State v. Duncan

• Decision Date: 22 April 1988
• Docket Number: No. 17467,17467
• Citation: 179 W.Va. 391,369 S.E.2d 464
• Parties: STATE of West Virginia v. Cleo DUNCAN.
• Court: West Virginia Supreme Court

Page 464

369 S.E.2d 464

179 W.Va. 391

STATE of West Virginia v. Cleo DUNCAN.

No. 17467.

Supreme Court of Appeals of West Virginia.

April 22, 1988.

Syllabus by the Court

1. West Virginia Code § 61-8-14 (1984) contains no requirement that a body be decently or lawfully buried before it can be subjected to unlawful disinterment.

2. "A criminal statute must be set out with sufficient definiteness to give a person of ordinary intelligence fair notice that his contemplated conduct is prohibited by statute and to provide adequate standards for adjudication." Syl. pt. 1, State v. Flinn, 158 W.Va. 111, 208 S.E.2d 538 (1974).

3. "Criminal statutes, which do not impinge upon First Amendment freedoms or other similarly sensitive constitutional rights, are tested for certainty and definiteness by construing the statute in light of the conduct to which it is applied." Syl. pt. 3, State v. Flinn, 158 W.Va. 111, 208 S.E.2d 538 (1974).

4. "When the constitutionality of a statute is questioned every reasonable construction of the statute must be resorted to by a court in order to sustain constitutionality, and any doubt must be resolved in favor of the constitutionality of the legislative enactment." Syl. pt. 3, Willis v. O'Brien, 151 W.Va. 628, 153 S.E.2d 178, cert. denied, 389 U.S. 848 [88 S.Ct. 71, 19 L.Ed.2d 116] (1967).

Travers R. Harrington, Jr., Fayetteville, for Cleo Duncan.

Mary Rich Maloy, Charleston, for State.

BROTHERTON, Justice:

Cleo Duncan appeals her conviction by a Fayette County jury of the unlawful disinterment or displacement of a dead human body in violation of W.Va.Code § 61-8-14 (1984). She raises two errors relating to W.Va.Code § 61-8-14: First, that unlawful disinterment implies a decent burial as a prerequisite; and second, that W.Va.Code § 61-8-14 is unconstitutionally vague. The appellant also assigns as error the trial court's failure to give the jury instructions defining a principal in the second degree and an aider and abettor, and the trial court's failure to conduct individual voir dire. ¹ For the reasons stated below, we find no reversible error, and therefore affirm.

During the early morning hours of January 29, 1983, James Duncan arrived at his rural Fayette County home. Duncan lived with his wife, Cleo, his infant daughter and Cleo Duncan's sons from a previous marriage, Jerry Raines, Joey Raines, and Bobby Raines. Complaining because the fire in the wood stove had gone out and because he was hungry, Duncan woke the appellant and instructed her to prepare him something to eat. Upset because the food was not heated adequately, Duncan threw the plate of food across the room and chased after his wife. The appellant fled outside, but Duncan brought her back inside. By this time the commotion had awakened Jerry Raines, the appellant's oldest son, who interceded on her behalf by asking Duncan to leave his mother alone. Duncan then turned his anger toward Jerry and chased him outside.

Eventually, the family congregated in the kitchen, where Duncan, shaking a kitchen knife, lectured the boys on how to keep the fire going in the wood stove. Duncan then took his mother-in-law's gun from behind the kitchen stove and waved it in front of the boys. The appellant's mother, Dorothy Grubb, who lived next door, arrived and took the gun from Duncan. A shot was fired, killing Duncan.

A decision was made to bury Duncan in the backyard, and Mrs. Grubb instructed Jerry and Joey to dig the hole. Mrs. Grubb and Jerry placed Duncan's body in the hole. Jerry and the appellant then drove Duncan's truck to nearby Prince and ran it over a hill to the edge of the river to make it appear that Duncan had been involved in an accident. The next day the appellant reported Duncan missing to the State Police. A search for Duncan's body ensued.

Motivated by the desire for Duncan to have a decent burial, on January 31, the family decided to put Duncan's body in the river so it would be found by the police in their dragging operations. The appellant instructed Jerry and Joey to dig up Duncan's body. Mrs. Grubb, however, feared that when Duncan's body was found the bullet would be traced to her. Accordingly, Mrs. Grubb cut into Duncan's chest with a knife, removed the heart and lungs, but was unable to find the bullet.

The appellant, Mrs. Grubb, and Jerry then proceeded to Wiggins Bridge near Hinton, West Virginia, where they attempted to throw Duncan's body off the bridge. However, Duncan's foot became entangled in the superstructure of the bridge, leaving his body hanging over the river. While Jerry was underneath the bridge trying to dislodge the body, headlights appeared on the bridge. Realizing that the vehicle was a Hinton police car, the appellant got back into her car and drove off.

