          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                  January 2020 Term

                               _____________________                       FILED
                                                                        June 12, 2020
                                    No. 18-0207                           released at 3:00 p.m.
                                                                      EDYTHE NASH GAISER, CLERK
                               _____________________                  SUPREME COURT OF APPEALS
                                                                           OF WEST VIRGINIA

                             STATE OF WEST VIRGINIA,
                                    Respondent

                                          v.

                       HAYDEN DAMIAN DRAKES,
                                 Petitioner
       ___________________________________________________________

                    Appeal from the Circuit Court of Cabell County
                      The Honorable Alfred E. Ferguson, Judge
                            Criminal Action No. 16-F-344

                        REVERSED AND REMANDED
         _________________________________________________________

                             Submitted: February 18, 2020
                                Filed: June 12, 2020



Matthew Brummond, Esq.                                Patrick Morrisey, Esq.
Public Defender Services                              Attorney General
Charleston, West Virginia                             John M. Masslon II, Esq.
Counsel for the Petitioner                            Assistant Solicitor General
                                                      Caleb A. Ellis, Esq.
                                                      Assistant Attorney General
                                                      Charleston, West Virginia
                                                      Counsel for the Respondent


JUSTICE WORKMAN delivered the Opinion of the Court.
                              SYLLABUS BY THE COURT



       1.     “A trial court’s instructions to the jury must be a correct statement of the law

and supported by the evidence. Jury instructions are reviewed by determining whether the

charge, reviewed as a whole, sufficiently instructed the jury so they understood the issues

involved and were not mis[led] by the law. A jury instruction cannot be dissected on

appeal; instead, the entire instruction is looked at when determining its accuracy. A trial

court, therefore, has broad discretion in formulating its charge to the jury, so long as the

charge accurately reflects the law. Deference is given to a trial court’s discretion

concerning the specific wording of the instruction, and the precise extent and character of

any specific instruction will be reviewed only for an abuse of discretion.” Syl. Pt. 4, State

v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995).



       2.     Murder in the second degree is the unlawful, intentional killing of another

person with malice, but without deliberation and premeditation. To the extent that State v.

Morrison, 49 W. Va. 210, 38 S.E.481 (1901), State v. Haddox, 166 W. Va. 630, 276 S.E.2d

788 (1981), and their progeny are inconsistent with our holding, they are expressly

overruled.



       3.     “Gross provocation and heat of passion are not essential elements of

voluntary manslaughter, and, therefore, they need not be proven by evidence beyond a

reasonable doubt. It is intent without malice, not heat of passion, which is the distinguishing

                                               i
feature of voluntary manslaughter.” Syl. Pt. 3, State v. McGuire, 200 W. Va. 823, 490

S.E.2d 912 (1997).




                                         ii
WORKMAN, Justice:

               The petitioner, Hayden Damian Drakes, was convicted by a jury on one count

of second-degree murder. He appeals the February 26, 2018, order of the Circuit Court of

Cabell County, West Virginia, denying his Motion to Set Aside the Verdict, and his Motion

for Judgment of Acquittal Notwithstanding the Verdict, or, Alternatively, Motion for a

New Trial, and sentencing him to a term of forty years in prison, with credit for time served,

and no credit for home confinement. The petitioner argues that the circuit court erred in

instructing the jury that it could convict him of second-degree murder if it found intent to

kill or to cause great bodily injury, and in instructing the jury that provocation and heat of

passion were elements of voluntary manslaughter. Upon careful review of the parties’ brief

and oral arguments, the appendix record, and the applicable law, we find the circuit court

erred in its instructions to the jury for both second-degree murder and voluntary

manslaughter. Therefore, we reverse the petitioner’s conviction and remand the case to the

circuit court for a new trial.

                                          I. Facts

               Both parties agree that the facts are largely undisputed regarding an

altercation between the petitioner and Brett Powell, the victim, on March 30, 2016, which

led to the victim’s death and to the petitioner being charged with second-degree murder.

The evidence introduced at trial showed that on March 30, the petitioner and a group of

friends went to Club Deception, a bar located in downtown Huntington, West Virginia, to

celebrate the petitioner’s birthday and the anniversary of two other members of the group,

Joshua and Danielle Spurlock. The group went to the outdoor patio area of the bar. While

                                              1
in this area, they were approached by the victim, Brett Powell, who was a stranger to the

group. The victim approached the group, introduced himself as “Tim,” and asked if anyone

wanted to purchase illegal drugs. The members of the group declined and asked the victim

to leave.



