State v. Hall

• Decision Date: 22 March 1985
• Docket Number: No. 16148,16148
• Citation: 328 S.E.2d 206,174 W.Va. 599
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Roger HALL.

Page 206

328 S.E.2d 206

174 W.Va. 599

STATE of West Virginia v. Roger HALL.

No. 16148.

Supreme Court of Appeals of West Virginia.

March 22, 1985.

Syllabus by the Court

1. A claim of intoxication may bear upon the voluntariness of a defendant's confession, but, unless the degree of intoxication is such that it is obvious that the defendant lacked the capacity to voluntarily and intelligently waive his rights, the confession will not be rendered inadmissible.

2. "The delay in taking the defendant to a magistrate may be a critical factor where it appears that the primary purpose of the delay was to obtain a confession from the defendant." Syllabus Point 6, State v. Persinger, W.Va., 286 S.E.2d 261 (1982).

3. "In a criminal prosecution, if the evidence tends to show that an instrument sought to be admitted in evidence was used in the perpetration of the crime charged in the indictment, it may be admitted and produced for the inspection of the jury." Syllabus Point 2, State v. Peterson, 132 W.Va. 99, 51 S.E.2d 78 (1948).

S. Clark Woodroe, Asst. Atty. Gen., Charleston, for appellee.

Douglas Witten and Hugh C. Avis, Logan, for appellant.

MILLER, Justice:

Roger Hall was convicted in the Circuit Court of Logan County of second degree murder and unlawful wounding. His principal assignments of error relate to the admission of his confession and a claim that the jury verdicts are inconsistent. His convictions arose from a single incident in which he fired a .357 magnum handgun three times, wounding James Lowe and killing his brother, David Lowe. For the reasons set out below, we affirm his convictions.

With regard to his confession, the defendant contends that he was too intoxicated to voluntarily and intelligently waive his constitutional rights. Furthermore, he asserts that the arresting officers failed to take him to a magistrate without unnecessary delay.

The evidence with regard to the intoxication question reveals that the defendant and the Lowe brothers had been drinking some beer first and then wine over a five-hour period prior to the time of the altercation that led to the shooting. There was conflicting evidence on both the amount of alcohol he consumed and the degree of his intoxication. This drinking was not continuous as the defendant drove about visiting various persons. Prior to the actual shooting, when the defendant was in front of the Stolling home, where the shooting occurred, he had quit drinking. When the arresting officers came to the scene, they indicated that the defendant appeared rational and coherent and he continued to be so on the way to the sheriff's office, all of which took about one hour.

The trial court, based on the arresting officer's testimony and the contents of the defendant's written confession taken shortly after he was arrested, concluded that he possessed a good recollection of the events and was not impaired by way of intoxication. The court was of the view that there was no evidence to demonstrate that he was so affected by alcohol that he had lost the ability to comprehend what was occurring. To be admissible, a confession must be voluntary and there must be a knowing and intelligent waiver of the rights guaranteed by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966), and the accused must possess the mental capability to do so. We discussed these principles at some length in State v. Persinger, W.Va., 286 S.E.2d 261, 267 (1982), where we said: "The basis for these principles springs from the traditional requirement that constitutional safeguards such as those embodied in Miranda cannot be waived unless there is a knowing and intelligent relinquishment of such rights." ¹

In State v. Young, W.Va., 311 S.E.2d 118, 133 (1983), we briefly discussed the effect of intoxication on the admissibility of statements made by a defendant. Without any elaborate discussion, we stated, "Although the [defendant's] claim that he was intoxicated at the time the statements were made may have some bearing upon the reliability of the statements, such claim does not preclude their admission into evidence." See also State v. Woods, W.Va., 289 S.E.2d 500, 502 (1982). Most courts have concluded that a claim of intoxication may bear upon the voluntariness of a defendant's confession, but, unless the degree of intoxication is such that it is obvious that the defendant lacked the capacity to voluntarily and intelligently waive his rights, the confession will not be rendered inadmissible. E.g., United States v. Smith, 608 F.2d 1011 (4th Cir.1979); United States v. Woody, 690 F.2d 678 (8th Cir.1982), cert. denied, 459 U.S. 1177, 103 S.Ct. 830, 74 L.Ed.2d 1024 (1983); Mallott v. State, 608 P.2d 737 (Alaska 1980); People v. Phillips, 110 Ill.App.3d 1092, 66 Ill.Dec. 729, 443 N.E.2d 655 (1982); Bundy v. State, 427 N.E.2d 1077 (Ind.1981); State v. Warner, 237 A.2d 150 (Me.1967); Commonwealth v. Parham, 390 Mass. 833, 460 N.E.2d 589 (1984); State v. Kimball, 613 S.W.2d 932 (Mo.App.1981); State v. Oxendine, 303 N.C. 235, 278 S.E.2d 200 (1981); People v. Schompert, 19 N.Y.2d 300, 279 N.Y.S.2d 515, 226 N.E.2d 305, cert. denied, 389 U.S. 874, 88 S.Ct. 164, 19 L.Ed.2d 157 (1967); State v. Corona, 60 Or.App. 500, 655 P.2d 216 (1982); State v. Gardner, 28 Wash.App. 721, 626 P.2d 56 (1981); 29 Am.Jur.2d Evidence § 577 (1967); 23 C.J.S. Criminal Law § 828 at 229-30 (1961); Annot., 69 A.L.R.2d 361 (1960). We believe that the trial court was correct in concluding that the defendant knowingly and intelligently waived his constitutional rights and that his confession was not rendered inadmissible by virtue of intoxication.

