WORKMAN, Justice:
Charles Ray Merritt (hereinafter the defendant) was convicted of first degree murder and sentenced by the Circuit Court of Cabell County to life without mercy. The defendant now appeals his conviction on the basis of numerous assignments of error, but contends that the primary assignment is insufficient evidence. In addition to the appeal of his criminal conviction, the defendant has filed a writ of habeas corpus ad subjiciendum seeking an unconditional discharge coupled with an injunction against further prosecution of the underlying criminal action based on the seven and one-half year delay prior to the perfection of his appeal. Because this Court finds no merit in the assignments of error raised by the defendant, we affirm the conviction. Notwithstanding any due process violation which may have occurred due to the delay in perfecting the defendant's appeal, because the appeal has now been heard and found to be without merit, we deny the writ of habeas corpus.
Three individuals were co-indicted with the defendant for the victim's murder. These individuals were Acie Merritt (Acie), the defendant's brother, Monica Wolowinski (Monica), the victim's wife, and Alfreda Adkins, the defendant's girlfriend. At the time of the defendant's trial, Acie had not yet been tried. After the defendant was convicted, Acie entered a plea of guilty to voluntary manslaughter on March 23, 1982. Monica was indicted a second time for complicity in connection with her husband's murder, but she was never tried on the charges set forth in either of the indictments. She was granted complete immunity from prosecution in connection with the murder on December 4, 1981, in exchange for her testimony in the trials against the defendant and Acie Merritt. The state agreed to nolle prosequi its indictment against Alfreda Adkins. The defendant was convicted on February 8, 1982, for the first degree murder of John Wolowinski.
The murder conviction was obtained against the defendant primarily on the basis of circumstantial evidence. Acie Merritt had been residing at the Wolowinski residence, from which John Wolowinski was frequently absent, sometimes being out-of-town up to five days a week due to his work. Monica testified that she had had a sexual relationship with Acie, that John had come home early and found them in bed, and that Acie had been ordered out of the Wolowinski residence by John Wolowinski two days prior to his death. Monica testified that her husband told Acie "we was going to get it. We could do better without him." Monica stated that Acie left with no argument and took some of his clothes with him.
Monica Wolowinski testified that on the evening of her husband's murder, she left him at home late in the evening, but before dark, and went to a laundromat with Alfreda Adkins, as well as Monica and John's two children. While they were at the laundromat, the defendant, Acie, and Junior Webb arrived in the defendant's red Ford pickup truck. Monica testified that Acie stated at the laundromat that he was going to the Wolowinski residence for the purpose of collecting certain items of his clothing which remained there. Before leaving the laundromat, Acie, along with the defendant and Junior Webb, borrowed Alfreda Adkins' automobile. The three men then drove away in Alfreda Adkins' green Chevrolet, leaving the defendant's truck parked outside the laundromat. After the women had finished their laundry and after what Monica said "felt like quite awhile," the defendant, Acie, and Junior Webb returned the green Chevrolet to the laundromat parking lot. Monica's only testimony regarding when the three men returned was that "[i]t was just after dark." At this point, according to Monica, in response to
Earlier on the day of the murder (between 5:30 p.m. and 6:30 p.m.), the defendant had shown a sawed-off shotgun to a friend of his, Larry Chapman, and said "I'm going to use this." A neighbor of the Wolowinskis heard sounds which she likened to gunshots between 10:00 and 10:30 p.m. on the evening of September 3, 1981. The neighbor recalled hearing two separate gunshots at approximately 10:20 p.m. Between midnight and 1:00 a.m. on September 4, 1989, the defendant and Acie were driving in the defendant's red Ford pickup truck on their way back to the defendant's trailer. They encountered a group of acquaintances walking down the road, picked them up in the truck, and invited them to smoke marijuana at the defendant's trailer. Daniel Kitchen and Jerry Carter were among this group of individuals.
