State v. Kirkland

• Decision Date: 15 July 1994
• Docket Number: No. 21759,21759
• Citation: 191 W.Va. 586,447 S.E.2d 278
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Robert Earl KIRKLAND, Jr., Defendant Below, Appellant.

Page 278

447 S.E.2d 278

191 W.Va. 586

STATE of West Virginia, Plaintiff Below, Appellee, v. Robert Earl KIRKLAND, Jr., Defendant Below, Appellant.

No. 21759.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 19, 1994.

Decided July 15, 1994.

[191 W.Va. 588] 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.' Syl. Pt. 1, State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978)." Syl. Pt. 7, State v. Knotts, 187 W.Va. 795, 421 S.E.2d 917 (1992).

2. "Where a defendant is convicted of a particular substantive offense, the test of the sufficiency of the evidence to support the conviction necessarily involves consideration of the traditional distinctions between parties to offenses. Thus, a person may be convicted of a crime so long as the evidence demonstrates that he acted as an accessory before the fact, as a principal in the second degree, or as a principal in the first degree in the commission of such offense." Syl. Pt. 8, State v. Fortner, 182 W.Va. 345, 387 S.E.2d 812 (1989).

3. " ' "Merely witnessing a crime, without intervention, does not make a person a party to its commission unless his interference was a duty, and his non-interference was one of the conditions of the commission of the crime; or unless his non-interference was designed by him and operated as an encouragement to or protection of the perpetrator." Syllabus, State v. Patterson, 109 W.Va. 588, [1930].' Syllabus Point 3, State v. Haines, 156 W.Va. 281, 192 S.E.2d 879 (1972)." Syl. Pt. 9, State v. Fortner, 182 W.Va. 345, 387 S.E.2d 812 (1989).

4. "Proof that the defendant was present at the time and place the crime was committed is a factor to be considered by the jury in determining guilt, along with other circumstances, such as the defendant's association with or relation to the perpetrator and his conduct before and after the commission of the crime." Syl. Pt. 10, State v. Fortner, 182 W.Va. 345, 387 S.E.2d 812 (1989).

5. "The Double Jeopardy Clause of the Federal and this State's Constitutions forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding." Syl. Pt. 4, State v. Frazier, 162 W.Va. 602, 252 S.E.2d 39 (1979).

6. "It is a violation of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution for a member of a cognizable racial group to be tried on criminal charges by a jury from which members of his race have been purposely excluded." Syl. Pt. 1, State v. Marrs, 180 W.Va. 693, 379 S.E.2d 497 (1989).

7. "To establish a prima facie case for a violation of equal protection due to racial discrimination in the use of peremptory jury challenges by the State, 'the defendant first must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits "those to discriminate who are of a mind to discriminate." Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.' [Citations omitted.] Batson v. Kentucky, 476 U.S. 79 at 96, 106 S.Ct. 1712 at 1722, 90 L.Ed.2d 69 (1986)." Syl. Pt. 2, State v. Marrs, 180 W.Va. 693, 379 S.E.2d 497 (1989).

8. "The State may defeat a defendant's prima facie case of a violation of equal protection due to racial discrimination in selection of a jury by providing non-racial, credible reasons for using its peremptory challenges to strike members of the defendant's race from the jury." Syl. Pt. 3, State v. Marrs, 180 W.Va. 693, 379 S.E.2d 497 (1989).

9. A trial court should conduct an evidentiary hearing if, after considering the prosecutor's representations regarding the reasons for using a peremptory strike to Stephen R. VanCamp, Asst. Atty. Gen., Charleston, for appellee.

[191 W.Va. 589] exclude the only remaining black juror, the court deems that the circumstances surrounding the prosecutor's representations warrant such a hearing to determine whether the explanations offered by the prosecutor in exercising said strike were racially neutral or discriminatory in nature. The determination on whether to conduct an evidentiary hearing is within the sound discretion of the trial court.

Daynus Jividen, Office of the Public Defender, Charleston, for appellant.

