State ex rel. Azeez v. Mangum, No. 22221

CourtSupreme Court of West Virginia
Writing for the CourtWORKMAN; McHUGH, C.J., and NEELY; McHUGH
Citation195 W.Va. 163,465 S.E.2d 163
PartiesSTATE of West Virginia ex rel. Jamal Adeen AZEEZ, Petitioner Below, Appellant, v. Michael MANGUM, Sheriff of Raleigh County, Respondent Below, Appellee.
Docket NumberNo. 22221
Decision Date14 December 1995

Page 163

465 S.E.2d 163
195 W.Va. 163
STATE of West Virginia ex rel. Jamal Adeen AZEEZ, Petitioner
Below, Appellant,
Michael MANGUM, Sheriff of Raleigh County, Respondent Below, Appellee.
No. 22221.
Supreme Court of Appeals of
West Virginia.
Submitted Jan. 17, 1995.
Decided July 13, 1995.
Dissenting Opinion of Chief Justice McHugh Dec. 14, 1995.

Page 165

[195 W.Va. 165] Syllabus by the Court

1. "It is a violation of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution for a member of a cognizable racial group to be tried on criminal charges by a jury from which members of his race have been purposely excluded." Syl. Pt. 1, State v. Marrs, 180 W.Va. 693, 379 S.E.2d 497 (1989).

2. "To establish a prima facie case for a violation of equal protection due to racial discrimination in the use of peremptory jury challenges by the State, 'the defendant first must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits "those to discriminate who are of a mind to discriminate." Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.' [Citations omitted.] Batson v. Kentucky, 476 U.S. 79 at 96, 106 S.Ct. 1712 at 1722, 90 L.Ed.2d 69 (1986)." Syl. Pt. 2, State v. Marrs, 180 W.Va. 693, 379 S.E.2d 497 (1989).

3. "The State may defeat a defendant's prima facie case of a violation of equal protection due to racial discrimination in selection of a jury by providing non-racial, credible reasons for using its peremptory challenges to strike members of the defendant's race from the jury." Syl. Pt. 3, State v. Marrs, 180 W.Va. 693, 379 S.E.2d 497 (1989).

4. Pursuant to the United States Supreme Court's decision in Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), a defendant in a criminal trial can assert a prima facie case of racial discrimination in the use of a peremptory challenge without having to be a member of the same racial group as the prospective juror who was the subject of the state's peremptory challenge. However, Powers established a new rule which precludes any retroactive application on collateral review to convictions that became final before Powers was announced.

5. "In the West Virginia courts, claims of ineffective assistance of counsel are to be governed by the two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1) Counsel's performance was deficient under an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

6. "In reviewing counsel's performance, courts must apply an objective standard and determine whether, in light of all the circumstances, the identified acts or omissions were outside the broad range of professionally competent assistance while at the same time refraining from engaging in hindsight or second-guessing of trial counsel's strategic decisions. Thus, a reviewing court asks whether a reasonable lawyer would have acted, under the circumstances, as defense counsel acted in the case at issue." Syl. Pt. 6, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

7. "The two central requirements for admission of extrajudicial testimony under the Confrontation Clause contained in the Sixth Amendment to the United States Constitution are: (1) demonstrating the unavailability of the witness to testify; and (2) proving the reliability of the witness's out-of-court statement." Syl. Pt. 2, State v. James Edward S., 184 W.Va. 408, 400 S.E.2d 843 (1990).

Page 166

[195 W.Va. 166] 8. "In order to satisfy its burden of showing that the witness is unavailable, the State must prove that it has made a good-faith effort to obtain the witness's attendance at trial. This showing necessarily requires substantial diligence." Syl. Pt. 3, State v. James Edward S., 184 W.Va. 408, 400 S.E.2d 843 (1990).

9. "A habeas corpus proceeding is not a substitute for a writ of error in that ordinary trial error not involving constitutional violations will not be reviewed." Syl. Pt. 4, State ex rel. McMannis v. Mohn, 163 W.Va. 129, 254 S.E.2d 805 (1979), cert. denied, 464 U.S. 831, 104 S.Ct. 110, 78 L.Ed.2d 112 (1983).

Paul R. Cranston, Morgantown, for Appellant.

Kristen L. Keller, Chief Deputy Prosecuting Attorney, Beckley, for Appellee.

