State v. Ashcraft

• Decision Date: 10 November 1983
• Docket Number: No. 15822,15822
• Citation: State v. Ashcraft, 309 S.E.2d 600, 172 W.Va. 640 (W. Va. 1983)
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Nelson Clark ASHCRAFT.

Page 600

309 S.E.2d 600

172 W.Va. 640

STATE of West Virginia v.Nelson Clark ASHCRAFT.

No. 15822.

Supreme Court of Appeals of West Virginia.

Nov. 10, 1983.

Syllabus by the Court

1."A general indictment as a principal in the first degree shall be sufficient to sustain a conviction as an aider and abettor or as an accessory before the fact."Syllabus Point 1, in part, State v. Petry, 166 W.Va. 153, 273 S.E.2d 346(1980).

2."Jurors who on voir dire of the panel indicate possible prejudice should be excused, or should be questioned individually either by the court or by counsel to precisely determine whether they entertain bias or prejudice for or against either party, requiring their excuse."Syllabus Point 2, State v. Pratt, 161 W.Va. 530, 244 S.E.2d 227(1978).

3."Hearsay evidence which is against the penal interest of the extra judicial declarant is admissible even though it does not fall within a recognized West Virginia exception to the hearsay rule if it possesses sufficient indicia of reliability to satisfy the court that it is trustworthy in accordance with the following rule: A statement has circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of the rules of evidence and the interests of justice will best be served by admission of the statement into evidence.However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant."Syllabus Point 2, State v. Williams, 162 W.Va. 348, 249 S.E.2d 752(1978).

4."The action of a trial court in admitting or excluding evidence in the exercise of its discretion will not be disturbed by the appellate court unless it appears that such action amounts to an abuse of discretion."Syllabus Point 10, State v. Huffman, 141 W.Va. 55, 87 S.E.2d 541(1955).

5."It is not reversible error to refuse to give instructions offered by a party that are adequately covered by other instructions given by the court."Syllabus Point 20, State v. Hamric, 151 W.Va. 1, 151 S.E.2d 252(1966).

6."Refusal of an instruction, on a trial for murder, giving the findings in the power of the jury, including one of involuntary manslaughter, is not error, when no evidence in the case tends to show that degree of homicide.Such instruction should not be given."Syllabus Point 6, State v. Woodrow, 58 W.Va. 527, 52 S.E. 545(1905).

7."It is not reversible error for a trial court to give an abstract instruction where the instruction is not misleading or inapplicable to the case."Syllabus Point 7, State v. Gangwer, 169 W.Va. 177, 286 S.E.2d 389(1982).

Jones, Williams, West & Jones, John S. Kaull and Jerald E. Jones, Clarksburg, for appellant.

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

McGRAW, Chief Justice:

Nelson Clark Ashcraft appeals from a final order of the Circuit Court of Ritchie County entered August 17, 1981, which confirmed his conviction for first degree murder, denied his motion for a new trial, and sentenced him to life in the penitentiary, subject to the jury's recommendation of mercy.The appellant makes eight assignments of error: 1) the trial court erred in refusing to grant a portion of the appellant's motion for a bill of particulars; 2) the court erred in refusing the appellant's request for individual voir dire of the jury panel; 3) the court erred in refusing to permit cross-examination of a prosecution witness concerning admissions made by a codefendant; 4) the court erred in permitting the State to introduce into evidence a .22 caliber rifle, and in permitting the State to exhibit and demostrate a Colt AR-15 rifle before the jury; 5) the court erred in refusing to give certain of the appellant's instructions; 6) the court erred in failing to instruct the jury on involuntary manslaughter; 7) the court erred in giving a "common intent" instruction; and 8) a witness for the prosecution testified falsely.We find merit in the appellant's second assignment of error, and, therefore, reverse his conviction.We will briefly discuss the appellant's other assignments of error, as they involve issues which could reoccur upon retrial.

The following facts were adduced from testimony at trial.In early June, 1980, Austin Wayne Ledsome met a man known as Robert Lilly¹ at Kyle's Tavern in the town of Elizabeth in Wirt County.Both Ledsome and Lilly were unemployed.They became friends and agreed to work together collecting junk and hauling it to Parkersburg to sell.They engaged in this business pursuit for the next two or three days.

