·         SENTENCING – ALLOCUTION – YOUTHFUL OFFENDER ACT

State v. Hallie Brewster, No. 30598, March 19, 2003 (Per Curiam) (Affirmed) [Gerald Merceruio, Chief Defender, 7^th Circuit, for Appellant]

            The appellant pleaded guilty to first degree sexual assault.  At his sentencing hearing, the court inquired of the appellant and his counsel if they had anything “to say with regard to the sentence that should be imposed.”  While the appellant did not address the court, his attorney spoke on his behalf and argued for treatment for the offender under the Young Adult Offenders Act (W.Va. Code 25-4-1, et. Seq.).  The court denied such treatment and sentenced the appellant to 15 to 35 years in prison.  On appeal, the appellant asserted that he had been denied his right of allocution, and that the court had abused its discretion in denying youthful offender treatment.

Held:  That the record indicated that the appellant had been offered the opportunity for allocution, but that he chose not to avail himself of the opportunity.  In addition, the court found no abuse of discretion in the circuit court’s denial of youthful offender treatment.  The Court noted that the circuit court had cited the sexual and predatory nature of the offense and made treatment under the Act inappropriate.

In Re: Rebecca K.C., No. 30599, March 24, 2003 (Per Curiam) (Termination of Parental Rights Affirmed)

            Appellant’s parental rights to her three children were terminated in September 2000.  Subsequently, in June 2001, the appellant gave birth to a daughter.  Three weeks later, pursuant to the directives of W.Va. Code 49-6-5b(a)(3), the DHHR filed a petition seeking the termination of appellant’s parental rights to her new-born daughter.  The circuit court found the child to be abused/neglected, denied the appellant’s motion for a period of improvement, and terminated the appellant’s parental rights.  The appellant asserted that the court erred in determining that the child was abused/neglected and in denying her motion for a period of improvement.

Held:  That when proceedings are initiated under W.Va. Code 49-6-5(b)(3), which requires the DHHR to file an abuse/neglect petition when there has been a prior termination of parental rights, the circuit court must allow the development of evidence regarding the prior termination to determine if the previous circumstances have been remedied [citing Syl. Pt. 4, In Re George Glen B., Jr., 205 W.Va. 435, 518 S.E. 2d 863 (1999)].  In the present case, there was no indication of any change in the appellant’s circumstances or parental abilities.  Thus, the circuit court’s termination of the appellant’s parental rights was affirmed.

State v. Artie Shrewsbury, No. 30597 – April 14, 2003 (Per Curiam) (Affirmed) 

            The appellant was convicted of a number of sexual offenses involving his nephews.  The children did not testify at trial and the trial court did not make a determination as to whether the children were “unavailable” to testify.  Instead, the trial court permitted the children’s mother and Phyllis Hasty, a “play therapist”, to testify to statements made to them by the children.

Held:  Citing State v. Pettrey, 209 W.Va. 449 (2001), the Court held (1) that the “unavailability” prong of the Confrontation Clause did not apply when the statements in question were not made in a prior judicial proceeding; and (2) that the 803(4) “Statement for Purpose of Medical Diagnosis or Treatment” exception.

State v. DeWeese,  No. 30733 – April 15, 2003 (Davis, J.) (Reversed and Remanded)

            The appellant was arrested in Cabell County in connection with a murder in Ritchie County.  After his arrest, he was

Mirandized and questioned by authorities in both Cabell County and Ritchie County.  He was not, however, arraigned before a magistrate until nearly 30 hours after his arrest.  One week after his arrest, the appellant voluntarily submitted to 2 polygraph examinations, but he was not Mirandized at the time of these tests.

Held:  In reversing the appellants conviction, the Court held in a number of new syllabus points that (1) the “fruit-of-the-poisonous-tree” doctrine applies to statements made in violation of the prompt presentment rule; (2) Miranda warnings must be given to a criminal suspect who is in custody prior to the administration of a polygraph examination; (3) the Miranda warnings must be given even though defense counsel is present in the room; (4) while Miranda rights may be waived, the reading of Miranda warnings may not be waived; and (5) that a five-part totality-of-the-circumstances test applies to determine whether previous Miranda warnings have become so stale as to dilute their effectiveness.

