State v. Guthrie

461 S.E.2d 163 Virginia,

STATE of West Plaintiff

Below, Appellee, GUTHRIE,

Dale Edward Defendant

Below, Appellant.

No. 22710.

Supreme Appeals Court of Virginia.

West May

Submitted July

Decided

Concurring Opinion of Workman, 21, 1995. July

Justice

659

664 pocket

knife his and stabbed his co- from worker, Farley, in Todd the neck and Steven together killed The two as him. men worked Danny’s at Rib House in Nitro dishwashers got together along and well before this inci- victim, night killing, dent. On brother, Tracy Farley, his and James Gibson Kershner, Atty., Mary Asst. Pros. Beth working in the joking were around while Charleston, appellee. The victim was kitchen of the restaurant. Warner, Public Stephen Deputy D. De- appeared poking who fun at defendant - fender, Charleston, appellant. inbe mood. He told the defendant to bad “lighten up” snapped him with dish- and CLECKLEY, Justice: Apparently, towel times. the victim several Guthrie, defendant, ap- Dale The Edward upsetting had no idea he was defendant peals January, verdict of the very flipped The defen- much. dishtowel County, finding of Kanawha Circuit Court enraged. dant on the nose and he became guilty May murder. him of first gloves The his and defendant removed 1994, the was to serve a defendant sentenced Farley, started toward the victim. Mr. still mer- life sentence with recommendation “Ooo, taking teasing, gloves his said: he’s cy. The as error several defendant cites pulled a off.” defendant then knife from The improper and given instructions pocket the victim in the his and stabbed by prose- questions and comments made Farley neck. also Mr. in the He stabbed cutor. Cumulative error is asserted. He Farley as floor. Mr. arm he fell there is insufficient evidence to also contends “Man, just I was kid- up looked and cried: support verdict. ding responded: The around.” “Well, man, you have never hit me should I. ” my police at the arrived restau- face AND PROCEDURAL FACTS was rant arrested the defendant. He and BACKGROUND given rights. The defendant his Miranda at and police made station evening a statement undisputed It on the police 12, 1993, killing.1 The officers February confessed to the defendant removed face, confession, coming up my putting jury, which sion 1. The was read stated, interpreted challenge, part: I to be forth what o’clock, work, nothing, continuing carry my again out at and was I did “I arrived at 4:00 work, evening looking responsibilities. Standing to another I from forward a few inches it, looking enjoy do was I dishrag forward because my his me he took wet and hit face Upon working Danny’s my Rib at House. ar- forearm, once, nothing continuing on the I did immediately at observed the ver- rival work I area, Standing my hit in the same he work. aggression Farley. physical Mr. bal forearm, obviously wanting a again me on the During evening calling I heard him work confrontation, none, my gave continuing I him employee's 'Boy' during the eve- certain ning me, Standing place same he hit work. times, many ‘Boy’ he to me I referred as hurt, face, hard, really it it two times work, nothing, continuing my did and said wet, brought soaking stung, he it was and it loud, letting really pass. was He obnox- it face, my I upon that moment bear ious, many employee’s noticed. As I'm sure me, go thought going further and hit he was coming Farley evening Mr. to a close my pants pocket, right so I reached very ‘that me and said I had walked close knife, ’ my use for lock blade I retrieved verbal, problem.” I It was let "attitude during squirrells skinning [sic] rabbits my bringing pass, continuing work. After Farley hunting swung Mr. I at season. cook, the walked back to the some dishes to I knife, my my right was he hand in which dishes, begin drying some to off dishwasher twice, slowly swing up, he so I didn't backed approached Farley and made sarcas- Mr. me floor, ran to front [the] sunk to I person, being quiet me he tic comment about out, yelled call ambulance. restaurant and closer, my was to he walked ever face, me until work, for, carry to and All to work was I came my trying carry responsi- to out I was obligations, having will no said, my ill toward out things these were bilities. After all none, one, feel have but I I had exhibiting physical aggres- and I still though even he was ¿nd willing himself, him cooper- holding as calm to when came to described he he was ate. his Farley sinking knife in hand and Mr. was to the floor. undisputed also

It is the defendant psychiatric problems. suffers from a host Lerfald, psychiatrist, Sidney A Dr. testi- experiences up panic daily He to two attacks behalf diag- fied on of the defendant. He treatment them had received for at the nosed the various disorders discussed above. Hospital in Veterans Administration Hunt- diagnoses Dr. Lerfald felt the defendant’s ington year than a preceding more “may have perception affected his some- killing. depression He from suffers chronic Nevertheless, opinion what.” it was his disorder), (dysthymic with his obsession defendant was sane at the time of offense disorder), (body dysmorphic nose and bor- distinguish he to because was able between personality derline disorder. The defen- right wrong and could have conformed light on dant’s father shed some his nose accordingly. his actions He fixation. stated dozens times a day the defendant stared in the mirror and position It was the State’s that the facts turned his head back and forth look at his supported degree a first murder conviction. percent nose. His father estimated that case-in-chief, At the close of the State’s of the time he observed son his he was defense moved for verdict directed con- at looking repeated- his nose. The defendant tending present State failed ly asked assurances that nose his was not premeditation. malice This motion big. began too This obsession when he was argued was denied. The defense the facts of approximately years old. seventeen The de- supported voluntary manslaughter the case twenty-nine years was fendant old at the or, worse, degree at second murder. The time of trial. finding returned a verdict the defendant panic guilty

The defendant testified he suffered a first murder with recom- immediately attack preceding stabbing. mercy. mendation of “intense”; He described the attack as he felt pressure

a lot of and his beat rapidly. heart II. In contrast to atmosphere the boisterous evening, kitchen the defendant was DISCUSSION quiet kept to himself. He stated that Farley kept irritating Mr. night. him that appeal, In his raises several why defendant could understand Mr. (1) assignments of error: whether the evi- Farley picking was on him because he had verdict; support dence was sufficient to trial, never done that before. Even (2) giving whether the trial court erred comprehend defendant did not his utter over- murder; covering instructions first reaction to hindsight, the situation. In (3) whether the in refusing trial court erred defendant believed the better decision would give defendant’s instruction on circumstan- punch out been on his time card and (4) evidence; tial trial court quit However, over the incident. all the permitting prosecution erred in argue witnesses related that the defendant was in penalties offense; of each lesser-ineluded way attacked, it, no perceived he but that (5) in permit- whether the trial court erred Farley Mr. playing around. The defen- ting prosecution inject irrelevant evi- dant not bring could himself to tell the other racial, gender, political preju- dence of workers leave him alone or inform them (6) case; dices in the and whether reversal is panic about his attacks. required under the error cumulative rule. statement, outset, contrast to his written the At find some of the errors defendant testified he was unable to recall asserted the defendant are without merit. stabbing Therefore, the victim. After he was struck in our review of will this case nose, and, he stated that he “lost it” limited to the three areas discussed below.

right respond, finally, aggres- aggressive, to this act of exhibit violent but behavior I felt I me, alternative, perpetrated against sion that was I do not had recourse.” no

667 decided, Starkey year A after was A. in v. Supreme States Court Jackson United Sufficiency the Evidence 307, 2781, 443 99 61 Virginia, U.S. S.Ct. First, us persuade strives to defendant articulated, (1979),2 560 lin- L.Ed.2d at least support in this case does not that the record guistically, a standard of review different murder guilty of first the verdict In a under the United Constitution.3 States this beyond a doubt. Because reasonable sufficiency of claim the evidence under Jack- sufficiency challenges the of evi- exhortation son, court, appellate reviewing while verdict, support jury’s a our author- dence to light in the most to the record favorable ity to review is limited. “any prosecution, determine whether must have addressed criminal stan- We not rational trier of fact could have found the concerning sufficiency dard of review beyond elements of the crime a essential Syllabus 1 of since 1978. Point evidence 319, 443 U.S. at 99 S.Ct. reasonable doubt.” 517, Starkey, v. 161 244 S.E.2d 2789, in (Emphasis 61 at 573. at L.Ed.2d (1978), respect our rule with to 219 states original). a claim: such case, guilt “In will a criminal verdict of contrasting Starkey After its ground not be set on the it is aside an progeny with the standard review evidence, contrary to the where the state’s Jackson, in we believe desirable nounced is impartial to evidence sufficient convince adopt reconcile our differences and to beyond guilt minds of of the defendant review both as to Jack federal standard of to be a reasonable doubt. evidence is generally son and as to the standard of re light in most viewed favorable to By in view circumstantial evidence cases.4 prosecution. To warrant with interference so, however, doing highly continue a def we ground guilt a verdict of on the of insuffi- approach: Appellate can re erential courts evidence, ciency of be con- court must only have verse no rational could manifestly vinced that the evidence was beyond guilty a reason inadequate consequent injustice found one; is a has been done.” able doubt.5 This standard strict 890, Rehearing by 444 S.Ct. consider on the record made in denied U.S. 100 whether 195, (1979). 62 L.Ed.2d 126 trial court rational trier fact could guilty beyond a reasonable found the defendant question There is as to Jackson some doubt. thinking of reflects the current the United States co.ntext, Supreme practical In the Jack- Court. we choose do is con 4. The reconciliation that decision; every son was a five-to-three member approach we with a took in State sistent similar Court; gone Supreme majority from the of the 412, Kopa, 418 v. trio, concurring joined and the Justice Stevens adopting a differ where we observed Burger Rehnquist, ar- Chief Justice Justice might cases “create ent standard criminal gued that asked whether there standard sustaining convictions the state problem of support disputed find- was some evidence predictable through release habeas court with opinions ing. held the Since both Jackson Although corpus the two federal court.” convict, adequate choice necessarily to different standards would not results, lead did between the calibrations the standard two unnecessary we it is to have believe Also, two matter case. neither of the in that subjected to stan different criminal defendant sequels illuminating. v. Herrera Jackson ultimately case end of review should the dards Collins, 113 S.Ct. 122 L.Ed.2d U.S. Tate, up 858 F.2d in federal court. See York (the (1993) majority opinion by Chief Justice denied, (6th Cir.1988), cert. 490 U.S. Rehnquist capsulized solely order to Jackson L.Ed.2d 109 S.Ct. West, it); distinguish Wright 505 U.S. (1992) (involved S.Ct. 120 L.Ed.2d sup- language in Jackson seems opin- 5. While Supreme majority fractured Court no 324-26, review, ion). port see 443 U.S. at a de novo 577-78, 2792-93, L.Ed.2d at S.Ct. certain as to how the United While are not only made novo as decisions review de Supreme ultimately States Court will resolve verdict, jury’s we are issue, court. As to the the trial represents majority position in Jackson defendant, required to all inferences in favor review pole most favorable verdict, appropri- making thus deferential review position majority justices has this stated Accordingly, proceed ate. been overruled. never 668 heavy gain adopt

