State of WV v. Saterfield
Annotate this Case
January 1995 Term
___________
No. 22374
___________
STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee
v.
SHAWN SATTERFIELD,
Defendant Below, Appellant
___________________________________________________
Appeal from the Circuit Court of Ritchie County
Honorable Joseph Troisi, Judge
Criminal Action No. 93-F-10
AFFIRMED
___________________________________________________
Submitted: January 11, 1995
Filed: March 27, 1995
Carl P. Bryant
Bryant & White
St. Marys, West Virginia
Attorney for the Appellant
Darrell V. McGraw, Jr.
Attorney General
Jacqueline I. Custer
Senior Assistant Attorney General
Charleston, West Virginia
Attorneys for the Appellee
JUSTICE McHUGH delivered the Opinion of the Court.
Justice Brotherton did not participate.
Justices Cleckley and Fox, deeming themselves disqualified, did
not participate.
Judges Ranson and Berger sitting by temporary assignment.
Chief Justice Neely dissents and reserves the right to file a
dissenting opinion.
SYLLABUS BY THE COURT
1. "What is required for a dying declaration to be
admissible is that the declarant have such a belief that he is
facing death as to remove ordinary worldly motives for
misstatement. In that regard, the court may consider the totality
of the circumstances of motive to falsify and the manner in which
the statement was volunteered or elicited." Syl. pt. 3, State v.
Young, 166 W. Va. 309, 273 S.E.2d 592 (1980), holding modified on
a different ground by State v. Julius, 185 W. Va. 422, 408 S.E.2d 1 (1991).
2. A suicide note may be admissible pursuant to W. Va.
R. Evid. 804(b)(2) as a dying declaration exception to the hearsay
rule. In order for a statement found in a suicide note to be
admissible as a dying declaration the following must occur: the
statement must have been made when the declarant was under the
belief that his death was imminent, and the dying declaration must
concern the cause or circumstances of what the declarant believes
to be his impending death.
3. Once a trial judge determines that a statement falls
within the dying declaration exception to the hearsay rule found in
W. Va. R. Evid. 804(b)(2), then it must be determined whether the
evidence is relevant pursuant to W. Va. R. Evid. 401 and 402 and,
if so, whether its probative value is substantially outweighed by
unfair prejudice pursuant to W. Va. R. Evid. 403. The statement is
admissible only after the trial judge determines that its probative
value is not substantially outweighed by unfair prejudice.
4. "'An indictment which charges that the defendant
feloniously, wilfully, maliciously, deliberately, premeditatedly
and unlawfully did slay, kill and murder is sufficient to support
a conviction for murder committed in the commission of, or attempt
to commit arson, rape, robbery or burglary, it not being necessary,
under W. Va. Code, 61-2-1, to set forth the manner or means by
which the death of the deceased was caused.' Syllabus Point 5,
State v. Bragg, 160 W. Va. 455, 235 S.E.2d 466 (1977)." Syl. pt.
10, State v. Young, 173 W. Va. 1, 311 S.E.2d 118 (1983).
5. "'An instruction to the jury is proper if it is a
correct statement of the law and if sufficient evidence has been
offered at trial to support it.' Syllabus Point 8, State v. Hall,
171 W. Va. 212, 298 S.E.2d 246 (1982)." Syl. pt. 1, State v.
White, 171 W. Va. 658, 301 S.E.2d 615 (1983).
6. "'"To warrant a change of venue in a criminal case,
there must be a showing of good cause therefor, the burden of which
rests on the defendant, the only person who, in any such case, is
entitled to a change of venue. The good cause aforesaid must exist
at the time application for a change of venue is made. Whether, on
the showing made, a change of venue will be ordered, rests in the
sound discretion of the trial court; and its ruling thereon will
not be disturbed, unless it clearly appears that the discretion
aforesaid has been abused." Point 2, Syllabus, State v.
Wooldridge, 129 W. Va. 448, 40 S.E.2d 899 (1946).' Syllabus Point
1, State v. Sette, 161 W. Va. 384, 242 S.E.2d 464 (1978)." Syl.
pt. 1, State v. Derr, ___ W. Va. ___, 451 S.E.2d 731 (1994).
7. "'"A present hostile sentiment against an accused,
extending throughout the entire county in which he is brought to
trial, is good cause for removing the case to another county."
Point 2, Syllabus, State v. Dandy, 151 W. Va. 547, 153 S.E.2d 507
(1967), quoting Point 1, Syllabus, State v. Siers, 103 W. Va. 30,
136 S.E. 503 (1927).' Syllabus Point 2, State v. Sette, 161 W. Va.
384, 242 S.E.2d 464 (1978)." Syl. pt. 2, State v. Derr, ___ W. Va.
___, 451 S.E.2d 731 (1994).
8. "One of the inquiries on a motion for a change of
venue should not be whether the community remembered or heard the
facts of the case, but whether the jurors had such fixed opinions
that they could not judge impartially the guilt or innocence of the
defendant." Syl. pt. 3, State v. Derr, ___ W. Va. ___, 451 S.E.2d 731 (1994).
9. "'"The true test as to whether a juror is qualified
to serve on the panel is whether without bias or prejudice he can
render a verdict solely on the evidence under the instructions of
the court." Syllabus Point 1, State v. Kilpatrick, 158 W. Va. 289,
210 S.E.2d 480 (1974).' Syllabus Point 3, State v. Beck, 167 W.
Va. 830, 286 S.E.2d 234 (1981)." Syl. pt. 7, State v. Neider, 170
W. Va. 662, 295 S.E.2d 902 (1982).
10. "'Where objections were not shown to have been made
in the trial court, and the matters concerned were not
jurisdictional in character, such objections will not be considered
on appeal.' Syllabus Point 1, State Road Commission v. Ferguson, 148 W. Va. 742, 137 S.E.2d 206 (1964)." Syllabus point 3, O'Neal
v. Peake Operating Co., 185 W. Va. 28, 404 S.E.2d 420 (1991).
