State v. Browning, No. 23457

CourtSupreme Court of West Virginia
Writing for the CourtMAYNARD
Citation485 S.E.2d 1,199 W.Va. 417
PartiesSTATE of West Virginia, Plaintiff Below, Appellee v. Judy BROWNING, Defendant Below, Appellant.
Docket NumberNo. 23457
Decision Date17 March 1997

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485 S.E.2d 1
199 W.Va. 417
STATE of West Virginia, Plaintiff Below, Appellee
v.
Judy BROWNING, Defendant Below, Appellant.
No. 23457.
Supreme Court of Appeals of West Virginia.
Submitted Feb. 5, 1997.
Decided March 17, 1997.

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[199 W.Va. 418] Syllabus by the Court

1. "The function of an appellate court when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, is sufficient to convince a reasonable person of the defendant's guilt beyond a reasonable doubt. Thus, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt." Syllabus Point 1, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

2. In a murder case, an instruction that a jury may infer malice and the intent to kill where the State proves beyond a reasonable doubt that the defendant, without lawful justification, excuse or provocation, shot the victim with a firearm, does not unconstitutionally shift the burden of proof.

3. When a party adopts a statement by silence, in order to be admissible, the statement does not have to be accusatory or against the party's interest at the time it was made, but one that would naturally call for a reply if the truth of the statement was not intended to be admitted.

4. This Court will not consider an error which is not properly preserved in the record nor apparent on the face of the record.

5. "[B]efore admission at trial of a prior inconsistent statement allegedly made by a witness ... [t]he statement must actually

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[199 W.Va. 419] be inconsistent, but there is no requirement that the statement be diametrically opposed." Syllabus Point 1, in part, State v. Blake, 197 W.Va. 700, 478 S.E.2d 550 (1996).

M. Timothy Koontz, Williamson, for Appellant.

Scott E. Johnson, Senior Assistant Attorney General, Charleston, for Appellee.

Paul T. Farrell, Jr. and Chad S. Lovejoy, Legal Interns, Charleston.

MAYNARD, Justice:

The defendant below, appellant, Judy Browning, was charged with first-degree murder and shooting at a person in a public street for the shooting death of Lawrence Graham on May 30, 1993. Following a jury trial on June 21 to June 29, 1994, in the Circuit Court of Logan County, the defendant was found guilty of both charges, and sentenced to life in prison with mercy. On appeal to this Court, the defendant assigned seven errors seeking reversal of her conviction. For the reasons that follow, we affirm.

I.

FACTS

A sketch of the relevant facts are as follows. At approximately 3:35 a.m. on May 30, 1993, law enforcement officers responded to a shooting along State Route 10 in Logan County. The officers found the victim's red Jeep Comanche parked on the side of the road near a railroad crossing. The victim, Lawrence Graham, was lying dead on the roadside gravel beside the driver's door of his Jeep. A police investigation of the scene revealed blood on the ground and the Jeep, and an empty .22 caliber shell casing in the nearby weeds. An interview with a witness at the scene led law enforcement officers to suspect the defendant, Judy Browning, was involved in the murder. The defendant was ultimately arrested and charged with the murder.

At trial, the State's theory was that the defendant lured the victim, who was her boyfriend, to the spot along Route 10 in order to kill him because he had severed their relationship just when his divorce was being finalized. The Assistant State Medical Examiner testified that the victim died of a single gunshot wound to the right shoulder after the bullet perforated his aorta causing 40% of his total blood volume to drain into his chest. Although no one witnessed the defendant shoot the victim, five witnesses testified that they saw either the defendant or her vehicle at the murder scene within minutes of the victim's shooting. The victim's son testified that the victim told him the day before the murder that he (the victim) had argued with the defendant that day, and he had packed his clothes and left. The victim's widow testified that she and the victim had their final divorce hearing three days before the murder.

