State ex rel. Redman v. Hedrick

• Decision Date: 25 July 1991
• Docket Number: No. 19510,19510
• Citation: 408 S.E.2d 659,185 W.Va. 709
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. Lawrence REDMAN, Jr., Petitioner Below, Appellant, v. Jerry C. HEDRICK, Warden, West Virginia Penitentiary, Respondent Below, Appellee.

Page 659

408 S.E.2d 659

185 W.Va. 709

STATE of West Virginia ex rel. Lawrence REDMAN, Jr. Petitioner Below, Appellant, v. Jerry C. HEDRICK, Warden, West Virginia Penitentiary Respondent Below, Appellee.

No. 19510.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 5, 1991.

Decided July 25, 1991.

Syllabus by the Court

1. "The defendant has a right under Article III, Section 14 of the West Virginia Constitution to be present at all critical stages in the criminal proceeding; and when he is not, the State is required to prove beyond a reasonable doubt that what transpired in his absence was harmless." Syl. pt. 6, State v. Boyd, 160 W.Va. 234, 233 S.E.2d 710 (1977).

2. "If an accused demonstrates that his right to confront his accusers was abridged by the State or that he was absent during a critical stage of the trial proceeding, his conviction of a felony will be reversed where a possibility of prejudice appears from the abrogation of the constitutional or statutory right." Syl. pt. 8, State ex rel. Grob v. Blair, 158 W.Va. 647, 214 S.E.2d 330 (1975).

3. In a criminal proceeding, the defendant's absence at a critical stage of such proceeding is not reversible error where no possibility of prejudice to the defendant occurs.

4. "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).

5. Where a prosecutor in a criminal case becomes the presiding judge over the grand jury that ultimately indicts the defendant in such case, the record of the grand jury proceeding must be made a part of the record before this Court will determine whether prejudice has resulted therefrom.

Richard G. Gay, Berkeley Springs, for appellant.

Diana Cook Risavi, Berkeley County Prosecutor's Office Martinsburg and Joanna I. Tabit, Deputy Atty. Gen., Appellate Div., Charleston, for appellee.

McHUGH, Justice:

This case is before the Court upon the appeal of Lawrence E. Redman, Jr., the relator below, from the May 4, 1989 order of the Circuit Court of Berkeley County, which denied a petition for a writ of habeas corpus. The appellee is Jerry C. Hedrick, Warden of the West Virginia Penitentiary.

Based upon our review of the record in this case, we affirm the judgment of the circuit court, in part, and remand this case with directions.

I. FACTS

The appellant was charged with the murder of Albert Minnich. The murder occurred on September 26, 1984, in Martinsburg. At the time, the appellant was seventeen years old.

The appellant confessed to committing the murder to Martinsburg police on the day of the murder. No attorney was present at the time of the appellant's confession.

David H. Sanders was appointed to represent the appellant. At the time of this appointment, Sanders worked in the public defender's office in Berkeley County. Initially, the State was represented by Patrick Henry, an assistant prosecuting attorney for Berkeley County.

The Berkeley County Magistrate Court found probable cause to believe that the appellant committed the offense as charged, and ordered that the appellant be detained at a juvenile center in Princeton.

The State was successful in transferring the case from juvenile status to adult status. The circuit court's October 26, 1984 order, waiving prosecution of this matter from juvenile court, was appealed to this Court. It is not clear from the record as to when the appeal was actually filed. See infra note 3.

In the meantime, the appellant was indicted on February 20, 1985. Judge Patrick Henry, who had become a circuit judge on January 1, 1985, presided over the grand jury proceeding which resulted in the appellant's indictment.

On February 21, 1985, Sanders, the appellant's attorney, moved for a continuance so that psychiatric examinations of the appellant could be prepared. The appellant was not present at this proceeding because he was detained at the juvenile center in Princeton. On May 13, 1985, the circuit court entered an order continuing the case to the May, 1985 term, which began on May 21, 1985. This proceeding was also before Judge Henry. On May 23, 1985, Sanders appeared before the circuit court where it was noted by the circuit court that the appeal to this Court of the waiver of jurisdiction from juvenile to adult status was still pending.

On September 3, 1985, Sanders made a motion that the appellant be moved from incarceration in Princeton to a regional detention center in Martinsburg. The appellant was not present at this proceeding as well. The circuit court, Judge Henry presiding again, granted the appellant's motion on September 12, 1985.

