Sgt. Robinson took statements from most of the boys (some parents declined
to let their boys be interviewed). After getting the statements, Sgt. Robinson asked that the
Defendant to come in for an interview, which the Defendant agreed to do after he finished
his shift. The record reflects that Defendant showed up for his interview wearing his deputy
sheriff uniform, as well as his duty belt and service firearm. The Defendant signed a
Miranda Waiver form and was interviewed.
During the interview, the Defendant admitted to the events described above
relevant to M.K. The Defendant also admitted to measuring the boys at the team meeting,
but did not recall touching C.C.'s testicles, although the Defendant admitted that it was
possible he had. When asked during the interview if he “had ever sexually abused another
person” the Defendant replied “Yes, D.G. approximately 2yrs ago, he was 12yrs old. I had
him working out at his house on weights. I had him take a bath, I had him run through the
exercises, he had a towel on, it came off.” The Defendant was next asked “How did you
touch D.G.?” to which the Defendant responded “I don't recall, I believe I touched his
testicles, I don't recall if I touched his penis, I don't think so.” Prior to these admissions,
Sgt. Robinson was unaware of the event with D.G. During the interview, the Defendant
admitted that his conduct likely constituted sexual abuse, but claimed it was not his intent.
Shortly after the interview, the Defendant checked himself into a mental health facility citing depression. While in the mental health facility, Sgt. Robinson consulted with the Marshall County Prosecuting Attorney's Office and obtained permission to obtain an arrest warrant for the Defendant. Sgt. Robinson executed the warrant upon the Defendant's release from the mental health facility.
The Defendant was indicted and elected to have a trial by jury, at which time M.K., D.G., and C.C. each testified to the events described above. In addition, M.K.'s mother testified that she had to knock several times when she went to retrieve her son, and that she was disturbed when she saw her son putting on his shirt. Suspecting that something had occurred, M.K.'s mother testified that she asked M.K. what had happened, and it was only after a period of time that M.K. recounted the events to her. M.K.'s mother further testified that she decided not to report the incident because the Defendant was a deputy sheriff and she did not want M.K. to suffer the embarrassment. Instead of reporting the incident, she did not allow M.K. to be alone with the Defendant.
Other witnesses included current and former little league coaches (who also were parents of the children involved) who testified that there was no reason for measuring the boys inseams' because the boys' uniform pants came in three sizes - small, medium and large. These witnesses testified that fitting days usually consisted of telling the boys to pick their size out of a box at the ballfield and that the boys would then either go into the woods and try them on or that blankets would be draped between vehicles at the ball park for a fitting area.
The Defendant testified, and admitted to the events surrounding D.G. and M.K., but professed that none of his acts was done for the purpose of sexual gratification or pleasure. With regard to the “team meeting” and measuring the boys, the Defendant similarly admitted to the events, but claimed that he did not recall having touched C.C.'s testicles. The Defendant testified that he did not conduct those measurements for purposes of sexual gratification or pleasure.
The case was submitted to the jury. After deliberating approximately five hours (excluding breaks), the jury returned its verdict finding the Defendant guilty on all counts. The trial court thereafter sentenced the Defendant to 10-20 years imprisonment on each of the Sexual Abuse by Guardian counts, 1-5 years on the Sexual Abuse in the First Degree count, and 90-days on each Sexual Abuse in the Third Degree counts, with some sentences to run concurrently and some consecutively, for an effective sentence of 11-25 years imprisonment.
The Defendant filed an appeal to this court following sentencing, which was
refused. The Defendant then appealed to the United States Supreme Court, which appeal was
refused. Thereafter, the Defendant filed a pro se habeas corpus petition to the Circuit Court
of Marshall County alleging, inter alia, ineffective assistance of counsel. The circuit court
appointed legal counsel to represent the Defendant and an evidentiary hearing was
conducted. The circuit court found that the Defendant had received ineffective assistance
of counsel and that “it was clear that there would have been a favorable outcome for the
[Defendant] had he received effective representation and the Prosecuting Attorney not
overreached in his questions and arguments.” Based on those findings, the circuit court
granted the habeas petition “with prejudice,” noting that by “with prejudice” it was holding
that the “State is precluded from prosecuting the [Defendant] for any of the crimes charged
in the indictment.” The circuit court ordered the Defendant's immediate release from
custody. A stay was not entered by the circuit court and the Defendant was released with no
conditions. The State thereafter filed this Appeal seeking reversal of the circuit court's order
and seeking an order returning the Defendant into custody to serve the remainder of his
sentence.
With these standards in mind, we address the issues before us.In reviewing challenges to the findings and conclusions of the circuit court in a habeas corpus action, we apply a three-prong standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard; the underlying factual findings under a clearly erroneous standard; and questions of law are subject to a de novo review.
