State v. Julius, 19836

CourtSupreme Court of West Virginia
Citation408 S.E.2d 1,185 W.Va. 422
Decision Date03 July 1991
Docket NumberNo. 19836,19836
PartiesSTATE of West Virginia, Plaintiff below, Appellee, v. Rubin (Skeeter) JULIUS, Defendant below, Appellant.

4. The inadvertent discovery of an object is not a predicate requirement of a plain view seizure. To the extent that State v. Stone, 165 W.Va. 266, 268 S.E.2d 50 (1980), and State v. Moore, 165 W.Va. 837, 272 S.E.2d 804 (1980), and their progeny hold to the contrary, they are overruled.

5. Where physical evidence is lawfully seized from the person of the defendant who has been lawfully arrested, the defendant may not interpose a Sixth Amendment right to counsel to render the seizure invalid.

6. The doctrine of transferred intent provides that where a person intends to kill or injure someone, but in the course of attempting to commit the crime accidentally injures or kills a third party, the defendant's criminal intent will be transferred to the third party.

7. "Where the record on appeal is inadequate to resolve the merits of a claim of ineffective assistance of counsel, we will decline to reach the claim so as to permit the defendant to develop an adequate record in habeas corpus." Syllabus Point 11, State v. England, 180 W.Va. 342 , 376 S.E.2d 548 (1988).

8. This Court is not obligated to accept the State's confession of error in a criminal case. We will do so when, after a proper analysis, we believe error occurred.

9. "The Double Jeopardy Clauses of both the federal and State constitutions protect an accused in a criminal proceeding from 'multiple punishments for the same offense.' " Syllabus Point 1, in part, Conner v. Griffith, 160 W.Va. 680, 238 S.E.2d 529 (1977).

10. "Double jeopardy prohibits an accused charged with felony-murder, as defined by W.Va.Code § 61-2-1 (1977 Replacement Vol.), from being separately tried or punished for both murder and the underlying enumerated felony." Syllabus Point 8, State v. Williams, 172 W.Va. 295, 305 S.E.2d 251 (1983).

James P. Carbone, Atty. General's Office, Charleston, for appellee.

John W. Bennett, Eiland & Bennett, Logan, for appellant.

MILLER, Chief Justice:

The defendant, Rubin "Skeeter" Julius, appeals from an order of the Circuit Court of Logan County, dated October 3, 1989, denying his motion for a new trial. We reverse his conviction of arson, affirm his convictions of attempted murder, felony-murder, and malicious assault, and remand the case for resentencing. I.


On the night of March 1, 1988, at approximately 10:00 p.m., a fire swept through a two-story apartment building in Man, West Virginia. Residing in the building were Columbus Bartram, his wife and three children, and Jackie Vance and her two sons and daughter.

The State's evidence revealed that earlier in the evening, the defendant and Columbus Bartram had a fist fight outside of a game room in Man. Officer Barry Browning of the Man City Police Department broke up the fight and told the two men to go their separate ways. As Officer Browning walked away, he heard the defendant threaten to kill Mr. Bartram before the night was over.

Shortly thereafter, Raymond Muncey gave the defendant a ride into Man. The defendant appeared intoxicated and was carrying a plastic milk jug which contained an orange liquid that looked and smelled like gasoline. As the defendant got out of Mr. Muncey's car, he said that his name was Rubin G. Julius.

George Fields testified that around 10:00 p.m., he saw the defendant walking in the direction of the apartment building that caught fire that night. He also noticed that the defendant was wearing an army jacket and carrying a milk jug that contained an orange liquid.

At approximately 9:45 p.m., Columbus Bartram's next-door neighbor, Benny Blankenship, saw the defendant standing outside of Mr. Bartram's apartment building. Mr. Blankenship testified that the defendant was wearing an army fatigue jacket and carrying a plastic jug. About fifteen minutes later, Mr. Blankenship saw the defendant with the milk jug still in his hand run down the stairs of the two-story building. Next he saw fire in the stairwell. When Mr. Blankenship yelled at the defendant, he fled up the alley and threw the milk jug in a nearby creek.

