State v. KIRK N.

• Decision Date: 04 December 2003
• Docket Number: No. 31315.,31315.
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee v. KIRK N., Defendant Below, Appellant.

591 S.E.2d 288

214 W.Va. 730

STATE of West Virginia, Plaintiff Below, Appellee v. KIRK N., Defendant Below, Appellant.

No. 31315.

Supreme Court of Appeals of West Virginia.

Submitted October 28, 2003.

Decided December 4, 2003.

Darrell V. McGraw, Jr., Attorney General, Robert D. Goldberg, Assistant Attorney General, Charleston, for Appellee.

Stephen S. Fitz, Fairmont, for Appellant.

STARCHER, C.J.:

In this case we affirm a juvenile adjudication and disposition by a circuit court.

I. Facts & Background

This is an appeal by Kirk N.¹ ("the juvenile") from an April 22, 2002 dispositional order of the Marion County Circuit Court ("the court" or "the circuit court"), committing the juvenile to the Industrial Home for Youth until his twenty-first birthday.

A juvenile petition, filed on July 13, 2000, alleged that the juvenile committed acts which, had he been over eighteen, would have been felonies pursuant to W.Va.Code, 61-8B-4(a)(2) [1991] (second degree sexual assault upon a physically helpless victim) and W.Va.Code, 61-10-31 [1971] (conspiracy to commit a felony). The juvenile was adjudicated delinquent following an adjudicatory trial before a jury held from November 7 to November 9, 2001. On appeal, the juvenile (through his original court-appointed trial counsel, who has represented the juvenile since he was first charged) contends that the circuit court violated the juvenile's constitutional right to the effective assistance of counsel at trial, and that the court's dispositional order committing the juvenile to the Industrial Home for Youth, was an abuse of discretion.

On July 13, 2000, the Fairmont City Police Department filed a juvenile petition alleging that on the evening of July 8, 2000, the juvenile had sexual intercourse with the victim (we omit her name) while she was physically helpless, and that the juvenile conspired with another juvenile to commit this act.

The petition's caption listed the juvenile and his father as "Respondents," as required by W.Va.Code, 49-5-7(b) [2003].² The petition stated, inter alia, that "the child and his parent(s) or custodian(s) have the right to legal counsel at each and every stage of the proceedings under the petition. Further, if the child cannot afford an attorney, or if the parents, or custodian of the child cannot afford to retain an attorney to represent the child, an attorney will be appointed to represent the child."

The court entered an order filing the juvenile petition on July 14, 2000, which set a preliminary hearing date of July 31, 2000. The court's order also states: "If the juvenile and/or his/her parents or custodians do not have an attorney and cannot afford one, they should appear before the circuit court prior to the preliminary hearing and have counsel appointed for them." Pursuant to the order, copies of the petition, the order filing the petition, and summonses for the preliminary hearing were served upon the juvenile, his/her parents or custodians, and upon the West Virginia Division of Human Services.

The juvenile was represented at a preliminary hearing (and throughout two trials) by a publicly-paid, court-appointed lawyer (who is, as noted, the juvenile's present counsel in this appeal). Following the preliminary hearing, the court found probable cause to believe that the juvenile had committed an act of juvenile delinquency. The court released the juvenile into the custody of his parents, set bond at $10,000.00, and set a curfew of 7:00 p.m. The juvenile's parents posted bond; his parents were not represented by counsel at the preliminary hearing. However, at some point, the juvenile's father hired a private attorney.

The adjudicatory phase of the juvenile's case was tried before a jury from May 9 to May 10, 2001. Prior to trial, on May 1, 2001, the court held a hearing on, inter alia, a motion by the prosecution in limine seeking to prevent the lawyer hired by the father from participating in the adjudicatory hearing.

At this hearing, the juvenile's court-appointed lawyer and the lawyer hired by the father argued that the lawyer hired by the father should be allowed to participate in the adjudicatory hearing, because the naming of the parents as respondents made them separate "parties" in the proceeding.

The trial court stated that the Legislature probably did not intend that parents be allowed to participate in an adjudicatory hearing as parties. But, the court reasoned, because W.Va.Code, 49-5-7(b) [2003] requires the parents to be named as "respondents," the parents had the right to participate, as parties, with their own separate counsel, in the adjudicatory hearing.

