*1 V.
Conclusion above, the reasons set forth we find
For Berkeley County the Circuit Court of denying appellants’ motion
was correct
judgment notwithstanding the verdict and verdict,
appellants’ motions for directed appellees’ in granting
was also correct mo- Accordingly, for directed
tions verdict. we
affirm, proceed and we direct the damages
with its determination of the plaintiffs. be
should awarded to the various appel- view fact that we find the assignment
lants’ of error be without mer-
it, also note the lower court’s award
attorneys’ plaintiffs, fees and costs
affirm.
Affirmed. Virginia, Plaintiff
STATE West
Below, Appellee,
Mary DAVIS, Beth Defendant
Below, Appellant.
No. 25812.
Supreme Appeals Court of Virginia.
West 5,May
Submitted 1999.
Decided June
Concurring Opinion of Chief Justice Sept.
Starcher
571
573 *5 Burnette, September Prosecuting Attor- Davises Esq., On Mark Attorney Valley Hospital for Lewisburg, Virginia, ney, West rushed Seth to Greenbrier Appellee. appeared after he to have a seizure.3 While hospital, drawn from at the blood was Seth Cleckley, Esq., Morgantown, D. Franklin sugar level and it showed normal blood Detch, Esq., Lewis- Virginia, Paul S. West However, spinal fluid of his re- 72. test Attorneys Ap- Virginia, for burg, West reading an abnormal vealed low pellant. grave appears that Seth’s was condition hospital, about three at the medi- after hours MAYNARD, Justice: him flown cal officials decided to have by Mary appeal brought Beth This (PCH). Pittsburgh Hospital Children’s below, Davis, defendant Circuit PCH, Upon arrival at it was discovered that County. The defendant of Greenbrier Court dangerous had an level of Seth abnormal and injure attempt to appeals her convictions for body. insulin level insulin his The by poison infant and first her son PCH, treating physician Dr. daughter. infant The circuit murder of her Becker, Dorothy that someone concluded had impris- to life sentenced injected Seth with Dr. Becker re- insulin.4 convic- parole the murder onment without for suspicions treating phy- ported her to Seth’s of 3-18 and to a consecutive sentence tion Virginia, Aldrich, Joseph Dr. in West sician injure attempt to years imprisonment for the report suspect- Dr. and instructed Aldrich to appeal, the by poison conviction. In this Virginia (1) ed child abuse to West officials. Dr. following assigns errors: report. Aldrich did not such a As a support make insufficiency the con- of evidence to (2) victions, large pretrial quantity result of the of insulin in failure to dismiss (3) delay, body, to instruct indictment failure he massive brain dam- Seth’s sustained malice, failure on lesser to instruct *6 age and severe At trial it retardation. was (5) offenses, prosecutorial mis- included vegeta- that in a state of revealed Seth lives reasons, following we af- conduct. For tion.5 firm. 10, 1982, March On the defendant rushed Valley Hospital.6 Tegan to Greenbrier Te-
I. gan vomiting complaining had been burning Tegan of the urine. was admitted to FACTS STATEMENT OF hospital. appears during the late The record indicates that the defendant admission, evening Tegan’s hours of Nurse Gary The Davises were married to Davis.1 Helen M. Pack the defendant in- observed 19, 1977. Two chil- married on November something jecting Tegan. Nurse into Pack marriage. born to The first dren were regarding testified the incident as follows: child, 27,1979. February Tegan, was born on child, Seth, July born on The second was Q. during there Did come a time began her career as a 1981. The defendant evening you the defendant observed in entered registered nurse 1972. Mr. Davis give Tegan a shot? Virginia medical school at West School 2:15, Yes. At A. Dr. Aldrich was out of Lewisburg, Medicine in Osteopathic West room, in, Virginia Mary Beth came 1979.2 went separated drug prescribed never di- had not for Seth. 1. The Davises in 1985 but 4. been vorced. walk, see, speak, Seth cannot hear or eat 5. solid graduated 2. Mr. Davis the school and is has been food. Seth institutionalized. practicing physician. now to this incident been treated for Prior Seth had testimony Mr. Davis 6. Trial indicated that was lethargy Virginia at the West School of Osteo- hospi- Tegan at home when taken to the not was pathic Joseph At the Medicine Aldrich. Dr. tal. preparing time of seizure Davises were Pittsburgh. specialist take Seth to a medical Tegan gave autopsy her a I An performed Tegan by over to shot. And was on said, “Well, Mary Hooper. what was that Beth?” Hooper reported Dr. Anne Dr. said, Tegan’s And she “That was thiamine.” She death was