Lena S. Hill, L.C. Rory L. Perry,II., Esq.
Pineville, West Virginia Assistant Attorney General
Attorney for the Appellant Charleston, West Virginia
Attorney for the Appellee
The Opinion of the Court was delivered PER CURIAM.
1. "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 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 (1983).
2. "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." Syllabus Point 5 of State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).
3. "When evaluating the voluntariness of a confession, a determination
must be made as to whether the defendant knowingly and intelligently waived his
constitutional rights and whether the confession was the product of an essentially free and
unconstrained choice by its maker." Syllabus Point 7 of State v. Bradshaw, 193 W.Va. 519,
457 S.E.2d 456 (1995), cert. denied, 116 S.Ct. 196, 133 L.Ed.2d 131 (1995).
This is an appeal by Dickie F. Wimmer from a decision of the Circuit Court
of Wyoming County denying him relief in a habeas corpus proceeding. Mr. Wimmer is
presently confined in the West Virginia Penitentiary serving two life sentences for the
murder of his son and his daughter, and in this proceeding he is claiming that he was denied
effective assistance of counsel during his trial for the murder of his son. He is also claiming
that a confession adduced against him during his murder trial was unconstitutionally coerced,
and that the trial court had committed certain trial errors. After reviewing the issues raised
and the documents filed, this Court disagrees with Mr. Wimmer's assertions. The judgment
of the Circuit Court of Wyoming County is, therefore, affirmed.
On the evening of January 15, 1979, the appellant, Dickie F. Wimmer, who
was separated from his wife, and who had been drinking, visited an apartment where his wife
and two infant children were staying with friends. After the appellant entered the apartment
his wife's friends left, leaving her and the children alone with the appellant.
At around 9:00 p.m. a neighbor heard four or five shots coming from the
apartment. Some fifteen minutes later an excited man, who was later identified as the
appellant, appeared at another neighbor's door and asked the neighbor to call an ambulance.
Upon arriving at the scene the ambulance driver found that the appellant's wife and two
infant children were dead, apparently due to gunshot wounds. At around 9:30 p.m. the Chief
of the Oceana Police arrived at the scene, and at that time, the appellant spontaneously told
the chief, "I shot them all."
At that point the chief advised the appellant of his Miranda rights and took the
appellant into custody. On the next day, January 16, 1979, the appellant was arraigned and
indicated that he had retained counsel to represent him. Later, at 4:00 p.m. a Trooper Baker
began to interrogate him after advising him of his constitutional rights. At 4:15 p.m. the
appellant signed a waiver of rights and indicated that he was willing to proceed. According
to troopers who were then present, the appellant did not request the presence of an attorney.
Shortly thereafter, the appellant, who according to Trooper Baker was remorseful, indicated
that he wished to make a statement. He then admitted that he had shot his wife and two
children. This statement was reduced to writing and was signed by the appellant.
In investigating the murders further, the police obtained other evidence tending
to implicate the appellant. For instance, the appellant's girlfriend indicated, and later
testified, that the appellant had told her that he had purchased a gun to kill his wife because
he didn't want another man raising his children. His brother-in-law indicated that the
appellant had threatened to kill his family about a week before the murders had occurred.
The appellant's foreman at work stated that the appellant had told him about three weeks
before the shooting that he was going to kill his wife. The appellant had repeated this about
a week before the murders. A co-worker testified that the appellant, after receiving divorce
papers, had become very upset and had threatened to kill his wife and her lawyer in court.
The co-workers's wife testified that the appellant had again threatened to kill his wife on
January 7, eight days before the killings occurred.
The police also found evidence that on December 30, 1978, the appellant had
purchased the .357 magnum pistol, which had been used in the commission of the murders,
and that he had been target practicing with the pistol in the hours preceding the murders.
The appellant was tried for the murder of his son in May 1979, and at the
conclusion of the trial the jury found the defendant guilty of first-degree murder. The jury
recommended mercy. The appellant was tried for the murder of his daughter in December
1979, and at the conclusion of that trial he was found guilty of first-degree murder, without
a recommendation of mercy.
Following his conviction for the murder of his son, the appellant filed a petition
for appeal with this Court, but this Court denied the petition on January 19, 1980. Thereafter
on August 20, 1987, the appellant filed the petition for a writ of habeas corpus involved in
the present case in the Circuit Court of Wyoming County. For the following seven years the
habeas corpus was entangled in numerous procedural difficulties involving the substitution
of attorneys and the transfer of the case among circuit judges. On October 26, 1994, this
Court issued an order directing the appellee, Warden of the West Virginia Penitentiary, to
produce the appellant before the Circuit Court of Wyoming County for the purpose of
examining his habeas corpus claim. An attorney was appointed for the appellant at that time.