The defendant also claims that the arresting officers were guilty of unreasonable delay in taking him before a magistrate. We have recognized that W.Va. Code, 62-1-5, requires that a defendant after he is arrested be taken "without unnecessary delay before a [magistrate]." See Syllabus Point 1, State v. Mason, 162 W.Va. 297, 249 S.E.2d 793 (1978). We have also stated in Syllabus Point 6 of Persinger:

"The delay in taking the defendant to a magistrate may be a critical factor where it appears that the primary purpose of the delay was to obtain a confession from the defendant."

In the present case, the evidence at the suppression hearing was that after arresting the defendant at the scene of the crime, the officers transported him to the courthouse. Because the crime was committed late at night, the arresting officers radioed to have a magistrate appear for purposes of a preliminary arraignment. They did not arrive at the courthouse until almost one o'clock in the morning. The defendant was taken to the sheriff's office where he signed a written Miranda waiver at about 1:15 a.m. Immediately thereafter the defendant gave a confession which was almost completely reduced to writing by the time the magistrate arrived at his office in the courthouse. Within a few minutes of the magistrate's arrival, the defendant was brought before him. We do not believe that there was an unwarranted delay in presenting the defendant to the magistrate.

The defendant's second ground of error is that the jury verdicts of unlawful wounding and second degree murder are inconsistent. He contends that the State's theory supporting the murder conviction was based on transferred intent. A State's instruction advised the jury that if they believed the defendant, without lawful excuse or justification, attempted to intentionally, maliciously, and deliberately kill James Lowe, but actually shot and killed David Lowe, then the elements of intent, malice, and deliberation could be transferred to the person actually shot, David Lowe, and that it is not a defense that the defendant shot the wrong person. ²

The defendant argues that since the jury by its verdict of unlawful wounding, rather than malicious wounding, found that the defendant did not act with malice in shooting James Lowe, no malice could be transferred to support the second degree murder conviction for the killing of David Lowe. Malice, of course, is an essential element of both first and second degree murder. See Syllabus Point 1, State v. Kirtley, 162 W.Va. 249, 252 S.E.2d 374 (1978). The defendant reasons that the verdicts are therefore inconsistent, that the jury must have ignored or misunderstood the instructions of the court concerning the elements of second degree murder, particularly malice, and hence the verdicts must be reversed.

The flaw in the defendant's argument is that the prosecution did not rely exclusively on a transferred intent theory. The State had several instructions giving the traditional definition of the elements of both first and second degree murder, as well as lesser-included offense instructions. The State's principal argument was that the defendant intended to kill David Lowe, who was shot in the back as he was attempting to flee the defendant. This was supported by the testimony of a State's witness who saw the defendant fire the first shot, heard a second shot, and while he was driving away saw someone running in his rearview mirror and at the same time heard the third shot fired. James Lowe testified that he was hit by the first shot and that the last time he saw his brother he was running for cover. Other witnesses confirmed that James Lowe was wounded by the first shot.

When the evidence is viewed in the light most favorable to the prosecution, as required under Syllabus Point 1 of State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978), ³ the jury could have and apparently did believe the prosecution's theory of the case that after the defendant had seriously wounded James Lowe with the first shot, he shot and killed David Lowe as he was running away from the defendant. This evidence would support the second degree murder verdict, and thus the verdicts are not necessarily inconsistent. See State v. Reed, W.Va., 276 S.E.2d 313 (1981).

Moreover, even if we accept the defendant...