Criminal Law Newsletter
of WEST VIRGINIA PUBLIC DEFENDER SERVICES
|Volume 2, Issue 2||September 2001|
Welcome to the first statewide Public Defender newsletter. Beginning with this issue, Public Defender Services inaugurates several new services for private appointed counsel. Our newsletter will issue quarterly, with a number of regular features and guest columns on topics of current interest.
While occasional newsletters were sent to Public Defenders in the past, we never included private counsel because of budgetary restrictions. Beginning with this issue, we will post the newsletter on our newly expanded website at http://www.wvpds.org., another new service to private counsel, as well as to Public Defenders.
You will not receive another hard copy unless you request it but the website will include not only the newsletter but every publication which Public Defender Services produces. We will also post relevant changes in payment and reimbursement rules. I recommend that you check the site at least once a month for news of all kinds.
The website includes a significant amount of other information, including the last three annual reports for private counsel payments. I invite your suggestions as to any other information which you may find useful.
Finally, we are reviving our long dormant continuing legal education series. The first scheduled program, covering magistrate court strategy, will be in Parkersburg at the Blennerhassett Hotel, 1:30-4:30 p.m, Tuesday, October 30, 2001. An additional seminar is planned for Morgantown in mid-December (see website for details as the time grows near).
All of these changes are the result of the adequate funding of the central office functions of Public Defender Services. Over a period of almost nine years our internal office budget increased only 5% and actual expenditures actually decreased temporarily. We were forced to eliminate positions and to limit programs. With additional funding we have staffed the Criminal Research Center staff and an Appellate Division. These positions were required by statute in 1981, but were only partially funded since 1989.
I would like to take this opportunity to thank both Governor Bob Wise and Secretary of Administration Greg Burton for their support, as well as former Governor Cecil Underwood and former Secretary of Administration Jack Buckalew. While it is difficult to identify all members of the Legislature responsible for our funding, certainly Senate President Earl Ray Tomblin, Speaker Bob Kiss, Senate Finance Chairman Oshel Craigo, House Finance Chairman Harold Michael, Senate Judiciary Chairman Bill Wooton and Majority Leader Rick Staton deserve special mention.
With your suggestions I am confident we can continuing improving our services. You can write to me at Public Defender Services, 1900 Kanawha Blvd. E., Charleston WV 25305 or e-mail me at firstname.lastname@example.org. I look forward to hearing from you.
We are currently in the process of revising and redrafting the West Virginia Public Defender Services Motion Manual. First completed in 1987, the Motion Manual has been an invaluable research and drafting tool. The Second Edition of the Motion Manual should be published by the end of 2001 and will be available from the CLRC.
Also, the 2001 Supplement to the West Virginia Criminal Law Digest will be completed and available by the end of the year.
The CLRC maintains a Brief Bank of appellate and habeas corpus briefs. This service has proven valuable to attorneys in the past by helping to minimize time spent in researching and drafting appellate briefs. Please feel free to use this service. Also, you are encouraged to submit your pleadings to the Brief Bank, as your submissions may provide invaluable assistance to others.
You are encouraged to assist the CLRC in maintaining a current and active expert witness file. Finding a quality expert witness is often a difficult and time consuming chore. The CLRC maintains a file index of potential expert witnesses whose services have been utilized in the past. Please feel free to submit names, addresses and CV data of any experts that have proven helpful to you in your practice.
In 2000, the CLRC conducted a survey of public defender offices and court appointed counsel. Those who responded to the survey indicated that the most preferred topics for seminars concern general defense theories and strategies for handling specific crimes. Other popular topics for future seminars included discovery and Brady issues; forensic sciences; ethics and effective representation; post-conviction remedies and proceedings; and child abuse and neglect proceedings. Please advise the CLRC if you have any suggestions for seminar or training topics.
All attorneys are encouraged to submit articles, case and/or legislative comments, and any other information relevant to criminal law to the CLRC for possible publication. Please send any submissions to Russ Cook , c/o CLRC, Building 3, Room 330 1900 Kanawha Boulevard East, Charleston, West Virginia 25305-0730.
Attorneys Jack Hickok and Paul Stone, along with paralegal Tom Booth, comprise the Appellate Advocacy Division of Public Defender Services. Many of you will remember that Frank Helvey, with assistance from Iris Brisendine, performed this function for several years, but the position was unfunded for several years following his retirement.
We receive cases upon appointment by the Court. If you need help on an appeal, the best approach is to call the Appellate Advocacy Division to talk about the case. We prefer a co-counsel arrangement if the trial attorney is available to participate. If our caseload permits us to accept the case, then the next step would be to approach the Circuit Judge concerning our appointment. Whether or not trial counsel is available as co-counsel, we always prefer to discuss the case with you.
Justice Albright made it clear at Canaan that the Supreme Court prefers to have trial counsel available at oral argument for questions concerning trial matters. We are amenable to either being lead counsel or to helping on briefs, but the role of each must be agreed upon at the start. Trial counsel's participation is even more important in abuse and neglect cases.
The Kanawha County Public Defenders Office also has an appellate unit. Although they will handle most Kanawha County appeals, we will accept Kanawha County cases if requested to do so by Greg Ayers, the chief appellate attorney for Kanawha PD. While we have statutory power to refuse an appointment, we will accept all direct appeals from other circuits until our caseload becomes unmanageable.
We regret that we are unable to accept all of your habeas corpus cases. We will not accept cases in which a Public Defender is alleged to have given ineffective assistance. We will accept some habeas cases in Kanawha County and contiguous circuits. We may be able to help in other circuits if a Public defender will assist with appearances in the circuit court.
In all types of cases, your help is much appreciated in obtaining records from your local circuit courts. Every circuit clerk seems to have a different system, and it can be difficult for us to determine what we need. This is particularly a problem in habeas corpus, where the records can be very old, court reporters have changed, and old files are often stored in out-of-the-way corners and vaults.
