State v. George, 19648
| Decision Date | 31 July 1991 |
| Docket Number | No. 19648,19648 |
| Citation | 185 W.Va. 539,408 S.E.2d 291 |
| Parties | STATE of West Virginia, Plaintiff Below, Appellee, v. Cyrus Jonathan GEORGE, Defendant Below, Appellant. |
| Court | West Virginia Supreme Court |
July 31, 1991.
1. "Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not." Syl.Pt. 8, State v. Zaccagnini, 172 W.Va. 491, 308 S.E.2d 131 (1983).
2. A defendant may be convicted for both malicious assault and attempted murder in the first degree without violating the proscription against double jeopardy found within article III, section 5 of the West Virginia Constitution since the provisions for each offense require proof of an additional fact which the other does not.
3. Syl.Pt. 4, State v. Preece, 181 W.Va. 633, 383 S.E.2d 815 (1989).
Mario J. Palumbo, Atty. Gen., Joanna I. Tabit, Sr. Asst. Atty. Gen., K. Alan Perdue, Asst. Atty. Gen., for appellee.
Hugh Rogers, Jr., Kerens, for appellant.
This appeal arises before the Court from the Circuit Court of Upshur County where a jury convicted the appellant of malicious assault and attempted murder of the same victim, resulting in a September 8, 1989, final order wherein a sentence of two consecutive terms of two to ten years and one to five years respectively was imposed. The appellant asserts the following errors were committed by the lower court: 1) the punishment for attempted murder and malicious assault on the same victim put the appellant twice in jeopardy for the same offense; 2) the appellant's statements to officers who questioned him in a coercive setting without Miranda 1 warnings should have been suppressed; and, 3) the evidence from appellant's truck should have been suppressed, where allegations contained in the affidavit supporting the warrant were either false or stale. Upon review of the briefs and arguments of counsel, the record and all other matters before this Court, we find no errors were committed by the court below and accordingly affirm that court's decision.
On November 14, 1986, at approximately 5:30 p.m., three gun shots were fired at Dallas Rice as he walked away from an outbuilding near his home. One of the shots entered his back, causing four broken ribs and a collapsed lung, and exited through his chest area. The victim testified at trial that he never saw his assailant.
Deputy Michael Kelley, a deputy sheriff for Upshur County called to investigate the shooting incident by Sheriff Gaudet, testified that he arrived at the scene at approximately 6:25 p.m. Using a bloodhound, he picked up a track on top of a hill across the road from the victim's home near some rock ledges. The dog led the deputy to a primitive road known as Calico Road on the other side of the hill and adjacent to the area from which it was believed the shots were fired. The deputy testified that while the dog was leading him up Calico Road, he encountered a vehicle being driven by the defendant. According to the deputy's testimony, "the dog went up to the vehicle and The testimony of Sheriff Gaudet revealed that, upon his arrival at the scene around 6:00 p.m., he and Trooper Terrence M. Snodgrass proceeded to drive up Calico Road based upon information from people at the crime scene that no one had been seen leaving Calico Road. 2 As the officers were travelling on Calico Road, they encountered a red pickup truck driven by the defendant. This encounter, according to Sheriff Gaudet's testimony, occurred around 7:11 p.m. The sheriff testified that he turned on his blue lights and stopped in the narrow road. The defendant was ordered out of his vehicle and was searched for weapons. The sheriff at that time told the defendant that he was not under arrest; however, he was asked to submit to polygraph and paraffin tests. 3 It is undisputed that at this time, the defendant made various statements to the officers which were subsequently introduced at trial and the defendant did verbally give the officers permission to search his truck. 4 Finally, the officers instructed the defendant that they would follow him to the bottom of the road where he would be met by additional officers. Once there, pictures were taken of both the defendant and his truck. Deputy Lewis Anderson from the Upshur County Sheriff's Department testified that these photographs were taken between 7:30 and 8:00 p.m.
