State v. Sapp
In State v. Sapp, 207 W.Va. 606, 535 S.E.2d 205, cert. denied, 531 U.S. 1020 (2000), the defendant was convicted of murder of the first degree arising from an incident wherein the defendant, angered over the ineffectiveness of an illegal drug, unexpectedly struck the victim, Randy Nestor, with a blunt object. Upon appeal, the defendant asserted that the trial court committed error in failing to instruct the jury on voluntary manslaughter.
The Court rejected that assertion because the evidence did not warrant such an instruction and because the defendant had agreed, at trial, to strike an instruction on "provocation" from the charge to the jury. As the opinion in Sapp observed:
The defendant does not claim he was suddenly provoked by something Randy Nestor said or did; he claims he did not kill him, Brian White did. Based upon this evidence, an instruction on voluntary manslaughter was not warranted.
Moreover, prior to charging the jury, the court discussed with the prosecutor and defense counsel whether to give an instruction on provocation. The judge concluded that "it is the defendant's position through his testimony that there was no provocation." Defense counsel agreed and stated there was no objection to the court striking the paragraph on provocation.
Given the circumstances discussed above, we believe the circuit court did not abuse its discretion in instructing the jury in this case. The defendant was given every opportunity to object to the charge or to offer additional instructions and failed to do so.
(207 W.Va. at 615, 616, 535 S.E.2d at 214, 215.)