dissenting:
On April 17, 1981, David Meadows was tried and found guilty by a West Virginia jury of first degree murder. The charge given to the jury was one which was admitted by the majority, as well as believed by me, to be constitutionally insufficient since it wrongly placed the burden on the defendant with respect to the defense of alibi.
However, Meadows did not raise the point in the trial court, and the majority has ruled that his failure to do so brought into play the doctrine of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), that, in the absence of a showing of cause and prejudice by the defendant, a failure to raise the point constituted a waiver thereof.
In the first place, an adequate showing of cause is made where, as here, the Wainwright v. Sykes rule is shown to be an unduly demanding requirement. Here at the time of the trial the instruction to the jury was consonant with customary practice in the trial courts of West Virginia. See State v. Alexander, 161 W.Va. 776, 245 S.E.2d 633 (1978). So counsel for the defendant could reasonably have concluded not to object for an objection would have been useless and would have possibly run the risk of irritating the trial judge. Such a futile exercise is not required. Perry v. Blackledge, 453 F.2d 856 (4th Cir.1971).
Cessante ratione cessat ipsa lex. When the case reached the West Virginia Supreme Court, the question of the constitutional infirmity of placing the burden of proving the alibi defense on the defendant must, despite the failure of defendant to raise it, nevertheless, have been considered by the court, for a dissent specifically cited and relied particularly on the point that burden of proof had been improperly allocated to the defendant instead of the prosecution.
[T]he instructions were infirm because the particular alibi instruction offered by Meadows has been found to impermissibly shift the burden of proof to a defendant.
State v. Meadows, 304 S.E.2d 831, 842 (W.Va.1983) (Harshbarger, J., dissenting). The rationale explaining Wainwright v. Sykes is that a question should be preserved so that it will receive the benefit of full consideration. It seems extremely unlikely to me that Judge Harshbarger, the dissenter, would have expressed himself so *500cogently on the subject without having fully apprised himself of its implications.10
Indeed, it may well be that this entire case has proceeded on a misunderstanding of what took place at the time of the appeal reported in 304 S.E.2d 831 (W.Va.1983). On appeal, Meadows, not having done so in the trial court, specifically raised the point that “the trial court erred in refusing to give appellant’s Instruction No. 21 to the jury, regarding the necessity of the state to prove the appellant’s presence at the scene of the crime beyond a reasonable doubt.” If, indeed, the West Virginia court then considered Wainwright v. Sykes to be applicable, it is surprising that it did not say so, but instead proceeded to consider on the merits the correctness or fallaciousness of the alibi instruction. At pages 839 and 840, the court considered the matter on its merits:
Because we find appellant's Instruction No. 21 to be repetitious of his Instruction No. 16, we hold that the trial court properly refused to give the instruction.
Erroneously holding that instruction to be satisfactory because it was repetitious of another erroneous instruction is very different from refusing to consider the correctness of the instruction at all on grounds that the point has been waived. The point of the incorrectness of the burden of proof on alibi allocation was raised and considered in the West Virginia appellate court. Hence, to proceed on the grounds that the point was not raised and, therefore, was waived, seems to me a most egregious error by the majority.
Elsewhere in the opinion, the West Virginia Supreme Court of Appeals indicated it was relying on the rule that, on appeal, a jury finding of guilt will be upheld if any reasonable set of facts appears to have been before the jury. Here, however, the question is not what correct instructions will be affirmed by the appellate court, but rather would an incorrect instruction to the trial jury nevertheless be affirmed.
In the second place, regardless of whether Meadows can show cause and prejudice for his failure to object to the alibi instruction, Wainwright v. Sykes should not apply because West Virginia did not require contemporaneous objections to constitutional errors at the time of his trial.11
The case of Adkins v. Bordenkircher, 674 F.2d 279 (4th Cir.1982), cert. denied, 459 U.S. 853, 103 S.Ct. 119, 74 L.Ed.2d 104 (1982), followed hard on the heels of the trial court’s decision in the instant case and saw light of day before the appeal decision in the instant case was handed down. Trial actually took place in the instant case in April of 1981, less than one year before Adkins was decided, making the Adkins case even more pertinent. In Adkins v. Bordenkircher, although there had been no challenge below, the court affirmed a grant of habeas corpus to a West Virginia petitioner on the ground that an alibi instruction unconstitutionally shifted the burden of proof on alibi, the absence of which was an essential element of the crime," from the state to the defendant. See Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). The rationale of the Fourth Circuit decision was that, in West Virginia, according to then extant authority, a failure to raise at trial a point of constitutional significance would not be deemed a waiver of the right to raise the *501point subsequently. Adkins v. Bordenkircher, 674 F.2d at 232; see Spaulding v. Warden, 212 S.E.2d at 621.