On October 8, 1985, this Court denied the appeal of the waiver of juvenile jurisdiction.

On October 17, 1985, the circuit court, Judge Henry presiding, set the case for trial on February 4, 1986, to be tried before Judge Thomas Steptoe. Judge Henry refused to rule on any bond-setting motions because he feared that he could not be neutral in this regard. Judge Henry also noted that his role in this case was for administrative purposes only. It was also noted at this proceeding that the appellant's attorney, Sanders, desired to petition this Court to reconsider its previous decision denying the appeal of the waiver of juvenile jurisdiction.

On October 23, 1985, the circuit court, Judge Henry presiding, granted the public defender's motion to withdraw as counsel for the appellant, but with Sanders remaining as appointed counsel.

On November 8, 1985, the circuit court, Judge Steptoe presiding, entered an order which noted that thirty days had elapsed since this Court denied the appeal of the waiver of juvenile jurisdiction, and that no petition for reconsideration was filed. Therefore, it was ordered that the appellant be moved from the regional detention center in Martinsburg and sent to the Berkeley County Jail.

Sanders filed a motion to suppress the appellant's confession, but this motion was not ruled upon, because, on February 3, 1986, the day before the trial was scheduled, the appellant pled guilty to first degree murder in the circuit court, before Judge Steptoe. The court ordered that a presentence investigation report, including a victim impact statement, be filed, and that sentencing would be on June 9, 1986.

On April 21, 1986, the circuit court entered an order continuing the sentencing hearing to July 18, 1986. On that day, July 18, 1986, the appellant moved to withdraw his guilty plea. The circuit court denied this motion and rescheduled the sentencing hearing for November 21, 1986.

A sentencing hearing was held on November 21, 1986, and the appellant was sentenced to life without mercy.

The appellant raises several assignments of error before this Court, including, that he was denied the right to be present at all critical stages of the criminal proceedings, that he received ineffective assistance of counsel and that he was prejudiced by Judge Henry, the former assistant prosecutor, presiding over part of the proceedings in this case. Although this case will be remanded for further hearings on certain matters relating to ineffective assistance of counsel and Judge Henry presiding over the grand jury proceeding, we address the other assignments of error because they might be raised again depending upon the result of the case on remand.

II. RIGHT TO BE PRESENT AT ALL CRITICAL STAGES

The initial assignment of error raised by the appellant is that he was denied his right to be present at all critical stages of the proceedings in this case.

Specifically, the appellant points to the February 21, 1985 hearing, wherein a continuance was granted, and the September 3, 1985 hearing, wherein the appellant's motion to be moved from incarceration in Princeton to a regional detention center in Martinsburg was granted.

The right of a criminal defendant to be present at every critical stage of the proceedings against him or her has a foundation in common, statutory, and constitutional law. Syl. pt. 2, State ex rel. Grob v. Blair, 158 W.Va. 647, 214 S.E.2d 330 (1975).

In recognizing the constitutional right of a defendant to be present at all critical stages of a criminal proceeding, this Court has held: "The defendant has a right under Article III, Section 14 of the West Virginia Constitution to be present at all critical stages in the criminal proceeding; and when he is not, the State is required to prove beyond a reasonable doubt that what transpired in his absence was harmless." Syl. pt. 6, State v. Boyd, 160 W.Va. 234, 233 S.E.2d 710 (1977) (emphasis supplied). ¹

The statutory basis for this right is contained in W.Va.Code, 62-3-2 [1931]. That statute provides, in part: "A person indicted for felony shall be personally present during the trial therefor."

"The right of an accused to be present at every stage of a criminal trial is also protected by W.Va.R.Crim.P. 43." State v. Barker, 176 W.Va. 553, 556, 346 S.E.2d 344, 347 (1986). W.Va.R.Crim.P. 43 provides, in pertinent part:

Rule 43. Presence of the Defendant.

(a) Presence Required. The defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule.

....

(c) Presence Not Required. A defendant need not be present in the following situations:

....

(2) In prosecutions for offenses punishable by fine or by imprisonment for not more than one year or both, the court, with the written consent of the defendant, may permit arraignment, plea, trial and imposition of sentence in the defendant's absence.

(emphasis supplied)

The circuit court concluded that even if the...