State of West Virginia v. Clinton Douglas Skeens

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2014 Term
FILED
_____________ April 10, 2014
released at 3:00 p.m.
No. 12-0887 RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
_____________ OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Plaintiff Below, Respondent
v.
CLINTON DOUGLAS SKEENS,
Defendant Below, Petitioner
Appeal from the Circuit Court of Wayne County
The Honorable Darrell Pratt, Judge
Criminal Case No. 11-F-060
AFFIRMED
Submitted: March 25, 2014
Filed: April 10, 2014
Lori M. P. Waller, Esq. Patrick Morrisey
Deputy Public Defender Attorney General
Gregory L. Ayers, Esq. Benjamin F. Yancey, III
Deputy Public Defender Assistant Attorney General
Kanawha County Public Defender’s Office Charleston, West Virginia
Charleston, West Virginia Counsel for the Respondent
Counsel for the Petitioner
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. “The question of whether a defendant is entitled to an instruction on a lesser
included offense involves a two-part inquiry. The first inquiry is a legal one having to do
with whether the lesser offense is by virtue of its legal elements or definition included in the
greater offense. The second inquiry is a factual one which involves a determination by the
trial court of whether there is evidence which would tend to prove such lesser included
offense. State v. Neider, 170 W.Va. 662, 295 S.E.2d 902 (1982).” Syl. pt. 1, State v. Jones,
174 W.Va. 700, 329 S.E.2d 65 (1985).
2. “The diminished capacity defense is available in West Virginia to permit a
defendant to introduce expert testimony regarding a mental disease or defect that rendered
the defendant incapable, at the time the crime was committed, of forming a mental state that
is an element of the crime charged. This defense is asserted ordinarily when the offense
charged is a crime for which there is a lesser included offense. This is so because the
successful use of this defense renders the defendant not guilty of the particular crime
charged, but does not preclude a conviction for a lesser included offense.” Syl. pt. 3, State
v. Joseph, 214 W.Va. 525, 590 S.E.2d 718 (2003).
3. “As a general rule, the refusal to give a requested jury instruction is reviewed for
an abuse of discretion. By contrast, the question of whether a jury was properly instructed
is a question of law, and the review is de novo.” Syl. pt. 1, State v. Hinkle, 200 W.Va. 280,
489 S.E.2d 257 (1996).
4. “To warrant a change of venue in a criminal case, there must be a showing of good
cause therefor, the burden of which rests upon defendant, the only person who, in any such
case, is entitled to a change of venue. The good cause aforesaid must exist at the time
application for a change of venue is made. Whether, on the showing made, a change of
venue will be ordered, rests in the sound discretion of the trial court; and its ruling thereon
will not be disturbed, unless it clearly appears that the discretion aforesaid has been abused.”
Syl. pt. 2, State v. Wooldridge, 129 W.Va. 448, 40 S.E.2d 899 (1946).
5. “One of the inquiries on a motion for a change of venue should not be whether the
community remembered or heard the facts of the case, but whether the jurors had such fixed
opinions that they could not judge impartially the guilt or innocence of the defendant.” Syl.
pt. 3, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994).
Per Curiam:
This case is before this Court upon the appeal of Clinton Douglas Skeens (“Skeens”)
from his conviction in the Circuit Court of Wayne County of murder of the first degree,
without a recommendation of mercy. The evidence before the jury established that the
victim, Jess Scott Jarrell, (“Jarrell”) died from multiple stab wounds resulting from an
unprovoked attack carried out by Skeens at Jarrell’s home. Decades before, Jarrell had been
Skeens’s football coach at Wayne High School. Skeens acknowledged at trial that no
animosity had existed between him and Jarrell and that Jarrell had always treated him with
respect.
Skeens was sentenced to the penitentiary for a term of life, without the possibility of
parole. Thereafter, the circuit court denied Skeens’s motion for a judgment of acquittal or,
in the alternative, for a new trial. The circuit court reaffirmed that ruling in a final order
entered on July 25, 2012.1
Jarrell’s death resulting from Skeens’s attack is not in dispute. Skeens asks this Court
to set aside the conviction and grant him a new trial on the basis of two assignments of error.
1
Skeens was represented during the trial by the Wayne County Public Defender.
The final order entered on July 25, 2012, appointed the Kanawha County Public Defender
as Skeens’s counsel for purposes of appeal.
1
First, Skeens contends that the circuit court committed error in refusing to give the jury an
instruction on voluntary manslaughter. He asserts that an instruction on voluntary
manslaughter was warranted because he suffers from a mental illness which resulted in a
diminished capacity to form malice, a required element of murder. Second, Skeens contends
that the circuit court committed error in denying his motion for a change of venue. Skeens
asserts that the motion should have been granted because of a hostile sentiment toward him
generated by extensive media coverage of the case.