a homicide caused “Now, says, you can chart that it was 100 Hooper caffeine overdose. Dr. found inside milligrams of thiamine.” Tegan’s stomach pills “beads” of caffeine pill which had been contained in capsules. Q. you Did chart it? Hooper opined Dr. that because of the lethal Beth, said, “Mary A. I I can’t chart that’s quantity Tegan’s of caffeine found intesti- thiamine, milligrams I because tract, nal the child had to have been fed the give didn’t it and I don’t know for sure pills period over a short of time. On the what’s there.” death, evening Tegan’s Mr. Davis discov- Q. you try Did to determine what was in empty pack, ered an blister that had con- syringe? capsule pills, tained diet in tied-up garbage bag porch.8 on his back Q. registered give Can a nurse a shot began Law enforcement officials an inves- without an order? tigation Tegan’s into death but halt- A. On her own? Not unless the doctor point prior it ed at some to 1985. The case say, leaves like an if order “use this reopened November of necessary.” But there has to be some sort grand jury charg- returned an indictment order, standing they of a—or some what ing attempting injure orders,” “standing called that he leaves by poison Seth and first murder of these, patient, you with the if need Tegan.9 The subsequently defendant was you list, anything can use on this and write charges. convicted and sentenced on both it as an order. standing It’s like a order. appeal prosecuted This assigning But he standing didn’t have orders for (1) following insufficiency as errors: of evi- Tegan. (2) convictions, support dence to failure pretrial delay, dismiss for indictment Q. going If a doctor was to order a shot malice, (4) failure to instruct failure given, to be who would he order to do it? offenses, to instruct on lesser included give A. I Mary would be the one to it. (5) prosecutorial misconduct. Beth, R.N., point, she was an but she was the I *7 child’s mother. was the II. charge. in I nurse was the one to be caring for the child. DISCUSSION
Q. you give Have ever known a doctor to inject patient? order for a mother to a A. A. something Not unless it would be at hospital, home. Not no.7 Insufficiency of Evidence Tegan took a turn for the worse at some point assignment The defendant’s first of being injected after with a substance error morning is that the State’s evidence was insuffi defendant. On of March 12, 1982, support plans cient to her convictions. This Court Tegan were made to transfer larger hospital, Tegan to a set out the of review for a however died in standard sufficien Guthrie, hospital, cy ambulance before it reached the of the evidence claim State v. brought and she was back to Greenbrier We Valley Hospital. held Point of Guthrie that: trial, gave charge attempting injure 7. At the defendant testified that she 9.There was also a Tegan approval. the shot with Dr. Aldrich’s Tegan by poison. empty 8. The evidence indicated blister pack pills composed contained diet that were caffeine. equally result. this is true of appellate of an court when incorreet Yet function
The instances, sufficiency of the evidence testimonial evidence. In both reviewing the is to examine jury weigh criminal conviction the chances that the support a is asked guilt against at trial to determine correctly points admitted the evidence evidence believed, evidence, if is suffi- ambiguous possibility inaccuracy whether such person a reasonable both, jury to convince cient inference. must use its beyond guilt a reasonable the defendant’s experience people with and events in Thus, inquiry is the relevant doubt. probabilities. jury If the weighing whether, in the viewing doubt, after the evidence beyond convinced a reasonable we prosecution, light most favorable to require no can more. trier of could have found rational fact Guthrie, proved of the crime the essential elements States, 348 quoting, Holland v. United U.S. beyond a reasonable doubt.10 139-40, 127, 137-38, 99 L.Ed. S.Ct. Syllabus Point 3 of further elaborated in We principles these With Guthrie, part, that: view, we will examine the evidence suffi- challenging the A criminal defendant ciency separately as to each conviction. sufficiency support of the evidence to heavy takes on burden. An conviction attempted 1. Conviction for the evi- appellate court must review all poisoning of Seth. circumstantial, dence, whether direct or light prosecution most favorable The record in this case is clear that all and credibil- and must credit inferences vegetation. in a lives state of The Seth jury might have ity assessments that the September prior clear