No. 33191
State of West Virginia v. Wade C. Davis
Benjamin, Justice, dissenting:
Yet again, the Majority of this Court has chosen to usurp the discretion
bestowed upon a trial court by our prior jurisprudence and to substitute its own judgment
to obtain a predetermined result. In so doing, the Majority once more looks to foreign
jurisdictions to create the supposed precedential support upon which it now relies. Not only
is such foreign law inapplicable to the facts of this case, the Majority's result is plainly
contrary to the established law of this State. Being unable to countenance this contrivance
in our law, I dissent.
I agree with the dissenting opinion filed herein by Justice Maynard - the plain
error doctrine was improperly invoked by the Majority in this matter. Of the West Virginia
cases relied upon by the Majority in support of its invocation of the plain error doctrine, only
three involved jury instructions and all involved a misstatement of law in the initial
instructions.
See State v. Wyatt, 198 W. Va. 530, 538-9, 482 S.E.2d 147, 155-6 (1996)
(finding plain error in initial instruction which misstated the applicable law, including
applicable elements of the offense charged, and that error was compounded upon re-reading
of a portion of the instructions in response to jury inquiry);
State v. Miller, 184 W. Va. 367,
400 S.E.2d 611 (1990) (finding failure to instruct jury as to all essential elements of offense
charged constitutes reversible error);
State v. Barker, 176 W. Va. 553, 557-8, 346 S.E.2d
344, 349-50 (1986) (
per curiam) (finding failure to instruct jury on essential elements of
offense constituted plain error). This case does not involve a misstatement of law in the
initial instructions provided to the jury. It is undisputed that the initial jury charge was both
correct and proper.
(See footnote 1) Rather, the issue herein is a challenge to the trial court's response to a
specific jury question, a response which did not constitute a complete recharge of the jury.
As recognized in
Davis v. State, 639 S.E.2d 537, 539 (Ga. Ct. App. 2006), a case relied upon
by the Majority herein, “[w]here a jury, which has been fully and properly charged, requests
a recharge on a specific question, it is within the discretion of the trial court whether to
recharge entirely or to recharge only on the specific question.”
The Majority cites to no West Virginia case finding that a trial court abused
its discretion in response to a jury question. Instead, the Majority looks to case law from
foreign jurisdictions to support its decision in this matter.
(See footnote 2) Careful examination of the cases
cited in the Majority opinion, however, fails to reveal the necessary support implied by the
Majority for the instant decision. Indeed, several of the cases relied upon by the Majority
involved inaccurate or misleading instructions not -- as in the instant matter, the omission
of a definition not legally required to be included in the instruction at issue.
The error addressed in
Commonwealth v. Lennon, 504 N.E.2d 1051 (Mass.
1987), involved a misstatement of law in the initial jury charge, one that omitted
premeditation, an essential element of the crime charged, and relieved the Commonwealth
of its duty to prove guilt beyond a reasonable doubt. In the instant matter, the initial jury
charge was correct and fully advised the jury of the element of the crime and the State's
burden of proof. Contrary to the Majority's suggestion, the trial court's response to the jury
question did not relieve the State of its burden, requiring reversal as indicated by
Lennon.
Likewise, in
State v. Smith, 403 S.E.2d 162 (S.C. Ct. App. 1991), the trial court provided
an inaccurate legal response to a jury question regarding the provocation legally sufficient
to qualify defendant's action as voluntary manslaughter where the defense asserted was
defense of another. In responding to the jury question, the trial court reinstructed the jury
on voluntary manslaughter with the original instruction and gave two examples of
provocation.
Smith, 403 S.E.2d at 163. However, the examples given involved only assault
upon oneself as provocation, not assault upon another, which under the applicable law could
qualify as sufficient provocation.
Id. The appellate court found that the trial court's
response did not answer the jury's well-framed, specific question, and further found that the
trial court's answer misled the jury as to the law because it “may very well have caused the
jury to think that sufficient provocation could only arise out of an assault on the defendant
himself.”
Id.
Similarly, the Majority's reliance upon
Brown v. State, 610 So.2d 579 (Fla.
Dist. Ct. App. 1992), is misplaced because the response to the jury question in
Brown was
not in compliance with Florida law. In
Brown, the trial court was presented with a jury
request for re-instruction on the manslaughter and second-degree murder charges.
