Filed: May 18, 1995
Timothy L. Sweeney
St. Marys, West Virginia
Attorney for Appellee
John M. Butler
St. Marys, West Virginia
Attorney for Appellant
JUSTICE CLECKLEY delivered the Opinion of the Court.
JUSTICE BROTHERTON did not participate.
RETIRED JUSTICE MILLER and JUDGE FOX sitting by temporary assignment.
1. Collateral estoppel will bar a claim if four
elements are met: (1) The issue previously decided is identical to
the one presented in the action in question; (2) there is a final
adjudication on the merits of the prior action; (3) the party
against whom the doctrine is invoked was a party or in privity with
a party to a prior action; and (4) the party against whom the
doctrine is raised had a full and fair opportunity to litigate the
issue in the prior action.
2. Relitigation of an issue is not precluded when a new
determination of the issue is warranted by differences in the
quality or extensiveness of the procedures followed in two courts.
Where the procedures available in the first court may have been
tailored to the prompt, inexpensive determination of small claims,
a compelling reason exists not to apply collateral estoppel.
3. For purposes of issue preclusion, issues and
procedures are not identical or similar if the second action
involves application of a different legal standard or substantially
different procedural rules, even though the factual settings of
both suits may be the same.
4. "For issue or claim preclusion to attach to quasi-
judicial determinations of administrative agencies, at least where
there is no statutory authority directing otherwise, the prior decision must be rendered pursuant to the agency's adjudicatory
authority and the procedures employed by the agency must be
substantially similar to those used in a court. In addition, the
identicality of the issues litigated is a key component to the
application of administrative res judicata or collateral estoppel."
Syllabus Point 2, Vest v. Board of Educ. of the County of Nicholas,
___ W. Va. ___, ___ S.E.2d ___ (No. 22547 2/17/95).
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
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.
7. To trigger application of the "plain error"
doctrine, there must be (1) an error; (2) that is plain; (3) that
affects substantial rights; and (4) seriously affects the fairness,
integrity, or public reputation of the judicial proceedings.
8. Under the "plain error" doctrine, "waiver" of error
must be distinguished from "forfeiture" of a right. A deviation
from a rule of law is error unless there is a waiver. When there
has been a knowing and intentional relinquishment or abandonment of
a known right, there is no error and the inquiry as to the effect
of a deviation from the rule of law need not be determined. By
contrast, mere forfeiture of a right--the failure to make timely
assertion of the right--does not extinguish the error. In such a
circumstance, it is necessary to continue the inquiry and to
determine whether the error is "plain." To be "plain," the error
must be "clear" or "obvious."
9. Assuming that an error is "plain," the inquiry must proceed to its last step and a determination made as to whether it affects the substantial rights of the defendant. To affect substantial rights means the error was prejudicial. It must have affected the outcome of the proceedings in the circuit court, and the defendant rather than the prosecutor bears the burden of persuasion with respect to prejudice.
The defendant, Susan Miller, appeals her September 29,
1993, conviction by jury of the offense of battery. By order dated
October 18, 1993, the Circuit Court of Pleasants County entered the
guilty verdict and ordered the defendant to pay costs.See footnote 1 The
defendant was not sentenced to serve any time in jail for the
offense.See footnote 2 The defendant asserts on appeal to this Court that the
trial court erred by refusing to grant her motion to dismiss the
battery charge on the grounds of res judicata and/or collateral
estoppel. The defendant also claims ineffective assistance of
counsel and plain error by the trial court's failure to give a
The defendant was employed as a licensed practical nurse at the Colin Anderson Center, which is a state-operated facility for the mentally retarded located near St. Marys, West Virginia. On February 10, 1992, the defendant was working at the Center when a staff psychologist, Christopher Northrup, observed her slapping a male patient's head. As a result of the incident, the defendant's employment was terminated and a battery charge was brought against her. The defendant denies she slapped the patient and contends Mr. Northrup misperceived what he saw.
At the time of the incident, the male patient was twenty-
four years old. According to his individual habilitation plan, he
is severely mentally retarded with an I.Q. of 22 and an estimated
mental age of three years and nine months. In addition, the male
patient has several maladaptive behaviors including noncompliance
and aggression. He typically speaks only in one- or two-word
The defendant testified at trial that she was at the
doorway of a living area when she witnessed the male patient begin
to pick on a female patient who was known to have an "explosive
personality" and who was sleeping on a couch. The defendant stated
the male patient went over to the female patient, picked up her
arm, and appeared as if he was going to bite it. The defendant
said she intervened and took both arms of the male patient, pulled
him back across the room to another couch, where he previously was
sitting, and told him not to bother the female patient. She then
"shoved" on his arms and chest to get him to sit down. He did sit,
but then began to get up again so the defendant said she "shoved"
him back down to a sitting position. While she was shoving him
down the second time, Mr. Northrup came into the room, saw what was
transpiring, called the defendant's name, and went over to the male patient. The defendant then left the room to finish dispensing
medication to the other patients.
Mr. Northrup testified that when he entered the room he
observed the defendant standing near the end of a coffee table.
The coffee table was askew and was wedged against a couch. Mr.
Northrup described the angle of the coffee table and the couch as
creating a funnel shape with the defendant standing near the open
end of the funnel "in a way that would prevent somebody from
getting through" the area. Mr. Northrup stated he saw the
defendant holding back her left hand which had a lit cigarette in
it. It seems from the transcript that Mr. Northrup demonstrated
that the defendant's right hand was outstretched in front of her.See footnote 3
At that time, the male patient was "half sitting . . . not touching
but kind of cowered over" a couch.
Mr. Northrup said he heard the defendant tell the male
patient "'you're not going to bite her,' and she shouted at him,
and then from about a foot and a half or so away, brought her hand
against the side of his head in a slapping motion, at which point
he went backward on the couch[.]" Mr. Northrup claimed he "shouted
in horror" and called the defendant's name "in a very loud voice,"
at which time the defendant turned around and saw him. Mr. Northrup described the defendant as being "obviously very
emotionally agitated at the moment." In addition, he alleged she
told him something to the effect "she was very glad that she was
going to have time off coming up because she really needed it[.]"See footnote 4
Mr. Northrup said he went over to the male patient and asked him if
he had been hit. The male patient responded by placing his hand on
his head and saying yes. Both the defendant and Mr. Northrup
stated they did not discuss the incident before the defendant left
The day the incident occurred, the defendant was
suspended pending an investigation. The next day she met with an
administrator and an assistant administrator of the facility and
her employment was terminated. During the trial, the prosecuting
attorney called several witnesses who testified it was not within
the facilities procedures and it was inappropriate to slap a
After her employment was terminated, the defendant filed
a grievance with the West Virginia Education and State Employees
Grievance Board (Grievance Board). After a Level IV administrative
hearing, the administrative law judge (ALJ) issued a decision,
dated June 11, 1993, in favor of the defendant/grievant. The
decision stated, inter alia, that the employer "failed to prove, by a preponderance of evidence that [the] Grievant engaged in patient
abuse on February 10, 1992, or at any other time." The decision
also ordered the employer to reinstate the grievant to her previous
employment with full back pay.See footnote 5 The employer appealed this
decision, and it was affirmed by the Circuit Court of Pleasants
County by order entered September 1, 1993.
