Rollins v. Ames, 20-0149

CourtSupreme Court of West Virginia
PartiesGary Lee Rollins, Petitioner v. Donnie Ames, Superintendent, Mount Olive Correctional Complex, Respondent
Decision Date10 June 2022
Docket Number20-0149

Gary Lee Rollins, Petitioner
v.

Donnie Ames, Superintendent, Mount Olive Correctional Complex, Respondent

No. 20-0149

Supreme Court of Appeals of West Virginia

June 10, 2022


Nicholas County 15-C-29

MEMORANDUM DECISION

Petitioner Gary Lee Rollins ("Petitioner"), by counsel Kevin W. Hughart, appeals the January 21, 2020, order of the Circuit Court of Nicholas County denying his petition for a writ of habeas corpus. Respondent Donnie Ames, Superintendent, Mount Olive Correctional Complex, by counsel Patrick Morrisey and Michael R. Williams, filed a response in support of the circuit court's order.

The Court has considered the parties' briefs, oral arguments, and the record on appeal. Upon review, 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 was convicted of first-degree murder without a recommendation of mercy following a jury trial in 2012. This Court affirmed his conviction in State v. Rollins, 233 W.Va. 715, 760 S.E.2d 529 (2014). The decedent was Petitioner's wife, Teresa Rollins ("Ms. Rollins"). She died while pinned underwater by a fallen tree in a pond on the family's farm. An employee who worked on the farm, April Bailes ("Ms. Bailes"), [1] called 911 to report the death. At the time of Ms. Rollins's death, Ms. Bailes and Petitioner had been engaging in an affair for approximately one year. The death was initially determined to be an accidental drowning. As noted by the Court in Rollins, the investigation was reopened:

According to [Petitioner], Ms. Rollins's family contacted then Governor Joe Manchin about the investigation
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indicating their belief that Ms. Rollins's death was the result of murder, not accident. The record indicates that former Governor Manchin then called the head of the West Virginia State Police and instructed the State Police to conduct an investigation. Upon completing their investigation, the State Police concluded that Ms Rollins's death was not an accident

Id. at 724, 760 S.E.2d at 538.

The conclusion that Ms. Rollins's death was not an accident was based on three primary factors. First, the investigation revealed that Petitioner took out multiple life insurance policies on Ms. Rollins within two months prior to her death. Second, the State Police found Ms. Bailes's 911 call reporting Ms. Rollins's death to be "highly suspicious." This Court described the nature of this "highly suspicious" phone call in Rollins:

According to the statements of all witnesses present at the Rollinses' farm, upon discovering Ms. Rollins's body, Mr. Rollins ran up the hill shouting for someone to call an ambulance. At that time, Mr. Rollins did not explain why they should call an ambulance. Ms. Bailes made the 911 call after retrieving her phone from her vehicle. The point from which she made the call was approximately eighty-five yards from where Ms. Rollins lay in the pond, yet she told the 911 operator that Ms. Rollins was trapped under a tree in the pond and that Ms. Rollins was not breathing. The State Police theorized that because Ms. Bailes could not see the scene at the pond with the detail she described to the 911 operator, she must have known that Ms. Rollins was dead in the pond prior to placing the call.

Id. at 725, 760 S.E.2d at 539.

Finally, the State Police found that Petitioner's description of what he did upon seeing his wife trapped in the pond did not match the testimony of other witnesses on the scene. Specifically, Petitioner claimed that he jumped into the pond in an attempt to save Ms. Rollins. However, witnesses on the farm stated that Petitioner was "either completely dry or wet only up to his knees shortly after Ms. Rollins's body was removed from the pond." Id.

Following this investigation, Petitioner was indicted for the murder of Ms. Rollins. Ms. Bailes was charged by complaint as an accessory to this murder based on the belief that she knew Ms. Rollins was dead prior to calling 911. Ms. Bailes denied any knowledge of foul play during the time between Ms. Rollins's death and the time Petitioner was charged. However, after Ms. Bailes was arrested and charged as an accessory, she told

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the police that Petitioner took her aside on the morning of Ms. Rollins's death and admitted that he killed her.

The State's evidence at trial consisted of 1) Ms. Bailes's testimony that Petitioner had confessed to her that he killed his wife; 2) testimony regarding the life insurance policies; 3) testimony of witnesses at the farm on the day Ms. Rollins died; 4) testimony from three medical expert witnesses who all stated that they did not believe the injuries to Ms. Rollins's body were extensive enough to have been caused by a falling tree; and 5) testimony of a friend of Ms. Rollins who claimed that Petitioner had physically abused Ms. Rollins in the months prior to her death. During the trial, Ms. Bailes testified and denied that she had been promised anything in exchange for her testimony.

