State v. Young

• Decision Date: 19 December 1980
• Docket Number: No. 14143,14143
• Citation: 273 S.E.2d 592,166 W. Va. 309
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Gary L. YOUNG.

Page 592

273 S.E.2d 592

166 W.Va. 309

STATE of West Virginia v.Gary L. YOUNG.

No. 14143.

Supreme Court of Appeals of West Virginia.

Dec. 19, 1980.

Syllabus by the Court

1." 'In a criminal case where the State confesses error, urges that the judgment be reversed and that the defendant be granted a new trial, this Court, upon ascertaining that the errors confessed are reversible errors and do in fact constitute cause for the reversal of the judgment of conviction, will reverse the judgment and grant the defendant a new trial.'Syl.State v. Goff, W.Va., 221 S.E.2d 891(1976)";State v. Cokeley, W.Va., 226 S.E.2d 40(1976).

2.An alleged spontaneous declaration must be evaluated in light of the following factors: (1) The statement or declaration made must relate to the main event and must explain, elucidate, or in some way characterize that event; (2) it must be a natural declaration or statement growing out of the event, and not a mere narrative of a past, completed affair; (3) it must be a statement of fact and not the mere expression of an opinion; (4) it must be a spontaneous or instinctive utterance of thought, dominated or evoked by the transaction or occurrence itself, and not the product of premeditation, reflection, or design; (5) while the declaration or statement need not be coincident or contemporaneous with the occurrence of the event, it must be made at such time and under such circumstances as will exclude the presumption that it is the result of deliberation; and (6) it must appear that the declaration or statement was made by one who either participated in the transaction or witnessed the act or fact concerning which the declaration or statement was made.

3.What is required for a dying declaration to be admissible is that the declarant have such a belief that he is facing death as to remove ordinary worldly motives for misstatement.In that regard, the court may consider the totality of the circumstances of motive to falsify and the manner in which the statement was volunteered or elicited.

4.The law pertaining to the admissibility of dying declarations does not require that one in extremis abandon all hope in fatalistic resignation but rather, requires that one believe that he is moving across the inevitable threshold into eternity.

5."As a general rule, an expressed intent of an accused to kill a certain person is not pertinent on his trial for killing another, but it may become pertinent and admissible under circumstances showing a connection between the threat and subsequent conduct of the accused ...."Syl. Pt. 2(in part), State v. Corey, 114 W.Va. 118, 171 S.E. 114(1933).

Lane O. Austin, Sanders & Austin, Billy E. Burkett, Veneri & Burkett, Princeton, for plaintiff in error.

Chauncey H. Browning, Atty. Gen., Homer A. Speaker, Asst. Atty. Gen., Charleston, for defendant in error.

McGRAW, Justice:

The appellant, Gary L. Young, was convicted in the circuit court of Mercer County of first degree murder after the shooting death of his ex-wife, Pamela Young and was sentenced to life imprisonment without the opportunity for parole.He assigns several grounds as error and asks for a new trial.He objects to certain jury instructions and argues that the lower court erred in admitting into evidence statements made by the deceased before and after the incident.He also objects to the admission of other testimony and contends that the lower court should have granted him a change of venue.We find merit in some of the grounds he assigns and award him a new trial.

Gary was nineteen and Pamela was sixteen when they were married February 7, 1968.On their wedding night, Pamela bore their daughter Lisa but the couple told no one about the child, desiring to keep the birth secret.Gary then moved to Charleston with the baby and Pamela remained in school in the Princeton area.Gary found a woman to care for the child in Charleston and got a job.He also attended college in Montgomery.On the couple's first wedding anniversary, Gary was hitchhiking from Montgomery to Princeton to see Pamela when the car in which he was riding was involved in a serious accident.Gary suffered a broken neck and spinal cord injury which rendered him a quadriplegic.His lower extremities, hands, and fingers are completely paralyzed.He does have the use of his arms, shoulders and neck.Gary spent almost two years in Charleston undergoing treatment and rehabilitation therapy.During much of this time, Pamela lived in Charleston and attended beautician's school.In January of 1971, the couple moved to Pamela's parent's home in Pinoak and she got a job in a beauty shop.The existence of the child had become known to their families shortly after the automobile accident and Gary spent most of his time with her baby sitting.

