Phillip Bush appeals from his felony conviction for forcible rape, see, W. Va. Code § 62-2-15 [1965]. 1 His pri *170 mary claim is that the trial court committed error in denying defense counsels’ motion for continuance, thereby denying him effective assistance of counsel as guaranteed by the Constitutions of West Virginia and the United States.
We find the trial court abused its discretion in refusing to grant a continuance, and we reverse the conviction.
The significant pre-trial events which give rise to this assignment of error are as follows: On February 12, 1975, the defendant was arrested and charged by warrant with forcible rape. A preliminary hearing was held on February 18, 1975, and the defendant was bound over to the March term of the Marion County Grand Jury. On March 10, 1975, a true bill was returned. A trial date was set for April 28, 1975, but the record does not reveal when this trial date was set or whether the defendant was ever formally arraigned prior to the day of trial. Prior to trial, the defendant remained lodged in the Marion County jail.
Based on the undisputed facts as set forth in the defendant’s motion for a continuance, and affidavits filed thereafter in conjunction with motions to set aside the verdict and award a new trial, the salient facts surrounding the defendant’s acquisition of counsel and the facts and circumstances surrounding the trial court’s denial of a continuance may be examined.
Shortly after the defendant was arrested he contacted a local attorney, Mr. Brent Beveridge, seeking his assistance in obtaining bond. Despite counsel’s efforts, the court refused to set bond. Thereafter, Beveridge represented the defendant in the February 18, 1975 prelimi *171 nary hearing upon the request of a second attorney, Mr. Franklin D. Cleckley, and contacted a court reporter to attend and record the hearing. Neither Mr. Beveridge nor the court reporter received any compensation for his services at the preliminary hearing. Mr. Beveridge also appeared in chambers in late February concerning bond but bond was again denied.
Mr. Beveridge met with the defendant in the Marion County jail on at least two occasions, primarily for the purpose of discussing the possibility of petitioning this Court for bond. Thereafter, he spoke with the defendant and his wife concerning the necessity of making financial arrangements to cover his past and future services, along with the court reporter’s fee. Discussions were also had concerning the employment of either Mr. Cleckley or Mr. Beveridge, or both, but no agreement was reached.
After the first week in March, Mr. Beveridge said he had little if any contact with the defendant, and did not discuss the merits of the case, file written motions or discuss any plea bargaining arrangements with the prosecutor’s office. Furthermore, he did not attend the hearing at which the trial docket was set, T.R.C. Ill, and never made any representation to the court indicating he represented the defendant. Mr. Cleckley’s pre-trial involvement in the case was even more limited.
By letter dated April 18, 1975, the prosecuting attorney advised Mr. Cleckley of the trial date. Mr. Cleckley informed the prosecuting attorney by letter that he had not been retained to represent the defendant and he requested that the circuit court bring the defendant before the court so that the counsel issue might be resolved properly.
On Friday, April 25, 1975, while Mr. Cleckley was attending an unrelated hearing, the court called the defendant to inquire respecting his employment of counsel. The defendant expressed a desire to retain Mr. Cleckley as counsel and indicated that he would advise the court *172 by the following Monday whether he could raise the necessary funds. The court agreed to this procedure, and continued the case to the next term of court. About an hour later, however, the court gave Mr. Cleckley a handwritten note which said that the trial would be held on Monday, April 28, 1975. The note indicated the judge engaged in an ex parte conversation with the prosecuting attorney and concluded that Mr. Beveridge had represented the defendant following his arrest, and that the case would go to trial with Mr. Beveridge as counsel.
Mr. Cleckley and Mr. Beveridge, avoiding the wrath of the court, represented the defendant at trial but neither was appointed to represent the defendant and neither has ever been compensated for his legal services.
On the morning of the trial, the defense attorneys moved for a continuance on the ground that counsel had not had ample time to prepare an adequate defense. In addition to the facts previously set forth, they alleged in support of the motion that neither attorney had been retained by the defendant nor had either of them done anything in preparation for trial. More specifically, counsel had not: (1) picked up a copy of the indictment; (2) prepared pre-trial motions; (3) interviewed the defendant or any other witnesses in preparation for trial; (4) prepared voir dire examination, opening statements, a case strategy, instructions or any other matters or motions necessary for the defense of the case; and, (5) neither counsel had requested a transcript of the preliminary hearing nor was one available.
In conclusion, counsel alleged that neither the court nor the prosecuting attorney had offered a reason why the case could not be tried at a later time that would afford counsel a fair and adequate opportunity to prepare a defense consistent with the mandate of West Virginia Const. Art. Ill, § 14; and that to proceed to trial under the circumstances constituted trial by ambush and was contrary to established notions of decency and fair play. The trial court summarily denied the motion, *173 impaneled the jury, and proceeded with the trial of the case.