 State v. Abdelhaq, No. 30736 – April 16, 2003 (Per Curiam) (Reversed and Remanded)

             The appellant was arrested for the stabbing death of a female acquaintance.  One of the investigating officers of the crime, Detective John Wroten, was subsequently a member of the grand jury which returned the indictment against the appellant.  Detective Wroten also testified on behalf of the State in the appellant’s trial.

Held:  In accordance with State v. Barnhart, 211 W.Va. 155, 563 S.E. 2d 820 (2002), the indictment should be dismissed.  The Court noted that the appellant’s case involved the same officer and grand jury proceedings as the Barnhart case, in which the Court had determined that the presence of Detective Wroten in the grand jury proceedings, no matter his degree of participation in a particular case, so compromised the grand jury process as to amount to a violation of a defendant’s due process rights.

State ex rel. Crupe v. Yardley, No. 30972 – April 14, 2003 (Per Curiam) (Writ of Habeas Corpus Granted as Moulded) [Jack Wood, P.D. Office, Wheeling, for Petitioner]

            The petitioner was convicted of sexual abuse and sentenced to 1-5 years in prison.  Although a Notice of Intent to Appeal was filed, no appeal was filed.  In October 2001, the petitioner filed a petition for habeas corpus in circuit court, alleging inter alia that his right to appeal had been denied.  The Circuit court offered to re-sentence the petitioner in order to restart his appeal period, but the petitioner was not re-sentenced.  The petitioner then filed a petition for habeas corpus with the Supreme Court of Appeals.

Held:  That while not technically entitled to habeas corpus relief, the petitioner was entitled to a remand to circuit court for re-sentencing.  The Court determined that the petitioner’s remaining habeas corpus grounds would be better presented as assignments of error in the appellate forum.

State v. David D.W., No. 30786, April 21, 2003 (Per Curiam) (Affirmed in part, Reversed in part, & Remanded)  [Jack L. Hickok and Paul Stone, State Appellate Office, for Appellant]

            Appellant was convicted of 152 felony counts involving 38 separate acts of sexual assault and abuse.  The Court sentenced the appellant to a sentence of 1,140 years to 2,660 years imprisonment.  On appeal, the appellant asserted that (1) his case was improperly presented to the grand jury because it was based solely upon the testimony of the investigating officer; (2) the indictment was insufficient because it was not plain, concise or definite and that the number of charges was determined arbitrarily; (3) the statement he gave to police was involuntary and should have been suppressed; (4) a prospective juror should have been excused for cause; (5) the evidence was insufficient and did not support 152 convictions; and (6) his sentence was disproportionate to the offenses charged and constitute cruel and unusual punishment.

Held:  The Court denied relief to the appellant on the majority of his assignments of error.  The Court held that (1) since the appellant did not allege constitutional error or prosecutorial misconduct, the appellant could not challenge the manner of presentment of the indictment; (2) the indictment substantially followed the language of the relevant statutes and did not require a specific allegation of the date of the occurrence of the acts; (3) there was no evidence indicating that an inculpatory statement provided by the appellant to the police was not freely and voluntarily given; (4) the trial court did not abuse its discretion in declining to dismiss a juror whose son-in-law was acquainted with the investigating officer while simultaneously dismissing a juror who indicated that her husband had been “railroaded” into a federal conviction; and (5) that the evidence of the crimes, including the testimony of the victim and the appellant’s corroborating statement, viewed in the light most favorable to the state, was sufficient to sustain the convictions.

However, the Court determined that the sentence was constitutionally disproportionate.  Citing the two-part “subjective/objective” proportionality test set forth in State v. Cooper, 172 W.Va. 266, 304 S.E. 2d 851 (1983), the Court determined that an inquiry into the objective portion of the test was not necessary.  The Court held that the sentences imposed were so offensive as to shock the conscience of the Court, and stated that the trial court had “effectively imposed multiple life sentences” upon the appellant.  The Court remanded the case for re-sentencing.