evidence is prosecution. in favor of The drawn physical was not Seth’s condition need not be inconsistent with ev- evidence vegetation. presented The evidence State guilt long as ery conclusion save that of so September morning that on the to show guilt beyond jury can find a reasonable 30, 1981, the defendant was at home alone Credibility are for determinations doubt. Tegan. disputed Mr. Davis with Seth Finally, appellate not an court. this fact at trial that he and testified believed only jury verdict should be set aside However, he was home the defendant. evidence, the record no re- when contains presented a statement Mr. State gardless weighed, of how it from which gave an investigating Davis officer where beyond find a reason- guilt could in Mr. Davis indicated he received call at doubt. able Osteopathic School from the defendant con- record shows that the defendant’s telling him to come home because Seth was upon were based evi- victions circumstantial also ill. The called the “rotation” rec previously This Court ruled that dence. has keeper Osteopathic ord from the School to evidence, may accept any in- adequate testify Mr. Davis was on rotation with a evidence, deceased) cluding support (now circumstantial Dr. Andrew McKenzie *8 Guthrie, 668, at a conviction. 194 W.Va. for September pro also 1981. The State at 174. It noted Guthrie 461 S.E.2d was showing duced a record the defendant con that: Osteopathic at 10:45 tacted the School a.m. September a message ... is intrinsi- on 1981 and left
Circumstantial evidence cally jury’s evi- no different from testimonial that Seth was seizure. The verdict Admittedly, evi- it did Mr. dence. circumstantial shows not believe Davis’s may wholly testimony point some to a on issue. dence case sufficiency judgment acquittal essary appraising is re- that the 10. A motion its reviewing under the same as articulated in viewed standard trial court or court be convinced Fischer, 1 of beyond guilt Point State v. a reasonable doubt of of the (1974): defendant; question whether there is upon might which a substantial evidence Upon motion to a verdict for the de- direct fendant, guilty beyond light justifiably find the defendant the evidence is to be viewed prosecution. It is not nec- reasonable doubt. most favorable suggested high that Mr. and level in record shows Mrs. insulin Seth was glucose due to Valley that was administered him Hospi Davis took Seth to Greenbrier presented at 30,1981.11 by PCH. Evidence was also September tal on Seth was even suggested defendant which Seth was suffer- PCH, tually flown to PCH. While at Dr. (a ing Leigh’s rare Disease neurometa- Becker discovered that Seth had abnor disorder).16 However, bolic the evidence was dangerous mal and level of insulin in his contradictory as to whether Seth was ever body. Dorothy Dr. Becker concluded that diagnosed actually having Leigh’s Disease. injected had with insulin someone Seth treating physician advised the child’s in West looking light at the in the evidence most Aldrich, Virginia, report suspected Dr. State, favorable to are unable to Virginia child abuse to Dr. West officials.12 conclude that a rational could not find report.13 Aldrich did not make such As a the essential proved elements crime large beyond result of quantity of insulin in a reasonable doubt. body, he massive brain
Seth’s sustained dam 2. Conviction for first age and severe retardation.14 Tegan. murder of trial, At the Dr. stood previ- Becker her presented The State evidence that ous conclusion and testified that Seth was Tegan healthy child was and that on injected dangerous with a level of insulin. 11, 1982, Hooper, March Dr. she died. Dr. Becker’s was conclusion concurred with pathologist performed autopsy who on Zitelli, Dr. Basil Dr. McGregor, Sharon Tegan, testified that massive amounts of PCH, also who treated Seth Dr. Irvin Tegan’s beads were found in stomach. This Sopher Gregory and Dr. H. Wallace.15 Hooper’s The was confirmed Dr. assistant on presented expert testimony autopsy, Katherine Donavan. Dr. Hoo- 11. The record the defendant A. I knew indicates that was a did. Because I her husband was Valley Hospital coming nurse at Greenbrier calls that she rotation when the were in. I hospital. taking had access to insulin at the also used to who was wonder care of nighttime. the children at 12. Evidence was introduced show that Seth attempt, "In pre- was not diabetic and insulin order to constitute the crime of was not 14. (1) requirements specific scribed two for him. must be met: underlying intent to commit substantive crime; act presented The State an