ORDER ISSUED AUGUST 3, 2000
Deborah A. Waltman
(CV-98-195)
O R D E R
Claimant appeared in person and by counsel, David H. Wilmoth.
Joy Cavallo, Assistant Attorney General, for the State of West
Virginia.
STEPTOE, JUDGE:
An application of the claimant, Deborah A. Waltman, for an
award under the West Virginia Crime Victims Compensation Act, was
filed July 8, 1998. The report of the Claim Investigator, filed
November 4, 1998, recommended that no award be granted, to which
the claimant timely responded. An Order was issued December 10,
1998, upholding the Investigator's recommendation, in response to
which the claimant's request for hearing was filed January 4, 1999.
This matter came on for hearing September 17, 1999, the claimant
appearing in person and by counsel, David H. Wilmoth, and the State
of West Virginia by counsel, Joy Cavallo, Assistant Attorney
General.
The claimantÆs 15-year-old son was shot and killed on November
9, 1997, in Beverly, Randolph County, West Virginia, by another
juvenile.
This Court's initial decision was based on the victimÆs
alleged contributory misconduct. The victim and several friends,
including the offender, had, prior to the shooting, been engaged in
extensive and continued illegal activity. According to the State
Police report, at approximately 6:00 p.m. on November 8, 1997, the
victim and his friends began walking through the town of Bailey
drinking alcohol. They then broke into an abandoned camper, stole
several weapons and a small amount of cash, and walked to Wildwood
where they stole a truck. By then it was midnight.
The crime spree continued when the boys stole some checks
which they forged to pay for gas at approximately 2:00 a.m. They
proceeded to break into a gun shop in Elkins, where they drove the
stolen truck into a creek. At noon, they called a cab to take them
back to Beverly. The fatal shooting occurred about one hour later
at one of the boysÆ residences.
The Court concludes that the series of criminal acts which
occurred over the 18-hour period did constitute contributory
misconduct on the part of the victim such that an award should be
denied. It is truly tragic that a young life was lost, and this
CourtÆs sympathy is extended to the family. However, nothing
adduced at the full evidentiary hearing compels the Court to hold
reverse its prior ruling.
Therefore, no award can be granted.
_________________
ORDER ISSUED AUGUST 3, 2000
ROSA LEE SMITH
(CV-99-307)
O R D E R
Eric G. Smith, 20-year-old son of the claimant, and
hereinafter designated as the victim, was shot and killed on March
25, 1998, at about 8:00 p.m. in Huntington, Cabell County, West
Virginia, by Meredith Vanhoose, hereinafter the offender, who at
the same time shot and killed one Nicholas Flowers. The offender
was indicted on two counts of first-degree murder by the Cabell
County Grand Jury, but has not yet been tried.
The claim was filed in this Court on the 20th day of August,
1999, and was assigned to a Claim Investigator, as required by law,
for a written report of his investigation of the crime and for
recommendation as to an award, if any. The investigation of the
crime by the Claim Investigator was based on the handwritten field
report conducted by the Huntington Police Department, dated March
26, 1998 (one day after the homicide), and signed by Officer S.M.
Bowles. On page 4 of the Huntington report of March 26, 1998,
there is a handwritten, undated supplement to the original report
attributed to but not signed by Corporal T. Murphy, a detective who
apparently had been sent to the scene of the crime to make an
investigation. Corporal Murphy reported: ôVictim and Nicholas
Flower (sic) came to offenders residence to purchase marijuana.
Offender & his wife had been arguing over the off. (sic) having an
affair. OffenderÆs wife stated that she was having affair with
Nicholas and another person in order to get the offender to stop
arguing. Victim & Nicholas arrive to buy marijuana. Offender gets
rifle and shoots victim in head as well as Flowers. Offender was
charged & arrested on 2 counts of murder - Indicted and currently
pending in circuit court.ö
Obviously, Corporal MurphyÆs report was not a part of the
original report of March 26, 1998, a date on which Vanhoose could
not have been indicted.
The Claim Investigator, citing the Huntington Police
Department report made one day after the homicide, and supplemented
some time later, found as a matter of fact that the victim had gone
to the Vanhoose residence to buy marijuana, concluding that his
presence in the Vanhoose residence was sufficient evidence of a
decision to make a buy. Standing alone, as it does, seems to fall
short of proving a buy or an attempt to buy a controlled substance.
The Claim Investigator recommended that no award be made on
the basis of West Virginia Code º14-2A-3(l), defining ôContributory
misconductö that has a causal relationship to the criminally
injurious conduct giving rise to the claim.
The reviewing judge, on 23 March 2000, adopted the findings
and recommendation of the Claim Investigator, and ordered that no
award be made.
The claimant objected to the Order of the reviewing judge, and
requested an evidentiary hearing.
On 29 June 2000, the claim came on for hearing on its merits,
de novo.