The defendant first argues that because she was exonerated administratively on the charge of patient abuse, the prosecuting attorney was barred from pursuing the criminal battery charge against her on the grounds of res judicata and/or collateral estoppel. For reasons discussed below, we find the defendant's argument unpersuasive.
We begin by stating the doctrines of res judicata, or
claim preclusion, and collateral estoppel, or issue preclusion, are
closely related. Res judicata generally applies when there is a
final judgment on the merits which precludes the parties or their
privies from relitigating the issues that were decided or the
issues that could have been decided in the earlier action. See Allen v. McCurry, 449 U.S. 90, 94, 101 S. Ct. 411, 414, 66 L.Ed.2d
308, 313 (1980); In Re Estate of McIntosh, 144 W. Va. 583, 109
S.E.2d 153 (1959). A claim is barred by res judicata when the
prior action involves identical claims and the same parties or
their privies. Collateral estoppel, however, does not always
require that the parties be the same. Instead, collateral estoppel
requires identical issues raised in successive proceedings and
requires a determination of the issues by a valid judgment to which
such determination was essential to the judgment.See footnote 6 Conley v.
Spillers, 171 W. Va. 584, 301 S.E.2d 216 (1983); Lane v. Williams,
150 W. Va. 96, 100, 144 S.E.2d 234, 236 (1965). As counsel for the
defendant suggested during oral argument on appeal, the issue here
is whether collateral estoppel barred the criminal prosecution.
Collateral estoppel will bar a claim if four elements are
met: (1) The issue previously decided is identical to the one
presented in the action in question; (2) there is a final
adjudication on the merits of the prior action; (3) the party
against whom the doctrine is invoked was a party or in privity with
a party to a prior action; and (4) the party against whom the
doctrine is raised had a full and fair opportunity to litigate the
issue in the prior action.
The doctrines of res judicata and collateral estoppel
were developed in the context of judicial proceedings, but may be
applied to administrative actions as well. See 2 Restatement
(Second) of Judgments § 83 (1982). Thus, the findings and
conclusions of an administrative agency may be binding upon the
parties in a subsequent proceeding if the agency that rendered the
decision acted in a judicial capacity and resolved disputed issues
of fact which the parties had an opportunity to litigate. See Vest
v. Board of Educ. of the County of Nicholas, ___ W. Va. ___, ___
S.E.2d ___ (No. 22547 2/17/95).See footnote 7 See also University of Tenn. v.
Elliott, 478 U.S. 788, 797-98, 106 S. Ct. 3220, 3225-26, 92 L.Ed.2d
635, 645-46 (1986), quoting United States v. Utah Constr. & Mining
Co., 384 U.S. 394, 421-22, 86 S. Ct. 1545, 1559-60, 16 L.Ed.2d 642,
660-61 (1966), and citing Kremer v. Chemical Constr. Corp., 456
U.S. 461, 484-85 n.26, 102 S. Ct. 1883, 1899 n.26, 72 L.Ed.2d 262,
282 n.26 (1982).
"'Collateral estoppel' is an awkward phrase, but it
stands for an extremely important principle in our adversary system of justice." Ashe v. Swenson, 397 U.S. 436, 443, 90 S. Ct. 1189,
1194, 25 L.Ed.2d 469, 475 (1970), limited on other grounds Dowling
v. United States, 493 U.S. 342, 110 S. Ct. 668, 107 L.Ed.2d 708
(1990). It is "that aspect of the doctrine of [collateral
estoppel] which serves to estop the relitigation by parties and
their privies of any right, fact or legal matter which is put in
issue and has been once determined by a valid and final judgment of
a court of competent jurisdiction." State v. Wilson, 180 Conn.
481, 485, 429 A.2d 931, 933 (1980). (Citations omitted). See also
1 Restatement (Second) of Judgments § 27 (1982).See footnote 8 In principle,
the doctrine of collateral estoppel applies to criminal cases as
well as civil proceedings. See United States v. Ragins, 840 F.2d
1184, 1194 (4th Cir. 1988); State v. Porter, 182 W. Va. 776, 392
S.E.2d 216 (1990).See footnote 9
This case is the first opportunity, however, that we have
had to consider whether collateral estoppel operates to bar
relitigation in a state criminal proceeding of issues previously decided by a state administrative agency.See footnote 10 The State's argument
is essentially twofold: (1) The issue raised and the procedure
used at the administrative hearing were not substantially the same
as those raised and used in the criminal prosecution of the
defendant; and (2) the doctrine of collateral estoppel is not
applicable to the criminal proceeding against the defendant because
there is no privity between the Office of Prosecuting Attorney of
Pleasants County and the Department of Health and Human Resources,
which was represented by the West Virginia Attorney General's
Office with regard to the grievance.
We begin our analysis with a brief discussion of one
important exception to collateral estoppel. Section 28 of 1
Restatement (Second) of Judgments (1980) sets forth the exceptions
to the general rule of collateral estoppel or issue preclusion.
Section 28(3) provides that relitigation of an issue is not
precluded when "[a] new determination of the issue is warranted by
differences in the quality or extensiveness of the procedures
followed in two courts[.]" 1 Restatement (Second) of Judgments at
273. Comment d to Section 28 states that where "the procedures available in the first court may have been tailored to the prompt,
inexpensive determination of small claims," a compelling reason
exists not to apply collateral estoppel. 1 Restatement (Second) of
Judgments at 279. The simple procedure of the first forum "may be
wholly inappropriate to the determination of the same issues when
presented in the context of a much larger claim." 1 Restatement
(Second) of Judgments at 279. See Salida School District R-32-J v.
Morrison, 732 P.2d 1160, 1165 (Colo. 1987).
In our view, for purposes of issue preclusion, issues and
procedures are not identical or similar if the second action
involves application of a different legal standard or substantially
different procedural rules, even though the factual settings of
both suits may be the same. See Parklane Hosiery Co., Inc. v.
