Lead Opinion
I. FACTUAL AND PROCEDURAL BACKGROUND
The underlying facts were established at the trial in this matter and set forth in Petitioner’s direct appeal to this Court in State v. Flack,
Matthew Flack (Petitioner’s second cousin), India Simmons (Matthew’s cousin), and Milton (“Mel”) Thomas (Matthew’s friend), were inside the house.
Petitioner and his accomplices, ran out of the Flack Residence and fled from the scene. Id. The men took Petitioner, who was visibly injured, to the hospital. Id. at 711,
Petitioner was subsequently arrested and charged with' one count of first degree murder, one count of burglary, one count of first degree robbery, and one count of conspiracy, Id. Pleading not guilty, Petitioner’s case proceeded to trial. Id. At trial, the State’s witnesses included Petitioner’s accomplice, Mr. Montgomery, and Dr. James Kaplan, the State Medical Examiner.
Mr, Montgomery pled guilty to first degree murder and was sentenced to life with the possibility of parole. M. As part of his plea agreement, Mr. Montgomery testified for the State and told the jury about the plan they had devised, their forced entry into the Flack Residence, his shooting of Matthew Flack, and driving Petitioner to the hospital. Id. During the course of the trial, defense counsel did not request any limiting or cautionary instruction regarding the consideration the jurors were permitted to give Mr. Montgomery’s guilty plea or his testimony that he murdered Matthew Flack. Id.
At trial, Dr. James Kaplan testified that Mr. Flack died as a result of a gunshot wound. Id. However, the pathologist who prepared the autopsy report did not testify at trial and defense counsel did not object. Id.
On April 26, 2012, following a three-day trial, a jury convicted Petitioner of all charges and recommended mercy for the murder charge.'Petitioner then moved for a new trial, asserting that his rights were .violated when the trial court failed to sua sponte give the jury a limiting instruction regarding Mr. Montgomery’s testimony about his guilty plea. Id. Petitioner also argued that because there were no African-American members on his jury panel, his constitutional rights were violated. Id. On June 7, 2012, the trial court denied Petitioner’s motion for a new trial. Id. Because the State had pursued the murder charge based on a felony murder theory, ,the trial court merged the counts of first degree murder and burglary, resulting in the dismissal of the burglary conviction. Petitioner was sentenced to life with mercy for the first degree murder offense, forty years for the first degree robbery offense and an indeterminate term of one to five years for the conspiracy offense, with all sentences to run consecutively. Petitioner was given 495 days jail credit. -
Petitioner filed an appeal of his convictions for first degree murder, first degree robbery and conspiracy alleging that: (1) defense counsel’s failure to object to or request a limiting instruction following Mr. Montgomery’s testimony on behalf of the State and the relation of his guilty plea to the jury, was plain error requiring a reversal of his convictions under State v. Caudill,
On January 7, 2014, Petitioner filed a pro se habeas petition alleging various grounds for relief. The habeas court appointed counsel for Petitioner, who then filed a supplemental petition on his behalf on July 29, 2014. As discussed in detail below, Petitioner contended that despite the fact that the State proceeded under a felony murder theory, defense counsel should have vigorously developed and presented an identity of the shooter defense. Petitioner argues that defense counsel could have asserted that Matthew Flack’s death was the result of being accidentally shot by his friend, Mel Thomas, who was positioned above him on the stairwell, and that the fatal shot came from a handgun that was still at the scene when the police arrived and not in the trunk of the car at the hospital. Maintaining that this theory of defense should have been pursued, Petitioner presented the following allegations of error to the habeas court below: (1) the robbery offense was a lesser-included offense to the felony murder offense predicated on burglary and, as such, double jeopardy attached when the two were merged; (2) ineffective assistance of counsel for (a) failure to hire an investigator, an expert in forensic pathology, and a firearms expert and to cross-examine the State’s experts; (b) failure to object to the autopsy evidence being elicited from a different pathologist than the one who performed the autopsy; (e) failure to object to the co-defendant testifying in front of the jury in prison attire; (d) failure to request a Caudill instruction regarding the co-defendant’s testimony; (e) failure to request a copy of the co-defendant’s written plea agreement; (f) failure to request a self-defense instruction; and (g) failüre to subpoena certain defense witnesses for trial; and (h) failure to object to the medical examiner’s testimony as denying him the right of confrontation under Crawford v. Washington,
The habeas court held. an. omnibus hearing on July 31, 2015, during which Petitioner testified and. called five other witnesses to testify in support of his, petition: Officer R.S. Gibson and Lt. G.S. Myers, both with the Bluefield Police Department, Larry Dehus, Danny Lane, and defense cpunsel Derrick W. Lefler. Officer Gibson, the first officer on the scene of the crime, testified regarding the location of a handgun at the scene, a Hi-Point pistol, and another spent shell casing he observed laying on the second set of stairs on the landing , at the crime scene. Lieutenant Myers, the detective on call on the night of the shooting, testified regarding (1) the location of the firearms and casings that were found at the crime scene and submitted to the State Crime Lab; (2) his investigation of the crime and his belief that Mr. Montgomery fired the fatal shot killing Matthew Flack; (3) his interview .of Amanda Shorter, the witness who saw four masked men approaching and exiting the Flack Residence; and (4) his interview of Heather Davis and Ashley Burelson, two females who accompanied Petitioner and his co-defendants on the night of the crime, who were picked up and brought to the station for questioning.
