CRIMINAL LAW
RESOURCE CENTER
West Virginia
Criminal Law Newsletter
of WEST VIRGINIA PUBLIC DEFENDER SERVICES
| Volume 3, Issue 2 | August 2002 |
FUNDING AND THE ROLE OF DEFENSE COUNSEL
Public Defender Services has recently encountered funding difficulties. These sort of problems are nothing new. In the twenty-one year history of PDS there have been at least ten years of varying levels of underfunding (ranging from one to six months of no funds for private counsel).
However, it is important to note the extremely generous treatment given to the program over the same time period. Since FY 1989, PDS budgets have risen from $3.5 million to a high of $27.5 million dollars in FY 2000. The FY 2003 budget is $24 million dollars. Certainly, this program has been given a significant priority by both present and past Governors and Legislatures. In light of the extreme pressures to keep taxes low while funding education, roads and major infrastructure improvements, this support is extraordinary.
PDS has done its part by opening as many Public Defender offices as possible since they operate more cheaply than private counsel on a case by case basis. The total case load more than tripled (from approximately 21,000 cases to a high of 69,000 cases), from 1990 to 2000 but the funds necessary to adequately represent our clientele less than doubled (adjusting for the increased hourly rates mandated by Jewell v. Maynard, 383 S.E.2d 536 (1989). Both private counsel and Public Defenders have shown themselves to be highly responsible in their stewardship of the taxpayers' funds as well as in their duty to represent their clients.
Nonetheless, despite our best efforts, the reality is that PDS finished FY 2002 with a minimum deficit of $2.5 million. In addition, FY 2003 funding is at least another $2.5 million short, leaving at least $5 million in additional funding needed for this fiscal year. Current projections are that appointed counsel funds will run out during late February, 2003. However, requests will be made for FY 2003 supplemental funding and an increase in regular FY 2004 funding.
As always, I urge everyone in this system, Public Defenders and private counsel, to represent their clients in the most effective manner their professional judgement dictates. And I invite your support in making it clear to your elected representatives that representation of indigents is being carried out in the most cost-effective as well as professional manner possible.
In this vein, it is absolutely imperative that your representation include your best efforts to give your client every opportunity possible for rehabilitation. If funding is to be seen as necessary and reasonable, those who engage in indigent defense must be seen as a part of the solution to crime and abuse, not as aiders and abettors to criminals (sadly, often the impression most laymen have).
I have every confidence that the vast majority of representation is already aligned to the extremely difficult goals I suggest but it is up to you to make your local policy makers aware that you are part of the solution and not part of the problem. For the innocent, we stand as the last shield against vindictive or shoddy prosecution and police work; for the guilty we stand as the only friends they may have. Both roles are crucial to our system of justice, no matter how poorly understood by the lay public.
If you have any questions or comments you can contact me by telephone at 304-558-3905 or by e-mail at jrogers@pds.state.wv.us
(All opinions included in the Spring 2002 Case Update may be viewed online at http://www.state.wv.us/wvsca/spring2002.htm)
State v. Shawna James, # 29990 - April 5, 2002
The defendant was charged with malicious wounding in connection with an incident at a crowded bar. During opening statements, the defense commented upon the fact that the state was calling only a few of the numerous witnesses to the incident to testify. The State then requested that the trial court advise the jury that each side could subpoena witnesses, and that the defendant could subpoena any witnesses to the trial. The court complied with this request and instructed the jury accordingly. On appeal, the court held that this instruction, taken as a whole, was inappropriate for a variety of reasons. However, the Court held that this instruction, when viewed in comparison with the remainder of the instructions, did not require reversal.
CONVICTION AFFIRMED.
State v. Chester Chanze, # 29810 - April 5, 2002
The defendant was charged in magistrate court with petit larceny and two other misdemeanor offenses. Following a jury trial, which resulted in the defendant's conviction for petit larceny, the defendant appealed. After the appeal was filed, counsel for the defendant was advised that the electronic recordings of the trial were defective and that no record existed of the trial. Counsel asked the circuit court for a new jury trial in magistrate court. The circuit court denied this motion and conducted a de novo bench trial, which resulted in the affirmation of the defendant's conviction. The Supreme Court of Appeals held that the defendant was entitled to a new trial. The rationale for this decision was the Court's belief that when an appellate record is so insufficient as to effectively prohibit a meaningful appellate review, the defendant's due process rights are implicated.
CONVICTION VACATED AND REMANDED FOR NEW TRIAL IN MAGISTRATE COURT.
State v. Robin Barnhart, # 29967 - April 8, 2002 (Jack Wood, Wheeling, for the Appellant)
This case presents a rather unique situation. After being indicted for malicious assault, the appellant discovered that one of the investigating officers on her case was a member of the grand jury which returned the indictment against her. The officer did not participate or vote on the case, but remained present with the grand jury throughout its consideration, deliberations and vote. The circuit court denied the appellant's motion to dismiss the indictment because, according to the opinion, there was no evidence that the police officer intimidated or influenced the other grand jurors.
The Court, in a per curiam opinion, felt otherwise. Holding that it was impossible to determine the effect that the officer's presence may have had on the other grand jurors, the Court found that his presence alone violated the "fundamental fairness" required in grand jury proceedings. Finding a violation of the appellant's due process rights, the Court reversed the conviction and remanded the case for entry of an order dismissing the proceedings.
REVERSED AND REMANDED.
State v. Suzana Vetromile, # 29703 - May 2, 2002
The defendant was convicted of first degree murder with no recommendation of mercy. The defendant's two assignments on appeal were (1) insufficiency of evidence to sustain a conviction of first degree murder, and (2) potential juror bias. The Court rejected the defendant's claims. The Court noted that the circumstances surrounding the killing of the defendant's boyfriend, including the manner of death (strangulation); the defendant's statements earlier in the day that she wanted to kill the victim; the testimony of the medical examiner indicating that the victim apparently did not attempt to defend himself; and the appearance of the relatively undisturbed crime scene, did not support the defendant's allegation that she was attacked by the victim and sought only to defend herself. The Court also brushed aside the defendant's allegations of juror bias, noting that the defendant's allegation that a juror had based their decision on inadmissable and improper allegations were "conjecture", and were not supported by proper evidence.
