State v. Kirtley, No. 13912

• Court: Supreme Court of West Virginia
• Writing for the Court: MILLER; HARSHBARGER
• Citation: 252 S.E.2d 374,162 W.Va. 249
• Parties: STATE of West Virginia v. Darrell Lee KIRTLEY.
• Docket Number: No. 13912
• Decision Date: 28 November 1978

Page 374

252 S.E.2d 374 162 W.Va. 249 STATE of West Virginia
v.
Darrell Lee KIRTLEY. No. 13912. Supreme Court of Appeals of West Virginia. Nov. 28, 1978.
Concurring Opinion Feb. 28, 1979.

Syllabus by the Court

1. Malice is an essential element of both first and second degree murder.

2. Where a defendant is the victim of an unprovoked assault and in a sudden heat of passion uses a deadly weapon and kills the aggressor, he cannot be found guilty of murder where there is no proof of malice except the use of a deadly weapon.

3. Under the doctrine of harmless constitutional error, the giving of an instruction

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which states that malice may be presumed from the use of a deadly weapon will not alone be sufficient[162 W.Va. 250] to reverse a conviction for involuntary manslaughter, since the mere presence of a constitutionally defective instruction not related to the actual verdict may be deemed, in the absence of any other factors, to have an insubstantial or unimportant effect on the verdict and therefore be harmless beyond a reasonable doubt.

4. Once there is sufficient evidence to create a reasonable doubt that the killing resulted from the defendant acting in self-defense, the prosecution must prove beyond a reasonable doubt that the defendant did not act in self-defense.

Beckett, Burford & James, Robert H. Burford, Huntington, for Darrell Lee Kirtley.

Chauncey H. Browning, Atty. Gen., Paul T. Farrell, Asst. Atty. Gen., Charleston, for the State.

MILLER, Justice:

Darrell Lee Kirtley appeals his conviction of involuntary manslaughter upon an indictment for murder from the Circuit Court of Cabell County. He contends an improper instruction under State v. Pendry, W.Va., 227 S.E.2d 210 (1976), was given which presumed malice from the use of a deadly weapon. Further, he asserts that the court should not have permitted the jury to consider a second degree murder verdict and that the State's self-defense instruction was erroneous. We reverse the conviction on the latter point, holding that where there is sufficient evidence to create a reasonable doubt as to the defense of self-defense, the State must prove the lack of self-defense beyond a reasonable doubt.

The defendant Kirtley, a nineteen-year-old college student, killed a young man outside a bar in Huntington, West Virginia. The defendant and a friend, Ronald Roesch, had gone to the bar to meet some friends.

[162 W.Va. 251] During the course of the evening another group of young men, of whom the deceased John Hill was a member, was at the bar and began taking Roesch's freshman cap. It was snatched several times from his head and on each occasion he was able to retrieve it. Both groups were drinking.

All of the witnesses to this byplay in the bar testified that there was no overt animosity between the two groups. The defendant Kirtley and his group were advised, however, that the Hill group had a reputation for being belligerent, whereupon Kirtley and his group decided to leave the bar.

Kirtley and Roesch went into the parking lot to get into Kirtley's automobile. They were followed by Mike Phillips, a member of the Hill group who had been the one primarily engaged in taking Roesch's cap. Phillips was carrying a broken beer bottle and approached Roesch, who asked the nature of the trouble. Phillips responded that he wanted Roesch's cap, and upon being told he could have it, told Roesch that he could not get off so easily.

The defendant Kirtley, who was on the driver's side of his car opposite Roesch and Phillips, opened the car door and obtained a club which he passed to Roesch. Kirtley then got into the car and was attempting to start it. In the meantime, Hill had come from the bar to the driver's side of Kirtley's car. He opened the door and told Kirtley to get out of the car. Standing a short distance behind Hill was Danny Dawson, another member of the Hill group.

It does not appear that Hill had any weapon, but there is evidence that Dawson had a broken beer bottle in his hand. On the floor of his car the defendant had a bayonet-type knife, which he seized in his right hand, and he began waiving it out the open door. There was evidence that Hill had seized Kirtley and was attempting to pull him out of the car when Kirtley stabbed him in the chest.

[162 W.Va. 252] After the stabbing Hill broke off the encounter and, assisted by Dawson, went back toward the bar. He collapsed and was dead on arrival at a local hospital. The defendant left in his car, leaving Roesch on the parking lot. He drove to his home and

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informed his father of the incident. In the company of his father, he then drove to the police station and gave a voluntary statement.

