State v. Hatala, 16739

• Decision Date: 05 March 1986
• Docket Number: No. 16739,16739
• Citation: 345 S.E.2d 310,176 W.Va. 435
• Parties: STATE of West Virginia, Plaintiff, Appellee, v. Kenneth HATALA, Defendant Below, Appellant.
• Court: West Virginia Supreme Court

Page 310

345 S.E.2d 310

176 W.Va. 435

STATE of West Virginia, Plaintiff, Appellee, v. Kenneth HATALA, Defendant Below, Appellant.

No. 16739.

Supreme Court of Appeals of West Virginia.

March 5, 1986.

Syllabus by the Court

1. "Although it is a well-settled policy that the Supreme Court of Appeals normally will not rule upon unassigned or imperfectly assigned errors, this Court will take cognizance of plain error involving a fundamental right of an accused which is protected by the Constitution." Syl. pt. 4, State v. Starr, 158 W.Va. 905, 216 S.E.2d 242 (1975).

2. The plain error doctrine of W.Va.R.Crim.P. 52(b), whereby the court may take notice of plain errors or defects affecting substantial rights although they were not brought to the attention of the court, is to be used sparingly and only in those circumstances in which a miscarriage of justice would otherwise result.

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).

Frank W. Helvey, Jr., Public Legal Services Council, Charleston, for appellant.

Mary Rich Maloy, Asst. Atty. Gen., Charleston, for appellee.

BROTHERTON, Justice:

This is an appeal from the Circuit Court of Monongalia County. The defendant, Kenneth Hatala, urges us to reverse his conviction for aiding and abetting grand larceny, citing improper remarks by the prosecutor and ineffective assistance of counsel. We find no error and affirm.

On December 15, 1983, a bystander in the Hills Department Store parking lot in Morgantown, West Virginia, was watching people leaving the store. She noticed a man, later identified as Mr. Hatala, and a woman approach a parked car. Both were wearing coats. When they reached the car they removed their coats, placed them in the car and went back into the Hills Department Store. The two returned later, again wearing coats, and again removed them and placed them in the car and returned to Hills. This was repeated a total of four times. The bystander notified Hills security officers.

When the security officer approached the parked car, Mr. Hatala was not there, but two girls were sitting inside the car. One of the girls readily handed over two coats from the floor of the car. Both coats were identified as belonging to Hills. The bystander then observed Mr. Hatala going into a nearby Pizza Inn. She recognized him as the man who had taken the four coats to the parked car and pointed him out to the security officers. Mr. Hatala was arrested and the automobile was searched. The coats and several other items taken from Hills were recovered.

At a trial before a jury in the Circuit Court of Monongalia County, on July 18-19, 1984, Kenneth Hatala was found guilty of grand larceny as a principal in the second degree, that is, aiding and abetting another to commit grand larceny.

I.

The appellant's first contention is that the prosecutor made an improper remark in her closing statement by saying that the defense counsel would "give you all kinds of smoke screens." ¹ No objection was made to this statement at trial. ² We are thus asked to take notice of the error, if there is one, under the plain error doctrine, as set out in W.Va.R.Crim.P. 52(b). We decline to do so.

The plain error doctrine of Rule 52(b) tempers the blow of a rigid application of the contemporaneous objection requirement. In Syl. pt. 4 of State v. Starr, 158 W.Va. 905, 216 S.E.2d 242 (1975), we stated: "Although it is a well-settled policy that the Supreme Court of Appeals normally will not rule upon unassigned or imperfectly assigned errors, this Court will take cognizance of plain error involving a fundamental right of an accused which is protected by the Constitution." Nevertheless, this Court will use the plain error rule to correct only particularly egregious errors. The rule is to be used sparingly and only in those circumstances in which a miscarriage of justice would otherwise result. United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 1046 -47, 84 L.Ed.2d 1, 12 (1985). The prosecutor's statement in this situation is certainly not so heinous as to cause this Court to invoke the plain error doctrine.

II.

The appellant also claims that his case should be reversed for ineffective assistance of counsel. Here the appellant relies heavily on the fact that at trial his attorney failed to object to hearsay testimony by Hills' manager as to the value of the goods stolen. At first glance this argument appears to have some merit. However, a closer look at the record shows that the declarant of the hearsay statements was present in the courtroom, ready to be a witness if needed. An objection by the defense counsel would only have caused the prosecution to call one extra witness. The defense counsel is not required to make every objection if it is reasonably clear that the objection would not affect the final outcome of the trial. Here, defense counsel allowed hearsay evidence to come in without objection in order to avoid testimony by another state's witness. "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).

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