Later, as the majority attempts to show, the West Virginia Supreme Court itself expressed disenchantment with the rule in Adkins v. Bordenkircher, though it had not sought to do so in the Meadows appeal. Subsequent opinions indicate that, in a case now arising at the trial level, the doctrine of Wainwright v. Sykes would apply to constitute a waiver if the point were not raised. See State v. Hutchinson, 342 S.E.2d 138, 142-43 (W.Va.1986); State v. Kopa, 311 S.E.2d 412, 422 (W.Va.1983). However, there still remains the question, vital in the present case, of whether West Virginia was indicating that there was merely a change in the law or that the law of West Virginia had always been that a waiver would be found to have taken place upon the failure to object in the trial court. If there was a change in the law, the change occurred only after State v. Kopa was decided on December 15, 1983, and Meadows’ lawyer would not have had to raise his objection in the trial court in 1981. On the other hand, if West Virginia was stating that the West Virginia law had always been that a waiver would be found to have taken place upon failure to raise the point in the trial court, then Adkins v. Bordenkircher was wrongly decided from the very instant that the opinion first saw the light of day. The court had conspicuously not taken the opportunity to say so when State v. Meadows was decided on June 22, 1983.
With all due respect, I find it incorrect to state that Adkins v. Bordenkircher was always wrong and should be overruled retrospectively as well as prospectively. Lawyers, including judges, are always taught to look at and respect opinions rendered, especially if recently rendered, by a court having jurisdiction. The lawyer representing Meadows can hardly be faulted for not raising the point and should not be held to have committed waiver when the Fourth Circuit Court of Appeals, in an admirably and convincingly argued opinion only a year later, ruled that a failure to raise the point at trial would not have such disastrous consequences. Such authority as was then in existence in West Virginia was convincingly relied on by Judge Albert Bryan in his opinion in Adkins v. Bordenkircher, and I, for one, find I am unable to conclude that he erred.12 State v. Meadows itself so indicates.
For the period of time after the decision in Adkins v. Bordenkircher and before the West Virginia court undertook the task of changing the law, defendants certainly had the reasonable expectation that Adkins v. Bordenkircher would apply. How is it possible to fault a lawyer representing a defendant for not raising the Mullaney v. Wilbur point at trial when respected authority, namely, the United States Fourth Circuit Court of Appeals, had ruled that it was not necessary that he do so? While lawyers are expected to devote full intelligence and exhaustive effort to their conduct of a defense, they are not expected to achieve miracles. Any lawyer in the place of Meadows’ counsel, certainly after Adkins v. Bordenkircher was decided, until the West Virginia court changed its law, would have to be excused for not raising the Mullaney v. Wilbur point at the trial. To rule otherwise would make the practice of law abound, as the only method of self-protection, in recital of frivolous non-valid matters, for how could counsel say what was clearly not the law today would not become the law tomorrow? See Ross v. Reed, 704 F.2d 705, 708-09 (4th Cir.1983),
*502aff'd, 468 U.S. 1, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984):
If novelty were never cause, counsel on appeal would be obliged to raise and argue every conceivable constitutional claim, no matter how far fetched, in order to preserve a right for post-conviction relief upon some future, unforeseen development in the law. Appellate courts are already overburdened with meritless and frivolous cases and contentions, and an effective appellate lawyer does not dilute meritorious claims with frivolous ones. Lawyers representing appellants should be encouraged to limit their contentions on appeal at least to those which may be legitimately regarded as debatable____
Since the question was novel and since counsel had no reasonable basis for asserting the constitutional claim on appeal, we conclude that there was cause for the failure to present it on appeal as well as prejudice from the instruction itself.
After the West Virginia court had announced the change in the law making it necessary that counsel raise the point at trial, it is obvious that a lawyer could be faulted for not raising the point. However, there is a narrow time period involved here. In the first category are cases following Adkins v. Bordenkircher before the rule in Adkins v. Bordenkircher was changed. I do not really understand the majority to mean to say that those lawyers would be held to have failed to perform their duties adequately. In the second category are cases decided even before Adkins v. Bordenkircher. When a lawyer is astute enough to foresee what a court of final authority is going to hold, he should not be faulted, I submit, when he does so successfully. That is what Meadows’ counsel achieved here.
In the third category are cases decided after West Virginia’s highest court has changed the law making Wainwright v. Sykes applicable unless the point was adequately preserved in the trial court. As to such a case in the third category, the result reached by the majority here would seem altogether correct, and I should not be moved to dissent. Time, however, is a fourth dimension and where in time’s spectrum a case appears may make a difference. There is the very narrow first and second categories of cases in the transition period where the West Virginia Supreme Court change in the law had not yet been announced. The cases are few in number, but the paucity of such defendants does not excuse the denial to them of just treatment. Especially is that true in such a case as the present one where the defendant was on trial for first degree murder.
