State v. Leonard

• Decision Date: 22 June 2005
• Docket Number: No. 31857.,31857.
• Citation: 619 S.E.2d 116
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Harry David LEONARD, Defendant Below, Appellant.
• Court: West Virginia Supreme Court

619 S.E.2d 116

STATE of West Virginia, Plaintiff Below, Appellee, v. Harry David LEONARD, Defendant Below, Appellant.

No. 31857.

Supreme Court of Appeals of West Virginia.

Submitted: April 5, 2005.

Filed: June 22, 2005.

COPYRIGHT MATERIAL OMITTED

Eric J. Holmes, Esq., Kevin C. Harris, Esq., Law Offices of Harris & Holmes, PLLC, Ripley, for the Appellant.

Darrell V. McGraw, Jr., Esq., Attorney General, Robert D. Goldberg, Esq., Assistant Attorney General, Charleston, for the Appellee.

The Opinion of the Court was delivered PER CURIAM.

Chief Justice ALBRIGHT dissents and reserves the right to file a dissenting opinion.

Justice STARCHER concurs, in part, and dissents, in part, and reserves the right to file an opinion concurring, in part, and dissenting, in part.

Justice MAYNARD concurs and reserves the right to file a concurring opinion.

PER CURIAM.

This case is before this Court upon the appeal of Harry David Leonard from his conviction, by a jury, in the Circuit Court of Jackson County, West Virginia, of murder of the first degree with no recommendation of mercy. The conviction arose from the charge that the appellant strangled his 78 year old mother in her home in Millwood, West Virginia. Pursuant to an order entered on June 18, 2003, the Circuit Court denied the appellant's motions for an acquittal and for a new trial. On October 3, 2003, the Circuit Court granted the appellant's motion to extend the time for filing an appeal to this Court. The appellant is currently incarcerated at the Mount Olive Correctional Complex in Mount Olive, West Virginia.

This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel. One of the assignments of error raised by the appellant concerns whether the Circuit Court committed error in not giving an instruction to the jury on voluntary manslaughter and in not including that option upon the verdict form. That assignment was of particular interest during the oral argument before this Court. Upon a thorough review, this Court concludes that the Circuit Court did not commit error in that regard. Nor does this Court find merit in the appellant's remaining assignments of error. Accordingly, the June 18, 2003, order of the Circuit Court denying the motions for an acquittal and for a new trial is affirmed.

I. Factual Background

In February 2002, the appellant, Harry David Leonard, age 54, was living with his mother, Geneva H. Leonard, a 78 year old widow, in her home in Millwood. The appellant, the father of an adult son from an earlier marriage, was unemployed. The appellant and Ms. Leonard, however, had not been getting along. Ms. Leonard frequently complained to the appellant about his unemployment and about his smoking and drinking in the home, and she often eavesdropped on his telephone conversations. According to the evidence of the State, the appellant told others prior to Ms. Leonard's death that he wanted to kill her and then commit suicide.¹

On February 26, 2002, at 12:43 p.m., the appellant placed a call from his mother's home to Anita Jo Butcher. Ms. Butcher, a married woman, had been having a sexual affair with the appellant. During the call, which lasted approximately 8 minutes, Butcher and the appellant became aware that Ms. Leonard was eavesdropping from another telephone located on an upper floor of the residence. Butcher heard the appellant shout at Ms. Leonard to get off the telephone. Soon after, Butcher heard the following (1) a click, suggesting that one of the telephones had been hung up, (2) Ms. Leonard stating, "He's tearing the house down," (3) a rumbling sound and (4) Ms. Leonard stating, "Oh, my Lord," at which point the call was terminated.² Alarmed by what she heard, Ms. Butcher telephoned her friend, Cheryl Hysell, and asked Hysell to call the police. In the meantime, Butcher made repeated attempts to call the Leonard home. Finally, according to Butcher, the appellant answered and said, "It's done" and hung up the phone.³

At 2:00 p.m., two officers from the Jackson County Sheriff's Department arrived at the Leonard home. Upon getting no response at the front door, the officers noticed that an automobile was in the adjoining garage with the motor running. The officers forced their way into the garage and discovered the appellant lying under the automobile with a plastic bag over his head and over the exhaust pipe. The appellant was pulled away and secured by one officer while the other entered the home. The latter officer discovered Ms. Leonard lying across the doorway of her bedroom on the upper floor of the residence. She was unresponsive. Soon after, a paramedic team arrived at the scene and, upon consulting with a physician by telephone, pronounced Ms. Leonard dead. The State Medical Examiner subsequently determined that Ms. Leonard died from manual strangulation.