               The victim left, but returned a few minutes later. This time, the victim asked

Mrs. Spurlock, who was pregnant, and another member of the group, Liza Slone, if they

wanted to purchase any drugs. Mr. Spurlock informed the victim that he was speaking to

his wife, that she was pregnant, and that the victim needed to leave. Again the victim left,

but then again he returned, after Mr. Spurlock had gone inside the bar to use the restroom.

When one of his friends told him that the victim was back and had again approached his

wife, Mr. Spurlock returned to the group and expressed his frustrations both to his wife and

to the petitioner.



               Thereafter, the victim, despite being told that Mrs. Spurlock was pregnant,

came up to her, pushing a drink in her face, shoving it towards her mouth. Mr. Spurlock

testified that he “smacked the cup out of . . . [the victim’s] hand.” Mr. Spurlock testified

that he came “face-to-face” with the victim and told him he needed to leave. Mr. Spurlock

testified that he was ready to fight the victim if the victim did not leave the bar. At this

point, the petitioner stated to Mr. Spurlock that he was going “to try to play peacemaker

and . . . just deescalate the situation” by speaking to the victim.



                                               2
              The petitioner found the victim in the patio area of the bar. He told the victim

to leave the group alone, after which, in petitioner’s recounting of events, although his

intent was not to fight or hurt the victim, “[w]e exchanged words.” The victim then

“grabbed” the petitioner, whereupon the petitioner lost his temper and “just started hitting”

the victim. The evidence introduced at trial, which included videos from the bar’s security

cameras, showed the petitioner punched the victim in the face—seven or eight times—until

the victim fell to the ground. When the victim fell, the petitioner stopped hitting him and

left the bar with his friends for another bar down the street.



              Another patron in the bar, Danielle Hayes, came out on the patio after the

incident. She noticed that the victim was having a seizure, so she turned him on his side.

When the victim stopped breathing, she performed CPR, remaining with the victim until

emergency personnel arrived. The victim later died. The medical examiner testified that

the cause of the victim’s death was blunt injuries to the head.



              The petitioner was arrested in the early morning of the next day in connection

with the assault. The petitioner agreed to be interviewed by Detective Shane Bills with the

Huntington Police Department. Detective Bills testified that during the interview, the

petitioner admitted to hitting the victim, but denied trying hurt him.



              On August 17, 2016, the petitioner was indicted on one count of second-

degree murder. The petitioner’s two-day jury trial began on December 19, 2017. At the

                                              3
close of all the evidence, the events giving rise to the two issues presently before the Court

occurred during the instructional phase of the petitioner’s trial. The first issue arose during

the parties’ discussion with the circuit court about the instructions to be given to the jury,

when the State objected to the petitioner’s proposed instruction on second-degree murder.

The instruction, in relevant part, would have informed the jury that: “Murder in the second

degree is the unlawful, intentional killing of another person with malice but without

deliberation or premeditation.”       Conversely, the State’s proposed instruction was as

follows: “Murder of the Second Degree is committed feloniously, maliciously, but without

deliberate or premeditated action and with the intent to kill or to cause great bodily harm.”1

(Emphasis added). In similar vein, the State also sought the following instruction, which

was given by the Court:

                       The Court further instructs the jury that a conviction for
                second degree murder cannot be sustained without proof
                beyond a reasonable doubt that the accused had the requisite
                criminal intent. In regard to second degree murder, the
                requisite criminal intent would be the intent to do great bodily
                harm, or a criminal intent aimed at life.

(Emphasis added). Even while agreeing to give the State’s instruction, the circuit court

commented that, “I don’t like that[,]” explaining, “You are saying you can find him guilty

of Second Degree Murder if there is intent to kill or cause great bodily harm.” (Emphasis

added). The petitioner again objected, stating “Murder requires specific intent to kill,

Judge . . . ,” and the circuit court agreed: “I have always felt that it did.” The circuit court




       1
           The circuit court did not give this specific proposed instruction.
                                                4
stated to the assistant prosecutor, “If you want to give that, I will; but I will leave that up

to you.” Subsequently, in continuing the argument that intent to do great bodily harm is

an element of second-degree murder, as the State continued to insist, the circuit court

stated, “Okay. You all want it, you will get it; but you are going to have to lie with it.”

The circuit court specifically cautioned the State: “The only problem with these things

[referring to instructions], they [referring to this Court] will reverse on instructions quicker

than anything else. That is the only thing.”



