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647 S.E.2d 798
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2007 Term
STATE OF WEST VIRGINIA, ex rel. CARROLL EUGENE HUMPHRIES,
Petitioner Below, Appellant
THOMAS McBRIDE, WARDEN
Respondent Below, Appellee
Appeal from the Circuit Court of Greenbrier County
Honorable James J. Rowe, Judge
Case No. 02-C-79
REVERSED AND REMANDED
Submitted: January 24, 2007
Filed: April 19, 2007
William C. Forbes, Esq.
Forbes Law Offices, PLLC
Charleston, West Virginia
Attorney for Appellant
Darrell V. McGraw, Jr., Esq.|
Barbara H. Allen, Esq.
Assistant Attorney General
Charleston, West Virginia
Attorneys for Appellee
The Opinion of the Court was delivered PER CURIAM.
JUSTICE STARCHER concurs and reserves the right to file a concurring opinion.
1. In reviewing challenges to the findings and conclusions of the circuit court
in a habeas corpus action, we apply a three-prong standard of review. We review the final
order and the ultimate disposition under an abuse of discretion standard; the underlying
factual findings under a clearly erroneous standard; and questions of law are subject to a de
novo review. Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).
2. This Court is not obligated to accept the State's confession of error in a
criminal case. We will do so when, after a proper analysis, we believe error occurred. Syl.
Pt. 8, State v. Julius, 185 W.Va. 422, 408 S.E.2d 1 (1991).
3. In the West Virginia courts, claims of ineffective assistance of counsel are to
be governed by the two-pronged test established in Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1) Counsel's performance was deficient under an
objective standard of reasonableness; and (2) there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceedings would have been different.
Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).
4. In reviewing counsel's performance, courts must apply an objective standard
and determine whether, in light of all the circumstances, the identified acts or omissions were
outside the broad range of professionally competent assistance while at the same time
refraining from engaging in hindsight or second-guessing of trial counsel's strategic
decisions. Thus, a reviewing court asks whether a reasonable lawyer would have acted,
under the circumstances, as defense counsel acted in the case at issue. Syl. Pt. 6, State v.
Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).
5. Where a counsel's performance, attacked as ineffective, arises from
occurrences involving strategy, tactics and arguable courses of action, his conduct will be
deemed effectively assistive of his client's interests, unless no reasonably qualified defense
attorney would have so acted in the defense of an accused. Syl. Pt. 21, State v. Thomas, 157
W.Va. 640, 203 S.E.2d 445 (1974).
6. The mission of the Confrontation Clause found in the Sixth Amendment to
the United States Constitution and Section 14 of Article III of the West Virginia Constitution
is to advance a practical concern for the accuracy of the truth-determining process in criminal
trials, and the touchstone is whether there has been a satisfactory basis for evaluating the
truth of the prior statement. An essential purpose of the Confrontation Clause is to ensure an
opportunity for cross-examination. In exercising this right, an accused may cross-examine
a witness to reveal possible biases, prejudices, or motives. Syl. Pt. 1, State v. Mason, 194
W.Va. 221, 460 S.E.2d 36 (1995).
This case is before the Court on appeal from an October 7, 2005, Order of the
Circuit Court of Greenbrier County, which denied Appellant's petition for writ of habeas
corpus. This Court has before it the petition for appeal, the briefs of the parties, and all
matters of record. Following a review of the record herein,
(See footnote 1)
this Court finds that the circuit
court erred in denying the petition for writ of habeas corpus. Accordingly, this Court
reverses the October 7, 2005, Order of the circuit court and remands the matter for retrial of
the criminal charges contained in 98-F-54 and 99-F-36.
On February 5, 1976, Billy Ray Abshire was killed when a bomb contained in
a cardboard box and found on the left front fender of his car detonated as he left his home
for work. The Bureau of Alcohol, Tobacco, and Firearms (the ATF) investigated the
incident and concluded that the bomb was of Abshire's making. All other suspects had been
eliminated by the ATF, either by polygraph or by other means; and Abshire had access to the
explosive used in the bomb. Furthermore, Kin-E-Pak explosive, an electric blasting cap, and
an anti-disturbance device like those used in the bomb were found inside Abshire's trailer.
The ATF concluded that Abshire had likely made the bomb and accidentally detonated it
himself. Accordingly, his death was ruled accidental, and the investigation went no further.
At the time of Abshire's death, Appellant Humphries was engaged in a
relationship with Abshire's estranged wife, Kitty. Humphries claims that during that period
of time, he was attempting to help Kitty obtain a divorce from her husband, who had been
holding out in an attempt to preserve the family. To that end, he consulted with an
acquaintance, Gene Gaylor, who Humphries alleges he paid $2000 to research how Kitty
could obtain a quickie Las Vegas divorce. In the meantime, Abshire consulted with an
attorney by the name of John Detch regarding a divorce from Kitty.
