648 S.E.2d 354
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Wade
C. Davis appeals from an order of the Circuit Court of Kanawha County sentencing
him to a term of ten years imprisonment after a jury convicted him of second
degree murder. Here, Mr. Davis argues that the circuit court committed reversible
error by failing to instruct the jury that “intent” is an element
of second degree murder. After a careful review of the briefs and record,
we reverse and remand this case for a new trial.
Either
Eddie or Michael yelled out to Mr. Davis that “You have to pay for it first
you dumb mother f_.”
(See footnote 2) Heated words were thereafter exchanged between
Mr. Davis and Michael or Eddie. According to the testimony of Mr. Davis, he
was attacked by Eddie, Michael and Donald. Mr. Davis procured a knife in an
attempt to defend himself. During the altercation, Mr. Davis stabbed Eddie once
in the back. Mr. Davis also stabbed Michael twice in the chest and twice in
the head. Michael died as a result of the wounds.
Mr.
Davis was subsequently indicted for murder in the first degree and malicious
wounding. The trial began on December 6, 2004, and was conducted before a jury.
Mr. Davis testified during the trial and explained his actions during the altercation
as being in self-defense. He further testified that the killing was not intentional.
During jury deliberations the jury asked the court, on three separate occasions,
to respond to a question. The last note sent to the trial court asked the court
to verify (1) whether second degree murder was with malice and unlawful, but
without intent and (2) whether voluntary manslaughter was without malice, but
with intent. (See footnote
3) The circuit court responded to the question by reading to the
jury its previous instructions on the elements of second degree murder and voluntary
manslaughter. Thereafter, the jury returned with a verdict of guilty of second
degree murder and not guilty of malicious wounding. Mr. Davis filed a post-trial
motion seeking an acquittal or a new trial on the grounds that the court failed
to properly instruct the jury that “intent” was an element of second
degree murder. The motion was denied without a hearing. This appeal followed.
Mr.
Davis argues that the issue raised by him should be addressed by this Court
under the plain error doctrine. We agree. See State v. Barker,
176 W. Va. 553, 558, 346 S.E.2d 344, 349 (1986) (“Failure to afford
a criminal defendant the fundamental right to have the jury instructed on all
essential elements of the offense charged has been recognized as plain error.”).
See also Smith v. United States, 549 A.2d 1119, 1123 (D.C. Ct.
App. 1988) (“This ambiguous [supplemental] instruction coupled with the
jury verdict returned shortly thereafter makes it clear to us that the conviction
. . . is infected with plain error on a constitutional issue.”); Commonwealth
v. Johnson, 754 N.E.2d 685, 692 (Mass. 2001) (“Objections to these
errors in the instructions on malice were not properly preserved. . . . Therefore,
our review is limited to whether the error created a substantial likelihood
of a miscarriage of justice. We conclude that the error did create a substantial
likelihood of a miscarriage of justice.”); State v. Harmon, 516
A.2d 1047, 1060 (N.J. 1986) (“It must be determined, then, whether the
[supplemental] charge constituted plain error since there was no objection interposed
by defendant to the recitation of these charges in this case.”); People
v. Carnegie, 425 N.Y.S.2d 39, 40 (1980) (“Although the defendant's
counsel did not object [to the supplemental instruction], we think that in the
context of this case, the interest of justice requires that the judgment be
reversed and a new trial ordered.”).
In Syllabus
point 7 of Miller we set out the elements of the plain error doctrine
as follows:
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, Miller. 194 W. Va. 3, 459 S.E.2d 114. We will address each
element of the plain error doctrine separately.
1. There was an error. The first issue we must address is whether or not
an error occurred in the trial court's response to the last question submitted
by the jury. The last note sent to the trial court asked for clarification as
follows:
Can
you please verify the following: Is 2nd degree with malice and unlawful
without intent and voluntary manslaughter without malice and with
intent in the heat of passion. Please verify the with and without intent.
