IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2014 Term
FILED
October 16, 2014
released at 3:00 p.m.
RORY L. PERRY II, CLERK
No. 12-1292 SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Plaintiff Below, Respondent,
v.
JUSTIN SEAN GUM,
Defendant Below, Petitioner.
Appeal from the Circuit Court of Lewis County
Honorable Thomas H. Keadle, Judge
Civil Action No. 10-F-68
AFFIRMED
Submitted: September 16, 2014
Filed: October 16, 2014
Thomas J. Prall, Esq. Patrick Morrisey, Esq.
James E. Hawkins, Jr., Esq. Attorney General
Buckhannon, West Virginia Elbert Lin
Attorneys for Petitioner Solicitor General
Laura Young, Esq.
Assistant Attorney General
Charleston, West Virginia
Attorneys for Respondent
JUSTICE LOUGHRY delivered the Opinion of the Court.
SYLLABUS BY THE COURT
The right to a jury trial does not attach to a hearing requested pursuant to West
Virginia Code § 27-6A-6 (2013) for the purpose of permitting a criminal defendant, who has
been adjudged incompetent, to establish any defenses to the charged offense other than the
defense of not guilty by reason of mental illness.
LOUGHRY, Justice:
Petitioner Justin Sean Gum (hereinafter “petitioner” or “Mr. Gum”) appeals
from the September 14, 2012, order of the Circuit Court of Lewis County following a bench
trial pursuant to West Virginia Code § 27-6A-6 (2013). The purpose of that proceeding,
which the petitioner requested, was to give him the opportunity to establish any defenses to
the charged offense of first degree murder, other than not guilty by reason of mental illness.
At the conclusion of the subject hearing, the trial court ruled that the State had introduced
sufficient evidence to prove only that Mr. Gum could be convicted of second degree murder1
if this matter were to proceed to trial subsequent to a finding of Mr. Gum’s competency to
stand trial.2 Based upon the maximum potential sentence for a conviction of second degree
murder,3 Mr. Gum was determined to be subject to the jurisdiction of the court for forty
years.4 The petitioner asserts constitutional error with regard to the lack of a jury trial in
connection with the proceeding under review. Mr. Gum argues additionally that the trial
court erred in concluding that sufficient evidence was adduced during the subject civil
proceeding to support a conviction of second degree murder. Upon our careful review of the
1
See W.Va. Code § 61-2-1(2010).
2
By previous order of the circuit court, entered on June 13, 2012, Mr. Gum was found
not competent to stand trial.
3
See W.Va. Code § 61-2-3 (2010) (imposing ten to forty year sentence as penalty for
second degree murder).
4
This is the longest period of time Mr. Gum could remain in the court’s jurisdiction
while committed to a mental health facility in connection with the charged offense.
1
submitted record in this case and applicable law, we do not find any error, constitutional or
otherwise. Accordingly, the decision of the circuit court is affirmed.
I. Factual and Procedural Background
On September 19, 2010, following a night of sustained drinking with his
father,5 the petitioner shot his father, James “Jay” Gum, in the chest. The petitioner’s father
bled to death as a result of the gunshot wound. Through an indictment returned by a grand
jury for Lewis County on November 15, 2010, Mr. Gum was charged with first degree
murder in connection with his father’s shooting.
On June 13, 2012, at the conclusion of a hearing to determine competency, the
petitioner was found to be mentally incompetent to stand trial for first degree murder.6 As
part of its ruling, the trial court found that Mr. Gum was “not substantially likely to attain
competency and that the indictment against the defendant does involve an act of violence
against a person.” See W.Va. Code § 27-6A-3(h) (2013) (requiring trial court, upon finding
of incompetency, to determine offense for which person would have been convicted where
5
The record in this case indicates that Mr. Gum regularly drank fifteen beers a day and
consumed even more alcohol on the weekends. At the time of the shooting, Mr. Gum had
consumed fifteen to eighteen drinks comprised of either beer or whiskey.
6
At the end of the competency proceeding, counsel for Mr. Gum filed a written
request for a hearing under West Virginia Code § 27-6A-6, and concurrently sought a ruling
that the failure to utilize a jury for this proceeding renders the statute unconstitutional.
2
offense involves act of violence against person7). The petitioner was transported to William
R. Sharpe Hospital with directions that the hospital submit an annual report on Mr. Gum’s
mental condition.
