State v. Daniel

• Decision Date: 09 March 1990
• Docket Number: No. 19301,19301
• Citation: 391 S.E.2d 90,182 W.Va. 643
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Ronald Eugene DANIEL.

Page 90

391 S.E.2d 90

182 W.Va. 643

STATE of West Virginia v. Ronald Eugene DANIEL.

No. 19301.

Supreme Court of Appeals of West Virginia.

March 9, 1990.

Syllabus by the Court

1. "A motion for a new trial on the ground of the misconduct of a jury is addressed to the sound discretion of the court, which as a rule will not be disturbed on appeal where it appears that defendant was not injured by the misconduct or influence complained of. The question as to whether or not a juror has been subjected to improper influence affecting the verdict is a fact primarily to be determined by the trial judge from the circumstances, which must be clear and convincing to require a new trial; proof of mere opportunity to influence the jury being insufficient." Syllabus point 7, State v. Johnson, 111 W.Va. 653, 164 S.E. 31 (1932).

2. "Malice, wilfulness and deliberation, elements of the crime of first-degree murder, may be inferred from the intentional use of a deadly weapon." Syllabus point 2, State v. Ferguson, 165 W.Va. 529, 270 S.E.2d 166 (1980).

3. A jury instruction which infers malice and deliberation from the intentional use of a deadly weapon does not violate a West Virginia citizen's constitutional right to keep and bear arms.

4. "Where a counsel's performance, attacked as ineffective, arises from occurrences involving strategy, tactics and arguable courses of action, his conduct will be deemed effectively assistive of his client's interests, unless no reasonably qualified defense attorney would have so acted in the defense of an accused." Syllabus point 21, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).

5. A defendant is required to present evidence on the affirmative defenses asserted as long as the State does not shift to the defendant the burden of disproving any element of the State's case.

Lee H. Adler, Beckley, for Ronald Eugene Daniel.

Kristen Keller, Chief Deputy Prosecutor, Office of the Prosecutor, Beckley, for State of W. Va.

BROTHERTON, Justice:

This case is before the Court on Ronald Eugene Daniel's appeal from the final order of the Circuit Court of Raleigh County, dated January 18, 1989, which imposed consecutive sentences of not less than ten years to life for a first degree murder conviction and not less than three nor more than ten years for a malicious wounding conviction.

On July 8, 1988, the appellant accompanied several friends to the Legends nightclub in Daniels, West Virginia. Also present at the Legends club were Jimmy Torrence and Cecil Miller, who arrived in a van operated by Torrence. The passengers of this van, Jimmy Torrence, his sixteen-year-old brother, Timmy, Bobby Goodson, Aaron Bolen, Cecil Miller, and Walter Dale Morgan (who was killed later that evening), apparently had been drinking and smoking marijuana.

Daniel and Torrence were acquainted and met that night, apparently by chance, in the night club, where they had several drinks. When the appellant's companions decided to leave, the appellant told them that he would stay and find a ride home.

When the club closed, Daniel exited with Jimmy Torrence. At that time, they became involved in a fist fight with two men known as the "Patton brothers," who allegedly had a grudge against Jimmy Torrence. Trial testimony revealed that Daniel was injured in the fight after being hit about the head. He claimed that he was left dazed by the beating.

After the fight was over, Jimmy Torrence offered Daniel a ride home. Two new passengers, Bobby Lane and an unknown woman, also entered the van at Torrence's invitation for a ride home. At this point, the facts become hazy. Daniel testified at trial that he did not remember getting in the van or speaking to anyone in the van, but "woke" in the front passenger seat frightened to discover there were several people in the van that he did not know. He stated he didn't know if they were the men who beat him up, and that he also didn't trust Torrence. Thus, he put a gun to Torrence's head and told him to drive to the police. Claiming several people were coming towards him in a threatening manner, he aimed his gun, allegedly at the floor of the vehicle, and fired three shots to scare them away. Two of the three shots hit Walter Morgan in the chest. Morgan later died as a result of the wounds received. The third bullet hit Cecil Miller in the arm, which was not a serious injury. The van apparently stopped, and the remaining passengers, including Morgan but excluding Miller, quickly slipped out after the shots were fired. ¹ Sometime after the van left the scene, an ambulance was called for Morgan, who died shortly thereafter. Miller remained passed out in the back of the van.

