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State v. Iran G.

Supreme Court of West Virginia

January 14, 2019

State of West Virginia, Plaintiff Below, Respondent
v.
Iran G., Defendant Below, Petitioner

          Marion County 16-F-89

          MEMORANDUM DECISION

         Petitioner Iran G., by counsel James E. Shay, Jr., appeals the Circuit Court of Marion County's August 4, 2017, order sentencing him following his conviction on counts of first-degree sexual abuse, first-degree sexual assault, and sexual abuse by a parent, guardian, custodian, or person in a position of trust.[1] Respondent State of West Virginia, by counsel Scott E. Johnson, filed a response and supplemental appendix. On appeal, petitioner contends the circuit court erred in permitting him to represent himself at trial, denying his motion for a new trial based upon prosecutorial misconduct, and denying his motion for judgment of acquittal because there was insufficient evidence to support his convictions. Petitioner also alleges that that he was denied effective assistance of counsel.

         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 briefs, and the record presented, 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.

         In June of 2016, petitioner was indicted for 143 counts relating to his abuse of five juveniles, K.L., C.A., E.L., D.A., and J.G. The charges included forty-eight counts of first-degree sexual assault; twenty-four counts of first-degree sexual abuse; and seventy-one counts of sexual abuse by a parent, guardian, custodian, or person in a position of trust. The circuit court appointed trial counsel for petitioner and he thereafter filed pretrial motions and otherwise assisted petitioner in building his defense.

          Petitioner's trial commenced in April of 2017. Immediately prior to the trial, petitioner informed the circuit court that he wished to represent himself at trial. When asked why he wished to proceed pro se, petitioner responded

[w]ell, part of it is my first attorney gave me bad advice, so I had a little issue with trusting the attorney. Mr. Shough[2] has been very helpful and very good to me. But I feel my fate should be in my hands because I am talking about the rest of my life.

         The circuit court expressed that petitioner's decision was "contrary to [his] best interest" and further questioned

[s]o let me ask you this, would you like a little bit more time? I mean, do you want do discuss it a little bit more with [counsel]? I mean, he is - he has tried - I don't know how many criminal cases he's tried, but he has tried a lot of criminal cases, and he's highly qualified. He knows the system. I just - I'm concerned about it being contrary to your best interest to represent yourself.

         After further discussion, the circuit court again asked "[s]o if I give you and [counsel] a little bit more time to talk, you don't believe you're going to change your mind, is that what you're telling me?" Petitioner replied "[y]es. That's what I'm telling you." The circuit court continued to advise petitioner against representing himself. The circuit court reviewed, paragraph by paragraph, the signed waiver of right to counsel, advised petitioner of the dangers of proceeding without counsel, and informed him that he would be held to the same evidentiary standard as an attorney. After advising him of the dangers of self-representation, the circuit court again asked petitioner if he desired more time to speak to his counsel. Petitioner briefly thought the matter over but insisted that he wanted to represent himself. The circuit court granted petitioner's motion to represent himself, finding that petitioner was mentally capable to waive representation, was literate and had been fully informed of his right to counsel, fully understood the implications of waiving his right to counsel, voluntarily and rationally waived his right to counsel, and was fully advised of the pitfalls, dangers, and consequences of acting as his own attorney. The circuit court also ordered that Mr. Shough continue as standby counsel in the event that petitioner needed assistance or no longer wished to proceed pro se.

         The trial began later that morning and the State called a number of witnesses including each of the five victims, a forensic interviewer, a pediatrician, and a therapist, all of whom spoke to the sexual abuse perpetrated by petitioner. Specifically, the pediatrician testified that she led the physical examinations of all five children and, while not present for the entirety of each exam, was present for the entirety of the examinations of K.L. and E.L. The pediatrician opined that K.L. and E.L. showed the symptomology of children who had been sexually abused. The therapist testified that she worked with each of the five children and specifically opined that J.G. and D.A. gave statements that were consistent with other children who had been sexually abused. Each of the five victims testified that petitioner had touched their vaginas, among other acts of sexual abuse. During the testimony of seven-year-old D.A., the child stated that she was unable to remember how many times she was abused, what day it was, or the time. However, the child was given a drawing of a female body and circled the vagina when asked where petitioner had touched her.

         Petitioner testified on his own behalf and denied sexually abusing any of the victims. At that time, the State requested permission to approach the bench and asserted that petitioner had perjured himself due to stipulating to abusing the children in a related abuse and neglect case. Standby counsel for petitioner advised the court that the State had made no mention of discussing the abuse and neglect case during any pretrial hearing and, as such, should be prohibited from referencing the matter. In response, the State offered that it had no need to mention the abuse and neglect proceedings prior to petitioner's perjuring himself and requested to impeach petitioner using the order from the abuse and neglect proceedings, stating "I just want to be able to cross him according to the order and what his statements were in there." However, the circuit court noted that petitioner's exact statements were not contained in the order and no transcript was available. It concluded

I will allow any proper cross-examine [sic] or proper rebuttal to what he says, if it's offered by the State. But for the purposes of this Order, I'm not going to let that be used as cross-examination impeachment material. I think it's too vague, for the record, and it opens up too many confusing doors to be used in this proceeding. I am just not going to do it. If there were a transcript, and he had particulars, that might be a different story, but we don't have that.

         Petitioner resumed testifying at that point and the State continued with the following line of questions:

[State:] Just so we are clear, [petitioner], I had asked you - [your standby counsel] asked you did you sexually abuse the kids?
[Petitioner:] Yes, he asked me that.
[State:] And you answered, no?
[Petitioner:] Yes, I did.
[State:] And then I asked you if you had sexually abused each individual child, correct?
[Petitioner:] Correct.
[State:] But as of day [sic], your testimony to this jury is that you did not sexually abuse these kids?
[Petitioner:] That's correct.
[State:] [Petitioner], let me ask you this, have you ever previously admitted to the sexual abuse of these children?
[Petitioner:] Not any specifics.
[State:] That's not the question I asked. I said, have you ever previously admitted to sexual abuse ...

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