In the Matter of : Eddie K.
Annotate this Case
January 1995 Term
___________
No. 22510
___________
STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee
v.
EDDIE "TOSH" K., A CHILD UNDER THE
AGE OF EIGHTEEN YEARS, AND EDDIE K.,
PARENT OR CUSTODIAN OF SAID CHILD,
Defendants Below, Appellants
___________________________________________________
Appeal from the Circuit Court of Marion County
Honorable Rodney B. Merrifield, Judge
Civil Action No. 93-J-127
AFFIRMED, IN PART;
REVERSED, IN PART.
___________________________________________________
Submitted: January 24, 1995
Filed: July 14, 1995
Robert F. Cohen, Jr. Darrell V. McGraw, Jr.
Natalie J. Harrison Attorney General
Cohen, Abate & Cohen Stephen R. VanCamp
Fairmont, West Virginia Deputy Attorney General
Attorney for the Appellants Charleston, West Virginia
Attorneys for the Appellee
This Opinion was delivered PER CURIAM.
JUSTICE BROTHERTON did not participate.
JUSTICE CLECKLEY and JUDGE FOX, deeming themselves disqualified,
did not participate.
JUDGES RANSON AND STEPHENS sitting by temporary assignment.
RETIRED JUSTICE NEELY participated in the consideration and
decision of this case.
SYLLABUS BY THE COURT
1. "In a criminal case, a verdict of guilt will not be
set aside on the ground that it is contrary to the evidence, where
the state's evidence is sufficient to convince impartial minds of
the guilt of the defendant beyond a reasonable doubt. The evidence
is to be viewed in the light most favorable to the prosecution. To
warrant interference with a verdict of guilt on the ground of
insufficiency of evidence, the court must be convinced that the
evidence was manifestly inadequate and that consequent injustice
has been done." Syl. pt. 1, State v. Starkey, 161 W. Va. 517, 244 S.E.2d 219 (1978).
2. "Sentences imposed by the trial court, if within
statutory limits and if not based on some [im]permissible factor,
are not subject to appellate review." Syl. pt. 4, State v.
Goodnight, 169 W. Va. 366, 287 S.E.2d 504 (1982).
3. "'Moot questions or abstract propositions, the
decision of which would avail nothing in the determination of
controverted rights of persons or of property, are not properly
cognizable by a court.' Syllabus Point 1, State ex rel. Lilly v.
Carter, 63 W. Va. 684, 60 S.E. 873 (1908)." Syllabus, Standard
Hydraulics, Inc. v. Kerns, 182 W. Va. 225, 387 S.E.2d 130 (1989).
4. "'An order to which no objection was made and which
was actually approved by counsel, will not be reviewed on appeal.'
Syl. pt. 1, Loar v. Massey, ___ W. Va. ___, 261 S.E.2d 83 (1979)." Syl. pt. 3, In the Interest of S.C., 168 W. Va. 366, 284 S.E.2d 867
(1981).
Per Curiam:
The appellant, Eddie "Tosh" K.,See footnote 1 was adjudicated a
delinquent child as a result of having committed an assault. He
appeals a March 15, 1994 order of the Circuit Court of Marion
County which denied his motion to disqualify the Honorable Judge
Rodney B. Merrifield, the trial judge; denied his motion for public
proceedings; denied his motion for judgment of acquittal, in arrest
of judgment and for a new trial; and sentenced him to six months
probation pursuant to W. Va. Code, 49-5-13(b)(3) [1988] which
outlines the disposition of a child in a juvenile proceeding.See footnote 2
I.
On September 21, 1993, the appellant, who was then
sixteen years old, and four other students were involved in a fight
at North Marion High School, in Marion County, West Virginia. All
five students were suspended from school for three days for their
involvement in the fight. Additionally, all five students were
charged with battery after the school principal reported the fight
to the sheriff's department because of problems with racial tension
at the high school.
Two of the students, Zane Hall and William "Butch" Long,
pleaded guilty to battery charges in adult court since they were at least eighteen years old when the fight occurred. They were placed
on probation for one year.
The appellant's case went to trial on a charge of
delinquency based upon the battery charge. After hearing the
evidence the jury found the appellant delinquent as a result of
committing an assault. Thereafter, the trial judge accepted the
juvenile probation officer's recommendation and placed the
appellant on six months probation.
II.