State ex rel. Rose L. v. Pancake, 204 W.Va. 188, 544 S.E.2d 403 (2001) (Writ of Prohibition Denied)
In this abuse and neglect action, the guardian ad litem sought a writ of prohibition to stop the circuit court from conducting a hearing on the motion of the father to set aside an agreement to relinquish his parental rights. The father claimed that he had entered into the agreement under duress and fraud.
The Court noted that agreements to relinquish parental rights are permitted provided that they were entered into free from duress and fraud. The Court held that these issues were questions of fact to be determined by the presiding judge, and accordingly held that the circuit court had authority to conduct such hearings.
Syl. Pt. 3. Under the provisions of West Virginia Code § 49-6-7, a circuit court may conduct a hearing to determine whether the signing by a parent of an agreement relinquishing parental rights was free from duress and fraud.
State v. Adkins, 209 W.Va. 212, 544 S.E.2d 914 ( 2001) (Per Curiam) (Affirmed)
The primary issue concerned certain statements made by the prosecuting attorney during closing arguments. The Court held that statements by the prosecutor during the initial closing argument that the defendant and one of his witnesses were "liars" did not rise to the level of plain error, due primarily to the fact that no objection had been made to the statement.
The Court also found that statements made by the prosecutor during the rebuttal closing argument regarding inconsistencies between the defendant's testimony and his pretrial statements to the police (which had not been admitted into evidence) did not mislead the jury or prejudice the accused and accordingly, found no error.
State v. Hulbert, 209 W.Va. 217, 544 S.E.2d 919 (2001) (Per Curiam) (Affirmed in part, Reversed in Part, and Remanded with Instructions)
The defendant was prosecuted for third offense domestic battery and wanton endangerment with a firearm. The charges stemmed from a two hour incident where the defendant had allegedly brandished a knife and a rifle at the alleged victims and had allegedly threatened to kill the victims. At trial, the state used two prior convictions in the State of Michigan for enhancement purposes.
The primary issue presented here was the use of out-of-state convictions for enhancement purposes under West Virginia's domestic violence statute. The Court set forth the test for the use of such convictions and found that the state had not met the burden of proof in this case. The defendant's conviction for third offense domestic battery was therefore reversed; however, because the court believed that the state had shown sufficient evidence to support a conviction of first offense domestic battery, the case was remanded for entry of a new sentencing order.
Syl. Pt. 1. Prior domestic violence convictions in other states may be used to enhance the penalty for subsequent domestic violence convictions under West Virginia Code § 61-2-28 (1994) (Repl. Vol. 2000)
Syl Pt. 2. An out-of-state conviction may be used as a predicate offense for penalty enhancement purposes under subsection (c) of West Virginia Code § 61-2-28 (1994) (Repl. Vol. 2000) provided that the statute under which the defendant was convicted has the same elements as those required for an offense under West Virginia Code § 61-2-28. When the foreign statute contains different or additional elements, it must be further shown that the factual predicate upon which the prior convictions was obtained would have supported a conviction under West Virginia Code § 61-2-28(a) or (b) in order to invoke the enhanced penalty contained in subsection (c).
Syl. Pt. 4. In proving the fact of an out-of-state conviction for punishment enhancement purposes under West Virginia Code § 61-2-28(c) (1994) (Repl. Vol. 2000), the State may introduce a properly authenticated copy of the judgment of conviction that clearly indicates a defendant's identity and the fact of conviction. The conviction order may also include pertinent information regarding the offense and the foreign law under which the conviction was obtained. Additional means of proof include a properly authenticated copy of the warrant, indictment or other charging document, other comparable documents of record, or transcripts which establish the relevant facts pertinent to the offense and conviction.
The Court also addressed the issue of whether a defendant could be convicted of wanton endangerment with a firearm in the absence of a discharge of the weapon.
Syl. Pt. 5. Because the offense of wanton endangerment with a firearm is defined, not in terms of whether the firearm is discharged, but merely with reference to the commission of "any act", the discharge of a firearm is not an element of West Virginia Code § 61-7-12 (1994) (Repl. Vol. 2000).
State v. Davisson, 547 S.E.2d 241 (2001) (Per Curiam) (Affirmed)
Following a single vehicle accident, the defendant was approached in his driveway and was questioned by the investigating officer. The defendant had been identified by neighbors as having been the driver and sole occupant of the vehicle. Following the administration of field sobriety tests, the defendant was arrested and charged with driving under the influence, second offense.
The Court addressed the issue of the warrantless arrest of the defendant. The Court found that the normal standards for a warrantless arrest in the home enumerated in State v, Mullins, 177 W. Va. 531, 355 SE 2d 24 (1987) (probable cause and exigent circumstances) did not exist in this case due to the fact that the defendant was not in his home, but rather in his driveway. The Court therefore found the arrest to be lawful.
The defendant also argued that he was entitled to retroactive application of State v. Nichols, ___ W. Va. ___, 541 SE 2d 310 (1999), regarding stipulation of prior offenses in driving under the influence cases. The Court dealt summarily with this issue in stating that Nichols expressly held that the decision could not be applied retroactively.
State v. Chester Gibson, 209 W.Va. 273, 546 S.E.2d 452 (2001) (Per Curiam) (Reversed and Remanded)
The defendant was convicted of the felony offense of possession with intent to deliver a controlled substance. The trial court refused to instruct the jury as to the lesser included misdemeanor offense of simple possession of a controlled substance. The Court found that possession with intent to deliver included all of the elements of simple possession, and that under the evidence adduced at trial, a jury could have found the defendant guilty of simple possession. The Court reversed the conviction and remanded the case for a new trial.
