State v. Bongalis

• Decision Date: 17 February 1989
• Docket Number: No. 17971,17971
• Citation: 180 W.Va. 584,378 S.E.2d 449
• Parties: STATE of West Virginia v. George BONGALIS.
• Court: West Virginia Supreme Court

Page 449

378 S.E.2d 449

180 W.Va. 584

STATE of West Virginia v.George BONGALIS.

No. 17971.

Supreme Court of Appeals of West Virginia.

Feb. 17, 1989.

Syllabus by the Court

1." 'Malice, express or implied, is an essential element of murder in the second degree, and if absent the homicide is of no higher grade than voluntary manslaughter.'Syllabus Point 1, State v. Galford, 87 W.Va. 358, 105 S.E. 237(1920)."Syllabus Point 2 of State v. Clayton, 166 W.Va. 782, 277 S.E.2d 619(1981).

2."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."Syllabus Point 1, State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219(1978).

3."The amount of force that can be used in self-defense is that normally one can return deadly force only if he reasonably believes that the assailant is about to inflict death or serious bodily harm; otherwise, where he is threatened only with non-deadly force, he may use only non-deadly force in return."Syllabus Point 1, State v. Baker, 177 W.Va. 769, 356 S.E.2d 862(1987).

4.Challenges to an indictment based on irregularities during grand jury deliberations must be raised under Rule 12(b)(2) of the West Virginia Rules of Criminal Procedure prior to trial.

5.Where trial counsel has filed a motion under Rule 12 of the West Virginia Rules of Criminal Procedure, the failure to press for a ruling on the motion prior to trial amounts to a waiver of the objections contained in the motion.

6.A felony is an "infamous crime" as it is punishable by imprisonment in the State penitentiary.

7." 'The general rule, inhibiting allowance of a new trial for matter constituting a principal cause of challenge to a juror, existing before the juror was elected and sworn, unknown to the complaining party until after verdict, not disclosed on a thorough voir dire examination, and undiscoverable by the exercise of ordinary diligence, unless it appears from the whole case that the complainant suffered injustice by reason of the disqualification; applies in criminal cases * * *.'State v. Harris, 69 W.Va. 244, Syl. ."Syllabus Point 9, State v. Hayes, 136 W.Va. 199, 67 S.E.2d 9(1951).

8.Where there is a recognized statutory or common law basis for disqualification of a juror, a party must during voir dire avail himself of the opportunity to ask such disqualifying questions.Otherwise the party may be deemed not to have exercised reasonable diligence to ascertain the disqualification.

Francis M. Curnutte, III, Madison, for George Bongalis.

Charles G. Brown, Atty. Gen., Charleston, for State.

MILLER, Justice:

The defendant, George Bongalis, appeals his conviction of second degree murder in the Circuit Court of Boone County.He assigns as error: (1) that the evidence shows no malice and, therefore, cannot support a second degree murder conviction; (2) that his self-defense instruction was rejected; and (3) that one member of the jury was a convicted felon.He further assigns several evidentiary errors.

I.

The defendant killed a Mike Hendricks as a result of an altercation with him in front of a bar.The State sought to show that the defendant had a romantic involvement with Ronda Hendricks, who was the ex-wife of the victim and who worked for the defendant at his bar.Sometime prior to the shooting, it is alleged that Ms. Hendricks began to see her ex-husband and this upset the defendant.About eleven days before the homicide, the defendant fired Ms. Hendricks as he believed she was giving free drinks and money to her friends.

On the night of the shooting, Ms. Hendricks, her ex-husband, and Tommy Clay, along with several friends, were drinking at "Gene's," a local bar.The defendant came into the bar with Rick DeBoard and began staring at Ms. Hendricks.She became upset and moved to the bar where she stared at the defendant and began verbally harassing the defendant.This led to the bartender asking her to leave and she, along with her friends, left the bar.There was evidence that in the bar parking lot, Ms. Hendricks' ex-husband, the victim, tried to calm her down and to this end slapped her in the face.

They decided to leave the parking lot and Tommy Clay took Ms. Hendricks in his vehicle.The victim drove Ms. Hendricks' roommate, Teresa, to Ms. Hendricks' house, but Ms. Hendricks was not home.They decided to return to "Gene's."There was testimony that Rick DeBoard's vehicle was seen following the victim's car on the return trip to "Gene's."

