State v. McKinney
| Decision Date | 06 June 1978 |
| Docket Number | No. 13849,13849 |
| Citation | 244 S.E.2d 808,161 W.Va. 598 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia v. Frank Joseph McKINNEY. |
Syllabus by the Court
1. A verdict of guilt in a criminal case 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 accused beyond a reasonable doubt, though the evidence of the accused is in conflict therewith. 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.
2. A defendant in a criminal case is entitled to testify in his own behalf and so long as he does not place his character and reputation in issue, he is entitled to assurance by the court that no prior conviction, save convictions for perjury or false swearing, would be revealed on cross examination.
3. A consent to search agreement signed by an accused must be treated in the same manner as a confession and the trial court must, even in the absence of a specific request, determine the voluntariness of such consent before the evidence obtained by the search can be introduced into evidence.
Ben B. White, Jr., Princeton, for plaintiff in error.
Chauncey H. Browning, Jr., Atty. Gen., William D. Highland, Asst. Atty. Gen., Charleston, for defendant in error.
Frank J. McKinney was convicted of murder of the first degree in the Circuit Court of Mercer County and, mercy having been recommended by the jury, was sentenced to imprisonment for life. Upon his petition a writ of error was granted.
The defendant was charged with the murder of one William David Walsh. The record discloses that the deceased died from a gunshot wound in the temple or as a result of a fractured skull. According to medical testimony, the most likely cause of death was a "massive internal hemorrhage secondary to gunshot wound." The most damaging evidence against the defendant was given by Paul Lee who testified that he witnessed the shooting and stated that the defendant "shot him". Lee further testified that McKinney had "hit him (deceased) in the forehead a couple of times" with a .22 caliber pistol wrapped in a towel.
Numerous errors are assigned on this appeal, many of which assert that the evidence was insufficient to support the verdict. An examination of the record, particularly the transcript of testimony, convinces us that the guilt or innocence of the defendant was a question properly left to the jury. We cannot say that there was insufficient evidence to support the findings of the jury and the verdict will not be disturbed on that ground. State v. Bailey, 151 W.Va. 796, 155 S.E.2d 850 (1967); State v. Etchell, 147 W.Va. 338, 127 S.E.2d 609 (1962); State v. Kessinger, 144 W.Va. 209, 107 S.E.2d 367 (1959); State v. Harlow, 137 W.Va. 251, 71 S.E.2d 330 (1952).
Prior to the presentation of any evidence defense counsel moved that in the event the defendant took the witness stand in his own behalf the state not be permitted, on cross examination, to disclose any prior criminal record of the defendant. The defendant assigns as error the court's denial of this motion. In State v. McAboy, W.Va., 236 S.E.2d 431 (1977), it was said in Syllabus No. 1:
In the trial of a criminal case, a defendant who elects to testify may have his credibility impeached by showing prior convictions of perjury or false swearing, but it is impermissible to impeach his credibility through any other prior convictions.
The Court, in State v. Brooks, W.Va., 238 S.E.2d 181 (1977) noted that "McAboy made its rule applicable to all cases that were in the trial stage or in the appellate process on the date it was decided and which specifically preserved this point." In the instant case the defendant's petition for a writ of error was granted by this Court on February 14, 1977. Clearly, it was in the appellate process when McAboy was decided. Furthermore, the defendant did specifically preserve this point.
Having been denied his motion relative to the disclosure of prior convictions, the defendant was effectively denied the right to testify in his own behalf. He was entitled to so testify in his own behalf. He was entitled to so testify, so long as he did not place his character and reputation in issue, with the assurance of the court that prior convictions, except for perjury or false swearing, would not be revealed on cross examination. The trial court, therefore, committed reversible error in denying the motion of the defendant whereby he sought protection under McAboy and Brooks.
A further error assigned by the defendant is the court's refusal to suppress all evidence obtained by a search of his place of business and home, there having been no search warrant. Although a "Consent To Search" was executed by the defendant, there was no determination by the court of the voluntariness of such consent. The state concurs in this assignment of error and suggests that the case be remanded for the purpose of holding a...
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State v. Craft, s. 14138
... ... 8 ... [165 W.Va. 758] The trial court properly held an in camera hearing to determine if the written consent to search executed by Craft was voluntary. State v. McKinney, W.Va., 244 S.E.2d 808 (1978). The form contained this statement: ... "I am giving this written permission to these officers freely and voluntarily, without any threats or promises having been made, and after having been informed by said officer that I have a right to refuse this ... ...
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State v. Payne
...that no prior conviction, save convictions by perjury or false swearing, would be revealed on cross examination." Syl. pt. 2, State v. McKinney, 244 S.E.2d 808 (W.Va.1978). 3. "Where improper evidence of a non-constitutional nature is introduced by the State in a criminal trial, the test to......
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State v. Honaker
...courts when an erroneous pretrial ruling effectively denied a defendant the right to testify on his own behalf. See State v. McKinney, 161 W.Va. 598, 244 S.E.2d 808 (1978) (the lower court erred when it erroneously denied the defendant's motion to preclude disclosure of any prior criminal r......
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State v. Buck
...the voluntariness of such consent before the evidence can be introduced into evidence." Syllabus Point 3, in part, State v. McKinney, 161 W.Va. 598, 244 S.E.2d 808 (1978). 2. The voluntariness issue of a confession must be proven by the State by a preponderance of the evidence. This same ru......