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Russell S. v. Terry

Supreme Court of West Virginia

April 6, 2018

Russell S., Petitioner Below, Petitioner
Ralph Terry, Acting Warden, Mt. Olive Correctional Complex, Respondent Below, Respondent

         Preston County 07-C-35


         Petitioner Russell S., by counsel Justin Gregory, appeals the Circuit Court of Preston County's December 6, 2016, order that denied his petition for a writ of habeas corpus. Ralph Terry, Acting Warden, Mt. Olive Correctional Complex, [1] by counsel Robert L. Hogan, 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 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 June 2, 1987, petitioner and his co-defendant were indicted on numerous counts related to the abduction and sexual assault of a fifteen-year-old girl. The victim was waiting for a friend at a gas station in Morgantown, West Virginia, when the pair drove up to her and asked if she needed a ride. When the victim declined, they drove away. The pair then drove back and one of the men jumped out of the car and pulled her in. The victim screamed and attempted to fight them off but petitioner had a gun and threatened to kill her. At about this time, the victim's friend arrived at the gas station and the victim screamed out to him for help. The pair drove the victim to an empty house in Preston County where petitioner sexually assaulted her four times. Meanwhile, based upon the friend's account of what he witnessed, the victim's mother filed an abducted persons report.

         The next day, petitioner and his co-defendant dropped the victim off about fifteen minutes away from her home where she was eventually discovered by a family friend. She was taken to a hospital for a medical examination. The examining physician found that the victim's hymenal ring had some small tears and was not intact, indicating that the victim had been newly penetrated. The physician found no evidence of semen or sperm. She used dry Q-Tip smears on the victim's cervix, vagina, rectum, and oral cavity, and took samples of her blood and saliva. The police collected the smears, a hospital sheet, and clothing the victim was wearing including her underwear, jacket, shoes, and jeans. After the victim led the police to the crime scene, they collected cigarette filters and four couch cushions from the abandoned house.

         During discovery, the State disclosed that former West Virginia State Trooper Fred Zain performed a forensic examination for blood and seminal fluid from evidence recovered during the investigation. In a June 2, 1987, report, Zain reported that although no seminal fluid or spermatozoa were identified from the specimens, he found "[s]tains from human blood . . . on the panties, two (2) cushions, hospital sheet, blue jeans and jacket." Thereafter, petitioner's blood sample was submitted for comparison purposes and tested. Zain noted in a September 15, 1987, report that genetic markers from the collected evidence "were consistent with genetic markers of [the victim] and not . . . [petitioner]."

         Petitioner's trial began on September 21, 1987. Although the victim testified that petitioner had ejaculated during the assault, Zain testified consistent with his report that no seminal fluid or spermatozoa was found on the sex crime evidence kit. He also explained that there were different reasons why sperm may not be present: (1) intercourse may not have occurred; (2) intercourse may have occurred but the male did not ejaculate; (3) a prophylactic may have been used; and (4) the sperm may have been flushed out of the vagina between the time of intercourse and testing. For his part, petitioner testified that he did not engage in any sexual activity with the victim.

         The jury found petitioner guilty of kidnapping, one count of first-degree sexual abuse, and four counts of first-degree sexual assault. The circuit court sentenced him to an effective sentence of life with mercy on the kidnapping charge and thirty to fifty years on the remaining charges.

         Petitioner filed a direct appeal of his conviction with this Court. The appeal was refused by order entered on June 20, 1998. Thereafter, petitioner filed three petitions for writ of habeas corpus, all of which were denied. Petitioner's appeals of the same were also denied.

         Petitioner, pro se, filed the present petition for writ of habeas corpus on February 14, 2007. Counsel was appointed and an amended petition was filed on April 3, 2009, alleging ineffective assistance of counsel. Petitioner also filed a motion for post-conviction DNA testing of the preserved evidence. See W.Va. Code § 15-2B-14.

         On May 13, 2009, respondent filed a motion to dismiss on the grounds of res judicata. A hearing thereon and on petitioner's motion for DNA testing was conducted on May 14, 2009. Petitioner thereafter filed a list of additional preserved items to be tested.

         In a September 23, 2010, opinion letter regarding respondent's motion to dismiss, the circuit court granted the motion with the exception of petitioner's claim for ineffective assistance of prior habeas counsel. The court also granted petitioner's motion for DNA testing and ordered that the evidence described in petitioner's list of additional items be subject to short tandem repeat (STR) DNA testing by a DNA Forensic Laboratory, and the results fully disclosed to all parties. The parties eventually entered into an Agreed Order for DNA Testing Protocol, which directed NMS Labs in Willow Grove, Pennsylvania, to perform the DNA analysis on the evidence.

         Thereafter, on August 18, 2014, petitioner filed a brief in support of this habeas petition in which he argued that trial counsel was ineffective in failing to request advanced DNA testing, which would have proven that a third party committed the alleged crimes, and in failing to recognize the importance of testimony by Trooper Zain and its impact on exculpatory evidence. Petitioner also argued that trial counsel was ineffective in failing to communicate to him a proposed plea offer that, in exchange for a guilty plea to sexual assault, would have effectively concluded his sentence in approximately thirty years.

         On October 16, 2014, the circuit court conducted an omnibus hearing on the present habeas petition, at which petitioner called his trial counsel as his only witness. Trial counsel, Edwin Runner, testified that, to the best of his recollection, the plea offer made by the State would have required petitioner to leave prison "in a pine box;" that he communicated to petitioner the legal ramifications and dangers involved in accepting the plea offer; and that he was unaware of a plea offer that would have subjected petitioner to incarceration for only thirty years. Following Mr. Runner's testimony, the circuit court continued the hearing and, after DNA testing and a resulting report were completed, a final omnibus hearing was scheduled for February 23, 2016. The court conducted a hearing at which the DNA testing report was submitted into evidence. The court subsequently advised all parties that it ...

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