As the victim and Teresa arrived at the bar, Tommy Clay and Ms. Hendricks also drove up.While the bar was closed, the two women were let in to purchase a bottle of liquor.The victim stayed in his car and Mr. Clay sat with him.Mr. Clay testified that the victim appeared drunk as he did not respond to his conversation and had his eyes closed.Mr. Clay also testified that he went to the bar to try to get some help to get the victim home, but could not gain entrance.When he walked back to the victim's car, Rick DeBoard was parking his truck behind the car.

Mr. Clay testified that he approached the truck and asked Mr. DeBoard for help.At this point the defendant, who was a passenger in Mr. DeBoard's truck, pulled a gun from underneath the floor mat.He spoke about the trouble that had earlier occurred at his bar.In reference to the victim, the defendant stated, as he got out of the truck, "I believe I'll whip his ass."

Mr. Clay testified that the defendant pointed the gun at his face and told him to get on up the road.Mr. Clay got in his vehicle and, as he drove away, he saw the defendant reaching in the car shaking the victim as if he was trying to wake him.

While these events were occurring, Ms. Hendricks and Teresa were inside "Gene's."The bartender heard two noises that sounded like "backfire."Ms. Hendricks left the bar and saw the victim on the ground with two people standing near him.She stated that she was hysterical and did not recognize them.She ran back into the bar to get help.When she returned, the vehicle behind the victim's car was gone.

A neighbor heard a vehicle rapidly drive away after hearing a shot.The State's forensic expert established that the victim died from two bullet wounds fired from a 9 mm. pistol belonging to the defendant.He also stated that one shot was fired point blank and estimated that the other was fired from two to two and one-half feet away.

The State also introduced the defendant's statement in which he admitted having the gun in his back pocket and engaging in a fight with the victim.It was the defendant's position that during the fight, they both ended up lying on the street.He further contended that the gun was also on the street and that he heard a shot, but did not initially know who was shot.

II.

The defendant claims there was insufficient evidence of malice and, this being an essential element of second degree murder, the verdict must be set aside.There is no disagreement that malice is an essential element of second degree murder, as stated in Syllabus Point 2 of State v. Clayton, 166 W.Va. 782, 277 S.E.2d 619(1981):

" 'Malice, express or implied, is an essential element of murder in the second degree, and if absent the homicide is of no higher grade than voluntary manslaughter.'Syllabus Point 1, State v. Galford, 87 W.Va. 358, 105 S.E. 237(1920)."

The term "malice" has been described in various ways.For example, in State v. Starkey, 161 W.Va. 517, 524, 244 S.E.2d 219, 223-24(1978), we quoted from our earlier case, State v. Douglass, 28 W.Va. 297, 299(1886), which defines it as "an action flowing from a wicked and corrupt motive, a thing done malo animo, where the fact has been attended with such circumstances as carry in them the plain indication of a heart regardless of social duty and fatally bent on mischief."

We were careful in State v. Morris, 142 W.Va. 303, 314-15, 95 S.E.2d 401, 408(1956), to point out:

"This term, it has been said, implies a mind under the sway of reason.It excludes the idea of sudden passion aroused by an unanticipated and unprovoked battery inflicted by the assailant without the fault of the person assailed.If in such case the death of the aggressor results, even if intentional, it cannot be traced to a malignant heart but is imputable to human frailty."

Certainly, malice can, as indicated by the Defendant's InstructionNo. 16, include "not only anger, hatred and revenge, but other unjustifiable motives....It may be inferred from any deliberate and cruel act done by the defendant without any reasonable provocation or excuse, however sudden."¹SeeState v. Matney, 176 W.Va. 667, 346 S.E.2d 818(1986);State v. Slonaker, 167 W.Va. 97, 280 S.E.2d 212(1981).

In this case, we find there was sufficient evidence of malice.The State's evidence demonstrates that shortly prior to the shooting, the defendant exhibited ill-will toward the victim, Mike Hendricks, by stating to his companion, Mr. Clay, "I believe I'll whip his ass."This was done as he got out of the truck to go toward the vehicle where the victim, according to Mr. Clay, was passed out.Mr. Clay was forced to leave the scene by the defendant threatening him with his gun.Before he left, however, Mr. Clay saw the victim being shaken by the defendant.It is clear from the State's evidence that the defendant was the aggressor.The jury could easily conclude that he returned to the vicinity of the bar with the purpose of finding the victim.

Although the defendant argued that there was a fight and the gun went off accidentally,...