State v. Layton

• Decision Date: 23 July 1993
• Docket Number: No. 21173,21173
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Timothy LAYTON, Defendant Below, Appellant.

Page 740

432 S.E.2d 740

189 W.Va. 470

STATE of West Virginia, Plaintiff Below, Appellee, v. Timothy LAYTON, Defendant Below, Appellant.

No. 21173.

Supreme Court of Appeals of

West Virginia.

Submitted Jan. 26, 1993.

Decided April 27, 1993.

Dissenting Opinion of Justice Miller July 23, 1993.

Syllabus by the Court

1. "The right of self-representation is a correlative of the right to assistance of counsel guaranteed by article III, section 14 of the West Virginia Constitution." Syllabus point 7, State v. Sheppard, 172 W.Va. 656, 310 S.E.2d 173 (1983).

2. "A defendant in a criminal proceeding who is mentally competent and sui juris, has a constitutional right to appear and defend in person without the assistance of counsel, provided that (1) he voices his desire to represent himself in a timely and unequivocal manner; (2) he elects to do so with full knowledge and understanding of his rights and of the risks involved in self-representation; and (3) he exercises the right in a manner which does not disrupt or create undue delay at trial." Syllabus point 8, State v. Sheppard, 172 W.Va. 656, 310 S.E.2d 173 (1983).

3. Where a defendant ostensibly represents himself in a criminal trial, but where standby counsel actually is consistently available and actually plays the dominant role in the defense, it is not reversible error for a trial court to fail to engage in the full litany outlined in State v. Sheppard, 172 W.Va. 656, 310 S.E.2d 173 (1983).

4. When a criminal defendant, who has elected to take the stand and testify in his own behalf, indicates to his attorney, or to the court, that he is contemplating committing perjury during his testimony, it is not error, or a denial of the criminal defendant's constitutional right to the assistance of counsel, for the trial court to direct the defendant's attorney to refrain from participating in the examination of the defendant on the stand and to rule that if the defendant wishes to testify, he must testify in a narrative fashion.

5. "Where a defendant in a noncapital case is free on bail and is initially present at trial, and thereafter voluntarily absents himself after the trial has commenced, and where he has been informed of his obligation to remain during all stages of the trial, then such voluntary absence will be deemed a waiver of his right to be present." Syllabus point 3, State v. Tiller, 168 W.Va. 522, 285 S.E.2d 371 (1981).

6. "Except for willful, intentional fraud the law of this State does not permit the court to go behind an indictment to inquire into the evidence considered by the grand jury, either to determine its legality or its sufficiency." Syllabus, Barker v. Fox, 160 W.Va. 749, 238 S.E.2d 235 (1977).

7. "Sentences imposed by the trial court, if within statutory limits and if not based on some unpermissible factor, are not subject to appellate review." Syllabus point 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982).

Rodney L. Bean, Asst. Atty. Gen., Charleston, for appellee.

Frank W. Helvey, Jr., West Virginia Public Defender Services, Charleston, for appellant.

BROTHERTON, Justice:

In this case the defendant, Timothy Layton, who was ultimately convicted of aggravated robbery and sentenced to serve forty-seven years in the State penitentiary, moved that his court-appointed counsel be permitted to withdraw and that he be allowed to conduct his own defense during his jury trial. The trial court, the Circuit Court of Jefferson County, granted the defendant's motion that he be allowed to defend himself. The court, however, denied his motion that the court-appointed attorney be allowed to withdraw. Instead, the court directed that the attorney remain in the case as standby counsel.

On appeal, the defendant claims that the trial court committed reversible error in allowing him to proceed pro se in his defense. He also claims that he was denied effective assistance of counsel and the right to testify meaningfully in his own behalf. Integral to, and critical to an understanding of these claims, is the fact that the trial court ruled that standby counsel was not to assist the defendant in testifying if he elected to take the stand and testify in his own defense. The court made this ruling when it appeared that the defendant was disposed to commit perjury on the stand and when standby counsel sought instructions on what he should do in view of the pending perjury.

The defendant, who walked away from a bench conference, also claims that he was denied his right to be present at a critical stage of his trial, and he argues that the indictment against him was fatally defective. Lastly, he claims that the sentencing process employed by the trial court was violative of due process of law.

