State v. Gibson, 20168

• Decision Date: 17 December 1991
• Docket Number: No. 20168,20168
• Citation: 413 S.E.2d 120,186 W.Va. 465
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee v. Earnie Troy GIBSON, Defendant Below, Appellant.

Page 120

413 S.E.2d 120

186 W.Va. 465

STATE of West Virginia, Plaintiff Below, Appellee v. Earnie Troy GIBSON, Defendant Below, Appellant.

No. 20168.

Supreme Court of Appeals of

West Virginia.

Submitted Sept. 18, 1991.

Decided Dec. 17, 1991.

Syllabus by the Court

1. " 'A trial court exercising appropriate judicial concern for the constitutional right to testify should seek to assure that a defendant's waiver is voluntary, knowing, and intelligent by advising the defendant outside the presence of the jury that he has a right to testify, that if he wants to testify then no one can prevent him from doing so, that if he testifies the prosecution will be allowed to cross-examine him. In connection with the privilege against self-incrimination, the defendant should also be advised that he has a right not to testify and that if he does not testify then the jury can be instructed about that right.' Syllabus point 7, State v. Neuman, 179 W.Va. 580, 371 S.E.2d 77 (1988)." Syl.Pt. 3, State v. Robinson, 180 W.Va. 400, 376 S.E.2d 606 (1988).

2. "Failure to observe a constitutional right constitutes reversible error unless it can be shown that the error was harmless beyond a reasonable doubt." Syl.Pt. 5, State ex rel. Grob v. Blair, 158 W.Va. 647, 214 S.E.2d 330 (1975).

3. "An alleged spontaneous declaration must be evaluated in light of the following factors: (1) The statement or declaration made must relate to the main event and must explain, elucidate, or in some way characterize that event; (2) it must be a natural declaration or statement growing out of the event, and not a mere narrative of a past, completed affair; (3) it must be a statement of fact and not a mere expression of an opinion; (4) it must be a spontaneous or instinctive utterance of thought, dominated or evoked by the transaction or occurrence itself, and not the product of premeditation, reflection, or design; (5) while the declaration or statement need not be coincident or contemporaneous with the occurrence of the event, it must be made at such time and under such circumstances as will exclude the presumption that it is the result of deliberation; and (6) it must appear that the declaration or statement was made by one who either participated in the transaction or witnessed the act or fact concerning which the declaration or statement was made." Syl.Pt. 2, State v. Young, 166 W.Va. 309, 273 S.E.2d 592 (1980).

4. "The trial court must instruct the jury on all essential elements of the offenses charged, and the failure of the trial court to instruct the jury on the essential elements deprives the accused of his fundamental right to a fair trial, and constitutes reversible error." Syllabus, State v. Miller, 184 W.Va. 367, 400 S.E.2d 611 (1990).

5. " ' "It is not error to refuse to give an instruction to the jury, though it states a correct and applicable principle of law, if the principle stated in the instruction refused is adequately covered by another instruction or other instructions given." Syl.Pt. 2, Jennings v. Smith, 165 W.Va. 791 272 S.E.2d 229 (1980), quoting, Syl.Pt. 3, Morgan v. Price, 151 W.Va. 158, 150 S.E.2d 897 (1966). Syl. pt. 2, McAllister v. Weirton Hospital Co., W.Va. , 312 S.E.2d 738 (1983).' Syllabus Point 4, Jenrett v. Smith, W.Va. , 315 S.E.2d 583 (1983)." Syl.Pt. 9, State v. Deskins, 181 W.Va. 112, 380 S.E.2d 676 (1989).

6. " 'A witness may be cross-examined regarding bias, prejudice or expected favor or any other fact which might affect his credibility.' Syllabus Point 5, State v. Jones, 161 W.Va. 55, 239 S.E.2d 763 (1977), overruled on other grounds, State v. Petry, 166 W.Va. 153, 273 S.E.2d 346 (1980)." Syl.Pt. 8, State v. James Edward S., 184 W.Va. 408, 400 S.E.2d 843 (1990).

7. "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 a 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." Syl.Pt. 1, State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978).

Albert C. Dunn, Asst. Atty. Gen., Charleston, for State.

Sidney H. Bell, Welch, for Earnie Troy Gibson.

PER CURIAM:

This is an appeal by Earnie Troy Gibson from a final judgment of the Circuit Court of McDowell County finding him guilty, pursuant to a jury verdict, of first degree murder. Mr. Gibson was sentenced to life with a recommendation of mercy. Mr. Gibson now appeals and contends that the circuit court committed several errors which justify the reversal of his conviction. We disagree with the contentions of the appellant and affirm the judgment of the Circuit Court of McDowell County.

