State v. Skidmore, 101581.

• Decision Date: 10 November 2011
• Docket Number: No. 101581.,101581.
• Citation: 718 S.E.2d 516,228 W.Va. 166
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Respondent v. Ben Chase SKIDMORE, Petitioner.

228 W.Va. 166

718 S.E.2d 516

STATE of West Virginia, Respondent

v.Ben Chase SKIDMORE, Petitioner.

No. 101581.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 18, 2011.Decided Nov. 10, 2011.

Syllabus by the Court

1. “Jury instructions are reviewed by determining whether the charge, reviewed as a whole, sufficiently instructed the jury so they understood the issues involved and were not misled by the law. A jury instruction cannot be dissected on appeal; instead, the entire instruction is looked at when determining its accuracy. The trial court, therefore, has broad discretion in formulating its charge to the jury, so long as it accurately reflects the law. Deference is given to the circuit court's discretion concerning the specific wording of the instruction, and the precise extent and character of any specific instruction will be reviewed for an abuse of discretion.” Syllabus Point 15, State v. Bradshaw, 193 W.Va. 519, 457 S.E.2d 456 (1995).

2. “Voluntary drunkenness is generally never an excuse for a crime, but where a defendant is charged with murder, and it appears that the defendant was too drunk to be capable of deliberating and premeditating, in that instance intoxication may reduce murder in the first degree to murder in the second degree, as long as the specific intent did not antedate the intoxication.” Syllabus Point 2, State v. Keeton, 166 W.Va. 77, 272 S.E.2d 817 (1980).

Raymond H. Yackel, Esquire, Morgantown, WV, for Petitioner.

Darrell V. McGraw, Jr., Attorney General, Benjamin F. Yancey, III, Assistant Attorney General, Charleston, WV, for Respondent.

PER CURIAM:

The present appeal follows a bifurcated trial in which the defendant, Ben Chase Skidmore (hereinafter “defendant”), was found guilty of first degree murder without a recommendation of mercy. The undisputed evidence presented during the trial established that the defendant killed Steve Yarborough by repeatedly striking him with a hammer.

The defendant raises two errors in this appeal: (1) the circuit court erred by permitting the State to introduce evidence of a prior voluntary manslaughter conviction during the penalty phase of the trial without conducting a balancing test pursuant to Rule 403 of the West Virginia Rules of Evidence or assessing the prior conviction pursuant to the factors set forth in State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994); and (2) the circuit court erred when it instructed the jury on voluntary intoxication. The circuit court's instruction stated, “the evidence that a defendant acted while in a state of gross intoxication is to be considered in determining whether or not the defendant acted with premeditation and deliberation.” The defendant argues that the circuit court erred by including the word “gross” before intoxication and failed to fully explain to the jury what constitutes “gross intoxication.”

After thorough consideration of the briefs, the record designated for appeal, and the oral arguments of the parties, we affirm the judgment of conviction and sentencing order.

I. Facts & Background

On Sunday, April 26, 2009, the defendant killed Steve Yarborough by striking the top of his head two to four times with a hammer. This crime occurred in the living room of a house Yarborough and two other men, Jeff Mullenax and Charles Stafford, were renting. The three men allowed the defendant to stay at their house for a few days while he attempted to find employment. All four men were construction workers who had previously lived together.¹

The trial testimony revealed that the defendant and Yarborough had been arguing the weekend of the murder because the defendant was unemployed, failed to call a foreman about a job, and failed to help with the household chores. A few days before the murder, the defendant told Jeff Mullenax that “he was going to f ... him (Yarborough) up.” On the day of the murder, the defendant threw a cigarette butt on the floor while Yarborough was cleaning the house which led to an argument between the two men. During this argument, Yarborough told the defendant to find a job or move out of the house. Shortly after this argument, Jeff Mullenax and Yarborough left the house and went to a bar to shoot pool and watch a Nascar race. The two returned to the house in the middle of the afternoon, where they continued watching the Nascar race and drinking beer, along with their other roommate, Charles Stafford. While these three men were inside watching television, the defendant spent most of the afternoon sitting on the front porch, talking on his cell phone and drinking beer. The defendant went in and out of the house a few times during the afternoon. During these trips inside, the defendant would use the restroom, get a beer from the refrigerator and have brief conversations with the three men in the living room.

