State v. Matney

• Decision Date: 11 July 1986
• Docket Number: No. 16667,16667
• Citation: 346 S.E.2d 818,176 W.Va. 667
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. James D. MATNEY.

Page 818

346 S.E.2d 818

176 W.Va. 667

STATE of West Virginia v. James D. MATNEY.

No. 16667.

Supreme Court of Appeals of

West Virginia.

July 11, 1986.

Syllabus by the Court

1. "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." Syllabus Point 4, State v. Kirtley, 162 W.Va. 249, 252 S.E.2d 374 (1978).

2. "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." Syllabus Point 1, State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978).

3. " ' "The true test as to whether a juror is qualified to serve on the panel is whether without bias or prejudice he can render a verdict solely on the evidence under the instructions of the court." Syllabus Point 1, State v. Kilpatrick, , 210 S.E.2d 480 (1974).' Syllabus Point 3, State v. Beck, 167 W.Va. 830, 286 S.E.2d 234 (1981)." Syllabus Point 7, State v. Neider, 170 W.Va. 662, 295 S.E.2d 902 (1982).

4. " 'In order that one who has formed or expressed an opinion as to the guilt or innocence of the accused may be accepted as a competent juror on such panel, his mind must be in condition to enable him to say on his voir dire, unequivocally and without hesitation, that such opinion will not affect his judgment in arriving at a just verdict from the evidence alone submitted to the jury on the trial of the case.' Point 3, Syllabus, State v. Johnson, et al., 49 W.Va. 684 [39 S.E. 665 (1901).]" Syllabus Point 2, State v. Gargiliana, 138 W.Va. 376, 76 S.E.2d 265 (1953).

H. Truman Chafin, Williamson, for appellant.

Mary Beth Kershner, Asst. Atty. Gen., Charleston, for appellee.

PER CURIAM:

This is an appeal by James D. Matney from the final order of the Circuit Court of Mingo County, adjudging him guilty of the offense of second degree murder and sentencing him to an indeterminate term of not less than five nor more than eighteen years in the State penitentiary. We affirm.

During the early morning hours of June 3, 1982, the defendant entered the Blue Moon Tavern at Baisden, Mingo County. Shortly thereafter, the decedent, Ermel Lester, entered the tavern and began swinging a "pipe" or tube-like instrument at the defendant. The only eyewitness testified that the defendant backed against a wall and told the decedent not to come any closer. The defendant then pulled a .22 caliber revolver from his pocket, shot the decedent five times, and left the tavern.

Although one prosecution witness, who was in the bathroom at the tavern when the fatal shots were fired, testified the shots were fired quickly and consecutively, the only eyewitness testified that there was an interval of several seconds between the first three shots and the last two shots and that the last two shots were fired while the victim was lying on the floor. The eyewitness also stated that he urged the defendant not to shoot the victim any more, but the defendant nonetheless fired two final rounds while cursing the decedent.

Further prosecution evidence at trial showed that on the night before the shooting, the defendant spoke to a friend about an earlier fight he had had with the decedent and said, "If I have another run in with him, I will kill him."

At the time of his apprehension, a .22 caliber revolver was turned over to the authorities which was later determined to have been the weapon used to kill the decedent. The defendant was placed under arrest, handcuffed, given his Miranda warnings, and placed in a police cruiser. One of the deputy sheriffs who arrested the defendant testified that despite the Miranda warnings, the defendant began to talk incessantly and made statements wherein he cursed the decedent, expressed satisfaction at having killed the decedent, and repeatedly indicated he should have killed the decedent two years ago.

This deputy sheriff further testified that the defendant claimed the decedent had hit him with a piece of pipe. However, upon examination at the Mingo County jail, there were no marks or bruises of any kind on the defendant's body. The defense evidence included testimony that the decedent had previously communicated a threat to a third person that he would kill the defendant and that the decedent was a quarrelsome person who would start fights from time to time. However, there was no evidence that he had ever seriously hurt anyone.

An Assistant State Medical Examiner testified that he found five gunshot wounds to the decedent's body, two of which were to the chest. The gunshot wounds to the chest would have been fatal wounds. The Examiner testified that one of the fatal gunshot wounds to the chest and one of the nonfatal gunshot wounds to the head were probably inflicted while the decedent was lying on the floor with the defendant standing over him.

On appeal, the defendant cites three main errors on the part of the trial court, the first two of which are closely related and will be discussed together. First, the defendant asserts that the trial court committed reversible error by instructing the jury on both first and second degree murder without a showing of malice on the part of the defendant because the evidence established as a matter of law that the defendant had acted in the heat of passion under great provocation. Second, he contends the evidence adduced at trial was insufficient to prove beyond a reasonable doubt that the defendant did not act in self-defense. We disagree with both contentions.

We discussed at some length the elements of murder and the meaning of the common law term "malice" in State v. Hatfield, 169 W.Va. 191, 286 S.E.2d 402 (1982), and State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978). See also State v. Clayton, 166 W.Va. 782, 277 S.E.2d 619 (1981). Malice, express or implied, as the defendant correctly observes, is an essential element of both first and second degree murder. Here, however, the defendant's admissions prior to, contemporaneously with, and subsequent to the shooting constituted substantial evidence of malice. This evidence concerning the defendant's intent was strengthened by other factual circumstances, including the eyewitness testimony that the defendant, after some delay, shot the decedent twice while he was lying on the floor at the defendant's feet, despite the plea of the eyewitness. This version of the shooting was corroborated by the medical testimony. The evidence was plainly sufficient as to both premeditation and the intent to kill to justify the trial court in instructing the jury on first and second degree murder.

This case bears some similarity to State v. Clark, 175 W.Va. 58, 62, 331 S.E.2d 496, 500 (1985), where we stated that "a person is not justified in shooting or employing a deadly weapon after the adversary has been disarmed or disabled. People v. McBride, 130 Ill.App.2d 201, 264 N.E.2d 446 (1970); 40 C.J.S. Homicide § 131(b) (1944)." As was stated in Syllabus Point 5, in part, of State v. Clifford, 59 W.Va. 1, 52 S.E. 981 (1906): "On the trial of an indictment for murder, it is not error to give instructions ... [on] murder of the first and second degrees ... if there is any evidence tending, in any appreciable degree, to prove such offense."

The defendant also is correct in stating that under Syllabus Point 4 of State v. Kirtley, 162 W.Va. 249, 252 S.E.2d 374 (1978):

"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."

The evidence in this case did raise a jury question as to whether the defendant acted in self-defense. It did not, however, establish that the defendant acted in self-defense as a matter of law. Having concluded that the trial court on the evidence presented did not err in instructing the jury on both degrees of murder, we have no difficulty in also deciding that the evidence was such that a rational jury could have found beyond a reasonable doubt that the killing...