State v. Hutchinson

• Decision Date: 04 April 1986
• Docket Number: No. 16551,16551
• Citation: 176 W.Va. 172,342 S.E.2d 138
• Parties: STATE of West Virginia v. Bernard HUTCHINSON.
• Court: West Virginia Supreme Court

Page 138

342 S.E.2d 138

176 W.Va. 172

STATE of West Virginia v. Bernard HUTCHINSON.

No. 16551.

Supreme Court of Appeals of West Virginia.

April 4, 1986.

Syllabus by the Court

1. "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, 157 W.Va. 640, 203 S.E.2d 445 (1974).

2. Although this Court may, under Rule 30 of the West Virginia Rules of Criminal Procedure, notice plain error in the giving of an erroneous instruction (in the absence of a proper and timely objection at trial), this Court will not ordinarily recognize plain error under such circumstances, even of constitutional magnitude, where the giving of the erroneous instruction did not substantially impair the truth-finding function of the trial.

3. "Once a suspect in custody has expressed his clear, unequivocal desire to be represented by counsel, the police must deal with him as if he is thus represented. Thereafter, it is improper for the police to initiate any communication with the suspect other than through his legal representative, even for the limited purpose of seeking to persuade him to reconsider his decision on the presence of counsel." Syl. pt. 1, State v. McNeal, 162 W.Va. 550, 251 S.E.2d 484 (1978).

William D. Highland, Public Legal Services, Charleston, for appellant.

Atty. Gen. Charlie Brown, Deputy Atty. Gen. Silas B. Taylor, Charleston, for appellee.

McHUGH, Justice:

Bernard Hutchinson appeals from his conviction in the Circuit Court of Monongalia County of non-aggravated robbery. The appellant was indicted for aggravated robbery in January of 1983. Following a three-day trial in October of 1983, he was convicted of non-aggravated robbery. The trial judge sentenced the appellant to a term of five to eighteen years in the state penitentiary.

There are two assignments of error. First, the appellant contends that his lawyer's failure to object to an unconstitutional alibi instruction constituted ineffective assistance of counsel. Second, the appellant contends that a pre-trial voice identification should have been suppressed on the ground that the appellant was asked by police to give a voice sample after he had requested to speak with a lawyer.

I

Nelson Lott, an attendant at Laishley's Exxon service station in Westover, was closing the station for the night at approximately 11 p.m. on December 22, 1981. He was carrying a metal box containing cash and credit receipts. A man concealing himself behind a Coke machine called out to Lott to drop the box. When Lott did not drop the box, the hidden figure rattled some chains on a U-Haul trailer and said, "Drop the box or I will blow your head off." Lott then placed the box on the fender of a car parked on the lot and walked away. Glancing back, he caught sight of a man standing next to the box. Because it was dark and Lott by then was some distance away he was unable to get a good look at this individual. However, Lott told the police that the robber was bearded and wore coveralls and a red hat, possibly a ball cap. The robber took the metal box and fled from the scene. Lott later made a statement and also testified at the appellant's trial that he thought he recognized the voice as that of the appellant. He was acquainted with the appellant who had previously worked for a short time at Laishley's Exxon.

David Rodgers, a news photographer, was standing outside a laundromat in the vicinity of the gas station at about 11:05 p.m. on the night of the robbery. He saw a man run through the laundromat's parking lot, whom he described as 40 years old, balding, clean shaven, and husky. The man wore baggy pants, a short-waisted coat and was hatless. Rodgers said the pants were definitely not blue jeans. He was carrying a box that made a rattling sound and an object that appeared to be a club. The area was well-lit and Rodgers was able to observe him for about 30 seconds. At the trial, Rodgers positively identified the appellant as the man he saw running that night.

A red toboggan cap, a shotgun, and the stolen metal box, containing $971.78 were found by police officers two blocks from the gas station. Police officers searching the area also saw the appellant who explained to them that his car had broken down and that he was on his way home to get some tools. One officer reported that the appellant was wearing blue jeans and a green coat. After being briefly questioned, the appellant continued on his way.

The appellant's car was seen parked not far from the Exxon station. Two officers looked through the windows and saw shotgun shells, tool boxes and clothing. By this time, the police were informed that Rodgers had picked appellant's photograph from a photo array. The car was impounded and towed to the police station.

The appellant testified at trial that he had been at home watching television with his wife and children until shortly after the 11 o'clock news came on. He then decided to drive to a local tavern for a beer. On the way his car broke down. He left it parked and started to walk home to get some tools. He encountered a police officer to whom he explained his presence in the area. A friend picked him up and drove him the rest of the way home. Returning to work on his car, he found it gone. He called the police station, was informed that it had been towed and that he could come in to recover it. When he arrived at the police station, he was given Miranda warnings. He answered questions about his whereabouts that evening and then participated in a line-up and voice identification procedure. He was not arrested at that time and was permitted to leave. The appellant's wife and stepson both corroborated the appellant's testimony that he did not leave home until after 11:00 p.m.

II

The appellant relied on the defense of alibi. He requested that the following instruction be given to the jury:

The Court instructs the jury in this case the defendant is relying upon a defense of alibi. The Court instructs the jury further that although the burden is upon the defendant to prove his alibi, he does not have to prove it beyond a reasonable doubt, nor must he prove it by a preponderance of the evidence, but rather, he must prove his alibi by such evidence, and to such a degree of certainty, as will, when the whole evidence is considered, create and leave in the mind of the jury a reasonable doubt as to the guilt of the accused. Therefore, if, after considering all of the evidence of this case, you have a reasonable doubt as to whether or not the defendant was the party who committed the offense charged, you must return a verdict of not guilty.

The trial judge did not give the requested alibi instruction. Rather, he gave his own instruction, referred to by the judge as the "recommended alibi instruction," which was almost precisely in the language approved in syllabus point 2 of State v. Alexander, 161 W.Va. 776, 245 S.E.2d 633 (1978).

The court's instruction read as follows:

The court instructs the jury that where the State has established a prima facie case and the defendant relies upon the defense of alibi, the burden is upon him to prove it, not beyond a reasonable doubt, nor by a preponderance of the evidence, but by such evidence, and to such a degree of certainty, as will, when the whole evidence is considered, create and leave in the mind of the jury a reasonable doubt as to the guilt of the accused.

In Adkins v. Bordenkircher, 674 F.2d 279 (4th Cir.1982) cert. denied, 459 U.S. 853, 103 S.Ct. 119, 74 L.Ed.2d 104 (1982), the Fourth Circuit Court of Appeals ruled that the Alexander instruction offended the Federal Constitution by shifting to the defendant the burden of persuasion with respect to an essential element of the offense charged, namely, presence at the scene of the crime. Following Adkins v. Bordenkircher, we overruled State v. Alexander in State v. Kopa, 173 W.Va. 43, 311 S.E.2d 412 (1983). The Alexander instruction was again found to be constitutional error in State v. Collins, 174 W.Va. 767, 329 S.E.2d 839 (1984). The appellant's trial occurred in the interim between Adkins and Kopa.

The appellant contends that his trial counsel was ineffective by failing to adequately research the validity of the Alexander alibi instruction. A reasonably competent counsel, argues the appellant, would have discovered the Fourth Circuit's opinion in Adkins v. Bordenkircher and thus would neither have offered nor failed to object to an Alexander-type instruction.

Our standard for evaluating a claim of ineffective assistance of counsel is set forth in syllabus point 19 of State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974):

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.

The Thomas standard comports with the performance and prejudice test recently enunciated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh'g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984). See State ex rel....