On January 18, 1995, the appellant's newly appointed attorney filed an
amended addition for writ of habeas corpus in which it was alleged that the appellant was
denied effective assistance of counsel during his trial for the murder of his son. It was also
alleged that the January 16, 1979, confession was coerced and that the trial court had
committed a number of trial errors.
A habeas corpus hearing was conducted on July 5, 1995, and following that
hearing on November 28, 1995, the circuit court denied the appellant the habeas corpus relief
which he sought. The Court concluded that except for the claims of ineffective assistance
of counsel and coercion of the confession, the appellant's claims were basic trial errors that
did not give rise to error of constitutional dimension and were, therefore, not reviewable by
way of habeas corpus. The court also found that the appellant's attorney during his trial for
the murder of his son demonstrated performance which was not outside the broad range of
professionally competent assistance, and also concluded that even if the attorney's conduct
was incompetent, such incompetency would not have changed the result of the proceedings.
The court noted that defense counsel's advocacy in the case under consideration resulted in
a life sentence with a recommendation of mercy, whereas the appellant was found guilty of
first-degree murder without mercy in his trial for the murder of his daughter, a trial in which
the appellant was represented by the same attorney. The circuit court also found that the
confession which the appellant challenged was voluntarily obtained and not coerced.
In the present appeal the defendant claims that the circuit court erred in
refusing to grant him habeas corpus relief.
On appeal, as in his habeas corpus proceeding, the appellant predicates his
claim of entitlement to relief on trial errors as well as claims of ineffective assistance of
counsel and a coerced confession.
With regard to trial error this Court notes that 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 (1983) this Court stated:
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.
This Court has looked at the trial error alleged by the appellant to have been
committed by the trial court, and, in particular, this Court has looked at the appellant's
claims that the trial court erred in allowing certain jurors to remain on the panel and that the
prosecutor engaged in prosecutorial misconduct by making allegedly improper remarks. The
court does not believe that those errors even if supported by the record would implicate the
appellant's constitutional rights in such a manner as to be reviewable on habeas corpus or
that they establish manifest injustice.
On the other hand, the court does believe that the claims of ineffective
assistance of counsel and the use of a coerced confession are questions which rise to a
The standard by which ineffective assistance of counsel claims should be assessed was recently set forth by this Court in syllabus point 5 of State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995) as follows:
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
In arguing that he was denied effective assistance of counsel the appellant, in
effect, takes the position that ineffectiveness should be manifest from the fact that his
attorney began working on the case only briefly before trial and could not have had ample
time to prepare for it.
The record indicates that the appellant's attorney during the appellant's trial
for the murder of his son was retained by the appellant on April 18, 1979, a short time before
the trial in May 1979, after the appellant had become dissatisfied with his court- appointed
attorney. The court-appointed attorney had already done substantial work in preparation for
the case, and it appears that the appointed attorney, to some extent, assisted the retained
attorney in preparing for trial. The retained attorney was experienced in criminal matters,
and did have a substantial opportunity to do preparatory work, even though he confronted
substantial problems including the fact that the appellant had repeatedly threatened to kill
members of his family in the period immediately before the killings, that he bought the
murder weapon, that he was on the scene at the time of and immediately after the murders,
and that he spontaneously said "I shot them all" when the police first arrived on the scene.
In an effort to demonstrate prejudice from lack of preparation time the
appellant argues that his counsel, with more time to prepare, could have made a much
stronger case for a change of venue. He could have had time to conduct telephone surveys
of sentiment against him in the community and could have adduced certain affidavits to
buttress his position. It appears that at trial substantial evidence was adduced in support of
the motion for change of venue, and at the habeas corpus hearing no evidence was introduced
to prove that telephone surveys or the desired affidavits would have altered the correctness
of the trial court's venue ruling.
To demonstrate prejudice arising from a lack of adequate preparation time the
appellant also suggests that his attorney did not have adequate time to interview witnesses
meaningfully and that he did not interview them properly. On this point there is evidence
that trial counsel did have the benefit of work done by the previously appointed attorney on
witnesses. There is also evidence that he did cross-examine the state's witnesses during trial,
and he did call crucial witnesses and present crucial evidence in the appellant's behalf.
