State of WV v. Mullins
Annotate this Case
January 1995 Term
___________
No. 22514
___________
STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee,
v.
GERALD D. MULLINS,
Defendant Below, Appellant
_______________________________________________________
Appeal from the Circuit Court of Kanawha County
Honorable Lyne Ranson, Judge
Indictment No. 93-F-7
AFFIRMED
_______________________________________________________
Submitted: January 18, 1995
Filed: March 3, 1995
William C. Forbes,
Prosecuting Attorney
Mary Beth Kershner
Assistant Prosecuting Attorney
Charleston, West Virginia
Attorneys for the Appellant
Arthur T. Ciccarello
Ciccarello, Del Giudice and LaFon
Charleston, West Virginia
Attorney for the Appellee
JUDGE FOX delivered the Opinion of the Court.
JUSTICE BROTHERTON did not participate.
JUDGE FOX sitting by temporary assignment.
JUSTICE CLECKLEY dissents and reserves the right to file a
dissenting opinion.
SYLLABUS BY THE COURT
1. "'"In a criminal case, a verdict of guilt will not be
set aside on the ground that it is contrary to the evidence, where
the state's evidence is sufficient to convince impartial minds of
the guilt of the defendant beyond a reasonable doubt. The evidence
is to be viewed in the light most favorable to the prosecution. To
warrant interference with a verdict of guilt on the ground of
insufficiency of evidence, the court must be convinced that the
evidence was manifestly inadequate and that consequent injustice
has been done." Syl. Pt. 1, State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978).' Syl. Pt. 7, State v. Knotts, 187 W.Va. 795,
421 S.E.2d 917 (1992)." Syllabus point 1, State v. Kirkland, 191
W.Va. 586, 447 S.E.2d 278 (1994).
2. "'Where a defendant is convicted of a particular
substantive offense, the test of the sufficiency of the evidence to
support the conviction necessarily involves consideration of the
traditional distinctions between parties to offenses. Thus, a
person may be convicted of a crime so long as the evidence
demonstrates that he acted as an accessory before the fact, as a
principal in the second degree, or as a principal in the first
degree in the commission of such offense.' Syl. Pt. 8, State v.
Fortner, 182 W.Va. 345, 387 S.E.2d 812 (1989)." Syllabus point 2,
State v. Kirkland, 191 W.Va. 586, 447 S.E.2d 278 (1994).
3. "A person who is the absolute perpetrator of a crime
is a principal in the first degree, and a person who is present,
aiding and abetting the fact to be done, is a principal in the
second degree." Syllabus point 5, State v. Fortner, 182 W.Va. 345,
387 S.E.2d 812 (1989).
4. A finding that two criminal actors possess a shared
criminal intent does not require that an accused aider and abettor
intend to commit the crime committed by the principal in the first
degree. The intent element is relaxed where there is evidence of
substantial physical participation in the crime by the accused.
5. Substantial physical participation by a person
charged as an aider and abettor in a criminal undertaking
constitutes evidence from which a jury may properly infer an intent
to assist the principal criminal actor.
Fox, Judge:See footnote 1
On 18 March 1994, a Kanawha County, West Virginia, jury
convicted the appellant, Gerald D. Mullins, of the crime of
principal in the second degree to the first degree murder of James
Arnold Pierson. The jury did not recommend mercy, and on 22 April
1994, the circuit court sentenced the appellant to life in prison
without the possibility of parole. He now appeals from the final
order entered on 17 June 1994.
On 20 December 1991, at about 7:00 p.m., the appellant
and his girlfriend, Karen King, went to the Tap-a-Keg Bar in
Charleston, West Virginia. According to a bartender, Karen's
father, Charles King, came into the bar sometime between 10:00 p.m.
and 10:30 p.m. The victim, James Arnold "Jamie" Pierson, arrived
after midnight, accompanied by Gary Prater, Lisa Blackwell, and
Barbara Hammond. As soon as Barbara Hammond walked in the door,
she and Karen King engaged in a verbal confrontation, and testimony
indicated this behavior continued, on and off, right up to the time
of the incident which resulted in Jamie Pierson's death. A "pretty
good crowd" was present that night, and the principals in this case were drinking alcoholic beverages and shooting pool. The pooltable
was quite close to the bar.
