State v. Davis

¶1dissenting:

¶2(Filed June 8, 2007)

¶3I would affirm the judgment of the trial court below because the defendant waived all appealable errors, and the alleged error of which he now complains to this Court simply does not rise to the level of plain error as it has been previously articulated by this Court.

¶4The defendant challenges the jury instructions and supplemental jury instructions given by the trial judge alleging that they were ambiguous and failed to properly state all the elements of the offense of second-degree murder of which the defendant was convicted. The record before us shows that the defendant’s trial counsel failed to raise any contemporaneous objections at trial to alleged errors concerning jury instructions and thus waived his client’s right to raise these issues on appeal except by way of plain error or ineffective assistance of counsel. As noted by the majority, “in West Virginia criminal cases[,] the sole bases for attacking an unobjected to jury charge are plain error and/or ineffective assistance of counsel.” State v. Miller, 194 W.Va. 3, 17 n. 23, 459 S.E.2d 114, 128 n. 23 (1995).1

¶5The majority properly finds that the trial court’s initial charge to the jury correctly stated the elements of second-degree murder because of the interchangeability of the terms “malice” and “intent” under West Virginia law. See State v. Hatfield, 169 W.Va. 191, 198, 286 S.E.2d 402, 407 (1982) (indicating that “in regard to first degree murder, the term ‘malice’ is often used as a substitute for ‘specific intent to kill’ or ‘an intentional killing.’ ” (citations omitted)). Also, the majority correctly cites our precedent in State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995), as the standard for reviewing jury instructions on appeal. Under the Guthne standard,

A trial court’s instructions to the jury must be a correct statement of the law and supported by the evidence. Jury instructions are reviewed by determining whether the charge, reviewed as a whole, sufficiently instructed the jury so they understood the issues involved and were not mislead by the law. A jury instruction cannot be dissected on appeal; instead, the entire instruction is looked at when determining its accuracy. A trial court, therefore, has broad discretion in formulating its charge to the jury, so long as the charge accurately reflects the law. Deference is given to a trial court’s discretion concerning the specific wording of the instruction, and the precise extent and character of any specific instruction will be reviewed only for an abuse of discretion.

¶6Syllabus Point 4, Guthrie, supra.Unfortunately, the majority then abandons the Guthriestandard in favor of one in which this Court selectively dissects a trial court’s jury instructions, placing special weight on the trial court’s last words to the jury. In support of this “last words” standard, the majority resorts to reliance on an obscure New York case, People v. Simpkins, 174 A.D.2d 341, 571 N.Y.S.2d 1 (1991), that has been largely ignored by other courts and is completely at odds with Guthrie.

¶7According to our well-settled law, “[t]o trigger application of the ‘plain error’ doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and *599(4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings.” Syllabus Point 7, Miller, supra.Further,

An unpreserved error is deemed plain and affects substantial rights only if the reviewing court finds the lower court skewed the fundamental fairness or basic integrity of the proceedings in some major respect. In clear terms, the plain error rule should be exercised only to avoid a miscarriage of justice. The discretionary authority of this Court invoked by lesser errors should be exercised sparingly and should be reserved for the correction of those few errors that seriously affect the fairness, integrity, or public reputation of the judicial proceedings.

¶8Syllabus Point 7, State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996). When this law is applied to the instant facts, it is clear that plain error is not present.

¶9Certainly, the trial court could have better responded to the jury’s inquiry by more fully addressing intent as an element of second-degree murder. I do not see, however, in light of the fact that the jury had already been properly instructed, how the trial court’s failure to do so seriously affected the fairness, integrity, or public reputation of the judicial proceedings or caused a miscarriage of justice.

¶10Regrettably, the majority’s decision will have a greater negative impact than merely reversing the conviction of a defendant whom the jury fairly convicted of second-degree murder. I am convinced that the majority’s retreat from our settled law in Guthrie, in favor of one in which this Court carefully parses with a fine tooth comb each word of a trial court’s jury instruction, will have several negative consequences. First, it will needlessly complicate the task of trial judges as they labor over each individual word in a jury instruction, fearful of this Court’s hyper-technical review. Second, it will make trial judges more reluctant to address specific inquiries from juries by restating jury instructions in less than their entirety. Finally, it will result in more unnecessary reversals of valid criminal convictions.