For the reasons stated below, this Court concludes that neither assignment of error has
merit. Consequently, Skeens’s conviction and sentence, as well as the final order of July 25,
2012, are affirmed.
I. Factual Background
The facts surrounding Jarrell’s death are largely undisputed.
In early December 2010, Skeens was engaged in a conversation with Howard Whaley
at the BP station in Wayne, West Virginia. Skeens asked Whaley where Jarrell lived. When
Whaley mentioned the Wilson’s Creek area, Skeens left the station and began walking in that
direction. Some time later, Jarrell was in the BP station and was told by Sherry Rowe, the
station manager, that Skeens had been asking for him. Rowe told Jarrell to be careful
2
because Skeens was not “the same guy that he was 30 years ago.” Rowe had lived with
Skeens from 1999 to 2003. She indicated at trial that, during those years, Skeens frequently
took pain pills and nerve pills.
On December 19, 2010, Skeens purchased two knives at the 5th Avenue Kroger store
in the City of Huntington. The purchase was in cash and with the use of a Kroger Plus Card.
One of the knives was found at the scene of the homicide. Later, about four or five days
prior to the homicide, Skeens appeared at the residence of James Stephens in the Wilson’s
Creek area and asked where Jarrell lived. When Stephens told Skeens that Jarrell lived about
three miles away, Skeens began walking in the direction of Jarrell’s home. On December 30,
2010, an unidentified man appeared at Tammy’s Florist and Gift Shop across from the BP
station in the City of Wayne and asked where Jarrell lived. The employee at the shop did not
know where Jarrell lived.
On the morning of December 31, 2010, the day of the homicide, Skeens was seen
walking toward Jarrell’s home located on Wilson’s Creek. Jarrell was also seen that morning
driving his gray Ford pickup truck. Around noon that day, Skeens attacked and killed Jarrell,
age seventy-three, at Jarrell’s home. Jarrell was stabbed forty-three times. Later that day,
Jarrell’s body was found by his adult son. Jarrell’s pickup truck was missing. Shortly
thereafter, the police arrived at the scene. The immediate investigation revealed that a
3
number of guns, and a knife, had been placed on the bed in Jarrell’s bedroom.2 However, in
addition to the truck, Jarrell’s 16-gauge shotgun and hunting knife were missing.
Through the subsequent recovery of receipts and available surveillance videos, the
State maintained that Skeens’s movements following the homicide were as follows. That
afternoon, Skeens drove Jarrell’s truck to the nearby Town of Salt Rock and purchased two
lottery tickets. Later, at 5:45 p.m., Skeens purchased some ammunition at the Wal-Mart store
on Route 60 near Huntington.
Finally, at about 6:50 p.m. on December 31, 2010, State Trooper D. J. Chapman was
parked in his cruiser near the Town of Lavalette when Skeens pulled up in Jarrell’s pickup
truck. Skeens exited the truck, pulled off his shirt and stated twice: “I’m the man that killed
Scott Jarrell.” Skeens then punched Trooper Chapman in the face while Chapman was
attempting to call for back-up. Chapman wrestled Skeens to the ground and, with assistance
from a passerby, handcuffed Skeens and placed him in custody. A search of the pickup truck
2
Among the items the police recovered at Jarrell’s home were a glass cup, two
bowls and a spoon. Subsequent fingerprint and DNA analysis at the State Police Forensic
Laboratory connected Skeens to those items. The State asserted that, after killing Jarrell,
Skeens “fixed himself a bowl of ice cream, a bowl of chili and something to drink, and
then went into the living room, sat down on the couch and had his meal.” In fact,
Skeens’s brief filed in this Court states: “After committing the homicide, Mr. Skeens sat
down in the Jarrell’s living room and ate ice cream.”
4
revealed several 16-gauge shotgun shells. Also recovered was a red sweatshirt, an analysis
of which disclosed a mixture of DNA from Skeens and Jarrell.
II. Pretrial Proceedings
In July 2011, a Wayne County grand jury returned a one count indictment charging
Skeens with the murder of Jess Scott Jarrell.
At the request of defense counsel, Dr. Bobby A. Miller, a psychiatrist, performed a
forensic evaluation of Skeens and found Skeens incompetent to stand trial. Although Dr.
