule 609(a)(2) of the West Virginia Rules of
Evidence divides the criminal convictions which can be used to
impeach a witness other than a criminal defendant into two
categories: (A) crimes 'punishable by imprisonment in excess of one
year,' and (B) crimes 'involving dishonesty or false statements
regardless of the punishment.'" Syllabus Point 2, CGM Contractors,
Inc. v. Contractors Environmental Services, Inc. 181 W. Va. 679,
383 S.E.2d 861 (1989).
2. "Where there has been an unlawful homicide by
shooting and the State produces evidence that the homicide was a
result of malice or a specific intent to kill and was deliberate
and premeditated, this is sufficient to support a conviction for
first degree murder." Syllabus Point 3, State v. Hatfield, 169
W. Va. 191, 286 S.E.2d 402 (1982).
3. "Where a defendant is the victim of an unprovoked
assault and in a sudden heat of passion uses a deadly weapon and
kills the aggressor, he cannot be found guilty of murder where
there is no proof of malice except the use of a deadly weapon."
Syllabus Point 2, State v. Kirtley, 162 W. Va. 249, 252 S.E.2d 374
(1978).
4. An instruction in a first degree murder case that
informs the jury that malice need not be shown on the part of the
defendant against the deceased is erroneous.
5. "'In a homicide trial, malice and intent may be
inferred by the jury from the defendant's use of a deadly weapon,
under circumstances which the jury does not believe afforded the
defendant excuse, justification or provocation for his conduct.
Whether premeditation and deliberation may likewise be inferred,
depends upon the circumstances of the case.' Point 2, Syllabus,
State v. Bowles, 117 W. Va. 217[, 185 S.E. 205 (1936)]." Syllabus,
State v. Johnson, 142 W. Va. 284, 95 S.E.2d 409 (1956).
6. It is erroneous in a first degree murder case to
instruct the jury that if the defendant killed the deceased with
the use of a deadly weapon, then intent, malice, willfulness,
deliberation, and premeditation may be inferred from that fact,
where there is evidence that the defendant's actions were based on
some legal excuse, justification, or provocation. To the extent
that the instruction in State v. Louk, 171 W. Va. 639, 643, 301 S.E.2d 596, 600 (1983), is contrary to these principles, it is
disapproved.
7. "In a criminal prosecution, the State is required to
prove beyond a reasonable doubt every material element of the crime with which the defendant is charged, and it is error for the court
to instruct the jury in such a manner as to require it to accept a
presumption as proof beyond a reasonable doubt of any material
element of the crime with which the defendant is charged or as
requiring the defendant either to introduce evidence to rebut the
presumption or to carry the burden of proving the contrary."
Syllabus Point 4, State v. Pendry, 159 W. Va. 738, 227 S.E.2d 210
(1976), overruled on other grounds, Jones v. Warden, West Virginia
Penitentiary, 161 W. Va. 168, 241 S.E.2d 914, cert. denied, Warden
of West Virginia Penitentiary v. Jones, 439 U.S. 830, 99 S. Ct. 107, 58 L. Ed. 2d 125 (1978).
8. An instruction which informs the jury that it may
find the defendant guilty of first degree murder if it finds that
he used a deadly weapon to kill the deceased unconstitutionally
shifts the burden of proof.
9. "Failure to observe a constitutional right
constitutes reversible error unless it can be shown that the error
was harmless beyond a reasonable doubt." Syllabus Point 5, State
ex rel. Grob v. Blair, 158 W. Va. 647, 214 S.E.2d 330 (1975).
10. "'In a case in which a jury may return a verdict of guilty of murder of the first degree, it is the mandatory duty of the trial court, without request, to instruct the jury that to such verdict it may add a recommendation of mercy, that such recommendation would mean that the defendant could be eligible for parole consideration only after having served a minimum of ten years and that otherwise the defendant would be confined to the penitentiary for life without possibility of parole.' Syl. pt. 3, State v. Lindsey, 160 W. Va. 284, 233 S.E.2d 734 (1977)." Syllabus Point 4, State v. Headley, 168 W. Va. 138, 282 S.E.2d 872 (1981).
Miller, Justice:
Ronnie Wayne Jenkins appeals a final order of the
Circuit Court of Lincoln County, dated December 29, 1992, denying
his motion to set aside a jury verdict finding him guilty of first
degree murder without a recommendation of mercy. On appeal, the
defendant asserts that the trial court erred: (1) in refusing to
allow the defendant to impeach a prosecution witness with the
witness's prior misdemeanor conviction of receiving stolen
property; (2) in instructing the jury as to the legal consequences
of the defendant's use of a deadly weapon; and (3) in refusing to
instruct the jury on the consequences of recommending mercy in a
first degree murder case. We find that the trial court committed
reversible error with regard to its instruction to the jury on the
effect of the use of a deadly weapon. The trial court also erred
in refusing the defendant's request to advise the jury as to the
consequences of a recommendation of mercy.
I.
During the afternoon of November 24, 1989, Billy Joe
Adkins, the victim, and three of his friends were drinking beer in
the victim's car, which was parked at a rock quarry on Upper Mud
Fork road in Lincoln County. At approximately 3:00 p.m. that same
afternoon, Karen Adkins, Keith Adkins, and Gilbert Courts were
driving down Upper Mud River Road towards Hamlin, when they saw the defendant standing in the middle of the road holding a high-powered
rifle and a bottle of whiskey. They knew the defendant so Mr.
Courts stopped and asked if he wanted a ride. The defendant did,
and he got into the truck. As they proceeded down the road, Karen
Adkins asked the defendant where he was going, to which the
defendant replied, "he was going to kill him a boy that thought he
was a man." When they reached the rock quarry, the defendant told
Mr. Courts that he had reached his destination and he exited the
vehicle.