¶11Accordingly, for the reasons stated ábove, I dissent.

¶13dissenting:

¶14(Filed July 25, 2007)

¶15Yet again, the Majority of this Court has chosen to usurp the discretion bestowed upon a trial court by our prior jurisprudence and to substitute its own judgment to obtain a predetermined result. In so doing, the Majority once more looks to foreign jurisdictions to create the supposed precedential support upon which it now relies. Not only is such foreign law inapplicable to the facts of this case, the Majority’s result is plainly contrary to the established law of this State. Being unable to countenance this contrivance in our law, I dissent.

¶16I agree with the dissenting opinion filed herein by Justice Maynard — the plain error doctrine was improperly invoked by the Majority in this matter. Of the West Virginia cases relied upon by the Majority in support of its invocation of the plain error doctrine, only three involved jury instructions and all involved a misstatement of law in the initial instructions. See State v. Wyatt, 198 W.Va. 530, 538-9, 482 S.E.2d 147, 155-6 (1996) (finding plain error in initial instruction which misstated the applicable law, including applicable elements of the offense charged, and that error was compounded upon rereading of a portion of the instructions in response to jury inquiry); State v. Miller, 184 W.Va. 367, 400 S.E.2d 611 (1990)(finding failure to instruct jury as to all essential elements of offense charged constitutes reversible error); State v. Barker, 176 W.Va. 553, 557-8, 346 S.E.2d 344, 349-50 (1986) (per curiam) (finding failure to instruct jury on essential elements of offense constituted plain error). This case does not involve a misstatement of law in the initial instructions provided to the jury. It is undisputed that the initial jury charge was both correct and proper.1 Rather, the issue herein is a chal*600lenge to the trial court’s response to a specific jury question, a response which did not constitute a complete recharge of the jury. As recognized in Davis v. State, 278 Ga.App. 628, 629 S.E.2d 537, 539 (2006), a case relied upon by the Majority herein, “[w]here a jury, which has been fully and properly charged, requests a recharge on a specific question, it is within the discretion of the trial court whether to recharge entirely or to recharge only on the specific question.”

¶17The Majority cites to no West Virginia ease finding that a trial court abused its discretion in response to a jury question. Instead, the Majority looks to case law from foreign jurisdictions to support its decision in this matter.2 Careful examination of the cases cited in the Majority opinion, however, fails to reveal the necessary support implied by the Majority for the instant decision. Indeed, several of the eases relied upon by the Majority involved inaccurate or misleading instructions not — as in the instant matter, the omission of a definition not legally required to be included in the instruction at issue.

¶18The error addressed in Commonwealth v. Lennon, 399 Mass. 443, 504 N.E.2d 1051 (1987), involved a misstatement of law in the initial jury charge, one that omitted premeditation, an essential element of the crime charged, and relieved the Commonwealth of its duty to prove guilt beyond a reasonable doubt. In the instant matter, the initial jury charge was correct and fully advised the jury of the element of the crime and the State’s burden of proof. Contrary to the Majority’s suggestion, the trial court’s response to the jury question did not relieve the State of its burden, requiring reversal as indicated by Lennon. Likewise, in State v. Smith, 304 S.C. 129, 403 S.E.2d 162 (Ct.App.1991), the trial court provided an inaccurate legal response to a jury question regarding the provocation legally sufficient to qualify defendant’s action as voluntary manslaughter where the defense asserted was defense of another. In responding to the jury question, the trial court reinstructed the jury on voluntary manslaughter with the original instruction and gave two examples of provocation. Smith, 403 S.E.2d at 163. However, the examples given involved only assault upon oneself as provocation, not assault upon another, which under the applicable law could qualify as sufficient provocation. Id.The appellate court found that the trial court’s response did not answer the jury’s well-framed, specific question, and further found that the trial court’s answer misled the jury as to the law because it “may very well have caused the jury to think that sufficient provocation could only arise out of an assault on the defendant himself.” Id.

