State v. Gwinn

• Decision Date: 11 March 1982
• Docket Number: No. 14835,14835
• Citation: 288 S.E.2d 533,169 W.Va. 456
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Wayne Harlton GWINN.

Page 533

288 S.E.2d 533

169 W.Va. 456

STATE of West Virginia v. Wayne Harlton GWINN.

No. 14835.

Supreme Court of Appeals of West Virginia.

March 11, 1982.

Syllabus by the Court

1. Upon a defendant's conviction at retrial following prosecution of a successful appeal, imposition by the sentencing court of an increased sentence violates due process and the original sentence must act as a ceiling above which no additional penalty is permitted. However the "proper procedure upon retrial is to submit the case to the jury under proper instructions for every degree of homicide which the evidence supports, and if the jury returns a verdict in the second trial for an offense greater than that returned in the first trial, the trial court should then enter judgment for the offense for which the first conviction was obtained." Syllabus Point 3, in part, State v. Cobb, W.Va., 272 S.E.2d 467 (1980).

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

3. "In a prosecution for murder, where self-defense is relied upon to excuse the homicide, and there is evidence showing, or tending to show, that the deceased was at the time of the killing, making a murderous attack upon the defendant, it is competent for the defense to prove the character or reputation of the deceased as a dangerous and quarrelsome man, and also to prove prior attacks made by the deceased upon him, as well as threats made to other parties against him; and, if the defendant has knowledge of specific acts of violence by the deceased against other parties, he should be allowed to give evidence thereof." Syllabus Point 1, State v. Hardin, 91 W.Va. 149, 112 S.E. 401 (1922).

4. Neither W.Va.Code § 62-3-1 (Cum.Supp.1980), nor W.Va.Code § 62-3-21 (1977 Replacement Vol.), addresses the situation where a prior conviction has been held null and void in a habeas corpus proceeding.

5. "Ordinarily where objections to questions or evidence by a party are sustained by the trial court during the trial and the jury instructed not to consider such matter, it will not constitute reversible error." Syllabus Point 7, State v. Arnold, W.Va., 219 S.E.2d 922 (1973); Syllabus Point 18, State v. Hamric, 151 W.Va. 1, 151 S.E.2d 252 (1966).

6. As a general rule remoteness goes to the weight to be accorded the evidence by the jury, rather than to admissibility.

Lovett & Cooper and James T. Cooper, Charleston, for appellant.

Chauncey H. Browning, Atty. Gen. and Ruthann McQuade, Asst. Atty. Gen., Charleston, for appellee.

McGRAW, Justice:

The appellant, Wayne Harlton Gwinn, was indicted for murder in the first degree during the September 1974 term of the (then) Raleigh County Intermediate Court. In March of 1975 a jury returned a verdict finding the appellant guilty of first degree murder with a recommendation of mercy. On February 20, 1976 the appellant petitioned the Supreme Court of Appeals of West Virginia for a writ of error and supersedeas. The Supreme Court of Appeals refused the requested relief by order entered July 21, 1976.

On June 28, 1978, the appellant, who was then incarcerated at the Huttonsville Correctional Facility in Randolph County, filed a petition for a writ of habeas corpus ad subjiciendum in the Supreme Court of Appeals requesting his release from custody on the basis that an instruction given at his trial unconstitutionally shifted the burden of proof on the issue of intent from the State to the defendant in violation of the guidelines established in State v. Pendry, W.Va., 227 S.E.2d 210 (1976). A writ was issued by order entered July 11, 1978 returnable in the Circuit Court of Randolph County on July 31, 1978. On that date, after hearing, the circuit court entered an order declaring the appellant's Raleigh County conviction null and void.

Retrial of the appellant began on July 30, 1979. The jury returned a verdict finding the appellant guilty of first degree murder without a recommendation of mercy. Consequently the appellant was sentenced to life in the penitentiary without chance of parole.