overt toward the commis- also evidence to show crime, complet- sion of that falls short that Dr. Becker a letter to Dr. which forwarded Aldrich ing Syl. indicating exogenous underlying that Seth a victim of crime.” Pt. was Mayo, advising report insulin administration and him to 191 W.Va. See also, Syl. Starkey, the matter as child abuse. was also shown Pt. 161 W.Va. (1978), subpoenaed that the letter was not in the files of S.E.2d 219 overruled on other Guthrie, grounds, Dr. Aldrich. S.E.2d 163 attempted The State show that Dr. Aldrich's having conduct was due to an he was affair with produced The State numerous witnesses who defendant. Dr. Aldrich denied such and the regarding testified issue the defendant’s behavior after testified on this as follows: your relationship testimony Q. What Seth took ill. There witness that time con- is, Aldrich, you brought cerning buying with Dr. after the defendant casket for Seth stating Seth home? that if he did not die soon he would my daughter’s pediatri- outgrow testimony A. He was son and the casket. There was cian. injected the defendant insulin, Seth was believed Q. strictly professional relationship? Was it have but that it must been done while en time, yes. particular A. At that route to PCH or at PCH. Beckett, nurse, regarding A Carol M. testified relationship between Dr. Aldrich and the *9 testimony sug- The defendant introduced that 16. defendant, as follows: gested growth Seth had human hormone defi- Q. you relationship Did ever the be- observe ciency, Leigh’s a form Disease. The of tween Dr. Aldrich and the defendant? through George rebutted this evidence dad, Dr. Had- they A. I know talked to each other on the physician caring for Seth while he is lot, phone a because I took calls and would institutionalized. Dr. Haddad attributed Seth’s transferred, primarily nighttime. have them at growth stunted to factors associated with never being eating vegeta- in a solid food and state of you Q. way? Did tion. think that unusual in
578
of review of a mo
composed
were
Our standard
per
that
beads
testified
generally
an
is
de
Tegan’s
that
death was a
tion to dismiss
indictment
and
of caffeine
However,
to the de novo
by
poisoning. Dr.
novo.
in addition
caffeine
homicide caused
review,
evidentiary
an
of death was
of
where
Hooper’s
to cause
standard
conclusion
hearing
upon
Dr.
Dr.
a motion to dis
Sopher,
Elizabeth
is conducted
concurred with
Scharman,
“clearly
Dr.
Dr.
miss
Court’s
erroneous” stan
Zitelli and
Wallace.
J.
empty
ordinarily
an
dard
is
invoked concern
There
evidence that
blister
of review
was
findings of
pills
ing
fact. See
pack
had contained diet
was found
a circuit court’s
that
Law,
up
garbage
generally,
Fayetteville
the defendant’s
Town
v.
201
tied
in a
can at
205,
(1997);
residence,
pills
that
contained
B. cause, quantum probable of evi tablish may which fall far short the amount dence for Pretrial Failure Dismiss support necessary to a criminal conviction.” Delay Indictment Syllabus ex Point 1 of State rel. Leonard The record indicates that Seth (1980),we Hey, v. held: injured September of 1981 delay years A eleven between Tegan in March died of 1982. defen of a or commission crime the arrest dant’s for these incidents did not indictment defendant, of a his indictment location years approximately come until later on having through known identification been 12, trial, November 1996. At the defendant period, presumptively prejudicial out the filed motion to dismiss the indictment on right the defendant and violates his grounds delay the pre-indictment law, process of Amend. due U.S. Const. process rights violated her due under XIV, § and W.Va. art. 10. The Const. trial State and federal constitutions.18 The presumption govern is rebuttable holding the motion after denied ment. evidentiary hearing on the matter. The de argues fendant it error further ruled in Point 2 of Leon- now that was for We deny gross delays trial court to ard of less “[t]he motion dismiss. effects (1989), unprece- citing, nurses that it was United Several testified Marion, patient parent dented a doctor or a of a v. 404 U.S. 92 S.Ct. States up patient's also, clean stomach contents. There Syl. L.Ed.2d 468 See Pt. testimony that Dr. Aldrich and the de- in also Drachman, 178 S.E.2d 603 they fendant were alone disposing Tegan's the room while were (1987) (holding part "[i]n those situations stomach contents. indictment, or where there has been no arrest right speedy to a trial is the Sixth Amendment right speedy "[T]he constitutional to a trial implicated”). not charged does until the not arise Ashworth, Hundley arrested.”
