Submitted: April 4, 2017
from the Circuit Court of Cabell County The Honorable Alfred
E. Ferguson, Judge Criminal Case No. 08-F-113
D. Robertson, Esq. Weston Law Office Todd Meadows, Esq.
Meadows Law Office Huntington, West Virginia Counsel for the
Petitioner Valena Beety, Esq. Melissa Giggenbach, Esq. Eric
Haught, Rule 10 Student Attorney Morgantown, West Virginia
Counsel for Amici Curiae The West Virginia Innocence Project
Patrick Morrisey, Esq. Attorney General Elbert Lin, Esq.
Solicitor General Julie A. Warren, Esq. Assistant Attorney
General Charleston, West Virginia Counsel for the Respondent
BY THE COURT
"In reviewing challenges to findings and rulings made by
a circuit court, we apply a two-pronged deferential standard
of review. We review the rulings of the circuit court
concerning a new trial and its conclusion as to the existence
of reversible error under an abuse of discretion standard,
and we review the circuit court's underlying factual
findings under a clearly erroneous standard. Questions of law
are subject to a de novo review." Syllabus Point 3,
State v. Vance, 207 W.Va. 640, 535 S.E.2d 484
"There are three components of a constitutional due
process violation under Brady v. Maryland, 373 U.S.
83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and State v.
Hatfield, 169 W.Va. 191, 286 S.E.2d 402 (1982): (1) the
evidence at issue must be favorable to the defendant as
exculpatory or impeachment evidence; (2) the evidence must
have been suppressed by the State, either willfully or
inadvertently; and (3) the evidence must have been material,
i.e., it must have prejudiced the defense at
trial." Syllabus Point 2, State v. Youngblood,
221 W.Va. 20, 650 S.E.2d 119 (2007).
Quinton Peterson ("Defendant Peterson") appeals the
circuit court's November 20, 2015, amended order denying
his motion for a new trial. Defendant Peterson was convicted
of first-degree murder following a 2008 jury trial and was
sentenced to an incarceration term of life without
the circuit court entered its amended order denying his
motion for a new trial, Defendant Peterson filed the present
appeal, raising numerous assignments of error including: (1)
the circuit court erred in denying the defendant's motion
for a new trial based on the State s failure to turn over
exculpatory Brady evidence; (2) the State introduced
inadmissible hearsay evidence during the trial; and (3) the
prosecutor made a number of improper statements during
thorough review, we affirm the circuit court's order
denying Defendant Peterson's motion for a new trial.
AND PROCEDURAL BACKGROUND
November 11, 2007, twenty-eight-year old Phillip
"Slim" Simmons (hereinafter "victim") was
murdered in Huntington, West Virginia. Following an
investigation, Defendant Peterson, a twenty-five-year old
Columbus, Ohio, resident, was indicted on one count of
discussing the trial in detail, we note the State's
theory at trial was that Defendant Peterson murdered the
victim after losing approximately $500 to him over the course
of two dice games. The first dice game occurred three days
before the murder at the home of Erin Stolze. The second dice
game occurred on the night of the murder. Defendant Peterson
admitted that he and the victim were both dealing drugs and
playing dice together on the night of the murder in the
outdoor area where the victim's body was found. With this
general background in mind, we proceed to examine Defendant
State's first witness at trial was Antonio Smith. Mr.
Smith testified that he played dice with Defendant Peterson
and the victim at Erin Stolze's house three nights before
the murder occurred. Mr. Smith testified that Defendant
Peterson lost four or five hundred dollars during this dice
game. Mr. Smith stated that the victim was
"boisterous" and "bragging" after winning
the dice game. Defendant Peterson was upset, according to Mr.
Smith, and had a verbal confrontation with the victim. Mr.
Smith testified that as Defendant Peterson left the
residence, he said, "Damn, I wish I had my gun."
Also, Mr. Smith testified that on the day before the murder,
the victim told him that he and Defendant Peterson were going
to have a dice rematch the next day.
State also called Donovan Wade to testify. Mr. Wade testified
that he had previously dealt drugs with the victim and that
he routinely bought drugs from the victim. According to Mr.
