                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


Marcus McKinley,                                                                       FILED
Petitioner Below, Petitioner                                                        June 25, 2020
                                                                                  EDYTHE NASH GAISER, CLERK
                                                                                  SUPREME COURT OF APPEALS
vs.) No. 19-0191 (Mercer County 15-C-42-MW)                                           OF WEST VIRGINIA


Donnie Ames, Superintendent,
Mt. Olive Correctional Complex,
Respondent Below, Respondent


                               MEMORANDUM DECISION


        Petitioner Marcus McKinley, by counsel E. Ward Morgan, appeals the February 22, 2019,
Order of the Circuit Court of Mercer County denying his motion to alter or amend judgment related
to the circuit court’s denial of his petition for a writ of habeas corpus. Respondent, Donnie Ames,
Superintendent, Mt. Olive Correctional Complex, by counsel Andrea Nease-Proper, filed a
response in support of the circuit 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 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 order of the circuit court is appropriate under Rule 21 of
the Rules of Appellate Procedure.

        Petitioner began dating Ayanna Patton (“the victim”) around 2008. The relationship was
very violent and resulted in numerous calls to police for domestic violence incidents. In May of
2011, the victim had a protective order in place that forbade petitioner from having any contact
with her. Despite the protective order, the victim met with petitioner at a restaurant on May 18,
2011. The two talked, and the victim returned to her apartment alone. Petitioner then obtained the
victim’s home address from a friend and went to her apartment, where he spent the night. When
petitioner awoke early the following morning, he began reading text messages on the victim’s
phone between her and another man. Petitioner became upset, retrieved a gun that he carried, and
shot the victim five times. She died at the scene.

        After killing the victim, petitioner fled to North Carolina. While in the process of fleeing,
petitioner used a cell phone, owned by the victim, to contact several people and made incriminating
statements indicating that he killed the victim. North Carolina police tracked petitioner using
signals from the victim’s phone and located him. While being transported back to West Virginia,

                                                  1
petitioner gave incriminating statements to the officers driving him, indicating that he killed the
victim.

        On February 15, 2012, petitioner was indicted for first-degree murder. The trial court held
a suppression hearing on October 12, 2012, regarding the statements petitioner made to the police
officers who escorted him back to West Virginia. A plea bargain was also discussed wherein
petitioner offered to plead guilty to second-degree murder, and the prosecution offered first-degree
murder with mercy. On October 25, 2012, the trial court held a hearing on the State’s motion to
bifurcate petitioner’s trial. Petitioner’s counsel objected to the motion, and the trial court denied
the State’s motion.

         Upon discovering that he had a conflict of interest in the case, the prosecution called the
trial judge and petitioner’s counsel to discuss his possible disqualification. 1 During that
conversation, the proposed plea agreement was also discussed. The trial judge asked for the
family’s opinion on the plea offer. After learning that the family disagreed with anything short of
the “electric chair,” the trial judge informed the parties that he would reject the proposed plea deal
for first-degree murder with mercy. A formal hearing regarding a plea agreement was held, and
petitioner was present in person. The plea was put on the record and officially rejected by the court.
The prosecuting attorney was disqualified the following day and a special prosecutor was
appointed. Petitioner’s trial began on March 19, 2013. After several days of testimony, petitioner
was found guilty of first-degree murder with no recommendation of mercy. Petitioner argued
during a post-conviction hearing that the trial court did not properly evaluate his plea offer of
second-degree murder. The court stated that the prosecuting attorney who offered the plea deal of
first-degree murder with mercy was disqualified from the case, thereby nullifying the deal. Further,
the court stated that the victim’s family had objected to the plea offer. Petitioner filed a direct
appeal of his conviction to this Court, which affirmed his conviction for first-degree murder
without mercy. See State v. McKinley, 234 W. Va. 143, 764 S.E.2d 303 (2014). On April 12, 2013,
the trial court denied petitioner’s motion to set aside the verdict and motion for a new trial.

        Petitioner was appointed new counsel who filed an amended petition for a writ of habeas
corpus on January 10, 2017, alleging twenty-two assignments of error. The habeas court held an
omnibus hearing on January 4, 2018. Relevant to the instant appeal, petitioner argued that his trial
counsel was ineffective for objecting to the State’s motion to bifurcate the trial. Petitioner’s trial
counsel objected to the motion to bifurcate the trial because bifurcation would allow the State to
introduce evidence of additional acts of domestic violence between petitioner and the victim, as
well as petitioner’s prior felony conviction for gun violence. The trial court agreed with petitioner’s
trial counsel that bifurcation was unnecessary. Petitioner also argued that his trial counsel was
ineffective in failing to present the alternative defense of extreme emotional distress. The habeas
court found that the trial court properly granted the State’s motion to exclude the expert testimony
of petitioner’s retained expert Bobby Miller, M.D., who performed a forensic psychiatric
evaluation of petitioner. The habeas court found that Dr. Miller acknowledged that petitioner had
no mental disease or defect at the time he committed the crime. Petitioner next argued that his
constitutional rights were violated when his trial counsel failed to ensure petitioner’s presence


