State of West Virginia v. Langley ( 2022 )


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  •                                                                                      FILED
    January 18, 2022
    EDYTHE NASH GAISER, CLERK
    STATE OF WEST VIRGINIA                               SUPREME COURT OF APPEALS
    SUPREME COURT OF APPEALS                                   OF WEST VIRGINIA
    State of West Virginia,
    Plaintiff Below, Respondent
    vs.) No. 20-0903 (Monongalia County 20-F-152)
    Jon Langley,
    Defendant Below, Petitioner
    MEMORANDUM DECISION
    Petitioner Jon Langley, by counsel Peter Dinardi, appeals the October 19, 2020, order of
    the Circuit Court of Monongalia County that sentenced him to one to five years in prison for one
    count of attempting to disarm a law enforcement officer; twelve months in jail for misdemeanor
    battery on a law enforcement officer; and twelve months in jail for misdemeanor obstruction.
    Respondent, the State of West Virginia, by counsel Patrick Morrisey and Katherine M. Smith, filed
    a summary response in support of the circuit court’s order.
    This Court has considered the parties’ briefs and the record on appeal. The facts and legal
    arguments are adequately presented, and the decisional process would not be significantly aided
    by oral argument. Upon consideration of the standard of review, the Court finds no substantial
    question of law and no prejudicial error. For these reasons, a memorandum decision affirming the
    circuit court’s order is appropriate under Rule 21 of the Rules of Appellate Procedure.
    On May 28, 2020, Monongalia County Deputy Sheriff J.D. Morgan and another officer
    attempted to execute a capias warrant on petitioner and to serve him with a family violence
    protective order. The officers located a man they believed to be petitioner, but who identified
    himself only as “Adam.” Correctly suspecting that “Adam” was petitioner, the officers attempted
    to handcuff him, but petitioner jerked out of Deputy Morgan’s grasp. Deputy Morgan then caught
    petitioner and tackled him. In response, petitioner twice head-butted Deputy Morgan in the face
    and then grabbed for the deputy’s gun, but instead got the deputy’s taser. Petitioner shot Deputy
    Morgan in the left forearm using the taser. Thereafter, the officers were able to handcuff petitioner,
    place him under arrest, and properly identify him.
    Jennifer Yost was appointed as petitioner’s counsel. After his first meeting with Ms. Yost,
    petitioner demanded new counsel. Therefore, Ms. Yost filed a motion with the trial court on June
    8, 2020, seeking to withdraw as petitioner’s counsel on the ground that “she was informed by her
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    client at a meeting . . . at the North Central Regional Jail that he would like to be appointed a new
    attorney for this matter.” On June 10, 2020, the circuit court denied that motion without a hearing
    finding that petitioner’s counsel “fails to identify any persuasive ground upon which said motion
    should be granted.”
    On June 18, 2020, petitioner was indicted on three counts: (1) attempting to disarm a police
    officer; (2) battery on a law enforcement officer; and (3) obstruction.
    Petitioner’s trial took place on August 25, 2020. During voir dire, venire member James
    Hall advised that (1) his aunt had worked for the Bureau of Prisons and was currently a court
    officer, and (2) two of his cousins worked for the Federal Bureau of Investigation (“FBI”).
    Petitioner states that his counsel did not question Mr. Hall on voir dire or object to Mr. Hall serving
    on the jury. Mr. Hall ultimately sat on the jury which found petitioner guilty on all three counts of
    the indictment.
    By order entered October 19, 2020, the circuit court sentenced petitioner to (1) one to five
    years in prison for attempting to disarm a police officer; (2) twelve months in jail for misdemeanor
    battery on a law enforcement officer; and (3) twelve months in jail for misdemeanor obstruction.
    The court ordered the misdemeanor sentences to run concurrently to one another, and
    consecutively to petitioner’s sentence for attempting to disarm a law enforcement officer.
    Petitioner now appeals and raises two assignments of error. Petitioner first argues that Ms.
    Yost provided ineffective assistance because she did not object to Mr. Hall serving on petitioner’s
    jury or question him about his aunt who had worked for the Bureau of Prisons and is now a court
    officer, or about his cousins who worked for the FBI, to determine if Mr. Hall was biased or
    prejudiced against him. Petitioner contends that this failure was particularly problematic given that
    the alleged victim was a law enforcement officer. Petitioner highlights that “[t]he object of jury
    selection is to secure jurors who are not only free from improper prejudice and bias, but who are
    also free from the suspicion of improper prejudice or bias.” O’Dell v. Miller, 
    211 W. Va. 285
    , 288,
    
    565 S.E.2d 407
    , 410 (2002). Petitioner notes that
    a defendant’s right to an impartial jury includes the right to an adequate voir dire to
    identify unqualified jurors. See Morgan v. Illinois, 
    504 U.S. 719
    , 729–30, 
    112 S.Ct. 2222
    , 2230, 
    119 L.Ed.2d 492
    , 503 (1992); Syl. pt. 4, State v. Peacher, 
    167 W.Va. 540
    , 
    280 S.E.2d 559
     (1981). Voir dire must be probing enough to reveal jurors’
    prejudices regarding issues that may arise at trial so that counsel may exercise their
    challenges in an informed manner.
