State v. Warden, W. Va. Penitentiary

• Decision Date: 16 December 1999
• Docket Number: No. 25952.,25952.
• Citation: 207 W.Va. 11,528 S.E.2d 207
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. Roy David VERNATTER, Petitioner Below, Appellant, v. WARDEN, WEST VIRGINIA PENITENTIARY, Respondent Below, Appellee.

528 S.E.2d 207

207 W.Va. 11

STATE of West Virginia ex rel. Roy David VERNATTER, Petitioner Below, Appellant, v. WARDEN, WEST VIRGINIA PENITENTIARY, Respondent Below, Appellee.

No. 25952.

Supreme Court of Appeals of West Virginia.

Submitted November 2, 1999.

Decided December 16, 1999.

D.C. Offutt, Jr., Esq., Dianne D. Einstein, Esq., Huntington, West Virginia, Attorney for Appellant.

Darrell V. McGraw, Jr., Attorney General, Barbara Allen, Managing Deputy Attorney General, Charleston, West Virginia, Attorney for Appellee. McGRAW, Justice:

Appellant Roy David Vernatter appeals the circuit court's refusal to grant him habeas corpus relief on his claim of ineffective assistance of counsel, where his primary allegation was that trial counsel were ineffective in failing to have arranged for him to undergo a psychiatric examination prior to his pleading guilty to first-degree murder. We affirm the judgment of the lower court, concluding that there is sufficient evidence in the record supporting the court's finding that counsel undertook reasonable investigation of possible mental defenses prior to counseling Vernatter to plead guilty to the charged offense.

I. FACTUAL AND PROCEDURAL BACKGROUND

Vernatter was charged with murder in connection with the shooting death of his mother's boyfriend, Lomie Vance. Evidence adduced at the preliminary hearing indicated that on March 16, 1992, Vernatter and Vance had a physical altercation inside the home of Vernatter's mother. Both men were intoxicated. Vance went outside following the fight, and Vernatter, according to the testimony of his sister, went upstairs and procured a shotgun, expressing his intent to kill Vance. Vernatter subsequently went outside and, after Vance asked him to put the gun down, shot the victim in the face. Vance was killed instantly.

Shortly after Vernatter's arrest on March 22, 1992, Timothy Koontz and John Sims were appointed as defense counsel. Counsel later negotiated an agreement requiring Vernatter to plead guilty to first-degree murder, in exchange for a sentence permitting him to become eligible for parole after ten years. The plea agreement was accepted by the circuit court on May 3, 1993.

Vernatter subsequently initiated the present action for habeas relief on May 16, 1994, alleging that counsel were ineffective in, among other things, failing to obtain a psychiatric evaluation in light of what he alleged was a long history of mental disability.

According to evidence presented at the evidentiary hearing, counsel obtained Vernatter's mental health records from Huntington State Hospital shortly after his arrest. These records indicate that Vernatter was admitted to that facility at least three times between 1987 to 1991 for alcohol-related problems. They also relate Vernatter's self-chronicled twenty-year history of alcohol and substance abuse, as well as a similarly lengthy record of antisocial conduct involving, among other things, automobile theft and breaking and entering offenses. Significantly, during a May 1991 admission to Huntington State Hospital, the examining psychologist reported that Vernatter had "no symptoms ... to suggest psychosis or significant affective disorder," and that "no neuropsychopathology is suspected at this time." Instead, he was diagnosed as suffering from alcoholism and antisocial personality disorder.

Counsel also obtained records from Logan-Mingo Area Mental Health, Inc. ("Logan-Mingo"), to which Vernatter was referred for treatment following various stays at Huntington State Hospital. These records similarly relate his long history of alcoholism, as well as a proclivity toward violence when drinking. Vernatter's lawyers also had access to records pertaining to a January 1991 psychological assessment conducted following his commitment to Weston Hospital. The assessment was apparently ordered in response to an incident that occurred on January 5, 1991, where Vernatter allegedly placed a loaded gun to his mother's face and threatened to kill her, and where he struck his girlfriend and a three-year-old child. He was reported as stating that he had no recall of such events, in that he had suffered a "blackout." The Weston Hospital records contain an observation stating that Vernatter "has good awareness of alcohol problem," and they relate his statement that "he has quit a million times but is going to get help this time." The report diagnosed Vernatter as suffering from alcohol dependence, and observed: "Progress notes relate no signs of psychosis and none are observed at this time."