579 upon rights process prejudice pre- a defendant’s due must it him actual in that caused senting his weighing determined a trial court defense. be delay against impact the for the of reasons Accord, Beard, 740, 194 W.Va. 461 delay upon ability the the defendant’s to (1995) (thirteen-year 486 delay S.E.2d be- defend himself.” the tween murders and defendant’s indict- process ment did not violate due because the presumption To rebut the charged promptly State defendant once it Leonard, prejudice in in established we held necessary grounds had the to secure an in- Ashworth, 383, Hundley v. W.Va. 181 dictment); Carrico, and State v. (1989) 382 S.E.2d 576-77 that the State (holding that two- only delay need demonstrate was not the year pre-indictment delay did not violate de- gain advantage to orchestrated tactical process rights govern- fendant’s due since over If the defendant. the State is able to promptly sought upon ment indictment se- showing, delay obtaining make in such a the evidence).20 curing sufficient In the instant the does indictment not violate federal proceeding, the defendant that contends this However, process. state due this Court subject analysis. case to Leonard is How- pointed Hundley out in the burden- ever, Hundley’s analysis find we is the shifting mechanism announced Leonard is appropriate test the because defendant has applicable prosecutor not where “the not was identity not shown that the knew the knowledge identity shown to have of the person Tegan the murdered who and at- location of the defendant.”19 Id. at 382 tempted poison prior to Seth to the new Specifically, S.E.2d at 576. stated investigation Accordingly, in 1995.21 the de- Syllabus 2 Hundley: Point of “prove delay fendant must that the State’s bringing the indictment was a deliberate de- The Process Due Clause the Fifth gain advantage vice an [her] to over and that Amendment United States Constitu- prejudice presenting it caused [her] actual III, tion and Article 10 of Section the West Hundley, defense.” 181 [her] W.Va. Virginia require Constitution the dismissal (footnote omitted).22 at 577 382 S.E.2d indictment, brought of an if it even limitations, within the statute of if de- the A review of the record indicates that the prove delay in present fendant can that the State’s defendant failed to evidence at bringing was a pretrial hearing the indictment deliberate the to establish the advantage gain deliberately delayed bringing device to an over him and State the government’s duty proceed 19.In Leonard defendant murdered one vic- is the with “It to severely diligence investigation tim and in its wounded a second victim dur- reasonable arrest, (and preparation ing robbery. for indictment and trial. If it The defendant a co-defen- discovering dant) do so only fails to after sufficient facts to indicted was for murder trial, justify indictment and it violates this due robbery, injuring but not for the other victim. Carrico, right.” process Syl. Pt. plea guilty entered a first defendant to S.E.2d agreement plea Under murder. robbery charge dropped. was The defendant pretrial hearing 21. At the motion dis- penitentiary was sentenced to life in with- pre-indictment delay ap- for miss trial mercy out recommendation 1968. About Hundley’s analysis finding plied after the defen- sentenced, years being seven after the Governor failed knew the dant to show the State commuted the defendant’s sentence to life identity Tegan person of the who murdered mercy, thereby making eligible the defendant Seth, prior attempted poison to the new inves- parole 1979. In tigation in 1995. maliciously wounding indicted for the second victim. After trial court denied the defen- Richey, 1 of State Point indictment, quash dant’s motion he filed (1982), we held that prohibition for a writ of Court. general delay is a "[t]he rule is where there opinion noted in the that the state Leonard between the commission of the crime wounding charge had all its evidence on the or the arrest of the return indictment defendant, prosecuted the time initially upon it the defendant on the burden rests charge. We delay murder remanded the case to the how has demonstrate such give prima opportunity prejudiced delay trial if not court to state his case such justify delay by proving its excessive.” reasonableness. facie *11 properly in the lower court can- gain to a not raised her in an effort charges against ap- the first time on presented evi- not be broached for advantage. The tactical State peal. principle this with investigating have invoked initial We to that the dence show Childers, religious This of the officer, prosecuting a fervor. variant and attor- near Jim (now deceased), or waive’ rule cannot be dismissed ney, Hayes concluded ‘raise Ralph mere.technicality. rule is charge lightly to as a The was that the evidence insufficient upon important at- considerations of anyone Tegan’s murder and Seth’s founded for - fairness, pri- judicial economy, practical appears that a tempted poisoning. It charges mary bringing to was obstacle wisdom. to talk with fact that Mr. Davis had refused Miller, only pass upon will In view of officials about incident. law enforcement prejudice argued before the those claims it was not until The showed that evidence trial memorandum court. the defendant’s Spradlin began his investi- Trooper Michael pre- to her to dismiss for law motion gation in that Mr. Davis decided to talk delay the de- indictment contended that she According Trooper to with law enforcement. lay respect with prejudiced her defense him Spradlin, Davis that Mr. informed argued testing insulin done on Seth. was when he be- defendant was alone with Seth was the defendant that the lab technician Tegan ill with that she was alone came examination, not for lab known available facts, along These Tegan
