State v. Grimmer, 13928

• Decision Date: 06 February 1979
• Docket Number: No. 13928,13928
• Citation: 162 W.Va. 588,251 S.E.2d 780
• Parties: STATE of West Virginia v. Clayton Thomas GRIMMER.
• Court: West Virginia Supreme Court

Page 780

251 S.E.2d 780

162 W.Va. 588

STATE of West Virginia v. Clayton Thomas GRIMMER.

No. 13928.

Supreme Court of Appeals of West Virginia.

Feb. 6, 1979.

Syllabus by the Court

1. "An indictment which charges a principal in the first degree with the commission of the crime . . . and which also charges that certain other persons before the commission of the principal offense did feloniously counsel with, aid and abet the principal in the first degree to do and commit the principal offense satisfies the constitutional requirement that in all trials the accused shall be fully and plainly informed of the character and cause of the accusation and is a good and sufficient indictment of the persons charged with being accessories before the fact to the crime . . ." Point 11, Syllabus, State ex rel. Brown v. Thompson, 149 W.Va. 649, 142 S.E.2d 711 (1965).

2. "An accessory before the fact is a person who being absent at the time and place of the crime, procures, counsels, commands, incites, assists or abets another person to commit the crime, and absence at the time and place of the crime is an essential element of the status of an accessory before the fact." Point 2, Syllabus, State ex rel. Brown v. Thompson, 149 W.Va. 649, 142 S.E.2d 711 (1965).

3. Where the record fails to show that the defendant entered a plea but does show affirmatively that he was fully advised and fully aware of the nature of the charge against him; that he had effective counsel who made many motions and filed many pleadings on his behalf and afforded him a reasonably good defense; that a jury trial was afforded the defendant and in fact was held, thereby permitting him to confront his accusers; that he was not, by such failure, deprived of any constitutional or statutory protections designed to afford him a fair trial; and that circumstances reveal that he received a fair trial, any such failure to enter a plea, will be considered harmless error.

4. Even though one charged in the same indictment as the defendant has entered a guilty plea he may assert his Fifth Amendment rights not to testify in the defendant's trial if he has expressed to the court his intention to appeal his conviction entered on his guilty plea.

5. When a defendant testifies on direct examination that he has adhered strictly to the terms of his parole, the State may properly introduce evidence to show that he has not complied with such terms.

6. The provisions of W.Va.Code, 1931, 62-3-1, as amended, which mandate that an accused shall be tried at the same term in which the indictment was returned "unless good cause is shown for a continuance", are not violated when the record reveals that the time consumed for the proper treatment of the defendant's motions and pleadings in furtherance of his defense constituted "good cause" for a continuance.

7. One is not entitled to an instruction exonerating him from the crime of accessory before the fact to felony murder by reason of the subjective declaration by one of the principals that he had abandoned the crime of which such principal was charged prior to the homicide.

8. "The crime of felony-murder in this State does not require proof of the elements of malice, premeditation or specific intent to kill. It is deemed sufficient if the homicide occurs accidentally during the commission of, or the attempt to commit, one of the enumerated felonies." Point 7, Syllabus, State v. Sims, W.Va., 248 S.E.2d 834 (1978).

9. State v. Moore, 57 W.Va. 146, 49 S.E. 1015 (1905) and subsequent cases are overruled insofar as such decisions require the record to show an arraignment in every case, regardless of the circumstances revealed in such record.

Pinsky, Barnes, Watson, Cuomo & Hinerman, William E. Watson and Paula K. Silver, Wellsburg, for plaintiff in error.

Atty. Gen. Chauncey H. Browning, Asst. Atty. Gen. Richard L. Gottlieb, Charleston, for defendant in error.

CAPLAN, Chief Justice:

The defendant, Clayton Thomas Grimmer, brings this case here on writ of error to a final judgment of the Circuit Court of Brooke County. He was convicted by a jury of being an accessory before the fact to murder with a recommendation of mercy. The court thereupon sentenced him to life imprisonment with a recommendation of mercy. We affirm the judgment of the trial court.

Clayton Thomas Grimmer is the alleged accomplice of two others in the shotgun murder of one Walter Schmidt committed during or immediately following a robbery-burglary attempt. One of the co-defendants pleaded guilty but had indicated his desire to appeal to this Court at the time defendant herein was undergoing trial. The other co-defendant was the principal witness for the state.

