*1
STATE AZEEZ, Below, Petitioner
Adeen
Appellant, MANGUM, Raleigh Sheriff
Michael Below,
County, Respondent
Appellee.
No. 22221. Appeals of
Supreme Court of Virginia. 17, 1995. Jan.
Submitted July
Decided
Dissenting Opinion of Chief Justice
McHugh Dec. *3 examine the facts helpful
It first Appellant’s 1987 underlying the conviction. technologist a lab worked as (here- Hospital Regional the Appalachian Beckley, Virginia. “hospital”) inafter Corker, victim, pa- Dara adult hospital, psychiatric in the ward of the tient diagnosed suffering from a be- retarded, mentally havior disorder and was moderately severe severe. *4 Phillips, registered at the Susan nurse 5, 1987, hospital, February testified on working evening while she was shift unit, psychiatric night supervi- crisis sor, Fox, Geneva informed her that she was looking Appellant.2 Phillips Ms. for the tes- Appellant knew had been tified that she Cranston, Appel- Morgantown, R. for Paul on the floor and went with Ms. Fox to look lant. for him. Keller, L. Deputy Kristen Chief Prosecut- ing Attorney, Beckley, Appellee. for she Ms. Fox then testified that heard emanating from room. noise the victim’s
WORKMAN, Justice: opened victim’s When she the door room, Appellant the room was dark3 and the upon This case before Court leaning was over victim’s bed. appeal Azeez order of Jamal Adeen from an according testimony, to Ms. “it looked Fox’s deny- Raleigh County of the Circuit Court of pants like his Ms. testi- were undone.” Fox petition for a writ of habeas Appellant fied that asked she what corpus at the conclusion of the December responded doing, was to which he that “he pe- hearing. omnibus blood____”4 trying get was Ms. some upon tition for habeas was based his Phillips July they also testified that when entered jury conviction second de- for assault, room, gree yelling the victim stuck “[h]e for which he was sen- was sexual years wingding his in me” pleading tenced to not less than ten nor more and for twenty years penitentiary,1. than in the state “let him hurt me again____” nurses to not 24, 1988, drawn, May Appellant petitioned emergency 1. On blood and the nurse in the this appeal arising out Appellant. Court for of this conviction. room had been unable to locate the Appellant following assignments raised 1) appeal: permitting of error in his the victim’s Gieseking, hospital 3. Jean a nurse at the who testimony finding competency without a of her helped Appellant, locate the testified 2) testify; admitting deposition Dr. Rasheed’s Appellant Ms. there told Fox that reason showing of a absence she was unavail- lights were no on in the victim's room was be- 3) testify; allowing able admission evi- light. cause was of the the victim afraid vaginal light dence of the results swab hospi- mishandling of such evidence testimony Appel- 4. The at trial indicated tal; 4) denying compel the Defendant’s motion to attempting lant told the nurses that he was evaluation; psychiatric the victim to submit to a stick, withdrawing femoral which involves blood 5) denying psychiatric the Defendant the victim’s However, patient’s groin area. there was records; 6) allowing and to consider testimony hospital poli- also which indicated degree second sexual assault in absence only cy permitted was that were to do a doctors of all evidence the elements thereof. The Appellant attempted femoral stick. to rebut July petition appeal lant renewed this on policy during testimony by stating petition. We review declined to either only had he never been of this informed that, policy, practicing while not a but he was Ms. Fox testified at trial that the reason she looking physician, degree he had obtained a was was that there was medical patient emergency in the room who from a medical school in the needed located Caribbean. that she had never seen the nurse at the tim testified Gieseking was also Jean before, she did not know his when the hospital present and was Finally, the victim testified she when the name. She testified that located. was room, kept in that hear- had had hallucinations she she observed that Appellant left the waist, train.” ing power to her saws a “ehoo-ehoo gown pulled up the victim’s untied and slid pajama pants her by the introduced Other evidence Also, Gie- hip her line. Ms. down to about deposition of evidentiary Dr. included the seking upon further exami- testified that her Rasheed, pathologist the chief Zarina area, thought “I I groin victim’s nation of the vaginal speci- hospital analyzed the swab sperm [the in her vic- what looked like saw Phillips shortly after the men taken Ms. on her own pubic Phillips, hair.” Ms. tim’s] analy- conducted his incident.7 Dr. Rasheed initiative, vaginal swab and performed morning after the of the swab sis over to Ms. Fox.5 turned it Phillips. specimen taken Ms. Dr. sperm cells were at trial. Even Rasheed testified that The victim also testified vaginal prepared found on slides though undisputed it was that the victim swab; however, testify, from a be- doctor could mentally and suffered retarded *5 conducted, disorder, exactly on the tests when Appellant the never renewed based havior victim, or with the that objection compe- to victim’s intercourse occurred pretrial his the Appellant.8 During very sperm the came from the Addi- tency at trial.6 a to by State, tionally, Dr. by the victim had been examined examination the the succinct direct hospital emergency a in room of the patient that while was Slack the victim testified she morning alleged after the sexual as- man come into her hospital, in the a had a Market wingding in me.” The occurred. Dr. Slack used room and “stuck his sault “kit”)9 (hereinafter identify the who Malicious Assault Kit victim was unable to man this, conducting of the victim. only that had his examination and stated he had done me[,]” kit turned to Detective Cedric prior to the assault That was over “stuck needles in City Beckley The Police Appel- to R. Robertson and had “dared” her scream. kit to Department, turn sent the the lengthy cross-examination who lant conducted a (hereinafter Bureau that the vic- Identification of the victim which established Criminal “C.I.B.”) Charleston, Virginia, lab in thought soap opera a star named “Bob- tim Also, analysis. stipu- according The State entered into child. for bie” had fathered her victim, Appellant laboratory that with the the the had been her room lation “Bobbie” analysis on evidence obtained from night Appellant alleged- the the conducted on same Further, negative.10 stipulation That was sexually vic- kit were ly assaulted her. the the samples gave Betty Campbell, presumably were taken from Ms. then the swab because 5. Fox night Appellant purposes comparison, supervisor for al- who the who relieved Ms. the was Campbell gave though that she the record is silent on this issue. Fox. Ms. testified the Bosia, technologist, Frank medical swab to laboratory hospital's the who took the swab to again, extremely the record is unclear as 9. Once placed refrigerator it in a tests be until could type this or the of tests or to the nature of "kit” performed morning. on it later analysis it included. pretrial Appellant’s made a trial counsel stipulation was Appellant, after the read undergo require psychi- motion to the victim to jury, objected the that the State had withheld prior alleged the atric to trial due to evaluation negative the exculpatory evidence of C.I.B. the copy incompetency of victim. of that mo- the A therefore, and, complied report had not with the part appeal. of the record on tion was not made discovery request exculpatory Appellant's evi- Appellant’s trial counsel dence. the admissibility Appellant objected 7. The the Dr. that it was his belief that Slack doctor, also indicated arguing deposition, ’ testify, Appellant going had vacation, testify within on was not unavailable to report. copy of Dr. Mr. not received Slack’s meaning Virginia Evi- of the West Rules of attorney, Lazenby, prosecuting assistant re- 804(a). The court dence. See W.Va.R.Evid. allegation by stating sponded that he did objection. overruled this report pre- that a C.I.B. had been believe not identify pared, chemist who conducted test- since the 8. Dr. Rasheed testified that he could job. Lazenby also stated sperm Appellant, quit Mr. came whether permitted trial court Strangely where the jury.11 enough, there violated read to the attorney prosecuting per- in the record that either the to exercise a is no indication sought apparently ever emptory challenge State or the defense to remove black Appellant sample from the in order a blood jury establishing without venire 4) comparison. reason; to do non-discriminatory legitimate finding Appellant’s erred in the testified he was rights Equal Protection Clause of under arm, room to take blood from her victim’s the Fourteenth Amendment not violat- resisted, sought to take but that when she peremptory challenge prosecution’s ed Additionally, groin her area. sample from he was not a mem- of a black because seeking he was to take testified 5) race; “Negro” ber of the “black” or light in the dark sample because failing to find that court erred in He also that his bothered the victim. stated rights lant’s the Fourteenth Amend- under to be out when nurses en- buttocks seemed prosecution’s sup- ment pants were violated tered the victim’s room because his pression failure to reveal an excul- large. were too and/or patory physical alleged examination of deliberating, Ap- After found victim, that she had which indicated not been pellant degree guilty of second sexual as- 6) finding raped; court erred Following sault. this Court’s refusal to re- rights under Confrontation petitions appeal view the two Clause the Sixth Amendment were not conviction, arising out of his Dr. violated the admission of Rasheed’s filed for a writ of petition deposition testimony, showing absent a hearing petition an omnibus *6 she was as a or unavailable witness that the conducted, petition before the was denied. prosecution good faith made a effort to ob- appeal predicated upon the present presence tain her at trial. following alleged errors committed the 1) corpus court: the erred in habeas court deprived finding that the not PEREMPTORY CHALLENGE guaranteed of a fair criminal trial under First, Appellant’s whether the we address III, Virginia 10 of the
Article Section rights Equal under the Protection Clause of where the criminal trial court Constitution the Fourteenth Amendment were violated permitted incompetent testify witness to prosecuting attorney when the 2) per- used a trial; against in him at the court erred emptory challenge juror to remove a black finding Appellant was a that the not denied jury panel. main- guaranteed by fair criminal trial as the state permitted tains that court the trial the State where federal constitutions the criminal juror remove establishing any the without trial a court failed order mental examina- legitimate non-discriminatory reason and tion alleged prosecuting victim and the erroneously the trial court attorney good to make a concluded failed faith effort to Appellant’s rights that the were not produce complete obtain violated medical and victim; juror because the and the alleged mental health records of the were not 3) contrast, In finding members of the same race.12 Appel- the court erred that the rights Equal Appellee argues Appellant’s lant’s under Protection con- rights Clause of the Fourteenth not Amendment were stitutional violated in the negative report that Slack, a sperm "I do not believe there is from Dr. indicated that there was result is, and if there I don't recall it present seminal fluid on slides taken from exculpatory.” Dr. did not Slack at trial. vaginal morning the victim’s swab on the follow- alleged assault. stipulation 11. The was as follows: "THE jury par- COURT: Does the understand that the Interestingly, the record indicates that stipulated ties have that this evidence that was juror panel. State left another black Investigation sent to the Criminal Bureau lab However, juror panel by was struck from the performed nega- and the result of the test peremptory challenge exercised parties stipulate tive? Both a fact.” The lant. testing what record is unclear as to occurred and negative Presumably, what the result meant.