The judicial hearing contemplated by West Virginia Code § 27-6A-6 was held
on September 5 and 6, 2012. The State presented its case against Mr. Gum, introducing
multiple witnesses and exhibits8 for the purpose of demonstrating that the petitioner had
committed the offense of first degree murder.9 Mr. Gum’s co-counsel10 thoroughly cross-
examined each of the five witnesses proffered by the State and offered two defense
witnesses–the petitioner’s psychiatrist and a firearms expert.
7
We recently held in syllabus point two of State v. George K., __ W.Va. __, 760
S.E.2d 512 (2014), that “[a]n ‘act of violence against a person’ within the meaning of W.Va.
Code § 27-6A-3 (2007) encompasses acts that indicate the incompetent defendant poses a
risk of physical harm, severe emotional harm, or severe psychological harm to children.”
8
The exhibits included a 911 tape, which contains statements Mr. Gum made after the
shooting incident while trying to procure help for his wounded father, as well as two
statements the petitioner gave to the police.
9
As the trial court commented during its ruling at the end of the hearing:
I’m not here for the purpose of convicting him of a particular
crime, but to decide if it went to trial, what crime could a jury
find him guilty of, in order to determine how long this Court
retains jurisdiction over him for purposes of placement in a
mental institution.
10
The petitioner was represented by his counsel, Thomas J. Prall and James E.
Hawkins, Jr. Also appearing on Mr. Gum’s behalf was a court-appointed guardian ad litem,
R. Russell Stobbs.
3
After all the evidence had been introduced, the trial court reviewed the
testimony given by each witness. Looking initially to the testimony of Dr. Thomas R.
Adamski, a forensic psychiatrist offered by the State, the trial court considered that Mr. Gum
“had a high blood alcohol level, an equivalent of 15 drinks or beers, .24 percent blood
alcohol” in his system.11 While Dr. Adamski did not offer an opinion on Mr. Gum’s
diminished capacity,12 he testified, based on general knowledge, that the quantity of alcohol
consumed by the petitioner “would affect one’s ability to plan and carry out a premeditated
plan.”13 Given the petitioner’s current diagnosis of paranoid schizophrenia,14 Dr. Adamski
was unable to assist the trial court in determining whether Mr. Gum would have lacked the
ability at the time of the shooting to voluntarily give a statement to the police.
11
Given the fact that his blood was not tested until several hours after the incident,
several witnesses testified that Mr. Gum’s blood alcohol concentration may have been as
high as .31 at the time of the shooting.
12
Addressing his inability to testify regarding the issue of diminished capacity, Dr.
Adamski explained that he was not specifically asked by the trial court to offer an opinion
on that issue. He limited his examination of Mr. Gum to assessing the issue of competency.
13
Dr. Adamski agreed with the prosecutor’s statement that “if I had no prior plan to
commit an act and I consume[d] alcohol to the point that I’m a .24, my ability to plan and
to carry out that plan is . . . diminished by virtue of that consumption.”
14
The record indicates that Mr. Gum’s psychiatric diagnosis had not been established
at the time of the offense in September 2010. Dr. Miller testified that Mr. Gum was not
psychotic in February 2011; by May 2011, however, he met the diagnostic qualifications of
a paranoid schizophrenic. Dr. Adamski believes, however, that Mr. Gum was suffering from
undiagnosed mental illness at the time of the shooting.
4
Dr. Miller, the petitioner’s psychiatrist, testified that Mr. Gum was competent
to make the second of two statements he gave to the police.15 Expounding on his finding that
Mr. Gum had diminished capacity at the time of his father’s shooting, Dr. Miller stated that
his “capacity to commit premeditation, malice, [was correlatively] diminished.” According
to Dr. Miller, it was never Mr. Gum’s intention to kill his father. Specifically addressing
whether the petitioner had the ability to plan and carry out a premeditated plan of action in
light of this diminished capacity, Dr. Miller distinguished between the actions required to
execute a physical plan, which involved walking to his father’s room to locate the gun and
then going downstairs with the gun to retrieve shells from another location, from a
premeditated plan to murder his father. Dr. Miller insisted that Mr. Gum’s execution of a
plan to procure and load a weapon is not the equivalent of having the intent necessary to
commit first degree murder.16
15
Following Miranda warnings, the first statement was given at 6:52 a.m. After being
reread those same rights, Mr. Gum provided the police with a second statement at 4:36 p.m.
According to Dr. Miller, Mr. Gum had no memory of having given a statement to the police
just nine hours earlier.
