R. Thomas Czarnik
Princeton, West Virginia
Attorney for the Appellant
Silas B. Taylor
Senior Deputy Attorney General
Charleston, West Virginia
Attorney for the Appellee
The Opinion of the Court was delivered PER CURIAM
JUSTICE BROTHERTON and JUSTICE RECHT did not participate.
RETIRED JUSTICE MILLER sitting by temporary assignment.
JUDGE FOX sitting by temporary assignment.
1. "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, 446 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, ___ W. Va. ___, ___
S.E.2d ___ (W. Va. filed May 18, 1995).
2. "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, ___ W. Va. ___, ___ S.E.2d ___ (W. Va. filed May 18, 1995).
3. "One who charges on appeal that his trial counsel was ineffective and that such resulted in his conviction, must prove the allegation by a preponderance of the evidence." Syl. Pt. 22, State v. Thomas, 157 W. Va. 640, 203 S.E.2d 445 (1974).
4. '"'An indictment [or information] for a statutory offense
is sufficient if, in charging the offense, it substantially follows
the language of the statute, fully informs the accused of the
particular offense with which he is charged and enables the court
to determine the statute on which the charge is based.' Syl. pt.
3, State v. Hall,  W. Va. , 304 S.E.2d 43 (1983)." Syl.
pt. 3, State v. Wade, 174 W. Va. 381, 327 S.E.2d 142 (1985).' Syl.
Pt. 3, State v. Donald S. B., 184 W. Va. 187, 399 S.E.2d at 898
5. "'Sentences imposed by the trial court, if within statutory limits and if not based on some unpermissible factor, are not subject to appellate review.' Syl. pt. 4, State v. Goodnight, 169 W. Va. 366, 287 S.E.2d 504 (1982)." Syl. Pt. 2, State v. Farmer, ___ W. Va. ___, 454 S.E.2d 378 (1994).
This is an appeal by Ronnie R. (hereinafter "the Appellant")See footnote 1
from a March 10, 1994, order of the Circuit Court of Mercer County
denying a post-conviction habeas corpus petition. The Appellant
alleges various errors including ineffective assistance of counsel
and insufficient funding of the Public Defender's Office. We find
no error by the lower court in denying the post-conviction relief
and affirm its decision.
The Appellant was convicted in August 1992 of six counts of
first degree sexual assault, three counts of second degree sexual
assault, and three counts of child sexual abuse. The Appellant and
his wife had three children, the oldest of whom was allegedly
sexually abused by his father from age six to age eleven.
Subsequent to the guilty verdict and presentence investigation, the Appellant was sentenced to fifteen to twenty-five years on each of
counts one through six and one to five years on each of counts
seven through twelve, culminating in an indeterminate sentence of
sixteen to thirty years.
The Appellant filed post-trial motions alleging that trial
counsel had failed to utilize evidence which could potentially have
been favorable to the Appellant. During an evidentiary hearing on
such motions, the Appellant asserted that trial counsel had failed
to offer an instruction regarding the uncorroborated testimony of
the victim. The lower court ruled that there had been no showing
that such an instruction would have made a difference to the
decision of the jury and found that the Appellant "received a fair
trial with adequate representation under the circumstances."
The Appellant also stated in his post-trial motions that the
State had suppressed evidence which allegedly existed regarding an
investigation by the Department of Health and Human Services
(hereinafter "DHHS") in which the victim son had allegedly informed
DHHS that he had not been sexually abused. Counsel for the State
denied that any such evidence existed, and no such exculpatory
evidence has yet been identified by either the Appellant or the
Post-trial motions were denied, and an appeal to this Court
was also denied. A habeas corpus petition was thereafter filed
challenging the conviction on generally the same grounds as those
alleged in the post-trial motions.See footnote 2 The habeas petition also
requested the lower court to take judicial notice that the Public
Defender's Office for Mercer County was underfunded and lacked an
investigatory staff to adequately assist attorneys. By order dated
March 10, 1994, the lower court concluded that the Appellant had
not proven ineffective assistance of counsel. The lower court also
found that the funding of the Public Defender's Office did not
affect the Appellant's defense and that the Public Defender's
Office was not inadequately staffed, did not have an excessive
caseload during the Appellant's case, and did not inadequately prepare for the Appellant's case. The Appellant now appeals that
determination of the lower court.
