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Friedrichs v. Terry

Supreme Court of West Virginia

November 21, 2018

Edgar W. Friedrichs, Jr., Petitioner Below, Petitioner
v.
Ralph Terry, Superintendent, Mt. Olive Correctional Complex, Respondent Below, Respondent

          Fayette County 11-C-163

          MEMORANDUM DECISION

         Petitioner Edgar W. Friedrichs, Jr., by counsel Jason D. Parmer, appeals the Circuit Court of Fayette County's March 27, 2017, order denying his petition for writ of habeas corpus following his conviction by a jury of first-degree murder and death of a child by a custodian. Ralph Terry, Superintendent, Mount Olive Correctional Complex, by counsel Julianne Wisman, filed a response in support of the circuit court's order.[1] Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in denying him habeas relief because the State failed to comply with the mandatory joinder rule contained in Rule 8 of the West Virginia Rules of Criminal Procedure when he was indicted in the underlying criminal proceeding.

         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.

         In March of 2003, petitioner was indicted on one count of first-degree murder and one count of death of a child by a custodian. Both crimes were related to the death of twelve-year-old J.B.[2] Petitioner was J.B.'s elementary school principal and developed a relationship with him in that capacity, which included taking the child on trips to his cabin on the New River. In November of 1997, J.B. and his friend, M.P., accompanied petitioner on an overnight trip to his cabin. Later testimony from M.P. established that petitioner played a game with the boys whereby he directed them to drink juice he prepared for them as quickly as they could. According to M.P., the juice had a chalky, bitter aftertaste. M.P. testified that petitioner gave J.B. an unidentified pill. M.P. also testified that, as he was falling asleep that night, he saw petitioner, after removing his pants, walk into the room where J.B. was sleeping and then heard petitioner and J.B. talking. M.P. said that the next morning, petitioner woke him because J.B. had vomited and was unresponsive. According to M.P., petitioner instructed him to find a telephone to call for help. Ultimately, J.B. died.

         Initial examinations, including an autopsy by the West Virginia Chief Medical Examiner, concluded that J.B.'s death was suspicious based upon the presence of amitriptyline[3] in J.B.'s vomit and blood, among other evidence. However, investigators were unable to determine how J.B. ingested the drug, as neither the victim nor any member of his family had a prescription for it. Additionally, investigators reviewed petitioner's insurance records and found no prescription for the drug. Investigators did find a partially-wet cardboard box in the New River near petitioner's cabin on the night of the murder with markings on the side indicating the contents were toxic. However, as the autopsy did not indicate that J.B. had been poisoned, the box was not investigated further. As a result of the lack of evidence indicating that J.B.'s death was a murder, the State had no associated charges to present to a grand jury.

         In 2001, petitioner was indicted for sexually abusing two other teenage boys, including the witness to J.B.'s death, M.P. Following a jury trial, petitioner was convicted of one count of first-degree sexual abuse and three counts of sexual abuse by a custodian in January of 2002.

         In 2002, a new sheriff was elected in Fayette County who had prior experience as an investigator and "aggressively reopened and personally led" a renewed investigation into J.B.'s death beginning in March of 2002. It wasn't until the renewed investigation that it was discovered that the cardboard box found in the river near petitioner's cabin on the night of the murder contained a packing slip for chloroform. The investigation then located invoices showing that petitioner purchased several liters of chloroform that had been shipped in the cardboard box. Additionally, more detailed examination of J.B.'s boxer shorts revealed the presence of semen. Further testing indicated that a stain on J.B.'s boxer shorts contained a mixture of two individuals' DNA. Comparing the DNA to that of petitioner, J.B., and M.P., investigators were able to conclude that M.P. could be excluded from the DNA present on the boxer shorts. Further, the investigator who conducted the DNA testing testified that "[Petitioner's DNA] is present in that stain, or [that she] could not exclude [petitioner] from being in that stain. . . ." Further, the investigator testified that the chances of someone other than petitioner or J.B. contributing to the stain were 1 in 350, 000. Additionally, J.B.'s autopsy was revisited and the presence of chloroform was found in his blood. Ultimately, this renewed investigation into J.B.'s death resulted in petitioner's indictment in May of 2003 for one count of first-degree murder and one count of death of a child by a custodian.

         In June of 2003, petitioner filed a motion to dismiss the indictment for violation of Rule 8(a)(2) of the West Virginia Rules of Criminal Procedure, which requires mandatory joinder of charges that are "based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan. . . ." According to petitioner, these crimes were related to a common scheme or plan of crimes as set forth in the 2001 indictment. In November of 2004, the circuit court held a hearing on petitioner's motion to dismiss. The circuit court found that, at the time the indictment was issued in petitioner's prior criminal case, the prosecutor did not have sufficient knowledge, evidence, or other information concerning the victim's death to proceed before a grand jury. As such, the circuit court found that the allegations contained in the later indictment were not a part of any common scheme or plan in relation to the earlier crimes.

         Petitioner's jury trial commenced in July of 2005. Ultimately, he was convicted of both counts. The circuit court then sentenced him to a term of life, without mercy, for his conviction of first-degree murder and a term of forty years for his conviction of death of a child by a custodian. These sentences were ordered to run concurrently to one another but consecutively to the sentences petitioner was serving from his earlier criminal proceeding.

         In February of 2010, petitioner filed a motion pursuant to Rule 35 of the Rules of Criminal Procedure seeking a corrected sentence on the basis that his sentences were multiple punishments for the same crime and, thus, a violation of the double jeopardy clauses of the West Virginia and United States Constitutions. The circuit court held a hearing on this motion and denied the same. Petitioner then appealed the denial to this Court, which refused the appeal.

         Thereafter, in July of 2011, petitioner filed a pro se petition for writ of habeas corpus. After appointment of counsel, petitioner filed an amended petition which set forth several grounds for relief, including an allegation that the indictment at issue violated the mandatory joinder rule set forth in Rule 8 of the Rules of Criminal Procedure. In September of 2016, the circuit court held an omnibus evidentiary hearing, after which it denied petitioner habeas relief. This appeal followed.

         Our 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 ...

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