No. 22710 - State of West Virginia v. Dale Edward Guthrie
Workman, J., concurring:
I concur with the holding of the majority, but write this
separate opinion to reiterate that the duration of the time period
required for premeditation cannot be arbitrarily fixed. Neither
the jury instruction approved by the majority, created from our
past decisions in State v. Clifford, 59 W. Va. 1, 52 S.E. 981
(1906) and State v. Hatfield, 169 W. Va. 191, 286 S.E.2d 402 (1982)
(as amplified by the majority opinion), nor the new instruction
approved in the majority opinionSee footnote 1
affix any specific amount of time
which must pass between the formation of the intent to kill and the
actual killing for first degree murder cases. Given the majority's
recognition that these concepts are necessarily incapable of being
reduced formulaically, I am concerned that some of the language in
the opinion may indirectly suggest that some appreciable length of
time must pass before premeditation can occur.
I agree with the majority in its conclusion that our decision in State v. Schrader, 172 W. Va. 1, 302 S.E.2d 70 (1982), incorrectly equated premeditation with intent to kill. However, I must point out that the majority's suggested basis for defining premeditation and deliberation in terms of requiring some
"appreciable time elapse between the intent to kill and the
killing" and "some period between the formation of the intent to
kill and the actual killing which indicates that the killing is by
prior calculation and design" may create confusion in suggesting
that premeditation must be the deeply thoughtful enterprise
typically associated with the words reflectionSee footnote 2 and contemplation.See footnote 3
The majority's interpretation may create ambiguity, if not
clarified, by adding arguably contradictory factors to the law
enunciated by the majority in the approved instruction, as well as
the language in the Hatfield and Dodds cases that the majority
upholds. See Hatfield, 169 W. Va. at 202, 286 S.E.2d at 410 n.7;
see also State v. Dodds, 54 W. Va. 289, 297-98, 46 S.E. 228, 231
For instance, nowhere in Hatfield, which upholds the Clifford
instruction, is the notion that an "appreciable" amount of time
must lapse in order for premeditation to occur. Neither is such a
suggestion evident from the majority's new instruction, derived
"'"The jury is instructed that murder in the first degree consists of an intentional, deliberate and premeditated killing which means that the killing is done after a period of time for prior consideration. The duration of that period cannot be arbitrarily fixed. The time in which to form a deliberate and premeditated design varies as the minds and temperaments of people differ, and according to the circumstances in which they may be placed. Any interval of time between the forming of the intent to kill and the execution of that intent, which is of sufficient duration for the accused to be fully conscious of what he intended, is sufficient to support a conviction for first degree murder."'"
169 W. Va. at 202, 286 S.E.2d at 410 (quoting 2 Devitt and Blackmar, Federal Jury Practice and Instructions § 41.03, at 214). Finally, even syllabus point five of the majority provides only that "[a]lthough premeditation and deliberation are not measured by any particular period of time, there must be some period between the formation of the intent to kill and the actual killing . . . ."
Accordingly, it is necessary to make abundantly clear that
premeditation is sufficiently demonstrated as long as "[a]ny
interval of time [,no matter how short that interval is, lapses]
between the forming of the intent to kill and the execution of that
intent[.]" See Hatfield, 169 W. Va. at 202, 286 S.E.2d at 410
(quoting 2 Devitt and Blackmar, Federal Jury Practice and
Instructions § 41.03, at 214).
Footnote: 1 1 The new instruction is essentially an adoption of the instruction previously offered by the Court in note 7 of Hatfield. See 169 W. Va. at 202, 286 S.E.2d at 410 n.7.
Footnote: 2 The word "reflect" is defined by Webster's as "to think quietly and calmly."
Footnote: 3 The word "contemplate" is defined by Webster's as "to view or consider with continued attention."