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O'Dell v. Plumley

United States District Court, N.D. West Virginia

July 11, 2017

TIMOTHY O'DELL, Petitioner,
v.
MARVIN PLUMLEY, Respondent.

          MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 66] AND DENYING AND DISMISSING AMENDED PETITION WITH PREJUDICE [DKT. NO. 54]

          IRENE M. KEELEY UNITED STATES DISTRICT JUDGE.

         Now pending is the amended petition for habeas corpus pursuant to 28 U.S.C. § 2254 (“Amended Petition”) filed by the petitioner, Timothy O'Dell (“O'Dell”) (Dkt. No. 54). In 2006, O'Dell was convicted of first-degree murder in the Circuit Court of Berkeley County, West Virginia (“Circuit Court”), after giving a statement to investigators in which he confessed his involvement. He now contends that jury instructions regarding the voluntariness of his confession violated his Fifth and Fourteenth Amendment rights.

         Because no clearly established federal law requires West Virginia to submit this question to the jury, the Court concludes that O'Dell is not entitled to relief. It thus DENIES and DISMISSES WITH PREJUDICE the Amended Petition.

         I. BACKGROUND

         A. Criminal Trial and Direct Appeal

         On August 24, 2005, while conducting a welfare check, members of the Berkeley County Sheriff's Department found Debbie Bivens (“Bivens”) shot dead on her bedroom floor.[1] Although Bivens's home was locked, the bedroom window had been broken from the outside. Next to Bivens's body, Deputy Cpl. Brendan Hall located a .380 caliber handgun and a .40 caliber shell casing. Officers immediately identified Benny Brookman (“Brookman”), Bivens's former paramour, as a prime suspect.

         The next day, Ramsey Turner (“Turner”), an acquaintance of O'Dell, read about Bivens's death in the local newspaper and decided to contact the Sheriff's Department. After confirming that Bivens had been shot with a .40 caliber handgun, Turner informed investigators that O'Dell had shown him such a weapon loaded with hollow point bullets several days before Bivens's death. According to Turner, O'Dell had shown him the gun after Turner declined his offer to make $10, 000 by picking him up at a particular location on Route 51 and taking him home at 3:15 a.m. that Monday morning.

         The information that Turner provided made O'Dell a prime suspect, and Deputy K.C. Bohrer went to his place of employment that same day. O'Dell arrived at work almost simultaneously, and Deputy Bohrer initiated a traffic stop. After removing both occupants from the vehicle, Deputy Bohrer handcuffed and searched O'Dell before releasing him and advising him of his rights. O'Dell then voluntarily agreed to accompany deputies to the station for an interview. Upon arrival, O'Dell executed a written waiver of his Miranda rights and proceeded to make a videotaped statement implicating himself as an accomplice in Bivens's murder.[2] More particularly, O'Dell admitted that Brookman hired him to drive an unknown person to Bivens's house and break out her bedroom window. He adamantly denied actually shooting Bivens, blaming the murder on the unknown individual. Following the interview, investigators arrested O'Dell for first-degree murder.

         On August 31, 2005, police found Brookman's decomposing body shot and hanging from a tree stand in Maryland. Nearby, police found his locked truck, which contained a handwritten suicide note, including the following:

yea I was Going to pay Timmy Odell to kill Debbie for 50.000 Gave him $8.000 still owed him $42.000 he called me wed August 24, 2005 said Job was Done . . . Timmy Odell aslo vandalized Her cars 2 years ago for $2000

         On February 21, 2006, a grand jury in Berkeley County, West Virginia, indicted O'Dell for first-degree murder and conspiracy to commit murder. The Circuit Court held several pretrial hearings to address the admissibility of O'Dell's statement and Brookman's suicide note, both of which it ultimately found admissible.

         At a hearing before the Circuit Court on September 15, 2006, O'Dell's counsel challenged the “emotional or psychological” pressures of O'Dell's interview, even though he conceded, “I don't think that my client's will was ever overborn[e]” (Dkt. No. 58-25 at 7-8). After eliciting testimony from Deputy Bohrer, defense counsel stated, “Judge, I don't have a leg to stand on after that testimony. No one is going to find more important--no appellate court is going to find, I don't believe, this wasn't a voluntary statement.” Id. at 22. He further acknowledged that the investigators had done nothing to “overcome [O'Dell's] earnest resistence” or to promise leniency, but he nonetheless asked the Circuit Court to review some portions of the interview transcript. Id. at 23. After a recess during which it reviewed the transcript, the Circuit Court concluded, “I don't see where there's any action on behalf of the State which is such that would overcome someone's earnest resistance so as not to give a statement or pulls someone to give a statement against their will.” It thus ruled that O'Dell's statement was voluntary and admitted it. Id. at 38.

