                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS



Jerry Steen Sapp Jr.,
Petitioner Below, Petitioner                                                      FILED
                                                                               April 29, 2016
vs) No. 15-0258 (Preston County 01-C-06)                                       RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
David Ballard, Warden
Mount Olive Correctional Complex,
Respondent Below, Respondent


                               MEMORANDUM DECISION
      Petitioner Jerry Steen Sapp Jr., by counsel John V. Danford, appeals the February 19,
2015, order of the Circuit Court of Preston County denying his petition for habeas relief
stemming from his conviction and sentence for first degree murder. Respondent David Ballard,
Warden, by counsel Zachary Aaron Viglianco, filed his 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 affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        On July 8, 1995, several groups of people were engaged in recreational activities at
Fortney’s Mill, a camping and recreation spot in Preston County, West Virginia. According to
testimony from several witnesses, Patty Nestor sold petitioner and his friends acid,1 which turned
out to be less effective than expected.2 Petitioner became angry, and his anger grew throughout
the day. However, Ms. Nestor’s group and petitioner’s group partied together around a campfire
while the groups drank alcohol and used drugs. Petitioner then picked up a piece of firewood,
walked over to Ms. Nestor’s husband, Randy Nestor, and struck him twice in the head. Mr.
Nestor sustained massive brain injuries and later died as a result of those injuries.

        Two years after Mr. Nestor’s death, petitioner was arrested and charged with first degree
murder. At trial, four witnesses testified that petitioner was the person who attacked Mr. Nestor,
and two witnesses testified that petitioner had acknowledged or claimed responsibility for the
attack. However, petitioner testified on his own behalf and claimed that a member of his group,
Brian White, was the one responsible. On February 11, 1999, a jury found petitioner guilty of

       1
           Lysergic acid diethylamide is commonly referred to as “acid.”
       2
           Petitioner denied receiving or consuming this acid.
                                                  1
first degree murder with a recommendation of mercy. On March 18, 1999, the circuit court
denied petitioner’s motion for a new trial and sentenced petitioner to life imprisonment with
mercy. On September 28, 1999, petitioner filed his direct appeal with this Court, asserting
thirteen errors, several of which touched on the ineffective assistance of trial counsel. On July
12, 2000, this Court issued its decision affirming petitioner’s conviction. State v. Sapp, 207
W.Va. 606, 535 S.E.2d 205 (2000).

        On January 18, 2001, petitioner filed a pro se petition for writ of habeas corpus. The
circuit court then appointed counsel to represent petitioner. The Circuit Court of Preston County
denied that petition by order entered on or about April 10, 2009. On February 19, 2015, the
circuit court entered its “Order Reissuing Order Denying Petition for Writ of Habeas Corpus” for
purposes of allowing petitioner to appeal the denial of his habeas petition. Petitioner now appeals
that denial.

       We apply the following standard of review in habeas cases:

               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.

Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006). Further, “‘[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 of State ex rel. McMannis v.
Mohn, 163 W.Va. 129, 254 S.E.2d 805 (1979) [c]ert. [d]enied, 464 U.S. 831, 104 S.Ct. 110, 78
L.Ed.2d 112 (1983).” Syl. Pt. 3, Hatcher v. McBride, 221 W.Va. 5, 650 S.E.2d 104 (2006).

         On appeal, petitioner asserts two assignments of error. The first alleged error is the
circuit court’s determination that petitioner did not receive ineffective assistance of trial counsel.
As part of this alleged error, petitioner sets forth six subparts, though all fall squarely within the
general category of ineffective assistance of counsel. The alleged ineffective assistance of
counsel includes the following: trial counsel failed to move to exclude certain evidence admitted
pursuant to Rule 404(b) of the West Virginia Rules of Evidence or request a cautionary
instruction regarding the same; trial counsel failed to object to the State’s improper impeachment
of petitioner during the redirect of witness Brian White; trial counsel failed to object to the
investigating officer’s repeated use of the word “murder” during the officer’s testimony; trial
counsel failed to object to the State’s improper questioning of petitioner; trial counsel failed to
object to several prejudicial misrepresentations of petitioner’s trial testimony by the State during
closing argument; trial counsel failed to object or request a curative instruction when the State
made prejudicial misstatements of law as the prosecutor attempted to define reasonable doubt to
the jury during closing argument; and trial counsel failed to object to the circuit court’s inclusion
of a Clifford instruction in its jury charge.3

       3
      A jury instruction given pursuant to State v. Clifford, 59 W.Va. 1, 52 S.E. 981 (1906), is
commonly referred to as a Clifford instruction.
                                                  2

        We have previously held that

                [i]n the West Virginia courts, claims of ineffective assistance of counsel
        are to be governed by the two-pronged test established in Strickland v.
        Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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). Further,

                [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.

