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State v. Putnam

Supreme Court of West Virginia

April 7, 2017

State of West Virginia, Plaintiff Below, Respondent
v.
Kevin Lane Putnam, Defendant Below, Petitioner

         Lewis County 15-F-120

          MEMORANDUM DECISION

         Petitioner Kevin Lane Putnam, by counsel James E. Hawkins, Jr. and Bryan S. Hinkle, appeals his conviction of voluntary manslaughter following a jury trial. Respondent State of West Virginia, by counsel Julie A. Warren, filed a response.

         The Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.

         Shortly after midnight on February 10, 2015, an ambulance and law enforcement officers arrived at the Lewis County home of Steve and Beverly Putnam in response to a 911 call. There, the officers found two of the Putnam's three sons-Steven Jerod Putnam, who had been shot in the chest, and petitioner, who told the officers his brother Steven arrived at the house with the gunshot wound. Steven (the "victim") was taken to the hospital and pronounced dead. Petitioner was taken to a police station and interviewed by Corporal Michael Clark. While these events were taking place, Steve and Beverly Putnam were driving home from Florida.

         Back at the Putnam's house, the officers searched the victim's unlocked car, which was sitting outside the house. Despite petitioner's claim that the victim arrived at the house with a gunshot wound, the officers found no trace of blood in the car. However, they did find an unloaded 9 mm revolver and an open bottle of beer. In the house, the officers found a .22 caliber bullet in a wall and a fired cartridge for a .22 caliber bullet. The officers also retrieved several firearms from Mr. and Mrs. Putnam's bedroom, including a .22-250 caliber rifle.

         On August 25, 2015, petitioner was indicted for the first-degree murder of the victim. Petitioner's trial commenced on February 16, 2016. During its case-in-chief, the State called the following witnesses:

         Dr. Joseph Deltondo, who performed an autopsy on the victim, testified that the victim died from "perforations to the heart and lung, due to a gunshot wound to the chest"; that "the manner of death [was] homicide"; that a .22 caliber bullet was removed from the victim's body; that the victim had blunt force trauma to his forehead, nose and mouth area, and minor trauma on his left index and ring finger; and that the victim had a blood alcohol level of .15 to .18, which could have impacted his inhibitions and hand-eye coordination.

         Sergeant Judd Holcomb, one of the officers who arrived at the scene on February 10, 2015, testified about the layout of the house, the position of the victim's body, the firearms found in the house, and the items found in the victim's car. Sgt. Holcomb described the scene at the house as lacking any "indicat[ion] that there was any type of massive altercation . . . there was nothing out of place, there was nothing turned over, " there was no "blood anywhere[.]" Sgt. Holcomb also testified that, at the scene, petitioner claimed the victim arrived at the house with a gunshot wound to his chest.

         Corporal Michael Clark, who took petitioner's recorded statement at the police station soon after the shooting, testified as follows: At the outset of his statement, petitioner again claimed that the victim arrived at the house with a gunshot wound; however, petitioner later admitted he was in a confrontation with the victim during which he shot the victim. Petitioner also claimed that the victim did not want petitioner staying at their parents' house; the victim was the aggressor and had chased him through the house even though petitioner begged him not to; that he just wanted the victim to "stop beating on him"; that the victim "was coming at me and I just lose [sic] it"; that he retreated to his parents' bedroom, grabbed a long gun, and fired two shots at the victim who was six to eight feet away; that he "didn't know you could kill somebody with a .22"; and that he was not afraid of the victim.

         Jason Putnam, petitioner's remaining brother, testified that, on the afternoon before the shooting, the victim told him that petitioner was at their parents' house but should not be there; that the victim was thinking about going to their parents' house and said, "I wonder if I went and broke both [petitioner's] legs, if [petitioner] would-laid up in the hospital, that [petitioner] would be dried out and straighten up"; and that there was a .22 rifle in his parents' home that "had been loaded for years, with a clip in it."

         Beverly Putnam, petitioner and the victim's mother, testified that, two weeks prior to the shooting, she told petitioner to "stay away" from her house because "he was terrorizing us"; that before she left for Florida, petitioner told her that "if [she] sent [the victim] after him again, he [petitioner] was going to kill [the victim]"; that she spoke with the victim on the phone a few hours before the shooting during which the victim offered to get petitioner "out of the house." Mrs. Putnam testified that she replied, "no" and "[i]f he's not bothering anybody right now, just let him stay there and let him be, don't bother him."

         Susan Whitehair, petitioner's girlfriend, testified that she arrived at Mr. and Mrs. Putnam's house around 11:00 p.m. on February 9, 2015; that, about midnight, the victim "just walked into" the house and told petitioner to leave; that an altercation ensued between petitioner and the victim, during which the victim was on top of petitioner, they were hitting each other, and petitioner was saying "stop this"; that the victim was the aggressor; that she ran to the bathroom to retrieve her keys and, on leaving the bathroom, saw the victim standing by the front door holding a gun; that petitioner ran down the hall toward his parents' bedroom; that as she ran back into the bathroom, she heard petitioner say he did not "want to fight anymore" and "don't come back here"; that she started screaming and heard a pop; that three or more minutes later, she emerged from the bathroom and saw the victim on the floor with a gunshot wound; that she attempted to render aid and called 911, but handed the phone to petitioner so she could continue to render aid to the victim; and that she left the residence before the ambulance and the police arrived.

         The State then rested. Petitioner moved for a judgment of acquittal, but the circuit court denied that motion. Thereafter, the defense rested without calling any witnesses. Following jury instructions and closing arguments, the jury retired to deliberate. Two hours into their deliberations, the jury presented the following question to the court: "What constitutes the difference between Voluntary and Involuntary Manslaughter?" In response, the circuit court repeated Instruction No. 1 that defined voluntary and involuntary manslaughter, as well as first-degree and second-degree murder. About six hours into their deliberations, the jury advised the bailiff that they were unable to reach a verdict. Over petitioner's objection, the circuit court gave the jury an Allen charge[1] and the jury resumed deliberations. About an hour later, the jury asked for a written copy of the instruction listing the elements of voluntary and involuntary manslaughter. The circuit court agreed to give the jury a copy of Instruction No. 1; however, petitioner objected to the jury receiving Instruction No. 1 without also receiving a copy of Instruction No. 15, which provided as follows:

[I]f you have reasonable doubt as to the grade of the offense of which [petitioner] may be guilty, you shall resolve that doubt in his favor and find him guilty of the lower grade of offense. If you have reasonable doubt as to whether he is guilty of any offense, ...

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