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Michael M. v. Terry

Supreme Court of West Virginia

January 5, 2018

Michael M., Petitioner Below, Petitioner
v.
Ralph Terry, Acting Warden, Mount Olive Correctional Complex,[1] Respondent Below, Respondent

         Preston County 15-C-188

          MEMORANDUM DECISION

         Petitioner Michael M., [2] by counsel Jeremy B. Cooper, appeals the Circuit Court of Preston County's "Opinion Order Denying Petition for Writ of Habeas Corpus" entered on November 29, 2016. Respondent David Ballard, Warden, Mount Olive Correctional Complex, by counsel Sarah B. Massey, filed a response.

         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.

         Following a trial in 2001, a jury convicted petitioner of one count of sexual assault in the first degree and five counts of sexual abuse by a parent, guardian, or custodian. The victim was petitioner's daughter, who was between ten and twelve years old at the time of the crimes. The victim, age fourteen at the time of the trial, testified that petitioner forced her to lie naked with him in his bed and touch his penis; digitally penetrated her vagina; put his mouth on her breasts; and put his mouth on her vagina. The circuit court sentenced petitioner to an effective term of incarceration of twenty-five to fifty-five years.

         The record reveals that the victim initially disclosed the sexual abuse to a friend, who told the victim's guidance counselor at her school. When confronted by the guidance counselor, the victim denied that the abuse occurred for fear that her parents would fight. However, the victim ultimately disclosed petitioner's conduct to her mother, who immediately reported the allegations to the Preston County Sheriff's Department. Corporal Kenneth Wotring reported to petitioner's residence the following evening and interviewed the victim. Also, petitioner's father was present, allegedly armed with a loaded handgun, threatening to kill petitioner.

         When petitioner arrived home, the officers explained that they were there because of the sexual abuse allegations and petitioner agreed to talk to Corporal Wotring. Petitioner waived his Miranda rights and gave a statement, in which he stated, in part, that he woke up with his daughter, who was naked from the waist down, sitting on his chest in a compromising sexual position; that he was tickling her, and it overcame her, which resulted in her sitting on his chest; that "[a]s far as holding her down, she has been naked a couple of times, I have been naked all of the time. I never intended it to be sexual at all. I held her down. I tickled her;" that he did not digitally penetrate her vagina, but that the victim told him he had done so while he was asleep; that the victim had also told him that he had placed his mouth on her vagina and breasts while he was asleep; that "there were two or three, four times that maybe it happened[;]" and that he ejaculated after one of the encounters with the victim. Corporal Wotring arrested petitioner shortly after petitioner gave his statement.

         Relevant to the instant appeal, petitioner moved to suppress his statement on the basis that it was involuntarily given. That is, petitioner claimed that his father was threatening to harm him, and Corporal Wotring promised to place petitioner in protective custody if he gave a statement. The circuit court denied petitioner's motion and allowed petitioner's statement to be played for the jury at trial. At trial, petitioner testified and claimed that his statement was "as close he could come [to the truth], " despite previously claiming that it was improperly coerced by Corporal Wotring. Petitioner also moved to suppress all evidence that was obtained during the warrantless search of petitioner's residence. The circuit court denied this motion, as well.

         Based solely on the testimony of Corporal Wotring, the grand jury returned a twenty-count indictment against petitioner. The first ten counts charged petitioner with first degree sexual assault and included the following language for each count:

That between the ___day of ___, 1997, and the 26th day of May 1999, in Preston County, West Virginia, [petitioner] committed the offense of "First Degree Sexual Assault" by unlawfully and feloniously subjected [the victim] to sexual intrusion or sexual intercourse, the said [victim] being eleven (11) years old or less, and the said [petitioner] being fourteen (14) years old or more, in violation of West Virginia Code § 61-8B-3, against the peace and dignity of the State.

Counts 11 through 20 charged petitioner with sexual abuse by a custodian and included the following language for each count:

That between the ___day of ___, 1997, and the 26th day of May 2000, in Preston County, West Virginia, [petitioner] committed the offense of "Sexual Abuse by a Custodian" by unlawfully and feloniously engaging in or attempting to engage in sexual intercourse or sexual contact with [the victim], a child who was under his care, custody and control, in violation of West Virginia Code § 61-8D-5, against the peace and dignity of the State.

         Petitioner moved to dismiss the indictment on the grounds that it was vague and did not adequately advise him as to the charges. The circuit court ruled that time was not of the essence with respect to the offenses charged, and, thus, refused to dismiss the indictment. However, following a hearing in March of 2001, the circuit court granted petitioner's motion for a bill of particulars with the caveat that the State was to "specify as best the [S]tate can the specific date, time, place, and manner in which the [S]tate contends the acts charged against [petitioner] were committed." The victim's mother initially refused to allow the State to interview the victim in order for the State to obtain the details necessary for the bill of particulars. When the State ultimately filed its bill of particulars in August of 2001, it contended that the twenty counts in the indictment stemmed from ten separate events or acts. Additionally, the State detailed five specific incidents that the victim was able to recall.

         At the conclusion of the State's case-in-chief, the circuit court partially granted petitioner's motion for judgment of acquittal, finding that the victim testified with specificity to only five incidents that occurred in Preston County. From those five incidents, the circuit court allowed only one count of first degree sexual assault to go to the jury because the victim was over the age of twelve for at least three of them, and one of the incidents did not involve sexual intercourse or sexual intrusion. The circuit court found that all five incidents warranted sending five counts of sexual abuse by a parent, guardian, or custodian to the jury. Therefore, the circuit court sent Counts 1, 11, 12, 13, 14, and 15 to the jury, and the jury returned a guilty verdict on each of those six counts. The court sentenced petitioner to an effective sentence of twenty-five to fifty-five years in prison. Petitioner filed a petition for appeal with this Court, which this Court refused by order on October 30, 2002.

         At petitioner's request, the circuit court appointed habeas counsel for petitioner in April of 2004. Habeas counsel filed the instant petition for a writ of habeas corpus in December of 2015. Petitioner raised the following grounds for habeas relief in his memorandum of law in support of his petition: (1) ineffective assistance of trial counsel; (2) defective indictment; (3) fraudulent grand jury testimony by Corporal Wotring; (4) prosecutor's improper reference to the transcript of petitioner's statement; (5) improper denial of petitioner's request for a continuance; (6) erroneous admission of petitioner's statement and evidence seized without consent; (7) biased presentence report; and (8) ...


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