Albright, Chief Justice, dissenting:
I dissent from the majority opinion because I believe the trial court committed reversible error by not granting defense counsel's request to instruct the jury on the lesser included offense of voluntary manslaughter considering the strategical change the State made during the course of the trial.
Initially, based on evidence of premeditation and deliberation, the State proceeded to present its case and seek only a conviction for first degree murder. The defendant relied on this representation in preparing his defense and in deciding to waive a jury instruction for voluntary manslaughter. When the State began to question the strength of its evidence and sought and obtained a jury instruction for the lesser included offense of second degree murder, then fairness dictates that the defendant should have been permitted to adjust to this mid-stream change in direction and obtain a jury instruction for voluntary manslaughter as there was evidence that the intentional killing was the result of sudden heat of passion rather than malice.
The critical distinction between murder and
voluntary manslaughter is the element of malice. State v. Kirtley, 162
W.Va. 249, 254, 252 S.E.2d 374, 376-77 (1978) (citation omitted). Stated somewhat
more descriptively, The distinguishing feature between murder and manslaughter
is that murder comes from the wickedness of the heart, and manslaughter, where
voluntary, arises from the sudden heat of passion due to gross provocation. State
v. Wilson, 95 W.Va. 525, 531, 121 S.E. 726, 729 (1924). In State v. McGuire,
200 W. Va. 823, 490 S.E.2d 912 (1997), we held that [g]ross provocation
and heat of passion are not essential elements of voluntary manslaughter, . .
. [which would require proof] beyond a reasonable doubt. It is intent without
malice, not heat of passion, which is the distinguishing feature of voluntary
manslaughter. Id. at Syl. Pt. 3. In footnote seven of State v.
Starkey, 161 W.Va. 517, 527, 244 S.E.2d 219, 225 (1978), we said: It
is important to note that provocation is not a defense to the crime [of voluntary
manslaughter], but merely reduces the degree of culpability[.] (Citations
omitted). In other words, while an accused may not avoid conviction by using
proof of heat of passion as a complete defense, an accused may make use
of such evidence to defend against the greater crimes of first and second degree
murder. In this context, evidence of provocation and heat of passion is used
by a defendant to disprove the existence of malice. This Court long ago stated
that [m]alice is of the essence of murder, and the prisoner has a right
to disprove it in any legitimate manner. State v. Evans, 33 W. Va.
417, 424, 10 S.E. 792, 794 (1890). These words are especially relevant in the
circumstances at hand where the defendant's exposure
to liability was broadened due to a material change in the prosecution which
the State initiated during the course of a trial.
The evidence in this case demonstrated that the defendant was incensed when he realized that his mother was eavesdropping on a phone call that he was having with a married woman with whom he was having an affair. Admittedly, eavesdropping is not generally considered a source of gross provocation. However, in circumstances where the State is permitted to change its strategy during the course of trial and in so doing obtains an increased opportunity for conviction, a defendant should be given the opportunity to develop a defense to counter that advantage. In this case, the defendant wanted to challenge the State's proof of malice with the evidence of heat of passion and he should have been afforded that opportunity. While the State had every right to have the second degree murder instruction, the defendant should not be prejudiced in his defense because the State delayed in making its intentions known. Under these circumstances, I believe that the requested voluntary manslaughter instruction should have been given and that the failure to give the instruction prejudiced the defendant.
As I believe an unfair advantage was afforded the State in this case resulting in prejudice to Appellant, I respectfully dissent.