State v. Miller, 22571

CourtSupreme Court of West Virginia
Writing for the CourtCLECKLEY; BROTHERTON; MILLER, Retired Justice, and FOX
Citation194 W.Va. 3,459 S.E.2d 114
PartiesSTATE of West Virginia, Plaintiff Below, Appellee, v. Susan MILLER, Defendant Below, Appellant.
Docket NumberNo. 22571,22571
Decision Date18 May 1995

Page 114

459 S.E.2d 114
194 W.Va. 3
STATE of West Virginia, Plaintiff Below, Appellee,
Susan MILLER, Defendant Below, Appellant.
No. 22571.
Supreme Court of Appeals of West Virginia.
Submitted May 3, 1995.
Decided May 18, 1995.

Page 117

[194 W.Va. 6] Syllabus by the Court

1. Collateral estoppel will bar a claim if four conditions are met: (1) The issue previously decided is identical to the one presented in the action in question; (2) there is a final adjudication on the merits of the prior action; (3) the party against whom the doctrine is invoked was a party or in privity with a party to a prior action; and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action.

2. Relitigation of an issue is not precluded when a new determination of the issue is warranted by differences in the quality or extensiveness of the procedures followed in two courts. Where the procedures available in the first court may have been tailored to the prompt, inexpensive determination of small claims, a compelling reason exists not to apply collateral estoppel.

3. For purposes of issue preclusion, issues and procedures are not identical or similar if the second action involves application of a different legal standard or substantially different procedural rules, even though the factual settings of both suits may be the same.

4. "For issue or claim preclusion to attach to quasi-judicial determinations of administrative agencies, at least where there is no statutory authority directing otherwise, the prior decision must be rendered pursuant to the agency's adjudicatory authority and the procedures employed by the agency must be substantially similar to those used in a court. In addition, the identicality of the issues litigated is a key component to the application of administrative res judicata or collateral estoppel." Syllabus Point 2, Vest v. Board of Educ. of the County of Nicholas, 193 W.Va. 222, 455 S.E.2d 781.

5. In the West Virginia courts, claims of ineffective assistance of counsel are to be governed by the two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1) Counsel's performance was deficient under an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different.

6. In reviewing counsel's performance, courts must apply an objective standard and determine whether, in light of all the circumstances, the identified acts or omissions were outside the broad range of professionally competent assistance while at the same time refraining from engaging in hindsight or second-guessing of trial counsel's strategic decisions. Thus, a reviewing court asks whether

Page 118

[194 W.Va. 7] a reasonable lawyer would have acted, under the circumstances, as defense counsel acted in the case at issue.

7. To trigger application of the "plain error" doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings.

8. Under the "plain error" doctrine, "waiver" of error must be distinguished from "forfeiture" of a right. A deviation from a rule of law is error unless there is a waiver. When there has been a knowing and intentional relinquishment or abandonment of a known right, there is no error and the inquiry as to the effect of a deviation from the rule of law need not be determined. By contrast, mere forfeiture of a right--the failure to make timely assertion of the right--does not extinguish the error. In such a circumstance, it is necessary to continue the inquiry and to determine whether the error is "plain." To be "plain," the error must be "clear" or "obvious."

9. Assuming that an error is "plain," the inquiry must proceed to its last step and a determination made as to whether it affects the substantial rights of the defendant. To affect substantial rights means the error was prejudicial. It must have affected the outcome of the proceedings in the circuit court, and the defendant rather than the prosecutor bears the burden of persuasion with respect to prejudice.

Timothy L. Sweeney, Pros. Atty., St. Marys, for appellee.

John M. Butler, St. Marys, for appellant.

CLECKLEY, Justice:

The defendant, Susan Miller, appeals her September 29, 1993, conviction by jury of the offense of battery. By order dated October 18, 1993, the Circuit Court of Pleasants County entered the guilty verdict and ordered the defendant to pay costs. 1 The defendant was not sentenced to serve any time in jail for the offense. 2 The defendant asserts on appeal to this Court that the trial court erred by refusing to grant her motion to dismiss the battery charge on the grounds of res judicata and/or collateral estoppel. The defendant also claims ineffective assistance of counsel and plain error by the trial court's failure to give a self-defense instruction.



