State ex rel. McLaurin v. McBride

• Decision Date: 15 November 2006
• Docket Number: No. 32983.,32983.
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel., John McLAURIN, Petitioner Below, Appellant, v. Thomas McBRIDE, Warden, Mount Olive Correctional Complex, Respondent Below, Appellee.

640 S.E.2d 204

STATE of West Virginia ex rel., John McLAURIN, Petitioner Below, Appellant, v. Thomas McBRIDE, Warden, Mount Olive Correctional Complex, Respondent Below, Appellee.

No. 32983.

Supreme Court of Appeals of West Virginia.

Submitted September 13, 2006.

Decided November 15, 2006.

Syllabus

1. "No person may be subjected to trial on a criminal charge when, by virtue of mental incapacity, the person is unable to consult with his attorney and to assist in the preparation of his defense with a reasonable degree of rational understanding of the nature and object of the proceedings against him." Syl. pt. 1, State v. Milam, 159 W.Va. 691, 226 S.E.2d 433 (1976)

2. "Even where joinder or consolidation of offenses is proper under the West Virginia Rules of Criminal Procedure, the trial court may order separate trials pursuant to Rule 14(a) on the ground that such joinder or consolidation is prejudicial. The decision to grant a motion for severance pursuant to W.Va.R.Crim.P. 14(a) is a matter within the sound discretion of the trial court." Syl. pt. 3, State v. Hatfield, 181 W.Va. 106, 380 S.E.2d 670 (1988)

3. "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." Syl. pt. 1, 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)

4. "The defendant's double jeopardy rights are not violated by convictions of separate counts of sexual assault, based on repeated violations of the victim within a relatively short period, when there is conclusive evidence of elapsed time between separate violations." Syl. pt. 7, State v. Woodall, 182 W.Va. 15, 385 S.E.2d 253 (1989)

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)

Gregory L. Ayers, Esq., Deputy Public Defender, Kanawha County Public Defender Office, Charleston, for the Appellant.

Darrell V. McGraw, Jr., Esq., Attorney General, Barbara H. Allen, Esq., Managing Deputy Attorney General, Charleston, for the Appellee.

PER CURIAM.

This case is before this Court upon the appeal of John McLaurin from the July 11, 2005, order of the Circuit Court of Kanawha County, West Virginia, denying him relief in habeas corpus. McLaurin was convicted in that Court in 1989 of two counts of kidnaping, without recommendations of mercy, and seven counts of sexual assault in the first degree. The trial court sentenced McLaurin upon the kidnaping convictions to two life terms without the possibility of parole and to 15 to 25 years each upon the seven sexual assault convictions. The sentences were directed to be served consecutively. In February 1991, this Court refused McLaurin's direct appeal.

In a separate habeas proceeding, the Circuit Court of Kanawha County later set aside one of the kidnaping convictions and two of the sexual assault convictions. The remaining six convictions were upheld. Those rulings were affirmed by this Court in State ex rel. McLaurin v. Trent, 203 W.Va. 67, 506 S.E.2d 322 (1998), cert. denied, 525 U.S. 1078, 119 S.Ct. 818, 142 L.Ed.2d 677 (1999). In the current proceeding, the Circuit Court set aside the other kidnaping conviction and sentence and awarded a new trial. Consequently, this appeal concerns the denial of habeas relief, pursuant to the July 11, 2005, order, with regard to five convictions of sexual assault in the first degree.

This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel. Appellant McLaurin contends that the Circuit Court should have granted him relief in habeas corpus because the trial court, in 1989, committed error: (1) in denying his motion to continue in order to obtain a psychiatric evaluation concerning his competency to stand trial, (2) in denying his motion to sever the charges against him and (3) in refusing his limiting or cautionary instruction to the jury concerning the various charges. Moreover, McLaurin contends that one of the sexual assault convictions violated his protection against double jeopardy and, also, that he was denied the effective assistance of counsel at his sentencing. Upon careful examination and upon the applicable standards of review, this Court concludes that McLaurin's contentions herein are without merit. Accordingly, the July 11, 2005, order of the Circuit Court of Kanawha County denying relief in habeas corpus is affirmed.