169
79,
1)
Kentucky, 476
106
[v.
the Batson
U.S.
Appellant is
jury selection because:
(1986)
2)
voir charges by group to be tried criminal counsel, response questioning by defense race which members of his he knew Detective Cedric Rob- stated that purposely excluded.’” 180 W.Va. at been ertson, investigating offi- was the chief 497, Syl. Pt. 1. 379 S.E.2d striking case. At the conclusion of cer stated the jury, counsel es adopted We also standard object objection: “we ... to the following Supreme the United States tablished striking ... [Johnson] Mr. based State’s proving a violation of Court Batson we he is black. We upon what believe that equal peremptory use of a protection pick from South Americans to don’t have challenge: Mr. Azeez is a that because but think prima facie case for To establish principle ap- minority13 that the same equal protection to racial due violation Ap- responded to the plies____” *7 peremptory of in the use discrimination objection by stating “[t]he that pellant’s State, challenges ‘the defen- jury ... on the basis that made strike State he first that is a member knew dant must show [the he said he Cedric [Mr. Johnson] speculated cognizable group, that and that investigating We of a racial the. officer].” him, don’t maybe prosecutor peremptory had arrested we chal- Cedric has exercised “I [the further stated that know. The State from the venire members lenges to remove guy Second, [the wasn’t prosecutor] even aware the de- of the defendant’s race. Appellant] was The trial court con- fact, black.” rely is to on as to fendant entitled legitimate had offered a cluded that State dispute, per- be that which there can racially the strike.14 neutral reason for jury challenges constitute a selec- emptory permits to dis- practice tion that “those corpus proceeding, Ap- At the habeas discrimi- are of a mind to criminate who white,” he is “not pellant testified that while must Finally, the show nate.” defendant say Based that he is “Indian.” he would these facts and other relevant that testimony, well as the court’s observa- this raise an inference circumstances Appellant, of the the habeas tion prosecutor practice to exclude used that “the court concluded that Defendant/Petition- petit jury on ac- from the the veniremen a member of the er has not shown that race, [Citations omitted.] count of their race.’ requirement under [a] which is black legiti- contending “You would have essentially 14. trial court stated: The 13. The you thought prosecutor if mate reason as a a member of the he should be considered as investigat- animosity was some between the there juror both race as the stricken because same juror. prospective I do know office[r] and a were minorities. world, greatest may reason in be it is reason.” but 170 693-94, require 2, Marrs, expanded scope of to 379 has Batson
Syl. Pt.
180 W.Va. at
Batson,
(quoting
inquiry
might
at
476 U.S.
there
be discrimi-
497-98
whenever
S.E.2d
1722-23).
96,
prima
juror
of
irrespective
at
nation in
selection
at
106 S.Ct.
Once
defendant,
427,
by a
432
facie case is established
at
race of
defendant.”
Id.
may
prima
expansion,
defeat
defendant’s
at
“[t]he
97. Due
S.E.2d
equal protection
case of a
of
prima
facie
violation
establish
Batson
[a]
stated
“to
of a
object
to racial
in selection
only
due
discrimination
case
need
the defendant
facie
non-racial,
reasons
jury by providing
credible
grounds
prosecu-
the strikes on the
using
challenges to strike
peremptory
discriminatory
At that
tor has
motive.
from the
members of the defendant’s race
prosecutor
ask
point,
court must
694,
Syl.
3,
at
jury.”
Pt.
