State v. Gibson

• Decision Date: 27 July 1989
• Docket Number: No. 18624,18624
• Citation: 181 W.Va. 747,384 S.E.2d 358
• Parties: STATE of West Virginia v. Lawanna Sue GIBSON.
• Court: West Virginia Supreme Court

Page 358

384 S.E.2d 358

181 W.Va. 747

STATE of West Virginia v. Lawanna Sue GIBSON.

No. 18624.

Supreme Court of Appeals of West Virginia.

July 27, 1989.

Syllabus by the Court

1. " 'One is in jeopardy when he has been placed on trial on a valid indictment, before a court of competent jurisdiction, has been arraigned, has pleaded and a jury has been impaneled and sworn.' Brooks v. Boles, 151 W.Va. 576, 153 S.E.2d 526 (1967)." Syl. Pt. 1, Adkins v. Leverette, 164 W.Va. 377, 264 S.E.2d 154, 155 (1980).

2. "Termination of a criminal trial arising from a manifest necessity will not result in double jeopardy barring a retrial." Syl. Pt. 4, Keller v. Ferguson, W.Va. ---, 355 S.E.2d 405 (1987).

3. The failure of a juror to report back to jury duty for a trial in progress constitutes a manifest necessity sufficient to permit the court to declare a mistrial where the judge determines that the juror will be unable to serve for the remainder of the trial and where no alternate jurors were selected prior to trial.

4. " 'A spontaneous statement by a defendant made prior to any action by a police officer or before an accusation, arrest or any custodial interrogations is made or undertaken by the police may be admitted into evidence without the voluntariness thereof first having been determined in an in camera hearing.' Syl. Pt. 1, State v. Johnson, 159 W.Va. 682, 226 S.E.2d 442 (1976)." Syl. Pt. 3, State ex rel. White v. Mohn, 168 W.Va. 211, 283 S.E.2d 914 (1981).

5. "A trial court's decision regarding the voluntariness of a confession will not be disturbed unless it is plainly wrong or clearly against the weight of the evidence." Syl. Pt. 3, State v. Vance, 162 W.Va. 467, 250 S.E.2d 146, 148 (1978).

6. "This Court will not consider an error which is not preserved in the record nor apparent on the face of the record." Syl. Pt. 6, State v. Byers, 159 W.Va. 596, 224 S.E.2d 726, 729 (1976).

7. " 'In a criminal case, the inquiry made of a jury on its voir dire is within the sound discretion of the trial court and not subject to review, except when the discretion is clearly abused.' Syl. Pt. 2, State v. Beacraft, 126 W.Va. 895, 30 S.E.2d 541 (1944)." Syl. Pt. 2, State v. Mayle, 178 W.Va. 26, 28, 357 S.E.2d 219, 221 (1987).

8. "Once the defendant meets his initial burden of producing some evidence of self-defense, the State is required to disprove the defense of self-defense beyond a reasonable doubt." Syl. Pt. 6, State v. McKinney, 178 W.Va. 200, 202, 358 S.E.2d 596, 598 (1987).

James A. Walker, Smith & Walker, Logan, for Gibson.

Thomas J. Gillooly, Dist. Atty. Gen., Charleston, for State.

WORKMAN, Justice:

This case is before the Court upon an appeal by the defendant, Lawanna Sue Gibson, from a March 1987 conviction of murder in the second degree in the Circuit Court of Logan County, West Virginia. The appellant raises numerous assignments of error; however, we find no reversible error and affirm the appellant's conviction.

It is undisputed that on May 7, 1986, the appellant shot and killed her husband, Ullie Gibson, at her apartment on Buffalo Creek, in Logan County.

At the time of the shooting, the appellant's husband was under a domestic violence order not to harass or molest the appellant and it required him to stay away from the former marital residence. ¹ Further, the appellant had filed for a divorce on April 11, 1986, and the final divorce hearing was scheduled for May 9, 1986.

The evidence at trial established that on May 6, 1986, the appellant found a piece of paper with the name and phone number of a woman, Deandra Pritchard (Pritchard), who Ullie Gibson had been seeing. The appellant proceeded to have two phone conversations with Pritchard. Pritchard testified that the appellant first called her on the morning of March 7. The appellant was seeking information about the relationship between her husband and Pritchard. Then, around noon that same day, Pritchard phoned the appellant back and told her that she had been out with Ullie Gibson twice, but that, contrary to the appellant's belief, she had not had sexual relations with him.

On May 7, 1986, the appellant hitched a ride with Clarence Smoot (Smoot). Smoot testified that he took the appellant to Uncle Sam's Loans, a pawn shop. There, the appellant testified that she purchased a .22 caliber RG pistol and ammunition for personal protection from her husband, who had allegedly abused her on prior occasions. Smoot also took the appellant to a liquor store where she purchased two bottles of vodka. Both Smoot and the appellant went riding around and drinking ² before he took her back to her home.

