Keith M. Molineaux vs. Donnie Ames (Memorandum Decision)

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STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS FILED 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 firstdegree 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. 1 The circuit court set the matter for an omnibus hearing split over three days: 1 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 codefendants 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 2 (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. 3 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. 2 Petitioner further argues that the trial court did not have all of the evidence because his counsel chose not to 2 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.”). 4 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 twoprong 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[.]’” Id. 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. 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. 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 5 assistance of counsel are few and far between one another.” Id. 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. 3 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 3 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 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. 6 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 rights; 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. 4 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 4 “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). 7 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 8

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