Petition — Solomon v. West Virginia

IN THE

Supreme Court of the United States

OcTOBER TERM, 1978

No. .. Be 1 6 9 2

VICTOR SOLOMON, SR.,

Petitioner,

V.

STATE OF WEST VIRGINIA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To THE SUPREME COURT OF

APPEALS OF WEST VIRGINIA

LEO CATSONIS 7

205 Security Building

Charleston, WV 25301

Counsel for Petitioner

See JARRETT PRINTING COMPANY, CHARLESTON, W. VA,

INDEX

Page

Table of Citations é il

Prayer eee do ee pala 1

Opinion Below reese ees 1

Jurisdiction 2

Question Presented 2

Constitutional Provisions Involved — _ _. 2

Statement of the Case... 2

Reason for Granting the Writ... =. 13

Conclusion ~ ee Sensothniag 21

ee 1 so A-1

Order Entered October 9, 1978

Appendix B 1S) SE Re a B-1

Order entered February 1, 1979

Appendix C | cena F C-3

West Virginia Code, Ch. 58, Art. 5, Sec. 1 C-1

West Virginia Code, Ch. 58, Art. 5, Sec. 3 . C-1

West Virginia Code, Ch. 58, Art. 5, Sec. 4 _.. C-1

West Virginia Code, Ch. 58, Art. 5, Sec. 9. C-2

West Virginia Code, Ch. 58, Art. 5, Sec. 10 _.. C-3

i

SS ————E—EeO_0oee

TABLE OF CITATIONS

Cases: Page

Wainwright v. Sykes, 97 S.Ct. 2487 (1977) 14

Mayer v. City of Chicago, 404 U.S. 189 (1971) 20

Williams v. Oklahoma City, 395 U.S. 458 (1969) 20

Rinaldi v. Yeager, 384 U.S. 305 (1966) 19, 20

Arthur v. McKenzie, _. _W. Va... _., 245 S.E.2d

852 (1978) _. , anes SERIA Rae

State v. Smith, __W. Va. , 212 S.E.2d 759

(1975) | CA CA al RAN EE

Spaulding v. Warden, — W. Va. _, 212 S.E.2d

619 (1975) | LEN 55. AO NO nate eM |

State v Legg, 151 W. Va. 401, 151 S.E.2d 215

(1966) - ARS SE IME NE He ae OS

State ex rel. Davis v. Boles, 151 W. Va. 221, 151

sn iso Tee

State v. Fortmer, 150 W. Va. 571, 148 S.E.2d 669

(1966) . ee iewk Satie ORES CLE ESET

Sothen v. Continental Assurance Co., 147 W. Va.

. Mh, OE OS (ee) SCT

Lloyd v. Kyle, 26 W. Va. 534 (1885) = 17

ii

Page

West Virginia Statutes:

West Virginia Code, Ch. 58, Art. 5, sec. 3 17

West Virginia Code, Ch. 58, Art. 5, sec. 4 17

West Virginia Code, Ch. 58, Art. 5, sec. 10 18

Miscellaneous:

54 Judicature, Is the Right of Appeal Protected

By the Fourteenth Amendment (Feb. 1971) _ 16, 21

87 American Bar Association Report 391-399

(1962) Sar Be al LY el 21

iii

IN THE

Supreme Court of the United States

OctoBer TERM, 1978

VICTOR SOLOMON, SR..,

Petitioner,

V.

STATE OF WEST VIRGINIA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To THE SUPREME COURT OF

APPEALS OF WEST VIRGINIA

Petitioner, Victor Solomon, respectfully prays that a

writ of certiorari issue to review the judgment of the

Supreme Court of Appeals of West Virginia entered in

the case on February 1, 1979.

OPINION BELOW

There was no opinion rendered by the Supreme Court

of Appeals of West Virginia in that the Court denied the

petition for writ of error and supersedeas on two occa-

sions by Orders entered on October 9, 1978, and on

February 1, 1979, copies of which are set out in the

Appendix at Appendix A, p. A-1 and Appendix B., p.

B-1.

2

JURISDICTION

The last judgment Order of the Supreme Court of

Appeals of West Virginia was entered on February 1,

1979, and this petition was filed within 90 days of that

date. The jurisdiction of this Court is invoked pursuant

io 28 U.S.C. §1257(3).

QUESTION PRESENTED

Whether a defendant in a state court criminal trial is

denied rights afforded by the Fifth, Sixth and Fourteenth

amendments when the trial does not comport with exist-

ing state case law and the defendant is denied a review

thereof by virtue of an inadequate state appellate pro-

cedure.

CONSTITUTIONAL PROVISIONS INVOLVED

Fifth Amendment to the United States Constitution;

Sixth Amendment to the United States Constitution;

Fourteenth Amendment to the United States Constitu-

tion.

