Criminal Law Newsletter May 2004, Volumne 5, Issue 1

First the good news. During the recent Extraordinary Session the Legislature gave Public Defender Services a $4.2 million supplemental appropriation for this fiscal year. That amount should be sufficient for us to become current on all private counsel billings by early summer.

The bad news is that the regular FY 2005 budget now has three line items for payment of indigent defense: one for Public Defenders; one for private counsel; and one which can only be used to pay private counsel in matters in which Public Defender offices have conflicts. We must identify those conflict cases in order to pay

Pursuant to legislative requirements, PDS requests that the appointing judge indicate on each voucher the reason for assignment of private counsel. If this box does not indicate a conflict as the reason for assignment, then the voucher cannot be paid from this fund. While many judges do indicate the reason for private counsel appointment, not all do.

This new fund will not be available to pay any voucher received from counties without Public Defender offices. Current estimates indicate the non-conflicts fund will run short of money in February, 2005. The conflict fund should be over-funded at that point, necessitating a transfer by the Legislature from one fund to the other. If the Legislature does not act, PDS will run out of funds in one account while having more than enough in the other. Clearly this makes no sense.

Compounding what is already a bad situation, Public Defender budgets are frozen at FY 2000 levels, as they were this fiscal year. Any increase in cases can be expected to shift rapidly to the more expensive private counsel side, creating a deficit in addition to slow payments ensured by the third line item and its attendant restrictions.

While this line item separation is incomprehensible on its face, it may stem from the perception that the indigent defense system is “out of control.” Apparently legislators have now chosen to control it in this manner. Private counsel can expect delays in payment and further legislative scrutiny and Public Defender offices will suffer decline in service and cost effectiveness. In addition to the clients, the real losers are the taxpayers.

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FOURTH AMENDMENT- LENGTH OF TIME POLICE WITH WARRANT MUST WAIT BEFORE ENTERING WITHOUT PERMISSION AFTER KNOCK AND ANNOUNCE FIFTEEN TO TWENTY SECOND WAIT BEFORE FORCIBLE ENTRY SATISFIED FOURTH AMENDMENT

United States v. Banks, (02-473, December 2, 2003) (Souter, J. for a unanimous Court)
http://supct.law.cornell.edu/supct/html/02-473.ZO.html

Federal and local law enforcement officers went to respondent’s apartment to execute a warrant to search for cocaine. They called out “police search warrant” before knocking on the front door hard enough to be heard by officers at the back door. There was no indication whether anyone was home, and after waiting for 15 to 20 seconds with no answer, the officers broke open the front door with a battering ram. Respondent was in the shower and testified that he heard nothing until the crash of the door, which brought him out dripping to confront the police. The search produced weapons, crack cocaine, and other evidence of drug dealing.

The Court granted certiorari to consider how to go about applying the standard of reasonableness to the length of time police with a warrant must wait before entering without permission after knocking and announcing their intent in a felony case.

Although there was no dispute in this case over whether or not the officers were obliged to knock and announce their intentions before executing the warrant (the police concededly arrived at respondent’s door without reasonable suspicion of facts justifying a no-knock entry), the Court discussed standards for requiring or dispensing with a knock and announcement, since the same criteria bear on when the officers could legitimately enter after knocking. This case turned on the significance of exigency revealed by circumstances known to the officers which the Government claimed was a risk of losing easily disposable evidence arising shortly after knocking and announcing. The Court found it was a close call, but after 15 or 20 seconds without a response, police could fairly suspect that cocaine would be gone if they were reticent any longer.

Held: the officers’ 15-to-20-second wait before forcible entry satisfied the Fourth Amendment.

FOURTH AMENDMENT

Maryland v. Pringle, (No. 02-809, Dec. 15) (Rehnquist, C.J. for a unanimous Court) http://supct.law.cornell.edu/supct/html/02-809.ZO.html

A passenger car occupied by three men was stopped for speeding by a police officer. Respondent was a passenger in the front seat. The officer, upon searching the car with the driver-owner's consent, seized $763 of rolled-up cash from the glove compartment and five glassine baggies of cocaine from between the back-seat armrest and the back seat. After all three men denied ownership of the cocaine and money; the officer arrested each of them.

The Court of Appeals of Maryland held that, absent specific facts tending to show respondent's knowledge and dominion or control over the drugs, “the mere finding of cocaine in the back armrest when [respondent] was a front seat passenger in a car being driven by its owner is insufficient to establish probable cause for an arrest for possession.”

It was uncontested that the officer, upon recovering the five plastic glassine baggies containing suspected cocaine, had probable cause to believe a felony had been committed. The sole question is whether the officer had probable cause to believe that respondent committed that crime.

Held: the officer had probable cause to arrest respondent. Reversed.

HIGHWAY CHECKPOINT STOP TO ASK MOTORISTS FOR INFORMATION ABOUT A RECENT HIT-AND-RUN ACCIDENT DID NOT VIOLATE FOURTH AMENDMENT

Illinois v. Lidster, (No. 02-1060, January 13, 2004) (Breyer, J.)
http://supct.law.cornell.edu/supct/html/02-1060.ZO.html

An unknown motorist traveling on a highway in Illinois struck and killed a 70-year-old bicyclist. The motorist drove off without identifying himself. About one week later at about the same time of night and at about the same place, local police set up a highway checkpoint designed to obtain more information about the accident from the motoring public. Police cars with flashing lights partially blocked the eastbound lanes of the highway. An officer stopped each vehicle for 10 to 15 seconds to ask the occupants whether they had seen anything happen there the previous weekend and to hand each driver a flyer requesting assistance in identifying the vehicle and driver in the accident.

As the respondent approached the checkpoint, his van swerved, nearly hitting one of the officers. The officer smelled alcohol on respondent's breath. He directed him to a side street where another officer administered a sobriety test and then arrested him. Respondent was tried and convicted in Illinois state court of driving under the influence of alcohol.

The Court found the decision in Indianapolis v. Edmond, 531 U.S. 32 (2000) did not govern the outcome of this case, noting that the checkpoint stop here differed significantly from that in Edmond. The stop’s primary law enforcement purpose was not to determine whether a vehicle’s occupants were committing a crime, but to ask vehicle occupants, as members of the public, for their help in providing information about a crime in all likelihood committed by others. The police expected the information elicited to help them apprehend, not the vehicle’s occupants, but other individuals.

The Court found certain considerations, taken together, were convincing that an Edmond-type presumptive rule of unconstitutionality does not apply here. The considerations included: the fact that such stops normally lack individualized suspicion cannot by itself determine the constitutional outcome; special law enforcement concerns will sometimes justify highway stops without individualized suspicion; unlike Edmond, the context here (seeking information from the public) is one in which, by definition, the concept of individualized suspicion has little role to play; information-seeking highway stops are less likely to provoke anxiety or to prove intrusive; the law ordinarily permits police to seek the voluntary cooperation of members of the public in the investigation of a crime; and the Court did not believe that an Edmond-type rule is needed to prevent an unreasonable proliferation of police checkpoints.

Considering the reasonableness of the checkpoint stop before them in light of all the factors addressed, the Court held the stop was constitutional.

SIXTH AMENDMENT RIGHT TO COUNSEL - COURT FINDS SIXTH AMENDMENT VIOLATION AND REMANDS ON ISSUE OF FIRST IMPRESSION - WHETHER INCRIMINATING STATEMENTS MADE AFTER A KNOWING AND VOLUNTARY WAIVER OF COUNSEL ARE ADMISSIBLE NOTWITHSTANDING EARLIER POLICE QUESTIONING IN VIOLATION OF THE SIXTH AMENDMENT

Fellers v. United States, (No. 02-6320, January 26) (O'Connor, J.)
http://supct.law.cornell.edu/supct/html/02-6320.ZO.html

After a grand jury indicted the petitioner, police officers went to his home, advised the petitioner they had come to discuss his involvement in methamphetamine distribution and informed him they had a warrant for his arrest and that a grand jury had indicted him. During the course of the arrest, the petitioner made inculpatory statements. The petitioner was transported to jail, at which point he was advised of his rights under Miranda v. Arizona, 384 U.S. 436 (1966) and Patterson v. Illinois, 487 U.S. 285 (1988) for the first time. He signed a Miranda waiver form and reiterated the inculpatory statements he had made earlier and made additional statements. At trial, the District Court suppressed the "unwarned" statements made at the home, but admitted petitioner's jailhouse statements pursuant to Oregon v. Elstad, 470 U.S. 298 (1985), concluding petitioner had knowingly and voluntarily waived his Miranda rights before making the statements.

Petitioner appealed his conviction arguing his jailhouse statements should have been suppressed as fruits of the statements obtained at his home in violation of the Sixth Amendment. The Court of Appeals affirmed. With respect to his argument that the officers' failure to administer Miranda warnings at his home violated his Sixth Amendment right to counsel under Patterson, the Court of Appeals found Patterson to be inapplicable "for the officers did not interrogate [petitioner] at his home" and that the jailhouse statements were properly admitted under Elstad because of a knowing and voluntary waiver.

In Massiah v. United States, 377 U.S. 201 (1964) the Sixth Amendment right to counsel was found to be violated when federal agents deliberately elicited statements from the accused after indictment and in the absence of counsel. Patterson holds that the Sixth Amendment does not bar post-indictment questioning in the absence of counsel if a defendant waives the right to counsel.

