State v. Stalnaker

279 S.E.2d 416 (1981)

STATE of West Virginia v. Robert Lloyd STALNAKER

No. 14384.

Supreme Court of Appeals of West Virginia.

June 23, 1981.

Paul H. Woodford II, Glenville, for plaintiff.

Chauncey H. Browning, Atty. Gen., S. Clark Woodroe, Asst. Atty. Gen., Charleston, for defendant.

NEELY, Justice:

This is an appeal from a first-degree murder conviction in the Circuit Court of Gilmer County. The defendant and the victim had known each other for forty years before the fatal shooting, during which period they had done a lot of drinking and socializing together. At the time of the shooting, both the defendant and the victim lived at the Conrad Hotel, and on the day of the shooting both the defendant and the victim had been drinking heavily. At approximately 6:45 p. m. on 17 August 1977 the defendant, at the victim's request, went to the victim's room with a loaded weapon. According to the defendant's testimony the *417 defendant and the victim were engaged in an ongoing quarrel about a business transaction and because of the victim's appearance and demeanor, which the defendant described as "perfectly wild," the defendant testified that he had apprehensions about the victim's intentions and for that reason armed himself.

The victim, Thurl Nicholas, had a reputation for being violent and dangerous, and ten years before the victim's own death the victim had actually shot at the defendant, putting a hole in the defendant's T-shirt. The defendant's theory of the case was that the victim made threatening gestures and put him in reasonable fear of his own safety, or alternatively that the victim was so provocative that the defendant was guilty at the most of voluntary manslaughter.

There are two primary errors which require reversal of this case. While other errors have been assigned,[1] since they are not dispositive we see no need to address them. The primary error is that the court failed to give an instruction permitting the jury to find the defendant guilty of voluntary manslaughter. This Court recently addressed this very issue in State v. Cobb, W.Va., 272 S.E.2d 467 (1980), when we ruled that a trial court must give an instruction for a lesser included offense when evidence has been produced to support such a verdict. In Cobb, the court refused to instruct the jury as to involuntary manslaughter even though evidence at trial supported a verdict on the lesser charge. Therefore, we overturned the conviction of voluntary manslaughter. In the present case the defendant introduced evidence of provocation and heat of passion consistent with the lesser offense of voluntary manslaughter. Hence, he was entitled to a voluntary manslaughter instruction. This is so even though the only evidence on the issue was his own testimony.

The second error was that the court instructed the jury that the defendant had to prove the affirmative defense of self-defense by a preponderance of the evidence. While we recognize that this was a correct statement of the law before our case of State v. Kirtley, W.Va., 252 S.E.2d 374 (1978) and that the Kirtley case was not made retroactive, nonetheless, we conclude that Kirtley applies to the case before us since the case before us was in the appellate stage at the time Kirtley was decided. As we said in syl. pt. 4 of Kirtley, supra,:

Once there is sufficient evidence to create reasonable doubt that the killing resulted from the defendant acting in self-defense, the prosecution must prove beyond a reasonable doubt that the defendant did not act in self-defense.

Accordingly, for the foregoing reasons the judgment of the Circuit Court of Gilmer County is reversed and the case is remanded for a new trial.

Reversed and remanded.

NOTES

[1] The defendant also contends that the judgment was contrary to the evidence, that statements of two prospective jurors had tainted the entire jury panel during voir dire and that the instructions concerning reasonable doubt and malice were incorrect.