when became ill.23 available, log type of were not and the books at- subsequent with statements inconsistent machinery protocol followed were not during adoption Davises their tributed to the proffered that known. The defendant also child, with provided a the miss- State possibility a that there “there is reasonable ing pieces bring charges against the defen- may period of have existed for a reasonable dant. time, specimen sample of the that a blood prejudice by pre- caused As to issue of independent be tested laboratories could presents delay, the indictment on defendant.”24 The defen- behalf However, brief. number of theories her opined might possible that have dant it been correctly points many out testing flaws in the done on the reveal presented were to the arguments these not respect to insulin level that was found. With pointed This out in State trial court. Court prejudice defending against murder Miller, 588, 597, 476 charge, the defendant contended below that: Tegan’s samples taken intestinal tract independent testing to Ordinarily, a who not were not available for has beads in her proffered particülar claim or defense determine whether the found may appeal. it on in fact caffeine.25 On the not unveil stomach contained trial Indeed, prejudice, the trial court ruled as principle if is settled issue of that, jurisdiction, preju- “There it is absent most follows: has been mention of circumstances, extraordinary legal There not been theories dice to defendant. has changed development also that the State be- have even without the 23.There was evidence not theory cognizant C-peptide came of medical which could of the test. theory, for establish the motive the crimes. The by Proxy Syndrome, appears Munchausen’s record in this case shows that on the date widely was have been discovered but not pretrial hearing of the on motion to dismiss known until the late 1980’s. The substance of delay, pre-indictment for the defendant withdrew by Proxy Syndrome par- Munchausen’s seeking analy- independent an motion she filed bring a child ent will harm in order attention points Seth’s blood. The State's brief out sis of sympathy parent. Insofar as this independent testing was done on Seth Dr. motive, theory and motive not an relates Kaplan, Paige not called as a witness. who was offense, persuaded element of an we are not delay supports bringing this evidence charges. Additionally, the date was evidence that a The record in this case shows that on there newly C-peptide developed pretrial hearing test called test dismiss motion to strengthen Dr. used to Becker’s conclusion that delay, pre-indictment the defendant withdrew injected Seth This evidence is insulin. analy- seeking independent filed motion she justification, persuasive also because Dr. not samples Tegan. tissue sis of Becker testified that her initial conclusion would *12 any showing prejudice.” In of only of view the will instruction be reviewed for an case, record in we this cannot conclude that abuse of discretion. clearly
the trial court in its erroneous problem presented by the de factual conclusion. argument fendant’s is that she failed to ob
ject
given by
to
instruction
the
the trial court
required
proven.
on
C.
the elements
to be
“The
general
party may
rule is that a
assign
not
as
Jury
Failure to Instruct
on Malice
giving
error the
of an instruction unless he
argues
objects, stating
The defendant
next that
distinctly the matters
to
the
objects
trial court
grounds
committed reversible error
which he
and the
of his
failing
objection.” Syl.
to
the
Gangwer,
include
element of “malice”
Pt.
(1982).
its
charge.26
instruction on the murder
We W.Va.
Prior
of first
at 841
Court
degree
explained
felony
murder rule “re
murder
which the defendant
under
convicted,
prove
quires
...
it
first
the State
deem useful
briefly
remaining portions
attempted
to commit
review the
committed
statute,
According
felony and that he committed murder
statute.
to the
murder
named
Sims,
61-2-1,
ly impaired,
miscarriage
justice
§
or a
would
28. W.Va.Code
as amended since
Mayo,
Syl.
felony
otherwise result.”
Pt.
State v.
191
includes additional felonies within
also,
(1994).
Syl.
See
murder rule. See footnote 26.
Pt.
England,
State v.
S.E.2d 548
Regarding
meaning
incidental
thereto.”
Point
the term “mal-
Sencindiver,
ice,”
part, State ex rel. Peacher v.
Douglass,
State v.
28 W.Va.
(1886),
opined:
160 W.Va.
233 S.E.2d
this Court
[T]he source of which said malice is not
had few
This Court has
occasions to
only
particular
confined to a
ill will to the
category
degree
first
consider
murder
deceased, but
is intended
denote ... an
under which the
convicted.
flowing
action
corrupt
from a wicked and
statute,
According
by poi
“[m]urder
motive,
animo,
thing
done malo
where
son,
wait,
lying
imprisonment, starving
...
the fact has been attended with
cir-
such
degree.”
is murder of the
In
first
the an
carry
plain
cumstances as
in them the
Abbott,
case of
cient
W.Va. 741
regardless
indications of a heart
of social
(1875), this
Court considered
elements of
duty,
fatally
bent mischief.
lying in
first
murder
wait. The
517, 524,
Starkey,
concluded in
Court
Abbott
term
*14
219,
(1978),
S.E.2d
223
overruled on other
wait,
by
poison, lying
imprison
“murder
Guthrie,
grounds,
657,
State v.
