Clavin Gray v. Donnie Ames

FILED
June 23, 2021
STATE OF WEST VIRGINIA EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Calvin Gray,
Petitioner Below, Petitioner
vs.) No. 19-0849 (Kanawha County 98-MISC-545 and 06-MISC-350)
Donnie Ames, Superintendent,
Mt. Olive Correctional Complex,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner Calvin Gray, by counsel Robert P. Dunlap II, appeals the order of the Circuit
Court of Kanawha County, entered on August 25, 2019, denying his amended petition for a writ
of habeas corpus. Respondent State of West Virginia appears by counsel Patrick Morissey and
Andrea Nease Proper.
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 order of the circuit court is appropriate under Rule 21 of
the Rules of Appellate Procedure.
Mr. Gray, currently serving a sentence of incarceration for life, without mercy, for his
conviction of the first-degree murder of Artissa Bennett, appeals the Circuit Court of Kanawha
County’s denial of his petition for a writ of habeas corpus on twelve grounds. He asserts that: 1)
the trial court gave the jury a “burden-shifting” instruction that violated his constitutional rights;
2) the trial court gave the jury an improper “malice” instruction that violated his constitutional
rights; 3) the habeas court abused its discretion in finding that petitioner was properly indicted; 4)
the habeas court abused its discretion in denying habeas relief on the basis that he was improperly
indicted; 5) the habeas court abused its discretion in denying habeas relief on the ground that the
State committed a Brady v. Maryland, 373 U.S. 83 (1963) violation affecting his criminal trial; 6)
the habeas court erred in denying relief on his claims that errors in the serology report created
during the criminal investigation violated his constitutional rights; 7) he was prejudiced by
ineffective assistance of trial counsel; 8) the habeas court abused its discretion in contacting the
State for submission of proposed findings of fact and conclusions of law, and in subsequently
adopting the same findings of fact and conclusions of law; 9) the habeas court erred in determining
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that he could have been sentenced as a principal offender in two murder counts; 10) the habeas
court failed to consider newly-discovered evidence in the form of an affidavit from his deceased
half-brother; 11) the trial court erred in allowing the State to ask racially-charged questions during
the omnibus hearing; and 12) his trial was so tainted cumulative error that his constitutional rights
were violated. In reviewing these challenges, “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, in part, Mathena v. Haines, 219 W. Va. 417, 633 S.E.2d 771 (2006).
When tried in 1991 for the murder of Ms. Bennett, Mr. Gray testified that his half-brother,
Karl Finney, beat Ms. Bennett and stabbed another victim, Christopher Dillard, after Mr. Gray and
Mr. Dillard physically fought over Mr. Dillard’s request to sell crack cocaine from Mr. Gray’s
home. According to Mr. Gray, after Mr. Finney attacked Mr. Dillard and Ms. Bennett, Mr. Gray
placed a coat on Ms. Bennett and walked her to his van, then bound and carried Mr. Dillard to the
van. 1 Mr. Gray’s intent, he testified, was to take both victims to the hospital. He realized en route,
however, that Mr. Dillard was likely dead, so he abandoned his plan to go to the hospital and
instead took both victims to a remote location and “dropped” them.
When Ms. Bennett and Mr. Dillard were killed, several of Mr. Gray’s family members
were in the family home. Among them was Mr. Gray’s thirteen-year-old nephew, who testified
that he saw Mr. Gray fight Mr. Dillard. The nephew testified that Mr. Gray instructed him to get a
sock to stuff into Ms. Bennett’s mouth and instructed his younger sister (Mr. Gray’s niece) to get
a wire, presumably to be used in restraining the dying Mr. Dillard. The nephew accompanied Mr.
Gray to dispose of the bodies after Mr. Finney handed the nephew a hammer and told him to hit
Mr. Dillard if Mr. Dillard moved. The nephew testified that Ms. Bennett cried while being
transported in the van, and that after Mr. Gray removed her from the van and took her out of sight,
the nephew heard Ms. Bennett scream. Ms. Bennett’s and Mr. Dillard’s bodies were found where
Mr. Gray left them. Ms. Bennett had been stabbed more than fifty times.
