Jacquelyn I. Custer
Assistant Attorney General
Charleston, West Virginia
Attorney for the Appellee
Lonnie C. Simmons
DiTrapano & Jackson
Charleston, West Virginia
Attorney for the Appellant
The Opinion of the Court was delivered PER CURIAM.
CHIEF JUSTICE BROTHERTON did not participate.
RETIRED JUSTICE MILLER sitting by temporary assignment.
1. "Once there is sufficient evidence to create a
reasonable doubt that the killing resulted from the defendant
acting in self-defense, the prosecution must prove beyond a
reasonable doubt that the defendant did not act in self-defense."
Syllabus point 4, State v. Kirtley, 162 W. Va. 249, 252 S.E.2d 374
2. "Under W. Va. Code, 62-12-2 (1986), the State has two options by which it may notify the defendant of its intent to seek an enhanced penalty. Under W. Va. Code, 62-12-2(c)(1), it may set out the charge in the indictment, or, under W. Va. Code, 62-12- 2(c)(2)(C), it may elect to give notice of the enhancement by a writing. In this latter event, the grounds must be set out as fully as such grounds are otherwise required to be stated in an indictment." Syllabus point 2, State v. Johnson, 187 W. Va. 360, 419 S.E.2d 300 (1992).
The Circuit Court of Pendleton County sentenced the
defendant in this proceeding, Angela C. McClanahan, to from one-to-
five years in the State penitentiary for unlawfully wounding her
husband by shooting him with a pistol. On appeal, the defendant
claims that the undisputed evidence shows that she acted in self-
defense and that, under the circumstances, the State's evidence was
insufficient to support the verdict. She also contends that the
trial court erred in instructing the jury on the effect of its
being a hung jury. Lastly, she claims that the trial court erred
in allowing the State to present a special interrogatory to the
jury on the use of a firearm, when written notice of the State's
decision to raise that question was faxed only the day before trial
and was actually filed in the clerk's office on the day of trial.
After reviewing the questions presented and the documents
filed, this Court finds that the defendant's first two assignments
of error are without merit. The Court does find, however, that the
notice of the State's intent to enhance the defendant's sentence
for use of a firearm was not timely given. The jury's verdict of
guilty is, therefore, affirmed, but the jury's finding that the
crime was committed by the use of a firearm is set aside, and the
defendant is remanded for sentencing as if she had not used a
firearm in the commission of the crime charged.
The evidence adduced during the trial of this case shows
that the defendant and her husband, Steven McClanahan, developed
marital problems, and that after 1990 the defendant's husband,
while drinking, spoke abusively to her, threatened to kill her, and
actually did, on occasion, beat and strike her.
On October 9, 1992, an individual named Jessie Losh told
the defendant's husband that the defendant had been involved with
another man. Later that day, the defendant's husband became
involved in an argument with the defendant and grabbed her by the
shirt. He wanted her to accompany him to the location where she
had allegedly been observed with her reputed lover. As the
argument progressed, the defendant made a number of trips from the
parties' house to her car to carry in groceries. At one point,
when the defendant reentered the house and started to go upstairs,
her husband began to accompany her. She then told her husband:
Steve, I'm going to change clothes; I'm going to the bathroom; go outside and leave -- just leave me alone.
At that point the defendant's husband went outside and positioned himself on the parties' porch.
While the defendant was upstairs in her bedroom, she
armed herself with a .38 caliber handgun for which she had recently
purchased ammunition. She then went downstairs and positioned
herself in the doorway of the parties' house. According to her
husband, as he prepared to reenter the house, the defendant said, "get away from me," and shot him. The bullet from the pistol
penetrated a part of the defendant's husband's heart, a corner of
his stomach, and his pancreas.
The defendant's husband was subsequently hospitalized for
his injuries, and in the course of his hospitalization his spleen
was removed. As a result of the events, the defendant was indicted
for unlawful wounding.