(See footnote 2)
complaint was filed by John Detch the day before Abshire died.
In 1998, some 22½ years after Abshire's death, Humphries became the focus
of a criminal investigation into the death. Gene Gaylor and his brother, Clayton, implicated
Humphries in a murder plot, whereby Humphries allegedly paid Gene to make a bomb to kill
Abshire. These accusations came to light after Humphries successfully prosecuted the
Gaylors in federal court for an extortion plot which, curiously or not, involved Abshire's
death. Together with Kitty Abshire, Gene Gaylor, and Robert Brown, Humphries was
indicted in Greenbrier County in connection with the murder of Billy Ray Abshire.
(See footnote 3)
The case was moved to Putnam County on Humphries' motion,
(See footnote 4)
where, on July
30, 1999, Humphries was convicted as an accessory before the fact to murder in the first
degree and conspiracy to commit murder. He was sentenced to life (with mercy) on the
accessory charge and one to five years on the conspiracy charge. The sentences were set to
run consecutively. Humphries' direct appeal of his conviction was refused by this Court on
October 3, 2000.
On March 28, 2001, Humphries filed a pro se
petition for writ of habeas corpus
in the Circuit Court of Greenbrier County, which was summarily denied. Humphries then
retained his current attorney and filed an amended petition for writ of habeas corpus. An
omnibus hearing was then held by the circuit court during which several issues were raised.
The court again denied the petition, and Humphries now appeals.
STANDARD OF REVIEW
This Court has recently clarified that [i]n reviewing challenges to the findings
and conclusions of the circuit court in a habeas corpus action, we apply a three-prong
standard of review. We review the final order and the ultimate disposition under an abuse of
discretion standard; the underlying factual findings under a clearly erroneous standard; and
questions of law are subject to a de novo review. Syl. Pt. 1, Mathena v. Haines, 219 W.Va.
417, 633 S.E.2d 771 (2006). With that in mind, we proceed to a discussion of the present
Six issues were presented to this Court on appeal.
(See footnote 5)
Of those, the State
conceded error to three issues. They are Humphries' contention that he suffered ineffective
assistance of counsel at his criminal trial, that his Fifth Amendment rights were violated in
the course of his criminal trial, and that his Sixth Amendment rights were violated in the
course of his criminal trial.
(See footnote 6)
However, [t]his Court is not obligated to accept the State's
confession of error in a criminal case. We will do so when, after a proper analysis, we believe
error occurred. Syl. Pt. 8, State v. Julius
, 185 W.Va. 422, 408 S.E.2d 1 (1991). For that
reason, while we need not delve into them in excessive detail, we will address each of the
assignments of error in turn.
A. Ineffective Assistance of Counsel
The Sixth Amendment of the United States Constitution and Article III, Section
14 of the West Virginia Constitution both guarantee to the criminally accused the right to
counsel. In State ex rel. Favors v. Tucker
, 143 W.Va. 130, 140, 100 S.E.2d 411, 416 (1957),
we recognized that this right has been held to mean effective
assistance [of counsel]....
(Emphasis added.) It is not uncommon for one who has been convicted to challenge whether
he or she has received that guaranteed effective assistance of counsel; and in its extensive
review of such claims, this Court has held that [i]n the West Virginia courts, claims of
ineffective assistance of counsel are to be governed by the two-pronged test established in
Strickland v. Washington
, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1)
Counsel's performance was deficient under an objective standard of reasonableness; and (2)
there is a reasonable probability that, but for counsel's unprofessional errors, the result of the
proceedings would have been different. Syl. Pt. 5, State v. Miller
, 194 W.Va. 3, 459 S.E.2d
114 (1995). We went on to clarify that [i]n reviewing counsel's performance, courts must
apply an objective standard and determine whether, in light of all the circumstances, the
identified acts or omissions were outside the broad range of professionally competent
assistance while at the same time refraining from engaging in hindsight or second-guessing
of trial counsel's strategic decisions. Thus, a reviewing court asks whether a reasonable
lawyer would have acted, under the circumstances, as defense counsel acted in the case at
issue. Syl. Pt. 6, State v. Miller
, 194 W.Va. 3, 459 S.E.2d 114 (1995). Guided by that
principle and mindful of its admonition not to second-guess trial counsel, we look at the
particular errors alleged to have been made by trial counsel.
On appeal, Humphries alleges that trial counsel, Paul Detch, was ineffective
for six reasons: He had a conflict of interest which made him a necessary witness in the
criminal trial, he allowed Humphries' Fifth Amendment rights to be violated, he failed to
impeach FBI Agent Baxter or to introduce Baxter's reports which would have corroborated
the defense's theory of the case, he failed to investigate or hire an expert, he allowed the
introduction of evidence as to the convictions of Humphries' co-defendants, and he allowed
Humphries' Sixth Amendment rights to be violated. Humphries alleges that the cumulative
effect of all these errors was so egregious as to be beyond any realm of objectively
reasonable conduct of a criminal defense attorney. We should note that in his petition
below, Humphries asserted that he suffered ineffective assistance of counsel only under the
theories that Detch allowed the introduction of evidence as to the convictions of Humphries'
co-defendants and that he allowed Humphries' Sixth Amendment rights to be violated.