No error assigned by Mr. Gray in this appeal addresses the admission of Mr. Gray’s, the
nephew’s, or other witness testimony.
In this appeal of the denial of his petition for a writ of habeas corpus, Mr. Gray asks us to
grant relief on the basis that his constitutional rights were disregarded through numerous errors.
“Failure to observe a constitutional right constitutes reversible error unless it can be shown that
the error was harmless beyond a reasonable doubt.” Syl. Pt. 5, State v. Blair, 158 W. Va. 647, 214
S.E.2d 330 (1975). Presented with the detailed and uncontroverted testimony summarized above,
we find that only the most extraordinary error would have prejudicially clouded Mr. Gray’s
conviction. No errors asserted by Mr. Gray—singularly or cumulatively—rise to the extraordinary
level necessary to germinate a seed of doubt.
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Mr. Gray was convicted of Ms. Bennett’s murder and Mr. Finney was convicted of Mr.
Dillard’s murder in separate trials.
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Superficially, Mr. Gray raises valid concerns. With respect to the challenged jury
instructions (the first and second assignments of error), for example, the circuit court found early
in its proceedings that the first was unconstitutional but harmless beyond a reasonable doubt, and
it deemed the second waived because Mr. Gray failed to raise the question of its error together
with questions about the first. But it is apparent that neither instruction affected the outcome of
Mr. Gray’s trial. 2 Similarly, the circumstances of Mr. Gray’s indictment (the third, fourth, and fifth
assignments of error) present oddities, inasmuch as it was long believed that an equipment
malfunction prevented transcription. However, as the circuit court adequately explained, there is
no apparent error in the manner of the indictment and there is thus no Brady violation for the
State’s failure to produce the transcript. Likewise, though Mr. Gray’s blood type was misidentified
in the State’s serology report (the sixth assignment of error), the serology report was not introduced
into evidence and was not the basis for any testimonial evidence other than a state trooper’s
statement that blood found in petitioner’s van was consistent with either Mr. Gray’s or Mr.
Dillard’s blood type. Mr. Gray’s own testimony establishes that it is very likely that Mr. Dillard
bled in the van during transport.
Mr. Gray’s counsel may have made questionable strategic decisions (the seventh
assignment of error), such as failing to interview Mr. Gray’s mother, who was in the home at the
time of the murders but may or may not have been capable of communication after suffering a
stroke, and failing to interview witnesses who were near the remote area where Ms. Bennett’s and
Mr. Dillard’s bodies were found. We have explained that
“[t]he fulcrum for any ineffective assistance of counsel claim is the
adequacy of counsel’s investigation. Although there is a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance,
and judicial scrutiny of counsel’s performance must be highly deferential, counsel
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Petitioner filed his petition for habeas corpus in 1998, and an amended petition by counsel
in 2004. The circuit court conducted a hearing in 2004, to consider the constitutionality of the trial
court’s instruction on intent, which petitioner asserted shifted the burden of proof to him. In an
order entered in October of 2004, the circuit court wrote that “the parties agreed to bifurcate this
matter to let this [c]ourt resolve the issue on an instructional error” and noted that the State
conceded that an erroneous, burden-shifting instruction was given. The court found, however, that
because petitioner invited the error by proposing the instruction and based on evidence like that
summarized in the body of this decision, the instruction had no bearing on the outcome of the trial.
Petitioner appealed and this Court declined to docket the appeal because it challenged an
interlocutory order. Then, while his first petition for habeas corpus was pending, petitioner filed a
second petition for habeas corpus that was consolidated with the first. While the consolidated
petitions were pending, in 2008, he filed an additional petition for a writ of habeas corpus, and he
also amended his first-filed petition. Then, in 2015, he filed a motion for summary judgment
concerning the burden-shifting instruction, which was already addressed by the circuit court, and
the malice instruction, which petitioner argues was delivered in such a way that the jury could
presume petitioner’s malice toward Ms. Bennett. We agree with the circuit court that the circuit
court’s October 2004, order addressed all challenges to the court’s instructions, that the particular
wording of the first instruction did not prejudice petitioner, and that petitioner failed to address
specific error in the second instruction when seeking relief from the circuit court.
