| Gregory L. Ayers, Esq.|
Deputy Public Defender
Kanawha County Public Defender Office
Charleston, West Virginia
Attorney for the Appellant
| Darrell V. McGraw, Jr., Esq.
Barbara H. Allen, Esq.
Managing Deputy Attorney General
Charleston, West Virginia
Attorneys for the Appellee
4. The defendant's double jeopardy rights are not violated by convictions of
separate counts of sexual assault, based on repeated violations of the victim within a
relatively short period, when there is conclusive evidence of elapsed time between separate
violations. Syl. pt. 7, State v. Woodall, 182 W.Va. 15, 385 S.E.2d 253 (1989)
5. 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. Syl. pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995)
6. 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. Syl. pt. 6, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995)
This case is before this Court upon the appeal of John McLaurin from the July 11, 2005, order of the Circuit Court of Kanawha County, West Virginia, denying him relief in habeas corpus. McLaurin was convicted in that Court in 1989 of two counts of kidnaping, without recommendations of mercy, and seven counts of sexual assault in the first degree. The trial court sentenced McLaurin upon the kidnaping convictions to two life terms without the possibility of parole and to 15 to 25 years each upon the seven sexual assault convictions. The sentences were directed to be served consecutively. In February 1991, this Court refused McLaurin's direct appeal.
In a separate habeas proceeding, the Circuit Court of Kanawha County later set aside one of the kidnaping convictions and two of the sexual assault convictions. The remaining six convictions were upheld. Those rulings were affirmed by this Court in State ex rel. McLaurin v. Trent, 203 W.Va. 67, 506 S.E.2d 322 (1998), cert. denied, 525 U.S. 1078, 119 S.Ct. 818, 142 L.Ed.2d 677 (1999). In the current proceeding, the Circuit Court set aside the other kidnaping conviction and sentence and awarded a new trial. Consequently, this appeal concerns the denial of habeas relief, pursuant to the July 11, 2005, order, with regard to five convictions of sexual assault in the first degree.
This Court has before it the petition for appeal, all matters of record and the
briefs and argument of counsel. Appellant McLaurin contends that the Circuit Court should
have granted him relief in habeas corpus because the trial court, in 1989, committed error:
(1) in denying his motion to continue in order to obtain a psychiatric evaluation concerning
his competency to stand trial, (2) in denying his motion to sever the charges against him and
(3) in refusing his limiting or cautionary instruction to the jury concerning the various
charges. Moreover, McLaurin contends that one of the sexual assault convictions violated
his protection against double jeopardy and, also, that he was denied the effective assistance
of counsel at his sentencing. Upon careful examination and upon the applicable standards
of review, this Court concludes that McLaurin's contentions herein are without merit.
Accordingly, the July 11, 2005, order of the Circuit Court of Kanawha County denying relief
in habeas corpus is affirmed.
During each of the three episodes, the assailant questioned the victim about her
family, admonished her to enjoy herself and ordered her to keep her eyes closed, although,
at times, he blindfolded B. S. In the case of C. C. and B. S., the assailant stated that he
wished he had met them under different circumstances.
Appellant McLaurin was arrested and, in April 1989, was indicted by a Kanawha County grand jury with regard to the above incidents. Counts 1-3 charged kidnaping and two instances of sexual assault in the first degree with regard to C. C. Counts 4-6 charged three instances of sexual assault in the first degree with regard to J. T. Counts 7-9 charged kidnaping and two instances of sexual assault in the first degree with regard to B. S. In November 1989, a jury trial was conducted at the conclusion of which McLaurin was found guilty of two counts of kidnaping, without recommendations of mercy, and seven counts of sexual assault in the first degree. McLaurin's post-trial motions were denied, and on December 1, 1989, the trial court sentenced him to the penitentiary as set forth above. Appellant McLaurin's direct appeal was refused by this Court in February 1991.
