Sapp v. Ballard, 15-0258

• Decision Date: 29 April 2016
• Docket Number: No. 15-0258,15-0258
• Court: West Virginia Supreme Court
• Parties: Jerry Steen Sapp Jr., Petitioner Below, Petitioner v. David Ballard, Warden Mount Olive Correctional Complex, Respondent Below, Respondent

Jerry Steen Sapp Jr., Petitioner Below, Petitioner v. David Ballard, Warden Mount Olive Correctional Complex, Respondent Below, Respondent

No. 15-0258

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

April 29, 2016

(Preston County 01-C-06)

MEMORANDUM DECISION

Petitioner Jerry Steen Sapp Jr., by counsel John V. Danford, appeals the February 19, 2015, order of the Circuit Court of Preston County denying his petition for habeas relief stemming from his conviction and sentence for first degree murder. Respondent David Ballard, Warden, by counsel Zachary Aaron Viglianco, filed his response.

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 July 8, 1995, several groups of people were engaged in recreational activities at Fortney's Mill, a camping and recreation spot in Preston County, West Virginia. According to testimony from several witnesses, Patty Nestor sold petitioner and his friends acid,¹ which turned out to be less effective than expected.² Petitioner became angry, and his anger grew throughout the day. However, Ms. Nestor's group and petitioner's group partied together around a campfire while the groups drank alcohol and used drugs. Petitioner then picked up a piece of firewood, walked over to Ms. Nestor's husband, Randy Nestor, and struck him twice in the head. Mr. Nestor sustained massive brain injuries and later died as a result of those injuries.

Two years after Mr. Nestor's death, petitioner was arrested and charged with first degree murder. At trial, four witnesses testified that petitioner was the person who attacked Mr. Nestor, and two witnesses testified that petitioner had acknowledged or claimed responsibility for the attack. However, petitioner testified on his own behalf and claimed that a member of his group, Brian White, was the one responsible. On February 11, 1999, a jury found petitioner guilty offirst degree murder with a recommendation of mercy. On March 18, 1999, the circuit court denied petitioner's motion for a new trial and sentenced petitioner to life imprisonment with mercy. On September 28, 1999, petitioner filed his direct appeal with this Court, asserting thirteen errors, several of which touched on the ineffective assistance of trial counsel. On July 12, 2000, this Court issued its decision affirming petitioner's conviction. State v. Sapp, 207 W.Va. 606, 535 S.E.2d 205 (2000).

On January 18, 2001, petitioner filed a pro se petition for writ of habeas corpus. The circuit court then appointed counsel to represent petitioner. The Circuit Court of Preston County denied that petition by order entered on or about April 10, 2009. On February 19, 2015, the circuit court entered its "Order Reissuing Order Denying Petition for Writ of Habeas Corpus" for purposes of allowing petitioner to appeal the denial of his habeas petition. Petitioner now appeals that denial.

We apply the following standard of review in habeas cases:

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.

Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006). Further, "'[a] habeas corpus proceeding is not a substitute for a writ of error in that ordinary trial error not involving constitutional violations will not be reviewed.' Syllabus Point 4 of State ex rel. McMannis v. Mohn, 163 W.Va. 129, 254 S.E.2d 805 (1979) [c]ert. [d]enied, 464 U.S. 831, 104 S.Ct. 110, 78 L.Ed.2d 112 (1983)." Syl. Pt. 3, Hatcher v. McBride, 221 W.Va. 5, 650 S.E.2d 104 (2006).

On appeal, petitioner asserts two assignments of error. The first alleged error is the circuit court's determination that petitioner did not receive ineffective assistance of trial counsel. As part of this alleged error, petitioner sets forth six subparts, though all fall squarely within the general category of ineffective assistance of counsel. The alleged ineffective assistance of counsel includes the following: trial counsel failed to move to exclude certain evidence admitted pursuant to Rule 404(b) of the West Virginia Rules of Evidence or request a cautionary instruction regarding the same; trial counsel failed to object to the State's improper impeachment of petitioner during the redirect of witness Brian White; trial counsel failed to object to the investigating officer's repeated use of the word "murder" during the officer's testimony; trial counsel failed to object to the State's improper questioning of petitioner; trial counsel failed to object to several prejudicial misrepresentations of petitioner's trial testimony by the State during closing argument; trial counsel failed to object or request a curative instruction when the State made prejudicial misstatements of law as the prosecutor attempted to define reasonable doubt to the jury during closing argument; and trial counsel failed to object to the circuit court's inclusion of a Clifford instruction in its jury charge.³

We have previously held that

[i]n 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). Further,

[i]n reviewing counsel's performance, courts must apply an objective standard and determine whether, in light of all the circumstances, the identified acts or omissions were outside the broad range of professionally competent assistance while at the same time refraining from engaging in hindsight or second-guessing of trial counsel's strategic decisions. Thus, a reviewing court asks whether a reasonable lawyer would have acted, under the circumstances, as defense counsel acted in the case at issue.

Syl. Pt. 6, id.

In the instant matter, petitioner has failed to satisfy the high burden set forth in Miller. Petitioner's theory of the case was that Mr. White was the one who struck Mr. Nestor. He did not contend that he was not present at the time of the crime, and he does not allege on appeal that there were witnesses his counsel failed to call that could corroborate his version of events. In addition, while petitioner complains about the Clifford instruction given by the circuit court, this Court has previously stated that the "linchpin of the problems that flow from these instructions is the failure adequately to inform the jury of the difference between first and second degree murder." State v. Guthrie, 194 W.Va. 657, 673, 461 S.E.2d...