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Harrison v. Ballard

Supreme Court of West Virginia

November 17, 2017

William J. Harrison, Defendant Below, Petitioner
v.
David Ballard, Warden, Mt. Olive Correctional Complex, Plaintiff Below, Respondent

         Webster County 13-P-9

          MEMORANDUM DECISION

         Petitioner William J. Harrison, by counsel Steven B. Nanners, appeals the January 20, 2016, order of the Circuit Court of Webster County that denied his petition for post-conviction habeas corpus relief. Respondent David Ballard, Warden, Mt. Olive Correctional Complex, by counsel Zachary Aaron Viglianco, filed a response in support of the circuit court's order.

         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 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 15, 1996, a SWAT team kicked down the door of petitioner's apartment and arrested him by force. Petitioner was charged with breaking and entering into the Department of Highways ("DOH's") garage in Webster County, and grand larceny of the DOH's Chevrolet Celebrity (the "state car"). State Police Sgt. Redis D. Hinkle read petitioner his Miranda rights and then transported petitioner to the Webster County magistrate court where he was arraigned. At the arraignment, petitioner claimed he was indigent and requested appointed counsel. Thereafter, the magistrate asked Sgt. Hinkle about the investigation into a missing person, eighteen-year-old Jennifer Lee Selman (the "victim"), within earshot of petitioner. Petitioner interjected that he wanted to talk to the police about the victim. The magistrate informed petitioner that he was not required to talk to the police and that he had the right to remain silent; the magistrate then repeated these admonitions.

         Thereafter, Sgt. Hinkle transported petitioner to the State Police barracks. There, Sgt. Hinkle read petitioner his Miranda rights and reviewed the "Interview/Miranda Rights Form" with him. Petitioner then signed the form. Thereafter, petitioner gave a series of recorded statements over a period of eight or nine hours. Petitioner initially denied any knowledge about the offenses with which he was charged. However, petitioner eventually admitted to entering the DOH garage and stealing a pair of brown work boots. He also admitted that he had driven the stolen state car. Later, petitioner confessed that he was in the state car when it collided with the victim's car and that others in the car placed the victim in the car's trunk. Finally, petitioner admitted that he remained in the state car after the others placed the victim into the trunk and drove to a refuse pond at a strip mine in Braxton County. There, the others killed the victim by drowning her in the pond. Petitioner stated that he had nothing to do with the victim's kidnapping or her murder, and that he left the scene soon after he and the others arrived at the pond. Thereafter, petitioner was charged with kidnapping and the first-degree murder of the victim.

         Also on October 15, 1996, the state police executed a search warrant for the apartment in which petitioner was residing that authorized the police to search for evidence of breaking and entering and grand larceny. The police seized a pair of brown work boots that were later identified as belonging to a state employee who kept the boots at the DOH garage in Webster County.

         Prior to trial, petitioner moved to suppress his statements to the police on the ground his right to counsel attached at his initial appearance and that he was questioned absent counsel. Petitioner also moved to sever the breaking and entering and larceny charges from the kidnapping and murder charges. Finally, petitioner moved for a change of venue. Following various hearings, the trial court denied petitioner's motion to suppress his statements to the police, and denied his motion for severed trials on the ground that joinder was mandatory under Rule 8 of the Rules of Criminal Procedure. However, the trial court granted petitioner's motion for a change of venue and moved petitioner's trial from Webster County to Gilmer County.

         Petitioner's trial commenced on June 16, 1997, and continued for nearly four weeks. Attorney David Karickhoff represented petitioner at trial. The evidence at trial revealed the following: On October 5 or 6, 1996, petitioner, or someone he was with, broke into the DOH's garage in Webster County. There, petitioner stole a pair of "Mickey Mouse" work boots. The state car was also stolen. Witnesses observed petitioner driving the state car in Webster, Nicholas, and Braxton counties on October 6, 1996. Petitioner showed one witness the state car and the contents of the state car's trunk, which included a pair of "Mickey Mouse" work boots. Late that same night, the victim left her job at Pizza Hut in Summersville. While driving toward her parent's home in Webster County, the victim's car and the stolen state car collided. The victim was placed into the state car and driven from the scene; however, the victim's purse remained in her car. Soon thereafter, the victim's abandoned car was found at the side of the road and the police were called. At about 6:00 a.m. on the morning of October 7, 1996, the state car was found ablaze near Cowan. On October 10, 1996, following an intensive police investigation, the victim's body was found submerged in a refuse pond in Braxton County. The victim's ankles and neck were wrapped with bootlaces that were attached to cinder blocks. The cinder blocks held the victim's body under the water. A pair of "Mickey Mouse" work boots were found near the pond, which were missing their laces. An autopsy revealed that the victim had drowned.

         On closing, petitioner's trial counsel conceded that petitioner was at the DOH garage when the state car was stolen and that, while there, petitioner took the pair of brown boots later found in his apartment; however, counsel claimed that another person, and not petitioner, broke into the garage. Petitioner's counsel also admitted that petitioner was in the state car when it collided with the victim's car, and that he remained in the state car on the way to the refuse pond where the victim's body was eventually found. However, petitioner's counsel claimed that petitioner had nothing to do with the kidnapping or murder, and that he ran from the scene as others killed the victim and left her body in the pond.

         On July 11, 1997, the jury found petitioner guilty on all four counts: first-degree murder, kidnapping, breaking and entering, and grand larceny. The jury did not recommend mercy on either the murder or kidnapping convictions. The trial court sentenced petitioner to life without the possibility of parole for the first degree murder conviction, life without the possibility of parole for the kidnapping conviction, one to ten years in prison for the breaking and entering conviction, and one to ten years in prison for the grand larceny conviction. The trial court ordered these sentences to run consecutively.

         On October 10, 1997, the trial court denied petitioner's motion for a judgment of acquittal or a new trial. Thereafter, petitioner's trial counsel filed a direct appeal on petitioner's behalf. The Court refused petitioner's appeal on November 10, 1998 (No. 981640).

         Petitioner filed a pro se petition for post-conviction habeas corpus relief in February of 2013. Thereafter, the habeas court appointed Steven Nanners as counsel. Mr. Nanners filed an amended habeas petition listing the following nine grounds for relief: (1) improper use of petitioner's statement in violation of his Sixth Amendment rights; (2) improper venue; (3) improper joinder of offenses at trial; (4) illegal or improper search warrant; (5) prosecutorial misconduct in referencing polygraph testing during closing argument; (6) improper "aider and abettor" jury instructions; (7) prejudicial pretrial publicity; (8) excessive sentence; and (9) mental competency or lack of criminal responsibility at the time of the crime/trial.

         The habeas court convened petitioner's omnibus evidentiary hearing on February 3, 2015. Petitioner called no witnesses. The State called then-retired Sgt. Hinkle and petitioner's trial counsel, David Karickhoff. Thereafter, by joint motion of the parties, the habeas court ordered petitioner to undergo a forensic examination to determine competency and criminal responsibility. Ralph S. Smith, Jr., M.D, found that petitioner did not lack criminal ...


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