State ex rel. Levitt v. Bordenkircher
| Decision Date | 12 March 1986 |
| Docket Number | No. 16756,16756 |
| Citation | 176 W.Va. 162,342 S.E.2d 127 |
| Parties | STATE of West Virginia ex rel. Lance LEVITT v. Donald BORDENKIRCHER, Warden, West Virginia Penitentiary. |
| Court | West Virginia Supreme Court |
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." Syl. pt. 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." Syl. pt. 21, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).
3. Syl. pt. 7, State v. Sims, 162 W.Va. 212, 248 S.E.2d 834 (1978).
4. "Before a guilty plea will be set aside based on the fact that the defendant was incompetently advised, it must be shown that (1) counsel did act incompetently; (2) the incompetency must relate to a matter which would have substantially affected the fact-finding process if the case had proceeded to trial; (3) the guilty plea must have been motivated by this error." Syl. pt. 3, State v. Sims, 162 W.Va. 212, 248 S.E.2d 834 (1978).
5. A defendant in a criminal case, whose voluntary tape recorded confession to police authorities indicated that he was guilty of murder of the first degree under the West Virginia "felony-murder rule," who entered a plea of guilty to murder of the first degree and received a sentence of life imprisonment, without a recommendation of mercy, failed to demonstrate that his conviction and sentence resulted from ineffective assistance of counsel, where his counsel (1) filed various pre-trial motions upon the defendant's behalf, including motions to discover the nature of the State's evidence, (2) evaluated the strength of the evidence against the defendant and met with the defendant upon several occasions prior to recommending the guilty plea and (3) attempted to mitigate the defendant's sentence by eliciting testimony from witnesses who stated that the defendant "turned himself in," helped the authorities locate a revolver used during the crime, and would, in time, be a good candidate for parole. W.Va.Code, 61-2-1 [1931].
Fitzsimmons & Parsons, William E. Parsons, II, Robert P. Fitzsimmons, Jacob M. Robinson, Robinson & Dickinson, Wheeling, for appellant.
Mary Beth Kershner, Asst. Atty. Gen., Charleston, for appellee.
This action is before this Court upon the appeal of Lance Levitt from the final order of the Circuit Court of Marshall County, West Virginia. Pursuant to that order, entered in February, 1985, the circuit court denied the appellant relief in habeas corpus with regard to his conviction of murder of the first degree. W.Va.Code, 61-2-1 [1931]. This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel.
On the night of May 17, 1971, Pamela W., age twelve, and her older sister, Louise, were walking in the Elm Grove area of Wheeling, Ohio County, West Virginia. A man carrying a revolver approached the two girls and told Louise to lie down in some nearby bushes or he would shoot "her friend." Louise hesitated, and in the intervening moments, the revolver fired and the man fled the scene. Pamela W., struck by the bullet, died a few days later. 1
In August, 1972, while incarcerated in the State of Ohio upon an unrelated offense, the appellant sent letters to the Wheeling Police Department indicating that he wanted to discuss the shooting of Pamela W. Later that month, in the presence of Ohio County, West Virginia, authorities the appellant gave a tape recorded confession. 2 In addition, the appellant assisted the authorities in locating the revolver. 3
In September, 1972, the appellant was indicted in Ohio County for murder of the first degree. W.Va.Code, 61-2-1 [1931]. Counsel was appointed to represent him. The appellant's counsel moved to enter a plea of guilty to murder of the second degree. That motion, however, was denied.
Thereafter, the appellant's counsel filed various pretrial motions, including (1) a motion for a bill of particulars, (2) a motion to obtain a list of State witnesses, (3) a motion for the disclosure of exculpatory evidence and (4) certain motions to produce, inspect and copy certain documents, reports, etc. The circuit court required the State to comply with the informational requests reflected in those motions. The appellant's counsel, however, did not move to suppress the appellant's confession.
In March, 1973, the Circuit Court of Ohio County accepted the appellant's plea of guilty to murder of the first degree. The appellant entered that plea upon the recommendation of his counsel. Although there was no "plea bargain" between appellant's counsel and the State with respect to the plea, the appellant's counsel believed that, in view of the confession, a jury trial would be a "futile effort."
The circuit court subsequently conducted an evidentiary hearing concerning the imposition of sentence. The appellant called two witnesses at that hearing: Joseph Noll, a Wheeling police lieutenant, and Dr. Herbert Thomas, a psychiatrist. Noll testified that the appellant confessed to the shooting and aided the authorities in locating the revolver. Dr. Thomas testified that he examined the appellant and concluded that the appellant suffered from a "passive aggressive personality." Dr. Thomas further testified that the appellant would benefit from incarceration and would, after a few years, be a good candidate for parole. The State called no witnesses at the hearing.
At the conclusion of the hearing, the circuit court sentenced the appellant to a term of life imprisonment, without a recommendation of mercy. W.Va.Code, 62-3-15 [1965].
In 1982, the appellant filed an amended habeas corpus petition in the Circuit Court of Ohio County. The appellant contended, inter alia, that his conviction of murder of the first degree, and sentence, resulted from ineffective assistance of counsel. The action was transferred to the Circuit Court of Marshall County, West Virginia.
An evidentiary hearing was conducted in the Circuit Court of Marshall County in November, 1983. During that hearing, the appellant testified that, prior to his plea of guilty to murder of the first degree, his counsel did not disclose or discuss with him (1) the State's ballistics report concerning the revolver, 4 (2) the State's report concerning the autopsy of Pamela W., 5 (3) the State's list of witnesses to be called at trial 6 and (4) the possibility of asserting lack of intent as a defense to "premeditated" murder. Moreover, the appellant testified that, prior to his plea of guilty, his counsel did not disclose or discuss with him (1) the fact that Louise W. identified, from an array of photographs, a man other than the appellant as the assailant 7 or (2) the fact that that same man was identified by two others as the man who, shortly after the shooting, "got into an automobile" near the scene.
Furthermore, the appellant testified that although his August, 1972, confession was not based upon threats or a failure by the authorities to advise him of his constitutional rights, the confession incorrectly expressed robbery as the motive for confronting Pamela and Louise W. The appellant testified that "sexual molestation" was his motive upon the night in question. 8 The appellant stated that he informed his counsel of that inaccuracy in the confession. Nevertheless, a motion to suppress the confession was never filed.
Testifying upon behalf of the appellant at the Marshall County hearing was David J. Joel, who had been the prosecutor upon the appellant's murder charge. Joel testified that the evidence upon the charge, i.e., the purported accidental firing of the revolver, failed to demonstrate a premeditated killing by the appellant. Joel further testified, however, that in pursuing a first degree murder conviction, the State would probably have proceeded under the West Virginia "felony-murder rule." W.Va.Code, 61-2-1 [1931]. Nevertheless, inasmuch as Joel was of the opinion that the State would have had difficulty establishing that the appellant intended to commit either robbery or rape (in association with the death of Pamela W.), convicting the appellant of murder of the first degree, under the "felony-murder rule," would have been doubtful. Finally, Joel testified that, as a defense lawyer, he would have moved to suppress the appellant's confession. However, Joel further testified that "I had confidence as a prosecutor that it wouldn't have been suppressed."
Also testifying upon behalf of the appellant were attorneys G. Charles Hughes and Jolyon W. McCamic. Those witnesses, qualified as experts in the practice of criminal law, indicated that the appellant's conviction resulted from ineffective assistance of counsel. They testified that the appellant's counsel should have (1) sought more actively to determine whether the State intended to proceed under the "felony-murder rule," rather than upon a...
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