The defendant started walking towards the victim's car
and began yelling at Billy Joe that "he was going to meet him in
hell" and "he'd better pray." As the defendant moved closer to the
car, the three other occupants fled. According to the testimony of
Bobby Hill, one of the passengers in the victim's car, the
defendant began poking the gun at the victim through the driver's
side window. When Billy Joe grabbed the end of the rifle, the
defendant pulled it away and shot at the car's windshield. The
defendant then stepped back, pointed the gun through the driver's
side window, and shot the victim in the head. The victim died
shortly thereafter.
Following a six-day jury trial, the defendant was
convicted of first degree murder without a recommendation of mercy.
The defendant filed motions to set aside the jury verdict and for a new trial. In a final order dated December 29, 1992, the trial
court denied these motions.
II.
The defendant initially asserts that the trial court
erred in refusing to allow him to impeach a prosection witness,
Bobby Hill, with his prior misdemeanor conviction of receiving
stolen property. The record reflects that on October 31, 1990, Mr.
Hill pled guilty to the misdemeanor crime of receiving stolen
property in violation of W. Va. Code, 61-3-18 (1923).See footnote 1 At trial,
when the defense attempted to elicit this information from the
defendant, the prosecution objected, and the trial court refused to
allow the prior conviction evidence to be introduced.
Rule 609(a)(2) of the West Virginia Rules of Evidence
outlines when it is proper to impeach a witness other than a
criminal defendant with evidence of a prior conviction.See footnote 2 As we explained in Syllabus Point 2 of CGM Contractors, Inc. v.
Contractors Environmental Services, Inc. 181 W. Va. 679, 383 S.E.2d 861 (1989):
"Rule 609(a)(2) of the West Virginia
Rules of Evidence divides the criminal
convictions which can be used to impeach a
witness other than a criminal defendant into
two categories: (A) crimes 'punishable by
imprisonment in excess of one year,' and (B)
crimes 'involving dishonesty or false
statements regardless of the punishment.'"
In order to impeach a witness under Rule 609(a)(2)(A),
the individual must have been convicted of a crime punishable by
imprisonment in excess of one year. Bobby Hill was convicted of
receiving stolen property valued at less than $200. This crime is
petit larceny and is a misdemeanor punishable by imprisonment in
"the county jail for a term not to exceed one year or fined not to
exceed five hundred dollars, or both, in the discretion of the
court." W. Va. Code, 61-3-13(b) (1977). Thus, by definition, Mr.
Hill's prior misdemeanor conviction would not be admissible under
Rule 609(a)(2)(A).See footnote 3
The second category of convictions that can be used to
impeach a witness other than a criminal defendant includes those
crimes involving "dishonesty or false statement, regardless of the
punishment." W. Va. R. Evid. 609(a)(2)(B). In note 1 of CGM
Contractors, Inc. v. Contractors Environmental Services, Inc., 181
W. Va. at 682, 383 S.E.2d at 864, we recognized that crimes falling
under Rule 609(a)(2)(B) were often called crimen falsi:
"Crimen falsi generally refers 'to
crimes in the nature of perjury or subornation
of perjury, false statement, criminal fraud,
embezzlement, false pretense, or any other
offense which involves some element of
deceitfulness, untruthfulness, or
falsification bearing on a witness' propensity
to testify truthfully.' Black's Law Dictionary
335 (5th ed. 1979)."
Although there has been some disagreement, "federal
courts and most state courts are unwilling to conclude that
offenses such as petty larceny, shoplifting, robbery, possession of
a weapon, and narcotics violations are per se crimes of 'dishonesty
and false statement.'" John W. Strong, et al., McCormick on
Evidence § 42 at 146 (4th ed. 1992). (Footnotes omitted). See,
e.g., United States v. Fearwell, 595 F.2d 771 (D.C. Cir. 1978); United States v. Brackeen, 969 F.2d 827 (9th Cir. 1992); United
States v. Sellers, 906 F.2d 597 (11th Cir. 1990); State v. Terrell,
156 Ariz. 499, 753 P.2d 189 (1988); State v. Eugene, 340 N.W.2d 18
(N.D. 1983). In the present case, the defendant failed to show
that Mr. Hill's prior conviction of larceny was based on facts
showing deceitfulness or falsification. We, therefore, believe
that the trial court correctly refused to allow the defendant to
impeach Mr. Hill with his prior conviction.
III.
A.
Of more serious concern is the defendant's objection to
State's Instruction No. 3.See footnote 4 Defense counsel objected to the
State's instruction saying that "it's a misstatement of the law as
to the intent and malice and deliberation and premeditation, the
inference as it is stated, and again, I take the position, and do
throughout, that there is a difference in these kind of," at which point he was cutoff by the judge who ruled the instruction would be
given.See footnote 5
In this case, the defendant's chief defense was that the
killing was an accident as he intended only to shoot at the
deceased to scare him. He produced a witness at trial who stated
that the defendant had come to his residence after the shooting.
He was extremely upset and kept repeating that he had not intended
to kill the deceased, but only to scare him. The defendant also
testified at trial that he had been drinking whiskey and smoking
marijuana before the shooting and these activities had affected his
coordination and mental capacity. He was carrying a bottle of
whiskey when he entered Mr. Courts' truck shortly before the
shooting. The bottle of whiskey was found at the scene of the
shooting.
We find the State's instruction to be erroneous on
several grounds. First, the initial sentence is wrong in stating
that "to convict one of murder, it is not necessary that malice
should exist in the heart of the defendant . . . against the
deceased."
We discussed the concept of malice in State v. Hatfield,
169 W. Va. 191, 198, 286 S.E.2d 402, 407 (1982), and stated that it
"is often used as a substitute for 'specific intent [to] kill' or
'an intentional killing.'" Citing State v. Starkey, 161 W. Va.
