State v. Milburn
Citation | 204 W.Va. 203,511 S.E.2d 828 |
Decision Date | 07 December 1998 |
Docket Number | No. 25006.,25006. |
Court | Supreme Court of West Virginia |
Parties | STATE of West Virginia, Appellee, v. Barbara Jean MILBURN, Appellant. |
Darrell V. McGraw, Jr., Esq., Attorney General, Rory L. Perry, II, Esq., Assistant Attorney General, Charleston, West Virginia, Attorneys for the Appellee.
Robert C. Stone, Jr., Esq., Martinsburg, West Virginia, Attorney for the Appellant.
This case is before this Court upon appeal from a final order of the Circuit Court of Jefferson County entered on February 28, 1997. The appellant, Barbara J. Milburn, was convicted of first degree murder with mercy, second degree arson, and two counts of providing false information to a state police officer. On appeal, the appellant raises several assignments of error. Upon review of the record, we have determined that only three of the assignments of error warrant discussion. Specifically, we address the appellant's contentions that the circuit court erred by: (1) denying her motion to sever the various counts in her indictment; (2) denying her motion to suppress statements, including two confessions, she made to the police; and (3) not admitting into evidence statements made to the police by her juvenile co-defendant.
The appellant also claims the circuit court erred by: (1) refusing to permit her to offer into evidence additional statements made by her co-defendant and polygraph test results of a second suspect; (2) failing to declare a mistrial when the jury initially reported that it was unable to reach a verdict on two of the counts; (3) failing to declare a mistrial following a reference by one of the witnesses to the appellant's Fifth Amendment privilege; (4) failing to grant her motion for judgment of acquittal on the basis that there was insufficient evidence to support the verdicts; and (5) failing to grant her requests for instructions relating to voluntary manslaughter, self-defense, and malice. Upon careful review of the record, we find these assignments of error lack merit. This Court has before it the petition for appeal, all matters of record, and the briefs and argument of counsel. For the reasons set forth below, the appellant's convictions are affirmed.
On June 19, 1995, Judy Jenkins was killed when she was shot twice in the head.1 The murder occurred in Ms. Jenkins' home which she shared with the appellant and the appellant's adopted son and daughter. The crime was reported by the appellant and her son, Steven T.,2 in person at the Charles Town Police Department. The appellant stated that she and Steven T. had been sleeping in a camping trailer located next to the house when she heard two gunshots.3 She looked outside but did not see anyone. When she went into the house, she discovered that Ms. Jenkins had been shot. She tried to call for help, but the phone lines had been cut.
Initially, the murder investigation focused on Johnson Lykens, a married man with whom Ms. Jenkins had allegedly had an affair.4 However, the police had very little evidence and the investigation continued for six months. During this period, the appellant was very helpful and cooperative with the investigating officers and provided much information and insight into the case.5
A break in the case finally occurred in December 1995, following a suspicious barn fire at the farm where Ms. Jenkins and the appellant had lived.6 The appellant reported that she had been watching television when she heard the crash of breaking glass. She discovered a rock had been thrown through the window of her home. When she looked out the window, she saw the barn ablaze.
While investigating the arson, State Trooper Jose Centeno noticed small footprints leading to the phone lines at the back of the appellant's house. Prior to the fire, the appellant had told the police that she was afraid of an unknown person who was spying on her and lurking around her residence. She also complained that someone had cut her phone lines again. After observing that the footprints appeared to belong to a child or possibly a female, Trooper Centeno advised the appellant that he believed that she might know something about the fire and other incidents that she had reported. At this point, the appellant became nervous. When the officer informed the appellant that surveillance equipment might have been put in place prior to the fire, the appellant became even more nervous. Trooper Centeno asked the appellant to come to his office for further questioning. He mentioned that if any video tapes of her property existed, they could be reviewed at that time.