Wade, he was planning to purchase drugs on the night of the
murder, and came upon the victim and Defendant Peterson in an
alley between two buildings in the Doulton Avenue area of
Huntington. Mr. Wade stated that the two men were
rolling dice in an alley and testified that the victim and
Defendant Peterson were the only people he saw in the alley.
Mr. Wade testified that the victim was winning the dice game
and that Defendant Peterson was losing. Mr. Wade explained
that he could tell Defendant Peterson was losing the dice
game because "[t]he person was losing is to keep putting
money down and the person that wins is picking up the
Wade testified that over the course of "forty-five
minutes to an hour" he made three trips to and from the
alley where Defendant Peterson and the victim were playing
dice and selling drugs. Mr. Wade explained that he made two
drug purchases from the victim and one from Defendant
Peterson during this time. Mr. Wade stated that he remained
in the general Doulton Avenue area after making his third
drug purchase. At some point after making his third drug
purchase, Mr. Wade observed Defendant Peterson approaching
the alley where he and the victim had been playing dice. Mr.
Wade testified that Defendant Peterson had two guns "in
his side or his pockets." He stated that one gun was
black and the other was chrome. Shortly after observing
Defendant Peterson returning to the alley where the victim
was, Mr. Wade stated that he "heard one gunshot. I took
off walking because I figured the police was going to end up
coming. . . . So I started walking down Seventeenth [Street]
towards Tenth Avenue. And I was walking slow and looking
back, and I seen him [Defendant Peterson] going across the
alley. . . . He ran right back across the way he came
James Kaplan was called by the State and testified that the
victim "suffered a fatal gunshot wound to his left
armpit. That bullet passed through both lungs and his heart
and caused fatal bleeding, which caused his death." Dr.
Kaplan testified that the estimated time of injury was 7:30
p.m. and the estimated time of death was 7:40 p.m.
night of the murder, a motorist driving down the alley near
the Doulton Avenue area noticed someone lying in the alley
and called the police. Huntington Police Officer Eric Corder
received a call at 8:02 or 8:03 p.m. and proceeded to the
area. Upon arriving in the area, Officer Corder found the
victim's body lying face up, with his pants pulled down
around the knee area. Corporal Stephen Compton, a Huntington
Police Officer serving in the forensic unit, arrived at the
crime scene at approximately 8:30 p.m. He testified that he
found dice in the crime scene area and one nine millimeter
State called Julie Eplion, a twenty-year-old woman who had
dated Defendant Peterson "on and off." Ms. Eplion
testified that on the night of the murder, Defendant Peterson
called her thirteen times between 7:58 p.m. and 8:16 p.m. Ms.
Eplion did not answer her phone because she was "hanging
out with friends." Defendant Peterson continued calling
until Ms. Eplion answered her phone at 9:06 p.m. In all,
Defendant Peterson called Ms. Eplion twenty-five times
between 7:58 p.m. and 9:06 p.m. Ms. Eplion stated that
Defendant Peterson wanted her to pick him up at a bowling
alley and take him to his Cousin Brandon Peterson's
house, which was located on Doulton Avenue. Upon arriving at
the bowling alley, Ms. Eplion testified that Defendant
Peterson was in his Cousin Brandon's car. He exited that
car and got into Ms. Eplion's car. Defendant Peterson
told Ms. Eplion that he did not want to go to his
cousin's house on Doulton Avenue. Ms. Eplion stated that
she told Defendant Peterson that there were a "bunch of
cops" around Doulton Avenue. She further testified,
"whenever I had told him that there were cops over there
and he was, like, 'I know there's cops over there.
Somebody has gotten shot over there.'" Ms. Eplion
testified that because Defendant Peterson was acting nervous
in the car she asked him what was wrong and "[h]e said
he couldn't - didn't want to tell me because he
didn't want me to judge him."
in the car, Defendant Peterson made a number of phone calls
to a woman in Columbus, Ohio. Ms. Eplion stated that Defendant
Peterson was giving the Columbus driver directions to
Huntington. The Columbus driver met Ms. Eplion and Defendant
Peterson in a McDonald's parking lot in Huntington at
approximately 11:30 p.m. that evening. Defendant Peterson
exited Ms. Eplion's car and got into the Columbus
driver's car. It was undisputed during the trial that the
Columbus driver picked Defendant Peterson up on the night of
the murder and immediately drove him to Columbus.