               The second issue on appeal concerns the voluntary manslaughter instruction

that was given to the jury. In this regard, the petitioner asked the circuit court to instruct

the jury that “‘Voluntary Manslaughter’ is the unlawful and intentional killing of another

without malice.” The circuit court initially agreed to give the petitioner’s instruction even

though the State argued that its instruction was better because it contained the elements of

sudden provocation and heat of passion. The circuit court stated, “It is intent to kill without

malice, in my opinion. I think that is right.” Despite the circuit court initially agreeing to

give the petitioner’s proposed instruction, the State pressed the circuit court to use its

instruction, which included the elements of sudden provocation and heat of passion. The

petitioner countered that these were not elements of the crime; if the jury found that the

petitioner did not act with malice, “then they may think, well, there is sudden provocation

[even] if there is no malice. . . . I think it is just pretty clear the jury has to believe there is

no malice involved.”       The circuit court ultimately ruled that it would give the State’s

instruction on voluntary manslaughter: “[T]he Defendant . . . did feloniously, unlawfully

                                                 5
and intentionally, without premeditation, deliberation or malice, but upon sudden

provocation and in the heat of passion kill . . . [the victim].”2



              During the jury’s deliberations, it sent the following message to the circuit

court: “Please submit instructions with definitions of Involuntary Manslaughter, Voluntary

Manslaughter, and Murder Two.” The circuit court gave the jury the same instructions that

it had previously read to them, but in writing. The jury convicted the petitioner of second-

degree murder. After the circuit court considered the petitioner’s post-trial motions, the

petitioner was sentenced to the maximum term of forty years in prison.


                                   II. Standard of Review

              Both assignments of error concern the instructions given to the jury. Our

review of the jury instructions is governed by the following standard of review:

                     A trial court’s instructions to the jury must be a correct
              statement of the law and supported by the evidence. Jury
              instructions are reviewed by determining whether the charge,
              reviewed as a whole, sufficiently instructed the jury so they
              understood the issues involved and were not mis[led] by the
              law. A jury instruction cannot be dissected on appeal; instead,
              the entire instruction is looked at when determining its
              accuracy. A trial court, therefore, has broad discretion in
              formulating its charge to the jury, so long as the charge
              accurately reflects the law. Deference is given to a trial court’s
              discretion concerning the specific wording of the instruction,
              and the precise extent and character of any specific instruction
              will be reviewed only for an abuse of discretion.



       2
         The jury was also instructed on involuntary manslaughter, but the petitioner raises
no error regarding the involuntary manslaughter instruction.
                                               6
Syl. Pt. 4, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995). We have also stated

that “if an objection to a jury instruction is a challenge to a trial court’s statement of the

legal standard, this Court will exercise de novo review.” Id. at 671, 461 S.E.2d at 177.

Finally, if, in connection with the legal sufficiency of the instructions, it is determined that

the petitioner failed to object to one or more instruction regarding the legal sufficiency, our

review would be under the plain error standard. Id. n.13 (citing State v. Miller, 194 W. Va.

3, 459 S.E.2d 114 (1995)).



                                       III. Discussion

                          A. Second-degree Murder Instruction

              The first issue before this Court is whether the circuit court erred in

instructing the jury that it could convict the petitioner of second-degree murder if it found

intent to kill or to cause great bodily harm. The petitioner argues that second-degree

murder requires a finding of intent to kill, as we previously held in Guthrie, 194 W. Va. at

676, 461 S.E.2d at 182, and that “aberrant case law misled the State below[,]” and thus the

circuit court, into error. Succinctly put, by instructing the jury that it could convict the

petitioner of second-degree murder if the petitioner merely intended to cause great bodily

harm to the victim, the circuit court effectively removed intent to kill as a required element

of the crime. In its brief in opposition, the State argues that it has long been recognized

that “intent to do great bodily harm is a sufficient level of criminal intent for a second




                                               7
degree murder conviction[,]”3 and that this Court has never overruled the common law

formation of the intent necessary to establish second-degree murder. See State v. Davis,



       3
        We note at the outset that the State purposefully uses malice and intent
interchangeably, even though it recognizes that there is a distinct difference in our
jurisprudence:

              “[W]ith the explicit caveat that the State recognizes that malice
              includes more than the requisite criminal intent, because the
              relevant inquiry in this case is the level of intent required in the
              malice element of second degree murder, the State will use the
              terms “malice” and “intent” interchangeably throughout the . .
              . discussion.”