I. Factual and Procedural Background

In June 1988, appellant McLaurin was released from the West Virginia penitentiary, having served prison terms for rape, robbery and felonious assault. According to the State, McLaurin, within 90 days thereof committed a number of offenses against three women: C.C., J.T. and B.S.¹

Specifically, on August 19, 1988, C.C. was entering her car near the Town Center Mall in Charleston, West Virginia, when she was abducted by a male brandishing what he described to her as a .357 Magnum revolver. The assailant forced C.C. to drive to two remote locations where, at each, he sexually assaulted her in the back seat of her vehicle. Thereafter, they drove to a lot near a Holiday Inn in Charleston at which time the assailant exited the car. On September 4, 1988, J.T. was working as a cleaning maid at the Holiday Inn Civic Center in Charleston² when, alone in one of the rooms, she was suddenly attacked by a male brandishing what appeared to be an ice pick. The assailant sexually assaulted her three times before fleeing the premises. Subsequently, on September 6, 1988, B.S. was entering her car on the campus of the West Virginia Institute of Technology in Montgomery, West Virginia, when she was abducted by a male brandishing what he told her was a .357 Magnum revolver. The assailant forced B.S. to drive to a wooded area where, after making her exit the car, he sexually assaulted her. Soon after, the assailant forced B.S. to drive to another remote location where he sexually assaulted her in the back seat of her vehicle.

During each of the three episodes, the assailant questioned the victim about her family, admonished her to enjoy herself and ordered her to keep her eyes closed, although, at times, he blindfolded B.S. In the case of C.C. and B.S., the assailant stated that he wished he had met them under "different circumstances."

Appellant McLaurin was arrested and, in April 1989, was indicted by a Kanawha County grand jury with regard to the above incidents. Counts 1-3 charged kidnaping and two instances of sexual assault in the first degree with regard to C.C. Counts 4-6 charged three instances of sexual assault in the first degree with regard to J.T. Counts 7-9 charged kidnaping and two instances of sexual assault in the first degree with regard to B.S. In November 1989, a jury trial was conducted at the conclusion of which McLaurin was found guilty of two counts of kidnaping, without recommendations of mercy, and seven counts of sexual assault in the first degree. McLaurin's post-trial motions were denied, and on December 1, 1989, the trial court sentenced him to the penitentiary as set forth above. Appellant McLaurin's direct appeal was refused by this Court in February 1991.

In In the Matter of an Investigation of the West Virginia State Police Crime Laboratory, 190 W.Va. 321, 438 S.E.2d 501 (1993), this Court noted that former State Police Officer Fred Zain had engaged in the systemic falsification of evidence relating to serology in criminal prosecutions. As a result, this Court held, inter alia, (1) that a prisoner would be entitled to habeas relief, if, absent the forensic evidence presented by Trooper Zain, the evidence was insufficient "to support the verdict" and (2) that a prisoner seeking such relief could be subject to DNA testing.³ Accordingly, because Trooper Zain had given incriminating serology testimony against appellant McLaurin at trial, McLaurin filed a petition for habeas relief in this Court. That petition, earlier in time than the one currently under review, was remanded to the Circuit Court of Kanawha County in December 1993 for further proceedings and, ultimately resulted in this Court's opinion in State ex rel. McLaurin v. Trent, supra.

In McLaurin, the Circuit Court concluded that, absent the Zain testimony, the evidence was insufficient to support the verdicts with regard to C.C. and that, therefore, McLaurin's convictions under Counts 1-3 of the indictment should be set aside. The Circuit Court determined that, although C.C.'s testimony was generally consistent with the testimony of J.T. and B. S., she was unable to positively identify her assailant. The Circuit Court, however, upheld the convictions pertaining to J.T. and B.S. With regard to Counts 4-6 relating to J.T., the Circuit Court noted, inter alia, that two of her co-workers identified appellant McLaurin at trial "as the person that they saw in the hallway of the Holiday...