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State v. Bailey

Supreme Court of West Virginia

January 5, 2018

State of West Virginia, Plaintiff Below, Respondent
v.
Donald Sidney Bailey, Defendant Below, Petitioner

         McDowell 15-F-124-S

          MEMORANDUM DECISION

         Petitioner Donald Sidney Bailey, by counsel David G. Thompson, appeals his conviction of two counts of first degree murder, one count of arson in the third degree, and one count of felony conspiracy. Respondent State of West Virginia, by counsel Gordon L. Mowen, II, responds in support of the circuit court's order.[1]

         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.

         In the early morning hours of October 19, 2014, a passerby came upon a pickup truck that was ablaze on the side of the road. Fire fighters arrived at the scene within minutes. Soon thereafter, law enforcement, crime scene investigators, and personnel from the State Fire Marshal's Office arrived to process the scene. There, they discovered the burned bodies of two men in the truck who were later identified as Clinton Mullins ("Mullins") and Brandon Church ("Church"). The investigators took photos of the scene and the victims' bodies, and found five spent shell casings near the burned truck.

         That same day, the investigators interviewed workers at nearby stores who claimed they saw a blue van in the area the day before. As the investigators stood along the roadway, a blue van passed them traveling in the direction of the burned truck. The investigators waved the van over. Inside the van were petitioner Donald Sidney Bailey; his wife, Sheila Bailey; and the couple's friend, April Justice. The police transported petitioner's wife to the police station where she waived her Miranda rights and gave a statement. Petitioner's wife stated that throughout the day and evening of October 18, 2014, six people (the "group"), including herself, her husband (petitioner), her two teenage daughters, and her friends Troy and April Justice, had been drinking alcohol at an area known as Orchard Branch.

         April Justice later testified to the events of October 18 and 19, 2014, as follows: On October 18, 2014, the group gathered at a local park to visit and drink. As it was getting dark, the group ran low on alcohol, so they rode in petitioner's blue van to a local convenience store to buy alcohol. Thereafter, they went to another convenience store to buy ice. At both stores, the group ran into Mullins and Church (or "the victims"), who decided to join the group. Mullins and Church, who were in Church's truck, followed the group to Orchard Branch, where the party resumed. The group, now including Mullins and Church, partied and drank together for a few hours. Everyone was "pretty well drunk." At some point, Troy Justice became angry and "red" and ripped off his shirt. Soon thereafter, the party broke up. The group of six left together in the blue van, followed by Mullins and Church in Church's truck. It was raining and the windshield wipers in the van were "messed up" so petitioner's wife, who was driving the van, pulled over and stopped on the side of the road. Mullins and Church, who were not far behind, pulled in behind the parked van. Troy Justice and petitioner got out of the van and walked back to the truck. She (April Justice) saw that petitioner was holding a gun behind his back. Mullins and Church remained in their truck. She did not hear any argument, but did hear gunshots. Petitioner and Troy Justice came back to the van and they drove to the Justices' trailer. There, the group discussed what to do next. Around 1:00 a.m. on the morning of October 19, 2014, the group drove back to the truck with a gasoline can. Petitioner and Troy Justice "hollered" at Mullins and Church, and asked if they were okay. There was no response. Petitioner and Troy Justice then "walked over there. Gas was threw [sic], a lighter was lit. The truck was on fire."

         On October 20, 2014, petitioner voluntarily went to the police department, waived his Miranda rights, and gave various statements regarding the events of October 18 and 19, 2014. Petitioner initially said Troy Justice shot the victims. However, in later recorded statements, petitioner claimed the following: While the group, Mullins, and Church were drinking at Orchard Branch, Troy Justice became angry when someone said something about his wife, April Justice. Troy Justice ripped off his shirt. The party then broke up. The group left in the blue van: Mullins and Church followed in Church's truck. The truck's lights were flashing at the van. Troy Justice got out of the van first and went back toward the truck. Petitioner and his wife also got out of the van. Mullins was yelling that he would "F--k whoever he wanted to f--k" apparently concerning petitioner's stepdaughters. Petitioner replied that Mullins could not "f--k his girls." Mullins, whose door was open, reached to get his gun. Troy Justice "hollered about a gun." Petitioner said he shot somewhere between Mullins's knees and the truck's floor to scare Mullins or to stop him from getting his gun. Petitioner did not remember shooting Church, who was not involved in the argument. Petitioner claimed he did not intend to kill anyone. Petitioner, his wife, and Troy Justice got back in the van. The group went to the Justices' trailer where Mr. Justice got a gas can. The group left the van there and drove back to the victims' truck in the Justices' Suburban. Troy Justice threw gasoline on the truck and then lit it on fire.

         On February 24, 2015, a McDowell County grand jury indicted petitioner, his wife, and Troy Justice for the first degree murder of Mullins, the first degree murder of Church, third degree arson, and conspiracy. The grand jury indicted petitioner's wife and Troy Justice on the same charges, plus one count of accessory after the fact of murder.

         Petitioner's five-day trial commenced on June 8, 2016. The State called thirty witnesses including the following:

A.S.[2], one of petitioner's minor stepdaughters, testified as follows: At Orchard Branch, Mullins fired a gun up in the air. Sometime later, Troy Justice became angry and the group decided to leave. The group drove away followed by Church and Mullins. The van pulled over and Church and Mullins pulled in behind them. From the van, she saw petitioner, who had a gun, walk over to the truck and started shooting at it. Afterwards, the group left, but they later returned and set the truck on fire.

         Dr. Allen Mock, the State's Chief Medical Examiner, testified by deposition that Church's death was caused by a gunshot wound to the chest, further complicated by thermal burns; and that the manner of death was ruled a homicide. Dr. Jimmie Smith, the State's First Deputy Chief Medical Examiner, testified that Mullins had been shot twice in the chest, that the trajectory of the shots indicated Mullins had been seated on the passenger side of the truck when he was shot, Mullins died of gunshot wounds to the chest, and the manner of death was ruled a homicide.

         During petitioner's case-in-chief, his counsel called three witnesses: First, forensic chemist Robert S. White opined as to petitioner's and the victims' states of intoxication.

         Second, forensic psychiatrist Pogos Voskanian, M.D. testified to a reasonable degree of medical certainty that petitioner was suffering from various conditions, including a severe alcohol use disorder, and that due to petitioner's degree of intoxication on the night of the shooting, he was incapable of acting with intent or premeditation and was suffering from diminished capacity.

         Finally, petitioner testified in his own defense. Petitioner's testimony mirrored his recorded statement to the police. However, he added the following: He had been drinking beer throughout the day and into the evening of October 18, 2014. He had known Mullins for years and they were good friends. He had known Church from the day Church was born. At Orchard Park, he was drinking beer, moonshine, and mixed drinks. At some point, Mullins got a gun out of his truck and fired it once or twice into the air. When Troy Justice ripped off his shirt, "[i]t went from being all friendly to going all bad." At the scene of the shooting, Troy Justice got out of the van first, petitioner's wife got out next, and then petitioner exited the van. Troy Justice walked to the passenger side of Church's truck where Mullins was sitting. The passenger side door was open and Troy Justice was standing near Mullins and arguing with him. Petitioner heard Troy Justice say, "Gun." He thought he saw a gun. He took ...


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