During the defendant's trial, the defendant's husband,
Steven McClanahan, who had apparently become reconciled with the
defendant, testified that he had been abusive to the defendant, and
he also testified that, after reflecting on the events that led up
to the shooting, he believed that the defendant was justified in
shooting him. He stated, "I don't think she wants any more
beatings and stuff like that. I think she had a right to do it."
On cross-examination the defendant's husband admitted
that he didn't rush through the door immediately before the
shooting. Instead, he said, "I was coming normal . . . ." When he
said that he wanted the defendant to go "where they said you was
seen," the defendant "throwed up and shot."
During trial, the defendant called as a witness, Thomas
C. Stein, a licensed psychologist who had met with the defendant on
three occasions. Dr. Stein testified that, in his opinion, the defendant demonstrated the characteristics of a person suffering
from the battered wife syndrome.See footnote 1
In the present appeal, the defendant claims that her
evidence of self-defense was not rebutted by the State and that,
under the law, the failure of the State to rebut her evidence
beyond a reasonable doubt renders her conviction unsustainable.
In the early case of State v. Cain, 20 W. Va. 679 (1882),
this Court discussed the circumstances under which self-defense
could be established in a criminal case. In syllabus point 7, the
Court summarized its conclusions as follows:
When one without fault himself is attacked by another in such a manner or under such circumstances as to furnish reasonable grounds for apprehending a design to take away his life, or to do him some great bodily harm, and there is reasonable grounds for believing the danger imminent, that such design will be accomplished, and the person assaulted has reasonable ground to believe, and does believe, such danger is imminent, he may act upon such appearances and without retreating, kill his assailant, if he has reasonable grounds to believe, and does believe, that such killing is necessary in order to avoid the apparent danger; and the killing under such circumstances is excusable, although it may afterwards turn out, that the appearances were false, and that there was in fact neither design to do him some serious injury nor danger, that it would be done. But of all this the jury must judge from all the evidence and circumstances of the case.
This rule has consistently been accepted in many later
West Virginia cases. See, State v. Milam, 142 W. Va. 98, 94 S.E.2d
442 (1956); State v. Zannino, 129 W. Va. 775, 41 S.E.2d 641 (1947);
State v. Ponce, 124 W. Va. 126, 19 S.E.2d 221 (1942); State v.
McCallister, 111 W. Va. 440, 162 S.E. 484 (1932); and State v.
Stockton, 97 W. Va. 46, 124 S.E. 509 (1924). Further, in note 8 of
State v. Kirtley, 162 W. Va. 249, 252 S.E.2d 374 (1978), this Court
quoted with approval a pattern federal instruction which
essentially incorporated the elements of the Cain definition of
self-defense.See footnote 2
The Court has further pointed out that an apprehension of
harm, to support a claim of self-defense, must be an apprehension
existing at the time of the defendant's attack on the victim. As
stated in syllabus point 6 of State v. McMillion, 104 W. Va. 1, 138
S.E. 732 (1927):
. . . No apprehension of danger previously entertained will justify the commission of the homicide; it must be an apprehension existing at the time the defendant fired the fatal shot.
In State v. Kirtley, supra, the Court discussed at some
length the burden of proof where self-defense is raised. The Court
Once there is sufficient evidence to create a reasonable doubt that the killing resulted from the defendant acting in self- defense, the prosecution must prove beyond a reasonable doubt that the defendant did not act in self-defense.
Syl. pt. 4, State v. Kirtley, supra.
The defendant has apparently construed the Kirtley rule
as holding that where a defendant has reasonably raised the issue
of self-defense, the State has an affirmative burden of advancing
rebuttal evidence to rebut the defendant's evidence, and she is
apparently taking the position that because the State did not
adduce rebuttal evidence, her conviction cannot stand.
Legally there is a distinction between proof and
evidence, and, for this reason, the Court disagrees with the
defendant's claim that the State is under a burden to adduce
rebuttal evidence. As is stated in 1 F. Cleckley, Handbook on
Evidence for West Virginia Lawyers § 1-2(B) (1994):
Proof is all of the evidence before the trier of fact relevant to a fact in issue which tends to establish the existence or nonexistence of such fact. While evidence is defined as information received, proof is the persuasion produced by a consideration of the evidence, i.e., the effect of evidence.
