Gary Lee Rollins v. Donnie Ames, Superintendent, Mount Olive Correctional Complex

FILED

June 10, 2022

released at 3:00 p.m.

STATE OF WEST VIRGINIA EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

SUPREME COURT OF APPEALS OF WEST VIRGINIA

Gary Lee Rollins,

Petitioner

vs.) No. 20-0149 (Nicholas County 15-C-29)

Donnie Ames, Superintendent,

Mount Olive Correctional Complex,

Respondent

MEMORANDUM DECISION

Petitioner Gary Lee Rollins (“Petitioner”), by counsel Kevin W. Hughart,

appeals the January 21, 2020, order of the Circuit Court of Nicholas County denying his

petition for a writ of habeas corpus. Respondent Donnie Ames, Superintendent, Mount

Olive Correctional Complex, by counsel Patrick Morrisey and Michael R. Williams, filed

a response in support of the circuit court’s order.

The Court has considered the parties’ briefs, oral arguments, and the record

on appeal. Upon review, 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.

Petitioner was convicted of first-degree murder without a recommendation

of mercy following a jury trial in 2012. This Court affirmed his conviction in State v.

Rollins, 233 W. Va. 715, 760 S.E.2d 529 (2014). The decedent was Petitioner’s wife,

Teresa Rollins (“Ms. Rollins”). She died while pinned underwater by a fallen tree in a

pond on the family’s farm. An employee who worked on the farm, April Bailes (“Ms.

Bailes”), 1 called 911 to report the death. At the time of Ms. Rollins’s death, Ms. Bailes

and Petitioner had been engaging in an affair for approximately one year. The death was

initially determined to be an accidental drowning. As noted by the Court in Rollins, the

investigation was reopened:

According to [Petitioner], Ms. Rollins’s family

contacted then Governor Joe Manchin about the investigation,

1

April Bailes has also been identified as “April O’Brien” and “April O’Brien-

Bailes.” For ease of the reader, we refer to her as “Ms. Bailes.”

1

indicating their belief that Ms. Rollins’s death was the result of

murder, not accident. The record indicates that former

Governor Manchin then called the head of the West Virginia

State Police and instructed the State Police to conduct an

investigation. Upon completing their investigation, the State

Police concluded that Ms. Rollins’s death was not an accident.

Id. at 724, 760 S.E.2d at 538.

The conclusion that Ms. Rollins’s death was not an accident was based on

three primary factors. First, the investigation revealed that Petitioner took out multiple life

insurance policies on Ms. Rollins within two months prior to her death. Second, the State

Police found Ms. Bailes’s 911 call reporting Ms. Rollins’s death to be “highly suspicious.”

This Court described the nature of this “highly suspicious” phone call in Rollins:

According to the statements of all witnesses present at the

Rollinses’ farm, upon discovering Ms. Rollins’s body, Mr.

Rollins ran up the hill shouting for someone to call an

ambulance. At that time, Mr. Rollins did not explain why they

should call an ambulance. Ms. Bailes made the 911 call after

retrieving her phone from her vehicle. The point from which

she made the call was approximately eighty-five yards from

where Ms. Rollins lay in the pond, yet she told the 911 operator

that Ms. Rollins was trapped under a tree in the pond and that

Ms. Rollins was not breathing. The State Police theorized that

because Ms. Bailes could not see the scene at the pond with the

detail she described to the 911 operator, she must have known

that Ms. Rollins was dead in the pond prior to placing the call.

Id. at 725, 760 S.E.2d at 539.

Finally, the State Police found that Petitioner’s description of what he did

upon seeing his wife trapped in the pond did not match the testimony of other witnesses on

the scene. Specifically, Petitioner claimed that he jumped into the pond in an attempt to

save Ms. Rollins. However, witnesses on the farm stated that Petitioner was “either

completely dry or wet only up to his knees shortly after Ms. Rollins’s body was removed

from the pond.” Id.

Following this investigation, Petitioner was indicted for the murder of Ms.

Rollins. Ms. Bailes was charged by complaint as an accessory to this murder based on the

belief that she knew Ms. Rollins was dead prior to calling 911. Ms. Bailes denied any

knowledge of foul play during the time between Ms. Rollins’s death and the time Petitioner

was charged. However, after Ms. Bailes was arrested and charged as an accessory, she told

2

the police that Petitioner took her aside on the morning of Ms. Rollins’s death and admitted

that he killed her.

The State’s evidence at trial consisted of 1) Ms. Bailes’s testimony that

Petitioner had confessed to her that he killed his wife; 2) testimony regarding the life

insurance policies; 3) testimony of witnesses at the farm on the day Ms. Rollins died; 4)

testimony from three medical expert witnesses who all stated that they did not believe the

injuries to Ms. Rollins’s body were extensive enough to have been caused by a falling tree;

and 5) testimony of a friend of Ms. Rollins who claimed that Petitioner had physically

abused Ms. Rollins in the months prior to her death. During the trial, Ms. Bailes testified

and denied that she had been promised anything in exchange for her testimony.

Petitioner’s defense was that Ms. Rollins’s death was an accident. Further,

Petitioner argued that the case was reopened based on the former governor’s request and

influence. Petitioner called an expert, Dr. Cohen, who testified that he believed a falling

tree could have caused Ms. Rollins’s death. 2 During closing arguments, counsel for

Petitioner argued that Ms. Bailes’s testimony was not credible:

She’s joined their team. She’s gotten on the—the governor’s

freight train express. We’re all going to railroad Gary Rollins,

so now what does she get out of it. She’s not in jail. She’s not

been indicted. You heard that she was arrested. She was taken

before a magistrate, but she’s not been indicted. You can’t get

convicted if you’re not indicted.

Who hands out the indictments? That man right there.

(Indicated.) P.K. Milam [the prosecutor]. Is he going to indict

his star witness, do you think? Is that what’s really going to

2

In Rollins, this Court summarized the expert medical testimony presented by the

State and the defense as follows:

All four of the medical expert witnesses at trial—the State’s

three witnesses and the defense’s one witness—agreed that Ms.

Rollins’s body did not present with any large hemorrhages or

broken bones. They also agreed that based on her wounds, the

tree could not have knocked her unconscious and that she was

conscious when she was submerged in the water. The

witnesses disagreed primarily on the amount of bruising on

Ms. Rollins’s back and in their ultimate conclusions.

Id. at 726, 760 S.E.2d at 540.

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happen here? After all is said and done, he gets his conviction

thanks to her lie, he’s going to repay that by indicting her? Do

you think they thought that?

In the State’s rebuttal argument, the prosecutor, Mr. Milam (“Prosecutor

Milam”), asserted that there was no agreement with Ms. Bailes and that he was planning

on indicting her for being an accessory to the murder:

[W]e interviewed her again and again and again and gave her

every opportunity in the world to help herself, and she didn’t,

and she got arrested for it, and she’s charged with accessory

after the fact. Now, he wants you to believe that she’s getting

some kind of consideration out of that. You can bet your behind

that I’m going to indict her next month.

The jury found Petitioner guilty of first-degree murder without a

recommendation of mercy. The trial court sentenced Petitioner to life without the

possibility of parole. Following his conviction, Petitioner filed a direct appeal with this

Court, raising seven assignments of error. 3 This Court affirmed his conviction and

sentence in Rollins.

Petitioner, by counsel, filed an amended habeas petition on November 7,

2017. Relevant to the instant matter, Petitioner asserted that he was prejudiced when

Prosecutor Milam failed to disclose that the State had reached a plea agreement with Ms.

Bailes. Further, Petitioner argued that Prosecutor Milam erroneously told the jury that he

intended to indict Ms. Bailes. Next, Petitioner argued that he was “materially prejudiced”

because one of the jurors was related to a witness for the State. Finally, Petitioner asserted

that his trial and appellate counsel were ineffective.

The circuit court (“habeas court”) held a two-day omnibus evidentiary

hearing in 2019. The main issue was whether a plea agreement between the State and Ms.

