State v. Harper, 17152

Decision Date18 December 1987
Docket NumberNo. 17152,17152
Citation179 W.Va. 24,365 S.E.2d 69
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia v. Nora K. HARPER.
Syllabus by the Court

1. "W.Va. Code, 61-2-1, enumerates three broad categories of homicide constituting first degree murder: (1) murder by poison, lying in wait, imprisonment, starving; (2) by any wilful, deliberate and premeditated killing; (3) in the commission of, or attempt to commit, arson, rape, robbery or burglary." Syl. pt. 6, State v. Sims, 162 W.Va. 212, 248 S.E.2d 834 (1978).

2. "Lying in wait" as a legal concept has both mental and physical elements. The mental element is the purpose or intent to kill or inflict bodily harm upon someone; the physical elements consist of waiting, watching and secrecy or concealment. In order to sustain a conviction for first degree murder by lying in wait pursuant to W.Va. Code, 61-2-1 [1987], the prosecution must prove that the accused was waiting and watching with concealment or secrecy for the purpose of or with the intent to kill or inflict bodily harm upon a person.

3. "[A] trial court must give an instruction for a lesser included offense when evidence has been produced to support such a verdict." State v. Stalnaker, 167 W.Va. 225, 227, 279 S.E.2d 416, 417 (1981).

4. Where, in the prosecution of first degree murder by lying in wait, there is sufficient evidence before the trial court that the defendant was unaware that the principal in the first degree was preparing to kill or inflict bodily harm upon the victim, the trial court should also instruct the jury on the offense of second degree murder if the elements of that offense are present.

5. "In order for photographs to come within our gruesome photograph rule established in State v. Rowe, W.Va. , 259 S.E.2d 26 (1979), there must be an initial finding that they are gruesome." Syl. pt. 6, State v. Buck, 170 W.Va. 428, 294 S.E.2d 281 (1982).

6. "A judgment of conviction will not be reversed because of improper remarks made by a prosecuting attorney to a jury which do not clearly prejudice the accused or result in manifest injustice." Syl. pt. 5, State v. Ocheltree, 170 W.Va. 68, 289 S.E.2d 742 (1982).

David Johnson, Asst. Atty. Gen., for the State.

Gregory E. Elliott, David L. Stuart, Charleston, for Harper.

McHUGH, Justice:

This case is before this Court upon the appeal of Nora Harper from her conviction by a jury of aiding and abetting first degree murder pursuant to W.Va. Code, 61-11-6 [1931]. 1 It arises from an order of the Circuit Court of Kanawha County which denied the appellant's motion for a new trial and sentenced her to life imprisonment with mercy. This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel.

I

During the evening of October 17, 1982, the appellant and Arthur Wiseman were sitting in the appellant's truck which was parked behind the apartment building in which the appellant lived. The decedent, Curtis Hughey, and his girlfriend also lived in the same building. 2

While the appellant and Wiseman were waiting for a friend to join them, Wiseman asked the appellant to go to her apartment to obtain a shotgun and shells. The appellant complied and gave Wiseman both the shotgun and shells as he had requested. At this time, the appellant proceeded to a local convenience store to purchase some cigarettes and beer. Upon her return, she rejoined Wiseman, and the couple was ultimately joined by another companion.

A short time later, Curtis Hughey and his girlfriend left a nearby convenience store to return to their apartment building. As the couple proceeded towards the rear entrance, Wiseman yelled at the decedent and indicated that he wanted to talk to him. As the decedent approached in response to his demand, Wiseman shot and killed Hughey.

After the shooting, Wiseman threw the shotgun into the appellant's truck and fled the scene on foot. The appellant, who was sitting on the driver's side at the time of the shooting, drove from the scene. After driving a few blocks, the appellant encountered Wiseman, and the couple drove to a bar nearby. Wiseman asked the bartender there if he could leave the shotgun in the bar, and the bartender agreed. Appellant then brought the gun in from the truck.

Based upon an eyewitness' description of the appellant's truck, the police traced the vehicle to the bar. Upon the police's arrival, Wiseman ran downstairs, and the bartender denied he was present on the premises. The police then arrested the appellant and arrested Wiseman shortly thereafter.

From this set of facts, the State argued that this was a "lying in wait" case and the trial court instructed the jury accordingly. The trial court, over the appellant's objection, gave the jury three options in regard to its verdict: guilty of murder in the first degree, guilty of murder in the first degree with mercy, and not guilty.

