656 S.E.2d 74
JUSTICE BENJAMIN, deeming himself disqualified, did not participate in the decision in
this case.
JUDGE MOATS, sitting by temporary assignment.
2. “The function of an appellate court when reviewing the sufficiency of
the evidence to support a criminal conviction is to examine the evidence admitted at trial
to determine whether such evidence, if believed, is sufficient to convince a reasonable
person of the defendant's guilt beyond a reasonable doubt. Thus, the relevant inquiry is
whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime proved beyond a
reasonable doubt.” Syllabus Point 1, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163
(1995).
3. “Where a defendant is convicted of a particular substantive offense, the test of the sufficiency of the evidence to support the conviction necessarily involves consideration of the traditional distinctions between parties to offenses. Thus, a person may be convicted of a crime so long as the evidence demonstrates that he acted as an accessory before the fact, as a principal in the second degree, or as a principal in the first degree in the commission of such offense.” Syllabus Point 8, State v. Fortner, 182 W.Va. 345, 387 S.E.2d 812 (1989).
4. “A person who is the absolute perpetrator of a crime is a principal in the first degree, and a person who is present, aiding and abetting the fact to be done, is a principal in the second degree.” Syllabus Point 5, State v. Fortner, 182 W.Va. 345, 387 S.E.2d 812 (1989).
5. “Merely witnessing a crime, without intervention, does not make a person a party to its commission unless his interference was a duty, and his non-interference was one of the conditions of the commission of the crime; or unless his non-interference was designed by him and operated as an encouragement to or protection of the perpetrator.” Syllabus, State v. Patterson, 109 W.Va. 588, 155 S.E. 661 (1930).
6. “Proof that the defendant was present at the time and place the crime
was committed is a factor to be considered by the jury in determining guilt, along with other
circumstances, such as the defendant's association with or relation to the perpetrator and his
conduct before and after the commission of the crime.” Syllabus Point 10, State v. Fortner,
182 W.Va. 345, 387 S.E.2d 812 (1989).
7. “Under the concerted action principle, a defendant who is present at the
scene of a crime and, by acting with another, contributes to the criminal act, is criminally
liable for such offense as if he were the sole perpetrator.” Syllabus Point 11, State v.
Fortner, 182 W.Va. 345, 387 S.E.2d 812 (1989).
8. “A trial court's instructions to the jury must be a correct statement of
the law and supported by the evidence. Jury instructions are reviewed by determining
whether the charge, reviewed as a whole, sufficiently instructed the jury so they understood
the issues involved and were not mislead by the law. A jury instruction cannot be dissected
on appeal; instead, the entire instruction is looked at when determining its accuracy. A trial
court, therefore, has broad discretion in formulating its charge to the jury, so long as the
charge accurately reflects the law. Deference is given to a trial court's discretion concerning
the specific wording of the instruction, and the precise extent and character of any specific
instruction will be reviewed only for an abuse of discretion.” Syllabus Point 4, State v.
Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).
9. “An unpreserved error is deemed plain and affects substantial rights
only if the reviewing court finds the lower court skewed the fundamental fairness or basic
integrity of the proceedings in some major respect. In clear terms, the plain error rule should
be exercised only to avoid a miscarriage of justice. The discretionary authority of this Court
invoked by lesser errors should be exercised sparingly and should be reserved for the
correction of those few errors that seriously affect the fairness, integrity, or public reputation
of the judicial proceedings.” Syllabus Point 7, State v. LaRock, 196 W.Va. 294, 470 S.E.2d
613 (1996).
10. “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.” Syllabus Point 7, State
v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).
11. “The relevant test for determining whether a juror is biased is whether
the juror had such a fixed opinion that he or she could not judge impartially the guilt of the
defendant. Even though a juror swears that he or she could set aside any opinion he or she
might hold and decide the case on the evidence, a juror's protestation of impartiality should
not be credited if the other facts in the record indicate to the contrary.” Syllabus Point 4, State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996).
12. “A prospective juror's consanguineal, marital or social relationship with
an employee of a law enforcement agency does not operate as a per se disqualification for
cause in a criminal case unless the law enforcement official is actively involved in the
prosecution of the case. After establishing that such a relationship exists, a party has a right
to obtain individual voir dire of the challenged juror to determine possible prejudice or bias
arising from the relationship.” Syllabus Point 6, State v. Beckett, 172 W.Va. 817, 310
S.E.2d 883 (1983).
