Michael J. Basile
Assistant Attorney General
Charleston, West Virginia
Attorney for the Appellee
Stephen C. Littlepage
Pt. Pleasant, West Virginia
Attorney for the Appellant
This Opinion was delivered PER CURIAM.
1. "'Good cause shown' for change of venue, as the phrase is used in W.Va. Constitution, Article III, Section 14 and W.Va. Code, 62-3-13, means proof that a defendant cannot get a fair trial in the county where the offense occurred because of the existence of locally extensive present hostile sentiment against him." Syllabus point 1, State v. Pratt, 161 W.Va. 530, 244 S.E.2d 227 (1978).
2. "Under Rule 405(b) of the West Virginia Rules of
Evidence, a defendant in a criminal case who relies on self-defense
or provocation may introduce specific acts of violence or threats
made against him by the victim, and if the defendant has knowledge
of specific acts of violence against third parties by the victim,
the defendant may offer such evidence." Syllabus point 3, State v.
Woodson, 181 W.Va. 325, 382 S.E.2d 519 (1989).
3. "It is not reversible error to refuse to give
instructions offered by a party that are adequately covered by
other instructions given by the court." Syllabus point 20, State
v. Hamric, 151 W.Va. 1, 151 S.E.2d 252 (1966).
4. "In certain circumstances evidence of the flight of
the defendant will be admissible in a criminal trial as evidence of
the defendant's guilty conscience or knowledge. Prior to admitting
such evidence, however, the trial judge, upon request by either the
State or the defendant, should hold an in camera hearing to
determine whether the probative value of such evidence outweighs
its possible prejudicial effect." Syllabus point 6, State v.
Payne, 167 W.Va. 252, 280 S.E.2d 72 (1981).
On February 4, 1991, the Circuit Court of Jackson County
sentenced the defendant, Dusty Harold Beegle, to life in the
penitentiary, with a recommendation of mercy, for first degree
murder. In the present appeal, the defendant claims that the trial
court erred in failing to grant him a change of venue and in
excluding evidence of the deceased's reputation as being a
dangerous, violent, and quarrelsome person. He also argues that
the trial court improperly refused to allow the jury to consider a
voluntary manslaughter verdict and refused to give certain of his
instructions. Lastly, he claims that the court erred by permitting
the State to introduce evidence on, and thereafter instruct the
jury on, the issue of flight. After reviewing the questions
presented, this Court disagrees with the defendant's claims and
affirms his conviction.
According to witnesses in this case, during the early
morning hours of August 12, 1989, the defendant shot and killed one
John R. Fletcher on the parking lot of a bar located near Ripley,
West Virginia. After the killing, the defendant fled the scene and
remained at large until the next day, when he turned himself in.
During the trial of this case, evidence was introduced
indicating that the defendant was casually acquainted with John R.
Fletcher and that the two individuals had encountered each other at
the Hershey Bar outside Ripley some two hours prior to the
shooting. While in the bar, the relationship between the two
appeared to be cordial. No difficulties occurred until
approximately 3:00 a.m., when the appellant chose to leave the bar
with his social companion, one Patsy Randolph, who was highly
inebriated and who did not want to leave. The victim, John R.
Fletcher, apparently did not feel that the defendant should force
Ms. Randolph to leave, and followed the defendant and Ms. Randolph
out of the tavern. According to the victim's wife, who testified
for the State during trial, the victim said: "Dusty, don't force
her to do nothing she don't want to do." According to the same
witness, the defendant looked at the victim and said, "Buddy, go
back inside and stay out of it or I'll shoot your ass." The victim
did not at this time have a weapon on him, but he did have a beer
bottle, with beer in it, in one hand. The defendant then proceeded
to lead Ms. Randolph to his van. The victim followed. The
defendant opened the slide door on the van and threw Ms. Randolph
in. He then reached into something like a cooler inside the van
and pulled out a gun and shot the victim in the forehead. At the
time, the victim was standing by the front fender of the van.
During trial, the defendant did not deny shooting the
victim, but explained:
When I got the gun, I was going to try to ward off an attack that I thought was imminently coming. I did not mean for the gun to go off. I did not mean for the projectile to strike John Fletcher in the forehead. I did not mean to kill anybody.
