State ex. rel. Roger L. Bowers v. McBride

Decision Date25 February 2011
Docket NumberBerkeley County 03-C-10,No. 101458,101458
PartiesState ex. rel. Roger L. Bowers, Jr., Petitioner , Petitioner v. Thomas L. McBride, Warden Respondent , Respondent
CourtWest Virginia Supreme Court

OPINION TEXT STARTS HERE

MEMORANDUM DECISION

This appeal arises from the Circuit Court of Berkeley County, wherein the Petitioner's petition for habeas corpus relief was denied following an omnibus hearing. The appeal was timely filed by the Petitioner, with the entire record accompanying the Petitioner's petition for appeal. A timely response was filed by the Respondent Thomas McBride. The Petitioner seeks a reversal of the circuit court's decision.

Pursuant to Revised Rule 1(d) of the Revised Rules of Appellate Procedure, this Court is of the opinion that this matter is appropriate for consideration under the Revised Rules. This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented in the parties' written briefs and the record on appeal, 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 Revised Rules.

Petitioner was convicted by a jury of felony murder and distribution of a controlled substance and sentenced to life with mercy and a concurrent one-fifteen year prison term. He filed a petition for habeas corpus in the circuit court and counsel was appointed. An amended petition for habeas corpus was filed. In this habeas action, Petitioner raises multiple issues including ineffective assistance of his trial counsel. The circuit court held a two-day omnibus hearing at which time witnesses, including Petitioner's trial counsel, presented testimony. Subsequently, the circuit court entered a forty-seven page "Final Order Denying Petition for Habeas Corpus."

The Court has carefully considered the merits of each of the Petitioner's arguments as set forth in his petition for appeal. Finding no error in the denial of habeas corpus relief, the Court fully incorporates and adopts the circuit court's detailed and well-reasoned "Final Order Denying Habeas Corpus," dated May 21, 2010, and attaches the same hereto.

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: February 25, 2011

CONCURRED IN BY:

Chief Justice Margaret L. Workman

Justice Robin Jean Davis

Justice Brent D. Benjamin

Justice Menis E. Ketchum

Justice Thomas E. McHugh

FINAL ORDER DENYING PETITION FOR HABEAS CORPUS

On a previous date came the Petitioner, by counsel, Robert C. Stone, Jr.; and the Respondent, by counsel, Christopher C. Quasebarth, Chief Deputy Prosecuting Attorney, upon the Amended Petition for Writ of Habeas Corpus, the Respondent's Reply and Motion to Dismiss, the evidence taken at the hearings on December 22, 2009, and February 5, 2010, and such other pleadings and papers as may appear on the record. Upon mature consideration of . these pleadings and the record of the underlying cirminal case, State v. Roger L.Bowers, Jr.; Case No.: 01 -F-78, the Court DENIES the Amended Petition for Habeas Corpus

FINDINGS OF FACT.

A. Trial Proceedings.

1. Jason Gettel turned purple after six or seven injections of heroin purchased from the Petitioner at the Petitioner's house. As Mr. Gettel turned purple, the Petitioner told Gettel's friends, Jonathan Ware and George Karn, to get him out of the house because he's dying. They shoved Gettel into the backseat of Ware's car and then abandoned Gettel in the car at a road intersection. When emergency personnel arrived at the car, Gettel's body was blue and cold. Ware and Karn told police that they brought Gettel to the Petitioner to purchase narcotics and then Gettel purchased heroin from the Petitioner. Kyra Heleine injected Gettel with the purchased heroin. [Criminal Complaint, 5/16/0l.]

2. The Petitioner was indicted on three felony counts: Felony Murder, for aiding and abetting Kyra Heleine in the delivery of a controlled substance (heroin) resulting in the death of Jason Gettel; Aiding and Abetting Delivery of a Controlled Substance (heroin); and Distribution of a Controlled Substance (heroin). [Indictment, 5/16/01, State v. Roger Lee Bowers. Jr.. No: 01-F-78.]

3. The Court released the Petitioner on bail with conditions including home incarceration. [Order of Bond Reduction, 6/6/01.]

4. About two weeks later, the Court's Probation Office moved to revoke the bail conditions upon the Petitioner's violation. [Order Revoking Home Confinement Bond Status, 8/29/01; Order, 6/25/01; Petition for Revocation of Home Incarceration Status, 6/25/01.] 4a. The Petitioner's co-defendant, Kyra Heliene, died in a car wreck while awaiting trial.