defendant must meet a burden circumstantial evidence rule we that jury a not today States, reversal because verdict will be originated in Holland v. United lightly. overturned 121, 139-40, 127, 137-38, 348 U.S. 75 S.Ct. 99 150, (1954), L.Ed. 166 where United standard, Under the when Jackson Supreme States stated: Court conviction, reviewing accept may we evidence, including adequate circumstantial petitioners “The assail the refusal of the evidence, support for the conviction. It is judge trial to instruct that the Gov- where court, we, possible appellate may as an ernment’s evidence circumstantial it have a different result if had sat reached we every must be such toas exclude reason- However, Jackson, jurors. under it does hypothesis guilt. able other that of might interpreted not matter how we or support type There is some for this of weighed the Our evidence. function when decisions, instruction in the lower court sufficiency reviewing of the evidence to ... but the better rule is that where the support a criminal conviction is to examine jury is properly instructed on stan- the evidence trial to admitted determine doubt, dards reasonable such an addi- evidence, believed, such is suffi tional instruction on circumstantial evi- person cient convince a reasonable confusing dence is and incorrect.... guilt beyond a defendant’s reasonable doubt. Thus, whether, inquiry the relevant after respect “Circumstantial evidence in this viewing light in the evidence most favor intrinsically no different from testimoni- prosecution, any able to the trier rational Admittedly, al evidence. circumstantial fact could have found the essential elements point evidence some ease a whol- beyond proved the crime a reasonable ly equally incorrect result. Yet this is true doubt. instances, of testimonial evidence. In both Jackson, adopting necessarily jury

In weigh we over- is asked to the chances that long turn our established rule that when the correctly points guilt the evidence evidence, upon State relies circumstantial against possibility inaccuracy or am- in part, whole court for a to sustain the both, biguous jury inference. must hypotheses verdict all other reasonable need experience its with people use and events prosecution be excluded save that of weighing probabilities. If the guilt. Noe, 10, 15, In State v. 160 W.Va. beyond doubt, is convinced reasonable 826, S.E.2d 829-30 we stated: (Citations require can more.” no omit- support “[CJircumstantial evidence will not ted). guilty guilt verdict unless the fact of The circumstantial evidence rule Hol- proved every exclusion reasonable land reaffirmed Jackson: innocence; hypothesis of and circum- which suspicion stances create mere “Only theory prosecu- under a that the guilt prove do but the actual commis- duty tion was under an affirmative to rule charged, sion of the crime are not suffi- every hypothesis out except guilt that of cient sustain a conviction.” beyond a peti- reasonable doubt could Robinette, State v. 181 W.Va. challenge tioner’s That sustained. the- (1989); Dobbs, State v. 163 W.Va. ory rejected past.... Court has in the (1979). Frasher, S.E.2d 829 In State v. adopt today.” decline to We 443 U.S. at (1980),however, S.E.2d 43 2792-2793, 99 S.Ct. at 61 L.Ed.2d at recognized application of this is lim- rule (Citation omitted). ited to cases wholly where the State relied upon pt. circumstantial Syl. evidence. See Facing dilemma, Supreme the same McHenry, State v. 117 S.E. require Court Ohio also abandoned the ment circumstantial cases

However, Jackson, prosecution’s under exis- evidence need exclude all mere hypotheses tence of other hypotheses reasonable is not other reasonable of innocence. enough Jenks, reverse a verdict. This new In Ohio St.3d Thus, (1991),6 it fol- 492, relying on lan and circumstantial evidence.7 N.E.2d 502 Holland, a proper court stated: that once instruction guage in Ohio lows a fortiori jury given advising as to State’s evi- evidence direct “Circumstantial beyond heavy guilt under the a rea- inherently possess proba- the same burden dence standard, in- certain facts doubt an additional value. In some instances sonable tive by no only established circumstantial struction on circumstantial evidence is can be Hence, discern rea- required we can no longer evidence. even the State relies whol- requirement that cir- ly son to continue on circumstantial evidence.8 evidence must be irreconcil- cumstantial theory summary, of an ac- a criminal defendant

able with reasonable support sufficiency a challenging innocence order of the cused’s evidence finding guilt. agree We with those heavy on a bur support conviction takes that have held that additional appellate courts An court review all the den. must sufficiency circumstantial, of circum- evidence, instruction on the whether direct confusion and is stantial evidence invites light prosecution most favorable to the circumstantial evi- unwarranted. Since credibility and must credit all inferences and are indistin- and direct evidence dence jury might have that the drawn assessments jury’s fact-finding far as guishable so prosecution. The in favor of the evidence concerned, required that is function all every conclu need not be inconsistent with weigh all jury is that of the guilt long jury that so can sion save circumstantial, evidence, against direct beyond guilt find a reasonable doubt. As beyond a proof standard of reasonable before, appellate not cautioned review is have Nothing required more be doubt. should replace jury’s for this Court to device aof factfinder.” review, finding with our own conclusion. On weigh will not evidence or determine precedents illuminate our These Credibility credibility.9 are determinations logic analysis path. We find the jury court. On appellate and not an to be forceful. There Holland and Jenks a verdict in a appeal, we will not disturb fore, only one stan we hold there should criminal case we find that reasonable unless proof in and that is criminal cases dard have the same con minds could not reached beyond start proof a reasonable doubt. We jury Finally, a verdict should be set by acknowledging there clusion. along this route that only contains no evi- when the record qualitative difference between direct aside is no State, (Alas rule, 1410, by Des v. 551 P.2d 181 Rehearing 62 577 see Jardins denied Ohio St.3d 386, Harvill, 1976); (1991). Ariz. 476 ka State v. 106 362 N.E.2d State, (1970); Henry 298 A.2d 327 841 v. P.2d Bush, 340, 1972); (Del. 58 Haw. 569 P.2d State v. 796, Bailey, S.E.2d State v. 155 7. See 134, State, (1977); Ind. 415 v. 275 349 Gilmore (1967). 850 525, Morton, (1981); v. 230 Kan. N.E.2d 70 State (1982); Cowperthwaite, 354 P.2d 928 State v. 638 rule is the Our conviction that the Holland State, (Me.1976); Md.App. 56 173 Finke v. A.2d weakened the fact that there better rule is not denied, 450, (1983), cert. 299 Md. 468 A.2d 353 among the as to is substantial conflict states (Md.1984), 425, cert. denied sub 474 A.2d 218 pref whether the standard announced Noe 1043, Maryland, U.S. 105 S.Ct. Johnson, Finke v. 469 nom. According to our of Holland. erable 529, (1984); People v. 416 83 L.Ed.2d rule, count, rough following states the Noe 429, (1985); Mich.App. 740 381 N.W.2d 146 Williams, (Ala. 1985); parte 99 Ex 468 So.2d see Buchanan, 20, 312 N.W.2d 684 v. 210 Neb. State State, Ark. 201 v. 282 669 S.W.2d Smith Jones, (1981); S.E.2d 303 N.C. 279 State v. - denied, -, S.Ct. U.S. 113 cert. Stokes, (1981); S.C. 386 v. 299 835 State State, (1993); 716 Murdix v. 122 L.Ed.2d (1989). 241 S.E.2d (1982); v. Ga. 297 S.E.2d 265 State 250 Stately. (La.1985); Lilly, 1154 An 468 So.2d may appellate decide the credibili- court drews, (Minn.1986); 9. An 723 State N.W.2d weigh is the ty (Mo.1983); of witnesses or Easley, 662 S.W.2d 248 the trier of fact. Williams, (Tenn.1983), and task of exclusive function cert. de 657 S.W.2d 405 supra. to decide nied, Bailey, It is for State v. 79 L.Ed.2d 465 U.S. S.Ct. John, (Utah Once (1984); to believe or disbelieve. which witnesses P.2d State v. spoken, not review 1978); jury has this Court Wyss, Wis.2d State v. credibility of the witnesses. rejecting Noe For states N.W.2d dence, regardless of weighed, question how it is from The difficult factual guilt beyond must been which the could find the mental state the de stabbing. fendant at the time doubt. To the extent our reasonable conflicting evidence was somewhat on this prior cases are inconsistent with our decision point. While the evidence offered today, they expressly announced are over- believe, impossible defendant is not some scope ruled. With the of our review thus explanations unlikely. his seem Guilt be defined, we move the defendant’s claims. yond premised a reasonable doubt cannot be conjecture. pure However, conjecture a begin by emphasizing We with consistent the evidence becomes less from a appellate our review is conducted cold conjecture gradually and less and moves to reason, transcript and record. For that proof, explana ward as alternative innocent jury must assume that the credited all wit likely. tions are discarded or made less The testimony supports nesses whose the verdict. beyond a reasonable doubt standard does not essential facts of this The case—those that require every hypothe the exclusion of other jury unquestionably the was entitled to or, matter, every sis other reason simple: find —are rather The defendant be if, hypothesis. enough able It is after consid came with “horseplay” irritated the of the ering evidence, all the direct and circumstan victim; jest when the victim in hit the defen tial, a reasonable of fact trier could find the nose, with a dant wet dishtowel on his the guilt beyond evidence established a reason angry defendant became a four- drew able doubt. inch-long pocket lock blade from knife his record, reviewing fatally and stabbed the victim After the in the this neck. Court has some doubt to whether the this is a After defendant was confronted with his case; but, first deed, point, murder at this he made statement that could be objective Jackson’s own standard interpreted turns to mean he was not remorseful against absolutely the defendant. It makes but, contrary, to the was unconcerned about no appellate difference whether we on the the welfare of the victim.10 addition to jurors bench as would have voted convict jury hearing testimony eyewit from of a defendant lesser-included offense or killing, nesses the defendant confess thought we would have there was ed. contrary, some reasonable doubt. To the There is no doubt what inferences question posed by Jackson is whether findings jury of fact the had draw in order jury presented rational could on the evidence to convict the defendant of first mur- premeditated think the defendant and inten (1) jury der. The must have believed that: tionally killed victim. We do not find the provocation “horseplay” The was suffi- not evidence so weak as to render the verdict (2) attack; justify deadly cient to the defen- jury A irrational. rational well have was dant under no real fear his from own found guilty the defendant of some lesser- (3) attacked; being stabbing was inten- oath; included crime violating without its tional; (4) but, the time it took the defendant drawing all favorable inferences favor open his knife and inflict the mortal wound prosecution, of the a rational could also was sufficient premeditation.11 to establish convict. by suggesting We end that varia- cross-examination, prosecuting 10. On attor- 11. The evidence shows the victim's actions were if, ney upon irritating learning asked the defendant defendant well before stab- death, bing place. anger building took His replied police was victim's he officer: bad, flip each comment and of the towel. Further- buddy. you "That's too Do think it'll more, attempted witnesses testified defendant suggest snow?” This Court does not this evi- to stab the victim a second time fell as he However, dence should have been admitted. ground. The evidence shows the victim was reviewing sufficiency when of the evidence during attempt. Finally, slashed in arm this claim, appellate an court is entitled to review all right defendant's statement that he "had the actually rightly the evidence that was admitted or respond, finally, aggression act to this Nelson, wrongly. See Lockhart v. 488 U.S. perpetrated against [him]” is considered S.Ct. L.Ed.2d probative premeditation evidence of and deliber- ation. entirely not suggest it is instructions is clear from the experience tions human objection range record. could be construed as unexpected a considerable The to see challenge to the trial court’s inclusion of about what or estimates reasonable verdicts Thus, as a matter of Al- likely unlikely. find the certain instructions law. or evi- objection ternatively, the could be as a read under either Jackson dence sufficient confusing challenge merely to nature of Starkey standard. objection The instructions. basis appropriate of re- determines the standard B. Giving the view.12 benefit Jury Instructions doubt, we will consider the issue first legal propriety a review of the instruc- us under principal question before light, objection tions. In this to a assignment of error is whether our instruc- challenge instruction is a trial court’s deprive given together tions on murder when standard, legal statement of the this Court process of or a criminal defendant due are will exercise de novo review.13 More recent- confusing. Because wrong otherwise and the Bradshaw, ly, in we stated State v. 193W.Va. in this conform to given instructions case (1995): area, approved already we in this what the asks to the essence of what defendant us jury “The instructions to the must court’s previously approved our decide whether be a statement of the law and correct degree murder cases are instructions first by Jury supported the instruc- evidence. presenta- legally concluding In his correct. determining tions are reviewed tion, asks “to write an us whole, charge, as a sufficient- reviewed clearly specifically and opinion which defines ly they jury so instructed understood (2) (1) wilful, deliberate, the term the term not the issues involved and were misled (3) premeditated.” and the term juryA cannot dis- the law. instruction instead, appeal; the entire in- sected on jury charged in this case on the The determining looked its struction is at when degree of and murder offenses first second court, therefore, accuracy. has The trial voluntary of and lesser-included offenses formulating charge broad discretion its involuntary manslaughter. These in- and long charge jury, to so as the accurate- law consistent devel- structions were ly given law. to reflects the Deference past virtu- oped decisions. The defendant concerning the court’s [trial] discretion ally no there is available affirmative concedes instruction, specific wording of and defense, argument than an for the other less- precise any specific and of extent character voluntary manslaugh- of er-included offense only an will be reviewed for instruction unavailability of of the self- ter. Because discretion.” abuse of insanity, or the defendant contends defense precise of these terms is “the definitions Bradshaw, objection when Under will the various critical.” We review [sic] the trial court’s jury to a instruction involves arguments defendant in turn. of the jury expression formulation of the and of 1. Review Standard charge, will under an abuse this Court review Therefore, standard. we review grounds of of discretion