In In the Matter of an Investigation of the West Virginia State Police Crime Laboratory, 190 W.Va. 321, 438 S.E.2d 501 (1993), this Court noted that former State Police Officer Fred Zain had engaged in the systemic falsification of evidence relating to serology in criminal prosecutions. As a result, this Court held, inter alia, (1) that a prisoner would be entitled to habeas relief, if, absent the forensic evidence presented by Trooper Zain, the evidence was insufficient to support the verdict and (2) that a prisoner seeking such relief could be subject to DNA testing. (See footnote 3) Accordingly, because Trooper Zain had given incriminating serology testimony against appellant McLaurin at trial, McLaurin filed a petition for habeas relief in this Court. That petition, earlier in time than the one currently under review, was remanded to the Circuit Court of Kanawha County in December 1993 for further proceedings and, ultimately resulted in this Court's opinion in State ex rel. McLaurin v. Trent, supra.
In McLaurin, the Circuit Court concluded that, absent the Zain testimony, the evidence was insufficient to support the verdicts with regard to C. C. and that, therefore, McLaurin's convictions under Counts 1-3 of the indictment should be set aside. The Circuit Court determined that, although C. C.'s testimony was generally consistent with the testimony of J. T. and B. S., she was unable to positively identify her assailant. The Circuit Court, however, upheld the convictions pertaining to J. T. and B. S. With regard to Counts 4-6 relating to J. T., the Circuit Court noted, inter alia, that two of her co-workers identified appellant McLaurin at trial as the person that they saw in the hallway of the Holiday Inn within the hour of the perpetration of the sexual assault upon [J. T.]. The Circuit Court stated: The testimony of [the co-workers] appeared unequivocal on the subject of identity. (See footnote 4) As to Counts 7-9 relating to B. S., the Circuit Court noted that she was able to positively identify McLaurin at trial as her assailant. (See footnote 5) This Court, in McLaurin, found no error in the rulings of the Circuit Court and affirmed.
The trial court denied the motion to continue. The trial court noted that orders had been entered in the case in September 1988 and in April, June and August 1989, allowing a psychiatric examination but that, each time, McLaurin failed to cooperate. In addition, the trial court concluded that McLaurin was articulate, aware of the nature of the proceedings and able to assist his counsel. (See footnote 9)
In syllabus point 1 of State v. Milam, 159 W.Va. 691, 226 S.E.2d 433 (1976), this Court held:
No person may be subjected to trial on a criminal charge when, by virtue of mental incapacity, the person is unable to consult with his attorney and to assist in the preparation of his defense with a reasonable degree of rational understanding of the nature and object of the proceedings against him.
Syl. pt. 2, State v. Kent, 213 W.Va. 535, 584 S.E.2d 169 (2003); syl. pt. 2, State v. Sanders, 209 W.Va. 367, 549 S.E.2d 40 (2001); syl., State v. Jenkins, 180 W.Va. 651, 379 S.E.2d 156 (1989). To determine the existence of such incapacity or incompetence, mental examinations are commonly ordered in criminal cases. Pursuant to W.Va. Code, 27-6A-1(a) (1983), whenever a circuit court believes that a defendant in a felony case may be incompetent to stand trial, it may at any stage of the proceedings after the return of an indictment or the issuance of a warrant or summons against the defendant, order an examination of such defendant to be conducted by one or more psychiatrists, or a psychiatrist and a psychologist[.] In that regard, this Court has held that when a trial court is made aware of a possible problem with a defendant's competency, it is an abuse of discretion to deny a motion for a psychiatric evaluation. Syl. pt. 1, State v. Watson, 173 W.Va. 553, 318 S.E.2d 603 (1984); syl. pt. 4, State v. Demastus, 165 W.Va. 572, 270 S.E.2d 649 (1980).