State v. Brandon Johnson, No. 30903, May 6, 2003 (Per Curiam) (Affirmed)

            Following a transfer to adult status, a sixteen year old offender was convicted of aggravated robbery and sentenced to 48 years imprisonment.  Prior to trial, the State filed a motion in limine to suppress evidence of drug use by the victim, who admitted that  he had smoked crack cocaine eight hours prior to identifying the appellant in a photo array.  The Court granted this motion, holding that the evidence indicated that the drug use was remote enough to have no impact on the identification procedure.

            On appeal, the appellant asserted that the trial court erred in failing to permit evidence of the victims drug use prior to the identification, and that his sentence was constitutionally disproportionate.

Held:  That the trial court did not abuse its discretion, under Rule 608(b) of the Rules of Evidence, in refusing to permit evidence of drug use by the victim.  The Court agreed with the trial court that the evidence did not indicate that the use of crack cocaine several hours prior to the procedure affected the identification procedure.  (The Court declined to address issue of sentencing, noting that the trial court had retained authority under W.Va. Code 49-5-16(b) to modify or reduce the appellant’s sentence at the time of his eighteenth birthday).

Affirmed.

State v. McCraine, ___W.Va. ___, ___ S.E.2d ___(#30592 – May 16, 2003) (Albright, J.)

            Appellant was indicted for DUI-3^rd Offense and Driving on a Revoked License, DUI-Related.  Following his conviction, appellant challenged a number of rulings of the trial court, including (1) the trial court’s failure to permit bifurcation of the prior offenses from the current offense, and (2) the trial court’s failure to grant a judgment of acquittal because of the failure of the State to prove that the appellant had knowledge of the revocation of his license.

Held:  The Court (1) modified the “meritorious claim” requirement of State v. Nichols, 208 W.Va. 432, 541 S.E.2d 310 (1999), and held that the trial court is under a mandatory duty to bifurcate prior offenses which are status elements [this encompasses DUI-3^rd Offense prosecutions and, presumably, domestic offenses as noted in State v. Hulbert, 209 W.Va. 217, 544 S.E. 2d 919 (2001)]; and (2) that knowledge of the revocation of a driver’s license is an essential element of driving on a revoked license, DUI-related, under W.Va. Code, 17B-4-3(b).

Reversed and Remanded.

State v. Srnsky, et. al., ___W.Va. ___, ___ S.E. 2d ___(#30896 – May 16, 2003) (Albright, J.)

Appellants, three brothers, presented their joint appeal from their convictions for a variety of misdemeanors. The charges stemmed from a dispute with an adjacent landowner. The primary assignment of error for each appellant was that there was insufficient evidence to sustain their respective convictions.

Held:  (1) A defendant’s refusal to identify oneself does not, standing alone, form the basis for a charge of obstructing an officer under W.Va. Code, 61-5-17(a) [the Court noted, however, that the charge could be substantiated if a person did not supply identification when required to do so by express statutory direction or when the refusal occurs after an officer has communicated the reason why the person’s name is being sought in connection with the officer’s official duties]; (2) that the evidence presented did not sustain the appellant’s convictions for trespassing on  property other than a structure or conveyance; and (3) that the state failed to prove an essential element of the removal of posted signs, i.e., that the property on which the signs were posted is owned by someone other than the defendant.

Reversed.

·         TWO – TERM RULE – INDICTMENT

 State ex rel. Shifflet v. Rudloff, ___W.Va. ___, ___ S.E.2d ___ (#30968 – May 8, 2003) (Per Curiam)

            Appellant was charged with bank robbery on October 3, 2001.  Unable to post bond, the appellant remained incarcerated.  He underwent a series of mental examinations, was declared incompetent to stand trial, and was hospitalized at Sharpe Hospital.  By September 2002, the appellant’s condition had improved and he was returned to the jail.  In October 2002 the appellant requested a personal recognizance bond, arguing that the state’s failure to indict him in over one year violated the “two-term” rule of W.Va. Code 62-2-12.  Following the circuit courts denial of his motion, the appellant sought emergency habeas relief with the Supreme Court of Appeals.

