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State v. Peterson

Supreme Court of West Virginia

April 20, 2017


          Submitted: April 4, 2017

         Appeal from the Circuit Court of Cabell County The Honorable Alfred E. Ferguson, Judge Criminal Case No. 08-F-113

          Connor 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


         1. "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 (2000).

         2. "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).


         Petitioner 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 mercy.[1]

         After 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[2] evidence; (2) the State introduced inadmissible hearsay evidence during the trial; and (3) the prosecutor made a number of improper statements during closing argument.

         After thorough review, we affirm the circuit court's order denying Defendant Peterson's motion for a new trial.



         On 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 first-degree murder.

         Before 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 Peterson's trial.

         The 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.

         The 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.[3] 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 money."

         Mr. 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 from."[4]

         Dr. 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.

         On the 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.[5] 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 shell casing.

         The 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."

         While in the car, Defendant Peterson made a number of phone calls to a woman in Columbus, Ohio.[6] 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.

         The 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.[7] 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.

         The 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 scene.

         The 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."

         Defendant 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.

         Defendant 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.

         Defendant 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.

         Defendant 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 Peterson stated:

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.

         Defendant 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."

         During 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.

         The 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.

         On 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 murder, occurred.

         By way 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 Erin's -
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?
Prosecutor: No.
Defense Counsel: And you have sought that out?
Prosecutor: Oh, yes.

         At the 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 it."

         Detective 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 Prosecutor's Office.

         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.


         STANDARD ...

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