WORKMAN, Justice:

This case is before the Court upon the appeal of Jamal Adeen Azeez from an order of the Circuit Court of Raleigh County denying Appellant's petition for a writ of habeas corpus at the conclusion of the December 14, 1992, omnibus hearing. The Appellant's petition for habeas corpus was based upon his July 31, 1987, jury conviction for second degree sexual assault, for which he was sentenced to not less than ten years nor more than twenty years in the state penitentiary. 1

It is helpful to first examine the facts underlying the Appellant's 1987 conviction. The Appellant worked as a lab technologist at the Appalachian Regional Hospital (hereinafter "hospital") in Beckley, West Virginia. The victim, Dara Corker, was an adult patient in the psychiatric ward of the hospital, who was diagnosed as suffering from a behavior disorder and was mentally retarded, moderately severe to severe.

Susan Phillips, a registered nurse at the hospital, testified that on February 5, 1987, while she was working on the evening shift in the psychiatric crisis unit, the night supervisor, Geneva Fox, informed her that she was looking for the Appellant. 2 Ms. Phillips testified that she knew the Appellant had been on the floor and went with Ms. Fox to look for him.

Ms. Fox then testified that she heard a noise emanating from the victim's room. When she opened the door to the victim's room, the room was dark 3 and the Appellant was leaning over the victim's bed. Further, according to Ms. Fox's testimony, "it looked like his pants were undone." Ms. Fox testified that she asked the Appellant what he was doing, to which he responded that "he was trying to get some blood...." 4 Ms. Phillips also testified that when they entered the room, the victim was yelling "[h]e stuck his wingding in me" and pleading for the nurses to not "let him hurt me again...."

Page 167

[195 W.Va. 167] Jean Gieseking was also a nurse at the hospital and was present when the Appellant was located. She testified that when the Appellant left the room, she observed that the victim's gown was pulled up to her waist, and her pajama pants were untied and slid down to about her hip line. Also, Ms. Gieseking testified that upon her further examination of the victim's groin area, "I thought I saw what looked like sperm in her [the victim's] pubic hair." Ms. Phillips, on her own initiative, performed a vaginal swab and turned it over to Ms. Fox. 5

The victim also testified at trial. Even though it was undisputed that the victim was mentally retarded and suffered from a behavior disorder, the Appellant never renewed his pretrial objection to the victim's competency to testify at trial. 6 During a very succinct direct examination by the State, the victim testified that while she was a patient in the hospital, a man had come into her room and "stuck his wingding in me." The victim was unable to identify the man who had done this, and stated only that he had "stuck needles in me[,]" prior to the assault and had "dared" her to scream. The Appellant conducted a lengthy cross-examination of the victim which established that the victim thought a soap opera star named "Bobbie" had fathered her child. Also, according to the victim, "Bobbie" had been in her room on the same night that the Appellant allegedly sexually assaulted her. Further, the victim testified that she had never seen the Appellant before, and she did not know his name. Finally, the victim testified that she had had hallucinations in that she kept hearing power saws and a "choo-choo train."

Other evidence introduced by the State included the evidentiary deposition of Dr. Zarina Rasheed, the chief pathologist at the hospital who analyzed the vaginal swab specimen taken by Ms. Phillips shortly after the incident. 7 Dr. Rasheed conducted his analysis of the swab on the morning after the specimen was taken by Ms. Phillips. Dr. Rasheed testified that sperm cells were found on slides prepared from the vaginal swab; however, the doctor could not testify, based on the tests conducted, when exactly intercourse occurred with the victim, or that the sperm came from the Appellant. 8 Additionally, the victim had been examined by Dr. Slack in the emergency room of the hospital on the morning after the alleged sexual assault occurred. Dr. Slack used a Market Malicious Assault Kit (hereinafter "kit") 9 in conducting his examination of the victim. That kit was turned over to Detective Cedric R. Robertson of the City of Beckley Police Department, who in turn sent the kit to the Criminal Identification Bureau (hereinafter "C.I.B.") lab in Charleston, West Virginia, for analysis. The State entered into a stipulation with the Appellant that the laboratory analysis conducted on evidence obtained from the kit were negative. 10 That stipulation was

Page 168

[195 W.Va. 168] read to the jury. 11 Strangely enough, there is no indication in the record that either the State or the defense apparently ever sought a blood sample from the Appellant in order to do a comparison.

The Appellant testified that he was in the victim's room to take blood from...

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