Here, the Court held the Court of Appeals erred in holding that the absence of an "interrogation" foreclosed petitioner's claim that the jailhouse statements should have been suppressed as fruits of the statements taken from petitioner at his home. The Court found:

1. There was no question that the officers "deliberately elicited" information from petitioner. Because the discussion took place after petitioner had been indicted, outside the presence of counsel and in the absence of any waiver of petitioner's Sixth Amendment rights, the Court of Appeals erred in holding that the officers' actions did not violate the Sixth Amendment;

2. Because of its erroneous determination that petitioner was not questioned in violation of the Sixth Amendment, the Court of Appeals improperly conducted its "fruits" analysis under the Fifth Amendment, specifically applying Elstad to hold that the admissibility of the jailhouse statements turned solely on whether the statements were "knowingly and voluntarily made". The Court of Appeals did not reach the question whether the Sixth Amendment requires suppression of petitioner's jailhouse statements on the ground that they were the fruits of previous questioning conducted in violation of the Sixth Amendment deliberate-elicitation standard.

The Court remanded to the Court of Appeals to address the issue of whether the rationale of Elstad applies when a suspect makes incriminating statements after a knowing and voluntary waiver of his right to counsel notwithstanding earlier police questioning in violation of the Sixth Amendment.

FOURTH AMENDMENT - SEARCH WARRANT WHICH FAILED TO PARTICULARLY DESCRIBE ITEMS EXPECTED TO BE FOUND WAS INVALID EVEN THOUGH APPLICATION FOR WARRANT, WHICH WAS NOT INCORPORATED BY REFERENCE, PROVIDED PARTICULARIZED DESCRIPTION. FOURTH AMENDMENT REQUIRES PARTICULARITY IN THE WARRANT, NOT IN THE SUPPORTING DOCUMENTS

Groh v. Rameriz, (No. 02-811, Feb. 24) (Stevens, J.)
http://supct.law.cornell.edu/supct/html/02-811.ZO.html

Officer conducting search was not entitled to qualified immunity. Petitioner, a Special ATF Agent, conducted a search of respondents’ home pursuant to a warrant that failed to describe the “persons or things to be seized.” The questions presented in this 42 U.S.C. 1983 action are (1) whether the search violated the Fourth Amendment, and (2) if so, whether petitioner nevertheless is entitled to qualified immunity, given that a Magistrate Judge, relying on an affidavit that particularly described the items in question, found probable cause to conduct the search.

A concerned citizen informed petitioner that on a number of visits to respondents’ ranch the visitor had seen a large stock of weaponry, including an automatic rifle, grenades, a grenade launcher, and a rocket launcher. Based on that information, petitioner prepared and signed an application for a warrant to search the ranch. The application stated that the search was for “any automatic firearms or parts to automatic weapons, destructive devices to include but not limited to grenades, grenade launchers, rocket launchers, and any and all receipts pertaining to the purchase or manufacture of automatic weapons or explosive devices or launchers.” Petitioner supported the application with a detailed affidavit, which he also prepared and executed, that set forth the basis for his belief that the listed items were concealed on the ranch. Petitioner then presented these documents to a Magistrate, along with a warrant form that petitioner also had completed. The Magistrate signed the warrant form.

Although the application particularly described the place to be searched and the contraband petitioner expected to find, the warrant itself failed to identify any of the items that petitioner intended to seize. In the portion of the form that called for a description of the “person or property” to be seized, petitioner typed a description of respondents’ two-story blue house rather than the alleged stockpile of firearms. The warrant did not incorporate by reference the itemized list contained in the application. It did, however, recite that the Magistrate was satisfied the affidavit established probable cause to believe that contraband was concealed on the premises, and that sufficient grounds existed for the warrant’s issuance. The home was searched and no illegal weapons or explosives were discovered. Respondents brought this action.

Held: (1) The warrant was plainly invalid. The warrant in this case was based on probable cause, was supported by a sworn affidavit, described particularly the place of the search, but failed altogether to provide a description of the items to be seized. The fact that the application adequately described the “things to be seized” did not save the warrant from its facial invalidity. The Fourth Amendment by its terms requires particularity in the warrant, not in the supporting documents. (2) Petitioner is not entitled to qualified immunity.

COURT REVERSES AND REMANDS ON BRADY CLAIMS - STATE WITHHELD EVIDENCE THAT WOULD HAVE ALLOWED PETITIONER TO DISCREDIT TWO ESSENTIAL PROSECUTION WITNESSES

Banks v. Dretke, (No. 02-8286) (Ginsburg, J.)
http://supct.law.cornell.edu/supct/html/02-8286.ZO.html

Petitioner Banks was convicted of capital murder and sentenced to death. Prior to trial, the State advised Banks ’s attorney there would be no need to litigate discovery issues, representing there would be no necessity for motions and that the State would provide all discovery to which he was entitled. Despite that undertaking, the State withheld evidence that would have allowed Banks to discredit two essential prosecution witnesses. The State did not disclose that one of those witnesses was a paid police informant, nor did it disclose a pretrial transcript revealing that the other witness’ trial testimony had been intensively coached by prosecutors and law enforcement officers.

Additionally, the prosecution raised no red flag when the informant testified, untruthfully, that he never gave the police any statement and, indeed, had not talked to any police officer about the case until a few days before the trial. Instead of correcting the informant’s false statements, the prosecutor told the jury that the witness “ha[d] been open and honest with you in every way,” and that his testimony was of the “utmost significance”. Similarly, the prosecution allowed the other key witness to convey, untruthfully, that his testimony was entirely unrehearsed. Through direct appeal and state collateral review proceedings, the State continued to hold secret the key witnesses’ links to the police and allowed their false statements to stand uncorrected.

Ultimately, through discovery and an evidentiary hearing authorized in a federal habeas corpus proceeding, the long-suppressed evidence came to light. The District Court granted Banks relief from the death penalty, but the Court of Appeals reversed finding Banks had documented his claims of prosecutorial misconduct too late and in the wrong forum and that therefore he did not qualify for federal-court relief. Bank's Brady claims arose under the regime in place prior to the Antiterrorism and Effective Death Penalty Act of 1996.

The Supreme Court reversed and remanded, holding the Court of Appeals erred in dismissing Bank's "paid informant" Brady claim and denying him a certificate of appeal-ability on his "intensely coached witness" Brady claim. When police or prosecutors conceal significant exculpatory or impeaching material in the State’s possession, it is ordinarily incumbent on the State to set the record straight.

RESPONDENT'S STATE COURT PETITION ALLEGING INEFFECTIVE ASSISTANCE DID NOT "FAIRLY PRESENT" A FEDERAL INEFFECTIVE ASSISTANCE CLAIM BECAUSE HE DID NOT ALLEGE A VIOLATION OF FEDERAL LAW.

Baldwin v. Reese (02-964, March 2) (Breyer, J.)
http://supct.law.cornell.edu/supct/html/02-964.ZO.html

Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies thereby giving the State the opportunity to pass upon and correct a federal rights violation. To provide the State with the necessary opportunity, the claim must be “fairly presented” in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim.

Respondent appealed his state court convictions and sentences through Oregon’s state court system and then brought collateral relief proceedings in the state courts. After the lower courts denied collateral relief, respondent filed a petition for discretionary review in the Oregon Supreme Court. He raised, among other grounds, ineffective assistance of both trial and appellate counsel, but did not allege in the petition that the appellate ineffective assistance claim violated federal law. The Oregon Supreme Court denied review.

On federal habeas review, the District Court held that respondent had not “fairly presented” his federal ineffective assistance of appellate counsel claim to the higher state courts because his brief in the state appeals court had not indicated that he was complaining about a violation of federal law.

The Ninth Circuit reversed finding that respondent had satisfied the “fair presentation” requirement because the justices of the Oregon Supreme Court had the opportunity to read the lower court decision and had they read the opinion of the lower state court they would have, or should have, realized that respondent's claim rested upon federal law.

The Supreme Court reversed, holding that ordinarily a state prisoner does not “fairly present” a claim to a state court if that court must read beyond a petition or brief that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in the case, that does so. To say that a petitioner “fairly presents” a federal claim when an appellate judge can discover that claim only by reading lower court opinions in the case is to say that those judges must read the lower court opinions. The Court found federal habeas law does not impose such a requirement and noted that a litigant wishing to raise a federal issue can easily indicate the federal law basis for the claim in a state court petition or brief, for example, by citing in conjunction with the claim the federal source of law on which he relies or a case deciding such a claim on federal grounds, or by simply labeling the claim “federal.”

CONFRONTATION CLAUSE VIOLATED WHERE STATEMENT OF UNAVAILABLE WITNESS GIVEN DURING POLICE INTERROGATION WAS ADMITTED AGAINST THE DEFENDANT DESPITE FACT DEFENDANT HAD NO OPPORTUNITY TO CROSS-EXAMINE. WHERE TESTIMONIAL EVIDENCE IS AT ISSUE, THE SIXTH AMENDMENT DEMANDS UNAVAILABILITY AND A PRIOR OPPORTUNITY FOR CROSS-EXAMINATION. THE TEST IN OHIO V. ROBERTS DEPARTS FROM THESE HISTORICAL PRINCIPLES.

