Wickline v. House
Annotate this Case
September 1992 Term
___________
No. 20856
___________
BRIGITTE WICKLINE,
Plaintiff Below, Appellant
v.
MICHAEL HOUSE, SUPERINTENDENT,
PRUNTYTOWN CORRECTIONAL FACILITY,
Defendant Below, Appellee
___________________________________________________
Appeal from the Circuit Court of Wayne County
Honorable Robert G. Chafin, Judge
Civil Action No. 90-C-601
REVERSED AND REMANDED
___________________________________________________
Submitted: September 15, 1992
Filed: November 13, 1992
William D. Levine
J. William St. Clair
St. Clair and Levine
Huntington, West Virginia
Attorney for the Appellant
Mario Palumbo
Michael J. Basile
Office of the Attorney General
Charleston, West Virginia
Attorney for the Appellee
This Opinion was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. "In the determination of a claim that an accused was
prejudiced by ineffective assistance of counsel violative of
Article III, Section 14 of the West Virginia Constitution and the
Sixth Amendment to the United States Constitution, courts should
measure and compare the questioned counsel's performance by whether
he exhibited the normal and customary degree of skill possessed by
attorneys who are reasonably knowledgeable of criminal law, except
that proved counsel error which does not affect the outcome of the
case, will be regarded as harmless error." Syl. pt. 19, State v.
Thomas, 157 W. Va. 640, 203 S.E.2d 445 (1974).
2. "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).
Per Curiam:
Brigitte Wickline was convicted of first degree murder
without a recommendation of mercy by a Wayne County jury in
February, 1989. Upon appeal to this Court, that conviction was
affirmed. State v. Wickline, 184 W. Va. 12, 399 S.E.2d 42 (1990).
Despite that affirmance, we addressed Ms. Wickline's assertion that
she was denied effective assistance of counsel in violation of her
constitutionally protected rights. Therein we stated:
We cannot tell from the record what
reasons trial counsel had in failing to raise
. . . potential defenses and whether there is
any rational support for his decision to
present no witnesses. As we held in Syllabus
Point 11 of State v. England, 180 W. Va. 342,
376 S.E.2d 548 (1988):
'Where the record on appeal is
inadequate to resolve the merits of a
claim of ineffective assistance of
counsel, we will decline to reach the
claim so as to permit the defendant to
develop an adequate record in habeas
corpus.'
See also State v. Smith, 181 W. Va. 700, 384 S.E.2d 145 (1989); State v. Tesack, 181 W. Va. 422, 383 S.E.2d 54 (1989).
184 W. Va. at 20, 399 S.E.2d at 50.
Subsequent to the affirmance of her conviction, Ms.
Wickline sought post-conviction habeas corpus relief in the Circuit
Court of Wayne County. After hearings were held wherein trial
counsel for both the State and Ms. Wickline testified, the trial
court found, among other things, that Ms. Wickline had received
effective assistance of counsel, and declined to order a new trial.
Upon Ms. Wickline's appeal from the trial court's denial of habeas
corpus relief, we find that she did not receive effective
assistance of counsel, and we therefore reverse the March 12, 1991
order of the trial court and remand this case for a new trial.
The appellant was arrested on June 25, 1988 and charged
with the murder of her husband. Although the appellant did not
physically kill her husband, she initially told state police
investigators that she had. A written statement signed by the
appellant was taken to this effect. This statement was given at
the crime scene in the early hours of the morning immediately
following the murder, and was later ruled inadmissible at trial by
the trial court because the appellant had been given inadequate
MirandaSee footnote 1 warnings.
Thereafter, the appellant was confined to a police
cruiser for several hours. She requested that she be permitted to
make another statement away from the crime scene, and, after being
transported to the state police barracks in Wayne, she was
permitted to do so. This later statement was also written and
signed by the appellant. Therein, the appellant alleged that her
husband had been both physically and verbally abusive to her, and
that she had wanted to divorce him. She stated that she had
conspired on several occasions with her neighbors, Mike and Doris
Jean Moore, to have her husband killed. She admitted that nothing
had resulted from any of the prior conspiracies, but that a plan to
kill her husband had been instigated on the night of the murder.
