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State v. Sanders

Supreme Court of West Virginia

April 9, 2019

STATE OF WEST VIRGINIA, Respondent
v.
MARCUS STEPHEN SANDERS, Petitioner

          Submitted: February 6, 2019

          Appeal from the Circuit Court of Raleigh County The Honorable John A. Hutchison, Judge Criminal Action No. 15-F-242-H

          Andrew R. Shumate, Esq. Jason D. Parmer, Esq. Public Defender Services Charleston, West Virginia Counsel for the Petitioner

          Patrick Morrisey, Esq. Attorney General Zachary Viglianco, Esq. Assistant Attorney General Charleston, West Virginia Counsel for the Respondent

          JUSTICE HUTCHISON is disqualified. JUSTICE ARMSTEAD dissents and reserves the right to file a separate opinion. ACTING JUSTICE LOUIS H. BLOOM sitting by temporary assignment dissents and reserves the right to file a separate opinion.

         SYLLABUS BY THE COURT

         1. "'Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.' Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995)." Syl. Pt. 1, State v. Butler, 239 W.Va. 168, 799 S.E.2d 718 (2017).

         2. "The crime of felony-murder in this State does not require proof of the elements of malice, premeditation or specific intent to kill. It is deemed sufficient if the homicide occurs accidentally during the commission of, or the attempt to commit, one of the enumerated felonies." Syl. Pt. 7, State v. Sims, 162 W.Va. 212, 248 S.E.2d 834 (1978).

         3. "'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.' Syl. Pt. 2, State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978)." Syl. Pt. 1, State v. Burd, 187 W.Va. 415, 419 S.E.2d 676 (1991).

         4. "Where formation of criminal intent is accompanied by preparation to commit the crime of murder and a direct overt and substantial act toward its perpetration, it constitutes the offense of attempted murder." Syl. Pt. 2, State v. Burd, 187 W.Va. 415, 419 S.E.2d 676 (1991).

         5. Attempted felony-murder is not a cognizable crime under West Virginia law.

          WORKMAN, Justice.

         This case is before the Court upon the appeal of the petitioner, Marcus Stephen Sanders, from the November 17, 2016, order sentencing him, inter alia, to an indeterminate term of imprisonment of not less than three nor more than fifteen years for his jury conviction of the charge of attempted first-degree murder under a felony-murder theory (hereinafter "attempted felony-murder").[1] The sole issue on appeal is whether the offense of attempted first-degree murder under a felony-murder theory is a cognizable crime in West Virginia. Based upon our review of the parties' arguments and briefs, which included the Respondent's, State of West Virginia's (hereinafter "the State"), confession of error on the issue, as well as the appendix record, we agree with both parties in this case and find that there is no cognizable crime of attempted felony-murder in this State. Accordingly, we reverse the petitioner's conviction and sentence for attempted felony-murder and remand this case for resentencing.

         I. Facts and Procedural History

         The petitioner and his co-defendant, Deshaun Evans, [2] arranged a drug deal with Josh Palmer, who was going to sell them some drugs. After arranging the drug purchase, the petitioner and Mr. Evans decided to rob Mr. Palmer rather than purchase the drugs from him. Before this drug transaction was to occur, Mr. Palmer met up with Christopher Greene, who was Mr. Palmer's next-door neighbor in an apartment building and who was going to purchase cigarettes. Mr. Greene had no knowledge of the drug deal. On their way to buy cigarettes, Mr. Palmer and Mr. Greene came upon the petitioner and Mr. Evans, who was wearing a mask at the time. Both the petitioner and Mr. Evans had guns and robbed Mr. Greene, taking his wallet. The petitioner or Mr. Evans beat and "pistol whipped" Mr. Greene after robbing him as Mr. Greene tried to get away. Mr. Palmer fled the scene and returned to his apartment building where he sought help from Michelle Morr Greene, Mr. Greene's wife. Mrs. Greene arrived at the scene where her husband was being beaten and as she tried to help, she sustained a single gunshot wound when four rounds from a gun were discharged. There was no evidence as to who discharged the gun.

         On May 13, 2015, the petitioner was indicted on eight counts, including first-degree robbery of Mr. Greene, attempted first-degree murder of Mr. Greene, wanton endangerment involving a firearm of Mr. Greene, attempted first-degree murder of Mrs. Greene, malicious assault of Mrs. Greene, wanton endangerment involving a firearm of Mrs. Greene, misdemeanor illegal possession of a firearm, and felony conspiracy.

