State v. Brumfield

• Decision Date: 12 June 1987
• Docket Number: No. 17319,17319
• Citation: 178 W.Va. 240,358 S.E.2d 801
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Paul BRUMFIELD.

Page 801

358 S.E.2d 801

178 W.Va. 240

STATE of West Virginia v. Paul BRUMFIELD.

No. 17319.

Supreme Court of Appeals of West Virginia.

June 12, 1987.

Syllabus by the Court

1. "In interpreting and applying a generally worded kidnapping statute, such as W.Va.Code, 61-2-14a, in a situation in which another offense was committed, some reasonable limitations on the broad scope of kidnapping must be developed. The general rule is that a kidnapping has not been committed when it is incidental to another crime. In deciding whether the acts that technically constitute kidnapping were incidental to another crime, courts examine the length of time the victim was held or moved, the distance the victim was forced to move, the location and environment of the place the victim was detained, and the exposure of the victim to an increased risk of harm." Syl. pt. 2, State v. Miller, 175 W.Va. 616, 336 S.E.2d 910 (1985).

2. "Penal statutes must be strictly construed against the State and in favor of the defendant." Syl. pt. 3, State ex rel. Carson v. Wood, 154 W.Va. 397, 175 S.E.2d 482 (1970).

3. Where an inmate, by force, has unlawfully confined a correctional officer for a minimal period of time within the walls of a correctional facility in order to facilitate his escape, and movement of that officer was slight and did not result in exposure to an increased risk of harm, a conviction for the offense of kidnapping pursuant to W.Va.Code, 61-2-14a [1965] will be reversed where the confinement was incidental to the escape and the inmate has not utilized the officer as a hostage nor as a shield to protect that inmate or others from bodily harm or capture or arrest after that inmate or others have committed a crime.

David Johnson, Asst. Atty. Gen., for appellant.

Clovis D. Kuhn, Huntington, for appellee.

McHUGH, Justice:

This case is before this Court upon appeal from the Circuit Court of Cabell County. The appellant was convicted of three counts of kidnapping three correctional officers in the Cabell County Jail during an unsuccessful escape attempt. This Court has before it the petition for appeal, all matters of record and briefs.

I

The appellant was confined in the Cabell County Jail awaiting trial on robbery charges. He and another inmate, David Plumley, both were confined on the third floor of the jail.

On February 23, 1984, the appellant and Plumley attempted an escape from the facility. At approximately 10:00 p.m. that evening, they were moving a mattress into the third floor dayroom. Scott Tyree, a correctional officer in charge of the third floor, supervised the move. As the appellant and Plumley moved the mattress into the dayroom, they turned and confronted Tyree with two shanks, or homemade knives, they had fashioned from a broom. They then moved Tyree into a dayroom, took his keys and radio, and tied his hands and feet. After tying Tyree, the appellant and Plumley left the dayroom and proceeded to the fifth floor to obtain some tools left there by workmen.

After hearing noises on the fifth floor, correctional officers Clarence Johnson and John Bowman, who supervised the fourth and fifth floors of the jail, respectively went to investigate. The appellant and Plumley accosted the officers from behind and ordered them to lie down. Officer Bowman's keys were taken, the officers' radios were thrown or laid aside, and the two officers were locked in the fifth floor dayroom. Leaving the officers inside the dayroom, the inmates took some hacksaws and hammers to assist in their escape.

Meanwhile, Officer Tyree had managed to free himself and alert other correctional officers. Upon discovering that the building was surrounded by police, the inmates returned to the fifth floor dayroom and surrendered themselves to Officers Johnson and Bowman.

The appellant was indicted on three counts of kidnapping, three counts of aggravated robbery and one count of possession of a dangerous and deadly weapon. A jury returned a verdict of guilty on each of the three kidnapping counts. The trial court sentenced the appellant to three ten-year sentences, to run consecutively.

II

The primary issue now before us is whether the convictions of the appellant, under the facts in this case, may be sustained under the kidnapping statute, W.Va.Code, 61-2-14a [1965]. ¹

The appellant contends that the prosecution proved only that he attempted jail breaking pursuant to W.Va.Code, 61-5-10(b) [1984]. ² He further stresses that his actions did not constitute kidnapping of the correctional officers, because their detention was merely incidental to his escape attempt.

