Bouie v. Ames

• Decision Date: 27 August 2021
• Docket Number: 20-0660
• Court: Virginia Supreme Court
• Parties: Darnell Carlton Bouie, Petitioner Below, Petitioner v. Donnie Ames, Superintendent, Mt. Olive Correctional Complex, Respondent Below, Respondent

Darnell Carlton Bouie, Petitioner Below, Petitioner v. Donnie Ames, Superintendent, Mt. Olive Correctional Complex, Respondent Below, Respondent

No. 20-0660

Supreme Court of Appeals of West Virginia

August 27, 2021

Harrison County 15-C-433-3

MEMORANDUM DECISION

Petitioner Darnell Carlton Bouie, by counsel Jeremy B. Cooper, appeals the July 31, 2020, order of the Circuit Court of Harrison County denying his petition for a writ of habeas corpus. Respondent Donnie Ames, Superintendent, Mt. Olive Correctional Complex, by counsel Lara K. Bissett, filed a response in support of the circuit court's order.

The 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.

Petitioner and Ennis Charles Payne were indicted in the Circuit Court of Harrison County for the murder of Jayar Poindexter ("the victim") and conspiracy to commit burglary of the victim's residence. According to the State's evidence at trial, at about 3:15 a.m. on January 13, 2010, petitioner joined with Mr. Payne to steal money and drugs from the victim's apartment in Clarksburg. The pair arrived at the apartment complex with three other men, who waited with the group's two vehicles parked some distance away. As petitioner and Mr. Payne prepared to enter a rear bedroom window, they unexpectedly encountered the victim who left his bed to investigate upon hearing the duo approach. During the confrontation that followed, Mr. Payne fired his .25 caliber pistol through the window into the victim's chest killing him.

Petitioner was tried separately from Mr. Payne after the circuit court granted petitioner's motion to sever the trials. Petitioner did not testify at trial. A prior statement petitioner gave to law enforcement was admitted, in which petitioner asked why he was charged with murder when "he was not the shooter." When petitioner was told that he was facing the murder charge "because you guys went up there to break into [the victim's apartment]," he admitted that he was at the victim's apartment complex, stating that "he just walked around the residence."

The State further introduced evidence of petitioner's phone calls from the Central Regional Jail, during which he refers to Mr. Payne as "E." and "E.C.":

October 31, 2012-"I know the only thing they got is that print man, that's the [expletive] it. And that ain't enough to convict nobody of no murder or nothing."

November 2, 2012-"I already know what they got-they got that one [expletive] print and that's the [expletive] it. E needs to get that discovery."

December 4, 2012-"If I would have [expletive] listened I wouldn't even be in none of this shit, I should have then changed my [expletive] life around. I don't think that [expletive] E.C. is saying nothing man."

No fingerprint evidence was discovered at the crime scene. However, investigators found two sets of footprints in the snow beneath the victim's bedroom window, one made by boots and the other by sneakers. At petitioner's trial, the State introduced, as demonstrative evidence, a pair of Nike Air Force One sneakers in order to show the similarities between the exemplar sneakers and the sneaker footprints and sneakers seen on video surveillance footage. The circuit court gave the jury a cautionary instruction stating that the exemplar sneakers were not actual evidence recovered from the crime scene, nor obtained from either petitioner or Mr. Payne, and that the exemplar sneakers did not belong to petitioner.

Following instructions and closing arguments, the jury convicted petitioner on both counts alleged in the indictment. In accordance with the jury's recommendation, the circuit court sentenced petitioner to a life term of incarceration, with the possibility of parole, for his conviction of felony murder and one to five years of incarceration for the conviction of conspiracy to commit burglary. Petitioner appealed his convictions in State v. Bouie, 235 W.Va. 709, 776 S.E.2d 606 (2015), where this Court affirmed the circuit court's decisions to admit petitioner's statement to law enforcement, his phone calls from the regional jail, and the exemplar sneakers as demonstrative evidence. Id. at 716-21, 776 S.E.2d at 613-18.^[1] This Court in Bouie further found that there was sufficient evidence to support petitioner's convictions and affirmed the circuit court's judgment. Id. at 721-23, 776 S.E.2d at 618-20.

On October 27, 2015, petitioner filed a petition for a writ of habeas corpus in the circuit court. Habeas counsel was appointed, who filed an amended habeas petition on August 9, 2018. At a March 15, 2019, omnibus hearing, petitioner raised the following grounds for relief: (1) prejudicial pretrial publicity and improper venue; (2) constitutional error in evidentiary rulings; (3) actual guilt or innocence; (4) insufficient evidence; (5) ineffective assistance of trial counsel; and (6) improper jury instructions. Petitioner testified himself and presented the testimony of his trial counsel.^[2] By order entered on July 31, 2020, the circuit court denied the habeas petition.

Petitioner now appeals the circuit court's July 31, 2020, order denying his habeas petition. This Court reviews a circuit court order denying a habeas petition under the following standard:

"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).

Syl. Pt. 1, Anstey v. Ballard, 237 W.Va. 411, 787 S.E.2d 864 (2016).

On appeal, petitioner argues that the circuit court erred in denying his habeas petition, raising ineffective assistance of trial counsel and improper jury instructions. Respondent counters that the circuit court properly denied the habeas petition and that petitioner's assignments of error lack merit. We agree with respondent.

We review ineffective assistance of counsel claims as follows:

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.

In reviewing counsel's performance, courts must apply an objective standard and determine whether, in light of all the circumstances, the identified acts or omissions were outside the broad range of professionally competent assistance while at the same time refraining from engaging in hindsight or second- guessing of trial counsel's strategic decisions. Thus, a reviewing court asks whether a reasonable lawyer would have acted, under the circumstances, as defense counsel acted in the case at issue.

Syl. Pts. 5 and 6, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). In deciding ineffective assistance claims, a court does not need to address both prongs of the Strickland/Miller test, but "may dispose of such a claim based solely on a petitioner's failure to meet either prong of the test." Syl. Pt. 5, State ex rel. Daniel v. Legursky, 195 W.Va. 314, 465 S.E.2d 416 (1995). As stated in State ex rel. Vernatter v. Warden, West Virginia Penitentiary, 207 W.Va. 11, 528 S.E.2d 207 (1999), the "[f]ailure to meet the burden of proof imposed by either part of the Strickland/Miller test is fatal to a habeas petitioner's claim." Id. at 17, 528 S.E.2d at 213.

Petitioner first argues that there was no motion for a change of venue based upon prejudicial pretrial publicity due to the lack of an adequate investigation of the issue by trial counsel. Respondent counters that trial counsel testified at the omnibus hearing that there was an investigation in the form of the collection of media items from a newspaper and local television stations, and counsel held a mock trial with a jury of approximately fifteen people. Based on discussions with people involved in the mock trial, trial counsel concluded that no information existed that "there was either hostile community sentiment, or that there was such an overwhelming coverage of the case that they had formed an opinion about the facts of the case."

Prejudicial pretrial publicity creating a hostile community sentiment constitutes good cause for moving a case to another county; however, the focus "should not be whether the community remembered or heard the facts of the case, but whether the jurors had such fixed opinions that they could not judge impartially the guilt or innocence of the defendant." Syl. Pts. 2 and 3, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994). Based on our review of the omnibus hearing transcript, we conclude that the circuit court did not err in finding that this ineffective assistance claim was unsubstantiated.

Petitioner further argues that trial counsel failed to investigate whether petitioner could raise an alibi defense to "contradict the State's circumstantial evidence placing . . . [p]etitioner at the scene of the shooting[.]" We find that this claim is contrary to our...