State v. Justice

• Decision Date: 24 May 1994
• Docket Number: No. 21859,21859
• Citation: 445 S.E.2d 202,191 W.Va. 261
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Sharon JUSTICE, Defendant Below, Appellee.

Page 202

445 S.E.2d 202

191 W.Va. 261

STATE of West Virginia, Plaintiff Below, Appellee, v. Sharon JUSTICE, Defendant Below, Appellee.

No. 21859.

Supreme Court of Appeals of

West Virginia.

Submitted Jan. 12, 1994.

Decided May 24, 1994.

Syllabus by the Court

1. "In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done." Syllabus point 1, State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978).

2. "An indictment which charges that the defendant feloniously, wilfully, maliciously, deliberately, premeditatedly and unlawfully did slay, kill and murder is sufficient to support a conviction for murder committed in the commission of, or attempt to commit arson, rape, robbery or burglary, it not being necessary, under W.Va.Code, 61-2-1, to set forth the manner or means by which the death of the deceased was caused." Syllabus point 5, State v. Bragg, 160 W.Va. 455, 235 S.E.2d 466 (1977).

3. "The general rule is that the voluntary consent of a person who owns or controls premises to a search of such premises is sufficient to authorize such search without a search warrant, and that a search of such premises, without a warrant, when consented to, does not violate the constitutional prohibition against unreasonable searches and seizures." Syllabus point 8, State v. Plantz, 155 W.Va. 24, 180 S.E.2d 614 (1971).

4. "Failure to make timely and proper objection to remarks of counsel made in the presence of the jury, during the trial of a case, constitutes a waiver of the right to raise the question thereafter either in the trial court or in the appellate court." Syllabus point 7, State v. Cirullo, 142 W.Va. 56, 93 S.E.2d 526 (1956).

5. "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." Syllabus point 5, State v. Ocheltree, 170 W.Va. 68, 289 S.E.2d 742 (1982).

Stephen R. Van Camp, Asst. Atty. Gen., Charleston, for appellee.

Jane Moran, Williamson, for appellant.

PER CURIAM:

This is an appeal by Sharon Justice from an order of the Circuit Court of Mingo County sentencing her to life in the penitentiary with a recommendation of mercy for first degree murder. On appeal, the defendant claims that the jury's verdict was not supported by substantial evidence and that the prosecuting attorney abused his position during trial. She argues that she should have been granted a new trial on the basis of after-discovered evidence; that there was a material variance between the charges contained in the indictment against her and the proof presented by trial by the State; and that the court erred in failing to suppress certain items seized from her car. Lastly, the defendant claims that the State committed a number of acts of prosecutorial misconduct during her trial. After reviewing the questions presented, this Court can find no reversible error. Accordingly, the judgment of the Circuit Court of Mingo County is affirmed.

During the early evening hours of March 22, 1991, the defendant met Harold Cline, an individual who had the reputation of frequently carrying a large amount of money, at the Playpen, a small bar in Gilbert, West Virginia. She sat with him and conversed with him.

While the defendant was talking with Mr. Cline, Richard Collins and Randy Highlander entered the bar. Richard Collins knew the defendant's daughter, and he spoke to the defendant. Sometime later, according to Mr. Collins' testimony during the defendant's trial, the defendant took Mr. Collins aside and told him that Mr. Cline had a large amount of money. She suggested that she lure Mr. Cline to another club and that Mr. Collins follow them. She further suggested that Mr. Collins knock Mr. Cline over the head with a baseball bat, which she had in her car, at an appropriate time so that she could take his money.

After the defendant spoke with Mr. Collins, it was openly suggested that the party go to the next club up the road, where music was available for dancing. Mr. Cline learned of this suggestion and wanted to go along. A short time later, the defendant gave Mr. Collins and Mr. Highlander the keys to her car and asked them to take it up to the next club, and she proceeded to the club with Mr. Cline in his car.

