461 S.E.2d 163 (W. Va. 1995)
The function of an appellate court when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, is sufficient to convince a reasonable person of the defendant's guilt beyond a reasonable doubt. Thus, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt.
There should be only one standard of proof in criminal cases and that is proof beyond a reasonable doubt. Once a proper instruction is given advising the jury as to the State's heavy burden under the guilt beyond a reasonable doubt standard, an additional instruction on circumstantial evidence is no longer required even if the State relies wholly on circumstantial evidence.
A criminal defendant challenging the sufficiency of the evidence to support a conviction takes on a heavy burden. An appellate court must review all the evidence, whether direct or circumstantial, in the light most favorable to the prosecution and must credit all inferences and credibility assessments that the jury might have drawn in favor of the prosecution. The evidence need not be inconsistent with every conclusion save that of guilt so long as the jury can find guilt beyond a reasonable doubt. Credibility determinations are for a jury and not an appellate court. Finally, a jury verdict should be set aside only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt. To the extent that our prior cases are inconsistent, they are expressly overruled.
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 misled 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.
Although premeditation and deliberation are not measured by any particular period of time, there must be some period between the formation of the intent to kill and the actual killing, which indicates the killing is by prior calculation and design. This means there must be an opportunity for some reflection on the intention to kill after it is formed.
In criminal cases where the State seeks a conviction of first degree murder based on premeditation and deliberation, a trial court should instruct the jury that murder in the first degree consists of an intentional, deliberate, and premeditated killing which means that the killing is done after a period of time for prior consideration. The duration of that period cannot be arbitrarily fixed. The time in which to form a deliberate and premeditated design varies as the minds and temperaments of people differ and according to the circumstances in which they may be placed. Any interval of time between the forming of the intent to kill and the execution of that intent, which is of sufficient duration for the accused to be fully conscious of what he intended, is sufficient to support a conviction for first degree murder. To the extent that State v. Schrader, 172 W.Va. 1, 302 S.E.2d 70 (1982), is inconsistent with our holding today, it is expressly overruled.
Outside the context of cases involving a recommendation of mercy, it is improper for either party to refer to the sentencing possibilities of the trial court should certain verdicts be found or to refer to the ability of the trial court to place a defendant on probation.
The jury's sole function in a criminal case is to pass on whether a defendant is guilty as charged based on the evidence presented at trial and the law as given by the jury instructions. The applicable punishments for the lesser-included offenses are not elements of the crime; therefore, the question of what punishment a defendant could receive if convicted is not a proper matter for closing argument. To the extent the decision in State v. Myers, 159 W.Va. 353, 222 S.E.2d 300 (1976), is inconsistent with our holding, it is expressly overruled.
Appellate courts give strict scrutiny to cases involving the alleged wrongful injection of race, gender, or religion in criminal cases. Where these issues are wrongfully injected, reversal is usually the result. Where race, gender, or religion is a relevant factor in the case, its admission is not prohibited unless the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.
The curative admissibility rule allows a party to present otherwise inadmissible evidence on an evidentiary point where an opponent has 'opened the door' by introducing similarly inadmissible evidence on the same point. Under this rule, in order to be entitled as a matter of right to present rebutting evidence on an evidentiary fact: (a) The original evidence must be inadmissible and prejudicial, (b) the rebuttal evidence must be similarly inadmissible, and (c) the rebuttal evidence must be limited to the same evidentiary fact as the original inadmissible evidence.
An appellate court is obligated to see that the guarantee of a fair trial under Section 10 of Article III of the West Virginia Constitution is honored. Thus, only where there is a high probability that an error of due process proportion did not contribute to the criminal conviction will an appellate court affirm. High probability requires that an appellate court possess a sure conviction that the error did not prejudice the defendant.
'Where the record of a criminal trial shows that the cumulative effect of numerous errors committed during the trial prevented the defendant from receiving a fair trial, his conviction should be set aside, even though any one of such errors standing alone would be harmless error.' Syllabus Point 5, State v. Walker, 188 W.Va. 661, 425 S.E.2d 616 (1992).
The defendant, Dale Edward Guthrie, appeals the January 1994 jury verdict of the Circuit Court of Kanawha County finding him guilty of first degree murder. In May of 1994, the defendant was sentenced to serve a life sentence with a recommendation of mercy. The defendant asserts error in several jury instructions, improper prosecutor questions and comments, cumulative error, and insufficiency of the evidence to support the verdict.
