STATE ex rel. DAVID WESLEY WATSON υ. THE HONORABLE C. W. FERGUSON, III, Judge, Etc.
(No. 14995)
Supreme Court of Appeals of West Virginia
Decided December 19, 1980.
166 W. Va. 337
case of causation arises upon a showing that the claimant was exposed to the hazard and is suffering from the disease to which it is connected. Medical evidence and scientific data showing this causal connection must not be disregarded. This is particularly so in this case. We cannot treat the evidence herein lightly.
For the foregoing reasons, the March 27, 1980, order of the Appeal Board is reversed. The case is remanded with directions that the lung cancer claim be considered under the standards of
Reversed and remanded with directions.
Larry A. Bailey, David Lycan, and William L. Redd for relator.
Chauncey H. Browning, Attorney General, Richard L. Earles, Assistant Attorney General, for respondent.
MILLER, JUSTICE:
We granted this original writ of prohibition to consider again the scope of our double jeopardy clause1 in light of our decisions
In the present case, the defendant was charged by the grand jury of Wayne County with the murder of four persons in the early morning hours of June 25, 1979. Three of the victims were killed in one bedroom, and the fourth in a nearby hallway. Each of the victims was killed by multiple blows from a metal bar wielded by the defendant. The victims were a woman and two children plus a playmate of one of the children. All were killed in their beds in the same bedroom with the exception of an eight-year-old child who was killed in the hallway outside of his bedroom. Prior to the first trial on April 7, 1980, defense counsel moved the court to try all four murder charges in the same proceeding, citing Syllabus Point 2 of State ex rel. Johnson v. Hamilton, supra, which held:3
“Appropriate protection against multiple trials for offenses arising from the same criminal transaction requires, in future cases, joinder for trial at the same time of all counts arising out of the same transaction either in a single indictment with multiple counts or multiple separate indictments; however, the defendant may move for severance of separate offenses and waive a future plea of double jeopardy, and if severance is granted by the Court, after defendant‘s showing of good cause for such severance, the defendant may be tried separately for each separate offense.”
The trial court declined to give a unitary trial for the four murder charges. The defendant was brought to trial on one of the charges and was convicted of first degree murder without a recommendation of mercy. Thereafter, the lower court set a trial date for the next murder trial. The defendant then sought this writ of prohibition to prevent the trial on the basis that jeopardy had attached under Johnson and, therefore, further trials were precluded.
There can be little doubt that Dowdy and Johnson made a primary change in our double jeopardy law by requiring that where the defendant committed multiple offenses arising out of the same transaction, he must be tried for these offenses in one trial.4 Johnson, in effect, brought about a bifurcation in our constitutional concept of double jeopardy, since it recognized that a unitary trial could be required for multiple offenses resulting from the same transaction, but that, nevertheless, “separate punishments may be imposed.” Syllabus Point 3, in part, State ex rel. Johnson v. Hamilton.5
Prior to Johnson, we had considered our State double jeopardy clause to be rather coextensive with the federal concept of double jeopardy embodied in the Fifth Amendment
“The Double Jeopardy Clause in Article III, Section 5 of the West Virginia Constitution, provides immunity from further prosecution where a court having jurisdiction has acquitted the accused. It protects against a second prosecution for the same offense after conviction. It also prohibits multiple punishments for the same offense.”
See also State v. Holland, 149 W. Va. 731, 143 S.E.2d 148 (1965); State ex rel. Zirk v. Muntzing, 146 W. Va. 878, 122 S.E.2d 851 (1961); State v. Kiger, 103 W. Va. 55, 136 S.E. 607 (1927); Ex Parte Bornee, 76 W. Va. 360, 85 S.E. 529 (1915).
