Carrico v. Griffith, 14169

• Citation: 165 W.Va. 812,272 S.E.2d 235
• Decision Date: 25 November 1980
• Docket Number: No. 14169,14169
• Court: Supreme Court of West Virginia
• Parties: Joseph CARRICO v. Harry L. GRIFFITH, Acting Warden Huttonsville Correctional Center.

Page 235

272 S.E.2d 235

165 W.Va. 812

Joseph CARRICO v. Harry L. GRIFFITH, Acting Warden Huttonsville Correctional Center.

No. 14169.

Supreme Court of Appeals of West Virginia.

Nov. 25, 1980.

Syllabus by the Court

1. " 'In the determination of a claim that an accused was prejudiced by ineffective assistance of counsel violative of Article III, Section 14 of the West Virginia Constitution and the Sixth Amendment to the United States Constitution, courts should measure and compare the questioned counsel's performance by whether he exhibited the normal and customary degree of skill possessed by attorneys who are reasonably knowledgeable of criminal law, except that proved counsel error which does not affect the outcome of the case, will be regarded as harmless error.' Syllabus, Point 19, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974)." Syllabus Point 2, Scott v. Mohn, W.Va., 268 S.E.2d 117 (1980).

2. "One who charges on appeal that his trial counsel was ineffective and that such resulted in his conviction, must prove the allegation by a preponderance of the evidence." Syllabus, Point 22, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).

Calwell, McCormick & Peyton and W. Stuart Calwell, Jr., Nitro, for plaintiff in error.

Chauncey H. Browning, Atty. Gen., Gregory W. Bailey, Deputy Atty. Gen., Richard S. Glaser, Jr., Asst. Atty. Gen., Charleston, for defendant in error.

CAPLAN, Justice:

This is an appeal by Joseph Carrico from a final order of the Circuit Court of Wayne County wherein the appellant was denied relief in habeas corpus.

On April 2, 1971, upon a trial by jury, the appellant was convicted of the offense of forcible rape and, under the then effective statute, W.Va. Code, 1931, 61-2-15, as amended, the jury having recommended mercy, said appellant was sentenced to confinement in the state penitentiary for a term of ten to twenty years. No appeal was taken from that conviction.

The appellant, on January 28, 1977, filed a petition for a writ of habeas corpus alleging therein that he was denied effective assistance of counsel and that he was not afforded a fair and impartial trial in 1971. The writ was granted, returnable to the Circuit Court of Wayne County. After a hearing, that court, on July 1, 1977, denied the relief sought. It is from the order so denying the relief that this appeal is prosecuted. We affirm.

The principal ground relied upon by the appellant is that he was denied effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution and Article 3, Section 14 of the West Virginia Constitution. Basically the appellant asserts that his trial counsel failed to properly investigate the case; that he failed to call important witnesses at the trial; and that he failed to adequately represent him at the post-trial stage of the proceedings.

Prior to 1974, this Court had not clearly defined minimum standards which constitute competent and effective assistance of counsel. In State ex rel. Burkhamer v. Adams, 143 W.Va. 557, 103 S.E.2d 777 (1958) the Court noted that whether or not another counsel would have pursued a different course of procedure is no test. It then said:

A defendant in a criminal case is not constitutionally guaranteed such assistance of counsel as will necessarily result in his acquittal. Counsel, of course, must diligently attempt to see that no constitutional or substantial right is denied such a defendant and that he is afforded a fair and impartial trial.

This was reiterated in State ex rel. Owens v. King, 149 W.Va. 637, 142 S.E.2d 880 (1965). Commenting further on the competent counsel issue, the Court, in State ex rel. Robison v. Boles, 149 W.Va. 516, 142 S.E.2d 55 (1965), quoting from State ex rel. Clark v. Adams, 144 W.Va. 771, 111 S.E.2d 336 (1959), said:

To justify a writ of habeas corpus on the ground of incompetency of counsel an extreme case must exist and it must appear that there has been much more than inadequacy of representation by counsel chosen by the defendant.