State called U.S. Marshal Craig Martin who testified that he
apprehended Defendant Peterson on December 3, 2007, in
Columbus, Ohio. Marshal Martin went to Defendant
Peterson's workplace in Columbus. Upon identifying himself as
a law enforcement officer, Marshal Martin testified that
Defendant Peterson ran from the building and was apprehended
in the parking lot of the business.
State also called Huntington Police Officer Rocky Johnson who
testified that he went to Defendant Peterson's house in
Columbus and seized various clothing and footwear from this
residence. The State next called Kevin McDowell, an employee
of the West Virginia State Police Crime Laboratory. Mr.
McDowell testified that one of the pairs of shoes seized from
Defendant Peterson's residence "could have made the
impression" of a shoeprint that was found at the murder
scene. Mr. McDowell was unable to say, however, that the shoe
recovered from Defendant Peterson's Columbus residence
was the exact shoe that left the impression at the crime
defense called two witnesses: Defendant Peterson and his
cousin, Brandon Peterson. Brandon Peterson testified that he
went bowling with Defendant Peterson on the night of the
murder. He testified that they left his residence, located on
Doulton Avenue, to go to the bowling alley "between 7:30
p.m. and 8:00 p.m."
Peterson testified next. He confirmed that he and the victim
had been involved in two dice games together. Regarding the
first dice game, Defendant Peterson agreed that he and the
victim and Antonio Smith had played dice at Erin Stolze's
house three nights before the murder. He disputed Mr.
Smith's testimony that he lost four to five hundred
dollars. Instead, Defendant Peterson testified that he won a
couple of dollars during this game, that he did not have a
verbal altercation with the victim, and that he did not make
the comment, "Damn, I wish I had my gun, "
following the dice game.
Peterson admitted that he and the victim played dice again on
the night of the murder. The dice game began with just the
two of them, according to Defendant Peterson, "as time
went on people were walking by and coming and, you know,
there was a lot of activity going on . . . because it's a
lot of activity in that alley as far as drug activity and
things like that." Defendant Peterson's lawyer then
asked what kind of drug activity was going on in the alley
and Defendant Peterson replied, "I mean, I was selling
drugs. . . . I was selling marijuana and I was selling crack.
. . . [The victim was] doing the same thing." Defendant
Peterson confirmed that State witness Donovan Wade was in the
alley on the evening of the murder buying drugs.
Peterson further testified during his direct examination that
at the time of the murder he was on parole following a number
of criminal convictions in Ohio. Defendant Peterson explained
his previous criminal convictions as follows:
I had been convicted of a misdemeanor - of a drug charge and
in Columbus - in Ohio if you be convicted of a drug charge, I
guess they can charge you - I guess it's a felony to have
a gun or something like that. . . . I just know I have been
convicted for weapons.
The first time I went to jail it was for weapons under
disability and tampering with evidence. The second time I
went to jail was for a parole - the parole violation for that
and carrying a concealed weapon. . . .
And then the next time I got arrested it was off - I was on
probation for those charges and then I violated the probation
and I had caught another gun charge. It was a gun in a car me
and my cousin was in and it was by his - my other cousin.
This is in Columbus anyways, and it was - it was close to me.
They charged me with it.
Peterson testified that the reason he fled Huntington on the
night of the murder was because he was on parole in Ohio and
was not allowed to be in West Virginia. He testified that he
first heard about the shooting while he was at the bowling
alley. Upon hearing that the victim had been shot, Defendant
Then my criminal wheel starts spinning, like, 'Hold up. I
cannot have -.'
Like, on parole - on parole I have - this instruction I have
is, like, fifteen or twenty rules you have to go back. And
like I said you have to notify your P.O. if you are going to
leave town. You have to random - I mean random drug tests.
You have to report on a week - or a scheduled date. A whole
list of rules. And also you cannot have any police
interaction, anything like that. So, I was just thinking,
like, 'Hold on. They might try and talk to me or
something.' You know what I'm saying? I can't be
down here. So, let me - you know what I'm saying?
