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Painter v. Ames

Supreme Court of West Virginia

June 12, 2019

Wade Painter, Petitioner Below, Petitioner
Donnie Ames, Superintendent, Mt. Olive Correctional Complex, Respondent Below, Respondent

          (Berkeley County 9-C-573)


         Petitioner Wade Painter, by counsel Ben J. Crawley-Woods, appeals the Circuit Court of Berkeley County's October 16, 2017, order denying his petition for a writ of habeas corpus.[1]Donnie Ames, Superintendent, Mt. Olive Correctional Complex, by counsel Scott E. Johnson, filed a response in support of the circuit court's order.[2] On appeal, petitioner argues that the circuit court erred in denying him habeas relief because he received 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.

         Police began investigating the events that gave rise to petitioner's underlying criminal convictions in September of 2005 following the shooting deaths of Raymond White Jr. and his son, Raymond White IV. Painter v. Ballard, No. 15-0540, 2016 WL 3349168, at *1 ( W.Va. June 15, 2016)(memorandum decision). Investigators determined that personal property had been stolen from the Whites' home, in addition to two other homes in the area. Id. One of the items missing from the Whites' home was a Mazda MX-6, which police located on September 15, 2005, abandoned behind a garage. Id. That same day, an individual contacted law enforcement "and informed them that he witnessed the tenant of one of his rental properties in possession of a car matching the description of the stolen Mazda MX-6." Id. The caller identified his tenant as petitioner on appeal and indicated that petitioner lived with his girlfriend, Angela Conner. Id. After receiving this information, law enforcement responded to petitioner's residence to question him about the vehicle. Id. Because petitioner refused the officers' entry into the home, they spoke outside the residence with petitioner ultimately agreeing to "accompan[y] the officers in their unmarked vehicle to the police station to answer further questions." Id.

         Following petitioner's departure, Ms. Conner, through her father, communicated to law enforcement that she would permit a search of the shared residence because "her home was full of property she did not believe belonged to Mr. Painter." Id. at *2. Law enforcement again responded to the home, Ms. Conner granted permission to enter, and law enforcement gathered and cataloged the property Ms. Conner identified. Id. "The entry of the residence was premised on Ms. Conner's permission; no search warrant was ever obtained to search the residence." Id. Upon entry, "the officers found a red duffle bag with items appearing to have blood on them and a dog tag bearing the name of one of the Whites." Id. As a result of the search, petitioner was placed under arrest. Id.

         Thereafter, petitioner was indicted on one count of daytime burglary by entering without breaking, one count of grand larceny, one count of daytime burglary by breaking and entering, one count of petit larceny, two counts of first-degree murder, and one count of possession of a stolen vehicle. Petitioner was convicted on all counts following a jury trial. Following the denial of his post-trial motions, petitioner was sentenced to the following terms of incarceration: one to ten years for daytime burglary by entering without breaking; one to ten years for grand larceny; one to fifteen years for daytime burglary by breaking and entering; one year for petit larceny; one to five years for possession of a stolen vehicle; and two life sentences, without mercy, for the first-degree murder convictions. All sentences were ordered to be served consecutively. Petitioner appealed his convictions to this Court, and we refused the appeal by order entered on February 3, 2009.

         In June of 2009, petitioner filed a petition for writ of habeas corpus and was appointed counsel the following month. After multiple extensions, motions to withdraw as counsel, and appointments of new attorneys, petitioner ultimately filed an amended habeas petition on May 23, 2014. In December of 2014, the circuit court summarily dismissed all but one of the claims raised in petitioner's habeas petition. In May of 2015, after ordering respondent to file a response to petitioner's remaining claim of ineffective assistance of counsel, the circuit court entered a second order summarily denying the petition. Both orders denying petitioner's claims were entered without an evidentiary hearing. Petitioner then appealed the orders denying his habeas petition to this Court. In a decision issued on June 15, 2016, the Court affirmed, in part, and reversed, in part, the circuit court's rulings. The matter was ultimately remanded for the circuit court to hold an omnibus evidentiary hearing addressing petitioner's ineffective assistance claim. Id. at *5.

         Upon remand, the circuit court held an omnibus hearing in August of 2017. Prior to the hearing, petitioner moved to retain an expert witness regarding whether his counsel's performance fell below an objective standard of reasonableness. The circuit court denied this motion. Petitioner's trial and appellate counsel, B. Craig Manford and S. Andrew Arnold, testified during the hearing, as did petitioner. According to the circuit court, "[b]ecause the events underlying the amended [p]etition occurred approximately ten years ago, all witnesses had difficulty recalling the events at issue." Following the hearing, the circuit court again denied the petition. 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 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). Further,

"[i]n the West Virginia courts, claims of ineffective assistance of counsel are to be governed by the two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1) Counsel's performance was deficient under an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

Syl. Pt. 2, Raines v. Ballard, 236 W.Va. 588, 782 S.E.2d 775 (2016). Importantly, hindsight is not to be applied to the objective standard:

"In reviewing counsel's performance, courts must apply an objective standard and determine whether, in light of all the circumstances, the identified acts or omissions were outside the broad range of professionally competent assistance while at the same time refraining from engaging in hindsight or second-guessing of trial counsel's strategic decisions. Thus, a reviewing court asks whether a reasonable lawyer would have acted, under the circumstances, as defense counsel acted in the case at issue." Syl. Pt. 6, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

Raines, 236 W.Va. at 589, 782 S.E.2d at 776, syl. pt. 3.