Even though we recognize that malice and intent to kill have been used interchangeably at
times, this Court has established that malice is a distinct element of second-degree murder,
separate from intent. See Syl. Pt. 1, State v. Bongalis, 180 W. Va. 584, 378 S.E.2d 449
(1989) (“‘“Malice, express or implied, is an essential element of murder in the second
degree, and if absent the homicide is of no higher grade than voluntary manslaughter.”
Syllabus Point 1, State v. Galford, 87 W.Va. 358, 105 S.E. 237 (1920).’ Syllabus Point 2
of State v. Clayton, 166 W.Va. 782, 277 S.E.2d 619 (1981)”); see also State ex rel. Combs
v. Boles, 151 W. Va. 194, 198, 151 S.E.2d 115, 118 (1966) (recognizing that malice is an
essential element of both first- and second-degree murder); Syl. Pt. 1, State v. Ponce, 124
W. Va. 126, 19 S.E.2d 221 (1942) (“Malice is an indispensable element of murder in the
second degree; and where, in a trial upon an indictment for murder, there is no evidence
showing malice or from which it may be inferred, it is error to instruct the jury that it may
find defendant guilty of murder in the second degree and a verdict of conviction based
upon such an erroneous instruction will be set aside and a new trial awarded.”). Thus, to
the extent the State conflates the two terms, and relies upon cases in its brief wherein the
Court was focused upon malice, rather than the intent element of second-degree murder,
the State unnecessarily confuses the issue before the Court. In this regard, we have
discussed the malice element needed to sustain a second-degree murder conviction in a
number of cases. See, e.g., State v. Bias, 156 W. Va. 569, 575, 195 S.E.2d 626, 629 (1973)
(noting in a sufficiency of the evidence challenge that “[o]rdinarily blows inflicted by one
person on another with bare fists do not demonstrate[] the malice requisite to sustain a
conviction of second degree murder. However, we have held that a protracted and
continued beating with bare hands by a stronger person upon a weaker person can evince
the malice necessary for a conviction of murder.”); State v. Weisengoff, 85 W. Va. 271,
286-87, 101 S.E. 450, 457 (1919) (finding that an act “which would be apt to produce death
or great bodily harm” would be sufficient to show malice); see also State v. Burdette, 135
                                               8
220 W. Va. 590, 596, 648 S.E.2d 354, 360 (2007) (per curiam) (referring in dicta to intent

to do great bodily harm as meeting the intent element of second-degree murder).



             Our examination of the elements of second-degree murder begins with the

common law. As Justice Cleckley, writing for the Court in Guthrie, noted in his thorough

analysis of murder generally:

             At common law, murder was defined as the unlawful killing of
             another human being with “malice aforethought.” Because the
             common law definition of “malice aforethought” was
             extremely flexible, “it became over time an ‘arbitrary symbol’
             used by trial judges to signify any of the number of mental
             states deemed sufficient to support liability for murder.” John
             S. Baker, Jr., Daniel H. Benson, Robert Force, & B.J. George,
             Jr., Hall’s Criminal Law 268–69 (5th ed. 1993). Nevertheless,
             most American jurisdictions maintained a law of murder built
             around common law classifications.

194 W. Va. at 673, 461 S.E.2d. at 179.



             The West Virginia Legislature, however, following Pennsylvania’s lead,4

began the departure from the common law by enacting what is currently known as West

Virginia Code § 61-2-1, codifying murder and dividing it into degrees. The original



W. Va. 312, 332, 63 S.E.2d 69, 81 (1950) (finding in a sufficiency of the evidence
challenge that evidence of a vicious, brutal, and continued assault, even after victim was
helpless, was sufficient for the jury to find malice and to sustain a first-degree murder
conviction). Because we agree with the petitioner that this case is not about the malice
element of second-degree murder, we address only the issue of intent in this opinion.
      4
         See Guthrie, 194 W. Va. at 673 and n.20, 461 S.E.2d at 179 and n.20 (“Pertinent
to this case, the most significant departure from the common law came on April 22, 1794,
when the Pennsylvania Legislature enacted a statute dividing murder into degrees.”).
                                            9
codification of first- and second-degree murder in West Virginia provided: “Murder by

poison, lying in wait, imprisonment, starving, or by any willful, deliberate and

premeditated killing, or in the commission of, or attempt to commit, arson, rape,5 robbery

or burglary, is murder of the first degree. All other murder is murder of the second degree.”

See 1 Kelly’s W. Va. Rev’d Stat., Ch. 144, § 1 (1879) (footnote and emphasis added). 6

The most recent version of the statute, which was last amended in 1991, sets forth both

first- and second-degree murder as follows:

                      Murder by poison, lying in wait, imprisonment,
              starving, or by any willful, deliberate and premeditated killing,
              or 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 [§ 60A-4-401 et seq.], chapter sixty-a of this
              code, is murder of the first degree. All other murder is murder
              of the second degree.

