State v. McKinney

• Citation: 358 S.E.2d 596,178 W.Va. 200
• Decision Date: 04 June 1987
• Docket Number: No. 17073,17073
• Parties: STATE of West Virginia v. Frank McKINNEY.
• Court: Supreme Court of West Virginia

Page 596

358 S.E.2d 596

178 W.Va. 200

STATE of West Virginia v. Frank McKINNEY.

No. 17073.

Supreme Court of Appeals of West Virginia.

June 4, 1987.

Syllabus by the Court

1. "A criminal defendant has the right, absent some necessity relating to courtroom security or order, to be tried free of physical restraints." Syl. Pt. 3, State v. Brewster, 164 W.Va. 173, 261 S.E.2d 77 (1979).

2. "Where the indictment, by reference to the offense charged, including the reference to any appropriate statute, clearly indicates that the charge is a felony, the absence of the word 'felonious' or words of like import will not render the indictment invalid. We adopt this rule and to the extent State ex rel. Reed v. Boles, 148 W.Va. 770, 137 S.E.2d 246 (1964), and related cases espouse a per se rule that the omission of the word 'felonious' renders a felony indictment invalid, they are overruled." Syl. Pt. 2, State v. Manns, 174 W.Va. 793, 329 S.E.2d 865 (1985).

3. " 'Good cause shown' for change of venue, as the phrase is used in W.Va. Constitution, Article III, Section 14 and W.Va.Code, 62-3-13, means proof that a defendant cannot get a fair trial in the county where the offense occurred because of the existence of a locally extensive present hostile sentiment against him." Syl. Pt. 1, State v. Pratt, 161 W.Va. 530, 244 S.E.2d 227 (1978).

4. "It is not error for a trial judge to preside over more than one criminal case involving the same defendant...." Syl. Pt. 6, State v. Flint, 171 W.Va. 676, 301 S.E.2d 765 (1983).

5. "The question of the competency of a witness to testify is left largely to the discretion of the trial court and its judgment will not be disturbed unless shown to have been plainly abused resulting in manifest error." Syl. Pt. 8, State v. Wilson, 157 W.Va. 1036, 207 S.E.2d 174 (1974).

6. Once the defendant meets his initial burden of producing some evidence of self-defense, the State is required to disprove the defense of self-defense beyond a reasonable doubt.

Mary Beth Kershner, Asst. Atty. Gen., for appellant.

Randall Galford, Richwood, for appellee.

McGRAW, Chief Justice:

On June 19, 1983, the appellant, Frank J. McKinney, then seventy-five years old, was convicted by a jury in the Circuit Court of Mercer County of first degree murder, with no recommendation of mercy. He makes numerous assignments of error on appeal. After a discussion of the circumstances leading to this prosecution and appeal, we will address each of these assignments of error.

The appellant does not dispute that he shot and killed Aline Carrie Laxton in the early morning hours of December 25, 1982. He contends that he was forced to shoot her in self-defense. The appellant was boarding in the house of Lakie Coalson, the victim's mother, at the time of the shooting. Testimony at trial detailed an ongoing dispute between Ms. Laxton and the appellant regarding what would happen to Mrs. Coalson's house upon her death.

Ms. Laxton was at her mother's house on the night she was shot. Sometime between two and four in the morning, the appellant, Ms. Laxton, and Mrs. Coalson were sitting at the kitchen table. At trial, the appellant testified that Ms. Laxton first threatened her mother and then turned on him. He contended that she said, "You son-of-a-bitch, I'm going to kill you," and then came at him with a paring knife. He testified that he then grabbed a gun, which he normally carried for self-protection when he went outside of the house at night, and shot the approaching woman in self-defense. The bullet entered the right side of her head and she died instantly.

After hearing conflicting evidence on self-defense, the jury convicted the appellant of first degree murder, with no recommendation of mercy. He was subsequently sentenced to life in prison without opportunity for parole.

I.