16
Dr. Miller was adamant in his testimony that but for an incident a year earlier where
the petitioner retrieved a gun to threaten his dad for the specific purpose of procuring
additional alcohol, this shooting incident would never have occurred. In his opinion, Mr.
Gum was repeating that particular behavior in which he used the weapon in an attempt to
scare his father into giving him more alcohol. Dr. Miller expressly rejected the petitioner’s
ability to perform “executive function,” which he defined as “contemplation, formulation,
execution and then review of a plan.” He stated that “[s]omeone with a blood alcohol level
of his [Mr. Gum] is going to be diminished or deficient in one of those [four] areas.”
5
The trial court proceeded to consider the testimony of Robert Davis, Jr., the
investigating deputy sheriff who responded to the 911 call made by Mr. Gum. Deputy Davis
observed that Mr. Gum “had slurred speech and glassy eyes, but [that] he followed
commands and was able to get around fine in the house and outside of the house.”17 The
court recounted Deputy Davis’ testimony concerning Mr. Gum’s statements–specifically, his
seeming comprehension of the Miranda warnings and his ability to read words that typically
give people difficulty.18 Referencing the two statements that the petitioner gave to Deputy
Davis, the trial court related Mr. Gum’s explanation of the shooting: “I pointed the shotgun
at him, turned my head, and pulled the trigger, I see him coming down the steps, I don’t even
remember looking at him whenever I pulled the trigger.” Summarizing the content of the 911
tape, which was introduced through Deputy Davis,19 the trial court stated: “The Defendant
said the victim was crazy, trying to kill me, he was coming at me, yelling and screaming.
The Defendant consistently says he was coming at me. I shot my dad.”
17
Based on his long-term history of heavy alcohol consumption, Dr. Adamski testified
that the petitioner “is capable of handling very, very large amounts of alcohol, perhaps
double what his blood alcohol level was on the day for which he was arrested and charged.”
He further opined that people with the high alcohol tolerance level suggested by Mr. Gum’s
drinking history “can act relatively normally with very high blood alcohol levels.”
18
Deputy Davis observed that Mr. Gum, unlike most people, did not stumble on the
word “coercion” when reading his Mirranda statement back to the officer.
19
The parties had stipulated to the authenticity of the 911 tape.
6
Recapping the testimony of Dr. Hamada Mahmoud,20 the State Medical
Examiner, the trial court stated that the cause of death was a shotgun wound to the chest. Dr.
Mahmoud indicated that the shot to the victim’s right upper chest was made at close range.21
The victim, according to the results of the toxicology report, had a blood alcohol content of
.24 at the time of the shooting.
The testimony of two additional witnesses, Charles Kirkpatrick, a deputy
sheriff at the time of the shooting, and Andrew Taylor, a volunteer fire department member,
were summarized by the trial court. Mr. Kirkpatrick described how the petitioner, with no
prompting, just started talking to him while they were both seated in the basement of the
house after the shooting.22 Mr. Gum related to Mr. Kirkpatrick that he had consumed eight
to twelve cans of Bud Light by himself before he went upstairs and drank three or four shots
of whiskey with his father. At this point they began to argue:
He said that his dad started yelling at him and he got very loud
and he said that he knew where his dad kept his gun, said he –
his dad continued to get madder and he could see the madness
in his eyes, basically, is what he explained to me and he said that
it even got louder and then his dad came at him, the Defendant
got – and he said that, you know, that – then he got, he just got
really quiet after that point.
20
He performed the autopsy on the victim.
21
He based this finding on the discovery of wadding inside the victim’s chest cavity.
22
Mr. Gum lived in the basement section of his father’s split-level home.
7
Andrew Taylor testified that Mr. Kirkpatrick was not questioning the petitioner and that
everything offered by Mr. Gum was related without any inquiry from Mr. Kirkpatrick.23
The final testimony recounted by the trial court was that of William Conrad,
a private firearms examiner obtained by the petitioner. Mr. Conrad testified that “the mark
on the Defendant’s chest is consistent with the size of a shotgun butt end of the stock . . .
[and] [i]t is also consistent with the Defendant’s statement.”24 The court repeated the
statement of Mr. Conrad that this type of gun “had to be cocked before it would fire.” Based
on this explanation, the trial court reasoned that “[a] jury could assume the Defendant cocked
the gun, it wouldn’t go off by itself, . . . it has to be cocked and the trigger pulled to fire.”
After reviewing the evidence offered by the parties, the trial court proceeded
to address the issues of whether the State had introduced sufficient evidence to convict Mr.
