Criminal Law Newsletter October 2004, Volumne 5, Issue 2

The Legislature is once more studying Public Defender Services (the tenth review, by my count, in nine years). This latest study is an update of the performance evaluation by the Joint Committee on Government Operations (see original performance evaluation on our web site at www.wvpds.org).

The Committee’s auditors have recommended that the Legislature impose: (1) an initial application fee; (2) a mandatory recoupment (repayment of costs of representation); and (3) a special fee applicable only to DUI clients, regardless of whether they are indigent. While not unreasonable in principle, the auditors estimate that as much as $5 million dollars can thereby be collected, presumably for the benefit of Public Defender Services (current recoupment does not go to this agency but is deposited to the general revenue fund for appropriation), to be gotten through the normal court collection process for other costs and fees.

The major difficulty here is collection. In 2003, the discretionary recoupment ordered by many Circuit Judges brought in $366,457; the most in any one year has been $412,568. To pretend that the recommended mandatory fees will swell the collections by nearly thirteen times is to engage in magical thinking. Attorneys appointed to represent indigents cannot refuse to perform their constitutional duties for nonpayment. No effective lien can be brought, nor does the client have an incentive to pay when he is going to jail anyway.

The danger in this thinking is illustrated by the abortive attempt to raise court fees on indigent clients during the 2003 Regular Session of the Legislature. PDS’ general revenue budget was initially cut by $2.5 million dollars based on an overly optimistic calculation of revenue generated; then the fees themselves were defeated. The final loss was approximately $1.7 million dollars.

This Committee is also exploring what appears to be an unconstitutional discrimination between in-state and out-of-state residents. The Senate Committee Chairman, Ed Bowman of Weirton, has requested that PDS gather information on which clients are West Virginia residents and which are from other states. Senator Bowman’s plan, as stated during the August legislative interim meetings, is to charge higher fees to those clients from out of state (assuming some form of the above fees are enacted).

Coupled with the unworkable line item restrictions in the current budget (see May, 2004 newsletter), cuts based on uncollectible revenues will throw the system into the sort of serious, chronic under-funding that we experienced in the late 1980's. Ultimately, further court action based on Jewell v. Maynard, 181 W. Va. 571, 383 S.E.2d 536 (1989) may be required. Once again, I suggest that you contact your local legislators. Should additional fees be imposed on indigent clients, there should at least be a moratorium on general revenue budget cuts to be sure what amounts are actually collected.

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· FOURTH AMENDMENT – AUTO SEARCH INCIDENT TO ARREST APPLIES WHETHER FIRST CONTACT WITH ARRESTEE IS INSIDE OR OUTSIDE VEHICLE

Thorton v. United States (No. 03-5165, May 24) (Rehnquist, C. J., delivered the opinion of the Court except as to footnote 4. Kennedy, Thomas, and Breyer, JJ., joined that opinion in full, and O’Connor, J., joined as to all but footnote 4. O’Connor, J., filed an opinion concurring in part. Scalia, J., filed an opinion concurring in the judgment, in which Ginsburg, J., joined. Stevens, J., filed a dissenting opinion, in which Souter, J., joined.)
http://supct.law.cornell.edu/supct/html/03-5165.ZO.html

In New York v. Belton, 453 U.S. 454 (1981), the Court held that when a police officer has made a lawful custodial arrest of an occupant of an automobile, the Fourth Amendment allows the officer to search the passenger compartment of that vehicle as a contemporaneous incident of arrest. At issue is whether Belton’s rule is limited to situations where the officer makes contact with the occupant while the occupant is inside the vehicle, or whether it applies as well when the officer first makes contact with the arrestee after the latter has stepped out of his vehicle.

Held: Belton governs even when an officer does not make contact until the person arrested has left the vehicle.

· SEC 1983 ACTION APPROPRIATE FOR EIGHTH AMENDMENT METHOD OF EXECUTION CLAIM

Petitioner was found guilty by a jury in 1979 of capital murder and sentenced to death. Due to years of drug abuse, petitioner has severely compromised peripheral veins, which are inaccessible by standard techniques for gaining intravenous access, such as a needle. Three days before his scheduled execution by lethal injection, petitioner filed a civil rights action against Alabama prison officials in District Court alleging that the use of a proposed “cut-down” procedure requiring an incision into his arm or leg to access his severely compromised veins constituted cruel and unusual punishment and deliberate indifference to his medical needs in violation of the Eighth Amendment.

The question presented is whether sec. 1983 is an appropriate vehicle for petitioner’s Eighth Amendment claim seeking a temporary stay and permanent injunctive relief. The Court held it is an appropriate vehicle, reversed the contrary judgment of the Eleventh Circuit, and remanded the case for further proceedings.

· FEDERAL HABEAS CORPUS – A FEDERAL COURT FACED WITH ALLEGATIONS OF ACTUAL INNOCENCE, WHETHER OF THE SENTENCE OR OF THE CRIME CHARGED, MUST FIRST ADDRESS ALL NONDEFAULTED CLAIMS FOR COMPARABLE RELIEF AND OTHER GROUNDS FOR CAUSE TO EXCUSE A PROCEDURAL DEFAULT

Respondent was convicted of felony theft and based on two prior convictions; he was also convicted as a habitual offender. The evidence presented at the penalty phase, however, showed that respondent had committed his second offense three days before his first conviction became final, meaning that under Texas law, he was not eligible for the habitual offender enhancement. No one, including defense counsel, noted the discrepancy-either at trial or on direct appeal.