At the outset, we point out that it is difficult for us
to understand how one high school fist fight, which did not result
in serious injuries, could thrust a juvenile, who was a good
student and athlete, so deeply into the juvenile justice system.
Indeed, our review of the record reveals that there were several
situations in this case which were not appropriately handled. Our
primary concern is that it appears that the trial judge
inappropriately took an "overly active" and "heavy handed"
approach to this case. Thus, he possibly compromised his judicial
role. Further, the appellant's trial attorney failed to make the
required objections which would protect the record for meaningful
review of some of the issues raised on appeal.
We are concerned about the following occurrences: (1)
the trial judge put the appellant, whose record reveals that the
only incident he has been involved in is the physical altercation
which is the subject of this appeal, in the custody of the
Industrial Home for Youth for thirty days of diagnostic testing, thus requiring the appellant to seek a writ of prohibition from
this Court for his release; (2) appellant's trial attorney's
failure to object to the appellant being taken into the custody of
the Industrial Home for Youth;See footnote 3 and (3) the trial judge's refusal
to release to the parties an affidavit made by the appellant's high
school principal which allegedly relates to the appellant's case.
These issues are obviously of great concern to this Court.
However, as we discuss below, we do not find reversible error on
the above points in this case.
The appellant raises numerous errors, many of which have
no merit. However, some alleged errors require a discussion.
Those errors will be addressed as trial and post-trial errors.See footnote 4 The trial errors are (1) whether the evidence was sufficient to
support a finding of delinquency based upon the crime of assault
and (2) whether the trial judge could instruct the jury on the
crime of assault when the petition seeking the adjudication of
delinquency asserted the alleged conduct was battery. The post-
trial errors raised by the appellant are (1) whether the trial
judge improperly denied appellant's motion for public proceedings;
(2) whether the trial judge improperly refused to provide
appellant's counsel with a copy of an affidavit; and (3) whether in
the disposition of this matter the trial judge applied the
appropriate statutory dispositional alternative set forth in W. Va.
Code, 49-5-13 [1988] when placing the appellant on probation.
III.
TRIAL ERRORS
A.
The first issue is whether the appellant was properly
found delinquent on a charge of assault. Initially, we must
determine what the appropriate standard of review is for an
adjudication of delinquency. As we stated in State v. William T.,
175 W. Va. 736, 738, 338 S.E.2d 215, 218 (1985), "an adjudication
of delinquency is subject to the same standards of review on appeal
as is a criminal conviction." (citation omitted). Therefore, the
following standard of review regarding the sufficiency of evidence
in a criminal case is applicable to the case before us:
In a criminal case, a verdict of guilt
will not be set aside on the ground that it is
contrary to the evidence, where the state's
evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a
reasonable doubt. The evidence is to be
viewed in the light most favorable to the
prosecution. To warrant interference with a
verdict of guilt on the ground of
insufficiency of evidence, the court must be
convinced that the evidence was manifestly
inadequate and that consequent injustice has
been done.
Syl. pt. 1, State v. Starkey, 161 W. Va. 517, 244 S.E.2d 219
(1978). See also syl. pt. 10, State v. Gill, 187 W. Va. 136, 416 S.E.2d 253 (1992). Additionally, we are mindful that a delinquent
child is a child "[w]ho commits an act which would be a crime under
state law . . . if committed by an adult, punishable by confinement
in a jail or imprisonment[.]" W. Va. Code, 49-1-4(1) [1978].
Although there was conflicting evidence at trial as to
what happened on the day of the fight, our review of the record
indicates that when viewed most favorably to the State, the
evidence supports a finding of delinquency based upon the crime of
assault. The appellant testified that he was at his locker when he
heard a commotion in the hall at school. Upon investigation, the
appellant saw two black students, Jay F. and Mike M., standing in
the hall with Butch Long. According to the appellant, Long and Jay
F. looked as if they were going to fight one another. The
appellant asserts that he had his hands in his pockets and was
prepared to watch the fight when suddenly Long struck him above the
left eye. When it appeared that Long was going to strike him
again, the appellant states that a struggle ensued resulting in the
appellant striking Long. Jay F. and Mike M., who were witnesses
for the appellant, corroborated the appellant's story.
Conversely, Long testified that he was walking down the
hallway when Jay F., Mike M., and the appellant ordered him to the
bathroom in order to fight. Long asserts that when he refused, the
appellant grabbed and ripped his shirt. Long responded by punching
the appellant. This in turn led to a fight between Long and the
appellant.
