State v. Schrader, 14988

• Decision Date: 05 March 1982
• Docket Number: No. 14988,14988
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. William G. SCHRADER, Jr.

Page 70

302 S.E.2d 70

172 W.Va. 1

STATE of West Virginia v. William G. SCHRADER, Jr.

No. 14988.

Supreme Court of Appeals of West Virginia.

March 5, 1982.

Rehearing Denied May 27, 1982.

Syllabus by the Court

1. When the failure to grant a continuance causes no actual prejudice, such a refusal will not constitute reversible error.

2. "Jurors who on voir dire of the panel indicate possible prejudice should be excused, or should be questioned individually either by the court or by counsel to precisely determine whether they entertain bias or prejudice for or against either party requiring their excuse." Syl. pt. 3, State v. Pratt, 161 W.Va. 530, 244 S.E.2d 227 (1978).

3. "In the absence of any substantial countervailing factors, where a new rule of criminal law is made of a nonconstitutional nature, it will be applied retroactively only to those cases in litigation or on appeal where the same legal point has been preserved." Syl. pt. 3, State v. Gangwer, 168 W.Va. 190, 283 S.E.2d 839 (1981).

4. When the West Virginia Legislature adopted Virginia's murder statute in 1868, the law was settled that in order to constitute a "premeditated" murder an intent to kill need exist only for an instant.

Brent E. Beveridge, Susan K. McLaughlin, Fairmont, for appellant.

Chauncey H. Browning, Jr., Atty. Gen., and Silas B. Taylor, Asst. Atty. Gen., Charleston, for appellee.

NEELY, Justice.

The appellant, William Schrader, Jr. was found guilty of murder in the first degree without a recommendation of mercy after a jury trial in the Circuit Court of Marion County. The circuit court then sentenced the appellant to life imprisonment in the West Virginia State Penitentiary at Moundsville.

On the morning of 14 December 1977, the appellant went to Frank Millione's Gun and Coin Shop in Marion County to purchase and trade war souvenirs. The appellant asserts that an argument developed between the appellant and the victim after the appellant questioned the authenticity of a German sword that he had previously purchased. During the course of the argument, the appellant stabbed Frank Millione fifty-one times with a hunting knife. At trial the appellant claimed that he had acted in self-defense. He maintained that the victim was known by him to carry weapons and that the victim had reached into his pocket to draw a gun during the course of the argument. The appellant did testify, however, that Mr. Millione never produced any gun from his pocket. Stab wounds were found on the victim's face, head, neck, back, and chest.

When results of a laboratory examination of pieces of the state's evidence were not delivered to the appellant's counsel until four days before the trial, the appellant moved for a continuance. Later, when the trial court gave the prosecuting attorney's file to the appellant's counsel on the day before trial in order to let them inspect for exculpatory evidence, the appellant renewed the motion for a continuance. The trial court then denied the motion.

Before the commencement of jury selection, appellant requested that individual voir dire be conducted. Nevertheless, the court proceeded to question the prospective jurors as a group. However, the trial court was willing to ask questions proffered by appellant's counsel.

In its instructions to the jury, the trial court stated that the appellant had the burden of proving self-defense by a preponderance of the evidence. In another instruction the court's definition of "willful, deliberate and premeditated killing" provided that the state need only show that the intention to kill came "into existence for the first time at the time of such killing, or at any time previously."

On these facts the appellant has made four principle assignments of error for our consideration: (1) the trial court erred in refusing to grant a continuance after discovery materials were delivered to the appellant only a few days before the trial; (2) the court erred in refusing the appellant's request for an individual voir dire of each juror; (3) the trial court erred in giving its instruction concerning self-defense; and (4) the trial court erred in instructing the jury about the meaning of premeditation. ¹ Finding these assignments to be without merit, we affirm.

I

With respect to the trial court's refusal to grant a continuance we first recognize that the decision of the trial court in such instances is usually accorded great deference. See State v. Lucas, 129 W.Va. 324, 40 S.E.2d 817 (1946). Additionally, we would note that this is not a case in which the appellant was hurried along to trial and thus denied effective assistance of counsel. Rather, this is a case in which the appellant decries the late production of discovery material. However, neither in his brief nor during oral argument, did the appellant show how his counsel could have been better prepared for trial with earlier delivery. At oral argument specific inquiry was made by the court concerning actual prejudice, yet counsel failed to demonstrate how his case would have been improved. Given this absence of even alleged harm caused by the late production, we cannot say that the trial court erred in denying the appellant's motion for a continuance. See Wilhelm v. Whyte, 161 W.Va. 67, 239 S.E.2d 735 (1977).