The United States Supreme Court has never considered that for double jeopardy purposes, there should be a difference between multiple trials and multiple punishments for the same offense. As stated in Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 2226, 53 L.Ed.2d 187, 194-95 (1977):
“If two offenses are the same under this test for purposes of barring consecutive sentences at a single trial, they necessarily will be the same for purposes of barring successive prosecutions. See In re Nielsen, 131 U.S. 176, 187-188, 9 S.Ct. 672, 675-676, 33 L.Ed. 118 (1889); cf. Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489 (1911). Where the judge is forbidden to impose cumulative punishment for two crimes at the end of a single proceeding, the prosecutor is forbidden to strive for the same result in successive proceedings. . . .”
The reason advanced in Johnson for such a separation was the necessity of protecting the defendant against the time and expense of defending against multiple trials. Johnson echoed earlier remarks contained in Dowdy, 257 S.E.2d at 170, where the Court quoted from Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223, 2 L.Ed.2d 199, 204 (1957):
“[R]epeated attempts to convict an individual for an alleged offense [is] thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.”
The key language from Green, however, is the “repeated attempts to convict an individual for an alleged offense” (emphasis added), under which multiple punishments would seem to be as impermissible as multiple trials. The historical question in this area of double jeopardy is as we stated in Note 5 of State ex rel. Betts v. Scott, 165 W. Va. 73, 267 S.E.2d 173, 176 (1980):
“Double jeopardy in the traditional sense is concerned with the defendant being retried for the same offense after he had earlier been convicted or acquitted on the offense. The focus in this area has been how to define ‘the same offense’ and whether lesser included offenses are covered. See Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977); Iannelli v. United States, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975); Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958).”
We also pointed out in Betts that while the concerns expressed in Green v. United States, supra, as to the anxiety, insecurity, embarrassment and expense of multiple trials may be legitimate considerations, they do not ultimately resolve all the complex issues arising in double jeopardy cases:7
“These beguiling labels tend to obscure the fact that the Double Jeopardy Clause has never been thought to mean that a defendant may never be subjected to more than one trial no matter how complete the first trial, or regardless of the terms upon which it was terminated, and irrespective of whether it was reversed on appeal.” 267 S.E.2d at 178.
Moreover, there is a certain legal sophistry in constructing a double jeopardy system that requires a single trial for multiple offenses arising out of the same transaction but permits multiple punishments for those offenses if convictions occur in the unitary trial. It is small comfort to the accused to be spared the anxiety and expense of multiple trials only to learn that he can receive multiple punishments arising out of convictions for the multiple offenses being tried in a single trial.
A more workable approach is to permit from a procedural standpoint the prosecution of multiple offenses by way of a single trial as is permitted by
State v. Piland, 217 Kan. 689, 538 P.2d 666 (1975); State v. Baker, 524 S.W.2d 122 (Mo. 1975); State v. Gotfrey, 598 P.2d 1325 (Utah 1979); State v. Smith, 74 Wash.2d 744, 446 P.2d 571 (1968), vacated on other grounds, 408 U.S. 934, 92 S.Ct. 2852, 33 L.Ed.2d 747 (1972). We have evolved a somewhat analogous joinder rule through case law and by virtue of certain statutes. E.g.,
Several courts have concluded that the problem of multiple trials can be solved to a large degree by a joinder rule that requires multiple offenses to be tried together unless the defendant moves for a severance. In State v. Gregory, 66 N.J. 510, 333 A.2d 257 (1975), after an extensive review of its prior double jeopardy cases, the court concluded that it would establish under its inherent rule-making power a procedural rule modeled after Subsection 1.07(2) of the American Law Institute‘s Model Penal Code.9 See also Commonwealth v. Campana, 455 Pa. 622, 314 A.2d 854 (1974), cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139; State v. Brown, 262 Or. 442, 497 P.2d 1191 (1972), overruled on other grounds, State v. Hammang, 271 Or. 749, 534 P.2d 501 (1975).