The extent whether, tak- objection jury to determine challenged instructions defense counsel’s mine, urges, did that the defendant as the State Generally, we review a court's refusal to 12. trial give giving of or the actual a certain instruction object or of the trial court’s to one more Where, standard, under an abuse of discretion standard. legal regarding we instructions however, question jury is whether the in- "plain legal propriety under a would review its proper legal structions failed to state the stan- Miller, W.Va. error" 3, See State v. standard. dard, plenary. this Court's review is "Whether Miller, suggest- In 459 S.E.2d 114 given properly [legally] jury were instructions clear, party does not make a ed where Morrison, question 991 F.2d law[J” U.S. v. specific objection charge that he trial (4th Cir.1993). erroneous, right to challenges he forfeits his as appeal fundamental the issue is so unless legal with a review of the suffi- connection instructions, "plain prejudicial error." ciency constitute we were deter- if evidence, light precisely, en as a whole and More the defendant asserts the they jury or mislead the state the law incor- trial court’s regarding instructions the ele- objecting rectly prejudice par- improper ments of first were murder not, ty.14 long they wilful, deliberate, do pre- So review the the terms because equated formulation of the instructions and the choice meditated were awith mere intent language an abuse discretion. We kill.17 only will reverse the instructions are incor- jury The was instructed that in order capable rect as a matter of law of confus- guilty find the defendant of murder it had to ing thereby misleading jury. beyond find five elements reasonable jury doubt: “The Court further instructs the Adequacy Jury Instructions as that murder in the first is when one Degree Elements of First Murder person person unlawfully, kills another will- purpose instructing jury fully, maliciously, deliberately premedi- is to its focus attention the essential issues tatedly[.]”18 In its effort to define these of the ease and inform it of permissible terms, gave the trial court three instruc- ways in which these issues be resolved. 8, commonly tions.19 State’s Instruction No. delivered, If properly they instructions are Clifford,instruction, referred to as the stated: succinctly clearly will inform “The Court instructs the plays the vital role it and the decisions it willful, premed- constitute a deliberate must make. As we said note 20 of State v. killing, necessary itated is not that the Miller, 16, 194 W.Va. at 459 at S.E.2d 127 any intention to kill for partic- should exist (1995) [adequate] “Without instructions as to length ular prior of time to the actual law, jury becomes mired in a factual only killing; necessary it is that such in- morass, legal unable to appropriate draw the tention should have come into for existence is, conclusions based on the facts.”15 This at killing, first time the time of such or essence, argues what the defendant this previously.” time case, i.e., inadequate the instructions were jury to 1, failed inform of Clifford, the difference State See v. 59 52 W.Va. S.E. 981 (1906). degree between first and second murder.16 State’s Instruction No. 10 stated: Walls, Syllabus 14. Actually only In Point of State 8 v. 170 Schrader deals with the exact issue 419, (1982), convenience, judice. W.Va. 294 S.E.2d 272 purposes we stated: raised sub For of " regarding length we will refer to instructions ‘When instructions are read as a whole and necessary of time to adequately necessary form an intent to kill jury advise as the of all ele- instruction, consideration, Clifford, see State v. 59 W.Va. ments for their that fact a Clifford 1, (1906), 52 single incomplete par- equating S.E. 981 instruction is those or lacks premediation to grounds ticular element intent kill with as the will not constitute Schrader disturbing 6, jury Syllabus instruction. verdict.’ Point 691, State v. Milam 159 W.Va. 226 S.E.2d 433 (1976)." offenses, jury 18. As to the other instruction stated: Furthermore, 15. stated oc- different jury "[t]he casions that is the trier of facts "[Mjurder in the second is when one presumption is no they 'there are famil- person person unlawfully kills another and ma- " iar Lindsey, with the law.' v. State W.Va. 160 liciously, deliberately premeditated- but not or 284, 291, 734, (1977), quoting 233 S.E.2d 739 ly; voluntary manslaughter is the inten- Loveless, 454, 469, State v. 139 W.Va. 80 S.E.2d tional, unlawful felonious but not deliber- 442, (1954). 450 taking ate or malicious of human life under passion; sudden excitement and heat assign- The defendant raises several other manslaughter involuntary person is where one instructions, regarding jury ments error act, engaged while in an unlawful unintention- arguments but we find his without merit. ally person, causes the death of another engaged unlawfully argument when in a A form of this lawful act was to made this person.” causes the Court before when similar death another instructions were challenged and we found to be contention Schrader, without merit. See v. State (1982); object 172 W.Va. 19. We note that did defense counsel 1, Riser, 8, and, 302 S.E.2d 70 State v. 170 State's No. Instruction under our stan- 473, (1982); review, W.Va. 294 ordinarily S.E.2d 461 v. State Bel dard the instruction would cher, 660, (1978). 161 W.Va. 245 only "plain S.E.2d 161 be reviewed error.”

673 W.Va.Code, (1991), our stat- jury that order to 61-2-1 murder instructs the “The Court ‘premeditated’ murder intent ute.21 constitute only for an instant.” need exist kill Virginia Legislature The West chose not No. 12 stated: “The State’s Instruction “premeditated” in define the term W.Va. instructs the that what meant Court Code, result, 61-2-1. As a consis- Court willful, language pre- deliberate tently has resorted to the common law. See killing is that the be intentional.” meditated Clifford, supra. v. State v. See also State 12 are Instruction 10 and com- State’s Nos. Belcher, 161 161 W.Va. 245 S.E.2d instructions. monly referred to Schrader (1978); Shaffer, 138 75 State v. W.Va. Schrader, v. 172 W.Va. 302 See State (1953); Painter, 217 v. 135 S.E.2d State (1982). S.E.2d (1950); v. W.Va. State linchpin problems that flow Burdette, (1950); 312, 63 135 W.Va. S.E.2d 69 failure from instructions is the ade- these Porter, State 127 S.E. quately to inform difference (1925); Wilson, State v. W.Va. murder. Of between first second S.E. guidance particular concern is the lack of Clifford, In several addition there are premeditation juiy as to what constitutes specific attempts cases that have made and the manner which the instructions premeditation. further define the intent to kill. premeditation infuse Dodds, 297-98, S.E. law, At common murder was defined we said: killing unlawful of another human “ ingredient ‘The next crime is that aforethought.” being with “malice Because To it must be deliberate. deliberate is law “malice the common definition of afore reflect, If a choice. with view make flexible, thought” extremely “it became reflects, person though but for a moment ‘arbitrary symbol’ over time an used trial acts, unquestionably before it is a suffi- he signify any judges to of the number men meaning of cient deliberation within the support tal deemed sufficient to liabili states requisite last that the the statute. The Baker, Jr., ty for murder.” John S. Daniel killing premeditated. premed- must be To Jr., Benson, Force, George, H. Robert & B.J. itate is think a matter it is to before of (5th 1993). Law ed. Hall’s Criminal 268-69 word, premeditated, executed. The would Nevertheless, jurisdictions most American something delib- imply seem to more than a law of murder built around maintained erate, party not and mean that the to common law classifications. Pertinent this deliberated, his only but had in formed case, significant departure the most from the ” (Empha- plan mind destruction.’ 22, 1794, April law came on when common sentence). last sis added to Pennsylvania Legislature enacted stat Hatfield, 169 degrees.20 In v. W.Va. dividing