    State v. Miller, 
    197 W. Va. 588
    , 603, 
    476 S.E.2d 535
    , 550 (1996). Petitioner contends that Ms.
    Yost could have had no possible strategy that would have led her not to question Mr. Hall about
    any potential bias or prejudice. Accordingly, he concludes that she provided ineffective assistance
    in failing to question Mr. Hall on voir dire and to strike him as a juror.
    “Traditionally, an ineffective assistance of counsel claim is not cognizable on direct appeal
    because of the insufficiency of the record from the criminal trial.” State v. Moore, No. 13-0332,
    
    2013 WL 5708427
    , at *1 (W. Va. Oct. 21, 2013)(memorandum decision).
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    In a direct appeal, . . . it is often difficult, if not impossible, for this Court to
    determine “whether the attorney’s performance below was ineffective or merely
    the result of trial strategy.” State v. Bess, 
    185 W.Va. 290
    , 293, 
    406 S.E.2d 721
    , 724
    (1991). In past cases, this Court has cautioned that “[i]neffective assistance claims
    raised on direct appeal are presumptively subject to dismissal.” State v. Miller, 
    197 W.Va. 588
    , 611, 
    476 S.E.2d 535
    , 558 (1996). See City of Philippi v. Weaver, 
    208 W.Va. 346
    , 351, 
    540 S.E.2d 563
    , 568 (2000). Such claims are more properly raised
    in a post-conviction collateral proceeding “to promote development of a factual
    record sufficient for effective review.” Miller, 197 W.Va. at 611, 
    476 S.E.2d at 558
    .
    We have explained that
    “[i]t is the extremely rare case when this Court will find
    ineffective assistance of counsel when such a charge is raised as an
    assignment of error on a direct appeal. The prudent defense counsel
    first develops the record regarding ineffective assistance of counsel
    in a habeas corpus proceeding before the lower court, and may then
    appeal if such relief is denied. This Court may then have a fully
    developed record on this issue upon which to more thoroughly
    review an ineffective assistance of counsel claim.”
    Syl. Pt. 10, State v. Hutchinson, 
    215 W.Va. 313
    , 
    599 S.E.2d 736
     (2004) (quoting
    Syl. Pt. 10, State v. Triplett, 
    187 W.Va. 760
    , 
    421 S.E.2d 511
     (1992)).
    State v. Woodson, 
    222 W. Va. 607
    , 621, 
    671 S.E.2d 438
    , 452 (2008). Here, because the record is
    insufficient to review petitioner’s claim of ineffective assistance of counsel, it must be dismissed.
    Thereafter, petitioner “may reassert the ineffective assistance claim in a petition for writ of habeas
    corpus so that a full development of the record may be made before the trial court.” 
    Id.
    Petitioner’s claim regarding juror bias is also not properly before the Court. Petitioner
    admits that his counsel did not object to Mr. Hall serving on the jury. In fact, petitioner never raised
    any issue of bias regarding Mr. Hall to the trial court.
    Ordinarily, a defendant who has not proffered a particular claim or defense
    in the trial court may not unveil it on appeal. Indeed, if any principle is settled in
    this jurisdiction, it is that, absent the most extraordinary circumstances, legal
    theories not raised properly in the lower court cannot be broached for the first time
    on appeal. We have invoked this principle with a near religious fervor. This variant
    of the “raise or waive” rule cannot be dismissed lightly as a mere technicality. The
    rule is founded upon important considerations of fairness, judicial economy, and
    practical wisdom.
    Miller, 197 W. Va. at 597, 
    476 S.E.2d at 544
    . Moreover,
    [w]hen a defendant has knowledge of grounds or reason for a challenge for
    cause, but fails to challenge a prospective juror for cause or fails to timely assert
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    such a challenge prior to the jury being sworn, the defendant may not raise the issue
    of a trial court’s failure to strike the juror for cause on direct appeal.
    Syl. Pt. 5, State v. Tommy Y., Jr., 
    219 W. Va. 530
    , 
    637 S.E.2d 628
     (2006).
    Despite not being properly before the Court, we nevertheless observe that at petitioner’s
    trial, the court, the State, and petitioner’s counsel conducted voir dire of the venire. None of the
    responses to the questions asked during voir dire indicated that Mr. Hall was unable to sit as an
    impartial juror. Additionally, neither the State nor the defense moved to strike Mr. Hall from the
    jury. As noted above, the only evidence petitioner presents in support of his claim that Mr. Hall
    was biased is that (1) Mr. Hall’s aunt had worked for the Bureau of Prisons and is a court officer,
    and (2) two of his cousins worked for the FBI. “The relevant test for determining whether a juror
    is biased is ‘whether the juror[] . . . had such a fixed opinion that [he or she] could not judge
    impartially the guilt of the defendant.” Miller, 197 W. Va. at 605, 
    476 S.E.2d at 552
     (quoting
    Patton v. Yount, 
    476 U.S. 1025
    , 1035 (1984) (citations omitted)).
