State v. Wade, 23559

• Citation: 200 W.Va. 637,490 S.E.2d 724
• Decision Date: 11 July 1997
• Docket Number: No. 23559,23559
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Gary "Mo" WADE, Defendant Below, Appellant.
• Court: Supreme Court of West Virginia

Page 724

490 S.E.2d 724

200 W.Va. 637

STATE of West Virginia, Plaintiff Below, Appellee, v. Gary "Mo" WADE, Defendant Below, Appellant.

No. 23559.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 14, 1997.

Decided July 11, 1997.

[200 W.Va. 640] Syllabus by the Court

1. " '[T]he elements which the State is required to prove to obtain a conviction of felony-murder are: (1) the commission of, or attempt to commit, one or more of the enumerated felonies; (2) the defendant's participation in such commission or attempt; and (3) the death of the victim as a result of injuries received during the course of such commission or attempt.' State v. Williams, 172 W.Va. 295, 311, 305 S.E.2d 251, 267 (1983)." Syllabus point 5, State v. Mayle, 178 W.Va. 26, 357 S.E.2d 219 (1987).

2. Self-defense and provocation instructions are not available in response to a charge of felony-murder where the predicate felony is the delivery of a controlled substance.

3. " 'The test of determining whether a particular offense is a lesser included offense is that the lesser offense must be such that it is impossible to commit the greater offense without first having committed the lesser offense. An offense is not a lesser included offense if it requires the inclusion of an element not required in the greater offense.' Syl. pt. 1, State v. Louk, 169 W.Va. 24, 285 S.E.2d 432 (1981)." Syllabus point 3, State v. Hays, 185 W.Va. 664, 408 S.E.2d 614 (1991).

4. As a matter of law, second-degree murder, voluntary manslaughter, and involuntary manslaughter are not lesser included offenses of felony-murder.

5. " 'A person who is the absolute perpetrator of a crime is a principal in the first degree, and a person who is present, aiding and abetting the fact to be done, is a principal in the second degree.' Syllabus point 5, State v. Fortner, 182 W.Va. 345, 387 S.E.2d 812 (1989)." Syllabus point 3, State v. Mullins, 193 W.Va. 315, 456 S.E.2d 42 (1995).

6. " ' " 'Merely witnessing a crime, without intervention, does not make a person a party to its commission unless his interference was a duty, and his non-interference was one of the conditions of the commission of the crime; or unless his non-interference was designed by him and operated as an encouragement to or protection of the perpetrator.' Syllabus, State v. Patterson, 109 W.Va. 588, [1930].' " Syllabus 7. " 'Proof that the defendant was present at the time and place the crime was committed is a factor to be considered by the jury in determining guilt, along with other circumstances, such as the defendant's association with or relation to the perpetrator and his conduct before and after the commission of the crime.' Syl. Pt. 10, State v. Fortner, 182 W.Va. 345, 387 S.E.2d 812 (1989)." Syllabus point 4, State v. Kirkland, 191 W.Va. 586, 447 S.E.2d 278 (1994).

                [200 W.Va. 641] Point 3,  State v. Haines, 156 W.Va. 281, 192 S.E.2d 879 (1972).'   Syl. Pt. 9,  State v. Fortner, 182 W.Va. 345, 387 S.E.2d 812 (1989)."   Syllabus point 3,  State v. Kirkland, 191 W.Va. 586, 447 S.E.2d 278 (1994)
                

8. "Under the concerted action principle, a defendant who is present at the scene of a crime and, by acting with another, contributes to the criminal act, is criminally liable for such offense as if he were the sole perpetrator." Syllabus point 11, State v. Fortner, 182 W.Va. 345, 387 S.E.2d 812 (1989).

9. "The felony-murder statute applies where the initial felony and the homicide are parts of one continuous transaction, and are closely related in point of time, place, and causal connection, as where the killing is done in flight from the scene of the crime to prevent detection or promote escape." Syllabus point 2, State v. Wayne, 169 W.Va. 785, 289 S.E.2d 480 (1982).

10. "Evidence that a homicide victim was survived by a spouse or children is generally considered inadmissible in a homicide prosecution where it is irrelevant to any issue in the case and is presented for the sole purpose of gaining sympathy from the jury." Syllabus point 5, in part, State v. Wheeler, 187 W.Va. 379, 419 S.E.2d 447 (1992).

11. " ' "A judgment will not be reversed because of the admission of improper or irrelevant evidence when it is clear that the verdict of the jury could not have been affected thereby." Syllabus Point 7, Starcher v. South Penn Oil Co., 81 W.Va. 587, 95 S.E. 28 (1918).' Syllabus Point 7, Torrence v. Kusminsky, 185 W.Va. 734, 408 S.E.2d 684 (1991)." Syllabus point 3, McDougal v. McCammon, 193 W.Va. 229, 455 S.E.2d 788 (1995).

