State v. Dinger, 32694.

• Decision Date: 01 December 2005
• Docket Number: No. 32694.,32694.
• Citation: 624 S.E.2d 572
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Larry G. DINGER, Defendant Below, Appellant.
• Court: West Virginia Supreme Court

624 S.E.2d 572

STATE of West Virginia, Plaintiff Below, Appellee, v. Larry G. DINGER, Defendant Below, Appellant.

No. 32694.

Supreme Court of Appeals of West Virginia.

Submitted November 1, 2005.

Decided December 1, 2005.

Syllabus by the Court

1. "As a general rule, the refusal to give a requested jury instruction is reviewed for an abuse of discretion. By contrast, the question of whether a jury was properly instructed is a question of law, and the review is de novo." Syl. Pt. 1, State v. Hinkle, 200 W.Va. 280, 489 S.E.2d 257 (1996). Syl. Pt. 1, State v. Brooks, 214 W.Va. 562, 591 S.E.2d 120 (2003).

2. "`A trial judge's decision to award a new trial is not subject to appellate review unless the trial judge abuses his or her discretion.' Syl. Pt. 3, in part, In re State of West Virginia Public Bldg. Asbestos Litigation, 193 W.Va. 119, 454 S.E.2d 413 (1994), cert. denied sub nom. W.R. Grace & Co. v. West Virginia, 515 U.S. 1160, 115 S.Ct. 2614, 132 L.Ed.2d 857 (1995)." Syl. Pt. 2, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000).

3. "`Instructions must be based upon the evidence and an instruction which is not supported by evidence should not be given.' Syl. pt. 4, State v. Collins, 154 W.Va. 771, 180 S.E.2d 54 (1971)." Syl. Pt. 3, State v. Leonard, 217 W.Va. 603, 619 S.E.2d 116 (2005).

4. "`When one without fault himself is attacked by another in such a manner or under such circumstances as to furnish reasonable grounds for apprehending a design to take away his life, or to do him some great bodily harm, and there is reasonable grounds for believing the danger imminent, that such design will be accomplished, and the person assaulted has reasonable ground to believe, and does believe, such danger is imminent, he may act upon such appearances and without retreating, kill his assailant, if he has reasonable grounds to believe, and does believe, that such killing is necessary in order to avoid the apparent danger; and the killing under such circumstances is excusable, although it may afterwards turn out, that the appearances were false, and that there was in fact neither design to do him some serious injury nor danger, that it would be done. But of all this the jury must judge from all the evidence and circumstances of the case.' Syl. Pt. 7, State v. Cain, 20 W.Va. 679 (1882)." Syl. Pt. 6, Feliciano v. 7-Eleven, Inc., 210 W.Va. 740, 559 S.E.2d 713 (2001).

R. Thomas Czarnik, Esq., Princeton, for Appellant.

Darrell V. McGraw, Jr., Esq., Attorney General, Robert D. Goldberg, Esq., Deputy Attorney General, Charleston, for Appellee.

PER CURIAM:

This case is before the Court on appeal from the July 2, 2003, sentencing Order of the Circuit Court of Monroe County and the September 17, 2004, Order of the Circuit Court of Monroe County denying Appellant's motion for a new trial. This Court has before it the petition for appeal, the response, the briefs of the parties, and all matters of record. Following the arguments of the parties and a review of the record herein, this Court finds that the circuit court erred in denying Appellant's motion for a new trial. Accordingly, this Court reverses the September 17, 2004, Order of the circuit court and remands the matter for retrial.

I. FACTS

In the early morning hours of April 20, 2002, Mark McBride (hereinafter, "McBride") and Mac Lilly (hereinafter, "Lilly"), the victim in this case, went to the home of McBride's ex-wife, Tasha Pack (hereinafter, "Pack"). Pack shared her home with Larry Dinger (hereinafter, "Dinger"), whose two sons, aged twenty and twelve, were visiting¹. Shortly after arriving, Lilly, who had been drinking, passed out on the sofa. McBride, who had also been drinking, began making threats and engaged in an argument with Dinger's older son, Matthew. Dinger punched McBride, who was seated, in the face at least once, bloodying his nose. McBride did not retaliate, but, instead, collected himself for a few seconds and then left the house. He returned the next morning around eight, woke Lilly and told him what had happened. The pair left, but as they were leaving, McBride shouted, "We'll be back," which instigated another altercation between McBride and Matthew Dinger.