Historically, courts have held that one could not successfully complain of ineffective assistance of counsel unless his counsel's efforts were so inadequate that the trial was rendered a farce and a mockery of justice. See Spears v. U. S., 250 F.Supp. 698 (S.D.W.Va.1966); Gibson v. Boles, 288 F.Supp. 472 (N.D.W.Va.1968); Channell v. Coiner, 297 F.Supp. 1005 (N.D.W.Va.1969); Johnson v. Coiner, 308 F.Supp. 1373 (S.D.W.Va.1970); and Plumley v. Coiner, 361 F.Supp. 1117 (S.D.W.Va.1973). Confronted again with the "effective assistance of counsel" issue, the Court, in State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974) rejected the "farce and mockery of justice" test and adopted a more modern standard under which the effectiveness of counsel assistance would be judged. The Court, in Thomas, said:

In the determination of a claim that an accused was prejudiced by ineffective assistance of counsel ... courts should measure and compare the questioned counsel's performance by whether he exhibited the normal and customary degree of skill possessed by attorneys who are reasonably knowledgeable of criminal law.

If counsel's error, proven to have occurred, would not have changed the outcome of the case, it will be treated as harmless error.

See Scott v. Mohn, W.Va., 268 S.E.2d 117 (1980), wherein the standards for determining the effectiveness of counsel were further developed.

It has been firmly established by this Court that one who seeks release from imprisonment by habeas corpus on the ground of ineffective assistance of counsel has the burden of proving by a preponderance of evidence the charge made. State ex rel. Owens v. King, supra. See State v. Thomas, supra and State ex rel. Scott v. Boles, 150 W.Va. 453, 147 S.E.2d 486 (1966). Let us now look to the facts of this case to determine whether or not the appellant successfully bore that burden.

The appellant asserts as his first ground of ineffective assistance that his trial attorney failed to adequately investigate the case. The record is not illuminating on the actual preparation by counsel prior to trial. Counsel's recollection of pre-trial investigation was vague, at best, the habeas corpus hearing having been held nearly six years after the trial of the case. The evidence at the hearing does establish that prior to the trial, counsel did not talk with the alleged victim of the crime or her male companion of the evening in question and could not recall whether or not he had interviewed the investigating officers. Counsel testified that he had conducted numerous interviews and conferences with the defendant, the defendant's father and counsel for the co-defendants in the case. He related that he used the transcripts of preliminary hearings of the codefendants to gain further information. Counsel vaguely recalled having a medical examination conducted at West Virginia University Hospital regarding the defendant's mental competency, but decided against introducing evidence received from the medical reports. He testified that prior to the trial, he had a fairly complete picture of what the defense was confronted with and that he was not surprised by any evidence introduced at trial.

The issue was briefly discussed in Carter v. Bordenkircher, W.Va., 226 S.E.2d 711 (1976), where we found:

We do not hold that a lawyer's failure to investigate a material element in his client's defense cannot constitute ineffective assistance of counsel; in fact, as the Third Circuit said in Moore v. United States, 432 F.2d 739 (1970) "... (R)epresentation involves more than the courtroom conduct of the advocate. The exercise of the utmost skill during the trial is not enough if counsel has neglected the necessary investigation and preparation of the case or failed to interview essential witnesses or to arrange for their attendance." However this Court takes notice that in the practice of criminal law it is not always possible for a lawyer to investigate every avenue suggested to him by his client. A lawyer must use his own skill and judgment to determine what evidence is relevant and what facts will materially aid his client in demonstrating innocence.

After a thorough examination of the trial transcript, this Court concluded that failure to introduce certain impeachment evidence did not amount to ineffective assistance since counsel could not anticipate every possible avenue of impeachment and since the evidence would not have changed the result of the trial.

The record in this case establishes that counsel failed to interview certain prosecution witnesses. The appellant did not introduce any evidence at the habeas corpus hearing tending to show what evidence would have been revealed by an independent investigation of the state's witnesses, or that such investigation would have produced evidence which would have changed the outcome of the trial. In addition, the trial transcript is not before this Court, so we cannot examine counsel's effectiveness at trial in cross-examining the state's witnesses. Upon the record in this case, we cannot conclude that counsel failed to adequately investigate the case and that this failure prejudiced the defendant and changed the outcome of the trial. As herein noted, the appellant had the burden of proof to show by a preponderance of the evidence that trial counsel was ineffective and that prejudice resulted to the accused as a result of such ineffectiveness. "This burden is on the defendant to establish his allegation ... not as a matter of speculation but as a demonstrable reality ..." State ex rel. Wine v. Bordenkircher, W.Va., 230 S.E.2d 747 (1976). The appellant has failed to meet this burden at the habeas corpus hearing.

The appellant further asserts that counsel was ineffective at trial in that he failed to call important witnesses. This assertion raises two issues: failure to call witnesses who would testify to the alleged victim's reputation as to...