State v. McFarland

• Citation: 175 W.Va. 205,332 S.E.2d 217
• Decision Date: 18 June 1985
• Docket Number: No. 16011,16011
• Court: Supreme Court of West Virginia
• Parties: STATE of West Virginia v. John Patrick McFARLAND.

Page 217

332 S.E.2d 217

175 W.Va. 205

STATE of West Virginia v. John Patrick McFARLAND.

No. 16011.

Supreme Court of Appeals of

West Virginia.

Submitted Jan. 29, 1985.

Decided June 18, 1985.

Syllabus by the Court

1. Even though a majority of individuals surveyed in a county where a prosecution is pending, by way of a questionnaire, indicate that, based upon what they have heard or read, there is existing hostile sentiment in that county but that the defendant would receive a fair trial in that county, before a change of venue shall be granted the circuit court must be satisfied that there exists in the county where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial. See W.Va.R.Crim.P. 21(a).

2. " ' "To warrant a change of venue in a criminal case, there must be a showing of good cause therefor, the burden of which rests on the defendant, the only person, who, in any such case, is entitled to a change of venue. The good cause aforesaid must exist at the time application for a change of venue is made. Whether, on the showing made, a change of venue will be ordered rests in the sound discretion of the trial court; and its ruling thereon will not be disturbed, unless it clearly appears that the discretion aforesaid has been abused." Point 2, syllabus, State v. Wooldridge, 129 W.Va. 448, 40 S.E.2d 899 (1946).' Syllabus Point 1, State v. Sette, W.Va. , 242 S.E.2d 464 (1978)." Syl. pt. 1, State v. Zaccagnini, 172 W.Va. 491, 308 S.E.2d 131 (1983).

3. "It is an abuse of discretion and reversible error for a trial judge, in the exercise of his discretionary control over the scope of inquiry during voir dire, to so limit the questioning of potential jurors as to infringe upon a litigant's ability to determine whether the jurors are free from interest, bias or prejudice, or to effectively hinder the exercise of peremptory challenges." Syl. pt. 5, State v. Peacher, 167 W.Va. 540, 280 S.E.2d 559 (1981).

4. It is within the sound discretion of the trial court to reject the proposed voir dire questions of a criminal defendant when the questions are substantially covered by others which are used. See State v. Simmons, 172 W.Va. 590, 601, 309 S.E.2d 89, 100 (1983); W.Va.R.Crim.P. 24(a).

5. "A defendant charged with murder of the first degree is entitled to question potential jurors on voir dire to determine whether any of them are unalterably opposed to making a recommendation of mercy in any circumstances in which a verdict of guilt is returned." Syl. pt. 7, State v. Williams, 172 W.Va. 295, 305 S.E.2d 251 (1983).

6. A criminal defendant is not entitled as a matter of right, under syl. pt. 7, State v. Williams, 172 W.Va. 295, 305 S.E.2d 251 (1983), to question potential jurors on voir dire to determine their views on the various theories underlying incarceration, namely, rehabilitation, punishment and deterrence. It is within the discretion of the trial court whether such a question may be asked on voir dire to enable the defendant to exercise more informed judgment in utilizing his peremptory challenges.

7. "If it appears that a defendant or the state is prejudiced by a joinder of offenses in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of the counts or provide whatever other relief justice requires." W.Va.R.Crim.P. 14(a).

8. A noninculpatory statement made spontaneously by a criminal defendant in response to the greeting or salutation of a law enforcement officer does not result from an "interrogation" under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and such a spontaneous statement is admissible without an in camera hearing on its voluntariness.

9. "In a trial for murder where the defendant raises insanity as the sole defense, the court upon request should conduct an in camera hearing to determine whether incriminating statements made by the defendant to a third party while in a hospital emergency room shortly after committing the homicide, attempting suicide, and having been diagnosed by the attending staff psychiatrist as 'suicidally depressed and mentally ill,' were voluntary and admissible into evidence." Syl. pt. 2, State v. Sanders, 161 W.Va. 399, 242 S.E.2d 554 (1978), overruled in part on other grounds, State ex rel. White v. Mohn, 168 W.Va. 211, 283 S.E.2d 914 (1981).

10. " 'Opinion evidence of competent experts may be properly called for when the questions presented are of such a nature that persons generally would not be as competent to pass judgment thereon as such experts.' Syllabus Point 5, Norfolk & Western Railway Co. v. Christian, 83 W.Va. 701, 99 S.E. 13 (1919)." Syl. pt. 1, State v. Mitter, 168 W.Va. 531, 285 S.E.2d 376 (1981).

