State v. Clark
| Decision Date | 18 November 1982 |
| Docket Number | No. 15303,15303 |
| Citation | 171 W.Va. 74,297 S.E.2d 849 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia v. Nina Johnson CLARK. |
Syllabus by the Court
"Once there is sufficient evidence to create a reasonable doubt that the killing resulted from the defendant acting in self-defense, the prosecution must prove beyond a reasonable doubt that the defendant did not act in self-defense." Syllabus Point 4, State v. Kirtley, 162 W.Va. 249, 252 S.E.2d 374 (1978).
Leo Catsonis, Charleston, Harvey D. Peyton, Nitro, for appellant.
James E. Roark, Pros. Atty., Frances W. McCoy, Asst. Pros. Atty., Charleston, for appellee.
Nina Johnson Clark appeals from a conviction of first-degree murder rendered against her in the Circuit Court of Kanawha County. She contends that the trial court committed reversible error by giving an improper self-defense instruction.
The appellant was charged with shooting John C. Wood to death June 20, 1980, at her trailer in St. Albans. Although Wood was married at the time of his death, it was claimed that he and the appellant had been lovers for eight years. The appellant was 63-years-old when the shooting occurred, weighed about 75-80 pounds and stood five feet tall. The victim weighed about 218 pounds and stood five feet, eleven inches tall.
The basic facts surrounding the shooting are not in dispute. Wood went to the appellant's trailer early in the morning after visiting one of his painting crews at a construction site. Clark shot him once with a .25 caliber pistol which she owned. Wood wrestled the pistol away from her but died from loss of blood soon after the shooting.
At trial, the primary controversy concerned events leading up to the shooting. The prosecution portrayed Clark as a jealous woman who had threatened to kill Wood shortly before his death because she thought he was seeing another woman. Testimony revealed that Clark had hired a private investigator to determine whether Wood had been seeing someone else. The investigator testified that he had discovered no evidence to support such a belief, but that the appellant had refused to accept that finding.
Because no person actually witnessed the shooting other than the victim and the appellant, the prosecution relied on circumstantial evidence and a confession. Its theory was that the appellant had lured Wood to the trailer by calling him at the construction site, and that once he arrived, they argued and she shot him as he sat in a chair. The state medical examiner testified that the path of the bullet indicated that Wood was not standing at the time he was shot.
The appellant countered with a theory of self-defense. She testified that Wood answered her telephone after he arrived the morning of the shooting and became angry when no one spoke up. Wood then accused her of seeing another man and struck her, breaking her glasses and bruising her face. The appellant testified that she walked into her bedroom, returned with the pistol and shot the deceased after a subsequent confrontation.
The state did not dispute that the appellant had suffered a bruised face and an injured hand. Its position was that the victim had struck Clark after he was shot and had injured her hand when he took the gun away. The appellant's own testimony indicated that her hand had been injured after the shooting occurred. The jury apparently believed the prosecution's circumstantial evidence since it found the defendant guilty of first-degree murder and did not recommend mercy.
The appellant's primary assignment of error is that the trial court erred when it refused to give the self-defense instruction proferred by the defense. The appellee contends that the appellant did not introduce sufficient evidence to justify the giving of a self-defense instruction.
Uncontradicted testimony indicated that the appellant had suffered a blow to the face, that her glasses had been broken and that her finger had been injured. The only dispute centered on whether these events occurred before or after the shooting. Because the physical evidence indicated that such injuries had occurred, and no testimony was introduced by the prosecution to rebut the appellant's description of the sequence of events, the question of self-defense was an issue to be decided by the jury. Thus, the trial court correctly ruled that the appellant was entitled to a self-defense instruction. We must determine if the instruction given met the requirements of law.
