1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Desmond D. Clark, Petitioner Below, Petitioner

vs) No. 12-0524 (Kanawha County 11-MISC-463)

David Ballard, Warden, Mt. Olive Correctional Complex, Respondent Below, Respondent



### MEMORANDUM DECISION

Petitioner Desmond D. Clark, by counsel Sherman L. Lamber t Sr., appeals the Circuit Court of Kanawha County’s April 12, 2012, order deny ing his petition for writ of habeas corpus. Respondent David Ballard, by counsel Marland L. Turn er, filed his response.

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 is appropriate under Rule 21 of the Rules of Appellate

Procedure.

Petitioner was indicted during the September of 2008 term of the grand jury for breaking and entering, kidnapping, and murder. The indictme nt stemmed from the July 5, 2008, murder of Nalisha Gravely in a Taco Bell restaurant in Char leston. It was alleged that petitioner chased Ms. Gravely, fired two shots at her, but missed. He caught her, slung her over his shoulder, and

carried her back to an SUV where he forced he r inside and drove away. Ms. Gravely jumped out of the SUV and fled into Taco Bell. Video surveillance in the restaurant captured petitioner entering the restaurant and leaping over the count er. Petitioner located Ms. Gravely inside the

restaurant and shot her six times before leaving the restaurant and driving away.

Petitioner was identified by numerous witn esses at Taco Bell and by one witness who saw him at both the scene of the kidnapping and th e murder. None of the witnesses noticed any impairment in petitioner’s condition during the en tire episode. Petitioner met with his expert, Dr. Bobby Miller, five days after he killed Ms. Gravely. Dr. Miller was disclosed by the defense as offering testimony as to the genera l effects of Xanax and alcohol use with no particular opinion with relation to petitioner. During a pre-trial proceeding on March 19, 2009, petitioner moved for a continuance to obtain additional mental health records to be reviewed by Dr. Miller. Petitioner claimed the additional records might lead to a diminished capacity defense.

A plea agreement was reached, and petitioner en tered a plea of guilty to first degree 

### FILED

June 7, 2013
RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 murder on March 30, 2009. In exchange for the plea, the State agreed to dismiss the remaining charges. At the time the plea was entered, the ci rcuit court inquired of defense counsel whether petitioner was giving up any furthe r pursuit of a diminished capac ity defense. At that hearing, counsel for petitioner advised that petitioner no l onger wished to pursue a defense of diminished capacity. 1 During that hearing, petitione r was asked by the court if he understood that there was a possibility the court would not grant me rcy, and petitioner re plied that he did.

At the sentencing hearing in July of 2009, petit ioner’s trial counsel presented Dr. Miller’s testimony in mitigation of punishment . Dr. Miller testified that when he evaluated petitioner five days after the murder, he believed petitioner to be competent. He al so testified it was his opinion that petitioner knew what he was doing and was capable of c onforming his behavior to the requirements of the law but failed to resist the impulse to viol ence when angered. Dr. Miller further testified that petitioner’s self-reported c onsumption of Xanax and alcohol, if taken as true, would have made it even less likely that petitioner would control his impulses. Dr. Miller did not testify that petitioner’s consumption of those substances would have affected petitioner’s capacity to form a specific intent to kill or to premeditate or deliberate. Petitioner was sentenced to life imprisonment without the possibility of parole. On November 2, 2009, petitioner filed a motion for reconsideration before the circuit court, again citing the issues raised in Dr. Miller’s reports. The circuit court denied that motion by order dated November 10, 2009.

Petitioner filed his petition for writ of habeas corpus before the circuit court on October 11, 2011. In the petition, petitioner alleges two de ficiencies by trial counsel: (1) failure to investigate mental and medical defenses; and (2) failure to offer mitigating evidence of Xanax

and alcohol use at the time of the offense. On March 9, 2012, the circuit c ourt held a hearing on the petition for writ of habeas corpus. During th e hearing, the circuit co urt heard testimony from petitioner and his mother who bot h testified that they were advised by trial counsel that the proposed plea agreement was strategically the be st course because it was a calculated guess by counsel that petitioner would receive mercy. They acknowledged, however, that counsel did not make any guarantees that th e court would grant mercy.

On April 12, 2012, the circuit court entered its order denying petitioner’s petition for writ of habeas corpus. In reaching its decision, the ci rcuit court reviewed the transcripts from the 2008 arraignment; a motions hear ing on March 19, 2009; the plea hearing on March 28, 2009; and the sentencing hearing on July 2, 2009. The c ourt also heard testimony from witnesses and argument from counsel duri ng a March 9, 2012, hearing.

Petitioner argues that the circuit court impr operly denied his petition for writ of habeas corpus on the ground that his pl ea was not voluntarily made. He contends that his counsel advised him to plead guilty to first degree murder with the use of a firearm so the judge would sentence him to life with mercy, meaning he woul d be eligible for parole in fifteen years. However, he was sentenced to life without me rcy. As set forth above, during the plea hearing, the circuit court inquired of petitioner whether he understood that the court had the option whether to grant mercy, and he responded that he understood.

1 The record indicates that the decision was made with the knowledge that petitioner had been diagnosed with ADHD and intermitte nt explosive disorder prior to 2008.3 Petitioner next contends that his counsel ha d a duty to investigat e certain mental and medical defenses and that the alleged failure to do so was in violation of his Sixth Amendment right to the effective assistance of counsel. Petiti oner’s final assignment of error is his contention that his right to the effective assistance of coun sel was violated because counsel failed to offer mitigating evidence of Xanax and alcohol use be ing contributing factors at the time of the offense. It is apparent from the record that pe titioner’s counsel involved Dr . Miller in the defense at an early point in this matter as part of the investigation into petitio ner’s mental and medical defense. However, petitioner made the strategic decision to enter into a plea agreement in an effort to try to obtain a senten ce of mercy. The record also ev idences the fact that counsel, through Dr. Miller, introduced petitioner’s conten tion that he was under the influence of both Xanax and alcohol at the time of the crime as mitigating evidence.

Having reviewed the circuit court’s well-r easoned “Order Denying Petition for Writ of Habeas Corpus” entered on April 12, 2012, we here by adopt and incorporat e the circuit court’s well-reasoned findings and conclusions as to the a ssignments of error raised in this appeal. The Clerk is directed to attach a copy of the circ uit court’s order to this memorandum decision.

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: June 7, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin

Justice Robin Jean Davis Justice Margaret L. Workman

Justice Menis E. Ketchum Justice Allen H. Loughry II