Mr. Lefler, Petitioner’s defense counsel at trial, testified regarding his initial investigation of the case, the theory of defense presented at trial, and' his thought process regarding trial tactics and strategy.
On August 24, 2015, the habeas court entered an order granting; in part, and denying, in part, Petitioner’s habeas petition and an order correcting Petitioneris sentence pursuant to Rule 35(a) of the West Virginia Rules of Criminal Procedure. The habeas court concluded that Petitioner had failed to prove both prongs of the ineffective assistance of counsel test in State v. Miller,
II. STANDARD OF REVIEW
A circuit court’s order granting or denying habeas relief is subject to a three-prong standai’d of review:
“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 stаndard; 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,
III. DISCUSSION
A. Ineffective Assistance of Counsel
Petitioner asserts an ineffective assistance of counsel claim that his court-appointed attorneys, Derrick W. Lefler and Ward Morgan (collectively, “defense counsel”), failed to investigate adequately what he alleges is a serious, complex case. Petitioner bases his claim upon several acts or omissions by defense counsel: (1) failure to interview, subpoena, or otherwise, attempt to secure the appearance of Heather Davis and Ashley Bu-relson; (2) failure to hire an investigator or expert witnesses; (3) failure to cross-examine the State’s firearms expert or recognize the discrepancy between the testimony of various witnesses with respect to the firearms used in the shooting and entered into evidence; (4) failure to object to the testimony of the State’s medical expert on hearsay and confrontation clause grounds; (5) allowing Petitioner’s accomplice, who had previously pled guilty to first degree to appear in prison attire when testifying on behalf of the State;
With respeсt to the standards that guide our analysis in claims for ineffective assistance of counsel, we have held:
In 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,
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.
Id. at Syl. Pt. 6.
“[T]he cases in which a defendant may prevail on the ground of ineffective assistance of counsel are few and far between one another.” Id. at 16,
[W]e always should prеsume strongly that counsel’s performance was reasonable and adequate. A defendant seeking to rebut this strong presumption of effectiveness bears a difficult burden because constitutionally acceptable performance is not defined narrowly and encompasses a “wide range.” The test of ineffectiveness has little or nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We only ask whether a reasonable lawyer would have acted, under the circumstances, as defense counsel acted in the case at issue. We are not interested in grading lawyers’ performances; we are interested in whether the adversarial process at the time, in fact, worked adequately.
(1) Fact Witnesses
Petitioner contends that defense counsel should have called Heather Davis and Ashley Burelson as fact witnesses at trial. Ms. Davis and Ms. Burelson were with Petitioner and his accomplices during the night of the incident at the Flack Residence. Petitioner argues that their testimony could have been used to undermine the testimony of Amanda Shorter, an eyewitness. Ms. Shorter testified at trial that after 11:00 p.m. on the night of January 29, 2011, she saw four men get out of a car, change into dark clothes and put tоboggans on their heads. She testified that the men, who were laughing and being loud, walked up to the back door of the Flack Residence and knocked before the door opened and they entered the house. She further testified that subsequent to the men entering the Flack Residence, she heard gunshots and observed two women, Ms. Davis and Ms. Burelson, run up to the same car and get into the backseat before Petitioner and his co-defendants fled the scene. Petitioner contends that contrary to Ms. Shorter’s testimony, the police determined that Ms. Davis and Ms. Burelson stayed behind at an apartment and were nowhere near the crime scene. Petitioner argues that the testimony of the two women could have been used to discredit the testimony of Ms. Shorter, and they would have
Petitioner claims that the private investigator he retained for his habeas corpus case located Ms. Davis, who cooperated with him and gave a recorded interview. He contends that had she been subpoenaed by defense counsel, she would have testified that there was no discussion of a plan to commit a robbery, burglary, larceny or any other crime. He also -claims that she would have testified that their car had a full tank- of gasoline and they had money to purchase beer, food or anything elsе that they and Petitioner may have wanted or needed that night. He asserts that this evidence could, have discredited several state witnesses and supported Petitioner’s version of the events leading up to his entry into the Flack Residence. Petitioner contends that prior to going to the Flack Residence, he left Ms. Davis and Ms. Burelson at a relative’s home in order to buy beer at a convenience store and they were waiting on him to return because they were planning to. ride home with him in Ms. Davis’s grandfather’s car.