ute murder into It de State to penalty we made an effort death would be inflict S.E.2d creed that the by indicat- degree distinguish degrees of murder only Virgi first murder. West ed nia, states, separate first de- ing that elements most other followed the like Indeed, degree are second murder practice. gree the 1794 murder and Pennsylvania to premeditation in addition nearly and Pennsylvania statute is identical deliberation states, W.Va.Code, 61-2-1, part: provided Pennsylvania in statute The 1794 21. murder, perpetrated which be "all shall wait, imprison- lying by poison, in “Murder wait, by any poison, lying byor in or means of willful, ment, any starving, deliberate or willful, premeditated other kind of killing, deliberate premeditated killing, or in the commission perpe- in the which shall committed or be commit, arson, of, kidnapping, attempt or arson, any rape, attempt perpetrate tration or robbery, assault, breaking robbery, burglary, sexual burglary, be deemed murder of or shall custody entering, escape ... from lawful degree; and kinds of all other murder the first degree. All other murder murder of the first degree[.]” the second shall be deemed murder in degree.” Pa.Laws, quoted murder of the second § in Ch. Com- Jones, 563, 570-71, Pa. monwealth (1974). A.2d specific formation of the intent to kill. the formation the actual to kill. intent premeditation mean Deliberation to re- Miller Justice further stated: upon flect the intent to kill and make a “Here, instruction refers Clifford carry Although deliberate choice to it out. primarily to the intention kill not exist- particular required, no amount of time is ing particular arising time period must be at least a there sufficient moment killing. This means the permit actually the accused to consider in his specific intent to kill and is to be distin- plan sense, In or her mind the this kill. guished from the elements of deliberation degree in murder the first calculated premeditation which the state are killing opposed spontaneous to a event. conveying mind the characteristics of re- Dodds, noting in language After the above flection.” 169 W.Va. at 286 S.E.2d at Justice Miller stated in Hatfield: ‘premeditated’ “The terms ‘deliberate’ and meaning This is the of the so-called Clifford have often been in our defined cases and, given, signifi- instruction when it is its carry do but certain definition- explained jury. cance should be overlap. point al This in is made LaFave problem present The source of the in the Scott, (1972 § & Criminal Law at 563 from language case stems Schrad- ed.): er, “ S.E.2d 70 While guilty ‘To be of this form of first meaning pre- Court elaborated on the degree murder the defendant must not meditation, gave it a definition different only intend kill but addition he approved than that and Dodds. Hatfield premeditate killing must and delib- Schrader, we stated: easy erate about give It is not it. “Hence, Virginia Legisla- when the West meaningful definition “pre- of the words adopted Virginia ture murder statute they meditate” and “deliberate” as are meaning ‘premeditated’ used in connection first with in the essentially used statute was ‘know- Perhaps murder. the best that can be ing’ then, and ‘intentional.’ Since courts said requires of “deliberation” is that consistently recognized men- reflection, cool capable mind that is process necessary “willful, tal to constitute “premeditation” and of requires that it premeditated’ deliberate and murder can that the one the cool mind did accomplished very quickly even in reflect, fact period at least for a short proverbial ‘twinkling eye.’ of an ... (Foot- time killing.’ before his act of The achievement omitted) mental state contem- This is what statute.23 degree first murder to take plan or scheme though an elaborate the circum- design, must consider and a premeditation. His- tion regardless actual murder killing deter- occurred to in which the stances tory discretion is not teaches that such unbridled degree catego- the first employed, whether it fits into carefully thoughtfully and mine always and relationship of example. ry. factors include may In Relevant be an this case condition at degree victim and its penalty accused and the Legislature for second raised homicide; prepa- (from plan five-to-eigh- ten-to-forty years the time of the murder type give important making either in terms years), it less ration existed teen killing aggra- place weapon where juries unguided to find utilized or the discretion occurred; presence or mo- the case of more ruth- of a reason murder in and the vated form of premeditation. is killings, irrespective deliberately No one factor of actual take life. less tive to may together comparable. Any penalties controlling. are now or all taken one to kill. on the decision actual reflection indicate "willful, by delib- means what our statute by This is the accused of statements In the absence killing.” premeditated by prior erate and killing calcula- which indicate the ruthless, cold-blooded, simply compound a calculat- error is meant would the recent killing. Any killing, by likely unjustified ing other intentional and would make the nature, spontaneous previously and nonreflective is from doctrine its break established degree jus complete. ‘special second murder.24 such a situation depart tification’ exists to from the recent are asked to overrule the lan We Constr., ly decided ease.” Adarand Inc. v. Schrader, appearing in guage reflected in —Pena, U.S.-, -, 115 S.Ct. and, particularly, Instruction No. 8 State’s 132 L.Ed.2d language of State’s Instruction Nos. 10 Overturning precedent standing long with a might clarity so that there be some and integrated in that has the law become an coherence to the law of homicide. We Therefore, in the law is fabric different. we naturally prior are reluctant to deci overrule amplified leave in tact the rule as of this Court. No likes to ac sions court Clifford by refusing So to follow Schrader mistake, knowledge pre and adherence Hatfield. continuing Hatfield, but “we do deeper cedent is based on reasons than Clifford law; depart not from the fabric of we rather, propre; it in fact a amour corner Constructors, it.” restore Adarand Inc. v. Anglo-American adjudication. stone Ad —Pena, at -, 2116, 132 U.S. 115 S.Ct. at ditionally, the more recent precedent, L.Ed.2d at -. it more authoritative is because there is less changed significantly likelihood circum Finally, obligated we feel to discuss what provide “special justifi stances would defining premeditation instruction now ac- reassessing cation” for the soundness of the ceptable. sug- What came about as a mere precedent. Nevertheless, Hatfield, the circumstances gestion in as a approve we now different, agree of this case are with proper instruction today’s under decision. opin defendant that language our Hatfield, Note 7 of W.Va. at virtually Schrader ion eliminates the dis S.E.2d at states: in this tinction first and sec between appropriate “A more for first instruction murder, degree equating pre ond it does murder, degree paraphrased from Devitt with the meditation formation of intent to Blackmar, Jury Federal Practice We have clarify kill. tried to the difference 41.03, § Instructions is: “ degrees pre between the in the murder ‘The is instructed that murder ceding paragraphs. We find Schrader in the first consists of an inten- wrongly equated premeditation with intent to tional, premeditated deliberate and kill- doing kill and so undermined the more ing killing which means that is done meaningful language of and Dodds. period Hatfield prior after time for consider- opinion To the extent that the Schrader period ation. The duration of can- today, holding inconsistent our arbitrarily not be fixed. The time Schrader, In overruling overruled. we do to form a premedi- which deliberate and lightly take policy underlying stare design tated varies as the minds and However, decisis. we believe: temperaments differ, people and ac- “Remaining ‘intrinsically cording true to an which circumstances in prior sounder’ doctrine they placed. Any established cases interval of better serves the values of stare decisis forming time between the of the intent following recently intent, than would a more de- to kill the execution of that cided case inconsistent with decisions is of which sufficient duration it; that came fully before the latter course accused to be what he conscious of examples type supports As of what according precon- of evidence deliberate intention to kill to a murder, finding identify design. evidently first ceived The California courts (1) categories: "planning” activity require three categories evidence of all three or at least —facts regarding prior extremely strong the planning activity defendant's behavior to the evidence of or killing life; might design (2) which category indicate a to take of conjunction evidence ei- (2) (1) (3). Anderson, prior relationship facts about the People defendant's See ther or v. 70 Cal.2d 15, 550, might (1968). Cal.Rptr. or behavior with the victim which indicate 73 447 P.2d 942 kill; (3) regarding examples to a motive and only evidence the are These illustrative and are not killing nature or manner of the which indicate a to be intended exhaustive.

677 intended, permitted support right to a fair trial when he was to to a con- is sufficient degree murder.’” penalties first argue viction for the the different offenses defendant’s father cross-examine the Having approved a new instruction gender on the defendant’s racial and biases law, do area of homicide we not believe in the political Because con- and his beliefs. we applied retroac today’s decision should be prosecutor’s clude the remarks his cross- Teag tively. Applying the test articulated go also Lane, 1060, improper, examination were we will 103 U.S. 109 S.Ct. ue weigh error our (1989), on to the under harmless a rule” should not “new L.Ed.2d precisely, We at each of the given effect. More error standard. look retroactive by “not separately rules we announce are dictated the defendant’s contentions because precedent existing opin at time” of our the specif- is our review for harmless error fact — U.S. -, -, Taylor, McCammon, ion. Gilmore v. McDougal v. ic.25 See 2112, 2116, 124 L.Ed.2d 113 S.Ct. (1995). 229, 239, 465 S.E.2d Teague, at quoting 489 U.S. (Empha at 349. 103 L.Ed.2d S.Ct. Disclosing the Possible Penalties Nevertheless, original). we need not sis During portion closing ar- rebuttal the rule” to the defendant’s case the apply “new being appeal attorney case guments, prosecuting on this because this the informed grounds. on The defendant jury reversed other punishment that the for second de- the entitled, however, to the benefit of this gree years impris- to eighteen murder is five on decision remand. onment; voluntary manslaughter conviction punishment years five of one to carries matter, the general a more failure As involuntary man- penitentiary; the prescribing precisely follow what are now up imprisonment slaughter could lead circumstances, could, under be harm- certain jury told year. also the that should He note that the trial court less error. We continuously notions defendant be convicted first reinforced the always murder, eligible parole proof in a criminal case is he in ten burden of would be prosecution; upon years, necessarily that the defendant receive but he would innocence; by protected presumption of timely parole at counsel’s that time. Defense that, proven guilty beyond a he is unless was objection to these comments overruled. doubt, ac- the defendant must be reasonable practice that such The defendant asserts addition, In the trial court quitted. instruct- be- to the level constitutional error rises charge jury as whole ed the to consider the jury have determined cause singling any out one instruction. rather than by it believed the degree of homicide what it is reinforce our belief that These actions to be. The State appropriate punishment unlikely prejudiced defendant was attorney may in- prosecuting contends the point of error. reversible penalties for applicable of the form long

