State v. Rue: No plain‑error relief for felony‑murder instructional complaint under a general first-degree murder verdict; reaffirmation of trial courts’ discretion to give initial‑aggressor self‑defense instructions

Introduction

In State of West Virginia v. Harold Rue, No. 23-385 (W. Va. Sept. 16, 2025), the Supreme Court of Appeals of West Virginia affirmed convictions for first-degree murder and use of a firearm during the commission of a felony arising from a roadside killing along Interstate 81 in Berkeley County. The case presents a focused appellate challenge to jury instructions: (1) whether a self-defense instruction that included an initial-aggressor limitation improperly prejudged Rue as the aggressor; (2) whether, despite the absence of a timely objection, the court should recognize plain error in the failure to instruct that felony murder cannot rest on an “afterthought” robbery; and (3) whether the voluntary manslaughter instruction improperly failed to emphasize “heat of passion.”

The decision does not change black-letter law, but it meaningfully crystallizes several practice-critical principles: the breadth of a trial court’s discretion in wording self-defense instructions; the necessity of timely, specific objections to preserve instructional error; the narrow pathway for plain-error relief when a general first-degree murder verdict does not reveal whether jurors relied on premeditation or felony murder; and the continued vitality of State v. McGuire’s clarification that voluntary manslaughter turns on intent without malice, not on “heat of passion” as a constituent element.

Summary of the Opinion

The Court affirmed Rue’s convictions and sentences. It held:

The self-defense instruction—including the initial-aggressor withdrawal requirement from State v. Brooks—accurately stated West Virginia law, was supported by the evidence, and fell within the trial court’s broad discretion in formulating jury charges. The instruction, read as a whole, also encompassed the “apparent danger” rule (acting on reasonable appearances without a duty to retreat when not at fault) per State v. Cain as reaffirmed in State v. Dinger.
Challenges to the felony-murder and voluntary manslaughter instructions were waived under State v. Gangwer, State v. Angel, and Rule 30 because Rue did not object at trial. The Court declined plain-error review, holding that:
- On felony murder, Rue could not show prejudice where the verdict form did not distinguish between premeditated and felony murder (and need not have under Stuckey v. Trent), the first-degree murder instruction itself was unchallenged, and thus the record did not establish that jurors relied on a felony-murder theory implicated by his “crime of opportunity” argument (Painter v. Zakaib).
- On voluntary manslaughter, Rue’s proposed instruction—that heat of passion is the “single most important factor”—is not a correct statement of law after State v. McGuire, which clarifies that the distinguishing feature of voluntary manslaughter is intent without malice, not heat of passion as an element.

Case Background

Multiple witnesses reported a shooting on Interstate 81: one observed a man in a black hoodie standing over a victim and rifling his pockets; others saw a Black male depart in a maroon truck towing an orange trailer. Pennsylvania authorities stopped a matching vehicle and detained Rue. In a recorded interview with Berkeley County investigators, Rue admitted a roadside confrontation, claimed self-defense (stating the victim swung a knife), and said he struck the victim with a shotgun, which then discharged. He also admitted taking the victim’s wallet and leaving the scene. A search yielded: the victim’s gold bracelet, a pump-action shotgun, one spent shell casing in the truck, and a broken fore-end; the shotgun contained a second fired casing when unloaded. The autopsy determined the cause of death to be a shotgun wound to the chest, manner of death homicide.

At the instruction conference, Rue objected to an instruction stating an initial aggressor cannot claim self-defense without withdrawing and giving notice of withdrawal (Brooks). The trial court overruled, reasoning the instruction merely set the conditions under which an aggressor could still claim self-defense; the State’s evidence permitted a finding that Rue initiated the confrontation by parking behind the victim and approaching with a shotgun, without prior knowledge that the victim had a knife. A jury convicted Rue of first-degree murder (with no mercy), use of a firearm in the commission of a felony, and he had separately pled guilty to felony possession of a firearm. He received life without parole for the murder, consecutive to ten years (firearm during felony) and five years (felon in possession).