Therefore, when viewed most favorably to the State, the
evidence shows that the appellant grabbed Long's shirt and engaged
in a physical altercation with him. Thus, pursuant to W. Va. Code,
61-2-9(b) [1978], which sets forth the elements of an assault, the
appellant's actions may be viewed as an "unlawful[] attempt[] to
commit a violent injury to the person of another[.]"See footnote 5
Accordingly, when viewing the record in a light most favorable to
the prosecution, we do not find that the evidence supporting a jury
conviction of assault is manifestly inadequate.See footnote 6
B.
Second, the appellant argues that since the crime of
assault is not a lesser included offense of the crime of battery,
it was plain error for the trial judge to instruct the jury on the
crime of assault since the appellant was only charged with battery.
The trial judge indicated that he was not going to tender
either the State's or the appellant's proposed jury instructions.
The trial transcript reveals that the trial judge and the lawyers
for the State and the appellant reviewed, page by page, the trial
judge's proposed instructions to the jury, including the assault
instruction presently at issue. The transcript further reveals
that the trial judge afforded both parties the opportunity to
object to each of the proposed instructions, including the
instruction on assault. Despite the opportunity to object to the
trial judge's proposed instructions, the appellant's counsel chose
not to object to any of them, including the assault instruction.
West Virginia Constitution art. III, § 14 provides that
a defendant has a right to be fully informed of the nature of the
offense against him or her. However, the record in the case before
us is barren of any error in that regard with the possible
exception of the instructions which discuss both battery and assault. As we previously stated, whether or not assault is a
lesser included offense of battery, the appellant's trial attorney
chose not to object to the instructions.
Recently, this Court held that "[w]hen there has been a
knowing and intentional relinquishment or abandonment of a known
right . . .," there is no error to analyze pursuant to the plain
error analysis. Syl. pt. 8, in part, State v. Miller, No. 22571,
___ W. Va. ___, ___ S.E.2d ___ (May 18, 1995). See also United
States v. Lakich, 23 F.3d 1203, 1207-8 (7th Cir. 1994) (Since the
defendant's attorney specifically stated that he agreed with the
trial court's supplemental instructions the Seventh Circuit held
that the defendant waived any objection to the supplemental
instructions and rejected defendant's request for analysis under
the plain error doctrine). Accordingly, the appellant's request
for analysis under the plain error doctrine is rejected.
IV.
POST-TRIAL ERRORS
A.
First, the appellant contends the trial judge improperly
denied his motion for public proceedings, which motion was filed
prior to the sentencing hearing, but after the delinquency hearing.
The appellant relies upon W. Va. Code, 49-5-1(d) [1982], which
provides, in pertinent part, that "the general public shall be
excluded except persons whose presence is requested by a child or
respondent and other persons the court finds to have a legitimate
interest." (emphasis added).
The State maintains that the exception in the above code
section was not meant to allow the public in the courtroom during
the proceeding. Clearly, the purpose behind excluding the public
from the hearing of a juvenile proceeding is to protect the
juvenile and not to infringe upon the rights of the juvenile.
The appellant argues, however, that he is entitled to
waive his right to have the public excluded. Furthermore, he
asserts that if he does waive such right, it will violate his right
to have his criminal proceeding open and public as found in the
Sixth Amendment of the United States Constitution and in article
III, § 14 of the W. Va. Const. if the trial court declines to allow
the public to be present. Additionally, the appellant maintains
that if this Court construes W. Va. Code, 49-5-1(d) [1982] to mean
that the juvenile could never request a public proceeding, then §
49-5-1(d) [1982] would violate the First Amendment to the U. S.
Const.
We fail to see how the absence of the public at the
sentencing hearing infringed upon the rights of the appellant.
Indeed, the appellant, himself, failed to provide this Court any
authority suggesting that the failure to allow the public to be
present during the sentencing hearing infringes upon a juvenile's
rights when the juvenile did not request the presence of the public
at the delinquency proceeding. Essentially, the appellant seeks to
pick and choose at what stages he wanted the public to be present.