C. correct possible convictions as law is made. statement Prosecuting Attorney Misconduct of to ac- parties appeal to this seem [33,34] Both turn next to defendant’s We entirely knowledge are not prejudiced his that our cases argument prosecutor defense; evidence was invited inquiry the trial statement or (3) 25. The focuses the fairness of isolat- statement or evidence was culpability prosecutor whether the not the because extensive; (4) the extent which allegations prosecutorial are ed or misconduct instructions; by jury process. determining prejudice was ameliorated due based on notions of (5) prej- opportunity counter the evidence intro- defense’s whether a statement made or udice; (6) or evidence represents statement prosecution an instance duced misconduct, placed divert deliberately before the we first look at the statement matters; improper improper. attention to irrelevant and and decide if it isolation (7) supporting is, sufficiency improper of the evidence evaluate whether If it then generally Darden v. Wain- See the trial unfair. the conviction. or evidence rendered statement evaluation, wright, 477 106 S.Ct. 91 L.Ed.2d U.S. are relevant to this Several factors (1986); (1) Sugg, among and seriousness them are: nature misconduct; (2) extent which S.E.2d 678 jury appropriate penalties the

consistent in reference the relevance of of for convic when, ease, penalty penalty jury comment dur- tions as in this the must ing arguments. prior degrees closing varying We believe our between an of choose of rulings placed catego- generally into two Our hold such can be broad fense. cases Directly category penalty ries. The first concerns cases in- information is irrelevant. Parks, mercy. volving addressing of in recommendation We the issue State v. 161 said, 511, 848, degree 516, in example, for first mur- 243 S.E.2d 852 cases, duty mandatory sentencing is of we placing der the the stated that matters jury the may jury prejudicial trial court to instruct that it before the “an is issue the of mercy fact-finding jury.” right a recommendation to such of add ver- function the The explain jury legal punishment exclusively dict and to to fix rests within the implications court, par of such a recommendation. To discretion of the trial and neither extent, prosecuting ty attorney permit- right “capital” this is has outside of cases to significance jury possible penal to comment on the of ted have the informed of the appropriate generally Massey, recommendation and to make ar- ties. See State v. 178 427, 2, gument 865, against such a 2 recommendation. W.Va. 432 n. 870 n. However, here, (1987). scope limit jury even This is so is not because permissible argument: prosecuting permitted sentencing The at- to concern itself with torney argue that a cannot recommendation matters outside of recommendation of mer mercy cy. of Lindsey, supra (jury would enable defendant to re- State v. See should parole years. Lindsey, ceive ten State v. not concern itself with irrelevant matters 284, (1977). parole); Loveless, 160 W.Va. 233 S.E.2d 734 Nor such as State v. (1954). prosecutor Therefore, argue have we authorized 80 S.E.2d 442 beyond penalties. degree the first murder hold that outside the of involv context eases course, judice, prose- in the ing mercy, Of ease sub improp a recommendation of it is cuting attorney did party not violate this rule in er for sentencing either refer to the may eligible possibilities that he be stated defendant trial court should certain parole years in ten he ability should be convicted or to verdicts found refer for of first murder a recommenda- place probat trial court to a defendant on fact, mercy. jury Meredith, properly tion ion.26 See 824 U.S. F.2d (4th Cir.), denied, 969, 108 instructed State’s Instruction No. cert. 484 U.S. stated, (1987) part: S.Ct. 98 L.Ed.2d 404 and 485 U.S. (1988). 108 S.Ct. 99 L.Ed.2d 507 punishable by

“[F]irst [murder] is penitentiary confinement of this punish The universal rule is that state for life and the accused shall not be ment is trial court’s role and not a eligible parole except for and unless the proper jury. matter jury’s for The sole jury shall add its recommendation mer- pass function a criminal is to case cy in their if verdict and such recommen- guilty charged verdict, dation is per- added their such presented based on the evidence trial eligible son shall then be for consideration given by law instructions. parole serving after a minimum of ten State, See Chambers v. Md. 650 A.2d sentence, years of eligibility such such (1994). applicable punishments The way guaranteeing no immediate release.” the lesser-included offenses are not elements category crime; therefore, question second concerns what mentioning penalties punishment in cases other the defendant could receive involving than those proper recommendations of closing convicted not a matter for mercy. argument. Indiana, The issue we must address wheth See Rowe v. Ind. (1968).27 prosecuting attorney may er the inform the 237 N.E.2d 576 Bowser, prohibited 26. We Pa.Super. note the defendant is likewise monwealth 624 A.2d informing possible from sentences generally he Chandler, face if convicted. See U.S. v. proper closing argument 27. A in a criminal case (11th Cir.1993); F.2d Com evidence, any involves the summation of reason- focus, we refuse to do so Myers, 159 alone been its and parties Both cite State v. here. where we prosecuting for it not error the stated was 3-5.8(d) Likewise, of the Ameri- Standard eligi could be attorney say the defendant Bar for Criminal can Association Standards years if convicted of parole five after ble (2nd 1980) “The explains: prose- ed. Justice relies murder. The State second argument refrain from which cutor should heavily‘upon at to the extent Myers, least jury duty to would divert the from its decide in our decisions. it a vacillation that creates evidence, by injecting case the issues on Myers persuasive do not find that We guilt innocence broader than the or of the authority arguments of the support law, controlling accused under the or State.28 making predictions consequences any substantial reliance on believe that We jury’s 3-5.9 further verdict.” Standard First, misplaced. appears Myers unprofessional conduct for the advises: “It is Myers nothing language in was but used intentionally ar- prosecutor to to refer distinguishing what the a means between facts the record.” gue on the basis of outside op- the least considered offensive Court egregious remark: posed the more prosecu quite It is obvious that fact that this Court finds improperly injected “In view of the “issues broader than tion embodies guilt no error in an instruction which and or innocence” of the defendant language penalties which statutory argued outside record.” To do “facts by law for the various imposed and, will be improper to the extent either offenses of which Myers is inconsistent our decision ruling guilty, by the trial court found such holding, expressly overruled. To rule it is probably technically correct. The was jury permit a to base its otherwise would said with reference same cannot be finding guilt on as to the irrelevant Prosecutor’s re- court’s treatment factors.

mark: they keeping talk some- “When about Questions Relating Hospital at body or even Weston Prejudices Defendant’s V.A., they right get know out ” During the cross-examination defen- left.’ father, attorney in- prosecuting dant’s 362, 222 at 306.

159 W.Va. at S.E.2d allegedly quired prejudicial statements about Bobby Lee Guthrie conviction in made the defendant. The bottom line is him told that men prosecuting asked if the defendant Myers was because the was reversed than women and women should attorney that were better argued matters to the home, than stay at that whites were better its irrelevant for consideration.29 were blacks, two of them dis- short, that the discussion we believe Court’s Klux Defense counsel cussed the Ku Klan. point Myers purely anoma- objected questioning because of to this line It would have ly. doubtful Court effect, highly particularly with prejudicial that issue its this same conclusion had reached evidence, being over- responses important is more vulnerable issue from the able inferences argument, pleas opinion opposing party’s law demonstrates that ruled than an which State, generally. conflicting See Coleman enforcement aware of decisions the court was denied, (Tex.Cr.App.1994), — S.W.2d 344 persuasive as to gave cert. discussion least some -, 763, 130 L.Ed.2d 115 S.Ct. changed. U.S. why the old law must be Myers appears Court was under It authoritative does not cease to be 28. Precedent authority assumption had that a trial court merely in a later case advances because counsel penalties in generally on criminal instruct argument. generally Matter Penn new See proposition, authority is cited for Co., (3rd Cir.1977). cases. No Transp. Central 553 F.2d 12 sweeping matter, support But, none to such know of practical precedent-creating aas analysis statement. opinion no of an that contains extensive requested by one the women on the African- curative instruction was not juror. party given. American either and none was rulings proper Although The State asserted it was most of a trial regarding because court of cross-examination defense the admission evidence opened it portrayed the door when the defen are reviewed an of under abuse discretion standard, McCammon, good, quiet, Bible-reading McDougal dant as man see su when, fact, had bigoted pra, appellate he made some court reviews de novo the analysis psychiatrist, legal underlying comments to the State’s Dr. a trial court’s deci Ralph argues Smith.30 Corp., The State also sion. Hottle v. Beech See Aircraft (4th Cir.1995). prejudiced by defendant was not these few F.3d 106 A trial court’s dis questions concerning unbounded, his Dr. scope views because cretion is not and Smith was not called as a according witness and this the trial court’s discretion varies Nevertheless, issue was not raised further.31 In considering the issue before it. the ad- 30. The between dant's father: blacks, talked about—Knock will portraying here now who's quiet, Smith. diced individual. And I've have here. ing young want into it. and blacks and to the blacks volved report. needed. about here Move to get whites heard him comment on that? "(Conference home sions, ever "... You can ask him if he "THE “MR. "THE COURT: "MR. BROWN: Yes. "THE COURT: "MR. "MR. CLINE: "A. "THE "A. No. "A. "Q. "Q. You never heard him "Q. man, into those aireas. testify (indicating). transcript tell all political, ^{[******] [*] [*]} man. No, are No. When Did COURT: I’ll BROWN: I BROWN: takes COURT: kinds of approach I don’t recall you this case. agree crap prosecuting attorney they're very that men were better What he did not. you ^[*] you at the And that. We’ve long guy that women should be in the all reveals the things trying ever hear him comment that things we have Well, agree; than all would have these discus- Is Just a here. kinds of as a ^{[*] [*]} that’s This is where the bench. Let me walks in the This Objection, bench) this Smith's let they of that nature. KKK and— nice, calm, blacks? serious I Here's I don't you get any is the ^{[*] [*]} not what we say better moment. Let’s not talked about Hitler is a following exchange got discussions, got explain. They’re ever where blacks he's say bigoted, preju- witnesses who off people. ^{[*] [*]} and Your Honor. woods, psychological than it in think but don't talked report? witness they Bible read- quote right that, there. he the defen- nice being women? through ^{[*] [*]} alluded I don't they're a nice did he talked about really never guy, get up in- 31. We consider the noncollateral if "the matter is itself relevant in well settled that a 453 S.E.2d 419 quence[.]” peach a W.Va.R.Evid. Dr. Smith. tion made no effort to introduce the confronting him with information about his son ny that was inconsistent with the witness's testimo- cross-examination was to TV. opinion about Hitler? sions about the Klu [sic] Klux Klan? up we want to be heard at the bench or out of on the Klu [sic] Klux Klan? ments someone told to this crime, issue, just tion Gibson. Estate “(In on direct examination. We note the "A. No.” (4th "Q. "A. “A. Not “Q. Did “Q. Did “MR. WARNER: "... "MR. CLINE: Note our litigation hearing crime. for the open ed. ^[******] and it’s ^[******] From witness Did Yes, specific Michael 1 McCormick On Evidence 1992). In this court) what you discussions, you 608(b). you record. you of the It has the news that he has heard on highly prejudicial party may ever hear him establish they've got, ever hear him purpose can instances See also Michael on Behalf connection, however, Judge, your jury specifically nothing A matter is considered Sobado, collateral matter. See bring him, nothing impeach no. son ever have discus- objection before of conduct to im- back Smith and present which are state- to do with this fact of conse- the witness express because it's— prosecution's testimony express he to do with extrinsic prosecu- brings § on that excep- 49 at views it is it evidence, race, gender, religion or is a missibility ap- Where relevant impeachment case, not prohib- factor its admission is of relevance ply the same standards probative ited unless the value the evi- admissibility. apply questions to other substantially outweighed dan- dence ger prejudice. of unfair See Olden v. Ken- Appellate give scrutiny courts strict tucky, 488 U.S. 109 S.Ct. injec alleged wrongful involving the to cases (1988); Crockett, L.Ed.2d State v. race, gender, religion criminal tion of (1979). 435, Normally, W.Va. 265 S.E.2d 268 wrongfully these issues are cases. Where probative, in order to be evidence must be usually injected, is the result. See reversal is, 401, Rule “relevant” under that it must (4th N.C., Cir.1978); F.2d 701 Miller v. 583 to an issue in the case more or tend make State, Weddington (Del.Sup. v. 545 A.2d 607 likely less than would be so without the 1988). Bennett, 269, In W.Va. State v. 181 evidence. Other factors that bear on the 322, (1989), 274, this 382 S.E.2d 327 Court probative importance are the value the of attorneys practice making of condemned the of 22 issue and the force the evidence. C. unnecessary presence racial remarks the Graham, Wright K. and & Federal Practice jury: of (1978). case, § Procedure 5214 In this “Although Dr. Perrill to Ar- Mr. referred problem throughout State’s most difficult this once, lady’ only it rieta ‘the colored appeal explaining how this evidence is is should not have been said for the obvious consequence an issue of in the relevant to that be construed reason case. appeal prejudice. to ‘To the issue of raise argues prosecution The that such jury’s to