Although this initial murder plan was not carried out, the
appellant confessed that she and Mr. and Mrs. Moore altered the
plan, and, although she did not physically kill her husband, she
gave the final order to Mr. Moore to kill him.See footnote 2
Following her arrest and confession, the trial court
appointed counsel to represent the appellant. Thomas Butcher, a
Huntington lawyer, was appointed for this purpose. Mr. Butcher had
practiced law for over fourteen years, and, at that time, ninety-five percent of his law practice was devoted to criminal defense
work.
Prior to trial in this matter, Mr. Butcher sought an
order from the trial court to allow the appellant to undergo
psychiatric and psychological testing to determine her competence
to stand trial. Based upon Mr. Butcher's representation to the
trial court that the appellant had exhibited behavior suggesting a
mental illness, the trial court ordered a twenty-day in-patient
psychiatric evaluation on December 1, 1988. This order was amended
on December 27, 1988 to instead require a two-day outpatient
evaluation. The one-page psychiatric evaluation stated that the
appellant was competent to stand trial, but diagnosed "borderline
mental retardation."See footnote 3
Prior to trial in this matter, Mr. Butcher pursued
several possible defenses for the appellant. Because of
information imparted by the appellant and her family, he considered
using evidence of "battered wife syndrome." He also considered
using a "diminished capacity" defense. However, he abandoned those
potential defenses in favor of a "firebreak" theory after observing
the trial of the appellant's co-defendant, Mr. Moore.
At Mr. Moore's trial, the State had proceeded primarily
on a theory that Mr. Moore had murdered the victim because the
victim had "fondled" Mrs. Moore. Therefore, Mr. Butcher concluded
that, based upon the theory utilized by the State in Mr. Moore's
trial (where Mr. Moore was convicted of first degree murder without
a recommendation of mercy), there was a "firebreak" between any
conspiracy to murder the victim and Mr. Moore's actual motive for
the murder.See footnote 4
By Mr. Butcher's reckoning, any evidence of "battered
wife syndrome" would have harmed the "firebreak" defense and
provided the appellant with a motive for murder. However, Mr.
Butcher acknowledged that any evidence that the appellant suffered
from "diminished capacity" would not have hurt his "firebreak"
theory, and in fact he requested that the trial court take
"judicial notice" of the appellant's lack of capacity prior to
trial. Strangely, Mr. Butcher did not pursue this avenue of
defense through the use of psychological or psychiatric evidence,
apparently because of his own observations of the appellant and the
fact that she had been found competent to stand trial.See footnote 5
In preparing his "firebreak" defense for trial, Mr.
Butcher was aware that the State's case relied heavily upon the
last confession given by the appellant to police.See footnote 6 It is clear
that the appellant's confession presented at least a prima facie
case of first degree murder.See footnote 7 Mr. Butcher attempted to suppress
this confession at the trial. One of the reasons used by Mr.
Butcher to support the suppression motion was that the appellant
lacked the capacity to waive her right to avoid self-incrimination
and her right to counsel. Again, Mr. Butcher did not attempt to
prove this lack of capacity through psychiatric or psychological
evidence, but rather, he sought to persuade the trial court to take
judicial notice of the appellant's lack of capacity. The motion
failed and the confession was heavily utilized by the State in its
case against the appellant.See footnote 8
Mr. Butcher did not change his "firebreak" strategy
despite the admission of the appellant's confession. No evidence
was presented on behalf of the appellant at the trial. The
appellant was convicted of first degree murder. Mercy was not
recommended.
At the habeas corpus proceeding, the appellant's mother
testified that the appellant suffered from long-standing
neurological problems, and that she had made Mr. Butcher aware of
those problems. Also, a psychologist who had participated in the
appellant's competency evaluation testified that the available
evidence suggested that the appellant may have lacked the capacity
to waive her rights prior to her confession. The following
question was asked of the psychologist at the habeas corpus
proceeding:
Q. Based upon all the information you
received from [the appellant] and all the
other sources, does that information give you
any indication as to whether [the appellant]
could have knowingly and voluntarily waived
her Miranda warnings?
A. It suggests that there is a
reasonable probability that she may not have
been able to have comprehended the situation
well enough to have knowingly waived.