The State responds that defense counsel’s decision not to subpoena these witnesses was a matter of trial strategy and, absent extraordinary. circumstances, is outside the purview of an ineffective assistance of counsel claim. The State contends that the theory of the defense presented at trial was that Petitioner and his accomplices did not arrive at the Flack Residence intending to commit any crime and that the conduct of the group as they exited their car and approached the Flack Residence demonstrated their lack of criminal intent, Mr. Lefler stated in his closing argument that there “was no plan [to commit a robbery]” and made inference to Ms. Shorter’s testimony recounting her observations of the behavior of Petitioner and the others as they approached the Flack Residence,
At the оmnibus hearing, defense counsel Mr. Lefler testified that “we were certainly aware the State intended to proceed- on a felony murder theory, and the particulars [of-how and by whom Matthew Flack was killed], in all honesty, weren’t our focus.” Mr.' Lefler described Ms. Shorter as “the best witness we had.” He reasoned that her testimony was “potentially very beneficial,” and that “the last thing they wanted to do” was discredit her. Mr. Lefler testified that Ms. Shorter confirmed that Petitioner and his accomplices made .a lot of noise and did not appear to be concerned with being quiet or approaching the house in a fashion that was undetectable. Additionally, because Ms. Shorter testified that she did not seé a door kicked in, the defense sought to use her testimony to establish that Petitioner and his accomplices approached the house in a manner that did not appear to be for evil intent. Moreover, Mr. Lefler stated that had Ms. Shorter not been called by the State during its case-in-chief, he would have called her as a defense witness. When Petitioner inquired why Ms. Davis and Ms. Burelson were not subpoenaed to testify, Mr. Lefler explained that although he initially looked for these witnesses when he began investigating the case, he could not locate them.
In Daniel v. Legursky,
As we explained in Miller, “with [the] luxury of time and the opportunity to focus resources on specific facts of a made record, [habeas counsel] inevitably will identify shortcomings in the performance of prior counsel.” Id. at 17,
This Court has previously rejected habeas claims predicated upon a failure to interview or call a particular witness. See e.g., State ex rel. Azeez v. Mangum,
(2) Expert Witnesses
Because Petitioner contends that his case involved a complicated crime scene and forensic evidence, he asserts that defense counsel’s decision not to hire an investigator or retain a firearms expert, a forensic pathologist, or a crime scene reenactment expert to discredit the State’s theory of the case constituted a constitutionally-inadequate performance at trial. He argues that defense counsel also -made no effort to challenge the State’s forensic evidence by way of cross-examination, or to object to the state’s forensic autopsy evidence that was elicited from the testimony of Dr. Kaplan, who did not perform the autopsy. Petitioner also claims that counsel’s failure to object to Dr. Kap-lan’s testimony allowed hearsay testimony that denied Petitioner’s right of confrontation and was reversible error.
Petitioner asserts that if defense counsel had retained a crime scene expert prior to trial, he or she would have presented to- the jury expert conclusions that the State’s theory of the case and the testimony of co-defendant Jasman Montgomery were not accurate and that it is more likely than not that neither Petitioner nor any of his companions caused Matthew Flack’s death, Petitioner relies upon on our holding in Syllabus Point 4 of State ex rel. Davis v. Fox,
The State responds that defense counsel chose to pursue a trial strategy designed to attack the felony charges of burglary and robbery in order to attack collaterally the felony murder charge. Accordingly, as defense counsel testified at the omnibus hearing, they believed that the jury would not be receptive to a defense case focused on the identity of the shooter. Defense counsel focused on the theory that Petitioner and his co-defendants were not intending t<? commit a burglary or a robbery, but rather, were simply going to the Flack Residence to visit
While counsel’s general duty to prepare necessitates an investigation of the facts, there is no constitutional demand.that an investigator be hired or for experts to be retained in every case. Given the State’s decision to charge Petitioner with felony murder in this case, defense counsel’s decision to attack the other felonies, along with the decision not to challenge the State’s evidence concerning the identity of the man who shot Matthew Flack, were strategiс choices made in furtherance of a clear trial strategy.
Addressing the elements of felony murder, we have held:
“[T]he elements which the State is required to prove to obtain a conviction of felony murder are: (1) the commission of, or attempt to commit, one or more of the enumerated felonies; (2) the defendant’s participation in such commission or attempt; and (3) the death of the victim as a result of injuries received during the course of such commission or attempt.” State v. Williams,172 W.Va. 295 , [310,]305 S.E.2d 251 , 267 (1983).
Syl. Pt. 5, State v. Mayle,
Accordingly, we conclude that defense counsel’s strategy in this case did not require expert testimony to challenge the State’s firearms expert or medical examiner, as the identity of the shooter and the specific details of Matthew Flack’s death were irrelevant to the felony murder theory of the case presented. So long as Petitioner’s criminal act of going to the Flack Residence with the intent to commit burglary and robbery resulted in Matthew Flack’s death, the jury could still properly convict Petitioner of felony murder under Mayle. Under these circumstances, an alternate shooter theory was inapposite.
