Teresa A. Tarr
Assistant Attorney General
Charleston, West Virginia
Counsel for the Appellee
Francis M. Curnutte, III, Esq.
Madison, West Virginia
Counsel for the Appellant
JUSTICE WORKMAN delivered the Opinion of the Court.
1. "Double jeopardy prohibits an accused charged with felony-murder, as defined by W. Va. Code § 61-2-1 (1977 Replacement Vol.),
from being separately tried or punished for both murder and the
underlying enumerated felony." Syl. Pt. 8, State v. Williams, 172
W. Va. 295, 305 S.E.2d 251 (1983).
2, "When a defendant commits two separate aggravated
robberies, and in the course thereof kills one of the victims, he
can be convicted of both the aggravated robbery of one victim and
the felony murder of the other." Syllabus, State ex rel. Lehman v.
Strickler, 174 W. Va. 809, 329 S.E.2d 882 (1985).
3. Where there is more than one underlying felony supporting
a felony murder conviction and one of the underlying felonies is
committed upon a separate and distinct victim from the victim who
was actually murdered, that underlying felony conviction does not
merge with the felony murder conviction for the purposes of double
This case is before the Court upon the appeal of Stewart
Martin Elliott from the November 13, 1990, final order of the
Circuit Court of Lincoln County which denied the appellant's motion
for a new trial. The appellant was tried and convicted by a jury
on June 6, 1990, of first degree felony murder, sexual assault in
the first degree, arson in the fourth degree and two counts of
attempted murder. The appellant maintains that the following
errors were committed by the trial court: 1) the trial court erred
in permitting the jury to convict the appellant of both felony
murder and the underlying felonies; 2) the trial court erred in
instructing the jury on felony murder; 3) the trial court erred in
instructing the jury on arson; 4) the trial court erred in
instructing the jury on attempted murder; and, 5) the trial court
abused its discretion by not declaring a mistrial sua sponte as a
matter of manifest necessity. Since the trial court erred in
convicting and sentencing the appellant on the underlying felony
which supported the felony murder conviction, we reverse on this
error only and remand for entry of an order to comport with this
opinion. The convictions are otherwise affirmed.
On September 29, 1989, the appellant met Karen Lynn Ball, Michael Lacey and Freddie Miller between 10:30 and 11:00 p.m. Ms. Ball testified that the appellant had been drinking heavily and that he had asked her to go with him to his mother's home so that
they could engage in sex. When Ms. Ball refused, the appellant
began cursing her.See footnote 1
The appellant proceeded on to his mother's former home in West
Hamlin, West Virginia, along with Lacey and Miller, according to
the testimony of Michael Lacey. There the three consumed more
alcohol before going to a bar where the appellant purchased more
beer and cigarette papers. The appellant then rolled a joint and
smoked it. Next, Lacey and the appellant went to the Double D
Motel to visit Debra Berry.
Upon walking back to the bar, Lacey and the appellant came
upon a motorhome where they met Ray Dotson. Lacey testified that
the appellant went up to the motorhome and knocked on the door.
Both the appellant and Dotson spoke for a while, before Lacey and
Miller joined them. Lacey then testified that they asked him if he
wanted to go riding around with them. When he agreed, "they
[Dotson and the appellant] started it up and they was talking about
going to get some pussy or something like that."
The appellant testified that Dotson wanted some pills, so the appellant directed him to Annette Abraham's and Nancy Walton's home. The appellant testified that Ms. Abraham was a good friend
and that he had partied before with her and knew that she had
pills. Additionally, the appellant's testimony indicated that he
had previously dated Nancy Walton.
