State ex rel. Kidd v. Leverette, 17146

• Decision Date: 15 July 1987
• Docket Number: No. 17146,17146
• Citation: 178 W.Va. 324,359 S.E.2d 344
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. Donald Mitchell KIDD v. Bobby LEVERETTE, as Warden, West Virginia Penitentiary.

Page 344

359 S.E.2d 344

178 W.Va. 324

STATE of West Virginia ex rel. Donald Mitchell KIDD v. Bobby LEVERETTE, as Warden, West Virginia Penitentiary.

No. 17146.

Supreme Court of Appeals of West Virginia.

July 15, 1987.

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. "Findings of fact made by a trial court in a post-conviction habeas corpus proceeding will not be set aside or reversed on appeal by this Court unless such findings are clearly wrong." Syllabus Point 1, State ex rel. Postelwaite v. Bechtold, 158 W.Va. 479, 212 S.E.2d 69 (1975).

Timothy N. Barber, Charleston, for appellant.

Charles King, Jr., Pros. Atty., Michele Rusen, Asst. Pros. Atty., Charleston, for appellee.

PER CURIAM:

This is an appeal by the State from a final judgment of the Circuit Court of Kanawha County rendered in a habeas corpus proceeding which declared the conviction of Donald Mitchell "Pete" Kidd void on the ground that he had been denied effective assistance of counsel at his trial.

On February 23, 1973, Pete Kidd, the defendant, was convicted of robbery by violence by a jury in the Circuit Court of Kanawha County and was sentenced to thirty years in the penitentiary. In March of 1974, the defendant filed a petition for a writ of habeas corpus alleging that his trial counsel had failed to file an appeal in his behalf. After a hearing on the matter, the defendant was resentenced on May 10, 1974 in order to extend the time for appeal his newly-appointed counsel filed an appeal in this Court on May 9, 1975, and it was subsequently refused.

On July 20, 1977, the defendant filed the present petition for a writ of habeas corpus. Up to this point, he had been incarcerated. After the filing of his petition, he was released on August 15, 1977 upon posting a $20,000 bond and has remained free under that bond since. An evidentiary hearing was held in the Circuit Court of Kanawha County on August 23, 1977 and was concluded the same day. No decision was rendered, however, until September 20, 1985, when the court wrote a letter to counsel informing them that the relief sought by the defendant would be granted. That letter was incorporated by reference into an order entered March 27, 1986 nunc pro tunc.

The facts relating to the underlying conviction are as follows. The defendant and Ronnie Caldwell were jointly indicted for the June 9, 1972 robbery of Charles Duncan. The evidence at trial was that Mr. Duncan, a resident of Oak Hill, was in Charleston to obtain license plates for his car and the car broke down. He was approached by a man he later identified as the defendant with an offer of assistance. They went to an apartment complex where they were joined by Ronnie Caldwell and on the way to Caldwell's truck, they stopped at a bar known as the Klondike Tavern. After drinking part of a beer Duncan became dizzy and asked the bartender to call a cab. He subsequently left the bar with the defendant and Caldwell, was driven down a dirt road, and robbed by the two men who beat and kicked him and took his wallet which Duncan testified contained $200.

After getting away from his assailants, Duncan ran to a nearby house and a cab was called at his request. He returned to his car which was now operating properly and drove home to Oak Hill. He returned to Charleston the following day and filed a complaint with the Charleston Police Department. Duncan then went back to the apartment complex where he and the defendant had met up with Ronnie Caldwell and waited until he saw the two men who had robbed him. He called the police and Ronnie Caldwell was arrested. The appellee was arrested some time later in Chicago.

In addition to the victim's testimony, the State presented evidence from the bartender at the Klondike Tavern who testified that he saw Charles Duncan with the defendant at the tavern on June 9, 1972. The bartender recognized the defendant as a bouncer from the Hello Dolly Club. In addition, Jeff Gunnoe, a young man who witnessed the assault, identified the defendant as one of the robbers and a cab driver testified that he picked up Charles Duncan on the day of the robbery in "a pretty bad state," with torn clothes and blood on his mouth and lips.

Detective Larry Morris testified that the victim was unable to make a positive identification of his assailants from a group of photographs shown to him but did choose a photograph that "looked like his assailant." The photo was not of the defendant and since the victim made a positive identification of the defendant shortly thereafter, no attempt was made to locate the person in the photograph. Detective Sam Sampson testified that approximately one week after the robbery he showed the victim a photograph of the defendant which he had obtained from penitentiary officials at Moundsville and the victim made a positive identification.

Mr. Kidd's defense at his trial was that he had been with a friend, Wiley McClaskie, when the robbery occurred, first having dinner at the Sterling Restaurant and then attending a boxing match at the Charleston Civic Center. He denied that he knew the victim and knew Caldwell only as an acquaintance. Wiley McClaskie corroborated the defendant's story about the dinner and boxing match. In addition, the defense called a bartender at the Brass Rail who testified that the victim was in the bar on the day of the robbery and appeared to be intoxicated.

Following his conviction, sentencing, resentencing, and the denial of his appeal in this Court, the defendant filed the present petition for a writ of habeas corpus in the Circuit Court of Kanawha County alleging ineffective assistance of counsel on the part of his trial counsel, Robert Perry, whom he had retained to represent him. At the evidentiary hearing on the petition, he basically asserted that Mr. Perry had refused any contact with him, either in person or by telephone, before, during and after the trial; that Mr. Perry failed to properly prepare and investigate the case; that he refused to call important witnesses at the trial; that he failed to discuss a plea bargain tendered by the prosecutor with the defendant even though Ronnie Caldwell, also a client of Mr. Perry's, pled guilty to grand larceny and received a much lighter sentence; that Mr. Perry refused to discuss trial strategy with the defendant; and that counsel's closing argument to the jury was outside the bounds of competent advocacy.

After hearing evidence on these issues, the trial court found that the defendant had been denied effective assistance of counsel. Specifically, the court found that Mr. Perry had no contact with the defendant for sixty (60) days after his arrest; that the next time the defendant saw his attorney was on the day of his trial; that Mr. Perry's secretary normally participated in preparation of trials but in this case she recalled no preparation and did not, in fact, have the...