The Appellant maintains that trial counsel ineffectively
assisted him and advances numerous examples of this alleged
ineffectiveness. With regard to a claim of ineffective assistance
of counsel, we explained the following in syllabus point five of
State v. Miller, ___ W. Va. ___, ___ S.E.2d ___ (W. Va. filed May
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, 446 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.
___ W. Va. at ___, ___ S.E.2d at ___, Syl. Pt. 5.
We also explained the following in syllabus point six of Miller:
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.
___ W. Va. at ___, ___ S.E.2d at ___, Syl. Pt. 6.
With regard to the Appellant's contention that trial counsel
should have offered an instruction on uncorroborated testimony of
a victim and the necessity to view such testimony with care and
caution, this Court has held that failure to give such an
instruction is reversible error where the testimony of the
prosecuting witness is uncorroborated. State v. Payne, 167 W. Va.
252, 280 S.E.2d 72 (1981); State v. Garten, 131 W. Va. 641, 49
S.E.2d 561 (1948).See footnote 3
The necessity of a jury instruction informing the jurors that
uncorroborated testimony of a victim should be scrutinized was
initially discussed in State v. Perry, 41 W. Va. 641, 24 S.E. 634
(1896), as follows:
In the trial of all felony cases, the jury should scrutinize the testimony of all contradicted and uncorroborated witnesses with care and caution. This instruction propounds a general principle of law, is unobjectionable, and should have been given, as it leaves the weight of the testimony entirely with the jury, and relates only to the proper discharge of the duty they owe to the accused and the state alike.
Perry, 41 W. Va. at 651-52, 24 S.E. at 638.
In Payne, we concluded that the "care and caution" instruction was necessary because the defendant was the only person who could have contradicted the prosecuting witness, and the defendant, due to other errors at trial, was effectively precluded from testifying. Id. at 261, 280 S.E.2d at 78. Moreover, the identification of the defendant by the prosecuting witness in Payne was questionable because (1) the victim did not see her attacker until they were in a shaded area, and (2) the description she initially gave was inconsistent with the defendant's physical appearance. Id. at 260, 280 S.E.2d at 77.
In the present case, the identification of the defendant, as
the father of the victim, is not in issue. This case is also
distinguishable from Payne because the defendant in this case did
testify. The decision of this Court in Payne was founded to some
extent upon the fact that the defendant, due to trial court error,
was unable to testify. Id. at 261, 280 S.E.2d at 78. We also noted in Payne that the use of this instruction should not be
deemed mandatory in every uncorroborated testimony case, explaining
We think that this type instruction may be appropriate in cases where the State's case rests largely upon the uncorroborated identification testimony of a witness. The instruction may also be modified to fit the circumstances of any other type of case involving identification testimony where, in the trial judge's discretionary opinion, the giving of such an instruction would aid the jury. We emphasize that we are not here mandating the use of this type instruction in every case involving identification testimony. Rather, we note that this type instruction may be proper in cases where the identification testimony is uncorroborated.
167 W. Va. at 263, 280 S.E.2d at 79 (emphasis added).
We conclude that while the "care and caution" instruction may
have been applicable in the present case, its use was not
mandatory, and trial counsel's failure to propose it was harmless
error. As we explained in syllabus point nineteen of State v.
