|Volume 6, Issue 1||An informative newsletter of the State of West Virginia Public Defender Services.||May 2005|
The Legislature has declined to go forward with placement of Public Defender offices where they can be cost effective. By the end of FY 2007 (30 June 2007) five to seven more offices could have saved the state approximately $1 million dollars per year in indigent defense costs (see our website, www.wvpds.org for a map of proposed areas; Public Defender Corporations on index). Those areas with the potential for substantial savings have many who strongly oppose establishment of offices. Absent a change in statutory structure, I am powerless to make changes.
|United States Supreme Court|
|October, 2004 Term|
Leocal v. Ashcroft, 125 S.Ct. 377 (2004) (Rehnquist, C.J.)
Petitioner, a Haitian citizen who is a lawful permanent resident of the United States, was convicted in 2000 of driving under the influence of alcohol (DUI) and causing serious bodily injury, in violation of Florida law. While he was serving his sentence, the Immigration and Naturalization Service (INS) initiated removal proceedings against him pursuant to §237(a) of the INA. Under that provision, an alien who is convicted of an aggravated felony is deportable. Section 101(a)(43) of the INA defines “aggravated felony” to include, inter alia, a crime of violence as defined by 18 U.S.C. Sec. 16 for which the term of imprisonment is at least one year.
Classifying this conviction as a "crime of violence" under 18 U.S.C. Sec. 16 and therefore an "aggravated felony" under the INA, an Immigration Judge and the Board of Immigration Appeals ordered that petitioner be deported. The Court of Appeals for the Eleventh Circuit agreed, dismissing petitioner's petition for review.
Held: reversed and remanded. Petitioner's DUI conviction is not a crime of violence under 18 U.S.C. Sec. 16. DUI statutes such as Florida's do not require any mental state with respect to the use of force against another person, thus reaching individuals who were negligent or less. The Court noted this case does not present the question whether a state or federal offense that requires proof of the reckless use of force against a person or property of another qualifies as a crime of violence under 18 U.S.C. Sec. 16.
(See and compare SER Appleby v. Recht, 213 W.Va. 503, 583 S.E.2d 800 (2002) where the state Supreme Court held that application of the state's recidivist statute to a repeated drunk driver was not constitutionally disproportionate. The appropriateness of a life recidivist sentence under West Virginia's constitutional proportionality provision has generally required initial emphasis be given to the nature of the triggering felony with the primary analysis of the offenses focused on whether they involve actual or threatened violence to the person. See State v. Wyne, 194 W.Va. 315, 460 S.E.2d 450 (1995).)
Florida v. Nixon, 125 S.Ct. 551 (2004) (Ginsburg, J.)
Jeanne Bickner had been tied to a tree and set on fire while still alive. Police arrested 23-year-old Joe Elton Nixon after Nixon’s brother informed the sheriff’s office that Nixon had confessed to the murder. Questioned by the police, Nixon described in graphic detail how he had kidnapped Bickner, then killed her. The State gathered overwhelming evidence establishing that Nixon had committed the murder in the manner he described. Trial counsel deposed all of the State’s potential witnesses and commenced plea negotiations, but the prosecutors refused to recommend a sentence other than death. Believing that the only way to save Nixon’s life would be to present extensive mitigation evidence centering on Nixon’s mental instability, he concluded that the best strategy would be to concede guilt, thereby preserving his credibility in urging leniency during the penalty phase.
Counsel attempted to explain this strategy to Nixon at least three times. Nixon was generally unresponsive during their discussions. He never verbally approved or protested the proposed strategy. Overall, he gave counsel very little, if any, assistance or direction in preparing the case, and refused to attend pretrial dispositions of various motions. Counsel eventually exercised his professional judgment to pursue the concession strategy. In his opening statement, counsel acknowledged Nixon’s guilt and urged the jury to focus on the penalty phase. He cross-examined government witnesses only when he felt their statements needed clarification and he did not present a defense case. He objected to the introduction of crime scene photographs and actively contested several aspects of the jury instructions during the charge conference. In his closing argument, counsel again conceded Nixon’s guilt and reminded the jury of the importance of the penalty phase. At the penalty phase, counsel presented the testimony of relatives and friends who described Nixon’s childhood emotional troubles and his erratic behavior in the days preceding the murder. A psychiatrist and a psychologist addressed Nixon’s antisocial personality, his history of emotional instability and psychiatric care, his low IQ, and the possibility that at some point he suffered brain damage. In his closing argument, counsel emphasized Nixon’s youth, the psychiatric evidence, and the jury’s discretion to consider any mitigating circumstances. The jury recommended, and the trial court imposed, the death penalty.
Certiorari was granted to resolve the question whether counsel’s failure to obtain the defendant’s express consent to a strategy of conceding guilt in a capital trial automatically renders counsel’s performance deficient, and whether counsel’s effectiveness should be evaluated under United States v. Cronic, 466 U.S. 648 (1984) or Strickland v. Washington, 466 U.S. 668 (1984).
The Court found the Florida Supreme Court’s erroneous equation of counsel’s concession strategy to a guilty plea led it to apply the wrong standard in determining whether counsel’s performance ranked as ineffective assistance. The Florida court first presumed deficient performance, then applied the presumption of prejudice that Cronic reserved for situations in which counsel has entirely failed to function as the client’s advocate. The Florida court therefore did not hold Nixon to the standard prescribed in Strickland which would have required Nixon to show that counsel’s concession strategy was unreasonable.
The Supreme Court found that on the record thus far developed, counsel’s concession of Nixon’s guilt did not rank as a “fail[ure] to function in any meaningful sense as the Government’s adversary.” The Court noted that although such a concession in a run-of-the-mine trial might present a closer question, the gravity of the potential sentence in a capital trial and the proceeding’s two-phase structure vitally affect counsel’s strategic calculus.
In summary, the Court found in a capital case, counsel must consider in conjunction both the guilt and penalty phases in determining how best to proceed. When counsel informs the defendant of the strategy counsel believes to be in the defendant’s best interest and the defendant is unresponsive, counsel’s strategic choice is not impeded by any blanket rule demanding the defendant’s explicit consent. Instead, if counsel’s strategy, given the evidence bearing on the defendant’s guilt, satisfies the Strickland standard, that is the end of the matter; no tenable claim of ineffective assistance would remain.
Devenpeck v. Alford, 125 S.Ct. 588 (2004) (Scalia, J.)
This case presents the question whether an arrest is lawful under the Fourth Amendment when the criminal offense for which there is probable cause to arrest is not “closely related” to the offense stated by the arresting officer at the time of arrest.
Believing that respondent was impersonating a police officer, petitioner Haner, a Washington State Patrol officer, pursued and pulled over respondent's vehicle. While questioning respondent at the scene, petitioner Devenpeck, Haner's supervisor, discovered that respondent was taping their conversation and arrested him for violating the State's Privacy Act. The state trial court subsequently dismissed the charge. Respondent filed a §1983 action against petitioners in Federal District Court and a state cause of action for unlawful arrest and imprisonment, both claims resting upon the allegation that petitioners arrested him without probable cause in violation of the Fourth and Fourteenth Amendment. The case proceeded to trial and the jury found in favor of the petitioners.
