2. 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).
3. Serology reports prepared by employees of the Serology Division of the West Virginia State Police Crime Laboratory, other than Trooper Fred S. Zain, are not subject to the invalidation and other strictures contained in In the Matter of an Investigation of the West Virginia State Police Crime Laboratory, Serology Division, 190 W.Va. 321, 438 S.E.2d 501 (1993). Syllabus Point 3, In the Matter of the West Virginia State Police Crime Laboratory, Serology Division,191 W .Va. 224, 445 S.E.2d 165 (1994).
4. A habeas corpus proceeding is not a substitute for a writ of error in that ordinary trial error not involving constitutional violations will not be reviewed. Syllabus Point 4, State ex rel. McMannis v. Mohn, 163 W. Va. 129, 254 S.E.2d 805 (1979).
5. Failure to observe a constitutional right constitutes reversible error unless it can be shown that the error was harmless beyond a reasonable doubt. Syllabus Point 5, State ex rel. Grob v. Blair, 158 W. Va. 647, 214 S.E.2d 330 (1975).
6. 'A trial court's failure to remove a biased juror from a jury panel does not violate a defendant's right to a trial by an impartial jury as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by Section 14 of Article III of the West Virginia Constitution. In order to succeed in a claim that his or her constitutional right to an impartial jury was violated, a defendant must affirmatively show prejudice.' Syl. Pt. 7, State v. Phillips, 194 W.Va. 569, 461 S.E.2d 75 (1995). Syllabus Point 6, State ex rel. Quinones v. Rubenstein, 218 W. Va. 388, 624 S.E.2d 825 (2005).
7. 'When a defendant has been convicted of two separate crimes, before sentence is pronounced for either, the trial court may, in its discretion, provide that the sentences run concurrently, and unless it does so provide, the sentences will run consecutively.' Syllabus point 3, Keith v. Leverette, 163 W.Va. 98, 254 S.E.2d 700 (1979). Syllabus Point 3, State v. Allen, 208 W. Va. 144, 539 S.E.2d 87 (1999).
This case is before this Court upon appeal of a final order of the Circuit Court of Jefferson County entered on August 15, 2007. In that order, the circuit court denied a petition for a writ of habeas corpus filed by the appellant and petitioner below, Alex Farmer, against the appellee and respondent below, Thomas McBride, Warden. On August 3, 1990, the appellant was found guilty of first degree murder, two counts of first degree sexual assault, and one count of burglary. He was sentenced to life in prison with mercy for the first degree murder conviction, fifteen to twenty-five years for each sexual assault conviction, and one to fifteen years for the burglary conviction. The circuit court ordered that the sentences be served consecutively.
In this appeal, the appellant first contends that the circuit court erred by denying his motion to amend his habeas petition to add a Zain III claim. (See footnote 1) The appellant also argues that the circuit court erred in denying him habeas relief. This Court has before it the petition for appeal, the entire record, and the briefs and argument of counsel. For the reasons set forth below, the final order is affirmed.
Hilda Grim, wife of Charles Grim, testified about the appellant coming to her
house on the evening of April 14, 1988. She stated that the appellant left between 9:00 p.m.
and 9:30 p.m. indicating that he was going to Sonny Pumphrey's house and then home. She
said that the appellant returned though around 11:00 p.m. to 11:30 p.m. He was wearing
Deputy Shirley testified about the appellant's appearance and demeanor when he gave his statement to the police on April 16, 1988. He said that the appellant had scratches on his face, seemed nervous, and attempted to avoid providing the blue t-shirt. He also stated that the appellant's hands were red and swollen. Deputy Shirley further testified that the distance between the homes of Ms. Bouldin and Mr. Grim was a ten-minute walk. Deputy Shirley also identified photographs of footprints on Mr. Fitzwater's truck which
allegedly belonged to the appellant. (See footnote 3) He stated that the footprints were the same size as footprints found in Ms. Bouldin's basement.
