Keith M. Molineaux v. Donnie Ames

STATE OF WEST VIRGINIA FILED
SUPREME COURT OF APPEALS March 16, 2021
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Keith M. Molineaux,
Petitioner Below, Petitioner
vs) No. 18-0898 (McDowell County 04-C-221-M)
Donnie Ames, Superintendent,
Mt. Olive Correctional Complex,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner Keith M. Molineaux, by counsel Michael E. Froble, appeals the September 28,
2018, order of the Circuit Court of McDowell County denying his instant petition for a writ of
habeas corpus. Respondent Donnie Ames, Superintendent, Mt. Olive Correctional Complex, by
counsel Shannon Kiser, filed a response in support of the circuit court’s order. Petitioner filed a
reply.
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.
On April 9, 2001, John and Kimmie Stepp were murdered in their home in Skygusty,
West Virginia. The following day, Thomas King entered the North Fork Police Department to
confess to his involvement in these murders. Mr. King informed officers that he, Brandon Britto,
James Jones, and petitioner drove to the Stepp household to purchase marijuana. Mr. King
recounted that petitioner was dissatisfied with the quality of Mr. Stepp’s marijuana, so Mr. Stepp
offered to obtain better marijuana. Upon hearing this offer, petitioner asked Mr. Stepp if he had
money for better marijuana. Mr. King stated that the situation escalated, and, ultimately,
petitioner placed a gun to Mr. Stepp’s head, demanded Mr. Stepp give him money, and, when
Mr. Stepp denied having money, ordered Mr. and Mrs. Stepp to the rear of their home.
1
Petitioner directed Mr. Britto to come with him to the rear of the home, and he instructed
Mr. King and Mr. Jones to search the home. Mr. King stated that once petitioner, Mr. Britto, and
the Stepps were in the rear of the home, Mr. King, who was toward the front of the home, heard
a gunshot. Hearing the gunshot prompted Mr. King to flee from the Stepp residence. As Mr.
King ran to the car, he heard a second gunshot. Mr. King entered the car in which the four men
arrived, and, shortly thereafter, the three other men joined him. The four men then left the scene.
According to Mr. King, while in the car, petitioner admitted to shooting and killing both Stepps.
Petitioner was subsequently indicted for the first-degree murder of John Stepp, the first-
degree murder of Kimmie Stepp, first-degree robbery, burglary, conspiracy to commit robbery,
conspiracy to commit murder, and conspiracy to commit burglary. Petitioner’s trial on these
charges began on April 22, 2002. On April 25, 2002, the jury found petitioner guilty of each
first-degree murder charge, robbery, conspiracy to commit robbery, burglary, and conspiracy to
commit burglary. Petitioner was acquitted of conspiracy to commit murder.
On May 16, 2002, petitioner was sentenced in the Circuit Court of McDowell County to
life without mercy for each of his first-degree murder convictions. The life sentences were to run
consecutively. The circuit court noted that these convictions were obtained under the felony
murder rule; accordingly, pursuant to State v. Williams, 172 W. Va. 295, 305 S.E.2d 251 (1983),
petitioner was not sentenced for the underlying robbery or burglary convictions. Petitioner
appealed his conviction to the West Virginia Supreme Court of Appeals, but that appeal was
refused by order entered on January 27, 2004. Petitioner thereafter appealed to the Supreme
Court of the United States, but the writ of certiorari was denied on June 14, 2004.
Petitioner initially filed a petition for habeas corpus relief in the circuit court in 2004. The
circuit court denied the petition without the appointment of counsel or an evidentiary hearing. On
December 28, 2005, petitioner appealed the denial of his habeas petition to this Court. Pursuant
to this Court’s prior order in Case No. 33157, petitioner’s petition for a writ of habeas corpus
was granted returnable below for appointment of counsel and the holding of an evidentiary
hearing.
Petitioner thereafter filed multiple original jurisdiction petitions for mandamus and
habeas relief with this Court, all of which were denied. Eventually, petitioner filed the instant
petition for a writ of habeas corpus in the circuit court in which he asserted twenty-seven
grounds for relief.! The circuit court set the matter for an omnibus hearing split over three days:
'Petitioner’s twenty-seven grounds for habeas relief are: (1) ineffective assistance of
counsel based upon counsel’s failure to call witnesses during the suppression hearing; (2)
ineffective assistance of counsel based upon counsel’s failure to provide a time notice to co-
defendants to organize a “show up” in front of the jury; (3) ineffective assistance of counsel
based upon counsel’s failure to investigate and/or interview additional defense witnesses; (4)
ineffective assistance of counsel based upon counsel’s failure to call the victims’ minor daughter
as a witness during trial; (5) ineffective assistance of counsel based upon counsel’s failure to
(continued .. . )
March 26, 2018; April 3, 2018; and June 18, 2018. Over the three days set aside for the omnibus
evidentiary hearing, petitioner called numerous witnesses in an attempt to prove his case.
Petitioner now appeals the circuit court’s September 28, 2018, order denying the instant
habeas petition. This Court reviews a circuit court order denying a habeas petition under the
following standards:
“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
object to leading questions asked by the prosecutor during co-defendant King’s direct
examination during the State’s case-in-chief; (6) ineffective assistance of counsel based upon
counsel’s failure to move for a change of venue; (7) ineffective assistance of counsel based upon
counsel’s failure to object to statements obtained in violation of Petitioner’s Fifth Amendment
rights; (8) ineffective assistance of counsel based upon counsel’s failure to object to the trial
court’s robbery instruction to the jury; (9) ineffective assistance of counsel based upon counsel’s
failure to object to the trial court’s failure to instruct the jury that the arguments of counsel are
not to be considered evidence; (10) ineffective assistance of counsel based upon appellate
counsel’s failure to challenge the trial court’s failure to instruct the jury that the arguments of
counsel are not to be considered evidence; (11) ineffective assistance of counsel based upon
appellate counsel’s failure to challenge the trial court’s failure to instruct the jury that the
arguments of counsel are not to be considered evidence; (12) ineffective assistance of counsel
based upon counsel’s failure to seek a psychological evaluation of Petitioner to determine
competency and criminal responsibility; (13) ineffective assistance of counsel based upon
counsel’s failure to question potential jurors regarding prejudice and bias; (14) ineffective
assistance of counsel based upon counsel’s failure to object to the hearsay testimony of Officer
Jones; (15) ineffective assistance of counsel based upon counsel’s failure to investigate forensic
evidence; (16) ineffective assistance of counsel based upon counsel’s failure to call Sergeant J.
R. Pauley as a witness during the suppression hearing; (17) ineffective assistance of counsel
based upon counsel’s failure to rebut evidence of Petitioner’s confession; (18) ineffective
assistance of counsel based upon counsel’s failure to develop mitigating evidence; (19)
ineffective assistance of counsel based upon counsel’s failure to object to hearsay; (20) plain
error by virtue of the trial court’s incorrect jury instruction on robbery; (21) prosecutorial
misconduct based upon the prosecutor’s failure to establish chain of custody information relating
to the murder weapon, clothes, bandanas and other evidence collected during the investigation;
(22) insufficiency of the indictment based upon the State’s failure to include the item taken; (23)
actual innocence; (24) a due process violation based upon differing case numbers being used
during petitioner’s criminal proceedings; (25) a violation of the prompt presentment rule; (26) a
violation of petitioner’s Fifth Amendment right against self-incrimination; and (27) a violation of
the Confrontation Clause predicated upon the witnesses that trial counsel should have sought to
include as witnesses at trial.
questions of law are subject to a de novo review.” Syl. Pt. 1, Mathena v. Haines,
219 W.Va. 417, 633 S.E.2d 771 (2006).
“A court having jurisdiction over habeas corpus proceedings may deny a
petition for a writ of habeas corpus without a hearing and without appointing
counsel for the petitioner if the petition, exhibits, affidavits or other documentary
evidence filed therewith show to such court’s satisfaction that the petitioner is
entitled to no relief.’ Syllabus Point 1, Perdue v. Coiner, 156 W.Va. 467, 194
S.E.2d 657 (1973).” Syl. Pt. 2, White v. Haines, 215 W.Va. 698, 601 S.E.2d 18(2004).
