State v. Barlow

• Decision Date: 20 July 1989
• Docket Number: No. 18799,18799
• Citation: 383 S.E.2d 530,181 W.Va. 565
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Charles W. BARLOW.

Page 530

383 S.E.2d 530

181 W.Va. 565

STATE of West Virginia v. Charles W. BARLOW.

No. 18799.

Supreme Court of Appeals of West Virginia.

July 20, 1989.

[181 W.Va. 566] Syllabus by the Court

1. "Under the Fourth Amendment to the United States Constitution and Article III, Section 6 of the West Virginia Constitution, the validity of an affidavit for a search warrant is to be judged by the totality of the information contained in it. Under this rule, a conclusory affidavit is not acceptable nor is an affidavit based on hearsay acceptable unless there is a substantial basis for crediting the hearsay set out in the affidavit which can include the corroborative efforts of police officers." Syllabus point 4 of State v. Adkins, 176 W.Va. 613, 346 S.E.2d 762 (1986).

2. "An interval of one day or less between the appointment of counsel and trial or the entry of a guilty plea raises a rebuttable presumption that the defendant was denied effective assistance of counsel and shifts the burden of persuasion to the state." Syllabus point 1, Housden v. Leverette, 161 W.Va. 324, 241 S.E.2d 810 (1978).

3. "An unconditional discharge from confinement upon the issuance of a writ of habeas corpus does not ordinarily operate to bar further prosecution under principles of double jeopardy." Syllabus point 3 Rhodes v. Leverette, 160 W.Va. 781, 239 S.E.2d 136 (1977).

4. "Where the issue of identity is contested in an habitual criminal proceeding, the State must prove identity beyond a reasonable doubt." Syllabus point 4, State v. Vance, 164 W.Va. 216, 262 S.E.2d 423 (1980).

5. "A judgment of conviction will not be reversed because of improper remarks made by a prosecuting attorney ... which do not clearly prejudice the accused or result in manifest injustice." Syllabus point 5, State v. Ocheltree, 170 W.Va. 68, 289 S.E.2d 742 (1982).

Hugh Rogers, Jr., Kerens, for Charles W. Barlow.

Jeffrey L. Hall, Asst. Atty. Gen., Charleston, for appellee.

PER CURIAM:

Charles W. Barlow appeals from his conviction of receiving and transferring stolen goods in violation of W.Va.Code § 61-3-18 (1989) and from his conviction under the West Virginia Habitual Criminal Statute, W.Va.Code § 61-11-19 (1989).

I. FACTS

During the early morning hours of June 29--June 30, 1987, thieves broke into the warehouse of Elkins Industrial Equipment Company in Randolph County, West Virginia. They stole approximately twelve chainsaws, a water pump, and cash.

Following an investigation by the State Police, a warrant was issued on July 3, 1987 to search the defendant's trailer. The warrant was based on an affidavit signed by Trooper J.W. Reed. The affidavit stated that there was probable cause to search because:

Vehicle driven by Charles W. Barlow fits description of vehicle at scene of crime and information obtained by Deputy McCauley that Charles W. Barlow and Billie Lloyde were attempting to sell numerous power saw [sic] in Mill Creek on 7/2/87 operating the same vehicle. Vehicle above was seen at location of B & E by a witness, who described to Tpr. Reed.

That same day, the police searched the defendant's trailer and seized six chainsaws and cash. The State Police then obtained statements from several individuals who had either purchased stolen property from the defendant or had assisted him in selling the stolen merchandise.

The defendant was indicted for receiving and transferring stolen goods in violation of W.Va.Code § 61-3-18. After a trial in November, 1987, the jury found him guilty of that charge.

II. THE FOURTH AMENDMENT CHALLENGE

The defendant initially challenges the constitutional validity of the trailer search. The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the places to be searched and the persons or things to be seized. (Emphasis added.) ¹

"Though it is impossible to define 'probable cause' with mathematical precision, 'it is clear that only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.' " State v. Worley, 179 W.Va. 403, 369 S.E.2d 706 at 712, cert. denied, 488 U.S. 895, 109 S.Ct. 236, 102 L.Ed.2d 226 (1988), citing Illinois v. Gates, 462 U.S. 213 at 235, 103 S.Ct. 2317 at 2330, 76 L.Ed.2d 527 at 546 (1983). E.g., State v. Wotring, 167 W.Va. 104, 279 S.E.2d 182 (1981); State v. Stone, 165 W.Va. 266, 268 S.E.2d 50 (1980).