CONVICTION AFFIRMED.
State v. Gypsy Buck Bohon, # 30014 - May 8, 2002
Mr. Bohon entered into a conditional plea of guilty to second-degree murder. He appealed the trial court's denial of his motion in limine, by which he sought to prohibit the State from introducing (1) the earlier trial testimony of a co-defendant, who indicated that he would assert his Fifth Amendment privilege against self-incrimination if called to testify in the defendant's trial, and (2) the testimony of his wife as to certain statements made by the defendant.
The Court reversed the conviction, based (at least in part) on the State's confession of error on the issue of co-defendant's testimony. The Court noted that it would have been an obvious violation of the defendant's right to confront his accusers to permit the testimony of the co-defendant to be used at trial.
The Court also discussed the application of the marital confidence privilege in W. Va. Code 57-3-4, and reversed the trial court's ruling on this issue as well. The Court held that the defendant could assert the privilege to prohibit the testimony of his wife to certain communications made by the defendant to his wife. The Court noted that the privilege held firm despite the fact that the statements were made in the presence of a third party, because the third party was an eight-month old baby who was not capable of comprehending the discussion. The Court also noted that the privilege was not waived by a subsequent communication of the statements to third parties. (The Court did point out, however, that the third parties could testify as to the statements, provided that the statements were otherwise admissible).
REVERSED AND REMANDED.
O'Dell v. Miller, # 29776 - May 23, 2002
In a civil medical malpractice case cited in Johnston, above, the Court examined in some depth the issue of the proper procedures for removing prospective jurors for cause. In this case the Court held, in three new syllabus points, that (1) a trial court is required to consider the totality of the circumstances and grounds relating to a request to strike a potential juror for cause, and make a full inquiry to examine those circumstances and resolve any doubts in favor of excusing the juror; (2) if a potential juror makes inconclusive or vague statements during voir dire indicating possible bias or prejudice, further examination into the facts and background of such statements is required; and (3) once a potential juror has made a clear statement indicating the presence of a disqualifying bias or prejudice, the potential juror is disqualified and cannot be rehabilitated by subsequent questioning, later retractions, or promises to be fair.
SER Neely v. Sanders and Gregory, # 30359 - May 24, 2002
[Homer Speaker and John Adams, Martinsburg P.D. Office, for the Respondent David Gregory].
In this case, the State sought a writ of prohibition to prevent the trial judge from remanding a number of misdemeanor charges to magistrate court. The respondent Gregory had been initially charged in magistrate court with 6 misdemeanor charges, along with one felony charge. Following the respondent's refusal to waive the misdemeanors to the circuit court along with the felony charge, the State dismissed the charges and included them within the subsequent indictment. The respondent requested a remand of the misdemeanor charges and cited W. Va. Code 50-5-7 and State v. Bruffey, 207 W. Va. 267, 531 SE 2d 332 (2000) as support.
The Court discussed at some length the potential conflict between a defendant's right to have a case heard in magistrate court and the procedural joinder rule found in Rule 8(a) of the Rules of Criminal Procedure. The Court examined the issue under the test set forth in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1922) and determined that severance of the offenses and separate trials would not be violative of the Double Jeopardy provisions, because each of the offenses required an element of proof that the others did not. Thus, the remand ordered by the trial court was not an abuse of discretion.
WRIT DENIED.
State v. Gary Johnston, # 30040 - May 24, 2002
The appellant was tried on charges of fleeing, driving while revoked, and DUI -3rd Offense. During jury selection, a prospective juror indicated that she could not be unbiased against persons who drink alcohol. Despite the juror's statement that alcohol involvement would, "in some respects", make the appellant guilty in her mind, the trial court denied defense counsel's motion to excuse the juror for cause. The juror was removed with a peremptory strike, and the appellant was convicted of fleeing and driving while revoked.
The Court noted that each of the charges against the appellant contained an element involving the use of alcohol, and observed the prospective juror's "unequivocal" bias towards people who drink alcohol. The Court noted that the juror did not respond to any of the trial court's questions in a manner that suggested that she could put aside her bias for the purposes of the trial. Accordingly, the Court held that the trial court erred by not excusing the juror for cause.
CONVICTIONS REVERSED AND REMANDED.
State v. David Bell, Jr. - May 24, 2002
The appellant was charged with, inter alia, three counts of wanton endangerment with a firearm. The appellant requested, and was denied, instructions on the issues of (1) brandishing as a lesser-included offense of wanton endangerment, and (2) the right of a property owner to prohibit firearms on premises. The appellant was convicted on a single count of wanton endangerment.
The Court held that it was reversible error to refuse to instruct as to brandishing, which the Court held in Syllabus Point 5 to be a lesser-included offense of wanton endangerment. The Court determined that for the appellant to commit wanton endangerment, the appellant would have to have first carried, brandished or used his weapon in such a manner as to threaten a breach of the peace. Therefore, it would have been impossible to commit the greater offense (wanton endangerment) without having first committed the lesser offense (brandishing).
CONVICTION REVERSED AND REMANDED.
State v. Jessie L. Swims, No. 30099, June 7, 2002
In this case the Court addressed a number of issues arising from the appellant's convictions (and 120 year sentence) for aggravated robbery and conspiracy. The dispositive issue, however, was the admission into evidence of the plea agreements of two co-defendants during the state's case-in-chief. Each of the plea agreements contained a provision that the State would request placement for the co-defendants "in a correctional facility physically separate from that where codefendant Jessie Swims is housed". In an opinion authored by Chief Justice Davis, the Court held that the language allowed a number of impermissible inferences and should have been redacted from the agreements prior to their admission. Among the reasons cited by the Court for this holding was that the language impermissibly amounted to substantive evidence of the guilt of Mr. Swims.