These cases in essence adopt a mandatory procedural joinder rule and to this extent on a procedural level comport with Johnson‘s goal of requiring the defendant to
be tried in a unitary trial for multiple offenses arising out of the same transaction in order to avoid the harassment and anxiety of multiple trials. They provide a more rational basis, by a procedural rule, for accomplishing the result sought in Johnson, supra, and produce a number of important
First, we can still accomplish the primary aim of Johnson, which is to require the defendant to be tried in a single trial on similar offenses or multiple offenses arising out of the same transaction. Second, the defendant can still retain his traditional right to move for a severance because of prejudicial joinder,10 as was permitted in Johnson, but since the joinder rule will be procedural in nature, we are not confronted with the problem of the constitutional waiver of double jeopardy that existed under Johnson.11
Third, adopting a procedural rule permits some flexibility in its application, since we will not be bound by the rigidity of a constitutional doctrine. It must be stressed, however, that any procedural rule on joinder is not designed to supplant the constitutional double jeopardy doctrine, since this latter doctrine will ultimately determine whether two related offenses are the “same offense” for double jeopardy purposes, which if so found will
preclude not only separate trials but also separate punishments.
Fourth, in setting a procedural joinder rule, it can be designed to permit a broader right of joinder than was heretofore available. Its scope can be broader than the double jeopardy test for the same offense, since its purpose is to alleviate the harrassment and expense that result to a defendant by reason of separate trials for related offenses.
Finally, such a procedural rule on joinder will abolish the bifurcation of our double jeopardy doctrine brought about by Johnson. As we have discussed earlier, the historical concept of double jeopardy centered on what is the same offense. Once it was determined that the offenses were the same, then there could only be one trial and one punishment for that offense. Johnson required that all related offenses be tried in one trial even though if separate convictions were obtained on the various counts at the trial, separate punishments could be imposed. Thus, there was created a dichotomy between trial and punishment concepts in our double jeopardy doctrine.
In light of the foregoing salutary goals and under our inherent rule-making power,12 we conclude that a defendant shall be charged in the same indictment, in a separate count for each offense, if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character, or are based on the same act or transactions, or are two or more acts or transactions connected together or constituting parts of a common scheme or plan.13 To the extent that State ex rel. Johnson v. Hamilton, 164 W. Va. 682, 266 S.E.2d 125 (1980), set the rule as a constitutional holding, it is disapproved.
It is probably not possible to formulate any detailed test for determining what constitutes the same offense for double jeopardy purposes. Certainly courts and commentators are in disagreement not only as to the exact formulation for such tests but also as to the basic policies underlying the double jeopardy clause.14
Part of the confusion might be resolved by a frank recognition that the double jeopardy clause embraces a number of diverse concepts which cannot be packaged under one formulation.15 Once this diversity is
“Several policies underlie the double jeopardy prohibition. First, guilt should be established by proving the elements of a crime to the satisfaction of a single jury, not by capitalizing on the increased probability of conviction resulting from repeated prosecutions before many juries. . . . Second, the prosecutor should not be able to search for an agreeable sentence by bringing successive prosecutions for the same offense before different judges. . . . Third, criminal trials should not become an instrument for unnecessarily badgering individuals. . . . Finally, judges should not impose multiple punishment for a single legislatively defined offense. . . .”
confronted with a double jeopardy issue that involves multiple homicides committed over a relatively short period of time.
In any analysis of the policies underlying double jeopardy in the area of offenses against multiple victims, it must be recognized that criminal culpability cannot be answered merely by looking at the shortness of the time frame. Some consideration must be given to the defendant‘s criminal acts and intent. We do not conceive that in fashioning a double jeopardy policy in regard to what is the “same offense” that we can ignore the fact that multiple victims have been the subject of the defendant‘s acts. There can be little doubt that one function of a criminal justice system is to enable those individuals who have been victimized by the criminal acts of another to find some individual vindication of the harm done to each. Certainly, the degree of culpability, and as a consequence the degree of punishment, must bear some proportion not only to the magnitude of the crime but also to the number of victims involved. These are fundamental considerations that society expects from a criminal justice system.
Other courts have spoken to these concerns in analyzing multiple offenses under double jeopardy principles. In Davenport v. State, 543 P.2d 1204, 1209 (Alaska 1975), the court stated that:
“Specifically, we are concerned with the increased harm or propensity for harm which inheres in a multiple victim robbery. As the dignity and sensibilities of each individual are affronted, the possibility of violence or bodily injury to one or more of the persons present increases. In addition, we are mindful that each victim of a robbery, as an individual, quite probably suffers fear, anxiety, and resentment as the result of this crime against his or her person.”