11. "Where a State witness violates a sequestration
order and is permitted to testify, the question on appeal is
whether the witness's violation of the order and the ensuing
testimony had a prejudicial effect on the defendant's case." Syl.
pt. 4, State v. Steele, 178 W. Va. 330, 359 S.E.2d 558 (1987).
12. "'A new trial will not be granted on the ground of
newly-discovered evidence unless the case comes within the
following rules: (1) The evidence must appear to have been
discovered since the trial, and, from the affidavit of the new
witness, what such evidence will be, or its absence satisfactorily
explained. (2) It must appear from the facts stated in his
affidavit that plaintiff was diligent in ascertaining and securing
his evidence, and that the new evidence is such that due diligence
would not have secured it before the verdict. (3) Such evidence
must be new and material, and not merely cumulative; and cumulative
evidence is additional evidence of the same kind to the same point.
(4) The evidence must be such as ought to produce an opposite
result at a second trial on the merits. (5) And the new trial
will generally be refused when the sole object of the new evidence
is to discredit or impeach a witness on the opposite side.'
Syllabus, State v. Frazier, 162 W. Va. 635, 253 S.E.2d 534 (1979),
quoting, Syl. pt. 1, Halstead v. Horton, 38 W. Va. 727, 18 S.E. 953
(1894)." Syl. pt. 1, State v. King, 173 W. Va. 164, 313 S.E.2d 440
(1984).
13. "'A new trial on the ground of after-discovered
evidence or newly discovered evidence is very seldom granted and
the circumstances must be unusual or special.' Syllabus Point 9,
State v. Hamric, 151 W. Va. 1, 151 S.E.2d 252 (1966)." Syl pt. 2,
State v. King, 173 W. Va. 164, 313 S.E.2d 440 (1984).
14. "'"The weight of circumstantial evidence, as in the
case of direct evidence, is a question for jury determination, and
whether such evidence excludes, to a moral certainty, every
reasonable hypothesis, other than that of guilt, is a question for
the jury." Syllabus point 4, State v. Bailey, 151 W. Va. 796, 155 S.E.2d 850 (1967).' Syl. pt. 4, State v. Meadows, 172 W. Va. 247,
304 S.E.2d 831 (1983)." Syl. pt. 4, State v. Gum, 172 W. Va. 534,
309 S.E.2d 32 (1983).
McHugh, Justice:
This case is before this Court upon the appeal of Shawn
Satterfield from the October 13, 1993 order of the Circuit Court of
Ritchie County which sentenced him to life imprisonment with
eligibility for parole after a jury found him guilty of first
degree murder with a recommendation of mercy. For reasons set
forth below, we affirm the order of the circuit court.
I.
The appellant and his half-brother, Brian Vincent, were
charged with murdering Billy Harper, a retired public school bus
driver, during the late night hours of January 22, 1993. The facts
surrounding the murder are contradictory and unclear.
The strongest evidence against the appellant was provided
by Glen Thomas and Bucky Moore, who were initially questioned by
the police after witnesses stated that they saw Glen Thomas' car in
the vicinity of the victim's home on the night of the murder.
Thomas and Moore agreed to tell the police everything they knew
about the murder if they would be granted immunity from prosecution
for their involvement in the crime. Eventually, the trial court
did grant immunity to Moore and Thomas for their testimony at
trial.
At trial, Moore and Thomas testified that they gave the
appellant and Brian Vincent a ride to the vicinity of the victim's home. The appellant or Brian Vincent indicated that they were
planning to rob the victim and anticipated having to hit the victim
on the head during the robbery. When the appellant and Brian
Vincent got out of the car, they had an ax handle with them. The
ax handle had originally belonged to Thomas, but Thomas alleged
that the ax handle was removed from his car by Brian Vincent prior
to the incident. Moore and Thomas maintained that they were to
return to pick up the appellant and Brian Vincent later in the
evening.
When Moore and Thomas returned to pick up the appellant
and Brian Vincent, they were unable to locate them. Subsequently,
Moore and Thomas alleged that when they saw the appellant and Brian
Vincent, the two admitted that when robbing the victim, Brian
Vincent had told the victim the appellant's name. Therefore, the
appellant and Brian Vincent took turns striking the victim with the
ax handle until he died. The appellant and Brian Vincent also
allegedly told Moore and Thomas that they took the victim's
billfold, which was never recovered, and a .22 rifle, which they
hid behind a school bus stop in the vicinity. Evidently, the
billfold was burned in the appellant's father's wood stove.
During a search of the area after the murder, the ax
handle, which was wrapped in the victim's plaid flannel jacket, and the .22 rifle, were recovered. Forensic reports state that the
hair on the ax handle was consistent with the victim's hair.
Moore's and Thomas' testimony further indicates that a
couple of days after the murder the appellant and Brian Vincent
stated that they needed a ride to Paul Greene's house, who is a
friend of theirs, so that they could ask him to provide an alibi.
The appellant and Brian Vincent were concerned with the disposal of
their bloodied clothes.
Paul Greene testified that the appellant and Brian
Vincent came to his home and requested that he provide an alibi.
Though Mr. Greene refused to provide one, he did not ask for a
reason for the request. However, Paul Greene did describe a black
garbage bag that the appellant had brought with him. The black
garbage bag allegedly contained the bloodied clothes of the
appellant and Brian Vincent.
The appellant evidently took the bag with him when he and
Brian Vincent left Mr. Greene's house and went to Don Vincent's
house to stay the night. Don Vincent, who is co-defendant Brian
Vincent's brother and appellant's half-brother, testified that he
saw Brian Vincent retrieve the black garbage bag from a wood pile
in his driveway. Brian Vincent and the appellant then disappeared
into the woods with the black garbage bag and returned about thirty
minutes later without it.
