State v. Mullins

• Decision Date: 03 March 1995
• Docket Number: No. 22514,22514
• Citation: 456 S.E.2d 42,193 W.Va. 315
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Gerald D. MULLINS, Defendant Below, Appellant.
• Court: West Virginia Supreme Court

Page 42

456 S.E.2d 42

193 W.Va. 315

STATE of West Virginia, Plaintiff Below, Appellee, v. Gerald D. MULLINS, Defendant Below, Appellant.

No. 22514.

Supreme Court of Appeals of

West Virginia.

Submitted Jan. 18, 1995.

Decided March 3, 1995.

Syllabus by the Court

1. " ' "In a criminal case, a verdict of guilt 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 defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. 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." Syl. Pt. 1, State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978).' Syl. Pt. 7, State v. Knotts, 187 W.Va. 795, 421 S.E.2d 917 (1992)." Syllabus point 1, State v. Kirkland, 191 W.Va. 586, 447 S.E.2d 278 (1994).

2. " 'Where a defendant is convicted of a particular substantive offense, the test of the sufficiency of the evidence to support the conviction necessarily involves consideration of the traditional distinctions between parties to offenses. Thus, a person may be convicted of a crime so long as the evidence demonstrates that he acted as an accessory before the fact, as a principal in the second degree, or as a principal in the first degree in the commission of such offense.' Syl. Pt. 8, State v. Fortner, 182 W.Va. 345, 387 S.E.2d 812 (1989)." Syllabus point 2, State v. Kirkland, 191 W.Va. 586, 447 S.E.2d 278 (1994).

3. "A person who is the absolute perpetrator of a crime is a principal in the first degree, and a person who is present, aiding and abetting the fact to be done, is a principal in the second degree." Syllabus point 5, State v. Fortner, 182 W.Va. 345, 387 S.E.2d 812 (1989).

4. A finding that two criminal actors possess a shared criminal intent does not require that an accused aider and abettor intend to commit the crime committed by the principal in the first degree. The intent element is relaxed where there is evidence of substantial physical participation in the crime by the accused.

5. Substantial physical participation by a person charged as an aider and abettor in a criminal undertaking constitutes evidence from which a jury may properly infer an intent to assist the principal criminal actor.

William C. Forbes, Pros. Atty., Mary Beth Kershner, Asst. Pros. Atty., Charleston, for appellant.

Arthur T. Ciccarello, Ciccarello, Del Giudice and LaFon, Charleston, for appellee.

FOX, Judge: ¹

On 18 March 1994, a Kanawha County, West Virginia, jury convicted the appellant, Gerald D. Mullins, of the crime of principal in the second degree to the first degree murder of James Arnold Pierson. The jury did not recommend mercy, and on 22 April 1994, the circuit court sentenced the appellant to life in prison without the possibility of parole. He now appeals from the final order entered on 17 June 1994.

On 20 December 1991, at about 7:00 p.m., the appellant and his girlfriend, Karen King, went to the Tap-a-Keg Bar in Charleston, West Virginia. According to a bartender, Karen's father, Charles King, came into the bar sometime between 10:00 p.m. and 10:30 p.m. The victim, James Arnold "Jamie" Pierson, arrived after midnight, accompanied by Gary Prater, Lisa Blackwell, and Barbara Hammond. As soon as Barbara Hammond walked in the door, she and Karen King engaged in a verbal confrontation, and testimony indicated this behavior continued, on and off, right up to the time of the incident which resulted in Jamie Pierson's death. A "pretty good crowd" was present that night, and the principals in this case were drinking alcoholic beverages and shooting pool. The pooltable was quite close to the bar.

Pierson and his friends were about to leave the bar when more angry words were exchanged, and Karen King threw her drink into Pierson's face. According to the evidence, Pierson either grabbed her wrist or hit her, and she then smashed the glass into his head. At this point, the appellant moved from around the pooltable to defend his girlfriend and swung his poolstick at Pierson. His first swing missed, but he hit the bar, shattering glass and breaking the poolstick. The appellant then struck Pierson in the head with the fat end of the poolstick. Pierson fell to the floor. At this same time, the evidence indicates that Karen King's father, Charles King, was also hitting and kicking Pierson and apparently stabbing him three times as well.