State Trooper Ted Smith, a serologist in the State Police Crime Lab, testified that the appellant's clothing and other items from the crime scene had been sent to the Crime Lab for examination and testing on April 20, 1988. The Crime Lab later received a blood sample from the appellant for comparison purposes. Trooper Smith testified that seminal fluid was found on the appellant's t-shirt and jeans and that the genetic markers in the seminal fluid were consistent with the appellant's genetic markers. He also testified that no blood was found on the appellant's clothes, that all of the blood found in the victim's home was consistent with the victim's genetic markers, and that no semen was found on the swabs taken from the victim. State Police Sergeant Mark Neal, an expert in fingerprint testing, testified that the fingerprints at the scene did not belong to the appellant. State Police Trooper Barrick, an expert in forensic chemistry, testified that no carpet fibers from the victim's home were found on the appellant's blue t-shirt or jeans.
The appellant's cousin and Mr. Pumphrey's daughter, Joyce Sutphin, and her husband, Gary Sutphin, testified that they were at Mr. Pumphrey's home all night on April 14, 1988, and never saw the appellant. (See footnote 4) Frank Ramsburg, Velma Penwell, and Terry Valencia testified that they observed a man walking down the road near Ms. Bouldin's home between 9:00 p.m. and 9:30 p.m. on April 14, 1988. Mr. Ramsburg testified that the man was the appellant and he said hello to him. Velma Penwell said that the man appeared to be wearing gloves.
David Tomblin testified that the appellant told him that he had broken into Ms. Bouldin's home, but that he did not kill her. James Lang, the appellant's brother-in-law, testified that he overheard the appellant tell someone that he broke into Ms. Bouldin's house but that he did not murder her.
The defense presented the testimony of Ethel Long who testified that she saw a green truck with racks on it at the victim's house on April 15, 1988, at around 6:45 a.m. She testified that it was the same truck she had observed there the day before. During rebuttal, the State called Donna Fitzwater, wife of Lynn Fitzwater, who testified that her husband had a green pick-up truck. She said that her husband was home on April 14, 1988, from 3:30 p.m. to 8:00 p.m., when he left with the appellant. He returned at 9:20 p.m. alone. She further testified that the appellant returned to their home around 5:00 a.m. the next morning. When she left the house at 7:30 a.m. that morning, her husband's truck was outside their house, the appellant was on her couch, and her husband was in bed. She also testified that the appellant had scratches on his face. She said that her husband's truck always needed to be jumped to start and that he did not leave the house during the night of April 14 through the morning of April 15, 1988. The State also recalled Deputy Shirley who testified that Ethel Long told him during the investigation that she never saw the truck in Ms. Bouldin's driveway before April 15, 1988.
During their deliberations, the jury requested the use of a magnifying glass. The appellant objected, but the court permitted the jury to use a magnifying glass. Thereafter, the jury returned guilty verdicts on all charges. The appellant was sentenced to life in prison with mercy for first degree murder, fifteen to twenty five years in prison for each of two counts of first degree sexual assault, and one to fifteen years in prison for one count of burglary. The court ordered that the sentences be served consecutively.
Thereafter, the appellant filed an appeal with this Court which was refused by order entered on January 29, 1992. The appellant then filed a petition for a writ of habeas corpus pursuant to this Court's decision in Zain I. (See footnote 5) The circuit court denied the habeas petition by order entered on January 30, 1996. The appellant then filed an appeal of that order with this Court which was refused on August 23, 1996. On April 4, 2005, the appellant filed the petition for a writ of habeas corpus which is the subject of this appeal. The petition was filed pro se but the appellant was later appointed counsel. The appellant's appointed counsel advised the circuit court that the appellant was relying on his pro se petition and that an amended petition would not be filed. However, following this Court's decison in Zain III which was issued on June 16, 2006, the appellant filed a motion to amend seeking to add a Zain III claim to his petition for writ of habeas corpus. The respondent opposed the motion, and the motion was subsequently denied by the circuit court because the appellant's case was one of the ten cases specifically reviewed during the Zain III investigation. Thereafter, the appellant's petition for a writ of habeas corpus was denied by an order entered on August 15, 2007. This appeal followed.
A trial court is vested with a sound discretion in granting or refusing leave to amend pleadings in civil actions. Leave to amend should be freely given when justice so requires, but the action of a trial court in refusing to grant leave to amend a pleading will not be regarded as reversible error in the absence of a showing of an abuse of the trial court's discretion in ruling upon a motion for leave to amend.
