State v. Demastus, No. 13862

CourtSupreme Court of West Virginia
Writing for the CourtHARSHBARGER
Citation270 S.E.2d 649,165 W.Va. 572
PartiesSTATE of West Virginia v. James Mark DEMASTUS.
Decision Date23 September 1980
Docket NumberNo. 13862

Page 649

270 S.E.2d 649
165 W.Va. 572
STATE of West Virginia
v.
James Mark DEMASTUS.
No. 13862.
Supreme Court of Appeals of West Virginia.
Sept. 23, 1980.

Page 651

Syllabus by the Court

1. It is error to refuse a continuance to allow a defendant to obtain evidence which is critical to his defense, the existence of which was discovered only shortly before trial.

[165 W.Va. 573] 2. "The right guaranteed by State and Federal Constitutions to a person charged with a criminal violation to have effective assistance of counsel, cannot be abrogated by denying counsel, if timely employed, sufficient time to adequately prepare for trial." State ex rel. West Virginia-Pittsburgh Coal Co. v. Eno, 135 W.Va. 473, 63 S.E.2d 845 (1951), Syllabus Point 2.

Page 652

3. "The factors relevant in assessing claims of inadequate time to prepare for trial are: the time available for preparation, the likelihood of prejudice from the denial, the accused's role in shortening the effective preparation time, the degree of complexity of the case, the availability of discovery from the prosecution, the adequacy of the defense provided at trial, the skill and experience of the attorney, any pre-appointment or pre-retention experience of the attorney with the accused for the alleged crime, any representation of the defendant by other attorneys that accrues to his benefit, whether the plea for more time to prepare for trial is made in good faith, the public interest in a speedy trial of the case, and the time the defendant has been in prison awaiting trial." State v. Bush, W.Va., 255 S.E.2d 539 (1979), Syllabus Point 4.

4. When a trial judge is made aware of a possible problem with defendant's competency, it is abuse of discretion to deny a motion for psychiatric evaluation. To the extent State v. Arnold, W.Va., 219 S.E.2d 922 (1975), differs from this rule, it is overruled.

5. Jury instructions on possible guilty verdicts must only include those crimes for which substantial evidence has been presented upon which a jury might justifiably find the defendant guilty beyond a reasonable doubt.

6. " 'In determining whether an out-of-court identification of a defendant is so tainted as to require suppression of an in-court identification a court must look to the totality of the circumstances and determine whether the identification was reliable, even though the confrontation procedure was suggestive, with due regard given to such factors as the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior [165 W.Va. 574] description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. Syl. pt. 3, State v. Casdorph, W.Va., 230 S.E.2d 476 (1976).' " State v. Williams, W.Va., 249 S.E.2d 752 (1978), Syllabus Point 1.

7. Unlawful wounding is a lesser included offense in armed robbery.

8. It is not error for a court to refuse to give a repetitive instruction.

Jeniver J. Jones, Sutton, William C. Garrett, Webster Springs, William C. Martin, Third Year Law Student, for plaintiff in error.

Chauncey H. Browning, Atty. Gen., E. Wayne Basconi, Asst. Atty. Gen., Charleston, for defendant in error.

HARSHBARGER, Justice:

In the early morning hours of Saturday, June 21, 1975, then fifty-two year old Paul Hauman was badly beaten and allegedly robbed as he walked through an alley to his mother's home in Glenville, West Virginia after attending an all-night session of the Gilmer County Folk Festival.

On July 7, 1975, James Mark Demastus was indicted for robbing Hauman, 1 was arraigned July 9, and his trial [165 W.Va. 575] began five days later. He was an indigent and lawyers William C. Garrett of Webster Springs, Webster County, and Jeniver J. Jones of Sutton, Braxton County, were appointed

Page 653

about July 2 and 7, respectively, to represent him.

They objected to the July 14 trial date and moved for a continuance because of their case would not be prepared by then. Neither resided nor had his law practice in Gilmer County. Jones was preparing for a murder trial in Clay County. 2 The crime focused adverse publicity on the festival, and they also wanted more time to get evidence to support a motion for change of venue. Demastus' history of mental problems prompted them to move for pretrial psychiatric evaluation. All three motions were denied and their client then pled not guilty, jurors were selected, and trial began.