Crawford v. Washington, (02-9410, March 8) (Scalia, J.)
http://supct.law.cornell.edu/supct/html/02-9410.ZS.html

Petitioner was tried for assault and attempted murder. The State sought to introduce a recorded statement that petitioner’s wife Sylvia made during police interrogation, as evidence that the stabbing was not in self-defense. Sylvia did not testify at trial because of Washington’s marital privilege. Petitioner argued that admitting the evidence would violate his Sixth Amendment right to be confronted with the witnesses against him. Under Ohio v. Roberts, 448 U.S. 56 (1980), that right does not bar admission of an unavailable witness’s statement against a criminal defendant if the statement bears “adequate ‘indicia of reliability,” a test met when the evidence either falls within a “firmly rooted hearsay exception” or bears “particularized guarantees of trustworthiness.” The trial court admitted the statement on the latter ground. The Washington Supreme Court upheld the conviction, finding the statement reliable. At issue is whether the State's use of Sylvia's statement violated the Confrontation Clause.

Held: The Confrontation Clause was violated. Where testimonial statements are at issue the only indicium of reliability sufficient to satisfy constitutional demands is confrontation. Reversed.

The Court found their cases have remained faithful to the Framers' understanding that testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable and only where the defendant has had a prior opportunity to cross-examine. The Court noted that although the results of their decisions have generally been faithful to the original meaning of the Confrontation Clause, the same could not be said for their rationales. The test in Ohio v. Roberts departs from the historical principles outlined by the Court. Where testimonial statements are involved, the Court did not think the Framers meant to leave the Sixth Amendment's protection to the vagaries of the rules of evidence, much less to amorphous notions of "reliability". The Roberts test allows a jury to hear evidence, untested by the adversary process, based on a mere judicial determination of reliability.

The Court found where non-testimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law-as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. The Court left for another day any effort to spell out a comprehensive definition of “testimonial" finding whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.

SIXTH AMENDMENT NOT VIOLATED BY FAILURE OF TRIAL COURT TO ADVISE DEFENDANT THAT WAIVING THE ASSISTANCE OF COUNSEL IN DECIDING WHETHER TO PLEAD GUILTY 1) ENTAILS THE RISK OF OVERLOOKING A VIABLE DEFENSE; AND 2) ELIMINATES THE OPPORTUNITY TO OBTAIN AN INDEPENDENT OPINION ON WHETHER UNDER THE FACTS AND LAW IT IS WISE TO PLEAD GUILTY.

Iowa v. Tovar, (02-1541, March 8) (Ginsburg, J. for a unanimous Court)
http://supct.law.cornell.edu/supct/html/02-1541.ZS.html

This case concerns the extent to which a trial judge, before accepting a guilty plea from an un-counseled defendant, must elaborate on the right to representation.

Respondent was arrested in 1996 in Iowa for operating a motor vehicle (OWI) while under the influence. At his arraignment, he affirmed that he wanted to represent himself and to plead guilty. The trial court conducted the guilty plea colloquy required by the Iowa Rules of Criminal Procedure, informed the respondent of the maximum and minimum penalties for an OWI conviction, informed the respondent of the elements of the offense charged, and accepted the factual basis and the guilty plea.

In 1998 respondent was again charged with OWI. Represented by counsel, he plead guilty to a second offense. In 2000 he was charged with third-offense OWI. Represented by counsel, he plead not guilty and moved to preclude the use of the first offense conviction to enhance. He argued the 1996 waiver of counsel was not knowing, intelligent and voluntary because he was not made aware of the dangers and disadvantages of self-representation. The trial court denied the motion and the Iowa Court of Appeals affirmed. The Supreme Court of Iowa reversed, holding the 1996 guilty plea colloquy had been constitutionally inadequate because the respondent was not advised specifically that waiving counsel's assistance in deciding whether to plead guilty (1) entails the risk that a viable defense will be overlooked and (2) deprives him of the opportunity to obtain an independent opinion on whether, under the facts and applicable law, it is wise to plead guilty.

Held: The Supreme Court reversed, holding that neither warning ordered by the Iowa Supreme Court is mandated by the Sixth Amendment. The constitutional requirement is satisfied when the trial court informs the accused of the nature of the charges against him, of his right to be counseled regarding his plea, and of the range of allowable punishments attendant upon the entry of a guilty plea.

· FOURTH AMENDMENT - THE GOVERNMENT'S AUTHORITY TO CONDUCT SUSPICIONLESS INSPECTIONS AT THE BORDER INCLUDES THE AUTHORITY TO REMOVE, DISASSEMBLE AND REASSEMBLE A VEHICLE'S FUEL TANK

United States v. Flores-Montano, (No. 02-1794, March 30) (Rehnquist, J. for a unanimous Court) http://supct.law.cornell.edu/supct/html/02-1794.ZO.html

Respondent attempted to enter the United States at the international border in southern California. Thirty-seven kilograms of marijuana were seized by custom officials from respondent's gas tank which officials had removed and disassembled. The District Court granted the respondent's motion to suppress finding that reasonable suspicion was required to justify the search. The Ninth Circuit affirmed.

Held: reversed. The search in question did not require reasonable suspicion. The Court found the reasons that might support a requirement of some level of suspicion in the case of highly intrusive searches of the person - dignity and privacy interests of the person being searched - simply do not carry over to vehicles. Complex balancing tests to determine what is a "routine" search of a vehicle, as opposed to more "intrusive" search of a person, have no place in border searches of vehicles. The Court concluded the Government's authority to conduct suspicionless inspections at the border includes the authority to remove, disassemble and reassemble a vehicle's fuel tank.

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· DUI - SB 166 - inter alia (see below) reducing the allowable blood alcohol content for driving under the influence from ten hundredths to eight hundredths of one percent of body weight and limits the prior offenses that can be used to enhance sentences to those that occurred within the ten-year period preceding the date of arrest.

· Domestic Violence - SB 258 - (see below) relating to the enforcement of domestic violence protective orders generally; inter alia granting full faith and credit to out-of-state protection orders.

· Collection of Racial Profiling Data - SB 271 - inter alia (see below) requiring all state law-enforcement officers to collect certain data during traffic stops.

· SB 166 - passed 2/5/04; in effect ninety days from passage; approved by Gov. 2/16/04; relating to driving a motor vehicle or operating a motorized vessel while under the influence of alcohol, controlled substances or drugs; limiting the prior offenses that can be used to enhance sentences to those that occurred within the ten-year period next preceding the date of arrest in the current proceeding; and imposing additional costs on defendants convicted of offenses involving the driving of a motor vehicle or operating a motorized vessel while under the influence of alcohol, controlled substances or drugs for the use of counties and municipalities.

· SB 181- passed 3/11/04; in effect ninety days from passage; approved by Gov. 3/23/04; relating to permitting a retired member of the state police to carry a concealed weapon for the life of the member.

· SB 208 - passed 3/11/04; in effect ninety days from passage; approved by Gov. 4/5/04; relating to allowing members of the state police to engage in certain political activities while out of uniform and off duty.

· SB 258 - passed 2/19/04; in effect ninety days from passage; approved by Gov. 3/3/04; > relating to the enforcement of domestic violence protective orders generally; granting full faith and credit to out-of-state protection orders; expanding the West Virginia state police registry of in-state protective orders to include registration of out-of-state protection orders; expanding offenses and penalties for violations of in-state protective orders to include violations of conditions of bail, probation or parole which are intended to protect the personal safety of another; adopting the uniform interstate enforcement of domestic violence protection orders act; setting forth definitions; providing for enforcement of out-of-state protection orders even if the relief sought would not be available in West Virginia; setting forth criteria for enforcement of out-of-state protection orders, including protection provisions of valid out-of-state orders governing custody and visitation and mutual protection orders; providing that an out-of-state protection order which appears authentic on its face is presumed to be valid; providing for non-judicial enforcement of out-of-state protection orders by law-enforcement officers with probable cause to believe that a valid protection order exists and has been violated; providing for registration of an out-of-state protection order with the West Virginia state police; providing that registration is not a prerequisite to enforcement of an out-of-state protection order; providing immunity from civil or criminal liability for law-enforcement or other government officers or agencies for good faith acts or omissions undertaken in the course of enforcing an out-of-state protection order; providing criminal penalties for violation of out-of-state protection orders or conditions of bail, probation or parole; specifying that a protected individual may pursue other remedies; urging a construction of the act that encompasses uniformity of application and construction with other states that adopt it; and specifying the orders and actions to which the act is applicable.

· SB 271 - passed 3/13/04; in effect ninety days from passage; approved by Gov. 3/31/04; relating to racial profiling data collection; defining terms; requiring all state law-enforcement officers to collect certain data during traffic stops; requiring the division of motor vehicles to develop forms and compile the data collected; establishing penalties for agencies which fail to comply; providing limited civil liability protection for officers collecting data; providing form content; providing consultation with law- enforcement organizations relating to developing forms; requiring director of the governor's committee on crime, delinquency and correction to conduct analysis and distribute data; requiring promulgation of emergency and legislative rules; providing effective date for requiring collection of data; providing for annual report to the Legislature; and expiring data collection requirements.

