State v. Sandler, 16219

Citation336 S.E.2d 535,175 W.Va. 572
Decision Date30 October 1985
Docket NumberNo. 16219,16219
CourtSupreme Court of West Virginia
PartiesSTATE of West Virginia v. Bernard SANDLER.

Syllabus by the Court

1. "Good cause for the relief of a court-appointed counsel consists of: (1) a conflict of interest; (2) a complete breakdown in communication with court-appointed counsel after the exhaustion of good faith efforts to work with counsel; or, (3) an irreconcilable conflict which might lead to an unjust verdict." Syl. pt. 5, Watson v. Black, 161 W.Va. 46, 239 S.E.2d 664 (1977).

2. "The determination of whether an accused has knowingly and intelligently elected to proceed without the assistance of counsel depends on the facts and circumstances of the case. The test in such cases is not the wisdom of the accused's decision to represent himself or its effect upon the expeditious administration of justice, but, rather, whether the defendant is aware of the dangers of self-representation and clearly intends to waive the rights he relinquishes by electing to proceed pro se." State v. Sheppard, W.Va., 310 S.E.2d 173, 188 (1983) (citations omitted).

3. Due process does not require that law enforcement agencies preserve breath samples or the ampoule used in testing the sample in order to introduce breath-analysis tests at trial.

4. "Whether a party shall be permitted to introduce further evidence after the case has been closed and submitted to the jury, and before the jury returns a verdict, is a matter of sound discretion of the trial court, and its exercise of this discretionary power will not be cause for reversal except in case of the abuse of the discretion, and that it plainly appears that the person making the request has been injured by the refusal." Syl. pt. 4, State v. Littleton, 77 W.Va. 804, 88 S.E. 458 (1916).

H. Wyatt Hanna, Asst. Atty. Gen., Doren Burrell, Charleston, for appellant.

Steven M. Askin, David P. Greenburg, Askin, Pill, Scales & Burke, Martinsburg, for appellee.

BROTHERTON, Justice:

The appellant, Bernard Sandler, was convicted of driving under the influence of alcohol upon a public highway in violation of W.Va.Code § 17C-5-2 (1976) by the Circuit Court of Jefferson County, West Virginia. He now appeals that conviction, alleging multiple errors. We find merit in these allegations, and reverse the conviction, remanding for a new trial.

Mr. Sandler was arrested for driving under the influence of alcohol on July 1, 1981. He submitted to a breath test, which showed a .14 blood alcohol level. In accordance with routine procedure, neither a sample of the appellant's breath nor the ampoule used in the breathalyzer test was preserved.

The court appointed counsel to represent Mr. Sandler and he was fully and adequately represented in two trials in magistrate court, the first resulting in a hung jury, and the second in a conviction. He appealed this conviction to the Circuit Court of Jefferson County. On the day of his trial, the appellant indicated to the trial judge that he was dissatisfied with his counsel. In a conference with the court ten minutes before trial, the petitioner was given a choice by the court to either proceed with the counsel he had or defend pro se. The appellant elected to proceed pro se and his attorney was appointed to stand beside him as an advisor. Mr. Sandler's ignorance of the rules of procedure and evidence caused a difficult trial with numerous objections and interruptions.

After the jurors had retired, they sent out a note requesting more evidence. The trial court allowed the prosecution to reopen to respond to the jury's request. The reopening resulted in a witness being recalled to the stand and examined by the court as well as by the prosecutor. The jury again retired, and returned a verdict of guilty, from which the appellant now appeals.

I.

The appellant asserts as his first point of error that the court should have continued the trial to allow him to obtain new counsel. In order to have court-appointed counsel dismissed, an accused must first show good cause. This Court has identified only three instances of good cause: "(1) a conflict of interest; (2) a complete breakdown in communication with court-appointed counsel after exhaustion of good faith efforts to work with counsel; or, (3) an irreconcilable conflict which might lead to an unjust verdict." Syl. pt. 5, Watson v. Black, 161 W.Va. 46, 239 S.E.2d 664 (1977).

In this case, Mr. Sandler was hesitant about his counsel because his attorney had advised him to accept the prosecutor's offer of a plea bargain in the matter. Negotiating a favorable plea bargain is an integral part of a defense attorney's job and certainly does not fall within the parameters of good cause for dismissal as outlined above. Nor does the record reflect any other conflict or breakdown in communication that would justify removal of the appointed attorney. Therefore, the trial court was correct in refusing the appellant's motion for new counsel.

The appellant presents a much stronger argument, however, that the trial judge failed to adequately warn him of the dangers of proceeding pro se. In State v. Sheppard, 310 S.E.2d 173 (W.Va.1983), this Court set out guidelines for trial courts in dealing with an accused who wishes to defend himself. Briefly, those guidelines direct the trial judge:

1. To ascertain if the defendant is cognizant of and willing to relinquish his right to assistance of counsel.

2. To insure that the accused is aware of the nature, complexity and seriousness of the charges against him and of the possible penalties that might be imposed.

3. To warn the accused of the danger and disadvantages of self-representation. (e.g., that self-representation is almost always detrimental and that he will be subject to all the technical rules of evidence and procedure, the same as if he had been represented by counsel.)

