State v. Grimm

• Decision Date: 10 April 1973
• Docket Number: No. 13076,13076
• Citation: 195 S.E.2d 637,156 W.Va. 615
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. David Lee GRIMM.

Page 637

195 S.E.2d 637

156 W.Va. 615

STATE of West Virginia v. David Lee GRIMM.

No. 13076.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 17, 1973.

Decided April 10, 1973.

Syllabus by the Court

1. An application for an inquiry as to the mental condition of an accused provided for in Code, 62--3--9, as amended, and a jury trial ordered by the trial court to determine the mental capacity of an accused to stand trial are merely to help the court ascertain whether or not the accused should stand trial for the crime charged.

2. It is not only a right of the trial court but in some instances a duty to call witnesses or examine witnesses during the trial of a case, although such right should not be abused by the excess examination of witnesses.

3. The 'irresistible impulse' test in the trial of cases involving the question of the sanity of the accused is not approved in this state.

4. A plea of not guilty by reason of insanity is an affirmative defense, and the accused has the burden of proof on the issue of insanity which must be proved by a preponderance of the evidence.

5. Where an accused pleads not guilty by reason of insanity and testifies during the trial that he does not remember anything during the period of about three hours during which time the crime was committed, an instruction which advises the jury that if it believes that at the time the offense was committed the accused was suffering from such a diseased and defective condition of the mind that he was incapable of knowing the nature and consequences of his act, the jury should find him not guilty, is a proper instruction.

6. An instruction telling the jury the procedure to be followed if it returned a verdict of not guilty by reason of insanity is not a proper instruction, because this procedure is a matter for the court and not the jury.

Richard F. Pence, Thomas M. Munchmeyer, Parkersburg, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., Willard A. Sullivan, Sp. Asst. Atty. Gen., George E. Lantz, Deputy Atty. Gen., Richard E. Hardison, Asst. Atty. Gen., Charleston, for defendant in error.

BERRY, President:

This is an appeal by David Lee Grimm, the defendant, from a final judgment of the Circuit Court of Wood County, West Virginia, entered September 17, 1970 upon a jury verdict which had found the defendant guilty of murder in the first degree with a recommendation of mercy. The defendant had been indicted by the grand jury of the Circuit Court of Wood County, West Virginia, at the October, 1969 term of court for the murder of Charles C. Hardman, for which he was tried and convicted. He was also indicted for two other felonies committed at the same time, which have not been disposed of. Defendant's primary contention at the trial and on the appeal is that he was not guilty by reason of insanity.

A writ of error was granted by this Court on March 29, 1971 to the judgment on the conviction of the defendant for the murder of Charles C. Hardman. On September 16, 1972 the case was continued generally, and on January 16, 1973 it was submitted for decision upon the arguments and briefs of counsel for the respective parties.

The incident which led to the trial of the defendant occurred about 3:30 a.m. on August 20, 1969 at Ada's Club in Parkersburg, West Virginia. The defendant, who had been in and out of the club several times that night, left the club shortly after 3 a.m. About twenty minutes later, after apparently returning to his home and changing into green Marine fatigues, he returned to the club and threw a tear gas grenade through a small hole in the front door which was used as a 'peep hole', ran across the street and partially hid behind an abutment and then began firing with a high-powered rifle when the people inside the club ran out, killing William Plant, Jr. and Charles C. Hardman and seriously wounding John Simons. These three men were the only ones in the club who ran outside when the tear gas grenade exploded.

The defendant had apparently moved his car from the area next to the club to a parking lot down the street when he left the club shortly after 3 a.m. After shooting the three men he ran down the street toward his car. At this time, two bank couriers, who had driven into the parking lot in order to make a delivery to the bank, saw the defendant running across the lot. The defendant got into his car, but almost immediately jumped out of the car, with his rifle, and ran toward the drive-in window of the bank. The courier who was driving stopped his car and started backing up. The defendant shot twice at the car and one of the bullets hit the courier sitting in the passenger seat, wounding him in both legs.