517, 523, 244 S.E.2d 219, 223 (1978), and other cases.See footnote 6 We then
concluded in Hatfield: "It is clear, however, that the intent to
kill or malice is a required element of both first and second
degree murder but the distinguishing feature for first degree
murder is the existence of premeditation and deliberation." 169
W. Va. at 198, 286 S.E.2d at 407-08. (Footnote omitted). In Syllabus Point 3 of Hatfield, we gave this general definition of
the elements of first degree murder:
"Where there has been an unlawful
homicide by shooting and the State produces
evidence that the homicide was a result of
malice or a specific intent to kill and was
deliberate and premeditated, this is
sufficient to support a conviction for first
degree murder."
The rule that malice must be shown against the victim is
consistent with our earlier cases,See footnote 7 as illustrated by Syllabus
Point 5 of State v. Panetta, 85 W. Va. 212, 101 S.E. 360 (1919):
"Malice is an essential element of
murder either in the first or second degree,
and where an intentional homicide by the use
of a deadly weapon is admitted, the jury may
infer malice, willfulness and deliberation
from the act; and by legal malice is meant not
only such as may exist against the deceased,
but it includes such disposition of the
accused as shows a heart regardless of duty
and fatally bent on mischief." (Emphasis
added).
The rule that legal malice must exist against the deceased is
implicit in our cases where we have held that if the deceased
attacked the defendant, malice may not be implied from the
defendant's use of a deadly weapon. This principle is set out in Syllabus Point 2 of State v. Kirtley, 162 W. Va. 249, 252 S.E.2d 374 (1978):
"Where a defendant is the victim of
an unprovoked assault and in a sudden heat of
passion uses a deadly weapon and kills the
aggressor, he cannot be found guilty of murder
where there is no proof of malice except the
use of a deadly weapon."
See also Syllabus Point 2, State v. Bowyer, 143 W. Va. 302, 101 S.E.2d 243 (1957); Syllabus Point 3, State v. Morris, 142 W. Va.
303, 95 S.E.2d 401 (1956).
Thus, we conclude that an instruction in a first degree
murder case that informs the jury that malice need not be shown on
the part of the defendant against the deceased is erroneous.
B.
The defendant also claims that the language in the
instruction regarding the consequences of the use of a deadly
weapon which stated "the intent, the malice and wilfulness,
deliberation and premeditation may be inferred from the act" is
erroneous. The State argues that this language is consistent with
an instruction in State v. Louk, 171 W. Va. 639, 301 S.E.2d 596
(1983).See footnote 8 We do not disagree that there are substantial similarities in the two instructions. However, the discussion in
Louk was brief and related only to the issue of whether the use of
the term "inferred" in the instruction constituted an impermissible
burden-shifting instruction. Louk's entire discussion on this
instruction was:
"It is unconstitutional to shift the
burden of proof to a defendant on any element
of a crime by instructing a jury to presume
its existence from certain facts. Sandstrom
v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979). Presumptions differ from
inferences. State v. Greenlief, 168 W. Va.
561[, 567], 285 S.E.2d 391, 395 (1981).
Instructions about the 'inference' of malice,
if supported by the evidence, are
permissible." 171 W. Va. at 643, 301 S.E.2d
at 600. (Emphasis in original; citations
omitted).
No attempt was made to analyze its language as against our prior
law nor to draw any syllabus point with regard to the instruction.
The language of the Louk instruction is contrary to our
generally accepted rule in a murder case as to what inferences are
permissible from the defendant's use of a deadly weapon, as
illustrated in the Syllabus of State v. Johnson, 142 W. Va. 284, 95 S.E.2d 409 (1956):
"'In a homicide trial, malice and
intent may be inferred by the jury from the
defendant's use of a deadly weapon, under
circumstances which the jury does not believe
afforded the defendant excuse, justification
or provocation for his conduct. Whether
premeditation and deliberation may likewise be
inferred, depends upon the circumstances of
the case.' Point 2, Syllabus, State v.
Bowles, 117 W. Va. 217[, 185 S.E. 205
(1936)]."
See also Syllabus Point 8, State v. Sauls, 97 W. Va. 184, 124 S.E. 670 (1924).
This Court in State v. Coleman, 96 W. Va. 544, 548-49,
123 S.E. 580, 582 (1924), specifically addressed a similar Louk
instructionSee footnote 9 and rejected this instruction because "in the instant case circumstances were shown tending to rebut a presumption of
premeditation and deliberation, essential elements of first degree
murder, from the bare fact of the stabbing of deceased with a
deadly weapon." The Court in Coleman set out this principle in
Syllabus Point 2:
"Where the evidence tends to show
that the homicide was induced by the use of a
vile and opprobrious epithet applied by
deceased to accused at the time of the
homicide, and evidence is also adduced raising
the issue of defendant's mental
irresponsibility, it is error to instruct the
jury that if they believe beyond a reasonable
doubt from the evidence that the prisoner was
guilty of stabbing with a deadly weapon the
deceased, and of killing him, the intent, the
malice, and the willfulness and premeditation
may be inferred from the act."
A similar rule was set out in Syllabus Point 3 of State v. Whitt,
96 W. Va. 268, 122 S.E. 742 (1924), where the defendant was engaged
in a scuffle with the victim and his gun went off killing him:
"Where the facts and circumstances
of a homicide case are such that they may in
the minds of the jurors rebut a mere inference
of malice on the part of the accused, an
abstract instruction to the effect that it is
not necessary that malice should exist in the
heart of the accused toward deceased, or any
particular person; and that deliberation,
willfulness and malice may be inferred from
the use of a deadly weapon; and which omits to
mention any of the various circumstances tending to rebut such inference, is
erroneous."
See also State v. Best, 91 W. Va. 559, 113 S.E. 919 (1922).
What is important to realize is that these cases are
allowing an inference of malice and intent from the use of a deadly
weapon so long as the instruction is qualified by language that
informs the jury that this may be done if the evidence does not
show that the defendant had an excuse, justification, or
provocation. It is any of these elements that, if believed by the
jury, will reduce the homicide to something less than murder.See footnote 10
Our cases illustrate those acts which can reduce the
severity of the crime below murder. For example, in State v.
