Finley v. Terry

• Decision Date: 08 June 2018
• Docket Number: No. 17-0084,17-0084
• Court: Supreme Court of West Virginia
• Parties: Jeffrey L. Finley, Petitioner Below, Petitioner v. Ralph Terry, Acting Warden, Mt. Olive Correctional Complex, Respondent Below, Respondent

Jeffrey L. Finley, Petitioner Below, Petitioner v. Ralph Terry, Acting Warden, Mt. Olive Correctional Complex, Respondent Below, Respondent

No. 17-0084

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

June 8, 2018

(Cabell County 10-C-842)

MEMORANDUM DECISION

Petitioner Jeffrey L. Finley, by counsel Eric Anderson, appeals the Circuit Court of Cabell County's December 29, 2016, order that denied his petition for a writ of habeas corpus. Respondent Ralph Terry, Acting Warden, Mt. Olive Correctional Complex, by counsel Benjamin F. Yancey, III, filed a response in support of the circuit court's order.¹

This 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.

On March 22, 1999, petitioner's neighbor, ninety-two-year-old Mabel Hetzer, was found dead in her home. The investigating officers noticed the victim's body to be lying in an unnatural position on her bed. They also found a suspected bite mark on her body and injuries that could have been caused by a sexual assault. It was subsequently determined that the victim was sexually assaulted both vaginally and anally, that her back was broken, and that she was strangled to death.

The investigation into the victim's death ceased during the summer of that same year. The swabs taken from the victim's body were not processed and no efforts were made to determine if any of the DNA material recovered matched any person. Two and a half years later, a new supervisor at the Huntington Police Department ordered that the investigation into thevictim's death be reopened. Police officials examined a set of bed clothes at the scene with an alternative light source device that was broken during the initial investigation. A number of hairs that had previously gone undetected were discovered.

Meanwhile, during this two-and-a-half-year period, petitioner moved to Wisconsin to live with his sister and find employment. On March 21, 2002, after providing an affidavit to authorities in Wisconsin, Huntington Police officers questioned petitioner and obtained DNA samples from him. One of the officers, Detective Michael Coffey, transported these samples back to West Virginia and stored petitioner's blood sample in an unlocked, unsecured refrigerator in his home until March 25, 2002, at which time he gave the sample to Forensic Officer David Castle. Officer Castle transported blood/DNA samples from both petitioner and the victim to the West Virginia State Police Laboratory on April 2, 2002.

Lieutenant H.B. Myers, a forensic scientist employed by the West Virginia State Police received the materials for testing on February 11, 2003. He prepared a report as a result of his testing that indicated that there was dual DNA on the swab provided by the police and that the primary genotypes (female donor) were consistent with the DNA profile of the victim. With regard to the other contributing DNA found on the swab, Lt. Myers opined as follows:

The secondary genotypes identified from the swab of the bite mark indicated the presence of a male donor based on the amelogenin results. [Petitioner] cannot be excluded as a possible contributor to the mixture of DNA identified from the swab of the bite mark. The combined probability of exclusion for the mixture results obtained from the swab of the bite mark is 99.9999895%. Meaning that approximately 1 in each 9.52 million randomly selected unrelated individuals would be a potential contributor to this mixture.

On May 16, 2003, petitioner was indicted on charges of first degree murder and two counts of second degree sexual assault. The guilt phase of the bifurcated trial commenced on September 20, 2004. Consistent with his written report, Lt. Myers testified at trial that petitioner could not be excluded as a potential donor of the secondary source of the DNA found on the swab taken from the victim's body. Petitioner was convicted of all charges. Upon recommendation by the jury, the circuit court sentenced petitioner to life in prison without the possibility of parole on the murder conviction. The Court also sentenced petitioner to two consecutive terms of ten to twenty-five years for both of the sexual assault convictions.