(Emphasis in original). The trial court responded to the jury's question by
calling the jury
back into the courtroom and reading the following instructions on second degree
murder and voluntary manslaughter:
Before
Wade C. Davis can be found guilty of the offense of murder in the second degree
. . . the State must overcome his presumption of innocence and prove to your
satisfaction, beyond a reasonable doubt, that:
Wade
C. Davis . . . did unlawfully and maliciously, but without deliberation or premeditation,
kill Michael Allen Lattea.
.
. . .
Voluntary
manslaughter is a sudden intentional killing upon gross provocation and in the
heat of passion.
Voluntary
manslaughter is committed when any person intentionally and unlawfully kills
another person without malice but under excitement and heat of passion.
Before
Wade C. Davis can be convicted of voluntary manslaughter . . . the State
of West Virginia must overcome the presumption that he is innocent and prove,
beyond a reasonable doubt, that:
Wade
C. Davis . . . did intentionally and unlawfully, without malice, deliberation
or premeditation, but under sudden excitement and heat of passion, kill Michael
Allen Lattea.
Mr.
Davis contends that the instruction on second degree murder is inaccurate because
it omitted the element of intent. We disagree. The instruction is correct insofar
as our case law has indicated that the terms malice and intent may be used interchangeably.
(See footnote 6)
That is, an instruction that properly defines malice will supply information
regarding intent.
See People v. Goecke, 579 N.W.2d 868, 878 (Mich. 1998) (“Malice
is defined as the intent to kill, the intent to cause great bodily harm, or
the intent to do an act in wanton and wilful disregard of the likelihood that
the natural tendency of such behavior is to cause death or great bodily harm.”).
In this case, the trial court's definition of malice in its initial charge properly
addressed the issue of intent for first degree murder and second degree murder.
See Syl. pt. 6, State v. Milam, 159 W. Va. 691, 226 S.E.2d
433 (1976) (“When instructions are read as a whole and adequately advise
the jury of all necessary elements for their consideration, the fact that a
single instruction is incomplete or lacks a particular element will not constitute
grounds for disturbing a jury verdict.”).
Even
though the trial court's initial charge to the jury properly defined malice
so as to include the requirement of showing an intentional killing, the reply
to the jury's last inquiry was nonresponsive to the jury's question and was
misleading. (See footnote
7) It has been observed that “[w]hen the jury requests more
instructions upon a particular phase of the case, the trial court is under a
duty to instruct them in a plain, clear manner so as to enlighten rather than
confuse them.” Smith v. State, 596 S.E.2d 13, 15 (Ga. Ct. App.
2004). See also People v.
Sanders, 857 N.E.2d 948, 952 (Ill. App. 2006) (“In responding to a
jury question, the trial court must do so with specificity and accuracy.”).
Moreover, “[i]t is not error to recharge only on the specific question
so long as the recharge taken alone does not leave an erroneous impression in
the minds of the jury.” Davis v. State, 629 S.E.2d 537, 539 (Ga.
App. 2006). However, “[t]he . . . giving of a response that provides no
answer to the particular question of law posed [by the jury] has been held to
be prejudicial error.” People v. Tomes, 672 N.E.2d 289 (Ill. App.
Ct. 1996). See also People v. Curet, 683 N.Y.S.2d 602, 603 (1998)
(“[A] simple rereading of a charge may, in itself, constitute reversible
error in that the jurors may have been left without adequate guidance.”).
It is
quite clear from the jury's question that they did not understand the trial
court's initial charge, which defined malice as including the element of intent.
That is, the jury's question clearly indicates that they failed to understand
that malice was previously defined as including intent, for purposes of second
degree murder. See Brown v. State, 610 So. 2d 579, 581 (Fla.
Dist. Ct. App. 1992) (“We may assume that the jurors could not adequately
remember the definitions of manslaughter and second-degree murder, since they
requested reinstruction.”). The trial court's re-reading of its instructions
on second degree murder and voluntary manslaughter did not clarify the matter.
In fact, the trial court's response supported the jury's erroneous belief that
a showing of intent was necessary for voluntary manslaughter, but not for second
degree murder. See State v. Wyatt, 198 W. Va.
