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Finley v. Ames

Supreme Court of Appeals of West Virginia

November 8, 2019

Jeffrey R. Finley, Petitioner Below, Petitioner
v.
Donnie Ames, Superintendent, Mt. Olive Correctional Complex, Respondent Below, Respondent

          Logan County 13-C-328

          MEMORANDUM DECISION

         Petitioner Jeffrey R. Finley, by counsel Benjamin Mishoe, appeals the March 8, 2018, order of the Circuit Court of Logan County denying his petition for a writ of habeas corpus. Respondent Donnie Ames, Superintendent, Mt. Olive Correctional Complex, [1] by counsel Elizabeth Grant, filed a response in support of the circuit court's order. Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in finding that the violation of the Confrontation Clause[2] was harmless, that petitioner was properly informed of his right to testify or remain silent prior to taking the stand at trial, and that petitioner's trial counsel was effective.

         The 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.

         Petitioner's wife ("the victim") was murdered on August 11, 2008, after the couple and their children returned home from a trip to Ohio. Petitioner learned of the victim's infidelities and stated to his daughter that "he had to kill [the victim] and get rid of her." Petitioner told his daughter, then seventeen years old, that he would also kill her and her younger brother if she "didn't keep her mouth shut." During the early hours of August 11, 2008, petitioner's daughter heard a gunshot in the home. She then heard petitioner say, "I'm sorry. . . . But I had to do it." Petitioner then came downstairs and told his daughter, "I don't know what I just did. . . . When I was backing out, the gun went off." Petitioner then summoned his daughter's help to dispose of the victim's dead body. He dressed the victim's body in her work clothes and then took the victim's body outside and put it in the passenger seat of her vehicle. Petitioner instructed his daughter to ditch the vehicle and threatened to kill her brother if she did not comply. After the victim's employer called the home to inform petitioner that the victim did not report to work, petitioner and the victim's mother traveled around town together looking for the victim. Ultimately, they went to a West Virginia State Police detachment and reported the victim missing. The victim's body was soon identified in her car nearby.

         On August 12, 2008, during the investigation of the murder, petitioner initially denied any involvement in the crime and attempted to blame the murder on his daughter. However, he subsequently confessed to murdering the victim. Petitioner told the officers that "[w]e got in an argument and stuff and basically it just led into something else. So basically the trigger person was me; and I made my daughter . . . help me." He further explained to the officers that "I grabbed the gun . . . she had her head turned away from me, and then I basically . . . just pulled the trigger." Following his voluntary statement to the police, petitioner was arrested and charged with murder.

         The investigating officers then went to a dumpster specified by petitioner and found a garbage bag that contained bed linens stained with what they believed to be blood. They also found two smaller plastic bags with a box of .38 caliber cartridges with three missing rounds, a pair of black sweatpants, a blue shirt, and a pair of men's underwear. The clothing was forensically tested and gunshot residue was found on the black sweatpants and blue shirt, later confirmed by petitioner's daughter to be the clothing petitioner wore on the day the victim was shot. The investigating officers also executed a search warrant on petitioner's home and recovered a .38 caliber pistol in the attic where petitioner told the officers he had hidden it. In May of 2009, petitioner was indicted by the Logan County Grand Jury for first-degree murder.

         The circuit court held a trial in April of 2010 during which the State called the Deputy Chief Medical Examiner, Nabila Haikal, to testify regarding the victim's autopsy. Dr. Haikal testified that she did not perform the autopsy on the victim. However, Dr. Haikal co-signed the autopsy report. She explained that the co-signer reviews the report and may have discussions with the pathologist who performed the examination. She opined that the victim's death was caused by a gunshot wound. The actual autopsy report was not admitted into evidence, but during Dr. Haikal's testimony, the State introduced two photographs into evidence. One photograph depicted the back of the victim's head and neck, and the other photograph showed the bullet fragments that were retrieved from the victim's head. Before the introduction of the photographs, petitioner stipulated that "this lady is deceased and . . . she received a gunshot wound to the back of her head." The State also offered a forensic expert who testified that the bed linens and clothing found in the dumpster contained the victim's blood. Petitioner's daughter testified extensively regarding the events surrounding the murder.

