State ex rel. Boso v. Hedrick

• Decision Date: 26 January 1990
• Docket Number: No. 18877,18877
• Parties: STATE of West Virginia ex rel. Randy Lee BOSO v. Jerry C. HEDRICK, Warden.
• Court: West Virginia Supreme Court

Page 614

391 S.E.2d 614

182 W.Va. 701

STATE of West Virginia ex rel. Randy Lee BOSO v. Jerry C. HEDRICK, Warden.

No. 18877.

Supreme Court of Appeals of West Virginia.

Jan. 26, 1990.

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).

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

3. "A prospective juror's consanguineal, marital or social relationship with an employee of a law enforcement agency does not operate as a per se disqualification for cause in a criminal case unless the law enforcement official is actively involved in the prosecution of the case. After establishing that such a relationship exists, a party has a right to obtain individual voir dire of the challenged juror to determine possible prejudice or bias arising from the relationship." Syllabus Point 6, State v. Beckett, 172 W.Va. 817, 310 S.E.2d 883 (1983).

4. "Under the Due Process Clause of the West Virginia Constitution, Article III, Section 10, and the presumption of innocence embodied therein, and Article III, Section 5, relating to the right against self-incrimination, it is reversible error for the prosecutor to cross-examine a defendant in regard to his pretrial silence or to comment on the same to the jury." Syllabus Point 1, State v. Boyd, 160 W.Va. 234, 233 S.E.2d 710 (1977).

5. "When constitutional claims of ineffective assistance of counsel, due to a conflict of interest are raised, either on direct appeal of a criminal conviction or in a habeas corpus proceeding founded on similar allegations, we apply the standard of review embodied in Syllabus Point 3 of State ex rel. Postelwaite v. Bechtold, 158 W.Va. 479, 212 S.E.2d 69 (1975), cert. denied, 424 U.S. 909, 96 S.Ct. 1103, 47 L.Ed.2d 312 (1976):

" 'The joint representation by counsel of two or more accused, jointly indicted and tried is not improper per se; and, one who claims ineffective assistance of counsel by reason of conflict of interest in the joint representation must demonstrate that the conflict is actual and not merely theoretical or speculative.' "

Syllabus Point 3, Cole v. White, 180 W.Va. 393, 376 S.E.2d 599 (1988).

6. " 'Article III, Section 5 of the West Virginia Constitution, which contains the cruel and unusual punishment counterpart to the Eighth Amendment of the United States Constitution, has an express statement of the proportionality principle: "Penalties shall be proportioned to the character and degree of the offence." ' Syllabus Point 8, State v. Vance, , 262 S.E.2d 423 (1980)." Syllabus Point 3, Wanstreet v. Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205 (1981).

7. "While our constitutional proportionality standards theoretically can apply to any criminal sentence, they are basically applicable to those sentences where there is either no fixed maximum set by statute or where there is a life recidivist sentence." Syllabus Point 4, Wanstreet v. Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205 (1981).

8. "In determining whether a given sentence violates the proportionality principle found in Article III, Section 5 of the West Virginia Constitution, consideration is given to the nature of the offense, the legislative purpose behind the punishment, a comparison of the punishment with what would be inflicted in other jurisdictions, and a comparison with other offenses within the same jurisdiction." Syllabus Point 5 Wanstreet v. Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205 (1981).

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." Syllabus Point 4, State ex rel. McMannis v. Mohn, 163 W.Va. 129, 254 S.E.2d 805 (1979).

Randy Lee Boso, pro se.

C. Terry Owen, Charleston, for Jerry C. Hedrick.

PER CURIAM:

The defendant below, Randy Lee Boso, appeals from an order of the Circuit Court of Marshall County, entered on December 17, 1987, denying him relief in habeas corpus.

Mr. Boso was indicted on three felony counts of burglary, breaking and entering, and aiding in concealing stolen property. On September 20, 1983, upon a trial by jury, Mr. Boso was convicted of burglary.

Following the defendant's conviction, the State filed a recidivist action, and a trial was conducted. Mr. Boso previously had been convicted of delivery of a controlled substance and breaking and entering, both of which were felony convictions. On October 5, 1983, Mr. Boso was sentenced to life imprisonment pursuant to W.Va.Code, 61-11-18 (1943). ¹

On July 18, 1984, Mr. Boso filed a petition for appeal from the judgment of the trial court. By order entered on November 13, 1984, this Court refused the petition for appeal. A second petition for appeal was filed by Mr. Boso on November 27, 1984. We also refused that petition on December 5, 1984. ²

Mr. Boso filed a petition for a writ of habeas corpus in the Circuit Court of Marshall County on February 21, 1985, raising the same issues asserted in the petitions for appeal. By order entered on February 26, 1985, the circuit court dismissed the petition.

Mr. Boso filed another petition for a writ of habeas corpus with the circuit court. On June 25, 1986, Mr. Boso petitioned this Court for a writ of mandamus to compel the circuit judge to act on his petition. We denied the petition for a writ of mandamus on July 3, 1986.

Subsequently, the Honorable Richard A. Warmuth and the Honorable Steven D. Narick voluntarily recused themselves. By order entered on August 20, 1986, we transferred this matter to the Honorable W. Craig Broadwater pursuant to the provisions of W.Va. Const. art. VIII, § 3. ³ Evidentiary hearings were conducted on December 31, 1986, January 16, 1987, and June 10, 1987. By order entered on December 17, 1987, the circuit court denied the writ and dismissed the case. It is from that order that Mr. Boso appeals.

I.

The principal assertion upon which Mr. Boso relies is that he was denied effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution and W.Va. Const. art. III, § 14. Mr. Boso contends that his appointed counsel at trial was ineffective because: (1) he failed to conduct further voir dire of members of the venire who disclosed relationships with law enforcement personnel; (2) he permitted the State without objection to cross-examine him and his mother concerning his pretrial silence; and (3) he failed to offer an alibi instruction when the defense of alibi was offered at trial. Mr Boso also asserts that appointed appellate counsel was ineffective because his law partner represented the codefendant at trial, and because his appointed counsel appeared in court with the codefendant at his sentencing hearing.

The analysis to be applied to claims of ineffective assistance of counsel was articulated by this Court in Syllabus Point 19 of State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974):

"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."

See also Syllabus Point 2, Scott v. Mohn, 165 W.Va. 393, 268 S.E.2d 117 (1980). We also stated in Syllabus Point 21 of State v. Thomas, supra:

"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."

See also Syllabus Point 10, State v. England, --- W.Va. ----, 376 S.E.2d 548 (1988).

Furthermore, it is well established that a petitioner 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 the evidence the charge made. Carrico v. Griffith, 165 W.Va. 812, 272 S.E.2d 235 (1980); State v. Thomas, supra; State ex rel. Scott v. Boles, 150 W.Va. 453, 147 S.E.2d 486 (1966); State ex rel. Owens v. King, 149 W.Va. 637, 142 S.E.2d 880 (1965).

We shall briefly address each of the four ineffective assistance of counsel claims raised by the defendant.

A.

First, the defendant contends that his defense counsel was ineffective in failing to request any individual voir dire of the members of the venire who revealed relationships with law enforcement personnel. The defendant argues that no defense attorney reasonably knowledgeable in the field would have failed to conduct such voir dire under these circumstances.

We stated in Syllabus Point 6 of State v. Beckett, --- W.Va. ----, 310 S.E.2d 883 (1983):

"A prospective juror's consanguineal, marital or...