Anstey v. Ballard
Decision Date | 02 June 2016 |
Docket Number | No. 15–0067,15–0067 |
Citation | 787 S.E.2d 864,237 W.Va. 411 |
Parties | Samuel Anstey, Petitioner Below, Petitioner v. David Ballard, Warden, Mt. Olive Correctional Complex, Respondent Below, Respondent |
Court | West Virginia Supreme Court |
Valena E. Beety, Esq., Wiley W. Newbold, Esq., William L. Burner, Rule 10 Certified Law Student, Ashley M. Hawkins, Rule 10 Certified Law Student, Devon T. Unger, Rule 10 Certified Law Student, James Alexander Mead, Rule 10 Certified Law Student, West Virginia Innocence Project, West Virginia University College of Law, Clinical Law Program, Morgantown, West Virginia, Counsel for Petitioner.
Patrick Morrisey, Esq., Attorney General, Derek A. Knopp, Esq., Assistant Attorney General, Gilbert C. Dickey, Esq., Assistant Attorney General, Charleston, West Virginia, Counsel for Respondent.
LOUGHRY
, Justice:
This case is before us upon the appeal of Samuel Anstey (“petitioner”) from the December 24, 2014, order of the Circuit Court of Fayette County denying his petition for relief in habeas corpus. The petitioner challenged his 1995 first degree murder conviction, without a recommendation of mercy, in the death of Marie Donollo (“victim”). In his habeas petition, the petitioner asserted he was entitled to a new trial because the advancement in fire science and arson investigation during the last twenty years constituted newly-discovered evidence which demonstrated the fundamental and unconstitutional unfairness of his trial. Following its consideration of the parties'1 briefs, the affidavits of the petitioner's new fire experts, and the underlying trial record, the circuit court denied the habeas petition without holding an evidentiary hearing.2 Based on our thorough review of the appendix record, which includes the current habeas proceeding and a transcript of the petitioner's murder trial, as well as the parties' briefs and the applicable law, we find no basis to reverse the circuit court's decision. Accordingly, we affirm.
I. Facts
A. The Underlying Trial
On May 11, 1994, a Fayette County grand jury returned indictment No. 94–F–31 charging the petitioner with first degree murder in violation of West Virginia Code § 61–2–1
(1991) and first degree arson in violation of West Virginia Code § 61–3–1 (1991). The State proceeded to trial solely on the murder charge under a theory of felony-murder. During the eleven-day trial, which began on August 21, 1995, twenty-nine witnesses were called by the State, and eleven witnesses testified for the defense. The petitioner did not take the stand.
The evidence revealed that sometime in either 1991 or 1992, the petitioner, a thirty-six-year-old, out-of-work coal miner, moved into the house trailer occupied by the victim, his eighty-one-year-old grandmother and adoptive mother.3 The trailer was located in the Harvey Hill area of Fayette County. According to witnesses at trial, the relationship between the petitioner and the victim was problematic.
Witnesses for the State testified to hearing arguments between the petitioner and the victim, who was in declining health and who believed the petitioner was unwilling to help her. A neighbor, Charles Green, testified to hearing the petitioner and the victim argue. He also stated that the victim asked if she could live with him and his wife so that they could take care of her.4 On one occasion, Mr. Green observed that the victim had a black eye, which the victim attributed to the petitioner.5 At the victim's request, Mr. Green installed brackets on the victim's bedroom door, so that she could put a padlock on it.
He “reckon[ed]” the victim was afraid to stay in the trailer. Another neighbor, Pamela Smith, also testified to overhearing the victim and the petitioner doing “a lot of screaming, yelling, cussing.” The victim would occasionally visit Ms. Smith in her home and, during one such visit, the victim told Ms. Smith that the petitioner “used to hit her, and smack her around and choke her” and showed her the “bruises and stuff on her arms ... and said that [the petitioner] had done it.”
