                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS


Desmond D. Clark,                                                                 FILED
                                                                                  June 7, 2013
Petitioner Below, Petitioner                                                 RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 12-0524 (Kanawha County 11-MISC-463)                                   OF WEST VIRGINIA



David Ballard, Warden,
Mt. Olive Correctional Complex,
Respondent Below, Respondent


                               MEMORANDUM DECISION
       Petitioner Desmond D. Clark, by counsel Sherman L. Lambert Sr., appeals the Circuit
Court of Kanawha County’s April 12, 2012, order denying his petition for writ of habeas corpus.
Respondent David Ballard, by counsel Marland L. Turner, 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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        Petitioner was indicted during the September of 2008 term of the grand jury for breaking
and entering, kidnapping, and murder. The indictment stemmed from the July 5, 2008, murder of
Nalisha Gravely in a Taco Bell restaurant in Charleston. It was alleged that petitioner chased Ms.
Gravely, fired two shots at her, but missed. He caught her, slung her over his shoulder, and
carried her back to an SUV where he forced her inside and drove away. Ms. Gravely jumped out
of the SUV and fled into Taco Bell. Video surveillance in the restaurant captured petitioner
entering the restaurant and leaping over the counter. Petitioner located Ms. Gravely inside the
restaurant and shot her six times before leaving the restaurant and driving away.

        Petitioner was identified by numerous witnesses at Taco Bell and by one witness who
saw him at both the scene of the kidnapping and the murder. None of the witnesses noticed any
impairment in petitioner’s condition during the entire episode. Petitioner met with his expert, Dr.
Bobby Miller, five days after he killed Ms. Gravely. Dr. Miller was disclosed by the defense as
offering testimony as to the general effects of Xanax and alcohol use with no particular opinion
with relation to petitioner. During a pre-trial proceeding on March 19, 2009, petitioner moved for
a continuance to obtain additional mental health records to be reviewed by Dr. Miller. Petitioner
claimed the additional records might lead to a diminished capacity defense.

       A plea agreement was reached, and petitioner entered a plea of guilty to first degree

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murder on March 30, 2009. In exchange for the plea, the State agreed to dismiss the remaining
charges. At the time the plea was entered, the circuit court inquired of defense counsel whether
petitioner was giving up any further pursuit of a diminished capacity defense. At that hearing,
counsel for petitioner advised that petitioner no longer wished to pursue a defense of diminished
capacity.1 During that hearing, petitioner was asked by the court if he understood that there was a
possibility the court would not grant mercy, and petitioner replied that he did.

         At the sentencing hearing in July of 2009, petitioner’s trial counsel presented Dr. Miller’s
testimony in mitigation of punishment. Dr. Miller testified that when he evaluated petitioner five
days after the murder, he believed petitioner to be competent. He also testified it was his opinion
that petitioner knew what he was doing and was capable of conforming his behavior to the
requirements of the law but failed to resist the impulse to violence when angered. Dr. Miller
further testified that petitioner’s self-reported consumption of Xanax and alcohol, if taken as
true, would have made it even less likely that petitioner would control his impulses. Dr. Miller
did not testify that petitioner’s consumption of those substances would have affected petitioner’s
capacity to form a specific intent to kill or to premeditate or deliberate. Petitioner was sentenced
to life imprisonment without the possibility of parole. On November 2, 2009, petitioner filed a
motion for reconsideration before the circuit court, again citing the issues raised in Dr. Miller’s
reports. The circuit court denied that motion by order dated November 10, 2009.

        Petitioner filed his petition for writ of habeas corpus before the circuit court on October
11, 2011. In the petition, petitioner alleges two deficiencies by trial counsel: (1) failure to
investigate mental and medical defenses; and (2) failure to offer mitigating evidence of Xanax
and alcohol use at the time of the offense. On March 9, 2012, the circuit court held a hearing on
the petition for writ of habeas corpus. During the hearing, the circuit court heard testimony from
petitioner and his mother who both testified that they were advised by trial counsel that the
proposed plea agreement was strategically the best course because it was a calculated guess by
counsel that petitioner would receive mercy. They acknowledged, however, that counsel did not
make any guarantees that the court would grant mercy.

       On April 12, 2012, the circuit court entered its order denying petitioner’s petition for writ
of habeas corpus. In reaching its decision, the circuit court reviewed the transcripts from the
2008 arraignment; a motions hearing on March 19, 2009; the plea hearing on March 28, 2009;
and the sentencing hearing on July 2, 2009. The court also heard testimony from witnesses and
argument from counsel during a March 9, 2012, hearing.

        Petitioner argues that the circuit court improperly denied his petition for writ of habeas
corpus on the ground that his plea was not voluntarily made. He contends that his counsel
advised him to plead guilty to first degree murder with the use of a firearm so the judge would
sentence him to life with mercy, meaning he would be eligible for parole in fifteen years.
However, he was sentenced to life without mercy. As set forth above, during the plea hearing,
the circuit court inquired of petitioner whether he understood that the court had the option
whether to grant mercy, and he responded that he understood.

       1
        The record indicates that the decision was made with the knowledge that petitioner had
been diagnosed with ADHD and intermittent explosive disorder prior to 2008.
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        Petitioner next contends that his counsel had a duty to investigate certain mental and
medical defenses and that the alleged failure to do so was in violation of his Sixth Amendment
right to the effective assistance of counsel. Petitioner’s final assignment of error is his contention
that his right to the effective assistance of counsel was violated because counsel failed to offer
mitigating evidence of Xanax and alcohol use being contributing factors at the time of the
offense. It is apparent from the record that petitioner’s counsel involved Dr. Miller in the defense
at an early point in this matter as part of the investigation into petitioner’s mental and medical
defense. However, petitioner made the strategic decision to enter into a plea agreement in an
effort to try to obtain a sentence of mercy. The record also evidences the fact that counsel,
through Dr. Miller, introduced petitioner’s contention that he was under the influence of both
Xanax and alcohol at the time of the crime as mitigating evidence.

        Having reviewed the circuit court’s well-reasoned “Order Denying Petition for Writ of
Habeas Corpus” entered on April 12, 2012, we hereby adopt and incorporate the circuit court’s
well-reasoned findings and conclusions as to the assignments of error raised in this appeal. The
Clerk is directed to attach a copy of the circuit court’s order to this memorandum decision.

       For the foregoing reasons, we affirm.

                                                                                           Affirmed.

ISSUED: June 7, 2013

CONCURRED IN BY:

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




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