Held:  That the appellant was entitled to habeas relief.  The Court noted that the “two-term” rule requires that an incarcerated person be released from custody if he/she has not been indicted before the end of the second term of court following their incarceration.  The Court rejected the arguments of the State that (1) the delay in the appellant’s indictment was attributable to defense counsel’s request for a competency evaluation, and (2) the two term rule was “tolled” during the time that the appellant spent in Sharpe Hospital. [The Court noted that the appellant’s case was “technically moot”, because the appellant had been indicted by a special term of the grand jury in January 2003.  Therefore, as noted in Justice Davis’ dissent, the grant of habeas relief appears somewhat questionable.]

 Writ of Habeas Corpus Granted.

·         SENTENCING – CREDIT FOR TIME SERVED

State v. Scott, ___W.Va. ___, ___ S.E. 2d ___ (#30692 – May 7, 2003) (Starcher, J.)

            Appellant was convicted of uttering and transporting a controlled substance.  Appellant successfully completed Anthony Youth Center and was placed on probation, but probation was revoked.  The trial court ordered that 565 days credit for time served be assessed on the appellant’s 1-10 year uttering sentence, while only 2 days credit was assessed on the consecutive 1-5 year sentence for transporting a controlled substance.  Appellant claimed on appeal that net effect of sentence, as assessed, denied him a later parole date than if had been sent to Anthony and placed on probation.

Held:  that where a criminal defendant has been placed on probation after successfully completing a program of rehabilitation at a young adult offender center under the Youthful Offenders Act, W.Va. Code, 25-4-1 to -12 and such probation is subsequently revoked, pursuant to W.Va. Code, 25-4-6 [2001] the circuit court’s sentencing order must credit the defendant with time spent in incarceration in such a manner that the defendant’s date of eligibility for parole is the same as if the defendant had not been committed to a young adult offender center and subsequently placed on probation.

Reversed and Remanded.

·         ABUSE & NEGLECT – DISMISSAL OF PETITION

In Re: Kyiah P. and Joseph P., No. 30971, May 21, 2003 (Per Curiam) (Reversed and Remanded)

            Department of Health and Human Resources (‘DHHR’) and the guardian ad litem appealed the circuit court’s dismissal of an abuse/neglect petition.  The petition was filed by the DHHR after the agency discovered that the mother of the respondent children had voluntarily relinquished her parental rights to at least two other children during the pendency of an abuse/neglect action in Virginia.  In addition, the DHHR learned that the father of the children had been accused in Virginia of sexually abusing Samantha P., a daughter from a previous relationship. 

            The basis of the circuit court’s dismissal of the petition was the inability of the DHHR to present evidence at the time of the adjudicatory hearing.  The DHHR had subpoenaed case workers from the state of Virginia to testify at the hearing, but the workers did not appear, citing a lack of notice.  The circuit court, having continued the adjudicatory hearings on one prior occasion, refused to continue the hearing and dismissed the petition.

            The appellants asserted that under In the Matter of George Glen B., Jr., 205 W.Va. 435, 518 S.E. 2d 863 (1999) (‘George I’), the circuit court was obligated to conduct an evidentiary hearing regarding the allegations contained in the petition.  The appellants acknowledged that the termination of parental rights in Virginia was a voluntary termination, and thus technically outside the language of George I, but argued that the court should have permitted them to present evidence regarding the circumstances of the Virginia matter.  The appellees, however, argued that under W.Va. Code, § 49-6-5(b) (1998), the appellants were required to provide evidence of a prior involuntary termination, which did not occur in the Virginia proceedings.

Held:  The Court held that the circuit court had abused its discretion by dismissing the petition prior to conducting an adjudicatory hearing.  The Court determined that the evidence presented in the petition and the preliminary hearing, indicating that the mother had previously voluntarily surrendered custody of two children, and the father had been accused of sexually abusing another child, constituted “substantial allegations of abuse” justifying an adjudicatory hearing.

