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Talbert v. Yardley

Supreme Court of West Virginia

February 2, 2018

Thomas Talbert, Petitioner Below, Petitioner
Lance Yardley, Warden, Pruntytown Correctional Center, Respondent Below, Respondent

         Cabell County 17-C-133


         Petitioner Thomas Talbert, pro se, appeals the March 8, 2017, order of the Circuit Court of Cabell County denying his instant petition for a writ of habeas corpus. Respondent Lance Yardley, Warden, Pruntytown Correctional Center, [1] by counsel Gordon L. Mowen, II, filed a response in support of the circuit court's order. Petitioner filed a reply.

         The 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.

         Petitioner has multiple convictions for driving under the influence ("DUI"), third offense. The most recent conviction occurred in 2006. At trial, Sergeant J.E. Combs of the Huntington Police Department ("police department") testified that he and Corporal K.A. Lake responded to a report of a motor vehicle accident that occurred at approximately 8:30 p.m. on September 10, 2005. Sergeant Combs explained that, because the 911 dispatcher had to call back with the correct location, the officers arrived at the scene approximately fifteen to twenty minutes after the accident was reported. Once at the scene, a witness identified petitioner as the driver of a Ford pickup truck ("truck") that was parked on the side of the street. When petitioner attempted to pull out into the street, his truck rear-ended a Ford Expedition ("Expedition") that was parked in front of it. Sergeant Combs observed that the truck was "nose up against" the Expedition and "askew with [its] rear[-]end out in the-on 8th Avenue." Sergeant Combs further testified that, while Corporal Lake initially inspected the vehicles for damage, he approached petitioner who was staggering near the truck. Petitioner had bloodshot eyes, exhibited slurred speech, and "reeked of alcohol." Sergeant Combs was unable to administer field sobriety tests because petitioner was "staggering and falling all over the place." Consequently, Sergeant Combs testified that he arrested petitioner and took him to the police station for processing. Meanwhile, a third officer, Sergeant D.M. Underwood, arrived at the scene to do the crash report on the two vehicles.

         During cross-examination, petitioner's trial attorney asked Sergeant Combs whether petitioner informed him that petitioner was not the driver of the truck. Sergeant Combs answered, "No, sir." Sergeant Combs explained that he did not have an extended conversation with petitioner because his slurred speech "was very hard to understand." Following Sergeant Combs's testimony, the State called the witness who identified petitioner as the driver of the truck. The witness confirmed her identification of petitioner. The jury convicted petitioner of DUI, third offense.

         Given petitioner's prior felony convictions, [2] the State filed a recidivist information against petitioner pursuant to the West Virginia habitual criminal statute, West Virginia Code §§ 61-11-18 and 61-11-19. Following a second trial, a separate jury convicted petitioner of being a habitual criminal. Consequently, the circuit court sentenced petitioner to a life term of incarceration with the possibility of parole. Petitioner subsequently challenged the legality of his recidivist life sentence in a motion for correction of illegal sentence pursuant to Rule 35(a) of the West Virginia Rules of Criminal Procedure. The circuit court denied the Rule 35(a) motion by order entered on July 6, 2010. In State v. Talbert ("Talbert I"), No. 101502 (W.Va. April 18, 2011) (memorandum decision), this Court affirmed the circuit court's July 6, 2010, order.

         In 2007, petitioner filed a petition for a writ of habeas corpus in the circuit court. The habeas proceeding was protracted with several attorneys being appointed to represent petitioner and two hearings being held on his petition. By order entered on June 14, 2012, the circuit court denied petitioner's habeas petition. Petitioner appealed the circuit court's June 14, 2012, order in Talbert v. Ballard ("Talbert II"), No. 12-0798, 2013 WL 3242783 (W.Va. June 28, 2013) (memorandum decision). In affirming the denial of habeas relief, this Court rejected petitioner's contention that a third hearing should be held on the petition, finding that there was "no reason for another hearing before the circuit court." Id. at *1.

         On February 28, 2017, petitioner filed the instant petition for a writ of habeas corpus in the circuit court based on newly discovered evidence. According to the petition, in January and February of 2017, the City of Huntington responded to Freedom of Information Act requests by sending petitioner the various police reports filed by Sergeant Combs, Corporal Lake, and Sergeant Underwood in his criminal case. Petitioner contended that these reports were inconsistent with each other. Consequently, petitioner argues that the police reports were exculpatory in nature and provided impeachment material. By order entered on March 8, 2017, the circuit court rejected petitioner's contention that the State suppressed the reports in his criminal case, finding that "[a]ll of those arrest reports were made available through the discovery process." Accordingly, the circuit court denied the petition.

         Petitioner now appeals the circuit court's March 8, 2017, order denying his instant habeas petition. We apply the following standard of review in habeas appeals:

"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." Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

Syl. Pt. 1, Anstey v. Ballard, 237 W.Va. 411, 787 S.E.2d 864 (2016). "A prior omnibus habeas corpus hearing is res judicata as to all matters raised and as to all matters known or which with reasonable diligence could have been known; however, an applicant may still petition the court on the following grounds: . . . newly discovered evidence . . . ." Syl. Pt. 4, in part, Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981).

         On appeal, petitioner contends that the police reports he obtained in 2017 were suppressed by the State. Respondent counters that the circuit court properly rejected petitioner's contention that the State suppressed the police reports. We agree with respondent. In syllabus point 2 of State v. Youngblood, 221 W.Va. 20, 650 S.E.2d 119 (2007), we held as follows:

There are three components of a constitutional due process violation under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and State v. Hatfield, 169 W.Va. 191, 286 S.E.2d 402 (1982): (1) the evidence at issue must be favorable to the defendant as exculpatory or impeachment evidence; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) the evidence must have been material, i.e., it must have prejudiced the defense at trial.

         Petitioner concedes that his trial attorneys filed a motion for production of discovery and that the State responded by filing an answer. In that answer, the State noted that the police department may have "documents, which might be material to the defense and may be used by the State as evidence in chief at trial or was obtained from [petitioner, ] which items you may view by contacting [Sergeant] Combs." Accordingly, we conclude that the circuit court did not err in finding that the police reports "were made ...

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