Jerry Carter testified that the defendant asked him sometime during their partying that morning to hide some guns for him. The defendant also asked Carter to wrap the guns in a tarp which was covering a motor in the back of the truck. Daniel Kitchen testified that the defendant asked him during this same party session whether he wanted to buy some guns at an unspecified price, but indicated that it was understood it would be a "cheap price." The defendant did not show the guns to Kitchen, but the guns which Kitchen agreed to buy were removed from the defendant's truck wrapped in a yellow tarp. Later that same day when the state police questioned Daniel Kitchen, he produced four guns: a sawed off shotgun, a .12 gauge shotgun, a .22 calibre pistol, and a .32 calibre pistol. The victim's .22 calibre pistol was later discovered to be one of the guns which Kitchen turned over to the police.
The forensic and ballistic analysis of the bullets retrieved from Wolowinski's body proved inconclusive. The state's firearm expert, Sergeant Lane, testified that he could not determine for certain whether the two bullets removed from the victim's body had originated from the .32 calibre pistol turned over to the state police by Kitchen because the bullets were "damaged to the extent there [were] ... not sufficient characteristics still remaining on them to identify with the firearm." In addition, a blood stain analysis of the defendant's clothing
The jury did, however, hear testimony of two witnesses, Monica Wolowinski and Jerry Carter, that provided them with a basis for connecting the defendant to the murder. Jerry Carter testified that in the early morning hours of September 4, 1981, while he was partying at the defendant's trailer, he heard the defendant say something about killing "some dude" and also that the defendant described the murder by saying that he knocked on the door and when he opened it he shot him and also that he shot him again after the "dude" cut through a room. This testimony was consistent with the blood stains discovered in the Wolowinski residence and the crime sketch prepared by the investigating officer.
Monica's testimony regarding Acie's stated intention to return to the Wolowinski residence certainly suggested that the defendant had both the opportunity to be at the Wolowinski residence during the time when the victim was murdered and a motive for committing the crime. Although the defendant had no known prior connection to the victim, the fact that his brother Acie had been having an affair with the victim's wife and that Acie had just been kicked out of the victim's home two days prior to the murder certainly suggests a possible motive. Perhaps one of the most damaging pieces of evidence was Monica's testimony that she recalled seeing her husband's.22 calibre pistol in the box in the hall closet just before she went to the laundromat, and that she may have seen the same gun box in the defendant's truck on the evening of the murder.
Additional evidence which was introduced against the defendant included the fact that he had a cut on the web of his hand between his thumb and his forefinger when he was arrested the day after the murder. The state's firearms expert testified that the firing of a sawed-off shotgun could cause such a cut to the web of the hand.
Certain individuals whose testimony may have been relevant were either not called to testify or were unavailable. Acie was not called to testify as he remained under murder charges at that time and his case, which had been severed from defendant's, had not gone to trial. Although the state had several subpoenas prepared for Alfreda Adkins, she was never served with one. Apparently the state never checked to see if she was served, believing she would appear and testify voluntarily. When she did not appear on the day of trial, the state moved for a continuance on the basis of her absence. During a hearing on that motion, a state trooper testified that he had information that Alfreda had moved out of her residence late the evening before trial and had apparently gone to California with another Merritt brother, nicknamed "Peanut". Daniel "Junior" Webb was murdered shortly after the arrest of Acie and the defendant. The record discloses that still another of the defendant's brothers, Delbert Merritt, and a half-brother were charged with first degree murder in connection with "Junior's" murder and that "Junior's" body was reportedly discovered on property belonging to a relative of the defendant. The jury heard no evidence relating to these matters.
In his petition for a writ of habeas corpus ad subjiciendum, the defendant contends that the state has been extraordinarily derelict in its duty to provide him with a timely appeal.
I.
The defendant's primary basis for appeal is the allegation of insufficient evidence. As this Court recognized in State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978),
Id. at 517, 244 S.E.2d at 220, Syl. Pt. 1. To determine whether there is any merit to the allegation of insufficient evidence, we must analyze the evidence introduced at trial in view of the "manifestly inadequate" standard established by Starkey. Id.