Morris, 142 W. Va. 303, 95 S.E.2d 401 (1956), the defendant, an
elderly sick man, was twice assaulted by a younger man, and, during
the second affray, the defendant stabbed the assailant killing him. We reversed his conviction for first degree murder, stating in
Syllabus Points 3 and 4:
"3. When an affray is provoked by
the deceased, the use of a deadly weapon by
the defendant in killing the deceased will not
give rise to a presumption of malice.
"4. 'A sudden intentional killing
with a deadly weapon, by one who is not in any
way at fault, in immediate resentment of a
gross provocation, is prima facie a killing in
heat of blood, and, therefore, an offense of
no higher degree than voluntary manslaughter.'
Point 10, syllabus, State v. Clifford, 59
W. Va. 1[, 52 S.E. 981 (1906)]."
See also State v. Ponce, 124 W. Va. 126, 19 S.E.2d 221 (1942).
Moreover, we have recognized that an unprovoked violent
attack on a defendant, where the defendant reasonably believes that
great bodily harm or death will result, may justify killing the
victim under the doctrine of self-defense. State v. Bowyer, supra;
State v. Foley, 128 W. Va. 166, 35 S.E.2d 854 (1945). Cf. State v.
Kirtley, 162 W. Va. 249, 252 S.E.2d 374 (1978).See footnote 11 A similar type of defense arises when a defendant claims that he lacks criminal
responsibility because of his insanity. See Syllabus Point 5,
State v. Massey, 178 W. Va. 427, 359 S.E.2d 865 (1987).See footnote 12
In State v. Bowles, 117 W. Va. 217, 185 S.E. 205 (1936),
the defense was accidental homicide. The defendant claimed that
the victim was fighting with him and seized his gun hand,
accidentally causing the gun to discharge and kill the victim. We
indicated that an instruction that told "the jury that they might
infer premeditation and deliberation from the . . . [use of a
deadly weapon] was erroneous[.]" 117 W. Va. at 221, 185 S.E. at
208.
Finally, we recognized in Syllabus Point 2 of State v.
Bragg, 140 W. Va. 585, 87 S.E.2d 689 (1955), that voluntary
intoxication on the part of a defendant may be a sufficient excuse to reduce the crime from first degree murder to second degree
murder because of a lack of premeditation and deliberation.See footnote 13
The foregoing cases are not designed to cover all the
circumstances in a homicide where excuse, justification, or
provocation may be involved. They do illustrate that it is
erroneous in a first degree murder case to instruct the jury that
if the defendant killed the deceased with the use of a deadly
weapon, then intent, malice, willfulness, deliberation, and
premeditation may be inferred from that fact, where there is
evidence that the defendant's actions were based on some legal
excuse, justification, or provocation. To the extent that the
instruction in State v. Louk, 171 W. Va. at 643, 301 S.E.2d at 600,
is contrary to these principles, it is disapproved.
In this case, the trial court recognized that there was
some evidence indicating an accidental shooting as the court's charge touched on this fact.See footnote 14 Moreover, the charge to the jury
also recognized that the defendant's intoxication would reduce his
degree of culpability.See footnote 15 The critical point is that these
instructions were completely contrary to State's Instruction No. 3,
which stated that malice was not necessary to be shown against the
victim and that all of the elements may be inferred solely from the
use of a deadly weapon. In Syllabus Point 9 of State v. Bail, 140
W. Va. 680, 88 S.E.2d 634 (1955), we held that a bad instruction is
not cured by a good one, the reason being that there is no way to
tell if the jury followed the good instruction rather than the bad
one.See footnote 16 Moreover, as we point out in Section III(C), infra, there is a constitutional error in State's Instruction No. 3 which cannot
be cured.
C.
We have addressed State's Instruction No. 3 in several
phases. In III(A), supra, we addressed the first sentence which
stated that the defendant's malice need not be shown against the
deceased. We pointed out why this statement was erroneous based on
the fact that malice was a species of criminal intent and must be
shown to exist against the deceased in a homicide case.
In the second discussion contained in III(B), supra, we
analyzed that portion of State's Instruction No. 3 that dealt with
the various inferences that arose from the use of a deadly weapon.
We pointed out that its language was contrary to our prior law and,
under the facts of this case, it was erroneous.
In this section, we deal with the last portion of State's
Instruction No. 3, which states:
"Therefore, if after fully and
carefully considering all the evidence in this
case, the jury believes beyond a reasonable
doubt that Ronnie Wayne Jenkins committed the
crime of 'murder in the first degree' by
shooting with a deadly weapon the deceased,
then Ronnie Wayne Jenkins may be found guilty
of murder in the first degree of Billy Joe
Adkins, as set forth in the indictment."
(Emphasis in original; citation omitted).
This paragraph was immediately preceded by the paragraph that first
stated that malice need not be found to exist against the deceased.
This paragraph also stated that if the defendant used a deadly
weapon to kill the deceased "the intent, the malice and the
wilfulness, deliberation and premeditation may be inferred from the
act[.]"See footnote 17
The impact of the last portion of the State's instruction
reduces the ultimate question of the defendant's guilt to this
statement: "[I]f . . . the jury believes beyond a reasonable doubt
that . . . [the defendant] committed the crime of 'murder in the
first degree' by shooting with a deadly weapon the deceased, then
. . . [the defendant] may be found guilty of murder in the first
degree[.]" Putting aside the fact that the sentence is a
tautology, i.e., by committing the crime of murder by a deadly
weapon, the defendant may be found guilty of murder, the jury's
deliberation is focused on a single fact -- the shooting with a
deadly weapon. All other elements of first degree murder are
subsumed in this one finding. The jury is not asked to infer or
presume, but, in effect, is told if the deceased was shot with a
deadly weapon, then first degree murder occurred.