I
There is only one decision in this jurisdiction in which this Court considered the issue raised in this appeal. In
State ex rel. West Virginia-Pittsburgh Coal Co. v. Eno,
Briefly, the facts there were that a rule in contempt was issued by the trial court, returnable on January 20, 1950. Two of the union members were served on January 18th and the other was served on January 19th. Because the attorney who represented them in the initial injunction proceeding was not available for consultation until approximately twelve noon on the 19th of January, counsel requested a continuance in order to prepare an answer, determine a defense and prepare for cross-examination. Despite the trial court’s offers of brief recesses to enable the defendant to prepare an answer and prepare a defense, counsel politely refused, consistently asserting his inability to defend without additional time. He did not cross-examine any of the State’s witnesses or offer any testimony on behalf of the defense.
In syl. pt. 2 in Eno the Court held “[t]he right guaranteed by the State and Federal Constitutions to a person charged with a criminal violation to have effective assistance of counsel, cannot be abrogated by denying counsel, if timely employed, sufficient time to adequately prepare for trial.”
The
Eno
court did not base its ruling on the nature of the representation afforded defendant at trial; that is, it did not analyze the record to determine how or if the defendants were prejudiced or how their case would have been better prepared had the continuance been granted. The holding rests solely on the inadequate
*174
preparation time afforded defense counsel. “The right of a defendant in a criminal case to be represented by counsel includes the right to effective assistance of counsel, and the refusal to allow counsel sufficient time to prepare for trial is a denial of that right.” [citations omitted].
Id.
at 482,
For several reasons, some based on recent developments, the most important factor in considering claims of the sort advanced here is the length of time between the employment or appointment of counsel and the trial of the case. Obviously, there is a substantial relationship between time to prepare for a criminal trial and the quality of representation provided by the defense. As the Court said in
Eno
“[t]o hold that counsel should have prepared for trial in less than twenty-four hours after having been employed would, we think, have the effect of denying the defendants a fair trial, and denying unto them the effective assistance of counsel to which they were entitled.”
Id.
at 483,
Our recent pronouncement in
Housden v. Leverette,
-W. Va-,
We also observed in
State ex rel. Partain v. Oakley,
-W. Va.-,
The Court of Appeals for the 4th Circuit in
Marzullo v. Maryland,
Counsel for an indigent defendant should be appointed promptly. Counsel should be afforded a reasonable opportunity to prepare to defend an accused. Counsel must confer with his client without undue delay and as often as necessary, to advise him of his rights and to elicit matters of defense or to ascertain that potential defenses are unavailable. Counsel must conduct appropriate investigations, both factual and legal, to determine if matters of defense can be developed, and to allow himself enough time for reflection and preparation for trial.
The American Bar Association standards relating to The Prosecution Function and the Defense Function, Section 4.1,
3
(Appr. Dr. 1971) also places a duty upon
*176
defense counsel to conduct a prompt investigation of the circumstance of the case and explore all avenues leading to facts relevant to guilt and degree of guilt or penalty. It requires that the investigation include efforts to secure information in possession of the prosecution. This section may well have been designed to give substantive content to the dictum that the “denial of opportunity for appointed counsel to confer, to consult with the accused and to prepare his defense could convert the appointment of counsel into a sham....”
Avery v. Alabama,
Timely appointment and a reasonable opportunity for adequate preparation are thus absolute prerequisites for fulfillment of counsel’s constitutionally assigned role of seeing to it that available defenses are raised and the prosecution is put to its proof.
Our most recent decision on continuances also reaffirms the teachings of
Eno, supra,
that our State Constitution places limitations on the admittedly broad discretion of trial courts to control their criminal dockets in the interest of orderly and expeditious justice. In the third syllabus of
Wilhelm v. Whyte,
W. Va._,
There may be occasions when the denial of a continuance in a criminal trial is so arbitrary as to violate due process, and because of the particular wording in Article III, section 14 in the West Virginia Constitution, that the accused “shall have the assistance of counsel, and a reasonable time to prepare for his defense,” there is, independent of the Due Process Clause in our Constitution, a constitutional right to a continuance if the defendant is not accorded a reasonable time to prepare his defense.
Applying the foregoing precedents to this case, we are of the opinion that the principles of Eno are controlling and that the trial court’s denial of a continuance in the *177 circumstances of this case denied the defendant his constitutional right to effective assistance of counsel.
