State v. Mayo, 21760

• Decision Date: 25 March 1994
• Docket Number: No. 21760,21760
• Citation: 191 W.Va. 79,443 S.E.2d 236
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. William Ulysses MAYO, Jr., Defendant Below, Appellant.

Page 236

443 S.E.2d 236

191 W.Va. 79

STATE of West Virginia, Plaintiff Below, Appellee, v. William Ulysses MAYO, Jr., Defendant Below, Appellant.

No. 21760.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 19, 1994.

Decided March 25, 1994.

Syllabus by the Court

1. " ' "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)." Syllabus Point 9, State v. Fortner, 182 W.Va. 345, 387 S.E.2d 812 (1989).

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 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." Syllabus Point 4, State v. Frazier, 162 W.Va. 602, 252 S.E.2d 39 (1979).

4. "In order to constitute the crime of attempt, two requirements must be met: (1) a specific intent to commit the underlying substantive crime; and (2) an overt act toward the commission of that crime, which falls short of completing the underlying crime." Syllabus Point 2, State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978).

5. "In a criminal prosecution, it is constitutional error to give an instruction which supplies by presumption any material element of the crime charged." Syllabus, State v. O'Connell, 163 W.Va. 366, 256 S.E.2d 429 (1979).

6. "The plain error doctrine contained in Rule 30 and Rule 52(b) of the West Virginia Rules of Criminal Procedure is identical. It enables this Court to take notice of error, including instructional error occurring during the proceedings, even though such error was not brought to the attention of the trial court. However, the doctrine is to be used sparingly and only in those circumstances where substantial rights are affected, or the truth-finding process is substantially impaired, or a miscarriage of justice would otherwise result." Syllabus Point 4, State v. England, 180 W.Va. 342, 376 S.E.2d 548 (1988).

7. " 'Failure to observe a constitutional right constitutes reversible error unless it can be shown that the error was harmless beyond a reasonable doubt.' Syllabus point 5, State ex rel. Grob v. Blair, W.Va. , 214 S.E.2d 330 (1975)." Syllabus Point 5, State v. Boyd, 160 W.Va. 234, 233 S.E.2d 710 (1977).

Stephen R. VanCamp, Asst. Atty. Gen., Charleston, for appellee.

Thomas W. Smith, Smith & Curnutte, Charleston, for appellant.

MILLER, Justice:

This appeal is brought by the appellant and defendant below, William Ulysses Mayo, Jr., from his conviction in the Circuit Court of Fayette County, of second degree murder, attempted second degree murder, and unlawful wounding. The defendant contends that there was insufficient evidence to support his convictions as an aider and abettor to second degree murder and unlawful wounding. He also alleges that the jury instruction unconstitutionally relieved the State of proving an essential element of attempted murder. We agree and reverse the judgment of the circuit court.

I.

The evidence shows that on July 6, 1991, Brian Berry went to W.D. Tire Sales in Mount Hope, West Virginia, to get the oil checked in his motorcycle. Mr. Berry was a regular customer of the store. He knew Jesse Rhodes, the owner of the store, and Dickie Rhodes, Jesse's father who helped with the business. While at the store, Mr. Berry and Dickie Rhodes had a heated argument over an overdue bill. Mr. Berry told Dickie Rhodes that he would go to his apartment and come back with the money.

Mr. Berry went to the Stadium Terrace apartments. He told his stepfather, Robert Kirkland, that Dickie Rhodes "jumped" him over a $103 bill. The two men decided to go see what they could work out. Mr. Berry went to the defendant's apartment and yelled for him to join them. Mr. Berry told the defendant to get his gun. The defendant retrieved his gun and joined them.

Meanwhile, Jesse Rhodes had left the store and was driving by the apartment. He saw the men get into Mr. Kirkland's car. Concerned about the previous argument, he drove back to the store to warn his father that he saw someone climb into the car with a gun.

