Acord v. Hedrick

• Decision Date: 11 March 1986
• Docket Number: No. 16963,16963
• Citation: 342 S.E.2d 120,176 W.Va. 154
• Court: West Virginia Supreme Court
• Parties: Rodger ACORD v. Jerry HEDRICK, Warden, West Virginia Penitentiary

Page 120

342 S.E.2d 120

176 W.Va. 154

Rodger ACORD v. Jerry HEDRICK, Warden, West Virginia Penitentiary

No. 16963.

Supreme Court of Appeals of

West Virginia.

March 11, 1986.

Syllabus by the Court

1. The gravamen of any "prosecutorial overmatch" claim is proof of ineffectiveness of counsel as determined by reference to the trial record.

2. "Where a counsel's performance, attacked as ineffective, arises from occurrences involving strategy, tactics and arguable courses of action, his conduct will be deemed effectively assistive of his client's interests, unless no reasonably qualified defense attorney would have so acted in the defense of an accused." Syl. Pt. 21, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1977).

3. "The exceptions permitting evidence of collateral crimes and charges to be admissible against an accused are recognized as follows: the evidence is admissible if it tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others; and (5) the identity of the person charged with the commission of the crime on trial." Syl. Pt. 12, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).

4. "When an accurate physical replica of an unavailable object is helpful in clarifying a witness's testimony, that replica may, in the discretion of the trial court, be introduced into evidence." Syl. Pt. 2, State v. Acord, 175 W.Va. 611, 336 S.E.2d 741 (1985).

5. "In a criminal trial an accomplice may testify as a witness on behalf of the State to having entered a plea of guilty to the crime charged against a defendant where such testimony is not for the purpose of proving the guilt of the defendant and is relevant to the issue of the witness-accomplice's credibility. The failure by a trial judge to give a jury instruction so limiting such testimony is, however, reversible error." Syl. Pt. 3, State v. Caudill, 170 W.Va. 74, 289 S.E.2d 748 (1982).

6. Although the prosecution may not use a criminal defendant's post arrest silence to impeach the defendant's later testimony, it is not an unfair use of silence to cross-examine a criminal defendant concerning prior inconsistent statements made after receiving Miranda warnings.

7. "In certain circumstances evidence of the flight of the defendant will be admissible in a criminal trial as evidence of the defendant's guilty conscience or knowledge. Prior to admitting such evidence, however, the trial judge, upon request by either the State or the defendant, should hold an in camera hearing to determine whether the probative value of such evidence outweighs its possible prejudicial effect." Syl. Pt. 6, State v. Payne, 167 W.Va. 252, 280 S.E.2d 72 (1981).

8. "The right to obtain a private prosecutor in this State is not absolute and is subject to judicial control and review. A private prosecutor is subject to the same high standards of conduct in the trial of the case as is the public prosecutor." Syl. Pt. 1, State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979).

9. At the appellate level, a complaint against a private prosecutor must be bottomed on an instance of the private prosecutor's misconduct that in some way prejudiced the defendant.

10. "Because of the holding in Adkins v. Bordenkircher, 674 F.2d 279 (4th Cir.1982), cert. denied, 459 U.S. 853, 103 S.Ct. 119, 74 L.Ed.2d 104 (1982), State v. Alexander, 161 W.Va. 776, 245 S.E.2d 633 (1978), is overruled to the extent that it permits the giving of an instruction that places the burden upon the defendant to prove his alibi defense sufficiently to create a reasonable doubt in the mind of the jury as to his guilt." Syl. Pt. 1, State v. Kopa, 173 W.Va. 43, 311 S.E.2d 412 (1984). [Citations and Dates Added].

11. W.Va.Code 62-12-2(b) [1981] does not require that there be evidence that each principal in the first degree involved in a felony held a gun at all times. As long as there is evidence from which the jury can logically infer that the principal used a gun in the commission of the felony, the principal is subject to the provisions of W.Va.Code 62-12-2(b) [1981].

Lee H. Adler, Beckley, for appellant.

Bethany Boyd, Asst. Atty. Gen., Charleston, for appellee.