Detailed Analysis

Precedents and Authorities Relied Upon

State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995), Syl. Pt. 4 (in part): Establishes the governing standard for reviewing instructions. Jury charges must be legally correct and supported by the evidence; courts review the charge “as a whole,” not in isolated fragments; trial courts have broad discretion over wording.
State v. Brooks, 214 W. Va. 562, 591 S.E.2d 120 (2003): Reaffirms the initial-aggressor rule: one who voluntarily and willingly enters a fight cannot invoke self-defense unless he abandons and withdraws from the fight and gives notice of withdrawal.
State v. Dinger, 218 W. Va. 225, 624 S.E.2d 572 (2005) (quoting State v. Cain, 20 W. Va. 679 (1882)): Codifies the core “apparent danger” principle of West Virginia self-defense law: a person not at fault may, without retreating, act on reasonable appearances of imminent deadly danger, even if it later proves there was no actual danger.
State v. Gangwer, 169 W. Va. 177, 286 S.E.2d 389 (1982), Syl. Pt. 3; State v. Angel, 154 W. Va. 615, 177 S.E.2d 562 (1970), Syl. Pt. 6 (in part); W. Va. R. Crim. P. 30: A party cannot assign error to given or refused instructions absent a timely and specific objection specifying grounds.
State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995), Syl. Pt. 7: Articulates the four-part plain-error test: (1) error; (2) plain; (3) affecting substantial rights; and (4) seriously affecting the fairness, integrity, or public reputation of judicial proceedings.
State v. Hutchinson, 176 W. Va. 172, 342 S.E.2d 138 (1986), Syl. Pt. 2 (in part): The Court will not ordinarily recognize plain error in jury instructions—even of constitutional dimension—unless the instruction substantially impaired the trial’s truth-finding function.
State ex rel. Painter v. Zakaib, 186 W. Va. 82, 411 S.E.2d 25 (1991): Clarifies that the “mere coincidence” of a homicide and a felony is insufficient for felony murder; the felony must be part of a continuous transaction, not an isolated afterthought.
Stuckey v. Trent, 202 W. Va. 498, 505 S.E.2d 417 (1998), Syl. Pt. 5 (in part): The State may present alternate theories of first-degree murder (e.g., premeditated and felony murder) if distinguished in the instructions; due process does not require the verdict form to differentiate between the theories.
State v. Starkey, 161 W. Va. 517, 244 S.E.2d 219 (1978) (overruled in part by Guthrie): Earlier language emphasizing heat of passion as pivotal to degree of culpability.
State v. McGuire, 200 W. Va. 823, 490 S.E.2d 912 (1997), Syl. Pt. 3: Supersedes Starkey’s emphasis; gross provocation and heat of passion are not elements of voluntary manslaughter to be proved beyond a reasonable doubt. The key distinction is intent without malice, not heat of passion.

Legal Reasoning Applied to the Issues

1) Self-Defense Instruction and the Initial-Aggressor Limitation

Rue argued the initial-aggressor instruction “presupposed” he was the aggressor. The Court disagreed. Applying Guthrie’s “charge as a whole” review and deference to trial court phrasing, the Court noted:

The instruction accurately stated West Virginia law: a non-aggressor may use deadly force on reasonable appearances of imminent deadly harm without a duty to retreat (Cain/Dinger), while an initial aggressor must withdraw and communicate that withdrawal (Brooks).
The record supported giving an initial-aggressor instruction. The State’s evidence permitted the jury to find Rue initiated the confrontation by stopping behind the victim and approaching with a shotgun before knowing the victim had any weapon. That evidentiary basis suffices; the instruction did not tell jurors Rue was the aggressor—it only explained the legal consequences if they so found.
The instruction encompassed the “apparent danger” principle, addressing Rue’s claim that the jury should have been instructed on acquittal even if he was ultimately mistaken. Under Dinger/Cain, a reasonable, good-faith mistake about imminent deadly danger (when not at fault) supports acquittal; a separate “mistake” instruction was unnecessary given the charge’s substance.

Conclusion: No abuse of discretion. The instruction was a correct, evidence-supported statement of self-defense law, properly balanced between non-aggressor rights and the initial-aggressor withdrawal requirement.

2) Felony-Murder “Crime of Opportunity” Instruction and Plain Error

Rue did not object at trial to the absence of an instruction explaining that a post-homicide theft cannot serve as the predicate felony for felony murder (Painter’s “mere coincidence” principle). The Court held the issue was waived (Gangwer/Angel/Rule 30).

On plain-error review, the Court emphasized two interlocking hurdles:

Under Stuckey, the State may advance both premeditated and felony-murder theories if the instructions distinguish them; the verdict form need not specify which theory the jury adopted. Here, the verdict form did not separate the theories, and Rue did not challenge the correctness of the general first-degree murder instruction.
Because the record does not reveal whether the jury relied on felony murder as opposed to premeditation, Rue could not show the alleged omission affected his substantial rights or substantially impaired the truth-finding function (Hutchinson). Put differently, even if a Painter clarification were warranted as to felony murder, there is no way to conclude that jurors used felony murder at all—let alone that any felony-murder-specific omission tainted the verdict.

Conclusion: No plain error. The conviction stands regardless of any “crime of opportunity” gloss on felony murder because the verdict could rest on premeditated murder, a theory unaffected by Rue’s Painter argument.

3) Voluntary Manslaughter Instruction and the Role of Heat of Passion

Rue argued the jury should have been told that acting in the heat of passion arising from sudden provocation is “the single most important factor” in determining culpability. The Court rejected this, explaining that McGuire superseded Starkey’s emphasis: gross provocation and heat of passion are not essential elements of voluntary manslaughter; the decisive distinction is intent without malice.

Because Rue neither objected to the instruction nor proposed a correct alternative articulating McGuire’s rule, and because his requested instruction misstated the law, there was neither preserved error nor plain error.