I.

On June 1, 1990, Mr. Gibson and two companions, Floyd Edward Blakely and Kennis Blakely, were driving from Welch, West Virginia, to Jolo, West Virginia, and stopped at a vacant lot beside Carson's Tavern, a drinking establishment in English, West Virginia. The victim, Mr. Terry Hagerman, and several other men were drinking at the tavern. The evidence indicated that Mr. Gibson and Mr. Hagerman had no prior relationship. Upon their arrival and while still in their car, Mr. Gibson and his companions were approached by Walter Blakely. Mr. Blakely later testified that he saw Mr. Gibson place a knife into his pants and cover it with his shirt before he exited the vehicle. According to the testimony of witnesses, Cleve Junior Lester requested Mr. Gibson and his friends to examine a diesel engine in Mr. Lester's Chevrolet Chevette. Jeffrey "Pee Wee" Lester and Mr. Gibson engaged in a disagreement of some nature, and Cleve Lester interceded and directed Pee Wee away from the scene. Although the testimony was contested by the appellant, witnesses did testify that they saw Mr. Gibson pull a knife and point it at Pee Wee during the discussion. Mr. Hagerman then ventured into the disagreement. He and Mr. Gibson struggled over the knife, and Mr. Hagerman was stabbed twice in the abdomen. Mr. Hagerman was fatally wounded.

Mr. Gibson testified that he drove directly from English to Bradshaw Town Hall, a few miles from the scene, to report the altercation and the injury. The murder weapon was a knife characterized as a "fighting knife" by the investigating officer, Deputy Sheriff Ron L. Blevins. The weapon was a large knife with finger holes to allow a better grip and greater force in striking. Walter Lester testified that he had been with the appellant when the appellant purchased the weapon from William Atwell.

Although no knife was found at the scene, a sheath was discovered. When a knife fitting the description of the murder weapon was later found in a creek under a bridge on the road between Carson's Tavern and Bradshaw Town Hall, that knife fit into the sheath found at the scene. Furthermore, Dr. Irvin Sopher, the physician who performed the autopsy on the victim, testified that the knife admitted into evidence as the murder weapon was consistent with the dimensions of the weapon that fatally wounded Mr. Hagerman.

Mr. Gibson was found guilty of first degree murder on October 10, 1990, subsequent to a trial by jury, and the jury made a recommendation of mercy. On October 24, 1990, the trial court sentenced Mr. Gibson to the state penitentiary for the remainder of his natural life, with the right to be considered for parole after ten years. Mr. Gibson now appeals that decision of the lower court.

II.

The appellant first contends that the lower court committed reversible error by failing to "say anything at all" to the appellant before he took the witness stand in his own defense. The appellant maintains that our holdings in State v. Neuman, 179 W.Va. 580, 371 S.E.2d 77 (1988) and State v. Robinson, 180 W.Va. 400, 376 S.E.2d 606 (1988) support his contention. In syllabus point 3 of Robinson, we stated the following:

"A trial court exercising appropriate judicial concern for the constitutional right to testify should seek to assure that a defendant's waiver is voluntary, knowing, and intelligent by advising the defendant outside the presence of the jury that he has a right to testify, that if he wants to testify then no one can prevent him from doing so, that if he testifies the prosecution will be allowed to cross-examine him. In connection with the privilege against self-incrimination, the defendant should also be advised that he has a right not to testify and that if he does not testify then the jury can be instructed about that right." Syllabus point 7, State v. Neuman, 179 W.Va. 580, 371 S.E.2d 77 (1988).

180 W.Va. at 401, 376 S.E.2d at 607.

In response, the state contends that any failure by the lower court to question the appellant before he took the stand was harmless error due to the fact that the appellant, once he did take the stand, made no admission which could be construed as unfavorable to his self-defense theory of the case. Indeed, the appellant's testimony was consistent with that theory in every regard.

A court should ascertain whether the defendant's waiver of rights was knowingly, voluntarily, and intelligently made in order to prevent a defendant from testifying and damaging his case where he does not recognize his alternatives or rights with regard to such testimony. "The decision to testify," as we have explained, "is often crucial in determining a defendant's fate...." Neuman, 179 W.Va. at 584, 371 S.E.2d at 81. When the witness does not harm himself by such testimony, however, the witness has suffered no detriment, and any failure on the part of a trial judge to ascertain the defendant's understanding may be said to be harmless.

In Robinson, we reversed the lower court on the basis that it failed to question the defendant regarding...