State v. Gangwer

• Decision Date: 22 January 1982
• Docket Number: No. 14922,14922
• Parties: STATE of West Virginia v. Michael Chancellor GANGWER.
• Court: West Virginia Supreme Court

Page 389

286 S.E.2d 389

169 W.Va. 177

STATE of West Virginia v. Michael Chancellor GANGWER.

No. 14922.

Supreme Court of Appeals of West Virginia.

Jan. 22, 1982.

Syllabus by the Court

1. Widespread publicity, of itself, does not require change of venue, and neither does proof that prejudice exists against an accused, unless it appears that the prejudice against him is so great that he cannot get a fair trial.

2. Whether a change of venue is warranted rests in the sound discretion of the trial court, and its ruling thereon will not be disturbed, unless it clearly appears that such discretion has been abused.

3. The general rule is that a party may not assign as error the giving of an instruction unless he objects, stating distinctly the matters to which he objects and the grounds of his objection.

4. In West Virginia a criminal defendant may only use reputation evidence to prove character.

5. As a general rule, the scope of cross-examination is coextensive with, and limited by, the material evidence given on direct examination.

6. An instruction which requires the State to prove beyond a reasonable doubt the existence of malice on the part of the defendant at the time of the homicide, cannot be said to unconstitutionally shift the burden of proof on the issue of provocation to the defendant.

7. It is not reversible error for a trial court to give an abstract instruction where the instruction is not misleading or inapplicable to the case.

8. "In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done." Syllabus Point 1, State v. Andriotto, W.Va., 280 S.E.2d 131 (1981); Syllabus Point 1, State v. Starkey, W.Va., 244 S.E.2d 219 (1978).

Lantz & Rudolph and George E. Lantz, Parkersburg, for appellant.

Chauncey H. Browning, Jr., Atty. Gen. and S. Clark Woodroe, Asst. Atty. Gen., Charleston, for appellee.

McGRAW, Justice:

The appellant, Michael Gangwer, was convicted of first degree murder in the Circuit Court of Wood County. He received a sentence of life imprisonment with a recommendation of mercy. The appellant assigns the following errors: (1) the trial court erred in refusing the appellant's motion for a change in venue; (2) the trial court gave an erroneous instruction limiting the testimony concerning conversations with his brother pertinent to motive prior to the killing; (3) the trial court erred in allowing, over objection, the State to ask, upon cross-examination, improper hypothetical questions of the appellant's character witnesses; (4) the trial court erroneously instructed the jury on the material elements of first degree murder; (5) the trial court erroneously instructed the jury on self-defense; and (6) the evidence adduced at trial was manifestly inadequate to support a verdict of first degree murder.

The appellant and his brother, Richard Gangwer, were indicted for the murder of Jimmie L. VanCamp, Jr. The evidence at trial indicated that the appellant's brother and a friend had gone to the victim's home several hours before the shooting to buy marijuana from VanCamp. Richard Gangwer gave VanCamp $40.00 for the marijuana, money which he apparently borrowed from the appellant. Before Richard received his purchase, he and VanCamp argued over a missing .22 caliber pistol which belonged to VanCamp. A struggle ensued, during which the gun fell out of Richard's jacket. VanCamp's wife testified that after discovering the gun her husband told Richard to get out. At this point, Richard asked for his money back and the victim refused, whereupon Richard left the house.

Richard later returned home where he lived with his parents and brother and sister-in-law. The facts surrounding the following events are in controversy.

According to the appellant, he and his brother returned later that evening to the VanCamp residence. The appellant parked the car approximately thirty yards away, took his loaded .357 Magnum handgun out of the car, and went to the front door. He testified that he took the gun with him only as a precautionary measure and that he instructed Richard to remain in the car. VanCamp's wife opened the door and at the same moment Richard approached with an automatic rifle. VanCamp's wife was forced outside the door into the appellant's arms. Richard was at first caught between the door and frame, but was eventually pulled inside the house. At this point a standoff of approximately ten to fifteen minutes duration occurred between the appellant on the porch holding the victim's wife, and the victim who, with the help of two friends, held the appellant's brother inside the house.