Further, during the habeas corpus hearing the appellant produced no expert evidence from
practicing attorneys to suggest that his attorney's preparation was inadequate.
In addition to claiming that ineffectiveness of counsel should be manifest from
the lack of preparation time available to his attorney, the appellant specifically claims that
his attorney was ineffective when he failed to offer jury instructions on the effect of
intoxication on the appellant's capacity to commit the crime charged.
As indicated in State v. Miller, supra, to establish ineffective assistance of
counsel, not only must it be shown that there was conduct which was professionally
incompetent, but it must also be shown that there is a reasonable probability that but for the
alleged unprofessional errors the result in the proceedings would have been different.
There was substantial evidence adduced during the appellant's trial supporting
the conclusion that the appellant premeditated the killings and that they were not the simple
result of intoxication. As previously indicated, the appellant purchased the pistol used in the
killings some two weeks before the killings occurred, and he repeatedly indicated to friends
and acquaintances in the week prior to the murders that he was planning to kill members of
his family. Under the circumstances the court believes that even if the instruction had been
given, it is not reasonably probable that the jury would have found differently given the
overall evidence in the case.
The appellant also argues that his attorney failed to seek an independent mental
evaluation to support a possible defense of diminished capacity.
During his habeas corpus hearing the appellant failed to introduce any expert
testimony or any other meaningful evidence that any sort of diminished capacity claims
could be supported by medical evidence. There was ample evidence that the appellant was
fully aware of what was going on and was in charge of his faculties just prior to trial.
Further, the appellant did not present evidence tending to show that a reasonably competent
defense attorney would have pursued a diminished capacity defense under the circumstances
of his case. Additionally, it is entirely plausible that defense counsel may have determined
not to pursue the defense of diminished capacity as a strategic choice for fear of alienating
the jury or causing them to be hostile to his client.
The appellant's last claim relating to ineffective assistance of counsel is that
his trial attorney failed to request an instruction on the voluntariness of the written
As indicated in State v. Miller, supra, not only must the appellant show that
there was ineffective assistance of counsel, but he must also show that the ineffectiveness
affected the outcome of the trial. In this case the State had very substantial and compelling
evidence upon which to convict the appellant totally apart from the written confession. To
repeat what has been previously said: The defendant repeatedly threatened to kill members
of his family prior to the killings; he bought the gun which was used; he was present with
the murdered individuals at the time of the killings; and, apart from his written confession,
he spontaneously said, "I shot them all" when the police first arrived on the scene. In view
of the foregoing, this Court cannot find that there is a reasonable probability that, but for the
failure of appellant's attorney to offer an instruction on the voluntariness of the written
confession, the result of the proceedings would have been different.
The final major assertion by the appellant in this appeal is that the circuit court
erred in failing to grant him habeas corpus relief on the ground that his written confession
was not voluntary.
In syllabus point 7 of State v. Bradshaw, 193 W.Va. 519, 457 S.E.2d 456 (1995), cert. denied, 116 S.Ct. 196, 133 L.Ed.2d 131 (1995) this Court stated:
When evaluating the voluntariness of a confession, a
determination must be made as to whether the defendant
knowingly and intelligently waived his constitutional rights and
whether the confession was the product of an essentially free
and unconstrained choice by its maker.
The circumstances surrounding the taking of the written confession in issue in
the present case were heard at trial, and the trial judge determined that the confession was
voluntary. At the habeas corpus hearing further evidence was submitted by both the
appellant and the State regarding the confession. Following the hearing the judge reviewed
the circumstances of the confession and resolved the conflicting evidence on the
voluntariness question. The habeas corpus judge concluded that the totality of the
circumstances and the most credible evidence pointed to the fact that the appellant had
waived his rights and the written statement was given freely and voluntarily and without
In looking at the evidence, on the voluntariness of the confession, this Court
believes that it was essentially conflicting. The trial court looked at that conflicting evidence
and resolved the conflicts against the appellant. The judge in the habeas corpus proceeding
did the same. This Court does not believe that the appellant on appeal has pointed to any
circumstance so compelling as to require this Court to resolve the conflicts on the
voluntariness issue in his favor, nor to reverse the decisions of the trial court and the habeas
corpus judge on this point.
For the reasons stated, the judgment of the Circuit Court of Wyoming County is affirmed.