180 W.Va.
legitimate
state on
record a
non-discrimi-
171
jurors
own race leads
not the law when the
Powers was
defendant’s
final,
(empha-
F.2d
1350
Su-
this conclusion.” 995
because the
became
conviction
added). Thus, the
court held that
sis
Echlin
pronounced a new
in
preme Court
Powers
a new rule insofar as it
“Powers announced
of deci-
rule. An examination
constitutional
challenges by a
Batson to cover
appeals
extended
circuit courts of
of federal
sions
prosecutor’s exclusion
white defendant to the
decision
found that the Powers
which have
and,
jurors.”
Finally,
of black
Id.
the Eleventh
rule
newa
constitutional
constituted
Davis,
in
v.
3
370
Circuit stated
Farrell
F.3d
therefore,
ap-
not entitled to retroactive
(11th Cir.1993) that:
powerfully evident.
plication, makes this
clearly
language
of Batson
limited its
instance,
Circuit Court of
For
the Seventh
application
same race
to defendants of the
McGinnis, 968 F.2d
Holland v.
Appeals in
jurors.
Supreme
the excluded
(7th
denied,
Cir.1992),
cert.
U.S.
holding in
Court’s
Powers that
defendant
(1993),
1053, 122 L.Ed.2d 360
113 S.Ct.
standing
object
has
to race-based exclu-
rule---
recognized that
new
“Powers
jurors,
sion
or not the defen-
whether
petitioner
not entitled to
is]
[Therefore [the
jurors
the same
dant
excluded
share
application on collateral re
its retroactive
race,
departure
complete
reaching
In
F.2d at 1057.
view.”
standing
precedent regarding
established
decision,
the Holland court stated
protection.
equal
‘compelled’
within the
Powers
[t]o
added).
(emphasis
Id. at 372
Teague,
rale
meaning of
established
specific
have had to be more
Batson would
Accordingly,
pursuant
we hold
to the
may challenge the state’s
(e.g. ‘defendants
Powers,
Supreme
a defen-
Court’s decision
racially discriminatory
peremptory
use of
a prima
dant in a criminal trial can assert
they
are of the
challenges whether or
use
facie case of racial discrimination
jurors’).
Or the
same race as
excluded
peremptory challenge
having to
of a
without
had
would have
defendant
Batson
group
be a
of the same racial
as the
member
of a
race than the
have been
different
subject
prospective
(Either
jurors.
possibility would
excluded
challenge.19
peremptory
See
U.S.
state’s
superfluous.)
have rendered Powers
However,
Powers
111 S.Ct. at
sum, Batson,
ambiguity;
...
a latent
had
precludes
rale which
established
new
permit
specifically
it did
cross-racial
application
on collateral review
retroactive
peremptory
chal-
attacks on
state’s
that became final before Powers
convictions
____
lenges
was announced.
result in
... Batson did not dictate the
Thus,
ap-
is not
since the Powers decision
Powers.
ease,
present
plicable to the
prima
facie case
racial
Circuit
had to establish
Id. at 1054-55.
Sixth
LeCureux,
pursuant to the law enunciat-
Appeals
995 discrimination
Court
Echlin
—
(6th
denied,
Cir.),
by demonstrating
ined
Batson and
F.2d 1344
cert.
U.S.
-,
cognizable
was a member of
racial
172
recently
the follow-
established
group. The
counsel. We
cognizable
of
racial
ber
reviewing
an ineffec-
new standards for
challenge
by
peremptory
the State’s
removed
syllabus
of
claim in
tive
counsel
Indian, however,
assistance
but rather was
was not
Miller,
six
v.
points five and
State
African-American, and
not a mem-
therefore
(1995):
3,
at
459 S.E.2d
117
group.
id.
of
racial
See
ber
courts,
of
Virginia
claims
In the West
Furthermore,
assuming that
to be
assistance of counsel are
ineffective
jurors
prospective
and the
governed by
two-pronged
estab-
test
group,
racial
were members
same
Washington,
in
466
Strickland v.
lished
in
its determi
lower court was
erroneous
2052,
674
104
80 L.Ed.2d
U.S.
S.Ct.
prosecutor
to the trial
nation
offered
(1984): (1)
performance was de-
Counsel’s
credible, racially
neutral reason for
court
rea-
objective
under an
standard of
ficient
challenge
to strike Mr.
using
peremptory
(2)
sonableness;
and
there
a reasonable
Johnson,
offered
since
reason
that,
unprofes-
probability
for counsel’s
but
(that
juror admittedly
prospective
errors,
the proceedings
result of
sional
officer)
investigating
in no
knew the chief
would have been different.
juror’s
way
race.
related to the
The record
reviewing
performance,
counsel’s
clearly
the State offered
indicates
objective
must apply
courts
an
standard
striking
juror,
prospective
reason
whether,
light
of all the
and determine
evi
did
advance
other
circumstances,
or omis-
the identified acts
prosecu
the trial
dence before
court
range
pro-
the broad
of
sions were outside
tor was
racial discrimination in
motivated
fessionally competent assistance
at
while
striking
juror,
objecting
other
to the
than
refraining
engaging
time
the same
prosecutor “speculate^]” that
fact that
hindsight
second-guessing
or
of trial coun-
prospective
the reason that the
said he
Thus,
strategic
sel’s
decisions.
