State v. Williams

• Decision Date: 27 June 1983
• Docket Number: No. 15746,15746
• Citation: 172 W.Va. 295,305 S.E.2d 251
• Parties: STATE of West Virginia v. David WILLIAMS.
• Court: West Virginia Supreme Court

Page 251

305 S.E.2d 251

172 W.Va. 295

STATE of West Virginia v. David WILLIAMS.

No. 15746.

Supreme Court of Appeals of West Virginia.

June 27, 1983.

Syllabus by the Court

1. "In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. 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, State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978).

2. "To warrant a change of venue in a criminal case, there must be a showing of good cause therefor, the burden of which rests on the defendant, the only person who, in any such case, is entitled to a change of venue. The good cause aforesaid must exist at the time application for a change of venue is made. Whether, on the showing made, a change of venue will be ordered, rests in the sound discretion of the trial court; and its ruling thereon will not be disturbed, unless it clearly appears that the discretion aforesaid has been abused." Syl. pt. 2, State v. Wooldridge, 129 W.Va. 448, 40 S.E.2d 899 (1946).

3. The "good cause" which an accused must show to be entitled to a change of venue on the ground of prejudicial pretrial publicity is the existence of a present, hostile sentiment against him, arising from the adverse publicity, which extends throughout the county in which the offense was committed, and which precludes the accused from receiving a fair trial in that county.

4. A defendant who seeks a mistrial on the ground that the jury has been improperly influenced by prejudicial publicity disseminated during trial must make some showing to the trial court at the time the motion is tendered that the jurors have in fact been exposed to such publicity.

5. If it is determined that publicity disseminated by the media during trial raises serious questions of possible prejudice, the court may on its own motion or shall on motion of either party question each juror, out of the presence of the others, about his exposure to that material.

6. Where a defendant in a criminal trial declines the opportunity to poll the jurors as to their exposure to possibly prejudicial publicity disseminated during trial, such error is waived and may not be raised after the return of the verdict in a motion for a new trial, unless the defendant produces evidence that shows that some member of the jury was improperly influenced by such publicity.

7. A defendant charged with murder of the first degree is entitled to question potential jurors on voir dire to determine whether any of them are unalterably opposed to making a recommendation of mercy in any circumstances in which a verdict of guilt is returned.

8. 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.

Tutwiler, LaCaria & Murensky, Rudolph J. Murensky, II and Philip A. LaCaria, Welch, for appellant.

Chauncey H. Browning, Atty. Gen. and S. Clark Woodroe, Asst. Atty. Gen., Charleston, for appellee.

McGRAW, Chief Justice:

David Williams appeals from the final order of the Circuit Court of McDowell County sentencing him to imprisonment in the West Virginia Penitentiary for Men at Moundsville. The appellant was convicted after a jury trial of the following crimes: murder of the first degree without a recommendation of mercy, for which he was sentenced to life imprisonment without possibility of parole; arson in the first degree, for which he was sentenced to an indeterminate term of imprisonment of not less than two nor more than twenty years; robbery, for which he was sentenced to a determinate term of imprisonment of forty years. The appellant raises numerous assignments of error including errors in sentencing. We affirm the appellant's conviction, but remand the case for resentencing.

In February 1981, the appellant and Floyd Franklin were jointly indicted by a McDowell County Grand Jury on charges of murder of the first degree, arson in the first degree and robbery, all in connection with the death of Harold Testerman. Pursuant to a motion for severance, Franklin was tried first in April, 1981. The jury acquitted Franklin of the murder and arson charges, but found him guilty of robbery. Franklin was subsequently sentenced to imprisonment in the penitentiary for a term of forty years.

The appellant's trial was set for July. On June 8, 1981, the appellant filed a motion for a change of venue. After a hearing on the matter on June 16, 1981, the circuit court denied the motion. The appellant's case moved to trial on July 22, 1981, and the next day, the jury returned a verdict of guilty on all counts contained in the indictment. A hearing on the appellant's motion to set aside the verdict was held on July 31, 1981, at the conclusion of which the circuit court entered an order denying the motion and sentencing the appellant. It is from this order that the appellant now appeals.