Syllabus Point 6, Perdue v. S. J. Groves and Sons Co., 152 W. Va. 222, 161 S.E.2d 250 (1968). The appellant's second assignment of error concerns the circuit court's denial of habeas relief. In Syllabus Point 1 of Mathena v. Haines, 219 W. Va. 417, 633 S.E.2d 771 (2006), this Court held:
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.
With these standards in mind, the issues presented will be considered.
Q: The next sentence [in the preliminary report] says, Stains of human blood were identified on the oral swabs, slides, sheets, nightgown, blue shawl, fingernail clippings, pink blanket, pillow case and rug. Did you participate in testing that identified the existence of blood on those items?
A: I reviewed the work that was done on those items and saw the tests performed. I didn't set them up myself, but I reviewed the work on them.
Q: It says, No blood identified on remaining items. Did you participate in the testing, if any was done, the result of which was an absence of the finding of blood on other items?
A: No, sir. All that falls under the Preliminary Category. The negative results would have been when the evidence was processed, meaning no stains were identified that warranted further testing.
I came into play when it became time for genetic markers to be identified on items, meaning enzyme testing, ABO testing, that sort of thing, all except on the jeans, and I remember those specifically because when I labeled them, I mismarked one of the items.
In my discussions with Fred [Zain], I advised him that the jeans and the panties were positive and he said, No, it wasn't the panties, it was the shirt, and that's the memory that I have specifically about that item. That's the only reason I remember it is because I mislabeled them.
Trooper Smith further testified that the appellant's blood sample was not received by the Crime Lab until after Trooper Zain left his employment and that he and Trooper Myers did the comparison testing and analysis.
Upon consideration of the evidence, the circuit court entered an order on January 30, 1996, denying the appellant habeas relief. The circuit court concluded that Trooper Zain's involvement in the underlying case was minimal, at most, and due to the chronology in the case, Trooper Zain could not have manipulated the results of the testing to inculpate the appellant because he never had a blood sample from the appellant, and thus, he could not have known what the appellant's genetic markers were. The circuit court further found that the serological evidence in the case was not a factor in the appellant's conviction and that the non-serological evidence, standing alone, was sufficient to support the appellant's conviction.
Subsequently, on January 9, 1998, Trooper Smith testified before the Grand Jury in the Circuit Court of Kanawha County which was convened to investigate criminal charges against Trooper Zain. The following exchange occurred:
Q: Were you ever requested to write a final report based on Mr.
Q: Did you do that?
A: Yes, I did.
Q: Did you find any problems with that?
A: Yes and no. I wrote the report based on the worksheets, but yeah I found problems with it.
Q: How did those problems crop up in that instance?
A: Well, the Farmer case is one for example. For example, I was going to tell you. He had listed on his worksheet a full set of genetic markers off a set of fingernail clippings for blood. I mean, I can't tell you how unusual that is. That just made me wonder, wow, that's real unusual. That's strange.
Q: Are you saying that the blood samples would be very minimal_
A: My own experience is we're lucky to get hardly anything off of fingernails. In that case_and then when I looked back through the data on that case, I thought, well, darn there's stuff that I think I should be able to find but can't find.
But at the same time, on that case I actually_it was close in time when the testing was done, I remember doing tests in the case. I actually remember doing things. And so I thought, well, maybe I screwed up or maybe we lost something or whatever. And so, like I say, I issued the report based on that. Trooper Myers issued reports. At that point in time, after that incident, it troubled me so much, I came back and I ordered Brent and Jeff, Do not write any reports that you cannot absolutely verify everything that is on the report.
It troubled me, because I couldn't explain it. And I didn't like being put in the position if I was asked_no, I didn't like being put in that position. I had no reason to categorically distrust anything that was on that worksheet because that was our main document. That's what we were suppose to use.
But from that time on, we didn't issue any reports that we didn't filter through our own records, whatever that may be, and adjust them accordingly.
