State v. Davis

• Citation: 648 S.E.2d 354
• Decision Date: 05 April 2007
• Docket Number: No. 33191.,33191.
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Wade C. DAVIS, Defendant Below, Appellant.
• Court: Supreme Court of West Virginia

648 S.E.2d 354

STATE of West Virginia, Plaintiff Below, Appellee, v. Wade C. DAVIS, Defendant Below, Appellant.

No. 33191.

Supreme Court of Appeals of West Virginia.

Submitted March 13, 2007.

Decided April 5, 2007.

Dissenting Opinion of Justice Maynard June 8, 2007.

Dissenting Opinion of Justice Benjamin July 25, 2007.

Syllabus by the Court

1. "To trigger application of the `plain error' doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings." Syllabus point 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

2. "The trial court must instruct the jury on all essential elements of the offenses charged, and the failure of the trial court to instruct the jury on the essential elements deprives the accused of his fundamental right to a fair trial, and constitutes reversible error." Syllabus, State v. Miller, 184 W.Va. 367, 400 S.E.2d 611 (1990).

Crystal L. Walden, Gregory L. Ayers, Office of the Public Defender, Charleston, for Appellant.

Darrell V. McGraw, Jr., Attorney General, R. Christopher Smith, Assistant Attorney General, Charleston, for Appellee.

PER CURIAM:

Wade C. Davis appeals from an order of the Circuit Court of Kanawha County sentencing him to a term of ten years imprisonment after a jury convicted him of second degree murder. Here, Mr. Davis argues that the circuit court committed reversible error by failing to instruct the jury that "intent" is an element of second degree murder. After a careful review of the briefs and record, we reverse and remand this case for a new trial.

I. FACTUAL AND PROCEDURAL HISTORY

Around 11:45 p.m. on March 17, 2003, Mr. Davis pulled into a Go-Mart parking lot in Sissonville, West Virginia, to purchase gas for his vehicle. Mr. Davis had two companions with him, Todd Robins and Matt Hensley. Mr. Davis attempted to put gas in his vehicle but the pump was not turned on. Mr. Davis yelled to Mr. Hensley as he walked toward the store, "Tell them to turn the f____ing pumps on, please." At the time that Mr. Davis yelled, three other patrons were present, Eddie Lattea, his son Michael Lattea, and Donald Shaffer. The events that occurred after Mr. Davis yelled to Mr. Hensley were contested at trial.¹

Either Eddie or Michael yelled out to Mr. Davis that "You have to pay for it first you dumb mother f____."² Heated words were thereafter exchanged between Mr. Davis and Michael or Eddie. According to the testimony of Mr. Davis, he was attacked by Eddie, Michael and Donald. Mr. Davis procured a knife in an attempt to defend himself. During the altercation, Mr. Davis stabbed Eddie once in the back. Mr. Davis also stabbed Michael twice in the chest and twice in the head. Michael died as a result of the wounds.

Mr. Davis was subsequently indicted for murder in the first degree and malicious wounding. The trial began on December 6, 2004, and was conducted before a jury. Mr. Davis testified during the trial and explained his actions during the altercation as being in self-defense. He further testified that the killing was not intentional. During jury deliberations the jury asked the court, on three separate occasions, to respond to a question. The last note sent to the trial court asked the court to verify (1) whether second degree murder was with malice and unlawful, but without intent and (2) whether voluntary manslaughter was without malice, but with intent.³ The circuit court responded to the question by reading to the jury its previous instructions on the elements of second degree murder and voluntary manslaughter. Thereafter, the jury returned with a verdict of guilty of second degree murder and not guilty of malicious wounding. Mr. Davis filed a post-trial motion seeking an acquittal or a new trial on the grounds that the court failed to properly instruct the jury that "intent" was an element of second degree murder. The motion was denied without a hearing. This appeal followed.

II. STANDARD OF REVIEW

The only substantive issue presented in this appeal is whether the trial court properly responded to the jury's question on the difference between second degree murder and voluntary manslaughter.⁴ In State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995), we stated that in addressing the issue of a trial court's instruction to the jury, "[t]he basis of the objection determines the appropriate standard of review." Guthrie, 194 W.Va. at 671, 461 S.E.2d at 177. It was said in Guthrie that "if an objection to a jury instruction is a challenge to a trial court's statement of the legal standard, this Court will exercise de novo review." Id. On the other hand, a "trial court has discretion in determining how best to respond to a jury question. We will review any such response for an abuse of discretion." People v. Sanders, 368 Ill.App.3d 533, 306 Ill.Dec. 549, 857 N.E.2d 948, 952 (2006).

