State ex rel. Postelwaite v. Bechtold, 13466

• Decision Date: 04 February 1975
• Docket Number: No. 13466,13466
• Citation: 212 S.E.2d 69,158 W.Va. 479
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Robert Gordon POSTELWAITE v. Lee BECHTOLD, Sheriff, etc., et al. STATE ex rel. Gary Lee FRAZIER v. Lee BECHTOLD, Sheriff, etc., et al.

Page 69

212 S.E.2d 69

158 W.Va. 479

STATE ex rel. Robert Gordon POSTELWAITE v. Lee BECHTOLD, Sheriff, etc., et al.

STATE ex rel. Gary Lee FRAZIER v. Lee BECHTOLD, Sheriff, etc., et al.

No. 13466.

Supreme Court of Appeals of West Virginia.

Feb. 4, 1975.

Syllabus by the Court

1. 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.

2. To warrant post-conviction habeas corpus relief from a judgment of criminal conviction on the ground of ineffective assistance of counsel by reason of conflict of interest in joint representation of two or more defendants, the burden of establishing the conflict is upon its proponent.

3. 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.

4. 'Where a counsel's performance, attacked as ineffective, arises from occurrences involving strategy, tactics or 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, W.Va., 203 S.E.2d 445 (1974).

5. When the findings of fact of a trial court in a post-conviction habeas corpus evidentiary hearing are against the plain preponderance of the evidence, are not supported by the evidence, are clearly wrong, or are the result of a mistaken view of the evidence, such findings will be set aside or reversed by this Court on review.

Chauncey H. Browning, Jr., Atty. Gen., Richard E. Hardison, Deputy Atty. Gen., Betty L. Caplan, Asst. Atty. Gen., Charleston, for plaintiffs in error.

Catsonis & Linkous and Leo Catsonis, Charleston, for defendant in error, Postelwaite.

Kenneth J. Fordyce, McMechon, for defendant in error, Frazier.

HADEN, Chief Justice:

This is an appeal by custodial officers of the county and State from a final judgment of the Circuit Court of Wood County in a consolidated habeas corpus proceeding which declared the convictions of Robert Gordon Postelwaite and Gary Lee Frazier to be void and unenforceable on the ground that their jointly retained counsel had rendered ineffective assistance of counsel to each by reason of attempting to defend both against an identical criminal charge in the same trial.

Postelwaite and Frazier had been jointly indicted for the crime of receiving stolen property, a 1968 Ford Mustang automobile. At Postelwaite's expense, attorneys Eugene T. Hague, Senior and Junior, were retained to represent both on the charge. When indicted, Frazier was an employee of Postelwaite at Capri Motors in Parkersburg. On evidence mainly furnished by two admitted car thieves, both were convicted.

After sentencing, each with separate and new counsel petitioned this Court for a writ of habeas corpus, asserting ineffective assistance of counsel at trial as a ground for rendering their convictions void.

This Court awarded writs of habeas corpus which were subsequently made returnable to the Circuit Court of Wood County where the proceeding was heard and resolved by Special Judge William R. Pfalzgraf.

The sole issue presented in the trial court and here is whether the accused, who were jointly represented by counsel at trial in defense of identical criminal charges, received ineffective assistance of counsel through such joint representation. The resolution of this issue involves an analysis of counsel's ability to defend both clients, as demonstrated at trial, and counsel's trial strategy.

At the Habeas hearing, extensive testimony was taken of the Hagues, James W. Simonton, the prosecutor who represented the State at the trial, and the relators. Additionally, the special judge considered the criminal trial transcript and relevant exhibits introduced there. This same evidence was presented to this Court for review.

Factually, the circumstances giving rise to the alleged conflict are relatively simple and largely uncontroverted; only the inferences and implications arising therefrom appear to be contested.

The potential hazards of joint representation apparently received very little attention in pretrial discussions between counsel and defendants. Frazier testified to the effect that he had very little pretrial communication with either of the Hagues, and indicated that he received most of his information regarding the preparation of the case through Postelwaite. Postelwaite testified that during general conversation with the Hagues separate trials were considered, but stated that he relied upon counsel's judgment in this regard. Mr. Hague, Sr., an eminently qualified trial practitioner, did not favor separate trials for his clients and gave the following reason for not requesting a severance:

'I didn't feel as a matter of defending the case it would be to the best interest of our clients. I felt they could be defended more readily in a joint effort, by having them together in the trial.'