Bailes had been reached before she testified at Petitioner’s trial. Three witnesses offered

3

Petitioner argued that: 1) he was prejudiced by a remark made by the prosecutor

during closing arguments; 2) the circuit court erred by refusing to strike a juror during voir

dire; 3) the circuit court erred by failing to strike a biased juror upon discovering a previous

relationship between that juror and the prosecutor; 4) the circuit court erroneously

permitted the presentation of evidence of domestic violence; 5) the State’s presentation of

three medical expert witnesses was cumulative and prejudicial; 6) he was subjected to

unfair surprise when one of the State’s medical expert witnesses testified in a manner

inconsistent with his report; and 7) the cumulative effect of the alleged errors warranted

reversal.

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extensive testimony on this issue during the omnibus hearing: 1) Ms. Bailes, 2) Ms.

Bailes’s attorney, Cynthia Stanton (“Ms. Stanton”), and 3) Prosecutor Milam.

Ms. Bailes testified that she believed there was a plea agreement providing

that if she testified at Petitioner’s trial, she would not be charged. She could not remember

who made that promise to her. When asked if Prosecutor Milam agreed not to prosecute

her if she testified, she stated, “I don’t think so. I don’t remember how all that came about.”

However, Ms. Bailes acknowledged that she had given a deposition in which she testified

that it was Prosecutor Milam who promised not to prosecute her if she testified. Ms. Bailes

also testified that: 1) no one, including Prosecutor Milam, told her to keep the plea

agreement secret; 2) she never signed a plea agreement; and 3) her lawyer, Ms. Stanton,

did not go over the terms of a plea agreement with her.

Ms. Bailes conceded that during Petitioner’s trial, she testified that she had

not been promised anything in exchange for her testimony. She was then asked by

Petitioner’s counsel, “[a]s you sit here today [at the omnibus hearing], you were promised

that you would not be prosecuted in exchange for your testimony, is that correct?” She

replied, “Yes.” However, during cross examination, Ms. Bailes was asked whether she

testified truthfully during the trial and she replied, “Yes.” Additionally, Ms. Bailes and

counsel for the State had the following exchange:

Q. Ms. Bailes, in the three times you’ve testified under

oath in this matter – being the trial, your deposition, and now

here today, which time would your memory be better about all

these events?

A. At the trial.

Q. Back then?

A. [Nodding.]

Q. Did you tell the truth then?

A. Yes.

Prosecutor Milam testified that the State did not have an agreement with Ms.

Bailes. He stated that he had never granted immunity to someone in a murder case without

putting the agreement in writing. Further, Prosecutor Milam testified that he intended to

indict Ms. Bailes following Petitioner’s trial. However, after researching the potential

criminal charge against Ms. Bailes, he determined that an employee could not be

prosecuted as an accessory-after-the-fact for the criminal acts of her employer.

Ms. Stanton represented Ms. Bailes during Petitioner’s trial. She testified

that she negotiated a plea agreement with Prosecutor Milam at a preliminary hearing in

magistrate court in October of 2011. According to Ms. Stanton, this was an oral agreement

5

that was never reduced to writing. 4 Ms. Stanton described the terms of the plea agreement

as follows: “[t]hat, depending on the veracity of her [testimony], she would either have her

charges dismissed or she would plead to a misdemeanor with no jail time.”

Ms. Stanton admitted that she received a letter from Petitioner’s trial counsel

prior to the trial asking if Ms. Bailes and the State had reached a plea agreement. This

letter requested that Ms. Stanton respond in writing. Prosecutor Milam also received a

copy of this letter. Ms. Stanton did not reply to this letter. She explained that her failure

to reply to the letter was based on her disdain for Petitioner’s trial counsel. Ms. Stanton

was asked if Prosecutor Milam asked her not to disclose the plea agreement to Petitioner’s

trial counsel. She replied, “No, I made that decision.” Following the trial, Ms. Stanton

testified that she met with the circuit court judge and Prosecutor Milam and informed them

that she had an ethical duty to report Prosecutor Milam for an ethics violation based on his

statement at trial that he intended to prosecute Ms. Bailes, which was counter to the oral

plea agreement.

During cross-examination, Ms. Stanton agreed that the plea agreement could

have changed based on the quality of Ms. Bailes’s trial testimony: “Yeah, it [the plea

agreement] could have changed. . . . It could have changed. If she had not done well on

the stand, I believe it could have – she would have had to plea to a misdemeanor.”

Petitioner’s counsel asked Ms. Stanton if Prosecutor Milam “kept his agreement with you

and your client.” She replied, “[t]he charges were dismissed by [Circuit Court] Judge

Johnson, not by [Prosecutor] Milam.” Ms. Stanton explained that Judge Johnson dismissed

the charges “after three terms of inaction.” When asked if she knew that this was “going

to be the manner . . . in which the case was dealt with,” Ms. Stanton stated, “I suspected

that. After I went to the judge, I suspected that would be what would happen.” While

ultimately testifying that Prosecutor Milam “upheld his end of the bargain,” Ms. Stanton

stated that Prosecutor Milam “wasn’t the one that actually dismissed it, but, no, she was

not indicted, and that was the plea agreement, but Judge Johnson’s the one that actually

dismissed it.”

The habeas court entered a twenty-page order denying Petitioner’s habeas

petition on January 21, 2020. The court set forth a detailed discussion explaining its

conclusion, based on the totality of the evidence, that a plea agreement did not exist:

Based on the extensive questioning of April Bailes in the

omnibus hearing on various questions involving her recall of

4

Ms. Stanton testified that this was a common practice. She explained that a motion

was filed to waive the time limit of Ms. Bailes’s preliminary hearing and that the motion

included the notation “further investigation.” She stated that when such a motion would

include this notation (“further investigation”), it meant that there was either a plea

agreement or that plea negotiations were underway.

6

events, it appears the most accurate assessment is that what she

said at trial was fresh in her mind and was the most accurate

statement of events, compared to any later statements she made

to the contrary either in a deposition or in the omnibus hearing

itself.

....

[I]t is undisputed that the terms of any plea agreement in this

case were never reduced to writing. Ms. Stanton also testified

that her understanding was that either her client would not be

prosecuted, or she would be allowed to plead guilty to a

misdemeanor. The ambiguity of Ms. Stanton’s description of

the supposed plea agreement lends itself to the conclusion that

no agreement with clear, specific terms was in place.

....

This State’s Supreme Court of Appeals has stated regarding

oral plea agreements, “While we do not require that a plea

bargain agreement be written, although that is the far better

course, we do require substantial evidence that the bargain was,

in fact, a consummated agreement, and not merely a

discussion.” State v. Wayne, 162 W. Va. 41, 42-43, 245 S.E.2d

838, 840 (1978), overruled on other grounds, State v. Kopa,

173 W. Va. 43, 311 S.E.2d 412 (1983). . . . Ultimately, the

Court finds this to be the decisive factor in determining

whether there was a “secret” plea bargain of some kind struck

in this case.

....

[T]he prosecuting attorney has never acknowledged any

agreement, and the agreement alleged to have existed by

counsel for the defendant was not one with definiteness and

performance. Based on the totality of the evidence, the Court

FINDS that there was no plea agreement or immunity

agreement between the State and April Bailes when she

testified at the trial of the petitioner.

After entry of the habeas court’s order denying the habeas petition, Petitioner

filed the instant appeal.

This Court’s standard of review is as follows:

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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). With this standard

in mind, we proceed to examine the parties’ arguments.

Petitioner raises three main arguments: 1) the habeas court erred by finding

that there was no plea agreement between the State and Ms. Bailes; 2) the habeas court

erred by finding that he was not “materially prejudiced” because one of the jurors was

related to a witness for the State; and 3) he is “entitled to relief based upon the cumulative

error doctrine.” We consider each of these arguments in turn.

The crux of Petitioner’s first argument is that he was prejudiced in multiple

ways because of a secret plea agreement between the State and Ms. Bailes. By hiding this

plea agreement, Petitioner contends that 1) the State violated Brady v. Maryland, 373 U.S.

83 (1963); 2) Prosecutor Milam falsely told the jury that he intended to indict Ms. Bailes;

and 3) the State relied on Ms. Bailes’s perjured testimony that there was no plea agreement.

