McBride v. Lavigne

737 S.E.2d 560, 230 W. Va. 291, 2012 WL 5897493, 2012 W. Va. LEXIS 903
CourtWest Virginia Supreme Court
DecidedNovember 21, 2012
DocketNo. 11-0853
StatusPublished
Cited by5 cases

This text of 737 S.E.2d 560 (McBride v. Lavigne) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McBride v. Lavigne, 737 S.E.2d 560, 230 W. Va. 291, 2012 WL 5897493, 2012 W. Va. LEXIS 903 (W. Va. 2012).

Opinion

PER CURIAM:

Thomas McBride, Warden of the Mount Olive Correctional Complex (hereinafter “Warden”), appeals from the April 29, 2011, decision of the Circuit Court of Putnam County vacating the November 20, 1996, conviction entered against Joseph H. Lavigne, Jr., for one count of sexual assault in the first degree; one count of child abuse resulting in serious bodily injury; and one count of incest and awarding him a new trial. As grounds for its decision to grant Mr. Lavigne relief on his habeas corpus petitions, the circuit court cited three errors committed by the trial court: (1) a jury instruction relieved the State of its burden of proof: (2) the trial court wrongly limited the defendant to four character witnesses; and (3) there was insufficient evidence to establish the defendant’s guilt beyond a reasonable doubt. The Warden argues that the circuit court abused its discretion in granting the habeas petition of Mr. Lavigne on these grounds. With regard to two grounds for habeas relief that the circuit court did not formally rule upon,1 Mr. Lavigne has asserted a cross-appeal and seeks to have this matter remanded to the circuit court for the purpose of obtaining specific findings and conclusions of law. Having fully considered the record of this matter in conjunction with the arguments raised, we reverse the circuit court’s grant of habeas corpus; we refuse Mr. Lavigne’s request to remand this matter back to the circuit court; and we order Mr. Lavigne immediately remanded into custody to serve the remainder of his sentence.

I. Factual and Procedural Background

On November 20, 1996, Mr. Lavigne was convicted of sexual assault in the first degree; child abuse resulting in serious bodily injury; and incest of his then six-year-old daughter, KLL.2 After his direct appeal to this Court was refused, Mr. Lavigne filed his initial pro se habeas corpus petition on July 11, 1999. Counsel was later appointed and as the circuit court relates in its April 19, 2011, order granting habeas (hereinafter referred to as “habeas ruling”), this matter lingered in the court system for over a decade.3 An omnibus hearing was held on February 6 and 7, 2010, at which eight witnesses [295]*295offered testimony and fourteen exhibits were entered into evidence. Through the issuance of the habeas ruling, the circuit court vacated Mr. Lavigne’s convictions and granted a new trial.

For purposes of discussing the grounds upon which the circuit court found constitutional error, we relate the following facts relevant to the sexual assault of KLL. In the early morning hours4 of Sunday, February 11,1996, a man picked KLL up from the first floor recreational room of her house where she had been sleeping next to her seven-year-old brother. She was carried out the door and across the street, where she was brutally raped5 in a grassy playground area next to a church. When the assault ended, KLL ran back to her house while the attacker reportedly took their clothes and walked behind a second church.

Upon returning to the house where KLL indicated that everyone, including her father, was in the house, she briefly laid down next to her brother who was still asleep. She then went upstairs to retrieve a night gown and attempted to clean herself up with a towel. While in the bathroom, KLL was discovered by either her mother or her father.6 After giving KLL a bath, her parents decided to call 911. That phone call, which was taped and played to the jury, was made after Mr. Lavigne went across the street to look for any evidence of the assault. When Mr. Lavigne called 911, he told the dispatcher that his daughter had been raped and that she kept repeating that it was him who raped her.

When the paramedics arrived, EMT Franklin Stover spoke with KLL while she was lying on the couch, wrapped in a blanket, and crying. After he got her to remove the blanket so he could observe her injuries, he saw that she was bleeding from her vaginal area.7 When Hurricane police officer Ronald Lee Smith arrived, Mr. Lavigne was fully cooperative. He allowed the home to be searched several times; he agreed to provide blood and pubic hair samples as well as the clothing that he was wearing that day; and he gave the police a statement.8

Officer Smith testified that KLL told him when they first met that her assailant was her father and that he looked “just like my daddy.”9 EMT Stover also testified that KLL stated that her father was the one who sexually assaulted her. Mr. Stover, who rode in the back of the ambulance with KLL and Mrs. Lavigne, testified that Mrs. Lavigne kept telling KLL that it could not have been Mr. Lavigne as he was in bed next to her.10 Mr. Stover testified that each time KLL’s mother tried to convince her daughter that it could not have been her father, KLL insisted it was.11 The second EMT, Franklin [296]*296Humphreys testified that when KLL “was with her parents she would say ‘a man who looks like my father, or my daddy’ and when she was not she referred to the person as ‘my daddy.’” This same type of discussion between KLL and her mother was overhead by Dr. Joan Phillips and Dr. Kimberly Martin, who both examined KLL at the hospital. In describing the incident to Dr. Phillips, KLL had stated a man “that looks like my daddy” “put me on the grass and he took my pants off and put his pee-pee in mine.”12 Dr. Martin testified that at one point when Dr. Phillips was out of the examining room, KLL “turned to her mother and was very adamant,” saying “It was daddy.” Despite Mrs. Lavigne’s attempts to dissuade KLL as to who the assailant was, Dr. Martin testified that she “continued to say it was daddy.”

At trial, when KLL was asked if she knew who had raped her she stated “I don’t know.” When the State asked her if she had ever seen the person who hurt her, the trial transcript reflects that “the witness turned slightly in chair and looked at the Defendant.” She nodded affirmatively in response to the State’s questions of whether she remembered telling her mom what had happened to her and who had done this to her. KLL testified “I told her and daddy.” She also nodded in an affirmative fashion when asked if she recalled telling Dr. Phillips what had happened to her upon her arrival at the hospital. When the State tried one last time to get her to make an in-court identification of her attacker, asking “Do you remember who that person that hurt you looked like?” and prompting her with “I think you told Dr. Phillips who it looked like,” the trial transcript indicates that the “witness looked over her right shoulder and pointed to the Defendant.”

There was no forensic evidence connecting Mr. Lavigne to the crime. Dr. Martin testified that the sample collections they took at the hospital were affected by the severity of KLL’s injuries, the amount of bleeding, and the bathing. She also testified the extensive degree of tearing prevented them from taking vaginal washings.

Mr. Lavigne testified that when he asked KLL what happened, she “look[ed] at me and said in his wife’s presence: “Well, my daddy carried me outside and he hurt me.” When asked about being questioned by the police as to whether he could have committed the rape, Mr. Lavigne testified that he had said: “No, I didn’t do this.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Marvin S. Mills v. Donnie Ames, Superintendent
West Virginia Supreme Court, 2019
Chad Willard v. State of Mississippi
219 So. 3d 569 (Court of Appeals of Mississippi, 2017)
State of West Virginia v. Chima Darlington Imoh
West Virginia Supreme Court, 2015
State of West Virginia v. Robert W. Holpp
West Virginia Supreme Court, 2015
Dale Shoop v. David Ballard, Warden
West Virginia Supreme Court, 2014

Cite This Page — Counsel Stack

Bluebook (online)
737 S.E.2d 560, 230 W. Va. 291, 2012 WL 5897493, 2012 W. Va. LEXIS 903, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcbride-v-lavigne-wva-2012.