Ballard v. Hurt, 11–0816.

• Decision Date: 09 November 2012
• Docket Number: No. 11–0816.,11–0816.
• Parties: David BALLARD, Warden, Respondent Below, Petitioner v. David Lee HURT, Petitioner Below, Respondent.
• Court: West Virginia Supreme Court

230 W.Va. 374

738 S.E.2d 538

David BALLARD, Warden, Respondent Below, Petitioner

v.David Lee HURT, Petitioner Below, Respondent.

No. 11–0816.

Supreme Court of Appeals of

West Virginia.

Submitted Oct. 16, 2012.

Decided Nov. 9, 2012.

Syllabus by the Court

1. “A trial court exercising appropriate judicial concern for the constitutional right to testify should seek to assure that a defendant's waiver is voluntary, knowing, and intelligent by advising the defendant outside the presence of the jury that he has a right to testify, that if he wants to testify then no one can prevent him from doing so, that if he testifies the prosecution will be allowed to cross-examine him. In connection with the privilege against self-incrimination, the defendant should also be advised that he has a right not to testify and that if he does not testify then the jury can be instructed about that right.” Syl. pt. 7, State v. Neuman, 179 W.Va. 580, 371 S.E.2d 77 (1988).

2. “A habeas corpus proceeding is not a substitute for a writ of error in that ordinary trial error not involving constitutional violations will not be reviewed.” Syl. pt. 4, State ex rel. McMannis v. Mohn, 163 W.Va. 129, 254 S.E.2d 805 (1979).

3. “A rebuttable presumption exists that a defendant represented by legal counsel has been informed of the constitutional right to testify.” Syl. pt. 15, in part, State v. Salmons, 203 W.Va. 561, 509 S.E.2d 842 (1998).

4. “In the West Virginia courts, claims of ineffective assistance of counsel are to be governed by the two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):(1) Counsel's performance was deficient under an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different.” Syl. pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

5. “Only when testimony is so unbelievable on its face that it defies physical laws should the court intervene and declare it incredible as a matter of law.” Syl. pt. 8, State v. Smith, 178 W.Va. 104, 358 S.E.2d 188 (1987).

6. “West Virginia Code section 53–4A–7(c) (1994) requires a circuit court denying or granting relief in a habeas corpus proceeding to make specific findings of fact and conclusions of law relating to each contention advanced by the petitioner, and to state the grounds upon which the matter was determined.” Syl. pt. 1, State ex rel. Watson v. Hill, 200 W.Va. 201, 488 S.E.2d 476 (1997).

Darrell V. McGraw, Jr., Esq., Attorney General, Laura Young, Esq., Marland L. Turner, Esq., Assistant Attorney General, Charleston, WV, Attorneys for Petitioner.

Robert C. Catlett, Esq., Deputy Public Defender, Office of the Public Defender, Charleston, WV, Attorney for Respondent.

PER CURIAM:

Petitioner State of West Virginia appeals the April 18, 2011, order of the Circuit Court of Pocahontas County that granted the petition for a writ of habeas corpus of Respondent David Lee Hurt, vacated the respondent's first degree murder conviction, and voided his sentence of life with mercy.

After reading the parties' briefs, listening to oral argument, reviewing the record below, and applying the relevant law, this Court reverses the circuit court's April 18, 2011, order and remands for additional proceedings consistent with this opinion.

I. FACTS AND PROCEEDINGS BELOW

We begin with a brief overview of the facts. We will then supplement this overview as necessary in our discussion of the issues.

Respondent David Lee Hurt was initially tried for murder in the Circuit Court of Mercer County in September 1997, in the killing of Freddie Lester, a convenience store clerk. At the trial, Michael Hopkins, the respondent's co-defendant, testified on behalf of the State that he entered the convenience store at the direction of the respondent, shot Mr. Lester in the back of the head, and stole cash in the amount of $157.00, which he split with the respondent. The respondent testified and denied involvement in Mr. Lester's murder. This trial ended in a hung jury and a mistrial.

After the respondent's first trial, his trial counsel moved for a change of venue which was granted by the circuit court. As a result, the respondent's second trial for the murder of Freddie Lester occurred in the Circuit Court of Pocahontas County. Again, Mr. Hopkins and the respondent, among others, testified. At the end of this trial, the respondent was found guilty of the first-degree murder of Freddie Lester and sentenced to life in prison with mercy.