194
461
W.Va.
ment,
require
starving”
showing
a
does not
(1995),
S.E.2d 163
“[t]he
we stated that
term
premeditation
specific
or
intent
a
to kill.
used,
frequently
malice has been
but not
Rather,
by
to elevate a murder
one of the
defined,
extensively
Court[,]”
by this
and
degree murder,
four enumerated acts to first
essentially
concluded that
“malice
a form
prove only
plus
the State must
malice
one of
Id.,
of criminal
161 W.Va. at
intent[.]”
four
the
acts.
example,
244 S.E.2d at
regard
223. For
“in
proved
If it
killing
be
that the
was of such
murder,
degree
first
the term ‘malice’ is
that,
a
ordinary
character
under
circum-
often
‘specific
used as a
substitute
intent
stances,
it would
been
have
murder at
to kill’
killing.’”
or an ‘intentional
State v.
law,
common
fact
lying
and the
in wait
Hatfield,
286
W.Va. at
S.E.2d at 407
exist, that fact will
it a case of
make
mur-
(citation omitted).
In order to determine
der in
degree....
lying
the first
a
“Where
whether
properly
the trial court
instructed
established,
proof
in wait is
all
as to ‘inten-
jury'
intent,
the
on malice or criminal
we first
tion’ or
irrelevant[.]”
‘wilfúlness’is
must decide what form of criminal intent is
(citation
Abbott,
omitted).
Wayne LaFave person, poison to that p. § Law Handbook On Criminal omitted). (1972) (footnote Concerning the neces- administering poison, is not “[i]t act of jury that one of The Court instructs per- by poison to kill another sarily murder charged [the crime] the elements poison, where one administered with son against element of purpose innocently and for a lawful poison to convict specific [I]n .... order intent (footnote yet produces a death.” Id. degree murder of first the defendant of omitted). con- foregoing, we Based on daughter ... find that her must required to constitute that the malice clude poison is also her. she intended kill, by poison an intent to includes murder necessary intended to that the defendant bodily conduct do harm or intent to serious bodily injury to her kill or do serious Further, depraved heart.29
which evinces her daughter she did or that so because poison administration of we conclude that the depraved conduct evinced heart. intentionally, willfully and un- must be done Clearly, our complies instruction lawfully. degree by poison. first murder law on Milam, of State Point 6 specific Accordingly, (1976), hold we held 226 S.E.2d which, kill, when premeditation and deliberation that instructions are sufficient intent whole, adequately read as advise of first are not elements of crime *15 necessary for consider- of all elements their by perpetrated poison pur murder means of requisite This the ation. instruction includes § 61-2-1 Rath suant W.Va.Code unlawful, willful, of and intentional elements er, for first in order to sustain conviction Further, in- poison. the administration of by poison pursuant degree to W.Va. murder requisite criminal struction sets forth the 61-2-1, prove § that the must Code by mandating the intent that administration the act of administra the accused committed kill poison be intent to committed the unlawfully, willfully inten poison tion injury.30 Accordingly, we find or do serious tionally or intent purpose for of with the the jury error instruction.31 no this bodily injury, the kill or do or that serious depraved heart. accused’s conduct evinced D. apply now this rule to the facts before We Failure to Instruct on Lesser jury, in The court instructed the
us.
trial
Included Offenses
part, as follows:
assignment
The
of error
fourth
jury that ac-
instructs the
Court
circuit
raised
the defendant
is that
the
law,
cording
Virginia
murder of
jury
to West
it failed to
the
court erred when
instruct
involuntary
is
when one
degree
the first
committed
the lesser included offense of
defendant,
According
person by unlawfully, manslaughter.
person
the
kills another
dant,
Davis; Four,
resulting
Mary
unlawfully;
by poison
defen-
Five
Death
from the
Beth
Six,
willfully
intentionally;
attempted
of a
administered
dant's
or
commission
commission
Seven,
victim, Tegan
felony
poison;
to the
Marie
felony appears
mur-
to be covered
the
of;
Davis; Eight,
death
which resulted in the
§
der rule in W.Va.Code 61-2-1.
Nine,
Davis; Ten,
Tegan
and at the time
Marie
administering
poison,
the
the defendant had
jury
trial
also
the
30. The
instructed
bodily injury
intent
do
the
to kill or
serious
follows:
depraved
did so because her conduct evinced a
order
of murder
In
to convict
defendant
heart.