Officer Emerson Whitlock of the Man City Police Department was the first police officer to arrive at the scene. He immediately learned what Mr. Blankenship had seen and retrieved the milk jug from the creek. The jug smelled of gasoline.

The fire totally destroyed the second story of the apartment building. The Bartram family escaped unharmed. Jackie Vance died of smoke inhalation and her son, Joseph Vance, was severely burned before he was able to escape out of the kitchen window. Her other son, Gideon, as well as her daughter, Casandra, were not harmed.

Based on the evidence he had gathered at the scene, Officer Whitlock obtained a warrant for the defendant's arrest. Around 5:00 a.m. on March 2, 1988, Officer Whitlock and several other police officers went to the defendant's trailer in the Green Valley Subdivision. There they found the defendant partially dressed and asleep on the couch. As the officers entered the trailer, they immediately asked the defendant where the jacket was. Hanging on a kitchen chair in plain view was a camouflage jacket. The police seized it and ordered the defendant to get dressed.

The police transported the defendant to city hall to await arraignment. While they were waiting, James Layne of the State Fire Marshal's Office advised the officers to seize the defendant's clothing because it might contain evidence of a flammable liquid. The officers agreed, seized the defendants clothes, and provided him with a substitute set.

On May 17, 1988, the defendant was indicted by the Logan County grand jury. Following a two-day trial, the defendant was convicted of first degree murder with mercy in violation of W.Va.Code, 61-2-1 (1987); attempted murder in violation of W.Va.Code, 61-11-8 (1966); arson in the first degree in violation of W.Va.Code, 61-3-1; and malicious assault in violation of W.Va.Code, 61-2-9 (1978).



The defendant contends that the seizure of his jacket and clothing violates the Fourth Amendment to the United States

[185 W.Va. 426] Constitution 1 and Article III, Section 6 of the West Virginia Constitution 2 because the officers had not obtained a search warrant. We disagree.

A. Clothes Seized In Search Incident to An Arrest

"One of the most frequently utilized exceptions to the warrant requirement is the search incident to an arrest." J. Cook, Constitutional Rights of the Accused § 322 at 494 (2d ed. 1985). Before a search will be upheld as a lawful search incident to an arrest, it must be both spatial and contiguous to the arrest. The leading case on this issue is Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). In Chimel, the police had an arrest warrant for the petitioner. When they arrived at his home, he was not there, but his wife invited them in. When the petitioner arrived home, he was promptly arrested, and the police asked if they could look around. Although the petitioner objected, the police searched throughout his house, garage, work shop, and attic. During the search, the police seized numerous items which were admitted into evidence at the petitioner's trial.

The United States Supreme Court found the seizure unconstitutional and then outlined the parameters of a lawful search incident to an arrest:

"When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape.... In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule.... There is ample justification, therefore, for a search of the arrestee's person and the area 'within his immediate control'--construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence." 395 U.S. at 763, 89 S.Ct. at 2040, 23 L.Ed.2d at 694.

We recognized the holding in Chimel in Syllabus Point 6 of State v. Moore, 165 W.Va. 837, 272 S.E.2d 804 (1980):

"A warrantless search of the person and the immediate geographic area under his physical control is authorized as an incident to a valid arrest."

See also State v. Hodges, 172 W.Va. 322, 305 S.E.2d 278 (1983); State v. Drake, 170 W.Va. 169, 291 S.E.2d 484 (1982).

Nearly a decade later, the United States Supreme Court extended the boundaries of Chimel by holding: "[I]t is also plain that searches and seizures that could be made on the spot at the time of arrest may legally be conducted later when the accused arrives at the place of detention." United States v. Edwards, 415 U.S. 800,...

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