Annette M. (Jones) Dale

(CV-96-016 )


Claimant appeared in person and by counsel, Timothy P. Lupardus, Attorney at Law.

Doren C. Burrell, Senior Assistant Attorney General, for the State of West Virginia.

An application of the claimant, Annette M. Jones, for an award under the West Virginia Crime Victims Compensation Act, was filed January 29, 1996. The report of the Claim Investigator, filed October 28, 1996, recommended that no award be granted, to which the claimant filed no response. An Order was issued on February 13, 1997, upholding the Investigator's recommendation and denying the claim, in response to which the claimant's request for hearing was filed February 21, 1997. This matter was scheduled for hearing three times, and was continued three times, before finally coming on for hearing November 14, 2003. The claimant appeared in person and by counsel, Timothy P. Lupardus, attorney at law, and the State of West Virginia by counsel, Doren C. Burrell, Senior Assistant Attorney General.
On February 13, 1994, the claimant's 22- year old husband, Troy J. Jones, was shot to death by Dennis Horn in Avondale, McDowell County. The offender was charged with first-degree murder, but the case did not proceed because the offender committed suicide. Claimant Annette Davis was married to the victim and has a child by him, who is now eleven years old. The claimant seeks an award for loss of income as a result of the murder. T
he initial denial of an award was based on the alleged contributory misconduct of the victim. The Claim Investigator determined from the police report that the victim failed to retreat and take precautionary measures for his own safety.
Virgil Bailey, Jr., testified at the hearing of this matter. He was present at the Riverbend Lounge on the night of the incident and was an eyewitness to the crime. Mr. Bailey and a friend were at the Riverbend Lounge to speak to the offender, Dennis Horn, about booking their band to play at the bar in the future. (Transcript, page 4.) He did not know the victim prior to the incident. Mr. Bailey testified that he first observed the victim speaking with the offender while sitting at the bar having a beer. (Transcript, page 5.) A little later the victim purchased a six-pack of beer at the bar and then left. (Transcript, page 8.) However, approximately fifteen to twenty minutes
later he came back to the front door and rang the bell. (Transcript, page 5.) Ms. Horn, who also worked at the bar, answered the door. Upon seeing that it was the victim, she asked the offender if he wanted the victim back inside. (Transcript, page 5.) The offender told her no, that he did not want the victim to come back inside and that he should go home. (Transcript, page 5.) Suddenly, the victim knocked the door open and knocked Ms. Horn out of the way, forcing his way in. (Transcript, page 5.) The victim proceeded to walk in slowly toward the bar where the offender was standing with a 45.caliber pistol pointed at him. (Transcript, page 5.) According to Mr. Bailey, the offender was telling the victim that "he did not want any trouble, to just go home and they would talk about it later." (Transcript, page 6.) Mr. Bailey stated that he turned to look at his friend who was with him when suddenly the offender fired the gun. (Transcript, page 6.) According to Mr. Bailey, he did not see the offender fire the gun nor did he see exactly how close the victim was to the offender when the gun was fired. (Transcript, page 6.) Further, he did not recall the victim running at the bar or approaching the offender aggressively in any manner. (Transcript, page 7.) However, Mr. Bailey admitted on cross- examination that his memory of many of these events has dimmed some over the past nine or ten years. (Transcript, page 9.) Thus, Mr. Bailey read into the record the statement he gave to the West Virginia State Police on Feruary14, 1994. (Transcript, page 12.) He stated in part:
On Sunday, February 13, 1994, at about 10:00, I was at Riverbend Lounge with Wade Fletcher. We were there to speak with Dennis and Judy Horn about playing at their club... I had nothing to drink that night that contained alcohol. I was setting at a table with Wade Fletcher and Richard Church... T.J. had been trying to pick fights all night with other people in the bar. He was also sexually harassing women in the club including Judy Horn. T.J. threatened Richard Church and continued to be very belligerent towards everyone in the bar. He seemed to be highly intoxicated. After he left, everyone was relieved. About ten (10) minutes passed and T.J. returned. Judy met him at the door and told him he was too drunk and could not return inside. He became irate and forced his way in the door.... Dennis told T.J. to leave at least eight (8) or ten (10) times. Finally Dennis produced a gun and kept saying 'Please T.J. leave.' Judy was on the phone trying to get T.J.'s dad on the telephone to come and get T.J. out of the bar. T.J. slammed his fists down on the bar after trying to get the phone from Judy. When he slammed his fists on the bar I heard the gun go off and saw T.J. fall to the floor. Dennis never aimed the gun, it just seemed to go off... .

