*1 illegal, milk an es- nothing being nice, say is no kin. There or one’s of oneself tate for the benefit the udder why who discover heirs reason the courts should not ask with hands is covered estate guidance all the luscious white before for both relief strangers. drunk liquid has been above, judgment of the stated For the reasons County Raleigh is reversed. Court Circuit
Reversed. Virginia of West Joseph Dobbs (No. 13985) 6, 1979. Decided November *2 Cleckley plaintiff Franklin in D. for error.
Chauncey Browning, Attorney General, H. Richard L. Earles, Attorney General, in Assistant for defendant er- ror.
Harshbarger, Justice: early Sunday, 4, 1974,
In the afternoon November Company May Alfred Stewart was in his at the office in Fairmont, Virginia. telephoned wife him West His p.m. being about 1:00 and he exclaimed that he was robbed, whereupon police, she called the and who friends shop They owned a sandwich near the office. found Stewart dead with bullet wound his chest. January Clarksburg pa-
On 1975 at a.m. 1:00 two Joseph driving trolmen noticed Dobbs an automobile unique markings attention, with attracted their park and him watched and enter a hotel. An hour they police headquarters later called were because a young reported by man was molested Dobbs. marijuana He said him Dobbs offered and had a revolver accompanied young in his car. When officers man hide, attempted policemen to the hotel Dobbs but stopped They bag protruding and searched him. found a marijuana. pocket gave and from his smelled Dobbs bag them the and was arrested con- trolled substance. they police taking headquarters,
As the Dobbs passed parked patrolman car and one a similar saw bag floor. on the car telephoned his niece police Dobbs station
At car, advising to come for Fairmont, her owned the who get In the it. it, by a.m. two men arrived and 3:00 and agent been summoned meantime, has a narcotics county jail men were sent two while the patrolman the car. keys, agent searched auto’s they empty; found a but bag had seen was later identi- seat. The was pistol the front under kill expert used to fied a ballistics Alfred Stewart. for Stewart’s murder
Joseph Dobbs was indicted degree recommen- guilty first murder with found County jury. mercy by He was sen- a Marion dation of granted for a prison and his motion life in we tenced to supersedeas. of error writ essentially this: the deceased’s sis- The evidence familiarity May that, her testified based ter *3 through employment a there as book- Company records daily missing balance. Po- keeper, from $464.00 body, Stewart’s photographs of the scene showed lice only However, papers the office. strewn fingerprints were Stewart’s. identifiable obtained two presented three witnesses who also The State building the office when waiting a bus in front of They men enter had seen two black was killed. Stewart building, articles and described and leave the particularity. taller clothing One said the men’s style, hair with an African man was clean-shaven of the three had a thin mustache. None the shorter identify positively Dobbs. could they saw de- testified that defense witnesses Several early 1975, during 1974 and various occasions fendant on The defense during that time he was bearded. that defendant taken photograph a bearded introduced by pho- August, niece who testified that his during general appearance that tograph represented his who testi- year. called witness On rebuttal 5, a.m. on having Dobbs at 5:00 November fied to seen 1974, beard, photograph without and a which the wit- ness had taken at portrayed that time and which de- beardless, fendant was introduced. niece, car, owner of the testified that she loaned it January 27, 1975;
to Dobbs around that she loaned it to various time; relatives and friends from time to that she consistently car; and, did not lock her she had not cleaned it nor looked July, under the seats since 1974. Her placed husband testified that he had never nor seen anyone place else in the car. young
Three men testified were involved in an July incident with 1974, wherein one of the men who lived and worked pistol. with him took his The other two saw it before it was returned to Dobbs. The witness who had taken it testified that it was the weapon, murder but cross-examination, recanted on stating that it “looked like” the murder but that piece defendant’s had less rust on it. One of the other guns witnesses testified same, were the third testified it “looked like” the same one but qualified testimony by advising it was dark when he saw it. prosecution
Another witness testified that he had seen part” pistol the “butt of a that defendant had told him “my January .38” in and that it “looked weapon. like” the murder
The evidence about and about defendant’s race and beard is that which the State relied for conviction. always
The burden
on the state
to establish
evidence,
guilt beyond
sufficient
a reasonable
doubt.