WORKMAN, Justice:

This case is before the Court upon the appeal of Robert Earl Kirkland, Jr., from the October 13, 1992, final order of the Circuit Court of Fayette County sentencing the Appellant to a term of seven to twenty-eight years imprisonment, ¹ based upon his January 10, 1992, jury convictions for one count of second degree murder, one count of malicious assault, and one count of attempted murder. The Appellant argues that the following errors were committed by the trial court: 1) the trial court erred in allowing the prosecutor to remove, by means of a peremptory strike, the last remaining member of the Appellant's race from the jury panel after the Appellant made a prima facie case of the prosecutor's purposeful racial discrimination in the selection of the jury and after the prosecutor failed to offer a credible non-racial justification for striking the only remaining member of the Appellant's race from the jury panel; 2) the trial court erred in denying the Appellant's motion for a new trial after the court disqualified the prosecutor from also prosecuting the Appellant's co-defendant's case due to the appearance of impropriety on the part of the prosecutor in his conduct regarding the co-defendant's case; 3) the trial court erred in not granting the Appellant's motion for a judgment of acquittal because the evidence was insufficient to support the guilty verdict; and 4) the trial court erred in not granting the Appellant's motion for a judgment of acquittal due to the prosecutor's repeated and systematic prosecutorial abuse. Based on a review of the record, the briefs and arguments of the parties, ² and all other matters submitted before this Court, we agree with the Appellant's contention that insufficient evidence existed to support his convictions and accordingly, we reverse and remand.

I.

On July 6, 1991, Brian Berry pulled into W.D. Tire Sales in Mount Hope, West Virginia, to have the oil checked on his moped, according to the testimony of the tire store owner, Jesse Rhodes. Jesse Rhodes also testified that both Mr. Berry and his stepfather, the Appellant, were regular customers of his business. Jesse Rhodes was assisted in his business by his father, Richard "Dickie" Rhodes. When Mr. Berry pulled into the station, Jesse Rhodes informed Mr. Berry that "Dad has been looking for you. He said he needed to talk to you." At this point, Jesse Rhodes left the premises.

According to the testimony of Ken Suttle, who happened to be at the tire store to pick up an employee, Mr. Berry proceeded into the business where a heated argument ensued between Mr. Berry and Dickie Rhodes regarding the payment of a $103 past due bill. Mr. Suttle testified that he heard Dickie Rhodes tell Mr. Berry that he needed to collect the overdue bill because he had to make payroll. Mr. Suttle stated that Mr. Berry offered Dickie Rhodes three dollars on the bill and that Dickie Rhodes shoved Mr. Berry three or four times. At this point, Mr. Mark Ambler, a customer of the tire store, heard Mr. Berry tell Dickie Rhodes that he was going to get the money owed to the tire Mr. Berry went to the Stadium Terrace apartments in Mount Hope, where his girlfriend, Tonya Marion, resided. When Mr. Berry arrived at Ms. Marion's apartment, Mary Nichols, who was not only Ms. Marion's mother but also the Appellant's girlfriend, the Appellant, as well as Ms. Marion were present. Ms. Marion testified that Mr. Berry told his stepfather that Dickie Rhodes had "jumped" him, and that the Appellant responded by telling his stepson, "Let's go see what's going on. Let's go talk and see what's go[ing] on." Ms. Nichols testified that neither Mr. Berry nor the Appellant threatened to harm anyone.

[191 W.Va. 590] store. Mr. Ambler testified that Mr. Berry then left the business.

Both Mr. Berry and the Appellant left the apartment. Ms. Cynthia Jackson, a resident of Stadium Terrace apartments, who witnessed the two men leaving the apartment, testified that while the Appellant was walking down some steps towards his car, Mr. Berry stopped by an apartment next door and yelled at his friend, William Ullyses Mayo, to join them. Ms. Jackson also testified that Mr. Berry instructed Mr. Mayo "to go back and get his piece." Ms. Marion's testimony indicated that she observed Mr. Mayo leaving his apartment with a gun. There was no evidence that the Appellant knew that Mr. Mayo was either asked by Mr. Berry to retrieve his gun, or had retrieved a gun, as the testimony indicated that by the time Mr. Mayo and Mr. Berry joined the Appellant, the Appellant was already in his car.

Meanwhile, Jesse Rhodes, who had earlier left W.D. Tire Sales, testified that as he was driving back to his business, he went past the Stadium Terrace apartments and observed Mr. Berry and Mr. Mayo getting into the Appellant's car. He also noticed that Mr. Mayo was carrying a...