On December 18, 1995, the appellant voluntarily went to the state police barracks near Charles Town. During the course of questioning that day, the appellant confessed to starting the barn fire and murdering Ms. Jenkins. The appellant also implicated Steven T. stating that he helped dispose of the gun used to commit the murder by throwing it in the Shenandoah River.7 Steven T. was questioned by the police the next day. In one of two statements he gave to the police, Steven T. confessed to firing the first shot at Ms. Jenkins.8 Thereafter, the appellant was arrested and eventually indicted. On December 23, 1997, following a five-day jury trial, she was found guilty of first degree murder, second degree arson, and two counts of providing false information to a state police officer. The jury gave a recommendation of mercy with respect to the murder conviction.
The appellant first contends that the circuit court erred by denying her motion to sever the various counts of her indictment. Pursuant to Rule 14(a) of the West Virginia Rules of Criminal Procedure,9 the appellant moved to have the murder charge severed from the remaining charges on the basis that the evidence regarding the arson, which occurred six months after the homicide, was inadmissible in the murder trial. The appellant claims that the jury might have concluded that she was a "bad person" as a result of the arson offense and convicted her of murder for that reason or vice versa. The appellant also argues that she was denied her Fifth Amendment privilege because she could not testify regarding one of the charges without being subjected to cross-examination on all of the charges.
In Syllabus Point 3 of State v. Hatfield, 181 W.Va. 106, 380 S.E.2d 670 (1988), we held that:
Even where joinder or consolidation of offenses is proper under the West Virginia Rules of Criminal Procedure, the trial court may order separate trials pursuant to Rule 14(a) on the ground that such joinder or consolidation is prejudicial. The decision to grant a motion for severance pursuant to W.Va.R.Crim.P. 14(a) is a matter within the sound discretion of the trial court.
However, we have also recognized that:
Rule 14 of the West Virginia Rules of Criminal Procedure is modelled [sic] on Rule 14 of the Federal Rules of Criminal Procedure, and under federal law it appears that it is incumbent upon a trial judge to consider in some depth a motion to grant a severance if: (a) a joint trial will raise so many issues that a jury may conclude that the defendant is a `bad [person]' and must have done something, and consequently will convict him as a `bad [person]' rather than on a particular charge; (b) if one offense may be used to convict him of another, though proof of that guilt would have been inadmissable at a separate trial; and (c) the defendant may wish to testify in his own defense on one charge but not on another. See C.A. Wright, Federal Practice and Procedure: Criminal 2d § 222 (1982).
State v. Ludwick, 197 W.Va. 70, 73, 475 S.E.2d 70, 73 (1996).
Appellant essentially argues that all three kinds of prejudice discussed in Ludwick occurred in her case. We disagree. Upon review of the record, we find that the circuit court thoroughly considered the appellant's arguments, but concluded that the offenses she was charged with were all part of a common scheme or plan, thereby making joinder proper. The circuit court observed that there was an active, ongoing investigation which continued between the time of the murder and the commission of the arson. The appellant was closely involved in that investigation for most of the time, supplying information to the police. In an apparent effort to subvert attention from herself as a suspect in the murder of Ms. Jenkins, the appellant burned a barn located on the same property where the homicide occurred. Based on these facts, the circuit court determined that even if the charges were severed, it was likely that the evidence relating to the murder would be admissible during the trial on the arson and providing false information charges. Likewise, the arson evidence would be admissible during the murder trial.
In State v. Penwell, 199 W.Va. 111, 483 S.E.2d 240 (1996), we found that the defendant was not entitled to severance of aggravated robbery and assault charges from his other charges of obstructing a police officer and unauthorized taking of a police vehicle. We stated that:
In reviewing federal authority relating to severance of multiple counts, this Court notes that it is widely recognized that prejudice is not present under the `other crimes' rule if evidence of each of the crimes charged would be admissible in a separate trial for the other. See C.A. Wright, Federal Practice and Procedure: Criminal 2d § 222 (1982).
199 W.Va. at 118, 483 S.E.2d at 247. In this case, we believe the evidence of the arson would have been admissible on the murder count to explain the appellant's attempt to divert attention from herself as a suspect of that crime. Likewise, we believe that the murder evidence would have been admissible to show motive for the arson. As we discussed in Penwell, clearly, a defendant is not entitled to relief from prejudicial joinder pursuant to Rule 14 of the West Virginia...
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