(See footnote 7)
However, in the omnibus hearing, he did argue and elicit testimony on each of the errors
asserted on appeal here.
In State ex rel. Wine v. Bordenkircher
, 160 W.Va. 27, 230 S.E.2d 747 (1976),
the Court observed:
This is an appeal from the denial of relief on a petition for
habeas corpus. A petitioner who seeks relief in habeas corpus in
a trial court on one ground and appeals to this Court upon the
denial thereof cannot, on appeal, obtain such relief on a different
ground. Otherwise, the appeal would serve the office of an
original petition in habeas corpus.
Id. at 33, 751. However, we are of the mind that such is not really the case here. While it
is true that, on appeal, Humphries seems to have expanded on his argument of ineffective
assistance of counsel, he has not actually raised a different ground for relief as
contemplated by Bordenkircher. And the evidence before this Court is the same evidence
that was before the court below, so we are not now considering new evidence which would
tend to invoke our original jurisdiction. Accordingly, we have considered each of the
assertions of ineffective assistance of counsel presented by Humphries in this appeal.
Humphries' first argument is that trial counsel had a conflict of interest such
as would preclude Humphries from receiving a fair trial; therefore, Detch should have either
removed himself as trial counsel or should have been removed by the trial court. The State
agrees. The basis for this contention is the fact that Detch's father, John, had represented the
victim in his divorce from his wife, who later became the wife of Humphries. That divorce
goes to the very heart of the alleged motive in the underlying criminal trial.
(See footnote 8)
The matter of the conflict was actually raised by the State prior to trial. The
State objected to Detch representing Humphries and asked Detch to step aside. Detch
declined to step aside and assured the State that not only had he not worked on the divorce
case, but that Humphries had duly waived any objection to any conflict of interest. The State
then asked the trial court to disqualify Detch. The trial court found that while Detch's
representation of Humphries was a technical violation of Rules 1.9 and 1.10 of the West
Virginia Rules of Professional Responsibility,
(See footnote 9)
Detch had assured the court that he had no
information about the divorce case. Accordingly, the court denied the State's motion.
However, Humphries and the State further contend that Rule 3.7 of the Rules of Professional
Conduct, addressing Lawyer as witness, is at issue as well.
(See footnote 10)
Rule 3.7 is of particular interest because, during the omnibus hearing, Detch
testified that he may well have been the last attorney to see Mr. Abshire alive. He
explained that his father was representing Abshire in his divorce proceedings and that he had
reasons why he believed that Abshire had blown himself up. Detch testified further that he
knew that, that ah _ there was the whole discussion that time about the Las Vegas divorce
ah _ which even at that time, was discussed, in nineteen seventy-six (1976). That led to the
And by Las Vegas divorce, what are you referring to?
A: When I came to practice with my father, ah _ he
represented Billy Ray Abshire and, at that time period, he
asked me to resource [sic] the aspects of a Las Vegas
divorce and I had to go over it and spend time dealing
with that. I come [sic] out of law school and do
something about from the domestic relations and I
researched that, at that time. That was a hot issue during
the Abshire divorce. Now, how it factored in at that
time, I didn't know _
Explain what you mean by the Las Vegas divorce.
There was a discussion that Kitty ah _ Kitty Abshire was
going to go to Las Vegas and obtain a divorce so she
could deprive Mr. Abshire of his children and she was
making plans to go out there, maybe even went out there,
for all I knew but it was discussed and ah _ she was
going to go out there and my father was having me
research it as to whether the Las Vegas people ah _
would have had the jurisdiction to made [sic] an award of
custody and what that would define in terms of property
and that was what I had to research in that time period
and that's why Mr. Abshire was there in the office the
night before he was killed.
And that became an issue during the ah _ trial of Mr.
It was all brought and as far as I know, was not necessary
to provide testimony in regards to that. It was brought
out by several witnesses dealing with the Las Vegas
The biggest problem we had was Mr. Burnette saying
that a Las Vegas divorce was a threat to kill somebody
and as far as I knew that was just a false representation
to the court I resented it because that was just Mr.
Burnette's fabrication as far as I was concerned.
It would seem, then, that Detch was _ or at least could have been _ a necessary witness for
the defense to refute the State's assertion that the idea of a Las Vegas divorce was
something less than a legitimate means to an end of a marriage and something more akin to
a contract killing.