However, the court also held that because the court perceived that the legal interests of the parents and the juvenile were the same, the lawyer hired by the father and the juvenile's court-appointed lawyer should be required to act as "co-counsel." More specifically, the court's ruling permitted both attorneys to submit proposed jury instructions; to call and subpoena witnesses; to give closing arguments; to submit and argue motions on the juvenile's behalf; and to object to the State's examination and cross-examination of witnesses.

However, the court would not permit both attorneys to cross-examine witnesses, to voir dire the jury, or to deliver opening statements. The lawyers were to agree between themselves as to which lawyer would conduct each of these activities.

Both lawyers objected to this portion of the ruling, each claiming that both attorneys should be entitled to examine every witness—because both the parents and the juvenile were parties. In response to the court's ruling, neither lawyer suggested that there was or might be any potential or actual "conflict of interest" or other obstacle to a "co-counsel" arrangement between the juvenile and his parents (or between their counsel). In other words, neither lawyer challenged the court's statement that the juvenile and his parents had identical interests in the proceeding. The juvenile's court-appointed lawyer stated that he was pleased to have the participation of the parents and the lawyer hired by the father.³

A trial ensued, but after the jury deliberated for less than one day they informed the court that they were hopelessly deadlocked. On May 11, the court declared a mistrial. By order dated June 7, 2001, the court released the juvenile upon his previous bond.⁴

On May 17, 2001, the lawyer hired by the father filed a "Post-Trial Motion for Judgment of Acquittal." On May 24, 2001, the juvenile's court-appointed lawyer also filed a separate "Post-Trial Motion for Judgement of Acquittal." Neither motion alleged that there was any actual or potential conflict of interest between the juvenile and his parent, or that the "co-counsel" arrangement had in any identified way impaired the defense of the juvenile's or the parents' interests. Neither attorney sought to withdraw, requested that the court appoint a guardian ad litem, or suggested that either attorney should be disqualified from acting on behalf of the juvenile. The court denied both post-trial motions.

The case was retried to a twelve-member jury from November 8 to November 10, 2001. The lawyer hired by the father conducted voir dire;⁵ the juvenile's court-appointed lawyer presented opening arguments; and either the lawyer hired by the father or the juvenile's court-appointed lawyer (not both) cross-examined each of the States' witnesses.⁶ The court did not specify which lawyer should examine specific witnesses. The court permitted the lawyer hired by the father to call several witnesses on behalf of the juvenile.

The juvenile chose not to testify. The juvenile's court-appointed lawyer and the lawyer hired by the father both gave closing arguments. After deliberating for approximately six hours, the jury found the charges in Counts I (sexual assault) & II (conspiracy) of the juvenile petition to be true beyond a reasonable doubt, and thereby adjudicated the juvenile as delinquent.

On appeal, the juvenile does not challenge the sufficiency of the evidence supporting the jury's findings. Nor does the juvenile point to any factual element of the charged offenses that would not have been sufficiently proven absent the alleged ineffective assistance of counsel that forms one of the bases for his appeal. We set forth in a footnote a summary statement of facts taken from the evidence at trial, assuming that the jury believed those pieces of evidence consistent with their verdict. Our independent review of the record shows that the evidence supporting these factual statements was substantial.⁷ We mention such other facts as are pertinent in our discussion infra.

By order dated November 29, 2001, the court ordered the juvenile probation department to prepare a predisposition report, and also ordered the juvenile to undergo a sexual offender screening in order to determine his eligibility for probation.

On December 10, 2001, the lawyer hired by the father filed a second motion for a judgment of acquittal. The same day, the juvenile's court-appointed lawyer filed a similar motion, alleging that the juvenile was denied his "constitutional and statutory right to cross-examine witnesses and confront his accusers."⁸ The motion by the lawyer hired by the father alleged that the juvenile's parents were denied the same right. Neither motion mentioned any potential or actual conflicts of interest between the lawyer hired by the father and the juvenile's court-appointed lawyer, nor between the juvenile and his parents.

The first time the issue of any potential conflict of interest was raised by either attorney was at a post-adjudication hearing held on January 3, 2002. During this hearing, the juvenile's court-appointed lawyer claimed that the juvenile's interests had diverged from those of his parents.

When asked by the court to cite specific instances of such conflict, the juvenile's court-appointed lawyer pointed only to one...