State v. Meade

• Decision Date: 17 May 1996
• Docket Number: No. 23109,23109
• Citation: 196 W.Va. 551,474 S.E.2d 481
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. William Harrison MEADE, Defendant Below, Appellant.
• Court: West Virginia Supreme Court

Page 481

474 S.E.2d 481

196 W.Va. 551

STATE of West Virginia, Plaintiff Below, Appellee, v. William Harrison MEADE, Defendant Below, Appellant.

No. 23109.

Supreme Court of Appeals of West Virginia.

Submitted April 24, 1996.

Decided May 17, 1996.

Syllabus by the Court

1. "Although Rules 401 and 402 of the West Virginia Rules of Evidence strongly encourage the admission of as much evidence as possible, Rule 403 of the West Virginia Rules of Evidence restricts this liberal policy by requiring a balancing of interests to determine whether logically relevant is legally relevant evidence. Specifically, Rule 403 provides that although relevant, evidence may nevertheless be excluded when the danger of unfair prejudice, confusion, or undue delay is disproportionate to the value of the evidence." Syl. pt. 9, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994).

2. Ordinarily, it is not an abuse of discretion for a trial court in a criminal case to direct the accused to reveal or display the accused's tattoos to a witness and to the jury at trial, where the accused's tattoos are relevant to the question of the identification of the perpetrator of the offense and where the trial court has weighed the probative value of such evidence against the danger of unfair prejudice, etc., pursuant to Rules 401, 402 and 403 of the West Virginia Rules of Evidence.

3. "In certain circumstances evidence of the flight of the defendant will be admissible in a criminal trial as evidence of the defendant's guilty conscience or knowledge. Prior to admitting such evidence, however, the trial judge, upon request by either the State or the defendant, should hold an in camera hearing to determine whether the probative value of such evidence outweighs its possible prejudicial effect." Syl. pt. 6, State v. Payne, 167 W.Va. 252, 280 S.E.2d 72 (1981).

James E. Spurlock, Huntington, for Appellant.

Darrell V. McGraw, Jr., Attorney General, Katherine A. Rafter, Assistant Attorney General, Charleston, for Appellee.

McHUGH, Chief Justice:

This case is before this Court upon the final order of the Circuit Court of Cabell County, West Virginia, entered on November 9, 1994. Pursuant to that order, the motion of the appellant, William Harrison Meade, for a new trial and for judgment notwithstanding the verdict was denied, following a jury trial at which the appellant was found guilty of the felony offense of attempted murder of the first degree. W.Va.Code, 61-2-1 [1991]; W.Va.Code, 61-11-8 [1966]. Upon the entry of judgment upon the jury's verdict, the appellant was sentenced to confinement in the penitentiary for not less than one nor more than five years.

This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel. The appellant contends that the circuit court committed error in directing him to display his tattoos to the jury at trial. In addition, the appellant contends that the circuit court committed error in allowing evidence of the appellant's flight from the trial, and the State's instruction thereon, to be considered by the jury. For the reasons stated below, however, we find those contentions to be without merit, and we affirm the final order.

I

The appellant was indicted by a Cabell County grand jury upon two counts of attempted murder of the first degree. Count one charges that the appellant attempted to murder Kenneth L. Slaughter by trying to run him over with a car. Count two charges that the appellant attempted to murder Greg E. Stevens in the same manner. The appellant's trial was conducted on September 8 and 9 and September 11, 1994. The jury returned a verdict of guilty with regard to count one of the indictment and a verdict of not guilty with regard to count two.

At trial, the evidence of the State consisted largely of the testimony of Kenneth L. Slaughter. According to Mr. Slaughter, he and Greg E. Stevens, both black men, were walking home in the early morning hours of Saturday, June 12, 1993, in the City of Huntington, West Virginia, when they were accosted by three white males in a car shouting racial epithets. Mr. Slaughter and Mr. Stevens kept walking, but, when they reached the parking lot of Papa John's Pizza restaurant on Ninth Street, the car sped onto the lot and the occupants got out. One of the occupants was a white male with extensive tattoos and with a pair of brass knuckles on one hand. At trial, Mr. Slaughter identified the latter individual as the appellant, when the circuit court directed the appellant to remove his shirt and display his tattoos to Mr. Slaughter and to the jury. ¹

As Mr. Slaughter indicated, upon exiting the car, the appellant approached Mr. Slaughter in a belligerent manner, shouted more racial epithets and sought to engage Mr. Slaughter in a fist fight. Mr. Slaughter, however, noticed that the employees of Papa John's Pizza were closing the restaurant for the evening and entreated them to call the police. Upon realizing that the police were being called, the appellant and the other two white males returned to their car, with the appellant in the driver's seat, when, at that point, their rear windshield was broken by a rock thrown by an unidentified third black male. Immediately thereafter, the appellant drove the car across the lot at an accelerating rate of speed, attempting to hit Mr. Slaughter and Mr. Stevens.