Syl. Pt. 6, id.

        In the instant matter, petitioner has failed to satisfy the high burden set forth in Miller.
Petitioner’s theory of the case was that Mr. White was the one who struck Mr. Nestor. He did not
contend that he was not present at the time of the crime, and he does not allege on appeal that
there were witnesses his counsel failed to call that could corroborate his version of events. In
addition, while petitioner complains about the Clifford instruction given by the circuit court, this
Court has previously stated that the “linchpin of the problems that flow from these instructions is
the failure adequately to inform the jury of the difference between first and second degree
murder.” State v. Guthrie, 194 W.Va. 657, 673, 461 S.E.2d 163, 179 (1995). Petitioner did not
contend at trial and does not assert on appeal that he should have been found guilty of second
degree murder, rather than first degree murder, as he contended that he was not the perpetrator of
the crime. Therefore, while petitioner’s counsel arguably could have asserted additional
objections during the trial, counsels’ alleged failures to object as set forth in his first assignment
of error do not rise to the level of ineffective assistance of counsel required by Miller in order to
obtain the requested relief. The same is true as to the other alleged instances of ineffective
assistance of counsel during trial.

        Petitioner’s second assignment of error is that the circuit court erred in finding that
petitioner’s claims of mental incompetency at the time of the crime and at the time of trial were
without merit. When petitioner submitted his amended petition for habeas relief before the circuit
court, he included a Losh list, which included the following: mental competency at time of
crime; mental competency at time of trial; incapacity to stand trial due to drug use; and claim of
incompetence at the time of the offense, as opposed to time of trial.4 Petitioner contends that
neither his counsel nor the circuit court requested a mental competency or criminal responsibility
        4
            Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981).
                                                  3

evaluation despite the fact that no witness testified that petitioner was sober at the time of the
incident. He argues that with a diminished capacity defense, he could have been found not guilty
of first degree murder due to an inability to form the requisite intent as a result of intoxication.

        This Court has previously found that “‘[i]ntoxication to reduce an unlawful homicide
from murder in the first degree, must be such as to render the accused incapable of      FILED
                                                                                             forming an
intent to kill, or of acting with malice, premeditation or deliberation.’ Syl. pt. 4, State v. Burdette,
135 W.Va. 312, 63 S.E.2d 69 (1950).” Syl. Pt. 3, State v. Keeton, 166 W.Va. 77,     RORY272  S.E.2d
                                                                                         L. PERRY       817
                                                                                                  II, CLERK
(1980). Further,                                                                 SUPREME COURT OF APPEALS
                                                                                         OF WEST VIRGINIA

                [w]here there is evidence in a murder case to support the defendant’s
        theory that his intoxication at the time of the crime was such that he was unable to
        formulate the requisite intent to kill, it is error for the trial court to refuse to give a
        proper instruction presenting such a theory when requested to do so.

Syl. Pt. 4, id. No such request was made in the instant case, and no request was made by
petitioner’s counsel for any examination related to petitioner’s mental competency or criminal
responsibility. In addition, in order for a jury to even consider petitioner’s theory of the case that
he saw Mr. White strike Mr. Nestor, the jury had to believe that petitioner was sober enough to
be fully aware of and recall with specificity activity going on around him. Therefore, if counsel
had requested such examination or requested an intoxication related instruction be given to the
jury, those actions would have been wholly inconsistent with petitioner’s assertion that he did
not strike Mr. Nestor.

        Other than criticizing the circuit court’s reliance on petitioner’s trial counsels’ testimony
regarding petitioner’s understanding of the proceedings, petitioner does not set forth any portions
of the pre-trial or trial process he did not understand. He also ignores his trial testimony that at
the time of the crime he “had a pretty good beer buzz” but was not “staggering around drunk.”
Despite witness testimony that he had consumed acid, petitioner denies the same. For these
reasons, we cannot find that the circuit court erred in concluding that petitioner’s claims of
mental incompetency at the time of the crime and the time of the trial are without merit.

        For the foregoing reasons, we affirm.

                                                                                                Affirmed.

ISSUED: April 29, 2016

CONCURRED IN BY:

Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II



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