Similarly, Mr. Lefler testified that he did not hire a medical examiner because the manner of Matthew Flack’s dеath did not matter. Mr. Lefler reasoned that “had Matthew Flack had a heart attack when he saw a gun and passed ... it would have still been felony murder.” The same principle applies to the testimony of Dr. Kaplan, to which defense counsel did not object. Dr. Kaplan only confirmed that Matthew Flack died of a gunshot wound, a fact not contested by anyone. As this court explained in Petitioner’s direct appeal,
... the error raised by [Petitioner] was harmless beyond a reasonable doubt. Unlike the facts we addressed in [State v.] Frazier, [229 W.Va. 724 ,735 S.E.2d 727 (2012) ], where the manner of death was very much in contention, Dr. Kaplan’s testimony at [Petitioner’s] trial had little probative value and mirrored testimony from other witnesses. Montgomery testified and admitted to shooting Matthew Flack. [Petitioner] did not contest Montgomery’s testimony that he was the shooter. Dr. Kap-lan merely confirmed that Matthew Flackdied as a result of a gunshot wound, and that the death was a homicide. Of critical import is that nothing in Dr. Kaplan’s testimony implicated [Petitioner] in the homicide, linked him to the crimes charged, or made it more likely or less likely that [Petitioner] committed the murder of Matthew Flack.
Flack,
(3) Caudill Instruction
Petitioner asserts that defense counsel improperly failed to object to co-defendant Mr. Montgomery telling the jury that he had pled guilty to first-degree murder and was serving a life sentence.
In Syllabus Point 3 of Caudill, this Court held:
In a criminal trial an accomplice may testify as a witness on behalf of the State to having entered a plea of guilty to the crime charged against a defendant where such testimony is not for the purpose of proving the guilt of the defendant and is relevant to the issue of the witness-accomplice’s credibility. The failure by a trial judge to give a jury instruction so limiting such testimony is, however, reversible error.
Syl. Pt. 3, Caudill,
In Petitioner’s direct appeal of his conviction, we recognized that a limiting instruction might only draw attention to an otherwise innocuous mention and that it is better for defense counsel to determine when testimony concerning a plea is of the character that it might be misconstrued by the jury (and thus warrant a limiting instruction). Flack,
Turning to the ease at hand, it. is evident from the record that defense counsel admitted error in failing to seek a Caudill instruction. Defense counsel acknowledged in post-conviction proceedings that they were unaware of this Court’s holding in Caudill. Thus, for purposes of this proceeding, we find that the first prong of Strickland has been satisfied and that defense counsel’s performance was deficient under an objective standard of reasonableness.
As we found in Petitioner’s direct appeal, “[t]here was no evidence that the prosecutor sought to infer, the defendant’s guilt by virtue of Montgomery’s guilty plea, nor was there evidence of any aggravating circumstances surrounding Montgomery’s. testimony.” Flack,
Q. 'As a part of the plea agreement in the matter whereby you pled guilty to first-degree murder, did you agree to come forward and give truthful testimony, if necessary?
A. Yes.
Following that question, defense counsel asked Mr. Montgomery numerous questions concerning the facts and circumstances of the crime, none of which contained any reference to his plea agreement. The only time the plea agreement was mentioned again was briefly in the prosecutor’s closing argument when he noted that “Jasman Montgomery accepted his responsibility and his punishment, life, no guarantee of ever being paroled.” Accordingly, it is clear from the record that the State did not elicit testimony about Mr. Montgomery’s guilty plea with the intent of relying on that testimony as substantive evidence. Therefore, because Petitioner has failed to demonstrate that defense counsel’s decision not to request a limiting instruction was so prejudicial as to change the outcome of the trial,' we affirm the habeas court’s ruling on this issue.
(4) Self-Defense Instruction
Petitioner alleges that defense counsel was ineffective for not requesting or offering jury instructions on self-defense. Petitioner asserts that the State’s evidence was that Mr. Montgomery shot at Matthew Flack only after Matthew Flack shot Petitioner, who was unarmed. Petitioner also contends that without an instruction on “self-defense by defense of another,”
In Wade, we addressed whether a self-defense instruction was available in response to a charge of felony murder where the predicate felony was delivery of controlled substance. Id. at 645,
[a] defendant who is not the aggressor ... has reasonable grounds to believe, and actually does believe, that he is in imminent danger of death or serious bodily harm from which he could save himselfonly by using deadly force against Ms assailant has the- right to employ deadly force in order to defend himself.
Id. (emphasis added) (quoting State v. W.J.B.,
In the case before us, the evidence presented at trial did not support a request for a self-defense'instruction. The jury heard testimony that Petitioner and Ms accomplices, armed with handguns and donmng ski masks, Mcked in the back door of and entered the" Flack Residence, thus demonstrating that Petitioner was the aggressor. Accоrdingly, we find no abuse of discretion in the habeas court’s demal of habeas relief on tMs issue.