STATEMENT OF THE CASE

This was a criminal proceeding upon an indictment for

murder returned at the October, 1977, term of the circuit

court of Monongalia County, West Virginia. The defen-

dant entered a plea of “not guilty” on October 12, (R. 28),

and filed a verified motion for change of venue on No-

vember 2. (R. 29). In the verified motion it was alleged,

inter alia, that there was widespread hostility through-

out Monongalia and surrounding counties, including spe-

cifically Marion County, to which motion the State filed

an unverified answer (R. 30-34). A hearing was conduct-

‘The parties will be referred to as the “State” and the “defendant”;

page references will be to the record as prepared by the circuit clerk

with stamped numerals (R. ix

3

ed on the motion on November 10, at which several

witnesses testified, (R. 398-526), and several exhibits

received, including a front page story carried in the

Fairmont (Marion County) Times with a picture of the

deceased. (R. 49). The defendant presented evidence of

several witnesses concerning the radio coverage in Fair-

mont, (R. 431), the newspaper and television coverage

in Fairmont, (R. 475), and the general hostile sentiment

both in Monongalia and the surrounding counties. (R.

452).

The court took the motion under advisement and on

November 15, heard “argument” of counsel.’ The follow-

ing colloquy between defense counsel and the assistant

prosecutor at the hearing is pertinent:

(Assistant prosecutor )

“T think, in our discussions, we did agree that

probably Preston County and Marion County

would be a little too close. I believe the four of us

did come to that agreement.” (R. 531).

In ruling on the motion the court noted that it had

considered both Preston and Marion Counties but had

ruled out Preston County because “. . . the newspapers

from this county serve that area and I think that area

would be in an identical position to this county ...” and

transferred the trial to Marion County. Ostensibly, this

was based on “. . . matter of convenience” and the evi-

dence of one witness at the hearing who lived in the

Rivesville area “. . . that there could be a fair trial.”

(R. 531)

Trial commenced in Marion County on January 24,

1978, and the State introduced the testimony of the fol-

lowing witnesses.

?There was no argument, as such, since it was apparent that the

motion would be granted and the location was the topic. (R. 529-532).

4

Beverly Selby, an assistant prosecutor of Monongalia

County handling consumer protection matters, over ob-

jection, was permitted to testify that on September 5th

or 6th she talked with a John Mould who complained

that his motorcycle had been towed by defendant’s com-

pany and that he felt that there had been an overcharge.

(R. 536, 538-541). She advised him to take two witnesses

when he retrieved his motorcycle because she knew from

her own “. . . knowledge that Vic’s usually didn’t take

checks .. .” and the witnesses could “. .. testify to...

any conversations or any transactions that took place

»-” (R. 543).”

Phillip Randalls, a civilian employee at the State Police

detachment, testified that he received two telephone calls

from defendant requesting that an officer come to his

garage because some boys were there and “.. . that there

was going to be a fight... .”, (R. 548-549), and that there-

after another call was received that one of the boys had

been shot. He understood that another call had been

made, perhaps by defendant’s wife (R. 557).

This witness was called by the State to elaborate upon

his earlier testimony, (R. 561-570), and at the conclusion

thereof the following transpired:

“BENCH CONFERENCE: MR. FRAME: The de-

fendant moves for a mistrial on the grounds that

one James Moss, one of the jurors, is asleep and

has been asleep for the past ten minutes, and

we feel we are entitled to twelve jurors.

“THE COURT: Deny the motion for a mistrial. _

“MR. FRAME: We would like for permission at

some time in this trial to take evidence to prove

*The court overruled the objections of defendant, (R. 539-540), to

the extensive hearsay testimony of this witness.

5

that he has been asleep for ten minutes during

what we think is important testimony. .

“THE COURT: How can you have testimony that

someone is asleep?

“MR. FRAME: His eyes were closed.

“THE COURT: I don’t know whether or not I am

going to let you put on evidence.” (R. 571).

However, the court requested the bailiff to instruct the

juror that if he was asleep to “. . . make sure it doesn’t

happen again...” (R. 572).

Trooper Cueto took one of the calls from defendant and

was advised that three boys were at his garage in Laurel

Point and that he (defendant) was “... going to swear

out warrants for them and he needed a State Trooper

out here as soon as possible .. .” (R. 574). About five

minutes later Cueto received another call from an un-

identified male that “.. . there was a fight going on out

at Vic’s Garage and someone out there had a gun out.”

(R. 575-578) Troopers Clay and Morgan proceeded to

Laurel Point (R. 576-579). ;

Richard Squires lives about a hundred yards from de-

fendant and was sitting in his truck in his driveway and

heard loud voices at the garage. (R. 581-584). He heard

the defendant tell the three to get in the truck and leave

and also heard three shots prior thereto. (R. 584-587).

Upon arrival, Troopers Morgan and Clay went to de-

fendant’s garage, (R. 619), then to his home and were

met by the defendant. (R. 622). The defendant allegedly

. handed a gun to Trooper Clay, a .22 caliber pistol, (R.

(679), which was admitted into evidence over defen-

dant’s objection as to the chain of custody. (R. 662)."

“The “chain of custody” issue required the testimony of five wit-

nesses and the integrity was not fully established. (R. 621-663).

6

_ Trooper Clay then testified that he talked with defend-

ant in the home and took a lengthy staternent (R. 681),

which was read to the jury verbatim (R. 686-692).°

Curt Smallhoover and John Mould, the two who ac-

companied the deceased, Charles King, to defendant's

garage then testified for the State. Mould called King

to use his pickup truck to retrieve his motorcycle, (R.

