United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 66] AND DENYING AND DISMISSING
AMENDED PETITION WITH PREJUDICE [DKT. NO. 54]
M. KEELEY UNITED STATES DISTRICT JUDGE.
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.
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.
Criminal Trial and Direct Appeal
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. 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
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.
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. 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.
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
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.
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.
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).
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.
response to two additional jury questions concerning analysis
of O'Dell's statement, the Court explained as
. . . 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.
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.
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.