State v. Green

• Citation: 206 S.E.2d 923,157 W.Va. 1031
• Decision Date: 23 July 1974
• Docket Number: No. 13359,13359
• Court: Supreme Court of West Virginia
• Parties: STATE of West Virginia v. Dorothy Corinne GREEN.

Page 923

206 S.E.2d 923

157 W.Va. 1031

STATE of West Virginia v. Dorothy Corinne GREEN.

No. 13359.

Supreme Court of Appeals of West Virginia.

July 23, 1974.

Syllabus by the Court

'Where, in a trial for murder, there is competent evidence tending to show that the accused believed, and had reasonable grounds to believe, that he was in danger of losing his life or suffering great bodily harm at the hands of several assailants acting together, he may defend against any or all of said assailants, and it is reversible error for the trial court to refuse to instruct the jury to that effect.' Point 4, syllabus, State v. Foley, 128 W.Va. 166 (35 S.E.2d 854).

Peter L. Chakmakian, Charles Town, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., Richard E. Hardison, Deputy Atty. Gen., Betty L. Caplan, Asst. Atty. Gen., Charleston, for defendant in error.

BERRY, Justice:

This is an appeal by Dorothy Corinne Green, the defendant below and hereinafter referred to as defendant, from a final judgment of the Circuit Court of Jefferson County entered October 16, 1972, wherein the court overruled defendant's motion to set aside the jury verdict of guilty of second degree murder and to grant the defendant a new trial and sentenced her to a term of not less than five years nor more than eighteen years in prison. Defendant's primary contention is that the trial court erred in not giving several of her instructions to the jury on self-defense. On April 30, 1973 this Court granted defendant's appeal and the case was submitted for decision on May 29, 1974 on the briefs and oral arguments on behalf of the respective parties.

Although the facts in this case are confusing and conflicting, it appears from the record that on the evening of January 22, 1972 the defendant, accompanied by Rosefield Johnson and another couple, went to the Elk's Club located outside Charles Town, West Virginia. Shortly after midnight, while they were sitting around a table near the juke box, it appears that the defendant believed one Cerelle Doleman, who was sitting at an adjacent table, was staring at her and the defendant told her to stop staring. Whereupon, Cerelle Doleman replied that she could look anywhere she wished, and shortly thereafter the two women became engaged in a fight on the dance floor. The evidence is conflicting as to who struck the first blow. However, it appears that Cerelle Doleman's husband, Randolph Doleman, and Rosefield Johnson, who was accompanying the defendant, also became involved in the altercation.

The defendant testified that she was slapped by Cerelle Doleman and retaliated by striking back. Whereupon, Mrs. Doleman's husband intervened and shouted, 'I will kill that damn yellow bitch', referring to the defendant. Rosefield Johnson attempted to separate the women, and was struck with a folded chair on the head and shoulders from behind by an unknown party. The defendant testified that she was knocked to the floor and was being kicked in the face by Mrs. Doleman, but she managed to grab the foot of Mrs. Doleman and regain her feet. Whereupon, she went back to a table and obtained a .22 caliber revolver from her purse and retreated to the north wall of the club near the juke box because she felt that a threatening crowd, which was coming toward her, was about to reach her. She testified that she issued warnings to stand back, but when the crowd came too close to her she pulled the trigger and shot one of the persons in the crowd and killed her. The person who was shot was one Betty Doleman, and apparently Betty Doleman was not involved in the altercation between the parties prior to the shooting. Expert testimony revealed that the victim was shot once through the heart and died immediately and that the shot which killed the victim was fired at a distance of only 28 or 29 inches from the victim.

The testimony of Cerelle Doleman and several other state's witnesses was to the effect that after the defendant and Cerelle Doleman were separated the defendant walked back to a table, dumped her purse out onto the table, picked up her .22 caliber revolver which had been in the purse and then shot and killed Betty Doleman. It appears from the record that Betty Doleman, the victim in this case, was sitting at the same table with Cerelle Doleman prior to the altercation and was Cerelle Doleman's husband's sister-in-law.

The assignments of error relied on by the defendant are: (1) the trial court erred in refusing to give instructions offered by the defendant on the theory of self-defense; (2) the trial court erred in giving an instruction relating to first and second degree murder because there was insufficient evidence to support such an instruction.

The defendant relied on the theory of self-defense during the trial of the case and the trial court refused to give the jury instructions dealing with self-defense. The evidence introduced during the trial was conflicting and confusing. However, the defendant's evidence was to the effect that after the altercation with Cerelle Doleman, she got up and obtained a revolver from her purse and retreated to the north wall of the club because she thought she was being threatened by the crowd which was closing in on her, and that she fired the revolver at the people in front of her, among whom were Cerelle Doleman and Betty Doleman. She testified that she told the crowd to stand back but when the crowd came too...