State v. Gum, 15673

• Decision Date: 10 November 1983
• Docket Number: No. 15673,15673
• Citation: 309 S.E.2d 32,172 W.Va. 534
• Parties: STATE of West Virginia v. Gary GUM.
• Court: West Virginia Supreme Court

Page 32

309 S.E.2d 32

172 W.Va. 534

STATE of West Virginia v. Gary GUM.

No. 15673.

Supreme Court of Appeals of West Virginia.

Nov. 10, 1983.

Syllabus by the Court

1. " 'Upon motion to direct a verdict for the defendant, the evidence is to be viewed in light most favorable to prosecution. It is not necessary in appraising its sufficiency that the trial court or reviewing court be convinced beyond a reasonable doubt of the guilt of the defendant; the question is whether there is substantial evidence upon which a jury might justifiably find the defendant guilty beyond a reasonable doubt. Syllabus Point 4, State v. Johnson, 159 W.Va. 682, 226 S.E.2d 442 (1976).' Syllabus Point 5, State v. Woods, 169 W.Va.767, 289 S.E.2d 500 (1982)." Syl. pt. 4, State v. Oldaker, 172 W.Va. 258, 304 S.E.2d 843 (1983).

2. " 'Circumstantial evidence will not support a guilty verdict, unless the fact of guilt is proved to the exclusion of every reasonable hypothesis of innocence; and circumstances which create only a suspicion of guilty but do not prove the actual commission of the crime charged, are not sufficient to sustain a conviction.' Syllabus Point 2, State v. Dobbs, 163 W.Va.630, 259 S.E.2d 829 (1979)." Syl. pt. 2, State v. Meadows, 172 W.Va. 247, 304 S.E.2d 831 (1983).

3. " 'If, on a trial for murder, the evidence is wholly circumstantial, but as to time, place, motive, means and conduct, it concurs in pointing to the accused as the perpetrator of the crime, he may properly be convicted.' Syllabus point 1, State v. Bailey, 151 W.Va. 796, 155 S.E.2d 850 (1967)." Syl. pt. 3, State v. Meadows, 172 W.Va. 247, 304 S.E.2d 831 (1983).

4. " 'The weight of circumstantial evidence, as in the case of direct evidence, is a question for jury determination, and whether such evidence excludes, to a moral certainty, every reasonable hypothesis, other than that of guilt, is a question for the jury.' Syllabus point 4, State v. Bailey, 151 W.Va. 796, 155 S.E.2d 850 (1967)." Syl. pt. 4, State v. Meadows, 172 W.Va. 247, 304 S.E.2d 831 (1983).

5. "The obligation of police to warn a suspect of both his right to counsel and his right against self-incrimination applies only to custodial or other settings where there is a possibility of coercion." Syl. pt. 2, State v. Andriotto, 167 W.Va. 501, 280 S.E.2d 131 (1981).

6. " 'The true test as to whether a juror is qualified to serve on the panel is whether without bias or prejudice he can ren der a verdict solely on the evidence under the instructions of the court.' Syl. pt. 1, State v. Wilson, 157 W.Va. 1036, 207 S.E.2d 174 (1974)." Syl. pt. 4, State v. Audia, 171 W.Va. 568, 301 S.E.2d 199 (1983).

7. " 'Subject to certain exceptions, pre-trial discovery in a criminal case is within the sound discretion of the trial court ....' Syl. pt. 1, State v. Dudick, 158 W.Va., 629, 213 S.E.2d 458 (1975)." Syl., State v. Moran, 168 W.Va. 688, 285 S.E.2d 450 (1981).

8. "In the trial of an indictment for murder all instruments which the evidence tends to show were used in the perpetration of the crime, may be produced for the inspection of the jury." Syl. pt. 1, State v. Henry, 51 W.Va. 283, 41 S.E. 439 (1902).

9. "The exceptions permitting evidence of collateral crimes and charges to be admissible against an accused are recognized as follows: the evidence is admissible if it tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others; and (5) the identity of the person charged with the commission of the crime on trial." Syl. pt. 12, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).

10. " 'The extent of the cross-examination of a witness is a matter within the sound discretion of the trial court; and in the exercise of such discretion, in excluding or permitting questions on cross-examination, its action is not reviewable except in the case of manifest abuse or injustice.' Syl. pt. 4, State v. Carduff, 142 W.Va. 18, 93 S.E.2d 502 (1956)." Syl., State v. Wood, 167 W.Va. 700, 280 S.E.2d 309 (1981).