         In his first assignment of error, petitioner alleges that his trial attorneys' performances were objectively deficient because they failed to undertake an investigation into the charges against petitioner, especially in light of the fact that "discovery . . . indicated that there were third[]parties who may have been responsible for the crimes."[3] According to petitioner, "the presumption [that counsel's conduct falls within the wide range of reasonable professional assistance] is simply inappropriate if counsel's strategic decisions are made after an inadequate investigation." Syl. Pt. 3, in part, State ex rel. Daniel v. Legursky, 195 W.Va. 314, 465 S.E.2d 416 (1995). Upon our review, however, we find that petitioner is entitled to no relief in this regard.

         In support of this assignment of error, petitioner relies heavily on the facts of Ballard v. Ferguson, 232 W.Va. 196, 751 S.E.2d 716 (2013), to argue that trial counsel failed to investigate the charges against him. We note, however, that the facts of Ferguson differ substantially from those presented in the matter on appeal. Importantly, the evidence in Ferguson established that an individual confessed to at least two other people that he, not the defendant, murdered the victim in that case, and that one of the individuals to whom the confession was made relayed that information to the police prior to trial. Id. at 199, 751 S.E.2d at 719. Moreover, although counsel in that case learned of the witness's statement through discovery, "[t]here was also evidence that trial counsel failed to do an independent investigation" into the statement. Id. In affirming the circuit court's award of habeas relief upon counsel's failure to investigate the matter, this Court found that the "compelling testimony" of two of the people to whom the third party's confession was made "was unjustifiably kept from the jury because of [counsel's] ineffectiveness." Id. at 208, 751 S.E.2d at 728. We further found that these facts "conclusively demonstrate[] that the adversarial process . . . was undermined [because t]he best evidence [defendant] had to defend his claim of innocence at trial was suppressed through [counsel's] constitutionally deficient performance." Id. Such a factual scenario is simply not present in the matter on appeal.

         Importantly, no third party confessed to the crimes of which petitioner was convicted. Instead, petitioner cites to testimony from Walter Johnson III, who testified at petitioner's criminal trial that, on September 14, 2005, he gave a ride to Mike Barrett. According to Mr. Johnson, Mr. Barrett "had a lot of scratches and quite a knot on the head." Per Mr. Johnson's testimony, Mr. Barrett told him that he had been "jumped by a couple gentlemen." Mr. Johnson testified that he "made the connection that . . . maybe there was something to look into this fellow being hurt the night of" the victims' murder, so he contacted law enforcement with this information. Mr. Johnson testified that he had no other reason to connect Mr. Barrett to the victims. This speculation about how Mr. Barrett may have received his injuries is far from the "best evidence" that was available to the defendant in Ferguson. More importantly, in Ferguson, the defendant was denied testimony from witnesses that supported his theory of defense. Here, petitioner presented testimony from Mr. Johnson in furtherance of his theory that a third party committed the crimes in question. As such, it is clear that trial counsel investigated the matter thoroughly enough to secure Mr. Johnson's testimony, thereby laying an evidentiary basis for the theory that someone other than petitioner committed the crimes. As such, petitioner's reliance on Ferguson is misplaced and he is entitled to no relief in this regard.

         In regard to petitioner's second assignment of error, he specifically alleges that his trial attorneys were ineffective with respect to the following portion of the State's closing:

[The State:] There is no evidence that contradicts what was at Wade Painter's house, what was on Wade Painter's clothes, what was found at that crime scene . . . . It still comes back to Wade Painter and we ask you to find him guilty. Make him take responsibility for what he did and don't believe the web that he tried to spin when he was talking to these officers because every time it comes back to it's in your house, you had control, it's their blood, it's their things, ladies and gentlemen. That has not been refuted in front of you and that - -
[Defense counsel]: Judge, I would like to offer an objection. There's no burden on the defense.
[The Court]: That's correct. Ladies and gentlemen, the prosecutor's evidence has not been refuted but there's no burden upon the defendant to prove himself innocent. It is upon the State.
[The State]: That's absolutely true. I apologize. I misspoke in that regard. It hasn't been refuted. It's not there.
[Defense counsel]: Same objection, Judge.
[The Court]: Again, the same ruling of the Court. There's no obligation of the defendant to present any evidence in a criminal case.

         On appeal, petitioner alleges that this exchange violated his constitutional rights because (1) the prosecutor's remarks placed an unlawful burden on him to prove himself innocent, thereby shifting the burden of proof in the case; (2) the prosecutor's remarks constitute an impermissible comment on his failure to testify; and (3) the trial court's remarks to the jury constituted an opinion as to a matter that was in the jury's exclusive province, to petitioner's prejudice. Upon our review, we find that petitioner's arguments are without merit.

         First, it is important to note that petitioner acknowledges that counsel twice objected to the State's remarks on the basis that they implied petitioner, as the defendant, carried the burden of proof. It is also uncontroverted that defense counsel obtained a favorable ruling and a curative instruction in regard to the comments. While petitioner alleges that counsel was ineffective for failing to raise this issue on appeal, it is clear that he cannot satisfy the standard in Strickland v. Washington, 466 U.S. 668 (1984), in regard to this argument. Counsel objected on these grounds, obtained a favorable ruling and a curative instruction, thereby obviating the need to raise the issue on direct appeal.

         Second, it is clear that petitioner's trial attorneys provided effective assistance in the manner in which they objected to the State's comments. Petitioner argues that counsel should have made an additional objection on the basis that the comments impermissibly referenced his decision to stand silent. Upon our review, however, we find no error in the lack of such objection because the ...

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