He further testified that, ". . . I was not angry. I was in fear for my life." When asked whether he was mad, he said, "No, I was scared." He also said that he did not see any weapon on the victim, but, "I didn't know what he had in his hand. I didn't know where he had been from the time I seen him in the bar last to the time I seen him standing right beside me."
According to evidence adduced by the defendant, on at
least two occasions prior to the shooting, the defendant and the
victim had been involved in situations resulting in ill feelings.
On those occasions the defendant had bested the victim in arm
wrestling competitions, and the defeats suffered had greatly
irritated the victim. Also, according to the defendant's
evidence, on at least two occasions the victim had threatened him
In the present appeal, the defendant alleges that the
trial court failed to protect him from pretrial publicity and erred
in failing to grant him a change of venue.
After being arrested, the defendant, in the Spring of
1990, entered into a plea negotiations with the Prosecuting
Attorney of Jackson County, and the negotiations resulted in a plea
bargain agreement in which the defendant agreed to plead guilty to
second degree murder. The plea bargain agreement was tendered to
the trial court, and even though the State recommended its
acceptance, the trial court rejected it. During the summer of
1990, the defendant and the prosecuting attorney petitioned the
court for reconsideration of the agreement. The petitions were to
no avail, and the trial court again refused to accept the
agreement. The defendant, who believed that the trial judge's
rejection of the agreement showed prejudice against him, sought a
recusal of the trial judge on the ground of prejudice. In July,
1990, the trial court rejected the recusal motion.
There were a number of news reports in Jackson County
about the defendant's attempts to enter into a plea arrangement
with the prosecuting attorney and with the trial court's rejection
of the plea agreement, so, in addition to moving for recusal of the
trial judge, the defendant moved for a change of venue. The trial
court conducted a hearing on this motion, and the defendant
introduced substantial evidence showing that there had been
extensive publicity relating to his plea bargain agreement in the
Jackson County area.
Defense counsel also called witnesses in an attempt to
show that the defendant could not receive a fair trial in the
Jackson County area. One of the defendant's witnesses, Norman
Slaughter, when asked whether a great number of people in the area
had formulated an opinion on the defendant's case, responded: "I
really haven't heard that many comments on it from people on what
the answer is there." He was later asked: "I'll hit the nail on
the head, Mr. Slaughter, based on what you know, what you've read
in the papers and the contact you've had with the community, do you
have an opinion, as to, whether or not Dusty Beegle could receive
a fair and impartial trial, here, in Jackson County, comprised of
people, who are Jackson County residents, who can be fair and
impartial about this case?" Mr. Slaughter responded: "Well, I
can't answer that yes or no. I think if most people are like me,
I couldn't remember what I read a year ago, unless, you refresh my
memory." A moment later, he said: "I feel he could have a fair
trial here as he could any place."
Another witness, Cecil Harold, had conducted a survey of
sentiment in Jackson County and had attempted to obtain statements
from his interviewees. Relating to his findings, he said: "A lot
of people knew Mr. Beegle. A lot of people knew Mr. Fletcher.
You'd get different reactions from different people, but, they'd
tell you that they wouldn't want to be a part of any involvement
and they wouldn't want to sign these." he later testified that
there was "some" hostile opinions against the defendant, and also
that, "I ran into some [people] that never heard of it [the case]."
The trial court, at the conclusion of the hearing, denied
the motion for change of venue and set the case for trial.
This Court has rather consistently recognized that
whether a change of venue should be ordered rests in the sound
discretion of a trial court, and its ruling thereon will not be
disturbed unless it clearly appears that the court's discretion has
been abused. The rule is set forth in syllabus point 2 of State v.
Wooldridge, 129 W.Va. 448, 40 S.E.2d 899 (1946), as follows:
To warrant a change of venue in a criminal case, there must be a showing of good cause therefor, the burden of which rests upon the defendant, the only person who, in any such case, is entitled to a change of venue. The good cause aforesaid must exist at the time the application for a change of venue is made. Whether, on the showing made, a change of venue will be ordered, rests in the sound discretion of the trial court; and its ruling thereon will not be disturbed, unless it clearly appears that the discretion aforesaid has been abused.
