State v. Wheeler

• Decision Date: 28 May 1992
• Docket Number: No. 20286,20286
• Citation: 187 W.Va. 379,419 S.E.2d 447
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Gary WHEELER, Defendant Below, Appellant.

Page 447

419 S.E.2d 447

187 W.Va. 379

STATE of West Virginia, Plaintiff Below, Appellee, v. Gary WHEELER, Defendant Below, Appellant.

No. 20286.

Supreme Court of Appeals of

West Virginia.

Submitted Jan. 21, 1992.

Decided May 28, 1992.

Syllabus by the Court

1. " 'After a witness other than the defendant has testified on direct examination, the court, on motion of a party who did not call the witness, shall order the attorney for the State or the defendant and his attorney, as the case may be, to produce for the examination and use of the moving party any statement of the witness that is in their possession that relates to the subject matter concerning which the witness has testified.' Rule 26.2, West Virginia Rules of Criminal Procedure." Syllabus point 1, State v. Tanner, 175 W.Va. 264, 332 S.E.2d 277 (1985).

2. "A prosecution that withholds evidence which if made available would tend to exculpate an accused by creating a reasonable doubt as to his guilt violates due process of law under Article III, Section 14 of the West Virginia Constitution." Syllabus point 4, State v. Hatfield, 169 W.Va. 191, 286 S.E.2d 402 (1982).

3. "When a trial court grants a pre-trial discovery motion requiring the prosecution to disclose evidence in its possession, non-disclosure by the prosecution is fatal to its case where such non-disclosure is prejudicial. The non-disclosure is prejudicial where the defense is surprised on a material issue and where the failure to make the disclosure hampers the preparation and presentation of the defendant's case." Syllabus point 2, State v. Grimm, 165 W.Va. 547, 270 S.E.2d 173 (1980).

4. " ' "As a general rule photographs of persons, things, and places, when duly verified and shown by intrinsic evidence to be faithful representations of the objects they purport to portray, are admissible in evidence as aids to the jury in understanding the evidence; and whether a particular photograph or groups of photographs should be admitted in evidence rests in the sound discretion of the trial court and its ruling on the question of the admissibility of such evidence will be upheld unless it clearly appears that its discretion has been abused." Syl. pt. 1, Thrasher v. Amere Gas Utilities Co., 138 W.Va. 166, 75 S.E.2d 376 (1953), appeal dismissed, 347 U.S. 910, 74 S.Ct. 478, 98 L.Ed. 1067 (1954).' Syllabus point 2, State v. Dunn, 162 W.Va. 63, 246 S.E.2d 245 (1978)." Syllabus point 4, State v. Deskins, 181 W.Va. 112, 380 S.E.2d 676 (1989).

5. 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. For this reason, courts tend to look upon testimony by a surviving spouse with disfavor. However, the admission of such evidence does not necessarily constitute reversible error.

6. "Great latitude is allowed counsel in argument of cases, but counsel must keep within the evidence, not make statements calculated to inflame, prejudice or mislead the jury, nor permit or encourage witnesses to make remarks which would have a tendency to inflame, prejudice or mislead the jury." Syllabus point 2, State v. Kennedy, 162 W.Va. 244, 249 S.E.2d 188 (1978).

Kristen L. Keller, Deputy Pros. Atty., Beckley, for appellee.

C. Cooper Fulton, Kanawha County Public Defender, Charleston, for appellant.

BROTHERTON, Justice:

The appellant, Gary Wheeler, was convicted of malicious wounding, two counts of attempted murder, and first-degree murder as a result of incidents which took place between 2:00 a.m. and 3:00 a.m. on February 21, 1990, in the parking lot of a Super 8 Motel in Beckley, West Virginia. Wheeler turned himself in to police later that day. A jury trial was held from August 13-15, 1990, and Wheeler subsequently received sentences of life without mercy and four-to-twenty years in the State penitentiary. He now appeals his conviction.

In order to facilitate our discussion of the issues raised on appeal, we will briefly recount the events leading up to the shootings. It is apparent from the record that the parties in this case were involved in several encounters in the late night and early morning hours of February 20 and 21, 1990. The appellant, Gary Wheeler, spent the evening drinking at various bars in Raleigh County with Richard Spencer and Gerald Day. According to the appellant, both Spencer and Day were drunk.