The real thrust of the holding in State v. Kirtley,
supra, is that the overall evidence adduced, when viewed in the
light most favorable to the State, must be sufficient to persuade
a jury beyond a reasonable doubt that the defendant did not act in
self-defense. See, State v. W.J.B., 166 W. Va. 602, 276 S.E.2d 550
(1981). The State's burden is one of proof and not one of the
introduction of formal rebuttal evidence.
In this Court's view, the State in the present case
presented evidence suggesting that the defendant did not act under
an apprehension of danger existing at the time she shot her
husband, but rather as the result of some pre-existing resentment
over his prior behavior. This evidence, if believed by the jury,
could, in this Court's view, reasonably have persuaded the jury
that the defendant did not act in self-defense. In essence, the
State did advance evidence which, if persuasive, could have proven,
and apparently did prove to the jury beyond a reasonable doubt,
that the defendant did not act in self-defense.
In view of all this, the Court is of the view that the
defendant's first assignment of error is without merit.
On appeal, the defendant also claims that the trial court
erred in instructing the jury, prior to trial, that a hung jury was
a very rare thing and that a hung jury would require the parties to
retry the case again to another jury panel.
Prior to the jury being selected in the present case,
while the trial court was indoctrinating the jury panel which was
to consider a juvenile case and the present case, the trial court
instructed the panel on the potential effect of its failure to
reach a verdict. The court stated:
. . . You need to keep in mind that particularly in this Circuit -- that there is such a thing as a hung jury, but in this particular Circuit, a hung jury is a very rare thing, and a hung jury is basically a jury that cannot make up their minds; cannot make a decision, because a decision in these cases need to be unanimous -- that means all twelve jurors on the panel will need to vote one way or the other in regard to this matter. It has to be a unanimous decision.
Nonetheless, a hung jury sometimes happens, but they are a rarity in this Circuit. You need to keep in mind that in regard to a hung jury, that each of you, and you as jurors in these particular cases, are just as capable, just as qualified to answer the question that is posed than any other jury. And what happens when you have a hung jury, is that you would be discharged from further service after we went through the whole trial of the case and heard all the evidence, saw all the exhibits, considered all of that, deliberated in your jury room, and if you report back that you are a hung jury, and you cannot make a decision, what happens then, you would be discharged; we would need to call in another panel, go through this same process again; select a jury again; present the evidence again; have them deliberate, and make a decision that you say that you cannot make yourself. So you can see that you're just -- just as qualified as the next jury would be to try and make a decision in these various cases . . . .
On appeal, the defendant claims that this instruction to
the jury panel prejudiced the decision in her case and was unfairly
An instruction similar to the one of which the defendant
complains is often called a "dynamite" or "Allen" instruction, and
an instruction similar to it was approved by the Supreme Court of
the United States in Allen v. United States, 164 U.S. 492, 17 S.Ct.
154, 41 L.Ed. 528 (1896). As indicated in 2 F. Cleckley, Handbook
on West Virignia Criminal Procedure II-257 (1993):
The central idea of the instruction is that although no juror is expected to yield a conscientiously held opinion, the jury has a duty to decide the case if it can conscientiously do so; and if a majority of the jury is either for conviction or acquittal, the minority ought to consider whether a contrary view may be reasonable and correct.
Recently, this type of instruction has been challenged on
the ground that it can create the danger that the minority of a
jury may be coerced into going along with the majority. Under such
circumstances, the verdict of the jury is not the unanimous verdict
of each and every juror, but simply the decision of a majority of
twelve. See, United States v. Martin, 740 F.2d 299 (4th Cir.