Shore, 439 U.S. 322, 331 n.15, 99 S. Ct. 645, 651 n.15, 58 L.Ed.2d
552, 562 n.15 (1979) ("[i]ndeed, differences in available
procedures may sometimes justify not allowing a prior judgment to
have estoppel effect in a subsequent action even between the same
parties"), limited on other grounds United States v. Mendoza, 464
U.S. 154, 104 S. Ct. 568, 78 L.Ed.2d 379 (1984). Therefore, not
only the facts but also the legal standards and procedures used to
assess them must be similar. 18 Charles A. Wright, Arthur R.
Miller & Edward H. Cooper, Federal Practice and Procedure § 4417 at
165 (1981), quoting Peterson v. Clark Leasing Corp., 451 F.2d 1291,
1292 (9th Cir. 1971).
In Vest, supra, we were faced with an analogous situation
to the case sub judice. Vest involved two questions certified to
this Court by the United States District Court for the Southern
District of West Virginia. The first question asked whether the
Grievance Board had subject-matter jurisdiction over a gender-based
discrimination claim. We held the Grievance Board had such
jurisdiction as defined by its own authorizing legislation.
However, we also held the Grievance Board did not have authority to
determine if an individual could make a claim under West Virginia's
Human Rights Act.
At the outset, we recognize the authorizing legislation
of the Grievance Board in the present case is different than it was
in Vest. Vest involved a substitute teacher who fell within a
certain class of educational employees whose grievances are
controlled by W. Va. Code, 18-29-1, et seq. On the other hand,
the grievance in the present case was governed by the more general
state employees' grievance procedure as set forth in W. Va. Code, 29-6A-1, et seq.See footnote 11 Nevertheless, the rationale underlying our
decision in Vest also is applicable to the present case.
For instance, in Vest, we relied upon the language of
W. Va. Code, 18-29-1 (1992), to point out that the grievance
procedure was developed "to provide the State's educational
employees with 'a simple, expeditious and fair process for
resolving [employment] problems[.]'" ___ W. Va. at ___, ___ S.E.2d
at ___. (Slip op. at 3). In addition, we also found "the
Grievance Board's authority extends only to resolving grievances
made cognizable by its authorizing legislation, that is, those
grievances recognized in W. Va. Code, 18-29-2 [(1992)]." ___
W. Va. at ___, ___ S.E.2d at ___. (Slip op. at 6). We further
stated it is clear there is no statutory authority "for the
Grievance Board to decide whether a person states a claim under the Human Rights Act." ___ W. Va. at ___, ___ S.E.2d at ___. (Slip
op. at 6).
Applying this same analysis to the present case, we find
the purpose of the grievance procedure under W. Va. Code, 29-6A-1,
et seq., is "to provide a procedure for the equitable and
consistent resolution of employment grievances[.]" W. Va. Code,
29-6A-1 (1988). (Emphasis added). Just as we determined the
Grievance Board has no authority to determine whether an individual
has a claim under the Human Rights Act, it is clear the Grievance
Board has no authority to resolve a criminal matter. Simply
stated, the purpose of the Grievance Board is to fairly and
efficiently resolve employment problems. As in Vest, however, this
conclusion is not to say the Grievance Board's factual findings and
conclusions of law may not overlap another area of the law, i.e.,
a discrimination claim or a criminal matter. We found in Vest that
in W. Va. Code, 18-29-2(a), the legislature gave the Grievance
Board the authority to hear a "discrimination" claim.See footnote 12 Therefore,
we concluded the Grievance Board did have subject-matter
jurisdiction over the claim.
Given our finding that the Grievance Board had
jurisdiction to entertain a gender-based discrimination claim, the
second certified question asked us to determine whether an action brought under the Human Rights Act would be barred if it previously
was presented to the Grievance Board by the same parties and
involved the same facts and circumstances. To resolve this
question, we stated in Syllabus Point 2 of Vest:
"For issue or claim preclusion to attach to quasi-judicial determinations of administrative agencies, at least where there is no statutory authority directing otherwise, the prior decision must be rendered pursuant to the agency's adjudicatory authority and the procedures employed by the agency must be substantially similar to those used in a court. In addition, the identicality of the issues litigated is a key component to the application of administrative res judicata or collateral estoppel."
Under this analysis, we found a decision by the Grievance Board had
no preclusive effects over human rights claims.
The criteria we adopted in Syllabus Point 2 of Vest is
equally applicable to the present case. The procedure employed at
a grievance proceeding is obviously much different than that
employed at a criminal trial. For instance, a criminal trial is
governed by the Rules of Criminal Procedure, while a grievance
proceeding is not. In addition, parties in a criminal proceeding
are afforded a wide variety of rules and statutory protections.
For example, reciprocal discovery is provided under Rule 16 of the
West Virginia Rules of Criminal Procedure. Likewise, the West
Virginia Rules of Evidence are strictly applied in criminal
proceedings. Moreover, under the Sixth Amendment to the United
States Constitution, a criminal defendant may invoke his rights to
a speedy and public trial before an impartial jury; "to be informed of the nature and cause of the accusation; to be confronted with
the witnesses against him; to have compulsory process for obtaining
witnesses in his favor, and to have Assistance of Counsel for his
defence." See also W. Va. Const. art. 3, § 14.
Although the purpose of the grievance procedure is to
provide for an "equitable" resolution of an employment problem,See footnote 13
the grievance procedure simply does not provide a grievant with the
same level of protection afforded a criminal defendant. Nor do we
find merit to the defendant's argument that because she was not
found guilty of patient abuse under the lower preponderance of the
evidence standard, she could not be convicted of battery beyond a
reasonable doubt.See footnote 14 As previously mentioned, the Grievance Board has no authority to resolve a criminal matter, and the procedures
employed and protections afforded at each proceeding are
significantly different. In fact, the salutary purposes of an
informal grievance procedure would be frustrated if collateral
estoppel were applied so as to subsequently limit a full and fair
consideration of the issue in a criminal case.
Moreover, we recognize the issue of whether an individual
was terminated wrongfully for patient abuse is not the same issue
as whether an individual committed a criminal act of battery. An
individual who has filed a grievance for wrongful termination may
argue a number of factors that would not be raised in a criminal
context. For instance, at a grievance proceeding, an individual
could argue that his or her termination was in violation of one of
the statutory provisions with regard to the termination procedure.