The defendant testified in her own behalf. She admitted she was with the victim just before he was shot, but denied that she had anything to do with the shooting. She testified that she and the victim were together at the roadside when an unidentified man appeared. Upon seeing this man, the victim told the defendant to leave. She testified that as she was about to drive away she heard a gunshot and saw the victim walk toward his truck, but she did not see him fall. The defendant also testified to an ongoing feud between the victim and his wife and children.

The trial concluded with the jury returning a verdict of first-degree murder and shooting at a person on a public street against the defendant. From these verdicts, the defendant appeals.

II.

DISCUSSION

In her appeal, the defendant raises several assignments of error: (1) whether the evidence was sufficient to support a verdict; (2) whether the trial court erred in instructing the jury that it could infer malice and intent from the use of a deadly weapon: (3) whether the trial court erred in admitting a hearsay statement that the defendant had a gun and carried it all the time; (4) whether the trial court erred in admitting the hearsay

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[199 W.Va. 420] statement of the victim that he and the defendant were breaking up; (5) whether the trial court erred in admitting evidence which had been unlawfully seized from the defendant's house; (6) whether the trial court erred in not allowing the defendant the right of allocution at sentencing; and (7) whether the accumulation of errors at trial requires a retrial.
A

First, the defendant attempts to convince us that the record in this case does not support the verdict of first degree murder beyond a reasonable doubt.

Our authority in reviewing this issue is limited. We stated in Syllabus Point 1 of State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995):

The function of an appellate court when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, is sufficient to convince a reasonable person of the defendant's guilt beyond a reasonable doubt. Thus the relevant inquiry is whether, after viewing the evidence in the light most favorable to prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt.

Further,

A criminal defendant challenging the sufficiency of the evidence to support a conviction takes on a heavy burden. An appellate court must review all the evidence, whether direct or circumstantial, in the light most favorable to the prosecution and must credit all inferences and credibility assessments that the jury might have drawn in favor of the prosecution. The evidence need not be inconsistent with every conclusion save that of guilt so long as the jury can find guilt beyond a reasonable doubt. Credibility determinations are for a jury and not an appellate court. Finally, a jury verdict should be set aside only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt.

Id., Syllabus Point 3.

In this case, the jury found the defendant guilty based entirely on the weight of circumstantial evidence. We have recognized, however:

Since circumstantial evidence and direct evidence are indistinguishable so far as the jury's fact-finding function is concerned, all that is required of the jury is that it weigh all of the evidence, direct and circumstantial, against the standard of proof beyond a reasonable doubt. Nothing more should be required of a factfinder.

Guthrie, 194 W.Va. at 669, 461 S.E.2d at 175.

We find here that a rational trier of fact could have found the essential elements of first-degree murder beyond a reasonable doubt. 1 The elements of first-degree murder are an unlawful killing of another human being with malice, premeditation, and deliberation. See, W.Va.Code § 61-2-1 (1987).

Here, the State proved the victim was killed by a gunshot wound and the State medical examiner concluded the cause of death was the result of homicide. Five witnesses testified they saw either the defendant or her car at the murder scene between approximately 3:22 a.m. and 3:27 a.m. within moments of when the shooting occurred. Two of these witnesses recognized the defendant and another two saw a woman who matched the description of the defendant. Police testimony revealed the victim had been shot by 3:35 a.m. when they arrived on the scene. James Plymale testified that he was walking along the road, still some distance from the murder scene, when he heard a gunshot and saw the victim stagger and fall to the ground. Plymale further testified that he saw a woman matching the description of the defendant leave the murder scene immediately after the shooting. None of the five witnesses saw the unidentified man that the defendant spoke about in her testimony. Concerning motive, the victim's son testified that the day before the shooting, the victim told him that he [the victim] and the defendant

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[199 W.Va. 421] argued that day, and he packed his clothes and left.

