Marano v. Holland

Citation366 S.E.2d 117,179 W.Va. 156
Decision Date01 February 1988
Docket NumberNo. 17434,17434
CourtWest Virginia Supreme Court
PartiesCharles D. MARANO v. Manfred HOLLAND, Warden, West Virginia Penitentiary.

Syllabus by the Court

1. Under Rule 16(b) of the West Virginia Rules of Criminal Procedure the State's right to request discovery from a defendant is triggered only if the defendant initially seeks discovery, and is confined to the particular area in which the defendant has sought discovery. Additionally, the State must have complied with the 2. "The Fourth Amendment of the United States Constitution, and Article III, Section 6, of the West Virginia Constitution protect an individual's reasonable expectation of privacy." Syllabus Point 7, State v. Peacher, 167 W.Va. 540, 280 S.E.2d 559 (1981).

defendant's initial discovery request before it can request discovery.

3. Conversation or material delivered by a defendant, at his attorney's direction, to a psychiatric expert retained by the attorney in preparation for a mental defense is within the attorney-client privilege.

4. For Fourth Amendment purposes, the fact that a document compelled to be produced may be self-incriminating is ordinarily of no consequence.

5. As an absolute minimum, the Fourth Amendment demands that a criminal defendant's private papers, in which there has been found to exist a reasonable expectation of privacy, cannot be seized by law enforcement officials in the absence of a valid warrant issued upon probable cause.

6. A witness's testimony which is obtained or substantially influenced by materials seized in violation of the Fourth Amendment may be suppressed.

7. " 'Failure to observe a constitutional right constitutes reversible error unless it can be shown that the error was harmless beyond a reasonable doubt.' Syllabus Point 5, State ex rel. Grob v. Blair, W.Va. , 214 S.E.2d 330 (1975)." Syllabus Point 5, State v. Boyd, 160 W.Va. 234, 233 S.E.2d 710 (1977).

8. The Fifth Amendment privilege against self-incrimination has been interpreted to provide protection only where incriminating evidence of a testimonial or communicative nature is sought from a witness through the vehicle of state compulsion.

9. The Fifth Amendment protects only against compelled communications. It does not extend to the contents of documents which are obtained by compulsory process where such documents have been voluntarily prepared.

10. Where papers are prepared by a person who is subject to a subpoena duces tecum, the possibility of testimonial self-incrimination exists if production of the papers authenticates them sufficiently to make them admissible in evidence.

11. The attorney-client privilege originated at common law, and has as its principal object the promotion of full and frank discourse between attorney and client so as to insure sound legal advice or advocacy.

12. The attorney-client privilege may be waived if disclosure of privileged communications is made to third parties.

13. "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).

14. "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." Syllabus Point 21, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).

15. One spouse's interception of telephone communications by the other is a violation of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510, et seq., which by its terms renders them inadmissible.

16. "An unconditional discharge from confinement upon the issuance of a writ of habeas corpus does not ordinarily operate to bar further prosecution under principles of double jeopardy." Syllabus Point 3 17. "Retrial must occur within three terms after the term in which relief is granted upon habeas corpus or appellate review, subject to the statutory exceptions excusing delay under W.Va.Code, 62-3-21." Syllabus Point 1, State v. Moore, 178 W.Va. 98, 357 S.E.2d 780 (1987).

Rhodes v. Leverette, 160 W.Va. 781, 239 S.E.2d 136 (1977).

Geary M. Battistelli, Wheeling, for plaintiff.

Charles G. Brown, Atty. Gen., Silas B. Taylor, Deputy Atty. Gen., for defendant.

MILLER, Justice:

The State appeals an order of the Circuit Court of Ohio County which granted habeas corpus relief to the defendant, Charles D. Marano, by setting aside his conviction for first degree murder. 1 The court, in its order, relied principally upon two grounds: (1) the compulsory production of papers delivered by the defendant to psychiatrists retained by his attorney, in violation of the Fourth, Fifth, and Sixth Amendments, and (2) ineffective assistance of counsel in violation of the Sixth Amendment. We conclude that there was constitutional error, and substantially affirm the judgment. However, we reverse insofar as the order required retrial within ninety days, and remand for entry of an appropriate order.