The defendant then ran down an alley and upon seeing a black parking attendant shot at him. The attendant testified that before the shot was fired he saw a man zig-zagging across the street with a rifle above his head. The attendant testified that after the shot the man stood in the middle of the street and was shouting, although this witness and another witness, a lady who worked at the Uptowner Inn, testified they were unable to understand what he was shouting. Apparently, the defendant then ran by the Uptowner Inn and shot at three people who were attempting to get in the side door of the Inn. No one was wounded by any of those shots.

Another witness Lawrence Walters, testified that he heard shots as he was driving home from work. He stated that the defendant ran beside his car to within three feet of him and yelled, 'You son-of-a-bitch, I've already killed four or five, might as well kill you.' The defendant then shot this witness in the neck, ran across the street and disappeared.

Two brothers, George and Denver Starcher, ages 13 and 15, who were delivering newspapers that morning, testified that the defendant came up to them and told them that he wasn't going to shoot children '* * * cause they don't know, he was just going to shoot bad people and negroes.' He told them to start running, then shot near the feet of one of the boys and fired another shot over their heads as they ran down the street. They stated they saw the defendant soon after that walking down the street carrying his rifle.

The police, accompanied by the defendant's brother, Paul Douglas Grimm, went to the defendant's home in Parkersburg and found him asleep in bed at 6:30 a.m. He was in a deep sleep and his brother had to shake him, as it was difficult to awaken him. Upon awakening, the defendant said, 'Just what in the Hell's going on?' The defendant appeared nervous and pale at the time. The police arrested him and he appeared before a justice of the peace soon thereafter.

The police found the clothing the defendant had worn during the shootings as well as a pair of tennis shoes in a room adjacent to the bedroom. The shoes and clothing were wet. Later, the same morning, the police found the rifle and a pouch in which the defendant had carried a land mine and another tear gas grenade in a small creek underneath a bridge about three tenths of a mile from the defendant's home. The rifle was found in about 18 inches of water.

John Simons, the only one of the three men who survived the shootings at Ada's Club, testified that he saw the defendant shooting at him when he ran out of the club after the tear gas grenade was thrown into the club. Lawrence Walters, the man who was shot in the neck, as well as the two Starcher boys, also positively identified the defendant. In addition, a ballistic expert testified that the spent cartridge shells found at different places where shooting occurred, were fired from the defendant's rifle which was found in the creek near his home.

The state introduced into evidence the testimony of several witnesses to show that the defendant had a motive for the shooting at Ada's Club. One of the barmaids at Ada's Club testified that she overheard the defendant telling his brother, Doug Grimm, who was a bartender at Ada's Club, that: 'I'll get even with the son-of-a-bitch', while he was looking in the direction of Charles C. Hardman. She testified that this occurred shortly after 3 p.m. on August 19, 1969, approximately twelve hours before the shooting. She testified that Mr. Hardman had shortly before ordered Douglas Grimm to get out from behind the bar since Doug was not on duty at that time.

The janitor at Ada's Club testified that he saw the defendant in the club on the afternoon of August 19th between 1:30 and 4:00 p.m. He also testified that he heard the defendant tell Mr. Hardman about 6 p.m. on August 18th, 'I'll get even with you, you son-of-a-bitch', after Mr. Hardman refused to admit him into Ada's Club because he had tried to bring a bottle into the club with him.

Witnesses testified on behalf of the defendant that he was not in Ada's Club during the afternoon of August 19th and that Mr. Hardman was not there that afternoon either. Witnesses on behalf of the defendant also testified that he was at work until 2:51 p.m. on August 19, 1969, and that he did not go to Ada's Club until about 6:30 that evening.

It appears that about 2:30 a.m. on August 20, 1969 the defendant reappeared at Ada's Club after having been there earlier and was first refused admission by John Simons because he was carrying a mixed drink in his hand. However, defendant's brother, who was working behind the bar, told Simons it was all right to admit him. Shortly thereafter, John Simons and Doug Grimm got into an argument and went outside to fight. However, the argument was settled before any blows were struck.

The defendant, who had an intelligence quotient of 127, testified in his own behalf and stated that he remembered being at Ada's Club on several occasions on August 19 and 20, 1969 but that after he left the club shortly after 3 o'clock in the morning of August 20th he didn't remember anything about the shooting that occurred at the club or the subsequent shootings. He testified that he...