Pierson and his friends were about to leave the bar when
more angry words were exchanged, and Karen King threw her drink
into Pierson's face. According to the evidence, Pierson either
grabbed her wrist or hit her, and she then smashed the glass into
his head. At this point, the appellant moved from around the
pooltable to defend his girlfriend and swung his poolstick at
Pierson. His first swing missed, but he hit the bar, shattering
glass and breaking the poolstick. The appellant then struck
Pierson in the head with the fat end of the poolstick. Pierson
fell to the floor. At this same time, the evidence indicates that
Karen King's father, Charles King, was also hitting and kicking
Pierson and apparently stabbing him three times as well.
The appellant also fell to the floor when Pierson went
down, and one witness testified that he saw the appellant stab
Pierson in the buttocks with a pocket knife. The medical examiner
found the buttocks wound, as well as two other nonfatal stab wounds
which were consistent with the smaller knife used by the appellant.
However, Pierson suffered three more grievous stab wounds that
indicated the use of a larger knife. It was this knife, apparently
wielded by Charles King, that caused a fatal wound to Pierson's
heart. All parties acknowledge that the fatal wounds were
inflicted by Charles King. Although King was also indicted for Pierson's murder, he has not yet been brought to trial due to
severe health problems.
The appellant assigns the following errors on appeal:
(1) the trial court erred in refusing to grant the defendant's
motion for a directed verdict of acquittal at the conclusion of the
State's case in chief; (2) the evidence was insufficient in this
case to prove beyond a reasonable doubt that the principal in the
first degree committed the offense of first degree murder; and (3)
it is constitutionally impermissible to shift the burden of proof
to the defendant in a criminal case.
The first two assignments of error question the
sufficiency of the evidence upon which the appellant was convicted.
This Court has explained the standard for reversing cases based
upon an insufficiency of evidence as follows:
"'In a criminal case, a verdict of guilt
will not be set aside on the ground that it is
contrary to the evidence, where the state's
evidence is sufficient to convince impartial
minds of the guilt of the defendant beyond a
reasonable doubt. The evidence is to be
viewed in the light most favorable to the
prosecution. To warrant interference with a
verdict of guilt on the ground of
insufficiency of evidence, the court must be
convinced that the evidence was manifestly
inadequate and that consequent injustice has
been done.' Syl. Pt. 1, State v. Starkey, 161
W.Va. 517, 244 S.E.2d 219 (1978)." Syl. Pt.
7, State v. Knotts, 187 W.Va. 795, 421 S.E.2d 917 (1992).
Syllabus point 1, State v. Kirkland, 191 W.Va. 586, 447 S.E.2d 278
(1994). More specifically, in syllabus point 2 of Kirkland, supra,
this Court held that:
"Where a defendant is convicted of a
particular substantive offense, the test of
the sufficiency of the evidence to support the
conviction necessarily involves consideration
of the traditional distinctions between
parties to offenses. Thus, a person may be
convicted of a crime so long as the evidence
demonstrates that he acted as an accessory
before the fact, as a principal in the second
degree, or as a principal in the first degree
in the commission of such offense." Syl. Pt.
8, State v. Fortner, 182 W.Va. 345, 387 S.E.2d 812 (1989).
West Virginia Code § 61-11-6 (1992) provides, in part,
that "[i]n the case of every felony, every principal in the second
degree, and every accessory before the fact, shall be punishable as
if he were the principal in the first degree. . . ." "A person who
is the absolute perpetrator of a crime is a principal in the first
degree, and a person who is present, aiding and abetting the fact
to be done, is a principal in the second degree." Syl. pt. 5,
State v. Fortner, 182 W.Va. 345, 387 S.E.2d 812 (1989).
In this case, the appellant argues that there was
insufficient evidence to establish that he was a principal in the
second degree to murder of the first degree because the State
failed to prove a shared intent or association between him and
Charles King, the principal in the first degree. The appellant
maintains that because there was no evidence of any communications between the two men concerning any type of threat or assault on the
victim, and no evidence that Charles King knew that the appellant
was acting as his aider and abettor, then there is insufficient
evidence to prove that the appellant was acting to aid Charles King
in carrying out whatever criminal intent he may have had.
In response, the State points out there was evidence
that, during the initial stages of the affray, the defendant said,
"I'm going to get my licks in too," and that this indicated
knowledge on his part that another person was already attacking
Pierson. The State also submits that the fact the appellant
knocked Pierson to the floor when he hit him in the head with a
poolstick is evidence that the appellant made Charles King's fatal
action possible. Finally, the State maintains that the three stab
wounds which were apparently inflicted by the appellant are "ample
evidence that appellant intended with King to bring about the
demise of Jamie Pierson."