The appellant makes the following assignments of error: (1) the court erred by refusing to amend State's Instruction Number A to instruct the jury they could not return a verdict greater than murder in the first degree with a recommendation of mercy, the verdict returned in the appellant's first trial; (2) the court erred by refusing to sentence the appellant pursuant to a recommendation of mercy; (3) the court erred by admitting into evidence an oral inculpatory statement made by the appellant, without sufficient proof of its voluntariness and without sufficient inquiry into whether the appellant understood his Miranda rights; (4) the court erred by not permitting the appellant to testify about a specific instance of the victim's past behavior relating to violent tendencies of which the appellant was informed, and which gave the appellant reason to fear the victim; (5) the court erred by failing to try the appellant within the same term of court during which habeas corpus relief was granted; (6) the court erred by denying the appellant's motion for a mistrial when one of the State's witnesses expressed an unsolicited prejudicial remark on cross-examination; and (7) the court erred by permitting one of the State's witnesses to offer prejudicial testimony too remote in time to be of relevance to the offense.

Stanley Logan, a twenty-year-old man, was shot and killed by the appellant on the evening of June 24, 1974 in front of Bonner's Store near Piney View in Raleigh County. The appellant, a fifty-year-old disabled miner, admits shooting Stanley Logan, but claims he acted in self-defense.

Testimony presented on behalf of the appellant indicates that on June 20, 1974, the appellant's son, Dennis Gwinn, was beaten by Stanley Logan. The beating was the result of a disagreement between the appellant's son and Stanley Logan that occurred after Dennis Gwinn accidently broke an illuminated sign near Bonner's Store. Angered by the broken sign, Stanley Logan struck Dennis Gwinn several times and told him to fix the sign by the next evening or he would kill him and his father. Logan also threatened the lives of the appellant and his son if they should seek a warrant in response to the beating.

Dennis Gwinn returned home that evening and informed his father of the beating. On each of the following three evenings the appellant went to Bonner's Store in an attempt to contact Stanley Logan and talk to him. These attempts were unsuccessful.

On the evening of June 24, 1974 Dennis Gwinn went to Bonner's Store shortly before dark. The appellant testified that he had given his son permission to go there to buy a bottle of pop. When his son did not return home as soon as expected, the appellant went to look for him. When he arrived at Bonner's Store Stanley Logan was there. A heated argument between Logan and the appellant ensued during which there was talk of fighting. The appellant testified that at one point during the argument, Logan, who was sitting on the hood of his car, slid down, removed his glasses, and then struck the appellant knocking him back two or three steps. At this point the appellant fired one shot from the pistol he had in his jacket pocket, fatally wounding Stanley Logan. Logan fled to a nearby house trailer and died shortly thereafter.

The appellant's version of the events surrounding the shooting is disputed by several witnesses who were present at Bonner's Store on the night of the shooting. These witnesses testified that Dennis Gwinn arrived at the store shortly before Stanley Logan on the evening of June 24th. Shortly thereafter Dennis Gwinn left the store, and while leaving in his car sounded his horn twice. At that point the appellant approached from across the road and the argument between Logan and the appellant followed. The testimony indicates that Logan did not strike the appellant. Rather their testimony shows Logan removed his glasses, turned around, and was shot by the appellant without warning, from a distance of four to six feet. Their testimony further shows that after Logan was shot the appellant ran after Logan shouting, "I'll kill you--you son of a bitch." One witness testified that after the shooting he heard Dennis Gwinn laugh and say, "Come on Dad, I think he's had enough." The appellant denies that any such statements were made.

After the shooting the appellant and his son returned home. The appellant then called his brother who transported the appellant and his son to Prince in Raleigh County where the appellant threw his weapon in the New River. The brother then took the appellant to the State Police Headquarters in Beckley where the appellant surrendered.

I.

In the appellant's first two assignments of error, he protests the imposition of a harsher sentence upon retrial than that imposed pursuant to his original conviction. The appellant first contends that it was error for the trial court to refuse to amend State's Instruction Number A to instruct the jury that they could not return a verdict providing for punishment in excess of murder in the first degree with a recommendation of mercy, the verdict returned in the appellant's first trial. This contention is without merit.

In State v. Eden, W.Va., 256 S.E.2d 868 (1979) this Court held,"upon a defendant's conviction at retrial following prosecution of a successful appeal, imposition by the sentencing court of an increased sentence violates due process and the original sentence must act as a ceiling above which no additional penalty is permitted." 256 S.E.2d at 876. We reiterated this holding in State v. Cobb, W.Va., 272 S.E.2d 467 (1980), and there clarified the application of the rule with regard to jury instructions:

[The] proper procedure upon retrial is to submit the...