Syl. Pts. 1 & 3, Anstey v. Ballard, 237 W. Va. 411, 787 S.E.2d 864 (2016). Petitioner contends
that he was denied effective assistance of counsel because his counsel failed to call any witnesses
in his defense, did not allow the petitioner to testify in his own defense, and failed to investigate
forensic evidence. Petitioner argues that some of the most critical evidence in the trial came from
the testimony of co-defendant Thomas King, who placed the sole responsibility of the murders of
John and Kimmie Stepp on him. The petitioner asserts that Mr. King’s statement required
effective counsel to persuade the jury that the allegations were false. Instead, petitioner was
persuaded not to testify at trial, and he was not given the opportunity to deny his involvement in
the shooting or a chance to explain the history between himself, the co-defendants, and the
victims.
Petitioner also argues that his trial court counsel failed to call his father, Kiko Molineaux,
and his girlfriend during his suppression hearing to testify that petitioner asked for an attorney on
two separate occasions while being questioned by the investigating officers. Petitioner argues
that his trial counsel failed to call these witnesses because his father wore his hair in dreadlocks.
Thus, petitioner contends that the decision to forego calling his father resulted not from strategy,
but racial stereotyping. Petitioner also contends that trial counsel erred in failing to offer his own
testimony. Petitioner argues that these failures prejudiced him because he was not given the
opportunity to deny or explain his involvement in the shooting and that any additional evidence
to refute Mr. King’s account was critical for the jury to evaluate his credibility.” Petitioner
further argues that the trial court did not have all of the evidence because his counsel chose not to
The circuit court noted that petitioner’s first-degree murder convictions were predicated
on the felony murder rule. Therefore, evidence concerning which co-defendant exited the Stepp
home last, and then, inferentially, which pulled the trigger, is immaterial. The deaths occurred
during the commission of an enumerated felony, irrespective of who pulled the trigger, is
sufficient to sustain a felony murder first-degree murder conviction. See W. Va. Code § 61-2-1.
(“Murder . . . in the commission of, or attempt to commit, arson, kidnapping, sexual assault,
robbery, burglary, breaking and entering, escape from lawful custody, or a felony offense of
manufacturing or delivering a controlled substance. . . is murder of the first degree.”).
question the one person who could testify that petitioner did not actually kill the Stepps, the
couple’s six-year-old daughter who witnessed the murders.
Petitioner asserts that his trial counsel was ineffective when he failed to investigate and
require the forensic testing of the petitioner’s clothing that was recovered by the investigating
officers. Petitioner contends that because the shooting was done at close range, there would have
been blood on his clothing if he were the shooter. By not securing the evidence and demanding
testing of the same, his trial counsel removed the opportunity to contradict the claim that
petitioner was indeed the shooter. Petitioner believes that the jury would have heard testimony
from the West Virginia State Crime Lab that the Petitioner had no blood or gunshot residue on
his clothing worn on the night of the shooting.
In West Virginia, claims of ineffective assistance of counsel are governed by the two-
prong standard set forth in Strickland v. Washington, 466 U.S. 668 (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).
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.
“When assessing whether counsel’s performance was deficient, we ‘must indulge a
strong presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance[.|’” /d. at 15, 459 S.E.2d at 126 (citation omitted). Further, to demonstrate prejudice,
“a defendant must prove there is a ‘reasonable probability’ that, absent the errors, the jury would
have reached a different result.” /d.
As a result, petitioner “bears a difficult burden because constitutionally accepted
performance is not defined narrowly and encompasses a ‘wide range’” /d. Indeed,
[t]he 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.
Id. Consequently, “the cases in which a defendant may prevail on the ground of ineffective
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assistance of counsel are few and far between one another.” /d.
Finally,
[i]n deciding ineffective assistance of counsel claims, a court need not
address both prongs of the conjunctive standard of Strickland v. Washington
... and State v. Miller, .. . but may dispose of such a claim based solely on
a petitioner’s failure to meet either prong of the test.
Syl. Pt. 5, State ex rel. Daniel v. Legursky, 195 W. Va. 314, 465 S.E.2d 416 (1995).
The circuit court concluded that the evidence adduced at the omnibus hearing does not
support petitioner’s asserted ground for relief for ineffective assistance of counsel. It was found
that petitioner’s father did not testify that he heard his son ask for an attorney prior to or during
petitioner’s questioning by the police, and no testimony from the girlfriend was adduced. The
officers present during petitioner’s arrest and subsequent questioning testified that petitioner did
not ask for an attorney.’ In fact, petitioner completed a form waiving his rights under Miranda v.
Arizona, 384 U.S. 436 (1966). The circuit court found that petitioner’s trial counsel did not
render deficient representation given that there is no evidence that petitioner’s father or girlfriend
heard petitioner invoke his right to counsel prior to or at the time of police questioning. The
circuit court also held that petitioner has failed to demonstrate that counsel’s failure to force a
small child to testify regarding her parents’ brutal murders amounts to deficient representation
rather than sound trial strategy.
Petitioner listed an ineffective assistance of counsel claim predicated on counsel’s failure
to object to the robbery jury instruction given. He seeks review of the instruction under the plain
error doctrine given counsel’s failure to object to the instruction. Petitioner acknowledges that
the trial court’s robbery instruction was taken directly from West Virginia Code § 61-2-12, but
he argues that the statute only states the means and manner by which a robbery is committed,
differentiates between the two classes of robbery, and prescribes a penalty for each class. The
specific elements of robbery are outlined in case law. The trial court’s instruction did not instruct
the jury that robbery included the unlawful taking of goods or money from the person, and the
intent to permanently deprive the owner or their property. Thus, petitioner asserts that the jury
was not instructed on the essential elements of robbery or attempted robbery.
Under the plain error doctrine, a court may, “in the interest of justice, notice plain error in
SAt the time of petitioner’s arrest, he was given his Miranda warnings. Following his
arrest, he was transported to the Bluefield Police Department and again given his Miranda
warnings. In fact, petitioner initialed and signed a waiver of rights form, which memorialized
these warnings, his understanding of them, and his waiver. During his interview with Trooper
Crowder, the petitioner made certain admissions. Petitioner now contends that Trooper Crowder
did not specifically inform him of his rights under Miranda.
the giving or refusal to give any instruction, whether or not it has been made the subject of
objection.” W. Va. R. Crim. P. 30; see also “To trigger application of the ‘plain error’ doctrine,
there must be (1) an error; (2) that is plain; (3) that affects substantial nghts; and (4) seriously
affects the fairness, integrity, or public reputation of the judicial proceedings.” Syl. Pt. 7, State v.
Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995). But the plain error doctrine “is to be used sparingly
and only in those circumstances where substantial rights are affected, or the truth-finding process
is substantially impaired, or a miscarriage of justice would otherwise result.” Syl. Pt. 2, in part,
State v. Rogers, 215 W. Va. 499, 600 S.E.2d 211 (2004). Also, plain error is not typically
recognized in the giving of an erroneous instruction, “even of constitutional magnitude, where
the giving of the erroneous instruction did not substantially impair the truth-finding function of
the trial court.” State v. Hutchinson, 176 W. Va. 172, 342 S.E. 2d 138 (1986).
The circuit court found that the truth-finding function of the trial court was not impaired
as it relates to petitioner’s robbery conviction because it does not rise to the level of plain error.
The circuit court noted that petitioner was also convicted of burglary, which is also a predicate
for felony murder. Petitioner does not challenge the instruction given on burglary. Also, at
petitioner’s sentencing, the trial court recounted that the jury convicted him of both robbery and
burglary and stated that, because petitioner’s felony murder convictions could be predicated on
either his burglary or robbery convictions, it did not sentence him for either burglary or robbery.
The circuit court determined that even if this Court were to assume error with respect to the
robbery instruction, it would still stand as a result of petitioner’s burglary conviction. The circuit
court found that any such error is harmless error because Petitioner cannot show that he is
imprisoned under a void sentence.* See W. Va. Code § 53-4A-1.
Secondly, in support of his petition for writ of habeas corpus, petitioner contends that the
State committed prosecutorial misconduct because it did not provide chain of custody
information relating to the murder weapon, clothes, bandanas, and all other evidence collected
during the investigation, despite being ordered to provide such evidence. The circuit court found
that the petitioner fails to articulate how chain of custody information would be exculpatory or
useable as impeachment evidence. Petitioner also fails to substantiate that any evidence was
suppressed by the State. The circuit court found that petitioner fails to explain how any alleged
failures prejudiced him at trial, particularly given that petitioner admits to being at the scene of
the murders.