    In determining whether a juror should be excused, our concern is whether
    the juror holds a particular belief or opinion that prevents or substantially impairs
    the performance of his or her duties as a juror in accordance with the instructions
    of the trial court and the jurors’ oath. Wainwright v. Witt, 
    469 U.S. 412
    , 424, 
    105 S.Ct. 844
    , 852, 
    83 L.Ed.2d 841
    , 851–52 (1985); Phillips, 194 W.Va. at 588, 461
    S.E.2d at 94. A juror is impartial if he or she can lay aside any previously formed
    impression or opinion of the parties or the merits of the case and can render a verdict
    based on the evidence presented at trial. Irvin v. Dowd, 
    366 U.S. 717
    , 723, 
    81 S.Ct. 1639
    , 1643, 
    6 L.Ed.2d 751
    , 756 (1961).
    Miller, 197 W. Va. at 605, 
    476 S.E.2d at 552
    . “Actual bias can be shown either by a juror’s own
    admission of bias or by proof of specific facts which show the juror has such prejudice or
    connection with the parties at trial that bias is presumed.” 
    Id.
     at Syl. Pt. 5.
    The fact that Mr. Hall’s aunt was formerly employed with the Bureau of Prisons and is a
    court officer, and that his cousins were employed by the FBI, does not, alone, demonstrate any
    actual bias. Moreover, during voir dire, both the court and the State repeatedly asked the venire
    whether they were aware of any prejudice or bias that would prevent or interfere with their ability
    to serve as fair and impartial jurors. Two potential jurors, neither of which was Mr. Hall, admitted
    biases and, as a result, were removed from the venire for cause. Mr. Hall did not claim to have any
    prejudice or bias and neither the State nor the defense sought to strike him for cause. In fact,
    nothing in the record evidences that Mr. Hall was biased against petitioner. Accordingly, we reject
    this assignment of error.
    In petitioner’s second assignment of error, he contends that the judge initially assigned to
    his case erred in denying his motion for new court-appointed counsel. Petitioner argues that his
    motion should have been granted because he sought new counsel after meeting with Ms. Yost,
    and, thereafter, Ms. Yost moved to withdraw as petitioner’s counsel. Petitioner contends that
    because the circuit court did not hold a hearing on his motion, he was given no opportunity to
    explain why he wanted new counsel, nor did Ms. Yost have an opportunity to explain why she
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    filed her motion. Finally, petitioner argues that Ms. Yost should have renewed her motion to
    withdraw as petitioner’s counsel before the second judge assigned to his case who presided over
    petitioner’s trial. Petitioner concludes that he was prejudiced by Ms. Yost’s failure to do so.
    “Although an indigent criminal defendant has a right to be represented by counsel, he does
    not have a right to be represented by a particular lawyer, or to demand a different appointed lawyer
    except for good cause.” Watson v. Black, 
    161 W. Va. 46
    , 52, 
    239 S.E.2d 664
    , 668 (1977); see also
    State v. Reed, 
    223 W. Va. 312
    , 317, 
    674 S.E.2d 18
    , 23 (2009) (“‘[A]n indigent criminal defendant
    may demand different counsel for good cause, such as the existence of a conflict of interest or, if
    the potential conflict is disclosed in a timely fashion, he may elect to waive his rights and keep the
    court appointed counsel.’ State v. Reedy, 
    177 W.Va. 406
    , 411, 
    352 S.E.2d 158
    , 163 (1986).”).
    “Good cause for the relief of a court-appointed counsel consists of: (1) a conflict of interest; (2) a
    complete breakdown in communication with court-appointed counsel after the exhaustion of good
    faith efforts to work with counsel; or, (3) an irreconcilable conflict which might lead to an unjust
    verdict.” Watson, 161 W. Va. at 46, 
    239 S.E.2d at 665
    , Syl. Pt. 5. Here, petitioner provided no
    “good cause” in support of his motion for new counsel. Thus, we find that he was not entitled to
    alternate court-appointed counsel and, therefore, find no error. For the same reason, we reject
    petitioner’s argument that he was prejudiced when Ms. Yost failed to renew her motion to
    withdraw before the judge who presided over petitioner’s trial. Finally, we note that there is no
    right to a hearing on a motion to withdraw as counsel. See W. Va. Trial Ct. R. 4.03(b) (“[T]he
    court may set the matter for hearing[.]” (Emphasis added.)) Moreover, the approval of such a
    motion “rest[s] in the sound discretion of the court[.]” 
    Id.
     Accordingly because petitioner failed to
    identify any persuasive ground upon which his motion for new counsel should have been granted,
    we find he is entitled to no relief.
    For the foregoing reasons, we affirm.
    Affirmed.
    ISSUED: January 18, 2022
    CONCURRED IN BY:
    Chief Justice John A. Hutchison
    Justice Elizabeth D. Walker
    Justice Tim Armstead
    Justice Evan H. Jenkins
    Justice William D. Wooton
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