State v. Brown, (#28404 - May 2, 2001) (Per Curiam)(Affirmed in Part, Reversed in Part, Remanded)
The defendant was convicted of two counts of first-degree murder and was sentenced to two consecutive life terms in the penitentiary. The Court addressed a number of issues, including the presence of a thirteenth juror during deliberations; the dismissal and replacement of a juror who arrived late for court; the defendant's right to be present during a discussion of jury instructions; the denial of a motion for a continuance; the request by a defendant to retain a jury selection expert; and the denial of a motion for a jury view. Although the presence of the thirteenth juror during deliberation was held to be error, the Court held that the defendant had not shown whether the extra juror's presence affected the defendant's substantial rights, and thus did not meet the test for plain error. The Court determined that none of the above issues constituted reversible error.
However, the Court reversed the decision of the trial court in determining the a presentence report was not required prior to sentencing the defendant, and remanded the matter for the preparation of a presentence investigation report and new sentencing hearing.
State ex rel. Aaron H. v. WVDHHR, (#28468 - May 4, 2001) (Per Curiam) (Writ Granted)
The Court granted a writ of mandamus which sought to compel the Department of Health and Human Resources to pay for the therapeutic services of a specialist in attachment disorders. The Court ordered that the Department pay for the requested services, but limited the amount of payment to the Medicaid rate applicable at the time the services were rendered.
Hatfield v. State, 209 S.E.2d 292, 546 S.E.2d 774 (2001) (Per Curiam) (Denial of Habeas Corpus Affirmed)
In this appeal of the circuit court's denial of the petitioner's habeas corpus petition, the Court held that trial counsel's urging of his client to accept a plea bargain did not rise to the level of ineffective assistance of counsel. The petitioner had urged that the attorney's advice was based on an inadequate investigation and assessment of the strength of the State's case. The Court noted the evidence against the petitioner and concluded that the advice of the attorney was "obviously quite correct" in his assessment.
State v. Trent, 209 W.Va. 338, 547 S.E.2d 276 (2001) (Per Curiam) (Affirmed)
In affirming the defendant's conviction for malicious endangerment and fleeing, the Court re-stated the rule in Syllabus Point 1 of State v. Crouch, 191 W. Va. 272, 445 S.E. 2d 213 (1994), regarding newly discovered evidence, and concluded that the evidence the defendant claimed was newly discovered was not newly discovered, nor would it have made a significant difference at trial.
State v. Rogers, 209 W.Va. 348, 547 S.E.2d 910 (2001) (Albright, J.) (Reversed and Remanded)
The defendant was convicted of four separate felony offenses regarding his computer business dealings with two different companies. He was convicted of two counts of depriving another of property by fraudulent schemes under W. Va. Code, § 61-3-24d (as amended); one count of obtaining property by false pretense under W. Va. Code, § 61-3-24 (as amended), and one count of embezzlement under W. Va. Code, (as amended).
The Court reviewed the defendant's convictions and concluded that two of the defendant's convictions constituted multiple convictions for the same offense and therefore violated double jeopardy protections. The Court reversed and remanded the matter for new orders of conviction and sentencing.
Syl. Pt. 7. The provision in West Virginia Code § 61-3-24d (1995)(Repl. Vol. 2000) [defining the crime of larceny by fraudulent scheme] found in subsection (c), which reads, "A violation of law may be prosecuted under this section notwithstanding any other provision of this code," does not express a clear legislative intent to create a separate and distinct offense, with separate, additional punishment for the same acts.
Syl. Pt. 8. Every element necessary for a conviction of larceny by false pretense under West Virginia § 61-3-24 (1994) (Repl. Vol. 2000) is also an element for conviction of larceny by fraudulent scheme under West Virginia Code § 61-3-24d (1995) (Repl. Vol 2000).
Syl. Pt. 9. In the absence of proof that a defendant obtained "services" by a fraudulent scheme, every element necessary for a conviction of larceny by fraudulent scheme under West Virginia Code § 61-3-24d (1995) (Repl. Vol. 2000) is also an element for conviction of an agent or employee for larceny by embezzlement under West Virginia Code § 61-3-20 (1929) (Repl. Vol. 2000).
(Davis, J, dissenting).
State v. Sanders, 209 W.Va. 367, 549 S.E. 2d 40 (2001) (Per Curiam) (Vacated and Remanded)
The defendant was convicted of robbery by the use of a firearm and was sentenced to a forty-year term of imprisonment. The Court vacated the judgment and remanded the case to circuit court for the purposes of conducting a retrospective competency hearing.
Prior to trial, the defendant had been examined on a number of occasions for the purposes of determining his competency to stand trial, Although eventually found competent, during his trial the defendant exhibited several instances of irrational behavior and actions. Counsel for the defendant requested a mistrial due to his client's continuing psychosis, which motion was denied by the circuit court.
In vacating the judgment, the Court noted that the circuit court has a continuing duty to determine the competency of a defendant, and if it appears to the trial court that a defendant's mental state has deteriorated, the trial court must conduct further inquiry.
The Court also addressed the issue of the trial judge's involvement in the plea process. During plea discussions at a competency hearing, the trial court indicated to the defendant that if he pleaded guilty, he would receive a sentence of thirty years. The Court found a clear violation of Rule 11(e)(1) and ordered that, upon remand, the case be assigned to another judge. The Court further stated that if the retrospective competency hearing indicated that the defendant was competent at the time of his original trial, that the court should sentence the defendant to no more than thirty years imprisonment.
State v. Dews, 209 W.Va. 500, 549 S.E. 2d 694 (2001) (Starcher, J.) (Affirmed in part, Reversed in part, and Remanded)
The Court re-visited State v. Nichols, 208 W. Va. 432, 541 S.E.2d 310 (1999) in this case, in holding that once a defendant has stipulated to a prior conviction status element of an offense, the trial court cannot permit reference to either evidence of the prior conviction or the defendant's stipulation to the element of the offense.
The Court also stated (1) that the holding of Nichols encompassed the charge of driving while revoked for DUI under West Virginia Code § 17B-4-3 (b) , and (2) that upon request of a defendant, the trial of DUI charges and driving while revoked for DUI charges should ordinarily be severed, when such severance is necessary to avoid unfair prejudice.
(Maynard, J. dissenting).
State v. Powers, (#28459 - May 30, 2001) (Davis, J.) (Affirmed).
The defendant was tried for burglary, grand larceny, third offense shoplifting and breaking and entering. The defendant moved to represent himself pro se and the trial court granted this motion. The court, sua sponte, appointed one of the defendant's previous lawyers to act as standby counsel. During trial, the defendant apparently had a change of heart and asked the court to allow the standby lawyer to assume representation. The Court denied the motion and the defendant was subsequently convicted.
The Court determined that it was not an abuse of discretion for the trial court to decline to require the standby attorney to assume full representation of the defendant.
Syl. Pt. 4. When a pro se criminal defendant asks the court to allow standby counsel to take over his or her trial defense, and the court has not previously ordered that standby counsel be prepared to take over in the manner requested by the defendant, then in deciding whether to grant the defendant's request the trial court should consider: (1) the defendant's prior history regarding the appointment of counsel, e.g., the desire to change from self-representation to counsel-representation, (2) the reasons set forth for the request, (3) the length and stage of the trial proceedings, (4) disruption or delay which reasonably might be expected to ensue from the granting of such motion, and (5) the likelihood of defendant's effectiveness in defending against the charges if required to continue to act as his own attorney.
In re Brian James D., 209 W.Va. 537, 550 S.E. 2d 73 (2001) (Per Curiam) (Reversed and Remanded)
The Court determined that the decision of the circuit court to terminate the parental rights of a parent based solely on the parent's admission to selling marijuana was erroneous. Finding that "[i]ncarceration, per se, does not warrant the termination of an incarcerated parent's parental rights", the Court remanded the case for the determination of a case plan for reunification.
(Davis, J. and Maynard, J., dissenting).
State v. Pettrey, 209 W.Va. 449, 549 S.E. 2d 323 (2001) (Maynard, J.) (Affirmed)
A case of significant interest to those lawyers litigating child sexual assault cases. In this case, the Court addressed the issue of the admissibility of the testimony of a therapist trained in play therapy. The therapist's testimony was essentially the heart of the state's case, because the trial court had determined that the child victims were "unavailable" based on statements from the therapist and the prosecutor that the children would not be able to testify in court (the trial court did not attempt to speak to the victims, who were eight and six years of age). Over objection, the therapist testified as to the details of alleged sexual abuse and assaults that had been related to her during the course of "play therapy" sessions by the children.
On appeal, the Court affirmed the defendant's convictions for sexual assault, incest and sexual abuse by noting the admissibility of such statements under W. Va. R. E. Rule 803(4), the "Statement for Purposes of Medical Diagnosis or Treatment" exception to the hearsay rule.
Syl. Pt. 9 -"When a social worker, counselor, or psychologist is trained in play therapy and thereafter treats a child abuse victim with play therapy, the therapist's testimony is admissible at trial under the medical diagnosis or treatment exception to the hearsay rule, West Virginia Rules of Evidence 803(4), if the declarant's motive in making the statement is consistent with the purposes of promoting treatment and the content of the statement is reasonably relied upon by the therapist for treatment. The testimony is inadmissible if the evidence was gathered strictly for investigative or forensic purposes."
What is particularly worrisome about this case is that the defendant was apparently convicted without (1) the testimony of the children, and (2) without any medical evidence of molestation. This case may present a serious federal constitutional challenge.
State ex rel. Justice v. Trent, __ W.Va. __, 550 S.E. 2d 404 (2001) (Per Curiam) (Affirmed)
In this habeas corpus action, the Court let stand a circuit court decision to grant a new trial to the petitioner. The petitioner had been tried on murder, robbery and conspiracy charges. As part of the evidence against him, and in accordance with an initial laboratory report, an officer testified to the presence of human blood on a t-shirt belonging to the defendant. The prosecution, however, failed to provide the defense with a copy of a subsequent laboratory report which indicated that the t-shirt sample was inadequate to determine the existence of human blood. The Court determined, as did the circuit court, that this was potentially exculpatory information which should have been provided to the defendant. The Court did not accept the state's contention that the defendant had waived the issue by not raising it in his direct appeal, because the existence of the report was apparently not known until after the appeal was denied.
State v. McDaniel, (#28740 - July 6, 2001) (Per Curiam) (Reversed & Remanded)
The defendant was tried for sexual assault in the second degree and burglary. The evidence presented by the state indicated that the defendant had allegedly broken into the victim's apartment and penetrated her vagina with his finger. The state then presented evidence from a witness who testified that the defendant had, twelve years earlier, broken into her apartment and beaten and raped her. The court did not permit the defendant to question this witness as to a recent criminal conviction. The defendant was convicted of first degree sexual abuse and burglary and was sentenced to consecutive prison sentences.
The Court reviewed the defendant's conviction and reversed the conviction due to improper admission of Rule 404(b) evidence. Specifically, the Court stated that while 404(b) evidence can be used to show modus operandi, as used here, the incidents presented at trial were "not sufficiently similar nor sufficiently unique" to invoke the modus operandi principle. The Court noted that when there is a great potential for unfair prejudice if 404(b) evidence is admitted, the legitimate purpose for such evidence must be well shown.
The Court also noted that the trial court had abused its discretion by refusing to permit the defendant to impeach the witness with evidence of her Ohio misdemeanor conviction of "Complicity in Theft". The Court noted that under Rule 609(a)(2)(B), such evidence would be clearly admissible.
State ex rel Farmer v. Trent, (# 28399 - July 10, 2001) (McGraw, J.) (Affirmed)
In this habeas corpus action, the petitioner appealed the circuit court's refusal to grant habeas corpus relief. The two primary grounds asserted by the petitioner for relief were (1) that the trial court had not properly advised him of his constitutional rights at the time of his plea, as required by Rule 11(c) of the Rules of Criminal Procedure, thus causing the plea to be "involuntary", and (2) that the trial court had failed to obtain a sufficient factual basis from the petitioner at the time of the plea, as required by Rule 11(f).