II

The first issue before us in this appeal is whether the trial court erred in refusing to instruct the jury that it may return a verdict of second degree murder or voluntary manslaughter. 3

The appellant's primary contention is that there was sufficient evidence by the testimony that she had no knowledge that Wiseman had planned to shoot the decedent and that she was entitled to instructions on the offenses of second degree murder or voluntary manslaughter because of that evidence. The State, on the other hand, principally argues the evidence adduced at trial did not support giving the appellant's proposed instructions on second degree murder or voluntary manslaughter.

W.Va. Code, 61-2-1 [1987] defines first degree murder as follows: "Murder by poison, lying in wait, imprisonment, starving, or by any willful, deliberate and premeditated killing, or in the commission of, or attempt to commit, arson, sexual assault, robbery or burglary, is murder of the first degree."

We have previously recognized that "W.Va. Code, 61-2-1 enumerates three broad categories of homicide constituting first degree murder: (1) murder by poison lying in wait, imprisonment, starving; (2) by any wilful, deliberate and premeditated killing; (3) in the commission of, or attempt to commit, arson, rape, robbery or burglary." Syl. pt. 6, State v. Sims, 162 W.Va. 212, 248 S.E.2d 834 (1978). 4

In State v. Abbott, 8 W.Va. 741, 770-72 (1875), this Court recognized that the language "murder by poison, lying in wait, imprisonment, starving" does not require that premeditation or a specific intent to kill has to be shown, but to elevate the homicide to first degree murder, a killing with malice must be proved and one of the four enumerated acts must be established: "If it be proved that the killing was of such a character that, under ordinary circumstances, it would have been murder at common law, and the fact of lying in wait exist, that fact will make it a case of murder in the first degree." Id. 8 W.Va. at 770-71. See also State v. Sims, 162 W.Va. at 221-22, 248 S.E.2d at 840. 5

The elements constituting "lying in wait" were discussed by this Court in State v. Abbott, supra 8 W.Va. at 769. There, this Court quoted approvingly the language of the Supreme Court of Tennessee in Riley v. State, 28 Tenn. (9 Hum.) 646, 651 (1849) and noted:

'[T]o constitute lying in wait, three things must concur, ...: waiting[,] watching, and secrecy; and that these facts must be established beyond a reasonable doubt, to authorize the conclusion that there was lying in wait; that if they should be of the opinion there was such lying in wait, and that the fatal blow was given by the [accused], ... for the purpose of inflicting some great bodily harm upon the deceased, ... it would be murder in the first degree.'

The language in Abbott is consistent with other interpretations of what constitutes "lying in wait." Generally, "lying in wait" as a legal concept has both mental and physical elements. The mental element is the purpose or intent to kill or inflict bodily harm upon someone; the physical elements consist of waiting, watching and secrecy or concealment. 40 Am.Jur.2d Homicide § 49, at 339-40 (1968); annotation, Homicide: What Constitutes "Lying in Wait," 89 A.L.R.2d 1140, § 1[b] (1963). See generally 2 C. Torcia, Wharton's Criminal Law § 141, at 190 (14th ed. 1979); 40 C.J.S. Homicide § 31, at 880 (1944).

Accordingly, in order to sustain a conviction for first degree murder by lying in wait pursuant to W.Va. Code, 61-2-1 [1987], the prosecution must prove that the accused was waiting and watching with concealment or secrecy for the purpose of or with the intent to kill or inflict bodily harm upon a person.

Although this issue was not briefed by either party, and both the appellant and the State appear to assume such, this appeal raises a fundamental question: whether second degree murder is, in fact, a lesser included offense of murder perpetrated by lying in wait.

Where a prosecution for homicide is upon an indictment charging murder by means of lying in wait, poison, starving or imprisonment, or one committed in the perpetration of or attempt to perpetrate a felony--all modes of killing that are categorized by statute to constitute murder in the first degree--there is a split of authority as to the propriety of the trial court instructing the jury on any degree of homicide less than murder in the first degree. See 40 Am.Jur.2d Homicide § 544, at 803 (1968). 6 A few courts have determined that because it is the province of the jury to determine the degree of homicide of which the defendant is guilty, the jury has the right to convict for a lesser degree than first degree murder. See, e.g., Houlton v. State, 254 Ala. 1, 48 So.2d 7 (1950); Montague v. State, 240 Ark. 162, 398 S.W.2d 524 (1966); Brown v. State, 124 So.2d 481 (Fla.1960); State v. Phinney, 13 Idaho 307, 89 P. 634 (1907).

Conversely, a number of jurisdictions have held that in a prosecution for homicide by starving, imprisonment or poisoning,...

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