· SB 316 – passed 3/13/04; to take effect July 1, 2004; approved by Gov. 4/7/04; relating to regional jail and correctional facility authority funds; providing statutory procedures for determining the cost per day for inmates incarcerated in facilities operated by the authority; and outlining the allocation of costs for housing inmates SB 317 - passed 3/13/04; to take effect July 1, 2004; approved by Gov. 4/5/04; relating to allowing the commissioner of the division of corrections to increase the parolee supervision fee to forty dollars.

· SB 319 - passed 3/13/04; in effect ninety days from passage; approved by Gov. 4/5/04; relating to young adult offenders found unfit to remain at a center for young adult offenders; specifying entitlement to a hearing before the committing court; providing standard of review; and allowing reliance on record established at the center under specified circumstances.

· SB 406 - passed 3/13/04; in effect ninety days from passage; approved by Gov. 4/5/04; relating to allowing victims of crime to be notified by telephone when a specified defendant is released from custody.

· SB 533 - passed 3/13/04; in effect ninety days from passage; approved by Gov. 4/2/04; relating to authorizing the division of corrections to charge a fee of up to one hundred dollars to adult offenders applying for transfer under the interstate compact for the supervision of adult offenders; setting up a special revenue account; and providing for expenditure of moneys.

· SB 558 - passed 3/13/04; in effect ninety days from passage; approved by Gov. 4/1/04; all relating to crimes of embezzlement; removing certain evidentiary presumptions which have been deemed unconstitutional; creating a new crime of embezzlement related to the willful and fraudulent misuse of a power of attorney or other fiduciary relationship; and providing that such crimes of embezzlement or fraudulent conversion to be punishable as larceny.

· VETOED BY GOV. 3/24/04 - SB 566 - passed 3/13/04; relating to creating the "Unborn Victims of Violence Act"; defining certain terms; identifying offenses of violence against a person that are committed against a pregnant woman or her embryo or fetus in the womb; establishing that an embryo or fetus in the womb may be a separate and distinct unborn victim in the case of certain violent crimes against a pregnant woman or her embryo or fetus in the womb; providing exceptions against the application of this section to certain persons or entities; specifying penalties; and providing that a conviction under this section, or of this article, is not a bar to prosecution of, or punishment for, any other crime allegedly committed by the defendant arising from the same incident.

· HB 2088 - passed 3/13/04; in effect ninety days from passage; approved by Gov. 4/2/04; relating to authorizing local law- enforcement officers who are members of drug task forces to have access to prescription drug monitoring data.

· HB 2200 - passed 3/13/04; in effect ninety days from passage; approved by Gov. 4/5/04; relating to creating the felony offense of injury, defacing or destruction of property causing damage, destruction or diminution in value of twenty-five hundred dollars or more; and providing penalties.

· HB 3096 - passed March 10, 2004; in effect ninety days from passage; approved by Gov. 3/25/04; relating to authorizing cooperation of campus police and rangers employed by the Hatfield-McCoy regional recreation authority with other law-enforcement agencies.

· HB 4020 - passed 2/12/04; in effect ninety days from passage; approved by Gov. 2/23/04; relating to limiting disclosure of personal information maintained by the legislative, judicial or executive agencies of the state of West Virginia relating to state employees due to their state employment and creating lesser restrictions on information maintained by executive branch agencies on citizens generally.

· HB 4022 - passed 2/26/04; in effect ninety days from passage; approved by Gov. 3/9/04; relating to the regulation of all-terrain vehicles generally; prohibiting operation on interstate highways and on center-lined roads or roads with more than two lanes; exceptions to prohibition; prohibiting operation with more than one passenger unless allowed under manufacturers’ specifications; prohibiting child passengers unless operator is an adult or has a level two intermediate driver’s license; requiring certain equipment; prohibiting riders under the age of eighteen without a helmet; providing for criminal penalties for violations; requiring safety awareness courses; creating exceptions; providing for regulation by local government authority; requiring rental dealers to provide safety equipment; providing certain exemptions for use on private property; providing exemption for farm and commercial use; and clarifying application of rules of operation.

· HB 4037 - passed 3/13/04; in effect ninety days from passage; approved by Gov. 4/6/04; relating to providing certain juvenile justice records to public school officials and limiting disclosure of certain records.

· HB 4055 - passed 3/13/04; in effect ninety days from passage; approved by Gov. 4/6/04; all relating to the supervision and return of juvenile offenders, juvenile runaways and other juveniles; authorizing and directing the governor to execute an interstate compact for the supervision and return of juvenile offenders, juvenile runaways and other juveniles; purpose; definitions; creation of the interstate commission for juveniles; powers and duties; bylaws; immunity; defense and indemnification; promulgation of rules; dispute resolution; annual assessment on member states; state council for interstate juvenile supervision; effective date; withdrawal from compact; default of a compact state; fines; suspension; termination; severability; binding effect of compact; and appointment of compact administrator.

· HB 4097 - passed 3/9/04; in effect ninety days from passage; approved by Gov. 3/22/04; relating to clarifying those persons or entities responsible for paying certain fees assessed by the clerk of a circuit court for processing of criminal bonds and bail-piece.

· HB 4104 - passed 3/11/04; in effect ninety days from passage; approved by Gov. 3/25/04; relating to creating the crimes of scanning device and re-encoder fraud; providing definitions; and establishing criminal penalties therefore.

· HB 4148 - passed 3/13/04; in effect ninety days from passage; approved by Gov. 4/5/04; all relating to bail bondspersons; requiring the supreme court of appeals shall to adopt rules specifying the qualifications of persons and corporations applying for authority to engage in the bonding business in West Virginia; allowing bail bondsperson to deliver offenders to county and regional jails without bail-piece; setting requirements; setting forth requirements related to medical treatment of defendant prior to authorities taking custody pursuant to a bail-piece; providing for certain immunities from liability; and providing penalties.

· HB 4156 - passed 3/13/04; in effect ninety days from passage; approved by Gov. 4/5/04; all relating to DNA testing for convicts under certain circumstances.

· HB 4294 - passed 3/11/04; in effect ninety days from passage; approved by Gov. 4/5/04; relating to removing the requirement that funds expended from the worthless check fund to pay for additional deputy clerks be proportionate to the time expended on worthless check cases.

· HB 4364 - passed 3/12/04; in effect ninety days from passage; approved by Gov. 4/5/04; relating to including division of forestry employees in the assault and battery statute with similar state personnel.

· HB 4373 - passed 3/10/04; in effect ninety days from passage; approved by Gov. 3/25/04; relating to making it a crime to possess or use a traffic-control device with an infrared or electronic device designed to change traffic light indication; exceptions; and providing for penalties.

· HB 4388 - passed 3/13/04; in effect ninety days from passage; approved by Gov. 4/2/04; relating to creating the criminal offense of possession of fraudulently obtained or counterfeit sales receipts or universal product codes or devices to produce counterfeit sales receipts or universal product codes with the intent to cheat or defraud; creating new felony offense for such illegal activity; and establishing penalties.

· HB 4433 - passed 3/13/04; in effect ninety days from passage; approved by Gov. 4/5/04; relating to abuse or neglect of an incapacitated adult; adding the crimes of abuse and neglect of an elder person age sixty-five years or older and the crime of misuse and misappropriation of the funds or assets of an elder person; and creating the crime of misuse or misappropriation of the funds or assets of an elder person through deception, intimidation, coercion, the infliction of bodily injury or the threat of bodily injury; and penalties.

· HB 4492 - passed 3/13/04; in effect ninety days from passage; approved by Gov. 4/6/04; relating to creating the criminal offense of soliciting certain minors or one believed to be a minor via computer to commit violations of certain criminal laws; and providing penalties.

· HB 4598 - passed 3/10/04; in effect ninety days from passage; approved by Gov. 3/25/04; relating to restricting courts from requiring conditions on the out-of-home placement of children inconsistent with existing licensing regulations.

· HB 4605 - passed 3/13/04; in effect ninety days from passage; approved by Gov. 4/7/04; all relating to domestic violence generally; clarifying the relationship between temporary and final domestic violence protective orders and the provisions of protective measures reflected in temporary or final divorce orders entered in divorce proceedings or other types of domestic proceedings; making the violation of emergency or final protective orders issued by injunctive relief or protective order in a divorce proceeding a misdemeanor; clarifying provisions related to the arrest and criminal enforcement of protective order violations; clarifying the penalties which may be imposed for the first and subsequent violation of such protective orders; authorizing the governor's committee on crime, delinquency and correction to develop and promulgate rules regarding the procedures for the dispatch of matters involving domestic violence; relating to prohibitions against the issuance of licenses and permits to carry concealed weapons and the possession of firearms as they pertain to persons who have been convicted of domestic violence offenses and/or are subject to domestic violence protection orders; and clarifying who is proscribed from possessing a firearm due to domestic violence convictions.

· HB 4634 - passed 3/13/04; in effect ninety days from passage; approved by Gov. 4/5/04; relating to requiring persons incarcerated in county or regional jails who have been convicted of a misdemeanor to pay for the costs of up to thirty days of their incarceration; requiring determination of ability to pay; and allowing for modification of assessment based upon need.

· HB 4649 - passed 3/11/04; in effect ninety days from passage; approved by Gov. 3/25/04; relating to child welfare; providing for a child advocacy center participation in multidisciplinary investigative teams; providing for uniform comprehensive assessments of children; preference to instate placement; including in team, child, the juvenile’s attorney, appropriate school official, court-appointed special advocate when available, and a representative from the licensed domestic violence program serving the county, when appropriate and available; requiring team preference of in-state placement; requiring court preference of instate placement; and requiring that reasons for out-of-state placement be in order.