The appellant also fell to the floor when Pierson went down, and one witness testified that he saw the appellant stab Pierson in the buttocks with a pocket knife. The medical examiner found the buttocks wound, as well as two other nonfatal stab wounds which were consistent with the smaller knife used by the appellant. However, Pierson suffered three more grievous stab wounds that indicated the use of a larger knife. It was this knife, apparently wielded by Charles King, that caused a fatal wound to Pierson's heart. All parties acknowledge that the fatal wounds were inflicted by Charles King. Although King was also indicted for Pierson's murder, he has not yet been brought to trial due to severe health problems.

The appellant assigns the following errors on appeal: (1) the trial court erred in refusing to grant the defendant's motion for a directed verdict of acquittal at the conclusion of the State's case in chief; (2) the evidence was insufficient in this case to prove beyond a reasonable doubt that the principal in the first degree committed the offense of first degree murder; and (3) it is constitutionally impermissible to shift the burden of proof to the defendant in a criminal case.

The first two assignments of error question the sufficiency of the evidence upon which the appellant was convicted. This Court has explained the standard for reversing cases based upon an insufficiency of evidence as follows:

" 'In a criminal case, a verdict of guilt 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 defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. 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.' Syl. Pt. 1, State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978)." Syl. Pt. 7, State v. Knotts, 187 W.Va. 795, 421 S.E.2d 917 (1992).

Syllabus point 1, State v. Kirkland, 191 W.Va. 586, 447 S.E.2d 278 (1994). More specifically, in syllabus point 2 of Kirkland, supra, this Court held that:

"Where a defendant is convicted of a particular substantive offense, the test of the sufficiency of the evidence to support the conviction necessarily involves consideration of the traditional distinctions between parties to offenses. Thus, a person may be convicted of a crime so long as the evidence demonstrates that he acted as an accessory before the fact, as a principal in the second degree, or as a principal in the first degree in the commission of such offense." Syl. Pt. 8, State v. Fortner, 182 W.Va. 345, 387 S.E.2d 812 (1989).

West Virginia Code § 61-11-6 (1992) provides, in part, that "[i]n the case of every felony, every principal in the second degree, and every accessory before the fact, shall be punishable as if he were the principal in the first degree...." "A person who is the absolute perpetrator of a crime is a principal in the first degree, and a person who is present, aiding and abetting the fact to be done, is a principal in the second degree." Syl. pt. 5, State v. Fortner, 182 W.Va. 345, 387 S.E.2d 812 (1989).

In this case, the appellant argues that there was insufficient evidence to establish that he was a principal in the second degree to murder of the first degree because the State failed to prove a shared intent or association between him and Charles King, the principal in the first degree. The appellant maintains that because there was no evidence of any communications between the two men concerning any type of threat or assault on the victim, and no evidence that Charles King knew that the appellant was acting as his aider and abettor, then there is insufficient evidence to prove that the appellant was acting to aid Charles King in carrying out whatever criminal intent he may have had.

In response, the State points out there was evidence that, during the initial stages of the affray, the defendant said, "I'm going to get my licks in too," and that this indicated knowledge on his part that another person was already attacking Pierson. The State also submits that the fact the appellant knocked Pierson to the floor when he hit him in the head with a poolstick is evidence that the appellant made Charles King's fatal action possible. Finally, the State maintains that the three stab wounds which were apparently inflicted by the appellant are "ample evidence that appellant intended with King to bring about the demise of Jamie Pierson."

We find the State presented sufficient evidence from which the jury could determine that the appellant acted as an aider and abettor and was therefore guilty of being a principal in the second degree to murder of the first degree. The jury received instructions which described the six possible verdicts it could reach in this case: guilty of being a principal in the second degree to murder of the first degree; guilty of being a principal in the second degree to murder of the first degree with a recommendation of mercy; guilty of being a principal in the second degree to murder of the second degree; guilty of being a principal in the second degree to voluntary manslaughter; guilty of being a principal in the...