a review-
investigating
knew
officer was that
the chief
law-
ing court asks whether
reasonable
juror.
may have
the officer
arrested
As
acted,
yer
Kirkland,
under the circum-
191
we noted in State
W.Va.
stances, as defense counsel acted in the
findings
447
trial
S.E.2d 278
at issue.
case
purposeful
court on the issue of whether
discrimination was
should be af
established
6-7,
at
at
W.Va.
459 S.E.2d
117-18.
weight.
great
forded
Id. at
S.E.2d
mind,
Keeping
principles
these
now
Relying
Supreme
at 288.
on the
Court’s
separately
the Appellant’s
examine each of
Batson,
decision in
we stated that
claims.
‘the trial court’s decision on the ultimate
question
discriminatory
repre
intent
A.
finding
sents a
of the sort
fact
accorded
First, the Appellant asserts he was
great
on appeal____
deference
deprived of effective assistance of counsel
findings
trial
Deference to
upon the defense
failure to
based
counsel’s
discriminatory
par-
issue of
intent makes
object
competence
sta
otherwise raise
ticular sense
context
...
because
tus
victim.
argues
finding
“largely
will
turn on evaluation
’
allowing
this resulted
the trial court
credibility.”
incompetent witness to take
the stand
(quoting
Id. at
Her
S.E.2d
way
appearance
her “mere
introduce
York,
352, 364,
nandez
v. New
500 U.S.
testimony
highly prejudicial evidence.”
1868-69,
(1991)
S.Ct.
INEFFECTIVE ASSISTANCE
OF COUNSEL
contrast,
Appellee argues
In
the
that
transcript
next
issue is whether
the
review of the
reveals that the
Appellant
testimony
the
was denied effective assistance of victim’s
benefited
at
defense
attorney’s
certainly com-
strategical decision
trial,
confirming
Appellant’s trial
thereby
the
pro-
forth
testimony
corpus
at
with the standards set
above
ported
the
counsel’s
6, Miller,
allowing
jury
Syl.
to
the
ceeding
competence.
the
see
Pts. 5 and
See
person in
to assess the vic-
6-7,
order
victim
Mr. Michael having to hallucinations and testi- admitted counsel, proceeding at the habeas testified she had relations with challenge the fied that had intimate he did not the reason though soap opera Accordingly, felt he competency, even character. victim’s to do enough information and evidence not to Appellant’s trial counsel’s decision because so was to challenge competency victim’s order decision, I testimony and arose from a had make tactical her at trial we to ensure my Appellant] on [the to client had talked we not involving strategy, and can decision he un- to make sure numerous occasions that this course of action was one conclude successful, this, if we and derstood reasonably qualified defense which other challenge competency, that were to we attorney have taken. See id. up having a trial without we would end testimony ... [the victim]---- B. I order to And made decision to properly allow understand his Appellant next asserts that case, that we have the that it was essential by entering into trial counsel was ineffective and, if indeed she was not victim called stipulation concerning with called, contemplating calling her we were contrast, negative C.I.B. lab results.20 So, that was one of as a witness ourselves. failed Appellee contends I backed off that. the reasons that we—or error where a to demonstrate constitutional Mr. to make I met with Azeez sure to was stipulation favorable that, because when he found he understood jury, and the record con read to where was, basically, challeng- ... I not out testimony physician who firms that the vigorously as he ing competency trial, but of whom called to, meet- we had an extensive wanted me aware, have could not benefit that, why I regarding I told him Appellant.21 ed the it, delusions, the fact doing wasn’t upon told that the victim him based corpus proceeding, Mr. Fro- At the habeas had, psychiatric information I was ba- stipulation testified that entered into ble sically to tell the difference be- unable experience that when it was his because soap opera and television and real- tween favorable the defen- results were C.I.B. ity was if did not crucial. And dant, testimony of a he had never found the witness, up, her either as State’s helpful to the defendant. witness C.I.B. testify, have her that our ease was sub- Further, in the Froble testified that Mr. harmed, stantially that was whole trial, prepared the State was all that. reason behind C.I.B., had he call a witness Finally, stipulation. Mr. testimony, it into the of the victim’s entered From review testified that he conferred with readily apparent defense Froble becomes regarding upon specimens the assault. col- made him 20. These results were based performed pursuant testimony on lected examination at the habeas based Dr. Slack’s morning victim Dr. Slack the proceeding, could have testi- doctor alleged assault. sexual at the trial that examination fied secretions ”[m]ucous-like of the victim did reveal instance, very Dr. had the real 21. For Slack victim, vagina[,]” which his present in the adversely impacting potential testimony possibly fluid. seminal indicated may case have been lant’s in that doctor victim permitted statements the *11 results,” way knowing[ ]” of “[n]o decision and that there his about from the victim or ultimately him. the mucous was