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The appellant appealed the circuit court’s order requiring him to pay restitution following his convictions for fraudulent schemes, embezzlement, forgery and uttering. The restitution order required that the appellant pay nearly $ 50,000 in restitution, including $12,000 for income lost by the victim as a result of court appearances, and over $2,300 in interest that had accrued on a line of credit during the course of the appellant’s actions.

Held: that (1) that trial court had erred in failing to make findings of fact regarding the appellant’s ability to make restitution; (2) that it was error to require the appellant to pay restitution for income lost as a result of court appearances, based on a lack of statutory authority for such restitution; and (3) the issue of restitution for interest incurred must be re-examined on remand to determine whether the interest was incurred voluntarily, or whether it was necessitated by the appellant’s criminal actions.

Parents of three children appealed the decision of the circuit court to terminate parental rights and deny post-termination visitation. Testimony offered at the adjudicatory hearing indicated that, in addition to a continuing period of drug abuse and domestic violence, two of the children had been left locked in a car in June 2001. Following termination of the appellant’s parental rights, the circuit court denied post-termination visitation. The court found that the previous incidents, and a number of incidents following the disposition hearing, indicated that continued visitation would not be in the best interests of the children.

Held: (1) That the trial court correctly determined that there was no reasonable likelihood that the conditions of abuse /neglect, including drug abuse and domestic violence, could be substantially corrected, and that the termination of the appellant’s parental rights was not erroneous; and (2) that incidents occurring both before and after the disposition hearing, including additional acts of domestic violence and numerous visitation absences, indicated that post-termination visitation would be detrimental to the well-being of the children.

The appellant pleaded guilty to kidnapping and wanton endangerment following an altercation with his girlfriend. At his sentencing hearing, the girlfriend pleaded for leniency and noted that she had not been injured in the incident. The appellant also presented the testimony of a psychologist indicating that the appellant’s actions were atypical and that he was a low risk to ever repeat such behavior. Despite this evidence, the trial court sentenced the defendant to the maximum determinate sentence of 30 years imprisonment under W. Va. Code 61-2-14a (a)(4), which was to run concurrently with a 5 year sentence imposed for wanton endangerment.

Held: That in light of the appellant’s age, the testimony of the victim of the offense, and the psychological evidence, the determinate sentence of 30 years imposed by the trial court was disproportionate to the offense committed by the appellant. The Court cited the standards enunciated in State v. Cooper, 172 W. Va. 266, 304 S.E. 2d 851 (1983), noting that the maximum sentence imposed by the trial court shocked the conscience of the Court.

In a move which was criticized by Justice Davis in her concurring opinion, the Court ordered that the trial court, on remand, sentence the appellant to the minimum 10 year sentence authorized under the statute.

Petitioners, who were incarcerated inmates, filed Freedom of Information requests with their respective circuits in order to obtain documents for preparation of habeas corpus petitions. The circuit courts denied the petitioner’s requests, and the petitioners, in a consolidated action, requested that the Court mandate that the materials be delivered as per their requests.

Held: That an inmate cannot use the provisions of the Freedom of Information Act (§ 29B-1-1, et seq.) to obtain court records for the purpose of filing a habeas corpus petition. The Court held that inmates are bound to follow the discovery procedures set forth in the Rules Governing Post-Conviction Habeas Corpus Proceedings.

The appellant was convicted of misdemeanor battery. The appellant had entered a dwelling in search of an acquaintance and engaged in an altercation with a third party. The appellant asserted that she had acted in self-defense; however, the trial court refused to give the jury the self-defense instruction offered by the appellant, citing that certain language in the instruction falsely informed the jury that an initial aggressor can rely on self-defense. The court redacted certain portions of the instruction and read the instruction to the jury as amended. The appellant asserted that the trial court’s action in revising the instruction was error.

Held: That the trial court did not err in refusing to give the instruction as offered. The Court noted that in State v. Smith, 170 W. Va. 654, 295 S.E. 2d 820 (182) and State v. Wykle, 208 W. Va. 369, 540 S.E. 2d 586 (2000), the Court held that a person who is at fault or is an initial aggressor can not rely on self-defense. Citing the appellant’s aggressive entry into the dwelling, and testimony indicating that the appellant had brandished a crowbar and initially struck the victim upon entry, the Court determined that the trial court had not abused its discretion in refusing the instruction as proffered.

Appellant Whalen pleaded guilty to burglary. At sentencing, the trial court determined that the offense was “sexually motivated” and ordered the appellant to register as a sexual offender. The appellant contested this condition, asserting that neither he nor his counsel were aware that the court could (or intended) to make a finding that the appellant was a sexual offender.

Held: That when a defendant may be convicted of any offense that is not facially a sexual offense under § 15-12-2(b), a trial court must advise the defendant of the possibility of a sexual motivation finding prior to any trial or plea. Because the appellant was not advised of this possibility prior to his plea, the Court determined that the appellant would be permitted to withdraw his guilty plea.

In February 1992, warrants were issued for the appellant based upon allegedly worthless checks written by the appellant. The appellant was arrested on these charges until November 1995 and was indicted in January 1996. The appellant pleaded nolo contendere in March 1996 to two counts of obtaining money by a worthless check and was sentenced to two consecutive sentences of one to five years imprisonment, but these sentences were suspended and the appellant was placed on probation. Two years later the appellant’s probation was revoked and the original sentence was reinstated. The appellant subsequently appealed the circuit court’s order reinstating the original sentences.

The appellant primary contentions on appeal were (1) that he was denied the right to a speedy trial by the delay between the offense and his indictment; (2) that he was prejudiced by pre-indictment delay; (3) that he was denied credit for time served; and (4) that his trial counsel was ineffective.

Held: The Court held that (1) there was no violation of the appellant’s right to a speedy trial, noting that once an indictment has been returned, it is the three-term rule, as provided in W. Va. Code, § 62-3-21 (1959), which constitutes the legislative pronouncement of the speedy trial standard; (2) there was no merit to the appellant’s related argument that his due process rights were violated by pre-indictment delay, finding that in the absence of a prima facie excessive delay similar to the eleven-year delay in State ex rel. Leonard v. Hey, 269 S.E. 2d 394 (1980), a defendant must show actual prejudice caused by the delay. The Court noted that the appellant had failed to present any evidence that the State’s failure to bring the indictment was a deliberate device designed to gain an advantage over the appellant, and also did not present any evidence indicating that the delay actually prejudiced his defense; (3) the appellant’s argument regarding ineffective assistance of counsel was the same claim that he had raised in a previous habeas corpus proceeding which the Court had found to be without merit; and (4) the Court remanded the matter to the circuit court for the issuance of a new order granting the appellant a re-computation of credit for time served, based upon an agreement between the appellant and the State regarding such time.

A juvenile petition was filed at the request of the mother of the juvenile, Damian R., requesting that the juvenile be adjudicated as a status offender. The basis for the petition was the juvenile’s disruptive behavior at home and at school. At the adjudicatory hearing, the juvenile admitted to the factual allegations of the petition and was adjudged to be a juvenile status offender. The court referred the juvenile to the Department of Health and Human Resources (“DHHR”) for “treatment according to statute. The DHHR was contacted by school and was advised that the juvenile had “acted out” in school. The DHHR responded to this call by filing a petition with the circuit court, requesting custody of the juvenile and placement at a secure facility.

At a hearing on this petition, the State presented the testimony of two witnesses, who testified that they had been notified by other persons of the juvenile’s actions at school. The juvenile’s attorney objected to the hearsay nature of this testimony, but the court overruled the objection and granted the DHHR’s request for custody and placement. Counsel for the juvenile and the juvenile’s mother objected to this finding on the grounds that the DHHR had failed to provide services or counseling prior to changing custody. On appeal, the juvenile asserted (1) that the hearsay evidence adduced at the hearing on the petition was inadmissible, and (2) that the award of custody was improper because the DHHR had neglected to provide services constituting a less restrictive alternative than removal from his mother’s custody.

Held: The Court agreed with the juvenile, noting that while prior provision of services is not in all cases a necessary jurisdictional prerequisite for an order changing custody, petitions seeking such custody for status offenders must specifically show the necessity of such a request and that all reasonable efforts to provide services have been made. The Court held that the evidence adduced at the hearing did not establish such necessity, noting that no evidence had been introduced regarding the establishment of an individualized plan of rehabilitation pursuant to W. Va. Code § 49-5B-4(b) (1999).

The Court also held that in the absence of emergency circumstances, a circuit court’s decision to award custody of a juvenile status offender to the DHHR may not be based entirely upon hearsay evidence. (The Court did not specifically address this new syllabus point to the instant case, having already determined in the prior issue that the State had not adduced sufficient evidence to justify removal of the juvenile from his mother’s custody.)

Appellant, an inmate at the West Virginia Industrial Home for Youth, engineered an escape in conjunction with another inmate. While the other inmate withdrew from the plan, the appellant successfully escaped from the facility, seriously injuring a correctional officer in the process. Following the appellant’s arrest in Virginia one month later, the appellant was tried in Harrison County on charges of escape, malicious assault on a correctional officer, aggravated robbery and conspiracy to commit escape. The appellant was convicted of each of these charges and sentenced to varying terms of imprisonment.