11. "Where improper evidence of a nonconstitutional nature is introduced by the State in a criminal trial, the test to determine if the error is harmless is: (1) the inadmissible evidence must be removed from the State's case and a determination made as to whether the remaining evidence is sufficient to convince impartial minds of the defendant's guilt beyond a reasonable doubt; (2) if the remaining evidence is found to be insufficient, the error is not harmless; (3) if the remaining evidence is sufficient to support the conviction, an analysis must then be made to determine whether the error had any prejudicial effect on the jury." Syl. pt. 2, State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979).

12. "Polygraph test results are not admissible in evidence in a criminal trial in this State." Syl. pt. 2, State v. Frazier, 162 W.Va. 602, 252 S.E.2d 39 (1979).

13. " 'Where instructions given clearly and fairly lay down the law of the case, it is not error to refuse other instructions on the same subject. The court need not repeat instructions already substantially given. Syllabus point 4, State v. Bingham, 42 W.Va. 234, 24 S.E. 883 (1896).' Syllabus point 4, State v. Johnson, 157 W.Va. 341, 201 S.E.2d 309 (1973)." Syl. pt. 2, State v. Lott, 170 W.Va. 65, 289 S.E.2d 739 (1982).

14. "Jury instructions on possible verdicts must only include those crimes for which substantial evidence has been presented upon which a jury might justifiably find the defendant guilty beyond a reasonable doubt." Syl. pt. 5, State v. Demastus, 165 W.Va. 572, 270 S.E.2d 649 (1980).

Callaghan, Callaghan, Ruckman & Vaughan and Timothy R. Ruckman, Richwood, for appellant.

Jack Alsop, Sp. Pros. Atty., Webster Springs, for appellee.

McGRAW, Chief Justice:

Gary Gum appeals from a final order of the Circuit Court of Webster County entered October 16, 1981, which confirmed his conviction for first degree murder, denied his motion for a new trial, and sentenced him to life in the penitentiary, subject to the jury's recommendation of mercy. The appellant makes thirteen various assignments of error. We fail to find merit in any of these, and therefore, we affirm his conviction.

On the morning of October 15, 1979, Eugene Gum, the appellant's brother, went hunting in a rural area of Webster County known as Jumbo with his son, Michael Gum. After hunting together for a short time, Eugene and his son separated. Upon leaving his father and after traveling some distance, Michael encountered the appellant, who was also hunting in the area. After a short conversation, Michael Gum and the appellant separated, and both continued hunting.

At approximately 11:30 a.m., Michael returned to his father's vehicle; waited for a period of time; and eventually, upon his father's failure to return, headed for home. On his way home, Michael picked up a friend, Mark Hull, and both returned to the Eugene Gum residence and ate. A short time later, after becoming concerned about his father's failure to return home, Michael and Mark Hull left to look for Eugene. Before returning to the woods, however, Michael and Mark went to the appellant's home to advise him of Eugene's failure to return, and to inquire as to whether the appellant had seen Eugene while hunting in that area.

At this point, there is conflicting testimony concerning a conversation which took place between the appellant and Mark Hull. Hull testified that, out of the presence of Michael, the appellant told him that they would find Eugene's body where Michael last saw him. When Hull asked the appellant who did it, Hull testified that the appellant replied that it was a man from Ohio. The appellant testified that no such conversation took place. Nevertheless, upon returning to the area where Michael last saw his father, he and Hull found the body of Eugene Gum. They then returned to the appellant's house, and advised him of what they had found. The appellant then called an ambulance and the police.

Subsequent investigation by law enforcement personnel revealed that Eugene Gum had been shot by a small caliber weapon, and the State Medical Examiner determined that the cause of death was a gunshot wound to the head. The police officers involved in the investigation of Eugene Gum's death conducted an extensive search of the area in which the death occurred; contacted approximately forty different families in the area; requested and received from the appellant and Michael Gum all .22 caliber rifles in their possession for ballistics purposes; interviewed the appellant on several occasions and accompanied him back to the area where the body was found and where the appellant had been hunting; and requested that the appellant and Michael Gum submit to polygraph examinations. As to this final investigative effort, the results indicated that both the appellant and Michael Gum were being truthful in their responses to questions concerning their knowledge of Eugene Gum's death.

After this extensive investigation, the officers involved determined that Eugene Gum had probably died as the result of a negligent shooting by someone hunting with a .22 caliber rifle having mistaken him for a squirrel in the underbrush and heavy foilage on the trees in the area where the body was found. Therefore, on November 21, 1979, the investigation was classified as pending and as a possible negligent shooting.

Thirteen months later, however, on the evening of January 1, 1981, Gerald Gum, brother of the victim, and two of his acquaintances, Buddy Clevenger and John Postelwait, arrived at the home of one of the officers involved in the Eugene Gum investigation. John Postelwait told the officer that he had some information concerning Eugene Gum's death. Because it was obvious that Postelwait and the others had been drinking, however, the officer made...