Flack v. Ballard

• Decision Date: 09 June 2017
• Docket Number: No. 15-0901.,15-0901.
• Citation: 803 S.E.2d 536
• Court: West Virginia Supreme Court
• Parties: Brandon FLACK, Petitioner Below, Petitioner v. David BALLARD, Warden, Mount Olive Correctional Complex, Respondent Below, Respondent

803 S.E.2d 536

Brandon FLACK, Petitioner Below, Petitioner

v.David BALLARD, Warden, Mount Olive Correctional Complex, Respondent Below, Respondent

No. 15-0901.

Supreme Court of Appeals of West Virginia.

Submitted: February 8, 2017

Filed: June 9, 2017

Sidney H. Bell, Esq., Attorney at Law, Beaver, West Virginia, Counsel for the Petitioner

Patrick Morrisey, Esq., Attorney General, Zachary Aaron Viglianco, Esq., Assistant Attorney General, Charleston, West Virginia, Counsel for the Respondent

WALKER, Justice:

Petitioner Brandon Flack appeals the August 24, 2015 order of the Circuit Court of Mercer County granting, in part, and denying, in part, his petition for habeas corpus. Petitioner alleges that the habeas court erred in (1) denying his claims of ineffective assistance of counsel; (2) denying habeas relief on the basis that the State knowingly introduced false evidence; and (3) denying habeas relief on the basis that the State made inappropriate comments during closing argument. Respondent Warden, Mount Olive Correctional Complex ("the State"), asserts a cross-assignment of error alleging that the habeas court erred in partially granting Petitioner habeas relief on double jeopardy grounds.¹ We have considered the parties' briefs and arguments, the submitted record and pertinent authorities. For the reasons that follow, we affirm, in part, and reverse, in part, the order of the habeas court and remand this matter with instructions as further indicated below.

I. FACTUAL AND PROCEDURAL BACKGROUND

The underlying facts were established at the trial in this matter and set forth in Petitioner's direct appeal to this Court in State v. Flack , 232 W.Va. 708, 753 S.E.2d 761 (2013). Sometime in late January 2011, Petitioner and his accomplices came up with a plan to burglarize the home of Petitioner's uncle, David Flack (the "Flack Residence"). Id . at 710, 753 S.E.2d at 763. On the evening of January 28, 2011, Petitioner and his accomplices, who lived in Pulaski, Virginia, drove to Bluefield, West Virginia, where the Flack Residence was located. Id. Arriving shortly after midnight on January 29, 2011, Petitioner and two of his accomplices, Jasman Montgomery and Jacob Thomas, put on the ski masks, obscuring their faces, and approached the back of the Flack Residence and knocked on the door. Id. A fourth man, Joseph Flack, remained in the car.² Id .

Matthew Flack (Petitioner's second cousin), India Simmons (Matthew's cousin), and Milton ("Mel") Thomas (Matthew's friend), were inside the house.³ Id . Hearing the knock on the back door, Matthew looked through a curtain and saw three masked men standing at the back door. Id . Matthew then ran upstairs to get a gun. Id. As Matthew headed up the stairs, one of the men kicked in the back door.⁴ The three men then entered the Flack Residence. Id. Following Matthew, Petitioner ran up the stairs and began wrestling with him. Id. While Petitioner and Matthew struggled on the landing, Mr. Montgomery ran up the stairs, pulled out a gun and shot Matthew Flack in the face. Id. Petitioner was also shot when Matthew Flack fired his gun.⁵ Id.

Petitioner and his accomplices ran out of the Flack Residence and fled from the scene. Id. The men took Petitioner, who was visibly injured, to the hospital. Id. at 711, 753 S.E.2d at 764. There, the men told hospital staff that Petitioner had been shot in a drive-by-shooting. Petitioner's injuries were reported to the police by hospital staff and several officers were dispatched to investigate. Id. Upon their arrival, one of the officers noticed blood on the inside and outside of the car that Petitioner and his accomplices had driven to the hospital. Id. The officers asked for and were given permission to search the car by a young woman named Heather Davis, whose grandfather owned the car. Two handguns and ski masks were found in the trunk.⁶ Id .

Petitioner was subsequently arrested and charged with one count of first degree murder, one count of burglary, one count of first degree robbery, and one count of conspiracy. Id. Pleading not guilty, Petitioner's case proceeded to trial. Id. At trial, the State's witnesses included Petitioner's accomplice, Mr. Montgomery, and Dr. James Kaplan, the State Medical Examiner.⁷ Id .

