Yost v. Terry

John Chadrick Yost, Petitioner Below, Petitioner v. Ralph Terry, Superintendent, Mount Olive Correctional Center, Respondent Below, Respondent

No. 17-0728

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

October 10, 2018

(Raleigh County 11-C-1045-K)

MEMORANDUM DECISION

Petitioner John Chadrick Yost, by counsel Mark Hobbs, appeals the July 20, 2017, order of the Circuit Court of Raleigh County that denied his petition for post-conviction habeas corpus relief. Respondent, Superintendent Ralph Terry,¹ Mount Olive Correctional Center, by counsel Scott E. Johnson, responds in support of the habeas court's order.

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 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 January 7, 2006, petitioner stole a Kia Rio automobile from its owner at gunpoint. Three days later, a state trooper spotted the Rio in a parking lot. When the trooper approached the Rio, the driver drove away at a high rate of speed, striking the police cruiser in the process. The trooper recognized the driver, but did not know his name. Thereafter, the trooper identified petitioner as the driver. The police later found the Rio wrecked.

Less than a month later, on the evening of February 3, 2006, petitioner pointed a gun at a post office customer, threatened to kill her, and demanded the keys to her Geo Tracker (valued at $10,000), which the customer handed over. Petitioner also stole $20 from the customer at gunpoint. Petitioner fled in the Tracker, but the police spotted him and another high-speed chase ensued. Petitioner eventually abandoned the Tracker and fled on foot, escaping capture. The keys for the Tracker were later found at petitioner's residence.

In the early morning hours of February 4, 2006, petitioner stole a 2005 Nissan Armada (valued at $35,000) from the owner's driveway. Thereafter, when a state trooper saw petitioner removing items from the Armada and ordered petitioner to exit the vehicle, petitioner drove the car directly at the trooper and then commenced yet another high-speed chase. The state police set up a roadblock, which petitioner ran as troopers fired shots at him. Thereafter, petitioner set the Armada on fire, rendering it a total loss.

Later that same morning, State Police Capt. Scott Van Meter found petitioner at his mother's home. Capt. Van Meter and Sgt. G.A. Duckworth transported petitioner in handcuffs to a state police detachment. During that trip, petitioner stated that drugs caused him to do stupid things and that he wanted to get off drugs. Capt. Van Meter then said to petitioner that if he had tossed his gun, a child might pick it up, so the gun should be placed in a secure place. Petitioner told the officers where his gun was located. The police found the loaded gun in that location. Thereafter, at the detachment and prior to questioning, an officer reviewed petitioner's Miranda² rights with him. Petitioner gave a lengthy statement during which he admitted to both robberies, to stealing and burning the Nissan Armada, and to the high-speed chases.

On January 8, 2007, petitioner was indicted on two counts of first-degree robbery, three counts of grand larceny, three counts of attempted first-degree murder, two counts of being a felon in possession of a firearm, two counts of fleeing law enforcement in a vehicle, one count of third degree arson, and one count of fleeing from law enforcement on foot.

Pretrial, petitioner's counsel moved to suppress petitioner's statement to the police on the grounds that it was involuntary and coerced. The trial court held evidentiary hearings on August 31, 2006, and September 21, 2006. At the hearing, petitioner testified, as did all of the arresting and investigating police officers involved in this case. Capt. Van Meter testified as follows:

The State: Could you tell the Court any information you have as to any promises you made to Mr. Yost?

Capt. Van Meter: At one point before, I think, we even left the house, I know this mother, I actually made a promise to her, I think. She was concerned . . . for her son's safety. She said [a particular trooper] didn't like her son and she was worried that [the trooper] would harm [petitioner] and I assured him that - assured her that [the trooper] would not harm [petitioner].

The State: Did you make any other promises to [petitioner]?

Capt. Van Meter: When we got in the car, [Sgt.] Duckworth was driving and I rode and put [petitioner] in the backseat. [Sgt. Duckworth] had made a comment - I wouldn't say this was a promise but he made a comment that, you know, if [petitioner is] really wanting to get off drugs, he needs to - he's going to have to do it himself. He can't - no one else is going to do it for him. He's got to take that first step, go see a counselor, see a minister or something like that.