We acknowledge, however, that had this issue been raised
prior to the appellant's delinquency hearing, the ramifications could be very significant. Currently, throughout the country,
courts are addressing similar issues. E.g., RLR v. State, 487 P.2d 27, 38 (Alaska 1971) (Children in juvenile delinquency proceedings
are guaranteed the right to a public trial); In re McM., 164 Cal. Rptr. 199 (Calif. Ct. App. 1980) (A juvenile has no constitutional
right to a public trial in a juvenile court proceeding); Florida
Pub. Co. v. Morgan, 322 S.E.2d 233, 238 (Ga. 1984) (A state may
create a rule that juvenile court proceedings are presumed to be
closed to the public, but for constitutional reasons this
presumption cannot be conclusive); In re Burrus, 169 S.E.2d 879,
886-87 (N.C. 1969), cert. granted by 397 U.S. 1036 (1970) and
judgment affirmed on other grounds, McKeiver v. Pennsylvania, 403 U.S. 528 (1971) (A public hearing is not required in a juvenile
court proceeding. In McKeiver the Supreme Court of the United
States held that a trial by jury in the adjudicative stage of a
juvenile proceeding was not constitutionally required) In re N.
H., 626 N.E.2d 697 (Ohio Com. Pl. 1992) (The public does have an
interest to access delinquency proceedings which is similar to its
interest in criminal matters; however, the public's interest must
be weighed against the confidentiality concerns of the juvenile
court proceeding.) We decline to further address this issue
because the appellant has failed to sufficiently argue how the
exclusion of the public from his sentencing proceeding infringed
upon his rights considering the appellant failed to seek public
access during the delinquency proceeding.
B.
Second, the appellant asserts that the trial judge
improperly refused to provide appellant's counsel with a copy of an
affidavit of Paul Donato, the principal of appellant's high school.
Though the trial judge has stated that the affidavit was not part
of this case, a letter written by Mr. Donato to the appellant's
counsel indicates otherwise.
According to the appellant, Mr. Donato stated that he did
not believe that appellant should have been charged as a juvenile
delinquent; however, appellant states that Mr. Donato declined to
provide an additional statement since the affidavit filed with the
circuit court was his statement. Specifically, in a letter dated
December 9, 1993, Mr. Donato wrote to appellant's counsel that the
affidavit "will stand as my statement on this matter."
Common sense dictates that a trial judge should not
conceal an affidavit which was written for purposes of being made
part of a record. Furthermore, a trial judge may not intentionally
conceal information which has a bearing on the case. Such behavior
by a trial judge will not be condoned.
Unfortunately, the record does not reveal the contents of
the affidavit. Without a more developed record on this issue, this
Court is unable to determine the relevance, if any, of the
affidavit to the case before us. The appellant should have
requested that the trial judge send the affidavit to this Court
under seal, if necessary, for an examination of its contents. Cf.
W. Va. R. Crim. P. 16(d)(1) (A party may make a motion to restrict or deny discovery of a statement, and if a Court grants the motion
the text of the statement shall be sealed and preserved in the
record so that it is available to the appellate court on review)
and State v. Tamez, 169 W. Va. 382, 394, 290 S.E.2d 14, 20-21
(1982) (When the State refuses to disclose the identity of an
informant, the trial court upon motion, is to conduct an in camera
inspection of the written statements prepared by the State
explaining why the identity of the informant should not be
disclosed, and the in camera inspection shall be sealed and made a
part of the record so that it will be available on appellate
review). Accordingly, since the appellant failed to request that
the affidavit be sent to this Court for review, we are unable to
resolve this issue.
C.
Third, the appellant asserts that the trial judge erred
in sentencing the appellant to a period of probation rather than
dismissing the petition pursuant to W. Va. Code, 49-5-13(b) [1988]
which provides seven dispositional alternatives ranging from
dismissing the petition to committing a child to a mental health
facility. The appellant correctly points out that this Court held
in syllabus point 1 of State ex rel. R. S. v. Trent, 169 W. Va.
493, 289 S.E.2d 166 (1982), that "W. Va. Code § 49-5-13(b) (1980
Replacement Vol.) requires the juvenile court at the dispositional
stage of delinquency proceedings to 'give to the least restrictive'
of the enumerated dispositional alternatives 'consistent with the
best interests and welfare of the public and the child.'" The third of the seven alternatives is probation which requires a
finding that the child is in need of extra-parental supervision.See footnote 7
The appellant maintains that the evidence does not indicate that he
was in need of extra-parental supervision.
In support of his contention, the appellant states that
he had a 3.0 grade point average and was taking college preparatory
courses and three honors courses when the incident occurred. The
appellant also states that he played football and basketball in
school. Additionally, teachers stated that prior to this incident
the appellant had never been in a fight at school and was never in
any trouble.
