State v. Phillips, No. 16495

CourtSupreme Court of West Virginia
Writing for the CourtMcHUGH
Citation176 W.Va. 244,342 S.E.2d 210
Decision Date26 March 1986
Docket NumberNo. 16495
PartiesSTATE of West Virginia v. Russell Clark PHILLIPS.

Page 210

342 S.E.2d 210
176 W.Va. 244
STATE of West Virginia
v.
Russell Clark PHILLIPS.
No. 16495.
Supreme Court of Appeals of
West Virginia.
March 26, 1986.

Page 211

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).

2. "Circumstantial evidence will not support a guilty verdict, unless the fact of guilt is proved to the exclusion of every reasonable hypothesis of innocence; and circumstances which create only a suspicion of guilt but do not prove the actual commission of the crime charged, are not sufficient to sustain a conviction." Syl. pt. 2, State v. Dobbs, 163 W.Va. 630, 259 S.E.2d 829 (1979).

3. "The weight of circumstantial evidence, as in the case of direct evidence, is a question for jury determination, and whether such evidence excludes, to a moral certainty, every reasonable hypothesis, other than that of guilt, is a question for the jury." Syl. pt. 4, State v. Bailey, 151 W.Va. 796, 155 S.E.2d 850 (1967).

4. "If, on a trial for murder, the evidence is wholly circumstantial, but as to time, place, motive, means, and conduct it concurs in pointing to the accused as the perpetrator of the crime, he [or she] may properly be convicted." State v. Beale, 104 W.Va. 617, 632-33, 141 S.E. 7, 13 (1927).

[176 W.Va. 245] Stephen G. Jory, R. Mike Mullens, Elkins, for appellant.

Mary Rich Maloy, Asst. Atty. Gen., Charleston, for appellee.

McHUGH, Justice:

In this case, the petitioner, Russell Clark Phillips, appeals from his 1983 conviction in the Circuit Court of Mineral County, West Virginia, of murder of the first degree, "without a recommendation of mercy." W.Va.Code, 61-2-1 [1931]; W.Va.Code, 62-3-15 [1965]. He received a penitentiary sentence of life imprisonment. This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel.

I

The appellant's conviction resulted from the charge that in the early morning hours of August 23, 1982, he shot and killed Timothy Roberts. The State's evidence was circumstantial.

In August, 1982, the appellant, age 23, was living with friends in an apartment in Parsons (Tucker County), West Virginia. On the evening of August 22, 1982, Timothy Roberts, age 17, went to the apartment and asked the appellant if he wanted to go to Elkins (Randolph County), West Virginia, and drive around. The appellant consented. The appellant and Timothy left Parsons in a red pickup truck which belonged to Timothy's father.

On the way to Elkins, the appellant and Timothy stopped at the residence of a girl friend of Timothy's brother, Terry. Terry was present, and the appellant and Timothy asked him if he wanted to accompany them to Elkins. Terry declined.

At approximately midnight that evening, the appellant and Timothy arrived at a tavern known as the Riverside Inn in Elkins. There, the appellant and Timothy drank

Page 212

some beer and also purchased some beer which they took with them.

On August 23, 1982, Timothy was declared missing by police authorities.

Approximately three weeks later, on September 11, 1982, the police were notified by a passer-by that a red pickup truck had been abandoned upon a wooded, swampy road in the Clover Run area near Parsons. The truck was identified as belonging to Timothy's father. The following day, about 100 feet from the truck, the police found Timothy's body. A shotgun belonging to Timothy's family and causing his death was found near the body.

A post-mortem examination revealed that Timothy's death resulted from a "[s]hotgun wound to the neck." Suicide was ruled out because the State's investigation revealed that a spent cartridge had been manually ejected from the gun after Timothy had received a wound which was paralyzing and fatal. The condition of the body upon being found was "consistent with death having occurred on or about the date [Timothy] was reported last seen...."

The appellant was indicted in Tucker County for murder of the first degree. The case was transferred to Mineral County for trial. The jury returned a verdict of guilty of murder of the first degree, "without a recommendation of mercy."

II

In syllabus point 1 of State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978), this Court set forth the general standard for resolving the contention of convicted defendants in criminal cases that the evidence against them was insufficient:

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.

As indicated above, the State's evidence in this case was circumstantial.