As stated above, despite the dearth of evidence contradicting the
appellant's confession, Mr. Butcher did not seek to attack the
validity of the confession through the most obvious method--expert
testimony confirming the appellant's diminished capacity.
In the habeas corpus proceedings before the trial court,
the appellant asserted several grounds for relief. All were
denied. Upon appeal of the denial of habeas relief to this Court,
the appellant asserts only one ground for relief. She contends the
trial court erred in failing to grant her a new trial because of
ineffective assistance of counsel.
In Marano v. Holland 179 W. Va. 156, 171-72, 366 S.E.2d 117, 132-33 (1988), we noted our traditional test to determine
ineffective assistance of counsel:
We have traditionally utilized Syllabus
Points 19 and 21 of State v. Thomas, 157 W.
Va. 640, 203 S.E.2d 445 (1974), as our test
for ineffective assistance of counsel under
article III, § 14 of the West Virginia
Constitution [footnote omitted] as well as the
Sixth Amendment to the United States
Constitution:
'19. In the determination of a claim
that an accused was prejudiced by
ineffective assistance of counsel
violative of Article III, Section 14 of
the West Virginia Constitution and the
Sixth Amendment to the United States
Constitution, courts should measure and
compare the questioned counsel's
performance by whether he exhibited the
normal and customary degree of skill
possessed by attorneys who are reasonably
knowledgeable of criminal law, except
that proved counsel error which does not
affect the outcome of the case, will be
regarded as harmless error.
* * *
'21. 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.'
In State v. Watson, 164 W. Va. 642, 652,
264 S.E.2d 628, 634 (1980), we also emphasized
that 'any charge of ineffectiveness of trial
counsel must ultimately relate to a matter
which would have affected the jury decision.'
Our cases thus hold that a defendant who
asserts a claim of ineffective assistance of
counsel must prove (1) that his legal
representation was inadequate, and (2) that
such inadequacy prejudiced his case. Much the
same standards are found in Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
In this case we are at a loss to understand trial
counsel's failure to attack the appellant's confession through the
use of expert psychiatric or psychological evidence. Although it
is possible that such evidence may have shown that the appellant
did not suffer from any lack of capacity, all the facts before
trial counsel pointed to a contrary result. Through the
appellant's family, he was aware of longstanding neurological
problems. Through the competency examination, he was aware that
the appellant was "borderline mentally retarded." Moreover, the
psychologist who helped determine the appellant's competency to
stand trial opined that, had the appellant been evaluated for
diminished capacity, there was a reasonable probability that he
would have found that the appellant did not knowingly waive her
Miranda rights prior to the confession. Nonetheless, trial counsel
neglected to even request the trial court to order an evaluation of
her capacity to waive those rights.See footnote 9
Based upon the foregoing, we find that the appellant was
denied effective assistance of counsel in violation of article III,
section 14 of the West Virginia Constitution and the Sixth
Amendment to the United States Constitution. Trial counsel's
failure to attack or adequately investigate the appellant's
capacity to waive her Miranda rights prior to her confession was
not a result of conflicting potential strategies or tactics.
Furthermore, his failure to investigate and adequately attack the
confession was not harmless error--the State relied heavily on the
confession in making its case against the appellant. Even the
lawyer who testified as to the "normal and customary degree of
skill possessed by attorneys who are reasonably knowledgeable of
criminal law," on behalf of the State admitted that such an
attorney should have investigated the appellant's capacity in order
to attack the confession.See footnote 10
We believe the evidence in this case conclusively shows
that the appellant was denied effective assistance of counsel when
counsel failed to investigate and adequately attack the admission
of the appellant's confession based upon her lack of capacity to
waive her Miranda rights. Therefore, the March 12, 1991 final
order of the Circuit Court of Wayne County denying the appellant
relief in habeas corpus is reversed, and this case is remanded for
a new trial.
Reversed and remanded.
Footnote: 1 Miranda v. Arizona, 384 U.S. 486, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Footnote: 2 The following exchange is documented in the appellant's
last confession:
Q. At this time did you and Mike and
[Mrs. Moore] decide to go through with the
murder of John?
A. Yes, Mike was real mad at John. John
had touched [Mrs. Moore] in places he
shouldn't have, at least that was what [Mrs.
