State v. Jacobs, s. 15270

CourtSupreme Court of West Virginia
Citation298 S.E.2d 836,171 W.Va. 300
Decision Date10 December 1982
Docket Number15269,Nos. 15270,s. 15270
PartiesSTATE of West Virginia v. Howard Dale JACOBS. (Two cases)

Page 836

298 S.E.2d 836
171 W.Va. 300
STATE of West Virginia
Howard Dale JACOBS. (Two cases)
Nos. 15270, 15269.
Supreme Court of Appeals of
West Virginia.
Dec. 10, 1982.

Page 838

[171 W.Va. 301] Syllabus by the Court

1. "Where defendant has been once tried upon a criminal charge, and subsequent to such trial a witness who testified in defendant's behalf disappears through no fault of the defendant, and, although diligently sought by defendant, cannot be found so as to testify at a later trial of defendant upon the same charge, the testimony of such witness given at the former trial is properly admissible." Syllabus Point 4, State v. Sauls, 97 W.Va. 184, 124 S.E. 670 (1924).

2. "Such evidence is not admissible, however, unless it be shown that defendant has not been able to find the witness after diligent search; the mere issuance of subpoenas and placing them in the hands of the sheriff or other officer to be served, as shown in the instant case, is insufficient proof of diligence in that behalf." Syllabus Point 5, State v. Sauls, supra.

3. "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." Syllabus Point 19, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).

4. "Where a counsel's performance, attacked as ineffective, arises from occurrences[171 W.Va. 302] 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." Syllabus Point 21, State v. Thomas, supra.

Janet F. Steele, Asst. Atty. Gen., Charleston, for respondent.

Clark B. Frame, Wilson, Frame & Poling, Morgantown, for petitioner.


Howard Dale Jacobs brings an appeal and an original proceeding in habeas corpus to challenge a final judgment of the Circuit Court of Doddridge County which sentenced him to imprisonment in the penitentiary for a term of not less than one nor more than ten years upon his conviction by jury verdict of the crime of entering without breaking with intent to commit larceny of an antique pump organ. In his appeal Jacobs alleges erroneous evidentiary rulings by the trial court and prosecutorial misconduct. The habeas corpus proceeding was instituted on grounds of ineffective assistance of counsel. We find no merit in the appellant-petitioner's assertions. We therefore affirm his conviction and deny the writ of habeas corpus prayed for.

On January 28, 1980, an indictment was returned against the appellant-petitioner charging him with entering without breaking a storehouse of one Jerry Lee Myer with the intent to steal an antique pump organ valued at $1,000. This indictment was one of several returned against the appellant-petitioner in connection with a series of breaking and enterings which had occurred in Doddridge County in 1978. In July 1979, the appellant-petitioner was tried on similar charges involving the theft of a corner cabinet from a building owned by Jerry Lee Myer and was acquitted by a

Page 839

jury. 1 A nolle prosequi order was entered in November 1979 in connection with previous indictments charging the appellant-petitioner with breaking and entering in connection with the larceny of the pump organ.

The appellant-petitioner's trial on the entering without breaking charge was set for April 14, 1980. Pursuant to discovery motions made by the defense, the prosecuting attorney filed a statement of disclosure on February 11, 1980. On April 21, 1980, defense counsel filed a motion to quash the indictment on the ground that the prosecuting attorney had willfully failed to disclose exculpatory evidence in the form of a letter written by the State's chief witness, Mark Bell, to the prosecutor. After a hearing, the circuit court overruled the motion to quash.

On April 30, 1980, the appellant-petitioner was found guilty of the charges contained in the indictment. A motion to set aside the verdict was denied by order entered May 28, 1980, and an order of conviction and sentencing was entered July 3, 1980. On February 26, 1981, the appellant-petitioner filed with this Court a petition for appeal which was subsequently denied. The petition for a writ of habeas corpus was filed on April 30, 1981. On June 24, 1981, a rule to show cause was issued by this Court and upon reconsideration we agreed to hear the appellant-petitioner's appeal.


We will first address the issues raised by Jacobs in his appeal. The first and most serious of his assignments of error is that the prosecuting attorney suppressed exculpatory evidence in the form of a letter written by Mark Bell prior to trial. Bell, who is the nephew of the appellant-petitioner, had entered into a plea bargain arrangement with the prosecuting attorney whereby he agreed to plead guilty to one charge of breaking and entering and to testify against the appellant-petitioner and others allegedly involved in the breaking and enterings in exchange for which the prosecuting[171 W.Va. 303] attorney agreed to dismiss other indictments pending against Bell.

In his motion to quash, the appellant-petitioner contended that the letter Bell had written to the prosecuting attorney some weeks before the trial indicated that Bell had been coerced by the State into testifying against the appellant-petitioner against his will. Defense counsel asserted that the prosecuting attorney refused to discuss the contents of the letter and told him that the letter had been lost. At the hearing, the prosecuting attorney asserted that the letter had been misplaced and that, in any event, it did not contain exculpatory evidence. Prior to trial, the prosecuting attorney found the misplaced letter and sent a copy of it to defense counsel.

The text of the letter which was written while Bell was in prison indicates that Bell had changed his mind about testifying against the appellant-petitioner. 2 Bell's testimony at trial indicates that he wrote the letter to the prosecutor because he thought he would be tried on other charges even if he testified against the appellant-petitioner. He apparently agreed to testify after having been reassured by the prosecuting attorney that the other charges against him would be dismissed pursuant to the plea bargain agreement. In his deposition, the prosecuting attorney stated that when he received the letter he assumed that Bell was under pressure from his family not to testify against his uncle.

Page 840

The record also shows that even though the prosecuting attorney did not believe the letter to contain exculpatory evidence which he was required to disclose to the defense, he mailed a copy of the letter to defense counsel prior to trial. Defense counsel agreed, after reading the letter, that it was of little value to the appellant-petitioner's defense. The appellant-petitioner raises a question, however, as to the authenticity of this letter. He asserts that it was not written on the typical paper used by inmates at Huttonsville and raises the specter that the letter in the record was written by Bell sometime afterward, at the prosecutor's behest in order to satisfy defense counsel. At trial, however, Bell identified the letter as the one he had written from Huttonsville and other letters from Bell which appear in the record appear to have been written on the same type of paper.

We have in the past recognized the distinction between the prosecutor's constitutionally mandated duty to disclose exculpatory material to the...

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