Demastus and Hauman testified that at about 3:30 A.M. on June 21, they were sitting in front of the Score Board Tavern listening to music. The two exchanged minor conversation, and Demastus gave Hauman two beers and Hauman lit several of defendant's cigarettes. Other witnesses, for the prosecution and defense, substantially corroborated that defendant and Hauman were sitting together for a time from 3:30 A.M. and shortly thereafter. It is also uncontroverted that about 4:00 A.M. both left the immediate tavern area, not together, but in the same direction.

[165 W.Va. 576] Demastus did not know to where or when Hauman left. Demastus tried to find companions of the earlier evening, but after several minutes gave up the search only to see another friend, Glenn Waugh, in an automobile leaving town, and he asked for a ride home. Waugh testified that Demastus entered his car sometime around 4:15 A.M., was "drunk", and "passed out" on the way home.

Hauman said he left the company of defendant and walked toward his mother's home through an alley past the house of Mary Bland Whiting, and behind the Baptist Church, where he was attacked from behind and "somebody beat the hell out of me."

Mary Bland Whiting was getting ready for bed about 4:00 A.M. when she heard a fight in the alley. Her view was somewhat obscured by a hedge, but she recognized Hauman's voice and could see enough of his attacker to describe him as having light-colored shoulder-length hair and being of medium build. She called the Glenville Police.

Dallas Goodrich, a Glenville policeman, testified he received a call between 4:15 and 4:30 A.M. about a fight behind the Baptist Church, went immediately to the scene and saw Hauman bleeding and very excited, holding his wallet. Hauman blurted out "somebody beat the hell out of me and I think he robbed me," and described his assailant as being burly with longish light-colored hair. He did not identify him as the man whose presence he had just left. Goodrich checked the area but saw no one.

Trooper K. Smith of the West Virginia State Police, investigating the crime, telephoned Hauman at his Clarksburg residence that afternoon. Hauman told him that the man who attacked him was the man with whom he had been sitting earlier that day. The following Tuesday, Hauman learned Demastus' name through a photographic identification.

[165 W.Va. 577] The jury was instructed that it could find verdicts of (1) armed robbery, (2) unarmed robbery, (3) unlawful wounding, (4) assault and battery, (5) petit larceny, or (6) not guilty. It found Demastus guilty of unlawful wounding.

His motions to set aside the verdict and for a new trial were overruled; he was sentenced to imprisonment for one to five years. Only then did the court order his medical records from Weston State Hospital be put in the record as an exhibit supporting his motion for pretrial psychiatric examination.

I

The Constitutions of this state and the United States guarantee a defendant a reasonable

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time to prepare for trial, 3 and guarantee effective assistance of counsel. These rights were denied defendant.

In West Virginia, this reasonable time to prepare is to be considered when deciding if defendant received effective assistance of counsel as guaranteed by both our state and federal constitutions; and is also an independent[165 W.Va. 576] [165 W.Va. 578] state constitutional guarantee. Wilhelm v. Whyte, W.Va., 239 S.E.2d 735, 740. 4

There is no rigid rule by which to determine what a "reasonable" time to prepare a defense is, nor one that always can be relied upon to assess counsel effectiveness. However, cases here and elsewhere discuss the problems. 5

In Housden v. Leverette, W.Va., 241 S.E.2d 810, 811 (1978), we adopted the well-established Fourth Circuit rule that appointment of counsel within one day or less of trial or entry of a guilty plea, raises a rebuttable presumption that a defendant was denied effective counsel. 6 We neither

Page 655

limit nor extend that rule, but cite [165 W.Va. 579] it to show the interrelation this Court sees between the amount of time an attorney is given to prepare for trial and his ability to render effective assistance. 7

Criminal defense work is significantly more complex than it was just a few years ago. State ex rel. Partain v. Oakley, W.Va., 227 S.E.2d 314 (1976). Our standards for effective legal representation have become more exacting, thereby subjecting the conduct of criminal defense lawyers to greater scrutiny. State v. Thomas, W.Va., 203 S.E.2d 445 (1974). It is obvious "there is a substantial relationship between time to prepare for a criminal trial and the quality of representation provided by the defense." State v. Bush, W.Va., 255 S.E.2d 539, 542.