As indicated earlier, the record, unfortunately, does not reveal what occurred on the day the trial date was set. The record does not demonstrate that the defendant was present that day or reveal what transpired in relation to the retention or appointment of counsel. No affidavit of indigency is of record.
Although the defendant failed to procure counsel during the approximately seven weeks between indictment and trial, there is no indication that the defendant embarked upon a deliberate strategy of delaying the trial by being dilatory in the employment of counsel, nor is there any indication that the trial court was of that opinion. There is not the slightest suggestion that counsels’ plea for more time was made in bad faith. In this factual vacuum we are not prepared to hold that the defendant failed to act with reasonable diligence in procuring the services of counsel.
See generally, United States v. Inman,
The trial court in this case ordered an attorney who had never been retained or appointed to go to trial with only a weekend for trial preparation in a case involving a possible life sentence. The denial of a continuance under the particular circumstances of this case amounted in substance to a denial of the right to effective assistance of counsel. Even though Eno is dispositive of the issue, we would also be compelled to reverse the conviction under the traditional standard of appellate review.
The well settled standard of review is that “[t]he granting of a continuance is a matter within the sound discretion of the trial court... and the refusal thereof is not ground for reversal unless it is made to appear that the court abused its discretion, and that its refusal has worked injury and prejudice to the rights of the
*178
party in whose behalf the motion was made.” Syl. pt. 1,
State v. Jones,
It is apparent from an analysis of the case law in this jurisdiction that the issues of abuse of discretion and prejudice are to be decided on a case-by-case basis in light of the particular factual circumstances presented in each case. It is also manifest that prejudice in this context is not subject to precise definition.
Because only a few West Virginia decisions address the difficult issues arising from the denial of continuance based on an inadequate time to prepare a defense, and because those that do antedate significant developments in criminal law and procedure, we have found it productive to examine the pronouncements of other courts which have reviewed such claims. 5
The United States Court of Appeals for the Fifth Circuit in
United States v. Uptain,
The court also noted that it had expressly considered the adequacy of the defense actually provided at trial, the skill and experience of the attorney, any pre-appointment or pre-retention experience of the attorney with the accused or the alleged crime, and any representation of the defendant by other attorneys that accrues to his benefit.
*179
In
United States v. Maxey,
This Court has explicitly considered some of these factors in assessing claims of an inadequate time to prepare a defense. Some of these decisions are of questionable validity today in light of constitutional developments, but they, nonetheless, merit discussion.
West Virginia’s seminal decision appears to be
State v. Maier,
This Court, in affirming the trial court’s ruling denying the continuance, noted that the accused was in custody, and by statute, unless good cause was shown, had to be tried during the same term of court at which the indictment was returned. The court also relied on the traditional rule that an appellate court in this State will supervise the action of an inferior court on a motion for continuance, but it will not reverse a judgment unless such action is plainly erroneous.
*180
Six years later, in
State v. Lane,
State v. Madison,
The Court stated:
It seems to us that the court should have exercised its discretion otherwise; but that is not our question. The question here is whether it is *181 cause for reversal of the judgment. If we could see that any evidence for the accused was in existence or attainable, we might say he was prejudiced by this haste, and we could see some force in this complaint; but not a person was suggested as a probable witness; not one matter which the accused could prove, or expected to prove, as required by law. [citations omitted]. We cannot reverse when we can see no object to be attained by it. We must have something of substance on which to reverse a solemn trial. Id. at 97,38 S.E. at 493 .
The most recent case on the issue,
State v. Tapp,
Turning to the facts of this case, we find that the trial court abused its discretion in refusing to grant a continuance. The record discloses no reason or justification for the haste in trying this case. The attorneys had only a weekend to prepare for the trial — from Friday afternoon to the following Monday morning — in a case where without a jury recommendation of mercy the sentence would be life without eligibility for parole. Mr. Beveridge’s contact with the case some eight weeks prior to trial would be of little assistance in preparation for trial, particularly where no preliminary hearing transcript was available because counsel had not ordered it transcribed. Thus, it could not be used to impeach the State’s witnesses or to refresh counsels’ memory.
The likelihood of prejudice stemming from the denial of the continuance is quite high. This case was an unusual, and somewhat complex forcible rape involving a *182 black defendant and white victim. It is undisputed that defense counsel, among other things, did not prepare pretrial motions, interview witnesses in preparation for trial, or prepare for voir dire examination. This is not surprising since they had less than one working day to prepare for trial.
The defense here sets forth a number of instances at trial which it claims denied the defendant his right to effective assistance of counsel because of an arbitrary refusal to grant a continuance. We need not examine each isolated incident of alleged inadequacy to determine that the defendant in all likelihood was prejudiced in his defense and is entitled to a new trial. We will, however, address one matter without considering the substantive merit of the claim.