Thomas, 157 W. Va. 640, 203 S.E.2d 445 (1974), "proved counsel
error which does not affect the outcome of the case" is to be
considered harmless error. 157 W. Va. at 643, 203 S.E.2d at 449,
Syl. Pt. 19. We also emphasize that "[o]ne who charges on appeal
that his trial counsel was ineffective and that such resulted in
his conviction, must prove the allegation by a preponderance of the
evidence." Id., Syl. Pt. 22. As referenced above, a party
advancing a claim of ineffective assistance of counsel must also prove that "there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceedings
would have been different. Miller, ___ W. Va. at ___, ___ S.E.2d
at ___, Syl. Pt. 5. We discern no reasonable possibility that the
omission of the instruction in the case sub judice affected the
jury's conclusion. The jury was adequately instructed concerning
its role as determiner of the credibility of the witnesses and the
weight to be given each witness. Furthermore, the jury was
instructed regarding the Appellant as follows:
The Defendant is a competent witness in his own behalf, and you should not disregard or disbelieve his evidence in whole or in part solely because he is on trial charged with a crime. It is the duty of the jury to give his evidence the same careful and thorough consideration as the evidence of other witnesses, and to weigh his evidence by the same rules as you weigh the evidence of other witnesses, and to give to his evidence such weight and credit as you believe it is entitled to receive.
The jury had before it detailed testimony of the child victim
regarding the acts of sexual abuse perpetrated upon him by his
father for over five years. The victim provided specific examples
of his father's penetration of his mouth and anus, explaining that
his father forced him to engage in this behavior while his mother
was not present. While more prudent counsel may have suggested an
instruction regarding the uncorroborated testimony of a victim, we
find this omission to be harmless in this instance.
The Appellant also contends that his counsel should have
introduced medical records indicating that the Appellant had
gonorrhea from 1986 through 1988 and that the victim, when tested
in October 1991, had no sexually transmitted diseases. The
Appellant testified at trial that he had gonorrhea in 1986.
However, his medical records, not introduced by trial counsel,See footnote 4
indicated that the Appellant had been treated for possible
gonorrhea in April 1988 and that testing one week later indicated
no gonorrhea. Moreover, the Appellant had no access to the victim
during the time he allegedly had gonorrhea, since the Appellant and
his wife were separated during this time for two months, with the
wife having custody of the children. It was during this two-month
separation that the Appellant allegedly contracted the gonorrhea
and sought medical attention. By the time the Appellant had access
to the victim again, the gonorrhea was no longer present. Thus,
the fact that the victim son did not have gonorrhea over three
years later is of no probative value, and trial counsel's failure
to introduce medical records indicating possible gonorrhea for one
week in 1988 does not constitute ineffective assistance of counsel.
The Appellant also asserts that trial counsel erred by failing
to challenge the medical credentials of the State's medical expert,
Dr. William C. Byrd, who testified regarding repeated anal
intercourse and its physical effect on a victim. The Appellant
presents this Court with no evidenceSee footnote 5 that Dr. Byrd was incompetent
or that his testimony could have been challenged or limited in any
manner. Moreover, Dr. Byrd's testimony was actually favorable to
the Appellant in that he explained that there were absolutely no
physical findings of sexual abuse in his October 1992 examination
of the victim.
The Appellant further suggests that trial counsel should
have introduced evidence of an alleged interview of the victim by
DHHS. However, no evidence existed or currently exists regarding
this alleged interview. During the habeas corpus hearing, trial
counsel testified that he was informed by the Appellant's sister
prior to submission of the case to the jury that a representative
of either DHHS or some other state agency had told her that the victim had been interviewed and had not reported any sexual abuse
by his father.See footnote 6 At the time this potential evidence was revealed
to trial counsel, both sides had rested, and trial counsel's
failure to seek reopening based upon this unverified information
does not constitute error. Furthermore, the Appellant's sister was
not called as a witness in the habeas corpus hearing, and no
further evidence of this alleged interview has been produced to
The Appellant also asserts that trial counsel was inept in his failure to seek a "prompt complaint" instruction. There is no authority in West Virginia for an instruction advising the jury that the testimony of the victim is to be viewed with skepticism where a prompt complaint of rape or abuse was not made. The "prompt complaint" rule in West Virginia has been applied to permit a witness to "testify that a victim of sexual assault complained of the assault soon after its occurrence." State v. Murray, 180 W. Va. 41, 46, 375 S.E.2d 405, 410 (1988). That principle has not been expanded to include an entitlement to any particular instruction in a situation in which the victim did not make a "prompt complaint" concerning the alleged activity, and we decline to make such an expansion at this time.See footnote 7
The Appellant also complains that trial counsel failed to call
witnesses to testify regarding the Appellant's character, pursuant
to Rule 608(a) of the West Virginia Rules of Evidence.See footnote 8 Two
handwritten testimonials were introduced at trial, one by the
Appellant's mother and another by the Appellant's employer. When
questioned at the habeas corpus hearing regarding availability of
additional character witnesses, the Appellant suggested other
former employers who could possibly have testified regarding the
Appellant's reputation as a good employee and diligent worker.
