Odell Morgan In re: Application to Present Complaint to Grand Jury

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS

FILED
Odell Morgan
December 10, 2020
EDYTHE NASH GAISER, CLERK
In Re: Application to Present Complaint to Grand Jury SUPREME COURT OF APPEALS
OF WEST VIRGINIA

No. 19-1072 (Ohio County 19-P-234)

MEMORANDUM DECISION

Self-represented petitioner Odell Morgan appeals the November 8, 2019, order of the
Circuit Court of Ohio County denying his application to present a complaint to the grand jury.
Respondent State of West Virginia, by counsel Karen C. Villanueva-Matkovich, filed a response
in support of the circuit court’s order.

The 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. This case satisfies the “limited circumstances” requirement of Rule 21(d) of
the Rules of Appellate Procedure and is appropriate for deposition by a memorandum decision
rather than an opinion. For the reasons expressed below, the decision of the circuit court is
reversed, and this case is remanded to the circuit court with directions to evaluate petitioner’s
application to present a complaint to the grand jury pursuant to the standards set forth in
Dreyfuse In Re: Application to Present Complaint to the Grand Jury, __ W. Va. __, 842 S.E.2d
743 (2020).

Petitioner was indicted in the Circuit Court of Ohio County on seventeen counts for his
part in two sexual assaults committed by multiple attackers. At petitioner’s trial, the evidence
included video footage of the police interviews of both petitioner and a co-defendant 1 and
surveillance video footage from the motel where J.L. (the victim of the second assault) was
sexually assaulted, which confirmed the presence of the victim and the attackers. DNA evidence
further connected petitioner to the sexual assault of J.L.

Sixteen of the seventeen counts against petitioner were presented to the jury, and the jury
convicted petitioner of fifteen of the remaining sixteen counts. Thereafter, the circuit court
sentenced petitioner to a life term of incarceration with the possibility of parole for his
conviction on one of the counts, kidnapping, and to consecutive terms of incarceration for his

1
Each of the four defendants was tried separately.

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other convictions, which resulted in a cumulative sentence of not less than 90 to 240 years of
incarceration to be served upon the completion of his life sentence. In State v. Morgan, No. 11-
0692, 2012 WL 3055440 (W. Va. June 22, 2012) (memorandum decision), this Court affirmed
petitioner’s convictions.

On October 2, 2019, petitioner submitted an application to the circuit court for
permission to present a complaint to the grand jury that alleged that the prosecutor in his criminal
case suborned the investigating officer who testified before the grand jury. The testimony in
question was the officer’s account that petitioner was present when one of his co-defendants
dragged J.L. back into the motel room in which J.L. was assaulted. By an opinion letter dated
October 10, 2019, the circuit court denied the application. Petitioner filed a motion asking that
the circuit court either reconsider its ruling or enter a final order to allow petitioner the
opportunity to appeal. On November 8, 2019, the circuit court entered a final order denying
petitioner’s application to present a complaint to the grand jury.

Petitioner now appeals the November 8, 2019, order. We review petitioner’s appeal
mindful of the standards we recently explained in the syllabus of Dreyfuse In Re: Application to
Present Complaint to the Grand Jury, __ W. Va. __, 842 S.E.2d 743 (2020), regarding the circuit
court’s role in insuring citizens’ rights of access to the grand jury.

Here, petitioner argues that the circuit court’s decision to deny his application to present a
complaint to the grand jury violated Syllabus Point 1 of State ex rel. Miller v. Smith, 168 W. Va.
745, 285 S.E.2d 500 (1981), in which this Court held that “[b]y application to the circuit judge,
whose duty is to insure access to the grand jury, any person may go to the grand jury to present a
complaint to it.” The State argues that this case should be remanded to provide the circuit court
the opportunity to evaluate petitioner’s application under the standards set forth in Dreyfuse, an
opinion issued after the circuit court decided the case now before us, and in which we elucidated
the standards under which a request to present to the grand jury should be evaluated. We agree
with the State. Therefore, we reverse the circuit court’s November 8, 2019, order and remand
this case with directions that the court evaluate petitioner’s application to present a complaint to
the grand jury pursuant to Dreyfuse.

For the foregoing reasons, we reverse the circuit court’s November 8, 2019, order and
remand this case for further proceedings consistent with this memorandum decision.

Reversed and Remanded with Directions.

ISSUED: December 10, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison

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