Mr. Hague, Sr., also testified that he didn't think severance was ever suggested because 'they were innocent, so I didn't feel that was necessary.' Mr. Hague, Jr., testified that in the pretrial discussions, it was decided that 'We would represent them, that the trial would involve both.' Judging from these statements, it is evident that counsel did not anticipate conflict of interest prior to trial. As the defendants were asserting complete innocence, potentially conflicting degrees of incrimination or culpability were not subjects of consideration or discussion.

Notwithstanding the pretrial assessment by the defense, the State, at trial, adduced testimony of two witnesses, Jack Bennett and Randall Hall, which seriously implicated both defendants in the offense charged, and also revealed other related conduct involving either or both of the defendants. Hall testified that he and one George DeBerry stole the Mustang, took it to a garage where he removed certain accessories and thereafter left it on the Montgomery Ward parking lot; that on the following day he went to Capri Motors where he told Frazier and Postelwaite about the car; that Postelwaite said they were going to get it; and that he, Hall, thereafter observed the Mustang at Capri Motors. Hall testified that in a subsequent conversation with Postelwaite he asked Postelwaite if they wanted to buy any other cars, but that Postelwaite said he 'didn't need any then.'

Hall and Bennett were also permitted to testify concerning other dealings with Postelwaite or Frazier, or both, in stolen property to show what the trial court referred to as 'modus operandi'. Hall testified that in February of 1971 he sold Postelwaite a 1967 Chevrolet for $175.00; that he and DeBerry sold Postelwaite a 1968 Camero in February or March of the same year; and that pursuant to a conversation with Postelwaite, in the presence of Frazier, Postelwaite allowed him, Hall, to take the engine and transmission from the '67 Chevy. Hall also related a similar transaction involving a 1969 or 1970 Volkswagen.

On cross-examination, Hall revealed that he, DeBerry and Bennett had stolen between ten and fifteen automobiles which, except for the ones that were retitled to and driven by them, they sold to Postelwaite and Frazier.

Bennett testified that he learned of the stolen Mustang during a conversation with Hall and DeBerry, and that he thereafter told the defendants about it. He also stated that 'Gary and Bob said they was going to go get it.' Bennett stated that he later saw the Mustang at Capri Motors when Frazier and Postelwaite also were present; that Frazier was under the hood 'stripping' the car; that Postelwaite gave him $25.00 to get rid of the engine; and that Frazier put the engine on the back of his, Bennett's, truck.

Bennett testified concerning other dealings involving stolen automobiles. He stated that Frazier asked him to get a 1967 Camero, '67 Chevy SS or Malibu; that he thereafter participated in the theft of a '67 Chevrolet which was taken to Capri Motors and sold to Frazier.

The effect of such testimony was assessed by Mr. Hague, Jr. in the habeas corpus proceeding:

'At the trial, the State's witnesses brought evidence forth concerning involvements with one defendant on one case, another defendant on another, and sometimes involvement with both defendants, and we were limited in that we could not delve into the involvement of one of the defendants for the benefit of the remaining defendant.'

Mr. Hague, Sr. made essentially the same observations with regard to cross-examination and, in addition thereto, described the effect thereof upon his summation to the jury:

'It was the same situation so far as crossexamination was concerned. I thought we could not single out any particular phase of the testimony of either one of these gentlemen without causing some--I used the term injury--I mean unfavorable reaction of the jury to the testimony. By that I mean our defense was we were not guilty, I could not enlarge on Hall's testimony on cross-examination, because he was, as I said before, more than a voluntary witness. He was a witness who involved everybody and everything in all subjects, and I did not feel my examination of him on the argument before the jury should be singled out in any respect. We took the position all during the trial that the defendants were not guilty of any offense, and I so argued it before the jury.'

Thereupon, Mr. Hague, Sr. was asked:

'Weren't you, as stated in your affidavit, limited to a middle-of-the-road approach rather than shifting of the responsibility from one to the other?'

Mr. Hague replied:

'No doubt about that, yes, sir. That's correct.'

Other effects of the joint representation...