Nancy Kirby, who had known the victim for a number of years, testified that during the year prior to the victim's death, the victim was always upset and crying; that she complained of having no transportation and being unable to get to the store; and, that during several visits to the victim in her trailer, Ms. Kirby observed there was no food in the refrigerator. She further testified that approximately one year before the victim's death, the victim asked her to feel a knot on her head, stating the petitioner had struck her in the head with the telephone. This witness also testified that nearly every time she spoke with the victim over a four-year period, the victim told her that the petitioner treated her badly and was mean to her, and that she was taking him out of her Will.6
Anna Mae Sowder, a longtime friend of the victim, testified that she spoke with the victim by telephone six or seven times a week. During those conversations, the victim would talk about her “troubles,” including having no way to get to the store and being alone and afraid. The victim also stated that unless the petitioner began treating her better, she would rather throw her money into the Thurmond River than allow him to have it, complaining that the petitioner “aggravate[d] [her] to death, wanting [her] money.” By way of example, Ms. Sowder stated that the victim told her that after the petitioner purchased a trailer, he “aggravat[ed] her, wanting her to pay the trailer off [.]” After he purchased a truck, the victim told her that “he's expecting me to pay for the truck.”7
The State's witnesses also included various bank employees and officers who testified concerning the victim's financial activities shortly before her death. The evidence revealed that, prior to December 1993, the victim had exclusive control of her sizeable assets which largely consisted of certificates of deposit at two Oak Hill banks—Bank One and One Valley Bank.8
Other evidence at trial revealed that on December 9, 1993, the victim and the petitioner went to Bank One where they were assisted by longtime bank employee, Diana Janney. According to Ms. Janney, the petitioner told her that the bank needed to add him to the victim's certificate of deposit accounts. When Ms. Janney asked the victim if that was what she wanted to do, the victim “just kind of fell back in the chair a little bit and, you know, threw her hands up and said, ‘Well, he's going to get it, anyway, so we might as well add him on.’ ” Ms. Janney explained to the victim that if the petitioner's name were added to her certificates of deposit, he would have equal rights to those funds. Ms. Janney testified: “I was kind of reluctant, so when [the petitioner] saw my reluctance, he said, well, if I didn't add the name on there, he was going to use the power of attorney to add his name on them.”9 Being uncomfortable with the situation, Ms. Janney sought the assistance of her supervisor, Becky Booth.
Ms. Booth, another longtime bank employee, testified she was well acquainted with the victim who had been coming to the bank for twenty years. She assisted Ms. Janney in making certain the victim understood that anyone added to her accounts would have equal access to their funds. She also cautioned the victim that it would be far more difficult to remove someone from her accounts than it was to add them. Although Ms. Booth was also uncomfortable with the situation, being aware that the victim had never before wanted anyone else on her accounts, the bank employees proceeded to add the petitioner to the victim's certificate of deposit accounts totaling in excess of $400,000.10 At this same time, the petitioner was also added to the victim's Bank One safety deposit box in which she kept an unknown amount of cash and certificates of deposit.
According to Ms. Janney, approximately one week later, the victim returned to the bank, alone, seeking to remove the petitioner from her certificate of deposit accounts. The victim was advised that the only way to remove the petitioner from her accounts was to close them, which would result in a financial penalty. Because the victim did not want to incur a penalty, no further action was taken at that time.
On February 2, 1994, the victim again visited Bank One by herself. Upon examining her safety deposit box, she became very upset because she believed some money and/or certificates of deposit were missing. Ms. Janney explained that the certificates of deposit were used to fund a trust that was established in December,11 but the victim did not appear to understand. The victim immediately closed out her old safety deposit box, opened a new one for her exclusive use, and told Ms. Janney that she wanted to change her Will because she did not want the petitioner to have anything.
After leaving Bank One on February 2nd, the victim visited Mr. Tissue, who prepared a revocation of the POA as part of the victim's apparent effort to regain control of her assets.12 Describing the victim as distraught based on her belief that the petitioner had taken money from her safety deposit box, Mr. Tissue testified that the victim expressed a desire to change her Will. An appointment was made for her to return to his office the following day at which time she reiterated her desire to change her Will. Not knowing whom to designate as her beneficiary, they discussed the possibility of leaving her estate to charities.13
On February 7, 1994, the victim, this time accompanied by the petitioner, appeared at Mr. Tissue's office. Because he was unable to see them at that time, an appointment was made for them to return on February 10, 1994. This appointment was never kept because around 4:00 a.m. the next day, February 8, 1994, a fire occurred in the trailer shared by the petitioner and the victim.
During the ensuing investigation by law enforcement and the office of the State Fire Marshal, the petitioner...
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