5. On the Petitioner's motion, the trial was bifurcated between guilt and sentencing. [Order, 10/22/01.]

6. Immunity was granted by the Court to eyewitnesses George Karn, Jennifer Gorman, and Jonathan Ware. [Orders, 11/1/01.]

7. At pre-trial, the State elected to proceed on the Felony Murder charge of Count I and dismissed the Delivery of a Controlled Substance charge of Count II (being the act underlying the Felony Murder charge). [Pre-trial Order, 11/16/01.]

8. At the pre-trial, Myron Gebhardt testified that he is a chemist at the West Virginia Medical Examiner's Office and did the preliminary testing of Mr. Gettel's blood on a Cobas Mira instrument. [Tr., 10/25/01, 26-70, 106-110.]

9. At pre-trial, David Clay, Assistant Toxicologist at the West Virginia Medical Examiner's Office, testified to additional testing procedures and results he performed for analyzing Mr. Gettel's blood for alcohol and opiates. The blood alcohol results from the gas chromatagraph were .09. The opiate results from the gas chromatograph mass spectrometer demonstrated 282 micrograms of morphine per liter with traces of monoacetylmorphine. Diacetylmorphine is heroin; monoacetylmorphine is the first metabolite of heroin as the body breaks it down; morphine is the second metabolite and is much longer-lived then monoacetylmorphine. [Id., 111-165, 115-126.]

10. At the pre-trial, County Coroner David Brining testified to his observations of the body of Mr. Gettel made with Sandra Brining, his obtaining blood and vitreous fluid samples from the body and sending them for analysis, his observations of needle puncture marks on the victim's arm, and the limitations of his point-and-shoot camera in being unable to take close-up photos of those needle marks. [Id., 165-192.]

11. At the pre-trial, County Coroner Sandra Brining testified to her observations of the body of Mr. Gettel made with David Brining, her observations of needle puncture marks on the victim's arm, her receiving information from the police that the victim was injected with heroin shortly before his death, her consultation with State Medical Examiner Dr. Frost that an autopsy was not necessary because he felt that toxicology would give them the information they needed, David Brining's obtaining blood and vitreous fluid samples from the body and sending them for analysis, and why she listed the cause of death as positional asphyxiation with alcohol and heroin use contributing. [Id, 192-234, 195-207, 216, 231-232; Tr., 10/26/01, 3-83.]

12. At the pre-trial, Dr. Donald Cash, Chief Toxicologist for the West Virginia Medical Examiner's Office, testified as to the testing procedures and results from testing Mr. Gettel's blood. He testified that the Cobas Mira test was a preliminary test and that the more accurate secondary testing was performed for alcohol on the gas chromatagraph and for opiates on the gas chromatograph mass spectrometer. The blood alcohol results from the gas chromatagraph were .09. The opiate results from the gas chromatograph mass spectrometer demonstrated 282 micrograms of morphine per liter with traces of monoacetylmorphine. That concentration of alcohol could result in loss of judgment and impaired perception. That concentration of morphine has been reported in fatalities. The combination of alcohol and heroin may be contributing factors in the death. [Tr., 10/26/01,83-175, 101-105.]

13. Based on that testimony, the Court permitted the testimony and evidence regarding the alcohol and opiate concentrations found in Mr. Gettel's blood and the opinion evidence as to the cause of death. [Pre-trial Order, 11/16/01.]

14. At jury selection during individual voir dire, the Court granted the State's motion to strike potential juror Keith Johnston after Mr. Johnston related his family history of dealing with his sister's "pretty bad heroin problem." Mr. Johnston felt that a person who dies from taking heroin is at fault and not the one who gave the heroin:

The Juror: One of your questions was whether somebody that gives somebody else heroin and subsequently dies, whether they are at fault. My opinion is, no. As far as I'm concerned, my sister was looking for it. If there wasn't one person, it was going to be somebody else. If she had died from it, than that was-

The Court: So-

The Juror: -her choice.

[...]

The Juror: [...] It was her choice. She went to NA for awhile and she had a lot of opportunity to straighten up and she just chose not to. My opinion is if she would have died from it, you know, I couldn't rightfully blame anybody but her.

[Tr., 11/6/01, 110-120 ,113-114,]

15. During opening, the State referenced evidence that, on the night of his death, Mr. Gettel went with his friends, Ware and Karn, to the Petitioner's to obtain cocaine. Instead, they received heroin and, upon being injected, Gettel immediately began to pass out and turn purple. The Petitioner ordered them to take Gettel out of the house because he's dying. Gettel was stuffed into the backseat of a car. He was found by police in that abandoned car. His death...

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