A divided panel of the Court of Appeals for the Ninth Circuit reversed finding no evidence to support the verdict. The majority concluded that petitioners could not have had probable cause to arrest because they cited only the Privacy Act charge and the alleged conduct of the respondent, recording officers conducting a traffic stop, was not a crime in Washington. The majority rejected petitioners’ claim that probable cause existed to arrest respondent for other offenses - impersonating a law-enforcement officer and obstructing a law-enforcement officer because, it said, those offenses were not “closely related” to the offense invoked by petitioner Devenpeck as he took respondent into custody.
The Supreme Court found their cases make clear that an arresting officer’s state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause. His subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause. They found a rule that the offense establishing probable cause must be “closely related” to, and based on the same conduct as, the offense identified by the arresting officer at the time of arrest is inconsistent with this precedent.
Reversed and remanded.
Kowalski v. Tesmer, 125 S.Ct. 564 (2004) (Rehnquist, C.J.)
This case involves a constitutional challenge to Michigan’s procedure for appointing appellate counsel for indigent defendants who plead guilty. In 1994, Michigan amended its Constitution to provide that “an appeal by an accused who pleads guilty or nolo contendere shall be by leave of the court” and not as of right. Following this amendment, several Michigan state judges began to deny appointed appellate counsel to indigents who pleaded guilty, and the Michigan Legislature subsequently codified this practice. Under the statute, which was scheduled to go into effect on April 1, 2000, appointment of appellate counsel for indigents who plead guilty is prohibited, with certain mandatory and permissive exceptions.
The challengers are two attorneys who seek to invoke the rights of hypothetical indigents to challenge the procedure.
Held: the attorneys lack standing. The Court therefore did not reach the question of the procedure’s constitutionality.
Brosseau v. Haugen, 125 S.Ct. 596 (2004) (Per Curiam)
Officer Brosseau shot Haugen in the back as he attempted to flee from law enforcement authorities in his vehicle. Haugen subsequently filed this action pursuant to §1983 alleging that the shot fired constituted excessive force and violated his federal constitutional rights. The District Court granted summary judgment to Brosseau after finding she was entitled to qualified immunity. The Court of Appeals for the Ninth Circuit reversed finding first, that Brosseau had violated Haugen’s Fourth Amendment right to be free from excessive force and, second, that the right violated was clearly established and thus Brosseau was not entitled to qualified immunity. The Supreme Court granted the petition on the qualified immunity question and reversed.
The Court expressed no view as to the correctness of the Court of Appeals' decision on the excessive force question finding that, however that question is decided, the Court of Appeals was wrong on the issue of qualified immunity.
The Court found qualified immunity shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted. Because the focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct. If the law at that time did not clearly establish that the officer's conduct would violate the Constitution, the officer should not be subject to liability or the burdens of litigation. The Court found the cases examined by no means "clearly establish" that Brosseau's conduct violated the Fourth Amendment.
Reversed and remanded.
Smith v. Texas, 125 S.Ct. 400 (2004) (Per Curiam)
Petitioner was convicted of capital murder and sentenced to death. At the punishment phase, the jury was instructed on two special issues: first, whether the killing was deliberate; and second, whether the defendant posed a continuing danger to others. Approximately two years prior to the trial, the Supreme Court held that presenting only these two special issues, without additional instructions regarding the jury's duty to consider mitigation evidence, violated the Eighth Amendment. Penry v. Lynaugh, 492 U.S. 302 (1989).
In this case, the trial judge issued a supplemental "nullification instruction" that directed the jury to give effect to mitigation evidence, but allowed the jury to do so only by negating what would otherwise be affirmative responses to the two special issues relating to deliberateness and future dangerousness. In Penry II, Penry v. Johnson, 532 U.S. 782 (2001) the Court held a similar "nullification instruction" constitutionally inadequate because it did not allow the jury to give " 'full consideration and full effect to mitigating circumstances' " in choosing the defendant's appropriate sentence. Despite that holding, the Texas Court of Criminal Appeals rejected petitioner's request for postconviction relief finding the instruction either was irrelevant because petitioner did not proffer "constitutionally significant" mitigation evidence, or was sufficiently distinguishable from the instruction in Penry to survive constitutional scrutiny.
Held: reversed. The petitioner submitted relevant mitigation evidence and the nullification instruction failed to allow the jury to accord full weight to that evidence.
City of San Diego v. Roe, 125 S.Ct. 521 (2004) (Per Curiam)
The city of San Diego (City), a petitioner here, terminated a police officer, respondent, for selling videotapes he made and for related activity. The tapes showed the respondent engaging in sexually explicit acts. Respondent brought suit alleging, among other things, that the termination violated his First and Fourteenth Amendment rights to freedom of speech. The United States District Court for the Southern District of California granted summary judgment to the City. The Court of Appeals for the Ninth Circuit reversed.
the judgment of the Court of Appeals was
reversed. A government employee does not relinquish all First Amendment rights
otherwise enjoyed by citizens just by reason of his or her employment. On the
other hand, a governmental employer may impose certain restraints on the speech
of its employees, restraints that would be unconstitutional if applied to the
general public. The Court has recognized the right of employees to speak on
matters of public concern, typically matters concerning government policies that
are of interest to the public at large, a subject on which public employees are
uniquely qualified to comment. See, inter
alia, Pickering v. Board of Ed.,
391 U.S. 563 (1968). Outside of this category, the Court has held that when
government employees speak or write on their own time on topics unrelated to
their employment, the speech can have First Amendment protection, absent some
governmental justification "far stronger than mere speculation" in regulating
it. United States v. Treasury
Employees, 513 U.S. 454 (1995). The Court concluded the City was not barred
from terminating respondent under either line of cases.
Whitfield v. United States,125 S.Ct. 687 (2005) (O'Connor, J.)
Petitioners were convicted in federal district court of conspiracy to launder money in violation of 18 U.S.C. §1956(h). Their request to instruct the jury that the Government was required to prove beyond a reasonable doubt that at least one of the co-conspirators had committed an overt act in furtherance of the conspiracy was denied. The question presented is whether conviction for conspiracy to commit money laundering, in violation of 18 U.S.C. §1956 (h), requires proof of an overt act in furtherance of the conspiracy.
United States v. Booker, 125 S.Ct. 738 (2005) (Stevens, J. delivered the opinion of the Court in part; Breyer, J. delivered the opinion of the Court in part.)
Held: both courts correctly concluded that the Sixth Amendment as construed in Blakely does apply to the Sentencing Guidelines. In a separate opinion authored by Justice Breyer, the Court concludes that in light of this holding, two provisions of the Sentencing Reform Act of 1984 (SRA) that have the effect of making the Guidelines mandatory must be invalidated in order to allow the statute to operate in a manner consistent with congressional intent.
Illinois v. Caballes, 125 S.Ct. 834 (2005) (Stevens, J.)
Illinois State Trooper Gillette stopped respondent for speeding. When he radioed the police dispatcher to report the stop, Graham, a member of the Illinois State Police Drug Interdiction Team, overheard the transmission and immediately headed for the scene with his narcotics-detection dog. When they arrived, respondent’s car was on the shoulder of the road and respondent was in Gillette's vehicle. While Gillette was in the process of writing a warning ticket, Graham walked his dog around respondent’s car. The dog alerted at the trunk. Based on that alert, the officers searched the trunk, found marijuana, and arrested respondent.
The question presented is whether the Fourth Amendment requires reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop. The Court proceeded on the assumption that the officer conducting the dog sniff had no information about respondent except that he had been stopped for speeding. The Court accepted the state court’s conclusion that the duration of the stop in this case was entirely justified by the traffic offense and the ordinary inquiries incident to such a stop.