12. " ' "The true test to be applied with regard to qualifications of a juror is whether a juror can, without bias or prejudice, return a verdict based on the evidence and the court's instructions and disregard any prior opinions he may have had." State v. Charlot, 157 W.Va. 994, 1000, 206 S.E.2d 908, 912 (1974).' Syl. pt. 1, State v. Harshbarger, 170 W.Va. 401, 294 S.E.2d 254 (1982)." Syllabus point 1, Wheeler v. Murphy, 192 W.Va. 325, 452 S.E.2d 416 (1994).

13. "Actual bias can be shown either by a juror's own admission of bias or by proof of specific facts which show the juror has such prejudice or connection with the parties at trial that bias is presumed." Syllabus point 5, State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996).

14. "The relevant test for determining whether a juror is biased is whether the juror had such a fixed opinion that he or she could not judge impartially the guilt of the defendant. Even though a juror swears that he or she could set aside any opinion he or she might hold and decide the case on the evidence, a juror's protestation of impartiality should not be credited if the other facts in the record indicate to the contrary." Syllabus point 4, State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996).

15. "The challenging party bears the burden of persuading the trial court that the juror is partial and subject to being excused for cause[ ]. An appellate court ... should interfere with a trial court's discretionary ruling on a juror's qualification to serve because of bias only when it is left with a clear and definite impression that a prospective juror would be unable faithfully and impartially to apply the law." Syllabus point 6, State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996).

John Preston Bailey, Bailey, Riley, Buch & Harman, L.C., Thomas E. Johnston, Flaherty, Sensabaugh & Bonasso, Wheeling, for Appellant.

Darrell V. McGraw, Jr., Attorney General, Victor S. Woods, Assistant Attorney General, Charleston, for Appellee.

DAVIS, Justice:

Gary "Mo" Wade, appellant and defendant below, appeals his conviction of first-degree felony-murder with mercy, entered in the Circuit Court of Ohio County. Wade contends that the circuit court erred in refusing to instruct the jury regarding self-defense, provocation, and certain lesser included offenses. In addition, Wade maintains that there was insufficient evidence upon which to convict him of felony-murder. Finally, Wade argues that the trial court erred in allowing the testimony of the victim's father, and in refusing to excuse, for cause, two jurors. We find that the court committed no prejudicial error.

I. FACTS

At approximately 4:30 p.m. on April 23, 1994, the defendant, Gary "Mo" Wade (hereinafter "Wade"), was picked up by his long-time friend Stefon Stradwick (hereinafter "Stradwick"). Stradwick was driving his Cadillac automobile. When Wade entered the car, he showed a gun to Stradwick. Wade explained that he was carrying it to protect himself from retaliation for an incident that had occurred a few days earlier. ¹

The two young men ² traveled to a friend's house where they consumed drugs and alcohol. The drugs were provided by Stradwick, an admitted drug dealer. Thereafter, Wade and Stradwick drove around in the Cadillac for some period of time. Both young men continued to consume alcohol and drugs that were provided free of charge to Wade by Stradwick. They eventually went to the corner of 15th and Wood Streets in East Wheeling, West Virginia, and joined a group of approximately six friends. This corner was a spot where young men regularly gathered to socialize. It was also where Stradwick frequently conducted sales of crack cocaine. ³ On the evening in question, and in the presence of this group, Stradwick personally conducted two such sales. Although the others did not participate in the sales, the testimony presented at trial indicated that all of them, including Wade, were aware that Stradwick was selling crack cocaine. Two of the men questioned Stradwick about each sale when he returned to the group. Wade was present during these conversations; however, he did not participate in the discussions.

Thereafter, a red pickup truck circled the block and pulled up next to the group of young men. The driver, York Rankin (hereinafter "Rankin"), ⁴ indicated that he wanted to buy some crack cocaine. Stradwick and the others failed to respond because they did not know Rankin. Rankin pulled forward ten or fifteen feet and stopped. Sean Mosley (hereinafter "Mosley"), a homeless drug addict who had joined the group, then indicated that he knew the driver by going over and speaking to him. When Mosley returned, he told Stradwick that Rankin wanted to purchase fifty dollars worth of crack cocaine. Stradwick gave Mosley the cocaine and instructed him to return with the fifty dollars. Mosley proceeded to Rankin's truck with the crack cocaine, but "pinched" off a portion of it for himself. Rankin, who was sitting in the truck with his wallet on his lap, rejected the cocaine. Mosley then threw the crack cocaine into the truck, grabbed Rankin's wallet and ran back toward the group of young men. As he ran, he yelled "who got a gun?" When he reached the group he took money from the wallet, threw the wallet down near the group, gave some money to Stradwick ⁵ and continued to run.

Rankin got out of the truck and chased Mosley toward the group. As he ran, he yelled "I'm going to kill you n_____s."...