Ledsome spent Friday night, June 6, 1980, at Lilly's house off Oxbow Road in Ritchie County.The next morning, after a breakfast of groundhog, Lilly and Ledsome discussed hauling a load of junk to Parkersburg, but then decided to go fishing instead.After retrieving their fishing poles and placing them in Lilly's truck, they drove out of the hollow.On the way, they met a man called "Red" at a cabin not far down the road from Lilly's house.They stopped and talked for awhile, and accepted Red's invitation to drink a vodka and grape juice mixture, which was served in a gallon milk jug.When all of the liquor was consumed, they drove to Elizabeth to purchase some more.They then returned to the Oxbow Road area, where they found a party in progress at a neighbor's house.

Shortly thereafter, the appellant and Denver Ash arrived.The appellant and Ash were drinking and appeared inebriated.Ash was vomiting.The appellant fell down and was helped to his feet by Ledsome.The appellant and Ash stayed at the party only a short while, and then drove off in the appellant's truck.Approximately five minutes later, Lilly and Ledsome left the party to take Red back to his cabin.

After dropping Red at his cabin, Lilly and Ledsome renewed their intentions to go fishing.But first, they decided to drive to Smitty's Tavern in McFarlan to purchase some beer to drink while they were fishing.When they arrived at the tavern, Lilly and Ledsome found a group of people outside in the parking lot underneath a tree, talking and drinking beer.The group included the appellant, Ash, and a young woman named Glenda Roush.

Lilly called Ms. Roush over to his truck and offered her a drink of the vodka and grape juice mixture, which by this time had been transferred to a Boone's Farm Tickle Pink wine bottle.She took a drink and then went inside the tavern.Lilly and Ledsome exited the truck and approached the appellant and Ash.

Lilly, Ash, and the appellant spoke cordially for a few moments, until the appellant accused Lilly of putting acid in a spring.Lilly denied this accusation and told the appellanthe"didn't want no trouble."Lilly sent Ledsome into the tavern to buy some beer.Ash then accused Lilly of "talking around town about me."Lilly replied that "you guys have got a big mouth and nothing to back it up with."

While inside the tavern purchasing the beer, Ledsome heard shots.He ran to the door to see the appellant shooting at Lilly with a .22 caliber pistol.Lilly was holding his leg and said, "A man who shoots me in the back is a dirty son-of-a-bitch."When the gun ran out of ammunition, Lilly twisted it out of the appellant's hands, threw him to the ground, and beat him about the head with the gun.When Ash attempted to assist the appellant, Lilly struck him and knocked him out.Ms. Roush, who by this time was outside the tavern, took the gun from Lilly, but Lilly grabbed it back.Lilly and Ledsome then returned to their truck to leave.As Lilly was starting the truck, the appellant got up off the ground and said, "if you come up on the hill tonight, you are a dead man."

Lilly and Ledsome returned to Lilly's house seeking ammunition for the appellant's pistol.Lilly's girl friend, Candace Rohey, was home when they arrived.Lilly appeared angry.He told Ms. Rohey that the appellant had shot him, and removed his pants to show her a wound on his right buttock.Lilly then rummaged through the house and found at least one shell for the pistol, which he placed in the gun, and then shot into a china cabinet.Lilly told Ms. Rohey that he"was going to go get [the appellant]," and that he was "tired of [the appellant] trying to run me off this hill."After Lilly and Ledsome left in the truck, Ms. Rohey telephoned Glenn Johnson, who lived down the hill from both the appellant and Lilly, and told him "to get [the appellant] out of there because [Lilly] was coming to kill him."

Lilly and Ledsome continued their search for shells for the appellant's pistol.They drove to Ernie's Quaker State on Route 47, and pulled into the parking lot.Just as Ledsome was starting to get out of the truck, the appellant and Ash arrived.Upon seeing them, Lilly pulled out the unloaded pistol, pointed it at the appellant, and snapped the trigger several times.The appellant and Ash backed their truck out of the parking lot and left the station.Ash was driving.Ledsome then entered the gas station to buy shells for the pistol, but none were available.

As Lilly and Ledsome were driving down Route 47, they came upon the appellant and Ash driving slowly in front of them.Ash began weaving the truck from one lane to the other to prevent Lilly and Ledsome from passing.Lilly told Ledsome to "hang on," put the accelerator to the floor, and rammed the truck containing the appellant and Ash in the rear end.The collision turned the appellant's truck around in the road, and slid...