Daniel v. State of W. Va., Civ. A. No. 5:96-0033.
| Decision Date | 05 May 1997 |
| Docket Number | Civ. A. No. 5:96-0033. |
| Citation | 964 F.Supp. 1050 |
| Parties | Ronald Gene DANIEL, Petitioner, v. STATE OF WEST VIRGINIA [George Trent, Warden, Mount Olive Correctional Complex], Respondent. |
| Court | U.S. District Court — Southern District of West Virginia |
Edward H. Weis, Asst. Fed. Public Defender, Charleston, WV, for petitioner.
Dawn E. Warfield, Deputy Attorney General, Charleston, WV, for respondent.
This Opinion replaces the court's original Opinion filed in this case on March 31, 1997. By Judgment Order entered on that date, this court denied the application of petitioner Ronald Gene Daniel ("Daniel") for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On April 10, 1997, Daniel filed a "Motion for Reconsideration of Denial of Habeas Corpus Petition" under Rules 59 and 60 of the Federal Rules of Civil Procedure.1 The issues raised by the motion for reconsideration overlap, and are intertwined with, issues considered by the court in its original Opinion; the court has withdrawn that Opinion and substitutes this one for it so that all the court's reasoning in support of its judgment may be found in one place.
This case presents a fact pattern all too common in this jurisdiction: an evening begins with social drinking among friends, includes a visit to a neighborhood tavern, then degenerates into conflict, violence and death.
On the evening of July 8, 1988, Daniel accompanied two friends, Lisa and Edward Burrell, to "Legends" bar in Daniels, West Virginia. Daniel and the Burrells had consumed some beer together prior to arriving at Legends at approximately 11:30 p.m. At Legends, Daniel ran into Jimmy Torrence, an old acquaintance. Torrence had driven his van to Legends accompanied by his younger brother, Timmy Torrence, and four friends, Bobby Goodson, Aaron Bolen, Cecil Miller and Walter Dale Morgan. For Morgan, it was his last night out. Jimmy Torrence and Miller had gone into Legends, while the other members of the Torrence party, all of whom had been drinking and smoking marijuana, remained outside in the van. Inside the bar, Daniel and Jimmy Torrence drank beer and tequila together and talked. When a person inside the bar said something to Daniel, he showed Torrence a .25 caliber handgun he had concealed in his trousers and told Torrence he was not worried.
When the Burrells left Legends before closing time, Daniel elected to stay behind, indicating he would ride home with Jimmy Torrence. Daniel stayed in the bar until it closed at 3:30 a.m. As he and Jimmy Torrence were leaving, they were "jumped" outside the bar by the Patton brothers, two enemies of Jimmy Torrence. During a short fight, Daniel sustained an eye injury, a bloody cut to his head and a broken partial denture plate.
After the fight, Daniel and Jimmy Torrence got into Torrence's van with Torrence driving and Daniel occupying the front passenger seat. In the back of the van were the five persons who had arrived at Legends in Jimmy Torrence's van plus two other persons — Bobby Lane, who had asked Torrence for a ride home, and a woman, identified much later as Carol Dotson Brammer, whom Lane had met that night in the bar. Lane and Brammer got out of the van at Raleigh Motor Sales, a short distance from Legends. Lane, who testified he did not drink any alcohol that night because he expected to become a "designated driver," said he had a "feeling" which made him want to get out of the van.2 Lane also testified at Daniel's trial that Daniel appeared upset with Walter Dale Morgan because Morgan, an old friend of Daniel's, had refused to help him in the fight with the Patton brothers.
After dropping off Lane and Brammer, Jimmy Torrence continued driving home. Cecil Miller was passed out on the floor of the van. The other passengers were in the back of the van listening to music. At trial, Daniel testified that he became confused and disoriented due to the combined impact of the alcohol he had consumed and the injuries he had sustained in the fight with the Pattons. He also stated that he did not trust Jimmy Torrence, that he did not know who was in the back of the van, that he felt threatened by these unknown persons and feared for his life. Daniel drew his handgun, held it to Jimmy Torrence's head and told Torrence to take him to the police; he insisted however, that Torrence proceed in a direction opposite to the location of the nearest police station.