[176 W.Va. 246] We have recognized that circumstances which create only a "suspicion" of guilt are not sufficient to sustain a conviction in a criminal case. Syl. pt. 2, State v. Meadows, 172 W.Va. 247, 304 S.E.2d 831 (1983); State v. Noe, 160 W.Va. 10, 15, 230 S.E.2d 826, 830 (1976); State v. Clay, 135 W.Va. 618, 625, 64 S.E.2d 117, 121 (1951); State v. Hudson, 128 W.Va. 655, 670, 37 S.E.2d 553, 560 (1946);...

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11 practice notes
  • State v. Young, No. 19647
    • United States
    • Supreme Court of West Virginia
    • 28 Junio 1991
    ...sufficient to sustain a conviction.' Syl. pt. 2, State v. Dobbs, 163 W.Va. 630, 259 S.E.2d 829 (1979)." Syl. pt. 2, State v. Phillips, 176 W.Va. 244, 342 S.E.2d 210 C. Cooper Fulton, Kanawha County Public Defender Corp., Charleston, for appellant. Joanna I. Tabit, Deputy Atty. Gen., Appella......
  • State v. Smith, No. 17190
    • United States
    • Supreme Court of West Virginia
    • 15 Mayo 1987
    ...This quoted language has been repeatedly approved by this Court in similar circumstantial evidence instructions. E.g., State v. Phillips, 176 W.Va. 244, 342 S.E.2d 210 (1986); State v. Gum, 172 W.Va. 534, 309 S.E.2d 32 (1983); State v. [178 W.Va. 117] Meadows, 172 W.Va. 247, 304 S.E.2d 831 ......
  • State v. Mann, No. 25767.
    • United States
    • Supreme Court of West Virginia
    • 11 Junio 1999
    ...Oldsmobile. 7. Mr. Mann's height was 5'7". His weight was under 200 lbs. 8. Mr. Mann's brief cited Syllabus point 2 of State v. Phillips, 176 W.Va. 244, 342 S.E.2d 210 (1986), wherein we held: Circumstantial evidence will not support a guilty verdict, unless the fact of guilt is proved to t......
  • State v. McKinney, No. 17073
    • United States
    • Supreme Court of West Virginia
    • 4 Junio 1987
    ...virtually identical to that proferred in Instruction No. 16. See Syl. Pt. 2, State v. Phillips, 176 W.Va. Page 603 244, [178 W.Va. 207] 342 S.E.2d 210 (1986). Because we find that appellant's Instruction No. 16 is repetitious of his Instruction No. 11, we hold that the trial court was corre......
  • Request a trial to view additional results
11 cases
  • State v. Young, No. 19647
    • United States
    • Supreme Court of West Virginia
    • 28 Junio 1991
    ...sufficient to sustain a conviction.' Syl. pt. 2, State v. Dobbs, 163 W.Va. 630, 259 S.E.2d 829 (1979)." Syl. pt. 2, State v. Phillips, 176 W.Va. 244, 342 S.E.2d 210 C. Cooper Fulton, Kanawha County Public Defender Corp., Charleston, for appellant. Joanna I. Tabit, Deputy Atty. Gen., Appella......
  • State v. Smith, No. 17190
    • United States
    • Supreme Court of West Virginia
    • 15 Mayo 1987
    ...This quoted language has been repeatedly approved by this Court in similar circumstantial evidence instructions. E.g., State v. Phillips, 176 W.Va. 244, 342 S.E.2d 210 (1986); State v. Gum, 172 W.Va. 534, 309 S.E.2d 32 (1983); State v. [178 W.Va. 117] Meadows, 172 W.Va. 247, 304 S.E.2d 831 ......
  • State v. Mann, No. 25767.
    • United States
    • Supreme Court of West Virginia
    • 11 Junio 1999
    ...Oldsmobile. 7. Mr. Mann's height was 5'7". His weight was under 200 lbs. 8. Mr. Mann's brief cited Syllabus point 2 of State v. Phillips, 176 W.Va. 244, 342 S.E.2d 210 (1986), wherein we held: Circumstantial evidence will not support a guilty verdict, unless the fact of guilt is proved to t......
  • State v. McKinney, No. 17073
    • United States
    • Supreme Court of West Virginia
    • 4 Junio 1987
    ...virtually identical to that proferred in Instruction No. 16. See Syl. Pt. 2, State v. Phillips, 176 W.Va. Page 603 244, [178 W.Va. 207] 342 S.E.2d 210 (1986). Because we find that appellant's Instruction No. 16 is repetitious of his Instruction No. 11, we hold that the trial court was corre......
  • Request a trial to view additional results

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