The opinion
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Royce Dean Burdette,
Petitioner Below, Petitioner FILED
December 7, 2020
vs.) No. 19-0526 (Greenbrier County 01-C-94) released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
Donnie Ames, Superintendent, OF WEST VIRGINIA
Mt. Olive Correctional Complex,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner Royce Dean Burdette, by counsel Matthew Brummond, appeals the Circuit Court
of Greenbrier County’s May 6, 2019, order denying his petition for a writ of habeas corpus.
Respondent Donnie Ames, Superintendent, Mt. Olive Correctional Complex, by counsel Andrea
Nease-Proper, filed a response to which petitioner submitted a reply.
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.
On October 5, 1997, the Greenbrier County Sheriff’s Department was asked to perform a
health and welfare check on Robin Christy Bradley after her parents and son had been unable to
reach her for several days. The sheriff’s department was unable to locate her, and she was
determined to be a missing person. Prior to her disappearance, Ms. Bradley and petitioner were
living together in an apartment in McRoss, Greenbrier County. According to the circuit court, there
was ample evidence that petitioner and Ms. Bradley were experiencing strain in their relationship
and that she planned to kick petitioner out of the apartment, including asking the landlord to change
the locks. The circuit court also found that evidence was presented that Ms. Bradley intended to
testify against petitioner on a felony charge then-pending against him. On October 18, 1997, Ms.
Bradley’s body was found in the trunk of a junked car near the apartment the couple shared. 1
1
Petitioner was later convicted of four separate robberies in Raleigh and Summers Counties
that occurred between October 5 and October 19, 1997, which established his whereabouts for part
of the time that Ms. Bradley was believed to be missing.
1
On October 19, 1997, petitioner was a passenger in a vehicle driven by Jason Hurd when
they were involved in a traffic stop. During that stop, petitioner used a knife to threaten Mr. Hurd
before eventually stabbing himself with that knife. He was transported to the hospital for treatment.
While hospitalized, law enforcement officers questioned him about Ms. Bradley. According to
trial testimony from those officers, petitioner stated during that interview that he stabbed himself
because he had seen on the news that Ms. Bradley was dead and he claimed that he could not live
without her. However, according to the circuit court, the evidence established that no news
broadcast had reported the discovery of Ms. Bradley’s body prior to petitioner’s hospitalization.
On June 2, 1998, petitioner was indicted for Ms. Bradley’s murder, and on February 2,
1999, the grand jury returned a superseding indictment for that murder. On March 30, 1999,
petitioner’s criminal trial began, but a mistrial was declared on that same date. The matter again
proceeded to trial on May 11, 1999, and after a half-day trial, petitioner was found guilty of murder.
According to the circuit court, the jury did not recommend mercy and petitioner was sentenced to
life imprisonment without the possibility of parole. Petitioner appealed his conviction to this Court,
but that appeal was refused.
Petitioner filed his first petition for a writ of habeas corpus on May 15, 2001, as a self-
represented litigant. After the appointment of counsel, petitioner filed an amended petition for a
writ of habeas corpus on July 19, 2007. Counsel was later substituted, and a second amended
petition was filed on November 19, 2013. On May 6, 2015, the circuit court held an evidentiary
hearing, and on June 30, 2016, petitioner filed an amended brief in support of the second amended
petition. Respondent submitted a response and petitioner a reply. Another hearing was held on
August 15, 2017, during which petitioner submitted his Losh list. In its resulting order, the circuit
court found that petitioner preserved numerous grounds for relief. In its fifty-six page order, the
circuit court addressed each of those contentions. However, a claim of ineffective assistance of
counsel related to the failure to seek a bifurcated trial is the only ground relevant to petitioner’s
sole assignment of error before this Court.
In addressing counsel’s failure to seek a bifurcated trial, the habeas court noted that
petitioner testified during his omnibus hearing that he was never advised of the possibility of
bifurcating his trial to separate the guilt and penalty phases. He also testified that if he had known
that bifurcation was an option, he would have requested bifurcation in order to call witnesses to
testify as to his good character during the sentencing portion. Petitioner’s trial counsel testified
that he did not have any specific recollection of discussions with petitioner prior to trial regarding
possible bifurcation. The habeas court found that while trial counsel testified in his deposition (on
August 3, 2011) that it was his standard practice to discuss the possibility of bifurcation with his
clients, neither he nor his co-counsel specifically contradicted petitioner’s claim that petitioner had
never been advised of the possibility of bifurcation. The circuit court discussed the fact that the
decision of whether to seek bifurcation involves substantial considerations of trial strategy and
tactics “as a party can have much to gain and much to lose as a result of bifurcation.” Without
citing law, the circuit court found that trial counsel “should consult with his or her client relative
to the possibility of requesting bifurcation, when that client is facing a charge of murder in the first
degree.” It went on to find, however, that the mere fact that trial counsel fails to discuss a possible
request for bifurcation with a client does not in itself entitle that client to habeas corpus relief,
where the decision not to seek bifurcation represents a reasonable strategic choice. See, e.g. State
2
ex rel. Kitchen v. Painter, 226 W. Va. 278, 290 n.11, 700 S.E.2d 489, 501 n.11 (2010).