         It was not until the final pretrial hearing, which occurred the day before the trial, that the State indicated that it would pursue the theory of attempted felony-murder against the petitioner.[3] The petitioner objected, arguing that there is no attempted felony-murder crime. The circuit court, however, allowed the State to proceed with attempted first-degree-felony-murder, which both parties and the circuit court acknowledged relieved the State of proving premeditation or specific intent. As the circuit court stated, "if . . . [the State] proves that the attempted murder occurred during the commission of a crime, it's easier for . . . [it] to prove the commission of the crime than it is to prove premeditation. That's one of those anomalies and, I mean, the Supreme Court discussed it at some length in Dallas Hughes."[4]

         The jury, after hearing all the evidence presented at trial, convicted the petitioner on the charge of attempted felony-murder of Mr. Greene, among other counts. On November 16, 2016, the circuit court sentenced the petitioner to an indeterminate term of not less than three nor more than fifteen years on this count.[5] It is from the circuit court's sentencing order that the petitioner appeals.

         II. Standard of Review

         We are guided by the following standard of review in resolving the issue now before the Court: "'Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.' Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995)." Syl. Pt. 1, State v. Butler, 239 W.Va. 168, 799 S.E.2d 718 (2017).

         III. Discussion

         The sole issue in this case is whether the crime of attempted felony-murder exists in West Virginia. The petitioner contends that it does not. He argues that the circuit court's attempted felony-murder instruction diminished the State's burden of proof and violated his right to due process because it excluded the essential element of any attempt crime in this State - the mens rea. He also argues that the felony-murder doctrine does not apply in the absence of a death in the commission of a felony. As the petitioner contends, the felony-murder doctrine is a special rule that allows for punishment of unintentional deaths that occur during the course of the commission (or attempted commission) of certain felonies. Thus, if there is no death, then this doctrine is not applicable. The State agrees with the petitioner on the issue before us, arguing that existing law in West Virginia forecloses the existence of the crime of attempted felony-murder.

         We begin by examining our felony-murder law to better understand why attempted felony-murder is not a viable crime. West Virginia Code § 61-2-1 (2014) defines felony-murder as follows: "Murder . . . in the commission of, or attempt to commit, arson, kidnapping, sexual assault, robbery, burglary, breaking and entering, escape from lawful custody, or a felony offense of manufacturing or delivering a controlled substance as defined in article four, chapter sixty-a of this code, is murder of the first degree." (Citation omitted). This Court has found that "[t]he crime of felony-murder in this State does not require proof of the elements of malice, premeditation or specific intent to kill. It is deemed sufficient if the homicide occurs accidentally during the commission of, or the attempt to commit, one of the enumerated felonies." Syl. Pt. 7, State v. Sims, 162 W.Va. 212, 248 S.E.2d 834 (1978) (emphasis added); see Syl. Pt. 2, State ex rel. Davis v. Fox, 229 W.Va. 662, 735 S.E.2d 259 (2012) ("'"[T]he elements which the State is required to prove to obtain a conviction of felony murder are: (1) the commission of, or attempt to commit, one or more of the enumerated felonies; (2) the defendant's participation in such commission or attempt; and (3) the death of the victim as a result of injuries received during the course of such commission or attempt." State v. Williams, 172 W.Va. 295, 305 S.E.2d 251, 267 (1983).' Syl. Pt. 5, State v. Mayle, 178 W.Va. 26, 357 S.E.2d 219 (1987)."). Thus, we have definitively concluded that in order for felony-murder to apply, there must be a homicide. As we stated in the Davis case,

[t]o date, the offense of felony murder, which has its origins in the common law of this state, has always involved the death of a victim of the felony or a police officer. See State v. Wade, 200 W.Va. 637, 490 S.E.2d 724 (1997); Mayle, 178 W.Va. at 28, 357 S.E.2d at 222, State v. Williams, 172 W.Va. 295, 305 S.E.2d 251 (1983); State v. Dawson, 129 W.Va. 279, 40 S.E.2d 306 (1946); State v. Beale, 104 W.Va. 617, 630, 141 S.E. 7, 12 (1927). Consequently, we flatly disagree with Petitioner's suggestion that our settled jurisprudence "offer[s] no insight on whether the Felony Murder statute requires proof of the death of the victim."
At common law, a conviction for felony murder predicated on the offense of robbery required a showing of a homicide committed by the defendant or by an accomplice in the attempt to commit or in the commission of a robbery. See Sims, 162 W.Va. at 223, 248 S.E.2d at 841; Robertson ...

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