[185 W.Va. 541] put his paws up on the bumper and looked up over the hood...." The deputy who was the first to encounter the defendant pulled the dog off the vehicle and permitted the defendant to proceed. The deputy did not stop and question the defendant at that time.
The defendant was not arrested until February 5, 1987, some three months after this initial encounter with police. At the time of his arrest, Deputy Lewis Anderson obtained a search warrant and conducted a search of the defendant's pickup truck for clothes, weapons, ammunition, tires and hacksaws. Among the items seized by Deputy Anderson as a result of this search were three hacksaw blades.
At trial, the testimony of Deputy Anderson revealed that on November 18, 1986, during a search of the crime vicinity, commonly known as the Ten Mile area 5, the stalk portion of a gun containing the model number 94 and the serial number was found. The deputy also discovered a portion of the gun's magazine. He also testified that he found a small pile of metal fragments "like little metal shavings that a hack saw sawing something in two would leave." Finally, the deputy testified that he tracked down the serial number of the gun portion he had found during his search. The serial number was located in records obtained from a country store at Ellamore, West Virginia. That serial number matched the serial number on a Winchester Model 94 which had been sold to a John S. George in 1973. 6
The testimony of F.B.I. Special Agent Robert W. Sibert, an expert in the field of firearms and tool mark identification, revealed that the hacksaws found in the defendant's pickup truck matched a broken hacksaw blade found near Calico Road at the time of the shooting. Further, the expert testified that all the sawed gun fragments found near the crime scene came from the same gun and that the cutting was consistent with the type of The defendant took the stand and denied any involvement in the shooting incident. 7 A defense witness, Carl Sperry, testified that he had bought the gun allegedly used in the shooting from the defendant approximately seven months prior to the commission of the crime. There was also a "receipt" for the gun produced at trial by Sperry which was essentially a piece of paper signed by Sperry with the serial number of the weapon on the paper. 8 The witness testified further that he had lost the weapon while on a camping trip in June 1985, some sixty miles from where the gun fragments were found.
[185 W.Va. 542] cutting done by a hacksaw blade. While the expert referred to cutting done by hacksaw blades generally, he did testify that the hacksaw blade found during the search of the crime vicinity near Calico Road had originally been painted yellow and that he had observed yellow paint smears on the cut end of one of the gun portions he examined. Another F.B.I. expert in the field of paint analysis testified that the yellow paint on the gun portion matched the paint on the hacksaw blades found in the defendant's truck. Additionally, all of the portions of the gun which Special Agent Sibert examined were consistent with the type which would come from a Winchester Model 94 lever action rifle, which was the type of weapon believed to have been used in the shooting. Finally, Special Agent Sibert identified bullet fragments and a big bullet part recovered from a tire at the shooting scene as having rifling characteristics typical of those left by a Winchester Model 94.
At the close of presentation of all the evidence in the case, a jury convicted the defendant for malicious assault and attempted murder.
The first assignment of error raised by the defendant is that his convictions for both malicious assault and attempted murder in the first degree violate the proscription of double jeopardy found within article III, section 5 of the West Virginia Constitution. 9 Specifically, the defendant maintains that he is being punished twice for essentially committing identical crimes. 10 The state, on the other hand, asserts that no violation of double jeopardy principles have occurred since the defendant was convicted of two separate and distinct crimes.
In State v. Zaccagnini, 172 W.Va. 491, 308 S.E.2d 131 (1983) this Court, following precedent set forth by the United State Supreme Court, enunciated the appropriate test to be utilized in determining whether one or two offenses exist for double West Virginia Code § 61-2-9 (1978), in pertinent part, defines malicious assault as follows:
[185 W.Va. 543] jeopardy purposes: " '[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one[,] is whether each provision requires proof of an additional fact which the other does not.' " Zaccagnini, 172 W.Va. at 501, 308 S.E.2d at 141 (quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932)) and Syl.Pt. 8. Before applying this test to the present case, it is important to first define the elements of each of the...
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