Such evidence would not have been admissible to specifically
demonstrate the Appellant's "character for truthfulness or
untruthfulness" under Rule 608(a) since the testimony would only have addressed the Appellant's work history and reliability.
Moreover, based upon Rule 403 of the West Virginia Rules of
Evidence, the lower court may not have permitted introduction of
additional character evidence based upon the fact that the
Appellant's trial counsel had already offered two testimonials
concerning the Appellant's character.See footnote 9
The Appellant also asserts that trial counsel failed to
adequately prepare defense witnesses, including the Appellant and
Chris BartonSee footnote 10, for their direct and cross examinations. However,
trial counsel testified at the habeas corpus hearing that he had
spoken with his client on several occasions prior to trial,
discussing the types of questions to be addressed. Trial counsel
also explained that he did not rehearse the specific testimony with
the witnesses due to his recognition that such rehearsal often
leads to testimony which appears staged and unbelievable. The
Appellant has offered no examples of any specific failure of trial counsel in advising his client or Mr. Barton, nor has he
demonstrated any particular prejudice allegedly created thereby.See footnote 11
The Appellant also suggests that trial counsel should have
objected to the indictment's lack of specificity. We find no error
in failure to offer such an objection. As we explained in syllabus
point three of State v. Donald S. B., 184 W. Va. 187, 399 S.E.2d
"'An indictment [or information] for a statutory offense is sufficient if, in charging the offense, it substantially follows the language of the statute, fully informs the accused of the particular offense with which he is charged and enables the court to determine the statute on which the charge is based.' Syl. pt. 3, State v. Hall,  W. Va. , 304 S.E.2d 43 (1983)." Syl. pt. 3, State v. Wade, 174 W. Va. 381, 327 S.E.2d 142 (1985).
184 W. Va. at 188, 399 S.E.2d at 899, Syl. Pt. 3.
We have also consistently acknowledged the "body of law
suggesting that omission of a date is not fatal to an indictment
unless a statute of limitations applies or unless time enter into
the essence of the offense." State v. Hensler, 187 W. Va. 81, 84 n.1, 415 S.E.2d 885, 888 n.1 (1992); see State v. Chaffin, 156 W.
Va. 264, 192 S.E.2d 728 (1972).
The Appellant also asserts that his sentence was excessive,
comparing his sentence to that of an individual upon a verdict of
guilty, with mercy. As we explained in syllabus point two of State
v. Farmer, ___ W. Va. ___, 454 S.E.2d 378 (1994), "'[s]entences
imposed by the trial court, if within statutory limits and if not
based on some unpermissible factor, are not subject to appellate
review.' Syl. pt. 4, State v. Goodnight, 169 W. Va. 366, 287
S.E.2d 504 (1982)." In this case, the Appellant could have been
sentenced to 138 years in prison, if all sentences were served
consecutively. We do not find the Appellant's indeterminate
sentence of sixteen to thirty years excessive.See footnote 12
Upon review of the record and the arguments of counsel, we
conclude that the Appellant did not receive ineffective assistance
of counsel, that he was not prejudiced by any lack of resources of
the Public Defender's Office, and that his sentence was not
excessive. Accordingly, we affirm the decision of the lower court.
Footnote: 1 Because the victim in this matter is a young child, we follow our traditional practice in cases involving sensitive facts and use only the last initials of the parties involved. See, e.g., State v. Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990).
