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 for 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 Correctional 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 denying him habeas relief because the State failed 

to comply with the mandatory joinder rule contained 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 decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 

of the Rules of Appellate Procedure. 

In March of 2003, petitioner was indicted on one count of first-degree murder and one 

count of death of a child by a custodian. Both crimes were related to the death of twelve-year-old 

J.B.2

 Petitioner was J.B.’s elementary school principal and developed a relationship with him in 

                                                             1

Effective July 1, 2018, the positions formerly 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 appropriate public officer has been substituted 

pursuant to Rule 41(c) of the West Virginia 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 VIRGINIA
2 

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., accompanied petitioner on an overnight trip to his 

cabin. Later testimony from M.P. established that 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. testified that petitioner 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 where J.B. was sleeping and then heard petitioner 

and J.B. talking. M.P. said that the next morning, 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 amitriptyline3

 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 reviewed 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 the side indicating the contents 

were toxic. However, as the autopsy did not indicate that J.B. had been poisoned, the box was 

not investigated further. As a result of the lack of evidence indicating that J.B.’s death was a 

murder, the State had no associated charges 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 three counts of sexual abuse by a custodian in January of 2002. 

In 2002, a new sheriff was elected in Fayette County who had prior experience as an 

investigator and “aggressively reopened and personally led” a renewed 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 river near petitioner’s cabin on the night of the 

murder contained a packing slip for chloroform. The investigation then located 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. Comparing 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 certain chemicals in the brain.” Mayo Clinic, 

https://www.mayoclinic.org/drugs-supplements/amitriptyline-oral-route/description/drg20072061 (last visited Oct. 31, 2018). 
3 

able to conclude that M.P. could be excluded from the DNA present on the boxer shorts. Further, 

the investigator who conducted the DNA testing testified that “[Petitioner’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 chances of someone other than petitioner or J.B. contributing to the 

stain were 1 in 350,000. Additionally, J.B.’s autopsy was revisited and the presence of 

chloroform was found in his blood. Ultimately, this renewed investigation into J.B.’s death 

resulted in petitioner’s indictment 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 dismiss 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 transaction or on two or more acts or transactions 

connected together or constituting 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 the indictment was issued in petitioner’s prior 

criminal case, the prosecutor did not have sufficient 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 was convicted of both 

counts. The circuit court then sentenced him to a term of life, without mercy, for his conviction 

of first-degree murder and a term of forty years for his conviction of death of a child by a 

custodian. These sentences were ordered to run concurrently to one another but consecutively to 

the sentences petitioner was serving from his earlier criminal proceeding. 

In February of 2010, petitioner filed a motion 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 violation of the double jeopardy clauses of the West 

Virginia and United States Constitutions. The circuit court held a hearing on this motion and 

denied the same. Petitioner then appealed the denial to this Court, which refused the appeal. 

Thereafter, in July of 2011, petitioner filed a pro se petition 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 the 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 hearing, after which it denied petitioner habeas relief. 

This appeal followed. 

Our review of the circuit court’s order denying petitioner’s petition for a writ of habeas 

corpus is governed by the following standard: 

“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 
4 

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, petitioner 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, which sets forth as follows: 

Mandatory joinder. – If two or more offenses are known or should have been 

known by the exercise of due diligence to the attorney for the state at the time of 

the commencement of the prosecution and 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 indict him for the crimes at issue herein – firstdegree murder and death of a child by a custodian – in 2001 when it indicted him for the sexual 

offenses at issue in the earlier proceedings. According to petitioner, the 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 charged in the two indictments were part of a common 

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

 First, it is clear that the State did not have 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 prosecuted him for the earlier sex crimes against other 

minor children. In regard to mandatory joinder, this Court has held as follows: 

“Rule 8(a) of the West Virginia Rules of Criminal Procedure compels the 

prosecuting attorney to charge in the same charging document all offenses 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, 

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 present 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 evidence 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 denying petitioner habeas relief, key evidence linking 
5 

petitioner to J.B.’s murder was not discovered until after the conclusion of his first trial, 

including petitioner’s purchase of chloroform, the DNA testing of J.B.’s boxer shorts, and the 

presence of chloroform in J.B.’s blood. Thus, the record shows that the prosecution did not know 

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

Petitioner argues, however, that the State had some 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 determining 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 Prosecuting Attorney to present to the September 2001 Term of the 

Fayette County Grand Jury” in regard to the crimes 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 the 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 entitled 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, petitioner 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 Court found joinder was appropriate in Rash because the charges all 

involved “inappropriate sexual contact with a minor[,]” “[t]he alleged victims were both young 

prepubescent females[,]” and the defendant 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 his sexual desires through the 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 petitioner’s lustful disposition toward children and his 

use of a game wherein he encouraged children to drink juice containing sedatives 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, petitioner’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 offenses 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 character.” While it may be true that the crimes 

at issue in petitioner’s appeal are of the same or similar character as those prosecuted in the 

earlier trial, petitioner simply has not established that they were part of a common scheme such 

that mandatory joinder required they be tried together. Given that petitioner’s case 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 sitting by temporary assignment 

DISQUALIFIED: 

Chief Justice Margaret L. Workman