Unable to continue the cover-up, the appellant decided to turn herself in to the authorities. On the way to the police the next morning, the appellant was met by two State Police officers and placed under arrest.

The appellant was tried on a two-count indictment, count one charging her with murder, and count two charging her with unlawful disinterment. On August 14, 1985, the Fayette County jury acquitted the appellant on count one, but found her guilty of the unlawful disinterment of a dead human body. The appellant was sentenced to a prison term of two-to-five years at the West Virginia State Prison for Women at Alderson, West Virginia.

I.

The appellant argues first that "disinterment" in W.Va.Code § 61-8-14 (1984) implies prior burial in the sense of a decent burial. She argues that Duncan's body was merely hidden in the ground, not decently buried, and that, therefore, it could not be subject to unlawful disinterment under W.Va.Code § 61-8-14. ² We disagree.

West Virginia Code § 61-8-14 provides:

If any person unlawfully disinter or displace a dead human body, or any part of a dead human body, which shall have been placed or deposited in any vault, mausoleum, or any temporary or permanent burial place, he shall be guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less than two nor more than five years.

West Virginia Code § 61-8-14 contains no requirement that a body be decently or lawfully buried before it can be subjected to unlawful disinterment. Rather, the language "any temporary or permanent burial place" indicates a legislative desire not to distinguish between the types of graves which might be subject to unlawful disinterment. While the hole in the backyard indeed may have been a hiding place, it was also a burial place. The burial place became a temporary burial place only because the family decided to recover the body and deposit it in a different place so it could be given a "proper burial." ³ However, "[t]he unauthorized disinterring of the body of a deceased human being is an indictable offense both at common law and by statute regardless of the motive or purpose for which the act is done." Davis v. State, 61 Ga.App. 379, 6 S.E.2d 736 (1939). Thus, we cannot excuse the appellant's actions on the basis of her desire to provide Duncan's body a decent burial. ⁴ We, therefore, must reject the appellant's first attack on W.Va.Code § 61-8-14.

In her second attack upon W.Va.Code § 61-8-14, the appellant argues that the statute is unconstitutionally vague and fails to fully and fairly give a person notice that his conduct is prohibited. In State v. Flinn, 158 W.Va. 111, 208 S.E.2d 538 (1974), the Court set forth the standard for measuring a criminal statute for certainty and definiteness: "A criminal statute must be set out with sufficient definiteness to give a person of ordinary intelligence fair notice that his contemplated conduct is prohibited by statute and to provide adequate standards for adjudication." Syl. pt. 1, State v. Flinn, 158 W.Va. 111, 208 S.E.2d 538 (1974). See United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 811, 98 L.Ed. 989 (1954); Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). However, "[i]mpossible standards of specificity are not required." Jordan v. De George, 341 U.S. 223, 231, 71 S.Ct. 703, 708, 95 L.Ed. 886 (1951). "Criminal statutes, which do not impinge upon First Amendment freedoms or other similarly sensitive constitutional rights, are tested for certainty and definiteness by construing the statute in light of the conduct to which it is applied." Syl. pt. 3, State v. Flinn, 158 W.Va. 111, 208 S.E.2d 538 (1974). See United States v. Powell, 423 U.S. 87, 92, 96 S.Ct. 316, 319, 46 L.Ed.2d 228 (1975). In this case, the body of James Duncan was placed in a hole in the appellant's backyard dug especially for that purpose. He was covered with dirt and remained there for approximately 72 hours. At the appellant's instruction, Jerry and Joey Raines removed Duncan's body from the hole in the backyard for the purpose of throwing it into the river.

The clear and unambiguous language of W.Va.Code § 61-8-14 gives a person of ordinary intelligence fair notice that the disinterment of a dead human body from any temporary or permanent burial place constitutes a felony punishable by a two-to-five year prison term. We, therefore, find that W.Va.Code § 61-8-14 is not unconstitutionally vague and that the appellant had fair notice that her conduct was prohibited by statute. "When the constitutionality of a statute is questioned every reasonable construction of the statute must be resorted to by a court in order to sustain constitutionality, and any doubt must be resolved in favor of the constitutionality of the legislative enactment." Syl. pt. 3, Willis v. O'Brien, 151 W.Va. 628, 153 S.E.2d 178, cert. denied, 389 U.S. 848, 88 S.Ct. 71, 19 L.Ed.2d 116 (1967). ⁵

II.

The appellant argues that because the only evidence showed that she was a principal in the second degree, and because the jury was instructed only as to the elements of a principal in the first degree, the jury's verdict was not supported...