       1
        The prosecutor had previously represented petitioner as defense counsel in another
criminal case.
                                                  2
during plea negotiations. The habeas court found that the “negotiations” to which petitioner
referred were neither a plea negotiation nor a critical stage where petitioner’s right to a fair trial
would have been affected. As such, the habeas court determined that petitioner’s presence during
the conversation was unnecessary. The habeas court denied petitioner’s petition for a writ of
habeas corpus on March 9, 2018. Thereafter, petitioner filed a motion to alter or amend judgment.
On February 22, 2019, the habeas court denied petitioner’s motion to alter or amend judgment,
finding that petitioner simply re-argued factual assertions made in his initial pre-trial motions and
his amended petition for a writ of habeas corpus. Petitioner appeals the February 22, 2019, order
denying his motion to alter or amend judgment.

       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).

         The standard of review applicable to an appeal from motion to alter or amend a judgment
“is the same standard that would apply to the underlying judgment upon which the motion is based
and from which the appeal to this Court is filed”. Syl. Pt. 1, Wickland v. Am. Travellers Life Ins.
Co., 204 W. Va. 430, 513 S.E.2d 657 (1998).

         Petitioner first argues that the habeas court erred in denying his motion to alter or amend
judgment as the court clearly erred in denying his petition for a writ of habeas corpus alleging
ineffective assistance of counsel. In his petition for habeas relief, petitioner argued that his trial
counsel was ineffective for three reasons: trial counsel objected to the State’s motion to bifurcate
the trial, trial counsel failed to present the alternative defense of extreme emotional disturbance,
and trial counsel discussed a plea offer with the trial judge and prosecutor without petitioner’s
participation or knowledge. 2

        Claims of ineffective assistance of counsel are governed by the two-prong test set forth in
Strickland v. Washington, 466 U.S. 668, 687 (1984), which states that, in order to prevail on a
claim of ineffective assistance of counsel, petitioner must show that “(1) [c]ounsel’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, in part, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).
Furthermore,


       2
        Petitioner alleged four assignments of error in his petition for appeal. Because three of
those assignments of error involve ineffective assistance of counsel, they have been combined
herein.
                                                  3
       [i]n 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 6, 459 S.E.2d at 117. This Court “always . . . presume[s] strongly that counsel’s performance
was reasonable and adequate[,]” and

       [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. at 16, 459 S.E.2d at 127. Certainly, with the benefit of hindsight, “one always may identify
shortcomings, but perfection is not the standard for ineffective assistance of counsel.” Id. at 17,
459 S.E.2d at 128.

         Petitioner first contends that his trial counsel was ineffective in objecting to bifurcation of
the trial. Petitioner asserts that even if he was precluded from presenting the defense of extreme
emotional disturbance at trial, he could have presented the mitigating defense during the mercy
phase. Petitioner relies on State v. LaRock, 196 W. Va. 294, 470 S.E.2d 613 (1996), in which this
Court held that a trial court has the discretion to bifurcate a trial in any case where the jury is
required to make a recommendation regarding mercy. Petitioner argues that he was diagnosed with
extreme emotional disturbance prior to the sentencing phase of his trial and if the trial had been
bifurcated, Dr. Miller could have testified at sentencing regarding petitioner’s state of mind at the
time he committed the crime. Petitioner states that if trial counsel had not objected to bifurcation
of the trial, the results of the proceedings would have been different.

        Based on our review of the record, we find that petitioner fails to show that trial counsel’s
performance was deficient under an objective standard of reasonableness with regard to objecting
to bifurcation of the trial. At the omnibus hearing, petitioner’s trial counsel testified that he has
practiced criminal law for forty years, and he made the decision to object to bifurcation of the trial
in order to prevent evidence of petitioner’s prior crimes from being admitted during the mercy
phase of a bifurcated trial. In its April 12, 2013, order denying petitioner’s motions to set aside the
verdict and for a new trial, the trial court expressly noted that the State intended to introduce
petitioner’s prior felony conviction for gun violence as well as two other matters involving
domestic violence during the mercy phase of trial if the court granted a motion to bifurcate. 3
Although petitioner asserts that if the trial had been bifurcated, he could have presented the

       3
       The State also sought to introduce evidence of additional instances of domestic violence
between petitioner and the victim.


