State v. Kopa

• Decision Date: 15 December 1983
• Docket Number: No. 15708,15708
• Parties: STATE of West Virginia v. Robert KOPA.
• Court: West Virginia Supreme Court

Page 412

311 S.E.2d 412

173 W.Va. 43

STATE of West Virginia v. Robert KOPA.

No. 15708.

Supreme Court of Appeals of West Virginia.

Dec. 15, 1983.

[173 W.Va. 44] Syllabus by the Court

1. Because of the holding in Adkins v. Bordenkircher, 674 F.2d 279 (4th Cir.), cert. denied, 459 U.S. 853, 103 S.Ct. 119, 74 L.Ed.2d 104 (1982), State v. Alexander, W.Va., 245 S.E.2d 633 (1978), is overruled to the extent that it permits the giving of an instruction that places the burden upon the defendant to prove his alibi defense sufficiently to create a reasonable doubt in the mind of the jury as to his guilt.

2. The invalidation of the instruction approved in State v. Alexander, W.Va., 245 S.E.2d 633 (1978), that places the burden upon the defendant to prove his alibi defense sufficiently to create a reasonable doubt in the mind of the jury as to his guilt is only applicable to those cases currently in litigation or on appeal where the error has been properly preserved at trial.

3. It is the mandatory duty of the trial court to instruct the jury that it may add a recommendation of mercy to a verdict of murder of the first degree and such duty shall be fulfilled by the trial court over the objection of the defendant unless it affirmatively appears from the record that the defendant understands the consequences of his action.

4. The credibility of a witness may be attacked by any party, including the party calling him and prior cases that expound a contrary principle are hereby overruled.

5. The results of an out-of-court experiment will not be admitted into evidence

unless the party seeking to introduce such evidence demonstrates that the conditions under which the experiment was conducted were substantially similar to the original conditions sought to be recreated and the question of whether to admit such evidence [173 W.Va. 45] for consideration by the jury is within the sound discretion of the trial court

6. " 'The action of a trial court in admitting or excluding evidence in the exercise of its discretion will not be disturbed by the appellate court unless it appears that such action amounts to an abuse of discretion. Syl. pt. 5, Casto v. Martin, 230 S.E.2d 722 (W.Va.1976) citing Syl. pt. 10, State v. Huffman, 141 W.Va. 55, 87 S.E.2d 541 (1955).' Syllabus Point 2, State v. Rector, W.Va., 280 S.E.2d 597 (1981)." Syl. pt. 3, State v. Oldaker, W.Va., 304 S.E.2d 843 (1983).

Silas B. Taylor, Asst. Atty. Gen., Charleston, for appellee.

William E. Galloway, Weirton, for appellant.

McHUGH, Justice.

This action is before this Court upon the appeal of Robert Kopa, appellant and defendant below, from his conviction in the Circuit Court of Hancock County for first degree murder. The appellant was convicted of committing such murder while in the commission of a burglary upon the home of the victim, Edna Virginia Karver, and was sentenced to life imprisonment with mercy. This Court has before it the petition for appeal, all matters of record and the briefs and oral argument of counsel.

The record indicates that in the early morning hours of September 15, 1981, at approximately 4:30 a.m., Edna Virginia Karver was found slain in her home in Weirton, Hancock County, West Virginia. The victim was found by members of the local rescue squad and Weirton police while lying face down in her bed with her hands tied behind her back and a gag in her mouth. An autopsy of the victim revealed that she had died from a series of six stab wounds in her back which had punctured her lungs and liver. The victim had also been severely beaten about the head and face. The time of death was placed anywhere from midnight to 4 a.m. on September 15, 1981. The victim was last seen alive at approximately 11:35 p.m. by a boarder of the victim as he was leaving for work.

The home in which the victim lived was found in a condition of disarray. Entry onto the premises was discovered to have come from a window that had been removed from the garage of the victim. Outside the window, footprints were discovered that allegedly belonged to one of the perpetrators and a footprint was also found in the blood lying next to the victim's bed. Photographs were taken of the footprints and later submitted for comparison with the tennis shoes of the appellant. Other pieces of physical evidence such as hair were collected at the scene and subjected to scientific analysis.

