Stephen R. VanCamp
Assistant Attorney General
Charleston, West Virginia
Attorney for the Appellee
Thomas W. Smith
Smith & Curnutte
Charleston, West Virginia
Attorney for the Appellant
JUSTICE MILLER delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. "'"Merely witnessing a crime, without intervention, does not make a person a party to its commission unless his interference was a duty, and his non-interference was one of the conditions of the commission of the crime; or unless his non- interference was designed by him and operated as an encouragement to or protection of the perpetrator." Syllabus, State v. Patterson, 109 W.Va. 588, [155 S.E. 661] [(1930)].' Syllabus Point 3, State v. Haines, 156 W.Va. 281, 192 S.E.2d 879 (1972)." Syllabus Point 9, State v. Fortner, 182 W.Va. 345, 387 S.E.2d 812 (1989).
2. "In a criminal case, a verdict of guilt will not be
set aside on the ground that it is contrary to the evidence, where
the state's evidence is sufficient to convince impartial minds of
the guilt of the defendant beyond a reasonable doubt. The evidence
is to be viewed in the light most favorable to the prosecution. To
warrant interference with a verdict of guilt on the ground of
insufficiency of evidence, the court must be convinced that the
evidence was manifestly inadequate and that consequent injustice
has been done." Syllabus Point 1, State v. Starkey, 161 W.Va.
517, 244 S.E.2d 219 (1978).
3. "The Double Jeopardy Clause of the Federal and this
State's Constitutions forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence
which it failed to muster in the first proceeding." Syllabus Point
4, State v. Frazier, 162 W. Va. 602, 252 S.E.2d 39 (1979).
4. "In order to constitute the crime of attempt, two
requirements must be met: (1) a specific intent to commit the
underlying substantive crime; and (2) an overt act toward the
commission of that crime, which falls short of completing the
underlying crime." Syllabus Point 2, State v. Starkey, 161 W. Va.
517, 244 S.E.2d 219 (1978).
5. "In a criminal prosecution, it is constitutional
error to give an instruction which supplies by presumption any
material element of the crime charged." Syllabus, State v.
O'Connell, 163 W. Va. 366, 256 S.E.2d 429 (1979).
6. "The plain error doctrine contained in Rule 30 and
Rule 52(b) of the West Virginia Rules of Criminal Procedure is
identical. It enables this Court to take notice of error,
including instructional error occurring during the proceedings,
even though such error was not brought to the attention of the
trial court. However, the doctrine is to be used sparingly and
only in those circumstances where substantial rights are affected,
or the truth-finding process is substantially impaired, or a
miscarriage of justice would otherwise result." Syllabus Point 4, State v. England, 180 W. Va. 342, 376 S.E.2d 548 (1988).
7. "'Failure to observe a constitutional right constitutes reversible error unless it can be shown that the error was harmless beyond a reasonable doubt.' Syllabus point 5, State ex rel. Grob v. Blair,  W. Va. , 214 S.E.2d 330 (1975)." Syllabus Point 5, State v. Boyd, 160 W. Va. 234, 233 S.E.2d 710 (1977).
This appeal is brought by the appellant and defendant
below, William Ulysses Mayo, Jr., from his conviction in the
Circuit Court of Fayette County, of second degree murder, attempted
second degree murder, and unlawful wounding. The defendant
contends that there was insufficient evidence to support his
convictions as an aider and abettor to second degree murder and
unlawful wounding. He also alleges that the jury instruction
unconstitutionally relieved the State of proving an essential
element of attempted murder. We agree and reverse the judgment of
the circuit court.
The evidence shows that on July 6, 1991, Brian Berry went to W. D. Tire Sales in Mount Hope, West Virginia, to get the oil checked in his motorcycle. Mr. Berry was a regular customer of the store. He knew Jesse Rhodes, the owner of the store, and Dickie Rhodes, Jesse's father who helped with the business. While at the store, Mr. Berry and Dickie Rhodes had a heated argument over an overdue bill. Mr. Berry told Dickie Rhodes that he would go to his apartment and come back with the money.
