CHARLESTON –Though the state Supreme Court was unanimous in reducing the sentence for a Charleston man convicted for the 1999 torture and kidnapping his then-girlfriend, two justices, citing the horrific level of domestic violence in the case, reluctantly concurred.

In 2003, the Court ruled per curium that the 30-year sentence Kanawha County Circuit Judge Louis H. "Duke" Bloom imposed on Raymond A. Richardson in 2001 "shocked the conscience of the Constitution " (Case No. 31121). In addition to remanding the case back to Bloom, the Court ordered Richardson's sentence for kidnapping be reduced from 30 to 10 years, and run concurrently with the five years he received for wanton endangerment.

Both Justice Robin Jean Davis and Justice Elliott "Spike" Maynard agreed with the majority opinion of Justice Joseph Albright, Justice Larry Starcher and former Justice Warren McGraw that the sentence was too harsh and should be reduced. However, both jurists filed separate dissenting opinions saying the Court's ruling should not serve to condone Richardson's behavior.

Domestic violence angle gets short shrift

The crux of Davis' dissent deals with the Court ordering a specific sentence on Richardson. In her opinion Davis said she could find no precedent for such action, and the Court erred in not remanding the case back the circuit judge with a sentencing recommendation.

"In the instant case, the majority was not confronted with a trial court that refused to reduce a sentence ordered by this Court," Davis said. Without such a refusal, no justification existed for the majority to impose a specific sentence in this case.

"Moreover, the majority decision sends a chilling message to trial judges, i.e. that the majority does not trust trial judges," Davis continued. "Nothing in this case warranted stripping the trial judge of its authority to select a permissible sentence on remand."

However, in a lengthy footnote Davis said her "concurrence is reluctant because I continue to be troubled by the egregious context of domestic violence within which these crimes were committed and which details the majority has neglected to mention in its statement of the facts underlying this appeal."

Quoting from statements Angela Franks, Richardson's then-girlfriend, gave to police, Davis detailed Richardson's acts of violence which included multiple beatings on various parts of Franks' body, dousing her with gasoline and threatening to set her on fire with a cigarette, urinating and spitting on her and holding a handgun to her head.

"Finally, as if these acts were not treacherous enough standing on their own, the record also showed that, at the time of this brutal beating, Ms. Franks was three months pregnant," Davis said.

Fortunately, neither Angela nor her child appear to have sustained any permanent injuries from Mr. Richardson's reign of terror."

In concluding the footnote, Davis said she agreed with the majority's decision "insofar as such sentence failed to consider that the kidnapping was incidental to the more horrific crimes with which Mr. Richardson had been charged and further failed to consider Ms. Franks' plea for mercy during his sentencing hearing."

Cases compared, contrasted

In his dissenting opinion, Maynard agreed with Davis that "'no justification existed for the majority to impose a specific sentence in this case'. Sentencing is the trial court's job."

However, Maynard cited domestic violence in the context of his opinion and compared and contrasted the circumstances and outcome Richardson case with another domestic violence-related case the Court had on its docket at the time.

Maynard made reference to the case of State v. Brooks (Case No. 31158) which was on appeal from Mercer Circuit Court (Case No. 01-F-47).

In the Brooks case, the Court affirmed the conviction of Sheila Jean Brooks for misdemeanor battery when it rejected her claim that her conviction should be overturned because Judge Derek C. Swope failed to provide the jury with a self-defense instruction.

According to court records, Brooks, a podiatrist, was indicted in February 2001 for burglary and malicious assault when she struck Sharlene McCoy in hand with a crowbar in McCoy's home in the early morning hours of Dec. 16, 2000. Brooks when to McCoy's home in Bluefield to "rescue" her former lover, Katherine Barker, from a "bad neighborhood" in which she was now living with McCoy.

The incident, court records show, resulted in Brooks throwing a cinder block through a window to gain entry to the home, and accosting McCoy and Barker upstairs with a crowbar. After Brooks struck Barker in the elbow with the crowbar, McCoy subdued her, and threw the crowbar aside.

According to court records, while subdued, Brooks produced a crescent wrench in an attempt to injure McCoy. Brooks was successful in biting McCoy on the index finger and forearm.

Though the burglary charge was later dropped, court records show, the indictment for malicious assault was amended to causing serious bodily harm for the bites Brooks made on McCoy's finger and forearm. On Jan. 23, 2002, Brooks was convicted for misdemeanor battery, and sentenced to one year in jail and a $500 fine.

According to court records, Swope suspended the sentence and placed Brooks on three years probation with six months on home confinement, and 450 hours community service.

Harming anti-domestic violence efforts

Like Davis, Maynard said the Court in Richardson's case was correct to reverse the sentence, but wrong to remand it back to the circuit court with a specific sentence. However, Maynard said in both Richardson and Brooks, the respective circuit judges erred in issuing polar opposite sentences.

"I write separately because I am firmly convinced that the criminal justice system treated the two defendants I these two cases so disparately as to be patently unfair," Maynard said. "The actual conduct engaged in by each of these defendants when compared is not all that different. However, the charges levied against and sentences imposed upon the two are very different. The dissimilarity troubles me."

After listing the facts in each case, Maynard said "[w]hat we have are two cases of horribly outrageous conduct that are really about domestic violence. In both Brooks and Richardson, we have two very controlling individuals with limited emotional tools who inflicted serious violence on other people with whom they had been romantically involved."

Maynard noted that Richardson's conduct was more "offensive" that Brooks'. However, he asked was it so much more "egregious" that a 30-year sentence, the maximum allowed by state law, was necessary.

"If we reverse the relative positions of the two and keep the conduct as it is presented here, would the results in the two cases be different?" Maynard asked. "If Ms. Brooks acted in the manner in which Mr. Richardson conducted himself, would she be facing 30 years in prison? On the other hand, would Mr. Richardson escape prison time completely if he broke into the home of someone who was trying to leave him and assaulted two people?"

In concluding his opinion, Maynard said "[s]entencing is the trial court's job," and though he disagreed with binding Bloom to a specific sentence in Richardson's case, a sentence of 10 years was appropriate. However, Maynard said the dissimilarities in the Brooks and Richardson sentences shows there's still much work to be done to make the punishment fit the crime in domestic violence cases.

"Until society sees its way clear to treat people who commit similar domestic violence crimes in a similar manner, we will make no headway in our fight against domestic violence." Maynard said.

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