E. Taylor George, Esq.|
Assistant Public Defender
Robert C. Catlett, Esq.
Assistant Public Defender
Kanawha County Public Defender Office
Charleston, West Virginia
Attorneys for the Appellant
Sidney H. Bell, Esq.|
McDowell County Prosecuting Attorney
Welch, West Virginia
Attorney for the Appellee
The Opinion of the Court was delivered PER CURIAM.
JUSTICE MAYNARD concurs and reserves the right to file a concurring opinion.
SYLLABUS BY THE COURT
1. 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. Syllabus Point 1, State v. Guthrie
, 194 W. Va. 657, 461 S.E.2d 163 (1995).
2. Where a defendant is convicted of a particular substantive offense, the
test of the sufficiency of the evidence to support the conviction necessarily involves
consideration of the traditional distinctions between parties to offenses. Thus, a person may
be convicted of a crime so long as the evidence demonstrates that he acted as an accessory
before the fact, as a principal in the second degree, or as a principal in the first degree in the
commission of such offense. Syllabus Point 8, State v. Fortner
, 182 W. Va. 345, 387 S.E.2d
3. Proof that the defendant was present at the time and place the crime
was committed is a factor to be considered by the jury in determining guilt, along with other
circumstances, such as the defendant's association with or relation to the perpetrator and his
conduct before and after the commission of the crime. Syllabus Point 10, State v. Fortner
182 W. Va. 345, 387 S.E.2d 812 (1989).
4. A person who is the absolute perpetrator of a crime is a principal in the
first degree, and a person who is present, aiding and abetting the fact to be done, is a
principal in the second degree. Syllabus Point 5, State v. Fortner
, 182 W. Va. 345, 387
S.E.2d 812 (1989).
This case is before this Court upon the appeal of Thomas Joseph MacPhee from
his convictions in the Circuit Court of McDowell County, West Virginia, of murder of the
first degree and conspiracy. Pursuant to an order entered on June 13, 2005, MacPhee was
sentenced to life, with a recommendation of mercy, upon the murder conviction and 1 to 5
years upon the conspiracy conviction, the sentences to be served consecutively. By order
entered on May 2, 2006, the sentences were reimposed for purposes of appeal to this Court.
The convictions arose from a jury trial upon an indictment charging MacPhee and Danny
Wade England with the murder, and conspiracy to commit murder, of Lori Ann Keaton.
Appellant MacPhee was also convicted of grand larceny relating to Ms. Keaton's death and
was sentenced for that offense to a term of 1 to 10 years. MacPhee, however, does not appeal
from the grand larceny conviction.
This Court has before it the petition for appeal, all matters of record and the
briefs and argument of counsel. MacPhee contends that the verdict of the jury should be set
aside because the evidence was insufficient to establish premeditation with regard to the
murder conviction. Moreover, with regard to the conspiracy conviction, MacPhee contends
that the evidence was insufficient to show that he had an agreement with Danny Wade
England to murder Ms. Keaton. This Court has undertaken a careful and deliberative
examination of the testimony and exhibits admitted at trial and, viewing the evidence in the
light most favorable to the prosecution as required under State v. Guthrie
, 194 W. Va. 657,
461 S.E.2d 163 (1995), we find MacPhee's contentions unconvincing. Therefore, for the
reasons set forth below, the orders of the Circuit Court entered on June 13, 2005, and May
2, 2006, sentencing appellant MacPhee to the penitentiary for murder of the first degree and
conspiracy to commit murder are affirmed.
Lori Ann Keaton, age 46, and her husband, James R. Keaton, were married in
April 2002 and lived in the Town of Gary, McDowell County. Ms. Keaton had just moved
to the area from Michigan. Soon after, the Keatons purchased an additional house in Hensley
Hollow, also in McDowell County, and lived there for a short time. In December 2002, they
conveyed the Hensley Hollow house to the appellant, Thomas Joseph MacPhee, and his wife
Deborah. The MacPhees were from New Jersey and paid for the house in cash. Following
the conveyance, the Keatons returned to their house in Gary.
Thereafter, the Keatons began to socialize with appellant MacPhee and an
individual by the name of Danny Wade England. The record indicates that during this time,
and at the time of the alleged murder, Deborah MacPhee was in New Jersey. Animosity soon
developed, however, between James R. Keaton and England over England's attentions
toward Lori. Moreover, Lori gave England, or permitted him to hold on her behalf, a
substantial sum of money which, according to appellant MacPhee, could have included some
of the purchase money the Keatons received from the MacPhees for the house in Hensley
Hollow. Lori made frequent attempts to contact England for the return of the money.
England insisted, however, that he had already given the money back to her.