race is draw the attention to a impeachment evi evidence is relevant as gener- characteristic that the Constitution light dence in of father’s comments on ignore. ally us Even a commands refer- portrayed he direct examination when derogatory may carry that ence is not good, quiet, Bible-reading defendant as a connotations, may impermissible trigger or analyzing man. the contentions of responses in listeners that prejudiced only parties, first observe that the evi speaker might predicted neither have quiet peaceful dence of the defendant’s Smith, nor McFarland v. 611 intended.’ under Rule character was admissible (2d Cir.1979).” F.2d 417 404(a)(1) Rules Virginia the West of Evid of clearly, that Quite evidence the de ence.33 applies prosecuting The same rationale to the “Bible-reading man” and his fendant was a attorney jury’s to ra- drawing the attention religious are not admissible under beliefs cial, by gender, political comments made they simply do not con same because rule way in no defendant relate which pertinent trait. See v. cern a character State crime.32 (1989) Marrs, 180 W.Va. 379 S.E.2d (defendant’s drugs reputation selling not step inqui the first of our Under inadmissible). also W.Va.R.Evid. the evidence See ry, we must determine whether only consequence. issue is this case because an issue 610.34 This is relevant of (1932); Monongahela supporting WestPenn plethora authority Hendricks v. is a 32.There Co., race, religion, 163 S.E. 411 Public Serv. 111 W.Va. such as notion matters (1932); Hively, S.E. kept jury's 108 W.Va. nationality State v. from a consider- should Bez, See v. 129 W.Va. 40 S.E.2d ation. Peck plaintiff made where counsel for the foreign rebut evidence religion prosecution The chose not to defendant's 33. reference "[tjhese being peaceful, quiet which stating or nationality. defendant Court reversed This 404(a)(1), matters, course, permitted Rule under Rule pertinent was were not 404(a)(2), Rule 405. argu- place in "the and had no and/or matters issue at 40 S.E.2d ment." or states: "Evidence beliefs regularity, we 34. Rule 610 have held coun- With uniform religion opinions matters of permitted appeal to of a witness on sel should not be showing purpose for the passions prejudices. generally admissible jury's See Crum credibility Ward, (1961); witness' reason their nature the W.Va. Summerville, impaired or enhanced.” 164 S.E. object vancy. not to The confessed to the kill- prosecution chose Thus, only ing eyewitnesses. must de- inadmissible evidence.35 there were The prosecution should have had seriously cide whether issue that the to consider guilt. Certainly, under permitted been to rebut evidence admissibility our rule. hold the could curative We the defendant read the Bible have little Second, prosecution impact evidence was barred under the on homicide. admissibility prosecution sought go beyond curative and Rule far doctrine of originally offered the defendant. fact read that the defendant the Bible The doctrine of curative admissibili through hardly re- and walked the woods ty relevancy is to be evaluated under our affinity Adolph Hitler, his lated his extent, this rules. To some rule is a restate African-Americans, dislike his chau- general party ment of the rule that when feelings vinistic toward women. subject, objection opens up can be no there opposing party introduces the evidence inquiry The second under Rule 403 is subject. significant the same The most fea objected probity of whether the the to evi- rule, admissibility ture of the curative howev substantially outweighed by its dence er, present party is that it allows a to other prejudice. regard, In this the defendant ar- evidentiary wise inadmissible on an evidence gues that if even the evidence had some point opponent an “opened where has value, probative clearly it is inadmissible un- similarly by introducing door” inadmissible Derr, Rule In der Perhaps, point. evidence on the same 165, 178, 731, 744 451 S.E.2d we admissibility clearest statement of curative although stated “that 401 402 Rules Hanford, came Danielson v. 352 N.W.2d strongly encourage the of admission as much 758, (Minn.App.1984), 761 where the Minne possible, evidence as Rule 403 restricts this court, quoting sota Busch from Busch v. policy by requiring balancing of liberal Construction, Inc., 262 N.W.2d logically to interests determine whether rele- (Minn.1977), stated: legally is vant relevant evidence.” Rule 403 “In to upon weigh order be entitled as a matter of proba- calls the trial court to right present rebutting on an evidence against tive evidence the harm that it (a) evidentiary original confusion, fact: evidence cause—unfair prejudice, mislead- (b) prejudicial, delay, must be inadmissible and ing jury, repetition to—and similarly the rebuttal evidence must be probative exclude the evidence value (c) inadmissible, and “substantially outweighed” rebuttal evidence by the harm. evidentiary must be limited to the same original