In further support of his prosecutorial misconduct claim, petitioner asserts that the
prosecutor presented false testimony regarding his confession to Trooper Crowder. On the final
day of the omnibus hearing, petitioner called Trooper Crowder who testified that he was positive
that petitioner confessed to the murders. He stated that petitioner knew and understood his rights
at the time of his interview and that he never invoked his right to remain silent. Trooper Crowder
+ “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).
also noted that petitioner never requested an attorney. Petitioner contends that the fact that other
officers stated that petitioner did not confess renders Trooper Crowder’s claims concerning a
confession not credible. Petitioner also highlights the length of time that passed before Trooper
Crowder’s notes of the confession were ultimately provided by the State.
In order to obtain a new trial on a claim that a 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 false testimony had a material effect on
the jury verdict.”
Syl. Pt. 2, State ex rel. Franklin v. McBride, 226 W. Va. 375, 701 S.E.2d 97 (2009). The circuit
court found that petitioner has not satisfied his burden under Franklin. The fact that Petitioner
did not confess to all investigating officers does little to discredit Trooper Crowder’s testimony
concerning a confession. Likewise, the length of time that passed before the notes were produced
fails to establish that the testimony concerning the confession is false. The circuit court also
found that petitioner presented no evidence showing that the prosecutor knew or should have
known any such testimony was false. The circuit court found that petitioner’s statement to
Trooper Crowder was not obtained in violation of the Fifth Amendment. Moreover, counsel was
not ineffective in this regard as the issue was addressed at a suppression hearing. Accordingly,
the circuit court held that the petitioner has failed to establish that the prosecutor committed
misconduct in eliciting testimony regarding his confession and that petitioner failed to satisfy
either prong of Strickland.
As the circuit court’s order includes detailed and well-reasoned findings and conclusions
as to the specific assignments of error now raised by petitioner on appeal and because we find no
clear error or abuse of discretion in the circuit court’s order or the record before us, we hereby
adopt and incorporate the circuit court’s findings and conclusions as they relate to petitioner’s
assignments of error raised on appeal and direct the Clerk to attach a copy of the circuit court’s
September 28, 2018, “Final Order” to this memorandum decision.
For the foregoing reasons, we affirm the circuit court’s September 28, 2018, denial of
petitioner’s petition for a writ of habeas corpus.
Affirmed.
ISSUED: March 16, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
I4-oxT%
IN THE CIRCUIT COURT OF MCDOWELL COUNTY, WEST VIRGINIA
STATE OF WEST VIRGINIA ex rel.
KEITH MARTIN MOLINEAUX,
Petitioner,
Case No. 04-221 -M
THOMAS MCBRIDE,
Warden, Mt. Olive Correctional Complex,
Respondent.
ORDER DENYING PETITIONER'S PETITION FOR A WRIT OF HABEAS |
CORPUS AND PETITIONER'S MOTION FOR PREPARATION OF
TRANSCRIPTS
This matter comes before the Court following petitioner's Petition for a Writ of
Habeas Corpus.] The parties appeared for an omnibus evidentiary hearing on March 26,
2018, April 23, 2018, and June 18, 2018. The Court has fully considered petitioner's
petition, all amended and supplemental filings, respondent's responses. and lhe evidence
and testimony adduced during the omnibus hearing; accordingly, the Court finds and
orders follows:
FACTS
On April 9, 2001, John and Kimmie Stepp were murdered in their home in
Skygusty, West Virginia. The following day, Thomas King entered the North Fork Police
, Depariinen! to confess to his involvement in these murders. Mr. King informed officers
that he, Brandon Brillo, James Jones. and petitioner drove to the Stepp household to
'Petitioner has also filed amended and supplemental petitions in support of his request
for habeas relief.
purchase marijuana. Mr. King recounted that petitioner was dissatisfied with the quality
of Mr. Stepp's marijuana, so Mr. Stepp offered to obtain better marijuana. Upon hearing
1
this offer, petitioner asked Stepp if he had money for better marijuana. Mr. King stated
that the situation escalated, and, ultimately, petitioner placed a gun to Mr. Steppes head,
demanded Mr. Stepp give him money, and, when Mr. Stepp denied having money.
ordered Mr. and Mrs. Stepp 10 the rear of their home.
Petitioner directed Mr. Britto to come with him to the rear of Ihe home, and he
instructed Mr. King and Mr. Jones {0 search the home. Mr- King staled that. once
petitioner, Mr. Britto, and the Stepps were in the rear of the home. Mr. King, who was
toward the front of {he home, heard a gunshot. Hearing the gunshot prompted Mr. King
to flee from the Stepp residence. As Mr. King ran to the cars he heard a second gunshot.
Mr. King entered the car in which the four men arrived, and, shortly thereafter.
the three other men joined him. The four men then left the scene. According to Mr.
King. while in the car, petitioner admitted to shooting and killing both Stepps.
Petitioner was subsequently indicted for the first-degree murder of John Stepp.
the first-degree murder of Kimmie first-degree robbery, burglary, conspiracy to commit
robbery, conspiracy to commit murder, and conspiracy to commit burglary. Petitioner's bial
on these charges began on April 22, 2002. On April 25, 2002, the jury found petitioner guilty
ofeach first-degree murder charge, robbery, conspiracy to commit robbery, burglary, and
conspiracy to commit burglary- Petitioner was acquitted of . conspiracy to commit murder.
On May 16, 2002, petitioner was sentenced. The trial court sentenced petitioner
to life without mercy for each first-degree murder conviction, circuit court noted that
these convictions were obtained tmder the felony murder rule; accordingly, pursuant to
State v. Williams, 172 W.Va. 295, 305 S.E.2d 251 (1983), petitioner was not sentenced
for the underlying robbery or burglary convictions? Further finding that there was only
one agreement, the circuit court found that State Johnson, 179. W.Va. 619, 371 S.E.2d.
340 (1988), precluded sentencing petitioner for the two separate conspiracy convictions.
3 Finally, the circuit court ordered that peationer's two life sentences run consecutively.
Petitioner thereafter initiated the instant petition for a writ of habeas corpus, in
which he asserts numerous grounds for relief.4 Each of petitioner's asserted grounds, as
well as a more detailed recitation of relevant facts, is addressed in tum.
INEFFECTIVE ASSISTANCE OF COUNSEL
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
USS. 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 Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).
"Double jeopardy prohibits an accused charged with felony-murder, as defined
by W.Va. Code 61-2-1 . . . from being separately tried or punished for both murder and
the underlying enumerated felony." Williams, 172 W.Va. at 299, 305 S.B.2d at 255, Syl.
"The double jeopardy clause of the Fifth Amendment prohibits the prosecution
of a single conspiracy as two or more conspiracies under a general conspiracy statute
merely because two separate substantive crimes have been committed." Johnson, 179
W.Va. at 622, 3n S.E.2d at 343, syl. m. 7.
“Petitioner filed a direct appeal with the Supreme Court of Appeals of West
Virginia prior to initiating his habeas proceeding. His appeal was refused, however.
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 lime 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.
"When assessing whether counsel's performance was deficient, we «must indulge
a strong presumption that counsel's conduct falls within the wide range of reasonable
professional assistance[.J" rd. at 15, 459 S.E.2d at 126 (citation omitted). Further, to
demonstrate prejudice; "a defendant must prove there is a 'reasonable probability' that,
absent the errors, the jury would have reached a different result." Id. (citation omitted).
As a result, petitioner "bears a difficult burden because constitutionally accepted
performance is not defined narrowly and encompasses a ‘wide range." Id Indeed,
[t]he test of ineffectiveness has little or nothing to do with what the best
lawyers would have done. Not 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’ perforrnances; we are
interested in whether the adversarial process at the time, in fact, worked
adequately.
Id Consequently, "the cases in which a defendant may prevail on the ground of ineffective
assistance of counsel are few and far between one another." Id
Finaliy,
[i]n deciding ineffective assistance of counsel claims, a court need not
address both prongs of the conjunctive standard of Strickland v.