The Court denied relief on both arguments. On the first issue, the petitioner had refused to allow his trial counsel to testify at the habeas hearing. The trial court's response to this assertion of attorney -client privilege had been to advise the petitioner that the trial court would therefore not accept testimony from the petitioner on the issue of the plea colloquy, thus essentially establishing that the determination of "voluntariness" could only be determined from the record.
The Court then declined to extend habeas relief to the petitioner for the Rule 11(f) "factual basis" issue, finding that the requirement was not of constitutional nature.
Syl. Pt. 2 - Absent the special circumstance of a defendant claiming factual innocence while pleading guilty to a criminal charge, the requirement of W. Va. R. Crim. P. 11(f) that a trial court make an inquiry into the factual basis of the defendant's plea is not constitutionally mandated. It therefore follows under our reasoning in syllabus point 10 of State ex rel. Vernatter v.Warden, 207 W. Va. 11, 528 S.E.2d 207 (1999), that a simple violation of Rule 11(f), standing alone and without a showing of prejudice, may not serve as a predicate for collateral relief under the West Virginia Post-Conviction Habeas Corpus Act, W. Va. Code §§ 53-4A-1 to -11.
|EX POST FACTO|
Web accessible at: http://supct.law.cornell.edu/supct/html/99-1185.ZO.html
Civil commitment of sexually violent predators
Washington State's Community Protection Act of 1990 authorizes the civil commitment of "sexually violent predators," persons who suffer from a mental abnormality or personality disorder that makes them likely to engage in predatory acts of sexual violence. The Washington Supreme Court has held that the Act is civil, In re Young, 122 Wash. 2d 1, 857 P.2d 989 (1993) (en banc), and the Supreme Court held a similar commitment scheme for sexually violent predators in Kansas to be civil on its face, Kansas v. Hendricks, 521 U.S. 346 (1997). The Court of Appeals for the Ninth Circuit nevertheless concluded that respondent could challenge the statute as being punitive "as applied" to him in violation of the Double Jeopardy and Ex Post Facto Clauses, and remanded the case to the District Court for an evidentiary hearing.
Held: an Act found to be civil cannot be deemed punitive "as applied" to a single individual in violation of the Double Jeopardy and Ex Post Facto Clauses and provide cause for release.
Web-accessible at: http://supct.law.cornell.edu/supct/html/99-6218.ZO.html
Retroactive application of judicial decision abolishing year and a day rule did not violate Due Process
This case concerns the constitutionality of the retroactive application of a judicial decision abolishing the common law "year and a day rule." At common law, the year and a day rule provided that no defendant could be convicted of murder unless his victim had died by the defendant's act within a year and a day of the act. The Supreme Court of Tennessee abolished the rule as it had existed at common law in Tennessee and applied its decision to petitioner to uphold his conviction.
Held: the Tennessee Supreme Court's retroactive application to petitioner of its decision abolishing the year and a day rule did not deny petitioner due process of law in violation of the Fourteenth Amendment.
|EXTRADITION AND DETAINER|
Web-accessible at: http://supct.law.cornell.edu/supct/html/00-492.ZS.html
Act prohibits return to sending State before trial is complete
Article IV(c) of the Interstate Agreement on Detainers specifies that the receiving State shall begin the prisoner's "trial . . . within one hundred and twenty days of the arrival of the prisoner in the receiving State" and IV(e) prohibits return of the individual to the sending State before that trial is complete.
This case concerns a defendant whose initial imprisonment was interrupted briefly, for one day, during which time he was brought to the receiving State for purposes of arraignment and then returned immediately to his original place of imprisonment. The question is whether, in such circumstances, the literal language of Article IV(e) bars any further criminal proceedings-because the defendant was "returned to the original place of imprisonment" before "trial" was "had."
Held: Article IV(e) does bar further proceedings, despite the fact that the interruption of the initial imprisonment lasted for only one day.
Web-accessible at: http://supct.law.cornell.edu/supct/html/99-1702.ZO.html
Sixth Amendment right to counsel is offense specific
While under arrest for an unrelated offense, respondent confessed to a home burglary, but denied knowledge of a woman and child's disappearance from the home. He was indicted for the burglary, and counsel was appointed to represent him. He later confessed to his father that he had killed the woman and child, and his father then contacted the police. While in custody, respondent waived his Miranda rights and confessed to the murders. He was convicted of capital murder and sentenced to death. On appeal to the Texas Court of Criminal Appeals he argued that his confession should have been suppressed because it was obtained in violation of his Sixth Amendment right to counsel, which he claimed attached when counsel was appointed in the burglary case. The Texas Court of Criminal Appeals held that a criminal defendant's Sixth Amendment right to counsel attaches not only to the offense with which he is charged, but to other offenses "closely related factually" to the charged offense.
Held: because the Sixth Amendment right to counsel is "offense specific," it does not necessarily extend to offenses that are "factually related" to those that have actually been charged. The Sixth Amendment right to counsel did not bar police from interrogating respondent regarding the murders, and respondent's confession was therefore admissible. Reversed.
Web accessible at: http://supct.law.cornell.edu/supct/html/00-1028.ZPC.html
Fifth Amendment privilege may be asserted by one who claims innocence
Respondent was charged with involuntary manslaughter in connection with the death of his 2-month-old son - a death the coroner found to be from "shaken baby syndrome". The defense theory was that the babysitter was responsible, not the respondent. The babysitter informed the trial court that she intended to assert her Fifth Amendment privilege and she was granted transactional immunity.
The Supreme Court of Ohio held that a witness who denies all culpability does not have a valid Fifth Amendment privilege against self-incrimination and found the grant of immunity was therefore unlawful. The Supreme Court reversed, finding the privilege protects the innocent as well as the guilty, and that the facts here are sufficient to sustain a claim of privilege since the sitter had reasonable cause to apprehend danger from her answers at trial.
