State v. Baker, 15316
| Decision Date | 24 February 1982 |
| Docket Number | No. 15316,15316 |
| Citation | 287 S.E.2d 497,169 W.Va. 357 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia v. Ricky Odell BAKER. |
Syllabus by the Court
1. "As a general rule, proceedings of trial courts are presumed to be regular, unless the contrary affirmatively appears upon the record, and errors assigned for the first time in an appellate court will not be regarded in any matter of which the trial court had jurisdiction or which might have been remedied in the trial court if objected to there." Syl. pt. 17, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).
2. "A defendant must be allowed an in camera hearing on the admissibility of a pending in-court identification when he challenges it because the witness was a party to pre-trial identification procedures that were allegedly constitutionally infirm." Syl. pt. 6, State v. Pratt, W.Va., 244 S.E.2d 227 (1978).
3. "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).
4. "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).
Valentine, Wilson & Partain and Eric H. O'Briant, Logan, for appellant.
Chauncey H. Browning, Atty. Gen., and Silas B. Taylor, Asst. Atty. Gen., Charleston, for appellee.
This case is before this Court on an appeal from a final order of the Circuit Court of Logan County, entered on November 14, 1980, which denied the defendant Ricky Odell Baker's motion to set aside the verdict and award him a new trial. That order also sentenced the defendant to a determinate term of ten years imprisonment for the crime of armed robbery. 1 The defendant assigns four errors on this appeal: (1) a court ordered psychiatric examination was never conducted; (2) the trial judge's failure to conduct, sua sponte, an in camera hearing on the in-court identification of the defendant; (3) ineffective assistance of counsel; and (4) insufficiency of the evidence. The errors assigned will be considered in the order presented.
On the evening of December 29, 1979, David Wyatt was hitchhiking on U.S. Route 52 between Logan and Taplin. He was given a ride by three men in an old car with a broken window. One of the men sitting in the rear seat held a gun to Wyatt's head and relieved him of his wallet and some personal possessions. Wyatt identified that man as the defendant.
After Wyatt's assailants released him, he reported the incident to the police. Shortly after the report, which included a detailed description of the car and the people in it, two officers of the Man Police Department saw a car matching the description given by Wyatt. The car was stopped and the three men in the car were arrested. One of those men was the defendant.
The defendant was arrested on December 29, 1979. Shortly thereafter Eric H. O'Briant was appointed to represent the defendant. On January 29, 1980, O'Briant filed a motion notifying the Court and the prosecutor that the defendant intended to enter a plea of not guilty by reason of insanity and requesting a court ordered psychiatric examination. The motion was not opposed by the State and was granted by an order entered on January 30, 1980. On February 11, 1980, the Circuit Court of Logan County entered an order granting O'Briant's motion to be relieved as counsel and appointing Mark Campbell as counsel in his place. The defendant was tried for the crime charged on June 23, 1980. This trial resulted in a hung jury and a mistrial was declared. The defendant was retried in October of 1980, which trial resulted in the conviction from which this appeal is taken. No psychiatric examination of the defendant was ever conducted.
In a recent case, State v. Church, W.Va., 284 S.E.2d 897 (1981), we indicated that it was the defense counsel's duty to request a competency hearing should one be desired under W.Va.Code, 27-6A-1(d) [1977]. In the case presently before us a competency examination was requested under W.Va.Code, 27-6A-1(a) [1977], by O'Briant. Campbell, who replaced O'Briant as defense counsel, did not pursue the psychiatric examination. We address the question of whether this constitutes ineffective assistance of counsel in section IV of this opinion. Initially, we must ascertain if the mere failure to have the psychiatric examination conducted was reversible error. We hold that it was not.
Clearly, the trial judge did not have the responsibility to insure that the psychiatric examination was conducted because it was not brought to his attention. In State v. Moran, W.Va., 285 S.E.2d 450 (1981), we held that a defendant's allegation of inadequate discovery was waived by his counsel's failure to bring his discovery motions on for a hearing. We there said: "Defense counsel must assume the burden of bringing these motions to the attention of the trial court." 285 S.E.2d at 453. The reason for such a rule is well established in West Virginia:
'The proceedings of the lower court are presumed to be regular, unless the contrary affirmatively appears upon the record, and objections taken for the first time in the appellate court will not be regarded in any matter of which the court had jurisdiction or which might have been remedied in the trial court if objected to there.' 1B M.J., Appeal and Error § 103 (1967).
West Virginia is firmly committed to this general rule and has only deviated from it on few occasions, and then only in extraordinary situations.
Shortly after the defendant and his companions were arrested, the police conducted a "show-up" where Wyatt identified the defendant as his assailant. Wyatt also identified the defendant as his assailant at the defendant's trial. No evidence of the prior out-of-court "show-up" was introduced by the State at the defendant's trial. No motion was made to suppress the in-court identification and no hearing was held on that issue.
The defendant, on this appeal, recognizes that this is not error under syllabus point 6 of State v. Pratt, W.Va., 244 S.E.2d 227 (1978): "A defendant must be allowed an in camera hearing on the admissibility of a pending in-court identification when he challenges it because the witness was a party to pre-trial identification procedures that were allegedly constitutionally infirm." This standard was reaffirmed as recently as State v. Morgan, W.Va., 284 S.E.2d 924 (1981).
The defendant on this appeal asks us to require trial courts to hold an in camera hearing on the admissibility of in-court identifications in all cases whether there is a request to do so or not. We decline to so hold and reaffirm our holding in syllabus point 6 of State v. Pratt, supra.
The defendant assigns six specific occurrences which he alleges to constitute inneffective assistance of counsel: (1) the failure to obtain the court ordered psychiatric examination; (2) the failure to move to suppress a .22 caliber pistol seized from the car at the time of the defendant's arrest; (3) the failure to move to suppress the in-court identification; (4) the alleged refusal of Campbell to allow the defendant to participate in jury selection; (5) the failure to "follow the guidelines set forth ... in State v. Brant, W.Va., 252 S.E.2d 901 (1979)," relating to an intoxication defense; and (6) the failure to request a stay of execution pending appeal. We find these assignments to be without merit.
This allegation of ineffective assistance of counsel is, in reality, an example of differing trial strategies. O'Briant's strategy was to enter a plea of insanity. A psychiatric examination would have been necessary to that defense. Campbell, however, chose to present a defense of incapacity due to intoxication. The psychiatric examination was not necessary to that defense.
There was no evidence at trial that the defendant suffered from any mental illness. The defense presented a case of incapacity due to intoxication. The defense did present expert testimony on the effect of drugs and alcohol on the defendant. This defense worked at the defendant's first trial which resulted in a hung jury. In State v. Thomas, supra, we held, at syllabus point 21: "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 the accused."
When the Man police officers stopped the car in which the defendant was a passenger on December 29, 1979, all three occupants of the car were in the front seat. One officer approached the driver of the car and asked for his license. He noticed that the defendant kept reaching under the front seat of the car. The officers had been advised that the suspects in the robbery were armed. The officer ordered the men out of the car. He then reached under the seat and retrieved the .22 caliber...
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