811), and the three went to defendant’s garage (R. 817).

Mould became very upset when the ignition parts came

out w. 1 the key and began cursing at defendant. (R.

820). Defendant took the keys to the truck and started

across the rvad to his home and King and Mould ran

after him (R. 821, 822-846). A fight ensued and defend-

ant returned the keys (R. 823-824). The three got the

motorcycle out of the garage, loaded it onto the truck

and defendant returned with a gun telling the three that

he was calling the police. (R. 825). Defendant went

inside and called the police, (R. 827) and the three were

taunting and arguing with defendant (R. 823-834).° The

defendant’s hands were shaking and at one point the

deceased lunged at the gun, (R. 834-854), and the gun

fired (R. 836-855).

John Mould, the owner of the motorcycle, corroborated

Smallhoover’s testimony generally and admitted that he

gave the defendant “. . . a little static . . .” when the

ignition lock came out of its socket (R. 906). He con-

firmed that when the defendant removed the keys to

King’s truck and started toward his home with King’ in

5Although defense counsel did not object, no prior hearing was

conducted on the admissibility, (R. 686); the statement was not signed

BY the defendant, (R. 35), and had been written and paraphrased by

ay. (R. 685-696). ;

*Smallhoover stated that the then defendant went inside, fired a shot,

came out and got the license number, went back inside and fired

another shot and came outside. (R. 827).

7

pursuit, the defendant was “... backing away from him

...” (R. 911): that defendant just “smacked” King with

his hand, (R. 913), and then gave the keys to King. (R.

916). He stated that the defendant went into his home

and came running back with the gun stating:

“.. if it goes off it could hurt one of you guys

or kill one of us, and it would be a mistake” (R.

924).

Mould admitted that the defendant had advised them

that he had called the police, (R. 984), that there had

been a fight between defendant and King, and that every-

one, including defendant, was willing to wait until the

police arrived to settle the matter (R. 986-987). He did

not know exactly when the gun fired but only that it

was after King lunged for the gun knocking he and the

defendant to the ground (R. 994, 995-999).

At this point the State rested, (R. 1000), and the

defendant moved for a directed verdict on the charge of

murder in the first and second degree, (R. 1003), which

was overruled (R. 1008).

The following day, prior to resumption of trial, the

defendant moved for a mistrial on the following grounds:

(1) That one of the jurors who had been seated

for days was unable to attend due to weather

conditions and was replaced by the alternate juror

when a delay of one day would have permitted

her attendance; that the regular juror was not ill

or otherwise indisposed as contemplated by law,

and,

(2) That the prosecuting attorney had inadver-

tently taken a manilla envelope containing confi-

dential defense material and read it (R. 1011-

1013).

8

As to the first gound, the court denied the motion on

the basis, inter alia, that another juror had been told

previously that the trial would be completed by January

30 and would not interfere with a planned trip by the

juror on that date and any delay would frustrate the

completion by the 30th. (R. 1014). As to the second

ground the court acknowledged “some concern” but rath-

er than declare a mistrial requested counsel to furnish

depositions as to the circumstances involved. (R. 1015).

The defendant’s case commenced and Fred Ramsey

testified that he was at defendant’s service station on

University Avenue when John Mould came after the

motorcycle (R. 1033). Mould asked defendant’s son, Vic-

tor, Jr., why the motorcycle was not there and was ad-

vised that after a week or so it had been taken to the

other garage (R. 1034). Mould became incensed, used

vulgar language and screamed at everyone present, in-

cluding defendant’s wife (R. 1035). Shortly thereafter

Mould returned and began cursing again, paid the tow

fee and refused an offer by Ramsey to take him to the

garage to get his motorcycle. (R. 1037-1038).

Mrs. Solomon testified that the defendant was semi-

retired with a seventy-five percent disability, had very

little, if any, use of his left arm and extremely high

blood pressure and therefore spent most of his time at

the garage in Laurel Point. (R. 1049-1052). She stated

Mould had called several times about the motorcycle

but would not come to get it. (R. 1053). She confirmed

that they had offered to take Mould out to the garage to

get his motorcycle but that Mould replied that he “.. .

had his friends to get his bike.’ She then called the

”?This was obviously as a result of the ee the assistant prosecutor

had given him to take two “witnesses.” (R. 543).

9

defendant at the garage and the defendant said that he

“., would be glad to give him the bike.” (R_ 1056-1057).

The defendant had had nothing to do with the towing of

the motorcycle and it had been taken to the garage due to

lack of space at the downtown station (R. 1057). Later,

defendant called the station and talked with his daughter

Cindy who, in turn, informed Mrs. Solomon that her

daddy had been beaten up and wanted Mrs. Solomon to

call the State Police, which she did. (R. 1058).

Mrs. Solomon waited ten or fifteen minutes and not

having heard a call on the police monitor called the State

police again and was told that the defendant was also

calling on another line for help (R. 1059-1060). About

fifteen minutes later Mrs. Solomon heard on the police

monitor that the defendant had called for an ambulance.