         The case proceeded to trial on September 26, 2006. When the Circuit Court charged the jury at the start of the third day, September 28, 2006, it included the following instruction:

The Court instructs the jury that under the law of this state the confession or statement against interest offered in evidence by the State may be considered by the jury in determining the guilt or innocence of the defendant of the crime charged in this case only if the jury believes that the State has proved by a preponderance of the evidence that such statement was freely and voluntarily made without threat, coercion, promise or reward, and that if you do not believe that the State has met this burden of proof, it is your duty to disregard such statement entirely.

(Dkt. No. 58-29 at 12-13).

         During deliberations, this topic prompted several questions from the jury. The jury first asked, “when the defendant signed an agreement to the free and voluntary statement prior to the actual interrogation, at what point does the coercion invalidate the statement?” Id. at 77. The Circuit Court answered this question as follows:

Please be seated. Ladies and gentlemen of the jury, I've received your question and I think the best way I can answer that is to say that any portions of the statement that you find were not freely and voluntarily made without threat, coercion, promise or reward may not be considered by you. Remember that it's the burden of the State to prove by a preponderance of the evidence which is a lesser standard than reasonable doubt, it's more likely than not, has to be proved. State bears the burden of proving to you that the statement or any portions thereof were made freely and voluntarily without threat, coercion, promise or reward and that burden is by a preponderance of the evidence. So anything that you find in that statement that you feel was not made freely and voluntarily without threat, coercion, promise, or reward you must not consider.
Clear it up any? Okay, if I get one head nodding yes, that's good. You have to go back and discuss it all. It seems as if the question is asking when or if and does it knock out the whole statement or not and things like that, and the statement should be taken as a series of statements and any portion thereof that you find was not the product of freely and voluntarily made without threat, coercion, promise, or reward then you must not consider that. Got it? I will send you all back.

Id. at 85.

         In response to two additional jury questions concerning analysis of O'Dell's statement, the Court explained as follows:

. . . Any portions of the statement that have not been proved beyond a reasonable doubt to your satisfaction were made freely and voluntarily you must disregard. Do you understand what I'm doing? I kind of have to flip it because the defendant does not have to prove that they were made freely and voluntarily. . . . The State has to prove by a preponderance of the evidence that the statements were made freely and voluntarily. So any portion that you do not find that were not proved to your satisfaction by a preponderance of the evidence were made freely and voluntarily[, ] you must disregard. . . . . . .
If you find any of those statements whether it relates back or not, if you find that they were not freely and voluntarily given then you must not consider it, or conversely, since I have to make sure that there's no burden on the defendant to prove that they were freely and voluntarily or not freely and voluntarily given, the burden is on the State to prove that they were freely and voluntarily given, but any statement before or after as it goes through of any issue is a factual determination as to whether or not they were freely and voluntarily given, and if you determine that any portion of that statement was not freely and voluntarily given then you must disregard it. And I understand your question, I really can't answer it because it is a factual determination that you have to make as to whether or not a subsequent statement was freely and voluntarily given or not.

Id. at 88-95.

         Later on September 28, 2006, the jury returned its verdict, finding O'Dell guilty of both first-degree murder and conspiracy to commit murder, but recommending mercy. On November 8, 2006, the Circuit Court denied O'Dell's post-trial motions and sentenced him to consecutive terms of imprisonment for life - with parole eligibility after 15 years - and 1 to 5 years.

         Thereafter, on September 17, 2008, the Circuit Court re-sentenced O'Dell so that he could file a petition for appeal (Dkt. No. 58-1). On appeal, O'Dell argued: 1) the Circuit Court had erred by refusing to suppress his statement and instructing the jury that they could consider some portions of his statement even if they found others to be involuntary; 2) the Circuit Court had erred by admitting Brookman's suicide note; 3) the state had failed to disclose the results of testing on gunshot residue samples; and 4) the evidence was insufficient to support a conviction (Dkt. No. 58-3 at 38-39). On October 28, 2009, the Supreme Court of Appeals of West Virginia (“Supreme Court of Appeals”) summarily refused O'Dell's petition for appeal (Dkt. No. 58-5).

         B. ...


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