Claiming that several people were coming toward him from the rear of the van in a threatening manner, Daniel fired three shots which he insisted at trial were warning shots fired into the floor of the van. Two of these shots struck Walter Dale Morgan in the chest, fatally wounding him. The third shot passed through the arm of Cecil Miller, who remained unconscious on the floor of the van. When the three shots were fired, Jimmy Torrence stopped the van and all the passengers except Miller (including the mortally-wounded Morgan) jumped out of the back of the van. Daniel ordered Jimmy Torrence to resume driving, continuing to hold him at gunpoint. Torrence did so, but stopped when he came to a police cruiser beside the road. Daniel, still holding the gun to Torrence's head, relinquished it when approached by a police officer. Daniel was taken into custody, given his Miranda rights, and questioned by Deputy Orval Ayers and Detective Arthur Bolen of the Raleigh County Sheriff's Department. Daniel made some exculpatory statements to the two police officers, contending he had acted in self-defense, then refused to answer any more questions and asked for his lawyer.
At his trial, Daniel testified that he did not intend to kill anyone and that he fired the gun only because he feared for his life. He was convicted of first degree murder in the death of Morgan and malicious wounding of Miller, in spite of the fact that the only evidence to show premeditation or deliberation was Lane's testimony that Daniel appeared upset with Morgan because Morgan had refused to intervene in the fight with the Pattons. Daniel received consecutive sentences of ten years to life on the murder conviction and three to ten years on the malicious wounding charge. He is presently incarcerated at the Mount Olive Correctional Complex in Mount Olive, West Virginia.
This case is the subject of two reported decisions by the Supreme Court of Appeals of West Virginia. See State v. Daniel, 182 W.Va. 643, 391 S.E.2d 90 (1990) (); State ex rel. Daniel v. Legursky, 195 W.Va. 314, 465 S.E.2d 416 (W.Va.1995) (). After these unsuccessful efforts to obtain relief in state court, Daniel filed the present petition for a federal writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition Daniel raised the following eight grounds for relief: (1) denial of effective assistance of counsel; (2) failure of the state to disclose exculpatory evidence; (3) prosecutorial misconduct; (4) one of the trial court's instructions unconstitutionally shifted the burden of proof on the issue of malice; (5) absence of the petitioner at a critical stage during his trial; (6) improper consecutive sentences for the same offense; (7) violation of his Fifth and Sixth Amendment rights through questioning by police officers when he was in a state of intoxication and had recently undergone a severe beating, as well as the failure of arresting police officers to advise him of the nature of the charges; and (8) cumulative error caused by the several constitutional violations.
On March 5, 1997, the Magistrate Judge to whom this case was referred filed her Findings and Recommendations in which she urged this court to grant Daniel's petition for habeas corpus relief. The Magistrate Judge identified the following three grounds, each of which in her view supports issuance of the writ: (1) ineffective assistance of counsel incident to an issue involving improper juror contacts; (2) improper comments in oral argument and on cross-examination by the assistant prosecuting attorney, in violation of Daniel's Fifth Amendment right against self-incrimination;3 and (3) State's Instruction No. 1, which the trial court gave in an edited form, unconstitutionally shifted the burden of proof to Daniel to demonstrate his own innocence.
Respondent filed timely objections to each of the Magistrate Judge's three grounds for granting habeas corpus relief. Similarly Daniel filed objections4 to additional portions of the Magistrate Judge's findings and recommendations, contesting the conclusion that trial counsel's performance was objectively reasonable in his development of a theory of defense. The court conducted a de novo review of the complete record in this case in light of the various objections filed by the parties and, on March 31, 1997, filed its Judgment Order and original Opinion denying the relief requested by Petitioner.
In his motion for reconsideration Daniel raised several grounds. The court believes all of these except one to be merely repetitive of issues raised by him in his original objections. The one ground requiring additional comment is Daniel's contention that the court, in its original Opinion, did not properly consider his claim of a Fifth Amendment violation under Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). This court had concluded that Daniel waived this ground by failing to object at trial. Daniel now maintains that his Doyle claim cannot be dismissed for procedural default because the opinions of the Supreme Court of Appeals of West Virginia did not contain a "plain statement" that he was procedurally barred from raising the Doyle claim. In support of this argument Daniel relies on several United States Supreme Court cases which discuss the doctrine of adequate and independent state grounds.5 The court will consider in turn each of the three objections...
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