REVERSED AND REMANDED FOR NEW TRIAL.
Butcher v. Miller, Commissioner, No. 30251, June 7, 2002
The appellant was arrested for DUI. Following his arrest, the police officer notified the appellant, pursuant to the Implied Consent Form, that a refusal by the appellant to take the designated secondary chemical test "may" result in the revocation of his license. After his refusal, the appellant's license was revoked by the commissioner, and the revocation was upheld by the circuit court.
The Court reversed this decision and ordered the reinstatement of the appellant's license. The Court adopted the appellant's argument that the language of 17C-5-7(a) is clear and unambiguous, and mandates that an officer advise a driver that his or her license "will" be revoked upon refusal to take the designated secondary chemical test. The Court held that the use of the word "may", as used by the officer, connotes a discretionary decision, when there is no discretion on the part of the commissioner when the report of a refusal is received.
[The dissent by Chief Justice Davis addresses the issue of the discretion of the commissioner. In particular, the dissent notes that pursuant to 17C-5-2(a), an initial suspension may be challenged at a hearing, thus indicating that the commissioner has some discretion on implied consent revocations.]
REVERSED.
State ex rel. Stollings v. Haines, No. 30442 (6/14/02)
Petitioner was convicted of first-degree murder in 1987. He received his first hearing before the parole board in July 2000, and was denied parole. At that time, the parole board set the petitioner's next parole hearing for June 2002. The petitioner filed for a writ of habeas corpus, claiming (1) that the board acted in an arbitrary and capricious manner by concentrating primarily on his prior criminal activity, and (2) that the board erred by not making specific findings under SER Carper v. West Virginia Parole Board, 203 W.Va. 583, 509 S.E. 2d 864 (1998), as to why he would be ineligible for parole for two years.
The Court held that (1) the record of the hearing indicated that the board had properly followed the requirements of W.Va. Code, 62-12-13(i)(1), and did not act in an arbitrary and capricious manner; but (2) the board had erred by not making specific findings on the record justifying bi-annual parole review for the petitioner. The Court noted, however, that this argument was "technically moot" because the petitioner has a parole hearing scheduled in late June 2002. The Court advised the parole board that the provisions of Carper remain fully applicable.
WRIT DENIED.
State v. Elizabeth Schermerhorn, No. 30085 (6/14/02)
The appellant appealed her conviction for driving under the influence, third offense. Among the numerous errors raised by the appellant were (1) the court's refusal to strike for cause a prospective juror who demonstrated clear bias; (2) the admission of the results of chemical breath testing after the court had ruled the Accuracy Inspection Test inadmissable because the state had failed to disclose the document to the defense; and (3) the cumulative error of these and a number of other mistakes.
The Court noted, in essence, that the appellant's trial was replete with error. The Court agreed that (1) the prospective juror had demonstrated clear bias which, under O'Dell v. Miller, ___W.Va.___, ___SE 2d. ___ (No. 29776, May 23, 2002) could not be rehabilitated by subsequent questioning; (2) the trial court's admission of the intoxilyzer results was clear error, in that the trial court had ruled inadmissable a substantial portion of its foundation testimony ; and (3) these errors, compounded with a number of other, "well-argued" issues, clearly demonstrated that cumulative error had denied the appellant a fair trial.
REVERSED AND REMANDED.
In Re: Tessla N.M., No. 29964 (6/14/02)
In this case the Court examined the standards to be applied when a parent, who is the subject of an abuse/neglect action, makes a voluntary relinquishment of custody. Following the oral relinquishment of her parental rights at a status review hearing, which relinquishment was adopted by the court, the mother of two children moved to set aside the relinquishment. She claimed (1) that the relinquishment was invalid under W.Va. Code 49-6-7 because it was verified in writing, and (2) that the relinquishment was made under duress.
The Court examined Rule 35(a) of the Rules of Procedure for Child Abuse and Neglect, and held that if a parent is present in open court and makes a voluntary relinquishment of parental rights, a written relinquishment is not required. The Court noted, however, the continuing requirement of a duly acknowledged written relinquishment in extrajudicial settings.
The Court also noted that the record was bereft of evidence suggesting that the relinquishment was made under duress. The Court noted that the detailed, lengthy colloquy between the appellant, her attorney and the court contained no suggestion of duress, and indicated instead that the appellant was fully aware of the consequences of her actions.
TERMINATION OF PARENTAL RIGHTS AFFIRMED.
In Re: James G., No. 30039 (6/14/02)
In another abuse/neglect action, the Court reversed the circuit court's refusal to accept a voluntary relinquishment of parental rights by the mother of two children. During the pendency of an abuse neglect action, the respondent/appellant submitted a voluntary relinquishment of parental rights to the court. The DHHR objected to this action, and the court, deferring to the opinion of the DHHR, refused to accept the voluntary relinquishment. The DHHR apparently believed that a voluntary relinquishment, as opposed to an involuntary termination, would impact upon their ability to take action against the respondent/appellant in the future.
The Court held that nothing in the Rules or the statutes permits the DHHR, by withholding its agreement, to preclude a circuit court from accepting a voluntary termination. The Court noted that a trial court has discretion, after reviewing all relevant factors, whether to accept a voluntary termination. The Court held that the trial court in this case did not exercise its discretion, but rather "viewed itself as bound by the non-acquiescence of the DHHR to a voluntary termination."
REVERSED AND REMANDED.