Moore] had told Mike. Mike was real mad.
Mike at first said he was just going to go in
and beat him up real bad. . . . [Mrs. Moore]
went in to use the bathroom.
Q. How long was [Mrs. Moore] inside?
A. She was just in there a few minutes
when she came back out and asked me if I
wanted Mike to go ahead and cut his throat and
I told her yes, to go ahead and finish it.
When the victim's body was found, he had almost been entirely
decapitated.
Footnote: 3 Under the heading "mental status exam," the report
stated:
Patient is appropriately dressed and groomed and cooperative during the examination and maintains eye contact and has no unusual mannerisms during the examination. Sensorium is intact as to time, place, person and situation. Stream of thought is spontaneous and coherent. Thought content is devoid of delusions or hallucinations. Intellectual functioning is borderline with difficulty in interpreting proverbs abstractly, some difficulty in calculating serial sevens and digit span is limited to three. Footnote: 4 The term "firebreak" derivates from the technique of fighting forest fires by control-burning a stretch of forest (the "firebreak") in the path of the out-of-control fire. When the out- of-control fire arrives at the "firebreak," it is prevented from spreading further because all the flammable material in its immediate path has been consumed. The fire then dies out. In this case, the prior conspiracy to murder the victim plays the role of the out-of-control fire, while the "fondling" of Mrs. Moore by the victim constitutes the "firebreak." Under this theory, a new motive, separate and apart from the conspiracy, is imparted to Mr. Moore, and the appellant is prevented and separated from any role in the murder. Footnote: 5 At the habeas corpus proceeding, Mr. Butcher stated that he had discarded the "diminished capacity" defense "fairly early on" in his preparations for trial because "[t]he report that we had here was that Brigitte was competent [and other] reports . . . referring to Brigitte's actions the night of the homicide, gave no
indication whatsoever of diminished capacity. She knew what was
going on."
Footnote: 6 At the habeas proceeding, Mr. Butcher answered the
following question:
Q. [W]hat did you anticipate the State's
case against Brigitte to be?
A. It centered, of course, around her
confession.
Footnote: 7 The following exchange occurred between appellant's
habeas counsel and Mr. Butcher:
Q. Wouldn't you say this confession
shows that she did ask Michael Moore to kill
her husband and that it actually took place?
A. As a yes or no answer, yes.
Footnote: 8 It appears that Mr. Butcher was well aware of the
difficulties the suppression motion would face without expert
testimony showing the appellant's lack of capacity. He was asked
the following at the habeas proceeding:
Q. [D]o you think the court could take
judicial notice of Brigitte's mental
retardation as it affects her ability to
voluntarily waive her constitutional rights?
A. It could. I don't believe we
expected it would.
Footnote: 9 Mr. Butcher did request an evaluation of the appellant
to determine whether she suffered from "battered wife syndrome."
The court acquiesced to this request and ordered such an evaluation
one week before the trial. Mr. Butcher, however, neglected to have
the appellant evaluated because he believed any evidence of
"battered wife syndrome" would provide a motive for the appellant's
conduct to support the State's case. We find this reasoning
incomprehensible in light of the appellant's confession wherein she
stated that she had been physically and verbally abused by her
husband. With the confession admitted, evidence that the appellant
had been abused by the victim could only have aided her case for
mercy. As we stated in State ex rel. Leach v. Hamilton, ___ W. Va.
___, ___, 280 S.E.2d 62, 65 (1980): "We cannot envision a murder
defense, however, that would not require introduction of all
possible evidence toward reduction of a jury's view of the severity
of defendant's acts. Even when alibi is a defense, good character
evidence would be appropriate."
Footnote: 10 Habeas counsel for the appellant questioned Joseph
Martorella, an assistant prosecuting attorney for Wayne County, to
the effect of the following:
Q. If you had a report from a
psychiatrist which said Brigitte Wickline was
a borderline mentally retarded, I believe was
the operative words, would you think that
might be something you might want to explore
in terms of developing that sort of evidence
to either get to the court or to the jury in
order for them to weight [sic] the confession?
A. Well, yes, you would probably try that, but I don't know if the court would -- I would not be very confident the court would throw it out based on that.
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