B. False Evidence
Petitioner additionally contends that the State presented evidence that it knew, or had reason to believe, was false. Specifically, Petitioner relies upon: '(l) various alleged inconsistencies and inaccuracies in the testimony of Ms. Shorter; (2) Mr. Montgomery’s failed polygraph test; and (3) the inconsistent testimony of two police officers about where the Hi-Point pistol used to kill Matthew Flack was found. The State contends, and the habe-as court found, that all of Petitioner’s claims are grounded solely upon inconsistent witness testimony and because credibility determinations remam in the province of the jury, Petitioner has not made the reqmsite showing of falsity.
In State ex rel. Franklin v. McBride,
We have previously held that “[although it is a violation of due process for the State to convict a defendant based оn false evidence, such conviction will not be set aside unless it is shown that the false evidence had a material effect on the jury verdict.” Syl. Pt. 2, In re Investigation of W. Va. State Police Crime Lab., Serology Div.,
In Franklin, we articulated the following test that" applies to a claim that the State presented false evidence:
In order to obtain a new trial on a claim that the prosecutor presented false testimony at trial, a defendant must demonstrate that. (1) the prosecutor presented false testimony, (2) the prosecutor knew or should have known the testimony was false, and (3) the falsé' testimony had a material effect on the jury verdict.
Syl. Pt. 2, Franklin, 226 W.Va 375,
We likewise find Petitioner’s argument that Mr. Montgomery failed a polygraph examination equally unconvincing. This court has held that “[pjolygraph test results áre not admissible in evidence in a criminal trial in this State.” Syl. Pt. 2, State v. Frazier,
[T]he defendant claims that the prosecuting attorney should have known- there was a substantial probability that some evidence against the defendant was false, and that this false evidence materially affected the verdict.... The defendant points to the low character and incentive to lie of the State’s witnesses, and appears to argue that this should have put the prosecutor on notice that these witnesses were not telling the truth.
Id. at 27,
We are not convinced by the defendant’s argument. Not only is there no evidence in the record which supports the claim that the prosecutor knew or should have known that evidence was false, there is no proof that any of the State’s evidence was actually false. Rather, all that the defendant can demonstrate is that [the] State’s witnesses were disreputable persons who had reasons to lie. The witnesses’ characters and motives were adduced at trial and argued at length to the jury.
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It was the role of the jury to weigh the evidence and make credibility assessments after it observed the witnesses and heard their testimony. The jury made its determination, and this Court will not second guess it simply because we may have assessed the credibility of the witnesses differently.
Id. at 27,
We therefore find no abuse of discretion in the habeas court’s rejection of Petitioner’s assignment of error based upon alleged false evidence presented by the State.
In its cross-assignment of error, the State asserts that the habeas court erred when it concluded that Petitioner’s sentence for his robbery conviction violated double jeopardy. In ruling on this issue, the habeas court stated in its order:
The jury was properly instructed on the felony murder doctrine whereby the jury had to be instructed as to which felony or felonies were the underlying felony offenses to the murder. The jury was instructed that burglary was the underlying felony offense to the felony murder and the subsequent conviction and penalty therefore was properly merged with the murder offense. The Petitioner has argued that in this case, the burglary offense was dependent upon the robbery offense, which was also instructed to the jury:
Murder of the First Degree is committed when any person in the commission of or attempt to commit burglary kills another person. Under the felony-murder doctrine, Murder of the First Degree does not require proof of the elements of willfulness, deliberation, premeditation, malice or specific intent to kill. It is deemed sufficient if the homicide occurs during the commission of or the attempt to commit burglary.
Burglary is committed when any person breaks and enters, or enters without breaking either in the daytime or nighttime a dwelling house or outhouse adjoining thereto, or occupied therewith of another person with the intent to commit a crime therein, including, but not limited to robbery, larceny, or brandishing.
Before the Defendant can be convicted of Murder of the First Degree under the Felony-Murder Doctrine, the State of West Virginia must overcome the presumption that the Defendant is innocent and prove to the satisfaction of the jury beyond a reasonable doubt that:
1. The Defendant
2. in Mercer County, West Virginia
3. on or about January 29, 2011
4. with the intent to commit the offense of Burglary
5. did enter without breaking in the nighttime
6. the dwelling house
7. belonging to David and Matthew Flack
8. with the intent to commit the crime of armed robbery and/or larceny therein
9. and that the Defendant and/or his accomplices in the commission of Burglary
10. did
11. in Mercer County, West Virginia
12. on or about January 29,2011
13. Cause the death of Matthew F. Flack.
If after impartially considering, weighing and comparing all the evidence, (both that of the State and that of the Defendant) the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these elements of Murder of the First Deyree, you may find the Defendant guilty of Murder of the First Degree as charged in Count One of the indictment. If the jury and each member of the jury have a reasonable doubt of the truth of the charge as to anyone or more of these elements of Murder of the First Degree, you shall find the Defendant not guilty, (emphasis [in original])
Based upon the jury instructions, and the fact that the robbеry was the common denominator to the burglary and to the first degree murder offense, thisCourt improperly sentenced the Petitioner to an additional forty years on the robbery offense—the robbery should have been merged with the felony murder as the other underlying predicate felony offense. The instructions provided that in addition to the burglary, the robbery also served as an element to the first degree murder charge, accordingly, the robbery was also a lesser included offense to the murder, and the Petitioner should not have been convicted and punished for that lesser included crime as well.