Several witnesses testified that they saw two people
walking along the highway in the vicinity of the victim's house on
the night of the murder. The witnesses provided different
descriptions of the two people and different descriptions of what
they were wearing.
At least one witness testified that one of the men had on
a black leather coat and the other an army fatigue jacket. Thomas
testified that he could have had on a black leather coat on the
night of the murder. Moore admitted that he had on an army
camouflage jacket on the night of the murder.
However, three witnesses specifically identified the
appellant as being one of the men walking along the highway. One
witness saw the appellant earlier in the evening in a store wearing
a red and black flannel jacket, and later he thought he saw the
appellant and another individual walking along the highway near the
victim's home. Another witness stated that he saw two men walking
along the highway in dark clothing, but he could not identify
either until the appellant's picture appeared in a newspaper. The
third witness stated that he saw the appellant and another
individual walking along the highway.
Subsequent to the trial, at a hearing to set aside the
verdict based upon newly-discovered evidence, a witness testified
that she saw the appellant and Brian Vincent in the town of Pennsboro at the time the other witnesses state that they saw two
men walking along a highway near the victim's house. Therefore,
the appellant argues that witnesses could not have seen them
walking along the highway near the victim's house.
Moreover, Moore testified that after he and Thomas could
not find the appellant and Brian Vincent when they returned to pick
them up on the night of the murder, he went to Del Vincent's house
(Del Vincent is Brian Vincent's brother and appellant's half-
brother) where he stayed the night.
Additionally, the only identifiable fingerprints at the
crime scene were those of the victim. The expert testimony
regarding the blood test results was contradictory. There was also
testimony which indicates that all four men, the appellant, Brian
Vincent, Thomas, and Moore, were smoking marihuana on the evening
of the murder.
During the trial the appellant's attorney aggressively
cross-examined Moore and even suggested that Moore may have
committed the murder. In fact, the appellant's attorney implied
that Moore had told people that he struck the first blow on the
victim during the murder. After recross-examination, Moore
concluded his testimony, but was subject to recall by the State.
Before the trial court reconvened the next day, Moore committed
suicide. The appellant's attorney stated that he would not be calling witnesses to testify that Moore stated that he struck the
first blow. However, subsequent to the suicide, Del Vincent
testified that Moore did not come by his place on that night.
Additionally, pursuant to the appellant's questioning, Del Vincent
testified that Moore asked him to provide an alibi, and that on
previous occasions Moore had bragged that he was going to kill
people.
Because of the appellant's attack on the credibility of
Moore after his death and because the appellant suggested that
Moore had committed the murders, the trial judge permitted the
State to introduce a suicide note left by Moore which stated: "I
didn't kill Harper and I won't do time for something that I didn't
do. I'm sorry but I just can't take the presure [sic] of going
through a trial. Good-by [sic]. [Signed] Bucky Moore. Tell
Teresa [Bucky Moore's girlfriend] I loved he [sic] more than any
thing in the world." The jury convicted the appellant of first
degree murder with a recommendation of mercy based on the above
evidence.
II.
The first issue before us is whether the trial judge
erred by admitting into evidence the suicide note of Moore pursuant
to the dying declaration exception to the hearsay rule found in the
West Virginia Rules of Evidence 804(b)(2).
Even before the adoption of the rules of evidence,
hearsay was generally not permitted in trials. See 29 Am. Jur. 2d
Evidence § 658 (1994). The rationale for this rule is that out of
court statements
lack the conventional indicia of reliability:
they are usually not made under oath or under
circumstances that impress the declarant with
the solemnity of his or her statements; the
declarant's word is not subject to cross-
examination; and the declarant is not
available so that his or her demeanor and
credibility may be assessed by the jury.
Id. (footnote omitted). Nevertheless, several exceptions to the
hearsay rule have been recognized.
One of the exceptions is known as the dying declaration:
The exception for dying declarations--
which antedates the development of the hearsay
rule and the adoption of the Constitution was
originally held to rest on the religious
belief 'that the dying declarant, knowing that
he is about to die would be unwilling to go to
his maker with a lie on his lips.'
4 Jack B. Weinstein and Margaret A. Berger, Weinstein's Evidence
804(b)(2)[01] at 804-124 to 804-125 (1994) (footnotes omitted and
quote from Quick, Some Reflections on Dying Declarations, 6 Howard
L.J. 109, 111 (1960)). Although in modern times the rationale for
the dying declaration exception to the hearsay rule is not
necessarily religious, scholars continue to recognize the
trustworthiness of a statement of a dying person since a dying
person will not personally benefit from lying. See 29A Am. Jur. 2d Evidence § 829 (1994) ("The dying declaration exception to the
general rule prohibiting the admission of hearsay statements at
trial is based on the belief that persons making dying declarations
are highly unlikely to lie." (footnote omitted)). See also 2
Franklin D. Cleckley, Handbook on Evidence for West Virginia
Lawyers § 8-4(B)(2) at 274 (3d 1994) ("The principle upon which the
dying declaration is admitted . . . is that it has been made after
the declarant . . . has presently approached so near upon the verge
of death that he can see . . . no possible expectation, by anything
he may do or say, of any personal benefit or advantage to himself
in any of the material affairs of the outside world[.]") But see
4 Weinstein, supra at ¶ 804(b)(2)[01] at 804-125 ("[T]he lack of
inherent reliability of deathbed statements has often been pointed
out: experience indicates that the desire for revenge or self-
exoneration or to protect one's loved ones may continue until the
moment of death.")
At common law the dying declaration exception only
applied when the declarant was the murder victim. 2 Cleckley,
supra. See State v. Meek, 107 W. Va. 324, 148 S.E. 208 (1929).
However, the adoption of the rules of evidence has broadened the
common law:
(b) Hearsay Exceptions.--The following
are not excluded by the hearsay rule if the
declarant is unavailable as a witness:
. . . .