Gum of first degree murder and whether the petitioner had acted in self defense. After
recounting the elements required to prove first and second degree murder, involuntary and
voluntary manslaughter, the trial court ruled that there had been insufficient evidence
23
Mr. Taylor confirmed Mr. Kirkpatrick’s testimony of how the petitioner inquired
at one point whether his dad had made it and, when told no, inquired of Mr. Kirkpatrick
regarding the outcome.
24
Instead of placing the butt of the shotgun under his arm in the shoulder pocket, the
typical placement when aiming and shooting this type of a gun, Mr. Gum stated that he had
positioned it on his chest just prior to pulling the trigger.
8
introduced to establish first degree murder. Finding reasonable doubt as to the elements of
premeditation and deliberation, the trial court ruled that the evidence adduced, were it to go
to a jury, could, however, result in a verdict of second degree murder. Accordingly, the trial
court determined that it retained jurisdiction over the petitioner for forty years based on the
maximum sentence specified for a conviction of second degree murder.25 Mr. Gum was
remanded to the custody of William R. Sharpe, Jr. Hospital for the duration of that period of
time, barring an intervening determination of competency. It is from this ruling that the
petitioner now appeals.
II. Standard of Review
With regard to the petitioner’s assertion of unconstitutional error arising from
West Virginia Code § 27-6A-6, our review is plenary. See Syl. Pt. 1, Chrystal R.M. v.
Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995) (“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”). As to the circuit court’s ruling under the statute, we
review challenges to the findings and conclusions following a bench trial by applying an
abuse of discretion to the final order and disposition while reviewing the underlying factual
findings under a clearly erroneous standard. See Syl. Pt. 1, Public Citizen, Inc. v. First Nat’l
25
See supra note 3.
9
Bank, 198 W.Va. 329, 480 S.E.2d 538 (1996). Bearing these standards in mind, we proceed
to determine whether the trial court committed error.
III. Discussion
The petitioner asserts that the trial court’s refusal to grant his request for a jury
trial in connection with the hearing held pursuant to West Virginia Code § 27-6A-6 was
error. The language of that statute provides, in pertinent part, as follows:
If a defendant who has been found to be not competent
to stand trial believes that he or she can establish a defense of
not guilty to the charges pending against him or her, other than
the defense of not guilty by reason of mental illness, the
defendant may request an opportunity to offer a defense thereto
on the merits before the court which has criminal jurisdiction. .
. . If the court of record in its discretion grants such a request,
the evidence of the defendant and of the State shall be heard by
the court of record sitting without a jury.
Id. (emphasis supplied). Because this statute does not provide for or contemplate the use of
a jury, Mr. Gum argues that West Virginia Code § 27-6A-6 is unconstitutional.
In support of his position, the petitioner contends that he is suffering a
significant loss of liberty, as a result of his long-term confinement at a mental health facility.
Because this loss of liberty took place without an antecedent proceeding that included a
“judgment of his peers,” Mr. Gum maintains his constitutional rights have been violated.
W.Va. Const. art. III, § 10 (“No person shall be deprived of life, liberty, or property, without
10
due process of law, and the judgment of his peers.”). Acknowledging that the nature of the
proceeding at issue was a legislative decision, the petitioner theorizes that concerns rooted
in judicial economy are the only possible reason for not providing for a jury trial.26
As the State correctly recognizes, the statutes contained in chapter 27 of article
6A resulted from the holding in Jackson v. Indiana, 406 U.S. 715 (1972), that a defendant
may not be committed indefinitely to a mental care facility solely because he or she is
incompetent to stand trial. Id. at 738. Responding to Jackson, our Legislature provided for
the commitment of an incompetent individual for a term commensurate with the maximum
penalty for the underlying offense. See W.Va. Code § 27-6A-3(h). In using the corollary
maximum penalty as the ceiling for a period of commitment, our statutory scheme mirrors
laws enacted in Ohio, Massachusetts, and Illinois.27
While this Court has not previously addressed the nature of proceedings that
are held to determine the commitment period for an individual deemed to be incompetent to
stand trial and the attendant rights that attach to those proceedings, other courts have
26
Mr. Gum suggests that “[p]erhaps the reasoning of the adoption of the statute was
for judicial economy but a similar amount of evidence, witness time, and the court’s time
would have been expended regardless of whether there was a trial by jury or a bench ‘trial’
in this case.”
27
See Ohio Rev. Code §§ 2945.38, 2945.39 (2010); Mass. Gen. Laws ch. 123, § 17(b)
(2003); 725 ILCS 5/104-25 (Supp. 2014).