Washington .. . and State v. Miller, but may dispose of such a claim based
solely on a petitioner's failure to meet either prong of the test.
syl. Pt. 5, stale ex rel. Daniel v. Leg-ursky, 195 W.Va. 314, 465 S.E.2d 416 (1995).
It is against this backdrop that this Court examines each of petitioner's claims of
ineffective assistance of counsel,
Failure to Cail Witnesses During Suppression Healing
Petitioner argues that his trial counsel failed to call petitioner's father, Kiko
Molineaux, and girlfriend during his suppression hearing to testify that petitioner asked
for an attorney on two separate occasions while being questioned by the investigating
officers. Petitioner argues that trial counsel failed to call these witnesses because
petitioner's father wore his hair in dreadlocks. Thus, petitioner contends that trial counsel's
decision to forgo calling his father resulted not from strategy, but was due to racial
stereotyping and the belief that the court would not judge his father credibly on
account of his dreadlocks.
Petitioner also contends that trial counsel erred in failing to offer his own
testimony on the issue of the number of times he asked for an attorney and invoked his
right to remain silent.
Petitioner argues that these failures prejudiced him because the trial court did not have
all of the evidence concerning his requests for an attorney at the suppression
hearing.
The evidence adduced at petitioner's omnibus evidentiary hearing does not
support this asserted ground for relief. Petitioner's father did not testify that he heard his
son ask for an attorney prior to oreduring petitioner's questioning by the police, and no
testimony from the girlfriend was adduced. The officers present during petitioner's arrest
and subsequent questioning; on the other hand, testified unequivocally that petitioner did
not ask for an attorney. Indeed, prior to questioning by the investigating officers,
petitioner completed a form waiving his rights undet Miranda v. Arizona, 384 D.S. 436
(1966). * Accordingly, we find that petitioner's trial counsel did not render deficient
representation given that there is no evidence that petitioner's father or girlfriend heard
petitioner invoke his right to counsel prior to or at the time of police questioning.®
*Miranda held that "the prosecution may not use statements. whether exculpatory
or inculpatory, stemming from custodial interrogation of the defendant unless it
demonstrates the use of procedural safeguards effective to secure the privilege against
self-incrimination."
‘This Court also notes that petitioner's claim that his father overheard him request
an attorney was first brought to his tiial counsel's attention on the day of trial. At
sentencing, trial col.msel Stephen Paesani informed the Court:
On the day of trial, J was approached by my client's father, Kiko
Molineaux, and was advised that he had been present and overheard
comments made by [petitioner] at the time of his arrest, comments to the
effect, staements that I need a laWyer. That — 1 also learned on the day
of trial that those same statements were overheard by his — by his
companion, Stacy Gaparity (phonetically). And. unfortunately, I only
became aware of those statements on the day of trial.
The trial court stated,
Okay. Well, we had a suppression hearing and your client could have
testified at the suppression hearing and he chose not to testify... He would
haye known — I'm talking about [petitioner], the defendant — whether he
asked for an attomey at that time or not, and he could have testified at that
time, but he chose not to, for whatever reason, and that was his right to do
sO.
Secondly, his father was present at the suppression hearing. . . Mr.
Molineaux, Sr. [Kiko], could have told you about that information during
the suppression hearing and he chose not to.
These and other factors led the trial court to conclude that its ruling at the
suppression hearing would not have changed. Thus, this evidence compels the conclusion
that trial counsel's representation was not ineffective for failing to call these witnesses at
(continued . . . )
Failure io Provide Timely Notice to Codefendants' Counsel of "Show Up"
Petitioner argues that his trial counsel failed to give timely notice to his
codefendants' counsel that he wanted *hem to "show up" in front of the jury to
demonstrate that petitioner was tallest among them. Petitioner argues that his
codefendants' appearance and height was relevant because one witness described the last
figure seen running from the crime scene as short and thin and wearing a gray hooded
sweatshirt. Petitioner asserts that he is the tallest of the codefendants, however. Thus, had
counsel provided timely notice, the jury would have been shown that the short, thin man
identified by wimesses as the last one running to the car was likely codefendant Mr.
Britto. 7
This claim fails due to petitioner's failure to demonstrate that the outcome of his
trial would have been different. Importantly, the jury heard evidence regarding the
relative height ofthe four codefendants. Mr. King testified that petitioner was the tallest
the suppression hearing because the trial court's ruling would have remained the same
and because trial counsel was unaware ofthese alleged claims. See Legursky, ] 95 W.Va.
at 327, 465 S.E.2d al 429 ("The reasonableness of counsel's actions may be determined
or substantially influenced by the defendant's own statements or actions. Counsel's
actions are usually based, quite properly, on infomed strategic choices made by the
defendant and on information supplied by the defendant.") (citing Slrickland v .
Washington, 466 U.S. 668, 691 (1984),
"Petitioner also argues that the failure to present the "show up" violated his Sixth
Amendment right to confront his accusers.
"In all criminal prosecutions. the accused shall be confronted with the witnesses
against him." Syl. Pt.1. in part, Stale v. James Edward S. , 184 W.Va. 408, 400 S.E.2d
843 (1990), overruled on other grounds by State v. Mechling, 219 W.Va. 366, 633 S.E.2d
311 (2006). Simply put, the Confrontation Clause is nol implicated as no testimonial
statement was admitted against petitioner.
of the four men, while Mr. Britto was the shortest. Thus, we find no error in counsels'
failme to attempt to introduce cumulative evidence. Petitioner's trial counsel
acknow\edged as much at trial when he withdrew his request for a show up indicating
that, "we just changed our mind about the demonstration. We don't think it's
necessary|.}"*
Failure to Investigate
Petitioner states that trial counsel failed to investigate the story petitioner told
them concerning how the case devek)ped the day before the murders. Specifically,
7
counsel failed to interview petitioner's stepmother, Mr. King's grandmother, Mr. King's
sisters, and Mr. King's Uncle Kelly. Petitioner contends that, had these individuals been
interviewed, "Ip]etitioner's story would've been corroborated of what really happened in
the underlying case." Petitioner also states that Sean Coles and the Stepp family were not
interviewed.
Petitioner, however, fails to demonstrate what such investigation would have
yielded. Petitioner does not outline the evidence these individuals allegedly possess, and
at his omnibus hearing, he admitted that he could not remember whether he asked trial
counsel to interview Mr. Coles. Accordingly, petitioner has failed to demonstrate either
* This Court also notes that petitioner's first-degree murder convictions were
predicated on the felony murder rule. Therefore, evidence conceming which codefendant
exited the Stepp home last, and then. inferentially, which pulled the trigger, is immaterial.
That deaths occurred during the commission of an enumerated felony, irrespective of who
pulled the trigger, is sufficient to sustain a felony murder first-degree murder conviction.
See W.Va. Code 61-2-1 (‘Murder . . . in the commission of, or attempt to commit, arson,
kidnapping, sexual assault, robbery, burglary, breaking and entering, escape from lawful
custody, or a felony offense of manufacturing or delivering a controlled substance as
defined in article four, chapter sixty-a of this code, is murder of the first degree.").
that counsel was deficient or that the outcome of his trial would have been different had these
individuals been interviewed.
Failure to Call Witness
Petitioner argues that his trial counsel was ineffective in failing to call the
murdered victims' six-year-old daughter 10 testify at trial. Petitioner claims that, in her
statement to police, the young girl stated That the shooter had "twisties" in his hair.
According to petitioner, this described Mr. Britto's hairstyle and was, therefore.
exculpatory. Petitioner also states that, even if trial counsel did not want to cali her as a
witness, they could have requested a deposition from her.
Petitioner has failed to demonstrate that counsel's failure to force a small child to
testify regarding her parents’ brutal murders amounts to deficient representation rather
than sound trial strategy. Petilioner was not prevented from arguing at trial that Mr. Britto
was the shooter. Indeed. the trial record reflects that this assertion was made known to
the jury. Accordingly, petitioner has failed to establish that the failure to call the young
girl amounted io deficient representation or that the outcome of his trial would have been
differnt had her testimony been elicited.
