Nenigar v. Ballard
| Decision Date | 22 November 2013 |
| Docket Number | No. 13-0385,13-0385 |
| Parties | Ryan Nenigar, Petitione, Petitioner v. David Ballard, Warden, Respondent, Respondent |
| Court | West Virginia Supreme Court |
Petitioner Ryan Nenigar, by counsel Jonathan G. Brill, appeals the February 6, 2013, order of the Circuit Court of Hampshire County denying his petition for writ of habeas corpus. Respondent State of West Virginia, by counsel Scott E. Johnson, filed a response in support of the circuit court's order.
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 is appropriate under Rule 21 of the Rules of Appellate Procedure.
Petitioner was found guilty of first-degree murder by a jury on August 4, 2004. In the underlying crime, petitioner, Stephen Cooper and Scott Cooper were found to have picked up the victim in petitioner's vehicle. The Coopers testified against petitioner, alleging that he was the mastermind in the crime and choked the victim to death. They also alleged that he had the idea to sink the victim's body in a lake with concrete blocks, but when they tried to do so, they failed and dumped the blocks into the lake. They then took her body to a creek in Virginia and dumped it there. Stephen Cooper testified that when the body was dumped in the creek, he thought he heard the crack of the victim's head hitting a rock.
Petitioner appealed his conviction, but his appeal was denied in September of 2005. Petitioner then moved for a new trial, which was denied, and his appeal of the order denying the motion for a new trial was likewise denied. Petitioner filed a petition for writ of habeas corpus and counsel was appointed. Counsel filed an amended petition for writ of habeas corpus, which the circuit court denied on February 6, 2013, after finding that a hearing was not necessary. Petitioner appeals from this denial.
This Court reviews appeals of circuit court orders denying habeas corpus relief under the following standard:
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). The following standard is applied to claims concerning ineffective assistance of counsel:
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).
On appeal, petitioner sets forth five assignments of error. First, petitioner argues that the lower court erred in finding that he received effective assistance of counsel at trial, as trial counsel acted in a deficient manner, preventing petitioner from receiving a fair trial Next, petitioner argues that the lower court erred in finding that the trial court properly admitted evidence of prior bad acts under Rule 404(b) of the West Virginia Rules of Evidence. Petitioner also argues that the lower court erred in finding that the State presented sufficient evidence at trial to sustain convictions of first-degree murder and conspiracy. Further, petitioner argues that the lower court erred in finding that the State did not breach its duty in failing to preserve material evidence prior to trial and that the prosecuting attorney abandoned his quasi-judicial role, which prevented petitioner from receiving a fair trial. Finally, petitioner argues that the lower court erred in failing to declare a mistrial or poll the jury during the voir dire process based upon prejudicial statements made by a juror in the presence of other jury members.
Upon our review of the record and the briefs on appeal, we find no error or abuse of discretion by the circuit court. All of the issues petitioner raises on appeal were issues addressed and discussed by the circuit court in its order denying petitioner post-conviction habeas corpus relief. The circuit court properly found that counsel was effective in his representation of petitioner, and that the prior bad acts, specifically the abandonment of petitioner's vehicle and a prior incident wherein he choked his girlfriend, were properly admitted under Rule 404(b). Further, the evidence was sufficient to sustain the conviction for first-degree murder and conspiracy.
Petitioner contends that the State failed to preserve material evidence by not procuring and producing the cinder blocks at trial. As to this claim, the circuit court properly concluded that there was no evidence that the State was negligent in extracting the cinder blocks from the lake or that the State failed to properly preserve the evidence. The circuit court also found no prosecutorial misconduct when the prosecutor referred to defense counsel as a "jack in the box" based on repeated objections, noting that the comment petitioner relies upon was made outside of the presence of the jury. Finally, the circuit court found that voir dire was proper and that the statement that one juror knew petitioner "from a previous placement" did not prejudice him, as none of the jurors became biased against petitioner based on this isolated comment. Having reviewed the circuit court's "Order Denying Petitioner's Petition for Writ of Habeas Corpus," entered on February 6, 2013, we hereby adopt and incorporate the circuit court's well-reasoned findings and conclusions as to the assignments of error raised in this appeal. The Clerk is directed to attach a copy of the circuit court's opinion letter and order to this memorandum decision
For the foregoing reasons, we affirm.
v.
This matter came before the Court upon Petitioner's Petition for Writ of Habeas Corpus filed January 18, 2006; upon an Order Granting Leave to Proceed in Forma Pauperis, Appointing Counsel to File Amended Petition, and Directing Respondent to File an Answer entered February 6, 2006, appointing attorney Amanda H. See to represent Petitioner; upon Agreed Orders entered March 10, 2006, and June 1, 2006, granting Petitioner and Respondent additional time to file an Amended Petition and Answer, respectively; upon an Order granting Petitioner's Motion to Voluntarily Dismiss the Omnibus Habeas Corpus Proceeding without Prejudice entered August 3, 2006; upon an Order Vacating Dismissal Order entered September 5, 2006; upon, an Order setting a status conference entered May 15, 2008; upon an Order entered May 29, 2008, granting a motion to continue the evidentiary hearing on the Motion for New Trial; upon an Order entered September 18, 2008, continuing the matter generally while the Court considered briefs with regard to the Motion for New Trial; upon an Order setting a status conference entered January 20, 2009; upon an Order entered February 11, 2009, appointing attorney Chad B. Cissel to represent Petitioner for purposes of filing an Amended Petition; upon a Motion for Appointment of Hew Habeas Counsel filed by Petitioner, pro se, on July 1, 2010; upon an Order setting ahearing on Petitioner's Motion entered July 26, 2010; upon an Order entered August 30, 2010, continuing the hearing; upon an Order entered September 17, 2010, denying Petitioner's Motion for New Counsel; upon a Motion for Appointment of New Habeas Counsel filed by Petitioner, pro se, on February 8, 2011; upon an Order Setting Hearing entered on February 28, 2011; upon an Order entered April 11, 2011, continuing the hearing; upon an Order Appointing New Counsel entered April 25, 2011, appointing attorney Tim Sirk to represent Petitioner; upon an Order entered November 10, 2011; granting Petitioner additional time to file an Amended Petition; upon an Order entered February 1, 2012, granting Petitioner additional time to file an Amended Petition; upon an Amended Petition filed March 12, 2012; upon an Order Directing Respondent to File Answer entered April 13, 2012; upon Agreed Orders entered May 11, 2012, and June 19, 2012, granting Respondent additional time to file a Response; and upon a Response to Habeas Corpus Petition filed on June 21, 2012.
The Court has carefully considered the Petition. Amended Petition, Response, the entire record in this case and the underlying criminal proceeding, and pertinent legal authority. In support of its decision, the Court makes the following findings of fact and conclusions of law:
THE CRIME
The victim, Christa Marie Kidwell, had been missing since on or about June 29, 2003... On May 15, 2004, skeletal remains and human tissue were found in a culvert of a small creek off of Back Creek Road in the Gore area of Virginia, The DNA results showed that the...
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