An individual also could assert that his or her termination was
based on a discriminatory motive or that he or she was given a much
harsher sanction than other employees accused of the same or
similar offenses. Indeed, in the present case, the ALJ
specifically determined in dicta that the grievant demonstrated she
was "similarly situated to other accused workers who were given far
lighter punishments" than she was given. Therefore, the ALJ
concluded the grievant established prima facie evidence of discrimination and the employer "failed to adequately articulate a
legitimate, nondiscriminatory reason for the distinctions[.]" No
such disparate-penalty defense is available to determine whether an
individual actually committed a criminal act of battery.See footnote 15
Similarly, we agree with the State that there is no
privity between the prosecuting attorney's office and the
Department of Health and Human Resources, which was represented by
the Attorney General's Office in the grievance proceedings.
"Privity is not established . . . from the mere fact that persons
may happen to be interested in the same question or in proving the
same facts." 46 Am. Jur. 2d Judgments § 532 (1969). While the
concept of privity is difficult to define precisely, it has been
held that "a key consideration for its existence is the sharing of
the same legal right by the parties allegedly in privity." BTC
Leasing, Inc. v. Martin, 685 S.W.2d 191, 198 (Ky. App. 1984). This
consideration is to ensure that the interests of the party against
whom collateral estoppel is being asserted have been adequately
represented because of his purported privity with a party at the initial proceedings. See BTC Leasing Inc., supra; 46 Am. Jur. 2d
Judgments § 532.See footnote 16
The defendant relies heavily on the fact that in both
proceedings the State of West Virginia was involved as a party to
the litigation. In the administrative hearing, the charging party
was the Department of Health and Human Resources, a state agency,
which was represented by the Attorney General's Office. Of course,
in the criminal prosecution, the State of West Virginia was
represented by the prosecuting attorney. We believe Sunshine
Anthracite Coal Co. v. Adkins, 310 U.S. 381, 60 S. Ct. 907, 84
L.Ed. 1263 (1940), is instructive. Although the Supreme Court
indicated that privity might exist between officers of the same
government, it pointed out that "[t]he crucial point is whether or
not in the earlier litigation the representative of the United
States had authority to represent its interests in a final
adjudication of the issue in controversy." 310 U.S. at 403, 60
S. Ct. at 917, 84 L.Ed. at 1276. (Citation omitted).
The analysis of Sunshine Anthracite Coal Co. compels the
conclusion that the Department of Health and Human Resources is not in privity with the prosecuting attorney's office.See footnote 17 The Department
of Health and Human Resources is granted statutory authority to
investigate complaints against personnel under its jurisdiction,
which was obviously its function in this instance, and, if such
complaints have validity, to take action against personnel, which
may consist of dismissal, suspension, the imposition of a
probationary period, or reprimand. The prosecuting attorney,
however, exercises powers and duties with respect to the
investigation and prosecution of criminal matters.
The purpose of an administrative proceeding, therefore,
is to determine whether a grievant, as a public employee, engaged
in an activity which warrants an adverse employment action, while
the prosecuting attorney's interest is in having guilt or innocence
of a defendant determined under the applicable criminal law and in
seeing that proper punishment is meted out in the event that the
criminal law has been violated.See footnote 18 The prosecuting attorney represents the broader public interests in the effective
administration of justice. See California v. Demery, 104 Cal.
App. 3d 548 163 Cal. Rptr. 814 (1980); Keating v. Department of
Natural Res., 140 Ga. App. 796, 232 S.E.2d 84 (1976); aff'd, 238
Ga. 605, 234 S.E.2d 519 (1977); Younge v. Board of Registration for
the Healing Arts, 451 S.W.2d 346 (Mo. 1969), cert. denied, 397 U.S.
922, 90 S. Ct. 910, 25 L.Ed.2d 102 (1970); People v. Morgan, 111
App. Div. 2d 771, 490 N.Y.S.2d 30 (1985). See generally Annot., 30
A.L.R.4th at 856 (1984).
Thus, we conclude that the State's interest in having
guilt or innocence determined is not adequately served in an
administrative proceeding because the prosecuting attorney has no
control over the timing, substance, or litigation of charges against the defendant at the grievance level. The State is not
collaterally estopped from prosecuting the defendant for criminal
battery because no privity exists.
For all the aforementioned reasons, we find the circuit
court did not commit error in denying the defendant's motion to
dismiss based upon her argument of res judicata and/or collateral
Once again we are presented on direct appeal with a claim of ineffective assistance of counsel. We have been asked on numerous occasions to review these claims on direct appeal. Therefore, we believe it is helpful to discuss why summary disposition of ineffective assistance claims on direct appeal is inappropriate.
As a threshold matter, it should be observed that "[t]he
mission of the appellate judiciary is neither to mull theoretical
abstractions nor to practice clairvoyance." Moore v. Murphy, 47
F.3d 8, 10 (1st Cir. 1995). To meet our review function, we must
match applicable principles of law to the discerned facts and
circumstances of the litigated case. When those facts are not
properly furnished to this Court, we are denied the basic tools
necessary to carry out our function. Thus, under those circumstances, we have found that issues, such as ineffective
assistance of counsel, were not ripe for direct appellate review.
See State v. Triplett, 187 W. Va. 760, 771, 421 S.E.2d 511, 522
(1992) ("it is the extremely rare case when this Court will find
ineffective assistance of counsel when such a charge is raised as
an assignment of error on a direct appeal").
Indeed, even in the broader context of appellate review,
should an appellant spurn his or her duty and drape an inadequate
or incomplete record around this Court's neck, this Court, in its
discretion, either has scrutinized the merits of the case insofar
as the record permits or has dismissed the appeal if the absence of
a complete record thwarts intelligent review. See Barefoot v.
Sundale Nursing Home, ___ W. Va. ___, ___ S.E.2d ___ (No. 22165
4/13/95); State v. Honaker, ___ W. Va. ___, ___ n.4, 454 S.E.2d 96,
101 n.4 (1994). Typically, this flexible approach is inappropriate
on direct appeals claiming ineffective assistance of trial counsel.
In cases involving ineffective assistance on direct appeals,
intelligent review is rendered impossible because the most
significant witness, the trial attorney, has not been given the
opportunity to explain the motive and reason behind his or her
trial behavior.See footnote 19
In this vein, we have held with a regularity bordering on
monotonous that if the record provided to us on direct appeal
proves to be so deficient as to preclude us from reaching a
reasoned determination on the merits of the ineffective assistance
claim, it is the defendant who must bear the brunt of an
insufficient record on appeal. See State v. Kilmer, 190 W. Va.
617, 631, 439 S.E.2d 881, 895 (1993); State v. Whitt, 184 W. Va.
340, 346, 400 S.E.2d 584, 590 (1990); State v. Wickline, 184 W. Va.