The appellant's first assignment of error is that the trial court failed to develop an appropriate record to justify trying him in physical restraints. He alleges, in his brief and in a sworn affidavit dated July 8, 1986, that he was restrained in both handcuffs and leg irons throughout his trial, except when he testified, at which time he was restrained only in leg irons. He contends that this was done without a showing of any necessity and that he is therefore entitled to a reversal of his conviction and to a new trial. The State contends that there is no showing on the record that the appellant was, in fact, tried in physical restraints, and argues that the appellant is therefore not entitled to a ruling on the merits of his claim on appeal. After careful review of the transcripts in this proceeding, we find that there is a sufficient showing to conclude that the appellant was tried in physical restraints without a showing on the record as to any facts which justified such restraint. ¹

It is well settled that "[a] criminal defendant has the right, absent some necessity relating to courtroom security or order, to be tried free of physical restraints." Syl. Pt. 3, State v. Brewster, 164 W.Va. 173, 261 S.E.2d 77 (1979). In Brewster, where there was no record on the justification for trying the defendant in physical restraints, we remanded to the circuit court with directions that an evidentiary hearing be held to determine if there were sufficient facts to warrant the use of restraints. Id. 164 W.Va. at 183-84, 261 S.E.2d at 83. Because the record in this case is also lacking on justification for using physical restraints, a remand in accordance with Brewster is required. ²

II.

The appellant's second assignment of error is that the following language in the indictment is insufficient because it does not contain the words "feloniously" or "maliciously."

The grand jury charges: that on or about the 25th day of December, 1982, in the County of Mercer, State of West Virginia, FRANK McKINNEY committed the offense of "Murder in the first degree" by the wilful, deliberate and premeditated shooting of ALINE CARRIE LAXTON with a pistol, with intent to cause her death, and causing her death.

We have addressed this issue in the recent cases of State v. Hall, 172 W.Va. 138, 304 S.E.2d 43, 48 (1983), and State v. Manns, 174 W.Va. 793, 329 S.E.2d 865 (1985). We concluded in Hall that a similar indictment adequately informed the defendant of the nature of the charge against him, Hall, 172 W.Va. at 143, 304 S.E.2d at 48. In Manns, we reiterated the view taken in Hall, and we expressly overruled those cases holding that a felony indictment is invalid if the word "felonious" is omitted.

Where the indictment, by reference to the offense charged, including the reference to any appropriate statute, clearly indicates that the charge is a felony, the absence of the word "felonious" or words of like import will not render the indictment invalid. We adopt this rule and to the extent State ex rel. Reed v. Boles, 148 W.Va. 770, 137 S.E.2d 246 (1964), and related cases espouse a per se rule that the omission of the word "felonious" renders a felony indictment invalid, they are overruled.

Syl. Pt. 2, Manns, 174 W.Va. 793, 329 S.E.2d 865.

The same rationale applies to the omission of the word "malicious" from a felony indictment. Accordingly, we find that the appellant was adequately informed of the particular offense with which he was charged, and the indictment was sufficient.

III.

The appellant's third assignment of error is that the trial court erred when it denied his motion for a change of venue under Rule 21(a) of the West Virginia Rules of Criminal Procedure due to adverse publicity. The appellant raised the motion based on articles published in The Bluefield Daily Telegraph on December 26, 1982, one day after the shooting, and March 9, 1983, some three months before the appellant's trial. The appellant argued that adverse publicity resulted from the articles and created a present hostile sentiment against him in Mercer County, particularly since the articles referred to two previous convictions against him. The trial court concluded that this case did not require a change of venue, and we agree.

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.

Syl. Pt. 2, State v. Wooldridge, 129 W.Va. 448, 40 S.E.2d 899 (1946). See also Syl. Pt. 1, State v. Ginanni, 174 W.Va. 580, 328 S.E.2d 187 (1985); Syl. Pt. 1, State v. Zaccagnini, 172 W.Va. 491, 308 S.E.2d 131 (1983); Syl. Pt. 2, State v. Williams, 172 W.Va. 295, 305 S.E.2d 251 (1983).

"Good cause" for a change of venue "means proof that a defendant cannot get a fair trial in the county where the offense occurred because of the existence of a locally extensive present hostile sentiment against him." Syl. Pt. 1, State v. Pratt, 161 W.Va. 530, 244 S.E.2d 227 (1978). See also Syl. Pt. 2, State v. Zaccagnini. This court has consistently held that "[w]idespread publicity, of itself, does not require a change of venue, and neither does proof that prejudice exists against an accused, unless it appears that the prejudice against him is so great that he cannot get a fair trial." Syl. Pt. 1, State v. Gangwer, 169 W.Va. 177, 286 S.E.2d 389 (1982). See also Syl. Pt. 2, State v. Young, 173 W.Va. 1, 311 S.E.2d 118 (1983).

The appellant did not meet his burden of showing good cause for a change of venue. The prejudice, if any, resulting from the newspaper articles was not shown to be so great that the appellant could not get a fair trial in Mercer County. Only four of the twenty-three prospective jurors impanelled to hear the appellant's case...