The defendant assigns eight principal grounds of error upon which he relies for reversal of the judgment below. Those grounds are: (1) failing to quash the indictment on the ground that it failed to adequately inform him of the charge against him; (2) instructing the jury that the indictment charged accessory before the fact to felony murder when the evidence of the state established the crime of principal in the second degree; (3) failure to arraign him; (4) permitting a co-defendant to invoke the 5th amendment; (5) permitting the state to impeach him on a collateral issue; (6) failure to try him at the same term at which he was indicted; (7) failure to instruct the jury as to three principal defenses of defendant: alibi, abandonment of the felony plan and that the death was caused by other than a participant in the crime; and (8) failing to conduct an evidentiary hearing on defendant's motion for a change of venue and in ruling upon that motion and other pre-trial motions out of the presence of the defendant.

The indictment under which the defendant was tried and convicted, after charging his two fellow co-defendants with murder, continued: ". . . And the Grand Jurors aforesaid, upon their oaths aforesaid, do further present that Clayton Thomas Grimmer, before the said felony and murder was committed . . . did feloniously, willfully, maliciously, deliberately, unlawfully and knowingly inS ite, move, procure, aid, abet, counsel, hire and command the said . . . to do and commit the said felony and murder . . ."

In State ex rel. Brown v. Thompson, 149 W.Va. 649, 142 S.E.2d 711 (1965) this Court, in Syllabus Point 11, said "An indictment which charges a principal in the first degree with the commission of the crime . . . and which also charges that certain other persons before the commission of the principal offense did feloniously counsel with, aid and abet the principal in the first degree to do and commit the principal offense satisfies the constitutional requirement that in all trials the accused shall be fully and plainly informed of the character and cause of the accusation and is a good and sufficient indictment of the persons charged with being accessories before the fact to the crime . . ." We think this statement is conclusive of the validity of the Grimmer indictment and that the trial court correctly refused to quash the indictment on the ground that it did not adequately inform him of the charge against him.

The trial court, after both sides had rested, charged the jury that the crime charged in the indictment was that of being an accessory before the fact to felony murder. In accordance with State ex rel. Brown v. Thompson, supra, we hold the Grimmer indictment did sufficiently charge the crime of accessory before the fact. The defendant contends, with force, that the state's evidence established the crime of principal in the second degree, or that of an aider and abettor. True, the evidence of the state did tend to establish that the defendant was (at least, constructively) present, as a lookout and driver of the automobile. We must, however, just as the jury did, look at the evidence as a whole and determine whether or not there was evidence sufficient for the jury to conclude as they did. "The jury is the trier of the facts and in performing that duty it is the sole judge as to the weight of the evidence and the credibility of the witnesses." Point 2, Syllabus, State v. Bailey, 151 W.Va. 796, 155 S.E.2d 850 (1967); State v. Fischer, W.Va., 211 S.E.2d 666 (1974).

In order for the jury to conclude that the defendant was guilty of being an accessory before the fact to felony murder, the jury must have found the defendant to have been absent during the commission of the crime. This is the distinction between being an accessory before the fact and a principal in the second degree or an aider and abettor. An accessory before the fact is a person who, being absent at the time and place of the crime, procures, counsels, commands, incites, assists, or abets another to commit the crime, and absence at the time and place of the crime is an essential element of the offense of accessory before the fact. State ex rel. Brown v. Thompson, supra ; State v. Loveless, 140 W.Va. 875, 87 S.E.2d 273 (1955). The defendant in the instant case, before the jury was instructed, voluntarily took the stand, admitted to having gone to Ohio to visit one of the co-defendants previous to the time of the commission of the subject crime; to meeting the other co-defendant at that visit; to having discussed burglaries "in that area"; to the visit of the two co-defendants to defendant's home in Wheeling; that these co-defendants later returned to Ohio; that they returned for another visit "a couple or three days before the 16th", the date of the alleged crime; that he did not agree to participate in the crime at any time; and that he did not ever visit the Schmidt home with the co-defendants. This defendant further testified that he was at home at the time the subject crime was committed. It is readily discernible that with this testimony, together with that offered by the state, the jury could believe that the defendant had in fact participated in the planning of the crime, yet had been absent during its...