Furthermore, while Detch contended at the pre-trial hearing that he did not
represent Abshire and that he and his father were not really partners so much as two
attorneys sharing office space, the fact remains that in the divorce complaint filed by John
Detch on behalf of Abshire and for which Paul Detch now admits he performed research,
Humphries was named as the man with whom Kitty Abshire had fallen in love and for whom
she had left her husband. Detch testified at the omnibus hearing that he made Humphries
aware of his involvement in the Abshire divorce prior to trial. However, that directly
contradicts Detch's pre-trial assertions to the court that he had had no involvement with the
Abshire divorce case when he worked in his father's law office. Rule 1.7 of the Rules of
Professional Conduct is the general rule governing conflicts of interest, and it states, in
(b) A lawyer shall not represent a client if the representation of
that client may be materially limited by the lawyer's
responsibilities to another client or to a third person, or by the
lawyer's own interests, unless:
(1) the lawyer reasonably believes the representation will not be
adversely affected; and
(2) the client consents after consultation. When representation
of multiple clients in a single matter is undertaken, the
consultation shall include explanation of the implications of the
common representation and the advantages and risks involved.
(Emphasis added.) While the record reveals that during the hearing on the State's pre-trial
motion to disqualify Detch, Detch represented to the court that Humphries specifically
waived any conflict of interest, one must question whether that waiver was truly an informed
decision following consultation under Rule 1.7 given Detch's conflicting statements about
what his involvement was in the Abshire divorce case.
Detch was obligated by the Rules of Professional Conduct to step aside and let
Humphries find counsel elsewhere. When he didn't, the trial court abused its discretion
when it failed to disqualify him. A circuit court, upon motion of a party, by its inherent
power to do what is reasonably necessary for the administration of justice, may disqualify a
lawyer from a case because the lawyer's representation in the case presents a conflict of
interest where the conflict is such as clearly to call in question the fair or efficient
administration of justice. Such motion should be viewed with extreme caution because of the
interference with the lawyer-client relationship. Syl. Pt. 1, Garlow v. Zakaib, 186 W.Va.
457, 413 S.E.2d 112 (1991). Here, the conflict was clearly at odds with the fair and efficient
administration of justice. And while Humphries had the right to retain whatever attorney he
chose, he also _ and more importantly _ had the right to effective representation, free from
conflict. See Syl. Pt. 2, Cole v. White, 180 W.Va. 393, 376 S.E.2d 599 (1988). As we
recognized in State ex rel. Blake v. Hatcher, 218 W.Va. 407, 413-414, 624 S.E.2d 844, 850
- 851 (2005), Where representation is affected by an actual conflict of interest, the defendant
cannot be said to have received effective assistance of counsel as required by the Sixth
Humphries' next argument is that Detch allowed Humphries' Fifth Amendment
rights to be violated. Andrew McQueen, testifying at the omnibus hearing as an expert on
effective assistance of counsel and the fairness of the criminal trial, pointed out that in its
direct examinations of ATF Agent Jack Beck, the State, in reviewing the list of suspects the
ATF investigated in 1976, elicited testimony which made light of the fact that Humphries
consulted with his attorney and opted not to speak to investigators at the time of the initial
investigation into Abshire's death. Later on, the State elicited testimony from former
Assistant United States Attorney Morgan Scott regarding Humphries' choice to consult with
his attorney before answering certain of Scott's questions. Detch did not object either time;
although, the State had clearly crossed over into a line of questioning that was violative of
Humphries' right to remain silent. McQueen testified that a reasonably competent attorney
would have objected.
McQueen also took issue with Detch asking Humphries on direct, Have you
at anytime refused to give a statement to the police in this regard? While Humphries went
on to answer, No sir, I have not, McQueen testified that Detch's asking of that particular
question constituted waiver of his client's rights. Again, McQueen testified that a competent
attorney would not find any strategic value in such a question.
Finally, in its closing argument, the State commented, On August the 16th,
1976, ATF Agent Jack Beck _ you heard his testimony _ he closed his investigation after
exhausting all possible leads. He didn't have anything to go on. He didn't know about Gene
Gaylor. Mr. Humphries hadn't told him anything about Gene Gaylor. Despite several other
objections sprinkled throughout the State's closing argument, Detch did not object to that
particular statement despite the fact that this Court has said:
'Under the Due Process Clause of the West Virginia
Constitution, Article III, Section 10, and the presumption of
innocence embodied therein, and Article III, Section 5, relating
to the right against self-incrimination, it is reversible error for
the prosecutor to cross-examine a defendant in regard to his
pre-trial silence or to comment on the same to the jury.' Syllabus
point 1, State v. Boyd, 160 W.Va. 234, 233 S.E.2d 710 (1977).
Syl. Pt. 1, State v. Walker, 207 W.Va. 415, 533 S.E.2d 48
It seems clear that Detch's failure to object to the introduction of evidence which would tend
to violate Humphries' rights under the Fifth Amendment demonstrates that his representation
of Humphries was deficient, satisfying the first prong of the Miller test. It is less clear
whether the result of the trial would have been different if Detch had been more vigilant of
Humphries' Fifth Amendment rights, but we will reserve judgment on the impact of Detch's
actions or inactions for now.