On January 30, 2003, Lori Ann Keaton disappeared. Just prior thereto, she had
informed others that she was going to drive to Michigan to visit her children from a previous
marriage. The children were a son and a pregnant daughter. The daughter testified at trial
that Lori usually traveled with a large amount of cash and would never go anywhere without
her pet dog, Tonka.
(See footnote 1)
Lori's body was never found nor has any of her money been located. However,
shortly after her disappearance, her dog appeared in Salem, Virginia, and, through the
identification on its collar, was returned to Lori's family. In February 2003, MacPhee told
the State Police that he had no knowledge concerning Lori's whereabouts.
In April 2003, a hunter notified the police of what appeared to be a shallow
grave in a wooded area known as Wilmore, some 8 to 10 miles from appellant MacPhee's
house in Hensley Hollow. Although no body was found, State Troopers recovered a number
of personal items including a jacket and belt buckle later identified as belonging to Lori Ann
Keaton. The Troopers also found a piece of blue-jean material containing a blood stain.
DNA from the stain was subsequently determined to be consistent with the DNA of a sample
of Lori's hair obtained from her family.
Later, in May 2003, the police located Lori's car, a Mercury Grand Marquis,
at a residence belonging to Kenneth Jerry Wood near Hensley Hollow. The car was covered
with a tarp, and the license plate was missing. Wood subsequently testified at trial that
MacPhee appeared at his residence at 4:00 a.m. in January 2003 and asked Wood if he could
leave the car there. According to Wood, MacPhee stated that the Grand Marquis belonged
to his wife, Deborah, and that he wanted to park it in a safe place while in the process of
moving to the area from New Jersey. Wood consented, and MacPhee gave him a shotgun
from the trunk of the car.
(See footnote 2)
Wood wrote the MacPhee's local telephone number on the wall
above his couch.
On May 13, 2003, the State Police went to appellant MacPhee's house and
again asked him about Lori Ann Keaton's whereabouts. During the inquiry, the Troopers
brought Kenneth Jerry Wood to the house who identified MacPhee as the individual who
brought the car to Wood's residence. MacPhee then began a series of statements ultimately
telling the officers that Danny Wade England shot and killed Lori at MacPhee's house and
that, although he did not witness the shooting or know that it was going to occur, he helped
England conceal Lori's body.
MacPhee's statements were given at his house in Hensley Hollow, at the site
of the shallow grave in the Wilmore area and at the State Police Detachment in Welch, West
Virginia. As discussed in detail below, MacPhee told the State Police: (1) that Lori and
England were arguing inside the MacPhee house about whether England was holding some
of Lori's money, (2) that MacPhee was on the porch outside when he was surprised by the
sound of a shot, (3) that he ran inside and found Lori on the floor bleeding from a chest
wound, (4) that fearing England, who was holding the shotgun, he became involved in
concealing Lori's body, (5) that he and England cleaned the blood from the floor, wrapped
Lori's body in clear plastic and blankets and burned the clean-up material, along with Lori's
purse, in MacPhee's yard, (6) that they put Lori's body in MacPhee's Jeep and drove to
Wilmore where they placed her in a shallow grave and covered her with rocks and branches,
(7) that, instead of putting the car in a mine shaft as England suggested, MacPhee drove
Lori's Grand Marquis, which was parked at his house in Hensley Hollow, to the residence
of Kenneth Jerry Wood and (8) that MacPhee drove Lori's dog, Tonka, to the vicinity of
Salem, Virginia, where he released it.
Appellant MacPhee consented to a search of his house and surrounding
property. The State Troopers collected a blood stain from a section of flooring in MacPhee's
house. DNA from that stain was determined to be consistent with the DNA of Lori Keaton.
In addition, the State Troopers located a license plate buried in MacPhee's yard which
proved to be the missing plate from Lori's car.
On December 18, 2003, a McDowell County grand jury returned an indictment
charging appellant MacPhee and Danny Wade England with murder of the first degree and
conspiracy to commit murder. In addition, MacPhee was charged with the grand larceny of
the Mercury Grand Marquis.
(See footnote 3)
MacPhee was tried separately from England, and his trial
began on April 25, 2005. MacPhee did not testify, nor did England appear as a witness.
(See footnote 4)
MacPhee's statements to the police given on May 13 and 14, 2003, were admitted into
evidence in the form of video recordings as State's exhibits 4 through 7 and played for the
jury. The admissibility of the recordings is not challenged before this Court.
The jury found appellant MacPhee guilty of murder of the first degree with a
recommendation of mercy, conspiracy and grand larceny. Thereafter, his motions for a
judgment of acquittal and for a new trial were denied. Pursuant to the order of June 13, 2005,
MacPhee was sentenced to life, with a recommendation of mercy, upon the murder
conviction, 1 to 5 years upon the conspiracy conviction and 1 to 10 years upon the conviction
of grand larceny. The Circuit Court directed the sentences to be served consecutively. On
May 2, 2006, the sentences were reimposed for purposes of appeal. This Court granted
MacPhee's appeal in January 2007.