In Re Destiny H., No. 30511 & 30512 - June 17, 2002
The mother of an infant left her child with an acquaintance and traveled to Florida, stating that she would return in one week. She did not return for several months, but kept in sporadic telephone contact with the guardian. After four months, the child's guardian approached the DHHR to obtain financial assistance. The DHHR responded by filing an abuse/neglect petition, citing the mother's "abandonment" of the child. At the adjudicatory hearing, the circuit court determined that the mother's actions did not constitute abandonment, but rather a "transfer of guardianship". The guardian ad litem and the attorney for the guardian appealed.
Held: the mother's absence, which went far beyond the originally contemplated period of absence, coupled with sporadic telephone contact and the failure of the mother to provide any financial assistance whatsoever for the child, constituted abandonment and neglect.
REVERSED AND REMANDED.
State v. Martisko, No. 30044 - June 17, 2002
(Jack Wood, 1st Judicial Circuit PD Office, for the appellant).
The appellant was charged with domestic battery and other offenses following an incident at his home. The only witnesses to the incident were the alleged victim and a neighbor. At trial in magistrate court, neither of these witnesses appeared. The magistrate permitted the investigating officer's to testify to the statements made to them by the victim under Rule 803(2), the "excited utterance" rule. The magistrate refused, however, to permit the appellant to offer extrinsic evidence indicating (1) that the alleged victim had been convicted of domestic battery, and (2) that the alleged victim had filed similar charges against other persons and had not appeared for court. The appellant's conviction was affirmed by the circuit court.
Held: the appellant should have been permitted to impeach the credibility of the absent witness. The Court noted the "conflict" between Rule 806 (permitting the credibility of a declarant of a hearsay statement to be attacked) and Rule 608 (permitting inquiry into specific instances of conduct only on cross-examination). [The ruling did not apply to the appellant's conviction for obstructing an officer].
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
State v. Leep, No. 30018 - June 19, 2002
(Ira Mickenburg and George Castelle, 13th Judicial Circuit PD Office, for the appellant).
The appellant was indicted for sexual offenses against his six-year old daughter. Prior to trial, the appellant filed a motion in limine to prohibit the use of a test which allegedly indicated that the victim was afflicted with a sexually transmitted disease. The trial court denied this motion and permitted the state to introduce the results of the test at trial. Following the testimony of the appellant's medical expert, who called into question the reliability of the test, the trial court sua sponte advised the jury that the test had been deemed to be reliable by the court.
Held: while the Court held the test itself to be reliable, the Court determined that the trial court's sua sponte statements to the jury regarding the reliability of the tests constituted impermissible comments by the trial court. The Court discussed the importance of maintaining neutrality, and the appearance of neutrality, at all times during a criminal trial. The Court believed that the statements by the court effectively instructed the jury as to the weight to be afforded to both the tests and the testimony of the appellant's expert.
REVERSED AND REMANDED.
SER Porter v. Recht, No. 30439 - June 19, 2002
The petitioner was charged in an information with 20 counts of false swearing. The basis for the charges was two (2) affidavits that the petitioner had executed in a medical malpractice case, each containing 10 separate statements. The state asserted that each of the statements constituted a separate offense. The appellant sought a writ of prohibition, arguing that it was a violation of Double Jeopardy to permit a trial on more than two counts in the information.
Held: the multiple convictions being sought by the state in the information would constitute a violation of Double Jeopardy. The Court reviewed the language of the statute and concluded that there was no clear legislative intent to permit multiple punishments.
WRIT OF PROHIBITION GRANTED.
State v. Marvin Mills, No. 30031 - June 26, 2002
(Greg Ayers, 13th Judicial Circuit PD Office, for appellant).
The appellant appealed his conviction for first degree murder with no recommendation of mercy. Among the appellant's assignments of error were (1) the trial court's denial of the appellant's challenge for cause of a prospective juror who noted that he might be likely to give greater weight to the testimony of a particular witness for the state, due to a social relationship with the witness, and (2) improper questioning and closing arguments by the prosecutor which amounted to comments on the defendant's failure to testify.
Held: that the trial court's actions in refusing to strike the prospective juror constituted reversible error. The Court also held (1) that questions from the prosecutor to a detective regarding the defendant's failure to state remorse in prior courtroom proceedings were highly improper, and (2) that statements by the prosecutor during closing argument regarding how, "[t]here are cases in which the murderer himself says, 'I am so sorry; I am sorry. I beg your forgiveness.'" , constituted an improper comment on the defendant's failure to testify in his own behalf.
REVERSED AND REMANDED.
State v. Thomas Griffin, No. 30433 - June 26, 2002
The appellant was indicted for attempted burglary. During jury selection, a prospective juror indicated that she was employed as a grand jury coordinator for the US Attorney General's Office, and that she viewed that it was "probable" that an indicted person is more likely than not to be guilty. The trial court denied the appellant's motion to strike the juror for cause.
Held: that under the standards of State v. Miller, 197 W.Va. 588, 476 S.E. 2d 535 (1996), State v. Bennett, 181 W. Va. 269, 382 S.E. 2d 322 (1989), State v. Nett, 207 W. Va. 410, 533 S.E. 2d 43 (2000) and O'Dell v. Miller, ___W. Va. ___, ___S.E. 2d ___ (No. 29776, May 24, 2002), it was error to permit the prospective juror to remain in the jury panel. The Court viewed the juror's responses as indicating a clear bias toward criminal defendants.
REVERSED AND REMANDED.
State v. Bryan McClead, No. 30245 - June 26, 2002
Following his arrest for DUI, the appellant was transported to a state police office in Morgantown for the purposes of administering a breath test. When the appellant refused to take the test, the arresting officer asked the appellant to submit to a blood test. After the appellant refused to provide a blood sample, the officer told the appellant that he was going to prepare a search warrant to obtain the blood. Faced with this knowledge, the appellant provided a blood sample to the officer. He was subsequently convicted of DUI-3rd Offense and Driving on a Revoked License-DUI related.