In support of his requested habeas relief, appellant McLaurin relies upon State ex rel. Webb v. McCarty, 208 W.Va. 549, 542 S.E.2d 63 (2000), in which this Court granted a defendant, charged with third offense shoplifting, relief in prohibition because her court- ordered psychiatric evaluation had not been completed prior to the scheduled trial date. In Webb, the evaluation remained pending for a full year because of continuances and missed appointments. In prohibiting the trial until the completion of the evaluation, this Court stated: The judge was correct when he made his initial determination that Ms. Webb should receive a mental examination pursuant to W.Va. Code § 27-6A-1. While we understand his natural frustration that the examination was not complete a full year after he ordered it, that delay alone is not reason to forego the examination. 208 W.Va. at 554, 542 S.E.2d at 68. (See footnote 10)
Cited in the Webb opinion is State v. Paynter, 206 W.Va. 521, 526 S.E.2d 43 (1999), syllabus point 5 of which holds: When a trial judge orders a competency examination under W.Va. Code § 27-6A-1(a) (1983) (Repl. Vol. 1999), but the examination is not undertaken in the manner required by that statute, the court must grant a subsequent motion for a competency evaluation made by the defendant and order any such examinations as are necessary to comport with W.Va. Code § 27-6A-1(a). In Paynter, defense counsel moved for a psychiatric examination pursuant to W.Va. Code, 27-6A-1(a) (1983), to determine the defendant's competency to stand trial. The examination, however, was conducted by a psychologist who concluded that the defendant was competent. When defense counsel raised the issue again on the eve of trial, the circuit court declined to order further examinations. Thereafter, the defendant was convicted of murder of the second degree. In Paynter, this Court held that the defendant was entitled to a new trial because the circuit court had not properly resolved the issue of the defendant's competency, especially since the defendant had only been examined by a psychologist, whereas W.Va. Code, 27-6A-1(a) (1983), plainly requires that the examination be conducted by one or more psychiatrists, or a psychiatrist and a psychologist.
The circumstances herein lack the compelling quality which, in Webb and Paynter, resulted in the relief granted to the defendants. Here, as set forth above, the trial court entered orders on four separate occasions allowing a psychiatric examination. Each time, however, appellant McLaurin failed to cooperate, until he changed his mind in November 1989 and followed the advice of counsel shortly before the scheduled trial. As he indicated to the trial court during the hearing upon the motion to continue, his refusal to be examined was based, at least in part, upon his belief that the defense of insanity was not a credible defense. Moreover, neither the 1975 nor the 1987 psychological evaluations were presented and admitted in evidence during the hearing upon the motion to continue. In any event, the 1987 evaluation stated that McLaurin's overall profile appears much better than in previous testing. In addition, McLaurin's assertion of incompetency is contradicted by his pro se filings before the trial court. On June 15, 1989, prior to his motion to continue, McLaurin filed a pro se motion to dismiss the indictment, raising a constitutional issue and citing West Virginia and federal case law. Not long after the hearing on the motion to continue, McLaurin filed a pro se motion to recuse the trial judge and a pro se motion to obtain copies of certain medical records relating to J. T.
Finally, although the Circuit Court in denying habeas relief did not set forth
enumerated findings of fact and conclusions of law, it did address the issue of McLaurin's
competency in its July 11, 2005, order. As the Circuit Court stated:
[McLaurin] seems to argue that, because of his psychiatric issues, he was unable to make an intelligent decision regarding [an insanity] defense. However, this argument is contradicted by his trial counsel's testimony. According to Mr. Earles, [McLaurin] articulated a clear reason for his desire to avoid the use of a psychiatric defense. While this decision may have been unwise, the fact that he understood the issue well enough to give his reasons for opposing it demonstrates his competence to make this decision for himself. When the trial was only days away, he changed his mind, but by that time, in light of the Court's earlier cooperation with the development of the defense, the trial court was not in error for refusing to continue the trial. (See footnote 11)
For the above stated reasons, therefore, this Court is of the opinion that the Circuit Court did not commit error in denying relief in habeas corpus with regard to the trial court's refusal to continue appellant McLaurin's trial. (See footnote 12)
Next, appellant McLaurin contends that the Circuit Court should have granted
him relief in habeas corpus because the trial court violated his right to due process in denying
his pre-trial motion to sever. The motion alleged that the incidents relating to C. C., J. T. and
B. S. were unrelated and that, therefore, the trial court should sever the respective Counts for
separate trials. According to McLaurin, the cumulative effect at trial of the joined Counts
improperly reinforced an impression of guilt before the jury, especially as to the charges
concerning C. C. where the evidence of the State was weak. Moreover, McLaurin contends
that the Circuit Court should have granted him habeas relief because the trial court's refusal
to give his limiting instruction concerning the jury's consideration of the various charges
denied him a fair trial. (See footnote 13)
Rule 14(a) of the West Virginia Rules of Criminal Procedure provides, in part: If it appears that a defendant or the State is prejudiced by a joinder of offenses in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of the counts or provide whatever relief justice requires. Syllabus point 3 of State v. Hatfield, 181 W.Va. 106, 380 S.E.2d 670 (1988), holds:
Even where joinder or consolidation of offenses is proper under the
West Virginia Rules of Criminal Procedure, the trial court may order separate
trials pursuant to Rule 14(a) on the ground that such joinder or consolidation
is prejudicial. The decision to grant a motion for severance pursuant to W.Va.