A jury may infer malice and intent to kill from the use of a deadly weapon in circumstances not affording the defendant excuse, provocation, or justification. State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996). Also,

[A] jury must consider the circumstances in which the killing occurred to determine whether it fits into the first degree category. Relevant factors include the relationship of the accused and the victim and its...

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46 practice notes
  • State v. Allen, No. 25980.
    • United States
    • Supreme Court of West Virginia
    • November 17, 1999
    ...consider an error which is not properly preserved in the record nor apparent on the face of the record." Syl. pt. 4, State v. Browning, 199 W.Va. 417, 485 S.E.2d 1 Upon a review of the record of the proceedings underlying the instant appeal, we can locate nothing to indicate that Allen obje......
  • State v. Blevins, No. 11–1014.
    • United States
    • Supreme Court of West Virginia
    • May 20, 2013
    ...the weapons found at the scene. Thus, this issue was not properly preserved as an assignment of error. See Syl. Pt. 4, State v. Browning, 199 W.Va. 417, 485 S.E.2d 1 (1997) (“This Court will not consider an error which is not properly preserved in the record nor apparent on the face of the ......
  • State v. Bowling, No. 11–1674.
    • United States
    • Supreme Court of West Virginia
    • October 11, 2013
    ...Bedell, 192 W.Va. 435, 452 S.E.2d 893 (1994).Syl. pt. 2, State v. Doonan, 220 W.Va. 8, 640 S.E.2d 71 (2006); see also State v. Browning, 199 W.Va. 417, 423, 485 S.E.2d 1, 7 (1997) (“ ‘It is well settled that decisions regarding the admission and exclusion of evidence are peculiarly within t......
  • State v. Salmons, No. 24967.
    • United States
    • Supreme Court of West Virginia
    • November 4, 1998
    ...economy, and practical wisdom." State v. Miller, 197 W.Va. 588, 597, 476 S.E.2d 535, 544 (1996). See Syl. pt. 4, State v. Browning, 199 W.Va. 417, 485 S.E.2d 1 (1997) ("This Court will not consider an error which is not properly preserved in the record nor apparent on the face of the record......
  • Request a trial to view additional results
46 cases
  • State v. Allen, No. 25980.
    • United States
    • Supreme Court of West Virginia
    • November 17, 1999
    ...consider an error which is not properly preserved in the record nor apparent on the face of the record." Syl. pt. 4, State v. Browning, 199 W.Va. 417, 485 S.E.2d 1 Upon a review of the record of the proceedings underlying the instant appeal, we can locate nothing to indicate that Allen obje......
  • State v. Blevins, No. 11–1014.
    • United States
    • Supreme Court of West Virginia
    • May 20, 2013
    ...the weapons found at the scene. Thus, this issue was not properly preserved as an assignment of error. See Syl. Pt. 4, State v. Browning, 199 W.Va. 417, 485 S.E.2d 1 (1997) (“This Court will not consider an error which is not properly preserved in the record nor apparent on the face of the ......
  • State v. Bowling, No. 11–1674.
    • United States
    • Supreme Court of West Virginia
    • October 11, 2013
    ...Bedell, 192 W.Va. 435, 452 S.E.2d 893 (1994).Syl. pt. 2, State v. Doonan, 220 W.Va. 8, 640 S.E.2d 71 (2006); see also State v. Browning, 199 W.Va. 417, 423, 485 S.E.2d 1, 7 (1997) (“ ‘It is well settled that decisions regarding the admission and exclusion of evidence are peculiarly within t......
  • State v. Salmons, No. 24967.
    • United States
    • Supreme Court of West Virginia
    • November 4, 1998
    ...economy, and practical wisdom." State v. Miller, 197 W.Va. 588, 597, 476 S.E.2d 535, 544 (1996). See Syl. pt. 4, State v. Browning, 199 W.Va. 417, 485 S.E.2d 1 (1997) ("This Court will not consider an error which is not properly preserved in the record nor apparent on the face of the record......
  • Request a trial to view additional results

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