Reversed and Remanded.

·         COMPETENCY TO STAND TRIAL

State v. Gary Kent, No. 30649, May 23, 2003 (Per Curiam) (Reversed and Remanded)

            On July 27, 1998, the appellant was charged with first degree murder.  Two days after his arrest, his counsel requested psychiatric and psychological examinations for the appellant.  The appellant was examined by Dr. John Justice and a team of mental health providers at Sharpe Hospital.

            Dr. Justice’s finding, detailed in an October 5, 1998 report, indicated that the appellant suffered from a long history of bipolar effective disorder, and was not competent to stand trial.  Based upon this finding, the circuit court found that the appellant was not competent to stand trial and committed the appellant to a course of recommended treatment at Sharpe Hospital.

            In February 1999, Sharpe Hospital reported that the appellant had been restored to competency.  Following a State-requested competency examination, the appellant was returned to the Marion County Correctional Center in June 1999.  The appellant’s trial began on September 27, 1999.  During the trial, the appellant exhibited numerous symptoms of his mental illness, including a refusal to speak to his attorney and his refusal to take an active role in his defense.

            After his conviction, the appellant’s counsel filed a number of post-trial motions, including a motion to have the appellant reexamined for his competency to stand trial.  The appellant was transported back to Sharpe Hospital, where Dr. Justice discovered that the appellant had not been receiving his prescribed medications.  At a subsequent hearing, the chief jail administrator at the Marion County Correctional Center testified that the appellant, after returning to the jail after his restoration to competency, had refused to go to a local mental health provider so that his prescription could be refilled.  The Correctional Center Authority did not advise the circuit court, the prosecuting attorney, or the appellant’s attorney that the appellant was no longer taking his required medication.

            The circuit court also heard the testimony of Dr. Justice, who testified that due to the lack of his prescribed medication, the appellant was suffering the same symptoms during his trial as he was suffering before the restoration of his competency.  The State presented the testimony of Dr. Thomas Adamski, who had examined the appellant after the trial (and after he had resumed his medications), and who opined that the appellant was competent at trial.

The circuit court found that the appellant was competent to stand trial, and sentenced the appellant to life in prison without the possibility of parole.

Held:  The Court reversed the conviction, holding that without his medications and counseling, the appellant had regressed and relapsed into the state in which the circuit court had initially found him incompetent to stand trial.  The Court found that the appellant did not “exhibit a sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding”, and that the appellant lacked the “rational, as well as factual, understanding of the proceedings against him.”

Reversed and Remanded.

·         DISCOVERY VIOLATIONS – PROSECUTORIAL DISQUALIFICATION

 State v. Charles Keenan, No. 30851, June 19, 2003 (Per Curiam) (Reversed and Remanded)

             Appellant Keenan was charged with killing Mark Lafferty.  Prior to trial, appellant filed a Rule 16 discovery motion and received, inter alia, a report from a State Police chemist indicating the presence of gunshot residue (GSR) on the hands of the victim.  The presence of this GSR supported the appellant’s claim that Lafferty’s death resulted from an accidental discharge of the weapon by Lafferty.  The appellant further requested the recusal of the Fayette County Prosecuting Attorney’s Office due to the prior representation of the appellant, several years earlier, by the prosecuting attorney and one of the assistant prosecutors.

            On the day of the trial, the State provided the appellant with a “corrected” copy of the GSR test, which indicated that no test had been performed on the hands of the decedent.  The police chemist also produced, during his testimony, a number of documents which had not been provided to the appellant.  The trial court held the chemist’s testimony inadmissible; however, the appellant was convicted of voluntary manslaughter and sentenced to 15 years imprisonment.

Held:  That the State’s failure to provide discovery in a prompt and proper manner necessitated the reversal of the conviction and a new trial.  The Court noted that under State ex rel. Rusen v. Hill, 193 W.Va. 133, 454 S.E. 2d 427 (1994), the standard for determining prejudice for a discovery violation involves (1) whether the non-disclosure surprises the defendant on a material fact, and (2) whether it hampered the preparation and presentation of the defendant’s case.  The Court found each of these standards applicable in this case and granted a new trial.