W. Va. Code § 61-2-1 (2014) (emphasis added). 7




       5
        In 1987, the Legislature amended the statute by substituting “sexual assault” for
“rape.” W. Va. Code § 61-2-1 (1987).
       6
       The original statute can be traced to its enactment in Virginia in 1849, remaining
unchanged until it was amended in 1987. See supra note 5.
       7
         The punishment for second-degree murder was “confinement in the penitentiary
not less than five nor more than eighteen years.” W. Va. Code § 61-2-3 (1923). This
punishment remained the same until 1994, when the punishment for second-degree murder
was increased to be “a definite term of imprisonment in the penitentiary which is not less
than ten nor more than forty years.” Id. (Supp. 1994).
                                              10
              Prior to and even for a significant period of time after the enactment of the

foregoing first- and second-degree murder statute, intent to cause serious bodily harm

remained a part of the common law elements that could be proven as part of a second-

degree murder conviction. This is reflected in the Court’s decision in State v. Morrison,

49 W. Va. 210, 38 S.E. 481 (1901). In Morrison, two friends had been drinking together

when they began to argue, and as a result of the dispute, the defendant picked up a heavy

stick and struck his friend with what turned out to be a fatal blow. Id. at 212, 38 S.E. at

482. The defendant was charged with murder, but the jury found him guilty of second-

degree murder. Id. at 211-12, 38 S.E.2d at 482. In syllabus points two and three, the Court

set forth the elements necessary to prove second-degree murder:

                     The intent to do enormous or severe bodily harm with a
              deadly weapon, followed by homicide as the result of the
              execution of such intent, constitutes murder in the second
              degree, unless the act be done under such circumstances as
              render the killing excusable, or justifiable, or voluntary
              manslaughter.

                     A specific intention to kill is not essential to murder in
              the second degree, but it is essential to murder in the first
              degree.8




       8
         Interestingly, while the Morrison case has been cited by the Court as authority for
the propositions set forth in these two syllabus points, neither syllabus point has been
quoted by the Court in a majority criminal opinion since Morrison was decided in 1901,
one hundred and nineteen years ago. Further, the last time the case was cited by the Court
was in State v. Shrader, 172 W. Va. 1, 302 S.E.2d 70 (1982), which was a first-degree
murder case that was overruled, in part, by Guthrie in regard to the period of time needed
to deliberate and premediate—two elements necessary to establish first-degree murder. See
Syl. Pt. 6, Guthrie, 194 W. Va. at 664, 461 S.E.2d at 170.
                                             11
Id. at 211, 38 S.E. at 481 (footnote added); see State v. Taylor, 57 W. Va. 228, 240, 50 S.E.

247, 252 (1905) (adhering to the common law, stating in dicta that “[i]f there was a fixed

purpose to do bodily harm, without killing, and death resulted, it was murder of the second

degree.”).




                However, in the early 1980’s, and more specifically, in State v. Hatfield, 169

W. Va. 191, 286 S.E.2d 402 (1982), the Court moved away from the common law notion

that the intent to do great bodily harm was a requisite of second-degree murder, finding

that second-degree murder required intent to kill. In Hatfield, the Court stated:

                We discussed at some length in State v. Starkey, supra, the term
                “malice” and concluded it is essentially “a form of criminal
                intent.” 244 S.E.2d at 223. Thus, in regard to first degree
                murder, the term “malice” is often used as a substitute for
                “specific intent to kill” or “an intentional killing.”9 E.g., State
                v. Ferguson, W.Va., 270 S.E.2d 166, 170 (1980); State ex rel.
                Combs v. Boles, 151 W.Va. 194, 198, 151 S.E.2d 115, 118
                (1966). 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.

169 W. Va. at 198, 286 S.E.2d at 407-08 (footnote and emphasis added).




       9
           See supra note 3.
                                                12
              We made it even clearer in our subsequent opinion in Guthrie that intent to

kill is a necessary element of second-degree murder, restating our prior holding in Hatfield

as follows:

              In State v. Hatfield, 169 W.Va. 191, 286 S.E.2d 402 (1982), we
              made an effort to distinguish the degrees of murder by
              indicating that the elements that separate first degree murder
              and second degree murder are deliberation and premeditation
              in addition to the formation of the specific intent to kill.
              Deliberation and premeditation mean to reflect upon the intent
              to kill and make a deliberate choice to carry it out. Although
              no particular amount of time is required, there must be at least
              a sufficient period to permit the accused to actually consider in
              his or her mind the plan to kill. In this sense, murder in the first
              degree is a calculated killing as opposed to a spontaneous
              event.

