State v. Burd
| Decision Date | 11 December 1991 |
| Docket Number | No. 20001,20001 |
| Citation | 419 S.E.2d 676,187 W.Va. 415 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia, Plaintiff Below, Appellee, v. Mary M. BURD, Defendant Below, Appellant. |
Syllabus by the Court
1. "In order to constitute the crime of attempt, two requirements must be met: (1) a specific intent to commit the underlying substantive crime; and (2) an overt act toward the commission of that crime, which falls short of completing the underlying crime." Syl. Pt. 2, State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978).
2. Where formation of criminal intent is accompanied by preparation to commit the crime of murder and a direct overt and substantial act toward its perpetration, it constitutes the offense of attempted murder.
3. "In order for the State to prove a conspiracy under W.Va.Code, 61-10-31(1), it must show that the defendant agreed with others to commit an offense against the State and that some overt act was taken by a member of the conspiracy to effect the object of that conspiracy." Syl. Pt. 4, State v. Less, 170 W.Va. 259, 294 S.E.2d 62 (1981).
Joanna I. Tabit, Deputy Atty. Gen., Charleston, for appellee.
James M. Bradley, Jr., Albright, Bradley & Ellison, Parkersburg, for appellant.
This case is before the Court upon the appeal of Mary M. Burd from a May 15, 1989, final order of the Circuit Court of Wood County sentencing the appellant to two concurrent one to five year prison terms for the attempted murder of Patricia Stone and for conspiracy to commit her murder, and two concurrent one to five year prison terms for the attempted murder of Aaron Stone and for conspiracy to commit his murder. The circuit court ordered that the sentences imposed for the crimes committed against Patricia Stone were to run consecutively to the sentences imposed for the crimes committed against Aaron Stone. The appellant contends that 1) the trial court erred in denying the defendant's motion for judgment of acquittal with respect to the counts charging the crime of attempted murder; 2) the trial court erred in denying the defendant's motion for judgment of acquittal with respect to the counts charging the crime of conspiracy; and, 3) the trial court erred in allowing the jury to consider the acts or declarations of Floyd Miller in determining whether a conspiracy existed when Miller was not subject to cross-examination as to such acts or declarations and when such acts or declarations were not made during or in furtherance of the conspiracy. Upon review of the petition and record submitted in this matter, and the briefs and oral arguments of the parties, we find no error was committed by the trial court and accordingly affirm its decision.
The facts at trial revealed that the appellant and Jennings Stone had been involved in an affair since September 1985. Stone testified that on at least a dozen occasions, the appellant told him how his wife, Patricia, might be killed so that he and the appellant could be together. Subsequently, the appellant decided to implement a plan to murder Jennings Stone's wife and his fourteen-year-old son, Aaron.
Lieutenant Ronald Roberts, of the Wood County Sheriff's Department, testified that on October 5, 1986, Floyd Miller advised the department that on October 4, 1986, the appellant had contacted him and wanted to hire him to murder her boyfriend's wife and son. Wood County Sheriff's Deputy Gregory Chapman testified that on October 5, 1986, Miller gave him the $150 in cash which the appellant had given Miller to purchase a gun.
Miller agreed to cooperate with law enforcement authorities and on October 6, 1986, he was wired with an electronic monitoring device so that his conversations with the appellant could be recorded. The deputies taped two conversations between the appellant and Miller on that date.
The first conversation took place in Parkersburg, West Virginia. During this conversation, the recording of which was introduced at trial, the appellant described the location of the victims' home. Additionally, she gave Miller a map to the home, a physical description of both victims, a sketch of the interior of the home, and an envelope containing a suicide note. The purpose of the note was to make it appear as if Patricia Stone had shot her son Aaron and then turned the gun on herself. The appellant then offered to drive Miller to Charleston, West Virginia, to show him the exact location of the victims' house; however, she indicated that she would have to change cars before making the trip. Finally, she told Miller that she would pay him $500 as a down payment for committing the murders.