530, 539-40, 482 S.E.2d 147, 156-57 (1996) (“[R]e-reading of a portion
of instructions 'is usually not error', but error may arise where the portion
read omits a related portion of the charge which explains or expands upon the
re-read portion.”); State v. Pannell, 175 W. Va. 35, 39, 330 S.E.2d
844, 848 (1985) (“[W]e can envision a situation where the trial court's
selective re-reading of instructions would unfairly prejudice the jury.”).
“Under these circumstances, we conclude that the supplemental instructions
were [error], notwithstanding the correctness of the initial charge. It is evident,
as the jury's last question revealed, that the jury did not comprehend the original
charge and remain[ed] perplexed about the elements of the crime[.]” People
v. Ciervo, 506 N.Y.S.2d 462, 464 (1986) (internal quotations and citations
omitted). See also People v. Derr, 806 N.E.2d 237, 244 (Ill. App.
Ct. 2004) (“The failure to provide a proper answer to the jurors' inquiry
constituted an abuse of the trial judge's discretion and infected the trial's
outcome with error.”).
Error
in this case is similar to that which was addressed in State v. Smith,
403 S.E.2d 162 (S.C. Ct. App. 1991). In Smith, the defendant was prosecuted
for murder. During the trial court's charge to the jury it instructed the jury
on murder, voluntary manslaughter and involuntary manslaughter. While the jury
was deliberating, it sent the following question to the trial court: “With
voluntary manslaughter, to have legal provocation, does a person need to be
struck himself, or is it enough to see someone else being assaulted for there
to be enough cause to act?” Smith, 403 S.E.2d at 163. The trial
court responded to the question by merely restating the previous charge on voluntary
manslaughter. The defendant was subsequently convicted of murder. On appeal
the defendant argued that the trial court's response to the jury's question
was error. The appellate court agreed and granted a new trial. In so doing,
the appellate court made the following observations:
The
error of the trial judge is manifest and twofold. In the first place, he did
not answer the question asked. Moreover, his response was misleading.
.
. . .
Of
course, we do not mean to imply that the trial judge intentionally failed to
answer the question asked by the jury or that he intended to mislead the jury
by his response. To the contrary, it appears that he made a conscientious effort
to fairly and fully respond. His error resulted from how he went about responding.
It is not always sufficient for a judge to simply open a charge book and read
a generic statement of the law to a jury, no matter how correct that statement
may be in the abstract. This is particularly true where, as here, the judge
is called upon to answer a well-framed question following the initial charge.
Quite often, the judge must tailor, mold and even sculpt the law in fashioning
an answer to fit the question. In this respect, the judge must be an artist,
not a mere technician.
Smith, 403 S.E.2d at 163-64.
In the
instant case, the trial court's reading of its previous charge on second degree
murder and voluntary manslaughter was not responsive to the jury's question
and, as a consequence, the court committed error by failing to clarify the jury's
misunderstanding
of the law on the issues presented by the question. See Commonwealth
v. Frederick, 475 A.2d 754, 763 (Pa. 1984) (“It is the duty of the
court to clarify issues for the jury[.]”).
2. The error was plain. We have determined that the trial court's response
to the jury's last question was error. The issue to be addressed now is whether
the error was plain. We have held that “[t]o be 'plain,' the error must
be 'clear' or 'obvious.'” Syl. pt. 8, in part, Miller, 194 W. Va.
3, 459 S.E.2d 114. In State v. Myers, 204 W. Va. 449, 513 S.E.2d 676
(1998), we elaborated upon this element of the plain error doctrine as follows:
Under
plain error analysis, an error may be “plain” in two contexts. First,
an error may be plain under existing law, which means that the plainness of
the error is predicated upon legal principles that the litigants and trial court
knew or should have known at the time of the prosecution. Second, an error may
be plain because of a new legal principle that did not exist at the time of
the prosecution, i.e., the error was unclear at the time of trial; however,
it becomes plain on appeal because the applicable law has been clarified.
Syl. pt. 6, Myers, 204 W. Va. 449, 513 S.E.2d 676.
The
last question submitted by the jury stated, in effect, that “intent”
was not an element of second degree murder. The State argued below and in this
appeal that “intent to kill is not an element of the crime of second degree
murder.” This argument has no merit. Our cases have made clear that:
Intent is an element of second degree murder. . . .