The defendant was employed as a licensed practical nurse at the Colin Anderson Center, which is a state-operated facility for the mentally retarded located near St. Marys, West Virginia. On February 10, 1992, the defendant was working at the Center when a staff psychologist, Christopher Northrup, observed her slapping a male patient's head. As a result of the incident, the defendant's employment was terminated and a battery charge was brought against her. The defendant denies she slapped the patient and contends Mr. Northrup misperceived what he saw.

At the time of the incident, the male patient was twenty-four years old. According to his individual habilitation plan, he is severely mentally retarded with an I.Q. of 22 and an estimated mental age of three years and nine months. In addition, the male patient has several maladaptive behaviors including noncompliance and aggression. He typically speaks only in one- or two-word utterances.

The defendant testified at trial that she was at the doorway of a living area when she witnessed the male patient begin to pick on a female patient who was known to have an "explosive personality" and who was sleeping on a couch. The defendant stated the male patient went over to the female patient, picked up her arm, and appeared as if he was going to bite it. The defendant said she

Page 119

[194 W.Va. 8] intervened and took both arms of the male patient, pulled him back across the room to another couch, where he previously was sitting, and told him not to bother the female patient. She then "shoved" on his arms and chest to get him to sit down. He did sit, but then began to get up again so the defendant said she "shoved" him back down to a sitting position. While she was shoving him down the second time, Mr. Northrup came into the room, saw what was transpiring, called the defendant's name, and went over to the male patient. The defendant then left the room to finish dispensing medication to the other patients.

Mr. Northrup testified that when he entered the room he observed the defendant standing near the end of a coffee table. The coffee table was askew and was wedged against a couch. Mr. Northrup described the angle of the coffee table and the couch as creating a funnel shape with the defendant standing near the open end of the funnel "in a way that would prevent somebody from getting through" the area. Mr. Northrup stated he saw the defendant holding back her left hand which had a lit cigarette in it. It seems from the transcript that Mr. Northrup demonstrated that the defendant's right hand was outstretched in front of her. 3 At that time, the male patient was "half sitting ... not touching but kind of cowered over" a couch.

Mr. Northrup said he heard the defendant tell the male patient " 'you're not going to bite her,' and she shouted at him, and then from about a foot and a half or so away, brought her hand against the side of his head in a slapping motion, at which point he went backward on the couch[.]" Mr. Northrup claimed he "shouted in horror" and called the defendant's name "in a very loud voice," at which time the defendant turned around and saw him. Mr. Northrup described the defendant as being "obviously very emotionally agitated at the moment." In addition, he alleged she told him something to the effect "she was very glad that she was going to have time off coming up because she really needed it[.]" 4 Mr. Northrup said he went over to the male patient and asked him if he had been hit. The male patient responded by placing his hand on his head and saying yes. Both the defendant and Mr. Northrup stated they did not discuss the incident before the defendant left the room.

The day the incident occurred, the defendant was suspended pending an investigation. The next day she met with an administrator and an assistant administrator of the facility and her employment was terminated. During the trial, the prosecuting attorney called several witnesses who testified it was not within the facilities procedures and it was inappropriate to slap a disruptive patient.

After her employment was terminated, the defendant filed a grievance with the West Virginia Education and State Employees Grievance Board (Grievance Board). After a Level IV administrative hearing, the administrative law judge (ALJ) issued a decision, dated June 11, 1993, in favor of the defendant/grievant. The decision stated, inter alia, that the employer "failed to prove, by a preponderance of evidence that [the] Grievant engaged in patient abuse on February 10, 1992, or at any other time." The decision also ordered the employer to reinstate the grievant to her previous employment with full back pay. 5 The employer appealed this decision, and it was affirmed by the Circuit Court of Pleasants County by order entered September 1, 1993.



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