The appellant asserted on appeal (1) that the prosecuting attorney, during his closing argument, had improperly alluded to his decision to remain silent during the trial, and (2) that the trial was held in an improper venue.

Held: The Court determined that remarks by the prosecuting attorney during his closing argument amounted to an improper comment on the appellant’s decision to remain silent during the trial. The prosecutor had stated that, “[t]he Defendant, as you have noted, as you have seen from this trial, has not contradicted any of the State’s evidence or any of the State’s testimony basically about the events[.]” The Court determined that the prosecutor’s remark “served to accentuate and highlight the fact that the appellant sat silently without taking the stand”, and plainly amounted to a comment on the appellant’s choice not to testify. Noting that this remark clearly violated the appellant’s right to remain silent under the Fifth Amendment to the United States Constitution and Article III, Section 5 of the West Virginia Constitution, the Court found that this remark clearly prejudiced the appellant and reversed the appellant’s conviction and remanded the case for a new trial.

On the venue issue, the Court noted that under W. Va. Code § 61-11-11 (1923) and § 61-11-12 (1984), venue was proper in the circuit court of Harrison County. § 61-11-11 provides that an offense committed on the boundary of any two counties may be prosecuted in either county. The Court noted that one of the appellant’s witnesses had testified that the Industrial Home for Youth bestrides the border of Harrison and Doddridge counties. Further, the Court observed that under § 61-11-12, when a crime is committed in more than one county, venue may exist in any county where a substantial element of the offense occurred. The Court thus determined that the State had met its burden of proof on the issue of venue.

State Of West Virginia v. $43,000 In Cashier’s Checks, # 31224, November 26, 2003 (Maynard, J.)

Following a number of controlled buys of prescription narcotics from appellant Kenneth Jenkins, the State arranged a reverse buy wherein Jenkins agreed to purchase 430 Oxycontin tablets from an undercover officer. Mr. Jenkins removed $6,000.00 from a safety deposit box which he maintained at a local bank for this purpose. He was arrested at the time of the transaction. During the course of a search of his residence, officers located the key to the safety deposit box. Pursuant to a search warrant, the officers found the cashier’s check’s in question. The checks had been purchased by Jenkins during a three-day period in November 2000.

The State initiated a forfeiture proceeding pursuant to W. Va. Code § 60A-7-701, et seq. (1988). The parties submitted cross-motions for summary judgment, and the circuit court granted the motion of the State and ordered forfeiture of the cashier’s checks.

Jenkins appealed the circuit court’s grant of summary judgment, arguing that the circuit court erred in finding a substantial connection between his drug transactions and the $43,000.00 in cashier’s checks. Jenkins also maintained that there was an “obvious cloud of uncertainty as to the applicable burden of proof” in the forfeiture action.

Held: The Court agreed with Jenkins to the degree that it recognized an inconsistency between Syllabus Point 5 of Frail v. $ 24,900.00 in U.S. Currency, 192 W. Va. 473, 453 S.E. 2d 307 (1994) (permitting forfeiture on a “probable cause” standard of evidence) and various other enactments, including W. Va. Code, § 60A-7-705(e) (1988) (requiring proof based upon a preponderance of the evidence). The Court observed that it would be a “constitutional anomaly” to permit forfeiture of property under only a showing of probable cause. The Court therefore modified Frail and clarified that “preponderance of the evidence” was the applicable standard in forfeiture cases.

The Court further found that the State had established its burden under either standard, observing that the checks were found in a safety deposit box from which Jenkins had recently removed a substantial sum of cash to engage in the “reverse sting”. Noting Jenkins failure to explain the source of the funds (the Court repeatedly emphasized that Jenkins’ only source of income was Social Security disability checks, food stamps and a medical card), the Court noted that the circuit court had correctly concluded, based upon a preponderance of the evidence, that the checks had been used or were intended to be used to facilitate drug transactions.

Abuse/neglect proceedings were instituted against the mother of three children because of alleged abuse to Desarae M.. After adjudication, the court placed the mother on a post-adjudicatory improvement period and ordered that certain goals and requirements be part of the period. However, the court did not order, nor did the DHHR prepare, a family case plan as required in § 49-6D-3(a). Following termination of her parental rights to all of her children, the mother appealed, asserting a number of assignments of error.

Held: That the court’s failure to order and prepare a family case plan constituted reversible error. The Court noted the necessity of the family case plan for both the parents and the DHHR, and the importance of the plan in establishing distinct goals and standards. The Court remanded with directions to grant one additional period of improvement.

The Court also held that the court did not err in terminating the appellant’s parental rights to the other two children, holding that such children were clearly at risk of sustaining similar abuse.

Appellant pleaded guilty to petit larceny in connection with the theft of four dogs. The appellant, along with a co-defendant, had stolen the animals along with hunting paraphernalia. The appellant was sentenced to one year in jail and was fined the sum of $ 2,500.00, the maximum sentence for petit larceny. The appellant asserted that the sentence imposed was (1) disparate to the sentence imposed upon his co-defendant, who was sentenced to ninety hours of community service and fined $300.00, and (2) disproportionate to the offense committed.

Held: The Court denied the appellant’s assertions and affirmed the sentences. In regard to the appellant’s assertion that his sentence was disparate to that imposed upon his co-defendant, the Court noted that the co-defendant had not pleaded guilty to petit larceny under W. Va. Code § 61-3-13 (1994), but rather to the separate offense of the unlawful theft of a dog under W. Va. Code § 19-20-12 (1984). The Court determined that since the defendants had pleaded guilty to separate offenses, involving separate potential sentences, the defendants were not “similarly situated” and the appellant’s claim regarding disparate sentencing was without merit.

Regarding the appellant’s claim that his sentence was disproportionate to the character and degree of the offense, the Court observed that the sentence was within the legislatively prescribed limits of § 61-3-13, and that the appellant had not contended that the sentence was based upon impermissible factors.

Petitioner was charged with domestic battery on June 6, 2002. The magistrate scheduled two “discovery conferences” on the matter in August and September of 2002. Following these conferences, the case was scheduled for trial for November 18, 2002. Prior to the trial date, the petitioner filed a motion to dismiss the warrant, arguing that the trial date exceeded the “one-term” rule of W. Va. Code §62-3-21. The magistrate denied the motion, but the petitioner sought immediate relief from the circuit court. The circuit court determined that there had been a violation of the 120-day rule and ordered the case dismissed. The order did not state, however, whether the dismissal was with or without prejudice.

The circuit court subsequently determined that prior orders dismissing cases for violations of the 120-day rule were being interpreted as being dismissals with prejudice. The circuit court corrected this interpretation, indicating that because the orders did not specify that the dismissals were “with prejudice”, they were dismissals without prejudice. Based upon this ruling, a new warrant was issued for the petitioner, and a trial date was set for June 2, 2003. The trial was continued until September 23, 2003 on the request of the petitioner, who filed for a writ of prohibition with the Supreme Court of Appeals. In this petition, the petitioner requested that the Court prohibit any subsequent trial because such a trial would violate his right to a speedy trial.

Held: That the “one-term” (or “120-day) rule was not a rule of constitutional dimension, and that unless otherwise specified, such dismissals are without prejudice. The Court also determined that the constitutional three-term rule was not violated, because the warrant was issued on May 5, 2003 and trial was set for June 2, 2003, which was within the limits of the three-term rule.

Juvenile was charged with alleged acts of sexual assault and was requested a court-appointed attorney. As per § 49-5-7(b), the juvenile’s parents were named as respondents. The juvenile’s father subsequently hired an attorney to represent him and his wife, and the court, at the subsequent adjudicatory jury trials, granted the father’s attorney the right to fully participate in the proceedings. The juvenile was adjudged delinquent and committed to the Industrial Home. The juvenile appealed, claiming, inter alia, that the participation of the private attorney constituted an improper conflict of interest and thus deprived him of the effective assistance of counsel.

Held: That the trial court committed error in granting “party” status to the parents in the juvenile proceeding. The Court noted the important role of parents in such proceedings, but noted that such participation did not create an entitlement to act as full and separate parties in the proceedings. The Court held, however, that the error was not reversible error, as (1) the juvenile’s attorney had not objected to the inclusion of the parent’s attorney, and (2) that there had been no showing that the juvenile’s attorney had been prohibited in any way from exercising the obligations of defending his client. Absent any showing of an actual conflict-of interest, and because there was no basis to conclude that the juvenile had lost the ability to “control his case”, the Court determined that the juvenile had received a fair trial.

The Court also concluded that the court had not abused its discretion in placing the juvenile at the Industrial Home, noting the circumstances of the case and the juvenile’s apparent lack of remorse.

The appellant was convicted of unlawful assault and wanton endangerment and was sentenced to concurrent prison sentences. On appeal, the appellant contended that the trial court had improperly refused to permit her to introduce evidence concerning the victim’s general reputation for being a violent person.

The appellant had engaged in a lengthy, tumultuous relationship with the victim. Following an all-night drinking session by the victim, the appellant decided to leave the victim. In response to this, the victim flattened the tires on the appellant’s vehicle, took the appellant’s crutches, and stated that he would shoot the appellant before he would permit her to leave him. Fearing for her safety, the appellant shot the victim in the thigh and buttocks.