However, in syllabus point 4 of State v. Goodnight, 169
W. Va. 366, 287 S.E.2d 504 (1982) this Court held: "Sentences
imposed by the trial court, if within statutory limits and if not
based on some [im]permissible factor, are not subject to appellate
review." See also State v. Farr, ___ W. Va. ___, 456 S.E.2d 199
(1995). Nothing in the record indicates that the trial judge was
not within the statutory limits nor is there anything within the
record which indicates that the trial judge based his decision on
some impermissible factor. Accordingly, we hold there is no error
on this issue.
D.
The appellant raises four other issues which have no
merit on this appeal. First, the appellant argues that the trial
judge improperly incarcerated the appellant in the Industrial Home
for Youth for a diagnostic evaluation. As the State points out,
this issue has been resolved.
After the trial, the trial judge granted the State's
motion to require the appellant to undergo diagnostic and
psychological evaluation and ordered that the appellant be taken
into custody and sent to the Industrial Home for Youth for thirty
days of diagnostic testing. The appellant did not object.
However, the appellant, who had retained counsel at this stage of
the juvenile proceeding,See footnote 8 later filed a petition for a writ of
prohibition with this Court seeking his release from the custody of
the Industrial Home for Youth. This Court issued a rule to show
cause to the trial judge.
In response, the trial judge explained that he was
unaware of the appellant's objection to being sent to the
Industrial Home for Youth until the rule to show cause was issued.
The trial judge asserted that when he knew of the appellant's
objection, he released the appellant from the custody of the
Industrial Home for Youth. This Court, therefore, dismissed the writ of prohibition by an order dated February 17, 1994, because it
was moot.
Therefore, the issue is not properly cognizable by this
Court on appeal. As this Court has stated in the syllabus of
Standard Hydraulics, Inc. v. Kerns, 182 W. Va. 225, 387 S.E.2d 130
(1989): "'Moot questions or abstract propositions, the decision of
which would avail nothing in the determination of controverted
rights of persons or of property, are not properly cognizable by a
court.' Syllabus Point 1, State ex rel. Lilly v. Carter, 63 W. Va.
684, 60 S.E. 873 (1908)." See also syllabus, State v. Pettrey, 177
W. Va. 723, 356 S.E.2d 477 (1987).
Second, the appellant contends that the trial judge
improperly ordered the appellant's parents to pay, prior to the
final adjudication, Dr. Fremouw's charges for the diagnostic and
psychological evaluation of the appellant, which totaled $365.00.
Neither the State nor the appellant provides any authority for the
trial judge assessing or not being authorized to assess such costs.
However, we are concerned about the imposition of such costs on the
parents in this case. Given the circumstances of the case, such
costs may not be imposed.
Third, the appellant argues that the trial court
improperly prohibited the appellant and his parents from receiving
a copy of the pre-diagnostic investigation and the psychological
evaluation. W. Va. Code, 49-5-13(a) [1988], in relevant part,
specifically states that "[t]he court . . . may order a
psychological examination of the child [and] . . . [u]nless waived, copies of the report shall be provided to . . . counsel for the
child[.]" While the above code section does provide that a copy of
the report is to be provided to the juvenile's attorney, it does
not require that the child or his parents should receive their own
copy of the report.See footnote 9 Moreover, the State asserts that the trial
judge in the case before us clearly indicated in a letter dated
January 11, 1994, that the appellant's counsel was given an
opportunity to review the pre-diagnostic investigation and the
psychological evaluation report. No prejudice has been shown.
Thus, we decline to reverse on this ground.
Fourth, the appellant maintains the trial judge erred in
his interpretation of Trial Court Rules for Trial Courts of Record
Rule XVII(a) which states, in relevant part, that if a motion for
disqualification of a judge is filed "at least 7 days in advance of
any date set for a non-trial proceeding in the case," and if the
judge does not agree to recuse himself, then the judge must proceed
no further in the matter and must transmit a copy of the motion to
the Chief Justice of the Supreme Court of West Virginia along with
his response.