11
examined the issues raised in this appeal. In State v. Williams, 930 N.E.2d 770 (Ohio 2010),
the Ohio Supreme Court engaged in a thorough analysis involving the “intent-effects” test28
and concluded that Ohio’s version of West Virginia Code § 27-6A-6 is a civil statute. And,
as a result, the Court in Williams determined that “a person committed under the statute
[Ohio Rev. Code § 2945.39] need not be afforded the constitutional rights afforded to a
defendant in a criminal prosecution.” 930 N.E.2d at 778.
In reaching its decision in Williams that the Ohio statute is a civil statute, the
court considered the fact that the proceeding at issue was designed primarily for the purpose
of protecting the public. Id. at 776. Of significance to the court was the statutory omission
of “any indication of an overriding intent to punish or confine criminal defendants.” Id. As
28
This test requires that
a court first considers whether the legislature intended the
statute to be remedial (and therefore civil) or penal (and
therefore criminal). If the intent was that the statute be penal
and criminal, then the inquiry ends. However, if the intent was
that the statute be remedial and civil, then the statute’s specific
effects must be examined. The statute may still be determined
to be punitive and criminal if its effects negate a remedial
intention.
930 N.E.2d at 775 (internal citation omitted); see also Kansas v. Hendricks, 521 U.S. 346
(1997) (applying intent-effects test with regard to evaluating constitutionality of statute
permitting sexually violent predators who had completed criminal sentences but remained
likely to reoffend based on mental abnormalities or personality disorders to be
institutionalized and finding statute to be civil in nature).
12
further evidence of public safety being the overarching objective, the Ohio Supreme Court
relied upon the statutory requirement that the trial court must “order the least-restrictive
commitment alternative available consistent with public safety and the defendant’s welfare.”
930 N.E.2d at 776-77. The statute, as the court observed,“does not implicate deterrence [a
signal of criminal punishment], because a defendant to whom it applies is unlikely, by the
very nature of his mental illness, to possess the ability to tailor his behavior to the
requirements of the law upon the threat of commitment.” Id. at 777.
In People v. Waid, 851 N.E.2d 1210 (Ill. 2006), the Supreme Court of Illinois
rejected the argument that the “discharge hearing” held to determine the sufficiency of the
evidence against an incompetent defendant was a criminal proceeding. Id. at 1214; see 725
ILCS 5/104-25. Explaining that discharge hearings do not implicate the same degree of due
process protections available at a criminal trial, the Court observed that the focus at a
discharge hearing is the converse of a criminal proceeding:
In Illinois, a section 104-25 discharge hearing takes place only
after a defendant has been found unfit to stand trial.
Accordingly, in keeping with due process requirements, a
discharge hearing under section 104-25 is “an ‘innocence only’
hearing, that is to say, a proceeding to determine only whether
to enter a judgment of acquittal, not to make a determination of
guilt.” “The question of guilt is to be deferred until the
defendant is fit to stand trial.”
851 N.E.2d at 1214 (internal citations omitted).
13
As the Court in Waid emphasized, the nature of these statutory proceedings
is a focus on innocence rather than on guilt. The defendant is given an opportunity to obtain
an acquittal of the underlying criminal charges where the State’s evidence is insufficient.29
The burden of proof further signals that the proceeding contemplated is civil rather than
criminal. Significantly, the quantitative level of proof required under West Virginia Code
§ 27-6A-6 is sufficient evidence and not the criminal standard of requiring evidence of guilt
beyond a reasonable doubt.
We have no difficulty concluding that the hearing sanctioned by West Virginia
Code § 27-6A-6 is civil in nature. Instead of seeking retribution or deterrence, our statute
is directed at the joint purposes of protecting the public and ensuring appropriate treatment
for individuals who are both incompetent and criminally violent. See W.Va. Code § 27-6A-
3(h). The least restrictive environment is mandated and the potential maximum prison
sentence serves as a ceiling, rather than a floor, for the treatment period. And, despite the
evidentiary proceeding that offers the defendant an opportunity to demonstrate a defense to
the pending criminal charges and the possibility to escape future prosecution upon a finding
of insufficient evidence, there is no finding of guilt that may result from such a proceeding.
29
If the State is determined to have introduced insufficient evidence to support a
conviction following a hearing pursuant to West Virginia Code § 27-6A-6, the court is
mandated to dismiss the indictment and order the release of the defendant from criminal
custody.