The appellant asserted self-defense and testified to numerous acts of violence and abuse by the victim during their relationship. In addition, the appellant attempted to introduce evidence of the victim’s character and reputation as a dangerous and quarrelsome person through the testimony of two witnesses who had also been in prior violent relationships with the victim. The circuit court limited the evidence, stating that the testimony was “strictly limited to what [the appellant] knew at the time of the alleged offense...[and could not] go beyond incidents that were known to [the appellant] at the time of the alleged offense.”

Held: Citing Dietz v. Legursky, 188 W. Va. 526, 425 S.E 2d 202 (1992), the Court held that the trial court had committed reversible error in refusing the proffered evidence. The Court noted that the admission of such evidence was governed by Rule 404(a)(2) and Rule 405(a) of the West Virginia Rules of Evidence, which clearly permit the introduction of character evidence of victims of crime. The Court noted that such evidence was particularly relevant in prosecutions for homicide and malicious wounding cases, where a defendant may be attempting to show that the alleged victim was the first aggressor in the act. Noting that the trial court’s refusal to permit the introduction of this evidence constituted an abuse of discretion, the Court remanded the matter for a new trial.

Appellants, convicted sexual offenders, challenged the provisions of the Sexual Offender Registration Act, § 15-12-1 et seq., requiring lifetime registration and public, active disclosure and dissemination of their status as sexual offenders. The appellants asserted that these provisions, which were enacted after their respective convictions, constitute a violation of the ex post facto clause and the due process principles of the West Virginia Constitution.

Held: That because the purposes of the Act are not punitive, the ex post facto clause is not implicated. The Court cited Hensler v. Cross, 210 W. Va. 530, 558 S.E. 2d 330 (2001), where the Court had determined that the Act was not punitive but was a civil “regulatory” statute. The Court also cited Smith v. Doe, 538 U.S. ___, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003), in which the United States Supreme Court affirmed provisions in the Alaska Sexual Offender Registration Act which were very similar to the West Virginia Act. Based upon Hensler and Smith, the Court held that the provisions of the Act requiring life registration for certain sexual offenders (§ 15-12-4 [2000]) and public dissemination of information about life registrants (§ 15-12-5 [2001]) did not violate the ex post facto clause of the West Virginia Constitution.

The Court also rejected the appellant’s arguments that the Act’s provisions constituted a violation of the due process clause. The Court first observed that the appellant’s had not asserted substantive due process arguments. Citing Connecticut Department of Public Safety v. Doe, 538 U.S. ___, 123 S. Ct. 1160, 155 L. Ed. 2d 98, the Court observed that the Act’s failure to provide procedures to determined the “current dangerousness” posed by offenders did not violate due process, because the Act addresses an “offense based” registration system rather than a “risk-based” system.

The appellant was convicted of first degree murder, with a recommendation of mercy. During his trial, the appellant had attempted to introduce the expert testimony of three physicians to bolster his defense that a pre-existing brain injury had diminished his ability to formulate the requisite mental state for the commission of first or second degree murder. The circuit court, after an in camera hearing, refused to allow the appellant to present this testimony.

The Court reversed this determination and remanded the matter for a new trial. In so doing, the Court formally adopted the “diminished capacity” defense in West Virginia.

The Court noted that this defense, while previously “recognized” in a number of cases, had never been formally and expressly adopted. The Court noted that the rationale for permitting the defense arose from due process principles, and the understanding that the State must prove all elements of a criminal offense, including the mental state associated with the offense charged.

The Court noted that the testimony offered by the appellant in camera was clearly sufficient to permit the defense of diminished capacity to be presented to the jury. Accordingly, the Court determined that the circuit court had abused its discretion in denying the appellant’s motion for a new trial.

State v. Brown, No. 31350, February 2, 2004
(Scott Ash, Mercer County Public Defenders Office, for Appellant)

Following a guilty plea to a felony conspiracy charge, the appellant was sentenced to a term of confinement for a period of 1 to 5 years. This sentence was subsequently modified and the appellant was placed on probation.

A petition was subsequently filed to revoke the appellant’s probation on the grounds that the appellant had failed a random drug test. During the revocation hearing, the appellant asserted that the test results were false-positive, and had been caused by dental procedures the appellant had undergone in the weeks prior to the test. The only testimony presented in support of the petition was the testimony of the probation officer, who testified (over objection) that he had been advised by an unnamed lab technician that the tests were accurate.

The circuit court’s revoked the appellant’s probation. The appellant contested this revocation, asserting that the court had improperly based its decision to revoke entirely upon hearsay evidence.

Held: The Court sided with the appellant, noting that while the Rules of Evidence do not apply in probation revocation proceedings (W.Va. R. Evid. 1101(b)(3)), probationers nonetheless enjoy a number of procedural protections, including due process and the right of confrontation. Citing State v. Stuckey, 174 W. Va. 236, 324 S.E. 2d 379 (1984), and in consideration of the State’s concession of error, the Court determined that a circuit court must make a finding of “good cause” for not according a defendant his/her due process rights of confrontation and cross examination. Thus such findings are required when a circuit court intends to rely solely on hearsay in revoking a defendant’s probation.

Because the circuit court had made no specific findings as to the existence of good cause, the Court reversed the revocation and remanded the matter for further proceedings.

Appellant was indicted for two counts of breaking and entering and two counts of larceny. At trial, and over the objections of appellant’s counsel, the State admitted considerable testimonial evidence of the appellant’s history of drug use. The State argued that this information was relevant under Rule 404(b) in that it demonstrated the appellant’s motive to commit the crimes, i. e., to support his drug habit.

Held: The Court held that the trial court had erroneously concluded under W. Va. R. Evid. Rule 403 that the evidence of the appellant’s drug history was more probative than prejudicial. The Court noted that “unfair prejudice” did not mean damage to a case resulting from the legitimate probative use of the evidence, but rather the use of evidence tending to suggest a decision on an improper basis. The Court joined in the conclusion reached in several other jurisdictions that evidence of narcotics offenses upon a jury is “catastrophic” and may be unduly prejudicial.

The Court distinguished the appellant’s case from State v. Johnson, 179 W. Va. 619, 371 S.E. 2d 340 (1988), in that the evidence presented in Johnson related not to the defendant but to the defendant’s co-conspirators, and concerned allegations that the defendant had “partied” with the co-conspirators. In the appellant’s case, the Court observed that the State had presented several witnesses who testified in great detail as to specific instances of drug use occurring as long as four months prior to the alleged crimes.

Concluding that the limiting instructions offered by the trial court could not erase the catastrophic impact of the testimony of the appellant’s drug use, the Court determined that the trial court had abused its discretion in admitting the evidence of the appellant’s drug habit and reversed the conviction.

State ex rel. Stanley v. Sine, No. 31580, February 27, 2004 (John P. Adams, Martinsburg P.D. Office, for Petitioner/Public Defender Thomas Stanley)

Petitioner, an attorney in the Public Defender Office in Martinsburg, challenged the jury selection procedures employed by the respondent circuit clerk.

Pursuant to a 1998 directive from a circuit judge, the respondent circuit clerk employed a procedure whereby she selected prospective jurors in sequential alphabetical order. Rather than employing the “key number” system delineated in W. Va. Code, § 52-1-6(c), the respondent simply selected the prospective jurors in alphabetical order. (This procedure was enacted in response to complaints from jurors regarding the efficiency of the juror telephone system at the courthouse.)

Held: Citing numerous statutory references, the Court observed that a random jury selection process is an absolute requirement. The Court determined that the sequential alphabetical selection procedure employed herein impermissibly violated this requirement. The Court also noted that the procedure specifically violated the “key number” selection process enumerated in W. Va. Code § 52-1-6(c), which was specifically designed to insure random selection of jury members.

The Court determined that the plain language of § 52-1-6(c) did not authorize methods of prospective jury selection apart from the procedures listed therein, and granted as moulded the petitioner’s request for a writ of prohibition.

Appellant appealed the circuit court’s denial of his Rule 35(b) motion for reconsideration. Following his conviction for first degree sexual assault, the appellant was subsequently placed at the Anthony Center. (The offenses had been committed when the appellant was 14-15 years of age, and the appellant’s case was later transferred to adult status). After successfully completing the youthful offender program, the appellant was placed on probation. However, the appellant’s drug and alcohol use, as well as his failure to pay required fees and attend mandatory counseling, led to the revocation of his probation and imposition of his original sentence.

The appellant filed a motion under Rule 35(b) for reconsideration and reduction of sentence. The appellant requested re-imposition of probation to pursue a rehabilitation program through Youth Systems Services (“YSS”). In support of this motion, the appellant presented the testimony of a representative of YSS, who testified as to the structure and requirements of the program. The trial court subsequently denied the appellant’s motion for reconsideration, concluding that the court’s “obligation to the public” necessitated denial of the motion.

Held: The Court reversed this determination and concluded that the trial court had abused its discretion in denying the motion. In a fact-specific opinion, the Court cited the appellant’s traumatic childhood, which included sexual molestation at the hands of two family members and a teacher. The Court cited these acts among the “heinous atrocities” perpetrated upon the appellant in his youth. Citing the detailed, nationally acclaimed treatment plan offered by YSS, which was to be provided at no cost to the State, the Court observed that the plan offered an “opportunity to salvage [the appellant’s] life and to turn him into a productive member of society.” The Court concluded that it would be a miscarriage of justice to sentence the appellant to a term of imprisonment without affording him the opportunity to rehabilitate himself.