The State's instruction in this case is more egregious
than the instruction in Yates v. Evatt, ___ U.S. ___, 111 S. Ct. 1884, 114 L. Ed. 2d 432 (1991),See footnote 18 which was held unconstitutional
by the United States Supreme Court. The Supreme Court reaffirmed
this basic tenet in Yates:
"This Court held in Sandstrom v.
Montana, supra, 442 U.S. [510], at 513, 524, 99 S. Ct. [2450] at 2453, 2459, 61 L. Ed. 2d 39, [at 44, 51 (1979)], that a jury
instruction stating that '"the law presumes
that a person intends the ordinary
consequences of his voluntary acts"' violated
the requirement of the Due Process Clause that
the prosecution prove each element of a crime
beyond a reasonable doubt. See In re Winship,
397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368
(1970)." ___ U.S. at ___, 111 S. Ct. at 1891,
114 L. Ed. 2d at 446.
We followed Sandstrom v. Montana, supra, in State v.
O'Connell, 163 W. Va. 366, 256 S.E.2d 429 (1979), where we
concluded in its Syllabus: "In a criminal prosecution, it is
constitutional error to give an instruction which supplies by
presumption any material element of the crime charged." Earlier in
Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508
(1975), a homicide instruction that stated that the defendant was
required to prove justification or excuse in order to reduce the
homicide to manslaughter was held to be unconstitutional as burden
shifting. We followed Mullaney in Syllabus Point 4 of State v.
Pendry, 159 W. Va. 738, 227 S.E.2d 210 (1976), overruled on other
grounds, Jones v. Warden, West Virginia Penitentiary, 161 W. Va.
168, 241 S.E.2d 914, cert. denied, Warden of West Virginia
Penitentiary v. Jones, 439 U.S. 830, 99 S. Ct. 107, 58 L. Ed. 2d 125 (1978), where we stated:
"In a criminal prosecution, the
State is required to prove beyond a reasonable
doubt every material element of the crime with
which the defendant is charged, and it is
error for the court to instruct the jury in
such a manner as to require it to accept a presumption as proof beyond a reasonable doubt
of any material element of the crime with
which the defendant is charged or as requiring
the defendant either to introduce evidence to
rebut the presumption or to carry the burden
of proving the contrary."See footnote 19
In this case, the last portion of State's Instruction No.
3 did not use the terms "presumption" or "inference," but made a
conclusive finding by stating that if the jury found the defendant
used a deadly weapon to kill the deceased, it could find him guilty
of first degree murder. It went beyond the earlier portion of the
instruction which informed the jury that it could infer intent,
malice, willfulness, deliberation, and premeditation, and which we
held erroneous in Part III(B), supra. What this language does is
advise the jury that the use of a deadly weapon amounts to first
degree murder regardless of any attenuating circumstances. The
State thereby is relieved of any necessity to prove any of the
elements of first degree murder once it is shown that the deceased
was killed with a deadly weapon. This result is patently unconstitutional under the foregoing law. Thus, an instruction
which informs the jury that it may find the defendant guilty of
first degree murder if it finds that he used a deadly weapon to
kill the deceased unconstitutionally shifts the burden of proof.
The State did have some general language defining first
degree murder in the abstract and also customary instructions as to
its burden of proof. However, the United States Supreme Court made
it plain in Francis v. Franklin, 471 U.S. 307, 319-20, 105 S. Ct. 1965, 1974, 85 L. Ed. 2d 344, 357 (1985), that such instructions
will not cure an unconstitutional presumption instruction: "These
general instructions as to the prosecutor's burden and the
defendant's presumption of innocence do not dissipate the error in
the challenged portion of the instruction."
Moreover, the Supreme Court in Francis went on to
consider whether specific language stating that "criminal intention
may not be presumed" would cure an instruction with an
unconstitutional presumption.See footnote 20 471 U.S. at 320, 105 S. Ct. at 1974, 85 L. Ed. 2d at 357. (Emphasis in original). After a
considerable discussion as to its possible impact on the jury, this
conclusion was reached:
"Even if a reasonable juror could
have understood the prohibition of presuming
'criminal intention' as applying to the
element of intent, that instruction did no
more than contradict the instruction in the
immediately preceding sentence. A reasonable
juror could easily have resolved the
contradiction in the instruction by choosing
to abide by the mandatory presumption and
ignore the prohibition of presumption. . . .
Language that merely contradicts and does not
explain a constitutionally infirm instruction
will not suffice to absolve the infirmity."
471 U.S. at 322, 105 S. Ct. at 1975, 85 L. Ed. 2d at 358.
The issue in Yates v. Evatt, supra, was whether the South
Carolina Supreme Court was correct in holding that the
unconstitutional burden-shifting instruction could be cured by the doctrine of harmless constitutional error. The United States
Supreme Court decided that it could not.
Yates began its analysis by recognizing the harmless
constitutional error test developed in Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 710 (1967), that
it may be deemed harmless if "it appears 'beyond a reasonable doubt
that the error complained of did not contribute to the verdict
obtained.'" ___ U.S. at ___, 111 S. Ct. at 1892, 114 L. Ed. 2d at
448. We have adopted a similar harmless constitutional error test
in Syllabus Point 5 of State ex rel. Grob v. Blair, 158 W. Va. 647,
214 S.E.2d 330 (1975):
"Failure to observe a constitutional
right constitutes reversible error unless it
can be shown that the error was harmless
beyond a reasonable doubt."
See also Syllabus Point 2, State v. Gibson, 186 W. Va. 465, 413 S.E.2d 120 (1991); Syllabus Point 7, Marano v. Holland, 179 W. Va.
156, 366 S.E.2d 117 (1988); Syllabus Point 3, State v. Sheppard,
172 W. Va. 656, 310 S.E.2d 173 (1983).
The Supreme Court in Yates, supra, then elaborated on
what was meant by unconstitutional instructional error that did not
contribute to the verdict:
"To say that an error did not
contribute to the verdict is, rather, to find
that error unimportant in relation to everything else the jury considered on the
issue in question, as revealed in the record.
