State v. Gangwer

Decision Date03 November 1981
Docket NumberNo. 14544,14544
Citation283 S.E.2d 839,168 W.Va. 190
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia v. Richard Chancellor GANGWER.

Syllabus by the Court

1. "Once there is sufficient evidence to create a reasonable doubt that the killing resulted from the defendant acting in self-defense, the prosecution must prove beyond a reasonable doubt that the defendant did not act in self-defense." Syllabus Point 4, State v. Kirtley, W.Va., 252 S.E.2d 374 (1978).

2. The concept of "full retroactivity" in a criminal case ordinarily means that the new rule is available not only for those cases in litigation or on appeal where the point has been preserved but is also available by way of collateral attack on a final judgment through a writ of habeas corpus.

3. In the absence of any substantial countervailing factors, where a new rule of criminal law is made of a nonconstitutional nature, it will be applied retroactively only to those cases in litigation or on appeal where the same legal point has been preserved.

Hague, Rudolph, Hague & Lantz (Firm name now Lantz & Rudolph), and George E. Lantz, Parkersburg, for plaintiff-in-error.

Chauncey H. Browning, Jr., Atty. Gen. and S. Clark Woodroe, Asst. Atty. Gen., Charleston, for defendant-in-error.

MILLER, Justice:

The defendant, Richard Chancellor Gangwer, appeals from a conviction by jury in the Circuit Court of Wood County of aiding and abetting murder in the second degree. He received a sentence of from five to eighteen years. Defendant contends that the court erred in: (1) allowing an erroneous instruction on self-defense offered by the State; (2) refusing his request to have a deputy sheriff moved away from the defense counsel table; (3) refusing to admit evidence of occurrences which caused defendant to be in a nervous state and under medication on the day of the murder; and (4) refusing to let defense counsel cross-examine two State witnesses who were present at the scene of the crime about whether they were arrested at the time the murder was investigated for engaging in criminal conduct, i. e. delivery of marijuana.

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

After he left VanCamp's house, the defendant drove to the home of his second cousin. There was testimony that defendant was somewhat intoxicated when he arrived at his cousin's house and that he was drinking beer and wine and taking Valium while there. After approximately an hour and a half, the defendant returned to his 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 Gangwer brothers, they returned later that evening to the VanCamp residence. Michael parked the car approximately thirty yards away, took his gun 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 the defendant to remain in the car. VanCamp's wife opened the door and at the same moment the defendant approached. VanCamp's wife was forced outside the door into Michael's arms. The defendant was at first caught between the door and frame, but was eventually pulled inside the house.

The victim allegedly grabbed the defendant by the head in the doorway and threatened to kill him. Michael testified that the defendant 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, Michael 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 Michael Gangwer grabbed her and threatened her with a gun, demanding his money back, and that her husband was shot when the defendant called to his brother from the house to "Waste him, Mike...." VanCamp died of his wounds.

I.

Defendant's major contention is that the trial court erred in giving State's Instruction No. 13 which reads:

"Where a homicide is proven beyond a reasonable doubt and the plea of self-defense is relied upon by the Defendant, then the burden of proving self-defense rests upon the Defendant. To avail himself of such defense the facts and circumstances of showing self-defense must be established by a preponderance of the evidence. In determining whether or not self-defense has been established by such preponderance of the evidence, the jury should consider all the evidence, both that of the State and that of the Defendant."

The defendant objected to this instruction at the time it was given and again in a motion to set aside the verdict and award a new trial. He argues that State v. Kirtley, W.Va., 252 S.E.2d 374 (1978), held the giving of such an instruction was reversible error. The applicable law is summarized in Syllabus Point 4 of Kirtley:

"Once there is sufficient evidence to create a reasonable doubt that the killing resulted from the defendant acting in self-defense, the prosecution must prove beyond a reasonable doubt that the defendant did not act in self-defense."

The State contends that Kirtley was decided on November 28, 1978, and because the trial in this case was concluded on July 1, 1978, we should not apply Kirtley to this case. The State relies on certain statements in Kirtley where we declined to give "full retroactivity" to its self-defense burden principles. 252 S.E.2d at 381-82. The determination not to give "full retroactivity" to the new rule was based on our conclusion that the burden of proof standard in regard to self-defense did not rest on constitutional due process standards as some states have held. 1 The concept of "full retroactivity" in a criminal case ordinarily means that the new rule is available not only for those cases in litigation or on appeal where the point has been preserved, but is also available by way of collateral attack on a final judgment through a writ of habeas corpus. Bradley v. Appalachian Power Company, W.Va., 256 S.E.2d 879, 888 (1979). Clearly, the discussion in Kirtley regarding retroactivity was designed to preclude "full retroactivity" so that the Kirtley rule could not be applied by way of a collateral attack in habeas corpus on a final conviction. 2 In short, we did not address in Kirtley to what extent it would be applied retroactively.

In Adkins v. Leverette, W.Va., 239 S.E.2d 496 (1977), we discussed some aspects of retroactivity, but the primary focus was on a ruling of constitutional dimension which was held to be fully retroactive. Here, we have a new rule which is not of a constitutional dimension and the retroactivity is analogous to that discussed in Bradley v. Appalachian Power Company, W.Va., 256 S.E.2d 877, 887 (1979). Admittedly, Bradley dealt with the retroactivity of a new rule in the law of contributory negligence and acknowledged "that retroactivity considerations in a criminal case presenting constitutional issues involve different policy judgments which may not be present in the ordinary civil case." W.Va., 256 S.E.2d at 888. 3

There is, however, a close parallel between retroactivity in a civil case and retroactivity in a criminal case where the new rule is of a nonconstitutional dimension. We stated in Bradley that one of the fundamental purposes of extending retroactivity is that:

"The more egregious the error, the greater the need to extend the benefits of the overruling decision to others occupying the same status." W.Va., 256 S.E.2d at 889.

It is this "equality of application" or evenhandedness that provides the most appealing rationale for retroactivity absent some strong countervailing policy reasons. It would be harsh and paradoxical to hold that the defendant in Kirtley, whose case arrived in this Court first, should receive the benefit of the rule, but that Gangwer, who made the same objection at trial and whose appeal arrived here later, must be denied the benefit of the same rule. From a purely practical standpoint, extending retroactivity to those cases on appeal where the point in error has been specifically preserved at trial will limit the number of cases to which the rule applies to a fairly small class of cases. 4 This is true because until the new rule is announced most litigants will be unaware of it and, therefore, will not have made a timely objection during the trial.

We recognize that Bradley's six countervailing considerations against retroactivity are not all germane to a criminal case. 5 However, as Kirtley noted, our rule regarding the burden of proof for self-defense is a judicially-created procedural shift not resting on constitutional grounds. As emphasized above, if retroactivity is limited to those cases subsequently appealed where the point has been preserved at trial, the impact of extending limited retroactivity will be confined to a rather small number of cases. Consequently, we do not believe that our decision today will have a substantial impact on the administration of justice. Furthermore, a number of other courts have in analogous situations imposed the same sort of limited retroactivity. Wade v. United States, 426 F.2d 64 (9th Cir. 1970); State v. Santiago, 53 Haw. 254, 492 P.2d 657 (1971); State v. Thrasher, 175 N.W.2d 397 (Iowa 1970); Brumley v. Commonwealth, 375 S.W.2d 270 (Ky...

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