Held: that the trial court should have suppressed the results of the blood test, because the officer's actions surrounding the receipt of the blood sample constituted improper coercion. The appellant's provision of the blood test was not the result of voluntary consent; rather, the officer was prohibited, under W. Va. Code, 17C-5-4(d), from obtaining a search warrant once the appellant had refused to take the blood test.
REVERSED IN PART; AFFIRMED IN PART; REMANDED FOR NEW TRIAL ON DUI-3RD CHARGE ONLY.
State v. Robert Copen, No. 29994 - June 26, 2002
The appellant was convicted of first degree murder, with no recommendation of mercy. The appellant claimed that the trial court erred by (1) admitting gruesome and prejudicial photos of the victim into evidence; (2) not granting a mistrial due to improper remarks of the prosecutor during closing argument, and (3) by making various other trial rulings, the cumulative effect of which was to deprive the appellant of a fair and impartial trial.
Held: that (1) under State v. Derr, 192 W. Va. 165, 451 S.E. 2d 731 (1994), and Rule 401-403 of the Rules of Evidence, the probative value of the photographs far outweighed their prejudicial effect, chiefly due to the number of gunshot wounds (8-9) and the appellant's claim that he had accidentally shot the victim; (2) the prosecutor's statements during closing argument regarding the likelihood of the appellant being granted parole was not improper, chiefly because appellant's counsel first broached the issue during his closing argument, and then failed to object to the prosecutor's remarks in a timely fashion; and (3) that the other assignments of error were essentially without merit, thus there was no cumulative error.
AFFIRMED.
State v. Edwin Taylor, No. 30253 - June 28, 2002
(Teresa Tarr, 13th Judicial Circuit PD Office, for appellant)
Following appellant's conviction for grand larceny, the state instituted recidivict proceedings under W.Va. Code, 61-11-18. The trial court subsequently accepted the appellant's plea to the recidivist information and, pursuant to the 2000 amendment to 61-11-18, doubled the indeterminate sentence imposed by the court on the grand larceny charge. The appellant asserted (1) that the trial court did not conduct a proper colloquy at the time of his plea to the recidivist information, and (2) that the court's imposition of the recidivist sentence violated ex post facto principles.
Held: the Court found (1) that the plea, while not a letter-for-letter recitation of the litany set forth in Call v. McKenzie, 159 W.Va. 191, 220 S.E. 2d 665 (1975), was sufficient to insure that the plea was knowing and voluntary; but (2) that the sentence violated ex post facto principles, because the triggering grand larceny charge occurred several months prior to the 2000 amendment to the statute.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
State v. William Braham, No. 30247 - June 28, 2002
The appellant was convicted of fraudulent schemes in connection with a number of "post-dated" checks he had written at a bar. Among the appellant's arguments on appeal was (1) that the trial court erred by admitting an evidentiary deposition, when evidence received prior to the trial and known to the state and the defendant indicated that the deposed witness was lying; (2) that a conviction under 61-3-24d could not be maintained if based on "post-dated" checks; and (3) that he was denied the opportunity to present evidence of his past transactions with the bar, including the failure to receive payments from illegal gambling machines.
Held: the Court held (1) that the admission of the deposition was error; (2) that while a conviction can be maintained for fraudulent schemes based on post-dated checks, the evidence of criminal intent in this case was wholly insufficient to justify a conviction; and (3) that the appellant should have been permitted to disclose his prior gambling transactions with the bar because such evidence might have had substantial bearing on the appellant's intent at the time the checks were written.
REVERSED; INSUFFICIENCY OF EVIDENCE BARRED RETRIAL.
State v. Bethel Hatcher, No. 30030 - June 28, 2002
In yet another case involving juror qualification/prejudice, the Court reviewed the appellant's conviction for first-degree murder. Following the trial, the appellant discovered that a juror had failed to respond correctly to voir dire questions regarding (1) whether they or any family members had ever been the victim of a crime of violence, and (2) whether they knew or were acquainted with any of the state's witnesses. The juror in question did not disclose that his mother had been murdered in a domestic violence situation, or that one of the state's witnesses, a police officer, was the investigating officer on that case.
Held: that the juror's nondisclosure of highly important and potentially prejudicial information, despite a direct inquiry about that information during voir dire, denied the appellant a fair trial. (The Court also found certain statements regarding premeditation made by the prosecutor during closing argument to be erroneous).
REVERSED AND REMANDED.
Miller v.Hanson, Comm'r., DMV, No. 30117 - July 3, 2002
In two related actions, appellants Hanson and Massey challenged the admissibility of intoxilyzer results. Specifically, the appellants claimed that the "one-sample" testing procedure used in breath testing did not meet the evidentiary threshold of scientific reliability. The appellants asserted that a two-sample testing protocol produced greater scientific reliability.
Held: that the appellant's failed to demonstrate that the "one-sample" protocol was improper, and failed to present evidence or proof that a two-sample testing protocol would produce demonstrably different results with different samples.
AFFIRMED.
State v. Dilliner, No. 29993 - July 3, 2002
The appellant was charged with DUI-3rd Offense. As a part of the jury's deliberations, the court submitted two "special interrogatories" to the jury regarding (1) the cause of the appellant's intoxication, and (2) whether the appellant's use of automotive paint on the day of the arrest was a deliberate effort on the appellant's part to become intoxicated. On appeal, the appellant claimed that the jury's verdict was inconsistent with their responses to these questions, and further, that the admission of accuracy inspection reports of the intoxilyzer machine was not permissible under the hearsay rule.
Held: that the trial court's use of "special interrogatories" in a criminal case was a per se violation of the appellant's right to a fair trial. The Court noted that W. Va. Code 56-6-5, which permits special interrogatories, does not permit their use in a criminal trial. The Court did hold, however, that accuracy inspection reports are admissible under Rule 803(8)(b), the "public records" exception to the hearsay rule.
REVERSED AND REMANDED.
