State v. McClanahan, 22224
| Decision Date | 15 December 1994 |
| Docket Number | No. 22224,22224 |
| Citation | 454 S.E.2d 115,193 W.Va. 70 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia, Plaintiff Below, Appellee, v. Angela C. McCLANAHAN, Defendant Below, Appellant. |
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. Syllabus point 2, State v. Johnson, 187 W.Va. 360, 419 S.E.2d 300 (1992).
Jacquelyn I. Custer, Asst. Atty. Gen., Charleston, for appellee.
Lonnie C. Simmons, DiTrapano & Jackson, Charleston, for appellant.
The Circuit Court of Pendleton County sentenced the defendant in this proceeding, Angela C. McClanahan, to from one-to-five years in the State penitentiary for unlawfully wounding her husband by shooting him with a pistol. On appeal, the defendant claims that the undisputed evidence shows that she acted in self-defense and that, under the circumstances, the State's evidence was insufficient to support the verdict. She also contends that the trial court erred in instructing the jury on the effect of its being a hung jury. Lastly, she claims that the trial court erred in allowing the State to present a special interrogatory to the jury on the use of a firearm, when written notice of the State's decision to raise that question was faxed only the day before trial and was actually filed in the clerk's office on the day of trial.
After reviewing the questions presented and the documents filed, this Court finds that the defendant's first two assignments of error are without merit. The Court does find, however, that the notice of the State's intent to enhance the defendant's sentence for use of a firearm was not timely given. The jury's verdict of guilty is, therefore, affirmed, but the jury's finding that the crime was committed by the use of a firearm is set aside, and the defendant is remanded for sentencing as if she had not used a firearm in the commission of the crime charged.
The evidence adduced during the trial of this case shows that the defendant and her husband, Steven McClanahan, developed marital problems, and that after 1990 the defendant's husband, while drinking, spoke abusively to her, threatened to kill her, and actually did, on occasion, beat and strike her.
On October 9, 1992, an individual named Jessie Losh told the defendant's husband that the defendant had been involved with another man. Later that day, the defendant's husband became involved in an argument with the defendant and grabbed her by the shirt. He wanted her to accompany him to the location where she had allegedly been observed with her reputed lover. As the argument progressed, the defendant made a number of trips from the parties' house to her car to carry in groceries. At one point, when the defendant reentered the house and started to go upstairs, her husband began to accompany her. She then told her husband:
Steve, I'm going to change clothes; I'm going to the bathroom; go outside and leave--just leave me alone.
At that point the defendant's husband went outside and positioned himself on the parties' porch.
While the defendant was upstairs in her bedroom, she armed herself with a .38 caliber handgun for which she had recently purchased ammunition. She then went downstairs and positioned herself in the doorway of the parties' house. According to her husband, as he prepared to reenter the house, the defendant said, "get away from me," and shot him. The bullet from the pistol penetrated a part of the defendant's husband's heart, a corner of his stomach, and his pancreas.
The defendant's husband was subsequently hospitalized for his injuries, and in the course of his hospitalization his spleen was removed. As a result of the events, the defendant was indicted for unlawful wounding.
During the defendant's trial, the defendant's husband, Steven McClanahan, who had apparently become reconciled with the defendant, testified that he had been abusive to the defendant, and he also testified that, after reflecting on the events that led up to the shooting, he believed that the defendant was justified in shooting him. He stated,
On cross-examination the defendant's husband admitted that he didn't rush through the door immediately before the shooting. Instead, he said, "I was coming normal...." When he said that he wanted the defendant to go "where they said you was seen," the defendant "throwed up and shot."
During trial, the defendant called as a witness, Thomas C. Stein, a licensed psychologist who had met with the defendant on three occasions. Dr. Stein testified that, in his opinion, the defendant demonstrated the characteristics of a person suffering from the battered wife syndrome. 1
In the present appeal, the defendant claims that her evidence of self-defense was not rebutted by the State and that, under the law, the failure of the State to rebut her evidence beyond a reasonable doubt renders her conviction unsustainable.
In the early case of State v. Cain, 20 W.Va. 679 (1882), this Court discussed the circumstances under which self-defense could be established in a criminal case. In syllabus point 7, the Court summarized its conclusions as follows:
When one without fault himself is attacked by another in such a manner or under such circumstances as to furnish reasonable grounds for apprehending a design to take away his life, or to do him some great bodily harm, and there is reasonable grounds for believing the danger imminent, that such design will be accomplished, and the person assaulted has reasonable ground to believe, and does believe, such danger is imminent, he may act upon such appearances and without retreating, kill his assailant, if he has reasonable grounds to believe, and does believe, that such killing is necessary in order to avoid the apparent danger; and the killing under such circumstances is excusable, although it may afterwards turn out, that the appearances were false, and that there was in fact neither design to do him some serious injury nor danger, that it would be done. But of all this the jury must judge from all the evidence and circumstances of the case.
This rule has consistently been accepted in many later West Virginia cases. See, State v. Milam, 142 W.Va. 98, 94 S.E.2d 442 (1956); State v. Zannino, 129 W.Va. 775, 41 S.E.2d 641 (1947); State v. Ponce, 124 W.Va. 126, 19 S.E.2d 221 (1942); State v. McCallister, 111 W.Va. 440, 162 S.E. 484 (1932); and State v. Stockton, 97 W.Va. 46, 124 S.E. 509 (1924). Further, in note 8 of State v. Kirtley, 162 W.Va. 249, 252 S.E.2d 374 (1978), this Court quoted with approval a pattern federal instruction which essentially incorporated the elements of the Cain definition of self-defense. 2
The Court has further pointed out that an apprehension of harm, to support a claim of self-defense, must be an apprehension existing at the time of the defendant's attack on the victim. As stated in syllabus point 6 of State v. McMillion, 104 W.Va. 1, 138 S.E. 732 (1927):
... No apprehension of danger previously entertained will justify the commission of the homicide; it must be an apprehension existing at the time the defendant fired the fatal shot.
In State v. Kirtley, supra, the Court discussed at some length the burden of proof where self-defense is raised. The Court said:
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.
Syl. pt. 4, State v. Kirtley, supra.
The defendant has apparently construed the Kirtley rule as holding that where a defendant has reasonably raised the issue of self-defense, the State has an affirmative burden of advancing rebuttal evidence to rebut the defendant's evidence, and she is apparently taking the position that because the State did not adduce rebuttal evidence, her conviction cannot stand.
Legally there is a distinction between proof and evidence, and, for this reason, the Court disagrees with the defendant's claim that the State is under a burden to adduce rebuttal evidence. As is stated in 1 F. Cleckley, Handbook on Evidence for West Virginia Lawyers § 1-2(B) (1994):
Proof is all of the evidence before the trier of fact relevant to a fact in issue which tends to establish the existence or nonexistence of such fact. While evidence is defined as information received, proof is the persuasion produced by a consideration of the evidence, i.e., the effect of evidence.
The real thrust of the holding in State v. Kirtley, supra, is that the overall evidence adduced, when viewed in the light most favorable to the State, must be sufficient to persuade a jury beyond a reasonable doubt that the defendant did not act in self-defense. See, State v. W.J.B., 166 W.Va. 602, 276 S.E.2d 550 (1981). The State's burden is one of proof and not one of the introduction of formal rebuttal evidence.
In this Court's view, the State in the present case presented evidence suggesting that the defendant did not act under an apprehension of danger existing at the time she shot her husband, but rather as the result of some pre-existing...
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