MORGANTOWN – Confusion among jurors over the meaning of malice in a murder trial should entitle the defendant to a new trial, according to attorney Crystal Walden of Charleston.

Walden seeks a new trial for Wade Davis, convicted of second degree murder by a Kanawha County jury.

In oral arguments before the West Virginia Supreme Court of Appeals on March 13 at the West Virginia University College of Law, Walden said Kanawha Circuit Judge Jim Stucky failed to instruct jurors properly on intent as an element of malice.

"It is clear the jurors did not understand malice to mean intent," she told the Justices.

She showed the Justices a note that jurors sent to the judge, seeking an explanation of his instruction. She said when the judge saw the note, he should have corrected the instruction.

For the state, assistant attorney general Christopher Smith said defense counsel relinquished the right to change the instruction.

"Counsel didn't go to prison over this but defendant did," Justice Joseph Albright said.

Davis received a 10-year sentence for stabbing Michael Lattea to death.

Walden did not represent Davis at trial. She appealed his conviction to the Supreme Court of Appeals.

In oral arguments at Morgantown, Justice Brent Benjamin asked Walden if defense counsel at trial objected to the jury instructions.

Walden said defense counsel did not object but defense counsel did not waive the right to object.

Benjamin said there was contention about whether Davis went after Lattea and whether Davis acted in self defense.

Benjamin said that when Davis stabbed Lattea, the blade of the knife and part of his hand went into Lattea's chest.

He said that according to testimony, Davis was on the ground. Walden said Lattea fell on Davis in their struggle.

"Two forces met together," she said.

Walden said it was the obligation of the trial court to issue constitutional instructions to the jury.

In rebuttal, Smith said the jury was not confused.

Maynard told Smith the note from jurors was like neon lights.

"How did trial counsel miss this?" he asked

Smith said the judge's instructions were not ideal but they were adequate.

"He gave them a wrong answer," Maynard said. "We may have to wait for a writ. This man may have to languish up in a cell before we get a writ of habeas."

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