State v. McKenzie

• Decision Date: 18 July 1996
• Docket Number: No. 22976,22976
• Citation: 475 S.E.2d 521,197 W.Va. 429
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Timothy Mark McKENZIE, Defendant Below, Appellant.

Page 521

475 S.E.2d 521

197 W.Va. 429

STATE of West Virginia, Plaintiff Below, Appellee, v. Timothy Mark McKENZIE, Defendant Below, Appellant.

No. 22976.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 16, 1996.

Decided July 18, 1996.

Syllabus by the Court

1. "To the extent that any of our prior cases could be read to allow a defendant to invoke his Miranda rights outside the context of custodial interrogation, the decisions are no longer of precedential value." Syllabus point 3, State v. Bradshaw, 193 W.Va. 519, 457 S.E.2d 456 (1995).

2. " ' "The delay in taking a defendant to a magistrate may be a critical factor [in the totality of circumstances making a confession involuntary and hence inadmissible] where it appears that the primary purpose of the delay was to obtain a confession from the defendant." Syllabus Point 6, State v. Persinger, , 286 S.E.2d 261 (1982), as amended.' Syllabus Point 1, State v. Guthrie, , 315 S.E.2d 397 (1984)." Syllabus point 1, State v. Humphrey, 177 W.Va. 264, 351 S.E.2d 613 (1986).

3. "Any physician qualified as an expert may give an opinion about physical and medical cause of injury or death. This opinion may be based in part on an autopsy report." Syl. pt. 5, State v. Jackson, 171 W.Va. 329, 298 S.E.2d 866 (1982).

4. "If a court, in a murder prosecution, has power to order the body of the deceased to be disinterred, for examination for evidential purposes, it is only when to do so is plainly necessary and essential to the justice and fairness of trial, and is a matter in the discretion of the court, and its refusal to make such order is, as a rule, not reviewable as cause for reversal." Syllabus point 1, State v. Highland, 71 W.Va. 87, 76 S.E. 140 (1912).

5. "Jury instructions are reviewed by determining whether the charge, reviewed as a whole, sufficiently instructed the jury so they understood the issues involved and were not misled by the law. A jury instruction cannot be dissected on appeal; instead, the entire instruction is looked at when determining its accuracy. The trial court, therefore, has broad discretion in formulating its charge to the jury, so long as it accurately reflects the law. Deference is given to the circuit court's discretion concerning the specific wording of the instruction, and the precise extent and character of any specific instruction will be reviewed for an abuse of discretion." Syllabus point 15, State v. Bradshaw, 193 W.Va. 519, 457 S.E.2d 456 (1995).

6. "A trial court's refusal to give a requested instruction is reversible error only if: (1) the instruction is a correct statement of the law; (2) it is not substantially covered in the charge actually given to the jury; and (3) it concerns an important point in the trial so that the failure to give it seriously impairs a defendant's ability to effectively present a given defense." Syllabus point 11, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994).

7. "The question as to which witnesses may be exempt from a sequestration of witnesses ordered by the court lies within the discretion of the trial court, and unless the trial court acts arbitrarily to the prejudice of the rights of the defendant the exercise of such discretion will not be disturbed on appeal." Syllabus point 4 of State v. Wilson, 157 W.Va. 1036, 207 S.E.2d 174 (1974).

8. "The rule with regard to excluding police officers from a sequestration of witnesses is that it is not error to do so if the testimony of such police officers is not crucial to the state's case and not prejudicial to the defendant." Syllabus point 6, State v. Wilson, 157 W.Va. 1036, 207 S.E.2d 174 (1974).

Victor S. Woods, Assistant Attorney General, Charleston, for Appellee.

Harold M. Sklar, Steven R. Bratke, McNeer, Highland & McMunn, Clarksburg, for Appellant.

PER CURIAM:

The appellant, Timothy Mark McKenzie, was tried for, and convicted of, second degree murder in the Circuit Court of Wood County, ¹ Judge Jeffrey Reed presiding, for the death of Stephanie Cain. Appellant was sentenced to from five-to-eighteen years in the State penitentiary and now appeals his conviction, making fourteen assignments of twenty-one errors. After an exhaustive review, we find that no prejudicial error was committed below and affirm the conviction.

FACTS

From the record it appears that the appellant, then seventeen, met Stephanie Cain, then fifteen, in early 1990. At the time, appellant lived with his mother in her apartment in Nutter Fort, West Virginia, while Ms. Cain resided at her grandmother's house in Stonewood, West Virginia, approximately one-half mile from the McKenzie residence.