*4
Scurlock,
629,
(1925).
State v.
99 W. Va.
In West the standard review of suffi- ciency of evidence is:
634 case, guilt
In a criminal a verdict of will contrary ground it is to the set aside on the evidence, where the state’s evidence is sufficient guilt impartial of the of the to convince minds beyond a reasonable doubt. The evi- defendant dence light is to be viewed in the most favorable prosecution. To warrant interference with insufficiency guilt ground a verdict of on the evidence, the court must be convinced that the of evidence was consequent manifestly inadequate and that injustice Syllabus has been done. _ 1, Starkey, _, 244 Point v. W.Va. State (1978). 219 S.E.2d applies This standard to trial courts’ consideration of motions for directed verdicts and to this Court. Ad See Majestic Co., Inc.,_W. Va._, dair v. Petroleum 232 (1977). 821, 824 S.E.2d
Moreover,
involving sufficiency
in cases
of circumstan
evidence,
an
tial
there is
additional standard set
State
_W.
(1976):
Va._,
Noe,
v.
[Circumstantial
guilty
guilt
proved
verdict unless the fact of
every
hypothesis
the exclusion of
reasonable
innocence; and circumstances which creates a
suspicion
guilt
prove
mere
but do not
the actu-
charged,
al
commission
crime
are not suffi-
Allen,
cient to sustain a conviction.
v.
See State
818,
(1954);
Clay,
139 W.Va.
The record there were witnesses. paucity relevant, probative But there is a evidence.
635 testifying Ten witnesses to a that has fact little or no probative value, by repetitions do their make it more important. guilt pends proof Here defendant’s of a identification, material issue —his or particularly, more presence at the scene of the crime. An infinite num- testifying having ber witnesses to seen two men black shooting near the scene at the time of the could not improve the value of this evidence as identification particular proof this defendant. And ownership/ of his possession of carry the murder instrument does not heavy State’s burden. prove present State must that a at place committed, personal time crime was if
presence
proof
is essential
to
of the act. See
v.
State
Pendry,_W.
Va.-,
(1976);
A review has been circumstantial in which such case Prado, example, in Commonwealth held sufficient. For _ (1978), supreme court _, Pa. 393 A.2d establish these facts insufficient found case: *6 alley emerge the from an
Appellee did shooting shooting, no witnesses the but of the murder presented and no evidence prosecution did introduce The presented. “probably” testimony caused that the wound only velocity weapon. The link by high between a such appellee is that he once owned this and the testimony weapon. prosecution introduced a The from an altercation be- to establish a motive however, [victim]; appellee such and ... tween prior year a to the murder. occurred altercation by ap- prosecution remarks made introduced The “you goods pellee sporting a salesman and, me.” ... a detec- bullets to didn’t sell my rifle, “you going to find tive that ain’t never appellee Turkey,” ... and asks us infer guilt.” was “conscious of Appeals held more of Texas The Court Criminal have, in insufficient Flores evidence we substantial State, Crim., Three “Latin 551 S.W.2d Tex. in with the victim the back seat Americans” were seen speeding being ticket. he was issued of his car while defendant, American, was shown a Latin twenty- the car deceased’s been later. weeks later defendant still had four hours Six inspection plates car, it license at which time bore Clothing to other cars. and other items stickers issued in a in an- belonging to the victim were found suitcase had been left other car trunk where companion to be retrieved later. Human blood typed not be were on the seat of vic- stains that could expert An tim’s car and on defendant’s shirt. testified was killed with a of the same deceased caliber one which deceased owned and found). (although him was never (1) The court held that because the three Latin Ameri- cans observed the car with the victim fur- were not identified; (2) ther the record was silent as to time of death, (although Flores and another were seen with the car, it, day victim’s without but the victim in (3) speeding issued); only ticket was an inference could be drawn that the victim was killed with his own (4) found; because it was never it was not shown when human bloodstains were made on victim’s car appellant’s (5) shirt; seat and the stains could typed, showing ap- was therefore .. no pellant or was at near the scene of the crime and no showing as to actual time of the deceased’s death.” 551 at S.W. 2d 369. The court concluded that the evidence strong only suspicion amounted to a and did not “... certainty every hy- exclude to a moral other reasonable pothesis except appellant’s guilt.” Id. at 369.