(2) Statement under Belief of Impending
Death.--In a prosecution for homicide or in a
civil action or proceeding, a statement made
by a declarant while believing that his or her
death was imminent, concerning the cause or
circumstances of what the declarant believed
to be impending death.
W. Va. R. Evid. 804(b)(2). The rules of evidence have obviously
extended the dying declaration exception to civil cases and do not
state that the declarant must be a murder victim.
Under the rules of evidence, the focus is not on who made
the statement when determining whether the dying declaration is
admissible. Instead, courts focus on the circumstances giving rise
to the dying declaration:
What is required for a dying declaration
to be admissible is that the declarant have
such a belief that he is facing death as to
remove ordinary worldly motives for
misstatement. In that regard, the court may
consider the totality of the circumstances of
motive to falsify and the manner in which the
statement was volunteered or elicited.
Syl. pt. 3, State v. Young, 166 W. Va. 309, 273 S.E.2d 592 (1980),
holding modified on a different ground by State v. Julius, 185
W. Va. 422, 408 S.E.2d 1 (1991).
In the case before us, the dying declaration was in the
form of a suicide note. Few courts have addressed whether a
suicide note would ever fall into the dying declaration exception to the hearsay rule.See footnote 1.There are at least two other cases which address
whether a suicide note is admissible into evidence as a dying
declaration: State v. Hodge, 655 S.W.2d 738 (Mo. Ct. App. 1983)
and Commonwealth v. Antonini, 69 A.2d 436 (Superior Court of
Penn. 1949). However, in both cases the courts found that the
suicide note was not admissible since the declarant was not the
victim of a homicide. See Hodge, 655 S.W.2d at 742 and Antonini,
69 A.2d at 438. These cases are not helpful to the issue before
us since, as we have previously pointed out, W. Va. R. Evid.
804(b)(2) has broadened the common law to include declarants who
are not murder victims.See footnote 2 Common sense dictates, however, that just as the rules of evidence have broadened the common law to include
declarants who are not murder victims, the rules of evidence would
also contemplate situations in which a dying declaration could be
contained in a suicide note.
Accordingly, we hold that a suicide note may be
admissible pursuant to W. Va. R. Evid. 804(b)(2) as a dying
declaration exception to the hearsay rule. In order for a
statement found in a suicide note to be admissible as a dying
declaration the following must occur: the statement must have been
made when the declarant was under the belief that his death was
imminent, and the dying declaration must concern the cause or
circumstances of what the declarant believes to be his impending
death.
However, even if a trial judge finds that a suicide note
is a dying declaration, that does not necessarily mean that the
suicide note is admissible. The trial judge must additionally
analyze whether the suicide note is relevant pursuant to W. Va. R.
Evid. 401 and, if so, thereby admissible pursuant to W. Va. R.
Evid. 402. However, if the probative value of the evidence "is
substantially outweighed by the danger of unfair prejudice," then, although relevant, the evidence may be excluded pursuant to W. Va.
R. Evid. 403.See footnote 3 See generally 1 Franklin D. Cleckley, Handbook on
Evidence for West Virginia Lawyers § 4-3 at 224 (3d 1994) (Evidence
may generally be excluded under W. Va. R. Evid. 403 even though it
otherwise qualifies for admission under the rules of evidence.)See footnote 4
Applying a 403 analysis to the hearsay exception is not
a new concept. In Weinstein's text the following discussion
regarding the admissibility of a dying declaration appears:
The true test of admissibility is whether
admission of the [dying declaration] statement
will help the jury in its task, i.e., whether
it is sufficiently reliable and relevant to
withstand exclusion because its probative
value is substantially outweighed by the
danger of prejudice to the party against whom
it is offered.
4 Weinstein, supra at ¶ 804(b)(2)[01] at 804-131. Moreover, our
prior cases support the notion that W. Va. R. Evid. 403 applies to
hearsay situations. See State v. Murray, 180 W. Va. 41, 45, 375 S.E.2d 405, 409 (1988) and State v. Golden, 175 W. Va. 551, 554-55,
336 S.E.2d 198, 201 (1981).
We caution a trial judge to be mindful that evidence may
not be excluded under W. Va. R. Evid. 403 merely because he or she
does not find the evidence to be credible, although the trial judge
may consider the probative value of the evidence when undertaking
the required balancing test pursuant to W. Va. R. Evid. 403. See
U.S. v. Thompson, 615 F.2d 329, 332-33 (5th Cir. 1980). After all,
it is fundamental that credibility determinations are for the
jury.See footnote 5 Id. at 332.
Thus, we hold that once a trial judge determines that a
statement falls within the dying declaration exception to the
hearsay rule found in W. Va. R. Evid. 804(b)(2), then it must be
determined whether the evidence is relevant pursuant to W. Va. R.
Evid. 401 and 402 and, if so, whether its probative value is
substantially outweighed by unfair prejudice pursuant to W. Va. R.
Evid. 403. The statement is admissible only after the trial judge
determines that its probative value is not substantially outweighed
by unfair prejudice.
Applying the analysis we set forth above to this case
poses two questions: (1) is Moore's suicide note a dying
declaration and (2) if so, is it relevant and is its probative
value substantially outweighed by unfair prejudice pursuant to W.
Va. R. Evid. 401, 402 and 403.
Is Moore's suicide note a dying declaration? Clearly,
there was evidence that Moore wrote the suicide note with the
belief that he was facing imminent death because he killed himself
soon after writing the note. Additionally, the suicide note
explained why Moore killed himself thereby explaining the causes or
circumstances which led to his death. Therefore, Moore's suicide
note falls within the dying declaration exception to the hearsay
rule.
