803 S.E.2d 536
W. Va.2017Background
- In Jan 2011 Flack and accomplices entered David Flack’s home; during a struggle Matthew Flack was shot and killed. Co-defendant Jasman Montgomery admitted shooting Matthew and pled guilty; Montgomery testified for the State.
- Petitioner Flack was tried and convicted (felony murder, robbery, conspiracy); burglary conviction was merged with murder at sentencing; Flack received life with mercy plus additional consecutive terms.
- On direct appeal this Court affirmed Flack’s convictions. Flack later filed a habeas petition alleging ineffective assistance of counsel, presentation of false evidence, improper prosecutorial comments, and double jeopardy as to the robbery sentence.
- Habeas court held an omnibus hearing, found counsel deficient for failing to request a Caudill limiting instruction but denied relief on prejudice; it rejected claims of false evidence and ineffective assistance on other grounds, but concluded the robbery sentence violated double jeopardy and vacated that conviction.
- The State appealed the habeas court’s double jeopardy ruling; the Supreme Court affirmed most habeas rulings but reversed the vacatur of the robbery conviction, holding robbery is not a lesser-included offense of burglary or of felony murder predicated on burglary.
Issues
| Issue | Plaintiff's Argument (Flack) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Ineffective assistance for failing to call fact witnesses (Heather Davis, Ashley Burelson) | Counsel should have subpoenaed them; their testimony would have undermined State eyewitness Shorter and shown lack of criminal intent | Failure to call was a strategic trial decision; Shorter was favorable to defense and counsel could not locate the women | Decision not to call them was reasonable trial strategy; no Strickland relief granted |
| Ineffective assistance for failing to retain experts/investigator and challenge forensic evidence | Needed experts (ballistics, pathology) to show alternate shooter and undermine felony-murder theory | Strategy targeted showing no underlying felony (burglary/robbery); identity of shooter was irrelevant under felony-murder theory so experts unnecessary | No deficient performance: identity/manner of death immaterial to felony-murder; strategy reasonable |
| Failure to request Caudill limiting instruction re: co-defendant's guilty plea | Counsel failed to limit jury’s use of Montgomery’s plea; this was reversible error | State: plea evidence was used only for credibility; not emphasized to prove Flack’s guilt | Counsel’s failure was deficient (admitted), but Flack failed to show prejudice; no relief on this ground |
| Double jeopardy re: robbery sentence | Robbery was an underlying predicate read to jury; sentencing on robbery in addition to felony murder violated double jeopardy | Robbery and burglary (and felony murder) require different elements; robbery is not a lesser-included offense and may be punished separately | Court reverses habeas court: robbery is not lesser-included of burglary or felony murder predicated on burglary; robbery conviction/sentence reinstated |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two-pronged ineffective assistance test)
- State v. Miller, 194 W.Va. 3 (1995) (adopts Strickland standard in West Virginia)
- State v. Caudill, 170 W.Va. 74 (1979) (requires limiting instruction when accomplice’s guilty plea is used only to show credibility)
- State ex rel. Franklin v. McBride, 226 W.Va. 375 (2009) (test for prosecutor presentation of false testimony)
- State v. Williams, 172 W.Va. 295 (1983) (felony-murder bars separate punishment for underlying enumerated felony when it is the basis of the murder conviction)
- State ex rel. Davis v. Fox, 229 W.Va. 662 (2012) (limits felony-murder where co-perpetrator is the one killed during the felony in certain circumstances)
- State v. Frazier, 229 W.Va. 724 (2012) (addresses admissibility issues related to autopsy testimony)