Appellant and Ms. Cain dated for some months, and Ms. Cain became pregnant. During the pregnancy, the couple ceased to date each other then had a brief reconciliation shortly before their daughter was born January 21, 1991. During the month following the baby's birth, the couple and their baby resided with appellant's mother in her apartment. Thereafter, the couple separated, apparently due to antagonism between appellant's mother and Ms. Cain, and Ms. Cain returned with the baby to her grandmother's house. About a month later, on March 30, 1991, appellant was injured in an automobile accident, after which the couple ceased dating.

It appears that certain members of Ms. Cain's family had a history of violent behavior and that appellant feared for his safety after the separation. Appellant also claimed that at least one member of the Cain family directly threatened appellant and that Ms. Cain exhibited violent behavior on several occasions and sometimes physically abused appellant. He also claimed that Ms. Cain emotionally abused appellant by questioning the paternity of their daughter and by threatening him with denial of visitation with the child or conditioning such visitation on appellant not having a relationship with any other female. There also was evidence that Ms. Cain neglected her daughter, that she sometimes absented herself for long periods of time without explanation and left the child in appellant's care during those periods, and that appellant took good care of his daughter at such times.

In the summer of 1992, appellant began to date Patricia Jones. Appellant claims that Ms. Cain's physical and psychological abuse escalated as a result, and Ms. Cain also began threatening Ms. Jones and her mother with physical harm. In response, aware of the reputation of Ms. Cain and members of her family for violence, the elder Ms. Jones decided to begin shopping for a gun. In December, 1992, Patricia Jones and her mother discussed the possible purchase of a .22 caliber revolver with Steve Phares, who had one for sale. Appellant was not present, and the gun was not purchased at that time.

On December 11 and 12, 1992, appellant went hunting in Gocke Hollow, which is located about one mile from his residence. He was familiar with this area, as he had spent a portion of his youth there. At midday on December 12, appellant returned home and prepared to go to work at the Nutter Fort Dairy Queen, where he was assistant manager. He worked a full shift, during which Ms. Cain called the store to locate appellant. In successive calls, Ms. Cain was informed by appellant's co-workers either that he was not there or that he was there but did not want to talk to Ms. Cain. At the close of appellant's shift, he went home to change clothes for a Christmas party scheduled to be held at the Dairy Queen shop.

At 10:43 p.m. that evening, Ms. Cain gave the Nutter Fort Police Department a report that appellant was a missing person. A police officer located appellant at the Dairy Queen shortly before 11:00 p.m. Appellant advised the officer that he had not been missing and that he was fine but did not wish to see or speak to Ms. Cain. Ms. Jones joined appellant at the Christmas party shortly thereafter. She advised appellant that she had located a gun that might be purchased for protection. The couple left the party about twenty minutes later.

Ms. Jones told appellant that she had spoken with Steve Phares again earlier in the evening regarding the purchase of the handgun. Appellant and Ms. Jones met Phares and purchased the revolver. The two then drove to appellant's apartment. Upon arriving at the apartment, they were met by Ms. Cain, who had left her grandmother's house at about 11:30 p.m. According to appellant, Ms. Cain began screaming and pounding on Ms. Jones' car. Ms. Jones stayed in the car while appellant went into the apartment to get a change of clothes. Ms. Cain followed him into the apartment and refused to leave until they discussed matters. Appellant then went outside to the car and told Ms. Jones to come back later. Appellant and Ms. Cain argued for approximately two hours. At about 1:30 a.m. (now, December 13, 1992), while both Ms. Cain and appellant were in the apartment, Ms. Cain telephoned her grandmother and reported where she was; it appears from the record that appellant had gone to the bathroom in the apartment when Ms. Cain made this call and may not have been aware of Ms. Cain's call.

At about 2:00 a.m., Ms. Jones returned to appellant's apartment, while Ms. Cain was still there. Appellant testified at his trial that upon hearing Ms. Jones return, Ms. Cain pulled out a knife and stated that she would "teach that f_____ bitch a lesson". Appellant had a .22 caliber bullet remaining from an old target rifle. He put the bullet in the chamber of the gun and fired, pulling the trigger on an empty chamber. He pulled the trigger again, and a single shot went off, hitting Ms. Cain in the back of the head. Appellant testified he believed Ms. Jones was in danger, but he did not intend to shoot Ms. Cain in the head. Appellant also testified Ms. Cain exhibited no signs of life after he shot her.

Ms. Jones entered the apartment and helped appellant put Ms. Cain's body in a large cardboard storage box. They taped the box shut with gray duct tape and put the box in...