State ex rel. Farmer v. McBride

• Decision Date: 02 November 2009
• Docket Number: No. 34157.,34157.
• Parties: STATE ex rel. Alex FARMER, Petitioner Below, Appellant v. Thomas McBRIDE, Warden, Respondent Below, Appellee.
• Court: West Virginia Supreme Court

686 S.E.2d 609

STATE ex rel. Alex FARMER, Petitioner Below, Appellant v. Thomas McBRIDE, Warden, Respondent Below, Appellee.

No. 34157.

Supreme Court of Appeals of West Virginia.

Submitted September 23, 2009.

Decided November 2, 2009.

Syllabus by the Court

1. "A trial court is vested with a sound discretion in granting or refusing leave to amend pleadings in civil actions. Leave to amend should be freely given when justice so requires, but the action of a trial court in refusing to grant leave to amend a pleading will not be regarded as reversible error in the absence of a showing of an abuse of the trial court's discretion in ruling upon a motion for leave to amend." Syllabus Point 6, Perdue v. S.J. Groves and Sons Co., 152 W.Va. 222, 161 S.E.2d 250 (1968).

2. "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).

3. "Serology reports prepared by employees of the Serology Division of the West Virginia State Police Crime Laboratory, other than Trooper Fred S. Zain, are not subject to the invalidation and other strictures contained in In the Matter of an Investigation of the West Virginia State Police Crime Laboratory, Serology Division, 190 W.Va. 321, 438 S.E.2d 501 (1993)." Syllabus Point 3, In the Matter of the West Virginia State Police Crime Laboratory, Serology Division, 191 W.Va. 224, 445 S.E.2d 165 (1994).

4. "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, State ex rel. McMannis v. Mohn, 163 W.Va. 129, 254 S.E.2d 805 (1979).

5. "Failure to observe a constitutional right constitutes reversible error unless it can be shown that the error was harmless beyond a reasonable doubt." Syllabus Point 5, State ex rel. Grob v. Blair, 158 W.Va. 647, 214 S.E.2d 330 (1975).

6. "`A trial court's failure to remove a biased juror from a jury panel does not violate a defendant's right to a trial by an impartial jury as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by Section 14 of Article III of the West Virginia Constitution. In order to succeed in a claim that his or her constitutional right to an impartial jury was violated, a defendant must affirmatively show prejudice.' Syl. Pt. 7, State v. Phillips, 194 W.Va. 569, 461 S.E.2d 75 (1995)." Syllabus Point 6, State ex rel. Quinones v. Rubenstein, 218 W.Va. 388, 624 S.E.2d 825 (2005).

7. "`When a defendant has been convicted of two separate crimes, before sentence is pronounced for either, the trial court may, in its discretion, provide that the sentences run concurrently, and unless it does so provide, the sentences will run consecutively.' Syllabus point 3, Keith v. Leverette, 163 W.Va. 98, 254 S.E.2d 700 (1979)." Syllabus Point 3, State v. Allen, 208 W.Va. 144, 539 S.E.2d 87 (1999).

Kevin D. Mills, Esq., Mills & Wagner, PLLC, Martinsburg, WV, Attorney for Appellant.

Christopher C. Quasebarth, Esq., Chief Deputy Prosecuting Attorney, Office of the Prosecuting Attorney, Martinsburg, WV, Attorney for Appellee.

PER CURIAM:

This case is before this Court upon appeal of a final order of the Circuit Court of Jefferson County entered on August 15, 2007. In that order, the circuit court denied a petition for a writ of habeas corpus filed by the appellant and petitioner below, Alex Farmer, against the appellee and respondent below, Thomas McBride, Warden. On August 3, 1990, the appellant was found guilty of first degree murder, two counts of first degree sexual assault, and one count of burglary. He was sentenced to life in prison with mercy for the first degree murder conviction, fifteen to twenty-five years for each sexual assault conviction, and one to fifteen years for the burglary conviction. The circuit court ordered that the sentences be served consecutively.

In this appeal, the appellant first contends that the circuit court erred by denying his motion to amend his habeas petition to add a Zain III claim.¹ The appellant also argues that the circuit court erred in denying him habeas relief. This Court has before it the petition for appeal, the entire record, and the briefs and argument of counsel. For the reasons set forth below, the final order is affirmed.