Petitioner’s assertions of prejudice are all premised on his contention that there was a secret

plea agreement between the State and Ms. Bailes. Thus, our threshold issue is determining

whether the habeas court erred by concluding that there was not a plea agreement.

The resolution of this issue turns on the habeas court’s factual findings. As

previously stated, we review the habeas court’s factual findings under a clearly erroneous

standard. See Syl. Pt. 1, Mathena, 219 W. Va. 417, 633 S.E.2d 771. We have observed

that “[a] finding is clearly erroneous when although there is evidence to support it, the

reviewing court on the entire evidence is left with the definite and firm conviction that a

mistake has been committed.” Board of Educ. v. Wirt, 192 W. Va. 568, 579 n. 14, 453

S.E.2d 402, 413 n. 14 (1994) (internal citation and quotation omitted). Similarly, this Court

has held that “[f]indings of fact made by a trial court in a post-conviction habeas corpus

proceeding will not be set aside or reversed on appeal by this Court unless such findings

are clearly wrong.” Syl. Pt. 2, in part, State ex rel. Thompson v. Ballard, 229 W. Va. 263,

728 S.E.2d 147 (2012) (internal citation and quotation omitted). This Court has also noted

that “a reviewing court may not overturn a finding simply because it would have decided

the case differently, and it must affirm a finding if the [lower tribunal’s] account of the

evidence is plausible in light of the record viewed in its entirety.” Syl. Pt. 1, in part, In Re

Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996).

The habeas court was presented with conflicting factual testimony from three

witnesses with direct knowledge of whether there was a plea agreement. The habeas court

8

set forth a detailed factual recitation of this conflicting testimony and highlighted the

particular facts that guided its determination that there was not a plea agreement. This

Court has stated:

There are many critical aspects of an evidentiary hearing which

cannot be reduced to writing and placed in a record, e.g., the

demeanor of witnesses. These factors may affect the mind of a

trier of fact in forming an opinion as to the weight of the

evidence and the character and credibility of the witnesses.

Thus, the importance of these factors should not be ignored by

a reviewing court.

Stephen L.H. v. Sherry L.H., 195 W. Va. 384, 395, 465 S.E.2d 841, 852 (1995), superseded

by statute on other grounds.

A reviewing court cannot assess witness credibility

through a record. The trier of fact is uniquely situated to make

such determinations and this Court is not in a position to, and

will not, second guess such determinations.

Michael D.C. v. Wanda L.C., 201 W. Va. 381, 388, 497 S.E.2d 531, 538 (1997).

Ms. Bailes testified on three separate occasions about the existence of a plea

agreement. During the trial, she unequivocally stated that she did not have an agreement

with the State. In a deposition after the trial, she testified that Prosecutor Milam promised

not to prosecute her if she testified for the State. At the omnibus hearing, Ms. Bailes

testified that she had an agreement with the State that she would not be charged if she

testified, but that Prosecutor Milam was not the one who made this deal with her and that

she could not remember how the deal came about. Further, during the omnibus hearing,

she stated that her memory about “these events” (i.e., the existence of a plea agreement)

would have been better “at the trial.” Based on the conflicting testimony that Ms. Bailes

offered at these different proceedings, the habeas court determined that “it appears the most

accurate assessment is that what she said at trial was fresh in her mind and was the most

accurate statement of events, compared to any later statements she made to the contrary

either in a deposition or in the omnibus hearing itself.”

Next, the habeas court noted that Prosecutor Milam had never acknowledged

the existence of the plea agreement. While Ms. Stanton offered testimony to the contrary,

asserting that there was a plea agreement, the habeas court noted that it was undisputed that

there was no written plea agreement and that even under Ms. Stanton’s testimony, the

alleged agreement lacked “definiteness and performance.” Ms. Stanton testified that under

the agreement, Ms. Bailes would either have her charges dismissed or she would plead to

a misdemeanor with no jail time. Ms. Stanton conceded that the relief Ms. Bailes would

9

receive could change depending on the quality of her trial testimony. The habeas court

determined that “[t]he ambiguity of Ms. Stanton’s description of the supposed plea

agreement lends itself to the conclusion that no agreement with clear, specific terms was

in place.”

In sum, the habeas court’s determination that there was no consummated 5

plea agreement is supported by three main factors: 1) Ms. Bailes’s trial testimony; 2)

Prosecutor Milam’s statement that the parties did not have a plea deal; and 3) Ms. Stanton’s

testimony that the terms of the alleged deal were not definite and were subject to change

depending on the quality of Ms. Bailes’s testimony. 6 We find that the habeas court was in

the best position to assess the credibility of Ms. Bailes, Ms. Stanton, and Prosecutor Milam

and that the court’s detailed order clearly explaining its conclusion that there was not a

consummated plea agreement is plausible in light of the record viewed in its entirety. Based

on the foregoing, we find that the habeas court’s ruling on this issue was not clearly

erroneous. Having found that the habeas court did not err by concluding that there was not

a plea agreement, Petitioner’s assertions of prejudice arising from the secret plea agreement

necessarily fail. 7

5

The habeas court correctly relied on this Court’s ruling that substantial evidence

is necessary to demonstrate that a consummated plea agreement has been reached: “While

we do not require that a plea bargain agreement be written, although that is the far better

course, we do require substantial evidence that the bargain was, in fact, a consummated

agreement, and not merely a discussion.” State v. Wayne, 162 W. Va. at 42-43, 245 S.E.2d

at 840.

6

We emphasize that though Ms. Stanton testified that there was a plea agreement,

the alleged agreement she said was reached lacked a number of definite terms. First, it was

unclear what relief Ms. Bailes would receive for her testimony. Ms. Stanton stated that

Ms. Bailes would, depending on the veracity of her testimony, “either have her charges

dismissed or she would plead to a misdemeanor with no jail time.” Ms. Stanton did not set

forth how “the veracity” of Ms. Bailes’s trial testimony would be assessed and how the

parties would ultimately determine what relief she would receive. Additionally, Ms.

Stanton did not identify the party that would actually dismiss Ms. Bailes’s charge after the

trial. When asked if she knew that the charge would be dismissed by the circuit court

judge, rather than by Prosecutor Milam, Ms. Stanton stated, “I suspected that.”

7

Clearly, there can be no Brady violation without a plea agreement. In the absence

of an agreement, Prosecutor Milam could have indicted Ms. Bailes after the trial. However,

he testified that after researching the issue, he determined that an employee could not be

prosecuted as an accessory-after-the-fact for the criminal acts of her employer. Finally,

without the existence of a plea agreement, Petitioner cannot sustain his argument that Ms.

Bailes’s trial testimony was false.

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Petitioner’s second assignment of error is that the habeas court erred by

rejecting his argument that he was entitled to relief because one of the jurors was related

to the State’s witness, Ms. Bailes. According to Petitioner,

it is clear that juror, Nelson Paul Bailes, is the uncle of April

Bailes. Though the original witness call sheet, which was read

to the jury during voir dire to ensure no connections between

jurors and witnesses, stated April Bailes[’s] name as “April

O’Brien,” when Ms. Bailes was called to testify, she was

identified as “April Bailes.”

Nelson Bailes knew or should have known the familial

connection between himself and Ms. Bailes. After hearing

April Bailes identify herself as “April Bailes” during her

testimony, he should have alerted the Court to the potential

conflict.

The habeas court heard testimony on this issue during the omnibus hearing

and rejected Petitioner’s argument based on the following findings:

April Bailes testified that she had never met Nelson Paul

Bailes prior to the October 2018 hearing in this habeas

proceeding. Nelson Paul Bailes testified that he had never met

April Bailes prior to the October 2018 hearing in this

proceeding. Based on the testimony of Nelson Paul Bailes,

[and] April Bailes . . . it is clear that the witness, April Bailes,

and the juror, Nelson Paul Bailes, had no knowledge of each

other as of the time of the trial in the underlying criminal

matter. . . . Based on the circumstances at the time of trial, it

was reasonable for Nelson Paul Bailes not to notify the Court

that he was related to the witness April Bailes, who was

identified as April O’Brien. There is no indication that Nelson

Paul Bailes intentionally misled the Court or parties regarding

his qualifications to serve as a juror or his relationship to any

of the witnesses. In fact, there is no reason to believe that any

person intentionally deceived the Court or the parties about the

familial relationship between Juror Nelson Paul Bailes and

Witness April Bailes.