Mr. Berry went to the Stadium Terrace apartments. He
told his stepfather, Robert Kirkland, that Dickie Rhodes "jumped" him over a $103 bill. The two men decided to go see what they
could work out. Mr. Berry went to the defendant's apartment and
yelled for him to join them. Mr. Berry told the defendant to get
his gun. The defendant retrieved his gun and joined them.
Meanwhile, Jesse Rhodes had left the store and was
driving by the apartment. He saw the men get into Mr. Kirkland's
car. Concerned about the previous argument, he drove back to the
store to warn his father that he saw someone climb into the car
with a gun.
When they arrived at the store, Mr. Berry, Mr. Kirkland,
and the defendant got out of the car. Dickie Rhodes came out with
a baseball bat and told them to get back into the car. The
defendant climbed in the back seat, and Mr. Berry sat in the front
passenger's seat of the car. Mr. Kirkland went into the office to
speak to Dickie Rhodes about the bill. Witnesses testified that
Mr. Kirkland acted as a peacemaker. Mr. Kirkland assured Dickie
Rhodes that the bill would be paid, and the conflict was resolved.
Mr. Kirkland went back to his car. Dickie Rhodes
followed him out into the parking lot. Mr. Berry yelled from the
passenger's side of the car "I ain't going to pay you, you white
son of a bitch." Dickie Rhodes reached inside the car and hit Mr.
Berry. Mr. Kirkland started to back the car up as the two men exchanged blows. Mr. Berry pulled out a pistol and shot Dickie
Rhodes in the chest. The bullet went through Dickie Rhodes,
fatally injuring him, and lodged in Jesse Rhodes' leg. Mr.
Kirkland drove the car from the scene.
Jesse Rhodes chased the Kirkland car in his pickup truck.
During this high speed chase, he rammed the car several times. He
testified that he did this to prevent the men from escaping. Four
or five shots were fired at Jesse Rhodes from the Kirkland car.
One bullet was later recovered from the truck's radiator.
Jesse Rhodes pushed the car into a guard rail at the
Mount Hope Bypass. The defendant, Mr. Berry, and Mr. Kirkland ran
from the car. Jesse Rhodes drove back to the tire store. All the
occupants of the Kirkland car turned themselves in to the
authorities the following day. The defendant was charged with
aiding and abetting the murder of Dickie Rhodes and the unlawful
wounding and attempted murder of Jesse Rhodes.
On November 27, 1991, the jury found the defendant guilty
of second degree murder, attempted second degree murder, and
unlawful wounding. The circuit court denied the defendant's motion
for a new trial. This appeal ensued.
The defendant first contends that the State failed to present any evidence that he aided and abetted Mr. Berry in firing the shot that killed Dickie Rhodes and wounded Jesse Rhodes. The defendant asserts that the State only put forth evidence that he was present in the car when the shooting took place.
In State v. Fortner, 182 W.Va. 345, 355, 387 S.E.2d 812,
822 (1989), we discussed the basic distinction between a principal
in the second degree, who is often called an aider and abettor, and
an accessory before the fact: "Thus, the chief difference between
a principal in the second degree and an accessory before the fact
is that the former is actually or constructively present at the
time and place of the commission of the offense, while the latter
is absent." (Citations omitted).
We went on in Fortner to outline the type of activities
that could make one an aider and abettor:
"To be convicted as an aider and abettor, the law requires that the accused 'in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seeks by his action to make it succeed.' United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938), quoted with approval in Nye & Nissen v. United States, 336 U.S. 613, 619 69 S.Ct. 766, 770, 93 L.Ed. 919, 925 (1949), and State v. Harper, 179 W.Va. 24, 28, 365 S.E.2d 69, 73 (1987). The State must demonstrate that the defendant 'shared the criminal intent of the principal in the first degree.' State v. Harper, 179 W. Va. at 29, 365 S.E.2d at 74. (Citations omitted). In this regard, the accused is not required to have intended the particular crime committed by the perpetrator, but only to have knowingly intended to assist, encourage, or facilitate the design of the criminal actor. State v. Harper, supra; State v. West, 153 W.Va. 325, 168 S.E.2d 716 (1969)." 182 W. Va. at 356, 387 S.E.2d at 823.