This Court has reviewed the record, as well as the questions presented, and can find no reversible error. The judgment of the Circuit Court of Jefferson County is, therefore, affirmed.

The evidence in this case shows that on December 23, 1989, two armed, white males entered a dairy store in Charles Town, West Virginia. One of the individuals stood by the store door with a shotgun while the other, identified as the defendant, brandished a pistol at the store's two employees and demanded money from them. The employees put money in a paper bag and gave it to the robber with a pistol. The employees were then forced to get on the floor, and the robbers left.

In fleeing from the store, the driver of the getaway pickup truck, driving without lights, swerved to miss another vehicle. As he, or she, ¹ did so, the getaway truck ran into a ditch, hit a telephone pole and fence, and then returned to the road with a flat tire. Two men in the vehicle which the getaway truck narrowly missed followed the wobbling truck on State Route 9 in an attempt to obtain its license number. They retreated, however, when they saw a gun appear from the truck's right side window.

Another individual was in his car at a stop sign when he saw the getaway truck run off the road. He, too, followed for a short distance, but stopped when an individual in the truck fired two shots at him.

The State Police were notified of the robbery and were provided with a general description of the robbers. Two police officers received a radio report of the robbery and learned that the getaway vehicle had had a flat tire. The police officers, after proceeding to the dairy store, noticed intermittent gouge marks in the pavement of the road which appeared to have been made by a vehicle with a flat tire. They followed these marks to the top of a mountain to a point where the road turned into a trailer park. In the trailer park, they saw a truck which matched the general description of the getaway vehicle parked behind a cement block building. They also could see that the gouge marks led to the truck.

Shortly thereafter, police from a number of jurisdictions were summoned to the scene and took up positions around the trailer court. After they had taken up their positions, a yellow Mustang with three occupants approached from inside the trailer park. A police officer motioned for the driver to stop, and the driver, who was Terri Miller, and two passengers, the defendant and another male, Michael Tarmon, raised their hands above their heads. One of the passengers had a partially uncased shotgun. A search of the vehicle also revealed a pistol and ammunition, and a search of the defendant produced $220.00 in small bills. The defendant and Michael Tarmon, who matched the descriptions of the robbers, were then arrested and charged with the robbery of the dairy store.

On January 16, 1990, a Jefferson County grand jury indicted the defendant for aggravated robbery. Following the return of the indictment, a rather tortured and prolonged series of events occurred, including multiple changes of counsel and an abortive trial which resulted in a mistrial, before the trial which underlies the present appeal.

After the arrest of the defendant, the circuit court, on December 27, 1989, appointed F. Samuel Byrer to represent him. As the proceedings advanced, the defendant retained another attorney, Steven M. Askin, and at the defendant's request, the circuit court, by order dated February 13, 1990, relieved Mr. Byrer. Although Mr. Askin vigorously undertook to defend the defendant, the defendant failed to pay a promised retainer fee, and on June 4, 1990, Mr. Askin moved to withdraw as counsel. On June 6, 1990, the circuit court granted Mr. Askin's request and appointed Matthew E. Bieniek to represent the defendant.

Less than a month later, on July 13, 1990, Mr. Bieniek moved to withdraw after the defendant threatened to file an ethics complaint against him. The State resisted Mr. Bieniek's motion to withdraw on the ground that the defendant had intentionally created an ethics conflict as a delay tactic. However, during the consideration of the motion it came to the court's attention that Kevin Mills, who was represented by Mr. Bieniek, had represented Terri Miller, the female driver of the yellow Mustang. Upon learning this, the court granted Mr. Bieniek's motion to withdraw and appointed David Sanders to represent the defendant.

Mr. Sanders, when he realized that he had conversed with Terri Miller concerning the robbery, moved to withdraw. The circuit court then re-appointed Mr. Byrer to represent the defendant.

While Mr. Sanders was representing the defendant, a motion was made to disqualify the Jefferson County Prosecuting Attorney and for appointment of a special prosecutor in the matter. The ground for doing this was that an attorney, Lawrence Crofford, who had represented co-defendant, Michael Tarmon, had joined the Jefferson County Prosecutor's office.

As development of this question proceeded, Mr. Byrer realized that he would likely be called as a witness on the motion for a special prosecutor. He, therefore, moved to withdraw as attorney for the defendant. The circuit court granted Mr. Byrer's...