Standard of Review
The matters under review before this Court concern only the sufficiency of the
evidence at trial. Appellant MacPhee contends that the verdict of the jury should be set aside
because the evidence was insufficient to establish premeditation with regard to the murder
conviction and insufficient to establish agreement with regard to the conspiracy conviction.
Those contentions have in common MacPhee's assertion that he was on the porch outside
when the shooting took place and that he did not know it was going to occur. As stated
above, the admissibility of his video recorded statements to the police is not challenged. Nor
does MacPhee allege error concerning the search of his house and property or the instructions
given to the jury.
(See footnote 5)
In syllabus point 1 of Guthrie
, this Court observed:
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.
Syl. pt. 1, State v. Mann
, 205 W.Va. 303, 518 S.E.2d 60 (1999); syl. pt. 1, State v. Browning
199 W. Va. 417, 485 S.E.2d 1 (1997); syl. pt. 4, State v. Broughton
, 196 W. Va. 281, 470
S.E.2d 413 (1996). See also
, syl. pt. 2, State v. LaRock
, 196 W. Va. 294, 470 S.E.2d 613
(See footnote 6)
Denying any involvement in the actual shooting of Lori Ann Keaton, appellant
MacPhee, nevertheless, admits that the homicide occurred in his house and that he and
England cleaned the blood from the floor, wrapped Lori's body, and burned the clean-up
material, including her purse, in his yard. MacPhee also admits that he and England drove
Lori's body in MacPhee's vehicle to the Wilmore area and concealed her body in the shallow
(See footnote 7)
In addition, MacPhee admits taking Lori's car to the Wood residence, rather than
putting it in a mine shaft, and admits transporting to and releasing her dog near Salem,
Virginia. MacPhee contends, therefore, that, as those circumstances demonstrate, he was an
accessory after the fact, rather than an accessory before the fact or a principal in the first or
second degree. Thus, MacPhee argues that the elements of premeditation and agreement
cannot be assigned to him.
Relevant to MacPhee's assertions is this Court's holdings in syllabus points 8
and 10 of State v. Fortner
, 182 W. Va. 345, 387 S.E.2d 812 (1989):
8. Where a defendant is convicted of a particular substantive
offense, the test of the sufficiency of the evidence to support the
conviction necessarily involves consideration of the traditional
distinctions between parties to offenses. Thus, a person may be
convicted of a crime so long as the evidence demonstrates that
he acted as an accessory before the fact, as a principal in the
second degree, or as a principal in the first degree in the
commission of such offense.
10. Proof that the defendant was present at the time and
place the crime was committed is a factor to be considered by
the jury in determining guilt, along with other circumstances,
such as the defendant's association with or relation to the
perpetrator and his conduct before and after the commission of
Syl. pt. 3, State v. Ladd
, 210 W. Va. 413, 557 S.E.2d 820 (2001); syl. pts. 3 and 4, State v.
, 204 W. Va. 374, 513 S.E.2d 147 (1998); syl. pts. 2 and 4, State v. Kirkland
W. Va. 586, 447 S.E.2d 278 (1994).
Pursuant to W. Va. Code § 61-11-6 (1923), in every felony, every principal
in the second degree, and every accessory before the fact, shall be punishable as if he were
the principal in the first degree; and every accessory after the fact shall be confined in jail not
more than one year and fined not exceeding five hundred dollars. As explained in syllabus
point 5 of State v. Fortner
: A person who is the absolute perpetrator of a crime is a
principal in the first degree, and a person who is present, aiding and abetting the fact to be
done, is a principal in the second degree. See
, State v. Hoselton
, 179 W. Va. 645, 648, 371
S.E.2d 366, 369 (1988) (Principals in the second degree are punishable as principals in the
first degree); State v. Duncan
, 179 W. Va. 391, 395 n. 6, 369 S.E.2d 464, 468 n. 6 (1988)
(The terms principal in the second degree and aider and abettor are synonymous); Vol.
1A M.J., Accomplices and Accessories
§ 4 (Matthew Bender & Co. - 2004) (If a person is
present at the commission of the crime, inciting, encouraging, advising or assisting in the act
done, he is deemed to be an aider and abettor and is liable as principal).
(See footnote 8)
In addition to playing the video recorded statements of appellant MacPhee for
the jury, the State called Jerry Denver Massey in its case-in-chief. Massey was incarcerated
with MacPhee for two to three months at the Southwestern Regional Jail in Logan County,
West Virginia. According to Massey, MacPhee told him that he and another person beat a
woman to death in her home, robbed her for drug money and put her body in a mine shaft.
As Massey told the jury:
Q. And what did he tell you that he and the second person
A. They had went in and beat her to death and robbed her
and took what money and stuff - some stuff and then took her
body and put it in a mine shaft.