The circuit court found that
[i]n describing character evidence that he would have offered in the mercy phase
of the trial, had the trial been bifurcated, [p]etitioner did not identify any compelling
evidence that would have likely changed the outcome of this case. Instead, he spoke
of persons who might testify generally of his good character or that he was a good
worker and employee. [] If [p]etitioner’s criminal trial had been bifurcated, he could
have presented character witnesses at the mercy phase, without risking the State’s
presentation of evidence of his bad character during the guilt phase of the trial.
However, if the trial had been bifurcated, the State would have been free to
introduce evidence of [p]etitioner’s extensive criminal history, including details of
the crime spree in which he engaged shortly before his arrest for Ms. Bradley’s
murder. That evidence would almost certainly have outweighed any favorable
character evidence that has been identified by [p]etitioner and that could have been
presented by the defense at trial. On balance, then, it is highly unlikely that the
character evidence described by [p]etitioner in his testimony would have persuaded
the jury to recommend mercy, particularly if the jury was also presented with
evidence relative to the full scope of [p]etitioner’s criminal history, including his
conviction for four separate counts of aggravated robbery, which were committed
only days before his arrest for Ms. Bradley’s murder. [] Although trial counsel
should have consulted with [p]etitioner regarding a possible request for bifurcation,
counsel’s decision not to seek bifurcation was based on strategic considerations,
and [p]etitioner has failed to demonstrate that no reasonably qualified defense
attorney would have failed to request bifurcation under the circumstances of
[p]etitioner’s case. [] Petitioner has failed to establish that the result in his criminal
case would have been different, had his counsel requested a bifurcated trial.
The circuit court concluded that petitioner’s claim failed both prongs of the Strickland 2 test and is,
therefore, without merit. It further found that petitioner was not entitled to relief as to any of the
grounds he waived. The circuit court determined that petitioner is not entitled to relief and denied
petitioner’s second amended petition for writ of habeas corpus. Petitioner appeals that May 6,
2019, order denying habeas corpus relief.
As we have held,
[i]n 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).
2
Strickland v. Washington, 466 U.S. 668 (1984).
3
On appeal, petitioner sets forth a single assignment of error: Sixth Amendment Counsel
Clause errors are structural if the lawyer overrules the client’s decision concerning the objectives
of representation, but the Strickland standard for ineffective assistance governs counsel’s tactical
decisions to achieve those objectives. The habeas court below found that trial counsel chose not to
present a mitigation case through a bifurcated trial without discussing the decision with petitioner.
In support of his argument, petitioner asserts that the defendant exercises sole discretion over
decisions that affect his or her personal goals of representation, whereas counsel, as a matter of
trial management, may decide the means to achieve those ends for the client.
Petitioner relies heavily upon McCoy v. Louisiana, 138 S.Ct. 1500 (2018), a case decided
approximately nineteen years after petitioner’s conviction. He asserts that in McCoy, trial counsel
overrode the defendant’s decision to seek an acquittal for murder to argue a lesser degree as
mitigation. The Louisiana Supreme Court affirmed McCoy’s conviction because the decision
concerned trial management and was a reasonable strategy. However, the United States Supreme
Court concluded that whether to seek acquittal or mitigation is not within counsel’s discretion. Id.
at 1505-1507. The Supreme Court found that the so-called strategy was error and violated the
defendant’s right to counsel, rather than effective assistance of counsel. He contends that his case
presents the same essential issue as McCoy because in both the decision was whether to pursue
outright acquittal or seek mitigation. While in McCoy counsel overrode the defendant’s decision
and presented a mitigation defense, here petitioner’s trial counsel made the decision to forego a
mitigation defense in a separate penalty phase. He further asserts that whether to use a separate
proceeding to call friends and family as character witnesses, experts to testify about the details of
one’s psyche, and to plead mercy is a highly personal decision. However, a defendant cannot make
the decision unless counsel communicates the option.
Without citing authority, petitioner argues that the impact that bifurcation has on the trial
is “inherently unknowable and immeasurable.” Petitioner contends that no legal standards govern
a jury’s mercy decision in the first place so there are no legal standards to measure it after the fact.