The Court also held that the prosecuting attorney’s office was not disqualified from prosecuting the case, because (1) there was no showing that the prosecutor’s office had acquired privileged information adverse to the appellant’s interests in regard to the charges in the present case, and (2) there was no evidence of a direct personal interest or animosity such that the prosecutor’s objectivity and impartiality could be questioned.

Reversed and Remanded for New Trial.

·         SENTENCE – COMPUTATION AND REVOCATION OF GOOD TIME CREDITS

State ex rel. Bailey v. Rubenstein, Commissioner, No. 31148, June 19, 2003 (Per Curiam) (Writ of Mandamus Granted)

            Petitioner was sentenced to 1 to 3 years for 3^rd offense DUI, and was given a minimum discharge date of eighteen months. The petitioner was subsequently involved in a number of disciplinary infractions.  Following a hearing, a “magistrate” at the correctional center issued three separate orders, each of which revoked six months of “good-time” credit from the petitioner’s sentence.  (The effect of this ruling was the removal of all possible “good-time” credit, and the requirement that the petitioner serve a full three years on this sentence).

            The petitioner sought a writ of mandamus to compel the restoration of most of the revoked “good-time”.  The petitioner’s argued that since he had only served 156 days at the time of the notice of revocation, he could only be assessed a loss of 156 days of “good-time” credit, since such time is allotted on a day for day basis.

Held:  That “good-time”, while a legislative creation, cannot be arbitrarily removed.  The Court noted that under W.Va. Code 28-5-27(f), all or part of good-time credit “which has been granted to such inmate” can be revoked for violations.  However, this provision applies “only to those days that an inmate has actually earned by being incarcerated and behaving properly.”  Therefore, since the petitioner could have earned only 156 days of “good-time” at the time of the revocation, he could only have 156 days of “good-time” revoked.

Writ of Mandamus Granted.

·       ABUSE AND NEGLECT – STANDARDS TO DETERMINE DISPOSITIONAL CUSTODY AND PLACEMENT

In Re: Frances J.A.S., et. al., Nos. 30909 & 30910, June 18, 2003 (Per Curiam) (Reversed and Remanded)

            Biological father and guardian ad litem appealed the order of the circuit court ordering the dispositional placement of two children with their biological mother.  The children had been in the custody of the mother and a stepfather, but had been removed following the filing of an abuse/neglect petition and placed with their biological father in Colorado.  At the dispositional hearings, testimony was presented indicating the appropriateness of the father’s home.  In addition, one of the children, who was 12 years old, expressed a clear desire to remain in Colorado with her father.  Nonetheless, the circuit court ordered that the children be returned to the mother during the pendency of a dispositional period of improvement.

Held:  That the court abused it’s discretion in not fully considering the expressed wishes of the child along with other evidence indicating that dispositional placement in the father’s home might be in the best interest of the children.  The Court remanded the matter, and ordered that the circuit court consider each of these factors in determining permanent placement.

Reversed and Remanded.

·         PROHIBITION – STATUTORY CONSTRUCTION – DESUETUDE

State ex rel. Canterbury v. Blake, No. 31150, June 23, 2003 (Per Curiam) (Writ of Prohibition Granted)

            Petitioner owed a pawn shop in Fayette County.  He was charged with numerous violations of W.Va. Code, 61-3-51, which mandated certain recording and reporting procedures by purchasers of precious gems and metals.  He sought a writ of prohibition with the Supreme Court to prohibit his trial on the charges, arguing that the statute in question had fallen into desuetude.