When they arrived at the store, Mr. Berry, Mr. Kirkland, and the defendant got out of the car. Dickie Rhodes came out with a baseball bat and told them to get back into the car. The defendant climbed in the back seat, and Mr. Berry sat in the front passenger's seat of the car. Mr. Kirkland went into the office to speak to Dickie Rhodes about the bill. Witnesses testified that Mr. Kirkland acted as a peacemaker. Mr. Kirkland assured Dickie Rhodes that the bill would be paid, and the conflict was resolved.

Mr. Kirkland went back to his car. Dickie Rhodes followed him out into the parking lot. Mr. Berry yelled from the passenger's side of the car "I ain't going to pay you, you white son of a bitch." Dickie Rhodes reached inside the car and hit Mr. Berry. Mr. Kirkland started to back the car up as the two men exchanged blows. Mr. Berry pulled out a pistol and shot Dickie Rhodes in the chest. The bullet went through Dickie Rhodes, fatally injuring him, and lodged in Jesse Rhodes' leg. Mr. Kirkland drove the car from the scene.

Jesse Rhodes chased the Kirkland car in his pickup truck. During this high speed chase, he rammed the car several times. He testified that he did this to prevent the men from escaping. Four or five shots were fired at Jesse Rhodes from the Kirkland car. One bullet was later recovered from the truck's radiator.

Jesse Rhodes pushed the car into a guard rail at the Mount Hope Bypass. The defendant, Mr. Berry, and Mr. Kirkland ran from the car. Jesse Rhodes drove back to the tire store. All the occupants of the Kirkland car turned themselves in to the authorities the following day. The defendant was charged with aiding and abetting the murder of Dickie Rhodes and the unlawful wounding and attempted murder of Jesse Rhodes.

On November 27, 1991, the jury found the defendant guilty of second degree murder, attempted second degree murder, and unlawful wounding. The circuit court denied the defendant's motion for a new trial. This appeal ensued.

II.

The defendant first contends that the State failed to present any evidence that he aided and abetted Mr. Berry in firing the shot that killed Dickie Rhodes and wounded Jesse Rhodes. The defendant asserts that the State only put forth evidence that he was present in the car when the shooting took place.

In State v. Fortner, 182 W.Va. 345, 355, 387 S.E.2d 812, 822 (1989), we discussed the basic distinction between a principal in the second degree, who is often called an aider and abettor, and an accessory before the fact: "Thus, the chief difference between a principal in the second degree and an accessory before the fact is that the former is actually or constructively present at the time and place of the commission of the offense, while the latter is absent." (Citations omitted).

We went on in Fortner to outline the type of activities that could make one an aider and abettor:

"To be convicted as an aider and abettor, the law requires that the accused 'in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seeks by his action to make it succeed.' United States v. Peoni, 100 F.2d 401, 402 (2d Cir.1938), quoted with approval in Nye & Nissen v. United States, 336 U.S. 613, 619 69 S.Ct. 766, 770, 93 L.Ed. 919, 925 (1949), and State v. Harper, 179 W.Va. 24, 28, 365 S.E.2d 69, 73 (1987). The State must demonstrate that the defendant 'shared the criminal intent of the principal in the first degree.' State v. Harper, 179 W.Va. at 29, 365 S.E.2d at 74. (Citations omitted). In this regard, the accused is not required to have intended the particular crime committed by the perpetrator, but only to have knowingly intended to assist, encourage, or facilitate the design of the criminal actor. State v. Harper, supra; State v. West, 153 W.Va. 325, 168 S.E.2d 716 (1969)." 182 W.Va. at 356, 387 S.E.2d at 823.

Finally, in Fortner, we recognized that "mere presence at the scene of the crime, even with knowledge of the criminal purpose of the principal in the first degree, is not, alone, sufficient to make the accused guilty as a principal in the second degree[.]" 182 W.Va. at 356, 387 S.E.2d at 823. We concluded in Syllabus Point 9 of Fortner:

" ' "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)."

With these legal principles in mind, we test the sufficiency of the evidence to support a criminal conviction by our traditional rule set out in Syllabus Point 1 of State v. Starkey, 161 W.Va. 517, 244...