Justice Traynor stressed the increased culpability arising from multiple offenses in Neal v. State, 55 Cal.2d 11, 20, 9 Cal. Rptr. 607, 612, 357 P.2d 839, 844 (1960), cert. denied, 365 U.S. 823, 81 S.Ct. 708, 5 L.Ed.2d 700 (1961):
“A defendant who commits an act of violence with the intent to harm more than one person or by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person. For example, a defendant who chooses a means of murder that places a planeload of passengers in danger, or results in injury to many persons, is properly subject to greater punishment than a defendant who chooses a means that harms only a single person.”
While Dowdy and Johnson set our double jeopardy test as either the “same evidence” or “same transaction” test, whichever is more beneficial to the defendant, this rule was adopted without any citation to our prior case law.16 We believe, however, that based on an analysis of our prior case law the Dowdy-Johnson formulation is not inconsistent.
We have not adopted the narrow early common law view that looks only to the indictment language17 but have considered
sufficient to procure a legal conviction upon the first.” Syllabus Point 5, in part, State v. Friedley, 73 W. Va. 684, 80 S.E. 1112 (1914).18 In regard to whether one offense includes the other, we held in State ex rel. Zirk v. Muntzing, 146 W. Va. 878, 122 S.E.2d 851 (1961), that an acquittal on the charge of conspiracy to commit murder would preclude a subsequent trial for murder of the same person. Zirk quoted with approval from State v. Mowser, 92 N.J.L. 474, 483-84, 106 A. 416, 420 (1919):
“The principle to be extracted from well-considered cases is, that by the term same offence is not only meant the same offence as an entity and designated as such by legal name, but also any integral part of such offence which may subject an offender to indictment and punishment. Reg. v. Walker, 2 Moody & R. 457; Rex v. Stanton, 5 Cox C.C. 324.
“When such integral part of the principal offence is not a distinct affair, but grows out of the same transaction, then an acquittal or conviction of an offender for the lesser offence will bar a prosecution for the greater.” 146 W. Va. at 888, 122 S.E.2d at 857.
In State v. Houchins, 102 W. Va. 169, 134 S.E. 740 (1926), we were confronted with a double jeopardy plea where the defendant Houchins had been assaulted and believed that she was in danger of being killed or subjected to great bodily harm. She fired two shots at her assailant but missed and killed two bystanders, Lewis Romans and Emma Carter. The defendant Houchins was first tried for the Carter killing and was acquitted. Subsequently, she was brought to trial for killing Romans and her plea of double jeopardy was rejected. After her conviction for voluntary manslaughter, she appealed. In upholding her double jeopardy plea, we stated:
“We think that the facts pleaded bring the case within what is regarded as an exception to the general rule, that the conviction or acquittal of one charged with the murder of, or assault upon, one person, is not a bar to his subsequent prosecution for the murder of, or assault upon, another person at the same time. . . . [T]he well recognized exception to the general rule [is] where the double killing is the result of one shot or stroke directed by a single act or volition towards one person. . . .” 102 W. Va. at 176-77, 134 S.E. at 743.
Houchins’ result was perhaps foreshadowed in our earlier case of State v. Evans, 33 W. Va. 417, 10 S.E. 792 (1890), where we declined to uphold a double jeopardy plea. In Evans, the defendant shot two individuals and had been acquitted at the first homicide trial. He attempted to bar the second trial by asserting double jeopardy, but we concluded that each killing constituted
“A case can be conceived where such a plea might be held good. For example, the engineer of a
railway train might be charged with negligently and feloniously causing the death of one passenger in a wreck, and, being tried and found by the jury entirely blameless for the accident, such acquittal might, perhaps, constitute a perfect defense to a subsequent indictment for killing another passenger, who was on the same train.” 33 W. Va. at 419-20, 10 S.E. at 793.