Miller determined Skeens to be psychotic, Dr. Miller also found that Skeens was malingering
and exaggerating his symptoms. Dr. Miller recommended that Skeens be referred to the
William R. Sharpe, Jr., Hospital in Weston, West Virginia, for competence restoration
services. Nevertheless, in July 2011, a separate forensic evaluation of Skeens was conducted
by Dr. Ralph S. Smith, a psychiatrist, and Dr. Rosemary L. Smith, a psychologist. They
concluded that Skeens suffered from a mood disorder in conjunction with malingering and
was competent to stand trial.3
3
In addition to the determination of competency to stand trial, the report of Dr.
Ralph S. Smith and Dr. Rosemary L. Smith found Skeens to be criminally responsible for
his actions at the time of the homicide.
In Dr. Miller’s report, the question of criminal responsibility was deferred.
However, in a later report dated January 17, 2012, Dr. Miller indicated that “it is more
likely than not” that Skeens was not criminally responsible for his actions at the time of
5
In August 2011, the circuit court conducted an evidentiary hearing on Skeens’s
competency to stand trial. Dr. Ralph S. Smith maintained that Skeens was competent. Dr.
Miller, however, testified that Skeens had been hospitalized numerous times for mental
problems over a ten-year period prior to the homicide and concluded that Skeens was both
psychotic and malingering. Dr. Miller testified: “There’s no doubt in my mind that Mr.
Skeens was faking being mentally ill. There’s also no doubt in my mind that he has bipolar
disorder.” On September 7, 2011, the circuit court entered an order concluding that while
both doctors determined that Skeens was faking the severity of his psychotic symptoms, Dr.
Miller found Skeens to be suffering from a bipolar disorder and, thus, unable to assist his
counsel in his own defense. Consequently, the circuit court directed that Skeens be
transferred to the William R. Sharpe, Jr., Hospital for observation and treatment to determine
his competency to assist his counsel at trial and/or to restore his competency.
Approximately three months later, various evaluations were completed stating that
Skeens was competent to stand trial. Skeens was discharged from the hospital and
transferred to the Western Regional Jail. In an order entered on January 6, 2012, the circuit
the homicide. In a subsequent letter to defense counsel dated May 17, 2012, Dr. Miller
stated that “within the limits of Mr. Skeens’ willingness to cooperate in the evaluation
process,” it is “more likely than not” that Skeens was experiencing a bipolar episode at
the time of the offense.
6
court set forth its ruling that, based on the evidence, Skeens was competent to stand trial.
Subsequently, Skeens filed a notice reserving the right to assert a diminished capacity
defense at trial due to mental illness at the time of the homicide.
In February 2012, Skeens filed a motion for a change of venue. See W.Va. R. Crim.
P. 21 (authorizing the transfer of proceedings to another county based on prejudice in the
county of indictment), and W.Va. Code, 62-3-13 [1923] (authorizing a change of venue for
good cause in a criminal case). Skeens alleged that, because Jarrell was well-known and
well-liked in the community and the media coverage of the case was extensive, he could not
obtain a fair and impartial trial in Wayne County. Subsequently, Skeens filed a document
entitled “An Opinion Survey of Eligible Wayne County, WV Jurors for the Murder Trial of
Clinton Douglas Skeens.” Prepared at the request of Skeens’s counsel by Don Richardson
Associates, Charleston, West Virginia, the survey stated that a total of 201 randomly selected,
eligible jurors for Skeens’s upcoming trial were interviewed by telephone during the period
March 21 to April 9, 2012. The survey showed:
The events related to the alleged murder and Clinton Douglas Skeens that
were reported by the local news media were known before the survey phone
call by 171 or 85% of the respondents, 15% did not know about the events
before the phone call. . . .
7
Of the 171 respondents who knew about the information, 87, or 50% had
formed an opinion as to the guilt or innocence of the accused before the
phone call[.] . . .
Of the 87 respondents who had formed an opinion of the accused before the
phone call, 78 or 90% had negative opinions
Nevertheless, a significant number of those surveyed indicated that they could follow
the circuit court’s instruction “to presume Clinton Douglas Skeens innocent until proven
guilty, based solely on the evidence presented in the courtroom.”
On May 7, 2012, the circuit court conducted a hearing on the motion for a change of
venue. The circuit court ruled that the motion would be taken under advisement until voir
dire at trial, at which time the question of prejudice against Skeens among eligible jurors
would be reviewed.
III. The Jury Trial
Jury selection began on May 22, 2012, and continued through May 23, 2012. Over
that two-day period, sixty-four potential jurors were called and underwent voir dire in open
court. Of those, forty-four potential jurors underwent individual voir dire in chambers, and
counsel for the State and the defense were given an opportunity to ask questions.
8
Although a number of potential jurors testified in chambers that they had heard about
the case through the media, primarily when the homicide was first reported in early January
2011, few of them could recall any details of the coverage.