Shortly thereafter, the respondent filed a pro se habeas corpus petition in the Circuit Court of Pocahontas County. The circuit court subsequently appointed counsel for the respondent and directed counsel to file an amended habeas corpus petition based on the ground of newly discovered evidence.

After several delays and the appointment of new counsel on behalf of the respondent, the respondent filed an amended habeas corpus petition which was denied by the Circuit Court of Pocahontas County by order dated April 9, 2002.

The respondent then retained private counsel and filed another petition for a writ of habeas corpus in the Circuit Court of Mercer County. The petition was transferred to the Circuit Court of Pocahontas County because of that court's greater familiaritywith the case. In that petition, the respondent set forth two primary grounds for habeas corpus relief: newly discovered evidence that supported his claim of innocence and ineffective assistance of counsel in his previous habeas corpus proceedings.

By order dated March 30, 2009, the Circuit Court of Pocahontas County granted the respondent an evidentiary hearing on the single issue of whether the respondent's previous habeas corpus counsel committed reversible error by failing to obtain affidavits to corroborate the alleged recantation of the respondent's co-defendant, Michael Hopkins. After holding an evidentiary hearing on this matter, the circuit court found that the respondent's previous habeas corpus counsel committed reversible error.

As a result, the circuit court vacated the prior order that denied habeas corpus relief to the respondent and directed the respondent to file another petition for a writ of habeas corpus addressing any and all issues arising from the respondent's second trial. After the respondent filed his petition for habeas corpus relief as directed by the circuit court, the circuit court held an evidentiary hearing on the issues raised in the petition.

Thereafter, the circuit court entered its April 18, 2011, order granting the respondent habeas corpus relief which is the subject of this appeal. The granting of habeas corpus relief is based on the circuit court's determination that the respondent's counsel in his second trial was ineffective. Using the test for ineffectiveness of counsel set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the circuit court found that “for all of the individual and cumulative reasons set forth in the [the respondent's habeas petition], and incorporated herein by reference, the [respondent's] Trial Counsel was deficient under an objective standard of reasonableness.” With regard to the second prong of Strickland, the circuit court found that “[f]or all of the individual and cumulative reasons set forth in the [respondent's habeas petition], and incorporated herein by reference, this Court believes that the [respondent] meets this criterion as well.”

The circuit court made specific findings with regard to one of the grounds of ineffective assistance of counsel. Specifically, the circuit court found that trial counsel was ineffective in failing to ensure that the trial court advised the respondent of his right to testify and not to testify. The circuit court found that the trial court failed to advise the respondent of these rights, and that the record does not reflect that the respondent's trial counsel advised him of these rights. The circuit court further found that the respondent was prejudiced by this failing because he testified and was subjected to cross-examination regarding allegations of his involvement in stealing a van and a jeep; his appearance at Freddie Lester's home the morning following Mr. Lester's murder where he conveyed specific information to Mr. Lester's widow concerning the murder; and his flight out of State after the murder.

Finally, the circuit court specifically found that “Michael Hopkins, based on the entire record, is not a credible witness.”

II. STANDARD OF REVIEW

Pursuant to deciding the issues before us, this Court is guided by the following standard of review:

In reviewing challenges to the findings and conclusions of the circuit court in a habeas corpus action, we apply a three-prong standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard; the underlying factual findings under a clearly erroneous standard; and questions of law are subject to a de novo review.

Syl. pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

III. DISCUSSION

The State first assigns as error the circuit court's ruling that it was constitutional error for the trial court to fail to advise the respondent of his right to testify and not to testify, and that trial counsel's failure to enforce this right rose to the level of ineffectiveness.

In Syllabus Point 7 of State v. Neuman, 179 W.Va. 580, 371 S.E.2d 77 (1988), this Court held:

A trial court exercising appropriate judicial concern for the constitutional right to testify should seek to assure that a defendant's waiver is voluntary, knowing, and intelligent by advising the defendant outside the presence of the jury that he has a right to testify, that if he wants to testify then no one can prevent him from doing so, that if he testifies the prosecution will be allowed to...