Is Moore's suicide note relevant and, if so, is its
probative value substantially outweighed by unfair prejudice to the
appellant? Though the trial judge in the case before us did not
use this analysis, our review of the record reveals that Moore's
suicide note is relevant and its probative value is not
substantially outweighed by any unfair prejudice.
In summary, we hold that Moore's suicide note falls
within the dying declaration exception to the hearsay rule. We
further conclude that the application of W. Va. R. Evid. 401, 402,
and 403 to the facts in this case demonstrates that the probative
value of the suicide note is not substantially outweighed by any
unfair prejudice. Therefore, it was not error for the trial judge
to admit Moore's suicide note into evidence.
III.
The following three issues raised by the appellant will
be addressed together since they are all related: (1) was the
indictment charging the appellant with murder defective since it
did not specifically state that the appellant was being charged
with the offense of felony murder as well as first degree murder;
(2) was it error for the trial judge to read instructions regarding
felony murder; and (3) was it error for the trial judge to rule
that involuntary manslaughter was not a lesser included offense of murder. For reasons explained below, we find that the above issues
are without merit.
According to the appellant, the indictment charged him
with "feloniously, maliciously, deliberately and unlawfully . . .
slay[ing], kill[ing], and murder[ing] one Billy Harper[.]" The
appellant argues that since the indictment did not reflect that the
murder occurred during a robbery, it was error for the trial judge
to read instructions regarding felony murder. However, this
argument has been rejected previously by this Court in a case in
which the defendant was convicted under the theory of felony
murder:
'An indictment which charges that the
defendant feloniously, wilfully, maliciously,
deliberately, premeditatedly and unlawfully
did slay, kill and murder is sufficient to
support a conviction for murder committed in
the commission of, or attempt to commit arson,
rape, robbery or burglary, it not being
necessary, under W. Va. Code, 61-2-1, to set
forth the manner or means by which the death
of the deceased was caused.' Syllabus Point
5, State v. Bragg, 160 W. Va. 455, 235 S.E.2d 466 (1977).
Syl. pt. 10, State v. Young, 173 W. Va. 1, 311 S.E.2d 118 (1983).
Thus, it is clear that the indictment did not need to specifically
charge the appellant with felony murder. Additionally, it follows
that it was not error for the trial judge to read instructions
regarding felony murder.
As for the appellant's last contention that it was error
for the trial judge to rule that involuntary manslaughter was not
a lesser included offense of murder, the State maintains that the
trial judge properly found that the evidence at the trial did not
support an instruction to the jury on involuntary manslaughter.
This Court held in syllabus point 1 of State v. White, 171 W. Va.
658, 301 S.E.2d 615 (1983) that "'[a]n instruction to the jury is
proper if it is a correct statement of the law and if sufficient
evidence has been offered at trial to support it.' Syllabus Point
8, State v. Hall, 171 W. Va. 212, 298 S.E.2d 246 (1982)." Our
review of the record reveals that the State is correct: the
evidence at the trial did not support an instruction to the jury on
involuntary manslaughter.
IV.
The next issue raised by the appellant is whether the
trial judge erred by refusing to grant the appellant's motion for
a change in venue. Syllabus points 1, 2 and 3 of State v. Derr,
___ W. Va. ___, 451 S.E.2d 731 (1994) are helpful to the resolution
of this issue:
1. '"To warrant a change of venue in a
criminal case, there must be a showing of good
cause therefor, the burden of which rests on
the defendant, the only person who, in any
such case, is entitled to a change of venue.
The good cause aforesaid must exist at the
time application for a change of venue is
made. Whether, on the showing made, a change of venue will be ordered, rests in the sound
discretion of the trial court; and its ruling
thereon will not be disturbed, unless it
clearly appears that the discretion aforesaid
has been abused." Point 2, Syllabus, State v.
Wooldridge, 129 W. Va. 448, 40 S.E.2d 899
(1946).' Syllabus Point 1, State v. Sette,
161 W. Va. 384, 242 S.E.2d 464 (1978).
2. '"A present hostile sentiment against
an accused, extending throughout the entire
county in which he is brought to trial, is
good cause for removing the case to another
county." Point 2, Syllabus, State v. Dandy,
151 W. Va. 547, 153 S.E.2d 507 (1967) quoting
Point 1, Syllabus, State v. Siers, 103 W. Va.
30, 136 S.E. 503 (1927).' Syllabus Point 2,
State v. Sette, 161 W. Va. 384, 242 S.E.2d 464
(1978).
3. One of the inquiries on a motion for
a change of venue should not be whether the
community remembered or heard the facts of the
case, but whether the jurors had such fixed
opinions that they could not judge impartially
the guilt or innocence of the defendant.
In the case before us, the trial judge conducted a
thorough individual voir dire of each prospective juror over the
course of four days. Our review of the record indicates that most
of the prospective jurors had heard about the case through the
television, newspaper, or word of mouth, although few of the jurors
could remember any specific details. However, each prospective
juror was specifically asked whether his or her knowledge of the
case would influence his or her decision at trial, and those
prospective jurors who indicated that they could not be impartial
were dismissed for cause.
Because of the extensive voir dire conducted by the trial
judge and because any juror who stated that he or she could not be
impartial was removed, we do not find that a change of venue was
necessary. Therefore, the trial judge did not abuse his discretion
by refusing to grant the change of venue.
V.
The next issue raised by the appellant is that the trial
judge erred in refusing to grant the appellant's challenge for
cause of L. R. Northcraft, a prospective juror who was a good
friend of four key State witnesses, a friend of the victim and the
victim's daughter, and who knew some of the facts of the case from
the two people who discovered the body of the victim.See footnote 6 The State
points out that Northcraft also stated that he knew the appellant's
family. The trial judge repeatedly questioned Northcraft about
whether he could be impartial, and Northcraft repeatedly assured
the trial judge that he could be.