By the end of the jury selection process, thirty-four potential jurors had been excused
for cause. On June 4, 2012, the circuit court entered an order finding that “there was not
widespread prejudicial publicity that would jeopardize a fair trial” and that the jury selection
process was successful in empaneling qualified and impartial jurors. Accordingly, Skeens’s
motion for a change of venue was denied.
Skeens did not assert the defense of insanity at trial. Instead, he asserted diminished
capacity, a defense expressly adopted by this Court in State v. Joseph, 214 W.Va. 525, 590
S.E.2d 718 (2003). Skeens maintained that, at the time of the commission of the crime
charged, he suffered from a mental defect that rendered him incapable of forming the mental
state required for the elements of murder. Accordingly, prior to the presentation of evidence
to the jury by the defense, the circuit court heard the testimony of Skeens’s forensic
psychiatrist, Dr. Bobby A. Miller, in camera. Dr. Miller testified that, although Skeens had
the ability to develop intent and premeditation, and engage in acts done maliciously, the
intent Skeens had at the time of the homicide was irrational, based upon his bipolar or
9
psychotic condition.4 The circuit court ruled that Dr. Miller would be allowed to testify
before the jury.
Skeens testified at trial and told the jury that he once played football for Jarrell and
that Jarrell had always treated him with respect. Skeens testified that, although he had not
seen Jarrell in several years, his mental illness caused him to conclude that Jarrell was going
to kill members of Skeens’s family. Skeens further stated that he went to the Kroger store
because he needed a knife to kill Jarrell. Skeens only remembered stabbing Jarrell two or
three times and asserted that Jarrell “never suffered a lot of pain.” Finally, although Skeens
denied that he told Trooper Chapman that he killed Jarrell and denied that he punched
Chapman, Skeens testified that he killed Jarrell.
Dr. Miller then testified and stated that Skeens had the ability to form intent,
premeditation, deliberation and malice. However, Dr. Miller stated, again, that the intent
Skeens had at the time of the homicide was irrational, based upon his bipolar or psychotic
condition. While acknowledging that Skeens had a history of malingering or exaggerating
4
During his in camera testimony, Dr. Miller noted that Skeens had been
uncooperative during one of the forensic evaluations. Skeens indicated that he would not
participate in the evaluation if Dr. Miller was planning to appear in the case in support of
an insanity defense. Later, in his January 17, 2012, report, Dr. Miller determined that
Skeens had the capacity to waive his right to an insanity defense. See n. 3, supra.
10
the extent of his mental illness, Dr. Miller testified that Skeens was “both psychotic and
malingering.”
The trial was not bifurcated into a guilt phase and a penalty phase. During
instructions to the jury, the circuit court addressed Skeens’s diminished capacity defense as
follows:
The existence of a mental illness alone is not sufficient to trigger a
diminished capacity defense. It must be shown by psychiatric testimony that
some type of mental illness rendered the Defendant incapable of forming the
specific intent alleged in the crime charged.
The circuit court then told the jury that, although malice was an element of both
murder of the first and second degrees, murder of the first degree required the additional
elements of deliberation and premeditation.5
5
In State v. Horn, 232 W.Va. 32, 750 S.E.2d 248, 257 (2013), this Court
reaffirmed that W.Va. Code, 61-2-1 [1991], describes three broad categories of homicide
constituting murder of the first degree: (1) murder by poison, lying in wait, imprisonment,
starving; (2) by any willful, deliberate and premeditated killing; and (3) in the
commission of, or attempt to commit, certain enumerated crimes. In this case, the second
category, requiring deliberation and premeditation, was alleged by the State. Thus, we
note the following observation found in State v. Hatfield, 169 W.Va. 191, 198, 286
S.E.2d 402, 407-08 (1982): “It is clear, however, that the intent to kill or malice is a
required element of both first and second degree murder but the distinguishing feature for
first degree murder is the existence of premeditation and deliberation.” Accord State v.
Davis, 220 W.Va. 590, 594 n. 6, 648 S.E.2d 354, 358 n. 6 (2007).
11
Following the reading of instructions and argument of counsel, the case was submitted
to the jury. The jury was presented with four options: (1) guilty of murder of the first degree,
without a recommendation of mercy; (2) guilty of murder of the first degree, with a
recommendation of mercy; (3) guilty of murder of the second degree; and (4) not guilty. The
jury found Skeens guilty of murder of the first degree, without a recommendation of mercy.
The circuit court sentenced Skeens to the penitentiary for a term of life, without the
possibility of parole.
