State v. Ivey

• Citation: 474 S.E.2d 501,196 W.Va. 571
• Decision Date: 14 June 1996
• Docket Number: No. 23079,23079
• Court: Supreme Court of West Virginia
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Virgil Luther IVEY, Defendant Below, Appellant.

Page 501

474 S.E.2d 501

196 W.Va. 571

STATE of West Virginia, Plaintiff Below, Appellee, v. Virgil Luther IVEY, Defendant Below, Appellant.

No. 23079.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 27, 1996.

Decided June 14, 1996.

Syllabus by the Court

1. " 'The police power is the power of the state, inherent in every sovereignty, to enact laws, within constitutional limits, to promote the welfare of its citizens. The police power is difficult to define precisely, because it is extensive, elastic and constantly evolving to meet new and increasing demands for its exercise for the benefit of society and to promote the general welfare. It embraces the power of the state to preserve and to promote the general welfare and it is concerned with whatever affects the peace, security, safety, morals, health and general welfare of the community. It cannot be circumscribed within narrow limits nor can it be confined to precedents resting alone on conditions of the past. As society becomes increasingly complex and as advancements are made, the police power must of necessity evolve, develop and expand, in the public interest, to meet such conditions.' Syl. pt. 5, State ex rel. Appalachian Power Co. v. Gainer, 149 W.Va. 740, 143 S.E.2d 351 (1965)." Syl. pt. 3, City of Princeton v. Buckner, 180 W.Va. 457, 377 S.E.2d 139 (1988).

2. " ' "Where language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation." Syllabus Point 2, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968).' Syl. Pt. 1, Peyton v. City Council of Lewisburg, 182 W.Va. 297, 387 S.E.2d 532 (1989 )." Syl. pt. 3, Hose v. Berkeley County Planning Commission, 194 W.Va. 515, 460 S.E.2d 761 (1995).

3. Under W. Va.Code, 20-2-57 [1991], it is unlawful for any person, while engaged in hunting, pursuing, taking or killing wild animals or wild birds, to act with ordinary carelessness or ordinary negligence in shooting, wounding or killing any human being or livestock, or in destroying or injuring any other chattels or property. Any person violating W. Va.Code, 20-2-57 [1991] is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than one thousand dollars nor more than ten thousand dollars, or imprisoned in the county jail not more than one year, or both fined and imprisoned.

4. " 'A defendant may waive his constitutional rights, as enunciated in Miranda, provided the waiver is made voluntarily, knowingly and intelligently.' Syllabus Point 2, State v. Bragg, 160 W.Va. 455, 235 S.E.2d 466 (1977)." Syl. pt. 6, State v. Hambrick, 177 W.Va. 26, 350 S.E.2d 537 (1986).

Christopher S. Moorehead, Assistant Public Defender, Fayetteville, for Appellant.

Darrell V. McGraw, Jr., Attorney General, Victor S. Woods, Assistant Attorney General, Charleston, for Appellee.

McHUGH, Chief Justice.

Defendant Virgil Luther Ivey entered a conditional plea of guilty in the Circuit Court of Fayette County, pursuant to West Virginia Rules of Criminal Procedure 11(a)(2), ¹ to one count of negligent shooting, wounding or killing of human being or livestock while hunting, a misdemeanor under W. Va.Code, 20-2-57 [1991]. Defendant entered this plea following the trial court's denial of his motion to dismiss and motion to declare W. Va.Code, 20-2-57 [1991] unconstitutional. This Court has before it the petition for appeal, all matters of record and the briefs and arguments of counsel. For the reasons discussed below, the order of the circuit court is affirmed.

I.

The facts of this case are not in dispute. On November 22, 1994, defendant Virgil Luther Ivey (hereinafter "defendant") and a hunting companion, Jay Dee Adkins, went deer hunting in Fayette County, West Virginia. In a statement to a Division of Natural Resources Officer, defendant described the following events which occurred as the two men were preparing to return home from a day of hunting, at approximately 3:30 p.m.:

I took the clip out of my gun, and I unloaded his gun, and then I gave his back to him and I layed my gun across my arm. And it went off. Once it went off I didn't know what was going on, I grabbed and tried to care [sic] him out and he said go get help. So I ran out and flagged a red truck down, and they took me to Mr. Haywood's and I got some towels and I told Mr. Haywood that he was shot, that I accidentally shot him. I went back in the red truck and ran back to J.D. [the victim].