Humphries' next argument is that he suffered ineffective assistance of counsel
when Detch failed to impeach the testimony of FBI Agent George Baxter with a 1977 report
which Baxter had prepared following his investigation of Abshire's death. That report
contains observations that the device which killed Abshire consisted of Kin-E-Pak explosive,
an electric blasting cap, and an anti-disturbance device. According to that same report, each
of these components was also found in Abshire's trailer, which would corroborate the
defense theory that, in fact, Abshire constructed the bomb himself and accidentally detonated
At trial, Baxter testified as to how different types of bombs are constructed and
how they operate. While Detch questioned Baxter extensively on cross-examination as to
whether the bomb might have accidentally detonated or detonated through some action of
Abshire, he did not question Baxter as to whether Abshire could have constructed the bomb.
He also failed to introduce Baxter's report into evidence or otherwise question him as to
whether the components found inside Abshire's trailer could have been the same components
used to construct the bomb.
McQueen testified at the omnibus hearing that a reasonably competent attorney
would have either cross-examined Baxter about the contents of his 1977 report or put the
document into evidence in order to argue it like crazy. And given that the thrust of the
defense was that Abshire had built the bomb himself and had accidentally detonated it, it is
hard to imagine that there was any strategic reason for not introducing the document or
questioning Baxter about it. Again, it would certainly seem that the first prong of the Miller
test has been satisfied here. It also seems that it is probable that the introduction of such
information would have led the jury to a different outcome, but, again, we reserve judgment
until we have evaluated each assertion of ineffective of counsel.
Humphries next argues that Detch failed to properly investigate this highly
complex case. Specifically, Humphries points out that Detch failed to retain an expert to
investigate what little bit of evidence remained to determine the structure of the bomb, who
might have constructed it, and how it might have been detonated. He also points out that
Detch did not employ a private investigator to investigate the State's star witness, Clayton
McQueen testified at the omnibus hearing that a competent attorney would
have enlisted both a forensics expert and an investigator to help him or her pick through the
time-worn and tedious details of this case. Detch testified that he simply did not have the
financial resources to hire an expert and that, traditionally, he and his staff did all of the leg
work on his cases rather than hiring an investigator. Detch further testified that he fully
discussed the proposition with Humphries, but at the end of the day, Humphries did not feel
that he could raise the money for an expert.
As we recognized in State ex rel. Quinones v. Rubenstein, 218 W.Va. 388,
394, 624 S.E.2d 825, 831 (2005), With regard to the responsibility of an attorney to
investigate, the United States Supreme Court in Strickland v. Washington said, 'counsel has
a duty to make reasonable investigations or to make a reasonable decision that makes
particular investigations unnecessary. In any ineffectiveness case, a particular decision not
to investigate must be directly assessed for reasonableness in all the circumstances, applying
a heavy measure of deference to counsel's judgment.' 466 U.S. at 691, 104 S.Ct. 2052.
Given the complexities of this case, we agree with McQueen that it was unreasonable for
Detch not to hire an expert or independent investigator. While in Quinones we were not
convinced that the attorney's failure to investigate prejudiced the defendant's case, here we
are not convinced that Detch's failure to investigate did not prejudice Humphries' case.
Again, we find that the first prong of Miller has been met.
Humphries also challenges the introduction of co-defendant Robert Brown's
conviction, who, along with Gene Gaylor, was tried and convicted before Humphries. In
fact, it was during Detch's cross-examination of State Trooper Michael Spradlin that the
matter was raised. In discussing the corroboration of a statement made to him, Detch asked
Spradlin, If I understand it correctly, you're only talking about another codefendant.
Spradlin answered, Codefendant Robert Vernon Brown who was convicted. Now,
certainly, Detch did not elicit this particular response from Spradlin. However, it was
incumbant upon Detch to object, move to strike, ask the court to give a cautionary
instruction, and/or move for a mistrial in light of this prejudicial testimony. After all, [o]ur
law is clear that the State may not introduce evidence of a conviction or guilty plea on the
part of a co-conspirator or accomplice to prove the guilt of a person subsequently put on trial
for committing or participating in the same crime. State v. Wood, 167 W.Va. 700, 703, 280
S.E.2d 309, 312 (1981).
Moreover, Humphries had specifically requested that his trial be moved from
Greenbrier County because of the very publicity generated by the Gaylor and Brown trials.
Still, Detch did nothing to attempt to ameliorate the damage, though he was likely to find
success. This Court has held that:
It is a proper exercise of trial court discretion to deny a
defendant's motion for mistrial, based on the mention at trial of
the fact of an alleged co-conspirator's or accomplice's
conviction of or plea of guilty to the same offense for which the
defendant is being tried, in circumstances where the trial's
continuation will not result in actual prejudice to the defendant.
