State v. Porter

• Decision Date: 22 March 1990
• Docket Number: No. 18874,18874
• Citation: 182 W.Va. 776,392 S.E.2d 216
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Phillip PORTER.

Page 216

392 S.E.2d 216

182 W.Va. 776

STATE of West Virginia v. Phillip PORTER.

No. 18874.

Supreme Court of Appeals of

West Virginia.

March 22, 1990.

Syllabus by the Court

1. The principle of collateral estoppel applies in a criminal case where an issue of ultimate fact has once been determined by a valid and final judgment. In such case, that issue may not again be litigated between the State and the defendant. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).

2. "Polygraph test results are not admissible in evidence in a criminal trial in this State." Syl. pt. 2, State v. Frazier, 162 W.Va. 602, 252 S.E.2d 39 (1979).

3. "Ordinarily where objections to questions or evidence by a party are sustained by the trial court during the trial and the jury instructed not to consider such matter, it will not constitute reversible error." Syl. pt. 18, State v. Hamric, 151 W.Va. 1, 151 S.E.2d 252 (1966).

4. "It is a well-established rule of appellate review in this state that a trial court has wide discretion in regard to the admissibility of confessions and ordinarily this discretion will not be disturbed on review." Syl. pt. 2, State v. Vance, 162 W.Va. 467, 250 S.E.2d 146 (1978).

5. "A trial court's decision regarding the voluntariness of a confession will not be disturbed unless it is plainly wrong or clearly against the weight of the evidence." Syl. pt. 3, State v. Vance, 162 W.Va. 467, 250 S.E.2d 146 (1978).

6. "One who charges on appeal that his trial counsel was ineffective and that such resulted in his conviction, must prove the allegation by a preponderance of the evidence." Syl. pt. 22, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).

7. "Where a counsel's performance, attacked as ineffective, arises from occurrences involving strategy, tactics and arguable courses of action, his conduct will be deemed effectively assistive of his client's interests, unless no reasonably qualified defense attorney would have so acted in the defense of an accused." Syl. pt. 21, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).

John F. Cyrus, Lockwood, Egnor, Gardner & Cyrus, Huntington, for Phillip Porter.

Roger Tompkins, Atty. Gen., Richard M. Riffe, Senior Asst. Atty. Gen., Charleston, for State.

McHUGH, Justice:

This case is before the Court upon the appeal of Phillip Porter. The appellant was convicted of first degree murder in the Circuit Court of Cabell County. We have reviewed the petition for appeal, all matters of record, and briefs of the parties. For reasons set forth in this opinion, this case is remanded to the circuit court for further determination consistent with this opinion.

I

During the early morning hours of August 28, 1980, Mark Pelfry and his half-brother, Ralph Leo Ball, Jr. (also known as and hereinafter "Roger Pelfry"), were shot to death. The victims were asleep in a van in Guyandotte. Ralph Leo Ball, Sr., the father of the victims, was asleep in a car next to the van.

In January, 1982, the appellant was indicted on two counts of first degree murder. The first count charged the appellant with the murder of Mark Pelfry and the second count charged the appellant with the murder of Roger Pelfry.

In March, 1982, the appellant moved for a severance of the counts in the indictment. The appellant's motion was granted.

The appellant was tried for the first count of the indictment, the murder of Mark Pelfry, and was acquitted in March, 1982.

In September, 1982, the appellant moved to dismiss the second count of the indictment, the murder of Roger Pelfry, as violative of the double jeopardy prohibition of the United States Constitution. ¹ This motion was denied by the circuit court. In May, 1983, this Court refused a writ of prohibition barring trial of the second count.

The appellant was tried for the murder of Roger Pelfry in August, 1983. The jury was unable to reach a verdict. The circuit court then found that manifest necessity existed and declared a mistrial.

A second trial for the murder of Roger Pelfry commenced in January, 1984. Due to improper questioning of a witness for the State by defense counsel, the State moved for a mistrial. The State withdrew its motion for a mistrial and then renewed it. Again, opining that manifest necessity existed, the circuit court declared a mistrial.

A third trial for the murder of Roger Pelfry commenced in August, 1985. The appellant was found guilty of first degree murder, with a recommendation of mercy.