Before we reach the "manifestly inadequate" examination, however, we must first determine whether the circumstantial evidence was sufficient to convict the defendant under this Court's ruling in State v. Phillips, ___ W.Va. ___, 342 S.E.2d 210 (1986). In Phillips, we stated that "[i]f, on a trial for murder, the evidence is wholly circumstantial, but as to time, place, motive, means, and conduct it concurs in pointing to the accused as the perpetrator of the crime, he may properly be convicted." Id. at Syl. Pt. 4 (quoting State v. Beale, 104 W.Va. 617, 632-33, 141 S.E. 7, 13 (1927)); accord Syl. Pt. 2, State v. Smith, ___ W.Va. ___, 384 S.E.2d 145 (1989).
Applying Phillips, we find that the evidence as to time, place, motive, means, and conduct overwhelmingly points to the defendant as a perpetrator of the crime. Although the exact time of the murder was not pinned down, it had to occur while Monica Wolowinski was at the laundromat in the late evening hours of September 3, 1981. According to Monica Wolowinski's own testimony, the defendant left the laundromat in the company of her lover, Acie, who had just stated an intention to go to the Wolowinski residence to pick up the remainder of his belongings which he had not taken when the deceased had kicked him out of the Wolowinski home just two days earlier. This testimony was critical for the prosecution because it provided the defendant with the opportunity to be at the place of the murder—the victim's house—during the only time when the murder could have occurred. Contrary to the defendant's contention, we do not view this case as one without a possible motive. The jury could have reasonably surmised that the defendant's motive was a brother wanting to assist another brother in either taking revenge against Wolowinski for kicking
Having survived the initial test of conviction through circumstantial evidence, we can now proceed to determine whether the evidence presented was "manifestly inadequate" under Starkey. See 244 S.E.2d at 220, Syl. Pt. 1. While we recognize that a finding of sufficient circumstantial evidence to convict will generally result in the related conclusion that the evidence was not manifestly inadequate, the standards of review are different, and must be applied separately.
II.
Several assignments of error arise from the testimony of Jerry Carter. These assignments concern the competency of Carter to testify, improper use of impeachment, and ineffectiveness of counsel. The issue of Carter's competency to testify stems from the following comments about Carter made by counsel and the court in connection with the use of a previously-taped statement to refresh Carter's recollection.
The competency of a witness to testify is controlled by Rule 601 of the West Virginia Rules of Evidence which provides: "Every person is competent to be a witness except as otherwise provided for by statute or
F. Cleckley, Handbook on Evidence for West Virginia Lawyers § 2.2(B) (2d ed. 1986) (citing United States v. Odom, 736 F.2d 104 (4th Cir.1984)).
As the Fourth Circuit has clearly recognized, an individual who has a low I.Q. is not presumed to be incompetent to testify. The trial judge must assess the witness to determine competency in view of his knowledge regarding the subject matter, capacity for recall, and ability to understand his duty to testify truthfully. Once that determination has been made, because "`the question of the competency of a witness to testify is left largely to the discretion of the trial court, ... its judgment will not be disturbed unless shown to have been plainly abused resulting in manifest error.' Point 8, Syllabus, State v. Wilson, 157 W.Va. 1036, 207 S.E.2d 174 (1974)." Syl. Pt. 3, in part, State v. Butcher, 165 W.Va. 522, 270 S.E.2d 156 (1980).
Having reviewed Carter's testimony in its entirety, we find that the trial judge did not abuse his discretion in permitting Carter to testify initially or in permitting him to continue testifying following the above-quoted discourse concerning Carter's intelligence. Carter's ability to think for himself and to testify truthfully despite the prosecutor's efforts to lead his testimony is apparent from the following testimony elicited during direct examination. (By the prosecuting attorney):
Carter obviously did a rather skillful job of hedging when questioned regarding his pre-trial statement, and yet did not testify inconsistently. His manner of responding was so effective that it prevented impeachment.