Approximately one year later, this Court ordered a third investigation of the Serology Division of the State Police Crime Lab based upon allegations that a state trooper, other than Trooper Zain, had knowingly falsely testified about nonexistent serology test results supposedly linking a petitioner in a habeas corpus claim to the crime at issue. Zain III, 219 W. Va. at 411, 633 S.E.2d at 765. As part of the investigation, ten cases that involved tests and trial testimony of serologists other than Fred Zain were selected for review. One of those cases was that of the appellant. The selected cases were reviewed by Mark Stolorow, Executive Director of Orchid Cellmark Laboratories. His initial conclusions were forwarded to Ronald Linhart, an inspector with the American Society of Crime Laboratory Directors and one of the independent experts in the Zain I investigation. They filed a joint report on December 2, 2004 (hereinafter referred to as the Stolorow/Linhart report). Id.
Based on the findings of Mr. Stolorow and Mr. Linhart, the Honorable Thomas A. Bedell, the special judge appointed to conduct the Zain III investigation, (See footnote 8) reported to this Court on September 23, 2005, that 'there is not a scintilla of evidence of intentional misconduct on the part of the serologists who worked with Fred S. Zain. . . . Although there was [sic] some errors identified in cases reviewed, the Stolorow/Linhart report concluded that the errors were non-probative in the cases in which they were found.' Zain III, 219 W. Va. at 412, 633 S.E.2d at 766. Accordingly, this Court reaffirmed the holding in Syllabus Point 3 of Zain II which states,
Serology reports prepared by employees of the Serology Division of the West Virginia State Police Crime Laboratory, other than Trooper Fred S. Zain, are not subject to the invalidation and other strictures contained in In the Matter of an Investigation of the West Virginia State Police Crime Laboratory, Serology Division, 190 W. Va. 321, 438 S.E.2d 501 (1993).
At the same time, this Court also recognized that the determination that the serology
evidence at issue is not subject to the invalidation strictures and systematic review authorized
in Zain I does not preclude prisoners against whom these serologists offered evidence from
seeking habeas corpus relief under our Post-Conviction Habeas Corpus statute, W. Va. Code § 53-4A-1, et seq. Zain III, 219 W. Va. at 414-415, 633 S.E.2d at 768-69. Accordingly, this Court held in Syllabus Point 6 of Zain III that,
A prisoner who was convicted between 1979 and 1999
and against whom a West Virginia State Police Crime
Laboratory serologist, other than Fred Zain, offered evidence
may bring a petition for a writ of habeas corpus based on the
serology evidence despite the fact that the prisoner brought a
prior habeas corpus challenge to the same serology evidence,
and the challenge was finally adjudicated.
In this appeal, the appellant acknowledges that his case was one of the ten cases that was specifically examined in Zain III and that the special investigators involved in Zain III found no probative error. He asserts, however, that he should not be precluded from bringing a Zain III claim. He maintains that he is entitled to a full hearing, the taking of evidence, and entry of a comprehensive order by the circuit court which includes detailed findings as to the truth or falsity of the serology evidence.
Based upon a careful review of the record and the Zain III decision, this Court finds no error in the denial of the appellant's motion to amend. Zain III involved a comprehensive and detailed review of ten cases, including the appellant's, to ascertain the nature and extent of any misconduct on the part of serologists other than Trooper Zain in the State Crime Lab. Although a substantially greater number of errors were found than had been identified in the Zain II investigation, the Stolorow/Linhart report stated that 'there was no discovery of evidence that exculpated an otherwise inculpated defendant' and '[t]here are no smoking guns as witnessed with the intentional and egregious misconduct of Fred Zain, at least in these 10 cases under investigation.' Zain III, 219 W. Va. at 411-12, 633 S.E.2d at 765-66.
