State v. Triplett

• Decision Date: 23 July 1992
• Docket Number: No. 20172,20172
• Citation: 421 S.E.2d 511,187 W.Va. 760
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Donald Wayne TRIPLETT, Defendant Below, Appellant.

Page 511

421 S.E.2d 511

187 W.Va. 760

STATE of West Virginia, Plaintiff Below, Appellee, v. Donald Wayne TRIPLETT, Defendant Below, Appellant.

No. 20172.

Supreme Court of Appeals of

West Virginia.

Submitted Jan. 21, 1992.

Decided July 23, 1992.

[187 W.Va. 762] Syllabus by the Court

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

2. "Malice may be inferred from the intentional use of a deadly weapon; however, where the State's own evidence demonstrates circumstances affirmatively showing an absence of malice which would make an inference of malice from the use of a deadly weapon alone improper, a conviction for second degree murder cannot be upheld." Syl. Pt. 2, State v. Brant, 162 W.Va. 762, 252 S.E.2d 901 (1979).

3. " 'This Court will not consider an error which is not preserved in the record nor apparent on the face of the record.' Syl. Pt. 6, State v. Byers, 159 W.Va. 596, 224 S.E.2d 726 (1976)." Syl. Pt. 8, State v. Dietz, 182 W.Va. 544, 390 S.E.2d 15 (1990).

4. "The court may permit the jury to take to their room, when they retire to consider of their verdict, any paper read in evidence before them; and, at the request of the jury or any one of them, it may allow a paper to be read to them a second time, and any juror has the right to make notes therefrom when it is so read." Syl. Pt. 5, Koontz, Phillips & Stamm v. Mylius, 77 W.Va. 499, 87 S.E. 851 (1916).

5. It is a permissible practice to allow jurors to take notes on the evidence during trial as long as proper voir dire is permitted concerning the jurors' capacity to take notes, and a cautionary instruction is given concerning the proper and improper uses of note-taking. The ultimate decision on whether to allow note-taking by the jury lies within the sound discretion of the trial court.

6. "When a circuit court determines in a post-conviction habeas corpus proceeding that assistance of counsel in a homicide was ineffective, the circuit court has no authority to modify the original final judgment to award a recommendation of mercy when none was awarded by the jury that heard the case." Syl. Pt. 4, Schofield v. West Virginia Dept. of Corrections, 185 W.Va. 199, 406 S.E.2d 425 (1991).

7. The recommendation of mercy in a first degree murder case lies solely in the discretion of the jury. Therefore, it would be improper for the trial court to set aside a jury verdict of first degree murder without a recommendation of mercy in order to give a recommendation of mercy.

8. "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, except that proved counsel error which does not affect the outcome of the case, will be regarded as harmless error." Syl. Pt. 19, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).

9. "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 the accused." Syl. Pt. 21, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).

10. It is the extremely rare case when this Court will find ineffective assistance of counsel when such a charge is raised as an assignment of error on a direct appeal. The prudent defense counsel first develops the record regarding ineffective assistance of counsel in a habeas corpus proceeding before the lower court, and may then appeal if such relief is denied. This Court may then have a fully developed record on this issue upon which to more thoroughly Kristen L. Keller, Deputy Pros. Atty., of Raleigh County, Beckley, for appellee.

[187 W.Va. 763] review an ineffective assistance of counsel claim.

Leo Catsonis, Charleston, for appellant.