Held:  That 61-3-51 has fallen into desuetude and the charges must be dismissed.  In order to prove that a statute has fallen into desuetude and is therefore unenforceable, a defendant must show that (1) the statute proscribes only acts that are malum prohibitum and not malum in se; (2) there has been open, notorious and pervasive violation of the statute for a long period; and (3) there has been a conspicuous policy of non-enforcement of the statute.  Comm. On Legal Ethics v. Printz, 187 W.Va. 182, 416 S.E. 2d 720 (1992).  The petitioner provided sufficient proof that 61-3-51, insofar as it was being applied in Fayette County, was a regulatory statute which was routinely violated and was not being enforced.

(Question:  Does desuetude therefore operate on a county by county basis?)

Writ of Prohibition Granted.

·      RAPE SHIELD STATUTE – RULE 404(B) EVIDENCE – DISCOVERY OF MENTAL HEALTH RECORDS OF WITNESSES

State v. Roger Parsons, No. 30693, June 27, 2003 (Per Curiam) (Affirmed)

            Appellant was convicted of 21 counts of third degree sexual abuse.  The charges against the appellant were made by a former student, who alleged that the appellant, while acting as a school teacher and administrator, had engaged her in a number of sexual acts between 1977-1980.  The initial indictment also alleged similar acts against other students between 1959-1972, but these charges were dismissed on ex post facto grounds.  These witnesses did, however, testify as Rule 404(b) witnesses to demonstrate the appellant’s “lustful disposition” towards children.

            The appellant raised a number of issues on appeal, including (1) the court’s refusal to permit him to offer evidence of his relationship with the victim after she reached the age of 16; (2) that the testimony of the other alleged victim was inadmissible under 404(b); (3) the court’s refusal to strike 3 jurors for cause; (4) the service of the jury past the beginning date of the succeeding term of court; (5) the denial of his motion to recuse the trial judge because of the judge’s contact with one of the 404(b) witnesses; (6) improper instructions to the grand jury (as evidence by the indictment for the charges which were dismissed on ex post facto grounds); (7) the passage of time between the relevant events and the initiation of the prosecution; (8) the trial court’s failure to instruct the jury on battery and jury nullification; and (9) the failure to provide certain reports of psychiatrists and therapists who were treating the alleged victim.

Held:  The Court denied relief on all the asserted grounds.  Of particular note, the Court held (1) that the Rape Shield Statute (61-8B-11) prohibited the evidence of the consensual sexual relationship existing after the alleged victim reached 16 years of age; (2) that the testimony of the alleged victims was admissible under Rule 404(b) and State v. Edward Charles L.,  183 W.Va. 641, 398 S.E. 2d 123 (1990) to show the appellant’s lustful disposition towards children; and (3) that the records sought by the appellant regarding the treatment of the victim by a therapist and psychologist were either previously disclosed to the appellant or were not exculpatory.

Affirmed.

·         ABUSE AND NEGLECT – TERMINATION OF PARENTAL RIGHTS – CHILD SUPPORT OBLIGATIONS

In Re: Stephen Tyler R., No. 30654, July 1, 2003 (Davis, J.) (Affirmed)

            An abuse/neglect petition was filed against the appellant, Robert R., and the mother of his son, Stephen Tyler R..  An adjudicatory hearing was scheduled for April 20, 2001, but this hearing was rescheduled for June 8, 2001.  At the time of the adjudicatory hearing, the appellant was incarcerated in Kentucky on an unrelated charge.  The appellant had not advised the circuit court or his counsel of his whereabouts.  The appellant’s attorney objected to the court’s intention to proceed with the adjudicatory hearing in his client’s absence.  At the adjudicatory hearing, and based on allegations that the appellant had used marijuana and physically abused the mother of the child in the child’s presence, the court determined that the appellant had abused and/or neglected his child.

            The appellant was present at the dispositional hearing, where he presented evidence and requested a post-adjudicatory improvement period.  The appellant also renewed his objection to the circuit court’s having conducted the adjudicatory hearing outside of his presence.  The circuit court denied the motion for the improvement period; terminated the appellant’s parental rights; and ordered the appellant to continue to provide financial support for his son.

            The appellant sought relief from the court’s disposition order, alleging that the circuit court erred (1) by holding the adjudicatory hearing in his absence; (2) by concluding that he had abused/neglected his son; and (3) by requiring him to continue to pay child support after the termination of his parental rights.