The circuit court subsequently denied Skeens’s motion for a judgment of acquittal or,
in the alternative, for a new trial. See W.Va. R. Crim. P. 29 and 33 (addressing motions for
judgment of acquittal and for a new trial).6 The circuit court confirmed that ruling in its final
order entered on July 25, 2012. This appeal followed.
6
Skeens’s post-trial motion for a judgment of acquittal or, in the alternative, for a
new trial, was a renewal of the oral motion he made at the close of the State’s case-in­
chief. Denying that motion at trial, the circuit court stated:
. . . [T]he Defendant in this case was looking for the victim, for
whatever reason, but for several weeks prior to the actual crime - - that,
establishing elements of premeditation.
Also, the purchase of weapons, and I believe that was maybe 10 days
or so prior to the killing. That establishes, in my opinion, the element of
deliberation.
Maliciousness was shown from the brutality of the crime, itself.
12
IV. Standards of Review
The standard of review pertaining to the denial of Skeens’s motion for a judgment of
acquittal or, in the alternative, for a new trial is found in syllabus point 3 of State v. Vance,
207 W.Va. 640, 535 S.E.2d 484 (2000):
In reviewing challenges to findings and rulings made by a circuit court,
we apply a two-pronged deferential standard of review. We review the rulings
of the circuit court concerning a new trial and its conclusion as to the existence
of reversible error under an abuse of discretion standard, and we review the
circuit court’s underlying factual findings under a clearly erroneous standard.
Questions of law are subject to a de novo review.
Accord syl. pt. 1, State v. Horn, supra.
Additional standards of review directly relating to the two assignments of error raised
by Skeens are set forth below.
V. Discussion
A.
Instruction on Voluntary Manslaughter
Skeens first assigns as error the refusal of the circuit court to instruct the jury on
voluntary manslaughter. Skeens contends that Dr. Miller’s testimony concerning Skeens’s
mental illness was sufficient to create a reasonable doubt on the question of malice.
Therefore, had the instruction been given, the jury could have found Skeens guilty of
voluntary manslaughter, rather than having been presented with the limited options of a
13
murder verdict or a verdict of not guilty. Skeens asserts that the refusal to give the
instruction denied his right to a fair trial. The circuit court was of the opinion, however, that
an instruction on voluntary manslaughter was not warranted by the evidence.
In State v. Jones, 174 W.Va. 700, 329 S.E.2d 65 (1985), this Court held in syllabus
point 1:
The question of whether a defendant is entitled to an instruction on a
lesser included offense involves a two-part inquiry. The first inquiry is a
legal one having to do with whether the lesser offense is by virtue of its
legal elements or definition included in the greater offense. The second
inquiry is a factual one which involves a determination by the trial court of
whether there is evidence which would tend to prove such lesser included
offense. State v. Neider, 170 W.Va. 662, 295 S.E.2d 902 (1982).
Accord syl. pt. 3, State v. Wilkerson, 230 W.Va. 366, 738 S.E.2d 32 (2013).
It is well settled that voluntary manslaughter, a felony under W.Va. Code, 61-2-4
[1994], is a lesser included offense of murder. See State v. McGuire, 200 W.Va. 823, 834,
490 S.E.2d 912, 923 (1997); State v. Guthrie, 194 W.Va. 657, 671, 461 S.E.2d 163, 177
(1995). In this case, the inquiry, therefore, is a factual one.7
7
In the past, the resolution of facts in that context has been considered by this
Court along various avenues of discussion, all to the same end, i.e., whether the evidence,
at trial, warranted the giving of an instruction on a lesser included offense. In State v.
14
In State v. Joseph, supra, this Court addressed the defense or, more accurately, the
rule of evidence known as diminished capacity. That case involved an altercation during
which the defendant grabbed a pistol, shot the victim, and then backed over the victim in a
vehicle in a hasty attempt to leave the scene. At trial, the defendant was convicted of murder
of the first degree, with mercy. Several years prior to the incident, the defendant suffered a
brain injury in a motorcycle accident. In Joseph, the defendant asserted error in the exclusion
of expert testimony offered to show diminished capacity resulting from the brain injury.
According to the defendant, his diminished capacity prevented him from forming the
requisite mental state for the commission of first or second degree murder. The defendant’s
forensic psychologist would have testified that, although the defendant was capable of
forming premeditation and malice, “the rapidity of the situation” prevented the defendant
from forming those elements at the time of the homicide.
Allen, 131 W.Va. 667, 49 S.E.2d 847 (1948), for example, it was observed that, “except
in extreme cases, where no possible verdict other than murder of first or second degree or
an acquittal, could be justified, and where there is appreciable evidence of any other grade
of homicide,” the jury should be given an instruction defining manslaughter. 131 W.Va.
at 677, 49 S.E.2d at 852. Stated somewhat differently, syllabus point 1 of State v.