Finally, in Fortner, we recognized that "mere presence at
the scene of the crime, even with knowledge of the criminal purpose
of the principal in the first degree, is not, alone, sufficient to
make the accused guilty as a principal in the second degree[.]"
182 W. Va. at 356, 387 S.E.2d at 823. We concluded in Syllabus
Point 9 of Fortner:
"'"Merely witnessing a crime, without intervention, does not make a person a party to its commission unless his interference was a duty, and his non- interference was one of the conditions of the commission of the crime; or unless his non- interference was designed by him and operated as an encouragement to or protection of the perpetrator." Syllabus, State v. Patterson, 109 W.Va. 588, [155 S.E. 661] [(1930)].' Syllabus Point 3, State v. Haines, 156 W. Va. 281, 192 S.E.2d 879 (1972)."
With these legal principles in mind, we test the
sufficiency of the evidence to support a criminal conviction by our
traditional rule set out in Syllabus Point 1 of State v. Starkey,
161 W.Va. 517, 244 S.E.2d 219 (1978):
"In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done."
Viewing the evidence in the light most favorable to the
prosecution, we find that the State did not prove beyond a
reasonable doubt that the defendant acted as an aider and abettor
to second degree murder and unlawful wounding. First, there
appears to have been no common design to commit a criminal offense.
Mr. Berry and Mr. Kirkland were regular customers of W. D. Tire
Sales. They went to the store in an effort to resolve the dispute
in regard to the overdue bill. No criminal venture or plan to
commit a crime was formulated before they arrived at the store.
Although Mr. Berry carried a gun, as did the defendant, neither of
them were allowed to stay outside the car.
Mr. Kirkland was Mr. Berry's stepfather. His discussion
with Dickie Rhodes was centered on payment of the bill. This
discussion took place inside the store. Witnesses indicated the
matter was amicably resolved and Mr. Kirkland returned to and
entered his car.
Although there is some disagreement as to whether the
Kirkland car had actually started to back out of the store lot,
there is nothing to suggest any criminal conduct up to this point.
It was not until Mr. Berry, who was seated on the passenger side of
the car, shouted a curse in defiance to Dickie Rhodes that the
latter moved to the car and struck Mr. Berry, who then shot Dickie
These unlawful acts on the part of Mr. Berry cannot be
attributed to the defendant. Up until the moment they occurred,
the matter had been peacefully handled by Mr. Kirkland. Everyone
was inside the car, and the car was beginning its return journey.
There was no evidence to suggest that the killing of Dickie Rhodes
and the subsequent wounding of his son were part of any concerted
This matter bears some resemblance to State v. Haines,
156 W. Va. 281, 192 S.E.2d 879 (1972), where the defendant was
convicted of aiding and abetting an armed robbery. The evidence
showed that the defendant and his companion, a Mr. Lafollette, were
traveling on an icy rural road. They encountered another vehicle
being driven by a Mr. Greer. The two vehicles stopped because the
road was narrow. Mr. Lafollette got out of his vehicle and pushed
on the Greer car. According to Mr. Greer, there was sufficient
room for the other car to pass. However, Mr. Lafollette demanded money and struck Mr. Greer, whereupon the defendant intervened and
got Mr. Lafollette back into his car. A few minutes later, Mr.
Lafollette got out of the car and came over to Mr. Greer again
demanding money. Eventually, Mr. Greer gave Mr. Lafollette money
when Mr. Lafollette struck Mr. Greer while searching for his
wallet. The defendant again told Mr. Lafollette to get into the
car, which he did. We concluded that there was insufficient
evidence to convict the defendant, stating: "[N]or is there any
evidence that he consented, abetted or encouraged by act or word
the commission of the crime. Mere presence is not enough without
some form of participation." 156 W. Va. at 289, 192 S.E.2d at 884.