The Illinois Supreme Court held that the initially lawful traffic stop became an unlawful seizure solely as a result of the canine sniff that occurred outside respondent’s stopped car. In its view, the use of the dog converted the citizen-police encounter from a lawful traffic stop into a drug investigation, and because the shift in purpose was not supported by any reasonable suspicion that respondent possessed narcotics, it was unlawful.
Here, the U.S. Supreme Court found that conducting a dog sniff would not change the character of a traffic stop that is lawful at its inception and otherwise executed in a reasonable manner, unless the dog sniff itself infringed respondent’s constitutionally protected interest in privacy. The Court found that the use of a well-trained narcotics-detection dog-one that "does not expose noncontraband items that otherwise would remain hidden from public view," during a lawful traffic stop, generally does not implicate legitimate privacy interests. In this case, the dog sniff was performed on the exterior of respondent’s car while he was lawfully seized for a traffic violation. The Court found any intrusion on respondent’s privacy expectations did not rise to the level of a constitutionally cognizable infringement.
judgment of the Illinois Supreme Court was vacated.
Bell v. Cone, 125 S.Ct. 847 (2005) (Per Curiam)
Petitioner was convicted of murder and sentenced to death. Following affirmance of his convictions and sentence, he sought habeas relief. The Court of Appeals for the Sixth Circuit granted the writ after concluding that the “especially heinous, atrocious, or cruel” aggravating circumstance found by the jury at the sentencing phase was unconstitutionally vague and that the Tennessee Supreme Court failed to cure any constitutional deficiencies on appeal.
Held: the state court’s affirmance of the respondent’s death sentence was not contrary to clearly established Federal law. Reversed.
Petitioner contends that the Mississippi courts violated his rights under the Eighth and Fourteenth Amendments to the United States Constitution by refusing to require a jury instruction about a lesser included offense in his capital case. He did not, however, raise this claim in the Supreme Court of Mississippi, which did not address it.
Smith v. Massachusetts, 125 S.Ct. 1129 (2005) (Scalia, J.)
Petitioner was tried before a jury on multiple charges related to a shooting. Under Massachusetts law, the “firearm” element of the unlawful possession of a firearm charge requires proof that the weapon had a barrel “less than 16 inches” in length. The victim testified at trial that petitioner had shot him with “a pistol,” specifically “a revolver” that “appeared to be a .32 or a .38.” The prosecution introduced no other evidence about the firearm.
At the conclusion of the prosecution’s case, petitioner moved under Rule 25(a) of the Rules Crim. Proc. for a required finding of not guilty on the firearm count, in part because the Commonwealth had not proved that the gun barrel was less than 16 inches. The trial judge granted the motion, reasoning that there was “not a scintilla of evidence” that petitioner had possessed a weapon with a barrel length of less than 16 inches. The prosecution rested and the defense case proceeded. During the recess before closing arguments, the prosecutor brought to the court’s attention a Massachusetts precedent under which (he contended) the victim’s testimony about the kind of gun sufficed to establish that the barrel was shorter than 16 inches. He requested that the court defer ruling on the sufficiency of the evidence until after the jury verdict. The judge agreed, announcing orally that she was “reversing” her previous ruling and allowing the firearm-possession count to go to the jury. The jury convicted on all three counts.
Held: the judge's initial ruling on petitioner's motion was a judgment of acquittal and Double Jeopardy forbade the judge to reconsider the acquittal later in the trial.
The Court found that as a general matter state law may prescribe that a judge's midtrial determination of the sufficiency of the State's proof can be reconsidered, but that Massachusetts had not adopted any such rule of nonfinality at the time of petitioner's trial. The Court found the Double Jeopardy Clause’s guarantee cannot be allowed to become a potential snare for those who reasonably rely upon it. If, after a facially unqualified midtrial dismissal of one count, the trial has proceeded to the defendant’s introduction of evidence, the acquittal must be treated as final, unless the availability of reconsideration has been plainly established by pre-existing rule or case authority expressly applicable to midtrial rulings on the sufficiency of the evidence. That requirement was not met here.
The Court found prosecutors are not without protection against ill-considered acquittal rulings and cites W.Va. Rule Crim. Pro. 29(b), inter alia, for the proposition that States can and do craft procedural rules that allow trial judges "maximum opportunity to consider with care a pending acquittal motion" . . . including the option of deferring consideration until after the verdict.
Johnson v. California, 125 S.Ct. 1141 (2005) (O'Connor, J.)
The California Department of Corrections (CDC) has an unwritten policy of racially segregating prisoners in double cells in reception centers for up to 60 days each time they enter a new correctional facility.
held strict scrutiny is the proper standard of review for an equal protection
challenge to that policy.
Simmons, 125 S.Ct.
1183 (2005) (Kennedy, J.)
Held: the Eighth
and Fourteenth Amendments forbid imposition of the death penalty on offenders
who were under the age of 18 when their crimes were committed.
Wilkinson v. Dotson, 125 S.Ct. 1242 (2005) (Breyer, J.)
Two state prisoners brought an action under 42 U.S.C. §1983 claiming that Ohio's state parole procedures violate the Federal Constitution. The prisoners sought declaratory and injunctive relief. The question presented is whether they may bring such an action under Rev. Stat. §1979, 42 U.S.C. §1983, the Civil Rights Act of 1871, or whether they must instead seek relief exclusively under the federal habeas corpus statutes.
Held: these actions may be brought under §1983.
Shepard v. U.S., 125 S.Ct. 1254 (2005) (Justice Souter delivered the opinion of the Court, except as to Part III.)
The Armed Career Criminal Act (ACCA), mandates a minimum 15-year prison sentence for anyone possessing a firearm after three prior convictions for serious drug offenses or violent felonies. The Act makes burglary a violent felony only if committed in a building or enclosed space ("generic burglary"), not in a boat or motor vehicle. Taylor v. United States, 495 U.S. 575 (1990) held that a court sentencing under the ACCA could look to statutory elements, charging documents, and jury instructions to determine whether an earlier conviction after trial was for generic burglary.
The question presented is whether a sentencing court can look to police reports or complaint applications to determine whether an earlier guilty plea necessarily admitted, and supported a conviction for, generic burglary. The Court held that it may not. Enquiry under the ACCA to determine whether a plea of guilty to burglary defined by a nongeneric statute necessarily admitted elements of the generic offense is limited to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.
Muehler v. Mena, 125 S.Ct. 1465 (2005) (Rehnquist, C.J.)
Respondent was detained in handcuffs during a search of the premises that she and several others occupied. Petitioners were members of a police detachment executing a search warrant of these premises. Respondent sued the officers under 42 U.S.C. § 1983 and the District Court found in her favor. The Court of Appeals affirmed the judgment, holding that the use of handcuffs to detain respondent during the search violated the Fourth Amendment and that the officers’ questioning of respondent about her immigration status during the detention constituted an independent Fourth Amendment violation.
Held: respondent's detention in handcuffs for the length of the search was reasonable and did not violate the Fourth Amendment and the officers’ questioning during that detention did not violate her Fourth Amendment rights.
