CHARLESTON (AP) — The West Virginia Supreme Court has reinstated a man’s first-degree murder convictions for the 1982 slayings of two people in Marion County, ruling that a lower court erred when it granted him a new trial.
It is the third time that Phillip Reese Bush has lost challenges of his convictions. The Supreme Court denied his first appeal in 1989 and the second appeal in 2002.
The latest ruling, issued Wednesday, came in an appeal by Mount Olive Correctional Complex Warden David Ballard of a February 2013 decision by the Ohio County Circuit Court that said the trial court’s jury instructions were unconstitutional. The 2013 ruling also said Bush’s legal counsel should have challenged the instructions.
Bush’s 1983 trial was moved to Ohio County from Marion because of pretrial publicity. He was convicted under the state’s felony murder statute of killing Charles Dale Goff and Kathleen Jane Williams in a cemetery in Fairmont in September 1982.
At the time, the statute said a person could be convicted of first-degree murder if it occurred during the commission of arson, rape, robbery or burglary. Prosecutors had said Goff was robbed and Williams was sexually assaulted, the Supreme Court said.
Bush’s latest appeal argued that he was denied due process because the trial court substituted “first-degree sexual assault” for “rape” in its jury instructions. The Legislature replaced the offense of rape with varying degrees of sexual assault in 1976 but did not update the felony murder statute’s language until 1987.
The circuit court ruled that the jury instructions were unconstitutional because first-degree sexual assault was not included in the statute at the time.
The Supreme Court said the sexual assault aspect of the case had been properly presented to the jury, and that there was no deprivation of Bush’s due process rights.
Bush is serving two life sentences for the 1982 slayings. He is awaiting trial in a separate Marion County case involving the 1974 slayings of three people in Fairmont.