Respondent first raised the issue in a request for state post-conviction relief, arguing that the evidence at the penalty hearing was insufficient to support the habitual offender conviction. The state court rejected his sufficiency of the evidence claim on procedural grounds, because he had not raised the issue earlier; the state court likewise rejected respondent’s claim that counsel had been ineffective for failing to object. Respondent renewed his sufficiency of the evidence and ineffective assistance claims in a subsequent federal habeas application. Conceding that respondent was not, in fact, eligible for the habitual offender enhancement, the State nevertheless argued that respondent had procedurally defaulted his sufficiency of the evidence claim. The District Court excused the procedural default because respondent was actually innocent of the enhanced sentence; it thus did not reach the ineffective assistance claim. The Fifth Circuit affirmed, holding that the actual innocence exception applies to non-capital sentencing procedures involving career offenders and habitual felony offenders.

Held: A federal court faced with allegations of actual innocence, whether of the sentence or of the crime charged, must first address all non-defaulted claims for comparable relief and other grounds for cause to excuse the procedural default. Because the District Court failed first to consider alternative grounds for relief urged by respondent, grounds that might obviate any need to reach the actual innocence question, the judgment was vacated.

Petitioner offered three separate bribes to a Minneapolis councilman to facilitate construction in the city and was charged with violating 18 U.S.C. 666(a) (2), which proscribes bribery of state and local officials of entities that receive at least $10,000 in federal funds. He moved to dismiss the indictment on the ground that §666(a) (2) is unconstitutional on its face for failure to require proof of a connection between the federal funds and the alleged bribe, as an element of liability.

Held: Section 666(a) (2) is a valid exercise of Congress’s Article I authority. Congress has authority under the Spending Clause to appropriate federal monies to promote the general welfare, Art. I, §8, cl. 1, and it has corresponding authority under the Necessary and Proper Clause, Art. I, §8, cl. 18, to see to it that taxpayer dollars appropriated under that power are in fact spent for the general welfare, and not frittered away in graft or on projects undermined when funds are siphoned off or corrupt public officers are derelict about demanding value for dollars.

Respondent was charged with murder of her husband. Her theory at trial was that her husband had tried to strangle her during an argument, but that she had escaped, got a shotgun from the bedroom, and killed him out of fear for her life. Fingernail marks were found on her neck after the shooting. She testified that her husband had been abusive, and a defense expert opined that she suffered from Battered Women’s Syndrome. The State countered with forensic evidence showing that the fingernail marks were not her husband’s and may have been self-inflicted, and with the testimony of a 911 operator who overheard respondent tell her husband she had shot him because she would no longer tolerate his behavior.

Under California law, the element of malice for murder is negated if one kills out of fear of imminent peril. Where that fear is unreasonable (but nevertheless genuine), it reduces the crime from murder to voluntary manslaughter-a doctrine known as “imperfect self-defense.” At trial, an incorrect imminent-peril instruction with "slayer as a reasonable person" language was given.

The Court found in a criminal trial, the State must prove every element of the offense, and a jury instruction violates due process if it fails to give effect to that requirement. Nonetheless, not every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation. The question is “ ‘whether the ailing instruction … so infected the entire trial that the resulting conviction violates due process.’ ” “ ‘[A] single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.’ ” If the charge as a whole is ambiguous, the question is whether there is a “ ‘reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution.”

The Ninth Circuit held the erroneous instruction “eliminated” respondent’s imperfect self-defense claim, and that the state court unreasonably applied federal law.

Held: reversed. The Ninth Circuit failed to give appropriate deference to the state court’s decision. The state court did not ignore the faulty instruction but merely held that the instruction was not reasonably likely to have misled the jury given the multiple other instances where the charge correctly stated that respondent’s belief could be unreasonable. Given three correct instructions and one contrary one, the state court did not unreasonably apply federal law when it found that there was no reasonable likelihood the jury was misled.

· STATE COURT’S FAILURE TO CONSIDER JUVENILE’S YOUTH AND INEXPERIENCE IN APPLYING THE MIRANDA CUSTODY TEST WAS NOT AN UNREASONABLE APPLICATION OF CLEARLY ESTABLISHE FEDERAL LAW

Respondent helped another person try to steal a truck, leading to the death of the owner of the truck. About a month after the shooting, an investigating officer left word at respondent's house and also contacted respondent’s mother at work with the message that she wished to speak with the respondent. Respondent was 17 years old at the time. His parents brought him to the station and waited in the lobby during the interview. Respondent made admissions during the interview. He was not given Miranda warnings. At the conclusion of the interview, he went home with his parents.

A few months later, respondent was charged with first-degree murder and attempted robbery. The trial court denied respondent's motion to suppress his statements from the interview finding the interview was non-custodial. Noting that the U.S. Supreme Court has considered a suspect's juvenile status when evaluating the voluntariness of confessions and the waiver of the privilege against self-incrimination, the Ninth Circuit Court of Appeals reversed the conviction on appeal from denial of habeas relief. The Ninth Circuit held that the state court erred in failing to account for respondent's youth and inexperience when evaluating whether a reasonable person in his position would have felt free to leave the interview and that such error resulted in a decision that involved an unreasonable application of clearly established federal law.

Held: reversed. Citing various facts of the case, the Court found that fair-minded jurists could disagree over whether the respondent was in custody. Noting that Miranda's objective custody test is conceptually different from the line of cases from other contexts considering age and experience, the Court found the state court's failure to consider the respondent's age did not provide a proper basis for finding that the state court's decision was an unreasonable application of clearly established law.

At respondent's guilty plea colloquy in Federal District Court, the court failed to mention (though the written plea agreement did say) that he could not withdraw his plea if the court did not accept the Government’s recommendations. Respondent claims the right to withdraw his plea of guilty as a consequence of the District Court’s failure to give one of the warnings required by Federal Rule of Criminal Procedure 11. Because the claim of Rule 11 error was not preserved by timely objection, the plain-error standard of Rule 52(b) applies, with its requirement to prove effect on substantial rights. The question presented is what showing must thus be made to obtain relief for an unpreserved Rule 11 failing.