Thus, to say that an instruction to apply an
unconstitutional presumption did not
contribute to the verdict is to make a
judgment about the significance of the
presumption to reasonable jurors, when
measured against the other evidence considered
by those jurors independently of the
presumption." ___ U.S. at ___, 111 S. Ct. at
1893, 114 L. Ed. 2d at 449.
When the foregoing test was applied in Yates, the
instructions were found not to be harmless error because there was
a lack of evidence to support the malice element beyond a
reasonable doubt independent of the presumption.See footnote 21 The victim in Yates intervened when her store was being robbed. She seized one
of the robbers, and, in the course of the struggle, was stabbed to
death. Yates, who was an accomplice to the robbery, had already
fled the store when this act occurred. The Supreme Court found
that the perpetrator's actions in stabbing the deceased could not
be said to demonstrate an intent to kill that could be imputed to
Yates.
In the present case, the mandatory nature of the
instruction, focused only on the shooting with a deadly weapon,
absolved the State from any proof of first degree murder other than
the shooting with a deadly weapon. Moreover, the malice component
of murder was earlier removed with the court's admonition that it
need not be shown to exist against the deceased. It cannot be said
beyond a reasonable doubt that the unconstitutional instruction
could not have contributed to the verdict of first degree murder
without a recommendation of mercy. Consequently, we find the
instruction to be reversible error.
IV.
Because this case is reversed on the first degree murder
instructional error, we do not deem it necessary to address the
defendant's other errors except one. It is the claim that the
trial court erred in refusing to give the defendant's instruction
explaining the consequences of a recommendation of mercy. The
instruction contained this language: "Eligibility for parole in no
way guarantees immediate parole after ten (10) years. Parole is
given to inmates only after a thorough consideration of their
records by the Parole Board." The trial court accepted the State's
instruction providing that a verdict of first degree murder "WITH
RECOMMENDATION OF MERCY is punishable by confinement in the
penitentiary of this state for life WITH eligibility for parole
after ten (10) years." (Emphasis in original). We have reviewed
the record and find that the trial court erred.
The State's instruction given in this case is virtually
identical to the one we found erroneous in State v. Headley, 168
W. Va. 138, 282 S.E.2d 872 (1981). In Headley, we said that
although the instruction given "was an accurate statement, . . .
[it] was misleading because it gave the jury members, who are not
presumed to have knowledge of the law, the impression that the
appellant could go free immediately at the whim of the parole
board." 168 W. Va. at 142, 282 S.E.2d at 875. We reiterated the essential elements of a proper instruction in Syllabus Point 4 of
Headley:
"'In a case in which a jury may
return a verdict of guilty of murder of the
first degree, it is the mandatory duty of the
trial court, without request, to instruct the
jury that to such verdict it may add a
recommendation of mercy, that such
recommendation would mean that the defendant
could be eligible for parole consideration
only after having served a minimum of ten
years and that otherwise the defendant would
be confined to the penitentiary for life
without possibility of parole.' Syl. pt. 3,
State v. Lindsey, 160 W. Va. 284, 233 S.E.2d 734 (1977)."
In State v. Headley, supra, we also stated that the
instruction should advise the jury that "mere eligibility for
parole in no way guarantees immediate parole after ten years and
that parole is given to inmates only after a thorough consideration
of their records by the parole board. See W. Va. Code, 62-12-13
[1981]." 168 W. Va. at 143, 282 S.E.2d at 875.
The language in the instruction offered by the defendant
in this case parallels the language we identified in Headley as
being required. It was error for the trial court to refuse to give
it. Indeed, as we said in State v. Wayne, 162 W. Va. 41, 47, 245 S.E.2d 838, 843 (1978), "the defendant is entitled to any
instruction on the subject which correctly states the law and which
he deems will present the proposition in its most favorable light." (Emphasis in original). See, e.g., State v. Headley, supra; State
v. Lindsey, 160 W. Va. 284, 233 S.E.2d 734 (1977).See footnote 22
V.
For the reasons set out in Part III, supra, we conclude
that State's Instruction No. 3 was erroneous, and, therefore, the
judgment of the Circuit Court of Lincoln County is reversed and
this case is remanded for a new trial.
Reversed and remanded.
Footnote: 1Pursuant to W. Va. Code, 61-3-18, the crime of receiving
stolen property is larceny. Under W. Va. Code, 61-3-13(b), where
the value of the goods is less than $200 the crime is petit
larceny, which is a misdemeanor.
Footnote: 2Rule 609(a)(1) of the Rules of Evidence outlines when it is
proper to impeach a criminal defendant with his prior conviction.
This provision provides:
"Criminal Defendants.--For the
purpose of attacking the credibility of a
witness accused in a criminal case, evidence
that he has been convicted of a crime shall
be admitted if elicited from him during
cross-examination or established by public
record, but only if the crime involved
perjury or false swearing."
Footnote: 3Although an individual has been convicted of a crime
punishable in excess of one year, evidence of the conviction
cannot automatically be used to impeach the witness--two other
issues must be considered. If the conviction is more than ten
years old, the trial court must do a balancing test to determine
if "the probative value of the conviction supported by specific
facts and circumstances substantially outweighs its prejudicial
effect." W. Va. R. Evid. 609(b). Likewise, even for convictions
that are less than ten years old, the court still must determine
"that the probative value of admitting this evidence on the issue
of credibility outweighs its prejudicial effect to the parties
and embarrassment to the witness[.]" W. Va. R. Evid.
609(a)(2)(A).
Footnote: 4State's Instruction No. 3 states:
"The Court instructs the jury that
to convict one of murder, it is not necessary
that malice should exist in the heart of the
defendant, Ronnie Wayne Jenkins, against the
deceased. If the jury believes from the
evidence that the defendant, Ronnie Wayne
Jenkins, was guilty of shooting with a deadly
weapon, such as a .30-.30 rifle, the deceased
and of killing him, the intent, the malice
and the wilfulness, deliberation and
premeditation may be inferred from the act,
and such malice may not be directed against
any particular person, but such acts by
Ronnie Wayne Jenkins have shown a heart
regardless of social duty and fatally bent on
mischief.