R. Crim. P. 14(a) is a matter within the sound discretion of the trial court.
Syl. pt. 1, State v. Milburn, 204 W.Va. 203, 511 S.E.2d 828 (1998), cert. denied, 528 U.S. 832, 120 S.Ct. 88, 145 L.Ed.2d 75 (1999); syl. pt. 6, State v. Penwell, 199 W.Va. 111, 483 S.E.2d 240 (1996); syl., State v. Ludwick, 197 W.Va. 70, 475 S.E.2d 70 (1996).
Appellant McLaurin's assertion that the incidents involving C. C., J. T. and B. S. are unrelated is, at this point, deprived of significance by three prior adjudications to the contrary. First, in denying the motion to sever, the trial court concluded that the incidents were of a similar pattern and nature or part of a common scheme or plan. (See footnote 14) Second, in the separate habeas proceeding resulting in State ex rel. McLaurin v. Trent, supra, the Circuit Court in its final order stated in reference to B. S. that the modus operandi shows that the perpetrator held a gun to [B. S.'s] head; he inquired whether [she] enjoyed sex; he inquired if she had children. This 'MO' is identical to other victims in this case. Finally, in the habeas proceeding presently under consideration, the Circuit Court, in its July 11, 2005, order, specifically found:
Although there were some dissimilarities between the three sexual assaults, there were sufficient similarities and other factors connecting [McLaurin] to the crimes to constitute a common scheme, plan or design.
In this case, the three victims were all assaulted within less than a three week span of time. J. T. and B. S. were attacked within two days of one another. J. T. and C. C. were both in downtown Charleston when they were attacked. C. C. and B. S. were both kidnaped in parking lots when they attempted to get into their cars and were forced to drive to isolated spots, where the assaults occurred. In each case, the assailant attempted to prevent the victim from seeing his face. B. S. and C. C. were threatened with a gun, and J. T. threatened with a knife. The crimes all occurred within a short time after [McLaurin's] release from prison on an earlier rape conviction. All three identified their assailant as a black man. The assailant made remarks to B. S. and C. C. which were nearly identical.
As mentioned above, the standard of review pertaining to findings of fact in habeas corpus proceedings was set forth by this Court in syllabus point 1 of State ex rel. Postelwaite v. Bechtold, 158 W.Va. 479, 212 S.E.2d 69 (1975), cert. denied, 424 U.S. 909, 96 S.Ct. 1103, 47 L.Ed.2d 312 (1976): 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. Syl. pt. 2, State ex rel. Kidd v. Leverette, 178 W.Va. 324, 359 S.E.2d 344 (1987).
A review of the record herein reveals that the above findings of the Circuit Court were amply supported by the evidence which included testimony elicited during the omnibus habeas corpus hearing and during the underlying trial. Accordingly, based upon the standards set forth in Hatfield and Postelwaite, this Court is of the opinion that the conclusion to join the incidents concerning C. C., J. T. and B. S. for trial was protected by the parameters of sound discretion. Parker v. Knowlton, Construction Company, 158 W.Va. 314, 329, 210 S.E.2d 918, 927 (1975). Consequently, McLaurin was not entitled to relief in habeas corpus with regard to the denial of the motion to sever.