Petitioner's defense was that Ms. Rollins's death was an accident. Further, Petitioner argued that the case was reopened based on the former governor's request and influence. Petitioner called an expert, Dr. Cohen, who testified that he believed a falling tree could have caused Ms. Rollins's death.[2] During closing arguments, counsel for Petitioner argued that Ms. Bailes's testimony was not credible:

She's joined their team. She's gotten on the-the governor's freight train express. We're all going to railroad Gary Rollins, so now what does she get out of it. She's not in jail. She's not been indicted. You heard that she was arrested. She was taken before a magistrate, but she's not been indicted. You can't get convicted if you're not indicted.
Who hands out the indictments? That man right there. (Indicated.) P.K. Milam [the prosecutor]. Is he going to indict his star witness, do you think? Is that what's really going to
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happen here? After all is said and done, he gets his conviction thanks to her lie, he's going to repay that by indicting her? Do you think they thought that?

In the State's rebuttal argument, the prosecutor, Mr. Milam ("Prosecutor Milam"), asserted that there was no agreement with Ms. Bailes and that he was planning on indicting her for being an accessory to the murder:

[W]e interviewed her again and again and again and gave her every opportunity in the world to help herself, and she didn't, and she got arrested for it, and she's charged with accessory after the fact. Now, he wants you to believe that she's getting some kind of consideration out of that. You can bet your behind that I'm going to indict her next month.

The jury found Petitioner guilty of first-degree murder without a recommendation of mercy. The trial court sentenced Petitioner to life without the possibility of parole. Following his conviction, Petitioner filed a direct appeal with this Court, raising seven assignments of error.[3] This Court affirmed his conviction and sentence in Rollins.

Petitioner, by counsel, filed an amended habeas petition on November 7, 2017. Relevant to the instant matter, Petitioner asserted that he was prejudiced when Prosecutor Milam failed to disclose that the State had reached a plea agreement with Ms. Bailes. Further, Petitioner argued that Prosecutor Milam erroneously told the jury that he intended to indict Ms. Bailes. Next, Petitioner argued that he was "materially prejudiced" because one of the jurors was related to a witness for the State. Finally, Petitioner asserted that his trial and appellate counsel were ineffective.

The circuit court ("habeas court") held a two-day omnibus evidentiary hearing in 2019. The main issue was whether a plea agreement between the State and Ms. Bailes had been reached before she testified at Petitioner's trial. Three witnesses offered

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extensive testimony on this issue during the omnibus hearing: 1) Ms. Bailes, 2) Ms. Bailes's attorney, Cynthia Stanton ("Ms. Stanton"), and 3) Prosecutor Milam.

Ms. Bailes testified that she believed there was a plea agreement providing that if she testified at Petitioner's trial, she would not be charged. She could not remember who made that promise to her. When asked if Prosecutor Milam agreed not to prosecute her if she testified, she stated, "I don't think so. I don't remember how all that came about." However, Ms. Bailes acknowledged that she had given a deposition in which she testified that it was Prosecutor Milam who promised not to prosecute her if she testified. Ms. Bailes also testified that: 1) no one, including Prosecutor Milam, told her to keep the plea agreement secret; 2) she never signed a plea agreement; and 3) her lawyer, Ms. Stanton, did not go over the terms of a plea agreement with her.

Ms. Bailes conceded that during Petitioner's trial, she testified that she had not been promised anything in exchange for her testimony. She was then asked by Petitioner's counsel, "[a]s you sit here today [at the omnibus hearing], you were promised that you would not be prosecuted in exchange for your testimony, is that correct?" She replied, "Yes." However, during cross examination, Ms. Bailes was asked whether she testified truthfully during the trial and she replied, "Yes." Additionally, Ms. Bailes and counsel for the State had the following exchange:

Q. Ms. Bailes, in the three times you've testified under oath in this matter - being the trial, your deposition, and now here today, which time would your memory be better about all these events?
A. At the trial.
Q. Back then?
A. [Nodding.]
Q. Did you tell the truth then?
A. Yes.

Prosecutor Milam testified that the State did not have an agreement with Ms. Bailes. He stated that he had never...

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