Syl. Pt. 3, State v. Ellis, 161 W.Va. 40, 239 S.E.2d 670 (1977).
Yet Detch did not even make a motion for mistrial. Though Detch testified later that he
expected all along that the State would try to sneak [the conviction] in, he left the decision
as to whether to move for a mistrial to his client. When Humphries tried to defer to Detch's
judgment, Detch, according to his own testimony, again left it to his client. In his own
words, Detch explained at the omnibus hearing, Mistrials to me just postpones [sic]
something and they double your cost, so I _ I, frankly, don't favor mistrials. We believe that
a reasonably competent attorney would have at least objected or moved to strike and would
likely have made a motion for mistrial; therefore, the first prong of Miller has been
Humphries' last contention of ineffective assistance of counsel is that Detch
failed to address violations of Humphries' Sixth Amendment rights. Humphries argued that
throughout the trial, hearsay testimony was offered through various witnesses who testified
as to what people who were not witnesses at the trial had told them, particularly key players
Gene Gaylor, Robert Brown, and Kitty Abshire Humphries. Again, Detch seemed to often
elicit this testimony himself; and, again, he failed to object when the prejudicial testimony
was offered by the witnesses.
McQueen, at the omnibus hearing, testified that a reasonably competent
attorney would not open the door to hearsay testimony like that presented in this case and
would object to its introduction. We agree. As we recently reiterated in State v. Middleton,
___ W.Va. ___, ___, 640 S.E.2d 152, (2006), This Court has explained that '[t]he Sixth
Amendment to the United States Constitution and Section 14 of Article III of the West
Virginia Constitution guarantee an accused the right to confront and cross-examine
witnesses.' State v. Mason, 194 W.Va. 221, 227, 460 S.E.2d 36, 42 (1995), overruled on
other grounds by State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006). Id. at 165
-166. Reasonably competent or effective counsel would seek to protect such a fundamental
right. The State and the trial court tried to protect Humphries' rights by offering their own
objections to Detch's line of questions and failure to object, for even they feared that
Humphries was being done in by his defense counsel. We, too, believe that no reasonably
competent attorney would have risked his or her client's rights, so the first prong of Miller
seems, again, to have been met.
Humphries concludes that the cumulative effect of these errors deprived him
of his right to effective counsel, and the State agrees. We, too, agree and find, according to
the Miller test, that Detch's performance was deficient under an objective standard of
reasonableness and that there is a reasonable probability that, but for Detch's errors, the
result of Humphries' criminal trial would have been different. We acknowledge Detch's
assertion that it was strategy to put it all out on the table, and we recognize that we have
held that [w]here a counsel's performance, attacked as ineffective, arises from occurrences
involving strategy, tactics and arguable courses of action, his conduct will be deemed
effectively assistive of his client's interests, unless no reasonably qualified defense attorney
would have so acted in the defense of an accused. Syl. Pt. 21, State v. Thomas, 157 W.Va.
640, 203 S.E.2d 445 (1974). However, we can find no strategic value in Detch's choices at
trial, and we feel sure that no reasonable attorney would have pursued a like strategy.
Accordingly, we find that the circuit court erred in finding that Humphries had not suffered
ineffective assistance of counsel at his criminal trial.
B. Violation of Humphries' Fifth Amendment Rights
The second error which Humphries alleges and which the State concedes is that
Humphries' Fifth Amendment rights were violated during his criminal trial when reference
was made to his failure to give a statement to investigators and his invocation of his right to
consult counsel before answering certain questions. This particular issue was neither raised
in Humphries' amended petition for habeas corpus relief below, nor was it directly addressed
in the lower court's final order denying habeas corpus relief. The matter was raised in
testimony given at the omnibus hearing, but only in the context of ineffective assistance of
counsel and Detch's failure to address said violations. As we have previously noted, in State
ex rel. Wine v. Bordenkircher, supra, this Court held that a petitioner for habeas corpus relief
cannot introduce new grounds for relief on appeal which were not raised below. Moreover,
this Court is prepared to grant relief to Humphries on other grounds; therefore, despite the
State's concession of error, we will not address the Fifth Amendment argument on appeal
as it was not raised below.
C. Violation of Humphries' Sixth Amendment Rights
The third and final issue upon which Humphries seeks relief and to which the
State concedes error is the violation of Humphries' Sixth Amendment right to confront the
witnesses against him. There were several instances throughout the trial when _ often in
Detch's own examination of a witness _ hearsay testimony was elicited as to what certain
people who were not available at trial had said regarding various material issues. The most
troubling instances of such conduct involved co-defendants Gene Gaylor, Robert Brown, and
Kitty Abshire Humphries, none of whom testified at Humphries' trial. For instance, in cross-
examining Trooper Spradlin, Detch elicited testimony as to Kitty's assertion that she and
Humphries had never discussed nor formed a plan to acquire a Las Vegas divorce for Kitty.