fact as inadmissible evi- Thus, perform the Rule 403 (Footnote omitted). dence.”36 balance, probity we must assess the of turn, prosecution evidence, which,, depends We believe faces two hurdles on First, in this strategy case. was the evidence offered relation pre its evidence and by prejudicial? general. the defendant This case was sented at trial in The mission any reading not one in which Bible rele- had Rule is to eliminate the obvious instance Although recognize scope question we that 36. Professor McCormick addressed the lie extent of cross-examination within the discre- admissibility trig- to how the curative rule is court, important tion of the trial to underscore the that no we believe it is gered: "If the ... [irrelevant] evidence is so principle evidentiary law prejudice-arousing objection that an or motion party right has a on cross-examination harm, strike cannot have erased the then incompetent offer irrelevant evidence. See adversary that seems should be entitled to U.S., (4th Cir.1981). Doe v. 666 F.2d 43 right.” answer it as of McCormick Evidence Supreme United States Court has noted that even (4th 1992). Certainly, any preju- § 57 at 84 ed. right may, the appropriate to cross-examine witnesses in an flowing testimony dice from father’s could case, "bow to accommodate other by been cured motion to strike and legitimate process.” interests in the criminal trial disregard. instruction to Mississippi, Chambers v. 410 U.S. 1038, 1046, S.Ct. 35 L.Ed.2d legiti- We believe Rule 403 is one those "other mate interests.” pas- dangerous. Even if we concede that this because its will convict in which impeach- on the rather than motivated evidence had some relevance are aroused sions probative issue, prejudice evi- persuasive force of ment the risk of undue way, the enough another concern alone Stated risk of confusion are dence. tendency pronounced setting evidence verdict. justify aside this reasons, to jury, for emotional often lead thus far Our discussion has for reasons to convict a defendant desire prosecution’s need touched on for this guilt. In than the United other defendant’s closely question and the related evidence (4th Ham, F.2d States Derr, In available. note alternatives Cir.1993), the court stated: ‘ at prejudice as “a have defined undue “We important “[o]ne stated that factor under risk the emotions of the genuine prosecutor’s 403 is the need for the Rule behavior, and be excited to irrational will Here, proffered evidence.” discussed disproportionate risk above, preju the evidence of the defendant’s evi- probative value offered only unnecessary, was not but was not dices ’... dence.” helpful very probative from a value stand “... When defendant’s point. applying In it is pertinent Rule of these activities is involvement several litigant way whether a has some alternative jury, the risk of unfair presented that it to deal with the evidence claims case, prejudice compounded. such a risk need to rebut would involve lesser jurors fear that will convict a defendant Wright & prejudice confusion. jurors’ or on the disdain their belief based Graham, cases). (citing § supra, Obvi prior make the defendant’s bad acts that ously, do not other means the we know what Furthermore, likely. are guilt more prosecution prove had to the defendant was especially prejudice in a trial sensitive person peaceful a Bible reader or a not un- where defendants are members of an us, important to howev character. What is omitted). (Citations religion.” popular er, that the trial court failed to ascertain is as- prejudice that the trial court must The permit to this evidence before alternatives prejudice danger “lies in is the that sess prosecution it. What we do ting the to use jury misuse the evidence.” U.S. v. that this arose because the is issue know (D.C.Cir.1973). Brown, 490 F.2d clearly object to prosecution did not some in (Emphasis original).37 the trial court evidence. Nor did irrelevant only is Prejudice is threat. There not jury advising it an instruction to the consider confusing misleading potential for also a disregard all evidence of defendant Quite prejudice, from there jury. apart rebut prosecution claimed needed that emphasis on the defen- a risk that undue is strengthen our determi ting. These failures racial, political gender, views dant’s and/or in this case. nation to declare error jury’s attention from wheth- could direct justice in To achieve substantial the defendant inflicted fatal wound er courts, a judge permit trial must not “horseplay” or our of the whether because or on jury’s finding to affected decided a threat to believed the victim was defendant gender of racial or bias and philosophy way' or of life. account the defendant’s or political belief unpopular like mat- holds an might seem a minor one This deflection signifi If to have a opinion. Rule 403 is ever easy guard against instructions ter courts, it concerned, but, in our trial and effective role when cant far as confusion is so this admission of preju- used bar the potential for unfair must be coupled with its See, v. e.g., U.S. dice, overwhelmingly highly prejudicial evidence. this evidence becomes horror, provokes sympathies, its sense of unfairly prejudicial "an arouses it has 37. Evidence punish, or otherwise cause tendency suggest im- instinct to decision on an its undue something basis, than necessarily, on other commonly, though jury to base its decision proper not Note, J. propositions in the case.” 1 Advisory the established one.” Committee’s an emotional stated, Berger, Evidence Succinctly & M. Weinstein's is Weinstein evidence Fed.R.Evid. 403. (1978). 403-17 "appeals jury’s at 403-15 to unfairly prejudicial ¶403[03] if it Cir.1995) (reversible (9th Kallin, requires 50 F.3d error harmless doctrine light under Rule 403 to allow witness to Court to error consider error Mexicans). whole, testify to defendant’s dislike for record as a but the standard review process upon determining not While due does confer whether an error harmless right depends to an criminal error-free whether the error constitu- trial, Hasting, v. see U.S. U.S. tional nonconstitutional. also It is neces- (1983),38 sary unques- distinguish 76 L.Ed.2d 96 it S.Ct. us to between error guarantees right resulting tionably a fundamental to a from the evidence and admission of U.S., fair trial. See Lutwak v. 344 U.S. trial involving other error. As to error not (1953). evidence, 97 L.Ed. 593 73 S.Ct. We em- the erroneous admission of we have it phasize guarantee is a fundamental that held nonconstitutional error harmless probable the Due highly under Process Clause of 10 when Section the error did not Virginia Hobbs, III of West judgment. Article Constitu- contribute to the State race, (1987) religion, gen- tion these (prose- 358 S.E.2d 212 factors — der, political ideology prohibited by although improper cutor’s remarks must be —when play any system shall sufficiently prejudicial reversal); our laws not role in our to warrant justice. Brewster, of criminal hand, dealing On other when evidence, wrongful with the admission of 3. Harmless Error Standard stated appropriate test for articulated this Court39 is Prosecutorial misconduct does not barmlessness say assurance, whether we can with fair after always granting warrant the of a mistrial or stripping the erroneous from Virginia new trial. The rule West since whole, that remaining evidence was inde- time immemorial has been that a conviction pendently support sufficient to the verdict improper will be set aside because of substantially swayed was not prosecution remarks and conduct the error. presence clearly which of a do not prejudice a defendant or result in manifest Beckett,

injustice. 817, State v. determining 172 W.Va. In prejudice, we consid (1983); Buck, 310 883 scope objectionable S.E.2d State v. 170 the er of the comments 428, (1982). Similarly, 294 S.E.2d 281 relationship proceed and their to the entire Supreme States ings, United Court has ac any ameliorative effect of curative knowledged given reality “the given instruction or that could been fallibility participants, for, human of the given there but was strength not asked and the error-free, can thing perfect be no such as an supporting the defendant’s trial, and that McDougal McCammon, the Constitution does not conviction. See v. guarantee Hasting, such a trial.” supra. U.S. v. 461 As Supreme the United States Court 508-09, 103 1980, U.S. at at explained S.Ct. 76 L.Ed.2d “a criminal conviction not to be Thus, Supreme at lightly 106. Court has held prosecu overturned on the basis of appellate that an alone, court should not its standing exercise tor’s comments [or conduct] “[supervisory power to reverse a conviction for the statements or conduct must be ... when the error which it is addressed Young, viewed context[.]” U.S. v. 470 since, definition, 1, 11, 105 harmless 1038, 1044, 1, the convic U.S. S.Ct. 84 L.Ed.2d 9-10, remand, tion would have 514, been obtained notwithstand 758 F.2d on reconsid eration, ing (1985) Hasting, the asserted error.” 461 U.S. 767 737 (finding F.2d harm 506, 1979, at 103 S.Ct. at 76 at prosecutor L.Ed.2d 104. error less where the made an U.S., Atkins, 502, Hasting denied Cert. sub nom. v. 469 U.S. 39. See State v. 1218, 1199, (1985); 105 denied, S.Ct. 84 L.Ed.2d 904, 343 55 cert. 445 U.S. 100 S.Ct. U.S., 1218, 1199, v. Williams 469 U.S. 105 S.Ct. 1081, (1980). 63 320 L.Ed.2d U.S., (1985); 84 L.Ed.2d 343 Anderson v. 469 1218, 1199, U.S. 105 S.Ct. 84 343 L.Ed.2d (1985); U.S., 1218, Stewart v. 469 U.S. 105 S.Ct. 1200, (1985). 84 L.Ed.2d 343 primary improper that the defendant was harmless. The in this statement issue case job”). urged innocence, guilty guilt “do its was not one or but was the of homicide which the defendant Notwithstanding the above discus ultimately would To convicted. influence sion, obligated this Court is to see that the decision, jury’s prose- evaluation and trial guarantee of a fair under our Constitu permitted cution suggest Thus, only is a tion honored. where there conviction less than first murder high probability that an error did not con permit would the defendant to be released in tribute to the criminal conviction will racist, years five and the defendant was “High probability” requires affirm. that this sexist, Nazi, sympathizer.41 and a KKK possess Court a “sure conviction that compel These setting errors combination prejudice error did not U.S. defendant.” verdict, aside the and we do not hesitate to Jannotti, (3rd Cir.), F.2d n. 2 fact, grounds do so on these In alone. it is denied, cert. U.S. S.Ct. imagine any difficult to evidence that would Indeed, L.Ed.2d 182 the United powerful impact upon jury have a more Supreme recently States Court stated “ likely which be more deter it would from ‘grave regarding where there is doubt’ fairly finding guilty of a lesser affecting harmlessness errors substantial offense. rights,” required. reversal O’Neal — McAninch, -, -, U.S. 115 S.Ct. However, there is more. On 992, 997, 130 (1995) (“grave L.Ed.2d cross-examination, prosecuting attorney about harmlessness of the to be doubt” error he, if upon learning asked the defendant defendant).40 resolved favor of There death, replied police the victim’s offi fore, we will reverse conclude that bad, buddy. you cer: too Do “That’s think remarks, prosecutor’s conduct and taken objected it’ll snow?” Defense be counsel whole, prejudiced context as a of the trial alleged cause the statement was not dis the defendant. Furthermore, during discovery. closed ease, “grave attorney In this we have prosecuting doubt” offered no factual basis question as to whether the errors can be considered trial.42 The defendant 41. The from the earlier case of States, would be to approval dant. The ment ror, the ing tial cannot not be the error erroneous action from know the racial would be viewed or had but is sure cannot stand.” or if one ed stand how such support "It does not take much jurors "If, judgment rights O’Neal, all that it is 328 U.S. only purpose was not when all that the error say, L.Ed. merely was an African-American. itself had impossible is left in error. were not affected. The prejudice result, very with fair following happened should substantially swayed by is said whether 750, 764-65, Supreme slight It composition apart grave substantial grossly advises that at this evidence could serve to conclude that substan- 1566-67 did stand[.] assurance, rather, the test of harmless error effect, jury against without imagination from the not influence the there doubt, Kotteakos v. whole, jury. done, Court biased comments even (1946): influence. the ... 66 S.Ct. was We need not stripping that the after phase quoted inquiry so, verdict least But [court] conviction enough to under jury, ponder- United one of if one affect- defen- judg- If jury, can- the ... er- so, 42.A recess was held at the close of the defen- the dant’s cross-examination. Out of such nearly back right bad. Do ment that And I think it was ing son had him, examined same time. foundation more U.S. v. like that. disclosed 1986). "Isn’t that jury, “MR. WARNER: Your "MR. "THE COURT: I think he the time that he person blatantly ‘Didn't before clear, ^[*] all citizens find themselves Ebens, defense counsel moved for a mistrial: WARNER: Now that died. you to us. my too he had made police claimed to have uttered them." we you say ^[*] that statement was If I'm think it will client on an bad”,' racist fact for that statement 800 F.2d The Prosecutor closed, I don't know if there is cruiser, ^[*] terribly prejudicial at the apparently remarks wrong or that something the Prosecutor cross ^[*] snow’, while Honor, immediately alleged said, type my thoughts and resentful cross examined the ^[*] knew the sitting 'Isn’t that too of statement. never, first of presence repelled by prior something (6th of those ^[*] follow- in the at all. effect, state- ever per- Cir. any all, are trial record of a criminal ‘“Where the of this state- nondisclosure argues the State’s numer- Virgi- effect of ment, Rule 16 of the West that the cumulative shows pursuant Procedure, preju- during pre- was the trial nia Rules of Criminal ous errors committed hampered preparation it receiving because a fair dicial the defendant from vented Syllabus Point of his case. presentation aside, trial, set his conviction should be Weaver, 274, 382 181 W.Va. of State v. though any of such errors stand- even one (1989), states: S.E.2d Syl. harmless error.’ ing alone would be Smith, grants pretrial trial court pt. v. W.Va. ‘“When State prosecution requiring (1972).” discovery motion S.E.2d non- possession, in its evidence to disclose to its prosecution is fatal by the