(R. 1060). When Mrs. Solomon arrived at the scene the

defendant was “... all beat up .. .” and was in the

house with Trooper Clay. (R. 1062). The defendant had

already talked with Trooper Clay when she arrived but

the version of what defendant had told Clay was different

with what Clay wrote. (R. 1062). Cindy Solomon, the

defendant’s daughter, had gone by the station after work

and answered the telephone when defendant called re-

questing that the State Police be called. He stated that he

had tried to call but couldn’t get through and, during the

course of the conversation she heard shouting in the

”

background and the defendant telling the “. . . boys to

keep away...” and “... why don’t you guys just get out

of here .. .” (R. 1075-1076). The defendant sounded

breathless on the telephone, and when she saw him later

at the State Police barracks he had cuts and bruises, a

huge knot on his head and his clothes were badly torn

(R. 1076-1077).

10

The defendant, age fifty-five, had been in the ga-

rage business since graduation from high school and

spent his time at the garage and looking after some rental

units in Laurel Point. (R. 1090-1093). After his wife

called to inferm him that Mould was coming for the mo-

torcycle and the arrival of Mould, he went to the garage

and helped the three in getting the motorcycle (R.1096-

1097 ). Suddenly, Mould started cursing and defendant got

a little upset so he thought he had better leave. (R. 1097-

1098). It did not appear to the defendant that any effort

was being made to take the motorcycle but that the

three “. . . just acted like they wanted to cuss and start

trouble .. .” so he closed the garage doors and started

across the road to his home. As he passed the pickup

truck the door was open and he took the ignition keys so

he could telephone the police to handle it. (R. 1098-1099).

Before he reached the steps to his home King jumped

on his back and shoved him out into the road and started

fighting with him; he tried to get away but Mould and

King pulled him down the steps and began hitting him.

(R. 1100-1101). He told them that it was ‘not right for

someone to jump on people on their own property and

that all they had to do was ask for their keys. (R. 1101-

1101). The defendant’s cuts and bruises on the knees

and elbows occurred when he was dragged down the

stone steps. (R. 1102).

Defendant went into his home and tried to call the

Sheriff's office and State Police but was unsuccessful. (R.

1103). He went outside and heard a lot of noise down at

the garage and, apparently not knowing whether the three

were taking some of his property, got a pistol and re-

turned to the garage. (R. 1104). When the three saw him

they began yelling and defendant went inside the garage

11

and called the station and talked with Cindy. (R. 1105-

1106). Out of an abundance of caution the defendant him-

self called the State Police from the garage and after he

hung up the three were yelling and he was waiting

for them to “cool down” a little. (R. 1109). He told them

that the police were on the way and would settle it;

Mould inquired if defendant would shoot them if they

decided not to wait and defendant replied “‘no’”’. (R. 1109-

1110).

King began asking defendant to shoot something to

prove that the gun was not loaded with blanks and began

circling around to the rear of the defendant. Defendant

asked him to get back into the truck and King began

cursing him and stated that he (King) was going to“...

wrap that gun...” around defendant’s neck. (R. 1110).

Mould began yelling at defendant again and King re-

sumed trying to get behind the defendant; defendant

again asked King to get into the truck and leave. (R.

1111-1112). King began laughing at defendant because

the gun was shaking and defendant told him he was

going to leave at which time King lunged against defend-

ant. (R. 1112-1113). King grabbed the gun and propelled

he and defendant into a door and onto the floor of the

garage. (R. 1115).

Defendant did not know at what point after King

lunged at him and they fell into the garage that the gun

discharged but it was not intentional. (R. 1116). He did

not know how the gun was discharged or which one of

them struck the trigger or the hammer (R. 1117).

Defendant went straight to the phone and called the

police and asked for an ambulance. (R. 1120). He sug-

gested to Mould and Smallhoover that they take the

12

motorcycle out of the pickup and take King to the hos-

pital in it and Mould disagreed. (R. 1121).

The defense rested. (R. 1182), and the court charged

the jury, (R. 1188-1204), the State offering thirty six

instructions and the defendant seventeen.

During closing argument defense counsel objected to

the prosecutor expressing a personal opinion as to the

guilt of the defendant and the objection was overruled

(R. 1291).° After the jury retired to deliberate, it re-

quested to know the penalty for voluntary manslaughter

and after being informed by the court, (R. 1331), later

requested that the charge be re-read, which was done.

The jury then returned a verdict of guilty of voluntary

manslaughter. (R. 1332).

Thereafter defendant filed a motion to set aside the

verdict and grant a new trial which included an affidavit

of the defendant asserting that the six defense witnesses

who could not attend and testify because of the weather

were material witnesses, (R. 294-302), which motion was

denied by order entered on February 22, 1978. (R. 325).

A stay of execution was granted until June 25, 1978,

which was extended until July 24, 1978. (R. 395-396).

On July 24, 1978, a petition for writ of error and

supersedeas was presented to the West Virginia Supreme

Court and refused by Order entered on October 9, 1979.°

Thereafter, on January 9, 1979, another petition for writ

*The statement was that “. . . it is my firm belief that we have

proven to you beyond all reasonable doubt.” Defense counsel requested

a curative instruction to which the court. responded that he saw

“. .. nothing wrong with that argument under the circumstances.”

