State v. Glover

• Citation: 177 W.Va. 650,355 S.E.2d 631
• Decision Date: 27 March 1987
• Docket Number: No. 16834,16834
• Court: Supreme Court of West Virginia
• Parties: STATE of West Virginia v. Virgil GLOVER.

Page 631

355 S.E.2d 631

177 W.Va. 650

STATE of West Virginia v. Virgil GLOVER.

No. 16834.

Supreme Court of Appeals of

West Virginia.

March 27, 1987.

Syllabus by the Court

1. "One who charges on appeal that his trial counsel was ineffective and that such resulted in his conviction, must prove the allegation by a preponderance of the evidence." Syl. pt. 22, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).

2. Ineffective assistance of counsel is established when it is proved that counsel for a criminal defendant failed to investigate adequately a purported alibi defense and consequently failed to contact, subpoena and call alibi witnesses who were willing and able to testify for the defendant in a case in which the alibi was the defendant's sole possible defense or a material defense.

3. Where the record on appeal is inconclusive as to whether counsel failed to investigate the sole possible defense or a material defense adequately and with reasonable diligence, this Court will not decide on such a record whether a criminal defendant was denied effective assistance of counsel but will remand the case for development of the record on the point and for a ruling by the trial court on the question.

4. Inexperience alone does not constitute ineffective assistance of counsel.

5. "In determining whether a given sentence violates the proportionality principle found in Article III, Section 5 of the West Virginia Constitution, consideration is given to the nature of the offense, the legislative purpose behind the punishment, a comparison of the punishment with what would be inflicted in other jurisdictions, and a comparison with other offenses within the same jurisdiction." Syl. pt. 5, Wanstreet v. Bordenkircher, --- W.Va. ---, 276 S.E.2d 205 (1981).

Neal Jay Hamilton, Fairmont, for appellant.

Jay Montgomery Brown, PA, Fairmont, for appellee.

McHUGH, Justice:

This case is before this Court upon an appeal by Virgil Glover, the appellant, from convictions of aggravated robbery and malicious assault. The Circuit Court of Marion County, West Virginia, sentenced the appellant to consecutive terms of seventy-five years for the aggravated robbery conviction and two-to-ten years for the malicious assault conviction. On appeal the assignments of error are (1) the allegedly ineffective assistance of counsel (primarily by failing to give timely notice of an alibi defense), (2) an alleged abuse of discretion by the trial court in not granting a further continuance for the preparation of an alibi defense and (3) the imposition of an allegedly disproportionate sentence for the aggravated robbery conviction. We conclude that a remand for an evidentiary hearing is necessary for the trial court to determine whether the evidence as developed on remand indicates that trial counsel was ineffective by failing to investigate and to prepare adequately an alibi defense which was in fact available to the appellant.

I

The appellant was found guilty of having severely beaten and robbed a fifty-three-year-old chronic alcoholic to whom the appellant had given a ride in a car. ¹ After the beating and robbery the victim was stripped of his coat, shoes and socks and was thrown in the mud beside the road. After regaining consciousness the victim crawled in the cold rain to a nearby house where the owner called an ambulance and the police. The victim was treated at the hospital for broken ribs, numerous bruises and lacerations and hypothermia.

The appellant testified that he had a hangover on the day in question and was at his house in another town where he was being cared for by his family. Exercising the discretion conferred upon it by W.Va.R.Crim.P. 12.1(d), the trial court, upon the State's motion, precluded the appellant from presenting the testimony of purported alibi witnesses because the appellant had failed to comply timely with W.Va.R.Crim.P. 12.1(a), which requires a criminal defendant to serve written notice of an intent to offer an alibi defense, along with the names and addresses of the alibi witnesses, within ten days after the prosecution demands the same (or at such different time as the court may direct). ² In this case the appellant served the notice of alibi on the day before trial, which was nearly two months after service of the State's demand for such notice. An amended notice of alibi, adding two alibi witnesses' names, was served by the appellant on the second day of trial.

