Cannellas v. McKenzie , 160 W. Va. 431 ( 1977 )

Neely, Justice:

The petitioner, Joe Cannellas, was tried by a McDowell County jury upon an indictment for forcible rape of a sixteen year old girl. The jury returned a verdict of guilty with a recommendation of mercy, and on December 19, 1975, the petitioner was sentenced by the Circuit Court of McDowell County to a term of from ten to twenty years in the West Virginia Penitentiary. Petitioner then filed a petition for a writ of error in this Court, and on September 13, 1976, the petition was denied. The primary ground alleged for habeas corpus relief is that petitioner was ineffectively represented by court-appointed counsel in both the trial court and on appeal of the original conviction to this Court. We find that petitioner’s allegations of ineffective assistance of court-appointed counsel are well founded, and accordingly we grant the writ of habeas corpus prayed for.

There are numerous instances of ineffective assistance of counsel at the trial stage. While no one instance of ineffective assistance would have entitled petitioner to habeas corpus relief, we can infer that petitioner did not have a fair trial overall, due to ineffective assistance of counsel. However, the most serious violation of petitioner’s right to effective representation under U.S. Const., Amendments VI and XIV, § 1, and W. Va. Const., Art. Ill, § 14, was in the failure of counsel on appeal to assign as error the insufficiency of the evidence supporting petitioner’s conviction.

The record in this case discloses that on the afternoon and evening of September 17, 1975, and the morning of September 18, 1975, the petitioner and the prosecuting witness, a Miss Vicki Hagy, were present at a number of the same social events. The evidence is uncontroverted that they both attended the Big Creek High School homecoming game where alcoholic beverages were consumed and marijuana was smoked. Thereafter the prosecuting witness rode with some other companions in petitioner’s pickup truck to a small house used by young people for social events. The petitioner and Miss Hagy spent the evening in the company of others at this house where alcoholic beverages were consumed, and both she and the petitioner smoked marijuana.

After the party, at about midnight, the petitioner, Miss Hagy, a young lady named Patty Pruitt, and a young man named Tim Stacy left the party in petitioner’s truck for the alleged purpose of taking Miss Hagy and Miss Pruitt home. After driving a few miles, Miss Pruitt left the company of the other three to join some friends whom she had recognized along the road, and the petitioner, Mr. Stacy, and Miss Hagy proceeded in petitioner’s truck in the general direction of Miss Hagy’s home. The evidence then is in sharp conflict as Miss Hagy testified that petitioner and Mr. Stacy took her against her will to Berwind Lake, and that petitioner forcibly raped her against her will in the front seat of the truck. Petitioner testified that he had intercourse with Miss Hagy, but that the intercourse was voluntary and Mr. Stacy testified that he also had intercourse with Miss Hagy at her instance and with her consent.

At trial, Miss Hagy’s mother testified that on the morning in question her daughter came in between the hours of 1:00 a.m. and 2:00 a.m. and that her eyes were red and she was emotionally upset. Mrs. Hagy also testified that on the morning in question she was enraged at her daughter for being out so late and that she had gotten a belt for the purpose of administering corporal punishment to the daughter. She stated, however, that upon seeing the emotional condition of her daughter, she had forborne the infliction of such punishment. Mrs. Hagy testified that later that morning after arising, her daughter told her about the alleged rape and that she and her daughter then went to a Justice of the Peace to swear out a warrant. Miss Hagy testified at trial that she had had intercourse with three other men, and that with the exception of the first she had known both of the others for a substantial period of time.

At trial the prosecution introduced the undergarment and bluejeans worn by the prosecuting witness on the night in question and, without objection from the defense attorney, established a chain of custody demonstrating that the garments had been in the custody and control of Miss Hagy and her mother from the time of the alleged rape until the time of trial; that they had been washed; and, that no special care had been taken to preserve them in their original condition.

Although defense counsel did not challenge the chain of custody, he did attempt to impeach the credibility of Miss Hagy’s testimony that the undergarment and bluejeans were torn by the petitioner at the time of the alleged rape. To impeach Miss Hagy’s testimony, defense counsel called Rosie Wyseloiff to the stand. She had been present at the preliminary hearing in this matter and could recall Miss Hagy’s testimony. Mrs. Wyseloiff testified that at the preliminary hearing Miss Hagy stated she did not bring the clothing with her because the clothing was not torn and would not have proved anything. We find that trial counsel’s handling of the one piece of corroborating evidence tending to prove petitioner’s guilt was such as no trial attorney reasonably skilled in the practice of criminal law would have countenanced.¹

There is one further and fatal example of ineffective assistance at trial. During the testimony of Mr. Tim Stacy, it became obvious that Mr. Stacy had been invited by the prosecuting authorities to take a lie detector test. Also, during the course of cross-examination of the defendant, the defendant inadvertently indicated that Tim Stacy had been looking for him because Mr. Stacy had been invited to take a lie detector test and wanted the defendant’s advice. In spite of this prejudicial evidence concerning lie detectors, none of which was elicited deliberately by either side, defense counsel did not move for a mistrial, but chose instead to ask for a limiting instruction from the court. We believe that reasonably skillful trial counsel would have moved for a mistrial.