13. “It is the extremely rare case when this Court will find ineffective assistance of counsel when such a charge is raised as an assignment of error on a direct appeal. The prudent defense counsel first develops the record regarding ineffective assistance of counsel in a habeas corpus proceeding before the lower court, and may then appeal if such relief is denied. This Court may then have a fully developed record on this issue upon which to more thoroughly review an ineffective assistance of counsel claim.” Syllabus Point 10, State v. Triplett, 187 W.Va. 760, 421 S.E.2d 511 (1992).
14. “Where the record of a criminal trial shows that the cumulative effect
of numerous errors committed during the trial prevented the defendant from receiving a fair
trial, his conviction should be set aside, even though any one of such errors standing alone
would be harmless error.” Syllabus Point 5, State v. Smith, 156 W.Va. 385, 193 S.E.2d 550
(1972).
Per Curiam:
The defendant below and appellant herein, Eric Allen Foster, appeals his
convictions of two counts of second degree murder and his two consecutive forty-year
sentences. For the reasons discussed below, we affirm.
A criminal defendant challenging the sufficiency of the
evidence to support a conviction takes on a heavy burden. An
appellate court must review all the evidence, whether direct or
circumstantial, in the light most favorable to the prosecution
and must credit all inferences and credibility assessments that
the jury might have drawn in favor of the prosecution. The
evidence need not be inconsistent with every conclusion save
that of guilt so long as the jury can find guilt beyond a
reasonable doubt. Credibility determinations are for a jury and
not an appellate court. Finally, a jury verdict should be set aside
only when the record contains no evidence, regardless of how
it is weighed, from which the jury could find guilt beyond a
reasonable doubt. To the extent that our prior cases are
inconsistent, they are expressly overruled.
Syllabus Point 3, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995). Moreover,
The function of an appellate court when reviewing the
sufficiency of the evidence to support a criminal conviction is
to examine the evidence admitted at trial to determine whether
such evidence, if believed, is sufficient to convince a reasonable
person of the defendant's guilt beyond a reasonable doubt.
Thus, the relevant inquiry is whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
proved beyond a reasonable doubt.
Syllabus Point 1, Guthrie.
This Court has also indicated that when reviewing the sufficiency of the
evidence, we must consider the distinctions between the parties to a crime. In Syllabus Point
8 of State v. Fortner, 182 W.Va. 345, 387 S.E.2d 812 (1989), we held:
Where a defendant is convicted of a particular
substantive offense, the test of the sufficiency of the evidence
to support the conviction necessarily involves consideration of
the traditional distinctions between parties to offenses. Thus, a
person may be convicted of a crime so long as the evidence
demonstrates that he acted as an accessory before the fact, as a
principal in the second degree, or as a principal in the first
degree in the commission of such offense.
Under the “acting in concert with” or “concerted action” theory of culpability, it was not
necessary for the State to prove that the appellant was the absolute perpetrator of the crime,
but rather that he was present at the commission of the crime and that he aided and abetted
it; in other words, that he was a principal in the second degree to the commission of the
crime. As this Court held in Syllabus Point 5 of State v. Fortner, “[a] person who is the
absolute perpetrator of a crime is a principal in the first degree, and a person who is present,
aiding and abetting the fact to be done, is a principal in the second degree.”
In Fortner, this Court discussed at length what the conviction of a defendant
as principal in the second degree requires.
To be convicted as an aider and abettor, the law requires
that the accused in some sort associate himself with the venture,
that he participate in it as in something that he wishes to bring
about, that he seek by his action to make it succeed. The State
must demonstrate that the defendant shared the criminal intent
of the principal in the first degree. In this regard, the accused
is not required to have intended the particular crime committed
by the perpetrator, but only to have knowingly intended to
assist, encourage, or facilitate the design of the criminal actor.
Fortner, 182 W.Va. at 356, 387 S.E.2d at 823 (internal quotation marks and citations
omitted). We have further held that,
Merely witnessing a crime, without intervention, does
not make a person a party to its commission unless his
interference was a duty, and his non-interference was one of the
conditions of the commission of the crime; or unless his non-
interference was designed by him and operated as an
encouragement to or protection of the perpetrator.
Syllabus, State v. Patterson, 109 W.Va. 588, 155 S.E. 661 (1930).
However,
Proof that the defendant was present at the time and
place the crime was committed is a factor to be considered by
the jury in determining guilt, along with other circumstances,
such as the defendant's association with or relation to the
perpetrator and his conduct before and after the commission of
the crime.
Syllabus Point 10, Fortner. Finally, “[u]nder the concerted action principle, a defendant
who is present at the scene of a crime and, by acting with another, contributes to the criminal
act, is criminally liable for such offense as if he were the sole perpetrator.” Syllabus Point
11, Fortner.