Failure to Obiect to Leadiz Questions
Petitioner contends frat trial counsel failed to object to the prosecutor's leading
questions during Mr. King's direct examination. Petitioner, though, fails to identify a
deprivation of any constitutional right in asserting this ground. II has long been held that
“falhabeas corpus proceeding is not a substitute for a writ of error in that ordinary trial
error not involving constitutional violations will not be reviewed." Syl. Pt. 4, State ex rel.
Farmer P. McBride, 224 W.Va. 469, 686 SE.2d 609 (2009) (citation omitted).
Failure to Move for Change of Venue
Petitioner argues that his trial counsel was ineffective for failing to move for a
change of venue. Petitioner contends this was a "high profile case in a small community."
At petitioner's pretrial conference held on April 12, 2002, petitioner's. trial counsel to the
trial court that
we have the defense of this case and the issue of change of venue not once
or twice, Judge, but three or four times. And, for example, on the change of
venue, he would bring that up and we'd explain to him how we felt like we were
' Petitioner's assertion in this regard also ignores the fact that he was convicted of
felony murder. As explained above petitioner's first-degree murder convictions stand
under the felony murder rule even if he did not pull the trigger.
9
fine here in McDowell County. . . And he would be agreeable with that. And
we've discussed it again Ioday. And he appeared to me to, again, be agreeabie
to that.
Petitioner, nonetheless, maintained that he wished to move fér change of venue.
The trial court inforrned {he parties.
As far as (he change of venue is concerned, and I have thought about this myself,
I have been in high profile cases, as you have yourself, ..
During the jury selection, if it becomes apparent that I.ve cannot
select a jury out of the panel that we have, which is about 50 jurors that
we have, and think Judge Stephens has probably an equal amount of
jurors, then I probably would raise the issue as to whether or not I thought
that we could not get a fair and impartial jury.
So, as far as the change of venue is concerned, we will know during the
voir dire whether or not there can be a jury selected.
- , So as rar as lhe change in venue is concerned, I'm very, very sensitive
10 this defendant receiving a fair trial and that is an option that have kept
The trial court, therefore, indicated that it would entertain a motion for change of
venue if an impartial jury could not be empaneled. Once trial began, prospective jurors
were questioned regarding their knowledge of the parties and the facts of this case. There
was no difficulty empaneling an impartial jury.
The foregoing establishes that counsel was not deficient in representing petitioner
as they discussed this issue with petitioner multiple times. The trial court aiso was
cognizant of the issue and informed the parties that it would consider, and likely grant. a
motion for change of venue if they were unable (o empanel an impartial jury. Such motion
was unnecessary, however. Accordingly, petitioner also fails to demonstrate that the
result of his trial would have been different had counsel moved for a change of vemue.
10
Failure to Object to Use of Statements Obtained in Violation of Fifth Amendment
At the time of petitioner's arrest, he was given his Miranda warnings, Following
his arrest, he was transported to the Bluefield Police Department and again given his
Afiranda warnings. In fact, petitioner initialed and signed a waiver of Tights form. which
memorialized these warnings, his understanding of them, and his waiver.
During an interview with Trooper Michael Crowder of the West Virginia Slate
Police, petitioner made certain admissions. Petitioner now contends that Trooper
Crowder did not specifically infom him of his rights under Miranda and that he shoved
his forearm on petitioner's throat.
Petitioner also argues that Officer William T. Jones, of the Bluefield Police
Department, enlisted petitioner's father 10 assist with eliciting a confession. Petitioner
contends that, when alone with his father. his father instructed him not to say anything
without an attorney. Petitioner maintains that he followed his thther's advice and that his
father heard petitioner request an attorney. Counsel, however, failed 10 call petitioner's
father at the suppression hearing.
The trial court held a suppression hearing on March 6, 2002, and Trooper Crowder
testified about his interview of petitioner. The State specifically asked Trooper Crowder,
"Did you, or anyone in your presence, make any threats toward him, physical threats or
other threats?” Trooper Crowder responded, "Absolutely not." Petitioner did not object
10 this testimony or contradict it in any way at that time.
Trooper Crowder also testified at the suppression hearing that petitioner never
asked to stop the interview ot for an attorney. Likewise, Trooper Crowder testified at
petitioner's omnibus evidentiae+y hearing that petitioner never invoked his right to remain
silent or to an attorney.
11
At the suppression hearing, Officer Jones testified that, after being interviewed
by Trooper Crowder, petitioner requested to speak with him. In other words, petitioner
initiated the interview with Officer Jones. During the interview with Officer Jones, which
was recorded, petitioner never asked for any atlorney. At a point during the interview,
petitioner did indicate that he no longer wished to proceed. and the interview was
stopped.
As detailed above, petitioner offered no credi%le evidence that he requested an
attorney prior to or during police questioning. As a result, we find that his statement to
Trooper Crowder was not obtained in violation of the Fifth Amendment. Moreover,
counsel was not ineffective in this regard as the issue was addressed at a suppression
hearing. At the pretrial hearing, the trial court even found that its ruling would not have
changed had evidence been admitted by petitioner's father that petitioner requested an
attorney. Thus, petitioner has failed to satisfy either prong of Strickland,
Failure to Object to Robbery Jury Instruction
Petitioner asserts that trial counsel's failure to object to the robbery jury instruction
amounts to ineffective assistance of counsel because it failed to contain all of the elements
of the offense. During its deliberations. the jury requested an explanation of the robbery
count. Petitioner, therefore, argues that this should have alerted counsel to the fact that
jury had difficulty understanding the instruction given.
At trial, the jury was instructed that
[robbery of the first-degree is committed when any person who commits
or attempls to commit robbery by committing violence to the person,
including but not limited to, partial strangulation or suffocation, or by
striking or beating. Or, two, uses the threat of deadly force by the
presenting of a fireann or other deadly weapon.
12
This instruction is based on West Virginia Code 61-2-12, which sets forth that {a]ny
person who commits or attempts to commit robbery by:
(1) Committing violence to the person, including, but not limited to, partial
strangulation or 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
guihy of robbery in the first degreel.]
Petitioner submits that the jury should have been instructed on the common law
definition of robbery, which is 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." Syl. Pt. 1. Saue Harless, 168 W. Va.
707, 285 S.E.2d 46} (1981). Petitioner's counsel did not request this definition or object
to the one given at trial; rather, trial counsel agreed to the robbery instruction given.
13
"The general rule in West Virginia is that '{aln instruction to the jury is proper if
it 1s a correct statement of the law and if sufficient evidence has been offered at trial to
support it." State v. Stacy, 181 W.Va. 736, 384 S.E.2d 347 (1989) (citation omitted).
Even assuming error in counsels’ failure to request the common law definition of
robbery, we find *hat petitioner has not demonstrated that the outcome of his trial
would have been different had the jury been instructed on the common lav; definition of
robbery because petitioner has failed to identify any element of this definition for which
the State failed to present evidence.
At trial, Mr. King testified that petitioner picked him up and, along with the two
other codefendants, drove to Mr. Stepp's home to purchase marijuana. After the men
entered the Stepp residence to negotiate the drug buy, petitioner complained about the
quality of the marijuana presented. According to Mr. King* Mr. Stepp informed them
that he knew where to get belier marijuana. and petitioner asked Mr. Stepp whether he
had the money to purchase better marijuana. Mr. King testified that the dialogue between
petitioner and Mr. Stepp continued as Mr. King turned to look in the living room at Ms.
Stepp watching TV. Mr. King said,
when turned back into the kitchen, I [saw petitioner] with a gun up 10 John
Stepp's head . , . He was telling him, asking him to give him the money. . .
. he just had the gun to his head and was asking him where is the money. |
know you got some money in the house, where's the money. .
Mr. King testified that petitioner told Mr. Stepp he would kill him if he did not give him
the money.
When Mr. Stepp denied having money. petitioner directed Mr. Britto to assist him
with moving the Stepps to the rear of the home and instructed Mr. King and Mr. Jones to
search the home for money. Mr. King further testified that, after hearing the gunshots and
entering the car in which they came, his codefendants joined him in the car and they
drove away. * The four men proceeded to Mr. Britto's home.
Mr. King testified that, after arriving at Mr. Britto*s home, Mr. Britto and
petitioner proceeded to one room separately while he and Mr. Jones remained in a
different room. Mr. Britto and petitioner were in the room for approximately five
minutes, and then petitioner came out and left Mr. Britto's home Mr. King and Mr.