The Supreme Court found respondent's detention for the duration of the search was reasonable under Michigan v. Summers, 452 U.S. 692 (1981) because a warrant existed to search the residence and she was an occupant of that address at the time of the search. Inherent in Summer's authorization to detain an occupant of the place to be searched is the authority to use reasonable force to effectuate the detention. The Court found the use of force in the form of handcuffs on the respondent was a separate intrusion and was more intrusive than that which was upheld in Summers. But the Court found this was no ordinary search - a warrant authorized a search for weapons and a wanted gang member resided on the premises. The safety risk inherent in executing a search warrant for weapons was found sufficient to justify the use of handcuffs. The need to detain multiple occupants made the use of handcuffs all the more reasonable. Respondent argued that, even if the use of handcuffs to detain her was reasonable as an initial matter, the duration of the use of handcuffs made the detention unreasonable. The Supreme Court found the duration of a detention can affect the balance of interests, however, the 2- to 3- hour detention in handcuffs in this case did not outweigh the government’s continuing safety interests.
Court of Appeals also determined that the officers violated respondent's Fourth
Amendment rights by questioning her about her immigration status during the
detention. The Supreme Court found they have repeatedly held that mere police
questioning does not constitute a seizure. Since the initial detention was
lawful and as the Court of Appeals did not hold that the detention was prolonged
by the questioning, there was no additional seizure within the meaning of the
Fourth Amendment and the officers did not need reasonable suspicion to ask
respondent for her name, date and place of birth, or immigration
125 S.Ct. 1432 (2005) (Kennedy, J.)
Respondent was sentenced to death for murder and to 21 years and 8 months for rape and attempted murder. He presented no evidence in the guilt phase of the trial. At the penalty phase, defense counsel concentrated on respondent’s postcrime behavior.
The trial judge gave jury instructions that followed a state statute setting forth 11 different factors, labeled (a) through (k), to guide the jury in determining whether to impose a death sentence or life imprisonment. The factor (k) instruction directed jurors to consider “[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.” In closing, the prosecutor incorrectly stated his opinion that factor (k) did not allow them to consider anything that happened after the crime. Although he also told them several times that, in his view, they had not heard any evidence of mitigation, he discussed respondent’s evidence in considerable detail and argued that the circumstances and facts of the case, coupled with respondent’s prior violent acts, outweighed the mitigating effect of respondent’s religious conversion. The court admonished the jury that the prosecutor’s comments were merely argument, but it did not explicitly instruct that the prosecutor’s interpretation was incorrect.
The California Supreme Court affirmed. Applying Boyde v. California, 494 U.S. 370 (1990), which had considered the constitutionality of the factor (k) instruction, the state court held that, considering the context of the proceedings, there was no reasonable likelihood that the jury believed it was required to disregard respondent’s mitigating evidence.
The Ninth Circuit granted habeas relief concluding that the California Supreme Court had unreasonably applied Boyde in holding the factor (k) instruction was not unconstitutionally ambiguous. The court determined that the general mitigation instruction did not make it clear to the jury that it could consider evidence concerning respondent’s postcrime religious conversion and the prosecutor was allowed to urge this erroneous interpretation.
The California Supreme Court’s decision was not contrary to or an unreasonable
application of clearly established federal law.
Rhines v. Weber, 125 S.Ct. 1528 (2005) (O’Connor, J.)
In this case the Court confronts the problem of a "mixed" petition for habeas corpus relief in which a state prisoner presents a federal court with a single petition containing some claims that have been exhausted in the state courts and some that have not.
A district court has discretion to stay a mixed petition to allow a petitioner
to present his unexhausted claims to the state court in the first instance and
then to return to federal court for review of his perfected
v. United States,
S.Ct. 1571 (2005) (Souter, J) The
question here is when the 1-year statute of limitations in 28 U.S.C. §2255 begins to run in a case of a
prisoner's collateral attack on his federal sentence on the ground that a state
conviction used to enhance that sentence has since been vacated.
Held: the period begins when a petitioner receives
notice of the order vacating the prior conviction, provided that he has sought
it with due diligence in state court, after entry of judgment in the federal
case with the enhanced sentence. Small
v. United States,
(No. 030750, April 26) (Breyer, J). http://supct.law.cornell.edu/supct/html/03-750.ZO.html The United States Criminal Code
makes it “unlawful for any person … who has been convicted in any court, of a crime
punishable by imprisonment for a term exceeding one year … to … possess … any
firearm.” 18 U.S.C. § 922
question presented focuses upon the words “convicted in any
court.” Held: the phrase encompasses only domestic, not
foreign, convictions. Pace
(No. 03-9627, April 27, 2005) (Rehnquist, C.J.) http://supct.law.cornell.edu/supct/html/03-9627.ZO.html Held: it is not. Because petitioner filed his federal habeas
petition beyond the deadline and because he was not entitled to statutory or
equitable tolling for any of that period, his federal petition is time
barred. WEST VIRGINIA
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2005 REGULAR SESSION
Selected Bills Passed Both Houses
April 26, 2005
Johnson v. United States, 125 S.Ct. 1571 (2005) (Souter, J)
The question here is when the 1-year statute of limitations in 28 U.S.C. §2255 begins to run in a case of a prisoner's collateral attack on his federal sentence on the ground that a state conviction used to enhance that sentence has since been vacated.
Held: the period begins when a petitioner receives notice of the order vacating the prior conviction, provided that he has sought it with due diligence in state court, after entry of judgment in the federal case with the enhanced sentence.
Small v. United States, (No. 030750, April 26) (Breyer, J).
The United States Criminal Code makes it “unlawful for any person … who has been convicted in any court, of a crime punishable by imprisonment for a term exceeding one year … to … possess … any firearm.” 18 U.S.C. § 922 (g)(1)
The question presented focuses upon the words “convicted in any court.”
Held: the phrase encompasses only domestic, not foreign, convictions.
Pace v. Diguglielmo, (No. 03-9627, April 27, 2005) (Rehnquist, C.J.)
Held: it is not. Because petitioner filed his federal habeas petition beyond the deadline and because he was not entitled to statutory or equitable tolling for any of that period, his federal petition is time barred.
Rules bills are not included in this summary.
· **SB 104 - AN ACT to repeal §17-15-3 of the Code of West Virginia, 1931, as amended, relating to working prisoners by county commissions. Passed 4/6; in effect from passage. Approved by Gov. 4/21.
· **SB 191 – relating to mental hygiene proceedings generally; authorizing implementation of a modified mental hygiene procedure in limited number of counties relating to persons who are medication-dependent and who have had at least one prior conviction for a crime of violence against the person within the previous twenty-four months related to mental illness or two prior hospitalizations within the previous twenty-four months due to mental illness; directing cooperation of Secretary of Department of Health and Human Resources and Supreme Court of Appeals in developing modified procedures; authorizing use of treatment compliance orders in certain judicial circuits; authorizing hospitalization and treatment for up to forty-eight hours prior to probable cause hearing for medication-dependent individuals who meet requirements; reporting requirements; expiration date; time limits; requirements of petitions; procedures; required findings; hearings; and forms required for procedures. Passed 4/9; in effect from passage.
· SB 268 – all relating to underage possession of nonintoxicating beer and alcoholic liquor; and conforming state law to federal requirements by providing that violation by a person under the age of eighteen constitutes a status offense instead of a misdemeanor. Passed 4/9; in effect ninety days from passage.
· **SB 491 - AN ACT to repeal §28-6-1 and §28-6-2 of the Code of West Virginia, 1931, as amended, relating to the Compact for Out-of-State Parolee Supervision. Passed 4/6; in effect from passage. Approved by Gov. 4/21.