The appellant does not dispute that he was present with the perpetrator or
perpetrators who actually fired the shots that killed Murphy and Painter. He maintains,
however, that the evidence is insufficient to show that he acted in concert with the
perpetrator(s) so as to be criminally liable for the victims' murders. Essentially, posits the
appellant, the State's evidence is sufficient to prove only that he was a witness to the
murders - someone who was in the wrong place at the wrong time.
This Court has said that proof that the appellant was present at the time and
place the crime was committed is a factor to be considered by the jury in determining guilt.
Again, it is undisputed that the appellant was present when Murphy and Painter were shot
to death. Additional evidence of guilt is the fact that the appellant drove his own vehicle to
the Murphy residence the night of the shootings, and he permitted Matt Bush and Jeff
Stewart to travel with him to the residence with the knowledge that Jeff Stewart had a
shotgun in his possession.
We have also said that in determining guilt, the jury may consider the
defendant's relation to the perpetrator. The evidence in this regard indicates that the
appellant was a good friend of co-defendant Matt Bush. Another factor that the jury may
consider is the defendant's conduct before the commission of the crime. The State
introduced evidence that on the day of the killings, the appellant and one of the victims,
Travis Painter, had a physical confrontation. In addition, the State produced testimony that
the appellant's girlfriend was “upset” that the appellant intended to travel to Murphy's
residence, that she was in tears when she begged the appellant not to go, and that “she just
wanted things to be calm.”
In support of his argument that there was insufficient evidence to convict him
of second degree murder, the appellant cites several cases in which this Court found
insufficient evidence to convict defendants as aiders and abettors. Two of these cases are State v. Kirkland, 191 W.Va. 586, 447 S.E.2d 278 (1994) and State v. Mayo, 191 W.Va. 79,
443 S.E.2d 236 (1994), both of which arose from the same set of facts as follows. Brian
Berry had a heated conversation and physical altercation with the victim, Dickie Rhodes, the
owner of a tire store, regarding the payment of a past due bill. Mr. Berry then went to his
apartment and retrieved his stepfather, Robert Kirkland, the appellant in State v. Kirkland, and his neighbor, William Mayo, the appellant in State v. Mayo, to return to the tire store
with him. Mr. Berry asked Mr. Mayo to bring a gun with him, apparently without the
knowledge of Mr. Kirkland. Upon arriving at the tire store, Mr. Kirkland went inside to
discuss the matter with Mr. Rhodes, and Mr. Berry and Mr. Mayo remained in the car. Mr.
Kirkland and Mr. Rhodes appeared to have reached an understanding that the bill would be
paid, and Mr. Kirkland returned to the car.
Dickie Rhodes followed [Mr. Kirkland] out into the parking lot.
. . . Mr. Berry who was in the passenger seat of [Mr.
Kirkland's] car and Dickie Rhodes got into an argument. Jesse
Rhodes [Dickie Rhodes' son] testified that Mr. Berry yelled at
his father: “I ain't going to pay you, you white son of a bitch.”
Dickie Rhodes proceeded to the car door, while [Mr. Kirkland]
was slowly backing out of the parking lot. Jesse Rhodes
testified that his father reached inside the passenger window
and hit Mr. Berry. Jesse Rhodes went to get his father, when
Mr. Berry pulled out a 9mm pistol and shot Dickie Rhodes in
the chest, fatally wounding him. The bullet went through
Dickie Rhodes and lodged in Jesse Rhodes' leg. [Mr. Kirkland]
immediately drove the threesome away from the crime scene.
Kirkland, 191 W.Va. at 590-591, 447 S.E.2d at 282-283 (footnote omitted).
This Court found insufficient evidence to prove Mr. Kirkland guilty of aiding
and abetting the murder of Dickie Rhodes and for attempted murder and malicious
wounding of Jesse Rhodes, explaining that
First, there was no evidence which indicated that the Appellant
willingly participated in the criminal venture with the
perpetrator, Mr. Berry. . . . There was absolutely no evidence
that the Appellant went to the tire store with the other two men
after devising a plan to get revenge with Dickie Rhodes. While
Mr. Mayo retrieved a gun prior to accompanying the Appellant
and Mr. Berry to the tire store, there was no evidence that the
Appellant knew that Mr. Mayo possessed the weapon or that
Mr. Berry requested that Mr. Mayo bring his weapon.
Likewise, there was no evidence, other than the Appellant's
knowledge that a 9mm pistol was in the glove compartment,
that the Appellant knew that Mr. Berry removed the pistol from
the glove compartment of the Appellant's car prior to the
shooting.
