Jeffrey L. Finley, Petitioner Below, Petitioner
Ralph Terry, Acting Warden, Mt. Olive Correctional Complex, Respondent Below, Respondent
Jeffrey L. Finley, by counsel Eric Anderson, appeals the
Circuit Court of Cabell County's December 29, 2016, order
that denied his petition for a writ of habeas corpus.
Respondent Ralph Terry, Acting Warden, Mt. Olive Correctional
Complex, by counsel Benjamin F. Yancey, III, filed a response
in support of the circuit court's order.
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.
March 22, 1999, petitioner's neighbor,
ninety-two-year-old Mabel Hetzer, was found dead in her home.
The investigating officers noticed the victim's body to
be lying in an unnatural position on her bed. They also found
a suspected bite mark on her body and injuries that could
have been caused by a sexual assault. It was subsequently
determined that the victim was sexually assaulted both
vaginally and anally, that her back was broken, and that she
was strangled to death.
investigation into the victim's death ceased during the
summer of that same year. The swabs taken from the
victim's body were not processed and no efforts were made
to determine if any of the DNA material recovered matched any
person. Two and a half years later, a new supervisor at the
Huntington Police Department ordered that the investigation
into the victim's death be reopened. Police officials
examined a set of bed clothes at the scene with an
alternative light source device that was broken during the
initial investigation. A number of hairs that had previously
gone undetected were discovered.
during this two-and-a-half-year period, petitioner moved to
Wisconsin to live with his sister and find employment. On
March 21, 2002, after providing an affidavit to authorities
in Wisconsin, Huntington Police officers questioned
petitioner and obtained DNA samples from him. One of the
officers, Detective Michael Coffey, transported these samples
back to West Virginia and stored petitioner's blood
sample in an unlocked, unsecured refrigerator in his home
until March 25, 2002, at which time he gave the sample to
Forensic Officer David Castle. Officer Castle transported
blood/DNA samples from both petitioner and the victim to the
West Virginia State Police Laboratory on April 2, 2002.
H.B. Myers, a forensic scientist employed by the West
Virginia State Police received the materials for testing on
February 11, 2003. He prepared a report as a result of his
testing that indicated that there was dual DNA on the swab
provided by the police and that the primary genotypes (female
donor) were consistent with the DNA profile of the victim.
With regard to the other contributing DNA found on the swab,
Lt. Myers opined as follows:
The secondary genotypes identified from the swab of the bite
mark indicated the presence of a male donor based on the
amelogenin results. [Petitioner] cannot be excluded as a
possible contributor to the mixture of DNA identified from
the swab of the bite mark. The combined probability of
exclusion for the mixture results obtained from the swab of
the bite mark is 99.9999895%. Meaning that approximately 1 in
each 9.52 million randomly selected unrelated individuals
would be a potential contributor to this mixture.
16, 2003, petitioner was indicted on charges of first degree
murder and two counts of second degree sexual assault. The
guilt phase of the bifurcated trial commenced on September
20, 2004. Consistent with his written report, Lt. Myers
testified at trial that petitioner could not be excluded as a
potential donor of the secondary source of the DNA found on
the swab taken from the victim's body. Petitioner was
convicted of all charges. Upon recommendation by the jury,
the circuit court sentenced petitioner to life in prison
without the possibility of parole on the murder conviction.
The Court also sentenced petitioner to two consecutive terms
of ten to twenty-five years for both of the sexual assault
appealed his convictions to this Court. Based upon
petitioner's appearance before the jury during the
penalty phase, during which he wore identifiable orange
prison garb, this Court reversed petitioner's sentence
and remanded for a jury to determine the singular issue of
whether mercy was to be recommended in sentencing. See
State v. Finley, 219 W.Va. 747, 639 S.E.2d 839 (2006).
In all other respects, petitioner's convictions were
affirmed. Petitioner was subsequently resentenced to life,
with mercy, on the first degree murder conviction and, as
before, sentenced to two terms of ten to twenty-five years on
the second-degree sexual assault convictions. The sentences
were ordered to be served consecutively.
by counsel, filed an amended petition for a writ of habeas
corpus on July 23, 2014. A final omnibus hearing was held on
October 28, 2014. By order entered on December 29, 2016, the
circuit court denied petitioner's request for habeas
relief. This appeal followed.
review of the circuit court's order denying
petitioner's petition for a writ of habeas corpus is
governed by the following standard:
"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." Syllabus point 1, Mathena
v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).
Syl. Pt. 1, State ex rel. Franklin v. McBride, 226
W.Va. 375, 701 S.E.2d 97 (2009).
we address petitioner's argument that the circuit court
erred in failing to conclude that petitioner was deprived of
his constitutional right to be present at all critical stages
of the trial when the trial judge twice communicated off the
record with the jury while they were deliberating.
See U.S. Const. amend VI; W.Va. Const. art. 3,
§ 14; W.Va. Code § 62-3-2. The first communication
occurred after the jury requested, in writing, "a copy
of Officer John Franklin's statement." In the
presence of petitioner and the attorneys for both parties,
the judge read the request and placed it in the record. The
judge then advised that he intended to go into the jury room
to tell the jury "that they have everything that they
can have and they will have to use their best
recollection." The judge then asked if there was
"any objection to my doing that?" Petitioner's
counsel replied in the negative. Again, the judge inquired,
"Do I need to bring them out here and put them in the
jury box and do that?" Petitioner's counsel
reiterated that there was no objection. The judge then asked,
"Do I need to take my court reporter in to take down
what I say? I'll have the door open. You can
listen." Petitioner's counsel replied,
"That's fine." The judge proceeded to the jury
room to instruct the jury.
second communication between the judge and the jury occurred
later that afternoon and was precipitated by the late hour
and the imminent closure of the court house for the day.
According to the trial transcript, the judge stated:
It's 4:40 pm. The normal closing time for the courthouse
is 4:30. I intend to go into the jury room and ask them if
they're close and want to stay. I would be happy to keep
the staff here until about 5:00. But if they don't feel
like they are close, I intend to ask them to come back
tomorrow and begin their deliberations by 9:00.
[Defense counsel]: Yes, sir.
The Court: Any objection to my just going in
[Defense counsel]: Oh, no, sir.
The Court: Don't need to bring them out?
[Defense counsel]: We don't need a