Mr. Bailey stated that this appeared to be an accurate transcription of the statement he gave to Trooper Duckworth of the West Virginia State Police a few days following the incident. (Transcript, pages 12-13.)
Trooper Eddie L. Smith of the West Virginia State Police, one of the investigating officers, also testified. He stated that he had received a frantic emergency telephone call from Judy Horn, the wife of the offender, at approximately 10:05 on the night in question According to Trooper Smith, Ms. Horn advised him that Dennis Horn had shot the victim. (Transcript, page 16.)
Trooper Smith dispatched an ambulance to the scene and notified Trooper Duckworth for assistance. Both officers responded to the scene. (Transcript, page 17.) Based upon his investigation, Trooper Smith testified that the offender, Dennis Horn, who owned and operated the Riverbend Lounge, had told the victim to leave the bar several times while pointing a .45 caliber handgun at him. (Transcript, page 17.) However, the victim refused to leave and continued to approach the offender who was behind the bar. The victim slammed his beer and his hand down on the bar at which time the offender shot the victim. (Transcript, page 17.) Trooper Smith testified that he and Trooper Duckworth believed that there was sufficient evidence at that time to charge the offender with first-degree murder. (Transcript, page 18.) He stated that there was not "just provocation" to allow the offender to just walk. (Transcript, page 18.) He stated that is an issue for a jury to decide. (Transcript, page 18.) Sergeant Smith also testified that during his investigation he discovered that the victim had purchased Percocet, which is a prescription narcotic painkiller and a controlled substance. (Transcript, page 19.) However, he admitted that the Medical Examiner's report indicated that the victim did not test positive for any narcotics. (Transcript, page 20.)
Trooper Greg Duckworth of the West Virginia State Police testified that he also investigated the incident and took approximately eight different statements from eyewitnesses. (Transcript, page 22.) He testified that these statements were consistent with the sworn statement that Mr. Bailey made to Sergeant Smith just after the incident and which was read into evidence at this hearing. (Transcript, page 22.) He also learned through the investigation that the offender was selling Percocets out of the bar and that he probably sold the victim a six-pack of beer and sent him out of the bar with it. (Transcript, page 24.) Trooper Duckworth also testified that while the offender was charged with first-degree murder, he felt there was equal fault on both parties. (Transcript, page 23.) He further indicated that the conduct of both the victim and the offender was not anything that anyone would look favorably upon. (Transcript, page 25.) However, he testified that the victim was the initial aggressor, and had he not been killed, he could have been charged with assault, trespassing, and purchase of a controlled substance. (Transcript, page 26.)
The claimant, Annette Jones Dale, testified that she was married to the victim at the time of the incident and that they had one child together, who was two years old at the time. (Transcript, page 30.) The claimant did not work while she was married to the victim and she had no other source of income other than what he earned as a coal truck driver. (Transcript, page 31.) Ms. Dale testified that she and the victim were at the Riverbend Lounge twice that day. (Transcript, page 32.) She stated that they took their child there earlier when no one else was there except for the offender and his wife, Judy Horn. (Transcript, page 32.) According to the claimant, she and the victim had been good friends with the offender and his wife, which is why they were visiting them with their child. (Transcript, page 32). They left and took the child to his grandparents' house and returned to the bar together later that night around 7:00 p.m. (Transcript, page 32.) The claimant stated that the victim did not bring any alcohol with him to the bar but was drinking beer he had purchased there. (Transcript, page 32.) Later that night, a girl at the bar approached the claimant and told her that she needed to speak to her in private. She proceeded to tell the claimant that the victim had said something "pretty nasty" to her and that it had something to do with pills. (Transcript, page 33.) The claimant stated that she was already upset about "the pills" and upon hearing this she became "irate" and confronted the victim about it by shoving him numerous times. (Transcript, page 34.) The victim grabbed claimant by the hair to get her to stop. (Transcript, page 34.) She stated that at this point, she realized that she had gone too far. (Transcript, page 34.) She decided to leave the bar at this time, which she estimated to have been between 11:00 and 11:30 p.m. (Transcript, page 34.) This was the last time that she saw the victim alive. (Transcript, page 34.) The claimant testified that she did not believe that the victim was guilty of contributory misconduct. She described the victim as a good father, and said that he was not by nature a troublemaker or bad person. (Transcript, page 38.) According to the claimant, the narcotic painkillers and alcohol did