The couple contemplated divorce while Gary was in the hospital.At his trial, Gary testified that he wanted Pamela to make her own life: that she was young and could start again.The State introduced evidence that Gary was bitter because of his condition and resentful of his wife.The couple separated in October of 1973 and were divorced in February of 1974.The divorce, however was not final until April of 1975.

Just before 10:00 a.m. on January 21, 1976, Pamela Young was about to enter a bowling alley in Bluefield to attend her regular bowling league.As she got out of her car, a dark blue car pulled in behind hers.Taylor Moore, the owner of the B & T Quick Mart located next to the bowling alley, was looking from the window of his store when he noticed the car pull in behind Pamela Young's car.Mr. Moore saw acts which led him to conclude that there was a conversation between Pamela Young and the occupant of the blue car.¹According to his testimony, the person in the car thrust a red and white package towards Pamela.Before she took the package, it jumped "a couple of times".²Pamela stepped back from the car, clutched her abdomen and ran into Taylor Moore's store, exclaiming that she had been shot and that the rescue squad should hurry because she was dying.Moore called the rescue squad and the police and returned to Pamela who, at this point, was lying on the floor in front of the checkout counter.Moore asked her her name and she responded.He then asked her who shot her and she answered, "my ex-husband".Moore asked, "What was his name?"She replied, "Gary".He asked her if Gary's last name was the same as hers and she responded, "Yes, Young".

Pamela Young was taken to the Bluefield Sanitarium.Medical personnel determined that one bullet had penetrated the top of her right breast, exited the bottom of the breast and reentered her body through her abdomen.Due to profuse internal bleeding, her veins had collapsed and in order to give her blood, it was necessary for the medical team to perform what is termed a "cut-down"; a procedure used to find a vein when the veins collapse.Medical testimony indicated that Pamela was in shock and languid, but she was conscious during these procedures.

Shortly after she was brought to the hospital, Detective Sergeant James Dent of the Bluefield Police Department arrived there.After learning of Pamela's condition, he spoke with her."Pamela, I know this is a terrible thing to ask at this time, but do you believe that your are going to die?", Dent inquired.Pamela responded, "Yes, I do".Detective Dent then asked her, "Pamela, I ask you again, who shot you?"Pamela said, "My ex-husband, Gary Young."Shortly after this colloquy, Pamela Young submitted to emergency surgery.She never regained consciousness and early the following morning she died.

I

The principal assignment of error is that the trial court, over objection, gave an instruction impermissibly shifting the burden of proof to the appellant as to a material element of the crime.More specifically, the appellant contends that State's InstructionNo. 4 violates the principles enumerated in State v. Pendry, W.Va., 227 S.E.2d 210(1976) and its progeny, specifically State v. O'Connell, W.Va., 256 S.E.2d 429(1979).

In its brief, the state confesses that the instruction given is erroneous.While confessions of error do not automatically entitle a party to reversal, Gibson v. Bechtold, W.Va., 245 S.E.2d 258(1978);State v. Cokeley, W.Va., 226 S.E.2d 40(1976), reversal is required when it can be ascertained that the errors confessed are supported by law.State v. Cokeley, supra." 'In a criminal case where the State confesses error, urges that the judgment be reversed and that the defendant be granted a new trial, this Court, upon ascertaining that the errors confessed are reversible errors and do in fact constitute cause for the reversal of the judgment of conviction, will reverse the judgment and grant the defendant a new trial.'Syl.State v. Goff, W.Va., 221 S.E.2d 891(1976)";State v. Cokeley, W.Va., 226 S.E.2d 40(1976).In the instant case, the State properly recognized that the instruction violates the rule on presumptions laid down in Pendry, supraandState v. O'Connell, supra.Accordingly, we accept the State's confession of error, reverse the judgment of the court below and award the appellant a new trial.

This ruling, however, does not relieve us from addressing some other substantial issues raised by the appellant.Specifically, he contends that the lower court erred in admitting into evidence the statement made to Taylor Moore, the store owner, immediately following the shooting and the statement made to Detective Dent just before Pamela Young underwent surgery.The appellant also argues that the lower court erred in admitting testimony concerning a threat made by the appellant which was directed to a person other than the victim.He also contends that the lower court should have granted his motion for a change of venue.

II

Taylor Moore's testimony concerning his colloquy with Pamela Young was admitted into evidence by the trial court as part of the res gestae,...