WORKMAN, Justice:

This case is before the Court upon the appeal of Donald Wayne Triplett from a March 21, 1990, final order denying post-trial motions and imposing a sentence of life imprisonment without the possibility of parole. On March 16, 1990, a jury found the appellant guilty of first degree murder without a recommendation of mercy for the November 23, 1989, murder of Jeffrey Dean Houck. The appellant alleges that the following errors were committed by the lower court: 1) the circuit court erred in refusing to grant the defense motions for acquittal and for a new trial for the conviction of first degree murder on the grounds that there was insufficient evidence of premeditation or malice to support a conviction for murder; 2) the circuit court erred in permitting Dr. Sopher, the medical examiner, to testify repeatedly in areas outside his field of expertise and to testify to the "impossibility" of accidental death and to the ultimate issue; 3) the cumulative effect of several errors committed by the circuit court dealing with the taking of notes by jurors, failure to require the State to furnish discovery material, permitting the prosecutor to make improper jury argument, refusal to set aside the jury's recommendation of no mercy and the giving and refusal of certain instructions, was to deny due process to the defendant; and 4) the defendant was denied his right to effective assistance of counsel in the representation rendered by the assistant public defender. Upon a review of the record, the arguments of the parties and all other matters submitted before this Court, we find no error was committed by the trial court and affirm the conviction.

On November 24, 1989, the defendant was with the nineteen-year-old victim Jeffrey Houck, seventeen-year-old Curtis Goff and Michael Hamrick, an adult. Michael Hamrick testified that the defendant was driving them around to various establishments and obtaining alcohol for Hamrick, Houck and Goff to consume. The evidence indicated that the defendant was neither drinking nor taking drugs. Around 9:00 p.m., the defendant took them to a convenience store, where he went in to buy beer.

Hamrick testified that while the defendant was in the store, the victim, Houck, moved the defendant's car around to the side of the convenience store. Houck was playing a joke on the defendant when he moved the car. Hamrick's testimony indicated that when the defendant discovered that Houck had moved his car, he got mad and the defendant and Houck proceeded to argue.

Shortly after 9:00 p.m., the group left the convenience store and, according to Hamrick, the victim punched the defendant while he was driving and then told the defendant to pull the car over off the road. The victim proceeded to tell the defendant that "he was going to whip his [the defendant's] butt." Once the car was off the road, the victim grabbed the car keys and jumped out of the car first. Hamrick indicated that the victim did not have a bottle of beer in his hands when he got out of the car. ¹ The significance of the beer bottle was that the defendant claimed in his pre-trial statement that the victim could have had a beer bottle when he got out of the car, but that the defendant didn't know for certain. The defendant got out of the car on the driver's side and walked around the back of the car and back up to where the victim was standing, outside the front passenger side of the car.

Hamrick testified that although he did not see the actual infliction of the fatal wound, he did observe that before there was time for any conversation between the victim and the defendant, the defendant went forward and the victim hit the ground. Hamrick's testimony revealed he got out of the car and observed blood coming from the victim. At this point, Hamrick indicated that a car with three boys in it stopped to help, and the boys helped put Houck into the defendant's car. The defendant then drove Houck, along with Hamrick and Goff, to the emergency room of Appalachian Hospital.

Before a member of the Raleigh County Sheriff's Department arrived at the hospital, Hamrick testified that the defendant concocted a lie to tell the authorities concerning the circumstances surrounding the victim's injury. According to Hamrick, they agreed to tell the authorities that they were on the road at the Crossroads Mall when a vehicle pulled up next to them and one of the occupants of the other car "gave the finger and we pulled off and they got out and a dude supposedly stabbed him...." This concocted story was relayed to Detective Bolen by the defendant on November 23, 1989, in the defendant's statement to the police which was also admitted in evidence.

Curtis Goff, also present at the time of the incident, corroborated the testimony given by Michael Hamrick. Additionally, the three good samaritans, Robert Hoppe, Scott Williams and James Rhodes, who stopped to offer assistance when they saw the victim lying on the side of the road, testified. Robert Hoppe indicated that as soon as they finished helping place the victim into the car, the driver drove away. The three good samaritans tried to follow the car but lost it. They eventually located the victim and the other men at Appalachian Hospital, according to Hoppe.

Next, Detective Arthur R. Bolen, a deputy sheriff with the Raleigh County Sheriff's Department, testified that he interviewed the defendant when he arrived at the hospital and that the defendant did not appear to be intoxicated. The detective testified that he put out a radio broadcast seeking the apprehension of three...