· SB 498 –clarifying the scope of responsibility of the Institute to include services to the entire staff of prosecutors; authorizing the Institute to train state and local law-enforcement and investigative personnel ; allowing the Institute to accept moneys for reimbursement of expenses; and continuation of the West Virginia Prosecuting Attorneys Institute. Passed 4/8; to take effect July 1, 2005. Approved by Gov. 4/21.
· SB 548 - relating to the crimes of assault and battery upon law-enforcement officers; and adding Public Service Commission motor carrier inspectors to the list of law-enforcement officers. Passed 4/7; in effect ninety days from passage. Approved by Gov. 4/21.
· SB 585 – relating to juvenile proceedings and confidentiality of juvenile records; and permitting disclosure of same under specified circumstances. Passed 4/9; in effect ninety days from passage. Approved by Gov. 4/21.
· SB 588 –relating to Animal Cruelty Early Intervention Program for juveniles; expanding the definition of cruelty to animals; increased criminal penalties for cruelty to animals; and allowing judges to require that offenders complete an anger management program. Passed 4/9; in effect ninety days from passage.
· SB 729 – relating to home confinement; authorizing magistrate courts to order home incarceration as a condition of bail; authorizing magistrate courts to order home incarceration intermittently; and requiring magistrate court orders of home incarceration as a condition of bail be done consistent with Supreme Court guidelines. Passed 4/9; to take effect July 1, 2005.
· HB 2129 - relating to the unlawful use of an audio-visual recording device in a motion picture theater; defining certain terms; providing immunity for theater owner who detains person violating this section; and providing penalties. Passed 3/17; in effect ninety days from passage. Approved by Gov. 4/6.
· HB 2150 - relating to expanding the possible venues where a child neglect or abuse petition may be filed. Passed 4/8; in effect ninety days from passage. Approved by Gov. 4/20.
· HB 2174 - relating to requiring the Department of Health and Human Resources to develop a procedure to notify persons mandated to report child abuse and neglect of whether an investigation of the report has occurred. Passed 4/5; in effect ninety days from passage. Approved by Gov. 4/14.
· HB 2271 – relating to the payment of expert fees in child abuse and neglect cases. Passed 4/9;
· HB 2444 - Mandatory participation in the motor vehicle alcohol test and lock program for repeat offenders. Passed 4/9;
· HB 2476 - Relating generally to parole and parole proceedings. Passed 4/9
· HB 2483 - AN ACT to repeal §28-5-26 of the Code of West Virginia, 1931, as amended, relating to escape of convicts and rewards. Passed 3/7; in effect ninety days from passage. Approved by Gov. 3/21.
· HB 2495 - AN ACT to repeal §7-8-3 of the Code of West Virginia, 1931, as amended, relating to inspection of jails. Passed 3/11; in effect ninety days from passage. Approved by Gov. 3/24.
· HB 2523 - Making it a crime for released inmates to contact correctional employees and requiring that inmates be advised of such prohibition upon release. Passed 4/9
· HB 2991 - Providing criminal penalties for aiding escape and specifying items that are unlawful to deliver to or be possessed by individuals in custody or confinement. Passed 4/9
· HB 3098 - Expanding the prohibitions and criminal penalties for sexual exploitation or sexual abuse of a child by a parent, or guardian or custodian to include offenses by persons who hold a position of trust in relation to a child. Passed 4/9
· HB 3178- Relating to domestic violence and clarifying when permanent injunctions and other provisions may be granted in final divorce orders. Passed 4/9; VETOED BY GOV. 4/16; repassed as result of veto 4/16.
· HB 3219- relating to compensation awards to victims of crimes, patient; amending the definition of claimant so as to include persons who are assignees of a crime victim, hold power of attorney with respect to the crime victim, or otherwise have been authorized to act on a victim's behalf. Passed 4/6; in effect ninety days from passage. Approved by Gov. 4/18.
Pullin v. State of West Virginia, (No. 31659 – October 22, 2004) [Braxton County ]– PER CURIAM
Appellant sought review of his felony convictions on two counts of delivery of a controlled substance. On appeal, the appellant alleged numerous trial errors, including the submission of an invalid verdict form and the court’s refusal of a “missing witness” instruction.
The objectionable verdict form submitted to the jury contained the following language: “We, the jury, find, beyond a reasonable doubt, the Defendant, JOHN DAVID PULLIN, not guilty of delivery of a controlled substance, as charged in Count One.”
Held: The Court agreed with the appellant’s contention that the verdict form, and in particular the inclusion of the phrase “beyond a reasonable doubt”, constituted an impermissible shift of the burden of proof to the appellant. (The state contended that the inclusion of this language was invited error, and thus waived, because defense counsel had not objected to its inclusion. The Court held that the submission of this verdict form was plain error, due to the fact that the right implicated was a fundamental constitutional right, i.e., the presumption of innocence.)
The Court determined that the verdict form, “unquestionably required the jury to find [that the appellant] was not guilty only if he presented evidence to establish beyond a reasonable doubt that he was innocent.” Based upon this unconstitutional shift of the burden of proof, the Court reversed the convictions and remanded the matter for a new trial.
The Court also addressed the denial appellant’s request for a “missing witness” instruction, which would have advised the jury that “the failure of the State to call David Facemire gives rise to the inference that had David Facemire testi[fied], his testimony would have been adverse to the State’s case.”
The Court noted that this instruction was not, however, a correct statement of the law. The Court noted that under McGlone v. Superior Trucking Co., Inc., 178 W. Va. 659, 363 S.E. 2d 736 (1987), a jury can be instructed that it “may” infer that a missing witness’ might testify adverse to a party. The instruction submitted by the appellant was improper in that it couched such a finding in mandatory language.
The Court further observed that, in the context of a criminal prosecution, a “missing witness” instruction is not warranted if the defense does not adequately show that the government possesses the sole power to produce the witness. The Court noted that defense counsel for the appellant had admitted during the trial that he could have called Mr. Facemire as a witness.
Reversed and Remanded.
State v. Harris, (No. 31705 – October 27, 2004) [Nicholas County] – PER CURIAM (Paul Williams, Summersville, and Jack Hickok, Appellate Division, for the Appellant)
Appellant was convicted of third-offense shoplifting and sentenced to one to ten years imprisonment. During trial, the State admitted into evidence a surveillance videotape from a convenience store which purportedly showed the appellant shoplifting three cartons of cigarettes. The appellant objected to the testimony of an investigating officer who, while the videotape was being shown to the jury, offered a questionable narration of the actions recorded on the tape. The appellant asserted that because the officer did not have personal knowledge of what had occurred inside the store, he was not competent, under Rule 602 of the West Virginia Rules of Evidence, to narrate the details of the tape.
Held: While noting that the Court affords “great deference” to evidentiary rulings of trial courts, the Court observed that it was error for the circuit court to permit the officer to narrate the videotape during his testimony. The Court noted that the officer had not been present when the events recorded on the tape had occurred, and that the circuit court had, upon objection by defense counsel, cautioned the officer to avoid such narration and to confine his testimony to matters considered admissible under Rule 602.
However, the appellant did not request a mistrial on these grounds, and the Court held that the trial court was under no duty to have, sua sponte, granted such a mistrial. The Court noted that there was no “manifest necessity “for such a decision, and that the trial court had not abused its discretion in declining to grant a mistrial on its own volition.