AP mesic, then “oe ee that a ye gn have proved that Victor

olomon committed murder in the first degree against Chuck Ki

that day.” (R. 1291). , ? cuetcees

°A copy of this Order is set out in the Appendix at Appendix A,

page A-1l.

13

of error and supersedeas was presented to that Court and

similarly refused by Order entered on February 1, 1979."

REASON FOR GRANTING THE WRIT

The numerous pre-trial and trial errors attending this

proceeding'' were presented to the West Virginia Court

on two occasions and summarily rejected without com-

ment. The basic unfairness of the Court’s action and

the appellate procedure in West Virginia is demonstrated

by the seemingly absurd conclusion which must be drawn

by such action.

In the petition and brief submitted to the West Vir-

ginia Court it was pointed out that the most “... patent

error in the instant case occurred in the admission of the

‘statement’ of the defendant into evidence without a

prior hearing out of the presence of the jury as to its

voluntariness.”"’

It was pointed out that at the trial Trooper Clay testi-

fied that after arriving at the home of defendant he ad-

vised defendant of his rights and took a “lengthy state-

ment” from him. (R. 681). He stated that defendant be-

came upset only when “. . . you started discussing this

incident .. .” and if he (Clay) would not have said any-

thing he didn’t believe the defendant “. . . would have

said anything.” (R. 682). The State then asked Trooper

Clay to read the statement to the jury and, without

objection, the statement was read to the jury in its en-

tirety. (R. 686-692).

'°A copy of this Order is set out in the Appendix at Appendix B,

page B-1.

"These commenced with a motion for a change of venue before

trial and continued throughout the trial with examples such as sleep-

ing jurors, (R. 751), prosecutorial misconduct (R. 1014), etc.

'2Note of Argument in Support of the Petition for Writ of Error and

Supersedeas, pages 19-21.

14

It was further pointed out to the Court that in State v.

Fortner, 150 W.Va. 571, 148 S.E. 2d 669 (1966), it had

laid down the unequivocal rule that:

“'.. it is the mandatory duty of the trial court

whether requested or not, to hear the evidence and

determine in the first instance, out of the presence

of the jury, the voluntariness of an oral or written

confession by an accused person prior to admitting

the same into evidence, and it is reversible error

to fail to follow this procedure...”

It was further pointed out that if any question existed

as to the application of this principle it was resolved in

Arthur v. McKenzie, 245 S.E. 2d 852, decided by the

West Virginia Court on July 11, 1978. There the peti-

tioner had been convicted of first degree murder and an

appeal had been denied. A habeas corpus proceeding was

instituted in the West Virginia Court and made return-

able in the circuit court. After a hearing the writ was

denied and an appeal was taken to the West Virginia

Supreme Court on the admission of two incriminating

statements, one signed and one unsigned, without an

in camera hearing to test whether they had been volun-

tarily given.

There, as here, the record did not show a request for a

hearing and, in fact, when one of the statements was pro-

posed to be read, petitioner’s attorney stated that they

had no objection and the defendant personally stated

“Put it in the record, Your Honor.”

The West Virginia Court, is granting the relief via an

extremely brief opinion, reiterated the rule set out in

Fortner, supra, and held that:

'°The question of “waiver” was not raised in the Arthur appeal but

it appears that Wainwright v. Sykes, 97 S.Ct. 2497 (1977), had no

bearing since there Florida law required a motion to suppress prior

to trial and the point was not raised on appeal.

15

“In camera hearing is constitutionally required

about the voluntariness of any statements made by

defendants, intended to be placed in evidence...”

(Court’s Emphasis).

The Court also cited State v. Smith, : 2 | ee

212 S.E. 2d 759 (1975), and Spaulding v. Warden,

W.Va. , 212 S.E. 2d 619 (1975), and in a footnote

pointed out that in Spaulding it was stated that “. . . This

rule of constitutional law is so well established that it

calls for little discussion.”

Here, the “statement” was used extensively by the

State both in its case in chief, in cross-examination of

the defendant and in closing argument.” In fact, the

“statement” was probably decisive of the issue of at least

a voluntary or involuntary manslaughter verdict not-

withstanding that there was an abundance of evidence on

the question of admissibility. For example, defendant

stated that Clay gave him his “rights” after the state-

ment was made, (R. 1136), the “paraphrased” statement

was not what defendant told Clay, (e.g., R. 1062, 1136),

the statement was not signed, (R. 43), and the “waiver

of rights” form Clay had defendant sign indicated that

defendant had counsel to represent him. (R. 5).

Accordingly, it is clear that the defendant was denied

rights afforded him under the State and Federal Con-

stitutions in the admission of the “statement” but by

virtue of the West Virginia appellate procedure defend-

ant will be remediless.'°

This is true because no appeal as a matter of right

‘4At one point the prosecutor told the jury that they heard the

defendant on the stand “. .. try to talk his way out of that statement

that he gave within minutes after the killing.” (R. 1274).