Further, the State failed to establish that the Appellant
possessed the same criminal intent as that of the principal in the
first degree. The evidence did not demonstrate that the
Appellant encouraged, assisted or facilitated the shooting
committed by Mr. Berry. To the contrary, the evidence
established that the Appellant attempted to act as a peacemaker;
that during his discussion with Dickie Rhodes, the Appellant
asked him to “chill out;” and that by the conclusion of their
discussion, witnesses testified that the matter appeared to be
resolved. It is undisputed that it was Mr. Berry who fatally shot
Dickie Rhodes and wounded Jesse Rhodes. Up until that
moment, the situation had been peacefully handled by the
Appellant. The only questionable conduct on the Appellant's
part was that he was driving the car which fled the scene after
Mr. Berry shot his victims, and that the Appellant was driving
the car when Mr. Berry continued shooting Jesse Rhodes' truck
as Mr. Rhodes chased the threesome. Again, however, there
was no evidence offered that the Appellant had prior knowledge
of Mr. Berry's plan, or that the Appellant encouraged or incited
Mr. Berry's continuing conduct. Consequently, due to the lack
of evidence by the State that the shooting was the result of
concerted criminal plan or venture which included the
Appellant, we simply cannot attribute Mr. Berry's unanticipated
actions as a principal in the first degree to the Appellant.
Kirkland, 191 W.Va. at 593, 447 S.E.2d at 285.
In the case of State v. Mayo, 191 W.Va. 79, 443 S.E.2d 236 (1994), the Court
reversed Mr. Mayo's conviction of second degree murder, attempted second degree murder,
and unlawful wounding arising from his presence when Mr. Berry shot Dickie and Jesse
Rhodes. We reasoned that there was no evidence to suggest that the killing of Dickie
Rhodes and the wounding of his son were part of any concerted plan. Also,
there was no evidence that Mr. Berry planned in advance to kill
the victim or that the defendant assisted or encouraged Mr.
Berry. Indeed, until the moment that Mr. Berry cursed Dickie
Rhodes and then shot him, the event could not have been
anticipated. There was no prior unlawful activity on the part of
anyone before the event. Accordingly, there was no evidence
that the defendant “knowingly intended to assist, encourage, or
facilitate the design of the criminal actor.” Fortner, 182 W.Va.
at 356, 387 S.E.2d at 823.
Mayo, 191 W.Va. at 85, 443 S.E.2d at 242. In his brief, the appellant emphasizes that the
defendant in Mayo actually carried a gun to the scene of the crime, unlike the appellant.
Nevertheless, this Court found insufficient evidence to support Mayo's conviction.
This Court finds the material facts of Kirkland and Mayo distinguishable from
the facts in the instant case, and we decline to apply the reasoning in those cases here.
Unlike in Kirkland and Mayo, the appellant had a history of animosity with one of the
victims and even had a physical confrontation with the victim a short time before the
shooting. Also, while the shooting in Kirkland and Mayo appears to have been
unanticipated, a rational trier of fact could infer that the shootings of Murphy and Painter
were planned in advance from evidence that the initial shots were fired from the appellant's
vehicle almost immediately upon encountering the victims. Thus, we find our analysis in Kirkland and Mayo inapplicable to this case. (See footnote 2)
The appellant in his brief also discusses the case of People v. Taylor, 244
Ill.App.3d 152, 614 N.E.2d 79 (1993), which was relied upon by this Court for support in
the Mayo opinion. The relevant facts in Taylor were as follows:
Three of the defendant's friends came to his home and picked
him up in their car. One of the men told the defendant that he
was searching for and wanted to kill the victim because the
victim had been in a fight with the man's younger brother.
They drove around and found the victim. The man who had
been looking for the victim got out of the car and shot him.
They fled from the scene, but then drove back and fired a shot
in the air. When the police arrived, the four men fled. The trial
court found the jury's verdict of murder was correct because the
defendant got into the car knowing that one of the men in the
car was seeking the victim to murder him.
Mayo, 191 W.Va. at 84, 443 S.E.2d at 241. The Illinois appellate court reversed the
appellant's conviction based on insufficiency of the evidence. The court reasoned,
In this case, the evidence provided by the State proved
that defendant did nothing more than ride in a vehicle in which
the shooter was present. While defendant gave conflicting
testimony regarding his knowledge of why [the shooter] drove
to the scene of the shooting, and whether [the shooter] had a
gun, it is clear that defendant did not participate in any act
which attributed [sic] to the shooter's objective of murdering
[the victim]. The record is clear that defendant did not have a
weapon, did not participate in planning or executing any plan to
murder [the victim] or provide instruments in furtherance of
that plan.