I. FACTS

On the morning of April 15, 1988, Marjorie Bouldin, an elderly woman who lived alone, was found dead in her home in Jefferson County, West Virginia. There was evidence of a burglary, and Ms. Bouldin had been sexually assaulted. The cause of death was determined to be asphyxia from manual strangulation. The appellant, who had been hired to paint the exterior of Ms. Bouldin's home the day before her body was discovered, was identified as a suspect.

Subsequently, on September 1, 1989, the appellant was indicted on two counts of first degree sexual assault, one count of burglary, and one count of first degree murder. At a pre-trial suppression hearing on January 26, 1990, State Police Corporal J.A. Jeffries testified that as part of the murder investigation, he and Jefferson County Sheriff's Deputy Robert Shirley spoke with the appellant on April 16, 1988. The appellant was not under arrest at that time, and he signed a Miranda² waiver form. The appellant gave a statement, but then requested an attorney and ended the interview. On that same day, the appellant and his brother gave consent for the police to search their home. The appellant identified the clothing that he was wearing on April 14, 1988. The police seized the clothing which included a blue t-shirt and jeans. Corporal Jeffries also testified at the suppression hearing, that he and Deputy Shirley interviewed the appellant on June 8, 1989, at New Jersey's Bayside Prison where the appellant was incarcerated on unrelated charges. The appellant again signed a Miranda waiver form and gave another statement. The court ruled that the statements were given voluntarily and that the clothing had also been seized by voluntary consent. Therefore, the statements and clothing were deemed admissible at trial.

The appellant's trial began on July 24, 1990. Prior to the start of trial, the single alternate juror replaced a member of the jury who had become ill and was hospitalized. The appellant requested the selection of another alternate. The State opposed recalling the jury panel, and the trial court would not select a new alternate without agreement of the parties. During lunch on the first day of trial, another member of the jury, Cheryl Cook, informed the court that she had learned that the bank where she worked was administering Ms. Bouldin's estate. The appellant moved to disqualify Ms. Cook, but the court denied the motion. Ms. Cook stated that knowing her employer was administering Ms. Bouldin's estate would not affect her ability to fairly and impartially hear the case and that she felt comfortable continuing as a member of the jury.

In addition to the statements the appellant gave to the police, the State presented the following evidence at the appellant's trial. First, Eva Longerbeam testified that she spoke with Ms. Bouldin on the phone on April 14, 1988, between 7:30 p.m. and 8:00 p.m. Mary Woodward then testified that she found Ms. Bouldin's body around 9:40 a.m. the next morning. A window in the home had been broken and footprints were found in the basement. The county coroner, Dr. William Miller, testified that the time of death was six to twelve hours before the body was found. Dr. James Frost, the State Medical Examiner, testified that the time of death was eight to twelve hours before the body was found, plus or minus four hours. He also testified that some of the abrasions found on the body could have been caused by coarse work gloves.

Marshall Lynn Fitzwater testified that he worked with the appellant for about six months painting and clearing brush. He and the appellant, along with Kevin DeHaven, painted Ms. Bouldin's home on April 14 1988. On that day, the appellant was wearing a blue t-shirt, blue jeans, and new tennis shoes. Mr. Fitzwater stated that none of the painters went into Ms. Bouldin's basement. He also testified that the appellant did not have any scars or marks on his face that day. He dropped the appellant off "by the river" on the evening of April 14, 1988, around 8:05 p.m. to 8:10 p.m. The appellant told him that he was going to the home of Charles Grim. Mr. Fitzwater testified that the next day, the appellant was wearing the same clothes, and he had a scratch on his nose. The appellant told him that he was scratched by Mr. Grim's dog.

Mr. Charles Grim testified that he lived near Ms. Bouldin. He stated that the appellant came to his house between 8:00 p.m. and 8:30 p.m. on April 14, 1988. He knew the appellant but was not expecting him. The appellant had not been to Mr. Grim's house before. The appellant told him that Lynn Fitzwater had dropped him off. He did not notice any scratches on the appellant's face and stated that his dog never scratched the appellant. Mr. Grim testified that the appellant left between 9:00 p.m. and 9:30 p.m. that evening but returned between 11:00 p.m. and 11:30 p.m. The appellant spent the night on Mr. Grim's couch, and Mr. Grim dropped him off at a convenience store at 5:00 a.m. the next morning.

Hilda Grim, wife of Charles Grim, testified about the appellant coming to her house on the evening of April 14, 1988. She stated that the appellant left between 9:00 p.m. and 9:30 p.m. indicating that he was going to Sonny Pumphrey's house and then home. She said that the appellant returned though around 11:00 p.m. to 11:30 p.m. He...