In the case sub judice, there was only one murder victim, therefore the underlying felonies (both burglary and robbery) should have been merged with the felony murder conviction. The Court agrees with the Respondent that on the appeal in this matter, the Supreme Court of Appeals noted the sentence, but made no other comment about it. However, the Court is aware that the issues raised herein, double jeopardy and excessive or severe sentences, were not raised on appeal, therefore, those issues were not before the Supreme Court. Nevertheless, after review of the legal precedent, the Court agrees with the Petitioner: the Petitioner’s conviction for robbery should have been dismissed and the sentence therefore should have been subsumed by the greater felоny murder . offense. Accordingly, the Court FINDS and CONCLUDES that the Petitioner’s grounds for double jeopardy, excessive sentence, and severer .sentence than expected were proved by a preponderance of the evidence.
(Emphasis added).
The State contends that robbery is not a lesser-included offense of either burglary or felony-murder predicated upon a burglary, as the habeas court concluded. According to the State, the fact that a burglary can be predicated upon a showing that an individual intended to or completed a robbery does not reduce- robbery to a lesser-included offense of burglary and does not make robbery the predicate offense to this felony-murder. The State also contends that in Petitioner’s case the crimes of robbery and burglary “require proof of a fact which the other does not.” State v. Pancake,
In response, Petitioner alleges that the prosecution chose to present this case under the felony-murder rule to take advantage of the significant benefits to the State of not having to prove, premeditation, deliberation, malice or even a specific intent to kill. Petitioner claims that in exchange for those substantial advantages and reduced burden of proof, the State should not be able to then seek additional sentences for the underlying enumerated offenses, He asserts that because the State had to prove an intent to commit robbery as an element of proving burglary, this made it impossible for the court to determine which offense was the basis of the felony-murder verdict.
“The double jeopardy clauses of our federal and state constitutions protect an accused in a criminal proceeding from multiple prosecutions and multiple punishments for the same offense,” Williams,
In the absence of any expression of legislative intent on the issue, the test of whether violations of separate statutory provisions arising out of one criminal episode
In Syllabus Point 8 of Williams, we held that “[d]ouble jeopardy prohibits an accused charged with felony-murder, as defined by W.Va. Code § 61-2-1 (1977 Replacement Vol.) from being separately tried or punished for both murder, and the underlying enumerated felony.” Syl. Pt. 8, Williams,
[A]pply[ing] the same evidence test .., we think it is clear that the [underlying felony] upon which a felony-murder case is based constitutes a lesser included offense. The commission of the [underlying felony] was an essential element of the crime of felony-murder as proved by the State. The statute[ ] which define[s] [the underlying felony] do[es] not require proof of any fact which the felony-murder provision did not. Consequently ... we hold that double jeopardy prohibits an accused charged with felony-murder ... from being separately tried or punished for both murder and the underlying enumerated felony.
Id. at 311,
, In this' case, Petitioner was convicted of the charges of conspiracy, robbery, burglary, and felony murder. It is evident from the record that the underlying felony upon which the felony murder charge was predicated was burglary. Therefore, the ha-beas court’s merger of those two offenses was proper under Williams. However, the habeas court’s conclusion that Petitioner’s robbery conviction violated double jeopardy was erroneous because robbery is not lesser included offense of burglary or a felony murder predicated upon burglary. Each provision requires proof of a fact which the other does not.
West Virginia Code § 61-2-12(a) (2014) provides, in pertinent part, as follows:
Any person who commits or attempts to commit robbery by: (1) Committing violence to the person, including, but not limited to, partial strangulation оr suffocation or by striking or beating; or (2) uses the threat of deadly force by the presenting of a firearm or other deadly weapon, is guilty of robbery in the first degree and, upon conviction thereof, shall be imprisoned in a state correctional facility not less than ten years.
In State v. Harless,
[a]t common law, the definition of robbery was (1) the unlawful taking and carrying away, (2) of money or goods, (3) from the person of another or in his presence, (4) by force or putting him in fear, (5) with intent to steal the money or goods. (Internal citations omitted). Thus, at common law, robbery could be accomplished either by actual physical force or violence inflicted on the victim or by intimidating the victim by placing him in fear of bodily injury. (Internal citations omitted) ... There were no degrees or grades of common law robbery.
W.Va. Code, 61-2-12, enacted in 1931, divides robbery into two separate classes and calls for different penalties: (1) rob.bery by violence .or by the use of a dangerous weapon, and (2) all other robberies. By dividing robbery into these two categories, our legislature joined a number of other legislatures in recognizing a greater culpability and more severe punishment for a robbery committed by violent means than for a robbery committed by nonviolent means. (Internal citation omitted),
(footnotes omitted). In discussing the essential elements to prove robbery in light of the amendments to West Virginia Code § 61-2-12, we stated in Harless:
[w]e previously noted that under the common law definition robbery could be committed by two general means. The first was by force and violence to the person, in which event there is no necessity to prove that the victim was placed in fear of bodily injury, since the actual force on the victim can be presumed to have engendered fear. (Internal citations omitted).