194 W. Va. at 673-74, 461 S.E.2d at 179-80 (emphasis added). While the Court’s focus in

Guthrie was the premeditation and deliberation elements of first-degree murder, the Court

emphasized that intent to kill is an element of both first and second-degree murder:

              [T]here must be some evidence that the defendant considered
              and weighed his decision to kill in order for the State to
              establish premeditation and deliberation under our first degree
              murder statute. This is what is meant by a ruthless, cold-
              blooded, calculating killing. Any other intentional killing, by
              its spontaneous and nonreflective nature, is second degree
              murder.

Id. at 675-76, 461 S.E.2d at 181-82 (emphasis added) (footnote omitted).10



       10
          The State relies upon a per curiam decision issued in Davis to support its argument
that intent to do great bodily harm is sufficient for second-degree murder. Specifically, in
Davis, the Court, relying upon State v. Haddox, 166 W. Va. 630, 276 S.E.2d 788 (1981),
which was also a per curiam decision, stated:


                                              13
              Most recently in Gerlach v. Ballard, 233 W. Va. 141, 756 S.E.2d 195 (2013),

this Court again reaffirmed that intent to kill was an essential element of second-degree

murder. In Gerlach, the issue before us was whether double jeopardy principles were

violated when a person was convicted of both second-degree murder and death of a child

by a parent, guardian or custodian. Id. at 144, 756 S.E.2d at 198. Ironically, in undertaking

a Blockburger11 analysis in Gerlach, which involved examining the elements of each

crime, the defendant and the State in Gerlach took positions contrary to those taken by



                     A conviction for second degree murder cannot be
                     sustained without proof beyond a reasonable
                     doubt that the accused had the requisite criminal
                     intent. In regard to second degree murder, the
                     requisite criminal intent would be the intent to do
                     great bodily harm, or a criminal intent aimed at
                     life, or the intent to commit a specific felony, or
                     the intent to commit an act involving all the
                     wickedness of a felony.

              State v. Haddox, 166 W.Va. 630, 632, 276 S.E.2d 788,
              790 (1981) (rejecting State’s argument that intent was
              not element of second degree murder).

Davis, 220 W. Va. at 596, 648 S.E.2d at 360 (quoting Haddox, 166 W. Va. at 632, 276
S.E.2d at 790). The State, however, ignores the fact that the foregoing language upon
which it focuses was obiter dicta. Id. Further, notwithstanding that dicta, the Court in
Davis reversed and remanded for a new trial because we found the jury instruction given
regarding intent was misleading: “The last question submitted by the jury stated, in effect,
that ‘intent’ was not an element of second degree murder. The State argued below and in
this appeal that ‘intent to kill is not an element of the crime of second degree murder.’ This
argument has no merit.” Id. at 596-97, 648 S.E.2d at 360-61.
       11
          See Blockburger v. United States, 284 U.S. 299, 204 (1932) (“‘Where the same
act or transaction constitutes a violation of two distinct statutory provisions, the test to be
applied to determine whether there are two offenses or only one, is whether each provision
requires proof of a fact which the other does not.’”); accord Syl. Pt. 4, State v. Gill, 187
W. Va. 136, 416 S.E.2d 253 (1992) (setting forth Blockburger test).
                                              14
their counterparts in the instant case. The defendant argued that a conviction for second-

degree murder required the State to prove intent to harm, which the defendant argued was

the same as the intent necessary to prove death of a child by a parent, guardian or custodian;

the State, on the other hand, argued the intent element of second-degree murder was intent

to kill. Id. at 147, 756 S.E.2d at 201.



              We recognized in Gerlach that intent to kill has not always been an element

of second-degree murder under our somewhat inconsistent jurisprudence. Id. at 148, 756

S.E.2d at 202 (citing State v. Hertzog, 55 W.Va. 74, 80, 46 S.E. 792, 794 (1904) (“[T]he

distinctive element in willful, deliberate, and premeditated murder, not in murder of the

second degree, is the specific intention to take life[.]”); State v. Dodds, 54 W.Va. 289, 299,

46 S.E. 228, 232 (1903) (“Wherever, then in cases of deliberate homicide, there is a specific

intention to take life, the offense, if consummated, is murder in the first degree; if there is

not a specific intention to take life, it is murder in the second degree.”)). However,

notwithstanding those earlier precedents, we reiterated that pursuant to Guthrie, intent to

kill is an element of second-degree murder:

              Of importance to the case at bar is the fact that Guthrie made
              it clear that intent to kill is an element of second degree murder.
              In that regard, Justice Cleckley further explained:

                     [T]here must be some evidence that the defendant
                     considered and weighed his decision to kill in order for
                     the State to establish premeditation and deliberation
                     under our first degree murder statute. This is what is
                     meant by a ruthless, cold-blooded, calculating killing.
                     Any other intentional killing, by its spontaneous and
                     nonreflective nature, is second degree murder.

