State v. Walker

• Decision Date: 17 December 1992
• Docket Number: No. 21023,21023
• Citation: 188 W.Va. 661,425 S.E.2d 616
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Appellee, v. Jack Earl WALKER, Appellant.

Page 616

425 S.E.2d 616

188 W.Va. 661

STATE of West Virginia, Appellee, v.Jack Earl WALKER, Appellant.

No. 21023.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 8, 1992.

Decided Dec. 17, 1992.

Syllabus by the Court

1."In a prosecution for first-degree murder, the State must submit jury instructions which distinguish between the two categories of first-degree murder--willful, deliberate, and premeditated murder and felony-murder--if, under the facts of the particular case, the jury can find the defendant guilty of either category of first-degree murder.When the State also proceeds against the defendant on the underlying felony, the verdict forms provided to the jury should also reflect the foregoing distinction so that, if a guilty verdict is returned, the theory of the case upon which the jury relied will be apparent."Syl. pt. 9, State v. Giles, 183 W.Va. 237, 395 S.E.2d 481(1990).

2.The State need not elect whether it will proceed on premeditated murder or felony murder until the close of all evidence; however, a defendant may make a motion to force an earlier election if he can make a strong, particularized showing that he will be prejudiced by further delay in electing.

3.The granting of a motion to force the State to elect rests within the discretion of the trial court, and such a decision will not be reversed unless there is a clear abuse of discretion.

4."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 may properly be convicted."Syl. pt. 3, State v. Gum, 172 W.Va. 534, 309 S.E.2d 32(1983).

5."Where the record of a criminal trial shows that the cumulative effect of numerous errors committed during the trial prevented the defendant from receiving a fair trial, his conviction should be set aside, even though any one of such errors standing alone would be harmless error."Syl. pt. 5, State v. Smith, 156 W.Va. 385, 193 S.E.2d 550(1972).

6."Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent preparation, plan, knowledge, identity, or absence of mistake or accident.W.Va.R.Evid. 404(b)."Syl. pt. 1 State v. Edward Charles L., Sr., 183 W.Va. 641, 398 S.E.2d 123(1990).

7."Under the requirements of the Confrontation Clause contained in the Sixth Amendment to the United States Constitution, evidence offered under the residual hearsay exceptions contained in Rule 803(24)andRule 804(5) of the West Virginia Rules of Evidence is presumptively unreliable because it does not fall within any firmly rooted hearsay exception, and, therefore, such evidence is not admissible.If, however, the State can make a specific showing of particularized guarantees of trustworthiness, the statements may be admissible.In this regard, corroborating evidence may not be considered, and it must be found that the declarant's truthfulness is so clear that cross-examination would be of marginal utility."Syl. pt. 6, State v. James Edward S., 184 W.Va. 408, 400 S.E.2d 843(1990).

Stephen D. Herndon, Wheeling, for appellant.

Richard M. Gutmann, Asst. Atty. Gen., for appellee.

NEELY, Justice:

In this appeal the defendant was convicted of felony murder and arson and was sentenced to life without mercy.Although standing alone the errors defendant assigns might be harmless, the cumulative effect of numerous errors hopelessly tainted the first trial.Therefore, we reverse the conviction and remand the case for a new trial.I.

On 9 May 1989, a dark, rainy night, a fire broke out at Mary Sherwood's residence on Elk Fork Road in Tyler County(about a mile from the Wetzel County border).After firefighters battled the blaze for several hours, rescuers were finally able to search the house for survivors.The only body they found was that of Ms. Sherwood, her remains burned beyond recognition.An autopsy discovered a bullet fragment in Mrs. Sherwood's head.It is clear that either the bullet wound or the fire would have caused Mrs. Sherwood's death.As the coroner, Dr. Sopher, noted:

[T]he only other injury ... to the body other than that due to fire and heat was a gunshot wound to the head....[I]n time, the gunshot wound would have resulted in death without a question; however, the actual cause of death, in the final analysis after the examination, was not the injury to the head but that she had died in the fire of smoke and soot inhalation.

Transcript, 21 March 1990, at 127.

Fire marshals examined the house after the fire was extinguished and concluded that the fire was likely caused by arson because there were five disconnected circular "burn-through" spots in the floor.No traces of accelerant were found, but the fire marshal indicated that it was not unusual for all traces of accelerant to be burned up in a fire of that intensity.