                                                   4
testimony of Dr. Miller in support of mitigation, we note that Dr. Miller’s testimony was ruled
inadmissible at trial, and there is no evidence that Dr. Miller would have been permitted to testify
at sentencing. Petitioner failed to show that the results of the proceeding would have been different
had the trial been bifurcated. Accordingly, we find that the court did not err in concluding that trial
counsel was not ineffective.

        Next, petitioner contends that his trial counsel was ineffective in failing to present the
alternative defense of extreme emotional disturbance. Initially, petitioner’s trial counsel filed a
notice of intent to present diminished capacity as an affirmative defense, relying upon the opinion
of Dr. Miller. Dr. Miller opined that petitioner did not suffer from a mental disease or defect but
did suffer from extreme emotional disturbance when he committed the crime. Therefore, Dr. Miller
stated that petitioner may have lacked the ability to premeditate his crime. However, because Dr.
Miller opined that petitioner had no mental disease or defect, the trial court granted the State’s
motion to exclude Dr. Miller’s testimony. Petitioner asserts that the defense of extreme emotional
disturbance does not require a showing of mental disease or defect, and, therefore, trial counsel
should have presented it as a defense. Petitioner argues that trial counsel had a duty to investigate,
develop, and defend petitioner, which included presenting the legitimate defense of extreme
emotional disturbance. Petitioner asserts, that there is a reasonable possibility that if his trial
counsel had presented this defense, the outcome of the trial would have been different as the
essential element of premeditation could not have been proven, and he would not have been
convicted of first-degree murder. 4

        We disagree with petitioner and find that he failed to satisfy the first prong of the
Strickland/Miller test. Petitioner contends that he was incapable of premeditation at the time of the
murder due to extreme emotional disturbance, and also contends that his trial counsel was
ineffective for failing to establish this defense; however, these very issues were fundamentally
addressed on direct appeal and this Court found no error. In McKinley, this Court determined that
the trial court did not abuse its discretion in prohibiting petitioner’s expert, Dr. Miller, from
presenting evidence of extreme emotional disturbance to establish the defense of diminished
capacity. State v. McKinley, 234 W. Va. 143, 764 S.E.2d 303 (2014). The record on appeal was
replete with evidence showing that petitioner premeditated his crime. Therefore, even if trial
counsel had put forth the defense of extreme emotional disturbance, petitioner failed to show that
the results of the trial would have been different.

        Lastly, petitioner contends that his Sixth Amendment right to effective counsel was denied
when, during a telephone conference, his lawyer discussed a plea offer with the trial judge and
prosecutor without petitioner’s participation or knowledge. It is undisputed that a plea bargain was
discussed early in the case wherein petitioner offered to plead guilty to second-degree murder and
the prosecution offered first-degree murder with mercy. While plea negotiations were still pending,
the prosecutor discovered that his office had a conflict of interest in the case. He contacted
petitioner’s trial counsel and the judge to inform them that his office should be disqualified from
the case. During that conversation, the judge inquired as to what the victim’s family thought of the
proposed plea agreement. Upon being informed that the family disagreed with anything short of
petitioner’s execution as punishment for his crime, the judge informed the parties that he would


       4
           See W. Va. Code ⸹ 61-2-1.
                                                  5
reject a plea for second degree murder. Petitioner now argues that his trial counsel’s failure to
object to the trial court’s rejection of the proposed plea agreement unconstitutionally prejudiced
petitioner. Petitioner argues that after the proposed plea of second-degree murder was rejected by
the trial court, he would have accepted the prosecution’s original plea offer of first-degree murder
with mercy, but his counsel did not communicate petitioner’s acceptance of the original plea offer.

         We have held that “[t]he general right of a criminal defendant to be present during
courtroom proceedings is addressed through the interpretation of the state constitution, a Court
rule and statute. Consequently, our review of the issue . . . is plenary.” State v. Sites, 241 W. Va.
430, 443, 825 S.E.2d 758, 771 (2019). This Court has long recognized that “Section 14 of Article
III of the West Virginia Constitution, as well as the Fifth and Sixth Amendments to the United
States Constitution, establishes a criminal defendant’s right to be present at all critical stages of a
trial.” State v. Crabtree, 198 W. Va. 620, 629, 482 S.E.2d 605, 614 (1996).

         In syllabus point 6 of State v. Boyd, 160 W. Va. 234, 233 S.E.2d 710 (1977), this Court
acknowledged that “[t]he defendant has a right under Article III, Section 14 of the West Virginia
Constitution to be present at all critical stages in the criminal proceeding; and when he is not, the
State is required to prove beyond a reasonable doubt that what transpired in his absence was
harmless.” This Court has identified “critical stage[s] of a criminal proceeding” and ones “where
the defendant’s right to a fair trial will be affected,” syl. pt. 2, in part, State v. Tiller, 168 W. Va.
522, 285 S.E.2d 371 (1981), or “where anything may be done which affects the accused[.]” Syl.
Pt. 1, in part, id.

