Schofield v. West Virginia Department of Corrections , 185 W. Va. 199 ( 1991 )

NEELY, Justice:

Kathy Jo Schofield was convicted of first-degree murder without a recommendation of mercy by a Wood County jury in December 1982. Her conviction was affirmed by this Court in State v. Schofield, 175 W.Va. 99, 331 S.E.2d 829 (1985). In 1987 Ms. Schofield petitioned the Circuit Court of Monongalia County for post-conviction habeas corpus relief under W.Va. Code, 53-4A-1 [1967] et seq. Ms. Scho-field’s amended habeas corpus petition alleged that her trial counsel were ineffective in three areas: (1) they failed to deal adequately with the issue of mercy by offering evidence, instructions and argument; (2) they failed to offer evidence before the jury on the issue of whether her statements were voluntary; and (3) they failed to represent her adequately with respect to a proposed plea agreement. The petitioner asked that her conviction be vacated and that she be permitted to plead under the proposed plea agreement, or in the alternative, that she be granted a new trial.

The Circuit Court of Monongalia County conducted a hearing and reviewed the depositions of defendant’s trial counsel. Based on the evidence presented, the circuit court found trial counsel to be ineffective in a “limited but significant area,” and modified the final judgment of the Circuit Court of Wood County by adding a recommendation of mercy. No new trial was ordered, nor was the matter remanded to the Circuit Court of Wood County. The State of West Virginia now appeals, arguing that the jury’s verdict of guilty of first-degree murder with no recommendation of mercy should be reinstated. We find that the circuit court’s findings of fact were not contrary to the weight of the evidence; however, we reverse the circuit court’s award of a recommendation of mercy and remand the case to Wood County for a new trial.

I

Kathy Jo Schofield was arrested by the Parkersburg Police Department on 4 May 1982 and charged with the murder of James Preston Gill. Shortly thereafter, David Finnerin, a Parkersburg lawyer, was appointed to represent Ms. Schofield. On 20 September 1982, William Powell was appointed as co-counsel for Ms. Schofield.

The evidence proved that Ms. Schofield had entered the apartment of James Gill and shot him in the back. In addition to the physical evidence connecting the defendant to the murder weapon at the crime scene, Ms. Schofield admitted at trial that she had shot Mr. Gill, but asserted that it was done in self-defense. This statement was contradicted, however, by her earlier statements to the police that Mr. Gill had been shot by a nonexistent person named “Buddy” and that she had shot him “to see what it was like to kill someone.” State v. Schofield, supra, 175 W.Va. at 100, 331 S.E.2d at 833, 834. Ms. Schofield, although of limited intelligence, was found by three different mental health professionals to be competent to stand trial and criminally responsible.

Ms. Schofield appealed her conviction to this Court. In that appeal, Ms. Schofield’s appellate counsel challenged the validity of Ms. Schofield’s arrest, the failure to conduct a competency hearing, the refusal to give an insanity instruction, and the giving of an instruction which did not explain to the jury that without a recommendation of mercy, Ms. Schofield would never be eligible for parole. Each of these alleged errors was discussed and rejected by this Court. State v. Schofield, supra.

In connection with the habeas corpus petition, both original trial counsel were deposed and later testified at a hearing. Mr. Finnerin testified that he had practiced law since 1971, and that in 1982 he had been on the list of local lawyers who voluntarily accepted appointments to represent indigent criminal defendants for approximately ten years. Mr. Finnerin stated that the defendant was “probably the most difficult client” he’d ever had. As Mr. Finnerin stated:

The key problem was that she did not one time while I was representing her ever consistently tell me the same thing that she had earlier told me. She told me so many different things, and so many difference [sic] versions of what had happened, and so many different versions of her life history that each one was different. She was never able to consistently tell me anything. And that presented a great problem in trying to prepare for a trial because one day she would say one thing, the next day she would say another, the next day she would not want to talk with me, she’d get angry with me, the next day I’d be her friend. She was just very difficult.

Mr. Finnerin testified that he conducted an investigation into the circumstances surrounding the shooting, as was his usual practice, rather than hiring a private investigator. Mr. Finnerin stated that he talked with local people about the character of the victim, but found no confirmation with regard to Ms. Schofield’s claim that James Gill was her pimp. Mr. Finnerin visited the scene of the crime, pursued the “Buddy” story, looked for the mythical Buddy whom the defendant stated had helped her rob Mr. Gill and then had shot him, and then monitored the police’s inquiry into that possibility. In the end, however, Mr. Finnerin was never able to corroborate any aspect of Ms. Schofield’s story.