'SIt is interesting to note that on second application the author of

the Arthur case, Justice Harshbarger, voted to grant the petition.

(Appendix B, page B-1).

16

exists in the State of West Virginia. Every state with

the exception of West Virginia and Virginia provides for

an appeal to either an intermediate appellate court or

to the highest appellate court in the state as a right.

In West Virginia, statutory procedures require an

application for appeal by means of an ex parte petition

for a writ of error. The Supreme Court of Appeals, in

its discretion, then determines whether there should be

a full review of the case with presentation and arguments

by both parties in the event the appeal is granted. A

denial of the petition for writ of error is executed by

entry of a brief order reciting such denial. Thus, no

opinion, memorandum or other comment is available to

an unsuccessful appellant-petitioner for possible future

clarification in a petition for rehearing. A review of

appellate procedures in other states reveals that those

citizens, via state constitutions or statutory provisions,

are entitled to a full appellate review upon briefs and

argument of counsel for both parties as a matter of

fight.’

Chapter 58, Article 5, et seq., West Virginia Code, 1931,

as amended, are the applicable statutory sections dealing

with appellate relief in the Supreme Court of Appeals of

West Virginia. West Virginia Code 58-5-1, 1931, as

amended, in pertinent part, provides:

“A party to a controversy in any circuit court

may obtain from the supreme court of appeals,

‘¢6West Virginia and Virginia are the only two states which presently

require applications for appellate review as opposed to an appeal as

a matter of right. The State Codes and Constitutions of these two

states are very similar due to the fact that West Virginia, upon entry

to the Union in 1863, was formerly a part of the State of Virginia and

adopted various constitutional provisions, statutes and procedures

from the existing budy of Virginia law. See also, Judicature, “Is the

Right of Appeal Protected By the Fourteenth Amendment?,” Vol. 54,

No. 7, February, 1971.

17

or a judge thereof in vacation, an appeal from,

or a writ of error or supersedeas to, a judgment,

decree or order of such circuit court in the fol-

lowing cases: ... (j) In any criminal case where

there has been a conviction in a circuit court or

a conviction in an inferior court which has been

affirmed in a circuit court.

* * * *

There are no intermediate appellate courts in West

Virginia and an application for appeal from a circuit

court judgment must be taken according to the proce-

dures set forth in West Virginia Code, 58-5 et seq.”’

In addition, West Virginia Code, 58-5-3, provides:

“Any person who is a party to such controversy,

wishing to obtain a writ of error, appeal or super-

sedeas in the cases named in the first section

[§$58-5-1] of this article, may present a petition

therefor to the supreme court of appeals, or to a

judge thereof in vacation, which petition shall

assign errors.

West Virginia Code, 58-5-4, specifies that an applica-

tion for appeal must be filed within eight months after

the entry of the judgment order in the circuit court. This

time limit is mandatory and jurisdictional and a failure

to comply is fatal. State v. Legg, 151 W. Va. 401, 151

S. E. 2d 215 (1966)."°

To a degree, West Virginia appellate relief can be com-

pared with relief in this Court in that no appeal lies as

a right. A case presented in this Court, either on appeal

‘7Civil and Criminal appellate procedure is basically the same in

West Virginia. An appeal of a conviction must also begin with an

application for appeal by petition for a writ of error and supersedeas.

‘This has been the general rule in West Virginia since 1885 when

the West Virginia Supreme Court so held in the case of Lloyd v. Kyle,

26 W. Va. 534 (1885). See also, Sothen v. Continental Assurance Co.,

147 W. Va. 458, 128 S. E. 2d 458 (1962); State ex rel Davis v. Boles,

151 W. Va. 221, 151 S. E. 2d 110 (1966).

18

or certiorari, can be denied without opinion or further

argument.’ It is apparent that such a procedure at the

state level, where the first avenues of appellate relief

should be clear and unrestricted, is manifestly unjust.

The method presently in operation in West Virginia

denies an aggrieved appellant the proper review and

consideration contemplated by the dictates of funda-

mental fairness, due process and equal protection.

Although no statutory provision expressly states that

there is no right to an appeal in West Virginia, the West

Virginia Supreme Court of appeals has consistently

held that the provisions of Chapter 58, Article 5, et seq.,

do not provide an appeal as a matter of right even in

criminal cases.” In State v. Legg, 151 W. Va. 401, 151

S. E. 2d 215 (1966), a criminal appeal, the West Virginia

Supreme Court of appeals held:

“One convicted of.a criminal offense is not en-

titled to a writ of error as a matter of right. The

Constitution and statutes create an absolute right

merely to apply for a writ of error... There is

no absolute right in a suitor to have a decision

against him reviewed . . .”

It is apparent from the foregoing that an appellant

in West Virginia is not afforded the same rights and

privileges as appellants in other states. The petitioner

herein was effectively denied a full appellate review

without reason or explanation. There were valid asser-

_'°Unlike West Virginia, however, there is a review as a matter of

right to the Circuit Courts of Appeals in the federal system which

provides an effective review. With variations, this is the appellate

procedure adopted in all but two of the States.