The Court also denied the State’s argument that it was without jurisdiction to grant probation under the Youthful Offender Act, § 25-4-1 to 12, once it has been revoked under the Act. The Court cited the constitutional basis of its rules and noted that such rules supercede statutory or common-law procedural rules.

The appellant was charged with first-degree murder after shooting and killing the victim in the presence of several witnesses. Testimony presented at trial indicated that the appellant had been agitated on the day of the killing and had threatened to kill himself and other persons throughout the day.

Following his conviction, the appellant asserted numerous errors on appeal, including (1) the trial court’s failure to strike three potential jurors; (2) the trial court’s admission of alleged 404(b) evidence; (3) insufficient evidence of premeditation and intent, and (4) ineffective assistance of counsel.

The Court addressed each of the appellant’s allegations. Regarding the issue of the court’s failure to strike the jurors, the Court noted that one of the challenged jurors, Mullens, had not indicated bias or prejudice during jury selection which would have necessitated removal. Further, the Court stated that questions from the trial court to Mullens were not an improper attempt to rehabilitate the juror, but were merely an attempt to clarify vague statements by the juror.

The Court also determined that the remaining two jurors, who were not challenged by trial counsel, were not subject to removal. (One of the jurors had known the decedent, while the other had previously been employed as a deputy sheriff). Neither of the jurors had indicated bias or difficulty in serving as a juror in the case.

The Court also determined that there was no error regarding the alleged 404(b) evidence. During trial, the State presented evidence of the appellant’s suicidal and homicidal threats on the day of the killing and the appellant’s possession of a firearm in the course of these threats. The Court held that Rule 404(b) was not implicated, because the evidence was “intrinsic” to the alleged offense and was part of the res gestae of the offense as showing the appellant’s state of mind at the time of the shooting.

The Court also summarily disposed of the appellant’s argument that the evidence of premeditation and intent was insufficient to sustain a conviction of first degree murder. Citing the appellant’s escalating threats and conduct throughout the day of the killing, the Court determined that there was abundant evidence to sustain the appellant’s conviction.

Finally, the Court noted that it was impossible to discern from the record whether several decisions by trial counsel amounted to ineffective assistance of counsel. The Court noted that the appellant could pursue this claim in the context of a post-conviction collateral proceeding.

The appellant was convicted of first-degree murder in 1982. He unsuccessfully sought appellate review in 1982 and post-conviction habeas corpus relief in 1992. In 2001 the appellant filed another request for habeas corpus relief, which was again denied at the circuit court level. Following the rejection of his petition for an appeal of this ruling in April 2002, the appellant filed a motion in August 2002 for reduction of sentence pursuant to Rule 35(b) of the Rules of Criminal Procedure. The circuit court denied this motion, reasoning that a Rule 35(b) motion does not properly lie where a habeas corpus petition has been denied and affirmed on appeal.

Held: The Court agreed with the trial court and affirmed the denial of the motion. The Court noted that the appellant had based his interpretation of Rule 35(b) on State v. Thornton, 197 W. Va. 726, 478 S.E. 2d 576 (1996), wherein the Court had determined that an unsuccessful habeas petitioner could seek reduction of sentencing following the ultimate denial of his petition. The Court noted, however, that Thornton had been decided prior to the 1996 revision of Rule 35(b). The earlier version of this Rule permitted a defendant to request reduction of sentence within 120 days of an order of the Supreme Court of Appeals “having the effect of upholding” a judgment of conviction. The Court determined in Thornton that the phrase “having the effect of upholding” encompassed the denial of habeas corpus relief. This phrase was removed from Rule 35(b) during the 1996 revision.

The Court held that pursuant to the 1996 revision of Rule 35(b), a motion for reduction of sentence filed subsequent to the 1996 revision could only be filed within 120 days from the time (1) the sentence is imposed or probation is revoked; (2) of the affirmation of a judgment of conviction/probation revocation; or (3) of the entry of an order dismissing or rejecting a petition for appeal of a judgment of conviction/probation revocation.

Because the appellant’s motion was not based on any of these grounds, the Court determined that the motion was untimely filed and affirmed the dismissal of the motion.

The appellant pleaded guilty in November 1986 to five felony counts of forgery and five felony counts of uttering. (Prior to his plea, the appellant had received a mental evaluation, where it was determined that he was criminally responsible and was competent to stand trial). Following the denial of a motion to withdraw the plea, the appellant filed a petition for appeal, which was denied in 1988. The appellant subsequently filed a petition for habeas corpus, and the Kanawha County Circuit Court granted the petition and overturned the convictions.

Following the appellant’s release from the penitentiary, the State appealed the ruling of the circuit court. In Duncil v. Kaufman, 183 W. Va. 175, 394 S.E. 2d 870 (1990), the Court determined that the circuit court had erred in reversing the appellant’s convictions. During this period, the appellant had been convicted of breaking and entering in Cabell County. The appellant was returned to the penitentiary in 1991.

Following his release on parole in 1994, the appellant was indicted in Kanawha County for bank robbery. He was subsequently convicted of this offense, after which the State filed a recidivist information. The appellant pleaded guilty to this offense in April 2001, and was sentenced to a term of no less than twenty nor more than twenty years. (The sentence for the bank robbery was an indeterminate sentence of no less than ten nor more than twenty years; however, under the recidivist statute, the minimum term of the sentence was doubled.)

In 2002 the appellant filed a second habeas corpus petition, challenging, inter alia, the forgery and uttering convictions from 1986. The circuit court denied this petition, holding that the appellant’s petition was moot until the sentence for the bank robbery was served. The appellant challenged this ruling, arguing that (1) the circuit court had erroneously used the “concurrent sentence” rule to deny the appellant’s petition, and (2) that the circuit court erred in failing to grant the appellant an omnibus hearing regarding the appellant’s competency to enter the 1986 guilty pleas.

Held: The Court concluded that the circuit court had incorrectly applied the “concurrent sentence “rule. The Court noted that under State ex rel. Blake v. Chafin, 183 W. Va. 269, 395 S.E. 2d 513 (1990), the fact that the appellant would remain in prison on other grounds regardless of the outcome of the habeas proceeding did not make the petition moot. The Court determined, however, that other grounds existed to deny the petition. Specifically, the Court addressed the appellant’s claim that the circuit court had erred in 1986 by not making specific findings regarding his competency. The Court noted that the appellant had not presented any evidence to suggest that he was incompetent at the time the pleas were entered. The Court observed that the mental evaluation in 1986 contained no indication of incompetence, and that this evaluation, coupled with the circuit court’s colloquy with the appellant at the time of the plea, constituted “adequate due process”.

Appellant, Wanda S., is the mother of three children. Abuse/neglect proceedings were initiated after the appellant reported alleged sexual abuse by the biological father of the children. The DHHR filed a petition alleging, inter alia, that the appellant had been aware of the abuse inflicted upon the children but had taken no action to report or prevent a reoccurrence of the acts. The petition was subsequently amended to include allegations that the appellant had failed to protect the children from physical abuse by her current husband and had permitted the children to visit her father, a registered sexual offender.

The trial court issued an adjudicatory order in August 2002, finding that each of the children had been neglected and/or abused by the appellant, the father of the children, and the appellant’s husband. The appellant requested a post-adjudication period of improvement and presented the testimony of the visitation supervisor who had observed her visits with her children since the filing of the petition. The court denied the motion, finding that the appellant had received services for several years to little or no effect, and had consistently failed to protect her children from the abusive acts and influence of two registered sexual offenders.

The court subsequently denied the appellant’s motion for a dispositional improvement period, based upon the absence of evidence that the appellant could comply with the requirements of the plan, and terminated the appellant’s parental rights to all three children.

The Court reviewed the appellant’s assertions that the court had improperly denied her motions for post-adjudicatory and dispositional improvement periods.

Held: The Court determined that the appellant, like all other parents in abuse/neglect proceedings, is not unconditionally entitled to a period of improvement, but that such entitlement is conditioned upon the ability of the parent to prove by clear and convincing evidence that the parent is likely to fully participate in the improvement period. The Court held that the appellant had failed to prove that there was a reasonable likelihood that she could substantially correct the conditions leading to the termination of her parental rights or protect her children from further abuse.

Finding no abuse of discretion on the part of the court in denying the requested improvement periods, the Court affirmed the termination of the appellant’s parental rights. The Court remanded the case, however, for a determination as to whether to grant the appellant post-termination visitation with the children.

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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

Great news! Volume IX of the WV Criminal Law Digest is completed and is available to purchase! You may purchase your copy of the digest in a bound book form or on CD Rom in Word Perfect or PDF format, for the low price of $45.00 (price does not include sales tax, please include $2.70 tax). Also the Sixth Edition of the Criminal Law Jury Instructions are available also for the low price $60.00 (price does not include sales tax, please include $3.60 tax). If you have any questions please contact Erin Akers at (304)558-3905.

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. 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.

Office:
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

Inquiries, articles and suggestions
are always welcome.
Available in large print upon request

INSIDE THIS ISSUE

by Jack Rogers

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Suggestions and Ideas

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