We find the State presented sufficient evidence from
which the jury could determine that the appellant acted as an aider
and abettor and was therefore guilty of being a principal in the
second degree to murder of the first degree. The jury received
instructions which described the six possible verdicts it could
reach in this case: guilty of being a principal in the second
degree to murder of the first degree; guilty of being a principal
in the second degree to murder of the first degree with a recommendation of mercy; guilty of being a principal in the second
degree to murder of the second degree; guilty of being a principal
in the second degree to voluntary manslaughter; guilty of being a
principal in the second degree to involuntary manslaughter; and not
guilty. The elements of being a principal in the second degree to
murder of the first degree were explained to the jury as follows:
First, the essential elements of a principal
in the second degree to the murder of the
first degree are one: That Charles E. King,
in Kanawha County, West Virginia, on or about
the 21st day of December, 1991 did willfully,
maliciously, deliberately, premeditatedly and
unlawfully kill James Arnold Pierson. And
that the defendant, Gerald Mullins, was
present at said time and place, aiding or
abetting by acts or words, encouraging,
inciting or in some manner offering aid or
counsel to the crime, that is, that Charles
King commit the murder of the first degree.
Now, ladies and gentlemen, in order for a
defendant to be convicted as an aider and
abettor and thus a principal in the second
degree, the prosecution must demonstrate that
the defendant shared a criminal intent of the
principal in the first degree. However, the
defendant is not required to possess identical
intent as the principal in the first degree.
Examining these necessary elements as they apply to the
appellant, there is no question that he was not only present during
the attack, but he was also an intensely interested participant in
the violence that was perpetrated against Pierson. In State v.
Fortner, 182 W.Va. 345, 387 S.E.2d 812 (1989), this Court
explained:
To be convicted as an aider and abettor, the
law requires that the accused "in some sort
associate himself with the venture, that he participate in it as in something that he
wishes to bring about, that he seek by his
action to make it succeed." United States v.
Peoni, 100 F.2d 401, 402 (2d Cir. 1938),
quoted with approval in Nye & Nissen v. United
States, 336 U.S. 613, 619, 69 S. Ct. 766, 770,
93 L. Ed. 919, 925 (1949), and State v. Harper,
___ W.Va. ___, ___, 365 S.E.2d 69, 73 (1987).
The State must demonstrate that the defendant
"shared the criminal intent of the principal
in the first degree." State v. Harper, ___
W.Va. at ___, 365 S.E.2d at 74. (Citations
omitted). In this regard, the accused is not
required to have intended the particular crime
committed by the perpetrator, but only to have
knowingly intended to assist, encourage, or
facilitate the design of the criminal actor.
State v. Harper, supra; State v. West, 153
W.Va. 325, 168 S.E.2d 716 (1969). The intent
requirement is relaxed somewhat where the
defendant's physical participation in the
criminal undertaking is substantial.
Id. at 823 (citations omitted).
A finding that two criminal actors possess a shared
criminal intent does not require that an accused aider and abettor
intend to commit the crime committed by the principal in the first
degree. The intent element is relaxed where there is evidence of
substantial physical participation in the crime by the accused.
Substantial physical participation by a person charged as an aider
and abettor in a criminal undertaking constitutes evidence from
which a jury may properly infer an intent to assist the principal
criminal actor. Therefore, whether the appellant in this case
actually wished to kill Pierson is irrelevant. The fact that the
appellant inflicted a considerable trauma to the victim's head with
a poolstick and then stabbed the victim three times, albeit
nonfatally, is certainly indicative of "substantial physical participation" in the criminal undertaking that resulted in the
death of Jamie Pierson.
Next, the appellant argues that there was insufficient
evidence to prove beyond a reasonable doubt that the principal in
the first degree, Charles King, committed the offense of first
degree murder. The appellant maintains no one saw Charles King do
anything to Jamie Pierson, other than kick him and strike him with
a poolstick, and there was absolutely no evidence that King
premeditated or deliberated to kill Jamie Pierson. Therefore, the
appellant argues there is insufficient evidence to support a first-
degree murder conviction. We disagree.
We find the State presented sufficient evidence to prove
beyond a reasonable doubt that Charles King was guilty of first
degree murder. First, a significant amount of testimony presented
at trial indicated that Charles King was involved in the attack on
Pierson. Gary Bean, who did not know Pierson, testified that he
told the bar owner, Dennis McKinney, that there was going to be
trouble because Charles King had gotten involved in the dispute
between his daughter and Barbara "Bobbie" Hammond, and that Charles
King kept aggravating "[Pierson] and this Bobbie woman." Bean also
told McKinney that he saw a knife sticking out of Charles King's
right rear pocket.