Held:  The Court, while acknowledging the constitutional due process rights implicated in the presence of a parent at a hearing, noted that it is in the discretion of a trial court to permit an incarcerated parent to participate in an abuse/neglect proceeding.  The Court held, in a new syllabus point, that in order for an incarcerated parent to avail themselves of these protections, the parent must notify the court of their custodial status so that the court may then determine the feasibility of the parent’s attendance.

The Court also held (1) that there was sufficient evidence of abuse and/or neglectful acts to justify the circuit court’s adjudication, and (2) in a new syllabus point the Court held that a circuit court can order a parent whose parental rights have been terminated to pay child support for the child.

Affirmed.

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http://www.abanet.org/journal/ereport/jy25competent.html

IMPRESSIONS OF CLIENT COMPETENCY RULED OUT

Lawyer's Testimony About Former Client Breaches Privilege, Wisconsin Court Says
By Molly McDonough

Chris Van Wagner never used to hesitate when offering minor details to a judge explaining why he was questioning a client’s competency and requesting a psychiatric evaluation.

Van Wagner might argue that a client was unwilling or unable to communicate with him.  But that was before the Madison, Wis., lawyer took the appeal of convicted murderer Jerry J. Meeks.  Now, Van Wagner will be more careful.

In a case of first impression in Wisconsin, the state Supreme Court sided with Meeks in its ruling that one of his former lawyers violated attorney-client privilege by testifying about his competence to stand trial in a 1998 murder case.  Prosecutors had called the lawyer, a public defender who represented Meeks in three other cases, to testify that she never saw the need to raise competency as an issue.

The public defender never should have testified, the Wisconsin Supreme Court ruled July 11.  It is incumbent upon defense attorneys to raise competency as an issue if they see it, the court ruled, but they must stop there.  The court ruled 5-2 in Meeks= case that offering basic impressions, opinions or perceptions goes too far and violates attorney-client privilege.  State v. Meeks, No. 01-0263-CR.

The court vacated Meeks= sentence and remanded the case for retrial.

The majority acknowledged that its ruling differed with state and federal courts that have held that opinions, perceptions and impressions of competency cannot be shielded by privilege.  But the Wisconsin justices sided with a handful of other courts that have found that Adisclosure of even nonverbal communications.....violates the attorney-client privilege.@

AIn addition to opening the door to questions involving the relationship between the accused and counsel, other courts have held that a lawyer=s observations are inextricably intertwined with communications between the attorney and the client, and the lawyer=s opinion as to the client=s competency is based upon conclusions drawn in the course of a unique attorney-client relationship,@ Justice N. Patrick Crooks wrote for the majority.

Crooks cited a law review article by Rodney Uphoff, a law professor at the University of Missouri-Columbia.  Uphoff concluded that lawyers develop their impressions and opinions of client competency from private and confidential communications.  The Roles of the Criminal Defense Lawyer in Representing the Mentally Impaired Defendant: Zealous Advocate or Officer of the Court?  Wis. L. Rev. 65, 91 (1988).

The Wisconsin Supreme Court recognized a tension between Meeks and its 1986 decision, State v. Johnson, 395 N.W.2d 176, which established a lawyer=s affirmative duty to raise the competency issue.  Still, the majority reasoned, AAn attorney=s duty under Johnson demands a very narrow and limited breach of attorney-client privilege.@

AAny former attorney simply cannot comment on the state of mind or impressions of the state of mind of their client,@ says Van Wagner, who argued the appeal.  He is pleased with the result, but says it will have a dramatic impact on cases.  He says he will now avoid offering even basic descriptions of clients.  He also says this means lawyers must resist prodding questions from judges who might attempt to probe defense attorneys during evaluation hearings before deciding to order a psychiatric review, which can be expensive and time-consuming.  Lee Pray, the assistant attorney general who opposed Van Wagner at oral argument, agrees the decision curtails what defense lawyers may offer up about their clients.  A