State ex rel. Burkhamer v. Adams

• Decision Date: 27 May 1958
• Docket Number: No. 10961,10961
• Parties: STATE ex rel. James BURKHAMER v. Donivon E. ADAMS, Warden.
• Court: West Virginia Supreme Court

Page 777

103 S.E.2d 777

143 W.Va. 557

STATE ex rel. James BURKHAMER v. Donivon E. ADAMS, Warden.

No. 10961.

Supreme Court of Appeals of West Virginia.

Submitted April 22, 1958.

Decided May 27, 1958.

Syllabus by the Court

1. By virtue of the Rules of Practice of the Supreme Court of Appeals, exhibits of the Supreme Court of Appeals, exhibits corpus proceeding instituted in that Court.

2. An arraignment of a defendant on an indictment charging a felony, if the plea is made in open court by the defendant in person, is sufficient where the person arraigned is identified as the person named in the indictment, is fully advised as to the charge, as to his rights relating to the plea, as to his rights of a jury trial, and of the consequences of his plea, if the defendant intelligently understands and appreciates such advice and consequences.

3. In a proceeding in habeas corpus instituted in the Supreme Court of Appeals, involving the freedom of a person held in custody by virtue of certain judgments entered in a criminal proceeding against him, the Court may consider any part of the record of the criminal proceeding, if properly made a part of the record of the habeas corpus proceeding, for the purpose of determining whether such person has been denied or deprived of any constitutional or substantial right, rendering such judgments void.

4. 'A habeas corpus proceeding is not a substitute for a writ of error or other appellate process, and error in a final judgment in a criminal case cannot be considered or corrected in such proceeding; but if a sentence of imprisonment under which a person is confined is void, in whole or in part, it may be reached and controlled in a habeas corpus proceeding.' Point 1, Syllabus, Dye v. Skeen, 135 W.Va. 90 [62 S.E.2d 681, 24 A.L.R.2d 1234].

5. 'One serving a sentence in the penitentiary who seeks release by habeas corpus on the ground that the negligence and incompetence of the attorneys, who, by appointment of the court, conducted his defense, amounted to a denial of his right to the assistance of counsel under the Sixth Amendment to the Constitution of the United States, has the burden of proving the charge made.' Point 2, Syllabus, Ex parte Farmer, 123 W.Va. 304 .

6. A defendant, though below the average of persons of his age in mental capacity and intelligence, if he knows right from wrong, knows the nature, character and probable effect of his acts, knows that such acts will be hurtful to another and deserve punishment, is responsible for his criminal acts.

John S. Stump, Jr., Lloyd H. Young, Clarksburg, for relator.

W. W. Barron, Atty. Gen., W. Bernard Smith, Asst. Atty. Gen., for respondent.

GIVEN, Judge.

On the original petition, filed by the State at the relation of James Lee Burkhamer, apparently prepared by Burkhamer without aid of counsel, praying for a writ of habeas corpus ad subjiciendum against the warden of the state penitentiary, this Court awarded the writ and appointed counsel to represent Burkhamer in the proceeding. The appointed counsel filed an amended and supplemental petition, setting forth more clearly and in more detail the charges alluded to in the original petition, and alleged other grounds or bases for the release of Burkhamer, who will be referred to herein by name. Defendant, warden of the state penitentiary, in the answer and return filed herein, relies on certain judgment orders entered by the Criminal Court of Harrison County in a criminal proceeding against Burkhamer as justification of the imprisonment. What appears to be the entire record of the criminal proceeding is included in exhibits and filed with the pleadings in the instant proceeding. Testimony adduced in the instant proceeding is filed. Matters at issue were fully briefed and argued orally by counsel for Burkhamer and for the State.

It is the contention of Burkhamer, based on allegations in the pleadings, that the judgments by virtue of which he is imprisoned are void for the reason that the Criminal Court of Harrison County had no jurisdiction to enter the judgments, having lost jurisdiction in the denial of due process, in that Burkhamer was not properly arraigned, that he was not effectively represented by counsel, and that he, at the time of the arraignment, did not have sufficient mental capacity to intelligently understand the nature or effect of his plea, which was 'guilty of murder of the first degree'. No question is raised, and we think no question could have been justifiably raised, as to the sufficiency of the indictment to which the plea was made, of the jurisdiction of the Criminal Court of Harrison County of crimes of murder of the first degree, or as to the jurisdiction of that court over the person of Burkhamer.