Web-accessible at: http://supct.law.cornell.edu/supct/html/99-1613.ZO.html
Right to provide legal assistance to other inmates not enhanced by First Amendment
While incarcerated in state prison, respondent decided to assist an inmate charged with assaulting a correctional officer with his defense and sent him a letter. The letter was intercepted in accordance with prison policy. Based on the letter's content, the prison sanctioned respondent for violating prison rules. Respondent sought declaratory and injunctive relief under 42 U.S.C. 1983 alleging that the disciplinary action violated his First Amendment rights, including the right to provide legal assistance to other inmates.
In Turner v. Safley, 482 U.S. 78 (1987), the Court found that restrictions on prisoners communications to other inmates are constitutional if the restrictions are "reasonably related to legitimate penological interests." Here the Court held that prisoners do not possess a First Amendment right to provide legal assistance that enhances the protections otherwise available under Turner.
Web-accessible at: http://supct.law.cornell.edu/supct/html/99-1687.ZS.html
First Amendment protects disclosure of contents of illegally intercepted communication
At issue is what degree of protection the First Amendment provides to speech that discloses the contents of an illegally intercepted communication. This suit involved the repeated intentional disclosure of an illegally intercepted cellular telephone conversation about a public issue. The persons who made the disclosures did not participate in the interception, but they did know, or had reason to know, that the interception was unlawful.
Held: the disclosures made are protected by the First Amendment.
Web accessible at: http://supct.law.cornell.edu/supct/html/99-1030.ZO.html
Drug checkpoint violates Fourth Amendment
In Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990), and United States v. Martinez-Fuerte, 428 U.S. 543 (1976), the Court held that brief, suspicionless seizures at highway checkpoints for the purposes of combating drunk driving and intercepting illegal immigrants were constitutional. Here the constitutionality of a highway checkpoint program whose primary purpose is the discovery and interdiction of illegal narcotics is considered. The Court found they had never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing. Because the primary purpose of the Indianapolis narcotics checkpoint program is to uncover evidence of ordinary criminal wrongdoing, the Court held the program contravenes the Fourth Amendment.
In an article published in the Charleston Gazette on December 2, 2000, it was reported that the decision brought a halt to drug checkpoints in West Virginia as the state's method closely resembles the discredited procedures in Indianapolis.
Web-accessible at: http://supct.law.cornell.edu/supct/html/99-1132.ZO.html
Fourth Amendment not violated by detention outside home while warrant secured
Police officers, with probable cause to believe that a man had hidden marijuana in his home, prevented him from entering the home for about two hours while they obtained a search warrant. The Court held the officers acted reasonably and did not violate the Fourth Amendment.
Web-accessible at: http://supct.law.cornell.edu/supct/html/99-936.ZO.html
Diagnostic test for purpose of obtaining evidence of criminal conduct unreasonable search
Held: A state hospital's performance of a diagnostic test (drug screen on maternity patients) to obtain evidence of a patient's criminal conduct for law enforcement purposes is an unreasonable search if the patient has not consented to the procedure. The interest in using the threat of criminal sanctions to deter pregnant women from using cocaine does not justify a departure from the general rule that an official nonconsensual search is unconstitutional if not authorized by a valid warrant.
Web-accessible at: http://supct.law.cornell.edu/supct/html/99-1408.ZO.html
Fourth Amendment does not prohibit custodial arrest for minor offense
Texas law makes it a misdemeanor punishable only by fine for seatbelt violation. The warrantless arrest of anyone violating the statute is expressly authorized, but the police may issue citations in lieu of arrest. Petitioner drove her truck with her small children in the front seat with none wearing a seatbelt. A local policeman observed the seatbelt violations, pulled petitioner over, verbally berated her, handcuffed her, placed her in his squad car, and drove her to the local police station, where she was made to remove her shoes, jewelry, and eyeglasses, and empty her pockets. Officers took her "mug shot" and placed her, alone, in a jail cell for about an hour, after which she was taken before a magistrate and released on bond. She was charged with, among other things, violating the seatbelt law. She pleaded no contest to the seatbelt misdemeanors and paid a $50 fine. She and her husband filed suit under 42 U.S.C. 1983 alleging, inter alia, that the actions of respondents violated her Fourth Amendment right to be free from unreasonable seizure.
Held: the Fourth Amendment does not forbid a warrantless arrest for a minor criminal offense, such as a misdemeanor seatbelt violation punishable only by a fine.
Web-accessible at: http://supct.law.cornell.edu/supct/html/00-262.ZPC.html
Pretextual arrest for purpose of search does not violate Fourth Amendment
The defendant's motion to suppress was granted on the ground that defendant's arrest for minor violations was pretextual and made for the purpose of searching his vehicle for evidence of a crime. The Arkansas Supreme Court affirmed, declining to follow Whren v. United States, 517 U.S. 806 (1996) in which the Supreme Court held that "subjective intentions play no role in ordinary, probable cause Fourth Amendment analysis". Reversed.
Web-accessible at: http://supct.law.cornell.edu/supct/html/99-8508.ZS.html
Use of thermal imaging device without warrant violates Fourth Amendment
This case presents the question whether the use of a thermal-imaging device aimed at a private home from a public street to detect relative amounts of heat within the home constitutes a "search" within the meaning of the Fourth Amendment.
Held: where, as here, the Government uses a device that is not in general public use, to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendment "search," and is presumptively unreasonable without a warrant.
Web accessible at: http://supct.law.cornell.edu/supct/html/99-8576.ZO.html
Sentencing Guidelines error
The Court accepted for analytic purposes that the trial court erred in a Sentencing Guidelines determination which error, petitioner contends, increased his sentence by at least 6 months and perhaps by 21 months. At issue is whether this error would be "prejudice" under Strickland v. Washington, 466 U.S. 668 (1984). The Court found that if an increased prison term did flow from an error, the petitioner has established Strickland prejudice. Reversed and remanded for further proceedings.