We dealt with an aider and abettor to larceny from a
barge in State v. Hoselton, 179 W. Va. 645, 371 S.E.2d 366 (1988).
The defendant in Hoselton had gone onto the barge with some
friends. The friends proceeded to the other end of the barge and
broke into a storage unit. The defendant could see what they were
doing, went to the unit, and saw them remove certain pieces of
equipment. He left them and proceeded off the barge. The
defendant got into the automobile that had been driven to the
barge. His friends returned with the equipment, but he did not
keep any of it. When asked at trial if he was a "look-out," the
defendant replied, "You could say that. I just didn't want to go
down in there." 179 W. Va. at 647, 371 S.E.2d at 368. He also testified that he had no prior knowledge of his friends' intentions
to steal anything. We found the evidence to be insufficient to
warrant a conviction for aiding and abetting.
This case bears some similarity to Brown v. State, 250
Ga. 862, 302 S.E.2d 347 (1983), where two brothers attended a party
at a cabin. An argument ensued and they were both beaten up and
left the party. Shortly thereafter, they discovered they had left
behind a pair of expensive boots. Fearful of a renewal of the
fighting, they took a shotgun with them. As they entered the area
where the cabin was located, they encountered a vehicle coming from
the direction of the cabin. They stopped the vehicle by pointing
the shotgun at it and asked the driver, Wayne McGee, to tell them
who was left at the cabin. They then let the car proceed.
When the brothers arrived at the cabin, an argument
ensued with some of the people who came out of the cabin. The
defendant's older brother started out of the car with the shotgun.
He claimed that he felt threatened by an individual who was coming
toward him in the dark and shot causing the victim's death.
The older brother was convicted of murder, as was the
younger brother on the basis that he was an aider and abettor. On
appeal, the Georgia Supreme Court reversed the convictions, giving
this rather cryptic summary of its law: "Presence at the scene of a crime is not sufficient to show that a defendant is a party to
the crime . . . . Even approval of the act, not amounting to
encouragement, will not suffice." 250 Ga. at 864, 302 S.E.2d at
349. (Citations omitted). It then proceeded to give this factual
analysis of the defendant's activity:
"The mere fact that he participated in the act of bringing the shotgun and shells along or that he may have pointed the shotgun at Wayne McGee on the road does not constructively supply any intent to shoot Michael Thigpen. There is no direct evidence of his participation and no circumstantial evidence aside from his presence." 250 Ga. at 864, 302 S.E.2d at 349.
Another related case is People v. Taylor, 244 Ill. App.
3d 152, 614 N.E.2d 79 (1993), where the defendant was convicted of
first degree murder on an aider and abettor accountability theory.
Three of the defendant's friends came to his home and picked him up
in their car. One of the men told the defendant that he was
searching for and wanted to kill the victim because the victim had
been in a fight with the man's younger brother. They drove around
and found the victim. The man who had been looking for the victim
got out of the car and shot him. They fled from the scene, but
then drove back and fired a shot in the air. When the police
arrived, the four men fled. The trial court found the jury's
verdict of murder was correct because the defendant got into the
car knowing that one of the men in the car was seeking the victim to murder him. The appeals court reversed the conviction due to
insufficiency of the evidence, stating:
"In this case, the evidence provided by the State proved that defendant did nothing more than ride in a vehicle in which the shooter was present. While defendant gave conflicting testimony regarding his knowledge of why Kendricks drove to the scene of the shooting, and whether Kendricks had a gun, it is clear that defendant did not participate in any act which attributed to the shooter's objective of murdering Otha Smith. The record is clear that defendant did not have a weapon, did not participate in planning or executing any plan to murder Smith or provide instruments in furtherance of that plan." 244 Ill. App. 3d at ___, 614 N.E.2d at 83.
The prosecutor's case in Taylor was stronger than in this case
because Kendricks, the shooter, disclosed his plan to kill the
victim to the defendant after he got into the car. However, there
was insufficient evidence to link the defendant to the plan. Here,
however, there was no evidence that Mr. Berry planned in advance to
kill the victim or that the defendant assisted or encouraged Mr.