Virginia
degree, the
West
in the first
State of
de-
presumption
appellant
must
that the
overcome
claims that the trial court
31.The
also
beyond
prove
constructively
is
fendant
innocent
must
committed reversible error
amending
light
reasonable
to the satisfaction of
In
of our hold-
doubt
the indictment.
above,
One,
following
ing
Also,
about
that on or
find no merit to this contention.
elements:
we
10th, 1982; Two,
in Green-
we
indictment conforms
March
believe the
7th to
Three,
§
Virginia;
requirements
County,
the defen-
of W.Va.Code 61-2-1.
brier
West
facts,
upon any
necessary
analyze
step
if
view of
is not
the first
properly
guilty
inquiry
this
because it is settled
involun-
could be found
of a lesser
offense,
tary manslaughter
ais
lesser included of-
the trial court must submit such
Guthrie,
case,
murder.
In
evi-
fense of
See
lower offense.
the instant
unlawfully administered
objections
no
to
only
purpose
made
daughter
for the
defense counsel
to her
caffeine
by
during the
prosecutor
State’s
foreclosed remarks
causing
The defendant
illness.
closing argument.
opening
and
by
that the
statement
presenting evidence
option
long
to
containing
“[f]ailure
Court has
held that
syrup
This
to Coke
caffeine
due
objection
timely
proper
to remarks
nausea. make
and
to
administered
control
caffeine
jury,
presence
in the
Therefore,
pre-
of counsel made
that no evidence was
we find
case,
a waiv
involuntary
during the
constitutes
trial of
support a verdict of
sented
right
question thereaf
to raise the
Accordingly,
circuit court
er of
manslaughter.
appellate
or
charge.
trial court
in the
instructing
ter either
on that
not err
not
did
Welker,
6,
Yuncke v.
court.”
Point
(1945).
299,
See
128 W.Va.
36 S.E.2d
E.
also,
Garrett,
1,
Syl. Pt.
v.
195 W.Va.
State
Prosecutorial Misconduct
5,
Syl. Pt.
tion.”Syl. Pt. lodging vate donation of luxurious also 286 S.E.2d We have Sulphur Springs Greenbrier Hotel in White prosecution “[t]he held that must disclose prosecution prosecutor for witnesses. The given any wit- and all inducements its private also allowed a businessperson pay exchange testimony for nesses their airplane prosecution for a chartered for a James, Syl. trial.” Pt. defendant’s expert. recognize I that the financial burden on a only paid The contends that it one prosecutor’s office from case that needs expert witness an actual fee and that Dr. experts high, impulse to “save All expert Seharman. other witnesses used public funds” is commendable. merely by the State were reimbursed for fatally improper But there are at least two (includ- expenses lodging expenses travel aspects of practice. such a meals). ing During opening argu- the State’s First, only ment it informed one of its it looks like a shakedown. Who can experts being paid say fee testifying. request prosecutor for “no” to a for pay- The lingering defendant seeks to contend that assistance without at least a fear expenses lodging may consequences ment of travel consti- there be bad testimony. reprisal? tutes are fees for We cited to no support suggestion, case law will this nor Second, prosecutor officially becomes in- adopt position. such private to a party may debted come into
The also contends that one ap- conflict with the law. This creates an being regarding State’s witnesses lied' pearance impropriety that undermines paid testifying. for public judicial fee system. confidence in the paid asked Dr. Zitelli if he was a fee to slope. sort of slippery This conduct is a testify and Dr. Zitelli said no. The defen- not re-occur in should of our state’s dant perjury contends that this constituted prosecutions. criminal out-of-pocket expenses because Dr. Zitelli’s reject paid were the State. We
perjured testimony. Payment out-of-pock- expenses payment simply
et fee not of a testifying. 519 S.E.2d Luann E. KLETTNER and Richard
III. Klettner, Plaintiffs, CONCLUSION the foregoing, Based on we find no errors FARM STATE MUTUAL AUTOMOBILE Accordingly, judg- below. trial *18 COMPANY, INSURANCE ment of the Circuit Court of Greenbrier Defendant. County is affirmed. No. Affirmed. Supreme Appeals Court STARCHER, Justice, concurring. Chief Virginia. West (Filed 1999) Sept. 23, 1999. Submitted March majority opinion, I concur in July 8, Decided
exception part E.2. join part that I The reason do not E.2 majority opinion disapprove I is that prosecutor’s providing conduct in travel