Web-accessible at: http://supct.law.cornell.edu/supct/html/99-1238.ZO.html
Federal habeas corpus - tolling of statute of limitations
Section 2244(d)(2) of 28 U.S.C. provides that "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." This case presents the question whether an application for state post-conviction relief containing claims that are procedurally barred is "properly filed" within the meaning of this provision.
Held: respondent's application for state post-conviction relief containing procedurally barred claims did not render it improperly filed under Section 2244(d)(2).
Web accessible at: Http://supct.law.cornell.edu/supct/html/99-9136.ZO.html
Collateral attack of prior convictions B motion for correction of sentence
In Custis v. United States, 511 U.S. 485 (1994), the Court addressed whether a defendant sentenced under the Armed Career Criminal Act could collaterally attack the validity of previous state convictions used to enhance his federal sentence. The Court held that, with the sole exception of convictions obtained in violation of the right to counsel, a defendant has no right to bring such a challenge in his federal sentencing proceeding. At issue in this case is whether, after the sentencing proceeding has concluded, the individual who was sentenced may challenge his federal sentence through a motion under 28 U.S.C. 2255 on the ground that his prior convictions were unconstitutionally obtained. Section 2255, a post conviction remedy for federal prisoners, permits "[a] prisoner in custody under sentence of a [federal] court" to "move the court which imposed the sentence to vacate, set aside or correct the sentence" upon the ground that "the sentence was imposed in violation of the Constitution or laws of the United States.
Held: as a general rule, he may not. There may be rare circumstances in which '2255 would be available, but those are not addressed here.
Web-accessible at: http://supct.law.cornell.edu/supct/html/99-1884.ZO.html
Collateral attack of prior convictions habeas corpus
The question presented is whether federal post-conviction relief is available when a prisoner challenges a current sentence on the ground that it was enhanced based on an allegedly unconstitutional prior conviction for which the petitioner is no longer in custody. In Daniels v. United States, 121 S.Ct. 1578 (2001), the Court held that such relief is generally not available to a federal prisoner through a motion to vacate the sentence under 28 U.S.C. 2255 but left open the possibility that relief might be appropriate in rare circumstances.
Held: that relief is similarly unavailable to state prisoners through a petition for a writ of habeas corpus under Section 28 U.S.C 2254.
Web accessible at: http://supct.law.cornell.edu/supct/html/00-121.ZS.html
Limitation for filing federal habeas petition not tolled by filing of initial federal habeas petition
Sec. 28 U.S.C. 2244 (d)(2) provides the time during which an "application for State post-conviction or other collateral review" is pending tolls the limitation period for filing federal habeas petitions. This case presents the question whether a federal habeas corpus petition is an "application for State post-conviction or other collateral review" within the meaning of this provision
The respondent's state robbery conviction became final before the April 24, 1996, effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). He filed a federal habeas petition which the District Court dismissed without prejudice because it was not apparent that respondent had exhausted available state remedies. On May 20, 1997, without having returned to state court, respondent filed another federal habeas petition. The District Court dismissed that petition because respondent had not filed within a reasonable time from AEDPA's effective date. The Second Circuit reversed, finding that respondent's first federal habeas petition was an application for "other collateral review" that tolled the limitation period under '2244(d)(2) and made his current petition timely.
Held: an application for federal habeas corpus review is not an "application for State post-conviction or other collateral review" within the meaning of 28 U.S.C. 2244(d)(2). That section therefore did not toll the limitation period during the pendency of respondent's first federal habeas petition.
Web-accessible at: http://supct.law.cornell.edu/supct/html/00-5961.ZO.html
Under Cage v. Louisiana, 498 U.S. 39 (1990) (per curiam), a jury instruction is unconstitutional if there is a reasonable likelihood that the jury understood the instruction to allow conviction without proof beyond a reasonable doubt. In this case the Court held that this rule was not made retroactive to cases on collateral review.
Web accessible at: http://supct.law.cornell.edu/supct/html/98-942.ZPC.html
Conviction for conduct which is not prohibited violates Due Process
Petitioner was convicted of violating a Pennsylvania statute prohibiting the operation of a hazardous waste facility without a permit. After the conviction became final, the Pennsylvania Supreme Court interpreted the statute for the first time, and made clear that petitioner's conduct was not within its scope. The Pennsylvania courts, however, refused to grant the petitioner collateral relief.
Held: a State cannot, consistent with the Due Process Clause, convict a defendant for conduct that its criminal statute, as properly interpreted, does not prohibit.
Web-accessible at: http://supct.law.cornell.edu/supct/html/99-7504.ZO.html
Validity of Bureau of Prisons regulation
Congress has provided in 18 U.S.C. 3621 (e)(2)(B) that the Bureau of Prisons may reduce by up to one year the prison term of an inmate convicted of a nonviolent felony if the prisoner successfully completes a substance abuse program. At issue is the Bureau's implementing regulation which categorically denies early release to prisoners whose current offense is a felony attended by "the carrying, possession, or use of a firearm."
Held: the regulation is a permissible exercise of the Bureau's discretion under the statute.
Web-accessible at: http://supct.law.cornell.edu/supct/html/99-804.ZO.html
State and municipal licenses not "property" for purpose of federal mail fraud statute
This case presents the question whether the federal mail fraud statute, 18 U.S.C. 1341, reaches false statements made in an application for a state license. Section 1341 proscribes use of the mails in furtherance of "any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises."
Held: permits or licenses of this order do not qualify as "property" within 1341's compass.