agreed with whether “possi- and that it was from a male secretion engaged Again, though trial counsel fluid.22 it have been ble” that could seminal by entering arguable of in an course action calling rather than stipulation into Froble at the habeas Mr. testified results, testify about lab C.I.B. witness to knew about Dr. Slack’s proceeding that he stip- entering cannot that into a conclude findings regarding his examination of ulation to the is a strate- favorable prior Mr. Froble testified victim to trial.23 de- gy reasonably qualified other which no also that had that he knew doctor have when con- attorney fense taken of independent recollection that examination. stipulation being limit- light sidered of gave calling reasons Mr. Froble for not exculpatory Accord- ed to evidence. See id. Dr. Slack were: of ingly, we find no assistance ineffective given possibly He could have [Dr. Slack] regard stipulation. counsel with to the that semen the information there was found, C. or a that have been substance could possibly could have testified semen. He claim of assis The last ineffective mental recollection victim’s involves the tance counsel with her state the time was consistent Slack, to call Dr. counsel’s failure also, medical attacked. He as a ex Appellant maintains was known to have doctor, supported have and fortified could culpatory Dr. Slack testified at the evidence. examination; the fact that there was an corpus proceeding although he sexually she had been assaulted. independent had no of the exami recollection records also indicated reference to sexual performed he morn nation victim the It were assault. also indicated that there assault, alleged sexual his notes hospital employees various had told that he found examination indicated Dr. Slack that there been sexual trauma, sign[s] or lacera “[n]o [of] bruise[s] assault; therefore, fear if we our was that tion. and not examination done Pelvic/rectal witness, basically him called all as However, the testi remarkable.” doctor also doing fortifying we were the State’s objective findings fied that the absence of thought position, that was a bad [I] regarding sexual assault not indicative strategy tactics. and bad sexually whether victim had been assault Also, by legal ... exam “[his] ed definition. Further, Mr. testified Froble that he based ... permit ination to make [him] wouldn’t Dr. his decision not to call Slack of whether victim had th[e] decision[]” positive “we [Dr. because to what he man, sexually penetrated by been examination, did and we were Slack] ejaculation whether had occurred. Addition positive help also ... he Mr. could ally, Dr. Slack testified that he did indicate in Azeez at all.” his notes found presence that he present vagi reviewing secretion in the trial coun- “[m]ucous-like When Dry, right representation light na. caked secretions side Miller present sel’s standards, vaginal However, indi it outlet.” Dr. Slack is clear that decision not to performing having cated that lab Dr. counsel “without or call Slack was one which the trial testing prepared report 22. The to determine whether seminal that Dr. and that Slack never present fluid was was conducted at the C.I.B. lab interspersed his notes were with nurses' notes in testing stipulation and said re- resulted emergency record. room While at first garding negative results was read to which testimony glance, Mr. Froble’s the habeas cor- jury. pus proceeding seems contradict his state- court, ments made to the trial testi- Mr. Froble's transcript 23. A review of the trial indicates mony corpus proceeding at the habeas clarified Mr. Froble the trial the State stated to court that knew, trial, prior that he what Dr. Slack's produced copy report never of Dr. Slack's were, well as conclusions the results of the trial, report prior the related C.I.B. but report. C.I.B. might exculpatory. believed At both been corpus proceeding, the habeas it became clear *12 ability). argues Ap- The that the hastily, only Appellee but not enter into did rights were not pellant’s violat- repercussions of considering the confrontation carefully delay when his “tactical decision” to trial discussing ed testimony and his concerns that a time aware the witness until he was would comparing Appellant’s In the with client. Moreover, Appellee the reasonably be out of the state. qualified trial to other counsel deposition that contained the asserts the witness’ attorneys, we conclude that defense the successful cross-examination or omissions were out- [not] “identified acts of the range professionally compe- witness. side the broad Miller, Syl.Pt. 194 W.Va. tent assistance.” helpful It is to examine the context in first 6-7, if we at at 117-18. Even 459 S.E.2d deposition Dr. which Rasheed’s entered it was error the trial concluded into evidence trial. The record indicates at testify, Dr. counsel not to call Slack prepared testify Dr. Rasheed was at changed error not have the result of origi- the trial on the date that the trial was id. at Syl.Pt. See proceedings. 