I. FACTS
A. The Criminal Trial

On October 11, 1983, at an automobile body shop in Ohio County, West Virginia, the defendant killed Gregory Jay Dean with multiple shotgun blasts. It was contended the shooting occurred after the defendant learned that Mr. Dean, his best friend and business partner, was romantically involved with his wife. The defendant was indicted for murder and tried in the Circuit Court of Ohio County in March, 1984.

The State presented uncontroverted evidence which detailed the circumstances of the shooting and its aftermath. Robert Weisehaudt, an eyewitness, lived next to the body shop which was jointly operated by Mr. Dean and the defendant. At approximately 12:30 p.m. on the day of the shooting, Mr. Weisehaudt heard a gunshot and walked to a vantage point 100 yards from the body shop. He observed the two men running and shouting outside of the shop. The defendant was armed with a shotgun. As the defendant began to move toward Mr. Dean, he pointed the gun toward Mr. Dean's lower body and said: "Suffer, you son-of-a-bitch, like me." He discharged his weapon and Mr. Weisehaudt immediately summoned the police.

Shortly after the shooting, the defendant made two non-custodial confessions which were admitted at trial. At 12:55 p.m., he placed a call to the Wheeling police department and reported to the desk sergeant: "I just shot somebody here for f--king my wife." He also described where the shooting had taken place and named Mr. Dean as the victim. Minutes later, while awaiting the arrival of the police, the defendant answered a telephone call at the shop. When the caller inquired as to the whereabouts of Mr. Dean, the defendant replied: "I just killed him. He's f--king my wife."

The defendant utilized an insanity defense and presented three psychological experts, all of whom agreed he was not criminally responsible under State v. Myers, 159 W.Va. 353, 222 S.E.2d 300 (1976). 2 Their testimony tended to portray the defendant as an emotionally fragile man who was heavily dependent upon family relationships. His friendship with Mr. Dean was Thereafter, in an effort to secure evidence of suspected infidelity, the defendant began to surreptitiously tape record his wife's telephone conversations. Two days prior to the killing, he listened to one of the tapes and learned his wife was having a number of extramarital relationships. He became quite upset and apparently sought assistance at a mental health facility, though he did not receive treatment. Two days later, he retrieved additional tapes. These tapes disclosed that his wife had had a sexual liaison with Mr. Dean and, further, that they planned to rendezvous that very day.

very close, and was analogized to the relationship between father and son. The defendant viewed his wife, Sherry, as his "dream girl," and their marriage was said to partake of an almost "fairy tale" quality. For a variety of reasons, however, the marriage began to disintegrate. His wife sued for divorce, and the two were separated in February, 1983. Though the defendant repeatedly attempted reconciliation, he was unsuccessful.

The thrust of the defendant's insanity theory was that the tapes acted to precipitate the killing. His psychologists testified that, after he heard the tapes, the defendant claimed to have experienced auditory hallucinations which he believed to be the voice of God. He was commanded to kill Mr. Dean, and honestly believed he was carrying out the will of God when he did so. The defense psychologists were, therefore, of the view that he lacked the capacity to appreciate the wrongfulness of the killing.

The State, on rebuttal, called a psychologist who had examined the defendant prior to trial and was privy to papers provided by the defendant to his own psychologists. It was her opinion that the defendant suffered a major depressive disorder, but was not psychotic. She concluded that the defendant had the ability to appreciate the criminality of his conduct. However, the question of whether he was able to conform his conduct to the law was, in her words, one "for the jury." On March 31, 1984, the jury returned a verdict of guilty of first degree murder with a recommendation of mercy.

B. Habeas Proceeding

The defendant petitioned pro se for a writ of habeas corpus in October, 1985, and counsel was appointed to...

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