That same night, Kevin Prunty, Gary Fluharty, and Eugene Chipps were drinking at Eden's Lounge in the Holiday Inn in Beckley. All three men were truck drivers who were working for a Harrisville, West Virginia, company. Evidence presented at trial indicated that Kevin Prunty was very drunk. At closing time, Wheeler, Spencer, and Day were in the parking lot making arrangements to meet three women at another club. Eugene Chipps was also talking with one of these women and obtained her phone number. Either Wheeler or someone in his group yelled a derogatory remark out the car window as they were leaving, and Fluharty, Prunty, and Chipps began chasing the car on foot.

A confrontation followed when the car stopped at a red light. Fluharty slapped the car with his hand and asked whether there was a problem. Wheeler put the car in reverse and then backed up, knocking Prunty down. Wheeler then proceeded through the intersection, and the truckers watched as the car pulled into the nearby Check Mark Club. According to Chipps, he, Fluharty, and Prunty "decided to go see what the problem really was." Kevin Prunty was furious about being hit by the car, and he got a tire iron out of his truck. The three men then got into Fluharty's truck and drove to the Check Mark Club, which was closed. Kevin Prunty ran toward the car being driven by Wheeler and hit the hood and the passenger side of the vehicle with the tire iron. The three women arrived at about this time, but were apparently frightened and went back to Eden's Lounge. Prunty and friends returned to the Super 8 Motel in Fluharty's truck, while Wheeler, Spencer, and Day went to a nearby Omelette Shoppe.

Lisa Stover was a waitress who was working in the Omelette Shoppe that night. According to her trial testimony, she had known Wheeler for about two months, and they had dated for approximately two weeks. Wheeler came into the Omelette Shoppe at around 3:00 a.m., accompanied by two men, one of whom remained in the car. Wheeler told Stover that there had been a fight at the Holiday Inn and that someone dented the car with a ball bat. Stover testified that Wheeler was quite angry and upset, and that she offered him coffee and tried to get him to calm down. When Wheeler's friend, Spencer, emerged from the restroom, Wheeler said that he was going to go mess the men up and that he would be back in fifteen minutes.

Wheeler returned first to the Eden's Lounge parking lot at the Holiday Inn. One of the three women, Debbie Williams, asked Wheeler why the men had started hitting the car. Wheeler reportedly told these women that he was going to see what the guy's problem was and that he would be back. The three women waited for a while, but eventually left.

When the truckers returned to the Super 8 Motel, Fluharty parked to the left of the motel in a gravel parking lot. Chipps talked briefly with the desk clerk, Mary Farruggia, and told her about what had happened that evening. Prunty remained in the parking lot and was apparently still carrying the tire iron. Chipps saw the car driven by Wheeler enter the parking lot and, according to Mary Farruggia, Chipps said, "Oh, God, it's them." Farruggia saw Chipps and Fluharty walk side by side towards the car. Two men suddenly stepped out from the driver and passenger side doors. The driver, Wheeler, had a gun and started shooting. Chipps stated that he "felt" a bullet go by when he was about fifteen to twenty feet from the car, and Fluharty yelled, "Chip, I've been shot."

Kevin Prunty testified that when he first saw the car driven by Wheeler pull into the Super 8 parking lot, he hid between the trucks. When he realized that Wheeler had a gun, he yelled to Fluharty, "Run, he's got a gun." Prunty heard one shot and then he was hit, at which time he dropped the tire iron. According to Chipps, after Wheeler stopped shooting, Wheeler said "sorry," and then "he just got in and shut the door and drove off."

At trial, the State called twenty-five witnesses and introduced thirty-nine exhibits as evidence to support its theory that on February 21, 1990, while driving Richard Spencer's car, Wheeler followed the victims to the Super 8 Motel parking lot, circled behind the motel, stopped by the entrance, stepped out of the driver's seat holding Spencer's semi-automatic weapon, and immediately fired at least five rounds at the victims, injuring both Prunty and Fluharty before leaving the scene. Fluharty sustained massive neck wounds and died from his injuries two days later.

Lisa Stover testified that several days after Wheeler was arrested, he called her from the Raleigh County Jail. Stover stated that she asked what happened on the night in question. According to Stover, Wheeler "said that he killed the guy." When Stover told him she could not believe it, "he said that he was pretty mad that night."

The appellant presented no evidence and did not testify at trial. However, defense counsel attempted to characterize Wheeler's actions as "excusable homicide by misadventure," rather than self-defense. The defense maintained that Fluharty, Chipps, and Prunty ran toward Wheeler's car after he circled the motel and that Prunty still had the tire iron in his hand as he approached the car. These men continued to approach even when Wheeler stood outside of the car with the gun in his hand and fired two warning shots. Then, as Wheeler was getting back into the car, the gun accidentally discharged three more times, and he shot both Prunty...