Other instances of ineffective assistance of counsel include trial counsel’s failure to interrogate prospective members of the jury about whether they had read newspaper articles prejudicial to the defendant immediately before the trial, and trial counsel’s introduction before the jury of the fact that the petitioner was married and had two children. We find it difficult to discern any tactical reason for bringing out petitioner’s marital status in light of West Virginia’s rule that it is reversible error for the State over defense objection to bring before the jury in a rape prosecution evidence of a defendant’s marital status. See, State v. Dorton, 125 W. Va. 381, 24 S.E.2d 455 (1943).

Except in extraordinary circumstances, on a petition for habeas corpus, an appellate court is not entitled to review the sufficiency of the evidence. Riffle v. King, 302 F. Supp. 992 (N.D.W.Va. 1969), and Young v. Boles, 343 F.2d 136 (4th Cir. 1965). That question is an appropriate one for review on appeal. However, our reading of the transcript in this case indicates that the question of the sufficiency of the evidence is a crucial issue which should have been raised and decided by this Court on appeal. This issue was not raised in appellant’s application for a writ of error and consequently was not decided in our denial of the writ. The law with regard to conviction of a defendant upon the uncorroborated evidence of a prosecuting witness has been developing throughout the United States for many years. We have not reviewed that question since the case of State v. Beacraft, 126 W. Va. 895, 30 S.E.2d 541 (1944), and it is possible that upon detailed review of the record we would have established certain guidelines concerning the circumstances under which uncorroborated testimony of a prosecuting witness may be sufficient.²

We do not decide that issue in this habeas corpus proceeding, but rather we find the appellate counsel’s failure to raise the issue such a basic denial of the right to effective assistance of counsel on appeal that we have no recourse but to grant the writ. The State’s obligation when an indigent is accused of a crime is to provide counsel who will conduct himself in such a way that he exhibits “the normal and customary degree of skill possessed by attorneys who are reasonably knowledgeable of criminal law. .. .” Syllabus pt. 19, State v. Thomas, 157 W. Va. 640, 203 S.E.2d 445 (1974). We believe that any lawyer reasonably knowledgeable of criminal law would have raised the question of the sufficiency of the evidence on appeal. Furthermore, we cannot say that if counsel had challenged the sufficiency of the evidence on appeal that it would not have changed the outcome of the case. Thus we cannot regard the failure to challenge the sufficiency of the evidence as harmless error.

We do not find in this case, as we did in Carter v. Bordenkircher, _ W. Va. _, 226 S.E.2d 711 (1976) that the injury from ineffective assistance of counsel was entirely speculative or theoretical, but that to the contrary there was a substantial probability of actual injury. United States Constitution, Amendments VI and XIV, § 1 and West Virginia Constitution, Art. Ill, § 14 guarantee that an indigent accused of a crime receive effective assistance of counsel. Gideon v. Wainwright, 372 U.S. 335 (1963), and State ex rel. May v. Boles, 149 W. Va. 155, 139 S.E.2d 177 (1964). This is a responsibility of the State, and where the State has failed in its duty, relief will lie in habeas corpus. Accordingly the writ as prayed for is granted.

Writ granted.

1 More witnesses could have been called to substantiate Mrs. Wyseloiff’s version of Miss Hagy’s preliminary hearing testimony. As far as the chain of custody problem is concerned, the general rule has recently been restated as follows:

When an object or article has passed through several hands while being analyzed or examined before being produced in court, it is not possible to establish its identity by a single witness, but if a complete chain of evidence is established, tracing the possession of the object or article to the final custodian, it may be properly introduced in evidence. Syllabus pt. 2, State v. Chariot, _ W. Va. _, 206 S.E.2d 908 (1974).

This rule is applicable to this case since it is clear that Miss Hagy’s torn clothing passed through several hands before being introduced in evidence. We cannot say from the record that the State failed to establish the torn clothing’s chain of custody. Rather, we note the substantial possibility that the State might have failed to establish chain of custody if defense counsel had aggressively pursued this point. In short, defense counsel did not fulfill his obligation in representing petitioner to put the State to its proof with respect to the torn clothing. Defense counsel should have raised this question initially by moving to suppress the evidence, and later by objecting to its admission at trial.

2 Rape corroboration requirements continue to be hotly debated in many jurisdictions and are perhaps deserving of reexamination here. For a sampling of the voluminous literature on the subject see Note, “The Rape Corroboration Requirement: Repeal Not Reform,” 81 Yale L. J. 1365 (1972); Note, “Corroborating Charges of Rape,” 67 Colum. L. Rev. 1137 (1967); Note, “Rape and Rape Laws: Sexism in Society and Law,” 61 Cal. L. Rev. 919 (1973); and Note, “Repeal of the Corroboration Requirement: Will It Tip the Scales of Justice?” 24 Drake L. Rev. 669 (1975). And for a good discussion of the problem in a recent, significant case see Arnold v. United States, 358 A.2d 335 (D.C.App. 1976), and in particular, the cogent dissent of Associate Judge Mack, id, at 348.