Nor did the trial court commit error in refusing to give McLaurin's limiting instruction. That instruction, Defendant's Instruction No. 8, stated:
The Court instructs the jury that you are to make no presumption of the defendant's guilt of the offenses of kidnaping and sexual assault on [C. C.] or [J. T.] because of evidence offered in the case of [B. S.]. The evidence offered by the State in support of the offenses charged as to each such victim must separately prove such offenses against such victim beyond a reasonable doubt. If you find that the evidence offered to prove the offenses charged is insufficient to prove that John McLaurin was the perpetrator of the offenses against [J. T.] or [C. C.] you must find the accused not guilty of all six such Counts.
McLaurin asserts that the instruction was necessary to inform the jury that, in deciding his guilt or innocence as to each victim, the jury could not consider evidence relating to the other victims. In the current habeas proceeding, however, the Circuit Court concluded that the instruction was not a correct statement of the law and found no error on the part of the trial court in refusing it.
Although the Circuit Court did not elaborate as to why Defendant's Instruction No. 8 was not a correct statement of the law, the instruction is defective because it is drafted too narrowly to serve its intended purpose, i.e., it warns the jury solely upon the effect of the evidence concerning B. S. upon their deliberation with regard to C. C. and J. T. Moreover, not only did the trial court otherwise instruct the jury that guilt as to each Count was to be predicated upon proof beyond a reasonable doubt, the trial court gave Defendant's Instruction No. 14 which stated:
The Court instructs the jury that even though circumstances may be such as to arouse a strong suspicion of the defendant's guilt of an offense, if those circumstances do not prove beyond a reasonable doubt the actual commission of the crime as charged, including each and every element thereof and the identity of the accused as the perpetrator you must find the defendant not guilty of such conduct.
In any event, the requirement of such limiting instructions and any duty on the part of the trial court to correct Defendant's Instruction No. 8 to the contrary, appellant McLaurin's contention concerning the instruction is unpersuasive in the context of this Court's opinion in State ex rel. McLaurin v. Trent, supra. In McLaurin, following the setting aside of the convictions relating to C. C., this Court upheld the Circuit Court's ruling that the convictions relating to J. T. and B. S. stood on their own merit, regardless of the joinder of the charges based upon common scheme or plan. Consequently, in view of the strength of the inculpatory evidence, as found in McLaurin, proposed Defendant's Instruction No. 8 becomes of diminished import. As the McLaurin opinion states:
While the [Circuit Court] indicated the same modus operandi appeared in all three cases, that evidence was not the basis for the Circuit Court upholding the convictions for Counts four through nine. Instead, witness identifications along with other compelling evidence proved the basis for sustaining the jury's verdicts of guilt with respect to these Counts.
203 W.Va. at 73, 506 S.E.2d at 328. In that regard, the July 11, 2005, order of the Circuit Court in the current proceeding observes: B. S. was able to identify [McLaurin] as her assailant. Furthermore, two maids saw [McLaurin] near the time and at the motel where J. T. was sexually assaulted.
Thus, this Court is of the opinion that the Circuit Court committed no error in
denying relief in habeas corpus with respect to Defendant's Instruction No. 8.
The next assignment of error in the denial of habeas relief concerns McLaurin's convictions of sexual assault in the first degree against J. T. As stated above, J. T. was working as a cleaning maid at the Holiday Inn Civic Center in Charleston when, alone in one of the rooms, she was suddenly attacked and sexually assaulted three times by an assailant brandishing what appeared to be an ice pick. Specifically, J. T. testified at trial that she was grabbed from behind in the bathroom and, following a struggle, ordered to get on the floor in the bedroom area. While on her hands and knees, the assailant sexually assaulted her with his fingers, asked her about her family and admonished her to enjoy it. While still on her hands and knees, the assailant sexually penetrated her with his penis. Then, the assailant ordered J. T. to get on her back and told her to keep her eyes shut. He then sexually penetrated her again with his penis. (See footnote 15) Thereafter, he told her to stand up whereupon he struck her twice in the face with his fist. The assailant then ordered J. T. to the floor again where
he attempted to shove her under the bed before he left the scene. Counts 4 and 5 of the indictment charged McLaurin with sexually assaulting J. T. by sexual intercourse, and Count 6 charged him with sexually assaulting J. T. with his fingers.