Morris v. Painter, No. 29758 - July 3, 2002
The appellant sought review of the circuit court's denial of his habeas corpus petition. The appellant was convicted of two counts of first degree murder in connection with the deaths of his brother and sister-in-law in Mingo County in 1991. Serious issues arose regarding the appellant's competency. A competency hearing was scheduled prior to the trial date, but the appellant's psychiatrist was unable to attend the hearing. The trial court refused to continue the hearing or trial to permit the attendance of the psychiatrist.
Held: the trial court's procedures for determining the competency of the appellant were "deficient". The Court noted that under the circumstances of this case that it was critical for the appellant's psychiatrist to be present to fully explain the basis for his findings of incompetency.
REVERSED AND REMANDED.
State v. Slaton, No. 30019 - July 3, 2002
The appellant was convicted of sexual assault involving an underage youth. The appellant presented a number of issues on appeal, including (1) the court's failure to order a pre-trial competency hearing; (2) the court's failure to order a pre-sentencing competency hearing; (3) the court failure to suppress Rule 404(b) evidence; and (4) the court's refusal to order an evaluation of the victim of the offense.
Held: No error. Among the Court's finding were (1) that the appellant did not request a competency hearing and stated before trial that competency was not going to be an issue; (2) that the appellant received a diagnostic evaluation prior to his sentencing and the evaluating psychologist testified at his sentencing hearing, along with two other psychologists; (3) that the alleged 404(b) evidence was "intrinsic" to the charged offense and was thus not a separate act; and (4) that the appellant had not presented evidence to the trial court demonstrating a compelling need or reason for an examination of the victim.
AFFIRMED.
Department of Housing and Urban Development v. Rucker, (Nos. 1770 and 1781, March 26, 2002) (Rehnquist, C.J.)
http://supct.law.cornell.edu/supct/html/00-1770.ZO.html
In 1988, Congress passed the Anti-Drug Abuse Act, which, as later amended, provides that each "public housing agency shall utilize leases which … provide that any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other tenants or any drug-related criminal activity on or off such premises, engaged in by a public housing tenant, any member of the tenant's household, or any guest or other person under the tenant's control, shall be cause for termination of tenancy."
Held: this statute requires lease terms that allow a local public housing authority to evict a tenant when a member of the tenant's household or a guest engages in drug-related criminal activity, regardless of whether the tenant knew, or had reason to know, of that activity.
Mickens v. Taylor, (No. 00-9285, March 27) (Scalia, J.)
http://supct.law.cornell.edu/supct/html/00-9285.ZO.html
No Sixth Amendment violation found where same counsel represented accused and murder victim
Where trial judge fails to inquire into potential conflict about which it knew or reasonably should have known, defendant must establish conflict adversely effected counsel's performance
The petitioner was convicted of the murder of Timothy Hall. Petitioner's lead attorney Saunders had represented the victim Hall on charges at the time of the murder. The same juvenile court judge had appointed Saunders to represent both. Saunders did not disclose to the court, his co-counsel or the petitioner his previous representation of Hall. In federal habeas, the petitioner argued that the juvenile court judge's failure to inquire into a potential conflict either mandated automatic reversal of his conviction or relieved him of the burden of showing that a conflict of interest adversely affected his representation. The district court denied relief and an en banc majority of the Fourth Circuit affirmed.
Held: to demonstrate a Sixth Amendment violation where the trial court fails to inquire into a potential conflict of interest about which it knew or reasonably should have known, a defendant must establish that a conflict of interest adversely effected his counsel's performance. The Fourth Circuit having found no such effect, the denial of habeas relief was affirmed.
Ashcroft v. Free Speech Coalition, (No. 00-795, April 16, 2002) (Kennedy, J.)
http://supct.law.cornell.edu/supct/html/00-795.ZO.html
First Amendment - Child Pornography Prevention Act Overbroad
The Child Pornography Prevention Act of 1996, 18 U.S.C. 2251 et seq., extends the federal prohibition against child pornography to sexually explicit images that appear to depict minors but were produced without using any real children. The statute prohibits, in specific circumstances, possessing or distributing these images, which may be created by using adults who look like minors or by using computer imaging. The question presented is whether the CPPA is constitutional where it proscribes a significant universe of speech that is neither obscene under Miller v. California, 413 U.S. 15 (1973), nor child pornography under New York v. Ferber, 458 U.S. 747 (1982).
Held: The prohibitions of §§2256(8)(B) and 2256(8)(D) are overbroad and unconstitutional.
The Court noted that as a general rule, pornography can be banned only if obscene, but under Ferber, pornography showing minors can be proscribed whether or not the images are obscene under the definition set forth in Miller v. California, 413 U.S. 15 (1973). The Court found the CCPA extends to images that are not obscene under the Miller standard and finds no support in Ferber. The Court found that by prohibiting child pornography that does not depict an actual child, the statute goes beyond Ferber, which distinguished child pornography from other sexually explicit speech because of the State's interest in protecting the children exploited by the production process.
Ashcroft v. ACLU, (No. 00-1293, May 13) (Thomas, J.)
http://supct.law.cornell.edu/supct/html/00-1293.ZO.html
First Amendment
At issue is whether the Child Online Protection Act's (COPA or Act) use of "community standards" to identify "material that is harmful to minors" violates the First Amendment. Held: this aspect of COPA does not render the statute facially unconstitutional.
Alabama v. Shelton, (No. 00-1214, May 20) (Ginsburg, J.)
http://supct.law.cornell.edu/supct/html/00-1214.ZO.html
Right to Counsel - suspended sentence that may result in jail time may not be imposed unless defendant accorded counsel
This case concerns the Sixth Amendment right of an indigent defendant charged with a misdemeanor punishable by imprisonment, fine, or both, to the assistance of court-appointed counsel. In Argersinger v. Hamlin, 407 U.S. 25 (1972), the Court held that defense counsel must be appointed in any criminal prosecution, "whether classified as petty, misdemeanor, or felony,". . . "that actually leads to imprisonment even for a brief period". In Scott v.Illinois, 440 U.S. 367 (1979), the Court drew the line at "actual imprisonment," holding that counsel need not be appointed when the defendant is fined for the charged crime, but is not sentenced to a term of imprisonment.