2°West Virginia Code, 58-5-10, 1931, as amended, provides: “The

court or judge to whom a petition is duly presented, if of the opinion

that the decision complained of ought to be reviewed, may allow an

appeal .. .” Certainly implicit in this provision is the discretionary

nature of the granting of an appeal; however, no provision in the Code

expressly denies the right to appeal. The statutory procedure and

cases interpreting that procedure speak for themselves.

19

tions of constitutional as well as other errors at the trial

court level raised by petitioner in his application for

appeal below and such claims of error should not be

cast aside summarily without full review and hearing.”

Petitioner has been denied his constitutionally pro-

tected right to due process of the law and has been denied

equal protection of the laws. Petitioner is penalized for

residing in one of the only two jurisdictions in the country

which do not make the appellate review procedure avail-

able as a right. The Fourteenth Amendment to the

United States Constitution can clearly be viewed as pro-

tecting the right to appeal for all citizens of the United

States.

Appellate review and the right to be heard upon ap-

peal without unreasoned restrictions have been the sub-

ject of many cases in this Court. Rinaldi v. Yeager, 384

U. S. 305 (1966), was a criminal appeal involving a

prisoner’s right to a transcript upon appeal. Rinaldi was

proceeding in forma pauperis and could not afford the

transcript required by New Jersey statutes. In reversing,

this Court, per Justice Stewart, held:

“This Court has never held that the States are

required to establish avenues of appellate review,

but it is now fundamental that, once established

these avenues must be kept free of unreasoned

distinctions that can only impede open and equal

access to the Courts . . .” (Emphasis Supplied ).”

2'Although Rules of Fractice in the Supreme Court of Appeals of

West Virginia allow a maximum 10 minutes oral presentation of the

application for appeal, for all practical purposes there is not sufficient

time to argue the various legal issues raised upon the application

and the merits of the case are rarely gone into at depth. The only

meaningful treatment of legal questions is in appellant’s brief.

22?There have been many “right to transcript” cases ruled upon both

in this Court and in the various federal and state appellate courts.

These cases are cited primarily to amplify the logic which underlies

all decisions which afford appellate tools to indigents and others,

i.e., the sanctity of the appeal itself.

20

Another case dealing with the furnishing of a transcript

is Mayer v. City of Chicago, 404 U.S. 189 (1971), where-

in, at page 193 of the United States Report, this Court

readopted the rule in Rinaldi saying:

“ec

. . avenues of appellate review must be kept

free of unreasoned distinctions that can only im-

pede open and equal access to the courts...

Therefore, in all cases the duty of the State is to

provide the indigent as adequate and effective

with funds...”

In West Virginia not only indigents but every ag-

grieved party seeking an appeal are shackled by the

same unreasoned distinctions and restrictions.

The case of Williams v. Oklahoma City, 395 U. S.

458 (1969), similarly upheld the appellant’s right to a

transcript. The review as set forth in Rinaldi v. Yeager,

384 U. S. 305. supra, was followed and this Court also

noted:

“Although the Oklahoma statutes expressly

provide that ‘an appeal to the Court of Criminal

Appeals may be taken by the defendant as a

matter of right . . .’ the decision of the Court of

Criminal Appeals wholly denies any right of ap-

peal to this impoverished petitioner . . . This is

an ‘unreasoned distinction’ which the Four-

teenth Amendment forbids the State to make .. .”

The instant case would perhaps be different if West

Virginia was only one of many states which deny a

civil or criminal appeal as a matter of right. However,

the language used by this Court in the foregoing cases

indicates the gravity and importance of an unrestricted

appellate process. Indeed, the Constitution intended to

protect civil property rights as well as life and liberty.

21

As noted in the Judicature article above” the Model

Judicial Article proposed by the American Bar Associa-

tion recommends that a defendant shall have an abso-

lute right to one appeal in all criminal cases.

Petitioner is asserting a right afforded the vast major-

ity of citizens in this country. Whether a new and more

approachable appellate system in West Virginia should

result from this case is for this Court to decide upon the

basis of its determination of the federally protected con-

stitutional rights claimed herein. The system in West

Virginia as it now stands violates fundamental fairness

and equal protection in that the majority of appellants

in this state possess rights without remedies.” Petitioner

has no remedy at this time save the relief sought in this

Court; had petitioner resided in any other state his appeal

would have been properly heard long ago.

CONCLUSION

For the foregoing reasons it is resepctfully submitted

that a writ of certiorari should issue to review the order

of the Supreme Court of Appeals of West Virginia.

Respectfully submitted,

LEO CATSONIS

205 Security Building

Charleston, WV 25301

Counsel for Petitioner

23See foot note 15, ante.

24See 87 A.B.A. Rep. 391-399 (1962).

APPENDIX

A-1

APPENDIX A

STATE OF WEST VIRGINIA

At a Regular Term of the Supreme Court of Appeals

continued and held at Charleston, Kanawha County, on

the 9th day of October, 1978, the following order was

made and entered, to-wit:

State of West Virginia

Vs.

Victor Solomon, Sr.