Stephenson, 114 W.Va. 458, 172 S.E. 533 (1933), holds: “In a trial for murder, where the
evidence does not admit of any other conclusion than of murder in the first degree, an
instruction on a lesser grade of the offense charged, need not be granted.”
15
This Court concluded, in Joseph, that the evidence of the forensic psychologist was
sufficient for jury consideration and that, therefore, the defendant was entitled to a new trial.
Expressly adopting the concept of diminished capacity in regard to criminal cases, syllabus
point 3, of Joseph, holds:
The diminished capacity defense is available in West Virginia to
permit a defendant to introduce expert testimony regarding a mental disease
or defect that rendered the defendant incapable, at the time the crime was
committed, of forming a mental state that is an element of the crime
charged. This defense is asserted ordinarily when the offense charged is a
crime for which there is a lesser included offense. This is so because the
successful use of this defense renders the defendant not guilty of the
particular crime charged, but does not preclude a conviction for a lesser
included offense.
Accord syl. pt. 3, State v. Ferguson, 222 W.Va. 73, 662 S.E.2d 515 (2008) (The trial court
committed error in striking the testimony of a psychologist called by the defendant in support
of his diminished capacity defense.).8
In so holding, however, this Court, in Joseph, confirmed the principle that the
admissibility of testimony of an expert witness is a matter within the sound discretion of the
circuit court. Moreover, in Joseph, this Court, citing State v. Simmons, 172 W.Va. 590, 600,
8
See generally Vitauts M. Gulbis, Annotation, Admissibility of Expert Testimony
as to Whether Accused Had Specific Intent Necessary for Conviction, 16 A.L.R. 4th 666
(1982); C. T. Drechsler, Annotation, Mental or Emotional Condition as Diminishing
Responsibility for Crime, 22 A.L.R. 3d 1228 (1968).
16
309 S.E.2d 89, 99 (1983), noted: “The existence of a mental illness is not alone sufficient
to trigger a diminished capacity defense.” It must be shown by expert testimony that the
mental illness “rendered the defendant incapable of forming the specific intent elements.”
Joseph, 214 W.Va. at 532, 590 S.E.2d at 725.
In the case now before us, the circuit court, as in Joseph, conducted an in camera
hearing and heard the testimony of Skeens’s forensic psychiatrist, Dr. Bobby A. Miller.
Unlike Joseph, however, the circuit court permitted Dr. Miller to testify at trial and gave the
jury an instruction on diminished capacity.
The circuit court had misgivings about allowing Dr. Miller to testify. Of concern was
Dr. Miller’s prior letter of May 17, 2012, to defense counsel which addressed Skeens’s
criminal responsibility. The letter, consisting of a single paragraph of less than five lines,
stated that “within the limits of Mr. Skeens’s willingness to cooperate in the evaluation
process,” it is “more likely than not” that Skeens was experiencing a bipolar episode at the
time of the offense. Suggesting that the letter was equivocal, the circuit court questioned the
letter’s sufficiency as a basis for Dr. Miller’s testimony at trial. Dr. Miller explained during
the in camera hearing that Skeens’s lack of cooperation was only to the extent that Skeens
did not want an insanity defense to be pursued. Dr. Miller then stated that, as a psychiatrist,
17
he would have felt “more comfortable discussing straight up insanity.”9 Nevertheless, unlike
Joseph, in this case it was not until the conclusion of the trial, which included Dr. Miller’s
testimony, that the circuit court ruled that the evidence was insufficient to instruct the jury
on voluntary manslaughter.
During the trial, Dr. Miller testified that Skeens had the ability to form intent,
premeditation, deliberation and malice. However, Dr. Miller stated that the intent Skeens had
at the time of the homicide was irrational, based upon his mental condition. Moreover, Dr.
Miller testified that Skeens was “both psychotic and malingering.”
Though not dispositive, a review of Dr. Miller’s testimony in the context of other
evidence presented to the jury is helpful. During rebuttal, the State called Dr. Thomas
Hamilton, an emergency room physician at Cabell Huntington Hospital. Dr. Hamilton
treated Skeens in the early morning hours after the homicide for shoulder and rib pain
sustained in the scuffle with Trooper Chapman. Dr. Hamilton testified that Skeens did not
9
During the in camera hearing, the following exchange occurred:
The Court: So, in doing that, I think [Skeens] forecloses on an
insanity defense. So, now you’re coming in here and asked to try to
somehow back door, or through the basement door, give the jury
information about a diminished capacity that you don’t believe really exists.
Dr. Miller: Well, I would not negate intent. I would talk about the
irrational nature of the intent.