not contribute to, nor have anything to do with, the victim's conduct. (Transcript, page 43.) It was her opinion that the trouble started after the victim left the bar the first time when one of the individuals in the bar tried to get him mad at the victim over some issues. (Transcript, page 43.) Additionally, she believed that there were persons in the bar who did not want him there and were intentionally provoking the offender not to let the victim back in. (Transcript, page 44.) She also believed that when the victim came to the door to get back into the bar, he was surprised that he was not allowed back in and probably just wanted to talk to the offender to find out what the problem was. (Transcript, page 45.) She did not believe that he was going to do anything violent or aggressive, but that he only wanted to talk to the offender, whom he considered his friend. (Transcript, page 45.)
W.Va. Code §14-2A-3(1) defines "contributory misconduct" as "any conduct of the claimant, or of the victim through whom the claimant claims an award, that is unlawful or intentionally tortious and that, without regard to the conduct's proximity in time or space to the criminally injurious conduct has causal relationship to the criminally injurious conduct that is the basis of the claim and shall also include the voluntary intoxication of the claimant, either by the consumption of alcohol or the use of any controlled substance when the intoxication has a causal connection or relationship to the injury sustained."
Further, W.Va. Code §14-2A-14 provides the Court with the discretion to deny or modify an award based upon the contributory misconduct of the claimant or of the victim through whom a claim is made. When a victim's actions fall without the express wording of contributory misconduct as defined in W.Va. Code §14-2A-3(1), the Court will then look to the purpose and intent of the Act. The Act established a system of compensation for innocent citizens who are victims of crime. While misconduct includes unlawful conduct as a matter of law, "misconduct" may be something less than unlawful conduct, though more than an act in poor taste. Misconduct requires some deviation from the accepted norm or standard of proper behavior. Conduct may be construed as "contributory misconduct" if an ordinary prudent person could have reasonably foreseen that such a result, or consequences of a generally injurious nature, was probable under all the facts as they existed. In re Trador, CV-97-56 (1997).
In the instant claim, the Court is of the opinion that the claimant failed to present sufficient evidence that would cause this Court to change its opinion that the claimant was guilty of contributory misconduct. While the Court is repulsed by the criminal conduct of the offender, only innocent victims of crime may be granted awards. The evidence established that the victim had been drinking on the evening at issue and had a blood alcohol content of 0.25%. In addition, there was evidence that the victim had taken some narcotic painkillers that night. The claimant admitted that she saw him take probably two narcotic painkillers while she was with him. Given these facts along with eyewitness testimony, it is evident that the victim was highly intoxicated. Further, the Court is of the opinion that there was a causal connection between the victim's consumption of alcohol, the use of a controlled substance, and his subsequent death. This constitutes contributory misconduct under W.Va. Code §14-2A-3(1). Further, the Court has declined to make an award in prior cases where the victim was intoxicated and/or used a controlled substance. See In re Rebrook, CV-90-102 (1991); In re Phalen CV-89-258 (1990). The victim's actions in forcing his way back into the bar by shoving the offender's wife is also evidence that he was highly intoxicated. In addition, the victim's refusal to stop or to turn away once the offender brandished a handgun is also indicative of someone who is highly intoxicated. Further, the evidence presented at the hearing also established that the victim's behavior, whether due to intoxication or not, was unlawful and intentionally tortious. While the Court is not, under any circumstances, justifying the offender's conduct, it cannot ignore the victim's conduct either, which was intentionally tortious at the least. The victim was trespassing when he forced his way back into the bar and refused to leave. He committed an assault upon the offender's wife when he shoved her. Further, the victim continued approaching the bar where the offender was standing while pointing a .45 caliber handgun at him, and allegedly slammed his fists on the bar. This constitutes an assault and clearly contributed to the victim's death. Further, the Court is of the opinion that the victim's conduct was not that of an ordinary prudent person. It is clearly foreseeable that a person pointing a gun at another who, for whatever reason, is threatening to fire it may in fact do so. Thus, while the Court finds the offender's conduct repulsive, it cannot grant the victim an award in this claim based on his contributory misconduct.

The Court is constrained by the evidence to stand by its previous ruling; therefore, this claim must be, and the same is hereby denied.

ENTER: _______________________________________________