On a former day, to-wit, July 24, 1978, came the peti-

tioner, Victor Solomon, Sr., by Catscnis and Linkous,

Leo Catsonis and Thomas L. Linkous, his attorneys, and

presented to the Court his petition praying for a writ of

error and supersedeas to a judgment of the Circuit Court

of Marion County rendered in this case on the 17th day of

July, 1978, with the record therein accompanying the

petition, and note of argument in support thereof, which

being seen and inspected by the Court the writ of error

and supersedeas prayed for is refused.

A True Copy

(1 RAMMINE g ES 0 SER Oo Oa CII PN TO

Clerk Supreme Court of Appeals

B-1

APPENDIX B

STATE OF WEST VIRGINIA

At a Regular Term of the Supreme Court of Appeals

continued and held at Charleston, Kanawha County, on

the Ist day of February, 1979, the following order was

made and entered, to-wit:

State of West Virginia

vs.

Victor Solomon, Sr.

On a former day, to-wit, January 9, 1979, came again

the petitioner, Victor Solomon, Sr., by Catsonis & Lin-

kous and Leo Catsonis and Thomas L. Linkous, his

attorneys, and presented to the Court his petition praying

for a writ of error and supersedeas to a judgment of the

Circuit Court of Marion County rendered in this case

on the 17th day of July, 1978, with the record therein

accompanying the petition, and note of argument in sup-

port thereof, which being seen and inspected the writ of

error and supersedeas prayed for is refused by a major-

ity of the Court on this second application. Justice Harsh-

barger would grant.

A True Copy

Attest: EPL a Sere ee

Clerk Supreme Court of Appeals

C-1

APPENDIX C

West Virginia Code, Ch. 58, Art. 5, sec. 1

§58-5-1. When appeal or writ or errors lies.

A party to a controversy in any circuit court may

obiain from the supreme court of appeals, cr a judge

thereof in vacation, an appeal from, or a writ of error or

supersedeas to, a judgment, decree or order of such cir-

cuit court in the following cases: (a) In civil cases where

the matter in controversy, exclusive of costs, is of greater

value or the amount in controversy, exclusive of costs,

exceeds one hundred dollars.

West Virginia Code, Ch. 58, Art. 5, sec. 3

§58-5-3. Presentation of petition assigning errors.

Any person who is a party to such controversy, wish-

ing to obtain a writ of error, appeal or supersedeas in the

cases named in the first section [§$58-5-1] of this article,

may present a petition therefor to the supreme court of

appeals, or to a judge thereof in vacation, which petition

shall assign errors.

West Virginia Code, Ch. 58, Art. 5, sec. 4

§58-5-4. Time for appeal or writ of error; notice of

intent to file petition in criminal cases to be

filed with clerk stating grounds.

No petitica shall be presented for an appeal from, or

writ of error or supersedeas to, any judgment, decree or

order, whether the State be a party thereto or not, which

shall have been rendered or made more than eight

months before such petition is presented: Provided, that

the judge of the circuit court may, prior to the expiration

of such period of eight months, by order entered of record

C-2

extend and reextend such period for such additional

period or periods, not to exceed a total extension of four

months, as in his opinion may be necessary for prepar-

ation of the transcript, if the request for such transcript

was made by the party seeking such judicial review

within sixty days of the entry of such judgment, decree

or order. Such judge may also extend and reextend such

period for such additional period or periods of time not

to exceed a total extension of four months, upon petition

made prior to the expiration of the initial eight month

period for good cause shown and if the request for such

transcript was made by the party seeking such judicial

review within sixty days of the entry of such judgment,

decree or order.

In criminal cases no petition for appeal or writ of error

shall be presented unless a notice of intent to file such

petition shall have been filed with the clerk of the court

in which the judgment or order was entered within sixty

days after such judgment or order was entered. The no-

tice shall fairly state the grounds for the petition without

restricting the right to assign additional grounds in the

petition.

West Virginia Code, Ch. 58, Art. 5, sec. 9

§58-5-9. Rejection of petition; presentation of petition

to court after rejection by judge in vacation.

In a case wherein the court shall deem the judgment,

decree or order complained of plainly right, and reject

it on that ground, no other petition therein shall after-

wards be entertained. But the rejection of such petition

by a judge in vacation shall not prevent the presentation

of such petition to the court when in session.

C-3

West Virginia Code, Ch. 58, Art. 5, sec. 10

§58-5-10. Allowance of appeal or writ of error or super-

sedeas; stay of proceedings.

The court or judge to whom a petition is duly pre-

sented, if of opinion that the decision complained of

ought to be reviewed, may allow an appeal, writ of error

or supersedeas, and may stay proceedings either in whole

or in part.

C-4

CERTIFICATE OF SERVICE

I, Leo Catsonis, one of counsel for the petitioner and a

member of the Bar of the Supreme Court of the United

States hereby certify that, on the 50 —— day of April,

1979, I served three (3) copies of the foregoing Petition

for Writ of Certiorari on the respondent by depositing

same in a United States mailbox, with postage prepaid,

addressed to counsel of record for the respondents, An-

drew G. Fusco, Prosecuting Attorney, Monongalia

County Courthouse, Morgantown, West Virginia 26505.

I further certify that all parties required to be served

have been served.