At one point during the standoff the victim, who was armed with a .22 caliber pistol, allegedly grabbed Richard by the head in the doorway and threatened to kill him. The appellant testified that Richard said, "Help me, Mike. Help me," and that he could see the victim's finger cocking the gun at his brother's head. At this point, the appellant fired his weapon twice. He testified that he only intended to wound the victim by shooting his firing arm and that it was Linda VanCamp's movement that threw his aim off.

The testimony of Linda VanCamp was that the appellant grabbed her and threatened her with a gun, demanding his money back, and that her husband was shot when Richard called to the appellant from the house to "Waste him, Mike, waste him." VanCamp died of his wounds.

I

In support of his motion for change of venue the appellant submitted numerous newspaper articles regarding the homicide and the trial of his brother who was convicted of aiding and abetting in the killing. ¹ The appellant also submitted 75 affidavits of members of the community who were of the opinion that he could not get a fair trial in Wood County.

In State v. Pratt, W.Va., 244 S.E.2d 227 (1978), this Court held that widespread publicity, of itself, does not require change of venue, and neither does proof that prejudice exists against an accused, unless it appears that the prejudice against him is so great that he cannot get a fair trial. In other words the defendant must show that he cannot get a fair trial because of the existence of extensive present hostile sentiment. In State v. Boyd, W.Va., 280 S.E.2d 669 (1981), we discussed the requirements announced in Pratt and explained that the inquiry as to whether a defendant has established good cause for change of venue is not focused on the amount of pre-trial publicity, but on whether the publicity has so pervaded the populace of the county as to preclude a fair trial.

Whether a change of venue is warranted rests in the sound discretion of the trial court, and its ruling thereon will not be disturbed, unless it clearly appears that such discretion has been abused. State v. Sette, W.Va., 242 S.E.2d 464 (1978); State v. Wooldridge, 129 W.Va. 448, 40 S.E.2d 899 (1946). In this case the appellant's evidence failed to show the existence of an extensive present hostile sentiment throughout the population of the county, and the trial court did not abuse its discretion in denying the motion for change of venue.

II

In order to establish his state of mind and his motive for carrying a loaded weapon on the night of the homicide, the appellant testified as to what his brother told him about the character of the victim and the number and type of weapons the victim had at his house.

After this testimony the judge instructed the jury:

Ladies and gentlemen, you may consider the testimony of the witness as to what Richard Gangwer said to him about the home and car, on the way there, insofar and insofar only as you may believe the same to be evidence that such things were told to this witness but you shall not consider as any evidence of the truth of any of the things related by Richard Gangwer. In other words, it's not evidence of fact.

The appellant argues that this instruction, and particularly the last sentence, was improper and misleading to the jury, and requires reversal of his conviction.

The evidence the appellant presented is clearly admissible as original evidence. The majority of this Court has held that "[w]here it becomes relevant to show that a certain statement was made, regardless of the truth or falsity of the statement or declaration itself, such proof is not hearsay and should be admitted." Syllabus Point 2, in part, State v. Greenlief, W.Va., 285 S.E.2d 391 (1981); see also Keller v. Wonn, 140 W.Va. 860, 87 S.E.2d 453 (1955); State v. Corbin, 117 W.Va. 241, 186 S.E. 179 (1936); F. Cleckley, Handbook on Evidence § 46 B (1978). Thus the evidence the appellant presented is not hearsay because it was not offered to prove the truth of the matters asserted, but only to show that such statements were made and affected the appellant's state of mind.

The trial court's instruction obviously attempted to instruct the jury that the particular testimony was not offered to prove the truth of the statements made by the appellant's brother. The instruction, although inartfully worded, adequately conveys this idea to the jury. Moreover, the appellant failed to object to the giving of the instruction at trial, and consequently has waived his right to assign the matter as error on appeal. "The general rule is that a party may not assign as error the giving of an instruction unless he objects, stating distinctly the matter to which he objects and the grounds of his objection." State v. Bush, W.Va., 255 S.E.2d 539, 547 (1979). Furthermore the "plain error" rule, which gives discretion to the trial court or this Court to notice...