         Petitioner's theory of the case was that his daughter committed the murder and that he confessed to protect her. Petitioner presented the testimony of nine witnesses, most of whom testified that his daughter's relationship with the victim was poor and that they often argued. Petitioner also called character witnesses. However, none of those witnesses had any knowledge of the events that transpired immediately before, during, or after the murder. At a bench conference, before petitioner testified, the circuit court, counsel, and petitioner discussed petitioner's right to testify. The circuit court advised petitioner, "I'm supposed to-I absolutely know that [counsel has] told [you] this-but you have the right to testify, and nobody can make you testify. If you testify, you're subject to cross-examination by the prosecuting attorney. Does that seem to pretty well cover it? Are you planning to testify?" Petitioner responded "[y]es." Petitioner's counsel then explained to petitioner that "[t]he judge has to tell you what I told you. You have the absolute right to say, 'I've got nothing to say' or you've got an absolute right to get up and say, '[h]ere's my side of it.'" After this conversation, petitioner chose to testify.

         Petitioner testified that when the family returned from their trip to Ohio, he and his son fell asleep on the couch. He further testified that he woke up to find his daughter with his gun in her hand. According to petitioner, when he went into the victim's bedroom, the victim was already dead. Petitioner testified that the police coerced him into making a confession and that he did not kill the victim. Petitioner admitted to putting a black garbage bag of bed linens in a dumpster, but denied putting the smaller plastic bags containing clothing there. On April 16, 2010, following the jury trial, petitioner was convicted of first-degree murder and was subsequently sentenced to life in prison without the possibility of parole. Petitioner appealed his conviction to this Court. See State v. Finley, 229 W.Va. 690, 735 S.E.2d 565 (2012). His sole assignment of error was that the circuit court erred when it "permitted the State to introduce a third statement made by him to investigators-a statement in which he confessed to killing his wife." Id. at 691, 735 S.E.2d at 566. The Court found that petitioner's confession was a voluntary statement made to the investigators when he was not under arrest and he was free to leave the police station at any time and affirmed petitioner's conviction and sentence. Id.

         In May of 2017, petitioner filed an amended petition for a writ of habeas corpus[3] alleging the following errors: (1) petitioner's right to confront his accuser under the Confrontation Clause was violated when the State presented the testimony of Dr. Haikal instead of Dr. Belding, the physician who performed the autopsy; (2) petitioner's counsel was ineffective; (3) petitioner was not adequately advised that he had a right to not testify at trial; and (4) the trial court erred by failing to adequately instruct the jury on the statutory elements of the crime.[4]

         The circuit court held an omnibus hearing regarding the remaining issues in February of 2018. The court heard testimony from trial counsel and petitioner. Trial counsel testified that during his thirty-four years of practicing law, he tried approximately seven to ten murder cases. He testified that the theory of petitioner's criminal trial was that petitioner's daughter committed the murder and that she was motivated by her hatred of the victim. Trial counsel testified that he objected to the admission of the autopsy report because "you never want an autopsy report to go in front of the jury." However, trial counsel explained that he did not object to Dr. Haikal's testimony because he did not recall "her testifying to very much other than we had a deceased person and we were defending on who had done this crime." Trial counsel testified that he objected to the admission of one of the photographs because he believed the photograph was gruesome. Next, trial counsel testified regarding his conversations with petitioner about whether petitioner would testify at trial. Trial counsel recounted that, after the trial court deemed petitioner's confession to be admissible, he discussed it with petitioner. He explained,

I recommended to him that even though he didn't have to testify, that we were in a position that he would probably have to testify because you've given a statement that is now going to come into evidence . . . as to explain why you would implicate yourself in a crime that involves possibly a life sentence. He explained to me that he gave the statement to protect his daughter.

         Trial counsel recounted additional conversations with petitioner and stated that he explained to petitioner that he did not have to testify, but that he recommended that petitioner testify because "he had no way out as a practical matter except for him to explain to the jury what his view was and what happened." In regard to petitioner's direct appeal, trial counsel testified that he discussed the appeal with petitioner. He explained that he believed that challenging the denial of the motion to suppress the third statement was his strongest argument. Trial counsel testified that he reviewed the appeal with petitioner and that petitioner did not disagree with trial counsel's decision to raise only one issue on appeal.

         Next, petitioner testified. He acknowledged the discussion with counsel and the circuit court regarding his right to testify. However, he testified that trial counsel never informed him that he could remain silent. Regarding his direct appeal, petitioner testified ...


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