Although Carter's intelligence may have been noticeably limited, his intelligence was not so deficient in the eyes of the trial court that he was incompetent to testify. Rather than prevent an individual with limited intelligence from testifying altogether, the court is permitted, in its discretion, to lead such a witness. See Cleckley, supra, at § 3.5(B)(e)(4) (citing State v. Golden, 90 W.Va. 496, 111 S.E. 320 (1922)). The court properly permitted the prosecutor to lead Carter in his testimony upon its realization that Carter's I.Q. hampered his ability to concentrate on the subject matter of the inquiries. See id. The state attempted to have him declared a hostile witness, but the court denied that motion, explaining at several junctures that Carter had not been declared a hostile witness and that permission to question Carter in a leading manner was limited to the format of the questions and was granted solely because of Carter's limited intellect.
When Carter took the stand, the court "had the benefit of observing the demeanor of the witness as he testified," and we are
The defendant also argues that the prosecutor was improperly permitted to impeach the testimony of Carter through use of a previously-taped statement. Our review of the record on this issue demonstrates that the taped statement was only used to refresh Carter's recollection and not to impeach his testimony. (By the prosecuting attorney):
At this point, the defendant's trial counsel objected to permitting Carter to review the prior statement.
After the court took a short recess to permit Carter to listen to the taped statement,
The record convinces us that the state was never permitted to impeach Carter with the prior statements. The statements were used for a limited purpose—to refresh Carter's recollection. This is a classic case of recollection being refreshed consistent with the West Virginia Rules of Evidence. See W.Va.R.Evid. 612; see also Cleckley, supra, at § 3.8. Accordingly, we find no merit in the assignments of error arising from the use of Carter's prior statements.
Defendant argues that he was denied effective assistance of counsel with regard to his trial counsel's failure to object to Carter's competency to testify in view of the prosecutor's remarks concerning Carter's intellect. He also assigns as error his counsel's failure to seek an in camera hearing to determine Carter's competency. Although the record suggests that Carter had a limited intellect, he obviously had knowledge and recall of the matters to which he testified and there was no indication whatsoever that he did not understand the duty to testify truthfully. As to an in camera hearing, this Court has never ruled that an in camera hearing is
The remaining assignments of error arising from alleged ineffective assistance of counsel must be judged in view of this Court's holding in State v. Cecil, ___ W. Va. ___, 311 S.E.2d 144 (1983):
Id. at Syl. Pt. 1 (quoting Syl. Pt. 19, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974)). We have also recognized that
Syl. Pt. 21, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).
Having examined the allegations of ineffective assistance of counsel, we conclude that trial counsel "exhibited the normal and customary degree of skill possessed by attorneys who are reasonably knowledgeable of criminal law," and that the allegations, as a whole, present themselves as strategy decisions upon which reasonably qualified trial counsel may differ. It is this Court's collective opinion that while the claim of ineffective assistance of counsel at trial has no merit, the claim as it relates to the appeal process does. For an appeal of a criminal conviction to take seven and one-half years to reach this Court is both unfathomable and undeniably an extreme dereliction of appointed counsels' duties. However, in view of our holding set forth in Section III of this opinion, the ineffective assistance of counsel provided to defendant during the appeal process did not ultimately prejudice him.
Based on our determination that there is no merit to any of the assignments of error discussed above and those additional allegations of error which we do not address, we hereby affirm the defendant's conviction for the murder of John Wolowinski.
III.
Having dispensed with the appeal by affirming the conviction, we now proceed to determine whether the defendant is entitled to an unconditional discharge given the delays he has experienced both in obtaining a transcript of the trial and in perfecting the appeal of his February 1982 conviction. The defendant relies on this Court's decision in Rhodes v. Leverette, 160 W.Va. 781, 239 S.E.2d 136 (1977), to argue that the state's extraordinary dereliction with regard to assisting him in the appeal process entitles him to an unconditional discharge coupled with enjoinment of further prosecution.