12, 17-20, 399 S.E.2d 42, 47-50 (1990); State v. Tesack, 181 W. Va.
422, 428, 383 S.E.2d 54, 60 (1989); State v. Chamberlain, 178
W. Va. 420, 427, 359 S.E.2d 858, 865 (1987). See also State v.
England, 178 W. Va. 648, 363 S.E.2d 725 (1987). The very nature of
an ineffective assistance of counsel claim demonstrates the
inappropriateness of review on direct appeal. To the extent that
a defendant relies on strategic and judgment calls of his or her
trial counsel to prove an ineffective assistance claim, the
defendant is at a decided disadvantage. Lacking an adequate
record, an appellate court simply is unable to determine the
egregiousness of many of the claimed deficiencies. Such a
situation exists here.
The standard for assessing the efficiency of counsel was
announced in Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L.Ed.2d 674 (1984). Strickland requires the defendant to
prove two things: (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."
466 U.S. at 694, 104 S. Ct. at 2068, 80 L.Ed.2d at 698. When
assessing whether counsel's performance was deficient, we "must
indulge a strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance[.]" 466 U.S.
at 689, 104 S. Ct. at 2065, 80 L.Ed.2d at 694. To demonstrate
prejudice, a defendant must prove there is a "reasonable
probability" that, absent the errors, the jury would have reached
a different result. 466 U.S. at 694, 104 S. Ct. at 2068, 80
L.Ed.2d at 698.
Our recent cases have made it clear that we have accepted
Strickland as part of our constitutional jurisprudence. In
Wickline v. House, 188 W. Va. at 348, 424 S.E.2d at 583, we stated
"[o]ur cases thus hold that a defendant who asserts a claim of
ineffective assistance of counsel must prove (1) that his legal
representation was inadequate, and (2) that such inadequacy
prejudiced his case. Much the same standards are found in
Strickland[.]" We now make it explicit, in the West Virginia
courts, claims of ineffective assistance of counsel are to be
governed by the two-pronged test established in Strickland. Thus,
it is necessary for us to review the defendant's claims under the
The defendant has asserted, in the absence of a developed
record, that her trial counsel failed to offer instructions on her
affirmative defense of self-defense and did not make timely and
appropriately specific objections to the trial court's general
charge or to those instructions submitted by the prosecution. At
the outset, we find these important points appear to be more than
mere technicalities. Indeed, we agree with the defendant that it
would be unusual for counsel to develop and rely upon self-defense
at trial and then offer no instructions on the defense.See footnote 20 Such a
maneuver is indicative of the lack of a trial strategy and "[n]o
competent defense attorney would go to trial without first
formulating an overall strategy." Welsh S. White, Effective
Assistance of Counsel in Capital Cases: The Evolving Standard of
Care, 1993 U. Ill. L. Rev. 323, 356. Effective trial counsel
typically prepares for a criminal defense by asking questions such
as: (1) What is the objective of the defense? (2) What is the
trial strategy to reach that objective? (3) How does one implement
that strategy? The record before us, however, does not
conclusively show the lack of a trial strategy.
The lesson to be drawn from our decisions is not that
counsel's performance always or even usually is deficient if
counsel fails to present available affirmative defense
instructions. Nor is the lesson that the presentation of an
affirmative defense instruction always will insulate counsel's
performance from being condemned as ineffective. Instead, our
decisions teach that a determination of whether counsel's
performance is constitutionally deficient depends upon the totality
of the circumstances when viewed through a lens shaped by the rules
and presumptions set down in Strickland and its progeny.
Under these rules and presumptions, the cases in which a
defendant may prevail on the ground of ineffective assistance of
counsel are few and far between one another. This result is no
accident, but instead flows from deliberate policy decisions this
Court and the United States Supreme Court have made mandating that
"[j]udicial scrutiny of counsel's performance must be highly
deferential" and prohibiting "[i]ntensive scrutiny of counsel and
rigid requirements for acceptable assistance[.]" Strickland, 466
U.S. at 689-90, 104 S. Ct. at 2065-66, 80 L.Ed.2d at 694-95. In
other words, we always should presume strongly that counsel's
performance was reasonable and adequate. A defendant seeking to
rebut this strong presumption of effectiveness bears a difficult
burden because constitutionally acceptable performance is not
defined narrowly and encompasses a "wide range." The test of
ineffectiveness has little or nothing to do with what the best lawyers would have done. Nor is the test even what most good
lawyers would have done. We only ask whether a reasonable lawyer
would have acted, under the circumstances, as defense counsel acted
in the case at issue. We are not interested in grading lawyers'
performances; we are interested in whether the adversarial process
at the time, in fact, worked adequately.
We find under the limited facts presented to us regarding
the performance of counsel, a reasonable lawyer certainly could
have made a tactical choice not to pursue the affirmative defense
of self-defense. Trial counsel may have believed the defendant
would be acquitted outright given the circumstances which gave rise
to the incident, an aggressive patient that was attempting to bite
another patient, and given the defendant's testimony that Mr.
Northrup misperceived what he saw and she never slapped the
patient.See footnote 21 There is much wisdom for trial lawyers in the adage
about leaving well enough alone.
Having presented substantial evidence, counsel was not
required to develop every conceivable defense that was available.
Nor was counsel required to offer a defense or instruction on every
conceivable defense. What defense to carry to the jury, what
witnesses to call, and what method of presentation to use is the epitome of a strategic decision, and it is one that we will seldom,
if ever, second guess. Obviously, lawyers always can disagree as
to what defense is worthy of pursuing "such is the stuff out of
which trials are made." Solomon v. Kemp, 735 F.2d 395, 404 (11th
Cir. 1984), cert. denied, 469 U.S. 1181, 105 S. Ct. 940, 83 L.Ed.2d
In spite of the possible tactical reason stated above,
we are asked in the present case to second guess what still may
appear to be a questionable strategic choice by trial counsel
without having the opportunity to hear from him. We believe the
most the defendant has proved from this record is the wholly
unremarkable fact that appellate counsel, with the absence of an
explanation from trial counsel and with luxury of time and the
opportunity to focus resources on specific facts of a made record,
inevitably will identify shortcomings in the performance of prior
counsel. Indeed, in retrospect, one always may identify
shortcomings, but perfection is not the standard for ineffective
assistance of counsel.