"Therefore, if after fully and
carefully considering all the evidence in
this case, the jury believes beyond a
reasonable doubt that Ronnie Wayne Jenkins
committed the crime of 'murder in the first
degree' by shooting with a deadly weapon the
deceased, then Ronnie Wayne Jenkins may be
found guilty of murder in the first degree of
Billy Joe Adkins, as set forth in the
indictment." (Citation omitted; emphasis in
original).
Footnote: 5Earlier the defense attorney had objected to malice
language in the court's charge stating that if the jury believed
"this was an accidental killing, malice cannot be inferred from
the fact of the killing."
Footnote: 6In State v. Starkey, 161 W. Va. at 524, 244 S.E.2d at 223-
24, we said:
"The term malice has been
frequently used, but not extensively defined,
by this Court. In State v. Douglass, 28 W.
Va. 297, 299 (1886), this statement was made:
"'. . . [T]he source of
which said malice is not only
confined to a particular ill will
to the deceased, but is intended to
denote . . . an action flowing from
a wicked and corrupt motive, a
thing done malo animo, where the
fact has been attended with such
circumstances as carry in them the
plain indication of a heart
regardless of social duty and
fatally bent on mischief.'"
Section 7.1 of 2 W. LaFave & A. Scott, Substantive
Criminal Law at 182 (1986), commenting on the common law concept
of malice states: "Literally, 'malice' in the murder setting
required at least an intent to kill, plus perhaps an element of
hatred, spite or ill-will[.]"
Footnote: 7The one exception may be a transferred intent homicide,
which we outlined in Syllabus Point 6 of State v. Julius,
185 W. Va. 422, 408 S.E.2d 1 (1991): "The doctrine of
transferred intent provides that where a person intends to kill
or injure someone, but in the course of attempting to commit the
crime accidentally injures or kills a third party, the
defendant's criminal intent will be transferred to the third
party."
Footnote: 8The Louk instruction was:
"'The Court instructs the jury that
to convict one of murder, it is not necessary
that malice should exist in the heart of the
Defendant against the deceased. If the jury
believe from the evidence that the Defendant
was guilty of shooting with a deadly weapon,
the deceased, and of killing him, the intent,
the malice and the wilfullness, deliberation
and premeditation may be inferred from the
act, and such malice may not be directed
against any particular person, but such as
shown a heart regardless of social duty and
fatally bent on mischief.'" 171 W. Va. at
643, 301 S.E.2d at 600.
Footnote: 9The instruction in Coleman, 96 W. Va. at 548, 123 S.E. at
581-82, was:
"'The court instructs the jury that
to convict one of murder it is not necessary
that malice should exist in the heart of the
accused against the deceased. If the jury
believe beyond a reasonable doubt from the
evidence that the prisoner was guilty of
stabbing, with a deadly weapon, the deceased,
and of killing him, the intent, the malice,
and the willfulness and premeditation may be
inferred from the act and such malice may not
be directed against any particular person,
but such as shows a heart regardless of
social duty fatally bent on mischief.'"
Footnote: 10In note 7 of State v. Starkey, 161 W. Va. at 527, 244 S.E.2d at 225, we said:
"The term 'provocation' as it is
used to reduce murder to voluntary
manslaughter, consists of certain types of
acts committed against the defendant which
would cause a reasonable man to kill. . . .
It is important to note that provocation is
not a defense to the crime, but merely
reduces the degree of culpability[.]"
(Citations omitted).
Footnote: 11Much the same self-defense justification applies to the
defense of one's home. As we explained in Syllabus Point 2 of
State v. W.J.B., 166 W. Va. 602, 276 S.E.2d 550 (1981):
"The occupant of a dwelling is not
limited in using deadly force against an
unlawful intruder to the situation where the
occupant is threatened with serious bodily
injury or death, but he may use deadly force
if the unlawful intruder threatens imminent
physical violence or the commission of a
felony and the occupant reasonably believes
deadly force is necessary."
Footnote: 12Syllabus Point 5 of Massey states:
"'When a defendant in a criminal
case raises the issue of insanity, the test
of his responsibility for his act is whether,
at the time of the commission of the act, it
was the result of a mental disease or defect
causing the accused to lack the capacity
either to appreciate the wrongfulness of his
act or to conform his act to the requirements
of the law . . . .' Syllabus Point 2, in
part, State v. Myers, 159 W. Va. 353, 222 S.E.2d 300 (1976)."
Footnote: 13Syllabus Point 2 of State v. Bragg, supra, states:
"Provided an accused did not
intentionally become intoxicated so as to
prepare himself for the commission of the
crime, intoxication of an accused is a
defense to a charge of murder of the first
degree, when the degree of intoxication is
such as to render the accused incapable of
premeditation and deliberation."
See also Syllabus Point 8, State v. Hickman, 175 W. Va. 709, 338 S.E.2d 188 (1985); Syllabus Point 2, State v. Keeton, 166 W. Va.
77, 272 S.E.2d 817 (1980).
Footnote: 14The relevant language was that if "at the time of the
shooting of Billy Joe Adkins [the defendant] had no specific
intent to kill the said Billy Joe Adkins, but rather wanted only
to frighten him, not intending to kill him, then you may not find
Ronnie Jenkins guilty of first degree murder[.]"
Footnote: 15The relevant language is:
"[I]f you believe from the evidence herein
that Ronnie Jenkins drunkenly and carelessly
embarked on an unlawful course of conduct
designed and intended by him to frighten or
change Billy Joe Adkins, but not to kill him,
and that during the course of that conduct,
without malice on the part of the said
defendant, Billy Joe Adkins was killed, then
your verdict shall be of no higher grade than
voluntary manslaughter."
