State v. Smith

• Decision Date: 27 July 1989
• Docket Number: No. 18437,18437
• Citation: 384 S.E.2d 145,181 W.Va. 700
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. James William SMITH.

Page 145

384 S.E.2d 145

181 W.Va. 700

STATE of West Virginia v. James William SMITH.

No. 18437.

Supreme Court of Appeals of West Virginia.

July 27, 1989.

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." Syllabus Point 1, State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978).

2. " '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)." Syllabus Point 4, State v. Phillips, 176 W.Va. 244, 342 S.E.2d 210 (1986).

3. "Where there is a failure to hold an in camera hearing on the defendant's inculpatory statements, we recognize under Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), that the case will not be reversed for a new trial on this basis alone. Instead, it will be remanded for a voluntariness hearing before the trial court. If the trial court finds the statements are voluntary the verdict will stand. If, on the other hand, he finds the statements to be involuntary, the verdict will be set aside unless the trial court determines that this constitutional error is harmless beyond a reasonable doubt." Syllabus Point 5, State v. Clawson, 165 W.Va. 588, 270 S.E.2d 659 (1980).

4. " ' "In the trial of an indictment for murder all instruments which the evidence tends to show were used in the perpetration of the crime, may be produced for the inspection of the jury." Syl. pt. 1, State v. Henry, 51 W.Va. 283, 41 S.E. 439 (1902).' Syllabus Point 8, State v. Gum, 172 W.Va. 534, 309 S.E.2d 32 (1983)." Syllabus Point 8, State v. Humphrey, 177 W.Va. 264, 351 S.E.2d 613 (1986).

Joseph A. Colosi, Camper & Seay, Welch, for James William Smith.

Warren R. McGraw, II, Asst. Atty. Gen., Charleston, for the state.

PER CURIAM

The defendant, James William Smith, was convicted in McDowell County Circuit Court of second-degree murder. His primary assignments of error are that the evidence was insufficient to support his conviction and that his trial counsel was ineffective. We conclude that the case must be remanded to determine the voluntariness of certain confessions made by the defendant and to consider the merits of his ineffective assistance claims.

I.

Paul David Thompson died on February 16, 1988, from injuries received when he was struck by a train. Prior to his death, Thompson was found unconscious on the railroad tracks in Hensley, McDowell County. Witnesses stated that Thompson was lying face down with his buttocks on the top of one of the tracks. Thompson's pants were unzipped and pulled down to his ankles. When approached, Thompson made a gurgling sound, but did not move. A head wound and a small pool of blood were visible. Thompson was struck by a train and killed soon after passers-by telephoned the authorities.

We may summarize the State's evidence in the case. Thompson spent most of February 16, 1988, in the company of the defendant. Earlier that same day, Thompson became involved in a heated argument with his wife and fired a shotgun into the air outside of his trailer. The defendant picked up Thompson, at his request, sometime in the late afternoon. When Thompson departed, his wife went to a magistrate in Welch and swore out a warrant for his arrest.

When Thompson entered the defendant's car, he pulled out a bottle of Valium and handed some of the pills to the defendant and to another man in the car. Thompson was an epileptic, and Valium was one of the medicines prescribed to control his epilepsy. The threesome drove around for over one hour and consumed sizeable quantities of beer. Later in the day, the defendant and Thompson drove to Fanrock to the home of Johnny Cook, a friend of the defendant. Thompson became visibly drunk at a party at Cook's home. The defendant received two more Valium pills from Thompson while at the party. Thompson was also heard to tell the defendant that he owed money for other pills provided by Thompson.

When they left the party, the two men traveled in the direction of Thompson's trailer. The defendant passed Thompson's wife and daughter in another car and stopped to talk to them. The defendant says that the exchange was heated and that the daughter struck Thompson in the face and caused his nose to bleed. This was denied by the two women. The defendant quickly drove away. It was his testimony that at 9:45 p.m., he let Thompson out of the car some twenty feet from his trailer.

The defendant drove to a local convenience store for gasoline and met Tommy Brooks. Brooks accompanied the defendant to his home to drink beer. While en route to his home, the defendant again met Thompson's wife and daughter and informed them that Thompson was at his trailer. The defendant and Brooks drove on to the defendant's home and remained there for an unspecified time.

Brooks asked to be returned to the convenience store, and on the way the defendant stopped at the top of Hensley Mountain to relieve himself. Brooks heard the defendant open the car's hatch and turned to see the defendant with a bumper jack in his hand. When Brooks asked the defendant what he was doing, the defendant replied that he was "throwing out garbage." Brooks stepped from the car and walked back to the defendant, but the "bumper jack wasn't there."

Only a few minutes before Thompson was killed, his wife saw the defendant's car at a distance as it traveled toward the railroad tracks. She assumed that the defendant and Thompson planned to drink at a nearby softball field. When she and her daughter drove to the field, they spotted Thompson's dead body on the tracks.

Later that night, the defendant drove alone to the home of Edward L. Lane, Jr. Lane's testimony was that the defendant arrived at 10:10 p.m., but insisted repeatedly that it was 9:00 p.m. Lane also stated that the defendant was nervous and "not satisfied" about the stated time.

Trooper M.A. Smoot contacted the defendant around midnight, questioned him, and took a statement. Trooper Smoot noticed what appeared to be blood stains on the defendant's trousers and boots and requested that he release them for inspection. The defendant went into his home and returned with another pair of trousers. Trooper Smoot asked that he release the blood-stained pants. When the defendant became belligerent, he was arrested for public intoxication. Early the next day, the defendant returned to the house with Trooper Smoot and retrieved the blood-stained trousers. The blood found on the trousers and boots was consistent with Thompson's.

Also the next day, Brooks telephoned Trooper Smoot about the bumper jack that was apparently disposed of by the defendant on Hensley Mountain. Brooks accompanied Trooper Smoot to the location where the defendant stopped the car, and the bumper jack was recovered nearby. Trooper Smoot stated that blood and hair particles were visible on the jack, but none was found by forensic experts.

Irvin M. Sopher, M.D., the State's medical examiner, appeared as an expert witness in the case. Dr. Sopher concluded that Thompson's cause of death was the injuries he received from the impact with the train. One wound, a laceration over the right ear, appeared to have been inflicted prior to that impact. Dr. Sopher also opined that the position of Thompson's body on the tracks was inconsistent with an epileptic seizure.

The defendant was convicted of second-degree murder on March 18, 1987, and was sentenced to imprisonment in the penitentiary for five to eighteen years. This appeal followed.

II.

The defendant's first contention is that the State's evidence was insufficient to support his conviction. We summarized the rule for appellate review of a guilty verdict in Syllabus Point 1 of State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978):

"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."

The defendant correctly points out that the State's evidence was wholly circumstantial. We have held that to support a conviction in a circumstantial evidence case, the State's evidence must exclude every reasonable hypothesis of innocence. State v. Phillips, 176 W.Va. 244, 342 S.E.2d 210 (1986); State v. Dobbs, 163 W.Va. 630, 259 S.E.2d 829 (1979). We further noted in State v. Bailey, 151 W.Va. 796, 806, 155 S.E.2d 850, 856 (1967), that "[t]he weight of circumstantial 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." These principles have coalesced in Syllabus Point 4 of Phillips:

" '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)."

See also State v. Robinette, 181 W.Va. 400, ...