                                              15
             Id. at 675-76, 461 S.E.2d at 181-82 (footnote omitted and
             emphasis added).

                   Therefore, pursuant to Guthrie, intent to kill is an
             element of second degree murder.

Gerlach, 233 W. Va. at 130-41, 756 S.E.2d at 203 (quoting, in part, Guthrie, 194 W. Va.

at 675-76, 461 S.E.2d at 181-82) (some emphasis added).



             Applying this conclusion to the facts of the case before it, the Court

determined that the elements of the second-degree murder and death of a child by a parent,

guardian or custodian were different as “intent to kill is an element of second degree

murder. Intent to kill, however, is not an element of the offense of death of a child by a

parent, guardian or custodian as set forth in West Virginia Code § 61-8D-2a(a).” 233 W.

Va. at 149, 756 S.E.2d at 203. Therefore, double jeopardy principles were not violated

when the petitioner was convicted of both. Id.



             Based upon the foregoing, it is apparent that a clear departure from the

common law began with the Hatfield decision in 1982, wherein the Court recognized that

the formation of a specific intent to kill was an element of second-degree murder. See 169

W. Va. at 198, 286 S.E.2d at 407-08; accord Guthrie, 194 W. Va. at 673-74, 461 S.E.2d at

179-80. Because the Court, however, has never recognized this departure by setting forth

the elements necessary for second-degree murder in a syllabus point, we now clarify the

departure that began almost forty years ago by holding that murder in the second degree is


                                           16
the unlawful, intentional killing of another person with malice, but without deliberation

and premeditation. 12 To the extent that State v. Morrison, 49 W. Va. 210, 38 S.E.481

(1901), State v. Haddox, 166 W. Va. 630, 276 S.E.2d 788 (1981),13 and their progeny are

inconsistent with our holding, they are expressly overruled.



                The reasons this clarification as to the law governing second-degree murder

is necessary are two-fold. First, without clarification, there will continue to be unnecessary

confusion in the elements necessary to establish second-degree murder, resulting in

instructional error such as occurred in the instant case. In this regard, we emphasize that

our holding herein does not mean that second-degree murder cannot be proven on facts

such as those present in the instant case; there are a myriad of factual scenarios upon which

the State can prove a charge of second-degree murder, so long as the evidence is sufficient

to establish the elements of the crime. Succinctly stated, once a jury is properly instructed

as to the elements of second-degree murder, it then becomes “[t]he jury’s sole function . .

. to pass on whether a defendant is guilty as charged based on the evidence presented at



      12
         Indeed, we have upheld convictions based on jury instructions with these elements.
See Delgado v. Ballard, No. 14-1005, 2015 WL 2382105, at *3 (W. Va. May 18, 2015)
(memorandum decision) (disagreeing with petitioner’s argument that instruction for
second-degree murder providing “‘[m]urder in the second degree is the unlawful
intentional killing of another person with malice but without deliberation and
premeditation[]’” was incomplete); State v. Foster, 221 W. Va. 629, 640, 656 S.E.2d 74,
85 (2007) (“‘Our review of the trial transcript indicates that the trial court correctly
instructed the jury that “[m]urder in the second degree is the unlawful, intentional killing
of another, with malice, but without deliberation or premeditation.”’”).
       13
            See supra note 10 (discussing the per curiam decision in Haddox).
                                             17
trial and the law as given by the jury instructions.” Guthrie, 194 W. Va. at 678, 461 S.E.2d

at 184. This Court makes no pronouncements as to the type or amount of evidence that

may be sufficient to sustain a second-degree murder conviction; in all but the most unusual

cases, and upon proper instruction of law, that decision is entirely one for the trier of fact.



              Second, absent clarification that intent to kill is the required element of

second-degree murder, voluntary manslaughter would sometimes be a lesser included

offense of second-degree murder and sometimes not—a position espoused by the State in

this case. As we held in syllabus point one of State v. Louk, 169 W. Va. 24, 285 S.E.2d

432 (1981), overruled on other grounds by State v. Jenkins, 191 W. Va. 87, 433 S.E.2d 244

(1994),

                       [t]he test of determining whether a particular offense is
              a lesser included offense is that the lesser offense must be such
              that it is impossible to commit the greater offense without first
              having committed the lesser offense. An offense is not a lesser
              included offense if it requires the inclusion of an element not
              required in the greater offense.14


