State v. Bradley
| Decision Date | 11 December 1979 |
| Docket Number | No. 14016,14016 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia v. Jerome E. BRADLEY. |
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, W.Va., 233 S.E.2d 710 (1977).
2. "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, W.Va., 203 S.E.2d 445 (1974).
3. "Errors involving deprivation of constitutional rights will be regarded as harmless only if there is no reasonable possibility that the violation contributed to the conviction." Syl. pt. 20, State v. Thomas, W.Va., 203 S.E.2d 445 (1974).
Eugene D. Pecora, Beckley, for P. E.
Chauncey H. Browning, Jr., Atty. Gen., Joseph C. Cometti, Asst. Atty. Gen., Charleston, for D. E.
This appeal arises from the conviction of the defendant, Jerome E. Bradley, for murder in the second degree. The defendant assigns three principal errors: the lack of counsel at the preliminary hearing; the introduction of statements made by the defendant at the preliminary hearing; and, the ineffective assistance of counsel at the trial. We affirm.
On February 20, 1975 the defendant, Jerome E. Bradley, shot and killed Clevon Murray at the Apple-Day Club in Beckley, West Virginia. Five days before at the American Legion Club, a fight between these two resulted in each being taken to a hospital for treatment. One of the witnesses to the incident, a daughter of the victim and a half-sister of the defendant, testified that she witnessed the defendant "sucker-punch" the victim. Other witnesses stated that there was a fight during which both the defendant and the victim were bloodied. All of the witnesses who knew the victim and the defendant agreed that there had been an ongoing feud between them. After this incident, witnesses testified to death threats that were made on different occasions by each party. The victim swore out a warrant against the defendant but it was not served until after the shooting of the victim.
That the defendant shot and killed the victim is uncontroverted. The incident was witnessed by a number of people; the defendant was apprehended at the scene of the crime; and, the defendant made a voluntary confession shortly thereafter. Arguing that the shooting was justifiable, a matter of self-defense, the defense stressed the following: death threats by the victim, the victim's reputation for violence, and the fact that the victim was armed at the time of the shooting. The main point of contention was whether the victim drew his pistol; no witness saw the victim draw it, but it was found by the police tucked inside his pants after the shooting.
The prosecution argued that the defendant, after obtaining his weapons, immediately sought out the victim. To further combat the claim of self defense the prosecution emphasized that the defendant emptied both guns which held a total of ten shots, and that the testimony of the defendant that he had shot the victim from a distance of twelve feet was contradicted by expert testimony that four of the bullet marks on the floor could only have been made if the defendant were standing directly over the victim and shooting down at him.
One day after the murder, a preliminary hearing on the warrant for the earlier assault and the warrant for the murder was held. The defendant was not represented by counsel. After the hearing was completed, Magistrate Rodriquez asked the defendant where he had been when the authorities had attempted to locate him to serve the assault warrant. The defendant responded that he had gone to his grandfather's to obtain two guns so that he could shoot Clevon Murray. This statement was later admitted into evidence during the trial.
Ever since the preliminary hearing was established as a critical stage in a criminal proceeding, Spaulding v. Warden, W. Va. State Pen., W.Va., 212 S.E.2d 619 (1975), right to counsel has been mandatory at that stage. However, that requirement is subject to the harmless error test as presented in State v. Boyd, W.Va., 233 S.E.2d 710 (1977). In order to determine whether the error was harmful or prejudicial, the possibility of harm must be measured under the criteria outlined by the United States Supreme Court in Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970). In Coleman the Supreme Court held that a preliminary hearing, while not constitutionally required, is a critical stage in the proceeding when conducted and further stated that the hearing is significant because counsel is able to cross-examine witnesses, preserve testimony of a favorable witness who does not appear at trial, discover the State's case, effectively prepare for trial, and make arguments for early psychiatric examination or bail. None of these criteria applies in this instance because the sole purpose of the hearing was to inform the defendant of his rights and to inform him that the bond would be set by the criminal court judge. No witnesses were present who should have been subject to cross-examination, no presentation of the State's case was made, and no discussion of psychiatric examination was made before or after the trial. Under these circumstances it is manifest that the lack of counsel constituted harmless error beyond a reasonable doubt.
If that were all that had resulted from the preliminary examination, this case would not be before this Court for consideration. However, the...
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