Footnote: 16Syllabus Point 9 of State v. Bail, supra, states: "Though
instructions given to a jury are to be considered as a whole, the
giving of 'A bad instruction is not cured by a good one given to
the jury, and with which it is in conflict.' Point 2, Syllabus,
State v. Garner, 97 W. Va. 222[, 124 S.E. 681 (1924)]."
Footnote: 17The complete text of this instruction is set out in note
4, supra.
Footnote: 18The instruction considered in Yates, ___ U.S. at ___, 111 S. Ct. at 1889-90, 114 L. Ed. 2d at 444-45, states, in relevant
part:
"'Malice may also be implied as
where, although no expressed intention to
kill was proved by direct evidence, it is
indirectly and necessarily inferred from
facts and circumstances which are,
themselves, proved. Malice is implied or
presumed by the law from the willful,
deliberate, and intentional doing of an
unlawful act without any just cause or
excuse. In its general signification, malice
means the doing of a wrongful act,
intentionally, without justification or
excuse.
"I tell you, however, that if the
facts proven are sufficient to raise a
presumption of malice, that presumption is
rebuttable, that is, it is not conclusive on
you, but it is rebuttable by the rest of the
evidence. I tell you, also, that malice is
implied or presumed from the use of a deadly
weapon. I further tell you that when the
circumstances surrounding the use of that
deadly weapon have been put in evidence and
testified to, the presumption is removed.
And it ultimately remains the responsibility
for you, ladies and gentlemen, under all the
evidence to make a determination as to
whether malice existed in the mind and heart
of the killer at the time the fatal blow was
struck.'"
Footnote: 19The relevant portion of the Pendry instruction which was
found to be unconstitutional as burden shifting, thus violating
the Mullaney standard, was:
"'[I]f . . . [the jury] believe from the
evidence that . . . [the defendant] shot and
killed the deceased . . . by the deliberate
use of an instrument likely to produce death,
under the circumstances, then the presumption
of the law, arising in absence of proof to
the contrary, is that he intended the
consequences that resulted from said use of
said deadly instrument.'" 159 W. Va. at 749,
227 S.E.2d at 218.
Footnote: 20The entire text of the questioned instruction in Francis,
471 U.S. at 311-12, 105 S. Ct. at 1969-70, 85 L. Ed. 2d at 351-
52, is:
"'A crime is a violation of a
statute of this State in which there shall be
a union of joint operation of act or omission
to act, and intention or criminal negligence.
A person shall not be found guilty of any
crime committed by misfortune or accident
where it satisfactorily appears there was no
criminal scheme or undertaking or intention
or criminal negligence. The acts of a person
of sound mind and discretion are presumed to
be the product of the person's will, but the
presumption may be rebutted. A person of
sound mind and discretion is presumed to
intend the natural and probable consequences
of his acts but the presumption may be
rebutted. A person will not be presumed to
act with criminal intention but the trier of
facts, that is, the Jury, may find criminal
intention upon a consideration of the words,
conduct, demeanor, motive and all other
circumstances connected with the act for
which the accused is prosecuted.'"
Footnote: 21In note 4 of Estelle v. McGuire, ___ U.S. ___, ___, 112 S. Ct. 475, 482, 116 L. Ed. 2d 385, 399 (1991), the Supreme Court in
speaking of evaluating jury instructions referred to a reasonable
likelihood standard and indicated that the standard of review
announced in Yates, supra, and Cage v. Louisiana, 498 U.S. 39,
111 S. Ct. 328, 112 L. Ed. 2d 339 (1990), was disapproved. This
situation has caused 92 Shepard's United States Citations No. 8,
Cases Part 1B (Shepard's/McGraw-Hill 1994), to list both Yates
and Cage as being overruled. We believe this interpretation is
erroneous as the statement was not intended to refer to the
substantive law in these cases relating to the unconstitutional
nature of the instruction considered in Yates nor Cage which
dealt with an unconstitutional reasonable doubt instruction.
Indeed, the same unconstitutional instruction considered in Cage
was recently condemned as unconstitutional in Sullivan v.
Louisiana, ___ U.S. ___, 113 S. Ct. 2078, 124 L. Ed. 2d 182
(1993). Moreover, we find it impossible to believe that the
Supreme Court would overrule the substantive law of two recent
opinions, that were virtually unanimous as occurred in Yates and
Cage, by a brief footnote. Certainly, the federal courts of
appeals have not treated Estelle's footnote as overruling Yates.
See, e.g., United States v. Gordon, 987 F.2d 902, 909 (2d Cir.
1993); Orndorff v. Lockhart, 998 F.2d 1426, 1430-31 (8th Cir.
1993); Stevens v. Zant, 968 F.2d 1076, 1085-86 (11th Cir. 1992).
Some states courts have considered Yates and Cage to have been
overruled. E.g., People v. Clark, 22 Cal. Rptr. 2d 689, 734, 857
P.2d 1099, 1144 (1993) (as to Yates); State v. Stamps, 865 S.W.2d 393, 399 (Mo. App. 1993) (as to Cage).
Footnote: 22Were this the only error, we might adopt the State's
suggestion that the matter be remanded to the trial court with
directions that it resentence the defendant to life with mercy,
unless within thirty days the prosecutor elects to retry the
defendant. In that event, the judgment would be reversed and the
defendant would be granted a new trial. See, e.g., Strader v.
Garrison, 611 F.2d 61 (4th Cir. 1979); United States v. Burnette,
698 F.2d 1038 (9th Cir. 1983); Bowler v. United States, 480 A.2d 678 (D.C. App. 1984); Moore v. United States, 388 A.2d 889 (D.C.
App. 1978); People v. Van Wyck, 76 Mich. App. 17, 255 N.W.2d 754
(1977), reversed on other grounds, 402 Mich. 266, 262 N.W.2d 638
(1978); State v. Berger, 72 Wyo. 422, 265 P.2d 1061 (1954).
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