See also, State v. Plumley, 181 W.Va. 685, 384 S.E.2d 130 (1989);
State v. Williams, 172 W.Va. 295, 305 S.E.2d 251 (1983); State v.
Hall, 171 W.Va. 212, 298 S.E.2d 246 (1982); State v. Sette, 161
W.Va. 384, 242 S.E.2d 464 (1978); State v. Riley, 151 W.Va. 364,
151 S.E.2d 308 (1966); State v. Pietranton, 140 W.Va. 444, 84
S.E.2d 774 (1954).
In syllabus point 1 of State v. Pratt, 161 W.Va. 530, 244
S.E.2d 227 (1978), the Court further stated that:
"Good cause shown" for change of venue, as the phrase is used in W.Va. Constitution, Article III, Section 14 and W.Va. Code, 62-3-13, means proof that a defendant cannot get a fair trial in the county where the offense occurred because of the existence of locally extensive present hostile sentiment against him.
See also, State v. Lassiter, 177 W.Va. 499, 354 S.E.2d 595 (1987).
It has also been recognized that widespread publicity of itself
does not require a change of venue and that proof that prejudice
exists against an accused does not require a change of venue unless
it appears that the prejudice against the accused is so great that
he cannot get a fair trial. See State v. Gangwer, 169 W.Va. 177,
286 S.E.2d 389 (1982), and State v. McFarland, 175 W.Va. 205, 332
S.E.2d 217 (1985).
In the present case, the record shows that even though
there was evidence of widespread publicity relating to the charges
against the defendant in the Jackson County area where he was
tried, that evidence did not show that the defendant could not
receive a fair trial. The defendant's own witness, Norman
Slaughter, expressed the opinion that the defendant could receive
as fair a trial in Jackson County as anywhere, and Cecil Harold,
who conducted a survey of sentiment in Jackson County, indicated
that different people had different reactions to the publicity and
concluded that some people had never heard of the case. Further,
extensive voir dire of prospective jurymen was conducted prior to
trial. In the course of that voir dire, defense counsel inquired
of the prospective jurors whether they could put the publicity
relating to the defendant's case out of their minds and decide the
case based upon the evidence adduced at trial. The panel of
prospective jurors indicated that they could so decide the case and
that they could put the pretrial publicity out of their minds. The
jurors also indicated that they had no preconceived notions about
the case based upon what they had read. In the course of the voir dire, the defendant did not challenge the qualifications of any
juror who was ultimately chosen to sit in the case.
The defendant's next claim is that the trial court
improperly refused to permit him to develop the full details of the
deceased's propensity for being a violet and quarrelsome man.
Before discussing this point, the Court believes that it
is important to note that from the documents filed in this case, it
appears that the defendant proposed to offer evidence of specific
instances of misconduct by the victim in order to show his
propensity for violence and quarrelsomeness. In his reply brief
filed in the present appeal, the defendant states that he "desired
to use evidence from a number of witnesses who could testify that
the victim, John Fletcher, was a ruffian, had the propensity to
brawl (especially if he was in an intoxicated condition), and had
a turbulent past background which included assaults and batteries
on several other individuals during the deceased's lifetime. He
then complains that early in the proceeding in the case the trial
court prohibited him "from introducing character evidence on the
deceased's activities for any act that had taken place more than
five (5) years before the deceased's death." He states that he and
his counsel investigated the victim's background and criminal
record, and that he desired to call a witness who had knowledge of
the victim's attack on a man named Charles Moss. He also states
that he had six or seven witnesses who could have testified that
the victim was quarrelsome, had a turbulent background, and had a
propensity to engage in violence upon others. Lastly, he complains
that the trial court refused to permit him to introduce testimony
from two women who could have testified about an occasion when the
victim came to their home and put a gun to their heads. It also
appears that the defendant did not at the time of the shooting have
knowledge of the specific acts against third parties by the victim,
but learned of them through his investigator after the shooting.