The pertinent part of W.Va.Code, 61-2-14a [1965], without the penalty provisions, states:

If any person, by force, threat, duress, fraud or enticement take, confine, conceal, or decoy, inveigle or entice away, or transport into or out of this State or within this State, or otherwise kidnap any other person, for the purpose or with the intent of taking, receiving, demanding, or extorting from such person, or from any other person or persons, any ransom, money, or other thing, or any concession or advantage of any sort, or the purpose or with the intent of shielding or protecting himself or others from bodily harm or of evading capture or arrest after he or they have committed a crime, he shall be guilty of a felony, ...

This Court had the opportunity to construe this statute in State v. Miller, 175 W.Va. 616, 336 S.E.2d 910 (1985). In Miller, the victim had been inveigled into the defendant's car supposedly to assist the defendant in looking for a dog. The defendant then attempted to tie some cord around the victim's wrist. Thereafter, the defendant threatened the victim with a steak knife and forced her to lie down in the front seat of the car as he drove. He eventually drove to an isolated area that was unfamiliar to both of them and sexually assaulted the victim. From the time the victim had been inveigled into the defendant's car to the time he eventually released her, she had been in his control for approximately one and one-half hours. Based upon those facts, this Court concluded that the kidnapping was not merely incidental to the commission of the first- degree sexual assault. 175 W.Va. at 622, 336 S.E.2d at 916.

In so holding, the Court reasoned that "[i]n interpreting and applying a generally worded kidnapping statute, such as W.Va.Code, 61-2-14a, in a situation where another offense was committed, some reasonable limitations on the broad scope of kidnapping must be developed. The general rule is that a kidnapping has not been committed when it is incidental to another crime. In deciding whether the acts that technically constitute kidnapping were incidental to another crime, courts examine the length of time the victim was held or moved, the distance the victim was forced to move, the location and environment of the place the victim was detained, and the exposure of the victim to an increased risk of harm." Syl. pt. 2, State v. Miller, supra.

In Miller, we recognized that it is conceivable that situations may arise where the kidnapping is incidental to the commission of another crime. 175 W.Va. at 620, 336 S.E.2d at 913. ³ We quoted with approval the language of New York's highest court in People v. Levy, 15 N.Y.2d 159, 164, 256 N.Y.S.2d 793, 796, 204 N.E.2d 842, 844, cert. denied 381 U.S. 938, 85 S.Ct. 1770, 14 L.Ed.2d 701 (1965) in interpreting a similarly broadly worded kidnapping statute, the court made the following observations:

"This definition [of kidnapping] could literally overrun several other crimes, ... since detention and sometimes confinement, against the will of the victim, frequently accompany these crimes. Some of the definitions could apply alike to kidnapping....

It is unlikely that these restraints, sometimes accompanied by asportation, which are incidents to other crimes and have long been treated as integral parts of other crimes, were intended by the Legislature in framing its broad definition of kidnapping to constitute a separate crime of kidnapping, even though kidnapping might sometimes be spelled out literally from the statutory words."

State v. Miller, 175 W.Va. at 620, supra 336 S.E.2d at 913-14.

Cases, such as the one before us, where inmates have confined persons against their will with the intent of escaping from prison present their own special problems in relation to kidnapping statutes. See generally annotation, Seizure of Prison Official by Inmates as Kidnapping, 59 A.L.R.3d 1306 (1974). Courts have not hesitated to uphold kidnapping convictions where a prisoner forces another person to accompany him off prison grounds, Nagy v. State, 270 Ind. 384, 386 N.E.2d 654 (1979), and where a prisoner confines someone after he has escaped from the prison, Cuevas v. State, 338 So.2d 1236 (Miss.1976). A problem, however, arises when, during an escape attempt, a prisoner confines or moves another person within the walls of the correctional facility. Under those circumstances, courts have closely examined the specific facts of the case to determine whether the confinement or movement of the victim was incidental to the escape or whether it took on independent significance justifying a kidnapping conviction.

Our research has revealed at least two jurisdictions in which the courts have reversed kidnapping convictions on the basis that the confinement or movement of a correctional officer was merely incidental to the escape. The Supreme Court of North Carolina, in State v. Dix, 282 N.C. 490, 193 S.E.2d 897 (1973), applying the common law of kidnapping codified in N.C.Gen.Stat. § 14-39 [1933], reversed the conviction of a person ⁴ who drew a gun on a jailer, marched him back 62 feet, locked him in a jail cell and proceeded to release other inmates. In so holding, the court stressed that the movement of the jailer was a "mere technical asportation," purely incidental to the defendant's assault upon the jailer and the escape of the...