After review, we agree with the habeas court’s ruling rejecting this argument.

The undisputed testimony was that Nelson Bailes and Ms. Bailes had never met each other

and did not know that they were related when the trial occurred. This Court has held that,

“[w]hen a prospective juror is closely related by consanguinity to a prosecuting witness or

11

to a witness for the prosecution, who has taken an active part in the prosecution or is

particularly interested in the result, he should be excluded upon the motion of the adverse

party.” Syl. Pt. 2, in part, State v. Beckett, 172 W. Va. 817, 310 S.E.2d 883 (1983). Clearly,

the purpose of this rule is to prevent a juror from being biased in favor of a family member’s

testimony. We agree with the State’s argument that because Nelson Bailes and Ms. Bailes

had never met and did not know that they were related, “there can be no concern that Mr.

Bailes was prejudiced against Petitioner or in favor of Ms. Bailes due to a familial

relationship (and no concern that Ms. Bailes’s testimony was somehow impacted due to

the presence of Nelson Bailes on the petit jury).” Accordingly, we agree with the habeas

court’s ruling rejecting Petitioner’s argument. 8

The heading of Petitioner’s final assignment of error is as follows: “The

circuit court erred in finding that the Petitioner did not receive ineffective assistance of trial

or appellate counsel.” However, in the four paragraphs under this heading, Petitioner

argues that he “is entitled to relief based upon the cumulative error doctrine.” Because

Petitioner’s only substantive argument in this section addresses the cumulative error

doctrine, we confine our analysis to that issue.

8

Petitioner also asserts an ineffective assistance of counsel argument under this

assignment of error. Petitioner contends that his trial counsel should have noticed that

Nelson Bailes and April Bailes had the same last name. According to Petitioner, “[t]his

should have led to a line of inquiry where the consanguineal connection between Juror

Bailes and Witness Bailes could have been uncovered, and Mr. Bailes would have been

removed from the jury.” Because his trial counsel failed to engage in this inquiry during

voir dire, Petitioner asserts that he received ineffective assistance of counsel. We disagree.

Pursuant to State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995), we apply a two-

pronged test when reviewing a claim of ineffective assistance of counsel: “(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.” Id., Syl. Pt. 5, in part. We find that Petitioner’s

claim fails under both prongs. Trial counsel’s failure to question Nelson Bailes about his

relationship with a witness identified on the call sheet as “April O’Brien” was not

objectively unreasonable. Further, even if counsel had conducted this inquiry, it is clear

that Ms. Bailes and Nelson Bailes had not met each other and did not know they were

related at the time of Petitioner’s trial. Thus, it is highly unlikely that this inquiry would

have resulted in the discovery that the two were related. Finally, we have already

concluded that no prejudice arose from Nelson Bailes being on the jury because he and Ms.

Bailes did not know each other and did not know they were related. Therefore, there is no

indication, much less a reasonable probability, that the result of the proceedings would

have been different if counsel had asked Nelson Bailes whether he was related to Ms. Bailes

during voir dire.

12

Our standard for reviewing a cumulative error argument was set forth in

syllabus point five of State v. Smith, 156 W. Va. 385, 193 S.E.2d 550 (1972): “Where the

record of a criminal trial shows that the cumulative effect of numerous errors committed

during the trial prevented the defendant from receiving a fair trial, his conviction should be

set aside, even though any one of such errors standing alone would be harmless error.”

This Court has recognized that the cumulative error doctrine “should be used sparingly”

and only where the errors are apparent from the record. Tennant v. Marion Health Care

Foundation, Inc., 194 W. Va. 97, 118, 459 S.E.2d 374, 395 (1995).

Petitioner’s cumulative error argument is based on his assertion that he was

prejudiced by 1) the State and Ms. Bailes entering into a secret plea deal, and 2) Nelson

Bailes being on the jury. Because we have rejected these two errors, we find that Petitioner

is not entitled to relief based on the combined effect of these alleged errors.

For the foregoing reasons, we affirm the habeas court’s January 21, 2020,

order.

Affirmed.

ISSUED: June 10, 2022

CONCURRED IN BY:

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice C. Haley Bunn

DISSENTING:

Chief Justice John A. Hutchison

Justice William R. Wooton

13

Hutchison, C.J., dissenting:

Petitioner Gary Lee Rollins’s conviction of the first-degree murder of his wife for

which he was sentenced to life in prison, without mercy, was based, in large part, upon the

bombshell testimony of his mistress, April Bailes. Following her arrest on the charge of

being an accessory after the fact, Ms. Bailes testified at trial that, before Mrs. Rollins’s

body was discovered on the family farm, petitioner told Ms. Bailes that he had killed her

and forced her to call 9-1-1 to report the accidental death. The credibility of Ms. Bailes’s

trial testimony hinged upon Prosecutor Milam’s false statement to the jury that Ms. Bailes

was not getting “some kind of consideration” for her testimony and promise that “[y]ou

can bet your behind I’m going to indict [Ms. Bailes] next month” on the accessory charge.

The problem here is that Prosecutor Milam’s statement was not actually true. Rather, the

substantial evidence of record showed that the State had made a deal with Ms. Bailes in

exchange for her testimony that petitioner had confessed to killing his wife, a fact

Prosecutor Milam intentionally withheld from petitioner in violation of petitioner’s due

process rights. Because I believe that Prosecutor Milam’s misconduct in this regard

warrants that petitioner be awarded a new trial, I respectfully dissent to the majority’s

decision to uphold the circuit court’s order denying petitioner’s request for habeas relief.

This Court has long held that “[t]he prosecution must disclose any and all

inducements given to its witnesses in exchange for their testimony at the defendant’s trial.”

Syl. Pt. 2, State v. James, 186 W. Va. 173, 411 S.E.2d 692 (1991). This is because “[s]uch

deals are crucial as impeachment evidence; in some cases the jury may decide that the deal

has created an incentive for the witness to lie.” Id. at 175, 411 S.E.2d at 694. Indeed, “[a]

prosecution that withholds evidence which if made available would tend to exculpate an

accused by creating a reasonable doubt as to his guilt violates due process of law under

Article III, Section 14 of the West Virginia Constitution.” Syl. Pt. 4, State v. Hatfield, 169

W. Va. 191, 286 S.E.2d 402 (1982); accord Brady v. Maryland, 373 U.S. 83 (1963).

“[E]vidence reflecting on the credibility of a key prosecution witness may be so material

to the issue of guilt as to qualify as exculpatory matter which the prosecution is

constitutionally required to disclose[.]” State v. Fortner, 182 W. Va. 345, 354, 387 S.E.2d

812, 821 (1989). Finally, “[c]lear evidence of a deal directly linking leniency for [a witness]

with testimony tending to convict [the defendant] that was not disclosed would be grounds

for a new trial.” James, 186 W. Va. at 175, 411 S.E.2d at 694.

At the omnibus hearing in this case, petitioner presented credible evidence that the

prosecuting attorney induced Ms. Bailes into giving inculpatory testimony at petitioner’s

trial in exchange for either dismissing the accessory charge against her or allowing her to

plead to a misdemeanor with no jail time. In addition to Ms. Bailes’s testimony that she

agreed to testify against petitioner based upon the understanding that she would not be

prosecuted as an accessory, Ms. Bailes’s attorney, Cynthia Stanton, also testified. Ms.