Held: to obtain relief for an unpreserved Rule 11 failing, a defendant must show a reasonable probability that, but for the error, he would not have entered the plea.

Petitioner pleaded guilty to the kidnapping of his estranged wife. The facts admitted in his plea, standing alone, supported a maximum sentence of 53 months. The State recommended a sentence within the standard range of 49-53 months. Under state law, a judge may impose a sentence above the standard range if he finds "substantial and compelling reasons justifying an exceptional sentence." After hearing the estranged wife's description of the kidnapping, the judge rejected the State’s recommendation and imposed an exceptional sentence of 90 months-37 months beyond the standard maximum. He justified the sentence on the ground that petitioner had acted with “deliberate cruelty,” a statutorily enumerated ground for departure in domestic-violence cases.

The petitioner objected and the judge conducted a 3-day bench hearing featuring testimony from petitioner, the estranged wife, their son, a police officer, and medical experts. After the hearing, he issued 32 findings of fact, adhering to his initial determination of deliberate cruelty.

Petitioner appealed, arguing that this sentencing procedure deprived him of his federal constitutional right to have a jury determine beyond a reasonable doubt all facts legally essential to his sentence. The Court found this case required them to apply the rule expressed in Apprendi v. New Jersey, 530 U.S. 466 (2000): “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”

Held: because the facts supporting petitioner's exceptional sentence were neither admitted by petitioner nor found by a jury, the sentence violated his Sixth Amendment right to trial by jury.

· MIDSTREAM RECITATION OF WARNINGS AFTER INTERROGATION AND UNWARNED CONFESSION FOUND TO VIOLATE MIRANDA

Missouri v. Seibert, (No. 02-1371, June 28) (Justice Souter announced the judgment of the Court and delivered an opinion, in which Justice Stevens, Justice Ginsburg, and Justice Breyer join.)
http://supct.law.cornell.edu/supct/html/02-1371.ZO.html

This case tests a police protocol for custodial interrogation that calls for giving no warnings of the rights to silence and counsel until interrogation has produced a confession. Although such a statement is generally inadmissible, since taken in violation of Miranda v. Arizona, 384 U. S 436 (1966), the interrogating officer follows it with Miranda warnings and then leads the suspect to cover the same ground a second time. The question here is the admissibility of the repeated statement. Justice Souter, joined by Justice Stevens, Justice Ginsburg, and Justice Breyer, concluded that because this midstream recitation of warnings after interrogation and unwarned confession could not effectively comply with Miranda’s constitutional requirement, a statement repeated after a warning in such circumstances is inadmissible.

· FAILURE TO GIVE MIRANDA WARNINGS DOES NOT REQUIRE SUPPRESSION OF PHYSICAL FRUITS OF UNWARNED BUT VOLUNTARY STATEMENTS.

United States v. Patane, (No. 02-1183, June 28) (Justice Thomas announced the judgment of the Court and delivered an opinion, in which The Chief Justice and Justice Scalia join)
http://supct.law.cornell.edu/supct/html/02-1183.ZO.html

At issue in this case is whether a failure to give a suspect the warnings prescribed by Miranda v. Arizona, 384 U.S. 436 (1966), requires suppression of the physical fruits of the suspect’s unwarned but voluntary statements. Justice Thomas, joined by The Chief Justice and Justice Scalia, concluded that because the Miranda rule protects against violations of the Self-Incrimination Clause, which, in turn, is not implicated by the introduction at trial of physical evidence resulting from voluntary statements, a failure to give a suspect Miranda warnings does not require suppression of the physical fruits of the suspect's unwarned but voluntary statements.

Respondent was arrested for harassing his ex-girlfriend. He was released on bond, subject to a temporary restraining order that prohibited him from contacting her. He apparently violated the restraining order by attempting to telephone her. The Colorado Springs police began investigating, were advised by the ATF that respondent illegally possessed a firearm, and proceeded to respondent’s residence where respondent was arrested for violating the restraining order. One of the officers attempted to advise respondent of his Miranda rights but got no further than the right to remain silent, at which point respondent interrupted, asserting that he knew his rights, and neither officer attempted to complete the warning. One of the officers then asked respondent about the firearm. Respondent was initially reluctant to discuss the matter, but after one of the officers persisted, he told him that the pistol was in his bedroom and gave the officer permission to retrieve it.

Respondent was indicted for possession of a firearm by a convicted felon and the firearm was suppressed by the District Court, reasoning that the officers lacked probable cause to arrest respondent for violating the restraining order. The Court of Appeals reversed the District Court’s ruling with respect to probable cause but affirmed the suppression order on respondent’s alternative theory that the gun should be suppressed as the fruit of an unwarned statement. The Supreme Court reversed and remanded.

· CONVICTION FOR REFUSING TO IDENTIFY ONESELF DURING TERRY STOP DID NOT VIOLATE FOURTH OR FIFTH AMENDMENTS

Petitioner was arrested and convicted for refusing to identify himself to a police officer during an investigative stop allowed by Terry v. Ohio, 392 U.S. 1 (1968). The officer approached petitioner and explained that he was investigating a report of a fight. The officer asked for identification 11 times and was refused each time. After warning petitioner that he would be arrested if he continued to refuse to comply, the officer placed him under arrest for “willfully resist[ing], delay[ing], or obstruct[ing] a public officer in discharging or attempting to discharge any legal duty of his office” in violation of Nevada law. The government reasoned that petitioner had obstructed the officer in carrying out his duties under a Nevada "stop and identify" statute.

