Davis, J., concurring:
In this criminal proceeding the
majority opinion reversed the defendant's conviction for malicious wounding.
I concur in this result. I have chosen to write separately to underscore the
factual basis for my belief that the ex parte remarks made by the trial judge
were not harmless beyond a reasonable doubt. Additionally, I believe the defendant
presented a strong case of self-defense.
1. Upstairs confrontation. No charges against the defendant arose from the initial upstairs confrontation. Nevertheless, details of this confrontation are critical to understanding the circumstances surrounding the subsequent downstairs confrontation, from which the malicious wounding charges arose.
There were two witnesses, excluding the defendant and the alleged victim, to the initial conduct that ultimately led to the stabbing of the alleged victim, Nick Patton. Those two witnesses were Danielle Digiorgi and Stephanie Mullins. The testimony of both of these women was consistent. They both indicated that the initial confrontation between the defendant and Nick occurred on the second floor of the home. Ms. Digiorgi and Ms. Mullins both testified that Nick began taking an illegal drug called crystal methamphetamine before they went upstairs, and continued taking the illicit drug while they were all upstairs. Each woman confirmed that no one else took drugs. The two witnesses also testified that the defendant and Ms. Digiorgi were “horse playing” on a bed. During the “horse play” between the defendant and Ms. Digiorgi, Ms. Digiorgi stated several times to the defendant to “get away from me, get away from me.” As a result of his drug-induced state of mind, Nick misunderstood what was occurring and immediately began to attack the defendant. Nick actually chased the defendant downstairs with a knife. The eyewitness trial testimony of Ms. Digiorgi was as follows:
QUESTION: And where was, was
[the defendant] standing or sitting, or lying on top of you, or?
MS. DIGIORGI: No. He was, actually,
gradually, you know we were just -- he was standing some way, and we were just
horse playing around. You know how normal kids horse play around. They'll push
each other back and forth, and just little things, nothing hurtful, nothing huge.
. . . .
QUESTION: Then what happened?
MS. DIGIORGI: Nick had, -- I
was playing around. I was, like, “No, get away from me, get away from me.” But
we had been playing like this all day long; we had been horse playing. And everybody
had witnessed us horse playing. And [the victim], all of a sudden, was “Get
off of her, leave her alone.” And I told Nick no, it was okay that we were
just playing. “Don't Nick,” we were, we were just playing around. And
Nick didn't like it.
So Nick proceeded to push [the
defendant] away, push him off. And [the defendant] stepped back, you know. He
looked, kind of, shocked, in a way, you know, he had pushed him, you know. There
was no, really, reason, at all, to push him. And then Nick proceeded to push
him again, and he did and continued to attack him. And that's when [the defendant]
stepped back and started to retaliate to what Nick was doing.
QUESTION: How did he retaliate
at that time?
MS. DIGIORGI: He had, he got,
well one thing --.
QUESTION: What was it? Was it
an instrument or was it a fist or --.
MS. DIGIORGI: No, it was with
his fist. It was with his hands.
. . . .
QUESTION: And then what happened?
MS. DIGIORGI: Nick pulled out
a knife, and [the defendant] ran downstairs.
QUESTION: Who pulled out a knife?
MS. DIGIORGI: Nick did.
. . . .
QUESTION: What did Nick do?
MS. DIGIORGI: He ran after him.
. . . .
QUESTION: So, [the defendant]
ran out. And Nick, it wasn't more than a second later, that he ran behind him?
MS. DIGIORGI: Right.
QUESTION: With the knife in his
hand?
MS. DIGIORGI: Yes.
Similarly, Ms. Mullins gave the
following eyewitness account of what transpired upstairs between the defendant
and Nick:
QUESTION: What was Danielle and
[the defendant] doing?
MS. MULLINS: They were on the
bed, playing around.
. . . .
QUESTION: What were you doing?
MS. MULLINS: I was sitting in
the chair that's across from the bed.
QUESTION: Tell us then what happened?
MS. MULLINS: I noticed Nick thought
that Danielle didn't want [the defendant] messing with her, so he pushed him
off of her.
. . . .
QUESTION: What did [the defendant]
do immediately?
MS. MULLINS: He stood up.
. . . .
QUESTION: And what did Nick do
then?
MS. MULLINS: He pushed him again.
. . . .
QUESTION: Then what happened?
MS. MULLINS: They began to fight.
They both were fighting each other.
. . . .