As the fire burned, a small crowd gathered to watch the firefighters extinguish the blaze.Sheriff Adams of Wetzel County along with Sheriff Keller and Deputy Kendle from Tyler County arrived at the scene.Several witnesses indicated to the officers that they had seen a two-toned blue car driving in the area earlier that day, and the witnesses also mentioned that the car had one headlight out and made a squealing noise.One witness, Mrs. Leek, said she had seen a car come "flying out of Mary's lane."Mrs. Leek described the car as being the same as the one she and her husband had seen earlier in the day.After being shown the car driven by Mr. Walker, Mrs. Leek identified it as the car she had seen earlier.Sheriff Adams recognized the car as Mr. Walker's.

After this identification of the car, Sheriff Keller interviewed Mr. Walker.The Sheriff read Mr. Walker the Miranda warnings and informed Mr. Walker that he was considered a suspect.The Sheriff then swabbed Mr. Walker's hands, searching for traces of accelerant.Laboratory tests later revealed that there was no accelerant on Mr. Walker's hands, no evidence of gunpowder residue, and no indication that Mr. Walker's hands had been recently washed.After asking Mr. Walker a few more questions, Sheriff Keller allowed Mr. Walker to go home.

Mr. Walker (who was admittedly in the area on the day of the fire) maintains that he had been in the neighborhood looking for a lost coon dog.Mr. Walker was back that night, looking for a fan belt or alternator belt that he thought he had lost that day.That missing belt was the cause of the squealing emanating from his car.Mr. Walker's car had one headlight out, as well.However, one of the strongest elements of circumstantial evidence tending to incriminate Mr. Walker was that he was five miles from his home and present among the crowd when the fire was burning--typical behavior for an arsonist.

Mr. Walker was convicted of both felony murder and arson.The State waived sentencing on the arson, but Mr. Walker was sentenced to life without mercy on the murder charge.Mr. Walker now asserts here that: (1)The court erred by instructing the jury only on felony murder; (2)the court erred in failing to grant a directed verdict or judgment notwithstanding the verdict due to the vague, circumstantial nature of the evidence; (3)the court erred in admitting evidence of unrelated weapons and unrelated conduct; (4)the court erred in admitting into evidence damning hearsay testimony and an inaccurate videotape; and (5)the court failed to grant a motion to change venue, failed to allow individual voir dire by counsel, and failed to grant a mistrial because a prospective juror declared that he believed Mr. Walker was guilty in front of the rest of the prospective jury panel.

II.

The prosecution began its case by asserting a theory of premeditated murder.In his opening argument, the prosecutor made it clear that the State was trying to convict Mr. Walker of premeditated murder:

Now, the indictment in this case which is an accusation charges that Jack Walker willfully and maliciously killed, slain, [sic] and murdered Mary Sherwood and committed first degree arson by maliciously and willfully setting fire to her house on May 9th of last year.

Transcript, 19 March 1990, at 88.However when it came time for the jury instructions, the State offered instructions only on felony murder and arson, not premeditated murder.The jury subsequently convicted Mr. Walker of both felony murder and the underlying felony of arson.Although the State waived sentencing on the arson conviction, the arson conviction was still entered against Mr. Walker's record.

The conviction of Mr. Walker on both felony murder and arson charges was impermissible:

"Double jeopardy prohibits an accused charged with felony murder, as defined by W.Va.Code § 61-2-1(1977 Replacement Vol.,) from being separately tried or punished for both murder and the underlying enumerated felony."Syllabus point 8, State v. Williams, W.Va. , 305 S.E.2d 251(1983).

Syl. pt. 8, State v. Giles, 183 W.Va. 237, 395 S.E.2d 481(1990).The State admits that the case should be remanded for the trial court to correct the arson conviction.Mr. Walker, however, contends something more fundamental is wrong with the way that the charge was shifted from premeditated murder to felony murder.First, Mr. Walker asserts that the shift caused evidence to be introduced against him that was irrelevant.Second, the shift prohibited him from having the jury instructed concerning the lesser-included offenses under a premeditated murder indictment, such as second-degree murder and manslaughter.Finally, the shift precluded him from raising a possible defense.

In order to prevent double jeopardy problems when a defendant is charged with felony murder, we held in Syl. pt. 9 of Giles, supra, that:

In a prosecution for first-degree...