State v. Johnson
| Decision Date | 13 July 1976 |
| Docket Number | No. 13620,13620 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia v. Nick JOHNSON. |
Syllabus by the Court
1. A spontaneous statement by a defendant made prior to any action by a police officer and before an accusation, arrest or any custodial interrogation is made or undertaken by the police may be admitted into evidence without the voluntariness thereof first having been determined in an In camera hearing.
2. An inculpatory statement by a defendant made to an arresting officer after the defendant is in the custody of the police or during police interrogation is inadmissible in evidence unless the voluntariness of such statement first shall have been determined in an In camera hearing.
3. Whether a motion to reopen a case should be granted after the moving party has rested lies within the sound discretion of the court, but where a defendant's motion to reopen is represented to be for the purpose of presenting exculpatory evidence of which he was not formerly aware and which was material to the issues of guilt or penalty the motion should be granted.
4. Point 1, Syllabus, State v. Fischer, W.Va., 211 S.E.2d 666 (1974).
John C. Ashworth, Beckley, for plaintiff in error.
Chauncey H. Browning, Jr., Atty. Gen., Richard E. Hardison, Deputy Atty. Gen., Fredric J. George, Asst. Atty. Gen., Charleston, for defendant in error.
At the October Term, 1974, of the Circuit Court of Raleigh County, the defendant, Nick Johnson, was indicted by the grand jury serving said circuit court for the murder of Marian McCargish. The pertinent part of the indictment charged that on the fifth day of July, 1974 Nick Johnson 'unlawfully, feloniously, maliciously, wilfully, deliberately and premeditatedly did slay, kill, and murder one Marian McCargish . . .'. Upon arraignment the defendant entered a plea of not guilty and the matter was set for trial.
The jury, after hearing and considering the evidence adduced on behalf of the state and the defendant, returned a verdict of guilty of murder in the second degree. By order dated June 27, 1975 the court denied the defendant's motion for a new trial and 'ordered the defendant forthwith sent to Huttonsville Diagnostic and Correctional Institution for a period of sixty days for diagnostic study.' This appeal followed.
The defendant, Nick Johnson, a fifty-eight year old former coal miner, lived alone in a camper trailer in the coal camp community of Fireco in Raleigh County. It appears from the record that on July 5, 1974, the date of this unfortunate homicide, Johnson was at home in his camper trailer, having just returned from Beckley. Marian McCargish, the deceased, resided in the State of Maryland but at the time of the subject shooting was visiting relatives in Raleigh County. He had once lived in Raleigh County at which time he had been slightly acquainted with the defendant. On the above date he stopped at the defendant's trailer for a visit. It is obvious that both parties had been drinking intoxicating liquors prior to and during this visit.
At approximately eight o'clock that evening Manuel McCargish, a brother of the deceased and a resident of Raleigh County, went to the Johnson trailer for the purpose of taking his brother home. Manuel testified that as he approached the trailer he could see that his brother and Mr. Johnson had been fighting with each other and, in fact, were still holding their knives. He talked them into putting their knives away and prevailed upon his brother to start home. Marian, however, turned back and began to argue again with the defendant during which argument they again went into the trailer for another drink. Shortly thereafter the defendant ordered the brothers out of the trailer. Manuel did leave but the deceased stayed and further arguing and fighting took place between him and the defendant. They finally emerged from the trailer and proceeded to a spot where Manuel was sitting in a lawn chair at which time Johnson asked Manuel why everyone was picking on him. Manuel explained that he was merely there to get his brother and that he was not picking on him. While they were talking the deceased attempted to take the defendant's gun from him but the defendant turned and went out onto the road. He then ordered the brothers to leave and fired a shot into the ground between them. Manuel testified: .
Shortly after Manuel McCargish had called the police two deputy sheriffs arrived on the scene. One of the deputies, Gary Roark, testified that upon arriving at the scene of the shooting he observed the body of Marian McCargish lying on the ground and indicated that he could feel no pulse. He then proceeded to the trailer and engaged in conversation with the defendant whom he indicated he knew quite well. As he approached the trailer defendant Johnson who was standing in the doorway said to him 'I shot him, Gary'. Deputy Roark then relieved Johnson of his gun, advised of his rights and placed him in the back seat of his own automobile for the purpose of driving him to the hospital. It appears, however, that the defendant was later driven to the hospital by Victor Birchfield, another deputy sheriff. Upon being asked at the trial what the defendant had said on his way to the hospital Deputy Sheriff Birchfield testified
Johnson was taken to the same hospital where the deceased was taken and after a wound on his head was dressed he was released. A blood sample was also taken from the defendant and the deceased by the Criminal Identification Bureau of the State Police. A report of the bureau of the analysis of these blood samples disclosed that the body of the deceased contained .33% Blood alcohol by weight and the blood alcohol by weight of the defendant was .30%. An autopsy revealed that McCargish had been shot once in the leg and in the chest, the latter wound causing his death. The third round fired has never been found.
The following assignments of error are relied upon by the defendant: (1) The admission into evidence of certain oral inculpatory statements allegedly made by the defendant to the arresting officer without first having determined the voluntariness of such statements out of the presence of the jury; (2) the suppression and exclusion from evidence of certain oral exculpatory statements allegedly made by the defendant to the arresting officer; (3) the refusal of the trial court to direct a verdict of acquittal; (4) the giving of instructions permitting the jury to find the defendant guilty under the evidence of first degree murder, second degree murder or voluntary manslaughter; and (5) the action of the court ordering the defendant committed for diagnostic evaluation without permitting a stay of execution as provided in W.Va.Code, 1931, 62--7--1.
The first assignment of error involves two statements which state witnesses testified were made by the defendant. Each of those statements will be discussed separately.
On direct examination Deputy Roark testified, as hereinbefore noted, that as he approached the defendant after the shooting, the defendant exclaimed 'I shot him, Gary'. It is contended that this statement, amounting to a confession, should not have been admitted into evidence without the court first having determined the voluntariness thereof in a hearing out of the presence of the jury. In support of his position the defendant relies principally on three recent cases, namely, State v. Smith, W.Va., 212 S.E.2d 759 (1975); Spaulding v. Warden, W. Va. Penitentiary, W.Va., 212...
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