He asserts that as this Court found in LaRock, 3 evidence that may be admissible in the mercy phase
may not be admissible in a unitary trial. Petitioner argues that the decision to request bifurcation
fundamentally changes the structure of the trial itself rather than affecting the fairness of
proceedings within that structure. Thus, petitioner contends that his counsels’ unilateral decision
on the issue, without discussing it with petitioner, was a structural error.
In Lind v. Ames, No. 18-0701, 2019 WL 6048907, at *6-7 (W. Va. Nov. 15, 2019)
(memorandum decision), this Court addressed McCoy, as follows:
In McCoy, the Supreme Court held that “a defendant has the right to insist that
counsel refrain from admitting guilt, even when counsel's experienced-based view
is that confessing guilt offers the defendant the best chance to avoid the death
penalty.” 138 S.Ct. at 1505. . . . While the record reflects that trial counsel’s strategy
was to focus the defense on the charges of first-degree murder and first-degree
robbery given their severity, petitioner points to nothing to establish that his trial
attorney conceded, over his objection, that he committed forgery of a credit card at
3
State v. LaRock, 196 W. Va. 294, 470 S.E.2d 613 (1996).
4
the fast food restaurant. Therefore, based on our review of the record, we reject
petitioner’s argument that the Supreme Court’s decision in McCoy represents a
change in the law that is favorable to him.
Lind at *6-7.
While this is not an appeal of the denial of a motion for bifurcation, those standards are
relevant to this Court’s consideration of petitioner’s single assignment of error. As we recently
found,
“[a] trial court has discretionary authority to bifurcate a trial and sentencing in any
case where a jury is required to make a finding as to mercy.” LaRock, 196 W.Va.
at 299, 47S.E.2d at 618, syl. pt. 4. The LaRock Court outlined factors for a trial
court to consider when ruling on a motion to bifurcate:
Although it virtually is impossible to outline all factors that should
be considered by the trial court, the court should consider when a
motion for bifurcation is made: (a) whether limiting instructions to
the jury would be effective; (b) whether a party desires to introduce
evidence solely for sentencing purposes but not on the merits; (c)
whether evidence would be admissible on sentencing but would not
be admissible on the merits or vice versa; (d) whether either party
can demonstrate unfair prejudice or disadvantage by bifurcation; (e)
whether a unitary trial would cause the parties to forego introducing
relevant evidence for sentencing purposes; and (f) whether
bifurcation unreasonably would lengthen the trial.
Id., syl. pt. 6. The burden of convincing the circuit court to bifurcate the trial rested
with the petitioner: “The burden of persuasion is placed upon the shoulders of the
party moving for bifurcation. A trial judge may insist on an explanation from the
moving party as to why bifurcation is needed.” Id., syl. pt. 5, in part.
State v. Farley, 238 W. Va. 596, 614, 797 S.E.2d 573, 592 (2017).
As the circuit court pointed out, if petitioner had chosen to bifurcate his trial, the State
could have introduced evidence of petitioner’s criminal history and evidence of his “bad
character.” This Court previously set forth the following:
The type of evidence that is admissible in the mercy phase of a bifurcated
first[-]degree murder proceeding is much broader than the evidence admissible for
purposes of determining a defendant’s guilt or innocence. Admissible
evidence necessarily encompasses evidence of the defendant’s character, including
evidence concerning the defendant’s past, present and future, as well as evidence
surrounding the nature of the crime committed by the defendant that warranted a
jury finding the defendant guilty of first[-]degree murder, so long as
that evidence is found by the trial court to be relevant under Rule 401 of the West
5
Virginia Rules of Evidence and not unduly prejudicial pursuant to Rule 403 of the
West Virginia Rules of Evidence.
Syl. Pt. 7, State v. McLaughlin, 226 W.Va. 229, 700 S.E.2d 289 (2010). In its order, the circuit
court found that “[i]n describing character evidence that he would have offered in the mercy phase
of the trial, had the trial been bifurcated, [p]etitioner did not identify any compelling evidence that
would have likely changed the outcome of this case.” It does not appear that petitioner contests
that finding. While this Court agrees that it would have been preferable for petitioner’s counsel
below to fully inform petitioner of the option to request bifurcation of his trial, under the specific
facts of this case, we find that the circuit court did not err in denying petitioner’s petition for writ
of habeas corpus.
Affirmed.
ISSUED: December 7, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
DISSENTING:
Justice Margaret L. Workman
Justice John A. Hutchison
Justices Workman and Hutchison would set for oral argument in accordance with Rule 20 of the
West Virginia Rules of Appellate Procedure.
6