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must at a minimum conduct a reasonable investigation enabling him or her to make
informed decisions about how best to represent criminal clients. Thus, the
presumption is simply inappropriate if counsel’s strategic decisions are made after
an inadequate investigation.” Syllabus point 3, State ex rel. Daniel v. Legursky, 195
W.Va. 314, 465 S.E.2d 416 (1995).
Syl. Pt. 5, State ex rel. Vernatter v. Warden, W. Virginia Penitentiary, 207 W. Va. 11, 528 S.E.2d
207 (1999). In this case, Mr. Gray has proffered no fact that his trial counsel might have discovered
that would have countered Mr. Gray’s own testimony about the circumstances surrounding Ms.
Bennett’s murder. Furthermore, it is apparent from the trial court’s conversation with Mr. Gray
(prior to his testimony) that Mr. Gray was fully informed regarding his rights, and he willingly and
knowingly chose to testify. He has not alleged that counsel erred in advising him about that
decision. For these reasons, we find that “there is [no] reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceedings would have been different.” Syl. Pt. 5, in part,
State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).
Several of the assignments of error asserted by Mr. Gray address the conduct of the habeas
court that had no bearing on his criminal conviction. Mr. Gray was not prejudiced by the trial
court’s acceptance of the State’s proposed findings of fact and conclusions of law after the omnibus
hearing conducted in this proceeding, even if filed after the court’s deadline (the eighth assignment
of error). He likewise was not prejudiced by the circuit court’s statement that he could have faced
criminal prosecution and conviction for his part in Mr. Dillard’s death (the ninth assignment of
error). Finally, Mr. Gray argues that the omnibus proceeding was permeated with racially-charged
language (the eleventh assignment of error), but our review of the record reveals no improper
epithets, and any questions concerning race were asked in relation to Mr. Gray’s argument that his
counsel did not consider the racial makeup of juries in Kanawha County.
Curiously, Mr. Gray produced an affidavit executed by Mr. Finney, which Mr. Gray claims
to have found in Mr. Finney’s belongings after his death, wherein Mr. Finney claims responsibility
for both victims’ murders. Mr. Gray asserts that the habeas court erred in disregarding this “newly-
discovered evidence” (the tenth assignment of error). Though the affidavit conclusively states that
Mr. Finney had retrieved repressed memories from the night of the murders and is “now positive
that [Mr. Gray] did not stab” the victims, the factual events described in the affidavit substantially
reflect the details to which Mr. Gray testified: Mr. Gray and Mr. Dillard fought; Mr. Finney stabbed
Mr. Dillard, and attacked Ms. Bennett; Mr. Gray took both victims to the van while Ms. Bennett,
at least, was walking and “moaning[;]” and Mr. Gray drove away with his nephew and both victims
in the van, then returned to the home with only the nephew. In this respect, the affidavit presents
no new and material evidence and, for the reasons already discussed, would not present an opposite
result in a second trial on the merits. See Syl., State v. Frazier, 162 W. Va. 935, 253 S.E.2d 534(1979). The affidavit, therefore, does not fall within the parameters we have defined for newly-
discovered evidence.
For all the reasons described above, we find that the evidence offered at trial was so
unassailable that the cumulative effect (the twelfth assignment of error) of any of the minor errors
described herein was harmless beyond a reasonable doubt. Mr. Gray was convicted on the basis of
his own testimony wherein he described leaving home with one, and possibly two, living victims—
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one of whom he had bound while the victim bled to death—and “dropping” them in a hidden
location. Ms. Bennett was able to walk to the van when leaving Mr. Gray’s home, though when
her body was found, she had been stabbed more than fifty times. Mr. Gray’s nephew’s testimony
leaves no doubt that Ms. Bennett was alive when Mr. Gray took her from the van after transporting
her from the family home, and that the last thing heard from Ms. Bennett was a scream. No
combination of corrections to any of the errors asserted above could have presented this damning
testimony in a light more favorable to Mr. Gray.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: June 23, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice John A. Hutchison
Justice William R. Wooton
DISQUALIFIED:
Justice Tim Armstead
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