Stanton related that it was a routine practice in Prosecutor Milam’s jurisdiction to note

“pending further investigation” on preliminary hearing waiver forms to signify that an oral

14

plea deal had been reached so as to compel a defendant to cooperate with law enforcement

or a prosecuting attorney in exchange for the dismissal of pending charges. Ms. Stanton

testified that, consistent with this practice, she struck an oral agreement with Prosecutor

Milam in October of 2011 at Ms. Bailes’s preliminary hearing in magistrate court, which

was reflected on Ms. Bailes’s preliminary hearing waiver form by the notations of “further

investigation” and “Don’t reset this again until after September 1st. Grand jury is 9/11, after

that also? [Response:] Yes.” 1 According to Ms. Stanton’s testimony, this meant “that there

was a plea agreement and not to reset [Ms. Bailes’s preliminary hearing] . . . to see if she

performed on her part of the plea agreement.” Ms. Stanton was so certain that a plea deal

had been reached that, when she learned that Prosecutor Milam had falsely advised the jury

at petitioner’s trial to the contrary, she promptly addressed the issue with a circuit court

judge because she believed Prosecutor Milam had committed an ethics violation. Ms.

Stanton testified that, in Prosecutor Milam’s presence, she told the judge, “[U]nder no

circumstances would I put anyone to trial on a murder case without a plea agreement.”

Even the assistant prosecuting attorney at the time, Jonathon Sweeney, agreed that the

routinely used shorthand notation on hearing waivers Ms. Stanton described, including on

Ms. Bailes’s form, meant that the charges would be held in abeyance in order to “keep the

pressure on the witness to testify.” Although Prosecutor Milam admitted to commonly

striking deals with defendants in the manner described by both Mr. Sweeney and Ms.

Stanton, he testified that, despite the documentary evidence to the contrary, he did not strike

such a deal with Ms. Bailes. Moreover, incredulously, he somehow could not recall being

summoned to the circuit judge’s chambers after Ms. Stanton essentially accused him of

lying to the jury at petitioner’s trial. Prosecutor Milam’s testimony is not compelling

because it is not credible. 2

1

The grand jury was scheduled to meet after petitioner’s trial occurred in August

of 2012.

2

Prosecutor Milam’s untruthfulness with respect to Ms. Bailes was seemingly

without limits. The majority recounts that “Prosecutor Milam testified that he intended to

indict Ms. Bailes following Petitioner’s trial. However, after researching the potential

criminal charge against Ms. Bailes, he determined that an employee could not be

prosecuted as an accessory-after-the-fact for the criminal acts of her employer.” The

majority overlooks that it was prior to trial that Milam advised the circuit court,

I don’t believe she committed a crime because I don’t believe

she willfully [called 9-1-1]. I think she was under duress . . . .

[I]f she testifies to what she told us previously, then I do not

believe she’s committed a crime, and I’ll put that in writing . .

. as being the State’s position[.]

Despite making this attestation in open court (but apparently without ever advising

Ms. Bailes), Prosecutor Milam proceeded to tell the jury during petitioner’s trial, “You can

15

We have instructed that “‘where there is doubt over the existence of an agreement

between the State and a defendant, but substantial evidence, although circumstantial, is

present which suggests that an agreement existed, this Court will resolve the benefit of the

doubt in the defendant’s favor.’” State ex rel. Yeager v. Trent, 203 W. Va. 716, 722, 510

S.E.2d 790, 796 (1998). There was clearly substantial evidence presented at petitioner’s

omnibus hearing demonstrating that an agreement had been reached between Ms. Bailes

and the State whereby Ms. Bailes would (and did) testify that petitioner confessed to the

murder of his wife in exchange for the dismissal or leniency of the charge against Ms.

Bailes. Not only did Ms. Bailes and Ms. Stanton testify that a deal had been made,

petitioner also established that Prosecutor Milam went to some lengths to evade his

constitutional obligation to disclose the agreement. Indeed, in Ms. Bailes’s case and others,

Prosecutor Milam went so far as to create and implement an internal code that served to

conceal plea deals and remind him to honor such deals after the opportunity to test the

credibility of the witness has passed. 3 By failing to resolve any benefit of the doubt as to

the existence of a plea agreement in Ms. Bailes’s favor, the majority has unwittingly

condoned this pattern of outright chicanery.

This Court has held that for there to be a constitutional due process violation under

Brady and Hatfield, “(1) the evidence at issue must be favorable to the defendant as

exculpatory or impeachment evidence; (2) the evidence must have been suppressed by the

State, either willfully or inadvertently; and (3) the evidence must have been material, i.e.,

it must have prejudiced the defense at trial.” Syl. Pt. 2, in part, State v. Youngblood, 221

W. Va. 20, 650 S.E.2d 119 (2007). Because the evidence shows that Prosecutor Milam

struck a plea deal with Ms. Bailes in exchange for her critical incriminating testimony

against petitioner, that evidence of the deal was intentionally withheld from petitioner, that

it was favorable to petitioner as exculpatory, and that it was highly prejudicial to petitioner

at trial, petitioner’s constitutional due process rights were violated and a writ of habeas

corpus should have been granted.

For the foregoing reasons, I respectfully dissent.

bet your behind that I’m going to indict [Ms. Bailes] next month[,]” thereby bolstering her

credibility. The majority has failed to recognize that Prosecutor Milam played fast and

loose with the truth as it related to Ms. Bailes and it clearly erred in giving any credence

whatsoever to Milam’s testimony as it related to the existence of a plea agreement with his

star witness.

3

There was some testimony suggesting that, in cases involving defendants who

were confidential informants, plea agreements were not put into writing in order to protect

the informants’ safety.

16

Wooton, Justice, dissenting:

In a memorandum decision, the majority affirms the circuit court’s order denying

relief in habeas corpus to petitioner, Gary Lee Rollins. 1 In so doing, the majority causally

dispenses with petitioner’s claim that the State violated Brady v. Maryland, 373 U.S. 83

(1963), by failing to disclose the existence of a secret plea agreement entered into between

the State and its key witness, April Bailes, wherein in exchange for Ms. Bailes’ trial

testimony that petitioner confessed to her that he killed his wife, the State would either

dismiss the charge of accessory after the fact or allow her to plead to a misdemeanor with

no jail time. The majority rests its decision on the circuit court’s factual findings,

determining that none of those findings could be deemed clearly wrong. 2 In my view, the

majority’s examination of petitioner’s alleged error in this case is woefully deficient, both

legally and factually. 3 In Napue v. Illinois, 360 U.S. 264, 272 (1959), the United States

Supreme Court considered a case is similar to the case at bar in that the defendant’s

conviction was based in part on the testimony of a witness who falsely testified that the

State had not promised him any consideration in exchange for his testimony. The Supreme

Court rejected the State’s argument that it was not free to reach a factual conclusion

1

Petitioner was convicted of first-degree murder and sentenced to life without

mercy. His conviction was affirmed on direct appeal. See State v. Rollins, 233 W. Va. 715,

760 S.E.2d 529 (2014).

2

The entirety of the majority’s decision in regard to this issue hinges on “the habeas

court’s factual findings.” The majority correctly sets forth the “clearly wrong” standard of

review which is applicable to factual determinations made by a circuit court in post-

conviction habeas corpus proceedings. See Syl. Pt. 1, State ex rel. Postelwaite v. Bechtold,

158 W. Va. 479, 212 S.E.2d 69 (1975). However, the reasoned application of this standard

of review to the evidence of plea negotiations with the State’s key witness, which will be

discussed infra in greater detail, leads even the casual reader to the inevitable conclusion

that the circuit court’s findings were clearly wrong. Further, as the Court stated in State v.

Youngblood, 221 W. Va. 20, 650 S.E.2d 119 (2007), “‘[a] claim of a violation of Brady

and Hatfield presents mixed questions of law and fact. Consequently, the “circuit court’s

factual findings should be reviewed under a clearly erroneous standard and . . . questions

of law are subject to de novo review.” State v. Kearns, 210 W.Va. 167, 168-169, 556 S.E.2d

812, 813-814 (2001).’” Youngblood, 221 W. Va. at 26, 650 S.E.2d at 125. Here, the

majority omits any review, let alone de novo review, of the law in resolving the alleged

Brady violation. Id.

3

I concur with the majority’s resolution of petitioner’s remaining two assignments

of error: that the habeas court erred in finding that he was not “materially prejudiced”

because one of the jurors was related to a witness for the State, and that he is “entitled to

relief based upon the cumulative error doctrine.”