We conclude that the trial court should have directed acquittal verdict of due to insufficient *7 close of the in State’s case chief because the circumstan- presented prove guilt tial evidence did to the exclu- every hypothesis innocence, sion of reasonable of creat- ing only suspicion guilt. of judgment The is reversed unconditionally custody. discharged and defendant from Massey, 19, 15, v. Greene 437 U.S. 57 L.Ed.2d 98 S.Ct. 2151
Reversed. Justice, Neely, dissenting:
I respectfully grounds dissent on the that the evidence sufficiently strong present in case proved guilt. of The case that the defendant possession weapon of the murder both before of the commission the murder. authority holding preeminent The the evidence People Tolbert, here sufficient is the California case of 445, (1969) Rptr. 661, denied, 76 Cal. 452 P.2d cert. 406 (1972) 971 where the of U.S. defendant was convicted primarily upon possession murder based his of the mur- next the lived weapon. in Tolbert defendant der While neighborhood, seen in the the victim and was door to eye placed at the no the defendant nonetheless witness presence his front crime and his on own scene of the of murder was not inconsistent porch the time the near only probative Tolbert the evidence In with innocence. weapon days the possession the murder murder.1 in is no dif- proper of review California
The own; applied it in the court from our California ferent by saying: Tolbert sufficiency the of the evi-
The rule on review of weight is for the of the evidence dence that instance, jury to in the determine first the in the trial court after the verdict second the case, If, present the circum- instance. reasonably justify verdict, opinion an stances might circumstances also of this court those reasonably with the innocence be reconciled the defendant will not warrant interference jury. Rptr. determination 76 Cal. 666. 452 P.2d at stronger us in the case before is even Tolbert; proof that here we have definite weapon in his had the both before wit- and after the murder. The record reveals four prosecution had seen the nesses for stated that gun, identi- defendant with a and three the witnesses gun they fied the murder as the recalled. While majority leading contends witness Buby, testimony prosecution, Lloyd “recanted” murder, the defendant had the before the *8 1 Similarly, State, App. in 18 Md. A.2d 734 Robinson only (1973), probative the evidence was of the murder weapon murder, the hairs that before and after found on the victim defendant’s, unexplained the were the same color as blood stains jacket defendant, ownership and and of a on the shoes the large quantities of vehicle which emitted carbon similar quantity composition and the carbon found at the murder scene. testimony closer examination the demonstrates that only qualified witness his identification to the extent gun he said that admitted into evidence had more rust on it seeing than the he remembered possession. testimony the defendant’s His was still had observed that the defendant had an uncom- looking gun mon before the murder which looked like weapon presented witness, the murder at trial. The who while, lived and worked with the for testi- fied that one pistol on occasion he question stole might because he against feared the defendant use it testimony him. His ample op- demonstrates he had portunity study and to become familiar with the possession.2 while it was in his 2 Therecord states: Q. you go your apartment? Did into the ... house Yeah, got A. I went in and a coat. Q. you What then else did at that time take from the house? my jacket. A. The over vent Q. Where, anyplace, you go you if then did had taken the your jacket? gun and through way Goodnight’s IA. went to Dean woods house on Cleveland Avenue. Q. your purpose going Goodnight’s What was the to Dean place? get gun. A. To some shells Q. type you looking What at shells time for? A. .38s. Q. Goodnight Did Dean have .38 ammunition? A. No. Q. you opportunity at Did that time an to observe the closely then? more Yeah, open I held it A. around and clicked at it. looked Q. you you .38 Would Was it a cal? describe it the best can now us, please you then it? saw liquid plated A. It was or it had chrome a black handle and dropped shotgun. five and it shot down like words, cylinder Q. popped open you In other when it? loaded Cylinder you By looking you saw five holes and load could it? A. Yes. Q. long you keep gun? How did A. Around two hours. you Q. happened? Then what Did see Joe Dobbs later? A. Yes. *9 commonplace, not a weapon itself was