The second common law means of committing robbery was through intimidation, that is, by placing the victim in fear, usually of bodily injury. It is this second category under the common law definition which encompasses our nonaggravated [second degree] form of statutory robbery. Therefore, the distinguishing feature of a nonag-gravated [second degree] robbery is that it is accomplished, not through violence to the victim or the threat or presentation of firearms or other deadly weapon or instrumentality, but through intimidation that induces fear of bodily injury in the victim. In the case of an aggravated [first degree] robbery, fear of bodily injury is not an essential element of the crime, since the actual physical force or violence or threat or presentation of firearms or other deadly weapon or instrumentality can be presumed to have created fear of bodily injury.
[a]n appropriate charging portion of an instruction for “aggravated” robbery would be:
“Aggravated robbеry is defined as the unlawful taking and carrying away of money or goods from the person of another, or in his presence, by the use of force or violence on the victim or through the use of a dangerous or deadly weapon or instrumentality, and with the intent to steal such property.”
Id. at 712 n.8,
[A] plain reading of subsections (a) and (b) of W.Va. Code, § 61-2-12 shows that the Legislature has more or less codified the common law definition of robbery and graded the degrees of robbery according to the level of violence involved, with First Degree encompassing the more dangerous and violent forms of robbery (the common law equivalent of “robbery by force”) and Second Degree encompassing the less dangerous forms of robbery (the common law equivalent of “robbery by fear”).
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[Thus,] First Degree Robbery require[s] that the State prove beyond a reasonable doubt that the offense alleged was committed with “violence to the person” or that the offense was committed with a “threat of deadly force by the presenting of a firearm or other deadly weapon.” W.Va. Code, § 61-2-12 (a)[J
State v. Gibbs,
In contrast, West Virginia Code § 61-3-11(a) (2014) provides:
(a) Burglary shall be a felony and any person convicted thereof shall be confinedin the penitentiary not less than one nor more than fifteen years. If any person shall, in the nighttime, break and enter, or enter without breaking, or shall, in the daytime, break and enter, the dwelling house, or an outhouse adjoining thereto or occupied therewith, of another, with intent to commit a crime therein, he shall be deemed guilty of burglary.
Thus, in order to obtain a conviction for burglary under West Virginia Code § 61-3-11(a), the State was required to prove the following elements beyond a reasonable doubt: (1) entrance, with or without a breaking at night, but requiring a breaking during the day, (2) into a dwelling house or adjoining outhouse, (3) of another, (4) with intent to commit a crime therein. W. Va. Code § 61-3-11(a); see also State v. Louk,
When we compare the required elements for robbery and burglary, it is evident that each provision requires proof of a fact that the other does not. In order to obtain a conviction for each separate offense, the State was required to put on evidence demonstrating Petitioner entered the Flack Residence intending not only to steal (burglary), but also to steal by committing violence to Matthew Flack (robbery). Here, the jury concluded that Petitioner was either aware that Mr. Montgomery had a weapon, or he used force when he put his hands on Matthew Flack and they struggled in the stairwell.
The same logic applies when we compare the elements of robbery and felony murder predicated on burglary. As to felony murder:
“ ‘[T]he elements which the State is required to prove to obtain a conviction of felony murder are: (1) the commission of, or attempt to commit, one or more of the enumerated felonies; (2) the defendant’s participation in such commission or attempt; and (3) the death of the victim as a result of injuries received during the course of such commission or attempt.’ State v. Williams,172 W.Va. 295 , [310,]305 S.E.2d 251 , 267 (1983).”
Syl. Pt. 5, Mayle,
Accordingly, we conclude that double jeopardy did not preclude the imposition of a separate sentence punishing Petitioner for the robbery conviction in this cаse, and the habeas court erred when it granted Petitioner relief habeas relief from the robbery sentence.
IV. CONCLUSION
For the foregoing reasons, we conclude that Petitioner has not demonstrated that he is entitled to habeas relief. Moreover, the habeas court’s dismissal of Petitioner’s robbery conviction was erroneous. Accordingly, we affirm, in part, and reverse, in part, the August 24, 2015 order of the Circuit Court of Mercer County, and we remand this matter with instructions to reinstate Petitioner’s conviction and sentence for robbery on the terms previously imposed.
Affirmed, in part, Reversed, in part, and Remanded with Instructions.
Notes
. Because Petitioner's claims stem from the underlying trial in this matter, we refer to Respondent simply as “the State.” See Tex S. v. Pszczolkowski,
. The record before the Court reflects that Joseph Flack was blind.
. According to the testimony of India Simmons at trial, a minor child, who was asleep on the couch during these events, was also present in the house.
. The record before us in this proceeding reflects that at trial, co-defendant Jasman Montgomery testified that when he turned around, he heard either Petitioner or Jacob Thomas kick in the back door.