During the third trial, it was established that the Pelfry brothers were having a longstanding feud with a group known as the "Altizer boys."

It was also testified to at trial that initially the "Altizer boys" were suspects, but, because they were cleared through the use of polygraph tests, the State did not further pursue this theory. Officer Brooks and Officer Gill of the Huntington Police Department testified as to the results of these polygraph tests during the State's case-in-chief. Additionally, during its closing argument, the State mentioned that the "Altizer boys" were cleared by the use of polygraph tests. ²

The State also presented, by reading, the testimony of James Edward Stover, an acquaintance of the appellant, from the March, 1982 trial, in which the appellant was acquitted of the murder of Mark Pelfry. This testimony revealed a statement made by the appellant to Stover that the appellant shot the Pelfry brothers. Stover testified at the trial upon which this appeal is based that he did not remember testifying previously, and that he may have been drunk at the time he previously testified. The appellant did not object to this prior testimony being read.

The State also presented testimony of Deputy Michael A. Clark, who worked in the recreational yard at the Cabell County Jail. Deputy Clark testified that at one time, before the appellant's trial, he said to the appellant: "When it is all over with, if you don't care, tell me what really happened." The appellant's response to Deputy Clark was that he committed the murders. The circuit court held an in camera hearing and determined that the appellant's statements to Deputy Clark were made freely and voluntarily. The appellant objected to the admission of this evidence.

The State also presented the testimony of James Lovejoy. Lovejoy testified that the appellant admitted killing the Pelfry brothers.

Other witnesses for the State also testified to matters that were corroborated by each other's testimony, yet, contradicted by the testimony of the appellant, who took the stand.

II

The primary issue in this appeal is the appellant's contention that the State violated principles of collateral estoppel, as embodied in the fifth amendment's guarantee against double jeopardy, by trying the appellant for the murder of Roger Pelfry following the appellant's acquittal in the trial for the murder of Mark Pelfry.

The United States Supreme Court, in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), recognized that the principle of collateral estoppel is embodied in the fifth amendment's double jeopardy clause. The petitioner in Ashe was one of four defendants charged with the armed robbery of six men who were engaged in a game of poker. The petitioner was charged on six counts of armed robbery, one count for each victim. The petitioner was then tried for the armed robbery of one of the victims. The prosecution's case consisted of the testimony of four of the six victims, including the victim in the count for which the petitioner was tried. Two of these witnesses testified that there were only three robbers, not four, and these two witnesses could not even identify the petitioner Ashe. Another witness could only identify the petitioner by voice, and still another, only by size and actions. The weaknesses in the prosecution's case resulted in an acquittal. The jury found that the prosecution's evidence was insufficient. Thereafter, the petitioner was tried again, this time for the armed robbery of another victim. The witnesses in the second trial were mostly the same as those in the first trial, but their testimony on the issue of the petitioner's identity was substantially stronger. Moreover, the prosecution at the second trial did not call one of the witnesses from the first trial, whose testimony on the identity issue was very weak at the first trial. The jury in the second trial found the petitioner guilty. The petitioner sought habeas corpus relief, based upon a double jeopardy claim. The Supreme Court, in an opinion by Justice Stewart, held that because "[t]he single rationally conceivable issue in dispute before the jury was whether the petitioner had been one of the robbers," and "the jury by its verdict found that he had not" been one of the robbers, then collateral estoppel barred a subsequent prosecution. 397 U.S. at 445, 90 S.Ct. at 1195, 25 L.Ed.2d at 476. In reaching this conclusion, the Supreme Court stated:

'Collateral estoppel' is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. Although first developed in civil litigation, collateral estoppel has been an established rule of federal criminal law at least since this Court's decision more than 50 years ago in United States v. Oppenheimer, 242 U.S. 85 [, 37 S.Ct. 68, 61 L.Ed. 161 (1916) ]. As Mr. Justice Holmes put the matter in that case, 'It cannot be that the safeguards of the person, so often and so rightly mentioned with solemn reverence, are less than those that protect from a liability in debt.' 242 U.S., at 87 [, 37 S.Ct. at 69, 61 L.Ed. at 164]. As a rule of federal law, therefore, '[i]t is much too late to suggest that this principle is not fully applicable to a former judgment in a criminal case, either because of...