Spradlin also testified as to what Robert Brown told him, which tended to
corroborate the testimony of the State's star witness, Clayton Gaylor. At another point, while
questioning Clayton Gaylor about a box he saw in Gene Gaylor's possession, Detch asked
How did you know it was a bomb? Clayton Gaylor replied, Because he said so. Another
exchange involved both the direct and cross-examinations of Gene Gaylor's ex-wife who
testified that Gene Gaylor had met with Humphries in or around November of 1975. When
asked how she knew that it was Humphries that her ex-husband met with, she explained that
Gene Gaylor told her that it was Humphries. These are but a few examples of the testimony
elicited throughout the trial which would tend to constitute hearsay and to deprive Humphries
of his right to confront the witnesses against him.
We have recognized that:
The mission of the Confrontation Clause found in the Sixth
Amendment to the United States Constitution and Section 14 of
Article III of the West Virginia Constitution is to advance a
practical concern for the accuracy of the truth-determining
process in criminal trials, and the touchstone is whether there
has been a satisfactory basis for evaluating the truth of the prior
statement. An essential purpose of the Confrontation Clause is
to ensure an opportunity for cross-examination. In exercising
this right, an accused may cross-examine a witness to reveal
possible biases, prejudices, or motives. Syl. Pt. 1, State v.
, 194 W.Va. 221, 460 S.E.2d 36 (1995).
In Syllabus Point 2 of State v. James Edward S.
, 184 W.Va. 408, 400 S.E.2d 843 (1990), this
Court held that [t]he two central requirements for admission of extrajudicial testimony
under the Confrontation Clause contained in the Sixth Amendment to the United States
Constitution are: (1) demonstrating the unavailability of the witness to testify; and (2)
proving the reliability of the witness's out-of-court statement. In light of subsequent
rulings from the United States Supreme Court, we later held:
(See footnote 11)
We modified our holding in James Edward S., 184 W.Va. 408,
400 S.E.2d 843 (1990), to comply with the United States
Supreme Court's subsequent pronouncements regarding the
application of its decision in Ohio v. Roberts, 448 U.S. 56, 100
S.Ct. 2531, 65 L.Ed.2d 597 (1980), to hold that the
unavailability prong of the Confrontation Clause inquiry
required by syllabus point one [sic] of James Edward S. is only
invoked when the challenged extrajudicial statements were
made in a prior judicial proceeding. Syl. Pt. 2, State v. Kennedy,
205 W.Va. 224, 517 S.E.2d 457 (1999).
The statements at issue here were not made in prior judicial proceedings, but, rather, during
the course of the investigation of the death of Abshire, so it matters not whether the witnesses
were unavailable. The question becomes, then, whether the evidence offered bears an
adequate indicia of reliability. In Syllabus Point 5 of James Edward S., supra, we held,
Even though the unavailability requirement has been met, the Confrontation Clause
contained in the Sixth Amendment to the United States Constitution mandates the exclusion
of evidence that does not bear adequate indicia of reliability. Reliability can usually be
inferred where the evidence falls within a firmly rooted hearsay exception. We later
clarified that [f]or purposes of the Confrontation Clause found in the Sixth Amendment to
the United States Constitution and Section 14 of Article III of the West Virginia Constitution,
no independent inquiry into reliability is required when the evidence falls within a firmly
rooted hearsay exception. Syl. Pt. 6, State v. Mason, 194 W.Va. 221, 460 S.E.2d 36 (1995).
The court below found that the statements offered by Gene Gaylor, Brown, and
Kitty through various witnesses at trial constituted statements by co-conspirators during the
course and in furtherance of the conspiracy, which, under Rule 801(d)(2)(E), are not
hearsay. Therefore, the habeas court concluded that the trial court did not abuse its discretion
in allowing the statements. However, as Humphries and the State point out, the most
troublesome of the statements offered at trial were made after Abshire was dead and,
accordingly, after the conspiracy had ended. The State asserts that the statements were made
not in the furtherance of the conspiracy, but for self-serving purposes ranging from securing
reward money to revenge to exculpating the co-conspirators themselves. We agree that there
is no exception to the hearsay rule which would allow the statements at issue to come into
evidence except through the testimony of those who made the statements.
Gene Gaylor, Brown, and Kitty did not testify at Humphries' trial, so
Humphries had no opportunity to cross-examine them on the damning statements which were
offered through other witnesses. Therefore, Humphries' Sixth Amendment right to confront
the witnesses against him was violated, and the habeas court erred in not recognizing that
right and in denying relief in habeas corpus. Moreover, [f]ailure to observe a constitutional
right constitutes reversible error unless it can be shown that the error was harmless beyond
a reasonable doubt. Syl. Pt. 5, State ex rel. Grob v. Blair, 158 W.Va. 647, 214 S.E.2d 330
Having established that the lower court erred in finding that Humphries did not
suffer ineffective assistance of counsel and in finding that his Sixth Amendment rights were
not violated, we find that the lower court abused its discretion in denying habeas corpus relief
to Humphries. Accordingly, we reverse the decision of the Circuit Court of Greenbrier
County and remand the matter for a new criminal trial.