Berry. Indeed, until the moment that Mr. Berry cursed Dickie
Rhodes and then shot him, the event could not have been
anticipated. There was no prior unlawful activity on the part of
anyone before the event. Accordingly, there was no evidence that
the defendant "knowingly intended to assist, encourage, or
facilitate the design of the criminal actor." Fortner, 182 W. Va.
at 356, 387 S.E.2d at 823.
For the foregoing reasons, we hold that the evidence was
insufficient to sustain the defendant's conviction of second degree
murder and unlawful wounding. Where there is such evidentiary
insufficiency to support a criminal conviction, then under
constitutional double jeopardy principles, the State is foreclosed
from retrying the defendant. This double jeopardy bar was
announced in Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57
L. Ed. 2d 1 (1978), and we adopted it in Syllabus Point 4 of State
v. Frazier, 162 W. Va. 602, 252 S.E.2d 39 (1979):
"The Double Jeopardy Clause of the Federal and this State's Constitutions forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding."
See also State v. Tanner, 181 W. Va. 210, 382 S.E.2d 47 (1989);
State v. Breeden, 174 W. Va. 705, 329 S.E.2d 71 (1985); Syllabus
Point 3, State v. Milam, 163 W. Va. 752, 260 S.E.2d 295 (1979).
As a result of this evidentiary insufficiency, the State
is foreclosed from retrying the defendant on the charge of aiding
and abetting the homicide of Dickie Rhodes and the unlawful
wounding of Jesse Rhodes.
The principle error assigned on the attempted second degree murder conviction is the giving of State's Instruction No. 4 on the ground that it unconstitutionally relieved the State of proving an essential element of attempted murder. That instruction reads:
"The jury is further instructed that a person cannot be guilty of an attempt to commit murder unless he has a specific intent to kill. But if an accused wounds a person by deliberate use of an instrument likely to produce death under the circumstances, the presumption of the law is that he intended the consequences that resulted from the use of the deadly instrument. A man is presumed to have intended the immediate direct and necessary consequences of his voluntary act."
The record reflects that the trial judge inquired about the
"presumption" and specifically states that the instruction was
pointed out to the defendant and he had no objection.
The State argues that the defendant waived any right to
raise this issue on appeal. Furthermore, because the presumption
concerning a wounding had no basis in the facts surrounding the
attempted murder of Jesse Rhodes on the Mount Hope Bypass, it could
not have misled the jury. We fail to understand this latter
position since the evidence pointing to the attempted murder of
Jesse Rhodes was that as he chased the Kirkland car four or five
shots were fired from it. One bullet was found lodged in the
radiator of Mr. Rhodes' vehicle.
We dealt with a conviction for attempted second degree
murder in State v. Starkey, 161 W. Va. 517, 244 S.E.2d 219 (1978).
There, the defendant shot at the victim, a Blakely Sower, as he was
driving away in his pickup truck after arguing with the defendant.
The pellets from the defendant's shotgun struck the truck, but did
not injure Mr. Sower. We said: "In the present case there was
sufficient evidence from which the jury could have found beyond a
reasonable doubt that the defendant's act of firing at Blakely
Sower was done with the requisite criminal intent to sustain a
conviction of second degree murder." 161 W. Va. at 525, 244 S.E.2d
at 224. We went on in Syllabus Point 2 of Starkey to define the
elements of the crime of attempt:
"In order to constitute the crime of attempt, two requirements must be met: (1) a specific intent to commit the underlying substantive crime; and (2) an overt act toward the commission of that crime, which falls short of completing the underlying crime."
We concluded that the firing of the shotgun at Mr. Sower was a sufficiently overt act to justify the conviction of attempted second degree murder, stating: "Here, from the circumstances surrounding the firing of the shotgun, there is nothing to suggest that serious bodily harm or death was not intended." 161 W. Va. at 525, 244 S.E.2d at 224.