18
exhibit any behavior which caused him to believe that a psychiatric or psychological consult
was warranted.
The State also called Dr. Ralph S. Smith, a forensic psychiatrist. Concluding from his
evaluation that Skeens was criminally responsible at the time of the homicide, Dr. Smith
testified: “He just did not appear psychotic to me. Therefore, we had these specialized tests
for malingering or faking, which he showed that he was faking a mental illness.” Moreover,
although Skeens, at trial, only remembered stabbing Jarrell two or three times, Dr. Smith
testified that Skeens told him that he stabbed Jarrell over forty times. Dr. Smith also testified
that Skeens had a history of substance abuse.
Also of significance is the evidence that, after Jarrell was killed, Skeens took Jarrell’s
Ford pickup truck,10 drove to Salt Rock to purchase lottery tickets and then drove to a Wal-
Mart store to purchase ammunition. Soon after, Skeens drove the truck to Lavalette where
he confronted Trooper Chapman.
In syllabus point 17 of State v. Hamric, 151 W.Va. 1, 151 S.E.2d 252 (1966), this
Court held: “It is not necessary to show motive in case of a homicide in order to warrant a
verdict of murder.” Here, the jury was presented with four possible verdicts: (1) guilty of
10
In addition, Skeens allegedly took Jarrell’s 16-gauge shotgun and hunting knife.
19
murder of the first degree, without a recommendation of mercy; (2) guilty of murder of the
first degree, with a recommendation of mercy; (3) guilty of murder of the second degree; and
(4) not guilty. Bypassing the less egregious options, the jury found Skeens guilty of murder
of the first degree, without a recommendation of mercy.
Syllabus point 1 of State v. Hinkle, 200 W.Va. 280, 489 S.E.2d 257 (1996), states:
As a general rule, the refusal to give a requested jury instruction is
reviewed for an abuse of discretion. By contrast, the question of whether a
jury was properly instructed is a question of law, and the review is de novo.
Accord syl. pt. 1, State v. Thompson, 220 W.Va. 246, 647 S.E.2d 526 (2007). See also syl.
pt. 4, State v. Collins, 154 W.Va. 771, 180 S.E.2d 54 (1971) (“Instructions must be based
upon the evidence and an instruction which is not supported by evidence should not be
given.”).
This Court has reviewed the evidence submitted by the defense at trial and concludes
that Skeens’s request for an instruction on voluntary manslaughter was a matter properly
within the discretion of the circuit court. Following the in camera hearing conducted
pursuant to State v. Joseph, supra, the circuit court, with some hesitation, permitted Dr.
Miller to testify in support of Skeens’s assertion of diminished capacity. After the close of
the evidence, the circuit court concluded that an instruction on voluntary manslaughter was
20
not warranted by the evidence. This Court is of the opinion that the refusal to give that
instruction was “protected by the parameters of sound discretion.” State v. Shingleton, 222
W.Va. 647, 652, 671 S.E.2d 478, 483 (2008).
Accordingly, this assignment of error is without merit.
B.
The Motion for a Change of Venue
In this assignment of error, Skeens contends that the circuit court abused its discretion
in denying his motion for a change of venue. Skeens asserts that the motion should have
been granted because of a widespread, hostile sentiment toward him in Wayne County.
According to Skeens, the hostile sentiment was generated by extensive media coverage of
the case resulting from the fact that Jarrell was a well-known and well-liked member of the
community.11 Skeens, thus, alleges a denial of his right to a fair and impartial trial.
In support of the motion, Skeens filed a telephone survey of 201 randomly selected,
eligible Wayne County jurors. The survey showed that 171 of the respondents knew about
11
Skeens, however, acknowledges in his brief: “Unfortunately, defense counsel
failed to submit for the record the news media articles in support of the motion for change
of venue. Current counsel’s motion to supplement the record with these articles was
denied by this Court.”
21
the case and that, of that number, 87 had formed an opinion as to guilt or innocence. Of the
87 respondents who had formed an opinion, 78 had formed a negative opinion toward the
accused. Nevertheless, a significant number of those surveyed indicated that they could
follow the circuit court’s instruction “to presume Clinton Douglas Skeens innocent until
proven guilty, based solely on the evidence presented in the courtroom.” The circuit court
conducted a hearing on the motion for a change of venue and took the motion under
advisement until completion of the voir dire process at trial. After voir dire was completed,
the motion was denied.
A defendant in a criminal case has a fundamental right to an impartial, objective jury
that, without bias and prejudice, can render a verdict solely on the evidence and under the
instructions of the trial court. An effective voir dire process is necessary to secure that right.