Web-accessible at: http://supct.law.cornell.edu/supct/html/00-5250.ZO.html
Right in capital case to inform jury of eligibility for parole
This case concerns the right of a defendant in a capital case to inform the jury that, under the governing state law, he would not be eligible for parole in the event that the jury sentences him to life imprisonment. In Simmons v. South Carolina, 512 U.S. 154 (1994), the Court held that where a capital defendant's future dangerousness is at issue, and the only sentencing alternative to death available to the jury is life imprisonment without possibility of parole, due process entitles the defendant to inform the jury of parole ineligibility, either by a jury instruction or in arguments by counsel. The South Carolina Supreme Court declared Simmons inapplicable to South Carolina's current sentencing scheme.
Held: South Carolina's Supreme Court incorrectly limited Simmons. Reversed.
Web-accessible at: http://supct.law.cornell.edu/supct/html/00-151.ZO.html
No medical necessity exception to federal controlled substances act
The Controlled Substances Act, 84 Stat. 1242, 21 U.S.C. 801 et seq., prohibits the manufacture and distribution of various drugs, including marijuana. Here the Court held there is no medical necessity exception to these prohibitions.
Web accessible at: http://supct.law.cornell.edu/supct/html/00-391.ZO.html
Court lacked jurisdiction where state court judgment not final
In New York v. Belton, 453 U.S. 454 (1981), the Court established a "bright-line" rule permitting a law enforcement officer who has made a lawful custodial arrest of the occupant of a car to search the passenger compartment of that car as a contemporaneous incident of the arrest. Here, the Court granted certiorari to consider whether that rule is limited to situations in which the officer initiates contact with the occupant of a vehicle while that person remains inside the vehicle. Finding they lacked jurisdiction to decide the question since the state court judgment was not final, certiorari was dismissed.
Web accessible at: http://supct.law.cornell.edu/supct/html/00-6677.ZO.html
In 1989, the Court held that Penry had been sentenced to death in violation of the Eighth Amendment because his jury had not been adequately instructed with respect to mitigating evidence. The State of Texas retried Penry in 1990, and that jury also found him guilty of capital murder and sentenced him to death. At issue here is whether the jury instructions at Penry's re-sentencing complied with the mandate in Penry I, and whether the admission into evidence of statements from a psychiatric report based on an uncounseled interview with Penry ran afoul of the Fifth Amendment. The Court found the jury instructions did not comply with the Court's mandate in Penry I. Affirmed in part, reversed in part, remanded.
Web accessible at:http://supct.law.cornell.edu/supct/html/99-1977.ZS.html
Qualified immunity/unreasonable force in making an arrest
In this case a citizen alleged excessive force was used to arrest him. The arresting officer asserted the defense of qualified immunity. At issue is whether the requisite analysis to determine qualified immunity is so intertwined with the question whether the officer used excessive force in making the arrest that qualified immunity and constitutional violation issues should be treated as one question, to be decided by the trier of fact. The Court of Appeals held the inquiries do merge into a single question. The Supreme Court reversed and held that the ruling on qualified immunity requires an analysis not susceptible of fusion with the question whether unreasonable force was used in making the arrest.
Web accessible at: http://supct.law.cornell.edu/supct/html/99-1964.ZO.html
Exhaustion of administrative remedies before suit over prison conditions
The Prison Litigation Reform Act of 1995 amended 42 U.S.C. 1997e(a), which now requires a prisoner to exhaust "such administrative remedies as are available" before suing over prison conditions.
Petitioner, a Pennsylvania state prison inmate, filed a 42 U.S.C. 1983 action in Federal District Court, claiming that respondent corrections officers violated his Eighth Amendment right to be free from cruel and unusual punishment by assaulting him, using excessive force against him, and denying him medical attention to treat ensuing injuries. At the time, Pennsylvania provided an administrative grievance and appeals system, which addressed petitioner's complaints but had no provision for recovery of money damages. Before resorting to federal court, petitioner filed an administrative grievance, but did not seek administrative review after the prison authority denied relief. The question is whether an inmate seeking only money damages must complete a prison administrative process that could provide some sort of relief on the complaint stated, but no money. The Supreme Court held that he must.
Web accessible at: http://supct.law.cornell.edu/supct/html/00-6374.ZO.html
Appeal from dismissal of conditions of confinement suit
Petitioner, an Ohio prisoner, instituted a pro se civil rights action in a Federal District Court, contesting conditions of confinement. His complaint was dismissed for failure to state a claim for relief and petitioner sought to appeal. Using a Government-printed form, petitioner timely filed a notice of appeal that contained all of the requested information. On the line labeled A (Counsel for Appellant), petitioner typed, but did not hand sign, his own name. The Court of Appeals dismissed the appeal for the lack of a handwritten signature and the appellate court deemed the defect "jurisdictional."
Held: an appeal is
not automatically lost for the lack of a signature on a timely notice.
The CLRC will be presenting a continuing legal education seminar entitled, "HOW TO WIN IN MAGISTRATE COURT" on Tuesday, October 30, 2001 at 1:30 p.m. at the Blennerhasset Hotel, 4th and Market Street, in Parkersburg, West Virginia. Ira Mickenburg will be conducting the seminar.
For further information about this seminar, please contact Russ Cook at West Virginia
Public Defender Services at (304) 558-3905, or by e-mail at email@example.com . Space for this seminar is
limited, so call as soon as possible to reserve your space today!
Since the purpose of this newsletter is to provide you with information and tools to help you in your job, suggestions about feature articles, issues you want addressed or other items you would like to see in the publication are more than welcome. You may have a funny experience or a learned treatise of your own that you would like to share with other criminal defense practitioners. Please send any suggestions, comments and/or contributions to Russ Cook at WV Public Defender Services by conventional or electronic mail at firstname.lastname@example.org.
West Virginia Criminal Law Newsletter
A bi-monthly publication of
West Virginia Public Defender Services
~Criminal Law Resource Center~
Jack Rogers, Executive Director
Inquiries, articles and suggestions welcome.
Please direct the same to Jack Rogers, Russ Cook or Elizabeth Murphy by any of the following means:
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