Taylor, 244 Ill.App.3d at 158, 614 N.E.2d at 83.
However, subsequent to this Court's opinion in Mayo, the Supreme Court of
Illinois reversed the appellant court's finding of insufficient evidence in Taylor. In doing
so, the court explained:
According to Taylor's statements to the police, he was
aware, prior to the actual shooting, that [the shooter] wanted to
kill [the victim], that [the shooter] was armed with a weapon,
and that [the shooter] had instructed Page to drive to find the
victim. Knowing this, Taylor voluntarily stayed with the group.
After the shooting, Taylor remained with the group and was
aware that [the shooter] was going to his house to get another
weapon. Moreover, he returned to the scene of the shooting
with the group and then fled when the police arrived. . . .
At no time did Taylor discourage [the shooter] from
killing the victim or indicate his disapproval of the commission
of the crime. Not only was Taylor present during the
perpetration of the offense, he maintained a close affiliation
with [the shooter] after the shooting, failed to report the crime,
and fled the scene. Therefore, taking into account Taylor's
actions surrounding the perpetration of the crime, we find that
the trier of fact, the trial judge in this case, could have rationally
concluded that Taylor was part of a common design to murder
the victim, to which he assented, and therefore was guilty of the
murder of [the victim] based on accountability.
People v. Taylor, 164 Ill.2d 131, 142, 646 N.E.2d 567, 572 (1995).
Similarly, in the instant case there is evidence that the appellant may have been
aware of a prior disagreement between Stewart and the victims. According to the
appellant's post-arrest statement to Trooper Mankins, “Jeff Stewart said, you know, he had
had some dealings with [Murphy and Painter] before; and he wasn't cutting them off no
more on something. I don't know what the hell that was about; and he went into Matt's
room and got a gun, a shotgun.” Nevertheless, the appellant drove Bush and Stewart to
Murphy's residence. Moreover, the appellant failed to report the shooting of Murphy and
Painter. After arriving home immediately after the shootings, the appellant informed the
police that his truck was damaged by gun shots. However, he failed to indicate that anyone
had been shot despite the fact that he told Trooper Mankins that, after the first shot was fired
from his truck, “Mike spun, you know, and like down on his knees but he was still, you
know, everybody was still shooting.” While it is true that the appellant testified at trial that
he did not see Murphy fall, credibility determinations and the resolution of conflicts in
testimony are for the jury.
The appellant also points to the fact that his conduct after the commission of
the crimes, which is a factor to be considered in determining the guilt of a principal in the
second degree under Fortner, supports a finding that he is not guilty of the crimes of which
he was convicted. The appellant emphasizes that Stewart and Bush restrained the liberty of
witnesses to the shooting, threatened them, and concealed the murder weapon. In contrast,
there is no evidence whatsoever that the appellant had any involvement in these activities.
While this may be true, conduct after the commission of the crime is only one factor to be
considered in determining guilt. As we have explained above, there are several other factors
such as the appellant's presence at the time and place the crime was committed, the
appellant's association with one of the victims, and the appellant's friendship with one of
the co-defendants which are sufficient to support a finding of guilt.
Finally, the appellant asserts that the State failed to establish that he possessed
the same criminal intent of the shooters or that he had the requisite malice for a second
degree murder conviction. Concerning the element of malice, “our case law has indicated
that the terms malice and intent may be used interchangeably.” State v. Davis, 220 W.Va.
590, ___, 648 S.E.2d 354, 358 (2007) (footnote omitted). To be convicted as an aider and
abettor, the State must demonstrate that the defendant “shared the criminal intent of the
principal in the first degree.” State v. Harper, 179 W.Va. 24, 29, 365 S.E.2d 69, 74 (1987)
(citations omitted). “In this regard, the accused is not required to have intended the
particular crime committed by the perpetrator, but only to have knowingly intended to assist,
encourage, or facilitate the design of the criminal actor.” Fortner, 182 W.Va. at 356, 387
S.E.2d at 823 (citations omitted).
We believe that the evidence is sufficient for a reasonable jury to conclude that
the appellant knowingly intended to assist the design of the perpetrator(s). Again, the
evidence indicates that the appellant was not only present at the scene of the crime but that
he transported the shooter(s) to the crime scene and then assisted them in fleeing the scene
after the killing of Murphy and Painter. Further evidence from which a rationale trier of fact
could find the intent on the part of the appellant is the enmity between the appellant and
Painter and their confrontation on the day of the crimes; the appellant's close friendship with
co-defendant Bush; and the appellant's knowledge that Jeff Stewart took a shotgun to
Murphy's residence. Accordingly, we reject the appellant's assertion of insufficient
evidence to show intent and malice.
