State v. Young

• Citation: 173 W.Va. 1,311 S.E.2d 118
• Decision Date: 10 November 1983
• Docket Number: No. 15785,15785
• Court: Supreme Court of West Virginia
• Parties: STATE of West Virginia v. John Lewis YOUNG.

Page 118

311 S.E.2d 118

173 W.Va. 1

STATE of West Virginia v. John Lewis YOUNG.

No. 15785.

Supreme Court of Appeals of West Virginia.

Nov. 10, 1983.

Concurring Opinion Dec. 19, 1983.

Syllabus by the Court

1. Upon retrial of a criminal defendant, who has previously been convicted of second degree murder under a general homicide indictment, the court may not impose judgment for a more serious degree of homicide than that imposed at the original trial.

2. "Widespread publicity, of itself, does not require change of venue, and neither does proof that prejudice exists against an accused, unless it appears that the prejudice against him is so great that he cannot get a fair trial." Syllabus Point 1, State v. Gangwer, W.Va., 286 S.E.2d 389 (1982).

3. It is a fundamental tenet of due process, guaranteed by the sixth and fourteenth amendments to the United States Constitution and by article III, sections 10 and 14 of the West Virginia Constitution, that a criminal defendant is entitled to trial by an impartial and objective jury free from outside influence.

4. In determining whether sequestration of the jury during trial of a felony is required as a matter of due process to prevent contamination of the verdict, numerous factors must be considered. These include: the nature of the crime with which the defendant is charged; the existence and pervasiveness of pre-trial publicity provided by print and electronic media; whether any such publicity is prejudicial to the defendant; the existence of daily newspapers, or television or radio stations which can be expected to provide continuing media coverage of the trial; expressed public sentiment for or against the accused; the expected length of trial; the physical facilities of the courthouse where trial will take place and whether they provide an exclusive means of ingress and egress for members of the jury; and any other factors which may be considered relevant in the issue of sequestration of the jury.

5. Either party may move for sequestration of the jury prior to trial or at any time during the course of trial. Further, in appropriate circumstances, sequestration is a matter which should be raised sua sponte by the trial court. When sequestration is requested by motion, counsel should provide the trial court with an adequate basis to support a finding that there is a reasonable probability that, absent sequestration, the jury will be exposed to outside influences which could improperly taint their verdict. Once this initial showing is made, the burden falls upon the party opposing the motion to demonstrate that sequestration is not necessary to vindicate the due process guaranty of a fair trial by an impartial jury free from outside influences. The trial court's findings of fact and conclusions of law on the issue of sequestration shall be made a matter of record. Whenever sequestration is ordered pursuant to motion, the court, in advising the jury of the decision, shall not disclose which party requested sequestration.

6. "In order for photographs to come within our gruesome photograph rule established in State v. Rowe, W.Va., 259 S.E.2d 26 (1979), there must be an initial finding that they are gruesome." Syllabus Point 6, State v. Buck, W.Va., 294 S.E.2d 281 (1982).

7. "Before a physical object connected with a crime may properly be admitted into evidence, it must be shown that the object is in substantially the same condition as when the crime was committed. Factors to be considered in making this determination are: (1) the nature of the article, (2) the circumstances surrounding its preservation and custody, and (3) the likelihood of intermeddlers tampering with it." Syllabus Point 1, State v. Davis, W.Va., 266 S.E.2d 909 (1980).

8. "The preliminary issue of whether a sufficient chain of custody has been shown to permit the admission of physical evidence is for the trial court to resolve. Absent abuse of discretion, that decision will not be disturbed on appeal." Syllabus Point 2, State v. Davis, W.Va., 266 S.E.2d 909 (1980).

9. "A spontaneous statement by a defendant made prior to any action by a police officer or before an accusation, arrest or any custodial interrogation is made or undertaken by the police may be admitted into evidence without the voluntariness thereof first having been determined in an in camera hearing." Syllabus Point 3, State ex rel. White v. Mohn, W.Va., 283 S.E.2d 914 (1981) (quoting Syllabus Point 2, State v. Johnson, W.Va., 226 S.E.2d 442 (1976)).

10. "An indictment which charges that the defendant feloniously, wilfully, maliciously, deliberately, premeditatedly and unlawfully did slay, kill and murder is sufficient to support a conviction for murder committed in the commission of, or attempt to commit arson, rape, robbery or burglary, it not being necessary, under W.Va.Code, 61-2-1, to set forth the manner or means by which the death of the deceased was caused." Syllabus Point 5, State v. Bragg, W.Va., 235 S.E.2d 466 (1977).