The State called as a witness the owner of the house where the rape allegedly occurred. He testified that the defendant telephoned him from the county jail shortly after he was arrested and asked that he lie for him by saying that the defendant and prosecutrix were at his home on the night in question for about two hours and the two of them “admired” one another. According to a post-trial affidavit of this witness, this telephone conversation was secretly recorded by the police without the consent of the witness or the defendant. The witness, a long-time friend of the defendant’s, stated that because the police officers recounted the telephone conversation in great detail, he was prompted to sign a statement to that effect. The witness further indicated that he did not talk to defense counsel until the day after the trial was completed.
We recognize, as the Court did in Maier, that an accused in custody is entitled, unless good cause be shown for the continuance, to be tried in the same term of court as the indictment. See W. Va. Code § 62-8-1. That “good cause” exception clearly contemplates relieving the State from its duty to try the defendant at the same term as the indictment where the defendant seeks a *183 continuance as a result of financial difficulties delaying the employment of counsel.
We need not go further in the analysis of probable or possible prejudice to the defendant. We are firmly convinced that the trial court abused its discretion and prejudiced the defendant by not granting a continuance.
The substantial and legitimate interest of the State in the prompt and efficient administration of the criminal justice system, and the interests of criminal defendants in the guarantee of a speedy trial cannot be allowed to erode the fundamental right to effective assistance of counsel and a fair trial.
There are other assignments which have merit. We agree that the trial court erred in admitting, over objection, testimony that the defendant on a previous occasion had brandished a gun, used strong profanity, threatened to shoot a person, and impliedly admitted he had shot other persons. The defense in this case made a timely objection to the testimony and requested an in camera hearing as to its admissibility. The State concedes that the testimony of the State’s witness concerning a collateral crime or misconduct was improperly admitted into evidence.
The testimony was inadmissible under
State v. Thomas,
_W. Va._,
Trial courts are cautioned, in relation to the admission of prior offenses, that the admissibility thereof should be weighed very carefully and that such evidence should be excluded if the court finds that its probative value is outweighed by the risk that its admission will create substantial danger of undue prejudice to the defendant. Pursuant thereto, the trial court should require the State to disclose in advance, in camera, any evidence of collateral crimes it intends to introduce at the trial. This disclosure is designed *184 to permit the court to make the above determination relative to the probative value of such evidence.
The defense also assigns as error the giving of an instruction containing language identical to the instruction recently condemned by this Court in
State v. Byers,
_W. Va._,
Since the judgment of conviction is reversed, we do not consider whether the error should be considered under the plain error doctrine. In the event of retrial, however, the instruction must not be given.
We find the assignment of error in which it is claimed that the now-repealed rape statute is unconstitutional must be answered in the negative in light of
Moore v. McKenzie,
_W. Va._,
Because it is not a crime under that law for a female over sixteen to forcibly rape a male person over sixteen years of age, the defendant contends the sex-based classification invidiously discriminates against males in violation of the equal protection and due process guarantees of the federal and state constitutions.
Moore
held that not every sex-based classification is unconstitutional; that such classifications are not inherently suspect and therefore subject to strict scrutiny; and that “the gender-based classification under W. Va. Code § 61-2-15, served important governmental objectives and was substantially related to the achievement of the objectives. We also defer to the legislative prerogative to attack, through the passage of criminal laws,
*185
those problems which seem most acute to the legislative mind.”
Id.
at_,
We have carefully considered the other assignments of error and find they do not warrant discussion either because they are not likely to recur in the event of retrial, or they are without merit and discussion thereof would not contribute to the development of law of this jurisdiction. For the foregoing reasons we reverse the judgment of the trial court.
Reversed.
Notes
This section, under which the defendant received an indeterminate ten to twenty year sentence, provides as follows:
*170 If any male person carnally knows a female person, not his wife, against her will by force ... he shall be guilty of a felony, and, upon conviction ... shall be punished with confinement in the penitentiary for life ...: Provided, that the jury may, in their discretion, recommend mercy, and if such recommendation is added to their verdict, such person shall be punished with confinement in the penitentiary for not less than ten nor more than twenty years....
See, Carter v. Bordenkircher,
_W. Va._,
It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to guilt and degree of guilt or penalty. The investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused’s admissions or statements to the lawyer or facts constituting guilt or his stated desire to plead guilty.
Most of the law of continuances was developed where delay was sought based on absence of a material witness. E.g.,
State v. Simmons,
See generally, 17 Am. Jur.2d Continuance § 28 (1963); 3 Wharton’s Criminal Law & Procedure § 424 (1975).