For the foregoing reasons, we believe that, after reviewing the above evidence
in the light most favorable to the prosecution and crediting all inferences and credibility
assessments that the jury might have drawn in favor of the prosecution, a rational trier of fact
could find beyond a reasonable doubt that the appellant is guilty of second degree murder
in the killings of Mike Murphy and Travis Painter. In other words, this Court is unable to
conclude from a review of the record that there is no evidence, regardless of how it is
weighed, from which the jury could find guilt beyond a reasonable doubt. Accordingly, we
find sufficient evidence to support the jury's finding of guilt. (See footnote 3)
A trial court's instructions to the jury must be a correct
statement of the law and supported by the evidence. Jury
instructions are reviewed by determining whether the charge,
reviewed as a whole, sufficiently instructed the jury so they
understood the issues involved and were not mislead by the law.
A jury instruction cannot be dissected on appeal; instead, the
entire instruction is looked at when determining its accuracy.
A trial court, therefore, has broad discretion in formulating its
charge to the jury, so long as the charge accurately reflects the
law. Deference is given to a trial court's discretion concerning
the specific wording of the instruction, and the precise extent
and character of any specific instruction will be reviewed only
for an abuse of discretion.
Syllabus Point 4, Guthrie. Concerning the applicability of the plain error doctrine, we have
described plain error as follows:
An unpreserved error is deemed plain and affects
substantial rights only if the reviewing court finds the lower
court skewed the fundamental fairness or basic integrity of the
proceedings in some major respect. In clear terms, the plain
error rule should be exercised only to avoid a miscarriage of
justice. The discretionary authority of this Court invoked by
lesser errors should be exercised sparingly and should be
reserved for the correction of those few errors that seriously
affect the fairness, integrity, or public reputation of the judicial
proceedings.
Syllabus Point 7, State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996). Furthermore,
according to Syllabus Point 7 of State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995), “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.” Thus, our initial inquiry is whether there is error in
the jury instructions.
The appellant claims that the trial court failed to give a complete and proper
instruction with regard to the elements of second degree murder. Specifically, the appellant
asserts that the court failed to inform the jury that under the concerted action theory of
culpability, the evidence must be sufficient to show that the defendant “is acting together
with another who does the acts necessary to constitute the crime pursuant to a common plan
or purpose to commit the crime.” We find no merit to the appellant's claims of error.
Our review of the trial transcript indicates that the trial court correctly
instructed the jury that “[m]urder in the second degree is the unlawful, intentional killing of
another, with malice, but without deliberation or premeditation.” See State v. Slonaker, 167
W.Va. 97, 102, 280 S.E.2d 212, 215 (1981) (defining second degree murder as “the
unlawful killing of another with malice.”(citation omitted)). Concerning the concept of
“concerted action,” the jury was instructed that,
However, it is not necessary for Eric Allan [sic] Foster
to do any particular act constituting any element of the crime of
murder in order to be found guilty under the concerted action
principle so long as he is present at the scene of the crime and
the evidence is sufficient to prove, beyond a reasonable doubt,
that he shared criminal intent and acted together with Matthew
Wayne Bush or Jeffrey Wayne Stewart, or anyone who did the
acts necessary to constitute the crime, pursuant to a common
plan or purpose to commit the crime.
Therefore, we find that the jury was properly instructed that the evidence must be sufficient
to show that the appellant acted together with another who did the acts necessary to
constitute the crime pursuant to a common plan, purpose or scheme.
The appellant also contends that the trial court failed to adequately define or
explain the concept of “acting in concert with” or “concerted action.” The trial transcript
shows that the lower court instructed the jury, in addition to the paragraph quoted above, as
follows:
The State is required to prove beyond a reasonable doubt the actual presence of the Defendant at the time and place of the alleged crime.
Merely witnessing or being present at a crime, without intervention, does not make a person a party to its commission, unless his interference was a duty and his non-interference was one of the conditions of the commission of the crime, or unless his non-interference was designed by him and operated as an encouragement to or the protection of the perpetrator.
Proof that the Defendant was present at the time and place the crime was committed is a factor to be considered by the jury in determining guilt, along with other circumstances, such as the Defendant's association with or relation to other persons present and his conduct both before and after the commission of the crime.
* * *
Under the concerted-action principle, a defendant who is
present at the scene of the crime and, by acting with another,
contributes to the criminal act is criminally liable for such
offense as if he were the sole person committing the crime.
We find this instruction consistent with our explanation of the concept of “concerted action”
in Fortner. Accordingly, we reject the appellant's assigned error with regard to instruction
on the “concerted action” theory.