11. "An instruction to the jury is proper if it is a correct statement of the law and if sufficient evidence has been offered at trial to support it." Syllabus Point 8, State v. Hall, W.Va., 298 S.E.2d 246 (1982).

Stephen C. Littlepage, Point Pleasant, for appellant.

Chauncey H. Browning, Jr., Atty. Gen. and Fredrick S. Wilkerson and Janet Frye Steele, Asst. Attys. Gen., Charleston, for appellee.

McGRAW, Chief Justice:

John Lewis Young appeals his conviction of first degree murder rendered by jury verdict on December 18, 1981, in the Circuit Court of Mason County. The appellant makes ten assignments of error, which have been consolidated into seven arguments for purposes of appeal: 1) the trial court erred in imposing a harsher sentence upon retrial than that imposed at the original trial of the appellant; 2) the trial court erred in denying the appellant's motion for a change of venue; 3) the trial court erred in refusing to sequester the jury; 4) the trial court erred in permitting a photograph of the deceased victim's remains to be entered into evidence and displayed to the jury; 5) the trial court erred in admitting into evidence certain exhibits, when the State failed to establish a proper chain of custody or to otherwise connect them to the appellant; 6) the trial court erred in admitting into evidence two copies of a confession purportedly signed by the appellant; and 7) the trial court erred in permitting the State to proceed upon a felony-murder theory. We find merit in the appellant's first assignment of error, and, therefore remand the case for resentencing of the appellant.

In January of 1977, the appellant was indicted by the Mason County Grand Jury for the murder of Mary Lucille Berry. Trial was originally scheduled in the Circuit Court of Mason County. However, after several unsuccessful attempts to secure an impartial panel of prospective jurors, the proceedings were transferred to the Circuit Court of Wood County, where in November of 1977 the appellant was convicted of second degree murder. The appellant was subsequently sentenced to a term of five to eighteen years in the State Penitentiary at Moundsville.

On March 26, 1981, the United States District Court for the Northern District of West Virginia entered an order granting the appellant's petition for a writ of habeas corpus on the grounds that an instruction given at the appellant's trial was essentially identical with an instruction found to be reversible error in State v. O'Connell, W.Va., 256 S.E.2d 429 (1979). The court stayed execution of the writ for ninety days to permit the State to retry the appellant.

Prior to retrial, the circuit court denied the appellant's motion for a change of venue and his motion to sequester the jury. The appellant's retrial lasted nine days. The most significant evidence against the appellant consisted of the testimony of Terry Brainard, the appellant's nephew and alleged accomplice. Brainard testified that he and the appellant went to the home of the victim in order to rob her. They forced their way into the house and the appellant took Mrs. Berry upstairs where he sexually assaulted her, and then killed her, while Brainard searched downstairs for money. Also admitted into evidence were two copies of a confession which the appellant had signed, admitting that he had killed Mrs. Berry. The appellant's defense consisted primarily of an attempt to show diminished capacity by reason of intoxication and to implicate Brainard, and not the appellant, as the killer.

At the conclusion of the nine-day trial, the jury found the appellant guilty of murder in the first degree. The jury verdict did not include a recommendation of mercy. The trial court subsequently sentenced the appellant to confinement in the penitentiary for the balance of his natural life. The court denied the appellant's motion to reduce the sentence to one no greater than imposed upon the appellant at his original trial.

I.

In his first assignment of error, the appellant protests the imposition of a harsher sentence upon retrial than that imposed pursuant to his original conviction. The appellant argues that the imposition of the harsher sentence is a violation of the double jeopardy provisions of the fifth and fourteenth amendments to the United States Constitution.

The propriety of imposing a harsher sentence upon retrial of a criminal defendant has been recently considered by this Court on three different occasions. In State v. Eden, W.Va., 256 S.E.2d 868 (1979), the defendant was originally found guilty of reckless driving in a justice of the peace court and was fined fifty dollars. He then applied for a trial de novo in circuit court. The trial de novo resulted in a jury verdict of guilty, and the court imposed a thirty day sentence and a fine of two hundred dollars. On appeal, this Court held that the imposition of a harsher sentence by the circuit court than that imposed by the justice of the peace court...