QUESTION: Then what happened?
MS. MULLINS: Nick pulled out
a knife, and [the defendant] went towards the door and went out the door. And
when he done that, Nick followed him.
. . . .
QUESTION: Okay. What did he do?
MS. MULLINS: He pulled out the
knife, and [the defendant] went out the door. As soon as he went out the door,
Nick, I guess, pursued him down to, down the stairs.
QUESTION: Where was the knife
when Nick pursued him down the stairs?
MS. MULLINS: In his hand.
QUESTION: In Nick's hand.
MS. MULLINS: Yes.
The testimony of the two eyewitnesses
to the upstairs confrontation, Ms. Digiorgi and Ms. Mullins, plainly reveals
that the defendant was attacked by Nick because, while under the influence of
drugs, Nick misunderstood the horseplay between Ms. Digiorgi and the defendant.
When Nick pulled out a knife, the defendant fled. With the defendant retreating,
Nick followed him downstairs with the knife in hand. Clearly, Nick initiated
the confrontation.
(2) Downstairs confrontation. When the defendant ran downstairs, he went into the kitchen and retrieved two knives. There were four witnesses, excluding the defendant and the alleged victim, to the stabbing of Nick that occurred downstairs. (See footnote 1) Those witnesses were Ezra Mullins, Matthew Mullins, Ms. Digiorgi, and Ms. Mullins. With the exception of Ezra Mullins, (See footnote 2) all the witnesses testified that Nick was trying to stab the defendant when the defendant stabbed Nick. The testimony of Matthew on this issue was as follows:
QUESTION: Did you see Nick with
anything in his hand?
MATTHEW: Yeah. He had a knife
in his hand, too.
. . . .
QUESTION: Did you see if Nick
was trying to stab [the defendant]?
MATTHEW: Yeah. Because I seen
him there trying to reach around my dad [Ezra Mullins], too.
QUESTION: So, when you saw your
dad breaking them apart, you saw [the defendant] and Nick both trying to stab
each other?
MATTHEW: Uh-huh.
Likewise, Ms. Digiorgi gave the
following account of what occurred downstairs:
QUESTION: Did you see any part
of the fight? Did you get down soon enough?
. . . .
MS. DIGIORGI: Yeah. They were
both stabbed. The only time I saw any stabbing was [the defendant] when he went
to block his face from Nick, and Nick had got him on the arm.
QUESTION: Is that the first stabbing
or the first slice of the knife that happened?
MS. DIGIORGI: I don't know. That
is the only one I saw.
Additionally, Ms. Mullins gave
the following account of the stabbing incident:
QUESTION: What did you see?
MS. MULLINS: When I came down,
there was, Nick was, I guess, going towards [the defendant]. And he had his arm
up, blocking, I guess, him stabbing him.
QUESTION: He had his arm up,
who had his arm up?
MS. MULLINS: [The defendant]
had his arm up, blocking.
. . . .
QUESTION: Did you see any injuries
on [the defendant]?
MS. MULLINS: Yes. On his arm.
Based on the above quoted testimony
of what actually took place upstairs and what occurred downstairs, it is clear
that the eyewitness testimony was in favor of the defendant, as to both
the initial confrontation and the ultimate wounding of the alleged victim. (See
footnote 3) In other words, this was not a “slamdunk” case for the State.
The jury could very easily have found that the defendant was acting in self-defense
when Nick was stabbed.
The defendant argues that
the jury ruled against him because the trial judge cast him in an improper
light during an ex parte communication with one of the jurors. Because the
evidence was so overwhelmingly supportive of the defendant's claim that his
actions were done in self-defense, it is obvious that the jury's decision
was guided by something other than the evidence. Accordingly, it cannot be
conclusively stated that the trial judge's comment did not “detrimentally affect[] the substantial rights
of the [defendant] and was [not] likely to have [a] serious[] affect[ on]
the fairness, integrity, and public reputation of the judicial proceedings.” Honaker
v. Mahon, 210 W. Va. 53, 60, 552 S.E.2d 788, 795 (2001). “To
hold otherwise would make a mockery of the [right to a fair trial] and trample
upon the very essence of due process.” State v. Myers, 204 W. Va.
449, 464, 513 S.E.2d 676, 691 (1998). Consequently, I believe the majority
was correct in reversing the judgment and remanding this case for a new trial. (See
footnote 4)
In view of the foregoing, I respectfully concur.