In Starkey, the State used an instruction to advise the
jury that "malice and intent can be inferred . . . from the defendant's use of a deadly weapon[.]"See footnote 1 The purpose of the
instruction was to advise the jury as to how criminal intent could
be determined. We found the instruction not to be unconstitutional
because the use of the word "inferred" rather than "presumed" did
not make it a burden-shifting instruction.
This same type of approach was used by the State in this
case in its Instruction No. 4, which was designed to inform the
jury on proof of criminal intent through the use of a deadly
weapon. As we have noted, intent is an element of the offense of
attempt to commit a crime under State v. Starkey, supra.
However, the language of the instruction that "[a] man is
presumed to have intended the immediate direct and necessary
consequences of his voluntary act" has been condemned as being an
unconstitutional burden-shifting instruction in Sandstrom v.
Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979). We
adopted this rule in State v. O'Connell, 163 W. Va. 366, 366-67,
256 S.E.2d 429, 430 (1979), where the State's instruction stated,
in part, "that a man is presumed to intend that which he does, or which is the immediate and necessary consequences of his act." In
both cases, the instruction was deemed to relieve the State of the
burden of proving the defendant's criminal intent. We stated in
the Syllabus of O'Connell:
"In a criminal prosecution, it is constitutional error to give an instruction which supplies by presumption any material element of the crime charged."
See also Syllabus Point 1, State v. Keffer, 168 W. Va. 59, 281
S.E.2d 495 (1981); State v. Haddox, 166 W. Va. 630, 276 S.E.2d 788
We have recognized in the past that in certain
circumstances under the doctrine of plain error, we will consider
trial error that has not been objected to where it conforms to the
conditions set out in Syllabus Point 4 of State v. England, 180 W.
Va. 342, 376 S.E.2d 548 (1988):
"The plain error doctrine contained in Rule 30 and Rule 52(b) of the West Virginia Rules of Criminal Procedure is identical. It enables this Court to take notice of error, including instructional error occurring during the proceedings, even though such error was not brought to the attention of the trial court. However, the doctrine is to be used sparingly and only in those circumstances where substantial rights are affected, or the truth-finding process is substantially impaired, or a miscarriage of justice would otherwise result."
See also Syllabus Point 6, State v. Collins, 186 W. Va. 1, 409
S.E.2d 181 (1990).
In this case, we find the instructional error to meet the
foregoing test. The evidence pointing to the defendant's guilt
was, at best, meager. There was no testimony that he fired the gun
at Mr. Rhodes during the motor vehicle chase. The bullet
identified in the Rhodes' vehicle belonged to Mr. Berry and not the
defendant. The instruction was critical to the State's ability to
show specific intent to kill.
Much the same analysis precludes the error from being
harmless constitutional error under our traditional harmless error
test stated in Syllabus Point 5 of State v. Boyd, 160 W. Va. 234,
233 S.E.2d 710 (1977):
"'Failure to observe a constitutional right constitutes reversible error unless it can be shown that the error was harmless beyond a reasonable doubt.' Syllabus point 5, State ex rel. Grob v. Blair,  W. Va. , 214 S.E.2d 330 (1975)."See footnote 2
See also Syllabus Point 2, State v. Gibson, 186 W. Va. 465, 413 S.E.2d 120 (1991); Syllabus Point 7, Marano v. Holland, 179 W. Va. 156, 366 S.E.2d 117 (1988).
For the foregoing reasons, the judgment of the Circuit
Court of Fayette County is reversed, and this case is remanded for
further proceedings consistent with this opinion.See footnote 3
Reversed and remanded.
Footnote: 1The full text of the State's instruction is contained in note 9 of Starkey, which states: "'The Court instructs the jury that malice and intent can be inferred by the jury from the defendant's use of a deadly weapon, under circumstances which you do not believe afforded the defendant excuse, justification or provocation for his conduct.'" 161 W. Va. at 528, 244 S.E.2d at 226.
Footnote: 2This test was patterned after the United States Supreme Court's standard contained in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).
Footnote: 3In view of the jeopardy bar as to the defendant's conviction for second degree murder and malicious wounding and the reversal of the attempted murder conviction, we decline to address the other assignments of error.