During the trial of the appellant, neighbors of the victim testified that they had seen a black and gold four-wheel-drive Plymouth Trailduster around the rear of the Karver residence at approximately 11:30 p.m. on the evening of September 14, 1981. One such neighbor, Michael Harris, was returning home at the time and testified that he noticed two people in the front seat of the Trailduster as it was leaving the alley which was located behind the victim's house and what he thought was movement in the back seat. At a later time, Harris identified the Trailduster that the appellant had borrowed from a friend earlier in the day as the one he saw that evening near the Karver residence.

On October 4, 1981, a man that lived across the street from the victim, William "Buddy" White, was arrested by the Weirton police for possession of a controlled substance. During his subsequent interrogation, White offered information on the murder of Mrs. Karver in exchange for immunity from prosecutions on the drug charge and the murder of the victim. Based upon the information supplied by White, the Weirton Police Department

eventually arrested the appellant and two companions, William Joseph Gallo and Franklin V. Tesack, and charged them with the slaying of Edna Karver. A Hancock County Grand Jury indicted the appellant, along with Gallo and Tesack, for first degree murder and felony murder. The trials [173 W.Va. 46] of the three co-indictees were severed and the appellant was tried and convicted for felony murder

White was granted immunity from prosecution and became the prosecution's chief witness. At trial, he testified that it was common knowledge in the neighborhood that Mrs. Karver kept $30,000 to $40,000 cash in her home and stored it in various appliances such as televisions, toasters and radios. White stated that he had told this to other persons who, in turn, informed the appellant, Gallo and Tesack. Arrangements were made with White to inspect the house of the victim for the possible commission of a burglary. In the early evening of September 14, 1981, the neighbor took the appellant, Gallo and Tesack to the Karver residence, at which time the three men extensively questioned White about Mrs. Karver's habits and those of her other neighbors. The inspection of the victim's house took place from a black and gold four-wheel-drive Plymouth Trailduster that the appellant and Gallo had borrowed from a friend earlier in the evening. Upon returning to the bar where they had met, White left the three men only to meet them again later in the evening. At this time, Gallo indicated to White the burglary would take place that evening.

The State offered additional evidence of a footprint found outside the point of entry of the victim's house that an expert testified could have been made by the right tennis shoe of the appellant, however, he could not do so conclusively. In addition, a speck of blood was found on the right tennis shoe of the appellant as well as on the cuff of a glove found in the Trailduster. Through scientific analysis, the blood found on these items was determined to be human but the amount was insufficient to define its type. A small knife was also found in the vehicle which experts could not rule out as the murder weapon, however, the knife was not admitted into evidence.

The appellant asserted the defense of alibi with various witnesses who testified that he and his co-indictees were in a local bar for most of the evening of September 14, 1981, and until 3:30 a.m. on September 15, 1981. The appellant and his alibi witnesses testified that at approximately 7:30 p.m. on September 14, the appellant and Gallo picked up Tesack in the Trailduster and then proceeded to a local bar. The appellant remained outside the bar and slept in the back of the vehicle. The appellant testified that he was awakened only when Gallo drove the vehicle to take a friend home. Upon their return to the bar at midnight, after only a 20 minute absence, the appellant and Gallo stayed at the tavern until their departure at 3:30 a.m. At this time the appellant and Gallo drove to the trailer of Pam Glasure, the appellant's girlfriend, and then went to sleep.

Testimony indicates that at approximately 4:00 a.m. on September 15, 1981, a local rescue squad received an anonymous telephone call instructing them to send an ambulance to the residence of the victim. The rescue squad member who received the call testified that the caller was female and the conversation consisted of the words: "Send an ambulance to 136 Pine Street and hurry." In an original statement given to police by Pam Glasure, the appellant's girlfriend, Glasure claimed responsibility for making the telephone call at the direction of the appellant. However, Glasure, during the appellant's preliminary hearing and before the Hancock County Grand Jury, denied ever making the anonymous telephone call. In any event, the prosecution called Glasure as one of its witnesses and upon her denial of the truth of the original statement, the prosecution impeached her with the prior inconsistent statement.

The appellant was convicted by a jury of first degree murder with a recommendation of mercy and was sentenced to life imprisonment with mercy. In subsequent trials, William Joseph Gallo and Franklin V. Tesack

were acquitted of the murder of Edna Karver

The principal assignments of error are as follows: (1) the trial court erred when it instructed the jury that the appellant had the burden of proving his alibi defense to the extent that it created a reasonable doubt in...