Neither party denies that Eric G. Smith died as a result of
the criminally injurious conduct of Meredith Vanhoose the 25th day
of March, 1998, in Huntington, West Virginia.
The only issue is whether Eric G. Smith was guilty of
contributory misconduct having a causal relationship to the
criminally injurious conduct of the offender, Vanhoose. The Crime
Victim Compensation Fund, the respondent, having asserted an
affirmative defense, has the burden of proving this defense, by a
preponderance of the evidence.
Ms. Smith, the claimant, understandably had little to offer in
testimony as to the violent crime resulting in her sonÆs death,
except that he was a good boy, not addicted to marijuana, and had
only wanted to come home for his supper on the day of his death.
She testified also on the funeral expenses, paid by her, and the
amount.
Her only witness was Christopher D. Chiles, Prosecuting
Attorney of Cabell County for the last 18 years, who testified:
1.) That he had been working on this case, preparing for
trial for 2 years; and that it had been investigated thoroughly by
his office ôhundreds and hundreds of man-hours, ô and that he
thought he knew more than anybody, with the possible exception of
Detective Murphy, about the facts, events, and acts preceding the
homicide;
2.) On the basis of the investigation and reports made by and
to his office, he had determined that the offender was a violent
man, who suspected that his wife, Michelle Vanhoose, was having an
extra-marital affair with another man or men, and continually beat
her in efforts to make her identify the man or men sleeping with
her; that about a week before the homicides, hoping that if she
would stop the beatings by giving him the names of said men, she
identified Flowers and Eric Smith as the men with whom she had been
having affairs, saying, ôYouÆre right. IÆve been sleeping with
them;ö that a week or so later, Flowers and Eric Smith came to the
Vanhoose residence, and Flowers asked Meredith Vanhoose for a
joint; that Vanhoose returned with a deer rifle and killed both of
them at short range, and called police and said his wife had killed
two intruders to the residence; that in her statement to the
police, after 25 March 1998, Michelle Vanhoose did not say that
Eric Smith attempted to buy or otherwise obtain marijuana from the
offender; and that Michelle Vanhoose, who has obtained a divorce in
Kentucky (now on appeal by Meredith Vanhoose), wishes to testify
against her former husband at his trial on the charges of murder,
and will do so if the appeal of the divorce decree is rejected.
It further appears from the testimony of Mr. Chiles, which was
based upon the investigation of his office, that Flowers, Smith,
and Meredith Vanhoose had known each other for about 2 or 3 months,
having attended as classmates a local vocational school.
On 25 March 1998, Flowers, then in the company of one John
Dunfee, had solicited marijuana from Vanhoose, but was rejected.
Later he met Eric Smith and promised him a ride home, but they
stopped first at the Vanhoose residence, where Flowers renewed his
request for marijuana.
From the information in the report of investigation made by
this office, Mr. Chiles concludes that there is no evidence that
Eric Smith attempted to acquire marijuana or intended to do so, by
purchase or otherwise; and he further concludes that he was a
bystander, who with Flowers was killed by Meredith Vanhoose on the
basis of his wifeÆs allegations that she had been having affairs
with them.
The report of investigation dated 26 March 1998, made by the
Huntington Police Department and made a part of the record in the
hearing before this Court, contains a report of the Office of Chief
Medical Examiner of the State of West Virginia, as to the
postmortem examination of Eric G. Smith, conducted on 26 May 1998,
in which Zia Sabet, M.D., Chief Pathologist of that office, found:
Blood: Ethyl alcohol - positive 0.06%.
Urine: Negative for barbiturates, benzodiazepines, cocaine,
marijuana, opiate, amphetamine, propoxyphene, phencyclidine (PCP),
tricyclic antidepressant (TCA). Basic drug screen - negative.
Mark Timothy Murphy, also referred to herein as Corporal
Murphy and Detective Murphy, of the Huntington City Police
Department, was called by the respondent to testify as to his
investigation of the crime, and essentially corroborated the
version detailed by Prosecuting Attorney Chiles, as to the events
giving rise to the homicides, and concurred in the opinion that
Eric Smith, though a witness to FlowersÆ solicitation for
marijuana, was not a party to the transaction, and was waiting for
a ride to his own home.
There were no other witnesses.
The Court believes that there is no hard evidence in the
record that Eric G. Smith was engaged in a controlled substance
transaction. The most that can be said is that he was present at
one, apparently by accident, but being present at one and being a
party to such a transaction are quite different. Absent a showing
of participation in such a transaction, no contributory misconduct
is proved.
The Court makes an award to the claimant of $4,000.00, the
maximum that can be made, for the funeral expenses of Eric G.Smith,
as set out below.
Rosa Lee Smith
4851 Darnell Rd.
Huntington WV 25705
...............................................$4,000.00