Although the double jeopardy principle did not determine Myers v. Murensky, 162 W. Va. 5, 245 S.E.2d 920 (1978), its implications were recognized when we decided that our negligent homicide statute,
We believe that Houchins and Zirk demonstrate that we have not confined our double jeopardy test to the same evidence but have broadened it to include a transactional test at least to the extent in Houchins that if two persons are killed by the single volitive act of another, such homicides would be treated as a single transaction for jeopardy purposes.20
The key to Houchins and the present case lies not in a mechanical solution relating to proximity in time but rather an analysis of the conduct and intent of the defendant. Here there is no contention that the multiple homicides occurred as a result of a single volitive act on the part of the defendant, but rather each was killed by sequential acts of the defendant moving from one victim to another, striking them with the tire lug wrench. Thus, where multiple homicides occur even though they are in close proximity in time, if they are not the result of a single volitive act of the defendant, they may be tried and
punished separately under the double jeopardy clause of
Houchins contains a number of cases from other jurisdictions which support this rule, as do the following more recent cases. E.g., Ciucci v. Illinois, 356 U.S. 571, 78 S.Ct. 839, 2 L.Ed.2d 983 (1958); People v. Carlson, 37 Cal. App.3d 349, 112 Cal. Rptr. 321 (1974); State v. Richmond, 284 So.2d 317, 320-22 (La. 1973); State v. Johnson, 530 S.W.2d 690, 694 (Mo. 1975); Gibson v. State, 512 P.2d 1399 (Okl. Crim. 1973); Scott v. State, 490 S.W.2d 578 (Tex. Crim. App. 1973).21
For the foregoing reasons, we decline to award a writ of prohibition restraining the petitioner‘s trial, and, therefore, the writ of prohibition is denied.
Writ Denied
The majority opinion in this case causes the pronouncement of the historian, James Morris, about the early speeches of Mr. Gladstone to leap instantly to mind: “They were at the same time learned and incomprehensible.”
After several readings of the majority opinion it appears to me that it stands for the following propositions: (1) the same transaction test is a good idea and should be part of our law, in fact, it has been applied in the past and will be applied in the future; (2) people who commit multiple murders are not nice people; (3) the same transaction test is either procedural or constitutional depending on the judge who writes the opinion; and (4) this particular multiple murderer is not a nice person and, therefore, we will not apply the same transaction test in his case so that we can punish him some more.
I have no particular quarrel with the Court‘s sentiment concerning this defendant; certainly, multiple murderers have never been among my favorite defendants. My primary objection comes from some romantic notion which I learned in law school about the law being uniformly applied to all persons similarly situated. The protection in our legal tradition against vexatious criminal litigation is certainly embodied in the federal and state constitutional provisions on double jeopardy. I have never found any magic in the term “constitutional” since the preeminent axiom of all jurisprudence is that no rule determines its own application. The fact that one judge calls something unconstitutional does not mean that the next judge may not call it constitutional. As I pointed out in State ex rel. Johnson v. Hamilton, 164 W.Va. 682, 266 S.E.2d 125 (1980) the English have accomplished the same result concerning the same transaction test under the doctrine of autrefois convict.
It is also worth noting that in the case before us the defendant made a motion to have all of the indictments joined in one trial so that he would be required to go through the trial process only once. I recognize that today the courts are so outrageously capricious that it is highly likely that any conviction for a heinous crime like multiple murders will be overturned a decade from now by an arbitrary judge applying some new permutation of “constitutional principles.” The prosecution, indeed, has some guarantee that with four separate convictions the process of releasing this defendant once more upon an unsuspecting world because of a new legal theory will be reduced by a factor of four. That, however, is the fault of our current system of criminal jurisprudence which, I might point out, has not in any regard been helped in the last several years by the majority of this Court. It is not the defendant‘s obligation to provide the State or the courts with an insurance policy against his ultimate release by judicial caprice, and multiple murderers have as much right as drunk drivers to protection against vexatious litigation.