In State v. Hobbs, 168 W. Va. 13, 282 S.E.2d 258 (1981),
this Court recognized that the key question where an "Allen" type instruction is given is whether the trial court's instruction
constituted improper coercion of the verdict. The Court further
Whether a trial court's instructions constitute improper coercion of a verdict necessarily depends upon the facts and circumstances of the particular case and cannot be determined by any general or definite rule.
168 W. Va. at 37, 282 S.E.2d at 272.
The Court reached the same conclusion in State v. Spence,
173 W. Va. 184, 313 S.E.2d 461 (1984), and stated in syllabus point
"Whether a trial court's instructions constitute improper coercion of a verdict necessarily depends upon the facts and circumstances of the particular case and cannot be determine by any general or definite rule. Janssen v. Carolina Lumber Co., 137 W. Va. 561, 73 S.E.2d 12 (1952)." State v. Hobbs, W. Va., 282 S.E.2d 258, 272 (1981).
The Court is unaware of any case which discusses the
precise issue involved in the present case, that is, whether the
giving of an "Allen" type instruction to the jury panel prior to
trial constitutes reversible error. In State v. Christopher, 94
N.M. 648, 615 P.2d 263 (1980), the New Mexico court was asked
whether the distribution of a jury handbook to the jury panel prior
to trial constituted reversible error. The handbook stated:
If a jury cannot arrive at a verdict within a reasonable time and the judge is so advised, he can, in his discretion, order the jury dismissed with the result that another trial of the case usually follows with consequent added expense to all parties. It is, therefore, highly advisable that a verdict be rendered if that can be done with the sincere and honest judgment of the required number of jurors.
The New Mexico Supreme Court concluded that, in the absence of a showing of prejudice by the defendant, the distribution of the handbook did not constitute reversible error.
In this Court's view, in line with the thinking of the
New Mexico court in the Christopher case, the trial court's giving
of the challenged instruction should be a ground for reversing the
jury's verdict only if the defendant can show prejudice. The Court
further believes that prejudice would be shown if the defendant
could show that the instruction coerced a verdict from the jury.
In the present case, it appears that the trial court's
hung-jury instruction was given during pretrial indoctrination of
the jury panel. It was thus distant in time from the jury's
deliberations. Further, there is no evidence that the jury became
deadlocked. After return of the verdict the jurors were polled,
and nothing in their responses suggested any hesitation about the
verdict or that coercion in any way affected it.
Under the circumstances, this Court cannot conclude that
the defendant has shown that the jury's pretrial orientation was
prejudicial to her.
On appeal, the defendant lastly claims that the trial
court erred in allowing the State to present the special
interrogatory on the use of a firearm, when written notice of the
submission of the special interrogatory was not faxed until the day
before trial and was not filed in the clerk's office until the
first day of trial.
After evidence had been presented in this case, the trial
court allowed the State to submit a special interrogatory to the
jury asking the jury if it found that the defendant had committed
the crime charged by use of a firearm. The State did this to form
a basis for enhancing the defendant's sentence under provisions of
W. Va. Code, 62-12-2(b), which, in essence, provides that a
defendant who commits a felony by use of a firearm shall be
ineligible for probation.See footnote 3
At the conclusion of the trial, the jury found that the
crime charged had been committed by use of a firearm. The trial court subsequently sentenced the defendant to from one to five
years in the state penitentiary.
In State v. Johnson, 187 W. Va. 360, 419 S.E.2d 300
(1992), this Court clearly recognized that the Legislature in
enacting W. Va. Code, 62-12-2, intended to prohibit the granting of
probation to one who was found to have committed a felony by use of
a firearm, and, in syllabus point 1, the Court stated:
W. Va. Code, 62-12-2 (1986), prohibits a grant of probation to any person convicted of committing a felony with the use, presentment, or brandishing of a firearm.
