State v. Keeton, 14821
| Citation | 272 S.E.2d 817,166 W.Va. 77 |
| Decision Date | 02 December 1980 |
| Docket Number | No. 14821,14821 |
| Parties | STATE of West Virginia v. Brailford M. KEETON, Jr. |
| Court | Supreme Court of West Virginia |
Syllabus by the Court
1. Evidence of the level of intoxication obtained from a Breathalyzer test which a defendant in a criminal trial seeks to admit should not be excluded on the basis of requirements which were designed to protect defendants in drunk driving cases from inaccurate test results as outlined in State v. Hood, 155 W.Va. 337, 184 S.E.2d 334 (1971).
2. Voluntary drunkenness is generally never an excuse for a crime, but where a defendant is charged with murder, and it appears that the defendant was too drunk to be capable of deliberating and premeditating, in that instance intoxication may reduce murder in the first degree to murder in the second degree, as long as the specific intent did not antedate the intoxication.
3. "Intoxication to reduce an unlawful homicide from murder in the first degree, must be such as to render the accused incapable of forming an intent to kill, or of acting with malice, premeditation or deliberation." Syl. pt. 4, State v. Burdette, 135 W.Va. 312, 63 S.E.2d 69 (1950).
4. Where there is evidence in a murder case to support the defendant's theory that his intoxication at the time of the crime was such that he was unable to formulate the requisite intent to kill, it is error for the trial court to refuse to give a proper instruction presenting such a theory when requested to do so.
Stephen P. Meyer, Paul S. Perfater, Charleston, for appellant.
Chauncey H. Browning, Atty. Gen., Billie Gray, Asst. Atty. Gen., Charleston, for appellee.
Defendant, Brailford M. Keeton, Jr., appeals from a decision of the Circuit Court of Kanawha County, sentencing him to life imprisonment with a recommendation of mercy upon his conviction of first degree murder. On 6 January 1979, at approximately 3:00 a. m., defendant struck and killed Terry Wayne Shaffer with an automobile in Charleston; however, defendant argued that he was so intoxicated that he didn't see anyone in the street before the impact. Defendant has two primary assignments of error which involve his intoxication defense: (1) the exclusion of a Breathalyzer test which gave evidence of his state of intoxication; and, (2) the failure of the trial court to grant an instruction regarding defendant's level of intoxication. We agree that defendant's intoxication defense was severely limited by these two trial court decisions which were erroneous and we reverse and remand.
It is uncontested that defendant was the driver of the automobile which struck and killed the victim, Terry Shaffer. The evidence regarding the events on the night of the alleged murder differs markedly. All of the major witnesses were at the Willow Club in Charleston from approximately 11:30 p. m. until closing at 3:00 a. m. Nearly all say that there was no argument between the defendant and his friends and the victim and the victim's friends; however, the defendant's friend, Pamela Smith, testified that there may have been an argument between the defendant and the victim, although she could not be sure. Pamela Smith, Opal Hartley, and Lettie Spradling left with the defendant before the victim and his friends left. Smith and Hartley rode with the defendant in the front seat of his automobile while Lettie Spradling got into the back seat where he fell asleep and remained oblivious to the ensuing events. Defendant drove Hartley to her home, and Smith asked to be taken to her car, but according to her testimony defendant responded that he expected trouble, whereupon he then placed a large knife on the seat between them. According to Smith, as the defendant was approaching the victim and his friends, who were standing in front of a truck on Washington Street, the defendant said that there was something he had to do before letting her out. The defendant denied uttering the statements attributed to him by Smith.
The victim's friends testified that the car suddenly veered towards them and that the victim had his back toward the car and never saw it approaching. The car struck two of the four people standing outside the truck, namely, the victim and a friend of is who also received severe injuries. All witnesses testified that the automobile was going very fast; the Chief Medical Examiner estimated from the injuries sustained that the automobile was proceeding at between 25 and 30 miles per hour.
After the impact, Smith testified that the defendant appeared to have "blacked out" and that he asked, "How did my windshield get like that?" The defendant then drove Smith to her automobile which was parked a short distance away. He then circled the block and drove slowly past where Shaffer's body lay and where Shaffer's friend lay severely injured. The other two individuals who were with the victim, Chester Wheeler and Terry Quigley, testified that the defendant smiled as he drove past; the defendant admitted driving by although he denied smiling. The defendant then drove to his home, got Spradling out of the car, and then led the police on a chase through the streets of Charleston, after hearing on his CB radio that the police were searching for him.
Shortly after the defendant was apprehended by the police, a Breathalyzer test was administered. The test, which was administered about forty-five minutes after the incident, registered a .22% level of intoxication. At the trial, on the State's request, the trial judge conducted a hearing in chambers on the admissibility of the test results. The trial judge found that a proper foundation for admissibility had been laid by the defendant under the rules of State v. Hood, 155 W.Va. 337, 184 S.E.2d 334 (1971), which the State contended were applicable in the case. After the testimony about the test had been completed before the jury, the trial court, apparently reconsidering his former ruling, granted the State's motion to strike the testimony about the Breathalyzer and the court admonished the jury to disregard the portion of the deputy's testimony and noted the objection of the defendant.
The trial court also refused to give the defendant's Instruction No. 19 regarding the effect of intoxication on the formulation of intent which reads:
The Court instructs the jury that if they believe from the evidence that Brailford M. Keeton, Jr., killed Terry Shaffer as charged in the indictment, and, at the time of such killing Brailford M. Keeton, Jr. was under the influence of liquor voluntarily taken by him, then said intoxication is in law no excuse for the act done by Brailford M. Keeton, Jr., unless they believe from the evidence that such intoxication was such as did in fact deprive him at the time of the killing of the mental capacity to form a malicious purpose to kill, in which event, they will find Brailford M. Keeton, Jr. only guilty of involuntary manslaughter.
While this instruction is incorrect in its concluding portion which instructs the jury that voluntary intoxication can reduce a homicide to involuntary manslaughter, nonetheless, failure to give some instruction on intoxication when it was the defendant's primary defense is plain error. The issue of intoxication was raised by the defendant and the record clearly supports the conclusion that the trial court would not give any intoxication instruction. While ordinarily this Court will not consider the failure to give instructions not properly presented, the problem in this case is so obvious that the trial court should have offered to amend the instruction to conform to the well established law and we conclude that this omission falls within the plain error exception.
Defendant assigned several errors but the crux of his argument on appeal centers on his intoxication defense. 1 Due to the trial court's decision to strike the evidence the jury received on the Breathalyzer test,...
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...degree to murder in the second degree, as long as the specific intent did not antedate the intoxication." Syllabus Point 2, State v. Keeton, 166 W.Va. 77, 272 S.E.2d 817 (1980). 9. " 'Where the testimony on an issue of fact in a criminal case is conflicting, it is for the jury to determine ......
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