1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Edgar W. Friedrichs, Jr., Petitioner Below, Petitioner

vs.) No. 17-0410 (Fayette County 11-C-163)

Ralph Terry, Superintendent, Mt. Olive Correctional Complex, Respondent Below, Respondent



### MEMORANDUM DECISION

Petitioner Edgar W. Friedrichs, Jr., by counsel Jason D. Parmer, appeals the Circuit Court of Fayette County’s March 27, 2017, order denying his petition fo r writ of habeas corpus following his conviction by a jury of first-degree murder and death of a child by a custodian. Ralph Terry, Superintendent, Mount Olive Corre ctional Complex, by counsel Julianne Wisman, filed a response in support of the circuit court’s order. 1 Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in de nying him habeas relief be cause the State failed to comply with the mandatory joinder rule contai ned in Rule 8 of the West Virginia Rules of

Criminal Procedure when he was indicted in the underlying criminal proceeding.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision affi rming the circuit court’s order is appropriate under Rule 21

of the Rules of A ppellate Procedure.

In March of 2003, petitioner was indicted on on e count of first-degree murder and one count of death of a child by a cust odian. Both crimes were related to the death of twelve-year-old

J.B. 2 Petitioner was J.B.’s elementary school princi pal and developed a rela tionship with him in

1 Effective July 1, 2018, the positions former ly designated as “wardens” are now designated “superintendents.” See W.Va. Code § 15A-5-3. Moreover, petitioner originally listed David Ballard as respondent in this action. Mr. Ballard is no longer the superintendent at Mt. Olive Correctional Complex. Accordingly, the a ppropriate public officer has been substituted pursuant to Rule 41(c) of the West Vi rginia Rules of Appellate Procedure.

2 Consistent with our long-standing practice in cases with sensitive facts, we use initials where necessary to protect the identities of those involved in this case. See In re K.H. , 235 W.Va.

(continued . . . ) 

### FILED

November 21, 2018

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 that capacity, which included taking the child on trips to his cabin on the New River. In November of 1997, J.B. and his friend, M.P., accompa nied petitioner on an ove rnight trip to his cabin. Later testimony from M.P. established th at petitioner played a game with the boys whereby he directed them to drink juice he prepared for them as quickly as they could. According to M.P., the juice had a chalky, bitter aftertaste. M.P. test ified that petiti oner gave J.B. an unidentified pill. M.P. also testified that, as he was falling asleep that night, he saw petitioner, after removing his pants, walk into the room wh ere J.B. was sleeping and then heard petitioner and J.B. talking. M.P. said that the next morn ing, petitioner woke him because J.B. had vomited and was unresponsive. According to M.P., petitioner instructed him to find a telephone to call for help. Ultimately, J.B. died.

Initial examinations, including an autopsy by the West Virginia Chief Medical Examiner, concluded that J.B.’s death was suspicious based upon the presence of amitriptyline 3 in J.B.’s vomit and blood, among other evidence. However, investigators were unable to determine how J.B. ingested the drug, as neither the victim nor any member of his family had a prescription for it. Additionally, investigators re viewed petitioner’s insurance records and found no prescription for the drug. Investigators did find a partially-wet cardboard box in the New River near petitioner’s cabin on the night of the murder with markings on th e side indicating the contents were toxic. However, as the au topsy did not indicate that J.B. had been poisoned, the box was not investigated further. As a re sult of the lack of evidence i ndicating that J.B.’s death was a murder, the State had no associated ch arges to present to a grand jury.

In 2001, petitioner was indicted for sexually abusing two other teenage boys, including the witness to J.B.’s death, M.P. Following a jury trial, petitioner was convicted of one count of first-degree sexual abuse and thre e counts of sexual abuse by a cu stodian in January of 2002.

In 2002, a new sheriff was elected in Fayett e County who had prio r experience as an investigator and “aggressively re opened and personally led” a rene wed investigation into J.B.’s death beginning in March of 2002. It wasn’t until the renewed investigation that it was

discovered that the cardboard box found in the rive r near petitioner’s cabi n on the night of the murder contained a packing slip for chloroform. The investigation then lo cated invoices showing that petitioner purchased several liters of chloroform that had been shipped in the cardboard box. Additionally, more detailed examination of J.B.’s boxer shorts revealed the presence of semen. Further testing indicated that a stain on J.B. ’s boxer shorts contained a mixture of two individuals’ DNA. Compar ing the DNA to that of petitioner, J. B., and M.P., investigators were

254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II , 230 W.Va. 731, 742 S.E.2d 419 (2013);

State v. Brandon B. , 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L. , 183 W.Va. 641, 398 S.E.2d 123 (1990).