Defendant was convicted of third-degree assault, was sentenced to a jail term of 30 days, which the trial court immediately suspended, placing him on probation for two years. Held: a suspended sentence that may "end up in the actual deprivation of a person's liberty" may not be imposed unless the defendant was accorded "the guiding hand of counsel" in the prosecution for the crime charged. Argersinger, 407 U.S., at 40.
United States v. Cotton, (No. 01-687, May 20) (Rehnquist, C.J.)
http://supct.law.cornell.edu/supct/html/01-687.ZO.html
A defective indictment does not deprive a court of jurisdiction.
Omission from an indictment of a fact enhancing the statutory maximum sentence did not justify vacating sentence where enhancement evidence was overwhelming and uncontroverted
In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." In federal prosecutions, such facts must also be charged in the indictment.
Respondents were indicted for conspiracy to distribute and to possess with intent to distribute a "detectable amount" of cocaine and cocaine base. They were sentenced based on the District Court's finding of drug quantity-at least 50 grams of cocaine base-that implicated the enhanced penalties. Respondents argued in the Fourth Circuit that their sentences were invalid under Apprendi, because the drug quantity issue was neither alleged in the indictment nor submitted to the petit jury. That court vacated the sentences on the ground that it had no jurisdiction to impose a sentence for an offense not charged in the indictment. The issue in this case, is whether the omission from a federal indictment of a fact that enhances the statutory maximum sentence justifies a court of appeals' vacating the enhanced sentence, even though the defendant did not object in the trial court.
Held: reversed and remanded by a unanimous Court. Insofar as it held that a defective indictment deprives a court of jurisdiction, Ex Parte Bain 121 U.S. 1 (1887) is overruled. A defective indictment does not deprive a court of jurisdiction. The omission from a federal indictment of a fact that enhances the statutory maximum sentence does not justify a court of appeals' vacating the enhanced sentence, even though the defendant did not object in the trial court.
Bell v. Cone, (No. 01-400, May 28, 2002) (Rehnquist, C.J.)
http://supct.law.cornell.edu/supct/html/01-400.ZO.html
Federal Habeas Corpus
Ineffective Assistance of Counsel
Respondent was tried in Tennessee for murder. The prosecution put on overwhelming evidence that the murder was committed in a callous and brutal manner. The defense was insanity. At the sentencing hearing, defense counsel cross examined witnesses, but called no witnesses. After a low-key closing by a junior prosecutor, the defense waived closing which prevented the lead prosecutor, an effective advocate, from rebuttal argument. A death sentence was imposed. State post-conviction relief was denied after a finding that counsel's waiver of argument and failure to put on mitigating evidence at the sentencing was within the range of competency under the attorney performance of Strickland v. Washington. The federal district court denied federal habeas, but the Sixth Circuit reversed, finding a Sixth Amendment violation for which prejudice should be presumed under U.S. v. Cronic since the death penalty evidence was not subject to meaningful adversarial testing and that the state court's adjudication of respondent's claim was therefore an unreasonable application of clearly established law announced in Strickland.
Held: Respondent's claim was governed by Strickland, and the state court's decision neither was "contrary to" nor involved "an unreasonable application of clearly established Federal law"
McKune v. Lile, (No. 00-1187, June 10, 2002) (Justice Kennedy announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Justice Scalia, and Justice Thomas join.)
http://supct.law.cornell.edu/supct/html/00-1187.ZO.html
Incentives for those who participate in rehabilitation program requiring convicted sex offenders to make admissions of crime for which being treated and other past offenses does not violate Fifth Amendment
A few years before respondent's (a convicted sex offender) scheduled release, Kansas Corrections officials recommended that he enter a prison treatment program. Kansas officials have made the determination that it is of considerable importance for the program participant to admit having committed the crime for which he is being treated and other past offenses. The first step in the Kansas rehabilitation program thus requires the participant to confront his past crimes. Kansas offers sex offenders incentives to participate in the program. Officials informed respondent that if he refused to participate in the program, his prison privileges would be reduced, resulting in the automatic curtailment of his visitation rights, earnings, work opportunities, ability to send money to family, canteen expenditures, access to a personal television, and other privileges. He also would be transferred to a potentially more dangerous maximum-security unit.
Held: Kansas' rehabilitation program serves a vital penological purpose, and offering inmates minimal incentives to participate does not amount to compelled self-incrimination prohibited by the Fifth Amendment.
United States v. Drayton, (No. 01-631, June 17, 2002) (Kennedy, J.)
http://supct.law.cornell.edu/supct/html/01-631.ZO.html
Fourth Amendment
In Florida v. Bostick, 501 U.S. 429 (1991), the Court held the Fourth Amendment permits police officers to approach bus passengers at random to ask questions and to request their consent to searches, provided a reasonable person would understand that he or she is free to refuse. At issue in this case is whether officers must advise bus passengers during these encounters of their right not to cooperate.
Held: the respondents were not seized and their consent to the search was voluntary.
Atkins v. Virginia, (No. 00-8452, June 20, 2002) (Stevens, J.)
http://supct.law.cornell.edu/supct/html/00-8452.ZO.html
Execution of mentally retarded is cruel and unusual punishment
Held: Executions of mentally retarded criminals are "cruel and unusual punishments" prohibited by the Eighth Amendment.