To address the issues presented.in even a narrower way, consider that the majority has ruled that there should be no remand to consider issues of cause and prejudice. The majority reasons that in 1981, under West Virginia criminal practice, a constitutional challenge at the trial court level on the grounds here implicated would clearly have had a reasonable basis.13 The lawyer representing Meadows was held to have bound Meadows by his failure to challenge the constitutionality of the alibi instruction placing the burden on Meadows. The hamstringing of Meadows’ lawyer, and, through him, Meadows himself, hardly squares with the opinion in Honeycutt v. Mahoney, 698 F.2d 213 (4th Cir.1983).
There Mullaney v. Wilbur was following its course through the courts. The district court, in a landmark decision by Judge Gignoux, had held that an analogous self-defense instruction should have placed the burden of proof on the prosecution. In all likelihood, a lawyer in one of the states for the Fourth Circuit should not have to keep abreast of every district court decision in the United States. However, the First Circuit Court of Appeals also had affirmed Judge Gignoux. Wilbur v. Mullaney, 473 F.2d 943 (1st Cir.1973). Then the trial in Honeycutt took place, and a year later the *503Supreme Court ruled that Judge Gignoux and the First Circuit had both been correct. The majority of the Fourth Circuit in Honeycutt v. Mahoney, 698 F.2d at 217, held that there was no obligation on the part of counsel to anticipate and to raise, under risk of a waiver determination should he fail to do so, a point which had not been finally decided by the United States Supreme Court.14 Here we have a point certainly not finally raised and decided in the West Virginia Supreme Court, with the indications that did exist all strongly pointing against the determination made in Adkins v. Bordenkircher. Consequently, I find it most perplexing to hold the lawyer who represented Meadows to have decided, or to be held that he should have decided, that by not objecting he was waiving the point.
The point on the merits was so compelling and straightforward application of it would have clearly demonstrated the fault of the instruction. It is hard to imagine Meadows’ lawyer making a “tactical decision” which would have justified his failure to raise the point if he had any — indeed every — reasonable expectation that it would be held valid. He only failed to raise the point because of its then justifiably perceived hopelessness. Therefore, at the very least, a remand for consideration of the issues of “cause and prejudice” under Wainwright v. Sykes is called for.
In summary, due to the time at which Meadows was tried, he should be allowed the benefit of the decision in Adkins v. Bordenkircher. Consequently, the grant of habeas corpus by the district court should be affirmed. Alternatively, the case should be remanded to permit investigation of whether there existed cause and prejudice.
Judge PHILLIPS and Judge SPROUSE join in this dissent.. Cf. Spaulding v. Warden, 158 W.Va. 557, 212 S.E.2d 619, 624:
The State properly recognized this on appeal, and the case must be reversed for this obvious reason.
. See Spaulding v. Warden, supra, 212 S.E.2d at 621, 624:
While there may be merit to some of these alleged errors, most of them have no constitutional or jurisdictional basis which would render the conviction void or subject to collateral attack; they were, therefore, lost to the defendant by his failure to file notice of intent to appeal as required by Code, 1931, 58-5-4, as amended. Code, 1931, 53-4A-1, as amended.
Despite the fact that counsel made no specific request, both State v. Fortner, 150 W.Va. 571, 148 S.E.2d 669, and Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, impose a mandatory duty upon the trial court to hear the evidence and determine the voluntariness of a confession out of the presence of the jury prior to its introduction into evidence. This rule of constitutional law is so well established that it calls for little discussion.
. The majority does not undertake completely to eradicate the rationale of Adkins v. Bordenkircher. It states that “West Virginia will not consider on direct appeal any but the most egregious constitutional error unless there has been a timely objection made at trial.” Is the error here "merely" egregious constitutional error, “more” egregious constitutional error, or “most” egregious constitutional error? To a man on trial for first degree murder, any viable defense must be “most” important. Therefore, the giving of the clearly erroneous instruction would seem to me to be “most” egregious. Obviously it was constitutional error dealing with the well-established rule that constitutionally the prosecution must assume the burden of proof of every essential element of the crime.
. The majority is apparently overlooking the fact that State v. Alexander, 161 W.Va. 776, 245 S.E.2d 633 (1978) was controlling and that alibi instructions similar to the one given in the instant case had consistently been upheld by the Supreme Court of Appeals of West Virginia. Therefore, it is clear that any objection would have been futile.
. In State v. Hutchinson, 342 S.E.2d 138, 142 (W.Va.1986), a lawyer neglected to find a controlling authority, the opinion in Adkins v. Bordenkircher. That was held not to constitute ineffective assistance of counsel.