4. To advise the defendant that he waives his right to refuse to testify by going outside the scope of argument and testifying directly to the jury.

5. To make some inquiry into the defendant's intelligence and capacity to appreciate the consequences of his decision.

310 S.E.2d at 188-89.

These guidelines are not mandatory. The omission of one or more of the warnings in a particular case would not necessarily require reversal, so long as it is apparent from the record that the defendant made a truly intelligent and knowledgeable waiver of his right to counsel. "The determination of whether an accused has knowingly and intelligently elected to proceed without the assistance of counsel depends on the facts and circumstances of the case. The test in such cases is not the wisdom of the accused's decision to represent himself or its effect upon the expeditious administration of justice, but, rather, whether the defendant is aware of the dangers of self-representation and clearly intends to waive the rights he relinquishes by electing to proceed pro se." State v. Sheppard, 310 S.E.2d 173, 188 (W.Va.1983) (citations omitted). Unfortunately, such a showing was not made on the record in this case.

Little effort was made by the trial court to warn the defendant of the danger in proceeding without an attorney. Instead, the trial court warned only that the defendant could not make any personal appeals to the jury. We cannot say from this record that the defendant was truly aware of the perils of self-representation. 1 Somewhat more is required by State v. Sheppard. 2

II.

The appellant claims that because the police did not preserve the ampoule in which the breath sample was taken or the breath sample itself that his due process rights were violated. The United States Supreme Court, in California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), held that the due process clause of the Fourteenth Amendment does not require that law enforcement agencies preserve breath samples in order to introduce breath-analysis tests at trial. 104 S.Ct. at 2535, 81 L.Ed.2d at 423. In reaching this decision the Court reasoned:

In all but a tiny fraction of cases, preserved breath samples would simply confirm the Intoxilyzer's determination that the defendant had a high level of blood-alcohol concentration at the time of the test. Once the Intoxilyzer indicated that respondents were legally drunk, breath samples were much more likely to provide inculpatory rather than exculpatory evidence.

Even if one were to assume that the Intoxilyzer results in this case were inaccurate and that breath samples might therefore have been exculpatory, it does not follow that the respondents were without alternative means of demonstrating their innocence.

104 S.Ct. at 2534-35, 81 L.Ed.2d at 422-23. We agree with the Supreme Court's reasoning and see no reason to adopt stricter standards in West Virginia. 3

III.

Responding to a request by the jury, the court allowed the prosecution to reopen, after the jury had retired, to recall a witness. 4 The trial court then conducted the examination of the witness. The appellant argues that the trial judge abused his discretion by allowing the prosecution to reopen at such a late stage in the trial. Generally it is true that the trial court may in its discretion allow additional evidence even after the jury has retired:

Whether a party shall be permitted to introduce further evidence after the case has been closed and submitted to the jury, and before the jury returns a verdict, is a matter of sound discretion of the trial court, and its exercise of this discretionary power will not be cause for reversal except in case of the abuse of the discretion, and that it plainly appears that the person making the request has been injured by the refusal.

Syl. pt. 4, State v. Littleton, 77 W.Va. 804, 88 S.E. 458 (1916). 5 Nevertheless, such a practice is not to be encouraged or lightly pursued. See People v. Ferrone, 204 N.Y. 551, 553, 98 N.E. 8, 8 (1912). The trial court's discretion in reopening a case after the jury has...

To continue reading

Request your trial
24 cases
  • State v. Kilmer
    • United States
    • Supreme Court of West Virginia
    • 10 Diciembre 1993
    ...inherent conflict of interest demonstrated by the Appellant's attorney, this Court has previously recognized in State v. Sandler, 175 W.Va. 572, 573, 336 S.E.2d 535, 536 (1985) that "[n]egotiating a favorable plea bargain is an integral part of a defense attorney's job." The defense attorne......
  • State v. Surber
    • United States
    • Supreme Court of West Virginia
    • 24 Febrero 2012
    ...by electing to proceed pro se.’ State v. Sheppard, , 310 S.E.2d 173, 188 (1983) (citations omitted).” Syllabus Point 2, State v. Sandler, 175 W.Va. 572, 336 S.E.2d 535 (1985). 7. “When an accused chooses to proceed without the assistance of counsel, the preferred procedure is for the trial ......
  • State v. Hughes
    • United States
    • Supreme Court of West Virginia
    • 11 Febrero 2010
    ...its exercise of this discretionary power will not be cause for reversal except in case of the abuse of the discretion." State v. Sandler, 175 W.Va. 572, 575, 336 S.E.2d 535, 538 (1985). We have held that "the proper method of responding to a written jury inquiry during the deliberations per......
  • State v. Massey
    • United States
    • Supreme Court of West Virginia
    • 22 Julio 1987
    ...assume the role of an advocate and if by his questioning he intimates an opinion, a reversal may be warranted. E.g., State v. Sandler, 175 W.Va. 572, 336 S.E.2d 535 (1985); State v. Starcher, 168 W.Va. 144, 282 S.E.2d 877 (1981); State v. McGee, 160 W.Va. 1, 230 S.E.2d 832 (1976), overruled......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT