                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS

Timothy O’Dell,
                                                                   FILED
Petitioner Below, Petitioner                                                    June 3, 2016

                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
vs) No. 15-0442 (Berkeley County 14-C-225)                                       OF WEST VIRGINIA


Marvin Plumley, Warden,
Huttonsville Correctional Center,
Respondent Below, Respondent


                               MEMORANDUM DECISION
       Petitioner Timothy O’Dell, pro se, appeals the April 15, 2015, order of the Circuit Court of
Berkeley County denying his petition for writ of habeas corpus. Respondent Marvin Plumley,
Warden, Huttonsville Correctional Center, by counsel Christopher C. Quasebarth, filed a response,
and petitioner filed a reply.

        The 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.

        In 2006, petitioner was indicted for the felony offenses of first-degree murder and
conspiracy to commit murder with regard to the death of Debbie Bivens. The State’s theory of the
case was that Benny Brookman, a former paramour of Ms. Bivens, hired petitioner to kill her.
Petitioner’s defense was that Mr. Brookman hired petitioner to drive an unknown person to Ms.
Bivens’ house, but that petitioner did not know that the unknown person had been engaged to kill
Ms. Bivens. Shortly after the murder, it appears that Mr. Brookman may have committed suicide
leaving a note.

       At petitioner’s trial, Mr. Brookman’s suicide note, which identified petitioner as the
shooter, was admitted into evidence as a dying declaration pursuant to Rule 804(b)(2) of the West
Virginia Rules of Evidence. Mr. Brookman’s suicide note was, as follows:

       yea I was going to pay Timmy Odell to kill Debbie for 50.00 Gave him $8,000 still
       owed him $42,000 he called me wed August 24, 2005 said Job was Done I was not
       Going to let anybody take $75,000 from me and that is what she Did. Give all my
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       stuff to andy klesh Timmy Odell also vandalized Her cars 2 years ago for $2000
       Give all my money + belongings to andy klesh. He is the best friend I ever Had.
       Any if you would burn me + put ashes in Bay. I know this is all crazy. I have always
       tryed to be a fair person But when you work hard and Save your money for you
       Goals in life, and the meet someone you thought you trust to take your money
       $75000. I would have never Done this that Just Goes to show you what Greed does
       Sure I could have said oh well that is the way it Goes, but no I would never Done
       anybody that way. I worked hard for the money she took and could have build a
       bigger house. I have never been with a more Evil person in life. I sit here now and
       have bu for 3½ year to let it go. But it got the worst of me. Don't anybody fight over
       my stuff Just Give it to andy. Andy you take it spend it have fun. If I find out that
       you Did not do that I will whip you ass, andy you have been one best friend. I did
       not Really want to leave this way But I no Down inside I could not Survive behind
       bars. It is very har to Do this but I not it is best. I have never been in Such a quiet
       place like this. I was going to take boat Ride but no time, I Rush to find this spot
       because I Did not no if the cops were going to come to the house. Once I got her I
       relaxd to say good-bye to everyone. Even thought I left at 47, I still enjoyed life till
       this point, and I really have Done a lot of thing that I may never Done. I really had it
       all great family health, friends, how could I let it go. It is no fun socielizesyo threw
       bars. I Guess after this ordeal, what I have Done I probally will not Go to heven if
       one oh well I always like Raiseig alittill Bite of Hell. I am Getting [expletive]-up
       thought maybe would change mind. But I must move one. I can't Rememebor the
       last time I Enjoyed nature like thiss Just REmembor it is nothing that you all did. I
       was going to take Debbie out myself but, I figured It would be a taks so I new tim
       would take care of it, But he [expletive] up to. thanks tim. Believe me tim odell is
       just as much of falt as I am. His and my game plan Did not work so Don't feel sorry
       for the Dom-ass, and I don’t wont you to feel sorry for me. I was a discussion I
       made that to me was good. Because there is a lot of thing you can passed me. But
       don't mess with my felling + money I worked hard for. I Love all of you + am sorry
       it all turned out this way But Just always Remembr the Good time we Spent
       together Love all of ya Bye Bye Just of Andy you Bean Jop Bitch. I will admit I
       [expletive]-up. I did make-up the game Plan. Tim is the on who [expletive] iit up,
       Look at it this way I will miss you all. My favortea Song was. Elvis Suspesus mind
       may wiser I love you and I wish thing could have move on.

 (Errors and emphasis in original.)

        A pretrial statement made by petitioner to the police was also admitted into evidence. The
circuit court gave the jury the standard instruction regarding the State’s obligation to prove by a
preponderance of the evidence that petitioner’s statement was voluntarily made. The jury
subsequently found petitioner guilty of both counts of the indictment. Consistent with the jury’s
verdict, the circuit court sentenced petitioner to a life term of incarceration with the possibility of
parole for the murder conviction and five years of incarceration for the conspiracy conviction, with
the sentences running consecutively. Petitioner was resentenced for purposes of appeal in 2008,
but his direct appeal was refused in 2009.
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         Petitioner had his omnibus habeas corpus proceeding in O’Dell v. Ballard, No. 13-0220,
2013 WL 6152368 (W.Va. Nov. 22, 2013) (memorandum decision).1 In that case, petitioner was
appointed counsel who filed an amended habeas petition. In the amended petition, counsel
incorporated by reference a second amended petition that petitioner prepared pro se. Finally,
counsel also filed exhibits and a Losh checklist.2 In its January 30, 2013, order denying habeas
relief, the circuit court addressed both amended petitions and specifically found that “[p]etitioner’s
claims fail[ed] to show any constitutional error or any need for an evidentiary hearing.”3

        Following this Court’s affirmation of the denial of relief in O’Dell, petitioner filed a
subsequent habeas petition and was again appointed counsel. In the amended petition, petitioner
asserted that counsel in the habeas proceeding in O’Dell was ineffective for a failure to argue (1)
that the “presumed suicide note” found near Mr. Brookman’s body did not constitute a dying
declaration because petitioner’s co-conspirator’s death was not a suicide; and (2) that the answers
given by the circuit court to the jury’s questions during its deliberations diluted its clear instruction
that the State had to prove that petitioner’s statement was voluntarily made without threat,
coercion, promise, or reward.4 Following a response to the amended petition by respondent, the
circuit court denied habeas relief in an order entered April 15, 2015.

       As petitioner alleges that habeas counsel was ineffective for failing to argue certain issues
in O’Dell, we find that the circuit court’s January 30, 2013, order denying that petition contains
findings relevant to this appeal. In that order, the circuit court first determined that Maryland

        1
            We take judicial notice of the record in O’Dell.
        2
            See Losh v. McKenzie, 166 W.Va. 762, 768-70, 277 S.E.2d 606, 611-12 (1981).
        3
         In O’Dell, we affirmed this finding of the circuit court and determined that an evidentiary
hearing was not required for a proper adjudication of petitioner’s claim of ineffective assistance of
trial counsel. See 2013 WL 6152368, at *5-6.
        4
         Petitioner also asserted that counsel in O’Dell was ineffective by not preparing an
adequate appendix to support the issues which were raised in that appeal. Those issues were, as
follows: (1) that Mr. Brookman’s suicide note was admitted at trial in violation of the
Confrontation Clause of the United States and West Virginia Constitutions; (2) that the circuit
court failed to conduct a suppression hearing prior to admitting his pretrial statement; (3) that the
circuit court improperly denied his motion to conduct discovery in O’Dell on his claim that his
statement was coerced; and (4) that trial counsel was ineffective. In the instant appeal, petitioner
does not abandon his assertion that counsel in O’Dell prepared an inadequate appendix, but
concedes that those issues were “obviously weak claims.” Based on our review of the record in the
present appeal, including the transcript of petitioner’s pretrial statement, we accept petitioner’s
concession and conclude that even if the appendix in O’Dell did not have the gaps we noted
therein, we still would not have found any merit to the issues raised in that appeal.


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Detective Patrick Thompson’s brief testimony about a medical examiner’s finding that petitioner’s
co-conspirator’s death5 was a suicide was harmless—even if error under Crawford v. Washington,
541 U.S. 36 (2004)6—because a description of the scene of Mr. Brookman’s death provided by
Detective Thompson “overwhelmingly pointed to a suicide,” which was the police determination.7
See O’Dell, 2013 WL 6152368, at *1. The circuit court then determined that Mr. Brookman’s
suicide note was admissible because it was non-testimonial in nature under Crawford as well as a
dying declaration pursuant to Rule 804(b)(2) of the Rules of Evidence. The circuit court explained
that “a suicide note can conceivably be written for a variety of purposes, but mostly to make a final
statement; to let others know what was going on and why.” In O’Dell, we affirmed these rulings of
the circuit court. 2013 WL 6152368, at *1-3 and n.4.

        Second, the circuit court determined that petitioner’s pretrial statement to the police was
admissible for the jury’s consideration and that the jury was properly instructed about statements
made under coercion. The circuit court noted that, as pointed out by petitioner, during its
deliberations, the jury asked the court questions concerning the statement, but explained that
“[t]hese questions were reflective of deliberation on whether portions of the statement were the
product of tough police questioning or coercion.” The circuit court concluded that “nothing in the
record reflect[s] that the jury actually found that any part of [petitioner’s] statement was
involuntary.” On appeal in O’Dell, petitioner’s habeas counsel raised the issue of whether the jury
was properly instructed about statements made under coercion, noting that the jury asked
“multiple questions” during its deliberations. We rejected petitioner’s argument that the jury’s
questions “evidence[d] the jury’s belief that petitioner was subjected to coercion” because it was
given “[the] standard instruction regarding the State’s obligation to prove by a preponderance of
the evidence that petitioner’s statement was voluntarily made, and because that instruction utilized
the phrase, ‘without threat, coercion, promise[,] or reward.’” 2013 WL 6152368, at *4 n.6. 8
Petitioner now appeals the circuit court’s April 15, 2015, order denying his habeas petition in
which he alleged that counsel in O’Dell was ineffective.

       5
           Mr. Brookman’s body was discovered in the State of Maryland.
       6
         Consistent with the Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36
(2004), we subsequently held that “the Confrontation Clause contained within the Sixth
Amendment to the United States Constitution and Section 14 of Article III of the West Virginia
Constitution bars the admission of a testimonial statement by a witness who does not appear at
trial, unless the witness is unavailable to testify and the accused had a prior opportunity to
cross-examine the witness.” Syl. Pt. 6, State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006).
       7
         The overwhelming weight of evidence indicating that Mr. Brookman’s death was a
suicide may explain the circuit court’s additional finding that “[p]etitioner made no objection to
this issue at trial.”
       8
         We made this ruling in connection with our determination that petitioner’s second and
third assignments of error in O’Dell lacked merit. Id. at *4-5.


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       We apply the following standard of review in habeas appeals:

               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). Following an omnibus
habeas corpus proceeding, the doctrine of res judicata bars subsequent petitions with certain
exceptions, chiefly, ineffective assistance of counsel in the omnibus proceeding. Syl. Pt. 4, Losh v.
McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981). In West Virginia, claims of ineffective
assistance of counsel are governed by the two-pronged test established in Strickland v.
Washington, 466 U.S. 668 (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).

        On appeal, petitioner makes the same two claims asserted in his amended habeas petition:
that habeas counsel in O’Dell was ineffective by not arguing (1) that the “presumed suicide note”
found near Mr. Brookman’s body did not constitute a dying declaration because petitioner’s
co-conspirator’s death was not a suicide; and (2) that the answers given by the circuit court to the
jury’s questions during its deliberations diluted its clear instruction that the State had to prove that
petitioner’s statement was voluntarily made without threat, coercion, promise, or reward. We
address these contentions in turn.

        First, we find that petitioner disagreed with both trial counsel9 and habeas counsel in
O’Dell regarding the merit of his argument that Mr. Brookman’s death was not a suicide.
Petitioner asserts that such an argument constituted a way of showing that the “presumed suicide
note” found near his co-conspirator’s body was not admissible as a dying declaration pursuant to
Rule 804(b)(2). Petitioner points out that there was no finding by a medical examiner admitted into
evidence—or, not one properly admitted—classifying the death as suicide. Respondent counters
that no such finding needed to be admitted because Detective Thompson’s description of the scene
at which Mr. Brookman’s body was found provided a sufficient evidentiary basis on which to find
that Mr. Brookman committed suicide. We agree with respondent. The circuit court found that
Detective Thompson’s description of the scene “overwhelmingly pointed to a suicide.” We note
that while this finding could have been challenged on appeal in O’Dell, we would have reviewed it
only for clear error. See Syl. Pt. 1, Mathena, 219 W.Va. at 418, 633 S.E.2d at 772. Thus, we
determine that habeas counsel made a strategic decision not to contest the fact that petitioner’s
co-conspirator’s death was a suicide on appeal.10 Moreover, we find counsel’s strategic decision

       9
           See fn. 7, supra.
       10
        See Syl. Pt. 6, Miller, in part, 194 W.Va. at 6-7, 459 S.E.2d at 117-18 (“In reviewing
(Continued . . .)
                                                   5
to be a sound one because Mr. Brookman’s note also contained evidence that his death was a
suicide. In O’Dell, we found that “the bulk of [petitioner’s co-conspirator’s] note is characterized
by remorse and explanation for his choice of suicide, as well as his affection and intended
testamentary bequest for a friend.” 2013 WL 6152368, at *3. (Emphasis added.) Therefore, we
conclude that counsel’s decision in O’Dell not to assert that Mr. Brookman’s death was something
other than a suicide did not constitute ineffective assistance.

        Second, in alleging that counsel in O’Dell did not argue that the circuit court incorrectly
answered the jury’s questions during its deliberations, petitioner points to our mention of only two
of those questions. 2013 WL 6152368, at *4 n.6. However, upon our review of counsel’s brief in
O’Dell, we find that counsel refers to “multiple questions” asked by the jury during its
deliberations, quotes two of those questions,11 and cites to the trial transcript. Furthermore, the
appendix in O’Dell contains all of the pages of the trial transcript relevant to this issue. Thus, we
find that counsel adequately informed us that the circuit court gave answers to multiple jury
questions. Therefore, we find that counsel’s performance in raising this issue was not deficient and
petitioner’s dissatisfaction with our rejection of it was not a legitimate ground for alleging
ineffective assistance. Accordingly, we conclude that the circuit court did not abuse its discretion
in denying petitioner’s habeas petition.

        For the foregoing reasons, we affirm the circuit court’s April 15, 2015, order denying
petitioner’s petition for writ of habeas corpus.

                                                                                          Affirmed.



ISSUED: June 3, 2016




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.”). (Emphasis added.)
       11
          The two jury questions quoted were, as follows: “. . . [W]hen [petitioner] signed an
agreement to the free and voluntary statement prior to the actual interrogation, at which point does
the coercion invalidate the statement?”; and “At the point at which the perceived coercion occurs
does it invalidate the remaining series of statements as related to the initial coerced statement?”


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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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