In syllabus point 3 of State v. Woodson, 181 W.Va. 325,
382 S.E.2d 519 (1989), this Court held:
Under Rule 405(b) of the West Virginia Rules of Evidence, a defendant in a criminal case who relies on self-defense or provocation may introduce specific acts of violence or threats made against him by the victim, and if the defendant has knowledge of specific acts of violence against third parties by the victim, the defendant may offer such evidence.
In the present case, upon the current state of the record
and under the particular facts and authorities cited, this Court
cannot conclude that the trial court's exclusion of the testimony
which the defendant sought to adduce was prejudicial.See footnote 1
Thus, under the law as summarized in syllabus point 3 of
Woodson, and without further development of the record, we are
unable to conclude that the trial judge erred in excluding the
The defendant next claims that the trial court erred in
failing to provide the jury with all possible verdicts under the
indictment against him. Specifically, he asserts that although the
State of West Virginia offered jury instructions which allowed the
jury to consider the possibility of voluntary manslaughter, the
trial court improperly elected to remove all instructions on
voluntary manslaughter and thus precluded the jury from considering
a lesser included offense in the charge against him. He
essentially claims that, without the voluntary manslaughter verdict
form, the trial jury was left to decide between the verdicts of
murder in the first degree, murder in the second degree,
involuntary manslaughter, and not guilty.
This Court has rather consistently defined voluntary
manslaughter as a sudden, intentional killing upon gross
provocation and in the heat of passion. See State v. Stalnaker,
167 W.Va. 225, 279 S.E.2d 416 (1981); State v. Duvall, 152 W.Va.
162, 160 S.E.2d 155 (1968); State v. Bowyer, 143 W.Va. 302, 101
S.E.2d 243 (1958); State v. Foley, 131 W.Va. 326, 47 S.E.2d 40
(1948); State v. Zannino, 129 W.Va. 775, 41 S.E.2d 641 (1947);
State v. Barker, 128 W.Va. 744, 38 S.E.2d 346 (1946).
In the present case the evidence adduced showed that the
victim and his wife were socializing with the appellant and Patsy
Randolph inside a bar before the commission of the crime charged.
The victim and Patsy Randolph had danced a few times, and at
closing time Ms. Randolph did not want to leave. The defendant
then dragged Ms. Randolph out onto the parking lot, and the victim
followed. The victim told the defendant not to force Ms. Randolph
to do anything that she didn't want to do. The defendant,
according to the State's evidence, threatened the victim, stating
that he would "shoot his ass." The defendant then dragged Ms.
Randolph across the parking lot to his van and opened the van door.
He threw Patsy inside the van and reached into the van, pulled out
a gun, and shot the victim in the forehead.
When questioned about the shooting during trial, the
defendant testified that he had pulled the gun to ward off an
attack which he believed was imminently coming. While there is
some suggestion that he might have been upset with, or concerned
over, Ms. Randolph, he specifically denied that he was angry at the
victim. He said, ". . . I was not angry. I was in fear for my
life." A short time later, when asked whether he was mad, he said,
"No, I was scared."
It is a rather well established principle in this State
that instructions must be based upon the evidence and an
instruction which is not supported by the evidence should not be
given. State v. Sexton, 176 W.Va. 595, 346 S.E.2d 745 (1985);
State v. Collins, 154 W.Va. 771, 180 S.E.2d 54 (1971).
As previously indicated, this Court has also rather
consistently indicated that a voluntary manslaughter is by
definition a homicide which is committed in the heat of passion.
While a fair reading of the evidence in the present case might
suggest that the defendant shot John Fletcher out of fear, the
defendant's own testimony shows that he was not acting in anger or
the heat of passion, and there is some testimony that some time
passed between the time the defendant threatened to shoot the
victim and when he actually shot him. Given the testimony, this
Court cannot conclude that the giving of a voluntary manslaughter
instruction was supported by the evidence or that the trial court
erred in failing to give such an instruction.
The defendant next claims that the trial court committed
reversible error in failing to give a number of the instructions
which he offered.