A
conviction for second degree murder cannot be sustained without proof beyond
a reasonable doubt that the accused had the requisite criminal intent. In regard
to second degree murder, the requisite criminal intent would be the intent to
do great bodily harm, or a criminal intent aimed at life, or the intent to commit
a specific felony, or the intent to commit an act involving all the wickedness
of a felony.
State v. Haddox, 166 W. Va. 630, 632, 276 S.E.2d 788, 790 (1981) (rejecting
State's argument that intent was not element of second degree murder). Therefore,
the trial court's failure to correct the jury's misunderstanding, by not specifically
stating that “intent” was, in fact, an element of second degree murder,
was plainly error under our existing law.
3. The error affected substantial rights. The next step in our analysis
requires a determination of whether the error affected Mr. Davis' substantial
rights. We have indicated that:
To
affect substantial rights means the error was prejudicial. It must have affected
the outcome of the proceedings in the circuit court, and the defendant rather
than the prosecutor bears the burden of persuasion with respect to prejudice.
Syl. pt. 9, in part, Miller, 194 W. Va. 3, 459 S.E.2d 114. Moreover,
[i]n
determining whether the assigned plain error affected the “substantial
rights” of a defendant, the defendant need not establish that in a trial
without the error a reasonable jury would have acquitted; rather, the defendant
need only demonstrate the jury verdict in his or her case was actually affected
by the assigned but unobjected to error.
Syl. pt. 3, State v. Marple, 197 W. Va. 47, 475 S.E.2d 47, (1996).
We have
little difficulty in finding that the trial court's error affected Mr. Davis'
substantial rights. We have made clear that “[t]he trial court must instruct
the jury on all essential elements of the offenses charged, and the failure
of the trial court to instruct the jury on the essential elements deprives the
accused of his fundamental right to a fair trial, and constitutes reversible
error.” Syl., State v. Miller, 184 W. Va. 367, 400 S.E.2d 611 (1990).
Further, “an incomplete instruction constitutes reversible error where
the omission involves an element of the crime.” Id., 184 W. Va.
at 368 n.1, 400 S.E.2d at 612 n.1. In this case, the trial court's response
to the jury question “allowed the jury to convict [Mr. Davis] of [second]
degree murder without necessarily finding that [Mr. Davis] had possessed [an]
intent to kill the victim.” People v. Tenner, 626 N.E.2d 138, 155
(Ill. 1994). In essence, the trial court's response “relieved the [State]
of its burden to prove [second degree murder] beyond a reasonable doubt. We
cannot assume in fairness that the error made no difference in the jury's verdict.”
Commonwealth v. Lennon, 504 N.E.2d 1051, 1054 (Mass. 1987).
4. The error seriously affected the fairness, integrity, or public reputation
of the judicial proceedings. We recognized in State v. Marple, 197
W. Va. 47, 475 S.E.2d 47 (1996), that:
Once
a defendant has established the first three requirements of [the plain error
doctrine], we have the authority
to correct the error, but we are not required to do so unless a fundamental
miscarriage of justice has occurred. Otherwise, we will not reverse unless,
in our discretion, we find the error seriously affects the fairness, integrity,
or public reputation of judicial proceedings.
Marple, 197 W. Va. at 52, 475 S.E.2d at 52 (citations omitted). We are compelled
to exercise our discretion in this case to find that the error seriously affected
the fairness of the trial inasmuch as the jury convicted Mr. Davis of second
degree murder upon the erroneous belief that this crime did not require an intent
to kill. “In the final analysis, we conclude that in the circumstances
[of this case] the [supplemental] charge did have the clear capacity to mislead
the jury on an essential element of the offense, and to lead it to a result
it otherwise might not have reached.” State v. Harmon, 516 A.2d
1047, 1062 (N.J. 1980). That is, the trial court's error “created a substantial
likelihood of a miscarriage of justice. The conviction on th[e] indictment must
be reversed for that reason.” Commonwealth v. Johnson, 754 N.E.2d
685, 693-694 (Mass. 2001).
Reversed
and Remanded.