Around 4:30 or 5:00 p.m. that day, the defendant asked Jeff Mullenax to speak with him on the front porch. The defendant was worried about having a place to stay and Mullenax told him he would try to “smooth things over” with Yarborough. After this conversation, Mullenax returned inside with his other roommates while the defendant remained on the porch. Charles Stafford testified that the defendant was walking around on the porch “and he said something about I'll have three hots and a cot.” ² A short time after he made this statement, the defendant came inside the house, walked through the living room and went into the kitchen where he got a beer out of the refrigerator. Yarborough, Stafford and Mullenax were in the living room watching television when the defendant emerged from the kitchen with a hammer in his hand. Without saying anything, the defendant struck Yarborough on top of his head two to four times. The defendant then turned to Stafford and Mullenax and made the following statements, “don't bother him, he's dead”; “I love you guys to death, but I'll kill you too”; and “I hope the motherf ...'s dead, don't check on him.”

Charles Stafford left the house and went to his sister's residence shortly after the murder occurred. The defendant told Jeff Mullenax, “don't call the cops on me yet, give me a few hours,” and said he was going to head down the road. Before leaving, the defendant apologized to Mullenax, saying “I'm sorry Jeff, but I told you I was going to mess him up.”

After the defendant left the residence, Mullenax called 911 and reported the incident. The police located the defendant ³ at a gas station about one mile from the residence. Officers Justin Judy, Jeff Wells and Sean Williams of the Morgantown Police Department arrested the defendant without incident at 12:06 a.m. All three officers stated that the defendant was calm, spoke in a regular voice, understood their questions and was verbally clear. All three officers testified that the defendant used the phrase “three hots and a cot,” a detail which Officer Jeff Wells recorded in his report. Officer Sean Williams read the defendant his Miranda rights and the defendant said that he understood them. Officer Williams then put the defendant in his cruiser and drove him to the police station. During the ride, Officer Williams testified that the defendant stated that he was going to have three hots and a cot, and asked Officer Williams if West Virginia had the death penalty. After Officer Williams told him West Virginia did not have the death penalty, he said the defendant replied, “well that's good, I'll just spend the rest of my life in jail.”

The defendant was subsequently charged with first degree murder. Prior to trial, the State moved for bifurcation so that it could introduce evidence of the defendant's 1987 voluntary manslaughter conviction during the penalty phase of the trial. This prior conviction stemmed from the defendant killing a stranger during a fight at a laundromat in California. The California victim's death was caused by blunt force trauma to the head. The circuit court granted the motion to bifurcate.

Following a three-day trial, the jury found the defendant guilty of first degree murder. After returning this verdict, the case proceeded to the penalty phase and the State presented evidence of the defendant's 1987 voluntary manslaughter conviction and offered testimony from the victim's widow. The defendant did not call any witnesses during the penalty phase. The jury returned a finding of “no recommendation for mercy,” at the end of the penalty phase and sentenced the defendant to life without mercy. Thereafter, the defendant filed a motion for a new trial raising the same two errors he raises in the present appeal. After the circuit court denied his motion for a new trial, the defendant filed the present appeal.

II. Standard of Review

On appeal to this Court, the defendant contests two rulings made by the circuit court. Our general standard of review for findings and rulings made by a circuit court is as follows:

In reviewing challenges to findings and rulings made by a circuit court, we apply a two-pronged deferential standard of review. We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to de novo review.

Syllabus Point 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000).

III. Discussion

The defendant argues that the circuit court erred when it instructed the jury on voluntary intoxication and when it admitted evidence of a prior voluntary manslaughter conviction during the penalty phase of the trial. We consider each of these errors below.

A. “Gross Intoxication” Instruction

The defendant argues that the circuit court's voluntary intoxication instruction to the jury was not a correct statement of law because it included the words “gross” and “grossly” before the word intoxication. The defendant argues that the term ...