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Horton v. Ballard

Supreme Court of West Virginia

October 20, 2017

Charlton A. Horton, Jr., Petitioner Below, Petitioner
v.
David Ballard, Warden, Mount Olive Correctional Complex, Respondent Below, Respondent

         Mineral County 06-C-75

          MEMORANDUM DECISION

         Petitioner Charlton A. Horton, Jr., by counsel Nicholas T. James, appeals the November 1, 2016, order of the Circuit Court of Mineral County that denied his amended petition for writ of habeas corpus subjiciendum following his conviction by a jury of first degree murder. Petitioner was sentenced to life in prison without the possibility of parole. David Ballard, Warden, Mount Olive Correctional Complex, by counsel Shannon Frederick Kiser, filed a response in support of the circuit court's order. Petitioner submitted a reply.

         This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         On October 4, 1995, petitioner was convicted by a jury in the Circuit Court of Mineral County of the first degree murder of Arthur Samuel Smith, Jr., who was beaten to death with a blunt instrument in the early morning hours of January 8, 1994, in Keyser, West Virginia.[1]Petitioner and his co-defendant were identified as the perpetrators by a witness who, from the upstairs window of his apartment, saw two black men in dark bulky coats striking something on the ground with a stick or club near a church. The witness called police who, when they arrived, discovered the victim's body. Petitioner and his co-defendant were spotted in the area near the crime scene and were picked up by police because they matched the eyewitness's description of the suspects.

         Police tested articles of clothing that were worn by petitioner and his co-defendant that night. Trooper H.B. Myers of the West Virginia State Police conducted serological testing on a piece of flesh that was found on the baseball cap that petitioner's co-defendant was wearing and it was found to have the same genotype as the victim. Serological testing by Myers on petitioner's jeans was inconclusive, but Brian Wraxall of the Serological Research Institute in California identified Polymerase Chain Reaction ("PCR") markers that were consistent with the victim's DNA from blood found on the jeans and that occur in approximately one in 6.25 million persons in the Caucasion population.[2]

         Petitioner's direct appeal was denied by this Court on June 22, 1998.[3] See n.1. On August 29, 2005, petitioner filed a pro se petition for writ of habeas corpus. Though counsel was appointed, no amended petition was filed. The circuit court denied petitioner's pro se request for habeas relief. This Court then refused petitioner's appeal of the same.

         On July 19, 2006, petitioner filed a second petition for writ of habeas corpus alleging that the DNA evidence presented at his murder trial proved that he did not kill the victim, and that Trooper Myers falsified evidence and presented false testimony about the serology and DNA test results. The circuit court entered an order appointing counsel to file an amended petition and ordered that "the Court will only consider the sole issue of whether evidence was falsely acquired or presented during the Petitioner's trial." See In re Renewed Investigation of State Police Crime Laboratory, Serology Division ("Zain III"), 219 W.Va. 408, 633 S.E.2d 762 (2006).

         On November 30, 2006, petitioner, by counsel, filed an amended habeas petition on the same grounds. On December 6, 2006, the State filed a response.[4]

         Meanwhile, petitioner, along with his co-defendant, filed a joint motion for DNA testing of petitioner's boots or pants and the co-defendant's cap, pursuant to West Virginia Code § 15-28-14. They argued that an independent DNA test had never been conducted in this case; that there was possible contamination of the serological evidence when it was done in 1994; that testing procedures may not have been appropriately followed when the testing was done; that Trooper Myers is alleged to have provided false serology evidence in another, unrelated criminal case; and that DNA testing is relevant to their claims that they are innocent of the crime for which they were convicted. The State filed a response opposing the request for DNA testing.

         A hearing was conducted on August 22, 2016, approximately ten years after petitioner filed his second request for habeas relief. Trooper Myers was the only witness. By order entered October 31, 2016, the circuit court denied petitioner's request for habeas relief and for DNA testing. This appeal followed.

         Our review of the circuit court's order denying petitioner's petition for a writ of habeas corpus is governed by the following standard:

"In reviewing challenges to the findings and conclusions of the circuit court in a habeas corpus action, we apply a three-prong standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard; the underlying factual findings under a clearly erroneous standard; and questions of law are subject to a de novo review." Syllabus point 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009).

         In his first assignment of error, petitioner argues that the circuit court erred in failing to grant him habeas relief. He contends that he demonstrated that Trooper Myers presented false serology evidence at trial and that he was entitled to a new trial. In syllabus point four of Zain III, this Court held as follows:

A prisoner against whom a West Virginia State Police Crime Laboratory serologist, other than Fred Zain, offered evidence and who challenges his or her conviction based on the serology evidence is to be granted a full habeas corpus hearing on the issue of the serology evidence. The prisoner is to be represented by counsel unless he or she knowingly and intelligently waives that right. The circuit court is to review the serology evidence presented by the prisoner with searching and painstaking scrutiny. At the close of the evidence, the circuit court is to draft a comprehensive order which includes detailed findings as to the truth or falsity of the serology evidence and if the evidence is found to be false, whether the prisoner has shown the necessity of a new trial based on the five factors set forth in the syllabus of State v. Frazier, 162 W.Va. 935, 253 S.E.2d 534 (1979).

219 W.Va. at 409, 633 S.E.2d at 763.[5]

         Petitioner argues that he satisfied the five factors set forth in Frazier such that his habeas request should have been granted and a new trial ordered. In the syllabus of Frazier, this Court held:

"A new trial will not be granted on the ground of newly-discovered evidence unless the case comes within the following rules: (1) The evidence must appear to have been discovered since the trial, and, from the affidavit of the new witness, what such evidence will be, or its absence satisfactorily explained. (2) It must appear from facts stated in his affidavit that plaintiff was diligent in ascertaining and securing his evidence, and that the new evidence is such that due diligence would not have secured it before the verdict. (3) Such evidence must be new and material, and not merely cumulative; and cumulative evidence is additional evidence of the same kind to the same point. (4) The evidence must be such as ought to produce an opposite result at a second trial on the merits. (5) And the new trial will ...

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