Appellant McLaurin contends that his conviction under Count 5 of the indictment, alleging the second act of sexual intercourse, violated his protection against double jeopardy. Specifically, McLaurin asserts that, because there was practically no elapsed time between the acts of sexual intercourse alleged in Counts 4 and 5, his conviction under Count 5 resulted in a multiple punishment for the same offense. (See footnote 16) However, as reflected in its July 11, 2005, order, the Circuit Court found McLaurin's assertion to be without merit.
In so ruling, the Circuit Court relied upon State v. Woodall, 182 W.Va. 15, 385 S.E.2d 253 (1989), syllabus point 7 of which holds: The defendant's double jeopardy rights are not violated by convictions of separate counts of sexual assault, based on repeated violations of the victim within a relatively short period, when there is conclusive evidence of elapsed time between separate violations. State v. Lola Mae C., 185 W.Va. 452, 456, 408 S.E.2d 31, 35 (1991). In Woodall, a woman was abducted in a parking lot, driven off in her own car by the assailant and suffered numerous sexual offenses committed against her, including multiple rapes, until released forty-five minutes later. The following month, another woman was similarly abducted and suffered numerous sexual offenses committed against her, including multiple rapes, until released approximately one hour later. In rejecting the appellant's double jeopardy claim following his convictions and sentencing for those acts, this Court stated, in Woodall, as follows: The victims' testimony made a sufficient showing of elapsed time between the separate acts, and we find no error in allowing the several counts to go to the jury. 182 W.Va. at 25, 385 S.E.2d at 263. (See footnote 17)
Pursuant to W.Va. Code, 61-8B-1(7) (1986) (since amended), the phrase sexual intercourse is defined, in part, as any act between persons not married to each other involving penetration, however slight, of the female sex organ by the male sex organ [.] Here, J. T. testified that while she was on her hands and knees the assailant then ordered her on her back and told her to keep her eyes shut. At that time, according to the evidence of the State, the second sexual assault occurred, also involving penetration. In view of J. T.'s testimony, this Court agrees with the assertion of the State, in these circumstances, that to the victim of a brutal rape, the time it takes to follow the perpetrator's order to change positions so that the rape can begin anew is surely 'elapsed time' within the meaning of Woodall. McLaurin's contention concerning the alleged double jeopardy violation is, therefore, unconvincing.
Equally unconvincing is appellant McLaurin's assertion that the failure of his trial counsel to present any mitigating circumstances on his behalf during the sentencing hearing constituted ineffective assistance of counsel. Although the Circuit Court, in its order of July 11, 2005, did not address that assertion directly, the Circuit Court concluded that McLaurin had not shown ineffective assistance of trial counsel with regard to voir dire, the issues surrounding the serology evidence, or the development of psychiatric and alibi defenses.
In syllabus points 5 and 6 of State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995), this Court held:
5. 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.
6. 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.
Syl. pts. 3 and 4, State ex rel. Quinones v. Rubenstein, 218 W.Va. 388, 624 S.E.2d 825 (2005); syl.. pts. 1 and 2, State ex rel. Edgell v. Painter, 206 W.Va. 168, 522 S.E.2d 636 (1999).
At McLaurin's sentencing hearing, his trial counsel moved for a sixty day pre- sentencing study. The motion was denied. The hearing then proceeded with McLaurin speaking upon his own behalf prior to the formal imposition of sentence. His trial counsel remained silent. During the omnibus habeas corpus hearing in the current proceeding, Steven Miller, one of McLaurin's trial counsel, explained his silence by suggesting that nothing was presented because McLaurin was bitter about having been convicted and was threatening to have words with the judge. Moreover, Miller stated that he would have told the trial court that McLaurin had psychiatric problems, but he did not do so because McLaurin was fearful of being branded as a looney by the inmates at the penitentiary.
In view of Miller's testimony, and in view of the fact that McLaurin stood before the sentencing court convicted of nine felonies after having previously been released from the penitentiary following sentences for rape, robbery and felonious assault, this Court is of the opinion that the decision of trial counsel to forgo the attempt to mitigate McLaurin's sentence did not constitute ineffective assistance of counsel. In that regard, McLaurin has not made clear in this proceeding what mitigating circumstances trial counsel should have presented.