11. "This Court will not consider an error which is not preserved in the record nor apparent on the face of the record." Syl. pt. 6, State v. Byers, 159 W.Va. 596, 224 S.E.2d 726 (1976).

12. "Where improper evidence of a nonconstitutional nature is introduced by the State in a criminal trial, the test to determine if the error is harmless is: (1) the inadmissible evidence must be removed from the State's case and a determination made as to whether the remaining evidence is sufficient to convince impartial minds of the defendant's guilt beyond a reasonable doubt; (2) if the remaining evidence is found to be insufficient, the error is not harmless; (3) if the remaining evidence is sufficient to support the conviction, an analysis must then be made to determine whether the error had any prejudicial effect on the jury." Syl. pt. 2, State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1081, 63 L.Ed.2d 320 (1980).

13. "After a witness other than the defendant has testified on direct examination, the court, on motion of a party who did not call the witness, shall order the attorney for the state or the defendant and his attorney, as the case may be, to produce for the examination and use of the moving party any statement of the witness that is in their possession that relates to the subject matter concerning which the witness had testified." W.Va.R.Crim.P. 26.2(a).

14. A witness' notes which are abstracts from reports in the possession of a defendant in a criminal case do not constitute a "statement" as defined in W.Va.R.Crim.P. 26.2(f).

Steven M. Askin, Askin, Pill, Scales & Burke, Martinsburg, for appellant.

S. Clark Woodroe, Asst. Atty. Gen., Charleston, for appellee.

McHUGH, Justice:

This action is before this Court upon the appeal of John Patrick McFarland, the appellant and defendant below, from convictions in the Circuit Court of Hardy County, West Virginia, for first degree murder without a recommendation of mercy, first degree sexual assault and attempted first degree murder. Pursuant to such convictions the appellant was sentenced to life imprisonment without a possibility of parole, not less than ten nor more than twenty years, and not less than one nor more than five years, respectively. The circuit court further ordered that such sentences shall be served consecutively and not concurrently.

I

Because of the length and nature of certain assignments of error, some facts should be initially detailed in depth. In the early morning hours of April 26, 1982, neighbors of the appellant saw a woman running across the street toward their house. One of these neighbors testified that this woman, Maria, the appellant's stepdaughter, arrived at the neighbors' front door covered with blood and screaming hysterically. The woman was dressed in only a pair of socks. The neighbors laid the woman on their couch and called the local sheriff's department and rescue squad.

Members of the rescue squad arrived at the scene at approximately 1:00 a.m. A number of the rescue squad members testified that upon their arrival they saw a car hastily leaving the appellant's residence. The appellant's stepdaughter was treated at the neighbors' house and transported to a local hospital where she had surgery to repair her wounds.

Local police officers arrived on the scene and searched the appellant's house. They discovered the appellant's son, John Wayne McFarland, dead on the living room floor. A further search of the house uncovered large amounts of blood, particularly in a back bedroom of the house. The appellant was not found in the area.

In addition to the presence of various bruises, cuts, scrapes, and abrasions, the autopsy of the appellant's son revealed the cause of death to be four stab wounds, including a wound through the right ventricle of the heart which further severed the pulmonary artery and vein. A knife was found remaining in one of the stab wounds.

At approximately 6:45 a.m. on the morning of April 26, 1982, the police and rescue squad of Staunton, Virginia received a call that a blood-covered man had pulled into a service station in that city. The appellant, who was initially nonresponsive to questions from authorities, was taken to a local hospital for treatment. Examination at the service station revealed that the appellant had two lacerations on each wrist and two lacerations in his abdominal area.

The appellant was placed under arrest while receiving treatment at the hospital when local police authorities learned of a fugitive warrant issued against him in the State of West Virginia. The appellant waived extradition proceedings and was returned to this State on April 27, 1982, the day after the crimes occurred. The Hardy County Grand Jury indicted the appellant for first degree murder, first degree sexual assault and attempted first degree murder.

At trial, the State's chief witness was Maria, the appellant's 16 year-old stepdaughter. She testified that on the morning of Sunday, April 25, 1982, the appellant, the stepdaughter Maria, and the appellant's son went to Virginia so that the appellant could talk to his wife. The appellant's wife had...