¶19Similarly, the Majority’s reliance upon Brown v. State, 610 So.2d 579 (Fla.Dist.Ct.App.1992), is misplaced because the response to the jury question in Brownwas not in compliance with Florida law. In Brown, the trial court was presented with a jury request for re-instruction on the manslaughter and second-degree murder charges. Brown, 610 So.2d at 580. In response, the trial court read the definitions of both offenses, but omitted the definitions of excusable homicide and justifiable homicide from the manslaughter definition. Id. at 580-1. The court on appeal found such failure constituted reversible error because a unanimous Florida Supreme Court had previously held both definitions must be included within the definition of manslaughter to provide a complete manslaughter charge. Id. at 581.

¶20Arguably similar to the issue presented herein is the case of People v. Tenner, 157 Ill.2d 341, 193 Ill.Dec. 105, 626 N.E.2d 138 (1994), which involved a trial court’s response to a jury question as to whether intent was *601necessary to convict the defendant of attempted first degree murder. The trial court's response was to inform the jury that the attempt instruction applies “in conjunction with the other instructions.” Tenner, 193 Ill.Dec. 105, 626 N.E.2d at 155. Because the first degree murder instruction previously provided to the jury included felony murder, an offense not requiring intent, the court on appeal found the trial court erred in its response to the jury question by allowing the jury to convict without “necessarily finding” the required element of intent necessary for an attempted first degree murder conviction. Id. Tenner must therefore be distinguished from this case because the trial court’s response below did not provide the potential for conviction based upon an inapplicable legal theory.

¶21Finally, I must take issue with the Majority’s reliance upon Smith v. United States, 549 A.2d 1119 (D.C.Ct.App.1988), as such reliance implies we are dealing with a constitutional matter herein. We are not. At issue in Smith v. United States was an argument that the tidal court’s ambiguous response to a jury question regarding whether they may consider certain evidence relative to two “drug possession with intent to distribute” charges violated the defendant’s Sixth Amendment right to a unanimous jury where the jury came back “immediately” after receiving the trial court’s response. In response to the question as to whether certain evidence could be used to support the “possession” charges, the trial court stated that the evidence applied to the “distribution” charges and could also apply to the “possession” charges or whatever the jury deemed relevant. Smith v. United States, 549 A.2d at 1122. This response, however, was inconsistent with a prior answer to a jury question and with the State’s theory of the case. Id. at 1123. In analyzing the issue presented, the court noted

[t]he Sixth Amendment and Super.Ct.Crim.R. 31(a) require jurors to be in substantial agreement as to just what a defendant did as a step preliminary to determining whether that defendant is guilty of the crime charged. Consequently, when one charge encompasses separate incidents, the trial judge must instruct the jury, that if a guilty verdict is returned, the jurors must be unanimous as to which incident or incidents they find the defendant guilty.

¶22Id. at 1121 (internal citations and quotations omitted). The court in Smith found it clear that the jury was confused as to what evidence could be used to support the possession charges and that the verdict rendered immediately after the incorrect instruction constituted plain error with respect to the constitutional right that the jury be unanimous in determining the charges for which it found the defendant guilty. Id. at 1123. Smith is inapposite to the case before us because the instant case involves a definitional omission from a supplemental instruction, not an incorrect or misleading instruction regarding what evidence may be considered resulting in a potential Sixth Amendment violation.

¶23In the instant matter, the trial court re-instructed the jury as to the elements of second degree murder and manslaughter, the offenses at issue in the jury question. The trial court did not omit any element of the offenses charged. Nor did the trial court misstate the law. Instead, the trial court has been faulted by the Appellant and the Majority for exercising its discretion to not further define terms setting forth the elements of the offenses charged, terms which were defined in the original charge.

¶24The Majority recognizes that a challenge to a trial court’s response to a jury question is reviewed under an abuse of discretion standard. However, instead of applying this standard, the Majority substitutes its judgment for the sound discretion of the trial court. While I may have preferred that the trial court included the definition of malice when responding to the jury’s question regarding intent herein, I will not substitute my judgment for that of the trial court. The trial court exercised its recognized discretion in determining the appropriate response to the jury’s question. Absent a response which misstates the law, clearly omits a required element of proof or is simply non-responsive, the trial court is in the best position to determine the appropriate re*602sponse to a jury question during a trial. That is precisely why the proper standard of review in an appeal such as this is whether the trial court abused its discretion. It did not. Accordingly, because standards of review should never be disregarded because of a whim, caprice or the improper desire of this Court to take on the mantle (and concurrent responsibilities) of that of a trial court, I dissent.