Jones.
Officer Jones investigated the Stepp murders after Mr. King confesscd to his
involvement. During the course of his invesligalion, he searched Mr. Britto's apartment
with other officers. One of the officers recovered $4,550 in Mr. Britto's apartment, and
another recovered a gun. Ammunition was also recovered from Mr. Britto's bedroom. 4
Accordingly, there was sufficient evidence adduced 10 meet the elements of
common law robbery, and petitioner cannot demonstrate Jhat the result of his trial vvould
have been different had the jury been instructed on this common law definition,
Faiiure to Object ID Trial Courl's Failure 10 Instruct Jury That Counsels* Arguments
Are Not to be Considered Evidence
Petitioner contends that it is "well settled . . . that the court's instructions are not
to be considered evidence" and it is "long settled law that argument made by [clounse\ is
* Notably, Mr. King also testified that petitioner was the last individual to exit the
Stepp home.
* *Mr. King testified that he asked petitioner what he did with the gun. Petitioner
responded to Mr. King that it was not his gun; rather, it belonged to Mr. Britto.
* This Court notes thal the attempt to commit robbery is also defined as firstdegree
robbery where violence is committed to the person or the threat of deadly force is used.
W.Va. Code 61-2-12. Accordingly. that money was ultimately recovered is not critical to
the analysis.
15
not to be considered evidence in this case." Petitioner asserts that counsels’ failure to
object to the trial court's failure to offer instructions on these points of law amounted to
ineffective assistance of counsel and a violation of his due process and Sixth Amendment
Petitioner fails to highlight any particular argument offered by counsel thatewould
have altered the outcome of his trial. Moreover, petitioner fails to any lav,'. obligating a
trial court to offer these instructions or demonstrating that such failure amounts to a
deprivation of his constitutional rights. Accordingly, there is no merit to this
contention,
Failure of Appellate Counsel to Highlight Erroneous Juqy Instructions
Petitioner filed a direct appeal of his convictions; and he was appointed nev.,*
counsel to prosecute this appeal. Petitioner argues that his appellate counsel failed to
properly prepare his appeal by failing to challenge the jury instruction on robbery.
As set forth above, petitioner cannot demonstrate that the result of his trial would
have been different had this insfruction been given. Accordingly, petitioner is not
entitled to relief on this ground.
Failure of Appellate Counsel to Raise as Error the Trial Court's Instructions
Petitioner asserts that the trial court inslructed the jury that its instructions and
counsels’ arguments are considered as evidence. Petitioner contends that appellate
counsel should have known that this is a misstatement of the and alleged such instruction
as error.
This assertion is unsupported by the tria) transcript: no such instruction was given.
Accordingly, petitioner is not entitled to relief on this ground. Moreover, even if the jury
16
had been so instructed, petitioner has failed to demonsiieate that the result of his trial
would have been different in light of the evidence properly adduced.
Failure to Seek Psychological Evaluation
Petitioner asserts that trial counsel was defective in failing to seek a psychological
evaluation to de!ennine competency to stand trial and criminak responsibility where there
was evidence thal he suffered from psychological disorders. Petitioner claims that he
informed trial counsel that he suffered from severe mental disorders during grade school
and had been seen by several school psychologists. Although petitioner contends that he
was diagnosed with several psychological disorders, he fails to identify any other than 10
say "it is the belie[fl of the [pletitioner thal he was diagnosed in the past with ; paranoid
schizophrenia disorder...
In further support of this ground, petitioner argues that his failure to offer
testimony on his own behalf at the suppression hearing and at trial could be explained by
a mental disorder. Petitioner explains that, because testimony at the suppression hearing
could not be used against him, he' had nothing to lose in testifying. Finally, incriminating
evidence was offered against petitioner at his trial. Petitioner says his only chance of
defending against this evidence was to testify. Because petitioner refrained from
testifying, he contends that a psychological evaluation could have determined whether a
mental disorder prevented him from {estifying.
Petitionerss self-serving slatcments notwithstanding, petitioner offers no
evidence to substantiateany claim of a men(al disorder that would have provided a viable
defenseat trial. Also, al petitioners omnibus evidentiary hearing, trial counsel McGinnis
17
E. Hatfield Jr. testified that he does not recall petitioner discussing competency issues
or requesting a psychoiogical exam.
An attomey's trial decisions
may be based on information given to him or her by the petitioner: 'The
reasonableness of counsel's actions may be determined or substantially
influenced by the defendant's own statements or actions. Counsel's actions
are usually based, quite properly, on informed strategic choices made by
the defendant and on information supplied by the defendant. In particular,
what investigation decisions are reasonable depends critically on such
information-
Legursky, 195 W.Va. at 326-27, 465 S.E.2d at 428-29 (citation omitted). Thus,
petitioner's after-thefact assertions that he suffered from a mental disorder years prior to
the commission of the crimes of which he was convicted, and that such mental disorder
"could" explain certain decisions he made, lack credibility and fail to demonstrate
entitlement to habeas corpus relief.
Failure to Question Polenlial Jurors Regarding Bias and Prejudice
One of petitioner's trial attorneys, Mr. Hatfield, was a municipal judge for the City
of Bluefield, West Virginia. Petitioner asserts that Mt. Hatfield failed to ask on the juror
questionnaire whether any potential juror had appeared before him. Petitioner contends
that this failure amounts to deficient representation because, if a juror or one of the juror's
close friends or family members had received an adverse decision from Mr.
Hatfield, it could have affected the deliberalions in his case.
18
A review of the trial transcript in this matter reveals Ihat prospective jurors were
asked specifically whether any knew Mr. Hatfield:
With the defendant, Mr. Molineaux, are his attomeys, McGinnis E,
Hatfield, Jr., better known as Mackie Hatfield, and Steven Paesani. they're
both representing Mr. Molineaux in this case. Have any of you or members
of your family ever been represented by either Mr. Hatfield or Mr.
P.aesani?
(No Response)
Are any of you acquainted with either of Ihose gentlemen personally. on a
personal. basis?
(No Response)
Accordingly, we find no merit to this assertion.
Failure to Object 10 Hearsay
Following the murders, officers searched Brandon Britto's apartment. They found
a 9 mm handgun, which proved to be the murder weapon. At trial, Officer Jones testified
as follows:
Q: What happened when those men indicated that you could look into the
apartment?
A: Britto . . made the implication about Mr. MoJineaux after Sergeant
Pauley had found the gun. that Mr. Molineaux had brought the gun back
up to the apartment building.
Petitioner argues that this testimony was inadmissible hearsay and violative of his
rights under the Confrontation Clause. Counsel, however, failed to object or request a
limiting instruction.
19
Additionally, counsel purportedly rendered ineffective assistance in failing to
object to Trooper Crowder's testimony and to the admission of his codefendants'
statements, the latter admissions violating the Confrontation Clause.
Assuming, without deciding, that counsel erred in failing 10 object to this
testimony, we nonetheless find that petitioner's ineffective assistance of counsel claim
cooceming the failure to object is meritless. Petitioner cannot demonstrate that the result
of his trial would have been different had objections to this testimony been lodged given
«Mr. King's testimony, recounted above.
Failure to Investigate Forensic Evidence
Petitioner states That "[ili is believed that the State has withheld physical evidence"
from him. Speci fically, petitioner asserts that chain of custody information for "all items
of evidence" has been improperly and prejudicially denied to him.
Petitioner's "beliefs" about the State's actions are insufficient to entitle him to
habeas relief. Rather, petitioner bears the burden of proving this allegation by a
preponderance of the evidence, Syl. Pt. 1 . Slate ex rel. Scou v. Boles. 150 W.Va. 453.
147
S.E.2d 486 (1966). Accordingly, pelitioner has failed to demonstrate that he is entitled to
relief on this ground.
Failure to Cali Certain Witnesses
Petitioner contends that trial counsel erred in failing to call Sergeant J. R. Pauley
to testifr during his suppression hearing. Petitioner asserts that other officers offered
? Petitioner's reference to the admission of his codefendants' statements is
supported only by citation to Offcer Jones's testimony quoted above. Nonetheless.
petitioner's challenges under the Confrontation Clause are addressed iQfra.