II

There is a growing body of law in this state to support the use of individual voir dire in the jury selection process particularly in cases like this that involve serious offenses and significant publicity. See, e.g., State v. Payne, 167 W.Va. 252, 280 S.E.2d 72 (1981); State v. Pratt, 161 W.Va. 530, 244 S.E.2d 227 (1978). State v. Pendry, 159 W.Va. 738, 227 S.E.2d 210 (1976). Most recently in State v. Helmick, 169 W.Va. 94, 286 S.E.2d 245 (1982), we held that, when a juror indicated that she knew the prosecuting attorney, the trial court should have permitted the defense counsel to ask further questions of the individual juror. Helmick also holds that, where there has been publicity concerning a crime, the trial court should fashion its voir dire in a manner consistent with this Court's recent holdings.

None of our prior opinions has demanded that individual voir dire be permitted in all cases. Instead, we have found individual voir dire to be required only when a juror has disclosed a possible area of prejudice. For example, in State v. Pratt, supra, we held that it was an abuse of discretion and reversible error when the trial court refused to question individual jurors who had disclosed their acquaintance with police officers. In this case, however, there is no allegation that any specific juror was prejudiced by the pretrial publicity. While we continue to applaud and promote the use of individual voir dire in jury selection, we find that in this case where the trial court did use the appellant's proffered questions while addressing the jury members as a group, and was willing to follow-up with further questions of appellant's counsel, there was no reversible error. Individual voir dire, of course, would have been the preferred technique.

III

The trial court instructed the jury that the appellant had to prove self-defense by a preponderance of the evidence. There is no question that this is no longer the law in West Virginia. In State v. Kirtley, 162 W.Va. 249, 252 S.E.2d 374 (1978) this Court held in syllabus point 4: "[o]nce there is sufficient evidence to create a reasonable doubt that the killing resulted from the defendant acting in self-defense, the prosecution must prove beyond a reasonable doubt that the defendant did not act in self-defense." The appellant's trial took place in late September 1978. Kirtley was handed down on 28 November 1978. The question then is whether Kirtley applies retroactively to this case.

In cases involving other questions of law where we have extended limited retroactivity to a decision, we have usually limited that retroactivity to cases where the point was properly raised at trial and preserved for appeal. For example, the holding in Edwards v. Leverette, 163 W.Va. 571, 258 S.E.2d 436 (1979), relating to the burden of proof for an insanity defense, was given retroactive effect in State v. Grimm, 165 W.Va. 547, 270 S.E.2d 173 (1980) and State v. Milam, 163 W.Va. 752, 260 S.E.2d 295 (1979) because the appellants in those cases had properly raised the issue at trial in order to preserve it for appeal.

In State v. Stalnaker, 167 W.Va. 225, 279 S.E.2d 416 (1981) we extended limited Kirtley retroactivity to cases in the appellate stage at the time Kirtley was decided. We note that in Stalnaker the appellant had preserved the issue for appeal by raising it as error in his motion to set aside the jury verdict and award a new trial. Furthermore, in Stalnaker, the question of self-defense was extremely close.

In consonance with the analysis of Edwards and in precise accordance with the holding in State v. Gangwer, 168 W.Va. 190, 283 S.E.2d 839 (1981), we hold that Kirtley should be applied retroactively only to cases where the question of allocating the burden of proof on the issue of self-defense was properly raised below. Hence, we decline to apply Kirtley to this case both because it is not required by our general rules regarding retroactivity and because the error was obviously harmless. Fifty-one stab wounds are hardly consistent with any theory of self-defense. We find, therefore, that the instruction did not constitute reversible error.

IV

The appellant objects to the portion of the jury charge that read:

I would advise you that to constitute a willful, deliberate and premeditated killing, it is not necessary that the intention to kill should exist for any set length of time prior to the actual killing; it is only necessary that such intention should have come into existence for the first time at the time of such killing, or at any time previously.

The appellant contends that such an instruction takes the "pre" out of "premeditation" and is therefore an inaccurate...