No oral argument was made on this case. Rather, the case was submitted on briefs.
Humphries would later be represented at his criminal trial by John Detch's son, Paul,
which goes to the very heart of this appeal.
In felony indictment 98-F-54, Humprhries was indicted on one count as an accessory
before the fact to murder, on one count of conspiracy to commit murder, and on one count
of conspiracy to inflict injury. The third count _ conspiracy to inflict injury _ was dismissed
upon the State's motion on March 16, 1999.
When the case was moved to Putnam County on July 1, 1999, it was assigned case
The six issues presented were: Ineffective assistance of counsel, pre-indictment delay,
failure to disclose exculpatory evidence, violation of Humphries' Fifth Amendment rights,
violation of double jeopardy, and violation of Humphries' Sixth Amendment rights.
The Court was also curious as to Humphries' contention that exculpatory evidence
was withheld from the defense. However, Humphries' argument on this point is rather
vague, and there is nothing in the record such as would allow the Court to fairly evaluate the
merits of this argument. We find no merit in the remaining two issues.
The other issues raised in the petition for writ of habeas corpus were pre-indictment
delay, violation of Humphries Sixth Amendment rights (outside of the context of ineffective
assistance of counsel), and failure to dismiss upon the issue of double jeopardy.
The theory of the State's case was that Humphries had hired Gene Gaylor to murder
Abshire because he would not grant Kitty a divorce. The State theorized that though
Humphries claimed to have paid Gaylor to research how Kitty could obtain a Las Vegas
divorce, the term Las Vegas divorce was actually slang for a contract killing.
Rule 1.9 of the West Virginia Rules of Professional Conduct states as follows:
Conflict of interest: Former client.
A lawyer who has formerly represented a client in a matter shall
(a) represent another person in the same or substantially related
matter in which that person's interests are materially adverse to
the interests of the former client unless the former client
consents after consultation; or
(b) use information relating to the representation to the
disadvantage of the former client except as Rule 1.6 or Rule 3.3
would permit or require with respect to a client or when the
information has become generally known.
Rule 1.10 states:
Imputed disqualification: General rule.
(a) While lawyers are associated in a firm, none of them shall
knowingly represent a client when any one of them practicing
alone would be prohibited from doing so by Rules 1.7, 1.8(c),
1.9 or 2.2.
(b) When a lawyer becomes associated with a firm, the firm may
not knowingly represent a person in the same or a substantially
related matter in which that lawyer, or a firm with which the
lawyer was associated, had previously represented a client
whose interests are materially adverse to that person and about
whom the lawyer had acquired information protected by Rules
1.6 and 1.9(b) that is material to the matter.
(c) When a lawyer has terminated an association with a firm, the
firm is not prohibited from thereafter representing a person with
interests materially adverse to those of a client represented by
the formerly associated lawyer unless:
(1) the matter is the same or substantially related to that in which
the formerly associated lawyer represented the client; and
(2) any lawyer remaining in the firm has information protected
by Rules 1.6 and 1.9(b) that is material to the matter.
(d) A disqualification prescribed by this rule may be waived by
the affected client under the conditions stated in Rule 1.7.
Rule 3.7 states:
Lawyer as witness.
(a) A lawyer shall not act as advocate at a trial in which the
lawyer is likely to be a necessary witness except where:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services
rendered in the case; or
(3) disqualification of the lawyer would work substantial
hardship on the client.
(b) A lawyer may act as advocate in a trial in which another
lawyer in the lawyer's firm is likely to be called as a witness
unless precluded from doing so by Rule 1.7 or Rule 1.9.
We note that this Court has revisited this matter yet again in State v. Mechling, 219
W.Va. 366, 633 S.E.2d 311 (2006), which was a ruling issued subsequent to the United
States Supreme Court's decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354,
158 L.Ed.2d 177 (2004). The law now reflects that:
Pursuant to Crawford v. Washington, 541 U.S. 36, 124 S.Ct.
1354, 158 L.Ed.2d 177 (2004), the Confrontation Clause
contained within the Sixth Amendment to the United States
Constitution and Section 14 of Article III of the West Virginia
Constitution bars the admission of a testimonial statement by a
witness who does not appear at trial, unless the witness is
unavailable to testify and the accused had a prior opportunity to
cross-examine the witness.
Mechling at Syllabus Point 6. However, Mechling is not applicable to this case as the
underlying criminal trial herein was conducted prior to the Crawford and Mechling decisions.