* * *
Q. - robbed her and put the body into a mine shaft?
A. Yeah. He had said he didn't think - you know, that
was one of the reasons he had talked about it a little bit, that he
didn't think that - he thought he was going to get away with it
because there was no evidence.
Appellant MacPhee asserts that, inasmuch as Massey admitted at trial that he
came forward because it might help him obtain a plea agreement in his own case, his
testimony is not worthy of consideration in determining whether the evidence against
MacPhee was sufficient to support the convictions. However, it must be noted that, rather
than moving to strike Massey's testimony, MacPhee's trial counsel engaged in cross-
examining Massey and arguing to the jury that Massey should not be believed. In denying
MacPhee's motion for a judgment of acquittal following the State's case-in-chief, the Circuit
Court stated in reference to Massey's testimony:
I don't know how much weight the jury is going to give
Mr. Massey. He says that - He says that the defendant told him
in the jail that We beat her up and killed her for this money.
Well, all the way through, it would appear that Danny England
was holding some money for Lori Keaton. His story is
consistent - I'm talking about Mr. Massey - is consistent with
what has been forth that - now, there's a lot of questions I have,
I have to admit, . . . . I mean, was she shot, was she beaten
up, was she put down a mine shaft? That's for the jury to
(See footnote 9)
In addition to the testimony of Jerry Denver Massey, appellant MacPhee's
video recorded statements contain several matters tending to undermine his assertion that his
participation in Lori's death was merely after the fact. In the first video recording, MacPhee
states that he arrived home and found Lori's body in his front yard already wrapped up.
Danny Wade England was present but never told MacPhee how Lori was killed. At that
point, they drove her body to the Wilmore area. In the second video recording, however,
MacPhee states: (1) that Lori and England were in MacPhee's house in his presence arguing
about the money England was allegedly holding, (2) that MacPhee went to the porch outside
and then heard the shot,
(See footnote 10)
(3) that, although MacPhee thought Lori was dead, he saw her
bleeding and told her he was going to call 911 but was prevented from doing so by England
and (4) that the shotgun belonged to England but England had left it at MacPhee's house for
a couple of days before the shooting.
In the third video recording, appellant MacPhee indicates that it was his idea
to take Lori's Mercury Grand Marquis to the residence of Kenneth Jerry Wood, rather than
placing it in a mine shaft. Finally, in the fourth video recording MacPhee again stated that
it was his idea to take the car to the Wood residence. In addition, MacPhee states that, in the
days following Lori's death, he and England talked about moving the body; it wasn't in the
greatest place in the world.
As long recognized, [a] criminal defendant challenging the sufficiency of the
evidence to support a conviction takes on a heavy burden. An appellant court must review
all the evidence, whether direct or circumstantial, in the light most favorable to the
prosecution [.] Syl. pt. 3, in part, State v. Guthrie
. See also
, State v. LaRock
196 W. Va. at 304, 470 S.E.2d at 623 (In a sufficiency of the evidence challenge, the
evidence must be viewed from the prosecutor's coign of vantage).
The jury had a full and deliberative opportunity to consider not only the evidence
presented, but also the credibility of MacPhee. The evidence positively establishes, through
MacPhee's own statements, that Lori was killed. Despite MacPhee's contradictory statements, the
physical evidence establishes his presence at the scene of the crime and his positive attempts to
cover-up the crime. The testimony of Massey, which was subjected to MacPhee's cross-
examination, establishes that in the months following his arrest, MacPhee confessed to him that he
and a second person had killed a woman. Weighing the totality of the evidence, including
MacPhee's multiple conflicting statements, and considering its belief as to the credibility of
MacPhee and the other witnesses, the jury obviously chose to disbelieve MacPhee's uncorroborated
statements that he left the room just prior to the killing of Lori and re-entered just afterward. As also
recognized in Guthrie: It is for the jury to decide which witnesses to believe or disbelieve.
194 W. Va. at 669 n. 9, 461 S.E.2d at 175 n. 9.
The evidence viewed in the light most favorable to the prosecution inexorably
leads to the conclusion that the testimony and exhibits admitted at trial were amply sufficient
to support appellant MacPhee's convictions, as a principal, of murder of the first degree and
conspiracy. The people of McDowell County are entitled to their verdict as fairly obtained,
and the orders of the Circuit Court entered on June 13, 2005, and May 2, 2006, are affirmed.
The porch does not extend along the length of the front of the MacPhee house.
Instead, it is a small enclosure constituting the left corner of the house behind which the front
door it located. The distance from the porch through the door to the alleged position of
England and Lori inside the house at the time of the shooting would more appropriately be
measured in feet rather than yards. According to MacPhee's second recorded statement, he
could hear the argument between Lori and England from outside the house.