The evidence at trial was essentially as follows: On the afternoon of Sunday, December 7, 1980, Harold Testerman drove his Chevrolet pickup truck into the driveway of his home at Marytown, McDowell County. The 49-year-old Testerman, who lived alone, had been away hunting during the weekend. At approximately 5:30 p.m. he visited a neighbor and told her that he was going to a wake at the home of another neighbor. The pickup truck remained parked in the driveway throughout the evening.

At approximately 11:15 p.m. a neighbor saw two people, whom he could not identify, driving Harold Testerman's pickup truck away from the house at a high rate of speed. He thought it unusual for Mr. Testerman to be out that late at night and to be driving that fast. About 15 minutes later, a fire was reported at the Testerman residence by another neighbor, who noticed that Mr. Testerman's truck was not in the driveway at the time. The fire fighters who extinguished the blaze and the investigating police officers found the interior of the dwelling in disarray. Desk and dresser drawers had been pulled out and the furniture overturned. In the gutted living room of the house they found the charred remains of Harold Testerman's body. The body was sent to the office of the State Medical Examiner for an autopsy and the State Fire Marshal was called in to investigate the fire.

The autopsy, performed by Dr. Irvin M. Sopher, revealed that Mr. Testerman died sometime between 11:00 p.m. and midnight as the result of severe head injuries caused by an extremely forceful blow to the head with a blunt instrument. Traces of soot in the trachea and lungs and of carbon monoxide in the blood indicated that Mr. Testerman had been alive during the fire, but Dr. Sopher concluded that the fire had been only a contributing factor in the death since Mr. Testerman would have died of the head injuries within a short period of time even if there had been no fire. Dr. Sopher testified that the police description of the scene ruled out any possibility that the head injuries were the result of a structural collapse during the fire. No traces of alcohol or drugs were found in the body.

The Assistant State Fire Marshal's investigation of the scene revealed that the fire had originated in the interior of the Testerman house and had two separate and unconnected points of origin. The fire which did the most extensive damage originated in the living room sofa. A smaller, secondary fire originated on the living room floor in the approximate area where the head of the victim was located. No apparent accidental cause for the fires was found, and the Assistant State Fire Marshal concluded that they had been set intentionally.

The police began looking for the appellant and Floyd Franklin for questioning in connection with the death of Harold Testerman immediately after the fire. One witness had seen the two men together in the vicinity of the Testerman residence at approximately 1:30 p.m. on the day of the murder and again at approximately 9:00 p.m. Another witness, Steven Ray Duncan, later told the police that he had seen the appellant and Franklin in the area during the three or four hours immediately preceeding the fire. Sometime after 10:00 p.m. Duncan was approached by the appellant, who asked him to keep watch while the appellant burned down Testerman's house. When Duncan refused, the appellant grabbed him by the arm and threatened him, refusing to let him go until he promised to tell no one about the conversation. Duncan stated that he could tell that the appellant had been drinking.

The police were not immediately able to locate either the appellant or Floyd Franklin. On December 17, 1980, Franklin was located and questioned by the authorities. After talking to Duncan, the police obtained arrest warrants for the appellant and Franklin on December 30, 1980. Franklin was arrested that same day, but the police were still unable to locate the appellant. On December 31, 1980, the McDowell County authorities were notified that Harold Testerman's pickup truck had been discovered, wrecked and abandoned, in a wooded area in Randolph County, North Carolina, 1.1 miles from the residence of a sister of the appellant. The license plates and the serial number plate affixed to the dashboard of the vehicle had been removed, and the tires, wheels, carburetor and alternator were missing.

The police were unable to discover the whereabouts of the appellant until January 16, 1981, when they were informed that the appellant was staying with his family in Big Jenny Hollow, McDowell County. Several officers went to the home of the appellant...