This Court held in syllabus point 7 of State v. Neider,
170 W. Va. 662, 295 S.E.2d 902 (1982) that "'"[t]he true test as to
whether a juror is qualified to serve on the panel is whether
without bias or prejudice he can render a verdict solely on the
evidence under the instructions of the court." Syllabus Point 1, State v. Kilpatrick, 158 W. Va. 289, 210 S.E.2d 480 (1974).'
Syllabus Point 3, State v. Beck, 167 W. Va. 830, 286 S.E.2d 234
(1981)." Our review of the record indicates that Northcraft was
qualified to serve on the panel. Thus, we do not find that the
trial judge erred in his ruling regarding prospective juror
Northcraft.
VI.
The appellant's next assignment of error involves whether
or not the trial judge erred in giving instructions regarding
accomplices and robbery. We are mindful that "[i]n reviewing the
adequacy of a trial court's choice and selection of jury
instructions, we accord the trial court much discretion and will
not reverse provided that the instructions, taken as whole,
adequately state the controlling law." Derr, ___ W. Va. at ___,
451 S.E.2d at 745.
A.
More specifically, the appellant asserts that the trial
court erred in granting an instruction on accomplices and
accomplice testimony when there was no testimony by an accomplice
at trial. The basis of the appellant's argument is that since
neither he nor Brian Vincent testified at trial and since no one
else was charged with the crime, there was no testimony by an
accomplice.
An accomplice is defined as "[o]ne who is in some way
concerned or associated in commission of crime; partaker of guilt;
one who aids or assists, or is an accessory." Black's Law
Dictionary 17 (6th ed. 1990) (citation omitted). The State
correctly points out that although neither the appellant nor Brian
Vincent testified, Thomas and Moore testified and both could be
considered accomplices since they knowingly drove the appellant and
Brian Vincent to the scene of the crime.See footnote 7 Therefore, Thomas and
Moore assisted the appellant with the crime.
Additionally, the State contends that the appellant
tendered an instruction on accomplice testimony similar to that offered by the State which the trial judge refused. Therefore, the
appellant cannot complain about an instruction which was granted on
the same issue. We agree with the State's contentions and conclude
that the trial judge did not abuse his discretion.
B.
The appellant argues that the trial judge erred in
granting an instruction defining the elements of robbery without
specifically stating that the stolen goods were "of value" as set
forth in W. Va. Code, 61-2-12 [1961]. We disagree.
The words "of value" do not appear in the text of the
portion of the robbery statute which is applicable to the facts in
the case before us. Instead, the words "of value" only appear in
the portion of the robbery statute which concerns bank robberies.
See W. Va. Code, 61-2-12 [1961].
Moreover, although not directly on point, this Court held
the following in syllabus point 2 of State v. Alvis, 116 W. Va.
326, 180 S.E. 257 (1935): "It must appear from an indictment for
robbery that the article taken had value, but value need not be
specifically averred." (emphasis added). This Court explained that
"'[a]s force or fear is the main ingredient of [robbery], the
indictment need not specify value.' [citations omitted] We know
as men that some value attaches to a rifle, watch and flashlight. The amount of that value is not material." Id., 116 W. Va. at 327,
180 S.E. at 257-58 (1935) (citations omitted).
This rationale is equally applicable to jury instructions
regarding robbery. The trial judge, in the case before us,
adequately instructed the jury since he specifically stated in the
jury instructions that the jury must find that the State proved
that a wallet or a .22 rifle was taken with force in order to find that robbery had occurred.See footnote 8 Therefore, we find the appellant's
contentions to be without merit.See footnote 9
VII.
The appellant argues that the State made several unfair
statements during its closing argument. First, the appellant
complains that the State made unprofessional statements regarding
the appellant's trial counsel during the closing argument.
Evidently, the appellant's trial counsel had remarked that the
State kept information from the appellant, although it is not clear
from the record when such remark was made. The State during
closing arguments made the following statement about the remarks of
the appellant's trial counsel: the appellant's trial counsel's
remarks are "nothing but a low down lie." The appellant contends
that this statement was prejudicial. The State, on the other hand,
points out that the appellant failed to object to its comment;
therefore, the appellant failed to preserve this error.
We agree: "'Where objections were not shown to have been
made in the trial court, and the matters concerned were not
jurisdictional in character, such objections will not be considered
on appeal.' Syllabus Point 1, State Road Commission v. Ferguson,
148 W. Va. 742, 137 S.E.2d 206 (1964)." Syllabus point 3, O'Neal v. Peake Operating Co., 185 W. Va. 28, 404 S.E.2d 420 (1991).
Accordingly, we decline to further address this issue.
Second, the appellant complains that the trial judge
erred in permitting the State in closing argument to add the
following additional information which was not in evidence: that
glass was recovered from the victim's pants and that Brian Vincent
was employed at a glass factory at one time, thereby implying that
Brian Vincent was at the scene of the crime. The State correctly
points out that the information the appellant complains about was
in evidence. There was testimony at trial from Dr. Livingstone,
the assistant medical examiner, that glass was found on the victim.
Also, there was testimony that Brian Vincent was working in a glass
factory at the time of the murder. Therefore, since this
information was in evidence, it was not error for the State to
bring this information up during closing argument. Moreover, the
appellant failed to object to the State's discussion of this
evidence during closing argument.
Third, the appellant complains that the State misquoted
the evidence relating to the DNA test results. The State points
out that the appellant objected upon the prosecuting attorney's
discussion of the DNA test results. When the appellant objected,
the prosecuting attorney immediately apologized in front of the
jury for misquoting the evidence and then moved on to another topic. We do not find that the State's remarks in closing argument
require reversal of the jury verdict.
VIII.
The appellant also argues that the trial judge erred in
permitting two witnesses, Thomas and Moore, to be interviewed and
coached by the prosecution at the same time and in the same room
after the trial court had ordered that all witnesses be
sequestered.