Both Bean and James Hanna, a janitor who was sitting in
a booth reading when the fight erupted, testified that Charles King
was standing at the bar beside his daughter, Karen, when she threw
the drink into Pierson's face. Bean's girlfriend, Elizabeth
Holcomb, said she saw Charles King go toward Jamie Pierson before
the appellant reached him, but she didn't see him do anything,
probably because Bean was trying to get her away from the fight.
Charlotte Taylor, who was behind the bar once the fight
started, said that, from her vantage point, she could only see
Jamie Pierson until he was hit. However, she could still see the
appellant and Charles King hitting Pierson with poolsticks. Taylor
also said that she heard someone yell, "Tell Dennis to hurry up and
get the police and ambulance down here, they're killing him."
Barbara "Bobbie" Hammond said she hadn't seen Karen King
before that night. However, most of the witnesses testified about
the manner in which Karen King began screaming obscenities at
Hammond as soon as she walked in the door. Hammond was not Jamie
Pierson's girlfriend, but she did accompany him to the bar that
night. Hammond said Pierson was lying on the floor in the fetal
position, and Charles King was kicking him in the head when she
jumped him from behind. She said Charles King struck her with his
fist, either stunning her or knocking her out.
The testimony of two other witnesses corroborates this
portion of Hammond's account. Charlotte Taylor stated that "[a]t
one point Charlie King did leave the fight to go over and hit
Bobbie, knocked her up against the wall." When asked if he saw
Charles King in the middle of the fight, James Hanna said that he
"didn't see him until after they fell down behind the pooltable and
I seen the top of his head. That's when I realized that he was in
-- he was involved in the fight too." Hanna then said that Barbara
Hammond ". . . grabbed Charlie and pulled him up, and he stood up
and hit her right in the mouth just like a man would hit another
man. And that really surprised me, because I'm not used to a man
hitting a woman with his fist. And then he left, walked out the
door."
Although Charles King quickly left the bar, he called at
4:13 a.m. and talked to Dennis McKinney for approximately six or
seven minutes. During this time, McKinney tried to find out King's
location and keep him on the line for the police. Detective
Richard Ingram of the Charleston Police Department was present at
the bar at this time, and McKinney signaled to him when King
called. Detective Ingram picked up an extension and listened to
part of King's conversation with McKinney. According to Detective
Ingram, King "was excited and somewhat agitated, indicated that as
soon as the fight started, he had left, and that he had seen a lot
of blood, and indicated that's why he left." King asked how
Pierson was, and Detective Ingram indicated to McKinney that he did not want him to tell him that Pierson was dead. Detective Ingram
testified that King "wanted to know about the heat. I took
reference to the fact that he probably was talking about the police
again." During cross-examination, Detective Ingram answered in the
affirmative when he was asked, "And he was basically trying to pump
Dennis McKinney to find out how much the police knew. That was the
purpose of the call, wasn't it?"
Detectives Thomas Ransom and James Rollins of the
Charleston Police Department recovered Charles King's knife from
underneath the front passenger seat of a vehicle in which he was a
passenger. According to Detective Ransom, the knife was burned and
"in bad shape." Detective Ransom took a statement from Charles
King's sister, Betty Jean Hackney, who said King's clothes and
knife were burned in her fireplace. Detective Ransom also obtained
a statement from Freda Bryant Moore, Charles King's first cousin,
who said, "[h]e told me he did kill the guy, stabbed the boy, and
that he was going up the river for life and it didn't matter to
him." At trial, Freda Bryant Moore testified that she helped Betty
Jean Hackney clean the fireplace in which the clothes and knife
were burned and that she was told to dump the ashes in the river.
The final defense witness at trial was Carl Gibson, who
said that Charles King was married to his first cousin and that he
had worked with him on and off for the past ten years. Gibson
testified that King awakened him that night, beating on his door at approximately 2:30 or 2:45 a.m. King made phone calls from
Gibson's house. According to Gibson, King tried to call his
daughter, Karen, but she wasn't home; "[t]hen he called his wife
twice, and then he called Dennis at Dennis' Tap-a-Keg." Gibson
gave a statement to the police in January, 1992, in which he
discussed seeing blood spots on King's shirt and blood on his
hands. However, at trial Gibson repeatedly indicated that he
didn't remember, although he conceded that his memory of the night
was better in January, 1992.