Footnote: 2 The Appellant recited numerous issues allegedly constituting ineffective assistance of counsel. The Appellant contends that counsel erred by failing to introduce evidence that the Appellant had gonorrhea from 1986 through 1988; failed to challenge the medical credentials of a testifying practitioner; failed to adduce evidence of an alleged interview of the victim son by DHHS; failed to investigate the potential testimony of witnesses who were not called by the State; failed to introduce the fact that the Appellant had raised the claim that he was the primary caretaker of the children during divorce proceedings; failed to offer an instruction on uncorroborated testimony of an alleged victim; failed to call credibility witnesses on behalf of the Appellant; failed to adequately prepare the Appellant for cross-examination; failed to object to the lack of specificity of the indictment; failed to compel introduction of the victim's medical records; failed to request a psychological examination of the victim; failed to conduct effective cross-examination of the State's witnesses; and failed to seek to limit the State's witnesses. The Appellant having also raised these issues on appeal, we address each of them in this opinion.
Footnote: 3 In Edward Charles L., we specified that uncorroborated testimony of a child victim of sexual abuse was sufficient to support a conviction. 183 W. Va. at 659, 398 S.E.2d at 141. We did not, however, address the specific issue of the necessity of a "care and caution" instruction with regard to the uncorroborated testimony.
Footnote: 4 Trial counsel had previously obtained the Appellant's medical records indicating that he had been treated for possible gonorrhea in April 1988. This medical information apparently became part of the record during the habeas corpus proceedings below.
Footnote: 5 No medical or legal evidence was presented below, nor has this Court been provided with any evidence, that Dr. Byrd was incompetent. During his trial testimony, Dr. Byrd explained that he was a medical doctor practicing in Motoaka, West Virginia, having obtained his medical degree from West Virginia University in 1983. Upon the prosecuting attorney's tender of the witness for further voir dire, trial counsel for the Appellant stated that there were no objections to Dr. Byrd's qualifications. The Appellant makes no specific complaint concerning the qualifications of Dr. Byrd and only alleges generally that Dr. Byrd was not shown to be competent to testify.
Footnote: 6 The victim was allegedly interviewed in connection with a DHHS investigation of allegations that the Appellant had sexually abused his niece.
Footnote: 7 Furthermore, it seems unlikely that an instruction such as the Appellant now seeks would be appropriate in cases involving child sexual abuse.
Footnote: 8 Rule 608(a) of the West Virginia Rules of Evidence provides as follows:
(a) Opinion and Reputation Evidence of Character. -- The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness; and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
Footnote: 9 Rule 403 provides as follows: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
Footnote: 10 Chris Barton, a friend of the victim who occasionally spent the night at the Appellant's home, testified that he did not witness any abuse.
Footnote: 11 Chris Barton, when questioned subsequent to the post-trial motion to set aside the verdict, was unable to articulate any evidence which could have been presented had he been more thoroughly prepared. Mr. Barton was not called as a witness in the habeas corpus hearing in the lower court.
Footnote: 12 The Appellant also complains that trial counsel should have investigated the substance of the expected testimony of two individuals listed by the State as potential witnesses. However, because the State did not call those individuals as witnesses, any imprudence in failing to ascertain the focus of their expected testimony did not prejudice the Appellant.
The Appellant asserts also that trial counsel failed to
introduce evidence that the Appellant had raised the claim that he
was the primary caretaker of the children during the divorce
action. However, at the time the accusation of sexual abuse was
leveled against the Appellant, the divorce action was not yet
pending. Thus, any insinuation that the Appellant's wife may have
directed the victim to lie about the abuse for possible gain in the
divorce or custody action would appear groundless.
The Appellant also presents this Court with allegations of
ineffective assistance due to trial counsel's manner of cross-
examining witnesses, failure to demand a psychological examination
of the victim, and failure to limit the evidence presented by the State. Having evaluated these claims, we also find them meritless.
The Appellant also puts forward the broad assertion that trial counsel should have more aggressively investigated the case to potentially produce more favorable evidence. However, the Appellant presents no evidence which could have been discovered and used to his advantage at trial. We find this assignment of error meritless.