20
testimony during the suppression hearing that was inconsistent "ith and contradictory to
Sergeant Pauley's teslimony before. the grand jury. Specifically, petitioner asserts that
Sergeant Pauley testified before the grand jury thal petitioner denied any knowledge of
the murders, but Trooper Crowder testified at the suppression hearing to having obtained
a confession from petitioner,
Petitioner also claims that trial counsels’ failure to call Lieutenant Hehon to testify
during trial mounted to ineffective assistance. Lieutenant Helton purportedly testified al
an earlier proceeding that petitioner denied involvemem with the subject murders.
Again, given Mr. King's testimony at trial, petitioner has failed to establish that
the result of his trial would have been different had these individuals been called either
at the suppression hearing or at trial.
Failure to Rebut Evidence of Confession
Petitioner claims that counsel failed to introduce evidence that he did not confess to
the murden to Trooper Crowder. Petitioner asserts that it is his "belief that each one of
the [the police officers involved in the investigation ol' the murders and in interviewing
him] knew that the five[-]page ‘confession’ [obtained by Trooper Crowder] was not true."
Petitioner also points to the fact that at a November 26. 2001. hearing, the State
was unaware of a statement petitioner had provided as the State did not have the police
"Petitioner also states that Lieutenant Helton "would've testified that on April I]
1 2001 he was present during the entire time [pletitioner was inlerviewed by Trooper
Crowder and that the [p]etitioner never made any incriminating statements.” Lieulenan]
Helton testified al petitioner's omnibus hearing and made no such assertion.
report. Petitioner asserts that this is because he never gave an incriminating statement on
April 1, 2001, the day he was interviewed by the police.
Petitioner also maintains that trial counsel was ineffective for failing to object to
holding a suppression hearing without Sergeant Pauley, the lead investigating officer.
21
Petitioner claims *hat his statement to Trooper Crowder would have been suppressed had
counsel objected ‘because it would've been clear th[at] Trooper Crowder was not telling
the truth relating to his notes and the 'confession.:»
Petitioner maintains that trial counsel was ineffective in failing to highlight these
inconsistencies with the State's witnesses. Petitioner further claims that the failure to
object 10 Trooper Crowder's testimony and secure Sergeant Pauley amounted 10
allowing perjured testimony.
Sergeant Pauley testified before the Grand Jury that peiitioner "gave part of a
statement, he would start talking and then quit and start again. So we do have a panial
statement from him, but he, basically denied any knowledge of it . . . this incident."
Because ihe statement purportedly given 10 Trooper Crowder would have been obtained
prior to Sergeant Pauley's grand jury testimony, petitioner claims that this suggests that
Trooper Crowder lied about obtaining a statement from petitioner.
As with petitioner's prior claim. he has failed to establish that the outcome of his
tria) would have been given Mr. King's testimony. Further. petiGoner's assertion thal
Trooper Crowder lied about obtaining this statement lacks credibility. Petitioner
examined Trooper Crowder at the suppression hearing and never once challenged
Trooper Crowder's assertion that he obtained this stdtemenl. Additionally, Trooper
Crowder's testimony al the suppression hearing was detailed as to his involvement in
petitioner's arrest and the subsequent laking of petitioner's statement. Petitioner has failed
to provide any evidence to substantiate his attack on Trooper Crowder's credibility.
Failure to Develop Mitigating Evidence
Petitioner argues that his trial counsel provided "no defense at all" and that
counsel's closing statement was meandering and ‘tantamount to arguing nothing."
Petitioner, however, fails to identify the existence of any mitigating evidence, frereby
tiiling to sustain his burden of proving this allegation.
Failure to Object IO Hearsay
-At trial. Trooper Crowder testified regarding his elicitation of an oral statement from
petitioner. Trooper Crowder look notes of petitioner's statement, which were introduced
as evidence at trial. Trooper Crowder explained the organization of his notes to the jury
and stated, "[petitioner] asked about the child, to see the picture. He was talking about the
child al the scene. When he found [out] about the child there and that the child had been
struck by a bullet." Petitioner argues that his trial counsel failed to object to this hearsay.
Petitioner also states Ihat he was not provided with any medical evidence documenting
the child's injury or describing petitioner.
Petitioner, again, fails to demonstrate that the result of his trial would have been
different even had objections been raised in Ihese instances. Petitioner was not charged
with any crime relative the child. and this testimony explained the organization of and
offered context to Trooper Crowder's notes. Accordingly. this claim fails.
TRIAL COURT ERROR - JURY INSTRUCTION ON ROBBERY
In addition to petitioner's ineffective assistance of counsel claim predicated on
counsels’ failure to object 10 the robbery jury instruction given, petitioner also seeks
23
review of the instruction under the plain error doctrine given counsels’ failure to object to
the instruction.
Petitioner acknowledges that the trial co-urt's robbery instruction was taken
directly from West Virginia Code 61-2-122 but he argues that the statute only states the
means and manner by which a robbery is committed, differentiates between the two
classes of robbery, and prescribes a penalty for each class. The specific elements of
robbery are outlined in case law. The trial court's instruction did not instruct the jury that
robbery included the unlawful taking of goods or money from the person, and the intent
to permanently deprive the owner of their property. Thus, petitioner asserts that the jury
was not instructed on {he essential elements of robbery or attempted robbery,
Under the plain-error doctrine. a court may, "in the interest ofjustice, notice plain
error in the giving or refusal to give any instruction. whether or not it has been made the
subject of objection." W.Va. R. Crim. P. 30; see also id. at R. 52(b) ("Plain errors or
defects affecting substantial rights may be noticed although they were not brought to the
attention of the court."). "To (rigger application of the ‘plain error' doctrine, there must
be (1) an error, (2) thal is plain; (3) that affects substantial rights: and (4) seriously affects
the fairness, integrity, or public reputation of the judicial proceedings." Syl. Pl. 7, SIGIe
Vv,
Milter, 194 W.Va. 3, 459 S.E2d 1 14 (1995).
But the plain error doctrine "is 10 be used sparingly and only in those
circumstances where substantial rights are affecled, or the truth-finding process is
substantially impaired, or a miscansiage of justice would otherwise result." Syl. Pt. 2, in
part, State Rogers, 215 W.Va. 499, 600 S.E.2d 211 (2004). Also, plain error is not
typically recognized in the giving of an erroneous instruction, "even of constitutional
24
magnitude, where the giving of the erroneoos instruction did not substantially impair the
truth-finding function of lhe trial." Siute v. Hutchinson, 176 W.Va. 172. 342 S.E.2d 138(1986).
As set fonh above, the truth-finding funclion of the trial was not impaired as it
relates to petitioner's robbery conviction. Accordingly, assuming any error with the
robbery instruction, it does not rise to the level of plain error.
This Court also highlights that petitioner was also convicted of burglary, which is
also a predicate offense for felony murder. Petitioner does not challenge the instruction
given on burglary. At petitioner's sentencing, the triai court recounted that the jury
convicted petitioner of both robbery and burglary and stated that. because petitioner's
felony murder conviclions could be predicated on either his burglary or robbery
convictions, il did not sentence him for either burglary or robbery. Therefore: even if this
COM were to assume error with respect to the robbery instruction, petitioner's idony
murder convictions — the only convictions on which he was sentenced — still stand as a
result of his burglary conviction. Accordingly, any such error is harmless error because
petitioner cannot show that he is imprisoned under a void sentence." See W.Va, Code §
PROSECUTORIAL MISCONDUCT
Petitioner contends that the State has not provided chain of custody information
relating to the murder weapon, cicihes, bandanas, and all other evidence collected during
'S"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).
the investigation, despite being ordered to provide such evidence. Petitioner argues that
25
this amounts io a Brady violation..
There are three components of a constitutional due process
violation under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194. 10 L.Ed.
215 and stare v. Hallield. 169 W.Va. 191.286 S.E.2d 402 (1982):
(1) the evidence at issue must be favorable to the defendant as exculpatory
, or impeachment evidence; (2) the evidence must have been suppressed by
the State, either willfully or inadvertently; and (3) the evidence must have
been material, i.e., it must have prejudiced the defense at trial.
syl, Pt. 3, Ballard, 236 W.Va. 509, 782 S.E.2d 204 (2015) (citation omiued).