The widespread use of the tactic of attacking trial
counsel by showing what "might have been" proves that nothing is
clearer than hindsight--except perhaps the rule that we will not
judge trial counsel's performance through hindsight. See, e.g.,
Strickland v. Washington, 466 U.S. at 689, 104 S. Ct. at 2065, 80
L.Ed.2d at 694 ("[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting
effects of hindsight"). As is often said, nothing is so easy as to
be wise after the event. 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. We hold
that the mere fact that trial counsel failed to offer a viable
defense instruction is not alone a sufficient ground to prove
ineffectiveness of counsel.
It is apparent that we intelligently cannot determine the
merits of this ineffective assistance claim without an adequate
record giving trial counsel the courtesy of being able to explain
his trial actions. Our decision does not foreclose further
development of the ineffectiveness of counsel issue on a post-
conviction collateral attack, if that procedure is available to the
defendant. Nor do we hold that upon a properly developed record
the claim of ineffective counsel would be without merit. The
defendant must bear the resultant onus because she has the
responsibility of proving ineffective assistance of counsel and of
providing us with a sufficient record.See footnote 22
Finally, in addition to the ineffective assistance claim, the defendant makes reference to "plain error" as a means to obtain appellate review of the sufficiency of the trial court's general charge to the jury. During a conference to consider the instructions, the trial court asked defense counsel whether he wanted to offer any instructions. Defense counsel did not submit a self-defense instruction nor did he object to the trial court's failure to give such an instruction. To the contrary, counsel for the defendant explicitly stated to the trial judge that he was satisfied with the instructions as proposed by the court and that he had no objection to any portion of the jury charge. Thus, because counsel did not ask for an instruction when given the opportunity to do so and did not object to the lack of an instruction, any error by the trial court is foreclosed from appellate review unless it rises to the level of plain error.See footnote 23
"One of the most familiar procedural rubrics in the
administration of justice is the rule that the failure of a litigant to assert a right in the trial court likely will result"
in the imposition of a procedural bar to an appeal of that issue.
United States v. Calverly, 37 F.3d 160, 162 (5th Cir. 1994) (en
banc), cert. denied, ___ U.S. ___, 115 S. Ct. 1266, 131 L.Ed.2d 145
(1995). As the United States Supreme Court stated in United States
v. Atkinson, 297 U.S. 157, 159, 56 S. Ct. 391, 392, 80 L.Ed. 555,
557 (1936), "[t]his practice is founded upon considerations of
fairness to the court and to the parties and of the public interest
in bringing litigation to an end after fair opportunity has been
afforded to present all issues of law and fact." The "plain error"
doctrine grants appellate courts, in the interest of justice, the
authority to notice error to which no objection has been made.
As a general proposition, this Court has discretionary
authority to consider the legality and sufficiency of the trial
court's charge under the plain error doctrine. See W.Va.R.Crim.P.
30 & 52.See footnote 24 Our rules are nearly identical to the Federal Rules of
Criminal Procedure. Historically, the "plain error" doctrine
"authorizes [an appellate court] to correct only 'particularly
egregious errors' . . . that 'seriously affect the fairness,
integrity or public reputation of judicial proceedings[.]'" United
States v. Young, 470 U.S. 1, 15, 105 S. Ct. 1038, 1046, 84 L.Ed.2d
1, 12 (1985). (Citations omitted). Plain error warrants reversal
"solely in those circumstances in which a miscarriage of justice would otherwise result." United States v. Frady, 456 U.S. 152, 163
n.14, 102 S. Ct. 1584, 1592 n.14, 71 L.Ed.2d 816, 827 n.14 (1982).
In the seminal case of United States v. Olano, U.S. , ___,
113 S. Ct. 1770, 1776-79, 123 L.Ed.2d 508, 518-21 (1993), the
Supreme Court defined plain error as: (1) an error; (2) that is
plain; (3) that affects substantial rights; and (4) seriously
affects the fairness, integrity, or public reputation of the
judicial proceedings. Both Olano and Young are consistent with
cases from this Court. See Syl. pt. 6, in part, State v. Mayo, 191
W. Va. 79, 443 S.E.2d 236 (1994), quoting Syl. pt. 4, State v.
England, 180 W. Va. 342, 376 S.E.2d 548 (1988) (the plain error
"'doctrine is to be used sparingly and only in those circumstances
where substantial rights are affected, or the truth-finding process
is substantially impaired, or a miscarriage of justice would
otherwise result'"); Syl. pt. 5, State v. Wilson, 190 W. Va. 583,
439 S.E.2d 448 (1993) (same).
In Olano, the Supreme Court set forth, in comprehensive
fashion, the appropriate analytical model for dealing with errors
that were not brought to the attention of the trial court at the
time and in the manner required by the applicable rules of
procedure. The Supreme Court began its analysis by recognizing
that Rule 52(b) of the Federal Rules of Criminal Procedure
contemplates a single category of error that may be noticed--plain
error that affects the substantial rights of a defendant. The
Supreme Court continued by stating the first inquiry under the rule is whether there has in fact been error at all. The Supreme Court
said deviation from a rule of law is error unless there is a
waiver. Waiver, the Supreme Court emphasized, is the "`intentional
relinquishment or abandonment of a known right.'" U.S. at ,
113 S. Ct. at 1777, 123 L.Ed.2d at 519, quoting Johnson v. Zerbst,
304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L.Ed. 1461, 1466
(1938). As noted in United States v. Lakich, 23 F.3d 1203, 1207
(7th Cir. 1994), when there has been such a knowing waiver, there
is no error and the inquiry as to the effect of the deviation from
a rule of law need not be determined.
By contrast, mere forfeiture of a right--the failure to
make timely assertion of the right--does not extinguish the error.
In such a circumstance, it is necessary to continue the inquiry and
to determine whether the error is "plain." "Plain," noted the
Supreme Court in Olano, is synonymous with "'clear'" or
"'obvious.'" U.S. at , 113 S. Ct. at 1777, 123 L.Ed.2d at
519. Assuming that an error is "plain," the inquiry must proceed
to its last step and a determination made as to whether it affects
the substantial rights of the defendant. Normally, to affect
substantial rights means that the error was prejudicial. It must
have affected the outcome of the proceedings in the circuit court.
In addition, "[i]t is the defendant rather than the [prosecutor] who bears the burden of persuasion with respect to prejudice."