Petitioner appealed his convictions to this Court. Based upon petitioner's appearance before the jury during the penalty phase, during which he wore identifiable orange prison garb, this Court reversed petitioner's sentence and remanded for a jury to determine the singular issue of whether mercy was to be recommended in sentencing. See State v. Finley, 219 W. Va. 747, 639 S.E.2d 839 (2006). In all other respects, petitioner's convictions were affirmed. Petitioner was subsequently resentenced to life, with mercy, on the first degree murder conviction and, as before, sentenced to two terms of ten to twenty-five years on the second-degree sexual assault convictions. The sentences were ordered to be served consecutively.

Petitioner, by counsel, filed an amended petition for a writ of habeas corpus on July 23, 2014. A final omnibus hearing was held on October 28, 2014. By order entered on December 29,2016, the circuit court denied petitioner's request for habeas relief. This appeal followed.

Our review of the circuit court's order denying petitioner's petition for a writ of habeas corpus is governed by 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." Syllabus point 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W. Va. 375, 701 S.E.2d 97 (2009).

First, we address petitioner's argument that the circuit court erred in failing to conclude that petitioner was deprived of his constitutional right to be present at all critical stages of the trial when the trial judge twice communicated off the record with the jury while they were deliberating. See U.S. Const. amend VI; W.Va. Const. art. 3, § 14; W.Va. Code § 62-3-2. The first communication occurred after the jury requested, in writing, "a copy of Officer John Franklin's statement." In the presence of petitioner and the attorneys for both parties, the judge read the request and placed it in the record. The judge then advised that he intended to go into the jury room to tell the jury "that they have everything that they can have and they will have to use their best recollection." The judge then asked if there was "any objection to my doing that?" Petitioner's counsel replied in the negative. Again, the judge inquired, "Do I need to bring them out here and put them in the jury box and do that?" Petitioner's counsel reiterated that there was no objection. The judge then asked, "Do I need to take my court reporter in to take down what I say? I'll have the door open. You can listen." Petitioner's counsel replied, "That's fine." The judge proceeded to the jury room to instruct the jury.

The second communication between the judge and the jury occurred later that afternoon and was precipitated by the late hour and the imminent closure of the court house for the day. According to the trial transcript, the judge stated:

It's 4:40 pm. The normal closing time for the courthouse is 4:30. I intend to go into the jury room and ask them if they're close and want to stay. I would be happy to keep the staff here until about 5:00. But if they don't feel like they are close, I intend to ask them to come back tomorrow and begin their deliberations by 9:00.

[Defense counsel]: Yes, sir.

. . . .

The Court: Any objection to my just going in there?

[Defense counsel]: Oh, no, sir.

The Court: Don't need to bring them out?

[Defense counsel]: We don't need a reporter.

The Court: We don't need to put it on the record?

[Defense counsel]: No. We'll trust your judgment, Your Honor.

The judge then proceeded to the jury room and, after speaking with the jury, reentered the courtroom. He addressed petitioner and the parties' counsel as follows:

As I mentioned, I informed the jury that 4:30 is the normal time we allow juries to go home. However we do let them stay if they feel like they're close [to reaching a verdict]. Didn't want them to feel any pressure to reach a verdict or not reach a verdict. That certainly they would be able to come back tomorrow and deliberate further if they would like to do that. I would leave that up to them. And all of them indicated that they were in the process of filling out the verdict form and that within a few minutes they thought they would have a unanimous verdict and they could return it on all three counts. And they would prefer to stay if we would all be willing to stay.

I indicated that there was some willingness to stay, but if they changed their minds or had any concerns or wanted to go home and sleep on it that we would be happy to come back and have them deliberate further tomorrow. They said they understood that. But they did ask if we would wait and they said they would let us know when and if they reached a unanimous verdict.

The circuit court then took a recess. At 4:53 p.m., the jury returned to the courtroom and delivered its verdict.

Petitioner argues that both of the foregoing meetings between the judge and jury were critical stages of the proceedings and that he had a constitutional right to be present at each. This Court has held that

"[t]he defendant has a

...