17

different from that reached by the lower court, stating that “[i]t is now so well settled that

the Court was able to speak . . . of the ‘long course of judicial construction which

establishes as a principle that the duty rests on this Court to decide for itself facts or

constructions upon which federal constitutional issues rest.’” Id. at 272 (citation and

footnote omitted). Because the majority has avoided its clear duty to afford petitioner a

thorough examination of his claim, which if conducted would have led to the relief he

sought, I respectfully dissent.

First, the majority’s decision is devoid of any discussion of the law associated with

the constitutional issue before it. With only a passing citation to Brady – there is no

discussion or analysis of that case or this Court’s subsequent decisions based thereon – the

majority pronounces in a footnote that “there can be no Brady violation without a plea

agreement[,]” and then finds that the circuit court’s decision that “there was not a

consummated plea agreement is plausible in light of the record viewed in its entirety.”

(Some emphasis added). The majority deems this factual finding “not clearly erroneous”

and summarily concludes its discussion of petitioner’s alleged Brady violation.

Succinctly stated, the majority’s focus on a “consummated plea agreement,” defined

as one not “lack[ing] a number of definite terms,” demonstrates a fundamental lack of

understanding of the essence of a Brady violation. In Brady, the Supreme Court held that

“the suppression by the prosecution of evidence favorable to an accused upon request

violates due process where the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution.” Id. at 87 (emphasis added).

Following Brady, in Giglio v. U. S., 405 U.S. 150 (1972), the Supreme Court tackled

the issue of whether the government’s failure to disclose an alleged promise of leniency

made to its key witness in return for his testimony violated petitioner’s constitutional due

process rights. Id. at 152. The Supreme Court characterized such a failure on the

government’s part as follows:

As long ago as Mooney v. Holohan, 294 U.S. 103, 112,

55 S.Ct. 340, 342, 79 L.Ed. 791 (1935), this Court made clear

that deliberate deception of a court and jurors by the

presentation of known false evidence is incompatible with

‘rudimentary demands of justice.’ This was reaffirmed in Pyle

v. Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214 (1942). In

Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217

(1959), we said, ‘(t)he same result obtains when the State,

although not soliciting false evidence, allows it to go

uncorrected when it appears.’ Id., at 269, 79 S.Ct., at 1177.

Thereafter Brady v. Maryland, 373 U.S., at 87, 83 S.Ct., at

1197, held that suppression of material evidence justifies a new

18

trial ‘irrespective of the good faith or bad faith of the

prosecution.’ See American Bar Association, Project on

Standards for Criminal Justice, Prosecution Function and the

Defense Function s 3.11(a). When the ‘reliability of a given

witness may well be determinative of guilt or innocence,’

nondisclosure of evidence affecting credibility falls within this

general rule. Napue, supra, at 269, 79 S.Ct., at 1177.

Giglio, 405 U.S. at 153-54 (emphasis added). The Supreme Court concluded that because

the government’s case “depended almost entirely” on the testimony of the witness, the

credibility of the witness “was therefore an important issue in the case, and evidence of

any understanding or agreement as to a future prosecution would be relevant to his

credibility and the jury was entitled to know it.” Id. at 154-55 (emphasis added). Thus,

the Supreme Court determined that due process required a new trial, reversing petitioner’s

conviction. Id. at 155.

Similarly, this Court has well-established precedent protecting a defendant’s

constitutional due process rights under Brady. The Court held in syllabus points four and

five of State v. Hatfield, 169 W. Va. 191, 286 S.E.2d 402 (1982) that

[a] prosecution that withholds evidence which if made

available would tend to exculpate an accused by creating a

reasonable doubt as to his guilt violates due process of law

under Article III, Section 14 of the West Virginia Constitution.

“When a trial court grants a pre-trial discovery motion

requiring the prosecution to disclose evidence in its possession,

non-disclosure by the prosecution is fatal to its case where

such non-disclosure is prejudicial. The non-disclosure is

prejudicial where the defense is surprised on a material issue

and where the failure to make the disclosure hampers the

preparation and presentation of the defendant’s case.”

Syllabus Point 2, State v. Grimm, [165] W.Va. [547], 270

S.E.2d 173 (1980).

(Emphasis added).

Subsequently, in syllabus point two of State v. James, 186 W.Va. 173, 411 S.E.2d

692 (1991), the Court held that “[t]he prosecution must disclose any and all inducements

given to its witnesses in exchange for their testimony at the defendant’s trial.” In so

holding, we found that

19

[s]uch deals are crucial as impeachment evidence; in some

cases the jury may decide that the deal has created an incentive

for the witness to lie. [Petitioner] claims that the State made

such a deal with [a witness] and did not disclose it to him. . . .

. . . Clear evidence of a deal directly linking leniency for [the

witness] with testimony tending to convict [petitioner] that was

not disclosed would be grounds for a new trial.”

Id. at 175, 411 S.E.2d at 694.

In State ex rel. Yeager v. Trent, 203 W. Va. 716, 510 S.E.2d 790 (1998), 4 this Court

again considered the issue of a prosecutor’s decision to withhold evidence of plea

negotiations between the State and its key witness. In Yeager, a case with facts remarkably

similar case to those in the instant matter, prior to the testimony of a key witness for the

State, an in camera hearing was held in which the lower court asked the State whether there

were any plea bargains or agreements with the witness. The State denied the existence of

any such agreements and the witness did the same when questioned about this in front of

the jury. Id. at 720, 510 S.E.2d at 794. During the ensuing habeas proceeding, the former

Logan County prosecutor was deposed and testified that, to his recollection, there was such

an agreement between the State and the witness whereby the witness would plead guilty to

misdemeanor charges in exchange for his favorable testimony. The prosecutor further

stated that such agreements “would not have been anything reduced to writing when the

plea agreement was reached.” Id. The witness’ attorney testified that the witness was “the

only client he allowed to testify without the benefit of a plea agreement of some kind.” Id.

The attorney denied the existence of a plea agreement but acknowledged that “it was his

understanding that if his client’s testimony bore out at the Appellant’s trial, ‘they would

drop his [the witness’] case at some point.’” Id. The witness testified that he was unaware

of any plea agreement to the effect that the charges against him would be dropped if he

testified against the Appellant. Id. Subsequently, the prosecutor informed the circuit court

that his testimony in his first deposition was incorrect; in a second deposition, he stated

that there was no plea agreement between the State and the witness. Id. at 721, 510 S.E.2d

at 795.

On appeal, the appellant argued that the circuit court erred in refusing to set aside

his conviction and grant him a new trial based on the State’s failure “to disclose an

agreement with a critical witness regarding criminal charges pending against that witness.”

4

The memorandum decision is devoid of any mention of Yeager notwithstanding

that its facts so closely parallel the facts of the instant case.

20

Id. The Court, relying on James, recognized that it could not “unequivocally state that the

plea agreement existed.” The Court further found it

troubling that the question of whether or not a plea agreement

existed is so unresolved that even the prosecuting attorney is

on the record as adopting two opposite positions with respect

to whether there was a plea agreement. This is, at a minimum,

sloppy practice. This entire scenario illustrates why, although

there is no rule requiring that plea agreements be in writing, it

clearly is the better practice.

Id. However, despite the lack of a written plea agreement with definite terms – and the

lack of testimony establishing the existence of an actual plea agreement – the Court stated:

In cases such as this, where there is doubt over the

existence of an agreement between the State and a defendant,

but substantial evidence, although circumstantial, is present

which suggests that an agreement existed, this Court will

resolve the benefit of the doubt in the defendant’s favor. See

State v. Wayne, 162 W.Va. 41, 42-43, 245 S.E.2d 838, 840

(1978), overruled on other grounds, State v. Kopa, 173 W.Va.

43, 311 S.E.2d 412 (1983)(“[W]e do require substantial

evidence that the bargain was, in fact, a consummated

agreement, and not merely a discussion.”)[.]