When they arrived at Ms. Abraham's home, only the appellant
and Dotson exited the motorhome. The other passengers remained in
the vehicle.See footnote 2 The appellant and Dotson remained in Ms. Abraham's
home for approximately forty minutes, according to Lacey's
testimony. During this forty-minute period, Annette Abraham was
killed. The medical examiner's testimony revealed that the victim
received seven blows to the head, face and scalp from being struck
with a blunt object, which was determined to be a marble rolling
Moreover, Maria Darby, Annette Abraham's ten-year-old daughter, was also attacked and raped. Maria testified that she was awakened by someone shaking her. Her testimony then indicated that both Dotson and the appellant raped her before placing a belt around her eyes and hitting her in the head with something. Maria positively identified the appellant when she saw him in the light given off from a cigarette lighter and when she heard his voice. Maria's testimony further revealed that two-year-old Christina Walton was lying in the bed next to her when she was assaulted, but she was not harmed. Finally, Maria testified that she heard the
appellant state that he wanted rings and that "'[w]e're going to
burn the house,'" and that "when they was hitting me in the head,
Elliott [the appellant] called Dotson and said, told him, said,
'she ain't dead.'"
The appellant testified that after leaving Ms. Abraham's home,
the two returned to the motorhome and drove to Hamlin, West
Virginia. The appellant and Dotson then went to the Lower Mud
River, where the appellant testified that he passed out in the
vehicle. According to the appellant, when he came to, Dotson took
him to Amanda Salmon's house where he showered and had Patricia
Salmon do his laundry. The appellant left behind at Ms. Salmon's
residence a brown paper bag containing jewelry, a medic alert tag
belonging to Annette Abraham and four or five packs of Doral
cigarettes, which was the brand smoked by the victim. Patricia
Salmon testified that the appellant did come alone to her house the
morning of September 30, 1989, around 9:00 to 9:30 a.m. Her
testimony indicated that she did his laundry, but did not notice
anything unusual about his condition or appearance. Further, she
did not notice any blood on the appellant or his clothing.
When Louis Abraham went to his daughter's home on September 30, 1989, he found her lying dead in the front room. He also felt heat from the kitchen. When he walked into the kitchen, he discovered all four burners of the stove were lit. Mr. Abraham's
testimony also revealed that some type of paper had been piled on
Shortly thereafter, Trooper C. B. Alford of the West Virginia
State Police arrived at the scene. He, too, found ashes on the
kitchen stove. He also found blood all over the bedsheets, pillow
and headboard and a puddle of blood on the floor. Trooper Alford
also discovered a marble rolling pin lying under the rug and two
marijuana cigarette roaches and a burn on the bed. Finally, the
trooper testified that he found a pack of Doral cigarettes lying on
the nightstand and an empty carton in the trash can in the bedroom.
Trooper H. B. Myers, who conducted the serological tests on
the items found at the victims' home, testified that the blood on
the bedsheets, pillow and rolling pin was consistent with Ms.
Abraham's and Maria's blood. The blood found on a towel, rug, sham
and shirt worn by Ms. Abraham was consistent with Ms. Abraham's,
Maria's and the appellant's blood type. Further, blood and sputum
found on the Doral cigarettes and marijuana cigarettes were
consistent with Ms. Abraham's, Maria's and the appellant's blood
type.See footnote 3
The appellant's defense consisted of his own testimony in
which he acknowledged that he saw Ms. Abraham's murder and the
sexual assault of Maria, but denied actively participating in
either crime. The appellant testified that Dotson committed both
crimes. His testimony also indicated that Dotson made the
statement that he was going to burn down the house. The appellant
testified that Dotson repeatedly threatened to kill him if he went
to the police. Finally, the appellant testified that Dotson gave
him the jewelry which was identified as belonging to the victim, in
return for him giving Dotson money for gas.
During the trial, upon completion of the testimony of Pearl
Abraham, the mother of Annette Abraham, the witness pulled out a
handgun and shot at the appellant. The court immediately adjourned
the proceedings until the next day. When the trial resumed, the
court, in camera, stated to the appellant that a mistrial would be
declared if the appellant so desired. The appellant's counsel
indicated in the record that:
It is Mr. Elliott's desire to continue. We
have discussed the posture that the case is in
right now and the advantages and disadvantages of
having another trial with a totally separate jury
at another term of court or continuing with this
Mr. Elliott feels that it is in his best
interest and goes along with his desire to
expedite this matter, to have this trial
continue. So we are prepared to continue the
trial at this time. . . .