One of the unique aspects of this case is that the essential facts outlined above were not materially disputed. The State presented only one eyewitness to the events which occurred outside the bar. On direct examination he testified to the positions of Hill and Dawson on the driver's side of the car and to the fact that Hill had seized Kirtley, who was in the car. The State's evidence also demonstrated that there had been no visible animosity between the two groups inside the bar during the course of the cap-snatching, and that the defendant Kirtley and Roesch had left the bar, followed shortly by Phillips, Hill and Dawson.

At the conclusion of the case the State agreed that the evidence would not support a verdict of first degree murder, but maintained that the use of the bayonet-like knife was sufficient to support a verdict of second degree murder. Over the objection of the defendant, the court permitted the jury to consider a second degree murder verdict, and the following instruction was given by the State:

"The Court instructs the jury that when a homicide is committed that there arises a presumption of malice when a deadly or dangerous weapon is used in the homicide, and further that this is a rebutable (Sic ) presumption that may be disspelled (Sic ) by competent evidence to the contrary."

The evidence is undisputed that the defendant Kirtley did nothing to provoke the attack which occurred in the parking lot. He claimed that with Hill trying to pull him out of the car and Hill's companion Dawson standing in close proximity with a broken beer bottle, he was in fear of great bodily injury.

[162 W.Va. 253] I

The trial court was not warranted in permitting the jury to consider a second degree murder verdict, as the State did not prove the element of malice, which is essential to a verdict of first or second degree murder. State v. Starkey, W.Va., 244 S.E.2d 219 (1978); State v. Morris, 142 W.Va. 303, 95 S.E.2d 401 (1956); State v. Cassim, 112 W.Va. 92, 163 S.E. 769 (1932); State v. Galford, 87 W.Va. 358, 105 S.E. 237 (1920).

Traditionally, we have held that where a defendant is the victim of an unprovoked assault and in a sudden heat of passion uses a deadly weapon and kills the aggressor, he cannot be found guilty of murder where there is no proof of malice except the use of a deadly weapon. State v. Morris, supra; State v. Ponce, 124 W.Va. 126, 19 S.E.2d 221 (1942); State v. Galford, supra. The rule is stated in the tenth and eleventh syllabus points of State v. Clifford, 59 W.Va. 1, 52 S.E. 981 (1906):

"10. A sudden intentional killing with a deadly weapon, by one who is not in any way at fault, in immediate resentment of a gross provocation, is Prima facie a killing in heat of blood, and, therefore, an offense of no higher degree than voluntary manslaughter."

"11. When in such case the evidence discloses that no time intervened between the giving of the provocation and the act of killing, within which passion could have subsided and reason regained its dominion, and the fatal act itself was not attended by circumstances of extreme cruelty and inhumanity, nor preceded by conduct from which malice can be inferred, a conviction of murder in the second degree should be set aside and a new trial allowed."

The important point which our cases have emphasized is that the heat of passion engendered by provocation and resulting in an intentional killing "cannot be traced to a malignant heart, but it is imputable to human frailty. Passion and malice are not convertible terms, so that [162 W.Va. 254] an act prompted by the one cannot be said to proceed from the other." State v. Ponce, 124 W.Va. at 128, 19 S.E.2d at 222; State v. Galford, 87 W.Va. at 366, 105 S.E. at 240. It is the element of malice which forms the critical distinction between murder and voluntary

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manslaughter. State v. Starkey, W.Va., 244 S.E.2d at 225. Consequently, where provocation is shown to exist as a matter of law, a murder instruction or conviction is not warranted. ¹

It is the instructional aspect of this problem which gave rise to Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), and our case of State v. Pendry, W.Va., 227 S.E.2d 210 (1976), where it was determined that the absence of provocation was an essential element of the State's proof of second degree murder. In Pendry, we held that it was constitutionally impermissible for the State to give an instruction that advised the jury that they could presume malice from the use of a deadly weapon and thereby require the defendant to prove that he acted upon provocation. The State's instruction here was obviously defective under Pendry, which we have made retroactive in Jones v. Warden, West Virginia Penitentiary, W.Va., 241 S.E.2d 914 (1978), Cert. denied, --- U.S. ----, 99 S.Ct. 107, 58 L.Ed.2d 125, as a result of the mandate of the United States Supreme Court making Mullaney retroactive in Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977).

II

In this case, however, we do not deem permitting the jury to consider a verdict of second degree murder and [162 W.Va. 255] the giving of a Pendry instruction to be reversible error, because the jury returned a verdict of involuntary manslaughter....