Trial court decisions about continuances have not been disturbed unless discretion was abused. State v. Jones, 84 W.Va. 85, 99 S.E. 271 (1919), Syllabus Point 1; State v. Bush, supra, at Syllabus Point 2. The decision must have prejudiced the party who asked for the continuance. State v. Jones, supra, at Syllabus Point 3.

In State v. Bush, supra, we decided that a trial court's failure to grant a continuance to newly appointed counsel may deny a defendant effective counsel. Defendant's attorney had only a weekend to prepare for trial. Id., at 540-541. The case is important because it attempts to [165 W.Va. 580] describe objective factors by which a judge may assess claims...

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64 practice notes
  • State v. Davis, No. 16433
    • United States
    • Supreme Court of West Virginia
    • March 25, 1986
    ...be abrogated by denying counsel, if timely employed, sufficient time to adequately prepare for trial." 2 See also State v. Demastus, 165 W.Va. 572, 577, 270 S.E.2d 649, 653-54 (W.Va.1980) ("The Constitutions of this state and the United States guarantee a defendant a reasonable time to prep......
  • Orr v. Crowder, No. 15477
    • United States
    • Supreme Court of West Virginia
    • December 16, 1983
    ...(1982), quoting Syllabus Point 7, State v. Arnold, W.Va., 219 S.E.2d 922 (1975), overruled on other grounds, State v. Demastus, W.Va., 270 S.E.2d 649 (1980), and Syllabus Point 18, State v. Hamric, 151 W.Va. 1, 151 S.E.2d 252 Chauncey H. Browning, Atty. Gen., and David P. Cleek, Deputy Atty......
  • State v. Davis, No. 25812.
    • United States
    • Supreme Court of West Virginia
    • June 28, 1999
    ...an unlawful manner, resulting in the unintentional death of another." Id. (Citation omitted). In Syllabus Point 5 of State v. Demastus, 165 W.Va. 572, 270 S.E.2d 649 (1980), this Court stated that "[j]ury instructions on possible guilty verdicts must only include those crimes for which subs......
  • State v. Cook, No. 16183
    • United States
    • Supreme Court of West Virginia
    • July 15, 1985
    ...been presented upon which a jury might justifiably find the defendant guilty beyond a reasonable doubt." Syl. pt. 5, State v. Demastus, 165 W.Va. 572, 270 S.E.2d 649 13. "Immaterial, unnecessary and harmless averments, which might be omitted without affecting the charge in an indictment aga......
  • Request a trial to view additional results
65 cases
  • State v. Davis, No. 16433
    • United States
    • Supreme Court of West Virginia
    • March 25, 1986
    ...be abrogated by denying counsel, if timely employed, sufficient time to adequately prepare for trial." 2 See also State v. Demastus, 165 W.Va. 572, 577, 270 S.E.2d 649, 653-54 (W.Va.1980) ("The Constitutions of this state and the United States guarantee a defendant a reasonable time to prep......
  • Orr v. Crowder, No. 15477
    • United States
    • Supreme Court of West Virginia
    • December 16, 1983
    ...(1982), quoting Syllabus Point 7, State v. Arnold, W.Va., 219 S.E.2d 922 (1975), overruled on other grounds, State v. Demastus, W.Va., 270 S.E.2d 649 (1980), and Syllabus Point 18, State v. Hamric, 151 W.Va. 1, 151 S.E.2d 252 Chauncey H. Browning, Atty. Gen., and David P. Cleek, Deputy Atty......
  • State v. Davis, No. 25812.
    • United States
    • Supreme Court of West Virginia
    • June 28, 1999
    ...an unlawful manner, resulting in the unintentional death of another." Id. (Citation omitted). In Syllabus Point 5 of State v. Demastus, 165 W.Va. 572, 270 S.E.2d 649 (1980), this Court stated that "[j]ury instructions on possible guilty verdicts must only include those crimes for which subs......
  • State v. Cook, No. 16183
    • United States
    • Supreme Court of West Virginia
    • July 15, 1985
    ...been presented upon which a jury might justifiably find the defendant guilty beyond a reasonable doubt." Syl. pt. 5, State v. Demastus, 165 W.Va. 572, 270 S.E.2d 649 13. "Immaterial, unnecessary and harmless averments, which might be omitted without affecting the charge in an indictment aga......
  • Request a trial to view additional results

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