First, the trial judge did not permit the prosecution to
interview Thomas and Moore at the same time. The trial judge was
unaware that this had occurred until after the State had
interviewed Thomas and Moore at the same time. Second, the trial
judge responded to this violation of the sequestration order by (1)
refusing to allow the State to introduce into evidence any
previously undisclosed information which it became aware of as a
result of this meeting; and by (2) advising the jury prior to
Moore's and Thomas' testimony that they had jointly met with the
prosecution prior to trial.
This Court held the following in syllabus point 4 of
State v. Steele, 178 W. Va. 330, 359 S.E.2d 558 (1987): " Where a
State witness violates a sequestration order and is permitted to
testify, the question on appeal is whether the witness's violation
of the order and the ensuing testimony had a prejudicial effect on the defendant's case." The State argues that since Moore and
Thomas had previously given statements to the police which could
have been used to impeach their testimony, there was no error.
We agree that the violation of the sequestration order
did not have prejudicial effect on the appellant's case. The trial
judge cautioned the jury by stating the following before Moore and
Thomas testified:
I wish to again advise the jury in
assessing the credibility and the weight of
the testimony of Bucky Moore you may consider
the fact that on Sunday, July 25, the
prosecuting attorney, David Hanlon, met with
Glen Thomas and Bucky Moore together all three
present at the same time and place, and the
prosecuting attorney discussed with and
questioned each of them, Glen Thomas and Bucky
Moore, regarding their testimony and
statements.
Additionally, Moore and Thomas had previously given statements to
the police prior to violating the sequestration order which could
have been used to impeach their testimony. Accordingly, the trial
judge did not err by permitting Moore and Thomas to testify.
IX.
The appellant argues that a new trial should have been
granted since a witness was discovered subsequent to the trial who
saw the appellant and Brian Vincent at a different location at the
time other witnesses claim to have seen them walking on a road near
the victim's house.
We are guided by principles set forth in syllabus points
1 and 2 of State v. King, 173 W. Va. 164, 313 S.E.2d 440 (1984):
1. 'A new trial will not be granted
on the ground of newly-discovered evidence
unless the case comes within the following
rules: (1) The evidence must appear to have
been discovered since the trial, and, from the
affidavit of the new witness, what such
evidence will be, or its absence
satisfactorily explained. (2) It must appear
from the facts stated in his affidavit that
plaintiff was diligent in ascertaining and
securing his evidence, and that the new
evidence is such that due diligence would not
have secured it before the verdict. (3) Such
evidence must be new and material, and not
merely cumulative; and cumulative evidence is
additional evidence of the same kind to the
same point. (4) The evidence must be such as
ought to produce an opposite result at a
second trial on the merits. (5) And the new
trial will generally be refused when the sole
object of the new evidence is to discredit or
impeach a witness on the opposite side.'
Syllabus, State v. Frazier, 162 W. Va. 635,
253 S.E.2d 534 (1979), quoting, Syl. pt. 1,
Halstead v. Horton, 38 W. Va. 727, 18 S.E. 953
(1894).
2. 'A new trial on the ground of
after-discovered evidence or newly discovered
evidence is very seldom granted and the
circumstances must be unusual or special.'
Syllabus Point 9, State v. Hamric, 151 W. Va.
1, 151 S.E.2d 252 (1966).
Additionally, we are mindful that the decision to grant a new trial
is within the discretion of the trial court. Id. 173 W. Va. at
165, 313 S.E.2d at 442.
Our review of the record does not reveal that the
testimony of the newly discovered witness is so unusual or special
that it will produce an opposite result. Therefore, the trial
judge did not err by refusing to award a new trial.
X.
Lastly, the appellant complains that the jury verdict is
contrary to the law and contrary to the weight and preponderance of
the evidence. The appellant argues that the evidence against him
was wholly circumstantial. Additionally, the appellant maintains
that most of the evidence came from Moore and Thomas, and that
Moore had obviously not been truthful. Thus, the jury did not have
sufficient evidence to find the appellant guilty.
The appellant correctly states that most of the evidence
against him was circumstantial. This Court has held the following
about circumstantial evidence in syllabus point 4 of State v. Gum,
172 W. Va. 534, 309 S.E.2d 32 (1983):
'"The weight of circumstantial evidence,
as in the case of direct evidence, is a
question for jury determination, and whether
such evidence excludes, to a moral certainty,
every reasonable hypothesis, other than that
of guilt, is a question for the jury."
Syllabus point 4, State v. Bailey, 151 W. Va.
796, 155 S.E.2d 850 (1967).' Syl. pt. 4,
State v. Meadows, 172 W. Va. 247, 304 S.E.2d 831 (1983).
Our review of the record indicates that the jury had
sufficient evidence to make a determination of guilt or innocence. There was evidence that the appellant and Brian Vincent were seen
walking near the victim's house. There was also evidence that the
two asked someone to provide an alibi. Additionally, Thomas and
Moore testified that either Brian Vincent or the appellant told
them that they had killed the victim. Also, an ax handle which was
recovered in the woods had hair on it which was consistent with the
victim's hair, and a .22 rifle which belonged to the victim was
recovered from behind a school bus stop.
Moreover, the jury was instructed by the trial judge to
keep in mind that "[c]ircumstantial evidence must always be scanned
with great caution and can never justify a verdict of guilty unless
the circumstances proved are of such character as to produce upon
a fair and unprejudiced mind a moral conviction of guilt of the
accused beyond a reasonable doubt." Accordingly, we do not find
that the verdict against the appellant should be set aside.
XI.
Since the appellant does not raise any errors which
warrant reversal, we affirm the October 7, 1993 order of the
Circuit Court of Ritchie County.
Affirmed.