Last, the appellant complains that the jury was not instructed on the various
means by which a person can be assigned criminal culpability including as a principal in the
first degree, and principal in the second degree. We find that the trial court did not err in
not giving such an instruction in light of the fact that the trial court gave a proper instruction
on the concerted action theory of criminal liability. Further, the appellant was not harmed
by any failure to give the instruction inasmuch as the appellant is subject to the same
punishment whether he is found to be a principal in the second degree or a principal in the
first degree. See State v. Duncan, 179 W.Va. 391, 395, 369 S.E.2d 464, 468 (1988)
(explaining that “any error in failing to instruct the jury as to a principal in the second degree
was harmless because the appellant was subject to the same punishment whether the jury
viewed her role . . . as that of a principal in the first degree or a principal in the second
degree.”(footnote omitted)); Syllabus Point 11, Fortner (holding that “[u]nder the concerted
action principal, a defendant who is present at the scene of a crime and, by acting with
another, contributes to the criminal act, is criminally liable for such offense as if he were the
sole perpetrator.”). Therefore, for the reasons stated above, we find no error in the
instructions given to the jury.
The relevant test for determining whether a juror is
biased is whether the juror had such a fixed opinion that he or
she could not judge impartially the guilt of the defendant. Even
though a juror swears that he or she could set aside any opinion
he or she might hold and decide the case on the evidence, a
juror's protestation of impartiality should not be credited if the
other facts in the record indicate to the contrary.
With regard to Juror Selbe, the following exchange occurred during voir dire:
THE COURT: Do any of you know any of them from any
business, any other business or social relationships?
(Prospective Juror Selbe so indicates.)
THE COURT: Yes, ma'am.
PROSPECTIVE JUROR SELBE: I had a case with my
husband.
THE COURT: Okay. Come up and tell us about it.
(Prospective Juror Selbe joins counsel, and Defendant, at
benchside.)
PROSPECTIVE JUROR SELBE: It was a domestic battery
case.
THE COURT: Okay, and _
PROSPECTIVE JUROR SELBE: It was him.
THE COURT: Mr. McMillion represented you in that _
PROSPECTIVE JUROR SELBE: Yes.
THE COURT: _ or against you?
PROSPECTIVE JUROR SELBE: No. He represented me. It
was a month ago, I guess.
THE COURT: Is it over with?
PROSPECTIVE JUROR SELBE: Yeah, it's done over with.
THE COURT: The fact that the State represented you in that
case, would that in any way cause you to favor or disfavor the
State?
PROSPECTIVE JUROR SELBE: No.
MR. HURLEY: What kind of case was that, ma'am?
PROSPECTIVE JUROR SELBE: A domestic.
MR. HURLEY: Domestic battery and he represented you?
PROSPECTIVE JUROR SELBE: Uh-huh (yes), he represented
me.
MR. HURLEY: How long did this case go on? Was it fairly
brief, or was _
PROSPECTIVE JUROR SELBE: Yes, it was fairly brief.
MR. HURLEY: Is that the only occasion that you had hired Mr.
McMillion?
PROSPECTIVE JUROR SELBE: Well, he _
THE COURT: He represented the State; it was a criminal case.
MR. HURLEY: Okay. How long ago was that?
PROSPECTIVE JUROR SELBE: A month and a half or two
months maybe.
MR. HURLEY: Do you think your work with him would cause
you to favor his position more than someone on the defense?
PROSPECTIVE JUROR SELBE: No.
THE COURT: Okay, thank you, ma'am. You may go back.
In support of this alleged error, the appellant cites Syllabus Point 6 of State
v. Beckett, 172 W.Va. 817, 310 S.E.2d 883 (1983), in which this Court held:
A prospective juror's consanguineal, marital or social
relationship with an employee of a law enforcement agency
does not operate as a per se disqualification for cause in a
criminal case unless the law enforcement official is actively
involved in the prosecution of the case. After establishing that
such a relationship exists, a party has a right to obtain individual
voir dire of the challenged juror to determine possible prejudice
or bias arising from the relationship.
The appellant's argument on this issue is as follows:
[Juror Selbe] enjoyed far more than a social or even
consanguineal relationship with the prosecutor. The juror's
interests were represented by the actual prosecutor handling the
Appellant's case in court proceedings. Further, the matter on
which her interests were represented by the prosecutor were in
connection with a very personal matter, domestic battery, and
the representation occurred at a time very close to the time of
the Appellant's trial.
The importance of an attorney-client relationship (and
the relationship between a prosecutor and the victim of a crime
is every bit as close, even though a prosecutor is technically
representing the state) cannot be underestimated in this context.