The second conversation, a recording of which was also introduced at trial, took place later that same day between the appellant and Miller while they were en route to Charleston. During this conversation, the appellant assured Miller that she would pay him the $500 upon their return to Parkersburg, indicating plans to use her Discover Card to acquire such sum. She also told Miller the round trip bus schedule between Parkersburg and Charleston so he could make travel arrangements. Further, the appellant and Miller discussed the manner in which the murders should occur and how Miller should leave the suicide note at the scene.
Upon arrival in Charleston, according to the taped conversations, the appellant showed Miller the route to the Stones' home, the location of the home, and the location of Jennings Stone's automobile. The appellant also suggested that Miller should knock on the door and ask to use the victims' telephone in order to gain entry to the home. Moreover, an alternative plan was discussed in the event that Jennings Stone was at home when Miller arrived. In that event, Miller was instructed to phone Stone and tell him that there had been a fight at one of his bars so that he would leave the home immediately. The appellant further instructed Miller on where to inflict the fatal wounds in order to make it appear as if Patricia had shot her son and then turned the gun on herself. Finally, the appellant assured Miller that once the murders were completed, he would receive an additional $550 as compensation.
Upon their return to Parkersburg, the taped conversation reflected that the pair went to a Sears store where the appellant obtained a $500 cash advance on her Discover Card account. 1 The appellant gave this money to Miller who later turned it over to the deputies. Finally, Miller told the appellant that he would commit the murders on the following day, October 7, 1986. The appellant instructed Miller that she would phone him at 11:00 a.m. on that date and advise him as to whether she had contacted Jennings Stone and made arrangements to have him away from the home at the time of the intended murders. Miller acknowledged that the appellant would call him and that he would not go to Charleston if he did not receive the telephone call.
The appellant was arrested in the early afternoon of October 7, 1986. There was no evidence offered at trial that the appellant actually made the phone call to Miller as discussed or that Miller received such a phone call. Additionally, no testimony was elicited from Jennings Stone as to whether the appellant had contacted him in order to get him away from his home on the day of the intended crime.
At trial, neither the defendant nor Miller testified. While Miller was the state's principal witness, he invoked his fifth amendment right to remain silent when called upon to testify. The prosecuting attorney requested that the trial court give Miller immunity in exchange for his testimony. This request was ultimately granted after Miller was given an opportunity to consult with his court-appointed attorney, but Miller continued to refuse to testify against his lawyer's advice and the trial court held him in contempt. 2 The state then requested that either a continuance be granted until Miller decided to testify, or that a mistrial be declared. The trial court took the motion under advisement; however, the trial continued and the state's motion was never granted.
The evidence offered against the appellant at trial included the taped conversations between the appellant and Miller and the testimony of a handwriting expert who identified the appellant's handwriting on documents, including the envelope and the suicide note found therein written by the appellant, and maps alleged to have been written by the appellant and given to Miller. 3
Additionally, Miller's wife and Lt. Ronald Roberts of the Wood County Sheriff's Deputy testified on behalf of the appellant. Mrs. Miller's testimony indicated that her husband had contacted her several times at work, after his initial meeting with the appellant. 4 She further testified that when her husband showed her the $150 she urged him to contact the authorities. Lieutenant Roberts only testified that he had responded to a call to go to the Miller's home. Upon his arrival, Miller showed him $150 in cash and advised him where he had obtained the money. The officer took no further action at that time, other than advising Miller that another deputy would be sent out for further investigation the next day. Based upon this evidence, the jury convicted the appellant of two counts each of attempted murder and conspiracy.
The first issue before this Court is whether the trial court erred in denying appellant's motion for judgments of acquittal on the attempted murder charges due to insufficiency of the evidence. The appellant argues that the facts presented at trial against the appellant support nothing more than the mere preparation or solicitation by the appellant of a crime and that the state failed to show an overt act performed by the appellant necessary for an attempted murder conviction. The state, however, argues that the evidence presented at trial was sufficient to sustain the appellant's attempted...
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