State v. Reedy, s. 17019 and 17020

• Citation: 352 S.E.2d 158,177 W.Va. 406
• Decision Date: 19 December 1986
• Docket Number: Nos. 17019 and 17020,s. 17019 and 17020
• Parties: STATE of West Virginia v. Marvin James REEDY. (Two Cases)
• Court: Supreme Court of West Virginia

Page 158

352 S.E.2d 158

177 W.Va. 406

STATE of West Virginia v. Marvin James REEDY. (Two Cases)

Nos. 17019 and 17020.

Supreme Court of Appeals of

West Virginia.

Decided Dec. 19, 1986.

Syllabus by the Court

1. "The right of one accused of a crime to the assistance of counsel is a fundamental right, essential to a fair trial...." Syl. Pt. 1, State ex rel. May v. Boles, 149 W.Va. 155, 139 S.E.2d 177 (1964).

2. "A trial court lacks jurisdiction to enter a valid judgment of conviction against one accused who was denied effective assistance of counsel and a judgment so entered is void." Syl. Pt. 25, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).

3. The existence of a family relationship between a defense counsel and the crime victim must be disclosed to the accused at the earliest opportunity, so that the accused can make an intelligent decision whether to waive his right to assistance of counsel free from potential conflict, or to demand or retain different counsel.

4. "The constitutional right against self-incrimination does not extend to prevent the physical appearance of a person at trial." Syl. Pt. 2, State v. Harman, 165 W.Va. 494, 270 S.E.2d 146 (1980).

5. "Several basic rules exist as to cross-examination of a witness. The first is that the scope of cross-examination is coextensive with, and limited by, the material evidence given on direct examination. The second is that a witness may also be cross-examined about matters affecting his credibility. The term 'credibility' includes the interest and bias of the witness, inconsistent statements made by the witness and to a certain extent the witness' character. The third rule is that the trial judge has discretion as to the extent of cross-examination." Syl. Pt. 4, State v. Richey, --- W.Va. ----, 298 S.E.2d 879 (1982).

6. "In ruling upon the issue of disclosure of the identity of an informant, the trial court shall balance the need of the State for nondisclosure in the promotion of law enforcement with the consequences of nondisclosure upon the defendant's ability to receive a fair trial. The resolution of the disclosure issue shall rest within the sound discretion of the trial court, and only an abuse of discretion will result in reversal. W.Va.R.Crim.P. 16(d)(1)." Syl. Pt. 3, State v. Tamez, 169 W.Va. 382, 290 S.E.2d 14 (1982).

7. "[A] general indictment as a principal in the first degree shall be sufficient to sustain a conviction as an aider and abettor...." Syl. Pt. 1, State v. Petry, --- W.Va. ----, 273 S.E.2d 346 (1980).

8. "Where there is no evidentiary dispute or insufficiency on the elements of the greater offense which are different from the elements of the lesser included offense, then the defendant is not entitled to a lesser included offense instruction." Syl. Pt. 2, State v. Neider, --- W.Va. ----, 295 S.E.2d 902 (1982).

9. "It is not reversible error to refuse to give instructions offered by a party that are adequately covered by other instructions given by the court." Syl. Pt. 20, State v. Hamric, 151 W.Va. 1, 151 S.E.2d 252 (1966).

10. "Upon motion to direct a verdict for the defendant, the evidence is to be viewed in light most favorable to prosecution. It is not necessary in appraising its sufficiency that the trial court or reviewing court be convinced beyond a reasonable doubt of the guilt of the defendant; the question is whether there is substantial evidence upon which a jury might justifiably find the defendant guilty beyond a reasonable doubt." Syl. Pt. 1, State v. Fischer, 158 W.Va. 72, 211 S.E.2d 666 (1974).

11. "A criminal defendant has the right under the Due Process Clause of our State and Federal Constitutions not to be forced to trial in identifiable prison attire." Syl. Pt. 2, State ex rel. McMannis v. Mohn, 163 W.Va. 129, 254 S.E.2d 805 (1979), cert. denied, 464 U.S. 831, 104 S.Ct. 110, 78 L.Ed.2d 112 (1983).

12. "Although subject to the direction and supervision of the circuit judges to whom they are assigned, court reporters, as employees of the Supreme Court of Appeals, whose primary functions consist of recording, transcribing, and certifying records of proceedings for purposes of appellate review, are subject to the ultimate regulation, control, and discipline of the Supreme Court of Appeals." Syl. Pt. 3, Mayle v. Ferguson, --- W.Va. ----, 327 S.E.2d 409 (1985).

Robert Reed Sowa, Sutton, Wayne King, Clay, for appellant.

Mary Rich Maloy, Asst. Atty. Gen., Charleston, Richard Facemire, Prosecuting Atty., Clay, for appellee.