Yeager, 203 W. Va. at 722, 510 S.E.2d at 796 (emphasis added). Based on its review of

all the evidence considered by the circuit court, this Court reversed and remanded for a

new trial, concluding that the lower court’s findings as to the State’s nondisclosure of a

plea agreement with the witness were clearly wrong. Id. at 723, 510 S.E.2d at 797. In this

regard, the Court concluded that “the failure to disclose the plea agreement between the

State and [the witness] was material to the impeachment of a critical witness, because the

witness presented testimony that was critical to the Appellant’s conviction[.]” Id. at 723,

510 S.E.2d at 797. The Court further stated that

had the Appellant been informed about the plea agreement, he

could have subjected [the witness] to extensive cross-

examination that could have impacted upon the witness’

credibility. Without having the opportunity to ask these

questions in front of the jury, we conclude that the Appellant

was deprived of a significant opportunity to challenge [the

witness’] credibility.

Id.

21

Thereafter, this Court held in syllabus point two of Youngblood:

There are three components of a constitutional due

process violation under Brady v. Maryland, 373 U.S. 83, 83

S.Ct. 1194, 10 L.Ed.2d 215 (1963), and State v. Hatfield, 169

W.Va. 191, 286 S.E.2d 402 (1982): (1) the evidence at issue

must be favorable to the defendant as exculpatory or

impeachment evidence; (2) the evidence must have been

suppressed by the State, either willfully or inadvertently; and

(3) the evidence must have been material, i.e., it must have

prejudiced the defense at trial.

221 W. Va. at 22, 650 S.E.2d at 121, Syl. Pt. 2 (emphasis added). The Court further

expounded upon the “materiality” factor in Buffey v. Ballard, 236 W. Va. 509, 782 S.E.2d

204 (2015), as follows:

Evidence is deemed material “if there is a reasonab[le]

probability that, had the evidence been disclosed to the defense

the result of the proceeding would have been different.” State

v. Morris, 227 W.Va. 76, 85, 705 S.E.2d 583, 592 (2010)

(quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct.

3375, 87 L.Ed.2d 481 (1985)). However, “a showing of

materiality does not require demonstration by a preponderance

[of the evidence] that disclosure of the suppressed evidence

would have resulted ultimately in the defendant’s acquittal. . .

.” Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131

L.Ed.2d 490 (1995).

Buffey, 236 W. Va. at 516-17, 782 S.E.2d at 211-12.

In its summary rejection of petitioner’s Brady claim, the majority fails to address

not only Brady itself but also our well-established law explicating that decision. Had the

majority undertaken a Brady/Hatfield analysis, it would be apparent that all elements of

the Brady/Hatfield test were met; as discussed infra in greater detail, the evidence at issue

– the secret deal between the State and Ms. Bailes – would have been favorable to petitioner

as exculpatory or impeachment evidence; the existence of the deal made between the State

and Ms. Bailes was suppressed by the State, either willfully or inadvertently; and, the

existence of this deal was material, i.e., it prejudiced the defense at trial. See Youngblood,

221 W. Va. at 22, 650 S.E.2d at 121, Syl. Pt. 2.

Second, the majority’s resolution of this case on the facts – specifically the

majority’s conclusion that the circuit court’s finding that there was no “consummated plea

agreement” was “plausible” based upon a review of the appendix record “in its entirety” –

22

is fatally flawed. Additionally, as previously mentioned the majority’s pronouncement that

“[c]learly, there can be no Brady violation without a plea agreement[]” is untenable in light

of the law set forth supra. Critically, the majority’s review of the evidence in this case

omits both critical witness testimony and factual findings made by the circuit court that

undermine the majority’s decision.

As background, Ms. Bailes was the State’s key witness. She was petitioner’s

employee with whom petitioner was having an affair. Prior to October, 2011, Ms. Bailes

gave statements to law enforcement which in no way implicated petitioner in the murder

of his wife; however, after arrest on a charge of accessory after the fact, 5 she changed her

story and claimed that petitioner had confessed to committing the crime. At petitioner’s

pre-trial hearing, the then-prosecuting attorney, James K. Milam II, informed the circuit

court that he was not likely to prosecute Ms. Bailes because it did not appear she had

committed a crime. Nonetheless, the felony charge had not been dismissed at the time

petitioner’s case came to trial.

Despite the existence of the pending charge, Ms. Bailes testified at petitioner’s trial

that he confessed to her that he had murdered his wife. This testimony was critical to

petitioner’s conviction, because without it the State’s case was based wholly on

circumstantial evidence; there were no eyewitnesses who could place petitioner in the

vicinity of his wife at or near the time of her death. Ms. Bailes also testified that she had

not received anything from the State in exchange for her testimony. 6

Two significant events occurred after Ms. Bailes’ trial testimony. First, the circuit

court instructed the jury that Ms. Bailes was facing a charge of accessory after the fact,

which carried a penalty of five years in prison. Second, during closing arguments

petitioner’s counsel argued to the jury that Ms. Bailes only testified against petitioner

because the State promised not to prosecute her. Specifically, Petitioner’s counsel argued:

And she knew what they wanted her to say because they’d been

trying to get her to say it for two years, and they couldn’t do it

5

The charge against Ms. Bailes was based on the theory that she knew that petitioner

had killed his wife because she had called 9-1-1 to report the wife’s death.

6

In regard to the alleged plea agreement, there is no question that petitioner’s

counsel inquired by letter of both Ms. Bailes’ counsel, Cynthia Stanton, and the then-

prosecuting attorney (“the prosecutor”), James K. Milam II, if there was any information

in regard to any plea agreement between Ms. Bailes and the State. Ms. Stanton never

answered the letter and the prosecutor denied the existence of any plea agreement.

23

until they put the cuffs on her. She knew what they wanted. In

the end, she gave it to them for her freedom. 7

(Footnote added). In turn, in the State’s closing rebuttal argument, the prosecutor told the

jury,

You can bet your behind I’m going to indict [Ms. Bailes] next

month.

If she’d told us this from the beginning, two years ago,

three years ago now, this case would have been totally

different, but she held that information in -- in her pocket for

two years, and she didn’t [tell] anyone until she was in trouble,

and she tried to save her own behind. Well, it’s too late at that

point. She’s being prosecuted as accessory after the fact in this

case. 8

(Footnote added). Following the trial, and contrary to the unequivocal representation to

the jury that Ms. Bailes would be indicted – a representation that undoubtedly bolstered

Ms. Bailes’ testimony and was the last thing the jury heard before its deliberations began

– the prosecutor never indicted Ms. Bailes for any crime.

At the omnibus hearing, the prosecutor testified that if he had entered an agreement

with a potential criminal defendant, the agreement would have been reduced to writing or

addressed in magistrate court prior to the felony preliminary hearing. He testified that he

did not enter into a plea agreement with Ms. Bailes in exchange for her testimony at trial.

He stated that he had always intended to prosecute her for her dishonesty with police until

he performed legal research and determined that an employee could not be prosecuted as

an accessory-after-the-fact for the criminal acts of her employer. He also testified that his

decision not to prosecute Ms. Bailes was influenced by his assessment that Ms. Bailes was

under significant duress because of petitioner’s threat. Petitioner’s counsel confronted the

prosecutor regarding the prosecutor’s representation (made at petitioner’s pretrial hearing)

that the State did not intend to prosecute Ms. Bailes because she had not committed a crime,

7

At the omnibus hearing, petitioner’s trial counsel testified that he became

“suspicious” that the State had struck a deal with Ms. Bailes in which she would receive

favorable treatment in exchange for her testimony against petitioner after Ms. Bailes was

arrested and provided law enforcement with an additional statement in regard to allegations

against petitioner. Petitioner’s trial counsel asked the prosecutor if a plea agreement had

been entered with Ms. Bailes. The prosecutor told him that there was no deal and

maintained that position throughout trial.

8

See supra note 1.

24

asking, “So, when you previously testified here a while ago -- that you intended on

prosecuting her all the way through the trial, that was not truthful, was it, sir?” The

prosecutor responded, “Yeah, it is.”

The current Nicholas County Prosecutor, Jonathon Sweeney, also testified. Notably,

the majority fails to mention Mr. Sweeney’s testimony in its memorandum decision. Mr.