Held: the conviction did not violate the petitioner's Fourth or Fifth Amendment rights. The Court noted a case may arise where there is a substantial allegation that furnishing identity at the time of a stop would have given the police a link in the chain of evidence needed to convict the individual of a separate offense. In that case, it can then be considered whether the Fifth Amendment privilege applies, and, if the Fifth Amendment has been violated, what remedy must follow. The Court found they did not need to resolve those questions here.

· FEDERAL HABEAS CORPUS – DISTRICT’S COURT’S FAILURE TO ADVISE PRO SE PETITIONER REGARDING STAY AND ABEYANCE PROCEDURE DID NOT MAKE DISMISSAL OF HABEAS PETITIONS IMPROPER

Under Rose v. Lundy, 455 U.S. 509 (1982), federal district courts must dismiss “mixed” habeas corpus petitions-those containing both unexhausted and exhausted claims. At issue in this case is whether the District Court erred by dismissing, pursuant to Rose, a pro se habeas petitioner’s two habeas petitions without giving him two particular advisements. The Ninth Circuit held that if a pro se prisoner files a mixed petition, the district court must give two specific warnings regarding the stay-and-abeyance procedure: first, that it would not have the power to consider motions to stay the petitions unless he opted to amend them and dismiss the then-unexhausted claims, and, second, if applicable, that federal claims would be time-barred, absent cause for equitable tolling, upon his return to federal court if he opted to dismiss the petitions without prejudice and return to state court to exhaust all of his claims.

Held: without addressing the propriety of this stay-and-abeyance procedure, the Supreme Court held the District Court's failure to provide these warnings did not make the dismissals improper.

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STANDARDS FOR POST-CONVICTION DNA TESTING

State ex rel. Richey v. Hill, No. 31676 – May 6, 2004 – Davis, J.

Petitioner was convicted in 1979 of third degree sexual assault. He was placed on probation for five years, and his conviction was affirmed by the Court. Petitioner launched numerous post-conviction attempts at both the state and federal level to overturn his conviction. (One of the grounds asserted in these proceedings concerned the involvement during the petitioner’s trial of former police chemist Fred Zain). He received an omnibus habeas corpus hearing in the circuit court of Kanawha County in 1996, but was denied habeas corpus relief. Two years later, the circuit court of Kanawha County denied a coram nobis petition and a petition requesting DNA testing of items of evidence used at the petitioner’s trial, determining that the petitioner’s claims were barred by the doctrine of res judicata.

The petitioner subsequently filed a similar motion for DNA testing in 2002, which was refused on res judicata grounds. The petitioner eventually filed for a writ of mandamus with the Supreme Court of Appeals, seeking to require either the State Police or the Kanawha County Prosecuting Attorney’s Office to conduct DNA testing on the items of evidence.

Held: The Court denied the petition for writ of mandamus. The Court first observed that the petitioner had failed to meet the “heavy” burden of showing that he was entitled to mandamus. The Court held that the petitioner, who was not incarcerated throughout these proceedings, could not demonstrate that he was legally entitled to DNA testing. The Court noted that the entitlement to DNA testing enunciated in In re West Virginia State Police Crime Laboratory, 190 W. Va. 321, 438 S.E. 2d 501 (1993) (Zain I) applied only to inmates who were incarcerated and wished to consent to DNA testing.

The Court also determined that the petitioner had no clear legal right to DNA testing because his assertion was barred by res judicata, and held that the previous findings of res judicata by the circuit courts were in and of themselves binding upon the Court.

While denying the petitioner the relief he sought, the Court took advantage of the petitioner’s arguments to set forth in a new syllabus point several specific requirements that an inmate must meet in order to be awarded post-conviction DNA testing. Chief among these requirements, and inapplicable to the petitioner’s claim, is that a petitioner seeking such relief must be incarcerated when the request is made.

[Note: The Court noted in footnote #16 that due to the passage of W.Va. Code § 15-2B-14 during the 2004 Regular Legislative Session, the opinion in this case controls only those post-conviction DNA requests filed prior to June 11, 2004, the effective date of the new legislation.]

Writ of Mandamus Denied.

· EXECUTIVE PARDON OF FELONS AND RIGHT TO BEAR ARMS

Perito v. The County of Brooke, No. 31544- May 6, 2004 – Davis, J.

The plaintiff was convicted in 1992 of two felony counts of malicious wounding for shooting and striking the victim with a vehicle. After serving one year of confinement, the plaintiff was subsequently placed on probation. In November 1996, the plaintiff was granted a full and unconditional pardon for these acts by Governor Gaston Caperton. Three years later, the plaintiff filed a declaratory judgment action in Brooke County, seeking a declaration from the court that the full and unconditional pardon had restored various civil rights, including the right to possess firearms.

The respondent, Brooke County, conceded that the majority of the plaintiff’s civil rights had been restored by the pardon, but asserted that the pardon had not restored the right to possess a firearm guaranteed by Article III, § 22 of the Constitution of West Virginia. The County asserted that the plaintiff was obligated to follow the statutory restoration procedures set forth in W. Va. Code, § 61-7-7 (2000) in order to receive the restoration of his right to own and possess a firearm. The plaintiff filed a motion for summary judgment, which the court denied. The court then certified the issue to the Court.

Held: The Court agreed with the circuit court and held that the grant of an unconditional pardon does not automatically restore the right to possess a firearm to a previously convicted felon. Rather, such persons are required to comply with the procedures set forth in W. Va. Code § 61-7-7(c), which require the filing of a petition, an evidentiary hearing, and the exercise of judicial discretion.

Certified Question Answered.

· ELEMENTS OF CHILD ABUSE – “SUBSTANTIAL INJURY” NOT REQUIRED

State v. Jackson, No. 31427 – May 7, 2004 – Per Curiam

The appellant was the owner/operator of a private school in Monroe County. He was charged with two counts of malicious wounding and two counts of child abuse by a custodian following two separate incidents with two students at the school.