14
Given the civil nature of the proceeding authorized by West Virginia Code §
27-6A-6, the due process protections that attach to criminal proceedings such as the right to
a speedy trial, an impartial jury, and the confrontation of witnesses are not invoked by such
a hearing. Rather than being denied, however, those rights have been temporarily shelved
until the defendant regains the competency to stand trial. In the event Mr. Gum regains
competency and the State subsequently decides to prosecute him on the pending charges,
the requisite due process protections will become operative. See Spero v. Commonwealth,
678 N.E.2d 435, 436 (1997) (recognizing that incompetent defendant would have
opportunity to confront witnesses against her at trial upon finding of competency);
Commonwealth v. DelVerde, 496 N.E.2d 1357, 1364 (Mass. 1986) (rejecting notion of
permanent deprivation of due process rights, observing that such rights would become
operative in event of actual prosecution of criminal charges). We consequently determine
that the right to a jury trial does not attach to a hearing requested pursuant to West Virginia
Code § 27-6A-6 for the purpose of permitting a criminal defendant, who has been adjudged
incompetent, to establish any defenses to the charged offense other than the defense of not
guilty by reason of mental illness.30 Accordingly, we find no merit in the petitioner’s
assignment of error predicated on the unconstitutional denial of his right to a jury trial.
30
This Court previously ruled in syllabus point one of Markey v. Wachtel, 164 W.Va.
45, 264 S.E.2d 437 (1979), that jury trials are not required by our state constitution in an
involuntary commitment proceeding.
15
As an alternate assignment of error, the petitioner maintains that the evidence
the State presented at the hearing was not sufficient for the trial court to rule that the State
had demonstrated he committed second degree murder for commitment purposes. As the
trial court correctly articulated, to convict the petitioner of murder in the second degree, the
State would be required to prove beyond a reasonable doubt that Mr. Gum did intentionally,
maliciously, and unlawfully slay, kill and murder his father on September 19, 2010. On
appeal, the petitioner argues the State wholly failed to demonstrate malice. Consequently,
he maintains that the State could, if this matter proceeded to trial, only obtain a conviction
for voluntary manslaughter.
The State refutes the argument raised by the petitioner on the issue of malice
by first recognizing that the trier of fact is permitted to draw certain inferences from the
actions taken by a defendant. As this Court explained in State v. LaRock, 196 W.Va. 294,
470 S.E.2d 613 (1996), “if one voluntarily does an act, the direct and natural tendency of
which is to destroy another’s life, it fairly may be inferred, in the absence of evidence to the
contrary, that the destruction of that other’s life was intended.” Id. at 305, 470 S.E.2d at
624. It is well-settled that malice and intent to kill may be inferred from the use of a deadly
weapon in circumstances not affording the defendant excuse, provocation, or justification.
See State v. Miller, 197 W.Va. 588, 609-10, 476 S.E.2d 535, 556-57 (1996).
16
The facts of this case demonstrate that the petitioner and his father, both of
whom were intoxicated, were arguing over alcohol. Mr. Gum left the living area where the
two had last been drinking together while seated on the couch, went down the hall to the
victim’s bedroom and retrieved a shotgun. He then went downstairs to his bedroom to
locate shells for the shotgun, loaded the gun, and started back up the stairs. When he
encountered his father coming down the stairs towards him, he shot him in the chest. Not
only did the petitioner admit to pulling the trigger, but he stated that there was no struggle
with his father over the gun.
There is no evidence in the record that the petitioner’s father threatened him.
Similarly lacking is any credible evidence that the petitioner was acting in self-defense.
Despite Mr. Gum’s post-shooting description of his father being mad and coming at him
during the 911 call, the record does not support any suggestion that the petitioner’s use of
the shotgun was a means of protecting himself from harm. Simply put, the petitioner has
failed to raise any basis to refute the application of the inference that obtains from the use
of a deadly weapon. See Miller, 197 W.Va. at 609-10, 476 S.E.2d at 556-57. As a result,
we find no error in the trial court’s conclusion that sufficient evidence of second degree
murder was introduced for purposes of determining the maximum length of the petitioner’s
commitment. See W.Va. Code § 27-6A-3(h).
17
IV. Conclusion
Based on the foregoing, the decision of the Circuit Court of Lewis County is
affirmed.
Affirmed.
18
State of West Virginia v. Justin Sean Gum
Court: West Virginia Supreme Court
Date filed: 2014-10-16
Citations: 234 W. Va. 263, 764 S.E.2d 794
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