The Court further held that, discounting the officer’s inadmissible narrative, there was sufficient circumstantial evidence presented to support the appellant’s conviction. The Court held that the actions of the parties shown on the videotape, along with the testimony of the State’s witnesses, comprised sufficient circumstantial evidence of shoplifting.
In Re: Amber Leigh J. & James Jack J., (No. 31711 – November 1, 2004) [Marion County] – PER CURIAM
· ABUSE AND NEGLECT – TERMINATION OF PARENTAL RIGHTS
The mother of two children appealed the circuit court’s decisions to terminate her parental rights to her daughter, Amber Leigh J., and to place her son, James Jack J. in the permanent custody of the Department of Health and Human Resources (“DHHR”).
Between 1998 and 2001, the DHHR received several referrals regarding the children’s hygiene, the polluted condition of their home, and the children’s failure to attend school. A petition was filed in December 2001, and at a subsequent adjudicatory hearing it was determined that Amber had been neglected. After the parent’s failed to remedy a problem with lice in their home, Amber was removed from the home and placed in foster care.
While in foster care, Amber related details of sexual abuse at the hands of her parents, her brother, and a friend of her brother. The petition was amended to include these allegations. At the second adjudicatory hearing, and following a subsequent disposition hearing, the circuit court determined, inter alia, that the children had been abandoned, because the parents had left the state to pursue a job during the proceedings and had not maintained contact with the DHHR. The circuit court terminated each parent’s parental rights to Amber. James was placed in the permanent custody of the DHHR, but at his request his mother and father’s parental rights were not terminated.
Held: Regarding the decision to terminate the appellant’s parental rights to Amber, the Court determined (1) that clear and convincing evidence indicated that Amber had been sexually abused, and that her mother (the appellant) had not only participated in the abuse but had failed to protect her from sexual abuse by the other members of the family; and (2) that the appellant had failed to utilize the services offered by the DHHR and had made no effort to be reunited with her children. Consequently, the Court determined that Amber’s welfare would be threatened by a return to her mother’s custody, and affirmed the circuit court’s termination of her parental rights.
The Court also affirmed the circuit court’s decision to place James in the permanent custody of the DHHR. While noting that James may not have been “abandoned” within the meaning of W. Va. Code § 49-6-9 (1980), the Court noted that James was an abused child because of his residence in the home where the abuse of Amber was ongoing. The Court noted that the circuit court had granted James’ wish that his mother’s parental rights not be terminated, but nonetheless held that permanent placement out of the home was in the best interests of the child.
Lawyer Disciplinary Board v. Wheaton, (No. 31275 – November 12, 2004) – PER CURIAM (Starcher, J. and McGraw, J., dissenting).
The respondent began his private practice in 1996. Over the next five years, the respondent engaged in a pattern of conduct which resulted in the filing of multiple complaints by clients and other parties with the State Bar. The complaints included a variety allegations, including (1) failure to pursue action on cases and failure to file civil actions within appropriate statutes of limitation; (2) fraudulent conversion of client funds; (3) failure to advise clients of the status of cases and misrepresentation of the status of cases; (4) unilateral settlement of cases without discussion with clients; and (5) misrepresentation to the Office of Disciplinary Counsel (“ODC”) regarding the matters being investigated.
The respondent did not contest the Lawyer Disciplinary Board’s finding of fact regarding these allegations. The respondent contested, however, the Board’s recommendation that his license to practice law be annulled.
Held: The Court, after reviewing the circumstances of each of the complaints against the respondent, adopted the Board’s recommendation and ordered the annulment of the respondent’s law license. The Court determined that the mitigating factors cited by the respondent were either inapplicable or did not outweigh the aggravating factors, which included (1) the lengthy span of misconduct; (2) the misappropriation of client funds for personal use; and (3) material misrepresentations to his clients, courts and the ODC.
The Court chose not to adopt the eighteen-month suspension requested by the respondent. The Court noted several distinctions between the respondent’s situation and the issues presented in Lawyer Disciplinary Board v. Scott, 213 W. Va. 209, 579 S.E. 2d 550 (2003), with the primary distinction being that the respondent in Scott had not taken or converted client funds for his own use.
Law License Annulled.
State v. Hamrick, (No. 31669 – November 12, 2004) [Webster County] – PER CURIAM
The appellant was charged with misdemeanor battery following an altercation at a market with one of his wife’s former co-workers. There were no other witnesses to the incident, and both the appellant and the alleged victim testified that the other person was the initial aggressor.
During the rebuttal stage of closing argument at the magistrate court jury trial, the prosecutor addressed the defense’s suggestion that the charge against the appellant was brought by the alleged victim in retaliation for a prior civil judgment against the former employer. The prosecutor advised the jury, inter alia,
“[I] have a duty as a prosecutor to uphold the law, and if I thought for a moment that this was some trumped-up charge as it has been suggested here, I would have dismissed the case. I reviewed this independently [.]”
The appellant was convicted and the conviction was affirmed by the circuit court. On appeal, the appellant asserted that the above remarks constituted prejudicial “vouching” by the prosecutor of the state’s case.
Held: The Court agreed with the appellant and remanded the case for a new trial. The Court observed that it is improper, under both existing case law and the West Virginia Rules of Professional Conduct, for an attorney to assert personal opinions of the facts in issue or the justness of a cause. Citing State v. Critzer, 167 W. Va. 655, 280 S.E. 2d 288 (1981) and State v. England, 180 W. Va. 342, 376 S.E. 2d 548 (1988), the Court observed that the purpose of such a rule in a criminal case is to “prevent the use of the prosecutor’s status as a means to bolster witness credibility.”
The Court determined that the prosecutor’s remarks, particularly those portions referring to the prosecutor’s “duty” to insure that frivolous cases were not prosecuted, had a tendency to mislead the jury and to prejudice the appellant. The Court observed that such remarks were particularly relevant in the context of this case, in that the credibility of the only two witnesses to the incident was a “dominant factor” in the jury’s decision.
Reversed and Remanded.
In Re: Dejah Rose P., No. 31710 – December 1, 2004 [Harrison County] – PER CURIAM
The mother of Dejah Rose P. appealed the circuit court’s decision to terminate her parental rights. The circuit court based its decision on Julie F.’s long-term and continuous history of drug abuse, which included the period of her child’s birth.
Held: The Court affirmed the decision of the circuit court. The Court determined that despite the appellant’s on-going efforts to remedy her drug problem, the appellant had nonetheless failed to respond to drug treatment on three prior occasions. The Court also noted that the appellant’s methadone program, along with other treatment and services which the appellant might require, could last for an indefinite period, which the Court held was contrary to the intent of the Legislature in expediting abuse and neglect proceedings.
State v. Fiske No. 31714 – December 1, 2004 [Morgan County] – PER CURIAM
Appellant was charged with forgery and uttering after presenting a check on an account belonging to his grandfather to a convenience store. After presenting the check, the appellant returned to the store and asked the store to hold the check so that he could provide cash in lieu of the check. The store was unable to comply and subsequently discovered that the bank on which the check was drawn had been closed. At trial, the appellant’s grandfather indicated that because of a diabetic episode, he was unsure whether he had authorized the appellant to sign checks on his behalf. He further testified that he had not been prejudiced or otherwise harmed by the appellant’s presentment of the check and that he had not wished to pursue charges against the appellant.