It is undisputed that on the evening of February 12, 1993, the defendant removed a knife from his pocket and stabbed his co-worker, Steven Todd Farley, in the neck, killing him. The men worked together as dishwashers at Danny's Rib House in Nitro and generally got along before this incident. On the night of the killing, the victim, his brother Tracy Farley, and James Gibson were joking around while working in the kitchen. The victim teased the defendant, snapped a wet dishtowel at him several times, and one flip hit the defendant on the nose. The defendant became enraged, removed his gloves, pulled a knife from his pocket, and stabbed the victim in the neck and the victim's arm as he fell.
The police arrived at the restaurant, arrested the defendant, advised him of his Miranda rights, and the defendant made a statement at the police station confessing to the killing. The police described him as calm and willing to cooperate.
The defendant suffers from a variety of psychiatric disorders: panic attacks, chronic depression (dysthymic disorder), body dysmorphic disorder focused on his nose, and borderline personality disorder. His father testified about the nose fixation, stating the defendant repeatedly checked his nose in a mirror and sought assurances about its size.
The defendant testified he suffered an intense panic attack immediately before the stabbing and, contrary to his written statement, could not recall stabbing the victim. He stated that after being hit in the nose he 'lost it' and later found himself holding the knife while Mr. Farley was sinking to the floor.
Psychiatrist Dr. Sidney Lerfald testified for the defense, diagnosing the listed disorders and opining they 'may have affected his perception somewhat.' Dr. Lerfald nonetheless believed the defendant was sane at the time of the offense because he could distinguish right from wrong and conform his actions accordingly.
The State maintained the facts supported a first degree murder conviction. The defense moved for a directed verdict at the close of the State's case-in-chief contending a lack of evidence of malice and premeditation; the motion was denied. The defense argued the facts supported voluntary manslaughter or, at worst, second degree murder. The jury returned a verdict finding the defendant guilty of first degree murder with a recommendation of mercy.
The defendant raises several issues on appeal: (1) sufficiency of the evidence; (2) propriety of instructions covering first degree murder; (3) the trial court's refusal to give a circumstantial evidence instruction; (4) whether the prosecution improperly argued penalties for lesser-included offenses; (5) whether the prosecution injected irrelevant evidence of racial, gender, and political prejudices; and (6) whether cumulative error requires reversal. Some alleged errors lack merit, and the Court focuses on the three main areas discussed below.
The defendant contends the record does not support a first degree murder conviction beyond a reasonable doubt. We reconcile our prior sufficiency-of-evidence jurisprudence with federal precedent and adopt the Jackson v. Virginia standard: viewing the evidence in the light most favorable to the prosecution, determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Under Jackson, appellate courts must defer to the jury's credibility determinations and may not reweigh evidence; reversal is appropriate only if no rational jury could have found guilt beyond a reasonable doubt.
Adopting Jackson requires abandoning our prior rule that circumstantial evidence must exclude every reasonable hypothesis of innocence. We adopt the Holland/Jenks view that circumstantial evidence is not qualitatively different from testimonial evidence; once a proper reasonable-doubt instruction is given, a separate circumstantial evidence instruction is unnecessary. Thus, the mere existence of other reasonable hypotheses does not mandate reversal.
Applying the Jackson standard to the facts, we assume the jury credited those witnesses whose testimony supports the verdict. The jury could properly find: the victim's behavior did not justify a deadly response; the defendant was not under fear of attack; the stabbing was intentional; and the time taken to open the knife and inflict the wound was sufficient to establish premeditation. The jury also heard the defendant's confession.1 Although the Court has some doubt whether this was a first degree murder case, Jackson's standard is dispositive: the evidence is not so weak as to render the verdict irrational. We find the evidence sufficient under either Jackson or the older Starkey standard.
The principal issue is whether the instructions on murder, taken together, deprived the defendant of due process or were otherwise confusing. The defendant sought clearer definitions of the terms 'wilful,' 'deliberate,' and 'premeditated.' The jury received instructions on first and second degree murder and on voluntary and involuntary manslaughter that were consistent with past decisions. The defense contends the trial court's instructions equated premeditation and deliberation with mere intent to kill, erasing the distinction between first and second degree murder.
We review legal propriety of jury instructions de novo when the objection challenges the trial court's statement of legal standards; formulation and wording are reviewed for abuse of discretion. The Clifford instruction used here (that intent may arise at the time of killing) historically was intended to convey that the specific intent to kill may arise suddenly, distinct from the separate elements of deliberation and premeditation which connote reflection. However, language from State v. Schrader equating premeditation with mere intent to kill undermined that distinction.
