State v. Jenkins

• Decision Date: 25 March 1994
• Docket Number: No. 21775,21775
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Ronnie Wayne JENKINS, Defendant Below, Appellant.

Page 244

443 S.E.2d 244

191 W.Va. 87

STATE of West Virginia, Plaintiff Below, Appellee, v. Ronnie Wayne JENKINS, Defendant Below, Appellant.

No. 21775.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 12, 1994.

Decided March 25, 1994.

Syllabus by the Court

1. "Rule 609(a)(2) of the West Virginia Rules of Evidence divides the criminal convictions which can be used to impeach a witness other than a criminal defendant into two categories: (A) crimes 'punishable by imprisonment in excess of one year,' and (B) crimes 'involving dishonesty or false statements regardless of the punishment.' " Syllabus Point 2, CGM Contractors, Inc. v. Contractors Environmental Services, Inc. 181 W.Va. 679, 383 S.E.2d 861 (1989).

2. "Where there has been an unlawful homicide by shooting and the State produces evidence that the homicide was a result of malice or a specific intent to kill and was deliberate and premeditated, this is sufficient to support a conviction for first degree murder." Syllabus Point 3, State v. Hatfield, 169 W.Va. 191, 286 S.E.2d 402 (1982).

3. "Where a defendant is the victim of an unprovoked assault and in a sudden heat of passion uses a deadly weapon and kills the aggressor, he cannot be found guilty of murder where there is no proof of malice except the use of a deadly weapon." Syllabus Point 2, State v. Kirtley, 162 W.Va. 249, 252 S.E.2d 374 (1978).

4. An instruction in a first degree murder case that informs the jury that malice need not be shown on the part of the defendant against the deceased is erroneous.

5. " 'In a homicide trial, malice and intent may be inferred by the jury from the defendant's use of a deadly weapon, under circumstances which the jury does not believe afforded the defendant excuse, justification or provocation for his conduct. Whether premeditation and deliberation may likewise be inferred, depends upon the circumstances of the case.' Point 2, Syllabus, State v. Bowles, 117 W.Va. 217[, 185 S.E. 205 (1936) ]." Syllabus, State v. Johnson, 142 W.Va. 284, 95 S.E.2d 409 (1956).

6. It is erroneous in a first degree murder case to instruct the jury that if the defendant killed the deceased with the use of a deadly weapon, then intent, malice, willfulness, deliberation, and premeditation may be inferred from that fact, where there is evidence that the defendant's actions were based on some legal excuse, justification, or provocation. To the extent that the instruction in State v. Louk, 171 W.Va. 639, 643, 301 S.E.2d 596, 600 (1983), is contrary to these principles, it is disapproved.

7. "In a criminal prosecution, the State is required to prove beyond a reasonable doubt every material element of the crime with which the defendant is charged, and it is error for the court to instruct the jury in such a manner as to require it to accept a presumption as proof beyond a reasonable doubt of any material element of the crime with which the defendant is charged or as requiring the defendant either to introduce evidence to rebut the presumption or to carry the burden of proving the contrary." Syllabus Point 4, State v. Pendry, 159 W.Va. 738, 227 S.E.2d 210 (1976), overruled on other grounds, Jones v. Warden, West Virginia Penitentiary, 161 W.Va. 168, 241 S.E.2d 914, cert. denied, Warden of West Virginia Penitentiary v. Jones, 439 U.S. 830, 99 S.Ct. 107, 58 L.Ed.2d 125 (1978).

8. An instruction which informs the jury that it may find the defendant guilty of first degree murder if it finds that he used a deadly weapon to kill the deceased unconstitutionally shifts the burden of proof.

9. "Failure to observe a constitutional right constitutes reversible error unless it can be shown that the error was harmless beyond a reasonable doubt." Syllabus Point 5, State ex rel. Grob v. Blair, 158 W.Va. 647, 214 S.E.2d 330 (1975).

10. " 'In a case in which a jury may return a verdict of guilty of murder of the first degree, it is the mandatory duty of the trial court, without request, to instruct the jury that to such verdict it may add a recommendation of mercy, that such recommendation would mean that the defendant could be eligible for parole consideration only after having served a minimum of ten years and that otherwise the defendant would be confined to the penitentiary for life without possibility of parole.' Syl. pt. 3, State v. Lindsey, 160 W.Va. 284, 233 S.E.2d 734 (1977)." Syllabus Point 4, State v. Headley, 168 W.Va. 138, 282 S.E.2d 872 (1981).

Jacquelyn I. Custer, Asst. Atty. Gen., Charleston, for appellee.