Three of the instructions which the trial court refused
to give, defendant's instructions 19, 20, and 23, were self-defense
instructions, instructions defining the defendant's right to "repel
force by force." Regarding these issues the trial judge, in his
charge to the jury, stated:
One of the questions to be determined by you in this case is whether or not the defendant acted in self-defense so as to justify his acts. Under the laws of this State, if the defendant was not the aggressor, and had reasonable grounds to believe and actually did believe that he was in imminent danger of death or serious bodily harm from which he could save himself only by using deadly force against his assailant, he had the right to employ deadly force in order to defend himself. By deadly force is meant force which is likely to cause death or serious bodily harm.
In syllabus point 20 of State v. Hamric, 151 W.Va. 1, 151
S.E.2d 252 (1966), this Court stated: "It is not reversible error
to refuse to give instructions offered by a party that are
adequately covered by other instructions given by the court." See
also, State v. Armstrong, 179 W.Va. 435, 369 S.E.2d 870 (1988).
In this Court's view, the trial court adequately covered
the self-defense issue raised by the defendant, and under the rule
in Hamric, this Court cannot conclude that the trial court
committed reversible error by refusing to give Defendant's
Instructions Nos. 19, 20, and 23.
Similarly, Defendant's Instructions Nos. 22 and 27 were
clearly covered by the court's charges. Defendant's Instruction
No. 22 dealt with the definition of self-defense. The court's
charge, as previously quoted, covered that matter. Defendant's
Instruction No. 27 dealt with the fact that all jurors had to find
the defendant guilty beyond a reasonable doubt. The trial judge's
[T]he presumption of innocence alone is
sufficient to acquit a defendant, unless the
jurors are satisfied beyond a reasonable doubt
of the defendant's guilt after careful and
impartial consideration of all the evidence in
. . .
The jury will remember that a defendant
is never to be convicted on mere suspicion or
The burden is always upon the prosecution
to prove guilt beyond a reasonable doubt.
Defendant's Instruction No. 26 dealt with the intent
necessary for the crimes charged. This was covered by the trial
court's instructions on possible verdicts in the case.
The defendant also argues that the trial court erred in
not giving his Instruction No. 24. This was covered by the court's
charge, and regarding it, defense counsel said, "I'll withdraw 24."
Overall, this Court believes that the defendant's claim
that the trial court's failure to give the instructions mentioned
was prejudicial is without merit.
Lastly, the defendant claims that the trial court
committed reversible error by permitting the State of West Virginia
to introduce evidence on the issue of flight and by thereafter
instructing the jury on that issue.
In State v. Payne, 167 W.Va. 252, 280 S.E.2d 72 (1981),
this Court recognized that evidence of a defendant's flight is
admissible when its probative value outweighs its possible
prejudicial effect. The Court also indicated that an in camera
hearing should be conducted to determine that question. In
syllabus point 6 of State v. Payne, the Court stated:
In certain circumstances evidence of the flight of the defendant will be admissible in a criminal trial as evidence of the defendant's guilty conscience or knowledge. Prior to admitting such evidence, however, the trial judge, upon request by either the State or the defendant, should hold an in camera hearing to determine whether the probative value of such evidence outweighs its possible prejudicial effect.
See also, State v. Harper, 179 W.Va. 24, 365 S.E.2d 69 (1987).
In the present case, the State requested an in camera
hearing regarding the admissibility of flight information which it
intended to offer into evidence. The trial court noted on the
record that the evidence which the State intended to offer had
already been developed at the defendant's bond hearing and that
that evidence was before the court.
The evidence as developed showed that immediately after
the shooting giving rise to the charges in the present case, the
defendant immediately fled to Tupper's Creek to sleep. After
waking, he drove to his wife's house in South Charleston.
This Court believes the evidence of immediate flight was
potentially probative of a guilty conscience or knowledge and that
it does not appear that the trial court erred in allowing its
admission into evidence.
For the reasons stated, the defendant's conviction is
Footnote: 1This Court recently discussed character evidence under Rule 405(a) in State v. Dietz, 182 W.Va. 544, 390 S.E.2d 15 (1990), and in the second Dietz case, State v. Dietz, No. 21144 (W.Va. Dec. ___, 1992).