When the defendant and Mr. Cline reached the next bar, which was called "Yesterdays," Mr. Cline parked and got out and started walking around to the passenger side door to let the defendant out. Before he got there, the defendant was already alighting from the car. A moment later, Richard Collins approached Mr. Cline with a baseball bat and struck him on the shoulder. He then proceeded to strike Mr. Cline on the head with sufficient force to fracture his skull. Mr. Cline later died of his injuries.

Shortly after the attack, the defendant, Mr. Collins, and Mr. Highlander left the scene in the defendant's car.

During her trial, the defendant denied that she had conspired with Mr. Collins and testified that she was horrified as she watched Mr. Collins attack Mr. Cline.

Two individuals who were at Yesterdays witnessed the attack on Mr. Cline from a distance. They were not able to identify the assailants, but one of the witnesses, Michael Burke, a security guard at Yesterdays, did manage to get the license plate number of the vehicle in which they left the scene. The license number was 1LF 998, a license plate number registered in the name of the defendant.

The State Police were notified of the attack and traced the license number taken by the witness to the defendant. They later found the defendant's car parked outside her trailer. When they arrived, Mr. Collins and Mr. Highlander were in the car, and the State Police placed them under arrest. One of the State troopers, Trooper Hedrick, observed an aluminum baseball bat lying on the passenger side floorboard. Another trooper, Trooper Schoolcraft, found a one-hundred-dollar bill and two one-dollar bills in Mr. Highlander's possession. A third trooper, Trooper Kuenzel, found two one-hundred-dollar bills and four fifty-dollar bills in the possession of Mr. Collins.

Inside the trailer, Trooper Hedrick advised the defendant of her Miranda rights and questioned her about the incident at Yesterdays. She stated that she knew Mr. Collins and Mr. Highlander and that she had let them use her vehicle. The defendant was not arrested. Her car, however, was impounded by the State Police.

On March 25, 1991, the defendant went to the State Police barracks and inquired about retrieving her car. Trooper Hedrick informed her that he was in the process of obtaining a search warrant for the car, and he indicated that he needed either a search warrant or a consent to search before he could search the vehicle. He also apparently informed her that she could not retrieve her car until it had been searched. The defendant indicated that she would give a consent to search, and she signed a form consent to search authorizing the State Police to search her car. According to Corporal Pope and Trooper Hedrick, who were present at the time the defendant signed the consent to search, the form was read to her, and she indicated that she understood it.

After the consent to search was executed, Trooper Hedrick took a photograph of the vehicle before actually conducting the search. The photograph showed the aluminum bat and a vodka bottle in plain view on the floor of the car. The actual search of the vehicle produced the bat, the vodka bottle, six one-dollar bills, a sock with a rock in it, and a receipt of Harold Cline dated March 9, 1990.

After further investigating the crime, the State Police concluded that the defendant was implicated in it, and she was indicted for murder. Mr. Collins and Mr. Highlander were also indicted. Mr. Collins subsequently plead guilty to first degree murder, and Mr. Highlander plead guilty to second degree murder.

The defendant was tried before a jury on January 6, 7, 8, and 9, 1992. At the conclusion of the trial, the jury found the defendant guilty of murder in the first degree and recommended mercy.

The Circuit Court of Mingo County subsequently sentenced the defendant to life in the penitentiary with a recommendation of mercy.

On appeal, the defendant claims that the evidence adduced during her trial did not support the jury's verdict.

In syllabus point 1 of State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978), this Court summarized what should be considered in determining whether the evidence in a case supported the verdict. The Court stated:

In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done.

During the trial of the present case, Richard Collins, who had previously plead guilty to first degree murder in conjunction with the killing of Mr. Cline, testified in behalf of the State. His testimony clearly implicated the defendant. Mr. Collins testified as follows:

A: She [the defendant] told me that the old man sitting at the bar [Mr. Cline] had $4,000.00 or $5,000.00 on him and that there was a ball bat in the car and ...