The murder Lloyd Buby he testified that everyday pistol. 38 caliber exactly he had never seen one but had seen other .38s particular .38 had several weapon. This like the murder liquid plating, a black chrome or features: distinctive loading to that used handle, mechanism similar you him after that? Where did first see Q. Goodnight’s came I Dean house and he there. A. was at purpose being at time? And what was his Q. looking me. A. He was you you What, anything, him? he for? Did talk with if did ask Q. A. Yes. What did Joe want? Q. me. A. wanted Just you he want for at that time? What did Q. just guess I me. A. talk to you gun, to the did conversation How about reference Q. that? got A. in the car. After we your respect What, anything, to the if conversation Q. gun? said, you my gun? A. did He steal Meaning the .38? Q. A. Yes. you reply question? did do in to his What Q. gun. A. I said what Then what? Q. said, gun A. the vent. He over you you gun? respond do what did and what did with the Q. Then my pocket pulled A. I it out of coat and handed it to him. give gun? you then Did him Q. A. Yeah. it? Did he take Q. A. Yeah. any you you gave then continue to see Joe at time after DidQ. gun? him the night. Well, A. we drove around that any you gun time after take the back? Q. Did A. No. you what, anything, happened you know if Do Q. gave it to Joe? A. No. you Did ever make observation as to how Joe maintained Q. thing you kept or what it and that sort of while staying apartment thing? there at the sort of wrapped rag A. in a over vent as far I It was know. shotgun, split apart. for a in that All of these factors combined to weapon, just make a memorable typical pistol. .88 caliber the ownership pis- Once proven, tol the murder had been before State had established a case. *10 you Let me show what Q. has been marked as State’s Exhibit you talking gun to,
Number 18 and in made mention how do you compare you this item with the that one had at seen that time? witness) (Handing gun to A. This is it. say You is it? Q. that A. Yes. questions. MR. No MASCARA: further CROSS EXAMINATION BY MR. CLECKLEY Buby, you living Mr. Q. where are now? Forestry Camp A. at Davis. crime, right? You Q. are convicted of a is that A. Yes. What crime Q. is that? Breaking entering. A. you charged Q. How about ... have ever been or convicted with larceny of a vehicle? No, charges dropped A. were as far as I know. charges dropped The were Q. vehicle. Whose vehicle was that? cases, Chevy. A. There was in two one was ’57 There was belonged another one that to Joe Dobbs. it, day you As I Q. understand when the last had seen the gun? August. ItA. was sometime near the middle of head) (By A. Yes. nod you long Forestry Camp? How have been in Q. A. Six months and a half. December, right you Q. That would be about is that when went? No, A. I went November. August today And would this be since Q. the middle of would be you gun
the first time have seen that since then? Between the August today, you middle of first is this the time seen the gun? Yeah. A. looking saying Please, You indicated after Q. that this is it. particularity you time, you with as much can in due how do gun. draw the that conclusion this is the just gun It about I A. looks like the seen. It like it? Q. looks about Except A. for the rust on it. any time a convic- the outset must concede at
We
there is a
procured
circumstantial
evidence
is
on
tion
evidence
of error. Some circumstantial
possibility
evidence; nonethe-
stronger
circumstantial
than other
procured
suffi-
less,
is seldom
on
a conviction
strong
beyond
possibility
error.
ciently
all
Con-
any
you
gun
on it?
seen didn’t have
rust
Q.
Right.
A.
you
you
there,
particular
this
claim
saw
Other
Q.
apartment?
guns in
other
A. No.
you
gun?
take the
caused
What
Q.