The appellant also contends that the trial court and defense counsel below failed to conduct
a meaningful inquiry into the question of whether Juror Selbe could remain impartial.
Under Beckett, per se disqualification may occur when a prospective juror has
a consanguineal, marital, or social relationship with a law enforcement official actively
involved in the prosecution of the case. (See footnote 4) In the instant case, the appellant claims that a
relationship closer than a social relationship existed between Juror Selbe and the prosecutor
which would automatically disqualify Juror Selbe. We disagree. There is no indication
from the record that Juror Selbe and the prosecutor were more than mere acquaintances.
In the recent case of State v. Mills, No. 33340 (W.Va. Oct. 25, 2007), the
question was whether a juror should have been struck for cause on the ground, inter alia, that a juror and a police officer who was a potential witness for the State both worked as
volunteer firefighters with the same volunteer fire department. This Court found no error
in failing to strike the juror for cause, explaining that:
The record in this case shows that Mr. Mills [the
appellant] failed to establish the “social relationship”
requirement of Beckett. The evidence in this case only
demonstrated that [the juror and the potential witness] worked
for the same volunteer fire department. . . . The “social
relationship” requirement of Beckett is not satisfied by this
evidence alone. See State v. Campbell, 617 S.E.2d 1, 36 (N.C.
2005) (“Mere acquaintance with a witness is not enough to
require excusal for cause.”). The mere fact that people work
together does not mean that they like each other or socialize on
or off the job. It is this type of evidence that is needed to help
establish the “social relationship” requirement of Beckett.
Mills, Slip op., p. 9. Likewise, we believe that the mere fact that the prosecutor in the
appellant's case prosecuted Juror Selbe's husband for domestic battery does not establish
the type of close social relationship between Juror Selbe and the prosecutor that may require
disqualification under Beckett.
With regard to the appellant's allegation that his defense counsel and the trial
court failed to conduct an effective voir dire, we explained in Mills that,
The record in this case speaks for itself in showing that
Mr. Mills failed to ask probing questions as to the nature of [the
prospective juror's relationship with the potential witness]. In
fact, Mr. Mills did not ask any direct questions about [the
relationship]. See State v. Worley, 179 W.Va. 403, 416, 369
S.E.2d 706, 719 (1988) (“Beckett would preclude any claim of
error since there were no particular facts developed to
demonstrate any bias on the part of the juror.”). As pointed out
by an appellate court, “[d]isclosure during the trial that a juror
knows . . . a witness . . . is not sufficient to disqualify a juror
unless it is shown that the relationship is sufficient to preclude
the juror from arriving at a fair verdict. The connection must be
such that one must reasonably conclude that it would influence
the juror in arriving at a verdict.” State v. Mayeux, 949 So.2d
520, 533 (La.Ct.App. 2007). . . . Thus, based on the record in
this case, we find that Mr. Mills failed to satisfy the
requirements of Beckett.
Mills, Slip op., pp. 9-10. Similarly, the appellant failed to ask probing questions of the exact
nature of the relationship between Juror Selbe and the prosecutor below. Based on the
record before us, there simply is insufficient information to demonstrate either a social
relationship that, under Beckett, may require disqualification or actual bias on the part of
Juror Selbe. (See footnote 5)
It is the extremely rare case when this Court will find
ineffective assistance of counsel when such a charge is raised as
an assignment of error on a direct appeal. The prudent defense
counsel first develops the record regarding ineffective
assistance of counsel in a habeas corpus proceeding before the
lower court, and may then appeal if such relief is denied. This
Court may then have a fully developed record on this issue upon
which to more thoroughly review an ineffective assistance of
counsel claim.
Syllabus Point 10, State v. Triplett, 187 W.Va. 760, 421 S.E.2d 511 (1992). After a careful
review of the record, we conclude that this is not one of those extremely rare cases in which
we are able to find ineffective assistance of counsel per se. With regard to any alleged
ineffectiveness in failing to offer jury instructions, we have found no error in the instructions
given at trial. Also, counsel's decision not to assert self-defense as an alternative defense
is the type of tactical decision that counsel should have the opportunity to explain in a
habeas corpus hearing. Finally, while counsel's closing argument was admittedly brief and
failed to refer to elements of concerted action liability, as noted above, the jury was properly
instructed on the elements of concerted action. Thus, we cannot say that counsel's conduct
at trial constituted ineffective assistance of counsel per se. Therefore, we find no reason to
deviate from our general rule that an ineffective assistance of counsel claim should be
brought in a habeas corpus proceeding.