In Carter v. Bordenkircher, 159 W.Va. 717, 226 S.E.2d 711 (1976) this Court stated:
In determining appropriate relief in habeas corpus for ineffective assistance of counsel in not prosecuting a timely appeal, the court should consider whether there is a probability of actual injury as a result of such denial, or alternatively whether the injury is entirely speculative or theoretical, and where the denial of a timely appeal was probably harmless, except
Id. at Syl. Pt. 2. We elaborated on the issue of "extraordinary dereliction" in Rhodes by ruling that:
239 S.E.2d at 138, Syl. Pts. 5 and 6.
Today we further address the issue of extraordinary dereliction in yet another context by examining whether a remedy exists for such dereliction once the appeal has been heard and found to be lacking in merit. The issue presented is as follows: If the grounds for habeas corpus relief center on the denial of an appeal, whether through the failure to provide effective counsel or a timely transcript, once the appeal has been heard and found to be without merit, is the defendant entitled to a remedy for any extraordinary dereliction in connection with the appeal process? We think not. The Fourth Circuit Court of Appeals has previously arrived at this same conclusion in United States v. Johnson, 732 F.2d 379 (4th Cir.1984), cert. denied, 469 U.S. 1033, 105 S.Ct. 505, 83 L.Ed.2d 396 (1984). In Johnson, the court considered whether a two-year delay in preparation of the defendant's transcript, which might well have violated due process,
The failure of the defendant's first two lawyers to prepare and present his appeal in an effective and timely fashion was a profound dereliction of their duties as court-appointed attorneys. We do not find such a dereliction to have occurred in connection with the preparation of the trial transcript based on the state's representation that the defendant had in his possession a copy of the transcript by August 24, 1983, which was missing only the first portion of the prosecutor's closing which was later transcribed on November 27, 1989. Despite the abysmally deleterious conduct of at least two out of three of the defendant's attorneys in presenting his appeal, it is now clear that the defendant has suffered no prejudice from these delays based on the fact that his appeal has finally been presented, fully and effectively, but found to be without merit. We therefore adopt the rule enunciated in Johnson by holding that once a criminal defendant's appeal has been heard and found lacking in merit, notwithstanding possible due process violations
However, given the initial two and one-half year delay which occurred when defendant's trial counsel should have been diligently preparing the appeal, we feel compelled to address this issue by declaring that appointed trial counsel for an indigent criminal defendant who is convicted is required to continue representation of the defendant through the appeal process unless an order is entered relieving him of such obligation. When such appointed counsel is relieved of post-trial representation of the defendant,
For the reasons stated in this opinion, we hereby affirm the judgment of the Circuit Court of Cabell County and refuse to grant the writ of habeas corpus ad subjiciendum.
Affirmed; Writ denied.
FootNotes
DATE REASON DURATION OF DELAY ---- ------ ----------------- 7-8-82 to 8-24-83 preparation of transcript* 1½ years 8-83 to 1-86 trial counsel's failure to prepare appeal papers 2½ years 1-22-86 to 7-15-86 pro se representation ½ years 7-15-86 to 6-30-89 newly-appointed counsel's failure to prepare appeal papers* * 3 years 6-30-89 to present current appointed counsel's preparation of petition for appeal ½ year* The defendant claims that the transcript prepared by August 24, 1983 was "incomplete" because it did not contain the first portion of the prosecutor's closing. The state argues that no objections were made and no errors occurred during the initially omitted portion of the transcript.** Although a second attorney was initially appointed to replace the defendant's counsel on 7-15-86, that attorney claimed he was never advised of the appointment. When the defendant advised the court on February 6, 1987, of the failure of his newly-appointed counsel to perfect his appeal, new appellate counsel was appointed on May 7, 1987.
Comment
User Comments