State v. White
Decision Date | 07 June 2013 |
Docket Number | No. 11–1336.,11–1336. |
Court | West Virginia Supreme Court |
Parties | STATE of West Virginia, Plaintiff Below, Respondent v. Richard A. WHITE, Defendant Below, Petitioner. |
OPINION TEXT STARTS HERE
Syllabus by the Court
1. Syl. Pt. 1, State v. Paynter, 206 W.Va. 521, 526 S.E.2d 43 (1999).
2. “To trigger application of the ‘plain error’ doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings.” Syl. Pt. 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).
3. Syl. Pt. 8, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).
4. “ ‘ .’ .” Syl. Pt. 8, State v. Stone, 229 W.Va. 271, 728 S.E.2d 155 (2012).
5. “ ‘ .” Syl. Pt. 9, State v. Stone, 229 W.Va. 271, 728 S.E.2d 155 (2012).
6. .” Syl. Pt. 6, State v. Harden, 223 W.Va. 796, 679 S.E.2d 628 (2009).
7. Syl. Pt. 2, State v. Whittaker, 221 W.Va. 117, 650 S.E.2d 216 (2007).
8. “The jury is the trier of the facts and in performing that duty it is the sole judge as to the weight of the evidence and the credibility of the witnesses.” Syl. Pt. 2, State v. Bailey, 151 W.Va. 796, 155 S.E.2d 850 (1967).
9. “Where there has been an unlawful homicide by shooting and the State produces evidence that the homicide was a result of malice or a specific intent to kill and was deliberate and premeditated, this is sufficient to support a conviction for first degree murder.” Syl. Pt. 3, State v. Hatfield, 169 W.Va. 191, 286 S.E.2d 402 (1982).
10. Syl. Pt. 5, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).
11. “A judgment of conviction will not be set aside because of improper remarks made by a prosecuting attorney to a jury which do not clearly prejudice the accused or result in manifest injustice.” Syl. Pt. 5, State v. Sugg, 193 W.Va. 388, 456 S.E.2d 469 (1995).
12. “Four factors are taken into account in determining whether improper prosecutorial comment is so damaging as to require reversal: (1) the degree to which the prosecutor's remarks have a tendency to mislead the jury and to prejudice the accused; (2) whether the remarks were isolated or extensive; (3) absent the remarks, the strength of competent proof introduced to establish the guilt of the accused; and (4) whether the comments were deliberately placed before the jury to divert attention to extraneous matters.” Syl. Pt. 6, State v. Sugg, 193 W.Va. 388, 456 S.E.2d 469 (1995).
13. Syllabus, State v. Gilliam, 169 W.Va. 746, 289 S.E.2d 471 (1982).
William C. Forbes, Esq., W. Jesse Forbes, Esq., Forbes Law Offices, PLLC, Charleston, WV, for Petitioner.
Patrick Morrisey, Esq., Attorney General, Scott E. Johnson, Esq., Andrew D. Mendelson, Esq., Assistant Attorneys General, Charleston, WV, for Respondent.
The petitioner, Richard A. White, appeals his March 30, 2011, jury conviction of first degree murder in the Circuit Court of Nicholas County, West Virginia. By order entered August 23, 2011, he was sentenced to life in prison without the possibility of parole. In this appeal, the petitioner contends that multiple trial errors were committed, including instructional and evidentiary errors. The petitioner also argues that there was insufficient evidence to convict him of first degree murder or to prove beyond a reasonable doubt that he did not act in self-defense. Finally, the petitioner asserts that the trial court erred by denying his motion for a new trial based upon prosecutorial and juror misconduct. Upon our consideration of the record in this matter, the briefs and arguments of the parties, the applicable legal authority, and for the reasons discussed below, we affirm the petitioner's conviction.
It is undisputed that on the night of December 2, 2009, the petitioner went to the home of the victim, Harvey Hersman (hereinafter “Mr. Hersman” or “the victim”), and shot him three times in the head resulting in his death. Shortly thereafter, in the morning hours of December 3, 2009, the petitioner gave a video-taped statement to the police during which he claimed that he had shot Mr. Hersman in self defense.1 Subsequently, the petitioner was indicted on one count of murder for causing the death of Mr. Hersman.
According to the petitioner, he traveled to the residence of his former wife, Kathy White, with his son, Robert White,2 on the evening of December 2, 2009, to retrieve some personal property he had left at her house.3 Upon learning that Ms. White was not at home, the petitioner and his son walked next door to Mr. Hersman's residence. During his video-taped statement, the petitioner told the police that he believed that Mr. Hersman and his former wife were engaged in a long-term love affair.
The petitioner stated that when they arrived at Mr. Hersman's home, his son knocked on the door, but the petitioner enteredthe house alone. In his statement to police, the petitioner initially stated that “when I walked in Harvey Hershman's [sic] house, I did have a knife[,] I did have a weapon;” 4 however, during the course of his statement, he also indicated that he gave the knife to his son, explaining that he (the petitioner) had a volatile history with Mr. Hersman, and “I didn't want to look like a threat.” 5 According to the petitioner, when he gave the knife to his son, the blade was closed. The petitioner's son, who also gave a statement to the police and testified at trial, stated that the petitioner was not angry or upset when they arrived at Mr. Hersman's house.
Thereafter, an altercation between the petitioner and the victim ensued. Ms. White, who was, in fact, at Mr. Hersman's home at the time, testified at trial 6 that as she entered the living room from the den,7 she saw the petitioner on top of the victim on the couch in the living room.8 She then heard the victim yell for her to get the petitioner off of him. Ms. White fled the home and ran past the petitioner's son, who was standing on the front porch. Ms. White, who testified that she did not see who started the altercation, called 9–1–1.
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