We hold Schrader's notion of instantaneous premeditation and momentary deliberation is unsatisfactory for proof of first degree murder, because it eliminates the statutory distinction between first and second degree murder. Premeditation and deliberation should be defined to require some period, however short, between the formation of intent and the act—sufficient opportunity for reflection or prior consideration—so that the killing is by prior calculation and design. An elaborate plan is not required, but there must be evidence the defendant considered and weighed the decision to kill. To the extent Schrader is inconsistent with this holding, it is overruled; Clifford and Hatfield remain authority for the principle that deliberation and premeditation involve reflection distinct from mere intent.
We approve as an acceptable instruction (paraphrased from Devitt & Blackmar) that murder in the first degree consists of an intentional, deliberate, and premeditated killing done after a period of prior consideration, with the duration of that period not arbitrarily fixed and varying by individual and circumstances. Any interval of time between forming the intent and executing it, sufficient for the accused to be fully conscious of what he intended, suffices to support a first degree conviction. The rule announced here is not applied retroactively as a new rule under Teague; however, the defendant on remand is entitled to have the guidance applied in a new trial.
The defendant argues the prosecutor prejudiced his right to a fair trial by (1) informing the jury of sentencing ranges for lesser-included offenses during rebuttal argument, and (2) cross-examining the defendant's father about the defendant's alleged racial, gender, and political prejudices. We conclude both actions were improper and assess whether they require reversal under our harmless error standards.
First, outside the context of a recommendation of mercy, it is improper to inform the jury of sentencing possibilities or to argue about sentencing or parole prospects, because sentencing is the trial court's exclusive function and such comments risk diverting the jury from its fact-finding role. The prosecutor's remarks here went beyond permissible argument and were improper. To the extent State v. Myers is inconsistent, it is expressly overruled.
Second, during cross-examination of the defendant's father, the prosecutor elicited testimony about alleged racist, sexist, and KKK sympathies of the defendant. The State argued it was impeaching the father's portrayal of the defendant as a quiet, Bible-reading man and that the defense 'opened the door' by eliciting favorable character evidence. The father had testified to the defendant's peaceful character; however, evidence of religious belief and similar matters was not admissible to support character under applicable rules, and the prosecution went well beyond impeaching the specific testimony. Appellate courts give strict scrutiny to the injection of race, gender, or religion; where wrongfully introduced, reversal often follows.
We apply relevance and Rule 403 balancing. Even if the father's testimony about the defendant's character was admissible in a narrow form, the prosecution's rebuttal evidence was not limited to the same evidentiary fact and was highly prejudicial. The probative value was low relative to the danger of unfair prejudice, confusion, and diversion of the jury from its proper role. The trial court also failed to consider alternatives or to give a curative instruction. The admission of this evidence was therefore erroneous under Rule 403 and the curative admissibility doctrine.
On harmless error analysis, prosecutorial misconduct does not always require reversal, but we will reverse unless there is a high probability the error did not contribute to the conviction. Here the primary issue was the degree of homicide. The prosecutor suggested that convictions less than first degree would result in release after a few years and inflamed the jury with allegations of racism, sexism, Nazism, and KKK sympathy. We have 'grave doubt' as to harmlessness, and reversal is required. Additionally, the prosecutor elicited an undisclosed alleged statement from the defendant (about being unconcerned and asking 'do you think it'll snow?') without prior disclosure under discovery rules. This nondisclosure hampered the defense and was prejudicial.2
Given the cumulative effect of these errors and the grave doubt about harmlessness, the defendant's constitutional right to a fair trial was violated. Syllabus point 5 of State v. Walker applies: cumulative errors that prevented a fair trial require setting aside the conviction even though any one error alone might be harmless.
For the foregoing reasons, we hold the admission of the prejudicial evidence and the prosecution's failure to disclose the alleged oral statement before cross-examination violated the defendant's right to a fair trial. The judgment of the Circuit Court of Kanawha County is reversed, and the case is remanded for a new trial. Reversed and remanded.
I concur with the majority's holding and write separately to reiterate that the duration of time required for premeditation cannot be arbitrarily fixed. Neither the jury instruction approved by the majority, created from State v. Clifford and State v. Hatfield (as amplified by the majority), nor the new instruction approved by the majority affixes any specific amount of time that must elapse between formation of the intent to kill and the actual killing for first degree murder cases.
I am concerned that some language in the majority opinion may suggest that some appreciable length of time must pass before premeditation can occur and thus may imply that premeditation requires deep reflection. Hatfield and the approved instruction make clear that premeditation need not be for any particular length of time and that "any interval of time" between forming the intent and executing it, however short, is sufficient if it allows the accused to be fully conscious of what he intended.
It is therefore necessary to make clear that premeditation is sufficiently demonstrated so long as any interval of time—no matter how short—elapses between the forming of the intent to kill and the execution of that intent, provided the accused had sufficient consciousness of his intent during that interval. I join the Court's judgment and analysis with this clarification.