The "Hunting Incident--Field Workbook" prepared by DNR officers (hereinafter "DNR report") indicated that defendant had removed the clip from his 30.06 caliber rifle but had failed to remove the cartridge from the rifle chamber. Defendant "then placed the gun across hi[s] arm and the gun fired striking the victim in the chest." The victim was taken to Beckley Appalachian Regional Hospital but died soon thereafter from "massive blood loss."

According to the DNR report, the defendant and the victim were dressed in proper hunting gear, had valid hunting licenses, were hunting deer in season and exhibited no signs of alcohol or drug use. A DNR reporting officer indicated that following the incident, defendant was "polite" and "cooperative" and that his face was "flushed" and his eyes, "watery." The DNR report further indicated that appellant was visibly "upset and shaken." The conditions of the scene at the time of the incident were reported as follows: "The area of the incident was flat, with good visibility and open cover. The weather was clear and sunny." Finally, after interviewing the family of the victim, authorities could discern no motive or intent on the part of the defendant. Accordingly, the DNR report concluded that "[t]he Medical Examiner felt that an autopsy was unnecessary, due to the fact no evidence of foul play."

On January 4, 1995, defendant appeared in magistrate court where, after stipulating to the facts in the complaint, he was found guilty of violating W. Va.Code, 20-2-57 [1991], which provides:

It is unlawful for any person, while engaged in hunting, pursuing, taking or killing wild animals or wild birds, to carelessly or negligently shoot, wound or kill any human being or livestock, or to destroy or injure any other chattels or property.

Any person who, in the act of hunting, pursuing, taking or killing of wild animals or wild birds, in any manner injures any person or property shall file with the director a full description of the accident or other casualty, including such information as the director may require. Such report must be filed during a period not to exceed seventy-two hours following such incident.

Any person violating this section is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than one thousand dollars nor more than ten thousand dollars, or imprisoned in the county jail not more then one year, or both fined and imprisoned. Restitution of the value of the livestock, chattel or property injured or destroyed shall be required upon conviction.

Defendant was sentenced to one year in jail and fined the minimum fine of $1,000.

On January 20, 1995, on appeal of his conviction to the Circuit Court of Fayette County, defendant entered a plea of not guilty to violating W. Va.Code, 20-2-57 [1991]. On January 26, 1995, defendant filed a motion to dismiss the appeal "on the grounds that gross negligence is not present, and simple negligence is insufficient to hold a person criminally responsible." On February 2, 1995, ² defendant filed a motion to declare the language in W.Va.Code, 20-2-57 [1991] requiring a criminal defendant involved in a negligent shooting "to give a statement to the [DNR] Officers [to be] facially unconstitutional and that the defendant has an absolute right not to make any statements[,]" under the Fifth Amendment to the United States Constitution. ³

At the March 9, 1995 hearing on defendant's motions, the trial court denied defendant's motion to dismiss, stating:

I think [the legislature] had in mind that they were dealing with instruments designed for killing, primarily, and I think the legislature can and it did create a statutory scheme which holds people who are armed with instruments of death, instruments that are created for that specific purpose, to a standard not nearly as high as statutes and case law has created for other conduct which could result in criminal penalties.

The legislature clearly said that careless conduct or negligent conduct which resulted in the death of a human being can cause one to be held accountable under this statute.

....

And I think the legislature clearly had in mind to deal with those instruments and the people who carry them, so that people will have to be extraordinarily careful with how they discharge and handle those weapons.

So I think the legislature clearly in its policy-setting prerogative can establish a lesser standard such as they've established here, simple carelessness or simple negligence.

The trial court likewise denied defendant's motion to declare W. Va.Code, 20-2-57 [1991] unconstitutional.

Defendant subsequently entered a conditional plea of guilty, pursuant to W. Va. R.Crim.P. 11(a)(2), supra, and now appeals the denial of the aforementioned motions to this Court.

II.

The first issue on appeal is whether the trial court, in denying defendant's motion to dismiss the circuit court appeal of his conviction, properly determined that proof of ordinary negligence or ordinary carelessness is sufficient to convict a defendant under W. Va.Code, 20-2-57 [1991]. Defendant argues that the terms "carelessly" and "negligently" in W. Va.Code, 20-2-57 [1991] should be interpreted to mean gross negligence, that is, something greater than ordinary carelessness or ordinary negligence.

In the valid exercise of its police power, the legislature enacted W. Va.Code, 20-2-57 [1991], imposing criminal penalties on "any person, while engaged in hunting, pursuing, taking or killing wild...