. At trial, Petitioner claimed, and the State did not contest, that he was unarmed.
, Although there is a dispute in the record before the Court regarding the point at which Ms. Davis and Ms. Burelson joined the men, it is undisputed that Ms. Davis and her friend, Ashley Burel-son, were at the hospital with Petitioner's accomplices when officers arrived to investigate.
. The State also presented several other witnesses at trial: Officers R.S. Gibson and R.D. Davis, who responded to and investigated the crime scene and the car driven by Petitioner and his accomplices on the night of the crime; Lieutenant Scott Myers, the lead investigating officer on the case; Officer John Whitt, who responded to the crime scene’ and assisted in processing the evidence found at the crime scene and in the car; Mel Thomas (the victim’s friend) and India Simmons (the victim’s cousin), who were. in the Flack Residence at the time of the crime, who testified regarding the men’s forced entry into the home, Matthew Flack’s struggle with one of the masked men, and the gunshots they heard; Amanda Shorter, a woman who was staying in a house near Flack Residence on the night of the crime, who testified that she witnessed four men get out of a car, change into dark clothing, and enter and exit the Flack Residence; Lt. Roger Reed, section head of the forensic firearm and tool mark section of the West Virginia State Police Forensic Laboratory, who examined the firearms collected from the crime scene and the car; Koren Powers, section supervisor of the trace evidence at thе West Virginia State Police Forensic Laboratory who examined all of the evidence submitted from the crime scene for gunshot residue; Mary Heaton, a DNA analyst at the West Virginia State Police Forensic Laboratory who confirmed that Petitioner’s DNA was found on one of the ski masks found in the car; and Dr. Byron Smith, the emergency room physician who treated Petitioner for his gunshot wounds.
. The substance of Mr. LefLer’s testimony is discussed in further detail below,
. Our holding in Davis was consistent with our prior decision in State ex rel. Painter v. Zakaib,
The State correctly contends that while this Court acknowledged in Davis that West Virginia's felony murder statute does not "encompass[] every death that occurs in the course of a statutorily-enumerated felony regardless of who causes the death,” Id. at 668,
. Petitioner also argues that defense counsel failed to object to Mr. Montgomery testifying in jail clothes, but cites no legal authority for the proposition that permitting a witness for the State to testify in “inmate orange" constitutes ineffective assistance of counsel.
. On appeal, the State now argues that defense counsel's failure was not error because Mr. Montgomery’s testimony was not elicited for purposes of proving Petitioner’s guilt,, but rather to aid the jury’s credibility determination. However, because defense counsel admitted in post-conviction proceedings that they were unaware of this Court’s holding in Caudill, the habeas court properly determined that defense counsel committed error.
. There is no such legal concept. Self-defense and defense of another are two separate doctrines. See State v. Cook,
. Additionally, Petitioner contends that even though defense counsel did not object, the State during closing arguments made several impermissible statements vouching for the credibility of Mr. Montgomery that constituted plain error and substantially contributed to a clear miscarriage of justice and the denial of his right to a fair trial. Although Petitioner raised this issue as a ground for relief when he filed his Losh checklist with the habeas court, this argument was never developed in Petitioner’s habeas petition below or discussed during the omnibus hearing. The habeas court summarily found that because it did not hear any evidence supporting this enumerated ground, this argument was without merit, insofar as the issue had not been proven by a preponderance of the evidence. We affirm the habeas court's finding, as the issue was undeveloped and therefore waived.
Concurrence in Part
concurring, in part, and dissenting, in part.
While I generally agree that the petitioner is not entitled to habeas relief, I take exception on one issue. I disagree with the majority’s conclusion that double jeopardy did not prevent the petitioner from being tried and punished for both felony-murder and robbery. I would uphold the ruling of the habeas court which dismissed the robbery conviction,
Both burglary and robbery are included, in the list of predicate offenses pertaining to felony-murder in W.Va. Code, 61-2-1 [1991]. Here,-as. the trial court’s instructions demonstrate, both burglary and robbery were placed before the jury in the context of felony-murder. Although the trial court later dismissed the burglary conviction as having merged with the felony-murder conviction, the -petitioner -wаs nevertheless convicted of robbery. The result was an additional penitentiary sentence of forty years for robbery to be,served consecutively with the murder and conspiracy convictions. The robbery .charge was, thus, treated by the trial court as both ah element of felony-murder and as a separate offense, resulting in the additional sentence.
Even though the jury was instructed that robbery, under the circumstances, could be considered in conjunction with burglary, it is impossible to tell from the trial record the respective weight the jury assigned to the burglary and robbery charges. If the jury based its felony-murder conviction on robbery, double jeopardy would prohibit the petitioner from being convicted and sentenced for both felony-murder and robbery. It can reasonably be inferred that the jury gave significant consideration to the robbery charge inasmuch as the petitioner was found guilty of robbery in the first degree.
Syllabus point 8 of State v. Williams,
Therefore, for the reasons stated, I concur, in part, and dissent, in part.