Mr. Montgomery pled guilty to first degree murder and was sentenced to life with the possibility of parole. Id. As part of his plea agreement, Mr. Montgomery testified for the State and told the jury about the plan they had devised, their forced entry into the Flack Residence, his shooting of Matthew Flack, and driving Petitioner to the hospital. Id . During the course of the trial, defense counsel did not request any limiting or cautionary instruction regarding the consideration the jurors were permitted to give Mr. Montgomery's guilty plea or his testimony that he murdered Matthew Flack. Id.

At trial, Dr. James Kaplan testified that Mr. Flack died as a result of a gunshot wound. Id . However, the pathologist who prepared the autopsy report did not testify at trial and defense counsel did not object. Id.

On April 26, 2012, following a three-day trial, a jury convicted Petitioner of all charges and recommended mercy for the murder charge. Petitioner then moved for a new trial, asserting that his rights were violated when the trial court failed to sua sponte give the jury a limiting instruction regarding Mr. Montgomery's testimony about his guilty plea. Id. Petitioner also argued that because there were no African-American members on his jury panel, his constitutional rights were violated. Id . On June 7, 2012, the trial court denied Petitioner's motion for a new trial. Id . Because the State had pursued the murder charge based on a felony murder theory, the trial court merged the counts of first degree murder and burglary, resulting in the dismissal of the burglary conviction. Petitioner was sentenced to life with mercy for the first degree murder offense, forty years for the first degree robbery offense and an indeterminate term of one to five years for the conspiracy offense, with all sentences to run consecutively. Petitioner was given 495 days jail credit.

Petitioner filed an appeal of his convictions for first degree murder, first degree robbery and conspiracy alleging that: (1) defense counsel's failure to object to or request a limiting instruction following Mr. Montgomery's testimony on behalf of the State and the relation of his guilty plea to the jury, was plain error requiring a reversal of his convictions under State v. Caudill , 170 W.Va. 74, 289 S.E.2d 748 (1982) ; (2) his right to be tried by a jury drawn from a cross-section of his community was violated; (3) that Mercer County did not comply with the statutory requirements for assembling a jury pool; and (4) the admission of Dr. Kaplan's testimony concerning the cause of Matthew Flack's death based on findings in an autopsy report prepared by someone other than Dr. Kaplan was plain error. See Flack , 232 W.Va. at 712, 753 S.E.2d at 765. Finding no reversible error, we affirmed Petitioner's convictions. Id .

On January 7, 2014, Petitioner filed a pro se habeas petition alleging various grounds for relief. The habeas court appointed counsel for Petitioner, who then filed a supplemental petition on his behalf on July 29, 2014. As discussed in detail below, Petitioner contended that despite the fact that the State proceeded under a felony murder theory, defense counsel should have vigorously developed and presented an identity of the shooter defense. Petitioner argues that defense counsel could have asserted that Matthew Flack's death was the result of being accidentally shot by his friend, Mel Thomas, who was positioned above him on the stairwell, and that the fatal shot came from a handgun that was still at the scene when the police arrived and not in the trunk of the car at the hospital. Maintaining that this theory of defense should have been pursued, Petitioner presented the following allegations of error to the habeas court below: (1) the robbery offense was a lesser-included offense to the felony murder offense predicated on burglary and, as such, double jeopardy attached when the two were merged; (2) ineffective assistance of counsel for (a) failure to hire an investigator, an expert in forensic pathology, and a firearms expert and to cross-examine the State's experts; (b) failure to object to the autopsy evidence being elicited from a different pathologist than the one who performed the autopsy; (c) failure to object to the co-defendant testifying in front of the jury in prison attire; (d) failure to request a Caudill instruction regarding the co-defendant's testimony; (e) failure to request a copy of the co-defendant's written plea agreement; (f) failure to request a self-defense instruction; and (g) failure to subpoena certain defense witnesses for trial; and (h) failure to object to the medical examiner's testimony as denying him the right of confrontation under Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) and State v. Frazier , 229 W. Va. 724, 735 S.E.2d 727 (2012). The State filed a response to the habeas petition asserting that Petitioner's sentences complied with double jeopardy protections, that Petitioner received effective counsel at trial, and that it was inappropriate to second-guess his counsel's strategy in a petition seeking habeas relief.

The habeas court held an omnibus hearing on July 31, 2015, during which Petitioner testified and called five other witnesses to testify in support of his petition: Officer R.S. Gibson and Lt. C.S. Myers, both with the Bluefield Police Department, Larry Dehus, Danny Lane, and defense counsel Derrick W. Lefler. Officer Gibson, the first officer on the scene of the crime, testified regarding the location of a handgun at the scene, a Hi-Point pistol, and another spent shell casing he observed laying on the second set of stairs on the landing at the crime scene. Lieutenant Myers, the detective on...