Brown,
610 So.2d at 580. In response, the trial court read the definitions of both offenses, but
omitted the definitions of excusable homicide and justifiable homicide from the
manslaughter definition.
Id. at 580-1. The court on appeal found such failure constituted
reversible error because a unanimous Florida Supreme Court had previously held both
definitions must be included within the definition of manslaughter to provide a complete
manslaughter charge.
Id. at 581.
Arguably similar to the issue presented herein is the case of
People v. Tenner,
626 N.E.2d 138 (Ill. 1994), which involved a trial court's response to a jury question as to
whether intent was necessary to convict the defendant of attempted first degree murder. The
trial court's response was to inform the jury that the attempt instruction applies “in
conjunction with the other instructions.”
Tenner, 626 N.E.2d at 155. Because the first
degree murder instruction previously provided to the jury included felony murder, an offense
not requiring intent, the court on appeal found the trial court erred in its response to the jury
question by allowing the jury to convict without “necessarily finding” the required element
of intent necessary for an attempted first degree murder conviction.
Id. Tenner must
therefore be distinguished from this case because the trial court's response below did not
provide the potential for conviction based upon an inapplicable legal theory.
Finally, I must take issue with the Majority's reliance upon
Smith v. United
States, 549 A.2d 1119 (D.C. Ct. App. 1988), as such reliance implies we are dealing with
a constitutional matter herein. We are not. At issue in
Smith v. United States was an
argument that the trial court's ambiguous response to a jury question regarding whether they
may consider certain evidence relative to two “drug possession with intent to distribute”
charges violated the defendant's Sixth Amendment right to a unanimous jury where the jury
came back “immediately” after receiving the trial court's response. In response to the
question as to whether certain evidence could be used to support the “possession” charges,
the trial court stated that the evidence applied to the “distribution” charges and could also
apply to the “possession” charges or whatever the jury deemed relevant.
Smith v. United
States, 549 A.2d at 1122. This response, however, was inconsistent with a prior answer to
a jury question and with the State's theory of the case.
Id. at 1123. In analyzing the issue
presented, the court noted
[t]he Sixth Amendment and Super.Ct.Crim.R. 31(a) require jurors to
be in substantial agreement as to just what a defendant did as a step
preliminary to determining whether that defendant is guilty of the
crime charged. Consequently, when one charge encompasses separate
incidents, the trial judge must instruct the jury, that if a guilty verdict
is returned, the jurors must be unanimous as to which incident or
incidents they find the defendant guilty.
Id. at 1121 (internal citations and quotations omitted). The court in
Smith found it clear that
the jury was confused as to what evidence could be used to support the possession charges
and that the verdict rendered immediately after the incorrect instruction constituted plain
error with respect to the constitutional right that the jury be unanimous in determining the
charges for which it found the defendant guilty.
Id. at 1123.
Smith is inapposite to the case
before us because the instant case involves a definitional omission from a supplemental
instruction, not an incorrect or misleading instruction regarding what evidence may be
considered resulting in a potential Sixth Amendment violation.
In the instant matter, the trial court re-instructed the jury as to the elements of
second degree murder and manslaughter, the offenses at issue in the jury question. The trial
court did not omit any element of the offenses charged. Nor did the trial court misstate the
law. Instead, the trial court has been faulted by the Appellant and the Majority for
exercising its discretion to not further define terms setting forth the elements of the offenses
charged, terms which were defined in the original charge.
The Majority recognizes that a challenge to a trial court's response to a jury
question is reviewed under an abuse of discretion standard. However, instead of applying
this standard, the Majority substitutes its judgment for the sound discretion of the trial court.
While I may have preferred that the trial court included the definition of malice when
responding to the jury's question regarding intent herein, I will not substitute my judgment
for that of the trial court. The trial court exercised its recognized discretion in determining
the appropriate response to the jury's question. Absent a response which misstates the law,
clearly omits a required element of proof or is simply non-responsive, the trial court is in
the best position to determine the appropriate response to a jury question during a trial. That
is precisely why the proper standard of review in an appeal such as this is whether the trial
court abused its discretion. It did not. Accordingly, because standards of review should
never be disregarded because of a whim, caprice or the improper desire of this Court to take
on the mantle (and concurrent responsibilities) of that of a trial court, I dissent.
Footnote: 1