Prior to trial, the appellant moved for dismissal of the child abuse charges, arguing that the statute was vague and did not define the term “substantial injury”. The trial court did not rule on this motion. The appellant was convicted of each of these felony offenses and a single misdemeanor count of assault.

On appeal, the appellant asserted that the lower court had erred in failing to grant his motion to dismiss the child abuse charges on the grounds that the statute was ambiguous, in that it did not define “substantial injury”.

Held: The Court denied the appellant’s request and affirmed the convictions. The Court noted that the phrase “substantial injury” is not included in the language of W. Va. Code § 61-8D-3 (1996). In addition, the Court observed that the appellant had not raised ambiguity or vagueness arguments during the discussion of jury instructions, and had specifically approved an instruction addressing the relevant language of § 61-8D-3.

Noting that there was no ambiguity in the language of the statute, and that the appellant had failed to object to the instructions regarding § 61-8D-3, the Court held that there was no error and affirmed the conviction.

Affirmed.

· DOUBLE JEOPARDY

State v. Williams, # 31569 – May 13, 2004 – Per Curiam

In February 1999, the appellant accompanied a fifteen year old female from her home in Nicholas County to his apartment in Kanawha County. (The girl had previously indicated to the appellant that she was having “difficulties” with her parents and wished to run away from her home.) At the apartment, the appellant engaged in sexual intercourse with the female. Approximately ten days later, the appellant took the female back to her home in Nicholas County. Shortly after returning home, the female related the details of her liaison to her parents, who contacted the state police. Pursuant to the investigation, the female’s stepmother executed an agreement whereby a wiretap would be placed on the telephone at her house. When the appellant next called the home, his conversation with the female was recorded. The appellant made various incriminatory statements during the recorded conversation.

The appellant was indicted in Nicholas County for felony abduction, and was tried and convicted in December 1999. He was sentenced to a one to ten year term of imprisonment for this offense. In September 2000, the appellant was indicted in Kanawha County for two counts of third degree sexual assault. During the trial on these charges in October 2002, the State presented the taped conversations between the appellant and the female. The appellant was convicted and sentenced to two consecutive terms of one to five years imprisonment. On appeal, the appellant asserted (1) that his abduction conviction in Nicholas County and his sexual assault convictions in Kanawha County constituted double jeopardy; (2) that the trial court erred in admitting the taped phone conversation; and (3) that he had not received credit for time spent incarcerated on the charges.

Held: The Court reviewed each of these assertions and affirmed the appellant’s convictions.

The Court first observed that the appellant’s multi-county convictions did not violate double jeopardy. While acknowledging that the jury in Nicholas County was required to find an “immoral purpose”, or intent, in the abduction (i.e., sexual assault), the Court noted that “the jury was not required to find that the appellant actually committed that offense as a prerequisite to finding [the appellant] guilty of abduction.” The Court similarly noted that the appellant had not received multiple punishments for the same act, noting that convictions for abduction and sexual assault each required proof of a separate fact that the other did not require.

The Court denied the appellant’s claim that use of the taped telephone conversation violated the West Virginia Wiretapping and Electronic Surveillance Act, as codified in West Virginia Code § 62-1D-1, et. seq.. The Court noted that W. Va. Code § 62-1D-3(c) (2) (and its federal counterpart, 18 U.S.C. § 2511 (2) (d)) contain an exception against the intentional interception of telephone conversations where one of the parties consents to the interception. The Court determined that the minor female had clearly consented to the recording, brushing aside the appellant’s argument that the custodial parent of a minor child must give consent on the child’s behalf.

Finally, the Court denied the appellant’s request for credit for 640 days spent in jail awaiting trial on the Kanawha County charges. The Court held that the appellant was not entitled to the requested credit because his incarceration was the result of the sentence imposed for the abduction conviction, and not because he was unable to post bail on the Kanawha charges.

Affirmed.

· OUT-OF-HOME PLACEMENT OF STATUS OFFENDERS

State v. Larry M., # 31587 – May 27, 2004 – Per Curiam

Appellant was the subject of a truancy petition filed by the Harrison County truancy officer. The petition alleged that the appellant had missed sixty-six days of school between August 2000 and May 2001. The appellant was granted an improvement period in July of 2001, but the State moved to revoke the improvement period in March 2002, citing the appellant’s continuing failure to attend school and maintain passing grades. After reviewing the appellant’s medical records and a court-ordered psychological evaluation, the court subsequently ordered the appellant to undergo counseling and further ordered the DHHR to provide in-home services. In March 2003, the State moved to revoke the appellant’s in-home services and placement in an out-of-home setting, citing the appellant’s non-cooperation with offered services and his continuing failure to attend school. At a hearing on the State’s motion, and over the objection of appellant’s counsel, the State introduced the testimony of a youth services worker regarding the appellant’s continuing truancy. The court also considered the testimony of other witnesses, including the appellant and his mother, who failed to provide sufficient explanations for the appellant’s continued absences.

Based upon the evidence produced at this hearing, the court ordered that the appellant be placed outside his home. The appellant appealed, contending that the court had erred in finding no less restrictive alternative should be granted, in failing to make adequate findings of fact, and by disposing of the case when no formal order of adjudication had been entered. The appellant also contested the court’s decision to allow the number of his absences to be admitted into evidence by witnesses other than the truancy officer.

Held: The Court considered each of these assertions and affirmed the lower court’s decision. The Court noted (1) that the trial court’s final disposition order set forth sufficient specific findings of fact to justify its conclusion that out-of-home placement was necessary; (2) that the appellant’s inability to abide by the terms of an improvement period, coupled with his subsequent failure to cooperate with in-home services and counseling, demonstrated that the court had followed the least restrictive alternative in placement; (3) that while no written order of adjudication had been entered, the court had orally adjudicated the appellant as a status offender prior to disposition in the matter; and (4) that because the decision to place the appellant out-of-home was not based entirely upon hearsay evidence, the constitutional rights enumerated in State v. Damian R., 214 W. Va. 610, 591 S.E. 2d 168 (2003) were not implicated.