3 “Amitriptyline is used to treat symptoms of depression. It works on the central nervous system . . . to increase levels of certa in chemicals in the brain.” Mayo Clinic, https://www.mayoclinic.org/drugs-supplements /amitriptyline-oral-r oute/description/drg20072061 (last visited Oct. 31, 2018).3 able to conclude that M.P. could be excluded from the DNA present on th e boxer shorts. Further, the investigator who conducted th e DNA testing testified that “[Pe titioner’s DNA] is present in that stain, or [that she] could not exclude [petitioner] from being in that stain. . . .” Further, the investigator testified that the ch ances of someone other than petiti oner or J.B. contributing to the stain were 1 in 350,000. Additionally, J.B.’s au topsy was revisited and the presence of chloroform was found in his blood. Ultimately, th is renewed investigation into J.B.’s death resulted in petitioner’s indictme nt in May of 2003 for one count of first-degree murder and one count of death of a child by a custodian.

In June of 2003, petitioner filed a motion to di smiss the indictment for violation of Rule 8(a)(2) of the West Virginia Rules of Criminal Procedure, which requires mandatory joinder of charges that are “based on the same act or trans action or on two or more acts or transactions connected together or constitu ting parts of a common scheme or plan. . . .” According to petitioner, these crimes were related to a common scheme or plan of crimes as set forth in the 2001 indictment. In November of 2004, the circuit court held a hearing on petitioner’s motion to dismiss. The circuit court found that, at the time th e indictment was issued in petitioner’s prior criminal case, the prosecutor did not have su fficient knowledge, evidence, or other information concerning the victim’s death to proceed before a grand jury. As such, the circuit court found that the allegations contained in the later indictment were not a part of any common scheme or plan in relation to the earlier crimes.

Petitioner’s jury trial commenced in July of 2005. Ultimately, he wa s convicted of both

counts. The circuit court then se ntenced him to a term of life, without mercy, for his conviction of first-degree murder and a term of forty y ears for his conviction of death of a child by a

custodian. These sentences were ordered to run c oncurrently to one anothe r but consecutively to the sentences petitioner was serving fr om his earlier criminal proceeding.

In February of 2010, petitioner filed a moti on pursuant to Rule 35 of the Rules of Criminal Procedure seeking a corrected sentence on the basis that his sentences were multiple punishments for the same crime and, thus, a viola tion of the double jeopardy clauses of the West Virginia and United States Constitutions. The ci rcuit court held a hearing on this motion and denied the same. Petitioner then appealed the deni al to this Court, which refused the appeal.

Thereafter, in July of 2011, pe titioner filed a pro se petiti on for writ of habeas corpus. After appointment of counsel, petitioner filed an amended petition which set forth several grounds for relief, including an allegation that th e indictment at issue violated the mandatory joinder rule set forth in Rule 8 of the Rules of Criminal Procedure. In September of 2016, the circuit court held an omnibus evidentiary heari ng, after which it denied petitioner habeas relief. This appeal followed.

Our review of the circuit court’s order denyi ng petitioner’s petition for a writ of habeas corpus is governed by the following standard:

“In reviewing challenges to the findi ngs and conclusions of the circuit court in a habeas corpus action, we appl y a three-prong standard of review. We

review the final order and the ultimate disposition under an abuse of discretion standard; the underlyi ng factual findings under a cl early erroneous standard; and4 questions of law are subject to a de novo review.” Syllabus point 1, Mathena v.
Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

Syl. Pt. 1, State ex rel. Franklin v. McBride , 226 W.Va. 375, 701 S.E.2d 97 (2009).

On appeal to this Court, peti tioner challenges only the circuit court’s ruling in regard to

his claim that the State violated the mandatory joinder rule set forth in Rule 8(a)(2) of the Rules of Criminal Procedure, whic h sets forth as follows:

Mandatory joinder . – If two or more offenses ar e known or should have been known by the exercise of due diligence to th e attorney for the state at the time of the commencement of the prosecution an d were committed within the same county having jurisdiction and venue of the offenses, all such offenses upon which the attorney for the state elects to proceed shall be prosecuted by separate counts in a single prosecution if they are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan, whether felonies or misdemeanors or both. Any offense required by this rule to be prosecuted by a separate count in a single prosecution cannot be subsequently prosecuted unless waived by the defendant.

According to petitioner, the State had a duty to i ndict him for the crimes at issue herein – firstdegree murder and death of a child by a custodi an – in 2001 when it indi cted him for the sexual offenses at issue in the earlier proceedings. Ac cording to petitioner, th e State “knew or should have known by the exercise of due diligence” that he could have been charged for J.B.’s death at that time. He also argues that the offenses char ged in the two indictment s were part of a common

scheme. For the reasons set fo rth below, we do not agree.