I
afraid of Dobbs.
A. was
guess?
protection,
it for
I
took
You
Q.
A. Yes.
you kept
two
And
it for
hours?
Q.
Yeah.
A.
back,
you
along
get
again?
he came
where were
When
Q.
Goodnight’s house.
A. At Dean
you?
he found
And
where
Q.
A. Yes.
*11
it,
August
too,
this was in
middle of
As I understand
Q.
it?
wasn’t
gun?
I had the
A. Whenever
Yes.
Q.
July maybe
No,
A.
this was some time near
middle of
the end
July.
of
July?
July
The middle of
or about
the end of
Q.
head)
(by nod of
A. Yes.
long
you
gun
had
over
How
been
the vent
Q.
talking about?
say
I couldn’t
for sure.
It was a week or so since when I
A.
it and took
noticed
it.
you
gun
Have
ever
a .38
like that before?
seen
Q.
exactly
A.
that one.
Not
like
,38s?
you
Have
seen other
Q.
A. Yes.
you
Where have
seen these?
Q.
A. A friend of mine had one in Barrackville.
only
you’ve
you
seen.
others
That’s
one
Have
seen
other
Q.
your
than the one
friend had?
pistol my
A. A western
cousin has.
though
a
it
That wasn’t
.38
or was
a .38?
Q.
yes,
western,
AA.
.38.
make
it.
Let me
sure I understand
You had first seen the
Q.
possession.
apartment
It
that Joe Dobbs
in his
wasn’t
in the
subjective
reviewing
make some
sequently,
court must
a
first,
probability
error
the actual
of
of
determination
proceed
from its conclusion
to work backward
and then
application
general
probabilities
of some
inherently
sufficiency.
is
This determination
rule about
say to the
subjective
process;
regardless
of what we
always reverse where it
contrary,
appellate court will
an
jury
strongly
disagrees with the
conclusion
disguise
technique
it
this
regardless
selects
McKenzie,
See,
example,
process.
v.
simple
Cannellas
_W.
Va._,
There are apply jurisdictions attempt the sim- which American quoted from the California ple of review above standard attempt Tolbert, supra to illuminate with little court reasoning process by conclude that cer- which courts the rule while other evidence tain evidence satisfies excludes all rea- not. circumstantial evidence does What suspect hypotheses innocence? I there is sonable subject an paucity illumination on the because such squarely analysis brings reviewing into court honest California, apparent 380 U.S. conflict with an Griffin (1965) unfavorable inference holds that no which testify. máy failure be drawn from the defendant’s Nonetheless, possible explain how courts only sufficiency with reference applied the difficulty would have in which the defendant the ease or against him. The rebutting the circumstantial before, time, you is before the had seen it but right? apartment, placed vent in the in the apartment Yes, it. in the when I seen A. but it was was that? Where Q. my bedroom. A. This was present at this time? Who else was Q. *12 Me and Joe Dobbs. A. you only two there? Were Q. A. Yes. questions this witness. I would No further of MR. CLECKLEY: my recall him for case. like to questions. No MR. MASCARA: Whereupon, the witness was excused. appellate whole sufficiency rationale for review of is to becoming foreclose defendants from victims of circum- very Why stances in a literal sense. should defendants peculiar ability who have the apparently rebut cases with evidence which is within their own knowledge be accorded the same reluctance to convict as totally mercy those who are sufficiency of the test?