In the case before us, the appellant filed a motion to
disqualify the trial judge on February 18, 1994. On February 25,
1994, a dispositional hearing was scheduled. The appellant argues
that he met the seven-day requirement. The trial judge found that
the appellant did not. However, the trial judge did inform the
appellant that he would provide him with an opportunity to provide
a memorandum on the issue of whether the motion should be
transmitted to the Chief Justice. The appellant declined the offer
and chose to proceed with the hearing. The appellant, thus, waived
any error on this issue. As this Court held in syllabus point 3 of
In the Interest of S.C., 168 W. Va. 366, 284 S.E.2d 867 (1981):
"'An order to which no objection was made and which was actually
approved by counsel, will not be reviewed on appeal.' Syl. pt. 1,
Loar v. Massey, ___ W. Va. ___, 261 S.E.2d 83 (1979)." Cf. Pardee
v. Johnston, 70 W. Va. 347, 74 S.E. 721 (1912) (If improper
testimony is given to a jury over objection, and if the trial judge
offers to strike such testimony, but the party objecting declines
to have the trial judge strike the objectionable testimony, then
the objecting party may not complain about the objectionable
testimony on appeal.)
V.
Although the appellant fails to raise any errors which
warrant reversal, we nevertheless question the prosecutor's wisdom
of so actively pursuing a delinquency proceeding against this
particular appellant based upon the facts in this case. Further,
we again stress that the trial judge in this case appeared to have shed the mantle of neutrality. When that occurs, the trial judge
risks taking on the role of an advocate. We caution those involved
in juvenile proceedings not to lose focus of the purpose behind the
juvenile justice system:
The purpose of this chapter is to provide
a comprehensive system of child welfare
throughout the State which will assure to each
child such care and guidance, preferably in
his or her home, and will serve the spiritual,
emotional, mental and physical welfare of the
child; preserve and strengthen the child's
family ties whenever possible with recognition
of the fundamental rights of parenthood and
with recognition of the State's responsibility
to assist the family in providing necessary
education and training and to reduce the rate
of juvenile delinquency and to provide a
system for the rehabilitation or detention of
juvenile delinquents and the protection of the
welfare of the general public.
W. Va. Code, 49-1-1(a) [1981], in relevant part. Indeed, the
purpose of the juvenile justice system is to "rehabilitate
children, not to punish them." State ex rel. Harris v. Calendine,
160 W. Va. 172, 183, 233 S.E.2d 318, 325 (1977) (citations
omitted).See footnote 10
Accordingly, since there is no reversible error, except
insofar as we hold that the costs for the diagnostic and
psychological evaluation shall not be imposed upon the appellant or
his parents, we affirm the March 15, 1994 order of the Circuit
Court of Marion County.
Affirmed, in part;
reversed, in part.
Footnote: 1
Since this case involves sensitive matters, we follow
our traditional practice and use only the last initial of the
juveniles involved in this case. See State v. Michael S., 188 W.
Va. 229, 230 n. 1, 423 S.E.2d 632, 633 n. 1 (1992) (citation
omitted).Footnote: 2
The State asserts that the appellant has fully served
his term of probation.Footnote: 3
In fact, the record reveals that the appellant's trial
attorney did not make any objections.Footnote: 4
The appellant does raise a pre-trial error. The
appellant argues that the juvenile petition filed against him
does not satisfy W. Va. Code, 49-5-7(a) [1982] in that it does
not specify the relief sought. W. Va. Code, 49-5-1(d) [1982]
states, in pertinent part, that "[u]nless otherwise specifically
provided in this chapter, all procedural rights afforded adults
in criminal proceedings shall be applicable." Similarly, this
Court has recognized that the "[r]ules of evidence and procedural
rights applicable in adult criminal proceedings are applicable
with equal force in juvenile adjudicatory proceedings." State v.
William T., 175 W. Va. 736, 738, 338 S.E.2d 215, 218 (1985)
(citing to W. Va. Code, 49-5-1(d) [1982]).
Applying the aforementioned principles to this case, W.
Va. R. Crim. P. 12(b)(2) states that the defenses and objections
based upon defects in an indictment or information must be raised
prior to trial. See syl. pt. 4, State v. Bongalis, 180 W. Va.
584, 378 S.E.2d 449 (1989). The same reasoning should be
applicable to a petition filed in a juvenile proceeding.
Therefore, any objection to a defect in a petition must be raised
prior to the trial. In the case before us, no such objection was
made. Accordingly, there is no reversible error on this issue.
Footnote: 5
W. Va. Code, 61-2-9(b) [1978] more fully states, in
relevant part: "If any person unlawfully attempts to commit a
violent injury to the person of another or unlawfully commits an
act which places another in reasonable apprehension of
immediately receiving a violent injury, he shall be guilty of a
misdemeanor[.]"