disclosure III. prejudi- nondisclosure is where such case prejudicial The nondisclosure cial. CONCLUSION surprised on a mate- defense is where the failure to make and where the rial issue case, voyage complete. our In this preparation hampers the the disclosure navigated waters” of burden “Having the defendant’s case.’ presentation of review, guidance for new proof, standards Grimm, Syllabus Point State cases, prosecutorial instruction homicide (1980).” 547, 270 S.E.2d 173 error, misconduct, harmless “we now Myers, supra. The defendant See State port judgment and this case into the steer malice was critical at the issue of contends hauled.”44 For cargo we have unload very alleged statement was trial and the reasons, compelled to foregoing we are regardless proving a “heart damaging of the evidence discussed hold the admission duty,” jury was instructed on as the social failure to dis- prosecution’s and the above We agree with the defendant.43 malice. We alleged oral of the defen- close the statement questioning was this line of conclude cross-examination violated dant before extremely inappropriate. There seems to right to a fair trial. constitutional defendant’s little, any, justification for this been merely apply princi- doing, settled so other than to inflame the questioning line of the facts of this case.45 ples of law to Although through insinuation. to reverse on this error would be hesitant foregoing, judgment of on the Based alone, errors coupled with the other when County re- Kanawha Court of Circuit above, to reverse is our decision discussed versed, for a new and this case is remanded Syllabus v. Walk- Point 5 fortified. trial. er, 661, 425 S.E.2d Reversed and remanded. states: record, reading appears time the first And I From points, the can correct me. Prosecutor during a mistrial based on that. cross- would move for this statement was disclosed understood, Judge, least, I very prosecution "MR. MORRIS: At the examination. question. question was more or less a rebuttal approached revealed the bench and should have prove by it. We are not able to He denied using init the existence of the statement before anything denies. he extraneous cross-examination of defendant. pretty much— That’s proper I think it was cross “THE COURT: Steamship Clerks Union Local 44. E.E.O.C. v. will reflect what is in examination. The record 1066, 594, (1st Cir.1995). 48 F.3d 610 transcript. for a directed verdict the Motion your objection note [mistrial] is denied. I’ll it should be. Such ... will serve 45. "This is as exception.” and represen- prosecutor preclude questions justify the as 'the for which trust in Trial courts should good questioner sovereignty and ... cannot show a factual ... whose interest the tative ... of a Banjoman, generally State v. 178 faith basis. See win a prosecution is not that it shall in a criminal case, ” 311, (1987). Manifestly, W.Va. 359 S.E.2d 331 justice Kyles v. be done.' that shall but inquiries by prosecutor rumors 1555, as to - mere may -, -, Whitley, 115 S.Ct. U.S. highly prejudicial though even answered be 1568, 490, (1995), quoting Ber- 509 L.Ed.2d 131 negative. in the 629, 633, U.S., 78, 88, 79 ger U.S. 55 S.Ct. v. 295 (1935). L.Ed. 1321 43.Actually, late disclo- this is not real case of sure; meaningful no disclosure. it is case of

687 RECHT, JJ., majority’s interpretation may did ambigu- BROTHERTON and not create clarified, adding participate. ity, arguably con- tradictory factors to the law enunciated MILLER, Justice, FOX, Retired and instruction, majority in approved Judge, sitting by temporary assignment. language well as the in the arid Hatfield majority upholds. Dodds cases that the See WORKMAN, J., concurs and reserves the Hatfield, 169 W.Va. at S.E.2d at 410 right concurring opinion. to file a 7; Dodds, see n. also State v. 54 W.Va. 297-98, WORKMAN, 46 S.E. Justice, concurring: instance, Hatfield, For nowhere which holding I majority, concur with instruction, upholds the is the notion separate opinion write Clifford but reiterate “appreciable” that amount of time must period required the duration of that the time lapse premeditation order for to occur. premeditation arbitrarily for cannot be fixed. suggestion Neither is such a evident from the approved by Neither the instruction instruction, majority’s new derived from Hat- majority, past created from our decisions in Clifford, v. field: State S.E. 981 “ ‘ (1906) “The that Hatfield, and instructed murder in State W.Va. (1982) (as intentional, degree first of an amplified by 286 S.E.2d 402 consists majority premeditated killing deliberate and opinion), nor the new which instruction killing means that approved majority opinion1 peri- affix is done after a prior od of time for specific pass which consideration. The amount of time must period duration that cannot he between the formation of intent to kill arbi- trarily in which killing first The time to form a actual murder fixed. premeditated design deliberate and majority’s recognition Given varies cases. that as the necessarily temperaments people minds and concepts incapable these are differ, being formulaically, according I reduced am circumstances concerned they may Any in which placed. inter- language opinion may that some of the forming val time indirectly suggest appreciable between the that some length intent to kill and the execution that pass premedita- of time must before intent, which is duration can occur. of sufficient tion fully accused to be conscious of what agree majority I with the its conclusion intended, support he is sufficient con- Schrader, our that decision in ’” viction for first murder.” (1982), incorrectly at (quoting 169 W.Va. at .2d S.E equated premeditation with intent kill. Blackmar, Jury Devitt Federal Prac- However, point majori- I must out 214). 41.03, § tice Instructions Final- ty’s suggested defining premedita- basis for syllabus majority ly, point even five of the requiring terms of tion deliberation in only “[ajlthough premeditation provides “appreciable elapse between some time by any and deliberation measured are not killing” intent to kill and and “some time, particular period of there must be some period between the formation the intent to period between the formation intent to killing kill and the actual which indicates that killing....” kill the actual killing by prior design” calculation and necessary suggesting pre- Accordingly, create confusion in it is to make abun- dantly deeply thoughtful premeditation sufficiently clear that meditation must be the “[a]ny enterprise typically long associated with the demonstrated as interval of time[, is, contemplation.3 no matter that interval words reflection2 and how short essentially by adoption "contemplate” is defined 1. The new instruction is 3.The word Web- previously offered instruction Court ster's as "to view with continued or consider in note 7 of 169 W.Va. at See Hatfield. attention." S.E.2d at 410 n. 7. 2. The word "reflect" defined Webster’s as calmly." quietly “to think forming of intent to

lapses] between of that See intent[.]”

kill the execution at 410 at 286 S.E.2d

Hatfield, 169 W.Va. Blackmar, Federal

(quoting Devitt 41.03, §

Jury Instructions Practice and

214). HILL, Petitioner, ex

STATE rel. Omarri Administrator,

Larry PARSONS, F. South Jail, Regional and Honorable

Central Jr., Judge Zakaib, of the Circuit

Paul County, Respondents.

Court of Kanawha

No. 22881.

Supreme Appeals Court of Virginia.

West

Submitted June July

Decided notes plated in a statute such as ours can imme- “But, as point LaFave & also Scott out: precede Hence, diately killing. act of finally ‘The intention only be formed really by what is meant language ‘will- prior premeditation conclusion of ful, premeditated’ deliberate and in W.Va. 200-01, deliberation.’ Id.” Code, 61-2-1 killing [192S] is that the be S.E.2d 286 at 409. 6, intentional.” W.Va. at Although approved in added). (Emphasis at 75. struction from only is that “it neces Clifford language emphasized supplied above sary that the intention kill to should have legal authority and basis for State’s Instruc- into come existence for the first time at the tion 10 and Nos. killing” Hatfield, time Justice Miller explained this merely instruction many jurisdictions intend While do favor not convey ed to possible the notion is that it degree distinction between first and second premeditation deliberation and precede murder,22 given the separation doctrine of many 22. The Model Penal way Code and of the mod- such a the formation of the intent to kill em state criminal codes killing abolish first and impul- and the can result from successive degree Schrader, ses, second (intent murder distinction in supra equals premedita- favor of see formula), meaningful classifications based grants on more crite- complete tion discretion Interestingly, defining premeditation ria. degree guilty to find more ruthless killers of first notion of required, our Schrader’s judicial preroga- te is not do not have powers, we momentary premeditation and between first instantaneous the distinction tive to abolish satisfactory proof and rewrite the degree murder is not and second deliberation unless, Virginia; for West In Bullock v. United of homicide murder. law first course, this classification States, to declare we were 122 F.2d App.D.C. Leg- process denied, and force (1941), a violation of due cert. 317 U.S. stroke the law—a bold to rewrite islature the court dis L.Ed. 507 S.Ct. hand, the other refuse to do. On that we appreciable the need to have some cussed parameters of our current within the believe to kill and the elapse time between the intent definition homicide statutes the Schrader killing: confusing, is premeditation and deliberation speak premeditation and delibera- “To meaningless. To allow the State if not instantaneous, or take tion which are which by only deliberation prove premeditation and time, a contradiction appreciable no came “into exis- showing the intention require- deprives statutory terms. It such time at the time of for the first tence meaning destroys the stat- ment of all the distinction killing” completely eliminates first and second utory distinction between Hence, degrees of murder. the two between At common law there degree murder. attempt compelled in this case we feel If ac- degrees of murder. were no meaningful by making dichotomy make the overwhelming provocation to no cused had common to our homicide some modifications kill, car- equally guilty whether he he was law. intent at once ried out his murderous and deliberation Premeditation ours, like reflection. Statutes after mature careful, in a but still be defined more should premedi- distinguish deliberate 'which juries guidance and way give both general murder, reflect a from other tated murder Although premedita discretion. reasonable an intent to who meditates belief that one not are measured tion and deliberation deliberately executes it is kill and then time, must particular period of there culpable or less ca- dangerous, more more formation of the period between the some than one who kills pable of reformation killing, which kill the actual intent prospect of impulse; or that sudden killing by prior calculation indicates likely more to deter penalty is the death dissenting design. suggested As impulsive from deliberate than men from State, Tenn.Crim.App. opinion in Green guilty killer The deliberate murder. (1970): “True, S.W.2d murder; impulsive killer is first exist necessary prove premeditation charge was quoted part of the not. The period of time. But it is any definite ed for therefore erroneous.” This necessary prove that it did exist.” Thus, that the must be some there opportunity for must be an means there weighed his deci- considered to kill after on the intention some reflection establish the State to to kill order for sion purpose kill The accused must it is formed. under our and deliberation premeditation kill. Al contemplating the intent to ly after

Case Details

Case Name: State v. Guthrie

Court Name: West Virginia Supreme Court

Date Published: Jul 21, 1995

Citation: 461 S.E.2d 163

Docket Number: 22710

Court Abbreviation: W. Va.