Russell C. Phillips
Teresa A. Tarr
Assistant Attorney General
Charleston, West Virginia
Attorney for the Appellee
The Opinion of the Court was delivered PER CURIAM.
"A habeas corpus proceeding is not a substitute for a
writ of error in that ordinary trial error not involving
constitutional violations will not be reviewed." Syllabus Point 4,
State ex rel. McMannis v. Mohn, 163 W. Va. 129, 254 S.E.2d 805
(1979), cert. denied, 464 U.S. 831, 104 S. Ct. 110, 78 L. Ed. 2d
This is an appeal from an order of the Circuit Court of
Mineral County, entered on October 29, 1991, in a habeas corpus
proceeding. The circuit court denied the appellant the right to
obtain a transcript of an in camera hearing, held on May 5, 1983,
which preceded the appellant's trial in June of 1983 for first-degree murder. At trial, the appellant was convicted without a
recommendation of mercy and, on appeal, we affirmed the conviction
in State v. Phillips, 176 W. Va. 244, 342 S.E.2d 210 (1986).
The attorney general, in his response, indicates that the
official court reporter at the trial left that employment in
January of 1985. It also appears that the in camera hearing
evidence was not transcribed on the original criminal appeal. In
view of our habeas corpus law, we do not find the lack of the
transcript of the in camera hearing to be significant.
Traditionally, we have held that habeas corpus is not a
substitute for an appeal and that a showing of error of a
constitutional dimension is required in order to set aside a
criminal conviction in a collateral attack by writ of habeas
corpus. We summarized this principle in Syllabus Point 4 of State
ex rel. McMannis v. Mohn, 163 W. Va. 129, 254 S.E.2d 805 (1979),
cert. denied, 464 U.S. 831, 104 S. Ct. 110, 78 L. Ed. 2d 112
"A habeas corpus proceeding is not a
substitute for a writ of error in that
ordinary trial error not involving
constitutional violations will not be
See also Syllabus Point 9, State ex rel. Boso v. Hedrick, 182
W. Va. 701, 391 S.E.2d 614 (1990); Syllabus Point 7, Cole v. White,
180 W. Va. 393, 376 S.E.2d 599 (1988); Syllabus Point 2, Edwards v.
Leverette, 163 W. Va. 571, 258 S.E.2d 436 (1979).
Here, the appellant's assertion is essentially one of
trial error, similar to an assignment of error made and rejected in
his appeal concerning introduction of rebuttal testimony by the
State. At trial, the State, in its case-in-chief, had introduced
a statement of the appellant in which he said that he met an
individual by the name of "Stretch" or "something like that" in the
Loop Club Parking lot in Elkins, West Virginia. This individual
supposedly rode with the appellant and the victim, Timothy Roberts,
to Parsons, West Virginia. The State then called as a witness a
person named Donald "Stretch" Murphy who testified that he lived
above the Loop Club. He stated that he had never seen the
appellant nor the victim.
The appellant, when he took the stand, stated that the Donald "Stretch" Murphy was not the person who had joined him and the victim in the Loop Club parking lot. In rebuttal, the State offered the testimony of a police officer who stated the appellant had, after his arrest, identified a photograph of Donald "Stretch"
Murphy as being that person. In the appellant's criminal appeal,
we found no prejudice in the admission of this evidence, noting
that "the circuit court permitted the appellant to take the stand
to rebut the impeachment evidence." 176 W. Va. at 248, 342 S.E.2d
In this habeas corpus proceeding, the appellant claims
that a transcript of the in camera hearing would demonstrate that
he did not identify Donald "Stretch" Murphy's photograph. However,
even if we assume this assertion is true, it is, at best, trial
error. From an evidentiary standpoint, the transcript might have
been used to cross-examine the police officer regarding his
rebuttal testimony. However, this claim does not rise to an error
of constitutional dimension and, therefore, is not reviewable under
State ex rel. McMannis v. Mohn, supra.
We, therefore, conclude that the trial court committed no
error and its order of October 29, 1991, is affirmed.