Where circumstantial incapable being is of by rebutted the defendant apply courts should signifi- cantly higher determining sufficiency standard in cases where easily the defendant can rebut the cir- cumstantial evidence. In only the case before us history defendant knew the weapon; of his if it were not possession in his at the time of the murder then he and capacity he alone had the to demonstrate its where- abouts. paying
Even while sincere holding deference to the California, supra, by neither comment Griffin prosecution nor jury may permit instructions inference the silence of the accused is evidence of guilt, is not illogical inconsistent or recognize elasticity certain in the evaluating suffi- ciency of exclusively evidence based high resolve to assure that no innocent unjustly con- victed. If the possession been found in the twenty the defendant robbery minutes would that have day? been sufficient? One One week? What if in addition to the murder police had discov- ered clothes in the of the defendant which were similar to those worn the assailant? If it agreed that a conviction could be had in of these hypothetical examples, it must then be conceded that sufficiency basically predicated upon probabilities is not absolute. Even a case where the defendant had and similar twenty clothes minutes murder proof beyond would not be possibility all very mistake. The recognition of a standard of review probabilities based on ineluctably leads recognition to a legitimacy elasticity in that Appel- standard. *13 insufficiency predicated should late court relief be difficulty upon or which the defendant would the ease rebutting against the circumstantial him.
Where, example, evi- a defendant is convicted driving dence which shows that a motor vehicle fled, the one in which an assailant was wear- similar assailant, ing clothes similar to those worn crime a hours of close to the scene of the within few perpetration, higher than in its the standard should be all of the evidence in our the case before us because hypothetical example innocence is consistent with absolutely no evidence which is other alibi produce to be can to rebut the inferences the defendant unlucky an his circumstances. Absent alibi drawn from may nothing a victim and there the defendant be reasonably expected to know which he could which any perpe- light him or on the real exonerate cast would us, however, before the defendant trator. In the case explain everything; where he and he alone can knows was, lost, weapon it was whether it was whether repossess it, possibly stolen, who how he came perpetrator is. the real majority wrong gainsay of the conclusions
The unexplained jury judge and in this case. The the trial and after possession a murder both of before make out circumstantial evidence to murder is sufficient “unexplained” The of the term prima case. use a facie spectre magically of invoke does Grif- compel- point evidence will be so some because at fin must take the stand. Would ling that the defendant caught if he had been to take the stand need defendant What minutes the murder? five with the subjective always case is constitutes regardless of suf- of the threshold so that determination unexplained judge, exis- ficiency particular for a particular when that circumstances of certain tence defendant to take will cause the is met threshold appearing cava- Our fear of a conviction. stand or suffer rights require lier defendants prove universally case leads courts to eschew its analysis difficulty the ease or which can evidence lest run afoul rebut circumstantial we Griffin, yet swpra, this unarticulated consideration must every judge’s lurk in the dark mind. recesses difficulty with unarticulated criteria is that ulti- *14 mately thinking process. appellate the cloud While judges may they know the distinction between what do they say do, judges and what trial cannot be ex- pected to be mind readers. sufficiency
The results of most cases on stand the proposition protec- are more defendants entitled to appellate sufficiency tion in form of review the of when beyond power explanation are their circumstances of incriminating the when can circumstances be easi- ly explained. accept any To other view will either lead to inadequate protection unlucky enough for those to be by reciting victims of circumstances a mechanical rule everything jury which the leaves discretion of as long or, alternatively, “some evidence” will freeing obviously lead guilty because we unwilling are to exercise our minds to a sufficient extent right reconcile defendant’s to remain silent with problem proper appellate related of a sufficiency review of which takes account of relative de- grees dependent of likelihood of erroneous convictions on the nature of the circumstantial evidence. regard
In appear it posses- would the mere sion of a murder two a half months after murder, 4, January i.e. 27, November 1975 1974 would not constitute case it because could logically be concluded the defendant would power have it in his rebut show where bought it; however, before possession both the murder would lead reasonable before minds to conclude that if it were not the defendant’s gun and the defendant had not used it to commit murder, the likelihood of an erroneous conviction would exclusively in it véry as the defendant small the time jury was at where power to show own circumstantial evidence Like all other the crime. weapon before and a murder ership and in hypotheses of exclude all the murder does not jury conclude that nocence, were entitled to but the That, of hypotheses innocence. all reasonable excluded Knotts, v. 156 W.Va. course, proper standard. State is the 197 S.E.2d Corp., etc. ex rel. E.D.S. Federal etc., Welfare, Ginsberg, Comm’r, Department H. Leon et al. 14601)
(No. 6, 1979. Decided November