Affirmed.

· EVIDENCE WARRANTING TERMINATION OF PARENTAL RIGHTS

In Re: Tiffany P., et. al., # 31608 – May 28, 2004 – Per Curiam

The DHHR filed an abuse/neglect petition in February 2002, alleging that the appellant, Bobby F., had abused and/or neglected his children. The DHHR had provided services to the appellant’s family in connection with an unrelated abuse/neglect proceeding. During the provision of these services, the DHHR had observed bruises and bite marks on the children, and had noticed that the home was in poor condition. The Department subsequently learned that the appellant had been diagnosed with paranoid schizophrenia, and while “off his medication” had demonstrated inappropriate behavior on separate occasions in the presence of the children. Additionally, the appellant and the mother of the children were arrested following a high-speed chase in early February 2002, which apparently prompted the filing of the petition herein.

Following an adjudicatory hearing, the court determined that the children were abused and neglected. At the disposition hearing in October 2002, neither the DHHR nor the guardian for the children recommended termination of the appellant’s parental rights, but each recommended supervised visitation. The court disregarded these suggestions, terminated the appellant’s parental rights, and denied the appellant post-termination visitation.

The appellant appealed, alleging that the evidence did not support termination of his parental rights, and that the court had improperly denied post termination visitation.

Held: The Court agreed with the appellant that the evidence did not warrant termination of the appellant’s parental rights. The Court noted (1) that the DHHR had not recommended termination; (2) the guardian ad litem had not recommended termination; (3) the Children’s Case Plan had noted the “strong bond” between the appellant and his children, and had recommended supervised visitation in lieu of termination; and (4) that the condition in the home had been resolved. The Court noted that there was “no evidence in the record that Bobby F. abused his children”, citing the testimony of a DHHR worker that the bruises and bites marks observed on the children had been inflicted by another child.

Determining that the court had not chosen the least restrictive alternative, the Court reversed the termination of the trial court and remanded the case for a determination regarding supervised visitation.

Reversed and Remanded.

ASSESSMENT OF COSTS OF JURY FOLLOWING REVERSAL OF CONVICTION

State v. Myers, # 31610 – June 16, 2004 – Davis, J.

In 1996, the appellant was convicted after a jury trial of four felony sexual offenses. Following the denial of his direct appeal, the appellant filed a petition for habeas corpus. The circuit court denied the petition, but the Supreme Court of Appeals determined that the appellant had received ineffective assistance of counsel during his trial and reversed the conviction. (State ex rel Myers v. Painter, 213 W. Va. 32, 576 S.E. 2d 277 (2002)).

On remand, the appellant pleaded guilty to four reduced charges. Following his plea, the appellant was assessed various court costs, including $ 1,012.54 for the cost of the jury at his initial trial. The appellant appealed this assessment, arguing that since the initial trial did not result in a “conviction”, he could not be assessed costs for the jury under W. Va. Code § 52-1-17(c)(1) (2001).

Held: The Court noted that the language of § 52-1-17(c)(1) provides that “anytime” jurors have been required to report for “any scheduled matter”, a court is under a mandatory duty to assess costs. The Court adopted the rationale that the original trial and the eventual plea constituted “one continuing prosecution”, despite the reversal of the original judgment. The Court favorably cited authority from other states, including a line of cases permitting the imposition of such costs following the declaration of a mistrial and subsequent conviction.

Affirmed.

COMMENTS BY JUDGE TO JURY REGARDING CONSTITUTIONAL RIGHTS OF DEFENDANT

State v. Keaton, # 31575 – June 17, 2004 – Starcher, J.

The appellant was charged with malicious wounding. At the commencement of his trial, and with the consent of the appellant, the court did not seat an alternate juror. A prospective juror, who was eventually selected for the trial, indicated during voir dire that she had a previously scheduled medical appointment later in the week. The issue arose two days later when it became apparent that the trial would not be completed before the juror’s scheduled appointment. The appellant was questioned by the court as to whether he would consent to allow his case to be tried by an eleven-person jury, but the appellant elected to exercise his constitutional right to a twelve-person jury.

The court then inquired of the appellant and his counsel whether there was an objection to the court’s inquiry of the juror as to the possibility of re-scheduling the appointment. The appellant’s counsel indicated that the appellant had no objection to the request. The court then spoke to the juror outside the presence of the appellant, indicating that the appellant was “pressing” his right to a twelve-person jury. Following this colloquy, the juror re-scheduled her appointment, the jury deliberated and the appellant was convicted.

On appeal, the appellant contended that the court’s statements were prejudicial in that they amounted to a comment by the court upon the appellant’s exercise of a constitutional right, and may have permitted members of the jury to draw negative inferences about the appellant’s exercise of this right.

Held: The Court noted that it had previously found error in comments regarding the exercise of other constitutional rights, such as a defendant’s assertion of the right to remain silent. The Court cited cases from Colorado and other jurisdictions to support the appellant’s proposition that such comments are prejudicial. The Court noted that the consequence of the judge’s remark that the appellant was “pressing” his constitutional right to a twelve-person jury “was, at least, a significant inconvenience to either the juror or the entire jury.” The Court stated that such “inadvertent but unnecessary remarks” might have caused jurors to feel hostile or angry at the appellant, and thus may have had the potential to affect their deliberations.

Reversed and remanded.