U.S. at , 113 S. Ct. at 1778, 123 L.Ed.2d at 520.See footnote 25
We need not go further at this juncture. We have carefully reviewed the trial record and find the trial court's failure to give the self-defense instructions did not rise to the level of plain error. In fact, we find there are two separate reasons for rejecting the defendant's plain error argument. First, the record is inadequate for us to determine whether there was any error at all in this case. As previously discussed, it is not clear to us that self-defense was relied upon by the defense. The defendant failed to provide us with testimony or an affidavit by her trial counsel or the transcript of counsel's closing argument which would give us insight into his choice of trial strategy. While there was some evidence which, if believed by the jury, would have justified a self-defense instruction, the record does not demonstrate clearly to us that self-defense was in fact intended by the introduction of this evidence. In State v. Spence, 182 W. Va. 472, 481, 388 S.E.2d 498, 507 (1989), we succinctly stated that "the plain error rule presupposes that the record is sufficiently developed to discern the error." (Footnote omitted). We adhere to this principle in the present case.See footnote 26 See also Frady, 456 U.S. at 163, 102 S. Ct. at 1592, 71 L.Ed.2d at 827 ("[b]y its terms, recourse may be had to [Rule 52(b)] only on appeal from a trial infected with error so 'plain' the trial judge and prosecutor were derelict in countenancing it, even absent the defendant's timely assistance in detecting it"). (Dictum; emphasis added).See footnote 27
The second and more significant reason we reject the
defendant's claim is because we find the defendant voluntarily
waived any right she had to have the jury instructed on self-
defense. Our survey of cases in this esoteric procedural corner of
the law convinces us that the defendant waived any issues she might
have had regarding an improper or insufficient jury charge. In
Lakich, supra, counsel was given ample time to review and think about how the jury should be instructed in response to its question
about entrapment. The court, after eliciting comments from
counsel, read its proposed instruction to them. Both counsel
explicitly agreed to the court's instruction. The court of appeals
held under these circumstances defendant waived any objections to
the instruction. 23 F.3d at 1207-08. Similarly, in United States
v. Rojo-Alvarez, 944 F.2d 959, 971 (1st Cir. 1991), the court held
there was a waiver when, after the court reworded an instruction in
response to the defendant's objection, defense counsel stated he
was satisfied with the reworded instruction. We believe the same
conclusion must be reached in the case sub judice. The defendant
has the burden on these issues, and, in our judgment, she failed to
meet this burden.
In sum, we find the criminal prosecution of the defendant was not barred on the grounds of res judicata and/or collateral estoppel as the result of the prior decision by the West Virginia Education and State Employees Grievance Board. In addition, we find the defendant did not meet her burden of proof to establish ineffective assistance, nor did she establish the trial court committed plain error by failing to give the jury a self-defense instruction. For the foregoing reasons, we affirm the final order of the Circuit Court of Pleasants County.
Footnote: 1 The defendant previously was convicted of battery before the Magistrate Court of Pleasants County and took a de novo appeal to the trial court.
Footnote: 2 By final order dated March 7, 1994, the trial court extended the defendant's appeal period.
Footnote: 3 The exact quote from the transcript is that the defendant "had a cigarette lighted in her left hand, holding it back like this, and her arm was outstretched like this, forward (indicating)." There is no detailed description in the transcript of what Mr. Northrup was demonstrating.
Footnote: 4 The defendant testified that at the end of her shift on the day this incident occurred she was scheduled to go on a thirty- day vacation.
Footnote: 5 The decision permitted the employer to make any appropriate offset of back pay, but also ordered the employer to give the grievant "experience credit" and "to remove any mention of this incident from [the grievant's] personnel files or other official records, and to refrain from ever relying upon other information regarding this incident to support action against [the grievant] or her interests."
Footnote: 6 Collateral estoppel is broader than the doctrine of res judicata because it applies to a cause of action different from that litigated in the original controversy. On the other hand, collateral estoppel is narrower because it does not apply to matters that could have been litigated but were not.
Footnote: 7 In Vest, ___ W. Va. at ___, ___ S.E.2d at ___ (Slip op. at 9), we stated "that for preclusion to attach to quasi-judicial determinations of administrative agencies, at least where there is no statutory authority directing otherwise, the prior 'decision must be rendered pursuant to the agency's adjudicatory authority and the procedures employed by the agency must be substantially similar to those used in a court[.]' Liller v. West Virginia Human Rights Comm'n, 180 W. Va. 433, 440, 376 S.E.2d 639, 646 (1988)." (Footnote omitted).
Footnote: 8 Our prior cases have recognized that the principles undergirding res judicata serve "to advance several related policy goals--(1) to promote fairness by preventing vexatious litigation; (2) to conserve judicial resources; (3) to prevent inconsistent decisions; and (4) to promote finality by bringing litigation to an end." Mellon-Stuart Co. v. Hall, 178 W. Va. 291, 298, 359 S.E.2d 124, 131 (1987), citing Pitsenbarger v. Gainer, 175 W. Va. 31, 330 S.E.2d 840 (1985); Conley, supra.
Footnote: 9 The United States Supreme Court in Ashe v. Swenson, supra, indicated the principle of collateral estoppel is embodied in the Double Jeopardy Clause of the Fifth Amendment which applies to the states through the Fourteenth Amendment.
Footnote: 10 The defendant argues this issue was decided in Mellon- Stuart Co., supra. Specifically, the defendant states "[t]he question of whether an administrative ruling may be given collateral estoppel effect and thus bar subsequent criminal prosecution, was considered by this Court in Mellon[.]" Actually, in Mellon-Stuart Co., we merely held that in a subsequent mandamus action between the Mellon-Stuart Company and the West Virginia Board of Regents, a prior adjudication in the court of claims could receive preclusive effect. Neither action involved criminal proceedings.
Footnote: 11 W. Va. Code, 29-6A-1 (1988), states that Article 6A does not apply to all state employees and specifically provides:
"The purpose of this article is to provide a procedure for the equitable and consistent resolution of employment grievances raised by nonelected state employees who are classified under the state civil service system, or employed in any department, other governmental agencies, or by independent boards or commissions created by the Legislature, with the exception of employees of the board of regents, state institutions of higher education, the Legislature, any employees of any constitutional officer unless they are covered under the civil service system, and members of the department of public safety."
Footnote: 12 In Vest, we recognized the term "discrimination" is defined differently under W. Va. Code, 18-29-2(m), than it is in the Human Rights Act, W. Va. Code, 5-11-9 (1992).
Footnote: 13 See note 11, supra.
Footnote: 14 The defendant has invited our attention to the recent successful double jeopardy challenges to parallel criminal and
forfeiture prosecutions across this country. There is, indeed, a rapidly developing line of authority based on the combined force of decisions in Austin v. United States, ___ U.S. ___, 113 S. Ct. 2801, 125 L.Ed.2d 488 (1993); Department of Revenue of Montana v. Kurth Ranch, ___ U.S. ___, 114 S. Ct. 1937, 128 L.Ed.2d 767 (1994); and United States v. Halper, 490 U.S. 435, 109 S. Ct. 1892, 104 L.Ed.2d 487 (1989). We find, however, these cases to be inapposite.