From a full and careful study and consideration of the pleadings, exhibits, evidence and arguments, we are of the view that Burkhamer, as defendant in the criminal proceeding, was properly and effectively represented by three capable and experienced members of the Bar, two of whom were employed by the mother of Burkhamer with his full acquiescence, the third attorney having actively participated in the preparation and trial at the instance of the employed attorneys, but with the full knowledge and acquiescence of Burkhamer; that Burkhamer, at the time of entering the plea, possessed sufficient mental capacity to understand, and did understand, the full import, nature and effect thereof; and that he was not denied, or deprived, of any constitutional or substantial right in the arraignment on the indictment to which he entered his plea.

Burkhamer, at the time of his trial, was about twenty four years of age. On the evening of May 5, 1957, after dark, Charlene Vilain, a girl about eleven years of age, was sent by her mother to a nearby store to purchase some tea bags and ice cream. After making the purchases, on her return trip toward home she was attacked by Burkhamer, carried from the sidewalk through an alley, through a hedge, into the rear of a residence property. When found, a few minutes after the attack, the girl was dead from strangulation, and evidence established that an attempt of rape, at least, had been made upon her. Confessions of defendant admit the attack was made by him. Other evidence seems to establish, without doubt, the responsibility of Burkhamer for the attack and death. Such facts, and the nature, at least, of the evidence of the State to support them, were well known to Burkhamer, his mother other relatives, and the attorneys representing him, before the tender of his plea.

The crime was committed on May 5, 1957. The indictment was returned by a grand jury, at a regular term of court, on June 5, 1957. Burkhamer was first brought to the bar of the court on June 14, 1957, at which time his counsel moved the court to 'inquire into the mental condition of the defendant', which motion the court took time to consider. On the seventeenth day of the same month the motion was sustained, and the court then appointed Lynwood D. Zinn and James A. Thompson, medical doctors, to make an examination and report as to the mental condition of Burkhamer. This was done. On July 2, 1957, counsel for Burkhamer moved the court for a general continuance, which was denied. But the court did sustain a later motion for a continuance to July 23, 1957. On July 23, 1957, Burkhamer, the three attorneys representing him being present, tendered to the court his plea of guilty of murder of the first degree. Code, 62-3-15, provides: '* * * If the accused plead guilty of murder of the first degree, sentence of death or confinement in the penitentiary for life shall be pronounced upon him by the court, as may seem right, in the same manner and with like effect as if he had been found guilty by the verdict of a jury * * *'.

The order of July 23, 1957, shows that before the court accepted the plea tendered, Burkhamer was questioned at length by the court. The full procedure had in open court, between the time of tender of the plea and acceptance thereof by the court, is not set out in any order, but the order showing the tender and acceptance recites that 'the Court interrogated the defendant at length, which examination is recorded in the Court Reporter's notes, and then the Court suggested to defense counsel to again confer with the defendant in the attorney's conference room', which conference was held. After returning from that conference, the court asked counsel for Burkhamer, 'Do you believe he understands what he has done?'; and counsel stated: 'I am sure he does, Your Honor'. After further questioning of Burkhamer by the court, the order shows that he 'again stated to the Court that he wished his plea to stand, which said plea was then accepted by the Court, the defendant, in the opinion of the Court, having been cautioned properly and the penalties and nature of the offenses explained to him'. Sentence of death by electrocution, as provided by law, was not imposed until December 14, 1957.

On the same day of the entry of the order showing acceptance of the plea, July 23, 1957, a separate order was entered which recited the appearance of the two physicians appointed by the court to make examinations and reports of Burkhamer's mental condition, and the presentation of statements for the services rendered, the allowance of charges, and the direction that 'the Auditor of this State' make payment thereof 'out of the State Treasury, as provided by statute'. No other matter is mentioned in the order. Its only significance here is that Burkhamer contends it constituted a part of the criminal trial, and that the order should have recited the presence of Burkhamer at the time of the consideration of the matters mentioned therein. See Code, 62-3-2.

As noted in the order of July 23, 1957, recording the acceptance of the plea, the full proceedings had in open court with reference to the arraignment of Burkhamer, stenographic notes were made of the...