Daniel again put the gun to Torrence's head and told him to drive him to a State Police station. However, he directed Torrence to drive the opposite direction from the police station. Torrence eventually stopped the van upon seeing a police cruiser sitting at the side of the road, and Daniel exited the van with the gun still to Torrence's head. However, Daniel handed the gun to the police officer without a struggle.

The officer, on searching the van, found marijuana cigarettes in the van and a bag of LSD outside the front bumper of the van, a spot Daniel had passed when he exited the van. Oddly, no drug screen was done on Daniel, although one was performed on Torrence, which was positive for alcohol and marijuana.

In an affidavit prepared shortly after the shooting, Torrence reported that after he and Daniel were done fighting, they had jumped in the van and were headed home when Daniel put a gun to his head and told him to take him to the State Police Headquarters. Shortly thereafter, shots were fired. Torrence stated that he did not believe anyone in the van had been arguing nor did he believe Daniel knew the other men in the van. Torrence recalled that at the bar some man had been talking to Daniel. Daniel told him that he wasn't worried about the other man and pulled his gun out of his trouser waistband enough that Torrence could see it.

At trial, Bobby Lane testified that while there were no angry words between Daniel and Morgan, Daniel appeared perturbed at Morgan, apparently an old acquaintance, for not helping him in the fight. He stated Daniel talked about going back to get the men who beat him up. Further, several occupants of the van testified at trial that they did not move forward in the van until after the gun was fired, when they all exited the van, with the exception of Cecil Miller, who was passed out in the back.

Following a trial held in the Circuit Court of Raleigh County, the appellant was convicted of first-degree murder and malicious wounding. By final order dated January 18, 1989, he received consecutive sentences of ten years to life on the murder conviction and three to ten years on the malicious wounding conviction.

The appellant presents several issues to this Court for review. The first assignment of error relates to a jury tampering charge the appellant claims supports his request for a mistrial. Secondly, the appellant argues it was reversible error to allow Ferguson inferences to be used in light of the constitutional amendment giving a citizen the right to bear arms. The appellant next alleges ineffective assistance of counsel because of trial counsel's use of a specific witness. Also alleged is a charge that Jury Instructions 4 and 5 unconstitutionally shifted the burden of proof. Finally, the appellant contends the evidence was insufficient to support the verdict and that the court erred in its interpretation of the concept of transferred intent. We find no merit in the appellant's remaining assignments of error and accordingly, do not address them.

I.

The first issue we address is the appellant's contention that the trial court erred in not calling a mistrial based upon evidence of jury tampering. The jury tampering incident occurred when a witness for the appellant, Betty Kelly, telephoned one of the twelve jurors at home the evening before jury deliberations began. According to an affidavit later filed by the juror, Ms. Dillon, Ms. Kelly called her twice that night, asking about Ron Daniel. On each occasion, she asked the juror questions which would indicate that Ms. Kelly, who is in the used car business, would give the juror's son a break on a used car and reminded the juror to do what she could to help Ron Daniel. The juror did not report the conversations to the judge until several weeks after the trial was over or to the other jurors until after the verdict had been reached and the verdict forms signed. Once Ms. Kelly's conversations with the juror were discovered, the defendant's trial attorney and Ms. Dillon went separately to see Judge Canterbury. After discussing the incident with Ms. Dillon, Judge Canterbury stated that he believed no harm had occurred and refused to call a mistrial. The appellant's trial attorney decided not to request a formal hearing, but appellate counsel appealed. Thus, the issue is whether it is per se reversible error for a witness to contact a juror in a party's behalf when the trial judge found no evidence of prejudice.

The appellant points to a single case which presumes prejudice to reverse conviction on jury tampering. In State v. Burkhart, 615 S.W.2d 565 (Mo.App.1981), the Missouri court held that reversal was required without considering the content of a conversation that occurred after a case had been submitted for jury deliberation when there was proof that the conversation occurred between a prosecution witness and a juror. The appellant urges the adoption of this approach in order to avoid injustice.

By contrast, the West Virginia Supreme Court has ruled that "[m]isconduct of a juror, prejudicial to the complaining party, is sufficient reason to direct a mistrial or to set aside a verdict returned by the jury of which he is a member." Syl. pt. 3, Legg v. Jones, 126 W.Va. 757, 30 S.E.2d 76 (1944). In Legg, the wife...