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Patterson v. Terry

Supreme Court of West Virginia

November 21, 2018

Clarke Patterson, Petitioner Below, Petitioner
v.
Ralph Terry, Superintendent, Mt. Olive Correctional Complex, Respondent Below, Respondent

          Clay County 16-P-7

          MEMORANDUM DECISION

         Petitioner Clarke Patterson, by counsel Jeffrey A. Davis, appeals the March 14, 2017, order of the Circuit Court of Clay County denying his petition for writ of habeas corpus. Respondent Ralph Terry, [1] Superintendent, Mt. Olive Correctional Complex, by counsel Robert L. Hogan, filed a response in support of the circuit court's order and a supplemental appendix. On appeal, petitioner alleges that the circuit court erred in denying him habeas relief because his Fourth Amendment rights were violated by an illegal search and seizure, his conviction violated the prohibition against double jeopardy, and the trial court made prejudicial statements to the jury.

         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 jury trial in July of 2014, petitioner was convicted of one count of use of obscene matter with the intent to seduce a minor and one count of sexual abuse by a parent, guardian, custodian, or person in position of trust. These charges stemmed from two instances in which petitioner made sexual advances toward a thirteen-year-old girl living in the home. In December of 2014, the circuit court sentenced petitioner to five years of incarceration for his conviction of the use of obscene matter with the intent to seduce a minor and not less than ten nor more than twenty years for sexual abuse by a parent, guardian, custodian, or person in position of trust. Petitioner filed a direct appeal and this Court affirmed his conviction by memorandum decision. See State v. Patterson, No. 15-0110, 2016 WL 1417819 (W.Va. April 8, 2016)(memorandum decision).

         Petitioner's counsel filed a petition for writ of habeas corpus in the circuit court on May 13, 2016. During a status hearing in October of 2016, petitioner appeared, with counsel, and waived an omnibus evidentiary hearing, electing instead for the circuit court to decide the matter on the filings and record presented. Of relevance to the instant appeal, petitioner argued that his Fourth Amendment rights were violated due to an illegal search and seizure of his cell phone, that his Fifth Amendment rights were violated because his multiple convictions for a single act constitute double jeopardy, and that his due process and equal protection rights were violated by prejudicial and biased statements made by the trial court to the jury.

         Thereafter, the circuit court denied petitioner's habeas petition. In its order, the court determined that petitioner's Fourth Amendment rights were not violated due to an illegal search and seizure of his cell phone because the evidence was not introduced at trial. The court further found that petitioner's convictions did not constitute a violation of the prohibition against double jeopardy. The court relied on the test set forth in Blockburger v. United States, 284 U.S. 299, 304 (1932), which provides that where the same act or transaction constitutes a violation of two separate statutory provisions, the test to be applied is whether each statute requires proof of an additional fact that the other does not. Because the statutes under which petitioner was convicted require separate elements of proof, the circuit court found that there was no violation of the double jeopardy clause. With respect to the allegation of due process and equal protection rights violations due to prejudicial and biased statements made by the trial court in curative instructions to the jury, the circuit court found none of the instructions of which petitioner complained were so prejudicial that petitioner should be granted a mistrial. Ultimately, the circuit court entered its order denying and dismissing petitioner's habeas petition on March 14, 2017. It is from this order that petitioner appeals.

         This Court reviews appeals of circuit court orders denying habeas corpus relief under 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).

         Petitioner raises three assignments of error on appeal. First, petitioner argues that he is entitled to habeas relief because the state presented illegally obtained photographs from his cell phone to the grand jury. Alleging these photographs were illegally obtained, petitioner asserts that anything that flows from the presentation of those photographs to the jury is tainted, including the indictment. Petitioner acknowledges that "absent a showing of fraud, an examination of the evidence presented to the grand jury would not be in the interests of efficient administration of justice." Barker v. Fox, 160 W.Va. 749, 751, 238 S.E.2d 235, 235 (1977). However, petitioner asserts that in this case, fraud occurred by a presentation of evidence obtained from an illegal search and seizure; therefore, examination of the evidence is warranted.

         In addressing this first assignment of error, we note that the function of a grand jury is to hear the sworn testimony of witnesses and determine if enough evidence exists for an indictment. Bracy v. United States, 435 U.S. 1301, 1302 (1978). As the circuit court found, petitioner simply asserted, without any evidence, that "his cell phone was submitted to the grand jury for their consideration . . ." Further, the circuit court correctly found that "such an assertion is wholly inconsistent with how a grand jury functions regarding presentation of evidence and deliberations…". As such, there has been no evidence presented that the photographs were ever shown to the grand jury. Second, the circuit court found that the evidence obtained from petitioner's cell phone was not presented as evidence in his trial. As there is no indication that the photographs obtained from petitioner's cell phone were ever considered in evidence against him, his assertion that his indictment, and by extension his convictions, were obtained by fraud is without merit.

         Petitioner's second assignment of error, that his convictions constitute a violation of the prohibition against double jeopardy, is also without merit. Petitioner asserts, per Blockburger, 284 U.S. at 304, that the crimes for which he was convicted contain the same elements and that only Count II of the indictment, alleging a violation of West Virginia Code § 61-8A-4, includes an additional element. Therefore, he argues, his Fifth Amendment rights have been violated. We do not agree.

         This Court has determined that

[t]he Double Jeopardy Clause of the Fifth Amendment to the United States Constitution consists of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after ...

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