Held: The Court agreed with the appellant and reversed the appellant’s conviction. The Court held that the testimony of the appellant’s grandfather clearly established that the appellant might have been authorized to sign the check and that even if such authorization was not explicit, there did not appear to be any intent on the part of the appellant to defraud or prejudice the rights of his grandfather. The Court determined that the evidence presented by the State was inadequate to establish, beyond a reasonable doubt, that the grandfather’s rights were prejudiced by the appellant’s actions. The Court reversed the convictions and remanded the matter to the trial court for entry of a judgment of acquittal.
Reversed and remanded.
State v. Angell, No. 31787 – December 1, 2004 [Kanawha County] – PER CURIAM (Gene Dickinson, Kanawha County Public Defenders Office, for Appellee)
The State of West Virginia filed a petition for writ of prohibition to bar the dismissal of the indictment and the disqualification of the prosecuting attorney. The circuit court determined that it was a violation of due process to permit attorneys employed by the Workers Compensation Commission (WCC) and appointed as assistant prosecuting attorneys to present evidence, because the salaries of the assistant prosecuting attorneys’ were paid by WCC, the alleged victim in these cases. The circuit court ordered the dismissal without prejudice of the indictment and the disqualification of lawyers employed by the WCC in any subsequent action.
Held: The Court held that the prosecution of worker’s comp fraud cases by WCC-employed lawyers who are appointed by local prosecuting attorneys as assistant prosecuting attorneys did not violate due process, and therefore disqualification of the attorneys was not warranted. Citing federal authority permitting similar appointments, the Court noted that the WCC attorneys have no inherent bias or personal interest in the outcome of the cases. This factor, compounded with the “special expertise” that such attorneys bring to such cases and the lack of direction or supervision of such attorneys by the WCC, demonstrated that there was no inherent unfairness rising to the level of a due process violation.
Writ of Prohibition Granted as Moulded.
Adkins v. Cline, Commissioner, No. 31693 – December 1, 2004 [Lincoln County] – PER CURIAM
The appellees herein were drivers who had been charged with DUI offenses. Both had their license privileges revoked by the commissioner, but each appealed the matters to the circuit court of Lincoln County, where they were granted indefinite stays pending final decisions by the circuit court. The circuit court subsequently reversed the revocations and remanded the cases for consideration in light of the provisions of Choma v. West Virginia Div. of Motor Vehicles, 210 W. Va. 256, 557 S.E. 2d 310 (2001), which require the commissioner of motor vehicles in administrative revocation proceedings to give substantial weight to the results of criminal proceedings, apply to persons whose revocation proceedings were being appealed at the time of the decision. The DMV appealed, contending that the language of Choma, providing that the new consideration requirements would be “prospective only”, did not apply to the appellees because their initial revocations had been determined years prior to the Choma decision.
Held: The Court determined (1) that the open-ended stays issued by the circuit court were in direct violation of W. Va. Code § 17C-5A-2(p) (1994), and that stays could not exceed the 150-day statutory limitation; and (2) that because the appellee’s revocation proceedings were pending on direct appeal at the time of the Choma decision, they were entitled to the applicability of the consideration requirements.
Thus, the Court determined that “prospectivity” under Choma included cases where (1) the commissioner had not yet rendered a decision, and (2) a direct appeal of such a decision was pending.
Rohrbaugh v. State of West Virginia, No. 31618 – December 1, 2004 [Grant County] – Davis, J.
The appellee pleaded guilty in 1991 to a single felony count of sexual assault in the third degree. The appellee completed a five-year term of probation in 1997. In 2001, the appellee filed a petition for restoration of his civil rights which had been forfeited as a result of his felony conviction. The State objected to the restoration of the appellee’s firearms rights, arguing that under § 61-7-7(c), the restoration would violate federal law. The state also asserted that the appellee would be ineligible for restoration under § 61-7-7(b), because his prior conviction of a felony sexual offense expressly prohibited the restoration of his firearms rights. The circuit court found for the appellee, holding that his firearm rights were to be restored. The State of West Virginia appealed.
Held: The Court reversed this decision. The Court first determined that the circuit court had erroneously applied an earlier version of § 61-7-7, which did not expressly bar convicted felony sexual offenders from restoration of firearm rights. The Court also determined that application of the 2000 revision of § 61-7- 7 was not an unconstitutional ex post facto violation, because the statute was regulatory and not punitive in nature. The Court held that the clear and unambiguous language of § 61-7-7 bars persons convicted of felony sexual offenses from possessing a firearm or petitioning for the restoration of such rights. Because the appellee’s conviction clearly fit within the ambit of such offenses, the appellee could not request restoration of such rights. The Court also concluded that § 61-7-7 was not an unconstitutional infringement upon the “right to bear arms” embodied in the Second Amendment of the United States Constitution and Article III, Section 22 of the West Virginia Constitution. Citing previous decisions, the Court held that § 61-7-7 constituted “a proper exercise of the Legislature’s police power to protect the citizenry of this State and impose reasonable limitations on the right to keep and bear arms”.
State v. Dennis, No. 31578 – December 1, 2004 [Ohio County] – Albright, J.
The appellant was convicted of kidnapping, second degree robbery, two counts of second degree sexual assault, domestic battery and violation of a domestic violence protection order. The appellant asserted numerous assignments of error. The primary assignment of error addressed by the Court concerned the issue of jurisdiction, due to testimony that the robbery and sexual offenses had actually been committed in the state of Ohio. The appellant asserted that the trial court had erred in denying his motion for acquittal on the sexual assault and robbery charges, because the state had failed to prove that the necessary elements of these offenses had occurred in the State of West Virginia.
Held: The Court first drew a distinction between venue and jurisdiction, stating that “jurisdiction involves the inherent power of a court to decide a criminal case, whereas venue relates to the particular county or city in which a court with jurisdiction may hear and determine a case.” The Court observed that the appellant’s challenge was one of territorial jurisdiction, in that he was alleging all of the alleged elements of these offenses had occurred in the state of Ohio. The Court determined that the state constitution does not bar enforcement of such prosecutions provided that “some significant element” of the offense was committed within West Virginia. The Court noted the authority of other jurisdictions regarding the classification of sexual assault and robbery as that of a “continuing crime”, or an offense that is “transitory, on-going, or capable of repetition or continuation” permitting venue to lie in both the place where a defendant caused a victim to be fearful and the place where the defendant engaged in the prohibited sexual act. The Court held that sexual assault in the second degree and robbery may constitute such offenses in West Virginia.
However, the Court determined that it was improper for such determinations to be made by the jury based solely upon a “preponderance-of-the-evidence” standard. Based upon the disputed evidence as to the location of the essential elements of these offenses, and the Court’s determination that such facts must be proven to the jury beyond a reasonable doubt, the Court held that the appellant’s sexual assault and robbery convictions should be set aside. The Court affirmed the appellant’s convictions for the remaining offenses.
Affirmed in part, Reversed in part, and Remanded.
State v. Donley, No. 31649 – December 2, 2004 [Hancock County] – Albright, J. (Robert Twitty, Weirton Public Defender Office, for Appellant)
The appellant was convicted of eight counts of concealment of minor children under W. Va. Code, § 61-2-14d (1984). On appeal, the appellant alleged, inter alia, that the trial court had erroneously admitted an order of the family court into evidence. In this order, the family court judge made numerous inflammatory remarks concerning the appellant, characterizing her treatment of her children as “brainwashing”. The family court judge further characterized the appellant’s actions following her divorce as the most “blatant example of parental alienation” that the court had ever seen, and stated that the appellant’s “blinding hatred” of her ex-husband had “without a doubt, damaged these children severely”.
