State v. Riser, No. 14768

• Court: Supreme Court of West Virginia
• Writing for the Court: PER CURIAM
• Citation: 294 S.E.2d 461,170 W.Va. 473
• Parties: STATE of West Virginia v. James W. RISER, Jr. West Virginia
• Decision Date: 15 July 1982
• Docket Number: No. 14768

Page 461

294 S.E.2d 461 170 W.Va. 473 STATE of West Virginia
v.
James W. RISER, Jr. No. 14768. Supreme Court of Appeals of West Virginia. July 15, 1982.

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[170 W.Va. 475] Syllabus by the Court

1. "The right to obtain a private prosecutor in this State is not absolute and is subject to judicial control and review. A private prosecutor is subject to the same high standards of conduct in the trial of the case as is the public prosecutor." Syllabus Point 1, State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979).

2. "Where the defendant in a criminal case makes a timely objection to the introduction of evidence seized during a warrantless search, it is incumbent upon the state to prove by a preponderance of evidence[170 W.Va. 476] that the search was legal." Syllabus, State v. Hacker, 158 W.Va. 182, 209 S.E.2d 569 (1974).

3. "A spontaneous statement by a defendant made prior to any action by a police officer or before an accusation, arrest or any custodial interrogation is made or undertaken by the police may be admitted into evidence without the voluntariness thereof first having been determined in an in camera hearing." Syllabus Point 1, State v. Johnson, 159 W.Va. 682, 226 S.E.2d 442 (1976).

4. "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." Syllabus Point 1, State v. Starkey, W.Va., 244 S.E.2d 219 (1978).

5. "Where a counsel's performance, attacked as ineffective, arises from occurrences involving strategy, tactics and arguable courses of action, his conduct will be deemed effectively assistive of his client's interests, unless no reasonably qualified defense attorney would have so acted in the defense of an accused." Syllabus Point 21, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).

6. "In the determination of a claim that an accused was prejudiced by ineffective assistance of counsel violative of Article III, Section 14 of the West Virginia Constitution and the Sixth Amendment to the United States Constitution, courts should measure and compare the questioned counsel's performance by whether he exhibited the normal and customary degree of skill possessed by attorneys who are reasonably knowledgeable of criminal law ...." Syllabus Point 19, in part, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).

7. "When the West Virginia Legislature adopted Virginia's murder statute in 1868, the law was settled that in order to

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constitute a 'premeditated' murder an intent to kill need exist only for an instant." Syllabus Point 4, State v. Schrader, W.Va., 302 S.E.2d 70 (1982).

Preiser & Wilson, John W. Swisher and Franklin S. Fragale, Jr., Charleston, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen. and S. Clark Woodroe, Asst. Atty. Gen., Charleston, for defendant in error.

PER CURIAM:

The appellant, James W. Riser, Jr., after a change of venue, was convicted of first degree murder in the Circuit Court of Greenbrier County in September, 1977 and the jury recommended mercy. The appellant assigns the following errors on appeal: (1) he was denied due process because the private prosecutor had a financial interest in the outcome of the case; (2) the State obtained his shirt and pants as a result of an illegal seizure; (3) evidence of his remarks to a police officer was admitted without an in camera hearing to determine the voluntariness of those remarks; (4) evidence of his remarks to a bystander was admitted without first determining the voluntariness of those remarks at an in camera hearing; (5) the verdict of first degree murder is not supported by the evidence; (6) he was prejudiced by ineffective assistance of counsel, and (7) State's Instruction No. 3, given over objection, erroneously equated premeditation and deliberation with an intent to kill.

The uncontroverted facts reveal that the decedent, Sharon Shanklin, was shot and killed at her home in Summers County on December 26, 1976, seconds after the appellant arrived at her trailer. The appellant was found lying beside the decedent, severely wounded. The murder weapon, the appellant's revolver, was found lying beside him.

A number of witnesses who lived near the decedent testified. Though none of [170 W.Va. 477] these witnesses saw the shooting occur, several heard gunshots and immediately began looking to see what had happened. One of the witnesses was standing on the front porch with the decedent when the appellant drove up in his police cruiser. As the appellant stepped up on the porch, she stepped off and started walking to her car parked nearby. Before she could reach the car, she heard what sounded like two firecrackers. After a brief pause, she heard a third loud noise, turned around and walked back toward the trailer and saw the appellant and decedent lying on the porch. Another neighbor testified to hearing what she thought were three firecrackers explode. She looked out her picture window after hearing the third shot and saw the appellant standing with his arms over his head and then he slumped over. There was other testimony to this same effect. The facts will be more fully developed as necessary to the discussion of the issues.

After the jury returned its verdict, the appellant retained new counsel who then filed a motion to set aside the verdict and grant a new trial. The motion was denied after a hearing and appellant was sentenced.

I.

The appellant's first assignment of error involves a private prosecutor retained by the decedent's relatives.

David Knight, the Mercer County Prosecuting Attorney, was retained by relatives of the decedent prior to trial to aid the regular prosecuting attorney in prosecuting the appellant. At approximately the same time, Knight and his associate in private practice entered into an agreement with the decedent's relatives to bring a civil action against the appellant. The appellant contends here that the retention of Knight and his associate to bring a civil suit against him created the appearance of impropriety and denied him due process of law because it gave the private prosecutor a financial interest in the outcome of the criminal case.

A private prosecutor, by reason of the fact that he is usually retained by members of the victim's family solely for the purpose

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of assisting in prosecuting a defendant, obviously has an interest in the outcome of the lawsuit. In State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1081, 63 L.Ed.2d 320 (1980), however, this Court declined to abolish the common law private prosecutor system, recognizing there were sound policy reasons for its retention. ¹

We also recognized in Syllabus Point 1 of Atkins that the right to have a private prosecutor is not absolute and that he is subject to the same high standards as the regular prosecuting attorney:

"The right to obtain a private prosecutor in this State is not absolute and is subject to judicial control and review. A private prosecutor is subject to the same high standards of conduct in the trial of the case as is the public prosecutor."

This requirement on the part of a private prosecutor of being subjected to the same high standards of conduct in the trial of a case as a public prosecutor was found in Atkins to blunt the usual criticism that a private prosecutor would be overzealous to convict. 163 W.Va. at 505-506, 261 S.E.2d at 58.

We are cited several cases ² including our own State ex rel. Moran v. Ziegler, 161 W.Va. 609, 244 S.E.2d 550 (1978), where in an original prohibition, we held that a lawyer who had previous contact with the accused relative to defending him on a criminal[170 W.Va. 478] charge could not act as a private prosecutor on the same criminal charge. Cf. State v. Britton, 157 W.Va. 711, 203 S.E.2d 462 (1974). The appellant argues that the private prosecutor should have been disqualified because it was developed after the trial had commenced that his law partner and he had been retained to file a civil action against the appellant on behalf of the decedent's heirs...