The Court, however, also recognized that before probation could be denied for use of a firearm, the defendant had to be given notice of the State's intention to seek an enhanced penalty. The Court indicated in syllabus point 2 of the Johnson case that the notice could be given in two ways:
Under W. Va. Code, 62-12-2 (1986), the State has two options by which it may notify the defendant of its intent to seek an enhanced penalty. Under W. Va. Code, 62-12- 2(c)(1), it may set out the charge in the indictment, or, under W. Va. Code, 62-12- 2(c)(2)(C), it may elect to give notice of the enhancement by a writing. In this latter event, the grounds must be set out as fully as such grounds are otherwise required to be stated in an indictment.
The Court in the body of the Johnson case also recognized
In order for it to be meaningful, the notice must be received at a time when the defendant can still choose between alternative courses of action, such as plea bargaining or proceeding to trial. See, e.g., State v. Waggoner, 144 Ariz. 237, 697 P.2d 320 (1985); State v. Frazier, 81 Wash.2d 628, 503 P.2d 1073 (1972); State v. Rodgers, 134 Ariz. 296, 655 P.2d 1348 (App. 1982).
State v. Johnson, Id. at 362, 419 S.E.2d at 302.
The documents filed in the present case suggest that
notice of the State's intention to seek an enhanced sentence
pursuant to W. Va. Code, 62-12-2, based upon the defendant's use of
a firearm was sent to defense counsel via facsimile transmission on
September 29, the day before trial. It was filed with the clerk of
the Court on the morning of trial.See footnote 4
As indicated in State v. Johnson, Id., the purpose of
requiring the State to file a notice of the decision to seek
enhancement of a sentence for the use of a firearm is to insure
that a defendant shall have a reasonable time to choose between
alternative causes of action, such as plea bargaining or proceeding
The choosing between alternatives, per force, requires
consideration of a number of factors, such as the details of a
proposed plea bargain agreement and the consideration of the
probable outcome of the trial. In the final hours prior to trial, a trial attorney is preoccupied with the details of the coming
trial and, in this Court's opinion, does not have the time both to
prepare for trial and to engage in a meaningful examination of such
matters as the details of a proposed plea agreement.
In the present case, it does not appear that defense
counsel was aware of the State's notice until less than a day prior
to the commencement of trial, and, in this Court's opinion, the
overall circumstances suggest that defense counsel did not have an
adequate opportunity to evaluate an alternative cause of action.
Under the circumstances, the Court cannot conclude that
the defendant received an appropriate notice of the State's intent
to enhance, and the enhancement of the defendant's sentence must be
For the reasons stated, the jury's verdict of guilt is
affirmed, but the defendant's sentence, which is based on the
jury's finding that the defendant committed the crime charged with
a firearm, is set aside, and the defendant is remanded with
directions that she be sentenced without consideration of the fact
that she used a firearm in the commission of the crime.
Footnote: 1 Although the "battered spouse" defense was raised at trial and submitted to the jury, see State v. Steele, 178 W. Va. 330, 359 S.E.2d 558 (1987); State v. Lambert, 173 W. Va. 60, 312 S.E.2d 31 (1984), no error has been assigned in this regard. Consequently, we restrict our review to the self-defense issues raised by the appellant.
Footnote: 2 The Court notes that as a result of this Court's ruling in State v. W.J.B., 166 W. Va. 602, 276 S.E.2d 550 (1981), the test, under appropriate circumstances, is slightly different where a defendant is defending his home against an unlawful intruder.
The principles of W.J.B. do not apply in the present case since the victim, the defendant's husband, was not an intruder in the parties' home.
Footnote: 3 West Virginia Code, 62-12-2(b), actually provides:
"The provisions of subsection (a) of this section to the contrary notwithstanding, any person who commits or attempts to commit a felony with the use, presentment or brandishing of a firearm shall be ineligible for probation. Nothing in this section shall apply to an accessory before the fact or a principal in the second degree who has been convicted as if he or she were a principal in the first degree if, in the commission of or in the attempted commission of the felony, only the principal in the first degree used, presented or brandished a firearm.
Footnote: 4 Although the indictment charged that the defendant had shot the victim, it did not specifically allege the use of a firearm and did not, in this Court's opinion, suggest that the State intended to seek an enhancement of the defendant's sentence.