The appellant's trial counsel explained to the trial court that he had been preoccupied with an attempted plea agreement which "fell through" two weeks before trial, and that there had been insufficient time to complete the investigation of the alibi defense. Trial counsel had subpoenaed four possible alibi witnesses. The trial court responded that it had continued the trial for a week after plea agreement discussions concluded and that in its opinion there had been sufficient time to prepare the alibi defense, especially in light of the fact that most, if not all, of the purported alibi witnesses were close relatives of the appellant who had been living with or near the appellant.

II

A.

In syllabus point 19 of State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974), this Court enunciated what most authorities call a "reasonably effective assistance" standard for determining whether a criminal defendant had received effective assistance of counsel:

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. ³

Syllabus point 21 of Thomas applies this "reasonably qualified defense attorney" test to matters involving trial tactics or strategies: "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." ⁴

Syllabus point 22 of Thomas states the general rule on the burden of proof of ineffective assistance of counsel: "One who charges on appeal that his trial counsel was ineffective and that such resulted in his conviction, must prove the allegation by a preponderance of the evidence." ⁵ Moreover, this Court is "very cautious about finding that counsel has been ineffective." State v. Bias, --- W.Va. ---, ---, 301 S.E.2d 776, 779 (1983). Accord, Tucker v. Holland, --- W.Va. ---, ---, 327 S.E.2d 388, 393 (1985). "A charge of ineffective assistance of counsel is not one to be made lightly. It is a serious charge which calls into question the integrity, ability and competence of a member of the bar." State v. Baker, 169 W.Va. 357, 365, 287 S.E.2d 497, 502 (1982). Accord, Tucker v. Holland, --- W.Va. ---, ---, 327 S.E.2d 388, 393 (1985).

As required by this Court in State v. Thomas, supra, and its progeny, the Supreme Court of the United States requires a criminal defendant to show that counsel's performance was both deficient (under a reasonably effective assistance standard) and prejudicial to the defendant's obtaining a fair trial in order to sustain a claim of ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984).

B.

Counsel's failure to investigate adequately a material element in the client's defense may constitute ineffective assistance of counsel. The exercise of the utmost skill during the trial is not enough if counsel has neglected the necessary investigation and preparation of the case or failed to interview essential witnesses or to arrange for their attendance. Carrico v. Griffith, 165 W.Va. 812, 816, 272 S.E.2d 235, 238 (1980); Carter v. Bordenkircher, 159 W.Va. 717, 722, 226 S.E.2d 711, 715 (1976). Similarly, in Scott v. Mohn, 165 W.Va. 393, 268 S.E.2d 117 (1980), this Court listed counsel's conducting or failure to conduct a proper investigation of the facts and the law in preparation for trial as a typically relevant factor in determining whether a criminal defendant had been denied effective assistance of counsel. 165 W.Va. at 397, 268 S.E.2d at 120. ⁶

Ineffective assistance of counsel is established when it is proved that counsel for a criminal defendant failed to investigate adequately a purported alibi defense and consequently failed to contact, subpoena and call alibi witnesses who were willing and able to testify for the defendant in a case in which the alibi was the defendant's sole possible defense or a material defense. See, e.g., Bell v. Georgia, 554 F.2d 1360 (5th Cir.1977); Gomez v. Beto, 462 F.2d 596 (5th Cir.1972); Wilson v. Cowan, 578 F.2d 166 (6th Cir.1978); People v. Rodriguez, 73 Cal.App.3d 1023, 141 Cal.Rptr. 118 (1977), review denied, Jan. 5, 1978; Holland v. Commonwealth, 679 S.W.2d 832 (Ky.Ct.App.1984). See generally annotation, Modern Status of Rule as to Test in Federal Court of Effective Representation by Counsel, 26 A.L.R.Fed. 218, § 8 ("Preparation for trial; investigation and consultation with client") and § 10[c] ("Failure to present particular witnesses") (1976 and Supp.1986); annotation, Modern Status of Rules and Standards in State Courts as to Adequacy of Defense Counsel's Representation of Criminal Client, 2 A.L.R. 4th 27, § 11[e] ("Evidence of guilt or innocence: Effect of purportedly exculpatory evidence") (1980 and Supp.1986).

Counsel's unexplained failure to give timely notice of an alibi defense, resulting in the exclusion of alibi witnesses' testimony, has been...