The circuit court found that the Defendant received ineffective assistance of
counsel on several grounds. These grounds are that Defendant's trial counsel: (1) failed to
adequately prepare for trial by not having the Defendant evaluated by a psychologist; (2)
failed to move that the trial court edit or redact prejudicial and irrelevant portions of the
Defendant's videotaped confession to law enforcement investigators before that video was
published to the jury; (3) invited, by way of questioning of a state witness, the introduction
of otherwise inadmissible evidence that there were other unnamed victims for which the
Defendant had not been charged in the indictment; (4) failed to object to multiple
inappropriate questions asked by the prosecutor to state witnesses, which resulted in the
witnesses testifying to inappropriate and prejudicial issues; (5) committed the Defendant to
testifying by stating in his opening statement that the Defendant would testify, which error
was compounded by the fact that trial counsel failed to properly prepare the Defendant for
such testimony; (6) failed to object to multiple inappropriate questions asked of the
Defendant by the prosecutor during cross examination; (7) failed to offer an instruction on
the definition of “custodian” as defined for the offenses set forth in the indictment; (8) failed
to object to the prosecutor's inappropriate comment made during closing argument regarding
the Defendant's exercise of his right to assistance of counsel; and (9) failed to object to other
prosecutorial misconduct committed during the prosecutor's closing argument.
In Syllabus Point 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995), we held that:
In the West Virginia courts, claims of ineffective assistance of counsel are to be governed by the two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1) Counsel's performance was deficient under an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different.
For clarity, we separately apply Miller's two-pronged standard to the facts of
the case before us.
A. Whether Trial Counsel's Performance was deficient under
an objective standard of reasonableness.
Initially, we note that:
In reviewing counsel's performance, courts must apply an objective standard and determine whether, in light of all the circumstances, the identified acts or omissions were outside the broad range of professionally competent assistance while at the same time refraining from engaging in hindsight or second- guessing of trial counsel's strategic decisions. Thus, a reviewing court asks whether a reasonable lawyer would have acted, under the circumstances, as defense counsel acted in the case at issue.
Syllabus Point 6, Miller, Id.
After carefully reviewing the record and briefs of the parties, we conclude that
it is unnecessary for us to decide whether the circuit court was correct in each of its
ineffective of assistance of counsel findings. Even if we assume that ineffective assistance
of counsel occurred in this case, we do not believe - under the facts of this specific case
- “there is a reasonable probability that, but for counsel's unprofessional errors, the result of
the proceedings would have been different.” Syllabus Point 5, Miller, supra.
B. Whether there is a reasonable probability that the
result of the proceedings would have been different.
Assuming that trial counsel's performance was deficient under an objective
standard of reasonableness, we do not find “there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceedings would have been different.”
Syllabus Point 5, Miller, supra.
In reaching this conclusion, we initially note that our cases define the standard “reasonable probability” as being a “probability sufficient to undermine confidence in the outcome.” State v. Layton, 189 W.Va. 470, 487, 432 S.E.2d 740, 757 (1993) (Citations omitted.). This same standard is also applied in our analysis of claims involving the State's failure to disclose evidence to the defendant. See State v. Fortner, 182 W.Va. 345, 353, 387 S.E.2d 812, 820 (1989), where we noted that suppressed evidence:
. . . is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome.
Having thoroughly considered the record, it is clear to this Court that there was
virtually no probability - reasonable or otherwise - that the outcome of the Defendant's trial
would have been different “but for” trial counsel's deficient representation.
The indictment charged the Defendant for offenses committed against three youthful victims. The undisputed admissible evidence adduced at trial demonstrates as follows:
The Defendant confessed. The Defendant confessed on not just one occasion, but on two occasions. The first confession was to Sgt. Robinson during the investigation of the offenses (which confession was published to the jury), and the second confession came through the Defendant's testimony at his trial. The Defendant confessed that he rubbed lotion on the nude body, including the nude bottom, of eleven-year-old D.G., and that he touched D.G.'s testicles. The Defendant confessed that he had twelve-year-old M.K. perform “strengthening exercises” in the nude, in front of the Defendant, and that he touched the M.K.'s testicles. The Defendant confessed that he had twelve-year-old C.C. drop his pants in front of him while he “measured” his inseam. To the extent that the Defendant's confessions alone were not enough, each of the three young boys involved testified at the Defendant's trial.
D.G. testified to having been told by the Defendant to get in a bath, and thereafter to the Defendant's having him perform “exercises” - nude - while the Defendant watched. After the exercises, that the Defendant performed faux “EMT” procedures, as well as measured the boy's body, recording those measurements in a small notebook that had “pictures of boys and girls naked in it.” D.G. further testified that the Defendant took D.G.'s testicles in his hand, holding them. Additionally, said the Defendant rubbed lotion on his bare buttocks and over other portions of his body.
