Edward C. Grimes v. Marvin Plumley, Warden (Memorandum Decision)
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STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS FILED Edward C. Grimes, Petitioner Below, Petitioner November 8, 2013 RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA vs) No. 12-1425 (Berkeley County 09-C-1023) Marvin Plumley, Warden, Huttonsville Correctional Center, Respondent Below, Respondent MEMORANDUM DECISION Petitioner, Edward C. Grimes, by counsel Christopher J. Prezioso, appeals the Circuit Court of Berkeley County s denial of his petition for writ of habeas corpus. Respondent, Marvin Plumley, Warden, Huttonsville Correctional Center, by counsel Christopher C. Quasebarth, filed a response. 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 is appropriate under Rule 21 of the Rules of Appellate Procedure. On November 16, 2006, petitioner was convicted by a jury of second degree murder in the shooting death of Ronald Kidrick. The court sentenced petitioner to forty years in the penitentiary and directed that he make restitution in the amount of $17,272.36, representing the victim s final medical expenses. The evidence at trial revealed the following: Petitioner was involved in a relationship with Mary Davis, who lived in the Relax Inn just south of Martinsburg with her three children. Petitioner lived with Davis in the motel from time to time. In the early morning hours on July 30, 2005, a friend of Ms. Davis s brought Michael Moneypenny to Davis room at the motel. Mr. Moneypenny had been beaten and pepper-sprayed in a bar, and Davis was helping him with his injuries. Petitioner entered the room and began striking Moneypenny with his fist and a handgun in the presence of Davis and two of Davis s children, Christopher, age 12, and Trejon, age 6. Moneypenny was ejected from the room and collapsed outside. Christopher and Trejon went in and out of the motel room to check on Moneypenny. Also, they made a number of telephone calls to Ronald Kidrick who was supposed to pick up the boys for a family gathering. Trejon is Kidrick s biological son. During the final call, Christopher told Kidrick that petitioner was present, and Kidrick expressed reluctance to come to the motel. 1 At this point, petitioner took the phone and said to Kidrick, Don t use me as a scapegoat. If you want some, come and get some. Petitioner asked a friend, Gabriel Ziggy McGuire, for a ride away from the motel. Kidrick, in turn, asked a friend, Chris Petrucci, to drive him to the motel. Petrucci testified that he was not aware that Kidrick brought along a handgun. It was not clear whether Kidrick went to the motel to confront petitioner or to pick up the children for the family gathering. When Kidrick and Petrucci arrived at the motel, petitioner and McGuire were walking in the parking lot, and Trejon and Christopher were outside checking on Moneypenny. Petitioner then shot Kidrick in the head. Kidrick fell to the ground and his handgun was later found beside him. A critical issue before the jury was who pulled his gun first, petitioner or Kidrick. The eyewitnesses to the shooting were Trejon and McGuire. Trejon testified that he saw petitioner and Kidrick talking, and that he saw Kidrick with a gun in his hand when he was shot. Trejon testified during the defense s cross-examination that he recalled telling the prosecutor that he saw his father pull his gun first. McGuire testified that Kidrick pulled his gun first and then petitioner pulled his gun and shot after being threatened. McGuire admitted on crossexamination by the State that he was close friends with petitioner and that the two had previously discussed the incident. Kidrick died at the hospital. The cause of death was a gunshot wound to the head. Testing also determined that Kidrick had alcohol and cocaine in his system. Petitioner fled the scene after the shooting and was eventually arrested in Maryland. On the drive back to West Virginia, petitioner made an unsolicited statement to the police to the effect that he did not want any trouble and did not know why Kidrick wanted to start something, so petitioner did what he had to do. Despite petitioner s claim of self-defense at trial, the jury found him guilty of second degree murder. Petitioner appealed his conviction to this Court in January of 2009. On November 16, 2009, this Court affirmed the conviction in a published opinion, State v. Grimes, 226 W.Va. 411, 701 S.E.2d 449 (2009).1 On May 22, 2012, after appointment of counsel, petitioner filed a petition for writ of habeas corpus and a Losh list with the circuit court. In his petition, petitioner alleged primarily that: (1) his trial counsel and appellate counsel were ineffective; (2) he was improperly denied bond; (3) the prosecuting attorneys made multiple prejudicial comments to the jury; (4) the 1 In his direct appeal, petitioner alleged the following errors: (1) denial of his motion to dismiss the indictment based on the destruction of the investigating officer s notes regarding the officer s initial interview with Trejon; (2) denial of petitioner s motion to dismiss the indictment based on the officer s misconduct before the grand jury; (3) admission of police records over petitioner s hearsay objection; (4) admission of evidence of petitioner s altercation with a stranger (Mr. Moneypenny) at the scene just prior to the shooting; (5) denial of petitioner s midtrial motion for judgment of acquittal; (6) denial of petitioner s motion for judgment of acquittal at the end of the evidence; (7) allowing the first degree murder charge to go to the jury; (8) denial of petitioner s motion for new trial or mistrial; and, (9) petitioner s sentence was disproportionate to the crime. 2 evidence was insufficient to sustain a guilty verdict; (5) his sentence was disproportionate to the crime; (6) the evidence of his altercation with Moneypenny should not have been admitted; (7) his due process rights were violated by the investigating officer s conduct; (8) the court improperly rejected a binding guilty plea that would have resulted in a sentence of twelve years in the penitentiary; (9) witnesses were permitted to testify whose criminal histories had only been disclosed moments before their testimony; and, (10) the cumulative effect of the errors violated his due process rights. Petitioner also raised twenty-three other errors in his Losh list, but provided no factual or legal support therefor. The circuit court determined there was no need for an evidentiary hearing on the petition, ruling that the facts and legal arguments were adequately presented in the parties briefs. The court made findings of fact and conclusions of law, and analyzed the ten allegations for which petitioner provided factual and legal support. The court summarily denied the allegations for which petitioner provided no support. The court entered its Order Denying Petition for Writ of Habeas Corpus on November 2, 2012. From this order, petitioner appeals to this Court. This Court reviews appeals of circuit court orders denying habeas corpus relief under the following standard: 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 questions of law are subject to a de novo review. Syllabus point 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006). Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009). On appeal, petitioner raises eleven assignments of error that challenge the following: (1) the circuit court s failure to conduct an evidentiary hearing; (2) sufficiency of the evidence; (3) ineffective assistance of counsel; (4) denial of pre-trial bond; (5) the State s alleged improper comments to the jury; (6) his unduly harsh sentence; (7) admission of 404(b) evidence; (8) alleged improper conduct by the investigating officers; (9) rejection of the plea agreement; (10) admission of witness testimony without timely disclosure of criminal histories; and, (11) cumulative effect of the errors. In a protracted and directly written order, the circuit court addressed each and every error raised by petitioner. Our review of the order and the record reflects no clear error or abuse of discretion by the circuit court. Having reviewed the Circuit Court of Berkeley County s Order Denying Petition for Writ of Habeas Corpus entered on November 2, 2012, we hereby adopt and incorporate the circuit court s well-reasoned findings and conclusions as to the assignments of error raised in this appeal. The Clerk is directed to attach a copy of the circuit court s order to this memorandum decision. For the foregoing reasons, we affirm. 3 Affirmed. ISSUED: November 8, 2013 CONCURRED IN BY: Chief Justice Brent D. Benjamin Justice Robin Jean Davis Justice Margaret L. Workman Justice Menis E. Ketchum Justice Allen H. Loughry II 4
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