First, it is clear that the State did not ha ve a duty to join the offenses from petitioner’s

various criminal matters because it did not know , nor should it have known, that petitioner could be charged for J.B.’s death at the time it prosec uted him for the earlier sex crimes against other minor children. In regard to mandatory jo inder, this Court ha s held as follows:

“Rule 8(a) of the West Virginia Rules of Criminal Procedure compels the prosecuting attorney to charge in the sa me charging document all offenses based on the same act or transaction, or on two or more acts or tr ansactions, connected together or constituting parts of a co mmon scheme or plan, whether felonies, misdemeanors or both, provided that the offenses occurred in the same jurisdiction, and the prosecuting attorney knew or should have known of all the offenses, or had an opportunity to presen t all offenses prior to the time that jeopardy attaches in any one of the offenses.” Syllabus Point 3, State ex rel. Forbes v. Canady , 197 W.Va. 37, 475 S.E.2d 37 (1996).

Syl. Pt. 1, State ex rel. Blaney v. Reed , 215 W.Va. 220, 599 S.E.2d 643 (2004). Here, the prosecution simply did not have sufficient evid ence upon which to indict petitioner for J.B.’s murder at the time of his first trial related to the sexual crimes against the other minor children. Indeed, as the circuit court below found in denyi ng petitioner habeas relief, key evidence linking5 petitioner to J.B.’s murder was not discovered until after the conclusion of his first trial, including petitioner’s pu rchase of chloroform, the DNA testi ng of J.B.’s boxer shorts, and the presence of chloroform in J.B.’s blood. Thus, the record shows that th e prosecution did not know

or have reason to know of the second offens es at the time the first case was tried.

Petitioner argues, however, that the State had so me of this evidence, such as the packing slip related to his purchase of chloroform, in its possession when he was indicted in the first criminal proceeding. As such, petitioner argues that law enforcement should have exercised due diligence in its investigation and the failure to uncover these facts should be attributed to the prosecuting attorney for purposes of determinin g whether the prosecution should have known of these additional crimes. We do not agree. As the circuit court correctly found, “there was no ‘case’ for the Fayette County Pros ecuting Attorney to present to the Septem ber 2001 Term of the Fayette County Grand Jury” in regard to the cr imes committed against J.B. Indeed, the record shows that the State had a duty pursuant to Rule 3.8(a) of the West Virginia Rules of

Professional Conduct not to indict petitioner at that point, given th e lack of evidence. Rule 3.8(a) clearly states that “[t]he prosecutor in a criminal case shall . . . refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.” Accordingly, we find that petitioner is entitled to no relief in this regard.

Moreover, we find that petitioner is entitle d to no relief on his claim that mandatory joinder was required because the crimes from the two separate prosecutions were part of a common scheme. In support of this argument, peti tioner relies on a prior case wherein this Court upheld the permissive joinder of sex offenses that occurred eleven years apart because they were

“of the same or similar character.” State v. Rash , 226 W.Va. 35, 43, 697 S.E.2d 71, 79 (2010). According to petitioner, this Cour t found joinder was appropriate in Rash because the charges all involved “inappropriate sexual contact with a mi nor[,]” “[t]he alleged victims were both young prepubescent females[,]” and the de fendant in that matter “used his position of trust as a family member to take advantage of both victims. . . .” Id . Further, petitioner argues that his case is

similar to Rash in that “[t]he allegations are susceptible to the analysis that defendant’s common scheme or plan was to arouse or gratify hi s sexual desires through th e exploitation of young

children.” Id . Petitioner argues that because the State presented evidence under Rule 404(b) of the West Virginia Rules of Evidence of petitione r’s lustful disposition toward children and his use of a game wherein he encouraged children to drink juice containing se datives for purposes of sexually abusing them, it established that all the acts at issue were part of a common scheme that necessitated mandatory joinder. We do not agree.

Importantly, petiti oner’s reliance on Rash is misplaced, as that case concerned permissive joinder of prosecution under Rule 8(a)(1), not mandatory joinder under Rule 8(a)(2). Rule 8(a)(1) simply permits that “[t]wo or more offe nses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar ch aracter.” While it may be true that the crimes at issue in petitioner’s appeal ar e of the same or similar charac ter as those prosecuted in the earlier trial, petitioner simply ha s not established that they were part of a common scheme such that mandatory joinder required th ey be tried together. Given that petitioner’s ca se arises under the mandatory joinder rule set forth in Rule 8(a)(2), Rash is simply inapplicable. As such, we

find that he is entitled to no relief.6 For the foregoing reasons, we affirm.

Affirmed.

ISSUED: November 21, 2018

CONCURRED IN BY:

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice Evan H. Jenkins

Justice Paul T. Farrell sit ting by temporary assignment

DISQUALIFIED:

Chief Justice Margaret L. Workman