M.K. testified that the Defendant had done almost the exact same thing to him as the Defendant had done to D.G. A distinguishing factor was that the Defendant lounged on his sofa while watching this young boy perform “exercises” in the nude, including bending over at the waist with his legs spread.
C.C. testified that at the team meeting described supra, the Defendant told all the boys that they must drop their pants if they wanted to play on the Defendant's little league team. The auspices for needing to have the boys drop their pants was to allow the Defendant to measure them for their uniform pants. C.C. testified that the Defendant touched his (C.C.'s) testicles through his underwear while the Defendant measured him. The Defendant did not deny that this occurred.
P.D., one of the boys at the “team meeting,” also described the events that occurred, including testifying that the Defendant told the boys, when one protested having to drop their pants, that “If you don't strip down then you won't be playing this year.” Towards the end of the meeting, P.D. said that the Defendant told all the boys “Everything that happens stays here.”
D.G.'s father also testified. Mr. G testified that the team meeting had been scheduled to take place at one of the local ballfields, and that Mr. G was to deliver the team uniforms to the ballfield where the fittings would take place. Mr. G testified that when he got to the ballfield, no one was there. Asking people who were at the ballfield if they knew where the team was, Mr. G was told that the Defendant had moved the meeting to his house. When Mr. G arrived at the Defendant's house, the meeting had ended. Mr. G had the boys' uniforms, including the pants, with him. Mr. G further testified that he had been coaching the little league teams since 1982, and that they had never measured the inseams of the boys to fit them for their uniform pants.
All of the charged offenses in the Defendant's indictment required a finding of sexual contact. Sexual contact, as defined by W.Va. Code, 61-8B-1(6) [2000], was (See footnote 1) defined in as follows:
“Sexual contact” means any intentional touching, either directly or through clothing, of the anus or any part of the sex organs of another person, or the breasts of a female or intentional touching of any part of another person's body by the actor's sex organs, where the victim is not married to the actor and the touching is done for the purpose of gratifying the sexual desire of either party.
In addition to sexual contact, the charged offenses of Sexual Abuse in the First Degree required a finding that the Defendant was more than fourteen years old and the victim less than twelve years old. Sexual Abuse in the Third Degree required a finding, in addition to sexual contact, that the defendant was four or more years older than the victim and that the victim was less than sixteen years old. Sexual Abuse by a guardian required, in addition to a finding of sexual contact, that the Defendant was a parent, custodian or guardian at the time of the charged offenses.
The factual basis for a jury's finding of “sexual contact” is very clear from our summary of the undisputed facts of this case. The Defendant admits to having touched the testicles of two of these young boys, but denied that the touching was for purposes of sexual gratification. The Defendant does not recall, but did not deny, touching C.C.'s testicles through his underwear when measuring him at the team meeting. On the other hand, C.C. testified that the Defendant did touch his testicles through his underwear.
An effective attorney could not have excluded the undisputed evidence and confessions from being introduced at trial. A reasonable jury could easily conclude that the entire “meeting” and the touching of the three young boys constituted proof of sexual contact for the purpose of Defendant's sexual gratification.
With regard to the three counts of sexual abuse by a guardian set forth in the indictment, the operative definition in effect at the time of the offenses was set forth in W.Va. Code, 61-8D-6-l(4)[1998], which defined a “custodian” as
. . . a person over the age of fourteen years who has or shares actual physical possession or care and custody of a child on a full-time or temporary basis, regardless of whether such person has been granted custody of the child by any contract, agreement or legal proceeding. “Custodian” shall also include, but not be limited to, the spouse of a parent, guardian or custodian, or a person cohabiting with a parent, guardian or custodian in the relationship of husband and wife, where such spouse or other person shares actual physical possession or care and custody of a child with the parent, guardian or custodian.
The record shows that M.K. was left alone in the Defendant's care by M.K.'s mother who temporarily entrusted her son into the Defendant's care. D.G.'s father also temporarily entrusted his son into the Defendant's care. C.C. was also left in the Defendant's temporary care when the Defendant ordered that the parents could not attend the team meeting and were to come back later. The Defendant, a deputy sheriff and little league baseball team coach, was trusted by not only the boys' parents, but by the boys - he was “Coach.” Under these undisputed facts, a reasonable jury could easily find that the Defendant had “actual physical possession or care and custody of a child on a . . . temporary basis” and during that period the Defendant subjected the boys to sexual contact.
A defendant is not denied counsel merely because the prosecution has been permitted to introduce evidence of guilt - even evidence so overwhelming that the attorney's job of gaining an acquittal is rendered impossible. In such circumstances the accused continues to enjoy the assistance of counsel; the assistance is simply not worth much.