NEELY, Justice:

On 13 January 1983 a Raleigh County jury found Rodger Acord guilty of first-degree sexual assault and subsequently the trial court sentenced him to ten to twenty years in the West Virginia Penitentiary. Mr. Acord has petitioned this Court for a writ of habeas corpus in which he alleges several errors of constitutional dimensions in the proceedings below. We find no error warranting an award of a writ.

The heart of Mr. Acord's petition is his claim that the trial court wrongly permitted a privately retained lawyer to aid the State in its prosecution against him. Mr. Acord contends that: the private prosecutor "overmatched" his court appointed counsel; as a result of this "overmatch" his trial was riddled with a spate of reversible errors; and, he was deprived of effective assistance of counsel.

I

The victim's family hired Warren A. Thornhill, III to help prosecute the case against Mr. Acord. With the aid of the Prosecuting Attorney of Raleigh County, K. Bruce Lazenby, Mr. Thornhill faced the team of James R. Sheatsley and Norman Knapp. Although this case was Mr. Sheatsley's first criminal trial, his co-counsel, Mr. Knapp had been a circuit judge in this State's Tenth Judicial Circuit for 16 years. When we view defense counsel as a team, we must conclude that Mr. Acord had counsel with considerable trial experience working on his behalf. Furthermore, we cannot agree with Mr. Acord's assertion that Mr. Knapp's assistance to Mr. Sheatsley was mere "window dressing." The record shows that Mr. Knapp helped prepare the case, was active at trial, cross-examined witnesses, and made a closing argument. A mere imbalance between defense counsel and prosecution does not invalidate a criminal trial. Due process of law does not require that every criminal case be prosecuted by a Thomas Dewey, defended by a Clarence Darrow, and tried before a John Marshall. ¹

A.

This Court has acknowledged that the trial court has a responsibility to see that a "prosecutorial overmatch" does not deprive a criminal defendant of due process of law, but we have also held that defense counsel's inexperience alone is not enough to prove "overmatch." The gravamen of any "prosecutorial overmatch" claim is proof of ineffectiveness of counsel as determined by reference to the trial record. State v. Pratt, 161 W.Va. 530, 535, 244 S.E.2d 227, 230 (1978). The trial record does not disclose that Mr. Sheatsley or Mr. Knapp allowed the prosecution to introduce incompetent evidence of a prejudicial nature, or that they unwittingly allowed the prosecution to achieve any other undue advantage. On the contrary, the record shows that Mr. Sheatsley and Mr. Knapp gave Mr. Acord a vigorous and well conceived defense.

"Ineffectiveness of counsel" is not a charge easily shown. Proof requires more than a second guessing of counsel's trial conduct. As we have stated:

"Where a counsel's performance, attacked as ineffective, arises from occurrences involving strategy, tactics and arguable courses of action, his conduct will be deemed effectively assistive of his client's interests, unless no reasonably qualified defense attorney would have so acted in the defense of an accused."

Syl. Pt. 21, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974). Similarly, the United States Supreme Court has adopted a "reasonably effective assistance" standard that requires that a defendant first show that his counsel's performance was deficient and prejudiced his defense before they will find that counsel was ineffective. Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Courts will not apply this standard in hindsight. The Supreme Court has held:

A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." [Citation omitted] There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.

Strickland, 466 U.S. at 689, 104 S.Ct. at 2065-2066. Even in hindsight, Mr. Acord's counsel did a competent job. Mr. Acord has not shown that he has been the victim of ineffective counsel much less the victim of "prosecutorial overmatch."

B.

To buttress his claim, Mr. Acord points to several specific examples of prosecutorial and defense conduct. None of his examples shows "overmatch" or ineffective assistance of counsel.

Mr. Acord suggests that Mr. Thornhill improperly questioned witnesses about items stolen from the victim's house on the night of the assault. But, this testimony was not used to show the defendant's propensity toward criminality, but rather it served to establish the identity of the person charged with the commission of the crime, and thus it is an exception to the collateral crime rule. State v. Gum, 172 W.Va. 534, 309 S.E.2d 32, 41 (1983); Syl. pt. 12, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974). Nor was it prejudicial to introduce a facsimile of a ring that was stolen during the robbery. In a companion case involving Mr. Acord's brother, we stated:

When an accurate physical replica of an unavailable object is helpful in clarifying a...