Why the Evidence Context Matters

The Court’s refusal to grant relief is also reinforced by the record:

The physical evidence—two fired casings from a pump-action shotgun requiring manual cycling—undercut Rue’s claim of a purely accidental discharge. This diminished the likelihood that subtle variations in self-defense wording affected the jury’s fact-finding.
Rue admitted taking the victim’s wallet and leaving the scene without summoning help; the jury also heard witness accounts of pocket-searching. These facts complicate the self-defense narrative and, again, lessen the plausibility of prejudice from the complained-of instructions.

Impact and Practical Implications

For Trial Courts and Practitioners

Instructional Discretion: Rue underscores the deference afforded to trial courts under Guthrie. Courts can and should tailor balanced self-defense instructions that cover both the Cain/Dinger “apparent danger” rule and the Brooks initial-aggressor withdrawal rule when the evidence could support either scenario.
Preservation Is Critical: Defense counsel must make timely, specific Rule 30 objections to preserve instructional challenges. Generalized discontent with wording or post-trial reformulations are insufficient.
Managing Alternate Theories: If a defendant intends to pursue a Painter “afterthought felony” theory on appeal, counsel should (a) request a Painter-compliant felony-murder instruction; (b) tender a curative instruction; and (c) consider requesting a special verdict form that identifies the theory of first-degree murder selected (even though not required by Stuckey). While due process does not mandate a differentiated verdict, such a request can illuminate prejudice and avoid the uncertainty that defeated Rue’s plain-error argument.
Manslaughter Framing: Practitioners should rely on McGuire’s formulation—intent without malice is the key distinction—and not revert to Starkey’s pre-Guthrie language emphasizing heat of passion as the “single most important factor.”

Doctrinal Clarifications

Self-Defense: West Virginia continues to follow the common-law rule that a non-faulted defendant may act on reasonable appearances of imminent deadly danger without a duty to retreat; however, one who initiates or willingly enters combat must withdraw and communicate that withdrawal to reclaim the defense. Instructions capturing both aspects are proper when supported by the evidence.
Felony Murder vs. Premeditation: When a jury returns a general first-degree murder verdict after being properly instructed on both theories, appellants face a high bar to show plain error about a felony-murder-specific omission because the verdict may rest on premeditation alone.
Voluntary Manslaughter: The State need not prove heat of passion beyond a reasonable doubt; the dividing line is the absence of malice accompanying intentional killing.

Complex Concepts Simplified

Initial Aggressor and Withdrawal: If you start the fight, you can only claim self-defense after you genuinely stop fighting and make it clear you’re backing out. If you did not start the fight, you may defend yourself based on reasonable appearances of imminent deadly harm without first retreating.
Apparent Danger and Mistaken Belief: Even if it turns out there was no real threat, a person not at fault is excused if he reasonably believed deadly force was necessary to avoid imminent death or serious injury. The focus is on what a reasonable person in the defendant’s position would have believed at the time.
Felony Murder and “Crime of Opportunity”: Felony murder requires that the death occur during (or in immediate flight from) a qualifying felony as part of one continuous episode. Stealing from a corpse after a killing may be a separate, later crime and not a basis for felony murder—this is the “mere coincidence” or “afterthought” problem emphasized in Painter.
General vs. Special Verdicts: A general verdict simply says “guilty of first-degree murder” without identifying the theory (premeditation vs. felony murder). West Virginia permits general verdicts for first-degree murder; when used, it becomes difficult on appeal to prove prejudice tied to a theory-specific instructional error.
Plain Error: A narrow safety valve for unpreserved errors. The appellant must show a clear error that affected substantial rights and seriously harmed the fairness or integrity of the proceedings. For instructions, courts rarely find plain error unless the error undermined the jury’s ability to find the truth.
Voluntary Manslaughter: An intentional killing without malice. Heat of passion often explains why malice might be absent, but it is not an element the State must prove. The legal focus is whether malice is missing, not whether a defendant acted in heat of passion as a formal, standalone element.

Conclusion

State v. Rue reaffirms four durable West Virginia tenets:

Trial courts have wide latitude to craft balanced self-defense instructions that include the initial-aggressor withdrawal rule when supported by the evidence.
Instructional challenges must be preserved with timely, specific objections; failure to do so will generally foreclose appellate review.
Plain-error review of instructional issues is exceptionally limited, especially where a general first-degree murder verdict obscures whether jurors relied on a theory implicated by the alleged error.
McGuire—not Starkey—controls voluntary manslaughter: intent without malice is the distinguishing feature, not heat of passion as an element.

For litigants and trial judges, Rue is a practical roadmap for avoiding (or, on appeal, overcoming) instruction-based claims in homicide prosecutions. Its most salient contribution is doctrinal housekeeping: it integrates longstanding self-defense principles with modern preservation and plain-error rules, and it clarifies that without a theory-specific verdict, felony-murder instructional complaints typically cannot meet plain-error’s demanding prejudice standard.