During the course of Mr. Finnerin’s preparation for trial, Mr. Finnerin obtained a plea agreement from the State under which Ms. Schofield would plead guilty to second-degree murder. Mr. Finnerin met with the defendant and her parents several times to explain the matter and to prepare for the plea. The plea agreement fell apart, however, when the judge inquired if Ms. Scho-field was aware of the penalties for the lesser included offenses of voluntary manslaughter and involuntary manslaughter. After adjourning temporarily so that Mr. Finnerin could explain those offenses to her, the defendant became angry with her counsel and ultimately refused to enter a plea to second-degree murder despite Mr. Finnerin’s advice to her that it was “the best that [she] could ever hope to get.” As Mr. Finnerin explained:

I took her out in the hallway — we were in the old courthouse then — and sat down with her. I went over the elements of each of these other offenses and I explained them to her. She wanted one of them. It was like a kid in a candy store. Well, I’m not going to plead to this. You tell the prosecutor I want this one. She wanted the voluntary or involuntary, whatever the least penalty would have been. She was very petulant about it and childish.

At this point Mr. Finnerin asked that additional counsel be appointed to help him deal with the defendant. The Court then appointed Mr. Powell, who had graduated from Duke Law School and practiced law since 1975. As Mr. Finnerin stated, the trial court carefully considered whom he would appoint to assist with the representation of Ms. Schofield and ultimately chose Mr. Powell because the Court thought that Mr. Powell had successfully represented difficult juvenile clients in the past.

After becoming involved in the case, Mr. Powell advised the defendant to accept the second-degree murder plea offer, and Mr. Powell confirmed that the defendant would not plead because she insisted that she wanted the one to five year sentence and couldn’t understand why she couldn’t have it. Mr. Powell continued to urge her to plead to second-degree murder and repeatedly told her that the prosecutor would not accept a plea to voluntary manslaughter and that, in his opinion, she would not be able to get such a verdict from the jury.

Mr. Powell also testified concerning the defendant’s inability to tell a consistent version of the events of the night of the shooting. It was his recollection that Ms. Schofield told four or five different stories about the shooting and that her story would change in response to the ongoing colloquy of second-degree murder versus manslaughter. In other words, Kathy Schofield would tell one story, and after counsel would point out the reasons that such a story would not get her a manslaughter conviction, she would concoct another story.

Mr. Finnerin and Mr. Powell were also questioned also concerning their approach to dealing with the issue of mercy during closing argument. Mr. Finnerin stated that it was a judgment that he made during the course of the trial, by looking at the evidence, and then making the difficult decision about whether to mention mercy during closing. Mr. Powell stated that he and Mr. Finnerin had decided that they did not want to appear to be in the posture of admitting that their client was guilty of first-degree murder, and that mercy was the only real issue to be considered. For that reason, a strategic decision was made to argue the case the way it was argued. Further, because the prosecutor in his closing argument had argued that the only issue before the jury was mercy, defendant’s trial counsel did not want to appear to agree with him and give further credence to that notion.

Given those constraints, trial counsel did their best to arouse some shred of sympathy for the defendant. This was made extremely difficult by the overwhelming evidence against Ms. Schofield, and by her own extremely damaging testimony before the jury. In addition, defendant apparently did not want her counsel to argue her diminished capacity or to make a plea for mercy.

II

The Circuit Court of Monongalia County modified the Circuit Court of Wood County’s order by adding a recommendation of mercy and, in awarding this relief, reasoned as follows:

With respect solely to the question of effectiveness of representation addressing the issue of the potential recommendation of mercy: the lack of witnesses, the lack of argument, and the lack of a complete and explicit mercy instruction, taken together, clearly and convincingly combined to create a condition that caused the defendant not to receive effective assistance relative to the question of mercy in this case.

Therefore, this Court is of the opinion that Kathy Schofield did not receive a constitutionally fair trial on the question of the degree and potential duration of her sentence. While she was represented by highly able counsel who in all other respects did a credible job on her case, apparently because of problems associated with her communication with her counsel, and her last-minute decision to take the stand, the mercy issue never received the attention at trial it constitutionally should have.

The court then went on to determine that this limited area of ineffectiveness would not have affected the jury’s determination of guilt, and that this case called for “unique relief.” The court said:

The constitutional defects in Schofield’s trial, which this Court has concluded warrant granting of appropriate habeas relief, likely did not affect the jury’s determination of guilt. This Court believes, however, that the constitutional deficiencies contributed to the jury’s decision not to recommend mercy. There is a reasonable probability (i.e., a strong enough probability that the outcome would have been different) that had available evidence, argument and a complete instruction been presented in support of mitigation or mercy, the jury would have recommended mercy.

Ill

In the oft quoted Syllabus Point 19 of State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974) we said:

In the determination of a claim that an accused was prejudiced by ineffective assistance of counsel violative of Article III, Section 14 of the West Virginia Constitution and the Sixth Amendment to the United States Constitution, courts should measure and compare the questioned counsel’s performance by whether he exhibited the normal and customary degree of skill possessed by attorneys who are reasonably knowledgeable of criminal law, except that proved counsel error which does not affect the outcome of the case, will be regarded as harmless error.

The Thomas standard conforms to the performance and prejudice test of ineffective assistance of counsel applied by the U.S. Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and applies when effective assistance of counsel is challenged in a habeas corpus proceeding. State ex rel. Levitt v. Bordenkircher, 176 W.Va. 162, 342 S.E.2d 127 (1986).