And the only other thing I can remember talking about [petitioner] was after he was arrested, probably a couple weeks, maybe a week, maybe more, his mother called me at the office one day, and she was asking questions about hearings and things like that, and she said something about the federal court and state court and I tried to explain to her a little bit that it was two different things. And I did make the comment that if it was me, I'd try to stay away from federal court.

Petitioner testified that when he confessed, he was under the influence of marijuana, various narcotics, and copious amounts of beer and liquor. Petitioner also testified that Capt. Van Meter promised to "help [petitioner] the best that he could" during the interrogation. Petitioner then testified as follows:

Petitioner's counsel: Why did you give a statement?

Petitioner: That's what was suggested of me to do so they would work with me on making things easier on me. That's the only way that I knowed [sic] to go ahead and finish everything out. I mean --

Petitioner's counsel: Did the trooper --

Petitioner: I didn't know anything else to do.

Petitioner's counsel: Did Trooper Van Meter explain how it was that he would help you?

Petitioner: No.

Petitioner's counsel: Did you believe that he would help you?

Petitioner: I believed that there was some form of help going to be given to me as far as acknowledging . . . I should do this or should do that. I didn't even think about that I needed to get a lawyer because, you know, the way that I understood it, that if I cooperated with him and gave him where the gun was at and he would do what he could to help me. And, as far as I know, he said to go on down and be truthful and give a statement and he'd see what he could do.

Petitioner's counsel: And has he helped you?

Petitioner: I haven't heard from the man.

Also at the pretrial hearing, Dr. Fred J. Krieg, a clinical psychologist and petitioner's expert, testified that he examined petitioner and evaluated his confession and the police report. Dr. Krieg concluded that, when petitioner confessed to the police, the drugs and alcohol he hadconsumed (1) impaired his ability to articulate, his judgment, and his critical thinking; and (2) caused him to be unduly swayed by Capt. Van Meter's promise of help.

By order entered October 25, 2006, the trial court denied petitioner's motion to suppress his confession. The trial court found that "[t]he record is absolutely clear that there was no specific promise made by anyone to [petitioner], or to [petitioner's] family, in return for [petitioner's] agreement to give a recorded statement."

Petitioner's jury trial commenced on April 27, 2007. Attorneys Steven K. Mancini and David Kelley represented petitioner at trial. During its case-in-chief, the State admitted petitioner's gun into evidence without objection from petitioner's trial counsel. The jury acquitted petitioner of the three counts of attempted first-degree murder, but convicted him on all other counts. On June 6, 2007, the trial court sentenced petitioner to a cumulative sentence of not less than thirty nor more than one-hundred-thirty-four years in prison.³

Post-trial, petitioner moved to vacate his two grand larceny convictions on the ground that they violated the prohibition against double jeopardy found in the Fifth Amendment to the United States Constitution and Article III, § 5 of the West Virginia Constitution. The trial court denied that and other motions on August 14, 2007. This Court denied petitioner's appeal of his conviction and sentences on February 26, 2009. The United States Supreme Court denied petitioner's petition for writ of certiorari on November 2, 2009. The trial court then denied petitioner's motion for reconsideration of sentence, pursuant to Rule 35(b) of the West Virginia Rules of Criminal Procedure, on March 12, 2010. Thereafter, petitioner sought habeas relief.

The habeas court appointed counsel who filed petitioner's amended habeas petition on December 18, 2013. Petitioner's Losh⁴ list included fifteen issues. Habeas counsel submitted eleven of these issues to the habeas court without oral or written argument. Those eleven issues were (1) coerced confession; (2) excessiveness or denial of bail; (3) challenges to the composition of the grand jury or its procedure; (4) defects in the indictment; (5) non-disclosure of grant jury minutes; (6) instructions given to the jury; (7) claims of prejudicial statement of the trial judge; (8) sufficiency of the evidence; (9) improper communications between prosecutor and witness or jury; (10) excessive sentence; and (11) amount of time served on sentence, credit for time served. The four grounds supported by argument were: (1) double jeopardy; (2) consecutive sentences for the same transaction; (3) ineffective assistance of...