The contradictory testimony of Trooper Smith during the course of eight years following the appellant's conviction with regard to his personal participation in the testing of some of the evidence was considered and carefully reviewed by Mr. Stolorow and Mr. Linhart during the Zain III investigation. 219 W. Va. at 412, n.6, 633 S.E.2d 766, n.6. Regardless of the extent of Trooper Smith's participation in the genetic marker testing of the blood on the victim's fingernails, the fact remains that this evidence never inculpated the appellant. Rather, the testimony given by Trooper Smith with regard to this evidence at the appellant's trial was that the genetic markers found in the blood from the victim's fingernails were consistent with the victim's own genetic markers. The same is true with respect to the other evidence from the victim's residence. Trooper Smith's testimony at the appellant's trial was that all the genetic markers found in the blood on the items from the crime scene were consistent with the genetic markers of the victim. The appellant's genetic markers were only consistent with those genetic markers found in the seminal fluid on his t-shirt and jeans. Simply put, the serological evidence never connected the appellant to the crime scene.
When the fact that the appellant's case was thoroughly reviewed as part of the Zain III investigation and no probative error was found is combined with the fact that the
serological evidence did not link the appellant to the alleged crimes in the first place, there
is clearly no basis to allow the appellant to add a Zain III claim to his petition for a writ of
habeas corpus. Therefore, the circuit court did not abuse its discretion in denying the
appellant's motion to amend. (See footnote 9)
Any person convicted of a crime and incarcerated under
sentence of imprisonment therefor who contends that there was
such a denial or infringement of his rights as to render the
conviction or sentence void under the Constitution of the United
States or the Constitution of this State, or both, or that the court was without jurisdiction to impose the sentence, or that the sentence exceeds the maximum authorized by law, or that the conviction or sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under the common law or any statutory provision of this State, may, without paying a filing fee, file a petition for a writ of habeas corpus ad subjiciendum[.]
In addition, this Court has explained that [h]abeas corpus serves as a collateral attack upon
a conviction under the claim that the conviction was obtained in violation of the state or
federal constitution. Edwards v. Leverette, 163 W. Va. 571, 576, 258 S.E.2d 436, 439
(1979). Therefore, [w]hile our legislature, through the enactment of W.Va.Code, 1931,
53-4A-1 through 11, as amended has provided a broad and effective post-conviction review,
we still maintain a distinction, so far as post-conviction remedy is concerned, between plain
error in a trial and error of constitutional dimensions. Only the latter can be a proper subject
of a habeas corpus proceeding. Id. According, Syllabus Point 4 of State ex rel. McMannis
v. Mohn, 163 W. Va. 129, 254 S.E.2d 805 (1979), holds that [a] habeas corpus proceeding
is not a substitute for a writ of error in that ordinary trial error not involving constitutional
violations will not be reviewed. See also Pethel v. McBride, 219 W. Va. 578, 588, 638
S.E.2d 727, 737 (2006) (The right to habeas relief is, by necessity, limited. If it were not,
criminal convictions would never be final and would be subject to endless review.).
In this case, six of the grounds for relief asserted by the appellant involve alleged trial error. Having carefully and thoroughly reviewed the record in this case, this Court finds that four of those grounds are not subject to habeas review. In particular, this Court finds that the following are ordinary trial errors: denying the appellant's motions for acquittal at the close of the State's case, admitting into evidence the appellant's t-shirt which contained evidence of seminal fluid, (See footnote 10) allowing the jury to use a magnifying glass, and finding that the prosecutor did not knowingly introduce false testimony of three witnesses, David Tomlin, James Lang, and Lynn Fitzwater. (See footnote 11) Even if these alleged trial errors were supported by the record, this Court does not believe that they implicate the appellant's constitutional rights in such a manner as to be reviewable in habeas corpus, and therefore, they will not be addressed. State ex rel. Wimmer v. Trent, 199 W. Va. 644, 487 S.E.2d 302 (1997). See also State ex rel. Edgell v. Painter, 206 W. Va. 168, 522 S.E.2d 636 (1999) (finding that denial of motion for acquittal is not a proper ground to assert in a habeas proceeding); Hatcher v. McBride, 221 W. Va. 5, 11, 650 S.E.2d 104, 110 (2006), quoting Grundler v. North Carolina, 283 F.2d 798, 802 (4th Cir.1960) (observing that [a]bsent 'circumstances impugning fundamental fairness or infringing specific constitutional
protections,' admissibility of evidence does not present a state or federal constitutional question.). (See footnote 12)
On the other hand, the appellant's contention that the trial court erred in admitting statements he gave while incarcerated in a New Jersey prison and his assertion that a biased juror should have been disqualified are claims that do rise to a constitutional level. Therefore, these two claims along with the appellant's alleged error regarding his sentences will be considered below.