The appellant spun the car around and again attempted to hit Mr. Slaughter and Mr. Stevens. The second attempt was a near miss with regard to Mr. Slaughter who was forced to jump upon a wall near the restaurant to avoid being struck. Upon entering the parking lot, the police observed the car attempting to hit Mr. Slaughter. The car was immediately halted, and the appellant was placed under arrest. At trial, Mr. Slaughter, Mr. Stevens and Sergeant Steven Hall of the Huntington Police Department each testified that the appellant had been driving the car. ²

On the other hand, the appellant's evidence at trial indicated that earlier in the evening the appellant and his two passengers purchased some motor oil and drove to the parking lot at Papa John's Pizza to put the oil in the car engine. At that point, an argument ensued with some black males, whereupon one black male threw the rock breaking the rear windshield of the car as the appellant and his two passengers were driving away. According to the appellant, he then drove the car back onto the parking lot to confront the assailant, at about the same time the police arrived. The appellant testified at trial that he did not intend to strike or run over anyone with the car. The appellant indicated that he drove the car and had the brass knuckles on the night in question.

It should be noted that the testimony of Kenneth L. Slaughter, Greg E. Stevens and Sergeant Steven Hall was adduced on September 8, 1994, the first day of trial, during the State's case-in-chief. The appellant did not appear for the second day of trial, September 9, 1994, and the circuit court revoked the appellant's bond and issued a capias for his arrest. Although law enforcement authorities were subsequently unable to locate the appellant, he voluntarily returned to the circuit court on September 12, 1994, and the trial resumed. On that date, the circuit court conducted an in camera hearing to review a motion by the State to admit evidence of the appellant's flight for consideration by the jury. At the conclusion of the in camera hearing, the circuit court granted the motion to admit the evidence, over the objection of the appellant. In so ruling, the circuit court concluded that, under this Court's reasoning in State v. Payne, 167 W.Va. 252, 280 S.E.2d 72 (1981), the probative value of such evidence outweighed its possible prejudicial effect.

Accordingly, during the trial, the State called a deputy circuit clerk for Cabell County who testified that the appellant had not appeared at trial on September 9, 1994, and that a warrant for the appellant's arrest had been issued. During the subsequent testimony of the appellant, however, the appellant explained to the jury that he had left the trial because of fear and embarrassment over being directed to display his tattoos during the first day of trial. During his testimony, the appellant emphasized his voluntary return to court. ³

At the conclusion of the trial, the circuit court gave various instructions to the jury, including instructions concerning attempted murder of the first degree. Also given to the jury was State's Instruction No. 15, which stated: "The Court instructs the jury that the evidence of flight by the Defendant is competent along with other facts and circumstances, on the Defendant's guilt, but the jury should consider any evidence of flight or concealment with caution since such evidence has only a slight tendency to prove guilt." The appellant objected to the giving of that instruction.

As stated above, the jury returned a verdict of guilty of attempted murder of the first degree with regard to count one of the indictment concerning Mr. Slaughter. The jury returned a verdict of not guilty with regard to Mr. Stevens. The appellant's motion for a new trial and for judgment notwithstanding the verdict was denied by the circuit court, and this appeal followed.

II

In syllabus point 2 of State v. Burd, 187 W.Va. 415, 419 S.E.2d 676 (1991), this Court observed that "[w]here formation of criminal intent is accompanied by preparation to commit the crime of murder and a direct overt and substantial act toward its perpetration, it constitutes the offense of attempted murder." The jury having found the appellant guilty of the attempted murder of the first degree of Kenneth L. Slaughter, the circuit court sentenced the appellant pursuant to the following provision of W.Va.Code, 61-11-8 [1966]: "If the offense attempted be punishable with life imprisonment, the person making such attempt shall be guilty of a felony, and, upon conviction, shall...