5. We the nally Appellant scheduled. moved by reviewing Dr. reach this conclusion date, granted the court reset and testimony corpus pro- the habeas Slack’s at that motion. The was then informed State ceeding. testimony It is obvious that that Dr. would not be available to Rasheed “exculpatory” Appellant as the was not as testify on trial date.24 The the new State reality, believe. In would have this Court Dr. moved court to order that Rasheed’s testimony only slightly beneficial to taken, evidentiary and deposition be therefore, and, Appellant light of the granted It is motion. un- State’s against Appellant, other the tes- evidence disputed attorney and his timony changed would not have the outcome deposition present during were Finally, of the the trial counsel’s deci- trial. trial, At cross-examined the witness. strategy and can not sion was a trial objected introduction of to the reasonably qualified defense conclude that deposition, arguing that a witness Id. at attorney Syl.Pt. so acted. would have unavailability satisfy vacation did not re- 6. quirement Virginia Rule of Evidence
804(a). the Appel- The trial court overruled objection permitted the lant’s introduc- CONFRONTATION CLAUSE deposition.25 tion of the next issue whether two of State v. syllabus point rights Clause of the under Confrontation S., James Edward violated the ad- 184 W.Va. S.E.2d Sixth Amendment were two deposition testimony “[t]he we held that central of the of Dr. mission extrajudicial Rasheed, requirements admission of pathologist who confirmed that testimony Clause sperm present vaginal swab under Confrontation shortly contained Amendment alleged taken the nurse after the the Sixth (1) are: States Constitution demon sexual assault occurred. United unavailability produce strating the of the any did not witness maintains that State (2) reliability testify; proving evidence which indicated doctor was Id. at pursuant witness’s out-of-court statement.” unavailable as a witness to West 804(a) Moreover, Virginia “[i]n 400 S.E.2d 845. order to Rule of Evidence or that satisfy showing that the good effort to witness State made a faith obtain her burden unavailable, prove must it See presence Syl.Pt. trial. that State Phillips, good-faith 124 has made a effort to obtain the S.E.2d (1992) showing This (discussing witness’s attendance at trial. proving burden of unavail- sperm came from indicated that Dr. Rasheed was The record lant, samples to be out of state on vacation at that apparently scheduled time. had no since he comparison, purposes defendant for but rather only could state that it could come from testimony Dr. Rasheed's introduced hospital "happened be in the at that male presence sperm State to establish time.” However, vagina. the doctor could victim's *13 TRIAL FAIR DENIAL OF diligence.”
necessarily substantial requires Id. the habeas cor- issue is whether final finding Appellant pus court erred in enunciated in the criteria Under fair trial26 where deprived of a was not S., Edward it is clear the State James incompe- allegedly permitted trial court it acting good in faith when informed was him, testify against to tent witness of the of trial that because court in advance order a mental trial failed to where the Appellant, requested delay in the trial The rec- alleged victim.27 examination of the to going to be unavailable Dr. Rasheed was Appellant’s coun- trial ord indicates that Further, trial. during the course of testify require the pretrial motion to a sel made depo to hardpressed find unreliable we are undergo psychiatric evaluation victim to Appellant’s sition which was taken with incompetency of alleged prior to trial due the knowledge Dr. would not full Rasheed Apparently, an unrecorded hear- the victim. Appellant was trial. The be available at in ing on occurred and resulted this motion full to cross-examine Dr. given opportunity motion, of that since the trial court’s denial trial coun Appellant’s Rasheed psychiatric undergo a Appellant did not corpus acknowledged during the habeas sel testify by permitted to evaluation28 was felt proceeding that he cross-exami the trial court.29 during deposition of the nation doctor previously “[a] held that Accordingly, habe We have been successful. determining corpus proceeding not substitute not
as
court did
err
ordinary
error
a writ of error in that
trial
deposi
of Dr.
for
the admission
Rasheed’s
involving
not
not
constitutional violations will
tion
trial did not violate
rel.
4,
State ex
Syl.Pt.
be
right
reviewed.”
to confrontation.
3,
suffering
diagnosed
§
from "Behavior dis-
26.
W.Va.
art.
10.
See
Const.
paranoid
in a
re-
order with
tard____”
ideations
mental
assign-
Appellant
alleges
also
under this
prosecuting attorney failed
ment of error that the
produce
good
to make a
faith effort to obtain and
significant
29.It
to note that for reasons stated
complete
and mental health records
medical
in the
of counsel section of
ineffective assistance
victim,
alleged
despite the
court's
of the
trial
supra,
opinion
this
trial counsel
discovery
prosecution
to dis-
order that the
object
competency
did
to
not
to the victim’s
to the
medical and mental health records
close
trial.
when she was called as a witness at
syllabus
recently
point
Appellant.
We
held
competency
questions
are
While it is clear that
of
276,
Roy, 194
460 S.E.2d
one of State v.