The trial court then conducted an individual voir dire of each juror to ascertain whether the shooting incident had prejudiced
them against the defendant. Each juror indicated that he could
decide the case solely on the evidence presented to him. Thus, the
trial continued, and the jury ultimately found the appellant guilty
of the crimes charged.
The first issue before the Court is whether the trial court
erred in permitting the jury to convict the appellant of both
felony murder and the underlying felony of fourth degree arson.
The appellant contends that a conviction of both first degree
murder based on the felony murder theory and the underlying felony
of fourth degree arson violates the double jeopardy clause of the
United States Constitution and article 3, section 5 of the West
Virginia Constitution. The state concedes that the trial court
erred in convicting and sentencing the appellant on the underlying
crime of arson which supported the felony murder conviction.
This Court has previously held in syllabus point 8 of State v.
Williams, 172 W. Va. 295, 305 S.E.2d 251 (1983) that "[d]ouble
jeopardy prohibits an accused charged with felony-murder, as
defined by W. Va. Code § 61-2-1 (1977 Replacement Vol.), from being
separately tried or punished for both murder and the underlying
enumerated felony." Accord Syl. Pt. 10, State v. Julius, ___ W.
Va. ___, 408 S.E.2d 1 (1991); Syl. Pt. 8, State v. Giles, ___ W.
Va. ___, 395 S.E.2d 481 (1990).
It is evident from the jury verdict form in this case that the jury convicted the appellant of first degree felony murder and the underlying felony of arson in the fourth degree, and that the court sentenced him on both. Consequently, under the principles set forth in Williams and its progeny, both the conviction and sentence pertaining to fourth degree arson constitute a violation of double jeopardy. We therefore reverse the appellant's conviction for fourth degree arson and remand this case for entry of an order comporting herewith.
Another issue which requires discussion is whether the trial
court erred in convicting and sentencing the appellant for the
underlying felony of first degree sexual assault which also
supported the felony murder conviction.See footnote 4 This issue presents a
question of whether double jeopardy principles are violated when a
defendant is convicted of two underlying felonies and felony
murder, where one of the underlying felonies which could have
supported the felony murder conviction involved a separate and
distinct victim from the actual felony murder victim.
Previously this Court held that "[w]hen a defendant commits
two separate aggravated robberies, and in the course thereof kills
one of the victims, he can be convicted of both the aggravated
robbery of one victim and the felony murder of the other."
Syllabus, State ex rel. Lehman v. Strickler, 174 W. Va. 809, 329
S.E.2d 882 (1985). Of particular significance to this case is that
also in Lehman, we stated that "'[w]hen a crime is committed
against people rather than property, the general rule is that there
are as many offenses as there are individuals involved.'" 329
S.E.2d at 884 (quoting State v. Myers, 171 W. Va. 277, ___, 298
S.E.2d 813, 815 (1982)).
The reason so much importance is given to the number of
victims in determining whether double jeopardy principles are
violated was discussed in State ex rel. Watson v. Ferguson, 166 W.
Va. 337, 274 S.E.2d 440 (1980). In Watson, this Court reasoned:
We do not conceive that in fashioning a double
jeopardy policy in regard to what is the 'same
offense' that we can ignore the fact that
multiple victims have been subject of the
defendant's acts. There can be little doubt
that one function of a criminal justice system
is to enable those individuals who have been
victimized by the criminal acts of another to
find some individual vindication of the harm
done to each. Certainly, the degree of
culpability, and as a consequence the degree
of punishment, must bear some proportion not
only to the magnitude of the crime but also to
the number of victims involved. These are
fundamental considerations that society
expects from a criminal justice system.
274 S.E.2d at 446.
In the present case, the arson charge also served as the basis
for the first degree felony murder conviction. Thus, we will not
set aside the conviction for the first degree sexual assault of the
ten-year-old daughter of the murder victim, since the sexual
assault involved a separate and distinct victim.
Other jurisdictions have held that where "the underlying
felony charged in one count of the indictment is committed upon one
victim and the malice or felony murder charged in another count of
the indictment is committed upon another person, . . . the
underlying felony does not merge with the felony murder
conviction." Satterfield v. State, 248 Ga. 538, ___, 285 S.E.2d
3, 5 (1981); see also Stitt v. State, 256 Ga. 155, ___, 345 S.E.2d
578, 580 (1986); see generally Clay v. State, 593 P.2d 509 (Okla.
Crim. App. 1979); O'Briant v. State, 556 S.W.2d 333 (Tex. Crim.
App. 1977). Thus, double jeopardy principles are violated only
when the defendant is convicted for both felony murder and the
underlying felony where there is only a single victim.
The appellant relies heavily upon our decision in the Williams case where it was impossible for this Court to determine whether the jury had used arson or robbery as the underlying felony which supported the defendant's first degree felony murder conviction. 305 S.E.2d at 268. The trial court in Williams sentenced the defendant for felony murder, arson and robbery. Id. at 266. There we stated that "[t]o secure the protections afforded the appellant
by our double jeopardy laws, we reverse the sentences for both the
arson and robbery convictions and remand the case for
resentencing." Id. at 268.
The distinguishing factor between the Williams case and the
present case, however, is that in Williams there was only one
victim involved. Thus, we hold that where there is more than one
underlying felony supporting a felony murder conviction and one of
the underlying felonies is committed upon a separate and distinct
victim from the victim who was actually murdered, that underlying
felony conviction does not merge with the felony murder conviction
for the purposes of double jeopardy.
The appellant's other assignments of error may be summarily dismissed. After a review of the record we find no merit to his claims that the trial court erred in instructing the jury on felony murderSee footnote 5, arson and attempted murder, due to insufficient evidence
presented to the jury. See Syl. Pt. 3, State v. Taylor, 175 W. Va.
685, 337 S.E.2d 923 (1985).
Similarly, we find that the appellant's claim that the trial
court abused its discretion by not declaring a mistrial sua sponte
as a matter of manifest necessity after the murder victim's mother
fired a handgun at the appellant from the witness stand is totally
unsupported by the record. The record reflects that the trial
court was willing to grant a mistrial upon the appellant's request.
The appellant, after consulting with his counsel, decided to
continue on with the trial. Finally, the trial court conducted an
individual voir dire of the jury panel to ensure that the jurors
had not been prejudiced by the incident.
Based upon the foregoing opinion, the decision of the Circuit
Court of Lincoln County is hereby reversed and remanded for
Footnote: 1Ms. Ball also testified that the appellant had asked her to have sex with him a week prior to this incident. When she refused, the appellant grabbed her around the throat with one hand. Ms. Ball's testimony indicated that when she told him to stop, he did pull away from her.
Footnote: 2The other passengers, according to the testimony at trial, were Lacey, Miller, Eddie Adkins and another unidentified person.
Footnote: 3None of the blood or sputum discovered at the crime scene was found to be consistent with Dotson's blood type.
Footnote: 4It is clear that the jury could have based their first degree felony murder conviction upon either the arson charge or the sexual assault charge as the underlying felony. The jury was not asked to identify which felony they used as the basis for the felony murder conviction.
Footnote: 5Regarding the appellant's argument that the trial court erred in instructing the jury on felony murder, the appellant asserts that the evidence presented at trial suggested that Annette Abraham was killed prior to the commission of the sexual assault and attempted arson. Upon a review of the record, we conclude that there was sufficient evidence presented to the jury which enabled them to conclude that "[m]urder . . . in the commission of, or attempt to commit, arson, sexual assault, robbery or burglary . . ." occurred. W. Va. Code § 61-2-1 (1987). Moreover, this Court has previously held that the felony murder statute is applicable where "the initial felony and the homicide are parts of one continuous transaction, and are closely
related in point of time, place, and causal connection. . . ." Syl. Pt. 2, in part, State v. Wayne, 169 W. Va. 785, 289 S.E.2d 480 (1982).