United States v. Ruiz, (No. 01-595, June 24, 2002) (Breyer, J.)
http://supct.law.cornell.edu/supct/html/01-595.ZO.html
Fifth and Sixth Amendments do not require federal prosecutors to disclose impeachment information before entering into"fast track" binding plea agreement
After immigration agents found 30 kilograms of marijuana in the defendant's luggage, federal prosecutors offered her what is known in the Southern District of California as a "fast track" plea bargain. That bargain-standard in that district-asks a defendant to waive indictment, trial, and an appeal. In return, the Government agrees to recommend to the sentencing judge a two-level departure downward from the otherwise applicable United States Sentencing Guidelines sentence. In this case, a two- level departure downward would have shortened the ordinary Guidelines-specified 18-to-24-month sentencing range by 6 months, to 12-to-18 months.
At issue in this case is whether the Fifth and Sixth Amendments require federal prosecutors, before entering into a binding plea agreement with a criminal defendant, to disclose "impeachment information relating to any informants or other witnesses." Held: the Constitution does not require that disclosure.
Ring v. Arizona, (No. 01-488, June 24, 2002) (Ginsburg, J.)
http://supct.law.cornell.edu/supct/html/01-488.ZO.html
Capital defendants entitled to jury determination of any fact increasing maximum punishment
In Arizona, following a jury adjudication of a defendant's guilt of first-degree murder, the trial judge, sitting alone, determines the presence or absence of the aggravating factors required by Arizona law for imposition of the death penalty. In Walton v. Arizona,497 U.S. 639 (1990), the Court held that Arizona's sentencing scheme was compatible with the Sixth Amendment because the additional facts found by the judge qualified as sentencing considerations, not as "element[s] of the offense of capital murder." In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Court held that the Sixth Amendment does not permit a defendant to be "expose[d] … to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone", even if the State characterizes the additional findings made by the judge as "sentencing factor[s]."
Here, the Court held that Apprendi's reasoning is irreconcilable with Walton's overruled Walton in relevant part. Capital defendants, no less than non-capital defendants, are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment.
Harris v. United States, (No. 00-10666, June 24, 2002) (Justice Kennedy announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and IV, and an opinion with respect to Part III, in which The Chief Justice, Justice O'Connor, and Justice Scalia join.)
http://supct.law.cornell.edu/supct/html/0-10666.ZO.html
Sentencing factors or elements of the offense? - McMillan revisited after Apprendi
Petitioner sold illegal narcotics at his pawnshop with an unconcealed semiautomatic pistol at his side. He was arrested for violating a federal statute which provides that a person who in relation to a drug trafficking crime uses or carries a firearm shall be sentenced to additional punishment if the firearm is brandished or discharged. Because the Government proceeded on the assumption that the provision defines a single crime and that brandishing is a sentencing factor to be found by the judge following trial, the indictment did not allege brandishing. When his presentence report recommended that he receive additional time, petitioner objected, arguing that brandishing was an element of a separate statutory offense for which he was not indicted or convicted. At the sentencing hearing, the District Court overruled his objection, found that he had brandished the gun, and sentenced him to seven years in prison. The Fourth Circuit affirmed, rejecting petitioner's argument that brandishing was an element for which he had not been indicted.
In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Court held: "other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum," whether the statute calls it an element or a sentencing factor, must be submitted to a jury, and proved beyond a reasonable doubt." Fourteen years before, in McMillan v. Pennsylvania, 477 U.S. 79 (1986), the Court sustained a statute that increased the minimum penalty for a crime, though not beyond the statutory maximum, when the sentencing judge found, by a preponderance of the evidence, that the defendant had possessed a firearm.
The question presented is whether McMillan stands after Apprendi.
Held: the judgement of the Fourth Circuit is affirmed.
Since the purpose of this newsletter is to provide you with information and tools to help you in your job, suggestions about feature articles, issues you want addressed or other items you would like to see in the publication are more than welcome. You may have a funny experience or a learned treatise of your own that you would like to share with other criminal defense practitioners. Please send any suggestions, comments and/or contributions to Russ Cook at WV Public Defender Services by conventional or electronic mail at rcook@pds.state.wv.us.
TRAINING AND CLE - TOPICS AND SPEAKERS - The Criminal Law Research Center (CLRC) would like to hear from any and all persons with specific ideas regarding future seminars to be presented by the CLRC. If you have any ideas for specific seminar topics, or if you or anyone you know would be interested in presenting a topic at a training session, please contact Russ Cook at (304) 558-3905, or by e-mail at rcook@pds.state.wv.us
Each day, Public Defenders throughout the state are confronted with particular issues or events that, while they may seem unique, may have been encountered by other Public Defenders. [For example, a short while back I was asked about the ramifications of Rule 12(h) of the West Virginia Rules of Criminal Procedure. This rule permits a judge, after granting a motion to dismiss an indictment based on defects in the indictment, to order that the defendant be "continued in custody" pending the filing of a new indictment. The rule contains no limitation as to the length of time that a defendant may be held after his/her indictment is dismissed. Prior to this question, I had never seen this provision applied by any court.] Needless to say, it is often helpful to draw upon the resources and experience that is available to us through our colleagues in the Public Defender offices.
Do you have a unique experience or issue that you would like to share or discuss with your fellow Public Defenders? The CLRC is inviting all Public Defenders to submit any questions, comments or opinions on particular issues for publication in the West Virginia Criminal Law Resource Center Newsletter. Please forward all submissions to Russ Cook at the CLRC, or e-mail submissions to rcook@pds.state.wv.us
A bi-monthly publication of
West Virginia Public Defender Services
~Criminal Law Resource Center~
Jack Rogers, Executive Director
Inquiries, articles and suggestions welcome.
Please direct the same to Jack Rogers, Russ Cook or Elizabeth Murphy by any of the following means:
Department of Administration
Public Defender Services
Building 3, Room 330
1900 Kanawha Blvd., East
Charleston, WV 25305-0730
(304) 558-3905 phone
(304) 558-1098 fax
E-mail Jack Rogers:jrogers@pds.state.wv.us
E-mail Russ Cook:rcook@pds.state.wv.us
E-mail Elizabeth Murphy: lmurphy@wvdefender.com
(Publications available in large type upon request)