W.Va.
court,
by the trial
and that the trial
determined
(1995)
16(a)(1)(D)
West
that "Rule
277
duty
"carefully question
court has a
and exam-
Virginia Rules Criminal Procedure allows dis-
raised,
competency is
it is
ine the witness” once
covery
reports
physical
all
or
or
results
during
trial.
clear that
issue was
raised
mental examinations which are material to
Butcher,
522, 526,
W.Va.
S.E.2d
State v.
165
270
however,
Appellant,
defense....” The
bases
156,
Wilson,
(1980);
State v.
157 W.Va.
159
see
upon
premise
argument
that since the victim
1036, 1047,
174,
(1974).
207 S.E.2d
181-182
previously
at trial that she had been
testified
raped
Additionally,
Spencer,
Virgi-
hospitalized
while
nia,
obligation
the State had an
those
obtain
every
presumed
competent,
witness is
to be
records,
they
provide
if
existed and to
same to
insanity
and neither
nor
ren-
feeblemindedness
asserts,
Appellant.
Appellee correctly
As the
incompetent
disqualified.
ders a witness
the al-
failed
demonstrate that
only grounds
disqualifying party
as a
leged
unspecified prior psychiatric or
absence of
are that
the witness does not have
witness
were either material or denied
medical records
knowledge of the matters about which he is to
a fair trial.
the record
testify,
capacity
that he does not have the
Appellee gave
indicates that the
all
recall,
duty
or that
does not understand the
possession.
it
the victim’s records
had in
testify truthfully.
Therefore,
argument
we
dismiss this
Merritt,
608,
601,
State v.
183 W.Va.
396 S.E.2d
without merit.
871,
(1990) (quoting Cleckley,
F.
878
Handbook
2.2(B)
Virginia Lawyers §
on Evidence West
Arguably
re-
trial court’s decision not to
Odom,
(2d ed.1986)) (citing
quire
United States v.
736
psychiatric
evaluation
based on
case,
(4th Cir.1984)).
indicating
present
F.2d 104
In the
fact that the
court had
records
knowledge
psy-
the victim had
assault
that at the time the victim was admitted to
sexual
attack,
days prior
capacity
unit
to the
she
and had the
to recall the incident.
chiatric
three
Justice,
Mohn,
McHUGH,
dissenting:
Chief
163 W.Va.
McMannis v.
denied,
(1979),
cert.
464 U.S.
S.E.2d
1995)
(filed
Dec.
(1983).
L.Ed.2d
Pursu
104 S.Ct.
only
majori-
portion
I
dissent
Mohn,
holding
our
held
ant to
ty’s opinion which concerns
State’s use
Legursky,
Phillips v.
ex rel.
peremptory challenge to
a black
remove
lack of
W.Va.
S.E.2d
...
Q
attorney]
How
[by appellant’s
for a
prima
facie ease
2. To establish
and race?
your color
you
describe
*15
racial
protection due to
equal
violation of
I am a non-white
[by appellant]
A
of
peremptory
of
in the use
discrimination
race,
toward black.
more
State,
challenges by the
‘the defen
juiy
Q
particular country,
peo-
In this
a
that he is member
dant first must show
you
black?
ple referred
and
the
cognizable
group,
racial
that
of a
prosecutor
peremptory chal
has exercised
Oh,
people
A
I’ve
had
come
been—I’ve
lenges to
from the venire members
remove
nigger
times.
up to
and call me
several
me
Second, the de
of the defendant’s race.
record,
Q
Azeez [the
The —for the
Mr.
fact,
rely
as to
is entitled
fendant
I
you lighter
than
appellant], are
or darker
dispute,
per
there can be
that
which
am,
attorney talking
you?
jury
emptory challenges
a
selec
constitute
may
I
A
about the same color.
We’re
permits
practice
tion
“those to dis
little,
lighter
you.
a shade
than
be
criminate who are of mind
discrimi
Q
lighter
you?
much
How
are
Finally,
show
nate.”
the defendant must
A
much.
and
other
Not
these facts
relevant
an
circumstances raise
inference that
mean,
you
Q
I
how would
describe
practice to
prosecutor
exclude
used
for the record?
petit jury
on ac
veniremen from the
color,
A
about the
We are the same
[Citations omitted.]
count of their race.’
same color.
96, 106
Kentucky,
79 at
Batson
476 U.S.
fact, during
cross-examination
State’s
(1986).
S.Ct. 1712 at
1. I however, racially lenges; their use in a motivat- discus- Accordingly, on the above based
sion, authorized respectively dissent. I am I in this Neely joins me
to state that Justice
dissent. S.E.2d 180 Nedra
Robert L. BRADLEY and
S. Bradley, Petitioners
Below, Appellees, WILLIAMS, Tax
Frederick Commissioner Virginia, State West Below,
Respondent Appellant.
No. 22766.
Supreme Appeals Court of Virginia. *17 Sept.
Submitted
Decided Oct.