McGRAW, Justice:

This case involves two appeals by Marvin James Reedy from his conviction for daytime burglary under West Virginia Code § 61-3-11 (1984 Replacement Vol.) and his subsequent conviction and life sentence as a recidivist under West Virginia Code § 61-11-18 (1984 Replacement Vol.). The appellant makes numerous assignments of error regarding both the daytime burglary and recidivist trials. He also contends that he was denied effective assistance of counsel in the burglary trial because his court appointed trial counsel was a relative and friend of the burglary victim, and because this relationship was not revealed to the appellant prior to the burglary trial. ¹

We agree with the appellant that the potential conflict of interest in the family relationship, together with the lack of timely disclosure to the appellant, constituted a violation of the appellant's right to effective assistance of counsel. Therefore, we reverse the appellant's convictions ² and remand this matter to the Circuit Court of Clay County for a new trial on the daytime burglary indictment.

I.

"The right of one accused of a crime to the assistance of counsel is a fundamental right, essential to a fair trial...." Syl. Pt. 1, State ex rel. May v. Boles, 149 W.Va. 155, 139 S.E.2d 177 (1964). We have held that, under both the West Virginia Constitution ³ and the United States Constitution, ⁴ the right of a criminal defendant to assistance of counsel is a right to effective assistance of counsel. State ex rel. Favors v. Tucker, 143 W.Va. 130, 140, 100 S.E.2d 411, 416 (1957), cert. denied, 357 U.S. 908, 78 S.Ct. 1153, 2 L.Ed.2d 1158 (1958); see also State ex rel. Levitt v. Bordenkircher, --- W.Va. ----, 342 S.E.2d 127, 133 (1986). A trial court is without jurisdiction to enter a valid judgment of conviction against a defendant in the absence of effective assistance of counsel. Syl. Pt. 25, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).

Because the effect of a family relationship on a defendant's right to effective assistance of counsel is an issue of first impression in this Court, we find it beneficial to first review our standards in other contexts where the effectiveness of counsel has been questioned.

We are often confronted with claims of ineffectiveness of counsel based on negligence in the preparation for or the actual conduct of a trial. In those cases, the burden is on the defendant to prove the ineffectiveness of counsel and resulting prejudice by a preponderance of the evidence. Syl. Pt. 3, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445. In determining whether the defendant was prejudiced by his counsel's performance, we presume that trial counsel will seek the best result for his client, and we measure his performance by a reasonableness standard. ⁵

Where ineffectiveness of counsel is asserted by a defendant because of a conflict of interest, different standards are applied in ascertaining counsel's effectiveness. In cases involving joint representation by counsel of two or more defendants, our rules for determining the existence of conflict and prejudice to the appellant are set forth in State ex rel. Postelwaite v. Bechtold, 158 W.Va. 479, 212 S.E.2d 69 (1975), cert. denied, 424 U.S. 909, 96 S.Ct. 1103, 47 L.Ed.2d 312 (1976). In Syllabus Point 3 of Postelwaite, we ruled that joint representation is not per se violative of a defendant's right to receive effective assistance, and that actual conflict must be shown by the defendant. Once a conflict is found, however, prejudice and ineffectiveness of counsel are presumed. Id. at 491, 212 S.E.2d at 76. ⁶ If conflict is not shown, the Court will apply a reasonableness standard to determine whether the counsel's performance effectively assisted each of his joint clients. Id. In a case where conflict was alleged because of a friendship between the court appointed counsel and the prosecuting attorney, we found no showing was made that the friendship affected the court appointed counsel's competence or presented any likelihood of prejudice to the appellant's defense, and held that substitution of counsel was not warranted. State v. Sheppard, --- W.Va. ----, 310 S.E.2d 173, 185 (1983).

A family relationship between defense counsel and the crime victim could lessen the likelihood that the defendant will receive effective assistance of counsel. Standard 4-3.5(a) of the American Bar Association Standards for Criminal Justice provides that "[a]t the earliest feasible opportunity defense counsel should disclose to the defendant any interest in or connection with the case or any other matter that might be relevant to the defendant's selection of a lawyer to represent him or her." The significant inquiry in the instant case is not whether actual conflict occurred because of the family relationship, but whether the potential for conflict was revealed to the appellant in a timely manner.

Disclosure of a potential conflict is mandated in order to give the defendant an opportunity to decide whether to retain other counsel or demand different court appointed counsel. An indigent criminal defendant may demand different counsel for good cause, such as the existence of a conflict of interest, Syl. Pt. 5, Watson v. Black, 161 W.Va. 46, 239 S.E.2d 664 (1977), or, if the potential conflict is disclosed in a timely fashion, he may elect to waive his rights and keep the court appointed counsel, see, e.g., Holloway v. Arkansas, 435 U.S. 475,...