Syllabus point 3 of State v. Pratt, 161 W.Va. 530, 244 S.E.2d 227 (1978), states:
Jurors who on voir dire of the panel indicate possible prejudice should
be excused, or should be questioned individually either by the court or by
counsel to precisely determine whether they entertain bias or prejudice for or
against either party.
Accord syl., State v. Deaner, 175 W.Va. 489, 334 S.E.2d 627 (1985). See W.Va. R. Crim.
P. 24.(a) (providing for the examination of prospective jurors). In some cases, a change of
venue is required to provide the accused a fair trial.
22
The principles associated with a motion for a change of venue are well settled.
Several of those principles are set forth in syllabus point 2 of State v. Wooldridge, 129 W.Va.
448, 40 S.E.2d 899 (1946):
To warrant a change of venue in a criminal case, there must be a
showing of good cause therefor, the burden of which rests upon defendant, the
only person who, in any such case, is entitled to a change of venue. The good
cause aforesaid must exist at the time application for a change of venue is
made. Whether, on the showing made, a change of venue will be ordered,
rests in the sound discretion of the trial court; and its ruling thereon will not be
disturbed, unless it clearly appears that the discretion aforesaid has been
abused.
Accord syl. pt. 6, State v. Black, 227 W.Va. 297, 708 S.E.2d 491 (2010).
In this case, jury selection began on May 22, 2012, and continued through May 23,
2012. Over that two-day period, sixty-four potential jurors were called and underwent voir
dire in open court. Of that number, forty-four potential jurors were questioned individually
in chambers, and counsel for the State and the defense were given an opportunity to ask
questions.
By the end of the voir dire process, thirty-four potential jurors had been excused for
cause. The circuit court subsequently entered an order finding that “there was not
widespread prejudicial publicity that would jeopardize a fair trial” and that the jury selection
23
process was successful in empaneling qualified and impartial jurors. Skeens’s motion for a
change of venue was, therefore, denied.
The circuit court acted with care and thoroughness in ruling on Skeens’s motion for
a change of venue. Following the pretrial hearing on the motion, the circuit court devoted
two full days to voir dire, which included detailed questions about media exposure and other
knowledge concerning the case. The questioning took place in open court and in chambers.
Both counsel for the State and the defense participated. The remaining, potential jurors were
again questioned about possible knowledge of the case immediately prior to the State’s
opening statement.
None of the potential jurors called for jury duty in Skeens’s trial had been contacted
for the survey filed in support of Skeens’s motion. Nevertheless, many of the potential jurors
expressed awareness of the case gained through local news reports. Most of that exposure,
however, occurred shortly after the homicide took place on December 31, 2010, nearly a year
and a half prior, and few potential jurors could recall any details of the coverage. Moreover,
a review of the May 22 and May 23, 2012, transcripts reveals that the questioning on voir
dire was extensive, particularly the questioning of potential jurors by the circuit court and
defense counsel in chambers.
24
Not all of the strikes for cause were due to media exposure. One juror was dismissed
for cause because his uncle was a State Trooper, and another juror was dismissed because
of a criminal conviction. Several of the potential jurors questioned, in chambers, revealed
that, although they were aware of media reports about the case, they knew a witness or a
police officer involved in the case, had a connection to Wayne High School, or had a
connection to a prior, unrelated criminal proceeding.
Syllabus point 3 of State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994), states:
One of the inquiries on a motion for a change of venue should not be
whether the community remembered or heard the facts of the case, but whether
the jurors had such fixed opinions that they could not judge impartially the
guilt or innocence of the defendant.
Accord syl. pt. 4, State v. Blevins, 231 W.Va. 135, 744 S.E.2d 245 (2013). See also syl. pt.
1, State v. Gangwer, 169 W.Va. 177, 286 S.E.2d 389 (1982) (“Widespread publicity, of
itself, does not require change of venue, and neither does proof that prejudice exists against
an accused, unless it appears that the prejudice against him is so great that he cannot get a
fair trial.”).
The approach of the circuit court was legally sound, and its finding that the jury
selection process was successful in empaneling qualified and impartial jurors is supported
25
by the evidence.12 Accordingly, the denial of Skeens’s motion for a change of venue was
within the circuit court’s discretion, and this assignment of error is without merit.
VI. Conclusion
For the reasons stated above, Skeens’s conviction and sentence, as well as the circuit
court’s final order of July 25, 2012, are affirmed.
Affirmed.
12
See State v. Toney, 98 W.Va. 236, 242, 127 S.E. 35, 37 (1925) (“The appearance
of the juror, his bearing, and manner, are often of great consequence in interpreting his
answers, and for that reason in any doubtful case the decision of the trial court as to his
eligibility must control.”).
26