Footnote: 1
At least one court, in dicta, has stated that the
suicide note in the case before it would not be admissible as a
dying declaration. United States v. Lemonakis, 485 F.2d 941
(D.C. Cir. 1973), cert. denied, 415 U.S. 989, 94 S. Ct. 1586, 39 L. Ed. 2d 885 (1974), and cert. denied by Enten v. U.S., 415 U.S. 989, 94 S. Ct. 1587, 39 L. Ed. 2d 885. In Lemonakis, an
informer, who was granted immunity to testify against the
appellant, committed suicide before the trial against the
appellant began. In a suicide note left to the informer's
girlfriend the informer stated that the appellant did not commit
the robberies. The appellant moved to admit the suicide note as
exculpatory evidence; however, the trial court excluded it as
hearsay.
The United States Court of Appeals, District of
Columbia Circuit stated that fairness required that the suicide
note be admitted into evidence in spite of the hearsay rule. The
rationale was that since inculpatory recordings between the
informer and appellant had been admitted at trial, fairness
demanded that the exculpatory suicide note be admitted. However,
the United States Court of Appeals, District of Columbia Circuit
ultimately held that the exclusion of the suicide note by the
trial court below was harmless error. Id. at 956-58. In a
footnote the United States Court of Appeals stated that since the
note was not made with the belief that death was imminent (the
note was written almost a week before the informant committed
suicide) and since the note did not contain information about the
causes or circumstances of its maker's death, the suicide note
would not fall into the dying declaration exception to the
hearsay rule. Id. at 956 n. 24.Footnote: 2
There are at least two other cases which address
whether a suicide note is admissible into evidence as a dying
declaration: State v. Hodge, 655 S.W.2d 738 (Mo. Ct. App. 1983)
and Commonwealth v. Antonini, 69 A.2d 436 (Pa. Super. Ct. 1949).
However, in both cases the courts found that the suicide note was
not admissible since the declarant was not the victim of a
homicide (neither Missouri nor Pennsylvania has codified or
adopted rules of evidence which are similar to the West Virginia
Rules of Evidence or the Federal Rules of Evidence). See Hodge,
655 S.W.2d at 742 and Antonini, 69 A.2d at 438. These cases are
not helpful to the issue before us since, as we have previously
pointed out, West Virginia has adopted W. Va. R. Evid. 804(b)(2),
which has broadened the common law to include declarants who are
not murder victims.Footnote: 3
W. Va. R. Evid. 401 states: " Rule 401. Definition of
'Relevant Evidence'. 'Relevant evidence' means evidence having
any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or
less probable than it would be without the evidence."
W. Va. R. Evid. 402 states: " Rule 402. Relevant
Evidence Generally Admissible; Irrelevant Evidence Inadmissible.
All relevant evidence is admissible, except as otherwise provided
by the Constitution of the United States, by the Constitution of
the State of West Virginia, by these rules, or by other rules
adopted by the Supreme Court of Appeals. Evidence which is not
relevant is not admissible."
W. Va. R. Evid. 403 states: " Rule 403. Exclusion of
Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of
Time. Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence."Footnote: 4
It has been stated that W. Va. R. Evid. 609, which
concerns the admissibility of convictions for impeachment
purposes, may be an exception to the W. Va. R. Evid. 403
analysis. See 1 Cleckley, supra § 4-3 at 224. However, since
this issue is not before us, we decline to further address it.Footnote: 5
We point out that the analysis has changed somewhat
since syllabus point 3 of Young, supra was written due to the
adoption of the rules of evidence (our discussion of Young is
found on page 9 of this opinion). Therefore, we clarify that the
jury and not the trial judge determines whether there is a motive
to falsify since that issue goes to whether the dying declaration
is credible.Footnote: 6
Although a prospective juror, Northcraft was not
selected as a juror for appellant's trial.Footnote: 7
The trial judge gave the following instruction
regarding accomplice testimony:
The Court further instructs the jury
that an accomplice is a person who knowingly
and with criminal intent participates
directly or indirectly with another person in
the commission of a crime. The testimony of
an accomplice is admissible in evidence yet
in considering such testimony as to matters
connecting the defendant with the commission
of the crime which are not supported by other
evidence and circumstances you should examine
such testimony with great care and caution in
determining what weight you give thereto.
You may, however, find the defendant guilty
on the evidence of an accomplice standing
alone and not supported by any other evidence
if you are convinced by such evidence of the
defendant's guilt beyond all reasonable
doubt.
Footnote: 8
The trial judge gave the following instruction on
robbery:
To prove the commission of or attempt to
commit robbery the state of West Virginia
must prove each of the following elements
beyond a reasonable doubt: 1.) that the
defendant, Shawn Satterfield, in Ritchie
County, West Virginia, on or about the 23rd
day of January, 1993, attempted to unlawfully
or unlawfully took and carried away or
attempted to take and carry away a wallet or
.22 rifle from the person of Bill Harper or
in his presence against his will by use of
force or violence to Bill Harper or by the
threat or presenting of a deadly weapon or
instrumentality or by putting him in fear of
bodily injury and with the intent to
permanently deprive Bill Harper of his
property.
Robbery is the unlawful taking or
carrying away of money or goods from the
person of another or in his presence against
his will by force or violence to his person
or by the threat or presenting of a deadly
weapon or instrumentality or by putting him
in fear of bodily injury with the intent to
deprive him permanently of the property. In
order to constitute the crime of attempted
robbery two requirements must be met; one, a
specific intent to commit the robbery and
two, an overt act toward the commission of
the robbery which falls short of completing
the robbery.
Footnote: 9
The appellant also argues that the trial judge erred
by refusing 42 of appellant's instructions and in granting 11 of
the State's instructions. However, since these issues were not
adequately addressed in the appellant's brief, we decline to
address these issues on appeal. See syl. pt. 3, Higginbotham v.
City of Charleston, 157 W. Va. 724, 204 S.E.2d 1 (1974),
overruled on other grounds, O'Neil v. City of Parkersburg, 160 W.
Va. 694, 237 S.E.2d 504 (1977).
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