Held: The Court determined that the trial court had erroneously admitted into evidence a copy of an order of the family court which addressed the underlying facts surrounding the appellant’s case. The Court acknowledged that under some circumstances, orders from a family court might be relevant in criminal proceedings. However, the Court cautioned that such orders, emanating as they do from a judicial officer, must be carefully scrutinized to avoid the “inflammatory remarks and personal judgments” as reflected in the order addressed in this case.
Reversed and Remanded.
Lawyer Disciplinary Board v. Sigwart, No. 30727 – December 2, 2004 – PER CURIAM
The Lawyer Disciplinary Board (“LDB”) filed a petition requesting the suspension of the law license of the respondent attorney. The respondent was reprimanded following the May 2001 filing of a complaint with the West Virginia State Bar by a civil client. As part of the reprimand, the attorney executed a supervision agreement wherein he was required to be supervised in his current employment, to undergo counseling and therapy for personal issues and alcohol abuse, and to fully cooperate with any ethical complaints or requests for information from the Office of Disciplinary Counsel (“ODC”). Shortly thereafter, the supervising attorney reported that the attorney had not complied with the supervision agreement due to his failure to begin his Court-ordered counseling. The supervising attorney made a similar report a few months later, and noted that the attorney had failed to attend weekly meeting with the supervisor. The attorney also failed to respond to letters and telephone calls from the ODC pertaining to the matter.
Held: The Court examined the allegations in the petition and determined that the attorney was in contempt of the Court for failing to abide by the terms of the supervision agreement. Finding that the attorney had not taken the supervision agreement seriously, the Court agreed to the recommended sanction and ordered the immediate suspension of the attorney’s law license.
Law License Suspended.
State v. Davis, No. 31679 – December 2, 2004 (Greenbrier County) – PER CURIAM
The appellant was convicted in 1996 of the first degree murder of her daughter and attempting to injure her infant son. The state’s evidence at the appellant’s original trial indicated that the appellant had purportedly given her daughter a lethal amount of caffeine, resulting in the child’s death from caffeine poisoning. The state also alleged that the appellant intentionally injured her son by administering high doses of insulin, which caused serious brain damage to the child. The appellant’s convictions were affirmed by the Court in State v. Davis, 205 W. Va. 569, 519 S.E. 2d 852 (1999). Following the affirmation of her convictions, the appellant filed a number of motions with the trial court, requesting a new trial on the basis of new or after-discovered evidence. The trial court denied these motions, and the appellant filed this appeal.
The appellant asserted in her motion for a new trial that after her original trial, she had discovered (1) the existence of spectrographic evidence and tissue slides which allegedly indicated that her daughter had died of Reye’s Syndrome, and not of caffeine poisoning; (2) that genetic tests performed after the trial proved that her son’s condition was the result of a genetic disease and not insulin poisoning; and (3) that the state had provided the jury with false information on the level of caffeine in her daughter’s body.
Held: The Court held that the circuit court properly denied the motion for new trial. The Court addressed each of the appellant’s assertions, and held that none of the appellant’s allegations constituted “newly-discovered evidence”, because (1) some of the items in question were available for review prior to trial given the exercise of due diligence, (2) the appellant presented testimony at trial regarding the potential of genetic disease in the appellant’s son, and that any evidence of subsequent tests would merely be cumulative of such testimony, and (3) that the opinions of qualified experts could be considered to be false only if it were shown that “an expert’s testimonial opinion is diametrically opposite to the opinion which he actually and truthfully holds at the time.”
State v. Jones, No. 31590 – December 3, 2004 [McDowell County] – PER CURIAM
The appellant, a sixteen-year-old juvenile, was convicted of two counts of second degree murder and was sentenced to forty years imprisonment on each count. The appellant had allegedly participated in an abortive robbery in which a McDowell County couple was killed by a co-defendant. At trial, the state offered a statement taken from the appellant following a polygraph examination in which the appellant stated that he knew that there was a “contract” out on one of the victims and that his co-defendant intended to harm or kill the victim if he could not obtain money from the victim.
The appellant contended that this statement was obtained in violation of the appellant’s right to counsel and his right to remain silent. The appellant indicated that he had arrived for the polygraph examination with his attorney, and was advised by the polygraph examiner that the appellant’s attorney could not remain in the room with the appellant during the test. The appellant and his attorney executed waivers of the right to remain silent and the attorney left the premises after leaving her telephone number with the officers. The waiver forms did not, however, refer to any post-interrogation waiver. Following the polygraph test, the police advised the appellant that his exam results indicated deception and initiated a conversation with the appellant. The appellant indicated that he wished to speak to his lawyer, but was told that the attorney had left. The police continued the interrogation and obtained incriminating admissions from the appellant.
Held: The Court agreed with the appellant that the post-polygraph interrogation was conducted in violation of the appellant’s right to counsel and right to remain silent. The Court noted a distinction between post-polygraph interrogations where a defendant appears for a polygraph examination without counsel and chooses to speak to authorities [Wyrick v. Fields, 459 U.S. 42, 103 S. Ct. 394, 74 L.Ed. 2d 214 (1982)], and the instant case where the appellant appeared with his attorney and requested the attorney’s presence after the examination.
The Court refuted the state’s contention that the appellant had waived his right to counsel by noting that (1) the appellant was a juvenile; (1) the questioning had occurred in an area under police control; (3) the appellant was accompanied by counsel, who was refused permission to be present during the test; (4) neither the appellant nor the attorney was informed that a post-examination interrogation would occur, and the written waiver did not refer to such questioning; (5) the appellant requested the presence of counsel at the beginning of the interrogation before conceding to the questioning; and (6) the interrogation was initiated by the police.
Reversed and Remanded.
State v. Ferguson, No. 31720 – December 3, 2004 [Monongalia County] – PER CURIAM
The appellant was convicted of first-degree murder. On appeal, the appellant asserted, inter alia, that (1) the trial court had erroneously admitted hearsay statements made by the victim to friends of the victim, and (2) the trial court had improperly permitted the prosecution to comment on the appellant’s decisions to remain silent and request the advice of counsel.
During trial, the state introduced testimony from friends of the decedent regarding statements made by the decedent concerning a threat made by the appellant. The trial court determined, and the Court agreed, that such statements were admissible under the “excited utterance” hearsay exception in W. Va. Rules of Evidence 803(2). (The Court summarily brushed aside the appellant’s argument that such statements violated the confrontation clause dictates of Crawford v. Washington, ___ U.S. ___, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), by determining that Crawford did not apply to statements to “non-official and non-investigatorial” witnesses.).
During the appellant’s trial the state pointed out that the appellant had terminated a videotaped interview with the police by asserting his right to counsel. While noting that such evidence, comments or arguments are “fraught with danger” because of their tendency to improperly infer guilt, the Court observed that the appellant had chosen to introduce the videotape into evidence, thus permitting the state to address events displayed on the videotape.
The Court also determined (1) that cautionary remarks to appellant’s counsel regarding the cross-examination of a prosecution witness did not constitute reversible error; (2) that there was no evidentiary basis to instruct the jury on voluntary manslaughter; and (3) there was sufficient evidence to sustain the conviction.
VIRGINIA PUBLIC DEFENDER SERVICES
PUBLIC DEFENDER CONFERENCE
JUNE 10 & 11, 2005