CONSPIRACY INSTRUCTION – COMMENT BY JUDGE

State v. Rogers, # 31566 – June 17, 2004 – Per Curiam

The appellant and another individual, David Dowler, became involved in an altercation with two men in a parking lot. When the two men retreated to a nearby apartment belonging to one of the men, the appellant and Dowler followed and pushed open a screen door to gain entry to the apartment. They were forced out of the apartment, and after making another attempt to gain entry to the apartment, were arrested by the police.

The appellant was indicted for burglary and conspiracy to commit burglary, based upon the State’s contention that the appellant and Dowler had broken and entered the apartment with the intent to commit an assault upon the men. The conspiracy charge was predicated upon the State’s contention that the appellant and Dowler had conspired to commit the burglary and had committed an overt act in furtherance of the conspiracy, i.e., the actual entry into the home. The appellant was convicted of both charges in June 2002.

On appeal, the appellant contended (1) that the Circuit Court committed error in instructing the jury upon the conspiracy to commit burglary charge, (2) that, under the circumstances of this case, the appellant's convictions of burglary and conspiracy to commit burglary violated his constitutional protections against Double Jeopardy and (3) that the Circuit Court committed error by improperly commenting upon the evidence during the trial.

Held: The Court reviewed the appellant’s assertions and denied the appellant’s claims. The appellant’s objection to the conspiracy charge was based upon his assertion that the jury instruction suggested to the jury that a conspiracy is automatically shown anytime two or more individuals commit an unlawful act together. The Court noted, however, that the appellant had not objected to the instruction, and that the instruction was not insufficient under a “plain error” analysis. The Court reiterated the language of State v. Less, 170 W. Va. 259, 294 S.E. 2d 62 (1981), noting that “the substantive crime which is the object of the conspiracy can be proven as the conspiracy’s overt act.”. The Court noted that the separation of the actual burglary from the agreement to commit burglary between the appellant and Dowler emphasized the differing elements of burglary and conspiracy and therefore negated the appellant’s double jeopardy claim.

The Court also refused the appellant’s argument that the trial court’s comments that the appellant and Dowler were “damn fools” unfairly prejudiced the defense. The Court employed a “plain error” analysis to this assertion as well, noting that the jury was instructed that comments by the court could not be considered as a comment upon the weight of the evidence. The Court also noted that the appellant’s attorney had adopted this description during his closing arguments, arguing that only a “damn fool” would have attempted the actions attributed to the appellant.

Affirmed.

NECESSARY FINDINGS FOR OUT-OF-HOME PLACEMENT OF JUVENILE STATUS OFFENDER

State v. Steven H., # 31601 – June 17, 2004 – Per Curiam

In February 2000, the appellant’s mother filed a status offender petition alleging that the appellant, who was twelve years of age at that time, was behaving inappropriately and missing school. The appellant admitted delinquency as a status offender and was placed on a one-year improvement period. However, the appellant continued to miss school and maintain proper behavioral standards, which resulted in the filing of a petition to revoke the improvement period. The court, after reviewing the appellant’s history with various services, ordered the appellant to attend school in Maryland. The appellant was apparently successful in this placement, and following the 2001-2002 school year the appellant was returned to his home and, without objection, was placed on probation. The appellant subsequently tested positive for drugs and was suspended from school, and later admitted these violations before the court. The appellant’s probation was revoked and, based on a determination that no equivalent facility existed in West Virginia, the appellant was ordered to a school in Winchester, Virginia.

On appeal, the appellant asserted (1) that the lower court had failed to make sufficient findings of fact and conclusions of law to justify out-of-home placement; (2) that the lower court had failed to accord the appellant with the least restrictive alternative regarding disposition; and (3) that the lower court erred by placing him on probation upon his return from the school in Maryland.

Held: The Court reviewed the appellant’s assertions and affirmed the trial court’s rulings. The Court determined (1) that the written findings by the lower court, and oral discussions regarding placement noted on the record, constituted sufficient findings of fact and conclusions of law to justify out-of-home placement; (2) that the history of the case demonstrated that various less restrictive alternatives had been unsuccessful and that out-of-home placement was the least restrictive alternative available to the lower court under the circumstances; and (3) that the appellant’s failure to object to or challenge the probation order in a timely fashion prohibited review of the order.

Affirmed.

MANDATORY JOINDER OF CHARGES IN INDICTMENT

State ex rel. Blaney v. Reed, # 31701 – June 18, 2004 – Maynard, C. J.

The petitioner was charged in May 2003 in a six-count indictment which alleged a number of sexual offenses allegedly committed by the petitioner against multiple victims between May 2002 and January 2003. The lower court subsequently dismissed five counts of the indictment in July 2003 on the grounds that the counts did not provide sufficient notice of the acts alleged against the appellant. Shortly thereafter, the prosecuting attorney dismissed the remaining count.

One month later, a new indictment was returned charging the petitioner with nineteen similar counts against two victims. The petitioner filed a motion for dismissal of the indictment, arguing that the new indictment violated the mandatory joinder provisions of Rule 8(a)(2) of the West Virginia Rules of Criminal Procedure. The court dismissed three of the counts on statute of limitation grounds, but permitted the remaining counts to be set for trial. The petitioner filed for a writ of mandamus with the Supreme Court of Appeals to compel the trial court to dismiss the indictment.

Held: After embarking on a history of the development of Rule 8(a)(2), The Court noted that the petitioner was not entitled to mandamus because he had no clear legal right to the relief sought. The rationale for the Court’s opinion was based in the Court’s interpretation of Rule 8(a)(2) to require that all such offenses be prosecuted in a single “prosecution”. Interpreting “prosecution” to mean the actual commencement of a trial, the Court noted that the petitioner had not been “prosecuted” under the original indictment. Therefore, because jeopardy had not yet attached, the petitioner was not “prosecuted” under the original indictment, and thus there was no violation of Rule 8(a)(2).