About an hour later, McBride's brother, Jason, and his cousin, Kenny Ray Steele, arrived at Pack's house and demanded to know what had happened to McBride. Pack diffused the situation, and Jason McBride and Steele left. An hour or two later, McBride, Lilly, and several other people went back to the Pack house. McBride, Lilly and two others approached the front porch while Pack went out into the yard to persuade the remaining members of the group to leave. Upon hearing the ruckus outside the house, Dinger grabbed a double action revolver and stuck it in the back waistband of his pants. He went out onto the porch to confront McBride, Lilly, and the others, all of whom seemed eager to fight. Pack ran to her father's home 100 yards away to call 911.² Dinger asked the group to leave, but they would not. When Dinger opened up the screen door to shoo his sons inside, one of the men, Alex Cline, slammed the door shut and blocked it with a chair stating, "You are not getting a f — ing gun." Dinger pulled the gun from his waistband, leveled it at the group, and said, "I don't have to, I have one."

It is at this point that the witnesses' statements begin to diverge. According to Dinger, Lilly grabbed the gun and said, "If you pull a gun, you'd better use it." Dinger asserts that when Lilly grabbed the gun, it went off. The gist of the testimony of those who had come to the Pack house with Lilly is that Lilly grabbed the gun, but that Dinger snatched it back out of Lilly's hands, at which point Lilly took a few steps backward. Those same witnesses assert that Dinger then leveled the gun at Lilly and shot him in the head. Lilly died of a single gunshot wound.

Dinger was indicted on November 19, 2002, on one count of murder.³ On May 16, 2003, a jury returned a verdict finding Dinger guilty of voluntary manslaughter. Defense counsel filed a motion for a new trial or to set aside the verdict based on the court's failure to give requested "accident" and "inability to retreat" instructions, the court's error in allowing gruesome photographs into evidence, the State's failure to produce the gunshot residue test, and the court's error in not dismissing first and second degree murder charges prior to the jury's deliberation. The court denied the motion, but directed the State to preserve the gunshot residue test kit in order that the defense be allowed to conduct its own test. The court subsequently sentenced Dinger to twelve years in the penitentiary. Dinger appealed his conviction to this Court on January 26, 2004.

On March 16, 2004, defense counsel again moved for a new trial based upon the results of the gunshot residue test as performed by the defense's expert, Robert S. White (hereinafter, "White"). White's findings seemed to contradict those of State Police Analyst Koren Powers (hereinafter, "Powers"). While Powers found no particles of gunshot residue on Lilly's hands, White found particles of gunshot residue on Lilly's hands. Dinger forwarded a copy of his motion on to this Court; and on April 1, 2004, this Court remanded the case to the circuit court for a hearing on the motion for a new trial on the ground of newly discovered evidence.

Following an evidentiary hearing, the circuit court denied the motion on September 17, 2004. The present appeal followed, raising issues from both the trial and denial of the motion for new trial.

II. STANDARD OF REVIEW

There are six issues before this Court, but we find one to be dispositive, and that is the issue of whether the court erred in failing to give a requested defense instruction. We have held that "[a]s a general rule, the refusal to give a requested jury instruction is reviewed for an abuse of discretion. By contrast, the question of whether a jury was properly instructed is a question of law, and the review is de novo." Syl. Pt. 1, State v. Hinkle, 200 W.Va. 280, 489 S.E.2d 257 (1996). Syl. Pt. 1, State v. Brooks, 214 W.Va. 562, 591 S.E.2d 120 (2003). In regard to the issue of the circuit court's failure to grant a new trial, we have held that "`[a] trial judge's decision to award a new trial is not subject to appellate review unless the trial judge abuses his or her discretion.' Syl. Pt. 3, in part, In re State of West Virginia Public Bldg. Asbestos Litigation, 193 W.Va. 119, 454 S.E.2d 413 (1994), cert. denied sub nom. W.R. Grace & Co. v. West Virginia, 515 U.S. 1160, 115 S.Ct. 2614, 132 L.Ed.2d 857 (1995)." Syl. Pt. 2, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000).

III. DISCUSSION

On appeal, Dinger raises six issues. They are (1) whether the circuit court erred in failing to grant a new trial on the basis of newly discovered evidence (i.e. the results of the gunshot residue test), (2) whether the circuit court erred in allowing gruesome pictures into evidence, (3) whether the circuit court erred in failing to give the defense's "accident" and "inability to retreat" instructions, (4) whether the circuit court erred in not dismissing the case upon the defense's motions at the close of the State's case in chief, (5) whether the circuit court erred in not dismissing the indictment, and (6) whether the circuit court erred in not dismissing first and second degree murder charges prior to the jury's deliberation. We find the issue of the defense's proposed "inability to retreat" instruction to be dispositive, so we turn first to it.

A. Failure to Give the Defense's "Inability to Retreat" Instruction

At trial, the defense proposed certain instructions for inclusion in the jury charge, four of which were later withdrawn. The remaining two instructions were refused, and it is those instructions which are at the heart of Dinger's argument. The first instruction was this:

A person who is without fault in an altercation has no duty to...