W. Dale Greene, Charleston, for appellant.

MILLER, Justice:

Ronnie Wayne Jenkins appeals a final order of the Circuit Court of Lincoln County, dated December 29, 1992, denying his motion to set aside a jury verdict finding him guilty of first degree murder without a recommendation of mercy. On appeal, the defendant asserts that the trial court erred: (1) in refusing to allow the defendant to impeach a prosecution witness with the witness's prior misdemeanor conviction of receiving stolen property; (2) in instructing the jury as to the legal consequences of the defendant's use of a deadly weapon; and (3) in refusing to instruct the jury on the consequences of recommending mercy in a first degree murder case. We find that the trial court committed reversible error with regard to its instruction to the jury on the effect of the use of a deadly weapon. The trial court also erred in refusing the defendant's request to advise the jury as to the consequences of a recommendation of mercy.

I.

During the afternoon of November 24, 1989, Billy Joe Adkins, the victim, and three of his friends were drinking beer in the victim's car, which was parked at a rock quarry on Upper Mud Fork road in Lincoln County. At approximately 3:00 p.m. that same afternoon, Karen Adkins, Keith Adkins, and Gilbert Courts were driving down Upper Mud River Road towards Hamlin, when they saw the defendant standing in the middle of the road holding a high-powered rifle and a bottle of whiskey. They knew the defendant so Mr. Courts stopped and asked if he wanted a ride. The defendant did, and he got into the truck. As they proceeded down the road, Karen Adkins asked the defendant where he was going, to which the defendant replied, "he was going to kill him a boy that thought he was a man." When they reached the rock quarry, the defendant told Mr. Courts that he had reached his destination and he exited the vehicle.

The defendant started walking towards the victim's car and began yelling at Billy Joe that "he was going to meet him in hell" and "he'd better pray." As the defendant moved closer to the car, the three other occupants fled. According to the testimony of Bobby Hill, one of the passengers in the victim's car, the defendant began poking the gun at the victim through the driver's side window. When Billy Joe grabbed the end of the rifle, the defendant pulled it away and shot at the car's windshield. The defendant then stepped back, pointed the gun through the driver's side window, and shot the victim in the head. The victim died shortly thereafter.

Following a six-day jury trial, the defendant was convicted of first degree murder without a recommendation of mercy. The defendant filed motions to set aside the jury verdict and for a new trial. In a final order dated December 29, 1992, the trial court denied these motions.

II.

The defendant initially asserts that the trial court erred in refusing to allow him to impeach a prosecution witness, Bobby Hill, with his prior misdemeanor conviction of receiving stolen property. The record reflects that on October 31, 1990, Mr. Hill pled guilty to the misdemeanor crime of receiving stolen property in violation of W Va.Code, 61-3-18 (1923). ¹ At trial, when the defense attempted to elicit this information from the defendant, the prosecution objected, and the trial court refused to allow the prior conviction evidence to be introduced.

Rule 609(a)(2) of the West Virginia Rules of Evidence outlines when it is proper to impeach a witness other than a criminal defendant with evidence of a prior conviction. ² As we explained in Syllabus Point 2 of CGM Contractors, Inc. v. Contractors Environmental Services, Inc. 181 W.Va. 679, 383 S.E.2d 861 (1989):

"Rule 609(a)(2) of the West Virginia Rules of Evidence divides the criminal convictions which can be used to impeach a witness other than a criminal defendant into two categories: (A) crimes 'punishable by imprisonment in excess of one year,' and (B) crimes 'involving dishonesty or false statements regardless of the punishment.' "

In order to impeach a witness under Rule 609(a)(2)(A), the individual must have been convicted of a crime punishable by imprisonment in excess of one year. Bobby Hill was convicted of receiving stolen property valued at less than $200. This crime is petit larceny and is a misdemeanor punishable by imprisonment in "the county jail for a term not to exceed one year or fined not to exceed five hundred dollars, or both, in the discretion of the court." W.Va.Code, 61-3-13(b) (1977). Thus, by definition, Mr. Hill's prior misdemeanor conviction would not be admissible under Rule 609(a)(2)(A). ³

The second category of convictions that can be used to impeach a witness other than a criminal defendant includes those crimes involving "dishonesty or false statement, regardless of the punishment." W.Va.R.Evid. 609(a)(2)(B). In note 1 of CGM Contractors, Inc. v. Contractors Environmental Services, Inc., 181 W.Va. at 682, 383 S.E.2d at 864, we recognized that crimes falling under Rule 609(a)(2)(B) were often called crimen falsi:

"Crimen falsi generally refers 'to crimes in the nature of perjury or subornation of perjury, false statement, criminal fraud, embezzlement, false pretense, or any other offense which involves some element of deceitfulness, untruthfulness, or falsification bearing on a witness' propensity to testify truthfully.' Black's Law Dictionary 335 (5th ed. 1979)."

Although...