Between approximately 6:00 p.m. and 6:30 p.m. on May 7, Ullie Gibson appeared at the marital residence. The appellant testified that when her husband arrived at her apartment, the screen door was locked even though the main door was open. Ullie Gibson forced the door open and proceeded into the apartment. The appellant, who had been napping, awakened and removed her pistol from a closet shelf and ordered her husband to leave. She stated that her husband ignored her warnings and while cursing at her, proceeded in her direction. The appellant then fired the gun and the bullet struck her husband. Ullie Gibson managed to stagger to the door of a neighboring apartment where he died a short time later.

Following the shooting, Trooper G.R. Johnson of the West Virginia Department of Public Safety arrived upon the scene to conduct the investigation. The trooper was informed by neighbors that the appellant had shot her husband. The defendant made numerous statements to neighbors and the police to the effect that she had shot her husband because he was seeing other women, and expressing satisfaction that he wouldn't be able to see these women anymore. The evidence indicated that the statements were made spontaneously, and even though some of the statements were made after the defendant was in police custody, the statements were not the result of custodial interrogation.

After the appellant was arrested, the appellant's parents arrived. They accompanied the appellant to police headquarters where appellant's father told Trooper Johnson that he did not want his daughter to make any statements. Trooper Johnson complied with the request and proceeded to take the appellant to Magistrate Court where she was arraigned.

This matter was originally scheduled for trial in Logan County Circuit Court on December 15, 1986. That trial resulted in a mistrial, and was rescheduled for March 2, 1987. It is from the conviction arising from the second trial that the appellant now appeals.

I.

The defendant first argues that the lower court erred in overruling the defendant's motion to dismiss based upon the constitutional bar of double jeopardy. On the original trial date, a jury was empanelled and sworn, and the trial was recessed until the following day. On the next day, one of the jurors failed to appear and it was determined by the court that the juror would not return. Since no alternate jurors had been empanelled, a mistrial was declared sua sponte by the court ³ and a second trial was held some two and one-half months later. The defendant alleges the State violated her Fifth Amendment rights by placing her in double jeopardy. The State, however, contends that based upon prior court decisions, the lower court's declaration of a mistrial due to failure of one of the jurors to return on the second day does not bar retrial.

Article III, Section 5 of the West Virginia Constitution provides, in part, "nor shall any person, in any criminal case ... be twice put in jeopardy of life or liberty for the same offence." ⁴ We have held that "[o]ne is in jeopardy when he [she] has been placed on trial on a valid indictment, before a court of competent jurisdiction, has been arraigned, has pleaded and a jury has been impaneled and sworn." Brooks v. Boles, 151 W.Va. 576, 153 S.E.2d 526, 530 (1967); See Syl. Pt. 1, Adkins v. Leverette, 164 W.Va. 377, 264 S.E.2d 154, 155 (1980).

Further, W.Va.Code § 62-3-7 [1931] provides, in part, that "in any criminal case the court may discharge the jury, when it appears that they cannot agree in a verdict, or that there is manifest necessity for such discharge." Consequently, if a manifest necessity existed when the judge declared the mistrial, then such action will not form the basis for a double jeopardy claim. Keller v. Ferguson, 177 W.Va. 616, 355 S.E.2d 405, 409 (1987); State v. Burford, 136 W.Va. 472, 67 S.E.2d 855, 859-60 (1951).

"The term 'manifest necessity' covers a broad spectrum of situations which in some instances bear little relationship to the literal meaning of this phrase." Keller, 177 W.Va. at 620, 355 S.E.2d at 409. Whatever the circumstance which cause a trial court to declare a mistrial, if that circumstance is unforeseeable in nature and makes completion of the trial impossible, a manifest necessity will be found to exist and double jeopardy will not be found to bar retrial. State ex rel. Dandy v. Thompson, 148 W.Va. 263, 134 S.E.2d 730, 734 (1964), cert. denied, 379 U.S. 819, 85 S.Ct. 39, 13 L.Ed.2d 30 (1964).

The fact that a juror failed to report back to jury duty for the second day of trial was something that the trial court could not have predicted. The defendant argues that the failure to select an alternate juror was within the control of the trial court, and, therefore, under this Court's rationale in State v. Little, 120 W.Va. 213, 197 S.E. 626 (1938) a manifest necessity should not be found to exist. In Little, we found that where witnesses failed to return to court at the appointed hour, and as a result, a mistrial was declared at the request of the State and over the defendant's objection, the State failed in carrying its burden of justifying the discharge of the jury and therefore the defendant could not be retried due to double jeopardy. Little,120 W.Va. at 214, 197 S.E. at 627.

The present case is...