III. ARGUMENT

Mr. Davis did not object to the manner in which the trial court responded to the jury's last question until after the jury had returned its verdict. The State contends that because there was no timely objection, the issue was waived. This Court has held that "where a party does not make a clear, specific objection at trial to the charge that he challenges as erroneous, he forfeits his right to appeal unless the issue is so fundamental and prejudicial as to constitute `plain error.'" Guthrie, 194 W.Va. at 671 n. 13, 461 S.E.2d at 177 n. 13. Rule 30 of the West Virginia Rules of Criminal Procedure provides that "any appellate court may, in the interest of justice, notice plain error in the giving . . . [of] an instruction, whether or not it has been made the subject of objection." See W. Va. R.Crim. P. 52 (defining harmless error and plain error). Thus, we have noted that, "[a]s a general proposition, this Court has discretionary authority to consider the legality and sufficiency of the trial court's charge under the plain error doctrine." State v. Miller, 194 W.Va. 3, 18, 459 S.E.2d 114, 129 (1995) (citations omitted).⁵

Mr. Davis argues that the issue raised by him should be addressed by this Court under the plain error doctrine. We agree. See State v. Barker, 176 W.Va. 553, 558, 346 S.E.2d 344, 349 (1986) ("Failure to afford a criminal defendant the fundamental right to have the jury instructed on all essential elements of the offense charged has been recognized as plain error."). See also Smith v. United States, 549 A.2d 1119, 1123 (D.C.Ct. App.1988) ("This ambiguous [supplemental] instruction coupled with the jury verdict returned shortly thereafter makes it clear to us that the conviction . . . is infected with plain error on a constitutional issue."); Commonwealth v. Johnson, 435 Mass. 113, 754 N.E.2d 685, 692 (2001) ("Objections to these errors in the instructions on malice were not properly preserved. . . . Therefore, our review is limited to whether the error created a substantial likelihood of a miscarriage of justice. We conclude that the error did create a substantial likelihood of a miscarriage of justice."); State v. Harmon, 104 N.J. 189, 516 A.2d 1047, 1060 (1986) ("It must be determined, then, whether the [supplemental] charge constituted plain error since there was no objection interposed by defendant to the recitation of these charges in this case."); People v. Carnegie, 74 A.D.2d 651, 425 N.Y.S.2d 39, 40 (1980) ("Although the defendant's counsel did not object [to the supplemental instruction], we think that in the context of this case, the interest of justice requires that the judgment be reversed and a new trial ordered.").

In Syllabus point 7 of Miller we set out the elements of the plain error doctrine as follows:

To trigger application of the "plain error" doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings.

Syl. pt. 7, Miller. 194 W.Va. 3, 459 S.E.2d 114. We will address each element of the plain error doctrine separately.

1. There was an error. The first issue we must address is whether or not an error occurred in the trial court's response to the last question submitted by the jury. The last note sent to the trial court asked for clarification as follows:

Can you please verify the following: Is 2nd degree with malice and unlawful without intent and voluntary manslaughter without malice and with intent in the heat of passion. Please verify the with and without intent.

(Emphasis in original). The trial court responded to the jury's question by calling the jury back into the courtroom and reading the following instructions on second degree murder and voluntary manslaughter:

Before Wade C. Davis can be found guilty of the offense of murder in the second degree . . . the State must overcome his presumption of innocence and prove to your satisfaction, beyond a reasonable doubt, that:

Wade C. Davis . . . did unlawfully and maliciously, but without deliberation or premeditation, kill Michael Allen Lattea.

. . . .

Voluntary manslaughter is a sudden intentional killing upon gross provocation and in the heat of passion.

Voluntary manslaughter is committed when any person intentionally and unlawfully kills another person without malice but under excitement and heat of passion.

Before Wade C. Davis can be convicted of voluntary manslaughter . . . the State of West Virginia must overcome the presumption that he is innocent and prove, beyond a reasonable doubt, that:

Wade C. Davis . . . did intentionally and unlawfully, without malice, deliberation or premeditation, but under sudden excitement and heat of passion, kill Michael Allen Lattea.

Mr. Davis contends that the instruction on second degree murder is inaccurate because it omitted the element of intent. We disagree. The instruction is correct insofar as our case law has indicated that the terms malice and intent may...