Sweeney testified that he was the assistant prosecutor for Nicholas County in 2012, when

the alleged plea agreement was entered into between the prosecutor, Mr. Milam, and Ms.

Bailes. Importantly, Mr. Sweeney testified that he reviewed documents filed in magistrate

court concerning Ms. Bailes’ charges seeking leave to delay the preliminary hearing

“pending further investigation”; he stated that this is how the Nicholas County Prosecuting

Attorney’s Office has traditionally dealt with oral plea agreements related to witness

testimony. Mr. Sweeney also testified that information on a sticky note found in the

prosecutor’s file indicated that the prosecutor was “going to hold this in abeyance until

after grand jury so they could keep the pressure on the witness to testify.”

Cynthia Stanton, the public defender who represented Ms. Bailes at the time of

petitioner’s trial also testified at the omnibus hearing. Ms. Stanton stated that Ms. Bailes

entered into an oral agreement with the State whereby the charges against her would be

dismissed or she would be allowed to plead to a misdemeanor, with no jail time, provided

that she offered truthful testimony against petitioner at his trial. Corroborating Mr.

Sweeney’s testimony, Ms. Stanton testified that it was common practice to enter into oral

plea agreements with the State, which agreements were memorialized as described by Mr.

Sweeney. Specifically, she testified that it was common practice in Nicholas County

Magistrate Court to write the words “further investigation” on the on the back of a

Magistrate Court Waiver of Timeframe for Preliminary Hearing form when there had been

a plea agreement reached whereby a defendant would cooperate with law enforcement or

the prosecutor in exchange for the prosecutor’s agreement to drop the criminal charges

against the defendant. Ms. Stanton stated that Ms. Bailes’ preliminary hearing was waived

multiple times until petitioner’s trial concluded.

Ms. Stanton testified that she was informed by her associate, who observed

petitioner’s trial, of the prosecutor’s promise to the jury during closing arguments that he

was going to indict Ms. Bailes. Ms. Stanton testified that because she knew the

prosecutor’s statements were not true, she did some research on what her ethical duties

were and determined that she could either file an ethics complaint against the prosecutor

or go to the circuit judge and tell him what had transpired. In late August, 2012, Ms.

Stanton met with the circuit judge and the prosecutor and informed both that she had an

ethical duty to report the prosecutor for an ethics violation based on his representation to

the jury at trial that he intended to prosecute Ms. Bailes, a representation which was not

true because the prosecutor had made an oral plea agreement with her client. Ms. Stanton

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also told the circuit court judge that “he knew, under no circumstances,” would she allow

someone to testify in any case without a plea. She stated that the circuit court judge and

prosecutor indicated to her that the grand jury had not met yet “so it was not an issue[.]”

She testified that the prosecutor never presented the charge against Ms. Bailes to the grand

jury and the circuit court dismissed the charges against her client.

At the omnibus hearing, Ms. Bailes contradicted her trial testimony by testifying

that it was her understanding that her attorney, Ms. Stanton, had reached an agreement with

the prosecutor under which she would not be indicted if she testified.

Based upon the foregoing testimony, the circuit court made factual findings that

were equivocal at best. The circuit court found that “on the issue of whether a deal existed,

the evidence is mixed.” Further, despite finding that Ms. Stanton’s testimony “failed to

establish that there was a consummated agreement rather than a general discussion[,]” the

circuit court then found that “[t]he agreement lacked certainty” which, at a minimum,

implies that an agreement existed. The circuit court then found that “the prosecuting

attorney has never acknowledged any agreement, and the agreement alleged to have existed

by counsel for the defendant was not one with definiteness and performance.” Succinctly

stated, the circuit court’s findings in regard to the plea agreement lacked even a modicum

of clarity.

Contrary to the circuit court’s ruling, which the majority affirms in the absence of

any legal analysis, in a case alleging a Brady violation our law only requires evidence that

suggests the existence of a plea agreement and requires that this Court resolve any doubt

thereof in favor of the defendant. Yeager, 203 W. Va. at 722, 510 S.E.2d at 796 (“where

there is doubt over the existence of an agreement between the State and a defendant, but

substantial evidence, although circumstantial, is present which suggests that an agreement

existed, this Court will resolve the benefit of the doubt in the defendant’s favor.” (emphasis

added)). Rather, than follow the clear mandate of Yeager, the majority seized on dicta in

an earlier case. See State v. Wayne, 162 W. Va. 41, 245 S.E.2d 838 (1978), ), overruled on

other grounds, State v. Kopa, 173 W.Va. 43, 311 S.E.2d 412 (1983)(“[W]e do require

substantial evidence that the bargain was, in fact, a consummated agreement, and not

merely a discussion.”). The majority’s sub silentio elevation of this dicta to the status of

controlling law contravenes our holding in syllabus point two of James, which requires the

State to “disclose any and all inducements given to its witnesses in exchange for their

testimony at the defendant’s trial.” 186 W. Va. at 174, 411 S.E.2d at 693, Syl. Pt. 2, in part

(emphasis added). This specific requirement, that the State disclose “any and all

inducements,” is far broader than the majority’s view that only a “consummated

agreement” need be disclosed. See id. In short, the majority’s determination that the State

is only required under the Brady/Hatfield line of cases to disclose a consummated plea

agreement is fundamentally incorrect, and its determination that the findings made by the

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circuit court on this issue were not “clearly wrong,” contravenes our clearly established

case law.

It is beyond cavil that the facts presented at the omnibus hearing in this case

“suggest[] that a plea agreement exited.” See id. The evidence from multiple witnesses,

including the current prosecutor, Mr. Sweeney, supports finding that there was a deal

between Ms. Bailes and the State that was entered into before the petitioner’s trial. This

evidence included the testimony of Ms. Bailes’ counsel that a deal existed, as well as Mr.

Sweeney’s testimony that the manner in which Ms. Bailes’ case was handled at the

preliminary hearing stage showed that a plea agreement had been entered into between the

State and the witness. Further, the evidence before the circuit court was that the

prosecutor’s statements and actions were a moving target, from his statement to the court

at the pretrial hearing that he did not believe Ms. Bailes had committed a crime, to his

statement to the jury that they could “bet [their] sweet behind” he was going to indict her

as accessory after the fact for murder, to his failure to indict her following trial. This

inconsistency further supports a finding that a plea agreement did in fact exist ‒ a plea

agreement that was never disclosed to petitioner. If all this evidence had been resolved in

petitioner’s favor, as the law requires, the clear takeaway would be that there was indeed a

plea agreement that was never disclosed by the State. See Youngblood, 221 W. Va. at 22,

650 S.E.2d at 121, Syl. Pt. 2.

Moreover, let there be no mistake: this evidence of a plea agreement was prejudicial

to petitioner. Ms. Bailes was the State’s key witness and petitioner should have been

afforded the opportunity to impeach her with evidence of the plea agreement. Instead, Ms.

Bailes, who was testifying in order to avoid prosecution, was allowed to hold herself out

to the jury as a person sacrificing her own freedom for the State’s benefit with no promises

of leniency. See id.

Further, the majority’s opinion gives the prosecutor a pass for making false and

extremely prejudicial statements to the jury promising that he was going to indict Ms.

Bailes for felony accessory after the fact to murder when he knew he couldn’t – and indeed

didn’t – because of the plea agreement he had with the witness. Every aspect of the

prosecutor’s conduct in this case involving the plea agreement with Ms. Bailes was

materially prejudicial to petitioner and denied him his right to a fair trial. See id.

The majority’s decision in this case serves to diminish and dilute a defendant’s

constitutional due process right to a fair trial, by removing any incentive for the State to

play by the rules established in Brady and its progeny. Our law requires disclosure of both

substantive and impeachment evidence materially favorable to the defendant, and this

Court has a duty to see that this law is scrupulously observed. At the end of the day,

whether or not this petitioner was guilty or innocent of the crime for which he is now

serving a life sentence without possibility of parole, the inescapable fact is that he had a

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constitutional right to a fair trial and did not receive one. For this reason, I respectfully

dissent.

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