This case is governed by our holding in State v. Kirtley, 162 W.Va. 249, 252 S.E.2d 374 (1978). That case concerned the stabbing death of a man who had threatened physical harm to the accused. We reversed the conviction because the trial judge had incorrectly placed the burden of proving self-defense on the accused. In syllabus point 4 of Kirtley, we held that "[o]nce there is sufficient evidence in the case to create a reasonable doubt that the killing resulted from the defendant acting in self-defense, the plaintiff must prove beyond a reasonable doubt that the defendant did not act in self-defense." Thus, we adopted the majority rule in America that the defendant need not prove self-defense by a preponderance of the evidence in order to place the burden of proof on the prosecution, but merely must produce sufficient evidence to create a reasonable doubt on the issue. Reviewing cases from other jurisdictions which had adopted the majority rule we stated:
The rationale of these cases is rather simple. They reason that since self-defense is an absolute justification for a killing, once sufficient evidence is in the case to create a reasonable doubt on this issue the state, in order to obtain a guilty conviction, must prove beyond a reasonable doubt that the killing was not justified.
Id., 162 W.Va. at 253-254, 252 S.E.2d at 380.
In this case, the defense offered verbatim a self-defense jury instruction approved by this Court in Kirtley. The trial court refused to give this instruction, despite repeated pleas by defense counsel, because it believed the instruction to be an incorrect statement of law. Defense counsel was forced by the Court to accept an instruction which paralleled the one found in Kirtley to be incorrect. * Both instructions place the burden of proof on the defendant under a preponderance of the evidence standard and fail to mention the State's burden of proof once the defendant has met the "sufficient evidence" threshold. The giving of this instruction was reversible error.
The appellant has brought two issues to the Court's attention which, although not dispositive, deserve comment. The appellant claims the lower court committed reversible error by allowing the state medical examiner to testify about the manner of the victim's death and by permitting the investigating police officer to testify concerning certain statements made by the appellant at the shooting scene.
At trial, the medical examiner testified that the victim died from a gunshot wound and resulting blood loss. In response to a hypothetical question from the prosecution, he gave his opinion that the victim could not have been standing upright at the time of the shooting. Further, he opined that the shooting was a homicide.
The appellant contends that permitting the state medical examiner to testify that homicide was the manner of death allowed him to testify on an ultimate issue to be decided by the jury. In this state, witnesses, expert or otherwise, may not testify conclusively on matters which are ultimately to be decided by the jury. Redman v. Community Hotel Corp., 138 W.Va. 456, 76 S.E.2d 759 (1953).
We agree that it was improper to permit the state medical examiner to testify conclusively that homicide was the manner of death. The appellant was charged with murder. In order for the jury to determine whether a murder had occurred, it first had to decide whether a homicide had taken place. Homicide means the killing of a human being by another human being for whatever reason, justified or not. State ex rel. Combs v. Boles, 151 W.Va. 194, 199, 151 S.E.2d 115, 118 (1966); People v. Mahon, 77 Ill.App.3d 413, 32 Ill.Dec. 569, 395 N.E.2d 950 (1979). Once a jury determines that a homicide has occurred, it must then determine whether the killing was justified, and if not, the degree of culpability to be placed on the defendant.
Although the state medical examiner may not testify as to manner of death, he may describe the type and nature of wounds suffered by the victim. He may give his opinion as to the physical and medical cause of death. The state medical examiner may describe tests conducted as part of his examination. He may answer properly phrased hypothetical questions based upon the evidence, but he may not invade the fact finding function of the jury by making the ultimate factual--legal conclusion that is central to an element of the crime.
We are logically compelled to this conclusion by decisions in analogous sexual assault cases where examining physicians testified that sexual assaults indeed had occurred. That question is an ultimate fact to be decided by...
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State v. Smith
...1 It is argued that the testimony of the medical examiner regarding the manner of death was impermissible under State v. Clark, 171 W.Va. 74, 297 S.E.2d 849 (1982), insofar as it embraced an ultimate issue to be decided by the jury. However, in Clark we said that a medical examiner "may giv......
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