Vernatter's trial was originally scheduled for August 1992; however, trial counsel moved for a continuance to permit a psychiatric evaluation for purposes of determining the defendant's mental responsibility at the time of the charged offense, as well as to determine his competency to stand trial. The circuit court subsequently entered an order on August 26, 1992, continuing the trial and ordering that Vernatter undergo a psychiatric evaluation. Defense counsel later presented a second motion for a psychiatric evaluation in December 1992, which was also granted by the circuit court.¹ It is undisputed that Vernatter never underwent the ordered evaluation prior to entry of his guilty plea in May 1993.²

At the evidentiary hearing, both Koontz and Sims testified that their primary purpose in seeking a court order for a mental examination of Vernatter was to ensure that they would be reimbursed for expenses related to the evaluation. Koontz noted that while he always requested such authorization in homicide cases, it was intended merely to give him the "option" of later having an evaluation performed where necessary. Both lawyers explained that they divided their work, with Koontz taking charge of reviewing Vernatter's mental health records and arranging for an examination.

Koontz further testified that after reviewing the records in question, he provided copies to Dr. Steven Corder, a Charleston psychiatrist, and subsequently had discussions with Dr. Corder in April 1993 regarding the possibility of presenting a mental defense at trial. Koontz stated that Dr. Corder "was not very helpful in what he thought the psychiatric examination would reveal." He went on to explain that he was hesitant to pursue the psychiatric evaluation because he did not think that the prosecution was in possession of Vernatter's mental health records and that, from a strategic standpoint, it would be prudent not to draw attention to these materials because they could potentially be used for impeachment purposes.

Both Koontz and Sims also testified that while following his arrest Vernatter was telling his mental health counselor at Logan-Mingo that he had no recollection of shooting Lomie Vance, he was nevertheless telling his lawyers that he had total recall of the events in question. (Vernatter denied having disclosed any such recollection of the shooting.) As Koontz stated at one point:

I felt that he was embellishing and that he was exaggerating and that he had concocted this story, and that it was a roadmap for disaster at trial.... I recall very well telling him that I didn't feel he would benefit from psychological evidence at trial, and that this information [the mental health records] could have been subpoenaed by the State and used against him.

With respect to his advice regarding the advisability of pursuing a mental defense, Koontz testified that he discussed the medical records with Vernatter and told him that they "hurt him more than they helped him." He further explained that the mental health records he had reviewed merely indicated that his client suffered from alcoholism and an antisocial personality disorder, and that in his practical experience as a lawyer he had "never found that alcoholism was an excuse ever bought by the jury."

The circuit court denied habeas corpus relief by an order entered June 26, 1998, finding as follows:

[C]ounsel discussed [their] client's mental health history with him; obtained significant portions of his mental health records; scheduled psychiatric evaluations, but abandoned that course after reviewing the records and discussing the evaluation with a psychiatrist. The Court finds that counsel did take reasonable steps to investigate whether an insanity or diminished capacity defense could be raised. In addition, the Court further finds that the petitioner has failed to prove that there is a reasonable probability that the outcome of his case would have been different even if counsel had proceeded with the psychiatric evaluation.

The circuit court also found as a matter of fact that Vernatter had told his attorneys that he remembered the course of events on the night of the shooting, concluding that "trial counsel could not perpetrate a fraud upon the Court in assisting the petitioner in offering false testimony, if he elected to testify or indirectly presenting a defense based upon false representations made to law enforcement and mental health professionals."

II. STANDARD OF REVIEW

As we stated in State ex rel. Daniel v. Legursky, 195 W.Va. 314, 465 S.E.2d 416 (1995), "[a]n ineffective assistance of counsel claim presents a mixed question of law and fact; we review the circuit court's findings of historical fact for clear error and its legal conclusions de novo. This means that we review the ultimate legal claim of ineffective assistance of counsel de novo and the circuit court's findings of underlying predicate facts more deferentially." Id. at 320, 465 S.E.2d at 422; see also syl. pt. 1, State ex rel. Postelwaite v. Bechtold, 158 W.Va. 479, 212 S.E.2d 69 (1975) ("Findings of fact made by a trial court in a post-conviction habeas corpus proceeding will not be set aside or reversed on appeal by this Court unless such findings are clearly wrong."), cert. denied, 424 U.S. 909, 96 S.Ct. 1103, 47 L.Ed.2d 312 (1976).

III. DISCUSSION

A. Ineffective Assistance of Counsel

Vernatter's...