William E. Murray
Mitchell & Murray
Charleston, West Virginia
Attorney for the Petitioner
Mary Beth Kershner
Assistant Prosecuting Attorney
Charleston, West Virginia
Attorney for the Respondent
JUSTICE BROTHERTON delivered the Opinion of the Court.
1. "The crime of felony-murder in this State does not
require proof of the elements of malice, premeditation or specific
intent to kill. It is deemed sufficient if the homicide occurs
accidentally during the commission of, or the attempt to commit,
one of the enumerated felonies." Syllabus point 7, State v. Sims,
162 W.Va. 212, 248 S.E.2d 834 (1978).
2. A person cannot be charged with felony-murder
pursuant to W.Va. Code § 61-2-1 (1989) if the only death which
occurred in the commission of the underlying felony was the suicide
of a co-conspirator in the criminal enterprise.
The issue in this case is whether a criminal defendant
can be held legally responsible for the suicide of a co-conspirator
which occurs during the commission of one of the felonies
enumerated in W.Va. Code § 61-2-1 (1989). For the reasons set
forth below, we conclude that the felony-murder statute does not
apply to a situation in which the only death involved is the
suicide of a co-conspirator.
The facts relevant to our decision are as follows: the
State alleges that on July 6, 1990, three juveniles, Jamie
Woolwine, Frederick Allen Barefield, and Ralph Gary Sevy, attempted
to burglarize the Charleston, West Virginia, home of Don White,
Jr., with the intention of kidnapping Mr. White and then killing
him. The petitioner, James F. Painter, recruited Woolwine to kill
White, who was dating the petitioner's ex-wife. Woolwine sought
the additional assistance of two of his high school classmates,
Barefield and Sevy.
A neighbor interrupted the three young men in their attempt to burglarize White's home, and Sevy was captured. Barefield and Woolwine were able to flee the home, but later returned to the scene in a van, armed with a shotgun and hoping to "rescue" Sevy. When their rescue attempt was botched, Charleston City Police pursued the van to the Winfield exit of I-64 in Putnam
County. After pulling the van over to the side of the road, Jamie
Woolwine shot himself and was killed instantly. A coroner's report
indicated that the cause of Woolwine's death was "a shotgun wound
of the mouth" and that the manner of death was "suicide."
On December 21, 1990, a four-part indictment was returned
against the petitioner. In Count One, he was charged with first-degree murder, in that he "feloniously, willfully, maliciously,
deliberately, premeditatedly, and unlawfully did slay, kill, and
murder one Jamie Woolwine in violation of W.Va. Code § 61-2-1."
West Virginia Code § 61-2-1 (1989) provides that "murder . . . in
the commission of, or attempt to commit, arson, sexual assault,
robbery or burglary is murder of the first degree." The petitioner
was also charged with attempted burglary and attempted kidnapping.
The petitioner argues that because Woolwine committed
suicide, the requisite homicide for a felony-murder charge is
missing. Therefore, he requests that this Court issue a writ
prohibiting the respondent from proceeding with Count One of the
indictment against him. The trial judge below refused to dismiss
the felony-murder charge, stating that the issue presents a proper
question for the jury determination.
The State maintains that the petitioner is properly
charged with felony-murder because he participated in a criminal
conspiracy which led to the death of Jamie Woolwine:
[A]ll of the actions of the three young men,
from the initial attempted burglary through
the tragic end of the police chase, were a
part of one continuous transaction. These
acts were attributable to petitioner as the
mastermind of the plot, even though he was not
present at any of these acts.
In support of its argument, the State points out that the felony-murder rule was intended to have broad application, so as to
discourage the commission of the enumerated felonies by holding the
participants in those felonies responsible for any resulting death.
Felony-murder is one of three broad categories of first-degree murder in this State, with the others being murder by poison, lying in wait, imprisonment or starving, and willful, deliberate and premeditated killing. W.Va. Code § 61-2-1. "The crime of felony-murder in this State does not require proof of the elements of malice, premeditation or specific intent to kill. It is deemed sufficient if the homicide occurs accidentally during the commission of, or the attempt to commit, one of the enumerated felonies." Syl. pt. 7, State v. Sims, 162 W.Va. 212, 248 S.E.2d 834 (1978). "In adjudging a felony-murder, it is to be remembered at all times that the thing which is imputed to a felon for a killing incidental to his felony is malice and not the act of killing. The mere coincidence of homicide and felony is not enough to satisfy the requirements of the felony-murder doctrine." Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472, 476 (1958).See footnote 1
A homicide may be murder of the first degree, of the second degree,
or voluntary manslaughter or involuntary manslaughter or it may be
justifiable. State v. Stevenson, 147 W.Va. 211, 127 S.E.2d 638,
641 (1962), cert. denied, 372 U.S. 938, 83 S.Ct. 886, 9 L.Ed.2d 768
The State professes to have difficulty understanding why
the petitioner feels he should not be prosecuted for felony-murder,
asserting that "[p]etitioner's arguments as to why he should not be
compelled to face a jury on this charge are unclear, except that he
appears to hold Mr. Woolwine responsible for his own death." The
problem with the State's attempt to try the petitioner for felony-murder is that in this case there was no homicide incidental to the
alleged underlying felony of attempted burglary. Instead, there
was a suicide which was committed not by an innocent bystander, but
by a co-conspirator in the criminal enterprise. The petitioner
neither intended for the victim's death to occur, nor did he cause
it, accidently or otherwise.
Although the circumstances under which the victim's death
occurred are both unfortunate and tragic, ultimately he was
responsible for his own death. It is for this reason that the
State's attempt to hold the petitioner legally responsible for
Woolwine's death must fail. The first-degree murder statute simply
does not support a felony-murder charge against the petitioner
under facts such as these.
A person cannot be charged with felony-murder pursuant to
W.Va. Code § 61-2-1 (1989) if the only death which occurred in the
commission of the underlying felony was the
suicide of a co-conspirator in the criminal enterprise. Because
there was no homicide in this case, Count One of the
indictment charging the petitioner with felony-murder must be
Footnote: 1In Redline, the defendant was convicted of first-degree murder and sentenced to life imprisonment for the death of a co-felon who was killed by a police officer attempting to apprehend them as they were fleeing the scene of an armed robbery. The Supreme Court of Pennsylvania reversed, concluding that the victim was shot and killed by a policeman performing his duty: ". . . the homicide was justifiable and, obviously, could not be availed of, on any rational legal theory, to support a charge of murder. How can anyone, no matter how much of an outlaw he may be, have a criminal charge lodged against him for the consequences of the lawful conduct of another person?" Redline, 137 A.2d at 482.