Footnote: 6
We acknowledge that Justice Cleckley has criticized
the use of Starkey, supra, as "the appellate standard for
reviewing an insufficiency of the evidence assignment of error."
State v. Phalen, ___ W. Va. ___, 452 S.E.2d 70, 74 (1994)
(Cleckley, J., concurring). Justice Cleckley states that the
manifest injustice standard is too high of an evidentiary
standard and should be replaced by the following: "[O]n appeal
of a criminal conviction, this Court must consider the evidence
in the light most favorable to the prosecution and ask whether
any rational finder of fact could have found the essential
elements of the crime beyond a reasonable doubt." Id. at ___,
452 S.E.2d at 75.
If we were to apply the standard of review suggested by
Justice Cleckley, we would reach the same result in the case
before us. When viewing the evidence in a light most favorable
to the prosecution, a rational finder of fact could have found,
beyond a reasonable doubt, that the appellant committed an
assault.
Footnote: 7
The seven dispositional alternatives set forth in W.
Va. Code, 49-5-13 [1988] are: (1) dismiss the petition; (2)
refer child or child's parents to a community agency for
assistance; (3) probation; (4) place child temporarily in foster
care or commit child to the state child welfare agency; (5)
commit child to an industrial home or correction institution for
children; (6) commit child to a rehabilitative facility for
rehabilitation; and (7) commit child to a mental health facility. Footnote: 8
Originally, counsel was appointed to represent the
appellant because his father was out of work when the criminal
charges arose. After the trial was over, Robert Cohen replaced
appellant's appointed trial counsel.Footnote: 9
W. Va. R. Crim. P. 32 provides that a defendant may
review a presentence report with his attorney, but that a court
may determine that there are portions a defendant should not see
and order a summary to be made of this report. The rule does not
require the trial judge to provide a defendant with a copy.
Therefore, in an adult criminal proceeding, unlike a juvenile
delinquency proceeding, the trial judge has the discretion to
give the defendant's attorney an actual copy of the presentence
report. See State v. Godfrey, 170 W. Va. 25, 28, 289 S.E.2d 660,
664 (1981) (Since a defendant in a criminal case does not have a
due process right to full disclosure of a presentence report, the
trial judge may, in his discretion, reveal only parts of the
report to a defendant or his attorney).Footnote: 10
We are concerned about whether the appellant had
effective assistance of counsel during the delinquency hearing.
So far as we may determine, the trial attorney raised no
objections. However, since this issue was not addressed by the
parties, we do not have a record which adequately explores the
effective assistance of counsel issue. We recognize that the
appellant in the case before us will be unable to petition for a
writ of habeas corpus since he is not currently incarcerated.
See W. Va. Code, 53-4A-1 [1967]. However, a writ of error known
as coram nobis has been used to address post-conviction issues
when the defendant is not incarcerated. See generally 2 Franklin
D. Cleckley, Handbook on West Virginia Criminal Procedure II-508
to 509 (2d 1993).
We acknowledge that the West Virginia Rules of Civil
Procedure 60(b) has abolished the writ of coram nobis in civil
cases. See Isenhart v. Vasiliou, 187 W. Va. 357, 360 n. 8, 419 S.E.2d 297, 300 n. 8 (1992) ("[A] writ coram nobis cannot be used
to attack any civil proceeding."). However, in spite of the
language in Rule 60(b) which abolishes the writ of coram nobis,
in criminal cases "the writ of coram nobis . . . remains
available whenever resort to a more usual remedy would be
inappropriate." James v. United States, 459 U.S. 1044, 1046-47,
103 S. Ct. 465, 466-67, 74 L. Ed. 2d 615, 616 (1982) (footnote
and citation omitted) (an opinion denying the petition for writ
of certiorari). See also Miller v. Boles, 248 F. Supp. 49, 58 n.
46 (N.D. W. Va. 1965), overruled on other grounds, Sheftic v.
Boles, 377 F.2d 423 (4th Cir. 1967) (Although the W. Va. R. Civ.
P. 60(b) abolished the use of writs coram nobis in civil
proceedings, "the abolition of these writs in civil cases
probably does not apply to their use in criminal cases.")
Moreover, we point out that pursuant to W. Va. Code, 49-5-17 [1978] the records of appellant's juvenile proceeding "shall be expunged by operation of law" one year after the appellant's eighteenth birthday.
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