In applying the Thomas standard here we should note the “reasonably knowledgeable of criminal law” language of Thomas, Syllabus Point 19, and then look to our case of State ex rel. Leach v. Hamilton, W.Va., 280 S.E.2d 62 (1980) where we said:

We cannot envision a murder defense, however, that would not require introduction of all possible evidence toward reduction of a jury’s view of the severity of defendant’s acts. Even when alibi is a defense, good character evidence would be appropriate.

And so we cannot conceive of any fact that defendant could introduce to convince a jury that he deserves mercy at a separate sentencing stage that should not be introduced by him at the main trial, and Leach presents us with none.

Leach v. Hamilton implies that, all things being equal, a lawyer should make sure that any available mitigation evidence is presented to the jury in a murder case. However, counsel at Ms. Schofield’s original trial were also up against the time-honored principle governing lawyer conduct now codified in Rule 1.2(a), Rules of Professional Conduct which provides as follows:

A lawyer shall abide by a client’s decisions concerning the objectives of representation, subject to paragraphs (c), (d) and (e), and shall consult with the client as to the means by which they are to be pursued. A lawyer shall abide by a client’s decision whether to accept an offer of settlement of a matter. In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

Obviously, at her trial for murder, Ms. Schofield directed her lawyers to attempt to get her either an acquittal or a conviction for manslaughter. Because her lawyers understood that this assignment was virtually impossible to perform, and because there was material about Ms. Scho-field’s limited mental ability, her history of social and emotional problems, and her family background,, that could have been introduced in evidence without inviting overwhelming counter-evidence on the part of the State, we conclude that the circuit court did not abuse his discretion in deciding that counsel were technically ineffective.

IV

Finally, we must decide whether the circuit court was within his statutory authority when he awarded the relief of modifying the jury’s verdict. The powers of a circuit court in post-conviction habeas corpus proceedings are set out in W. Va. Code, 53-4A-7(c) [1967] which provides as follows:

When the court determines to deny or grant relief, as the case may be, the court shall enter an appropriate order with respect to the conviction or sentence in the former criminal proceedings and such supplementary matters as are deemed necessary and proper to the findings in the case, including, but not limited to, remand, the vacating or setting aside of the plea, conviction and sentence, rearraignment, retrial, custody, bail, discharge, correction of sentence and resentencing, or other matters which may be necessary and proper. In any order entered in accordance with the provisions of this section, the court shall make specific findings of fact and conclusions of law relating to each contention or contentions and grounds (in fact or law) advanced, shall clearly state the grounds upon which the matter was determined, and shall state whether a federal and/or state right was presented and decided. Any order entered in accordance with the provisions of this section shall constitute a final judgment, and, unless reversed, shall be conclusive.

Although the provision quoted above refers to “such supplementary matters as are deemed necessary and proper,” we do not believe that the legislature intended in that catchall phrase to allow a circuit court hearing a post-conviction habe-as corpus matter to substitute his judgment for the judgment of the judge and jury who originally heard the case. Although W.Va.Code, 53-4A-7(e) [1967] refers to “correction of sentence and resen-tencing,” the legislature meant by that phrase to allow correction of such things as clerical errors like the trial court’s failure to award time served in jail pending trial. We have specifically held in State ex rel. Shamblin v. Dostert, 163 W.Va. 361, 255 S.E.2d 911 (1979), that one circuit court of this State cannot modify the judgment of another circuit court. Syllabus Point 2 of Shamblin said:

W.Va. [C]onst., art. 8 § 1, W.Va. Const., art. 8 § 3, and W.Va. Const., art. 8 § 6 when read together provide an orderly and exclusive system by which errors of circuit courts may be corrected only by the West Virginia Supreme Court of Appeals and not by other circuit courts. One circuit court may not directly or indirectly interfere with the orders of another circuit court unless specifically provided by statute or civil rule regardless of how erroneous such orders may be.

In Syllabus Point 1, Nicholson v. Boles, 148 W.Va. 229, 134 S.E.2d 576 (1964), we said:

A habeas corpus proceeding is not a substitute for a writ of error or other appellate process, and error in a final judgment in a criminal case, which renders such judgment voidable merely but not void, can not be considered or corrected in such proceeding; but if a sentence of imprisonment under which a person is confined is void, in whole or in part, it may be reached and controlled in a habe-as corpus proceeding.

Consequently, we believe that the Circuit Court of Monongalia County exceeded his legitimate powers in modifying the appellee’s conviction from one for first-degree murder without a recommendation of mercy to first-degree murder with a recommendation of mercy. Having found ineffective assistance of counsel at trial, the proper remedy was to vacate the conviction and to retry the defendant on the original indictment.

Accordingly, for the reasons set forth above, the judgment of the Circuit Court of Monongalia County is reversed and the case is remanded with directions to vacate the appellee’s conviction with leave to the State to retry the appellee on the original indictment.

Reversed in part, affirmed in part, and remanded with directions.

WORKMAN, J., concurs in part and dissents in part and reserves the right to file a concurring and dissenting opinion.