But I - it was all - I wasn't trying - they trying to
make it seem like I left because I shot 'Slim' [the
victim]. I was already about - I was already planning to
leave. I was already planning to leave. My girl was already
going to be coming.
Peterson denied shooting the victim, testified that he was
not losing money in the dice game on the night of the murder,
and stated that he did not have a gun. When asked why he ran
from the U.S. Marshal at his Columbus workplace, Defendant
Peterson testified "I don't know. You know? I
don't even know why I ran."
cross-examination, Defendant Peterson admitted that he had
been convicted of seven felonies and that three of those
crimes involved weapons. Following Defendant Peterson's
testimony, the defense rested.
jury found Defendant Peterson guilty of first-degree murder
and did not recommend mercy. By order entered on August 1,
2008, the circuit court sentenced Defendant Peterson to an
incarceration term of life without mercy.
December 12, 2012, the circuit court held a hearing on a
motion for a new trial filed by Defendant Peterson. This
motion was based on "newly discovered evidence"
which the defense asserted was the State's failure to
disclose a statement Erin Stolze made to the police on the
day before the trial began. Erin Stolze owned the house where
the first dice game, that took place three days before the
of background, on the morning Defendant Peterson's trial
began, the following exchange was held between Defendant
Peterson's lawyer and the prosecutor:
Defense Counsel: I wanted to say that this was an open-file
case, an open-file agreement with the State and that the
State has done an exemplary job as far as I can tell of
providing us all the information. We have had three official
discovery conferences, and we had last night what I call an
unofficial one where they provided me more information,
including an updated criminal history of their witnesses and
a light criminal history of the defendant.
I needed to - we haven't asked about this. But the State
has ongoing duties under Youngblood and I wanted to
see if we couldn't get something here out of [the
prosecutor] about Youngblood.
Prosecutor: No, I disclosed things yesterday regarding the
new information from Antonio Smith and things going on at
Defense Counsel: And she is not being called as a witness?
Prosecutor: That's right.
Defense Counsel: We do know where she is. She was disclosed
to us and we agree that there is nothing there. I thought we
needed to clean that up. There is no exculpatory evidence
that you know of?
Defense Counsel: And you have sought that out?
Prosecutor: Oh, yes.
hearing on the motion for a new trial, the defense called
Erin Stolze to testify. Ms. Stolze testified that Huntington
Police Detective Cass McMillian interviewed her the day
before Defendant Peterson's trial began. She testified
that she told Detective McMillian that Defendant Peterson,
Antonio Smith, and the victim took part in a dice game at her
house. Ms. Stolze stated that she told Detective McMillian
that Defendant Peterson won one hundred dollars in the dice
game. Ms. Stolze testified that she did not witness the whole
dice game because she was upstairs giving her children a
bath. She said Detective McMillian asked her if there were
any guns or if any threats were made during the dice game and
she told him she did not see any guns or hear any threats.
During cross-examination, the State asked Ms. Stolze about
Defendant Peterson's alleged statement following the dice
game, "Damn, I wish I had my gun." Ms. Stolze
replied, "I mean, if that was said, that was said, but I
am just telling you . . . I did not hear it. . . . It
doesn't mean that it wasn't said. I didn't hear
McMillian also testified at this hearing. He testified that
he had interviewed Ms. Stolze before Defendant Peterson's
trial. While he could not recall the details of their
conversation, Detective McMillian stated:
I can tell you that if it would have been something
different, then it would have been written down and been
forwarded through my Prosecution Report to the Prosecuting
Attorney's Office. . . .
[T]he reason we were there [at Ms. Stolze's residence]
was based on Antonio Smith's statement. The statement
that was obtained that day [from Ms. Stolze], had it been
different from what we were told by Antonio Smith, would have
been recorded in writing and forwarded to the
circuit court denied Defendant Peterson's motion for a
new trial based on this "newly discovered
evidence." The circuit court concluded that "the
defense has not put forth persuasive evidence that there was
anything [Ms. Stolze] said to the police in her statement
that was substantially different than the other testimony at
trial or that would have altered the outcome of this
case." After the circuit court filed its November 20,
2015, amended order denying the defense's motion for a
new trial, Defendant Peterson filed the present appeal.