        We have further held that

        [w]hen the parties to a criminal proceeding agree that the trial court should be
        approached informally to determine whether the court would be amenable to a
        proposed plea agreement, the procedures outlined under Rule 11 of the West
        Virginia Rules of Criminal Procedure do not apply to respond to the informal
        inquiry.

        Syl. Pt. 1, State v. Welch, 229 W. Va. 647, 734 S.E.2d 194 (2012).

        We find that the limited conversation between the court, petitioner’s counsel, and the
prosecution regarding a possible conflict of interest in the prosecution’s office was not a formal
plea negotiation, and in fact, it was not until later, with petitioner present, that the proposed plea
was put on the record and rejected by the court. Petitioner had no constitutional right to be present
during the informal conversation between trial counsel, the prosecution, and the trial judge. We
therefore find trial counsel was not ineffective for failing to ensure petitioner’s presence.

        In his second assignment of error, petitioner argues that the habeas court committed
reversible error in denying his amended petition for a writ of habeas corpus because the court
failed to make specific findings and conclusions regarding the multiple grounds raised in both the
petition and the Losh list.5 Specifically, petitioner argues that the habeas court failed to address the


        5
            Losh v. McKenzie, 166 W. Va. 762, 277 S.E.2d 606 (1981).
                                                   6
following grounds: mental competency at the time of the crime, incompetency at the time of the
offense, constitutional errors in evidentiary rulings, sufficiency of the evidence, prejudicial
statements made by the prosecutor, and a more severe sentence than expected.

       This Court has previously held that

       West Virginia Code section 53-4A-7(c) (1994) requires a circuit court denying or
       granting relief in a habeas corpus proceeding to make specific findings of fact and
       conclusions of law relating to each contention advanced by the petitioner, and to
       state the grounds upon which the matter was determined.

State ex rel. Watson v. Hill, 201 W. Va. at 202, 488 S.E.2d at 477, Syl. Pt. 1.

        We find no merit in petitioner’s argument. Here, the habeas court specifically addressed,
in its March 8, 2018, order, each of the grounds raised by petitioner, even denoting each ground
under a different subheading. The court performed a thorough analysis of the issue of mental
competency and determined that petitioner failed to show that he lacked mental competency at the
time he committed the crime and at trial. Regarding constitutional errors in evidentiary rulings, the
court determined that exclusion of Dr. Miller’s testimony was proper and that petitioner failed to
identify any other specific constitutional provision which was allegedly infringed upon. 6 The court
also addressed the issue of sufficiency of the evidence and concluded that petitioner “did not offer
anything to challenge the sufficiency of the evidence.” As to the issue of allegedly prejudicial
statements made by the prosecutor during cross examination and closing arguments, the court
determined that petitioner failed to offer any evidence in support of such claims or even to address
the factors set forth in State v. Sugg, 193 W. Va. 388, 456 S.E.2d 469 (1995), for determining
whether a prosecutor’s statements were prejudicial. Those factors are

       (1) the degree to which the prosecutor’s remarks have a tendency to mislead the
       jury and to prejudice the accused; (2) whether the remarks were isolated or
       extensive; (3) absent the remarks, the strength of competent proof introduced to
       establish the guilt of the accused; and (4) whether the comments were deliberately
       placed before the jury to divert attention to extraneous matters.

        Finally, the court addressed the issue of petitioner receiving a more severe sentence than
expected and determined that petitioner’s sentence was fair, as the jury found him guilty of first-
degree murder without a recommendation of mercy. In discussing petitioner’s sentence, the habeas
court relied on State v. Adams, 211 W. Va. 231, 565 S.E.2d 353 (2002), which sets forth the two-
part test to determine if a sentence is excessive. The court reasoned that petitioner’s sentence did
not “shock the conscience of the court and society.” The court also considered “the nature of the
offense, the legislative purpose behind the punishment, a comparison of the punishment with what
would be inflicted in other jurisdictions, and a comparison with other offenses within the same



       6
         While petitioner alleged “constitutional errors” in his amended habeas, he was not specific
as to the actual error. The lower court determined the only such error that would apply was the
error related to the exclusion of the testimony of Dr. Miller.
                                                 7
jurisdiction.” Id. Accordingly, contrary to petitioner’s unsupported assertions, it is clear that the
habeas court made detailed findings regarding each of grounds petitioner contends were not
addressed.

         For the foregoing reasons, we affirm the circuit court’s February 22, 2019, denial of
petitioner’s motion to alter or amend judgment of the habeas court’s denial of his petition for a
writ of habeas corpus.


                                                                                          Affirmed.

ISSUED: June 25, 2020

CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison




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