The force of the Supreme Court's Kurth
Ranch/Austin/Halper triumvirate of authority not only defines
civil forfeiture as "punishment" for double jeopardy purposes,
but also announces that civil forfeiture effectively will trigger
the Double Jeopardy Clause's prohibition of successive
punishments even if Congress intended to permit imposition of
multiple punishments--such as a criminal penalty and a
forfeiture--in a single proceeding. On the other hand,
termination from public employment has not been recognized as a
criminal sanction. See generally Lefkowitz v. Cunningham, 431
U.S. 801, 97 S. Ct. 2132, 53 L.E.2d 1 (1977). Unless the
tribunal has the authority to convict or acquit, the principles of double jeopardy are inapplicable. United States v. MacDonald, 585 F.2d 1211 (4th Cir. 1978), cert. denied, 440 U.S. 961, 99 S. Ct. 1504, 59 L.Ed.2d 774 (1979).
Footnote: 15 By distinguishing these issues, we do not mean to suggest that battery may not be considered a form of patient abuse. We merely are stating there are differences between a grievance and a criminal proceeding that merit an independent review of the facts and issues. Thus, although the ALJ did not find patient abuse at the grievance proceeding, it did not foreclose the criminal proceeding on the issue of battery.
Footnote: 16 Privity requires the interests of a party against whom claim or issue preclusion is asserted was represented adequately by the party's purported privity at the initial hearing or trial. The absolute identicality of legal issues is fundamental to a finding of privity, and the mere fact that the two parties are interested in proving or disproving the same facts alone will not create privity.
Footnote: 17 Of course, the general common law rule is that claim or issue preclusion only works against those who had a fair chance to contest the earlier litigation. This rule in recent decades has been liberalized, and the focus of the preclusion inquiry has in some instances shifted from whether a party itself participated in the prior litigation to whether the party's interests were fully represented in the earlier case, albeit by another. Here, the circuit court did not find the interests of the prosecuting attorney adequately was protected in the administrative hearing. We agree.
Footnote: 18 The duties and responsibilities of a prosecuting attorney generally are set forth in W. Va. Code, 7-4-1 (1971). As relates to a prosecuting attorney's responsibility in criminal matters, W. Va. Code, 7-4-1, states, in part:
"It shall be the duty of the prosecuting attorney to attend to the criminal business of the State in the county in which he is elected and qualified, and when he has information of the violation of any penal law committed within such county, he shall institute and prosecute all necessary and proper proceedings against the offender, and may in such case issue or cause to be issued a summons for any witness he may deem material. Every public officer shall give him information of the violation of any penal law committed within his county. It shall also be the duty of the prosecuting attorney to attend to civil suits in such county in which the State, or any department, commission or board thereof, is interested, and to advise, attend to, bring, prosecute or defend, as the case may be, all matters, actions, suits and proceedings in which such county or any county board of education is interested."
Footnote: 19 In fact, the defendant did not provide this Court with a transcript of the closing arguments so we could determine what theory of the case the defendant's trial counsel pursued.
Footnote: 20 The purpose of instructions is to clearly instruct the jury regarding the law to be applied in the case. See United States v. Ribaste, 905 F.2d 1140, 1143 (8th Cir. 1990) ("[t]he purpose of instructing the jury is to focus its attention on the essential issues in the case and inform it of the permissible ways in which these issues may be resolved." (Citation omitted)); United States v. Assi, 748 F.2d 62, 65 (2d Cir. 1984) ("[t]he purpose of jury instructions is to inform the jury clearly and succinctly of the role it is to play and the decisions it must make"). Without instructions as to the law, the jury becomes mired in a factual morass, unable to draw the appropriate legal conclusions based on the facts.
Footnote: 21 More specifically, defense counsel could have had a reasonable theory that there was no need for a self-defense instruction because the evidence was sufficient to show the defendant did not slap the patient and, thus, no battery occurred.
Footnote: 22 Cf. Hosea 8:7 (New International Version 1985) (explaining that those who "sow the wind . . . reap the whirlwind").
Footnote: 23 Concededly, the cases from this Court have sent out conflicting signals as to the existence of doctrines, other than plain error, that might permit a litigant to seek appellate review of alleged errors not objected to in the lower court. See State v. Dellinger, 178 W. Va. 265, 358 S.E.2d 826 (1987); State v. Dozier, 163 W. Va. 192, 255 S.E.2d 552 (1979). These cases seem to suggest that in addition to plain error, there is an
unwaivable constitutional right to a proper jury charge in criminal cases. Today, we declare that in West Virginia criminal cases the sole bases for attacking an unobjected to jury charge are plain error and/or ineffective assistance of counsel.
Footnote: 24 The plain error rule contained in Rule 30 is identical to the plain error rule in Rule 52. State v. England, 180 W. Va. 342, 348, 376 S.E.2d 548, 554 (1988).
Footnote: 25 Plain error should be corrected where "a miscarriage of justice would otherwise result." This phrase "means that the defendant is actually innocent . . . but we have never held that a Rule 52(b) remedy is only warranted in cases of actual innocence." Olano, U.S. at , 113 S. Ct. at 1779, 123 L.Ed.2d at 521. (Citations omitted). The standard that guides the correction of plain error is whether the error "'seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.'" Olano, U.S. at , 113 S. Ct. at 1779, 123 L.Ed.2d at 521, quoting United States v. Atkinson, 297 U.S. at 160, 56 S. Ct. at 392, 80 L.Ed. at 557. Indeed, Rule 52(b) prejudice is indistinguishable from ordinary, harmless error review, except for the fact that the burden is upon the defendant. It is clear there may be cases where the error affects substantial rights but the error neither causes a miscarriage of justice nor seriously affects the fairness, integrity, or public reputation of the judicial proceeding.
Footnote: 26 Although most of our cases recognize that an error must be clearly evident to be plain, a significant number omit or give insufficient weight to this element of the plain error equation. We today disavow all holdings and articulations inconsistent with the text of this opinion.
Footnote: 27 Nor does this case raise the issue that Olano explicitly reserved: "We need not consider the special case where the error was unclear at the time of trial but becomes clear on appeal because the applicable law has been clarified." ___ U.S. at , 113 S. Ct. at 1777, 123 L.Ed.2d at 519. There has been no change in the law since the time of trial on the issue raised herein. As suggested in United States v. Calverley, 37 F.3d at 162-63, error must be clear or obvious at the time of trial.