The defendant argues that the affidavit is insufficient to establish probable cause because it was based on hearsay. As we held in syllabus point 4 of State v. Adkins, 176 W.Va. 613, 346 S.E.2d 762 (1986):

Under the Fourth Amendment to the United States Constitution and Article III, Section 6 of the West Virginia Constitution, the validity of an affidavit for a search warrant is to be judged by the totality of the information contained in it. Under this rule, a conclusory affidavit is not acceptable nor is an affidavit based on hearsay acceptable unless there is a substantial basis for crediting the hearsay set out in the affidavit which can include the corroborative efforts of police officers. (Emphasis added.)

As we explained in State v. Adkins, 176 W.Va. at 621, 346 S.E.2d at 770:

The veracity or credibility of hearsay information which the warrant affidavit is reciting can also be evaluated on a scale that varies with the type of informant. Where a police officer affiant is reciting information obtained from a fellow police officer, it is ordinarily not necessary to detail information with regard to their veracity. See, e.g., Whiteley v. Warden, 401 U.S. 560, 568, 91 S.Ct. 1031, 1037, 28 L.Ed.2d 306, 313 (1971) (credibility of police officer); United States v. Ventresca, 380 U.S. 102, 111, 85 S.Ct. 741, 747, 13 L.Ed.2d 684, 690 (1965) (credibility of IRS investigator). (Emphasis added.)

Here, Trooper Reed recited information obtained from Deputy Sheriff McCauley; it was not necessary for Trooper Reed to detail information regarding McCauley's veracity. ²

Review of the warrant indicates that McCauley had information that the defendant was selling chainsaws in Mill Creek on July 2, 1987, two days after the theft. McCauley substantiated this information by verifying that the vehicle in which the stolen merchandise was being sold was the same vehicle that was being driven by the defendant. In light of the foregoing, we find that there was probable cause to issue the warrant. ³

Accordingly, the defendant's conviction under W.Va.Code § 61-3-18 is affirmed.

III. THE RECIDIVIST ACTION

After the defendant's conviction for receiving and transferring stolen property, the prosecutor filed a recidivist information with the circuit court pursuant to W.Va.Code § 61-11-19. The information charged that the appellant had been convicted of grand larceny in 1965, breaking and entering in 1977, and receiving and transferring stolen property in 1983.

A trial was held on the recidivist action in January, 1988, and the jury found that the appellant was the same individual who had been convicted of the three prior felonies. Pursuant to W.Va.Code § 61-11-18, ⁴ the trial court sentenced the defendant to life in the West Virginia Penitentiary.

A. The 1965 Grand Larceny Conviction

Barlow argues that his 1965 grand larceny conviction is void and should not support his recidivist conviction because he was denied effective assistance of counsel. Barlow contends that because the appointment of his counsel and the entry of his plea of guilty all occurred on the same day, there is a presumption that he was denied effective assistance of counsel. We agree.

In syllabus points 1 and 2 of Housden v. Leverette, 161 W.Va. 324, 241 S.E.2d 810 (1978), we held:

An interval of one day or less between the appointment of counsel and trial or the entry of a guilty plea raises a rebuttable presumption that the defendant was denied effective assistance of counsel and shifts the burden of persuasion to the state.

Where the presumption of ineffective assistance of counsel is rebutted by evidence from any source, the presumption then vanishes completely and disappears as a rule of law.

In Housden, the defendant had counsel appointed one day and entered a guilty plea the following day. This Court concluded that the presumption of ineffective assistance of counsel had not been rebutted, and the conviction could not serve as the basis for the application of a recidivist action. The facts in this case are even more suspect. An order entered on September 14, 1965, by the Circuit Court of Randolph County, recites that Barlow had counsel appointed, entered a plea of guilty, and was convicted on the same day. No evidence was presented at the trial of the recidivist charge to rebut the presumption of ineffective assistance of counsel.

Because the presumption of ineffective assistance of counsel stands, the defendant's 1965 grand larceny conviction cannot serve as a foundation for application of the recidivist statute. Syllabus point 3, Housden v. Leverette, supra; syllabus point 2, State v. Cain, 178 W.Va. 353, 359 S.E.2d 581 (1987). We remand this portion of the proceeding to allow the State an opportunity to rebut the presumption of ineffective assistance of counsel.

B. The 1977 Breaking and Entering Conviction

In 1977, the defendant was convicted of breaking and entering. The defendant sent the circuit court a pauper's affidavit and requested a copy of the trial transcript. Despite the request, the circuit clerk failed to provide a transcript. On March 14, 1978, the defendant filed a petition for a writ of habeas corpus in this Court. In his petition, the defendant alleged that he had been denied his right to petition for appeal because he had not been provided with a transcript or appointed counsel. We issued a...