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Watring v. Anderson

Supreme Court of West Virginia

March 15, 2019

Robert Watring, Petitioner Below, Petitioner
v.
John Anderson, Superintendent, Salem Correctional Center and Jail, Respondent Below, Respondent

          Preston County 17-C-81

          MEMORANDUM DECISION

         Petitioner Robert Watring, by counsel Jeremy B. Cooper, appeals the Circuit Court of Preston County's February 28, 2018, order denying his amended petition for a writ of habeas corpus. Respondent John Anderson, Superintendent, by counsel Caleb A. Ellis, filed a response.[1]Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in denying his habeas petition, asserting that the prosecutor suppressed helpful evidence and that he had ineffective assistance of counsel.

         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 2015, petitioner was indicted on two counts of wanton endangerment involving a firearm, one count of malicious assault, one count of child abuse creating risk of injury, and one count of driving while license suspended or revoked for driving under the influence ("DUI").[2] At petitioner's trial on these charges, the victim, petitioner's ex-wife, testified that petitioner arrived at her home intoxicated after she ignored his repeated attempts to reach her by phone. Upon his arrival petitioner began continually ringing the doorbell and beating on the door. Knowing that petitioner would not stop until let inside the home, the victim opened her door. After several minutes inside the home, petitioner pointed a .22 caliber youth rifle at the victim's head. Petitioner reportedly told the victim he was "going to put her to sleep" and then pointed the rifle at her chest. Petitioner also choked the victim several times over an approximate five-minute period. The victim testified that she was unable to breathe while petitioner choked her, but when petitioner eased his grip, she yelled for help. While choking the victim, petitioner told her she "better pray that [her son] has a good life" without her. The victim testified that she feared for her life.

         During the victim's testimony, she reported that the investigating officer took pictures of her neck, which had "just red marks," and eyeglasses, which were crooked from the altercation. Petitioner's counsel requested a bench conference outside the presence of the jury, and she informed the circuit court that she was unaware any pictures had been taken, despite discovery requests. The prosecutor stated that he, too, did not have the pictures. The investigating officer reported to the court that "[e]vidently, [they] didn't get transferred over." The prosecutor stated that he had no intention of introducing the photographs, and the trial resumed.

         Carl W. Morgan Jr. testified that he received a call from his mother-in-law, who lived in the victim's apartment complex. Mr. Morgan's mother-in-law informed him that a woman was screaming for help and being beaten. Mr. Morgan, who lived down the street from the victim, went to the victim's home and began "pound[ing] on the door." The victim's son opened the door, and Mr. Morgan observed petitioner in the victim's apartment "smacking [the victim] back in" the bathroom, which she was attempting to exit. Petitioner then pointed the rifle at Mr. Morgan before exiting the home and driving away.

         At the close of evidence, the jury found petitioner guilty of two counts of wanton endangerment involving a firearm and one count of malicious assault. The circuit court sentenced petitioner to a determinate term of five years of incarceration for each wanton endangerment involving a firearm conviction and an indeterminate term of two to ten years for his malicious assault conviction. Petitioner's sentences were further ordered to run consecutively.

         Petitioner filed a motion for a new trial asserting, among other things, that the State's failure to disclose the photographs amounted to a violation of his right to due process under Brady v. Maryland, 373 U.S. 83 (1963); that the failure to disclose amounted to a violation of Rule 16 of the West Virginia Rules of Criminal Procedure; and that the eventual, post-trial disclosure constituted newly discovered evidence entitling him to a new trial.[3] The circuit court denied petitioner's motion for a new trial, and on October 11, 2016, we affirmed the circuit court's denial of that motion. State v. Watring, No. 15-0932, 2016 WL 5900709 ( W.Va. Oct. 11, 2016)(memorandum decision).

         Following this Court's decision, petitioner filed a pro se petition for a writ of habeas corpus on July 14, 2017. The circuit court appointed counsel, and through counsel, petitioner filed an amended petition asserting as grounds for relief coerced confession, suppression of helpful evidence by the prosecutor, ineffective assistance of counsel, constitutional errors in evidentiary rulings, improper jury instructions, prejudicial statements by the prosecution, and sufficiency of the evidence. The parties appeared for an omnibus evidentiary hearing on January 22, 2018, and the circuit court denied petitioner habeas relief by order entered on February 28, 2018. 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." 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).

         On appeal, petitioner challenges only the circuit court's rulings on his suppression of favorable evidence by the prosecutor and ineffective assistance of counsel claims. First, petitioner argues that the State's failure to produce the photographs of the victim's injuries constitutes a due process violation. See Brady, 373 U.S. at 87 ("We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.); syl. pt. 4, State v. Hatfield, 169 W.Va. 191, 289 S.E.2d 402 (1982) ("A prosecution that withholds evidence which if made available would tend to exculpate an accused by creating a reasonable doubt as to his guilt violates due process of law under Article III, Section 14 of the West Virginia Constitution.").[4] Petitioner argues that the pictures are exculpatory in the context of a lesser-included offense instruction. Specifically, petitioner's "trial strategy [was] to profess complete innocence to the accusations[, ]" and his trial counsel testified at his omnibus evidentiary hearing that petitioner was not amenable to requesting an instruction on lesser-included offenses of malicious assault. But trial counsel also testified that once she saw the photographs, she did not believe they supported a malicious assault conviction and, instead, thought "they might go to a lesser included domestic battery." Trial counsel further stated that had she seen the pictures in advance of trial, "it would've given [her and petitioner] an opportunity to revisit the question of the lesser included." Petitioner also argues that if the photographs had been published to the jury, "[n]o reasonable juror, even in the light most favorable to the prosecution, could have found that a man of the [p]etitioner's size and strength intended to kill the alleged victim based upon such visually marginal injuries."[5]

         Petitioner, however, also acknowledges that this Court previously found that the photographs were not favorable to him as exculpatory or impeachment evidence and that he had, therefore, not established a Brady violation. Watring, 2016 WL 5900709 at *3. In denying petitioner relief on this ground, the habeas court found that reconsideration was prohibited under the law of the case doctrine. Petitioner urges this Court to decline to apply that doctrine because ...


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