Writ of mandamus denied.

HABEAS CORPUS – NECESSITY OF FACTUAL ALLEGATIONS

Markley v. Coleman, # 31509 – June 18, 2004 – Per Curiam

The appellant was convicted in 1992 of several felony offenses. His request for an appeal of his convictions was denied by the Supreme Court of Appeals without discussion in October 1993. The appellant, with the assistance of counsel, filed a habeas corpus petition. An omnibus hearing on the petition was held in December of 1998, and in May of 1999, the circuit court denied the petition. The appellant’s appeal of this denial was refused by the Court in March of 2000.

In April of 2002, the appellant filed a second habeas corpus petition, wherein the appellant re-asserted the same grounds alleged in the earlier petition. The appellant also included a new assertion of ineffective assistance of counsel by his habeas corpus counsel. In June of 2002, the circuit court summarily denied the petition without a hearing, finding that the assertions in the petition had been previously adjudicated in the prior habeas proceeding. The court also erroneously stated that the appellant had failed to raise the issue of ineffective assistance of counsel at the omnibus hearing.

Held: The Court noted the circuit court’s erroneous finding that the appellant had failed to raise the issue of ineffective assistance of counsel. However, the Court observed that the appellant had failed to provide adequate factual support for this allegation in the second habeas petition. Because of this failure, the Court affirmed the circuit court’s decision to dismiss the petition, but noted that the dismissal was without prejudice, thus leaving the appellant free to re-file his petition with adequate factual support for his allegation of ineffective assistance of counsel.

Affirmed.

DEFENDANT’S TESTIMONY DURING TRIAL AS BASIS FOR SENTENCING

State v. Jones, # 31546 – June 22, 2004 – Per Curiam

Appellant was convicted of two misdemeanor offenses involving the receipt of a stolen all-terrain vehicle (“ATV”). During trial, the appellant steadfastly maintained his innocence, denying any criminal activity. The appellant also refused to admit responsibility at his sentencing hearing. The trial court, in considering the appellant’s motion for probation, noted that the appellant had failed to take responsibility for his actions. The appellant was placed on probation, with a condition that he serve 100 days of jail time at the end of the probation period. The court noted that it would be willing to reconsider the imposition of the jail term if the appellant chose to “come clean” as to the criminal acts.

The appellant asserted on appeal that the trial court’s request of an admission of criminal responsibility in order to avoid the imposition of the 100-day jail term was a violation of the appellant’s Fifth Amendment right against self-incrimination.

Held: The Court denied the appellant’s assertion and affirmed the sentence imposed. The Court first observed that the 100-day jail term was not a specific sentence, but was a statutorily-approved condition of probation. The Court went on to note that it had previously held that a defendant’s remorse or lack thereof could be considered as a factor at sentencing. Further, the Court indicated that a trial court may consider a defendant’s false testimony at trial when determining his or her sentence.

The Court therefore interpreted the trial judge’s comments as an indication that the judge did not believe that the appellant had been completely candid during his trial testimony. The Court found no Fifth Amendment violation and affirmed the sentence.

Affirmed.

INVITED ERROR IN LESSER-INCLUDED OFFENSE INSTRUCTION

State v. Tidwell, # 31595 – June 28, 2004 – Per Curiam

Appellant was indicted for first degree robbery and assault during the commission of a felony. At trial, the jury was permitted to consider petit larceny as a lesser-included offense to first degree robbery, and unlawful assault as a lesser-included offense of assault during the commission of a felony. The jury convicted the appellant of each of the lesser charges.

On appeal, the appellant assigned as error the inclusion of each of these lesser-included offenses. He asserted that because he was convicted of petit larceny rather than robbery, there was no underlying felony upon which to sustain a conviction for either assault during the commission of a felony or unlawful assault.

Held: The Court declined to address the merits of the appellant’s allegations. The Court noted that any error in the inclusion of the lesser-included offense instructions was invited, because the appellant’s trial counsel had specifically requested the inclusion of the instruction, and had clearly not objected to their inclusion.

Affirmed.

SENTENCING - SATISFACTION OF PRETRIAL DIVERSION AGREEMENT

State v. Maisey, # 31588 – June 28, 2004 – Per Curiam

Appellant was charged with carrying a concealed “butterfly” knife. The Tyler County magistrate court issued a pretrial diversion order, which continued the case for six months and required the appellant, inter alia, to perform 50 hours of community service. The State subsequently moved for termination of the pretrial diversion order, based on the appellant’s alleged failure to provide signed affidavits as proof of his completion of the community service. The pretrial diversion order was set aside and the appellant was convicted of carrying a concealed deadly weapon. On appeal to the circuit court, the appellant asserted an illegal search and seizure and requested dismissal due to his satisfaction of the pretrial diversion agreement. The circuit court affirmed the conviction.

On appeal, the appellant asserted (1) that the search of his person was improper under Terry v. Ohio, 392 U.S. 1 88 S. Ct. 1868, 20 L. Ed 2d 889 (1968), and (2) that the conviction and sentence imposed by the magistrate court (and modified by the circuit court) violated Double Jeopardy.

Held: The Court addressed only the issue of whether the appellant had successfully completed the pretrial diversion program. The Court noted that under W. Va. Code § 61-11-22(c) (2001), once a person has successfully complied with a pretrial diversion agreement, the State may not prosecute the person for the same offense described in the agreement. The Court observed that the trial court had abused its discretion by limiting the appellant’s opportunity to present evidence of successful completion of the pretrial diversion agreement. The Court remanded the matter to the circuit court for a formulation of the appropriate degree of proof required to satisfy the agreement and to provide the appellant an opportunity to meet the State’s request.

Reversed and remanded.

INSIDE THIS ISSUE

by Jack Rogers

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