Petitioner fails to articulate how chain of custody information would be exculpaiory
or useable as impeachment evidence. hie also fails to substantiate that any evidence was
suppressed by the State. Criiically. petitioner fails to explain how any alleged failures
prejudiced him at trial, panicularly given that petitioner admits to being at the scene of the
murders.
In further support of his prosecutorial misconduct claim. petitioner asserts that the
prosecutor presented false testimony regarding his confession to Trooper Crowder.
Petitioner contends that the fact that other officers stated that petitioner did not confess
renders Trooper Crowder's claimS concerning a confession incredible. Petitioner also
highlights the length of time that passed before Trooper Crowder's notes of the confession
were ultimately provided to the Slate.
-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 false testimony had a material effect
on the jury verdict.
Maryland, 373 U.S. 83, 83 S.Ct. 194 (1982).
syl. Pt. 2, stale ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E 2d 97 (2009).
26
Petitioner has not satisfied his burden under Franklin, That petitioner did not confess
to all investigating officers does little to discredit Trooper Crowder's testimony concerning
a conIZssion. Likewise, the length of tirne that passed before the notes were produced fails
to establish that the testimony concerning the confession ewas false. As noted above,
petitioner did not dispute the authenticity of the confrssion at his suppression hearing.
Petitioner's after-the-fact assertion that he did not confess fails to demonstrate that Trooper
Crowder's testimony was false.
Petitioner also has presented no evidence showing that the prosecutor knew or
should have known any such testimony ',vas false. Accordingly, petitioner has Pdiled to
establish that the prosecutor committed misconduct in eliciting testimony regarding
petitioner's confession,
SUFFICIENCY OF THE INDICTMENT
Petitioner contends that an integral element of a robbery charge is a description of
the property taken. Petitioner's robbery and conspiracy to commit robbery charges in the
indictment failed to include "what was stolen or permanently deprived,”
Petitioner cites no authority to support his assertion that this information Illust be
included within the indictment. "1k) the comrary, "[a]n indictment need only meet minimal
constitutional standards, and the sufficiency of an indictment is determined by practical
rather than technical considerations." Sy]. Pt. 3, in part, Sla/e v. [Vallace, 205 W.Va. 155,
517 S.E.2d 20 (1999) (citation omitted). An indictment is sufficient "if it (1) states the
elements of the offense charged; (2) puts a defendant on fair notice of the charge against
which he or she must and (3) enables a defendant to assert an acquittal or conviction in
order to prevent being placed twvice in jeopardy." Id at Syl. m. 6. Further, " {aln indictment
27
for a statutory offense is sufficient if. in charging the offense. it substantially follows the
language of the statute, fully informs the accused of the particular offense Wilh which he is
charged and enables the court to determine the statute on which the charge is based." Syl.
Pl. 3-, State v. Hall, 172 W.Va. 138, 304 S.E.2d 43(1983).
Additionally,
Rule 12(b)(2) of the . West Virginia Rules of Criminal Procedure requires
that a defendant musi raise any objection to an indictment prior to trial.
Although a challenge to a defective indictment is never waived, this Court
lileral]y will construe an indictment in favor of validity where a defendant
fails timely 10 challenge its sufficiency, Without objection. the indictment
should be upheld unless il is so defective that it does not, by any reasonable
instruction, charge an offense under West Virginia law or for which the
defendant was convicted.
Syl. Pt. 5. Stale v. Johnson, 219 W.Va. 697, 639 S.E.2d 789 (2006) (citation omitted).
Petitioner failed to challenge the indictment prior to trial; accordingly, his assertion
regarding the indictment is insufficient to warrant habeas relief.
ACTU AL INNOCENCE
Petiiioner contends that he is innocent and that the evidence withheld in violation
of Brady will Brave his actual innocence. Petitioner fails 10 outline any such withheld
evidence or how il establishes his innocence. Importantly. petitioner was convicted of
felony murder. He does nor dispute being present al the scene oi' the crime; accordingly.
his assertion that he did not pull the trigger, which was contradicted at trial in any event.
affords him no relief,
DIFFERENT CASE NUMBERS
Petitioner asserts that different case numbers were used in his underlying criminal
case, and he 'shas not been able 10 find any !egitimate reason the separate case
28
Smee te
numbers[.]" Petitioner fails To explain the impon offhjs, lel alone establish that the usage
of different case numbers amounts to a violation of his constitutional rights. Accordingly.
he is not entitled to relief on this ground.
VIOLATION OF PROMPT PRESENTMENT
Aside from incorporating arguments previously made, petitioner fails to
substantiate this claim. Nonetheless, even if this Court were to accept petitioner's claims
as true and assume he wishes to assert this ground to support exclusion of his confession.
it has been held That "Lo]rdinarily the delay in taking an accused who is under arrest to
a magistrate after a confession has been obtained from him does not vitiate the confessi
under our prompt presentment rule," Sy!. Pt- 14, Slate v. Newcomb. 223 W.Va. 843, 679
S.E.2d 675 (2009) (cilations and internal quotations omitted).
VIOLATION OF RIGHT AGAINST SELF-INCRIMINATION
Petitioner contends his right against self-incrimination was violated when the
offcers failed to re-advise him of his Miranda rights. The argument previously presented
is incorporated within this stand-alone claim.
There js no merit to this claim. A! petilioner*s omnibus evidentiary hearing,
testimony was adduced that petitioner was advised of his Miranda rights on several
occasions, and he completed a Miranda rights waiver form.
CONFRONTATION CLAUSE VIOLATIONS
As addressed above, petitioner raised challenges to certain testimony under his
ineffective assistance of counsel claim. Petitioner incorporates by references arguments
previously made in assefling a standalone claim. To the exten! not addressed above, this
29
Court makes the following findings and conclusions
"The Confrontation Clause contained in the Sixth Amendment to the United
States Constitution provides: 'In all criminal prosecutions, the accused shall . be
confronted with the witnesses against him.’ This clause was made applicable to the states
through the Fourteenth Amendment to the United States Constitution." Syl. Pt. 1, State v.
James Edward S. : 184 W.Va. 408, 400 S.E.2d 843 (1990), overruled on other grounds
by
StateY. Mechli,g, W.Va. 366, 633 S.E.2d 31 1 (2006).
In support of pelitioneres Confrontation Clause claims, petitioner cites to Crawford
v. Washington, 54] U.s. 36. 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). west
Virginia adopted the Crawford standard in Stale v. Mechling. 219 W.Va. 366, 633 S.E.2d
31 1 (2006). The Supreme Court of Appeals of West Virginia made clear however, that
"Crawford/Mechling [is to] be given prospective application only inasmuch as it is a new
principle of law. [and] retroactive application of which would retard its operations and
produce inequitable results." State v. Kennedy, 229 W.Va. 756. 776. 735 S.E.2d 905, 925
(2012). Accordingly, petitioner's reliance on Crawford. which was decided after his trial
took place. is misplaced, and his analysis under Crawford affords him no relief here. As
a resull of [he foregoing rulings, petitioner's Amended and Supplemental
Petition for a writ of Habeas Corpus is hereby DENIED and DISMISSED.
PETITIONER'S MOTION FOR PREPARATION OF TRANSCRIPTS
. Petitioner requests that (his Court order production of transcripts from the omnibus
evidentiary hearing prior to issuing its ruling on petitioner's habeas petition.
Although petitioner "feels" that such preparation will "aid the courl in its
determination" of his habeas, this Coun finds that the issues have been adequatel)'
30
presented and that reliance on the transcripts is unnecessary for resolution of petitioner's
claims. Accordingly, "Petitioner's Motion for Preparation of Transcripts for
CourtPurposes Prior to Ruling on Petitioner's Requests for Habeas Corpus Relief’ is
hereby
DENIED. *
The Court directs the Circuit Clerk to distribute attested copies of this Order to the
following counsel of record:
Dennie S. Morgan Jr.
Morgan Law
P.O. Box 476
Welch, WV 2480!
Emily K. Miller
Assistant *rosecuting Attorney
93 Wyoming Street, Suite 207
Welch, WV 24801
ENTER: +
é*_F 28 2518
CHAR ES M, VICKERS. JUDGE
° Petilioner, by separate motion, also alerts this Court to a typographical error
concerning lhe age Of-the Stepps' daughter. Petitionerss -motion" is hereby
acknowledged.
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