In addition to all of this witness testimony regarding
King's activities on the night Jamie Pierson was killed, the
appellant's theory throughout the trial was that Charles King did
indeed kill Pierson, but without the appellant's assistance or
knowledge. For example, in opening statements the appellant's
counsel stated, "Charles King committed the murder in this case,
and there's no question about that . . . no question but that
Charles King was stabbing with a knife that inflicted fatal wounds.
And his intent was to do real harm and to kill Mr. Pierson."
During closing arguments, the appellant's counsel again stated, ".
. . I don't think there's anybody in this courtroom who doesn't
believe right now that Charlie King inflicted the fatal blow . . .
."
While it is true, and truly remarkable, that not a single
witness admitted to seeing Charles King stab Jamie Pierson, we find there is overwhelming circumstantial evidence to indicate that this
did in fact happen. Moreover, given the stark reality of Jamie
Pierson's sudden, senseless, and violent death, one can hardly
fault a jury that has repeatedly been told that Charles King
inflicted the fatal wounds, for concluding that King was in fact
guilty of first-degree murder.
The appellant's final argument on appeal challenges the
trial court's jury instructions on the issue of malice, arguing
that they were not unlike the instruction condemned in State v.
Jenkins, 191 W.Va. 87, 443 S.E.2d 244 (1994). In syllabus point 4
of Jenkins, this Court stated that "[a]n 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." The appellant argues that because some testimony
indicated that the appellant had words with another person in the
bar that night, "[t]he State attempted to show that he was
exhibiting ill will towards that person other than the decedent.
From the confrontation with another individual, the jury could have
inferred the malice toward the Defendant." We find no merit in
this argument, primarily because the jury was far more likely to
have inferred malice from the appellant's physical attack upon
Pierson than from a verbal exchange with another bar patron.
Moreover, we find no error in the trial court's instructions which
defined malice. The trial court explained as follows:
Now, ladies and gentlemen, you're going
to hear the word "malice" as I read you some further instructions, so I want to
specifically define malice for you, the term.
The word "malice," as used in these
instructions, is used in a technical sense.
It may either be express or implied, and it
includes not only anger, hatred and revenge,
but other unjustifiable motives. It may be
inferred or implied from you from all of the
evidence in this case, if you find such
inference is reasonable from the facts and
circumstances in this case which have been
proven to your satisfaction beyond a
reasonable doubt.
It may be inferred from any deliberate
and cruel act done by the defendant without
any reasonable provocation or excuse, however
sudden. Malice is not confined to ill will
toward any one or more particular persons, but
malice is every evil design in general, and by
that is meant that the fact has been attended
by such circumstances as are ordinary symptoms
of a wicked, depraved and malignant spirit and
carry with them the plain indications of a
heart, regardless of social duty and fatally
bent upon mischief.
It is not necessary that malice must have
existed for any particular length of time, and
it may first come into existence at the time
of the act or at any previous time.
The instruction rejected by the Jenkins Court began by stating:
"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." Jenkins, 443 S.E.2d at
248, n.4. The Jenkins Court stated that this initial sentence was
wrong, and then explained that "[t]he rule that malice must be
shown against the victim is consistent with our earlier cases, 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.)
Jenkins, 443 S.E.2d at 249. This language from Panetta, cited with
approval in Jenkins, is similar to the language contained in the
malice instruction given in this case, wherein the trial court
explained that:
Malice is not confined to ill will toward any
one or more particular persons, but malice is
every evil design in general, and by that is
meant that the fact has been attended by such
circumstances as are ordinary symptoms of a
wicked, depraved and malignant spirit and
carry with them the plain indications of a
heart, regardless of social duty and fatally
bent upon mischief.
Consequently, we find no reversible error in the trial court's
instructions regarding malice.
For the reasons set forth above, the 17 June 1994 final
order of the Circuit Court of Kanawha County, West Virginia, is
affirmed.
Affirmed.
Footnote: 1 Pursuant to an administrative order entered by this Court on 18 November 1994, the Honorable Fred L. Fox, II, Judge of the Sixteenth Judicial Circuit, was assigned to sit as a member of the West Virginia Supreme Court of Appeals commencing 1 January 1995 and continuing through 31 March 1995, because of the physical incapacity of Justice W. T. Brotherton, Jr. On 14 February 1995 a subsequent administrative order extended this assignment until further order of said Court.
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