       14
         As for the offenses at issue in this case, we found in syllabus point six of Guthrie,
194 W. Va. at 664, 461 S.E.2d at 170, that first-degree murder is the malicious, intentional,
deliberate, and premeditated killing of another. Second-degree murder is the unlawful,
intentional killing of another person with malice, but without deliberation and
premeditation. Voluntary manslaughter is the unlawful, intentional killing of another
without malice. See Syl. Pt. 3, State v. McGuire, 200 W. Va. 823, 490 S.E.2d 912 (1997);
see also infra Section III. B (discussing McGuire in greater detail). Involuntary
manslaughter is an unlawful killing. See Syl. Pt. 7, State v. Barker, 128 W. Va. 744, 38
S.E.2d 346 (1946) (“The offense of involuntary manslaughter is committed when a person,
while engaged in an unlawful act, unintentionally causes the death of another, or where a
person engaged in a lawful act, unlawfully causes the death of another.”).


                                              18
(Footnote added). In McGuire, we stated that “[i]n West Virginia, there can be no doubt

that we also have considered voluntary manslaughter as a lesser included offense of

murder.” 200 W. Va. at 834, 490 S.E.2d at 923. This recognition was predicated upon

the intent to kill being necessary elements of both second-degree murder and voluntary

manslaughter.



               Despite our longstanding recognition that voluntary manslaughter is a lesser

included offense of second-degree murder, the State invites the Court to allow the State to

determine “whether voluntary manslaughter is a lesser-included offense [of second-degree

murder]” based on whether it decides to proceed on a second-degree murder theory of

intent to kill or intent to do great bodily harm. Under the State’s logic, if it proceeded on

the first theory, voluntary manslaughter would be a lesser included offense for the jury to

consider; if it proceeded on the second theory, voluntary manslaughter would not be a

lesser included offense and would not even be listed on the verdict form; and if it proceeded

on alternative theories, as it did in this case, then it would be up to the jury to decide whether

voluntary manslaughter would be a lesser included offense—and the verdict form would

necessarily be a complicated maze of options. We find the State’s suggested approach is

in direct contravention of our existing law, is so complex as to be incapable of application,

and is therefore untenable.




                                               19
              Accordingly, because the circuit court erred in instructing the jury that it

could convict the petitioner of second degree murder if it found intent to kill or to cause

great bodily injury, we reverse and remand the case for a new trial.



                            B. Involuntary Manslaughter

              The petitioner next argues that the circuit court erred in instructing the jury

that it could not convict him of voluntary manslaughter as a lesser included offense of

second-degree murder without proof of sudden provocation and heat of passion. 15 The

petitioner contends that at the same time the circuit court made it easier for the State to

prove second-degree murder, it made it more difficult for the jury to consider voluntary

manslaughter by adding the elements of sudden provocation and heat of passion. We agree.



              The Court expressly held in syllabus point three of McGuire that “[g]ross

provocation and heat of passion are not essential elements of voluntary manslaughter, and,

therefore, they need not be proven by evidence beyond a reasonable doubt. It is intent

without malice, not heat of passion, which is the distinguishing feature of voluntary



       15
          We disagree with the State’s argument that this assigned error was not preserved
by the petitioner below. Even assuming, arguendo, that it was not properly preserved, the
Court could review it under the plain error doctrine. See W. Va. Rule of Crim. P. 30 (“No
party may assign as error the giving or the refusal to give an instruction or the giving of
any portion of the charge unless that party objects thereto before the arguments to the jury
are begun, stating distinctly the matter to which that party objects and the grounds of the
objection; but the court or any appellate court may, in the interest of justice, notice plain
error in the giving or refusal to give an instruction, whether or not it has been made the
subject of objection.”).
                                             20
manslaughter.” 200 W. Va. at 825, 490 S.E.2d at 914, Syl. Pt. 3 (emphasis added).16 Thus,

to the extent that the jury was instructed that voluntary manslaughter required proof that

the petitioner killed the victim “unlawfully and intentionally, without premeditation,

deliberation, or malice, but upon sudden provocation and in the heat of passion[,]” the

instruction contained elements that were not essential to a conviction for voluntary

manslaughter. (Emphasis added). The error in the instruction given by the circuit court is

in direct contravention to the Court’s holding in McGuire. This instructional error also

warrants a reversal and remand for a new trial.


                                         V. Conclusion

       For the foregoing reasons, the judgment of the Circuit Court of Cabell County is

reversed, and this case is remanded for a new trial.

                                                                  Reversed and remanded.




       16
          The State concedes in its brief that sudden provocation and heat of passion are
not elements of voluntary manslaughter under West Virginia law. But the State argues that
the inclusion of those elements adds to the State’s burden and is therefore harmless to the
petitioner. We disagree.
                                            21