A police officer may continue to question a suspect in a
noncustodial setting, even though the suspect has made a request
for counsel during the interrogation, so long as the officer's
continued questioning does not render statements made by the
In this appeal, the appellant argues that he was clearly in a custodial setting when he was interviewed by Corporal Jeffries and Deputy Shirley on June 8, 1989, because he was in a New Jersey prison and therefore, the officers should have stopped questioning him when he requested an attorney. Upon a careful and thorough review of the record, this Court finds that it is not necessary to delve into the issue of the appellant's custodial status at the time he was questioned at the Bayside Prison. Assuming, arguendo, that the appellant's statements should have been suppressed, this Court finds that their admission into evidence at trial was, at worst, harmless error. (See footnote 15) Moreover, the statements at issue did not inculpate the appellant.
As noted above, the appellant was questioned by the police on two separate occasions. The first interview occurred on April 16, 1988, in a police cruiser outside of the appellant's home. The second interview occurred on June 8, 1989, at the Bayside Prison. All of the statements were admitted into evidence at trial. However, none of the statements that the appellant gave to Corporal Jeffries and Deputy Shirley were confessions. Instead, the appellant specifically denied committing the alleged offenses.
The relevant information obtained during the second interview of the appellant while he was in the Bayside Prison concerned his comings and goings on the evening of April 14, 1988. In that regard, the appellant told the officers that he had left the Grims' home for about forty-five minutes on the night in question to go to Sonny Pumphrey's trailer. The record shows, however, that this information was also provided by the appellant in his first statement to the police officers on April 16, 1988. In the first statement, the appellant initially said that he was at the Grim home during the entire evening of April 14, 1988. When questioned further, he acknowledged that he had left the Grim home for a short time to go to Mr. Pumphrey's trailer. Given the fact that the information contained in the second statement had already been presented to the jury through the admission of the April 16, 1988, statement, this Court finds that the second statement was merely cumulative evidence. (See footnote 16)
Upon a further review of the record, it is also clear that the evidence contained in the appellant's second statement was not critical to the jury's consideration of the evidence and its finding of guilt. In that regard, the State presented other evidence which actually placed the appellant in the victim's home. Both James Lang and David Tomlin testified that the appellant said that he had broken into the victim's house but that he did not kill her. In light of this evidence, the appellant's statements to the police officer while he was incarcerated in the New Jersey prison were not necessary to establish that he had the opportunity to commit the alleged offenses.
This Court has held that [f]ailure to observe a constitutional right constitutes reversible error unless it can be shown that the error was harmless beyond a reasonable doubt. Syllabus Point 5, State ex rel. Grob v. Blair, 158 W. Va. 647, 214 S.E.2d 330 (1975). Based on all the above, it is clear that the admission of the statements the appellant gave while he was incarcerated in New Jersey's Bayside Prison into evidence at his trial was harmless. Therefore, the circuit court did not abuse its discretion in finding no error.
A trial court's failure to remove a biased juror from a
jury panel does not violate a defendant's right to a trial by an
impartial jury as guaranteed by the Sixth and Fourteenth
Amendments to the United States Constitution and by Section
14 of Article III of the West Virginia Constitution. In order to
succeed in a claim that his or her constitutional right to an
impartial jury was violated, a defendant must affirmatively show
prejudice. Syl. Pt. 7, State v. Phillips, 194 W.Va. 569, 461
S.E.2d 75 (1995).
Syllabus Point 6, State ex rel. Quinones v. Rubenstein, 218 W. Va. 388, 624 S.E.2d 825 (2005). As discussed, the appellant has failed to affirmatively show prejudice on the part of Juror Cook. Accordingly, the circuit court did not abuse its discretion in finding that the trial court properly denied the appellant's motion to disqualify Juror Cook. (See footnote 18)
Accordingly, for all the reasons set forth above, the final order of the Circuit Court of Jefferson County entered on August 15, 2007, is affirmed.