II. Procedural Background

In June 2002, a Jackson County grand jury indicted the appellant for the murder of Geneva Leonard. W.Va.Code, 61-2-1 (1991). Trial began on March 17, 2003. The State asserted that the appellant, who had argued with Ms. Leonard the night before the homicide, reacted to the eavesdropping during his conversation with Ms. Butcher by hanging up the telephone in the room where he was talking, going up the steps to the bedroom area, killing Ms. Leonard and attempting to commit suicide, all of which he had previously indicated to others he was going to do.⁴

The appellant, on the other hand, asserted that he had no memory of the time between hanging up during his call to Butcher and the arrival of the two officers who found him in the garage. Thus, according to the appellant, he was attacked by an intruder in the home who also killed Ms. Leonard. In support of that assertion, the appellant argued that Ms. Leonard made a telephone call to Ms. Butcher's mother, Anna Cain, at 1:58 p.m. on the day in question, thereby demonstrating, contrary to the theory of the State, that Ms. Leonard was not killed during the 8 minute, 12:43 p.m. call between the appellant and Butcher.

At the conclusion of the trial, the Circuit Court instructed the jury that they could return one of the following verdicts: (1) guilty of murder of the first degree with no recommendation of mercy, (2) guilty of murder of the first degree with a recommendation of mercy, (3) guilty of murder of the second degree or (4) not guilty. The jury found the appellant guilty of murder of the first degree with no recommendation of mercy.⁵ Accordingly, the Circuit Court sentenced the appellant to the penitentiary for life with no possibility of parole. Pursuant to the order of June 18, 2003, the appellant's motions for an acquittal and for a new trial were denied.

III. Discussion

As stated above, the appellant contends that the Circuit Court committed error in not giving an instruction to the jury on voluntary manslaughter and in not including that option upon the verdict form. With regard to instructing the jury, the general standard of review, as set forth in Vol. 2, F.D. Cleckley, Handbook on West Virginia Criminal Procedure 2d, p. 216 (Michie — 1993), is that jury instructions are reviewed to determine if they are supported by the evidence and are a correct statement of the law. Accordingly, this Court has indicated that, while the giving or refusing of a particular instruction is subject to an abuse of discretion standard, the question of whether the jury was thus properly instructed "is a question of law, and the review is de novo." Syl. pt. 1, State v. Brooks, 214 W.Va. 562, 591 S.E.2d 120 (2003); syl. pt. 2, State v. Blankenship, 208 W.Va. 612, 542 S.E.2d 433 (2000).

According to the appellant, the justification for an instruction on voluntary manslaughter was provided by the testimony of Anita Jo Butcher who indicated to the jury that, during the 12:43 p.m. telephone call, the appellant became enraged upon discovering that his mother was eavesdropping and that, immediately thereafter, Butcher heard sounds leading her to conclude that the police should be notified. That assignment of error, however, is deprived of significance in view of the appellant's assertion during the trial that Ms. Leonard was killed by an intruder in the home. Moreover, as discussed below, the appellant told the Circuit Court that he did not want the jury to be instructed on voluntary manslaughter.

At the close of the evidence at trial, counsel for the appellant informed the Circuit Court that the appellant declined the inclusion in the charge of an instruction on voluntary manslaughter and, instead, wanted the jury to be instructed solely upon murder of the first degree and not guilty. Inasmuch as that request was against the advice of counsel, the Circuit Court explained the elements of murder of the first degree, murder of the second degree and voluntary manslaughter to the appellant and provided him with an opportunity to again confer with counsel. Upon so conferring, however, the appellant did not change his position. Thereafter, at the State's request, the Circuit Court added the option of murder of the second degree. In doing so, the Circuit Court made the following comment: "The Court finds that there is no evidence that would support a jury verdict on voluntary manslaughter [.]" Thus, the jury was instructed that they could return one of the following verdicts: (1) guilty of murder of the first degree with no recommendation of mercy, (2) guilty of murder of the first degree with a recommendation of mercy, (3) guilty of murder of the second degree or (4) not guilty.

In State v. Sapp, 207 W.Va. 606, 535 S.E.2d 205, cert. denied, 531 U.S. 1020, 121 S.Ct. 585, 148 L.Ed.2d 501 (2000), the defendant was convicted of murder of the first degree arising from an incident wherein the defendant, angered over the ineffectiveness of an illegal drug, unexpectedly struck the victim, Randy Nestor, with a blunt object. Upon appeal, the defendant asserted that the trial...