Edwin W. v. R.S. Mutter, Superintendent, McDowell County Corrections ( 2023 )

FILED
January 23, 2023
STATE OF WEST VIRGINIA EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
Edwin W.,
Petitioner Below, Petitioner
vs.) No. 21-0419 (Marion County No. 17-C-179)
R.S. Mutter, Superintendent,
McDowell County Corrections,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner Edwin W. 1 appeals the April 22, 2021, order of the Circuit Court of Marion
County denying his second petition for post-conviction habeas corpus relief on the basis of
ineffective assistance by habeas counsel in his first habeas proceeding. Superintendent R.S. Mutter
responds in support of the circuit court’s order. 2 Upon our review, we determine that oral argument
is unnecessary and that a memorandum decision affirming the circuit court’s order is appropriate.
See W. Va. R. App. Proc. 21.
Petitioner was convicted of multiple counts of first-degree sexual assault; sexual abuse by
a parent, guardian or custodian; and use of obscene matter to seduce a minor. 3 Specific to the issue
presented in this appeal, evidence was presented at petitioner’s trial that petitioner’s victim
underwent two pelvic examinations. The physician who supervised the first pelvic examination,
Dr. Martin Weisse, testified at trial, but the doctor who performed the second did not. Without
objection, Dr. Weisse testified to the findings from the first examination that he supervised but did
not perform. He also testified, again without objection, regarding the report of the second
1
We use initials where necessary to protect the identities of those involved in this case.
See W. Va. R. App. Proc. 40(e).
2
Petitioner appears by Sara B. Hall; respondent appears by Patrick Morrisey and Andrea
Nease Proper. At the time of the filing of petitioner’s appeal, he was housed at Mt. Olive
Correctional Complex, and Donnie Ames was listed as the respondent. Since the filing of his
appeal, however, petitioner has been moved to McDowell County Corrections. The appropriate
party has been substituted under Rule 41(c) of the West Virginia Rules of Appellate Procedure.
3
For a full recitation of the facts, see Edwin W. II v. Ballard, No. 15-1063, 2016 WL
6835734 (W. Va. Nov. 21, 2016)(Memorandum Decision).
1
examination which was performed in California by another physician. The medical report from
the second examination was admitted into evidence at trial, also without objection.
After this Court refused petitioner’s direct appeal, he filed his first petition for a writ of
habeas corpus alleging ineffective assistance of trial counsel based on the failure to object to the
admission of a report and testimonial statements by a witness who did not appear at trial and who
petitioner did not have the opportunity to cross-examine. The circuit court found there was
sufficient evidence to reasonably conclude that trial counsel chose not to object to this evidence
due to discussions with petitioner as part of a strategic plan, and it denied the petition.
Petitioner appealed the denial of his first habeas action, arguing that the circuit court erred
by failing to find that the Confrontation Clause had been violated and by failing to perform a
harmless error analysis regarding that issue. The appeal was denied. Relevant to the issues raised
in this appeal, in denying petitioner’s first habeas action appeal this Court noted that petitioner did
not raise a stand-alone Confrontation Clause claim or the related harmless-error analysis. Instead,
he argued that the failure to object to the evidence at issue during trial constituted ineffective
assistance of counsel and we found that “the circuit court correctly limited its review . . . to . . .
petitioner’s] stated ground . . . .” Edwin W. II, 2016 WL 6835734, at *3. Accordingly, we found
that the first two assignments of error had no merit. Id. We also found no error in the circuit court’s
conclusions that the decision not to object to the evidence at issue was strategic and not ineffective
assistance of counsel. Id. at *4. We further stated that, based on the totality of the evidence against
petitioner at trial and excluding the evidence being challenged, petitioner did not demonstrate that,
but for the deficiencies of counsel, the results of the trial would have been different. Id.
Petitioner then initiated this second habeas proceeding on the sole ground of ineffective
assistance of his first habeas counsel related to the failure to raise a stand-alone Confrontation
Clause claim in the first habeas action. 4 After an omnibus hearing, the circuit court entered an
order concluding that the representation of the first habeas counsel was deficient because she knew,
or should have known, that raising a stand-alone Confrontation Clause violation claim in the first
habeas proceeding was vital to the review of petitioner’s case and the failure to do so stripped him
of a basis to collaterally attack his conviction. It then performed a harmless error analysis and
found that the violation of the Confrontation Clause was harmless. Accordingly, the circuit court
found that the petitioner did not establish that there was a reasonable probability that, but for the
deficient performance of the original habeas counsel, the result of the first habeas proceeding
would have been different and denied the petition with prejudice. Petitioner appeals that ruling.
4 In Syllabus Point 4, in part, of Losh v. McKenzie, 166 W. Va. 762, 277 S.E.2d 606 (1981)
we held:
A prior omnibus habeas corpus hearing is res judicata as to all matters raised
and as to all matters known or which with reasonable diligence could have been
known; however, an applicant may still petition the court on the following grounds:
ineffective assistance of counsel at the omnibus habeas corpus hearing . . . .
2
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 questions
of law are subject to a de novo review.
Syl. Pt. 1, Mathena v. Hayes, 219 W. Va. 417, 633 S.E.2d 771 (2006). In reviewing ineffective
assistance of counsel claims, West Virginia courts consider whether counsel’s performance was
deficient under an objective standard of reasonableness; and whether there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceedings would have
been different. See Syl. Pt. 5, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995) (citing
Strickland v. Washington, 466 U.S. 668 (1984)). Counsel’s performance is reviewed by an
objective standard to determine whether the acts or omissions identified were “outside the broad
range of professionally competent assistance,” considering all of the circumstances and “refraining
from engaging in hindsight or second-guessing of trial counsel’s strategic decisions….” Miller at
6, 459 S.E.2d at 117, Syl. Pt. 6, in part.
It is well-settled law that an objection must be raised below to preserve an error or that
error is waived. See Syl. Pt. 10, State v. Bragg, 140 W. Va. 585, 87 S.E.2d 689 (1955) (holding
that “[a]n error in the admission of evidence not objected to by the defendant is deemed waived
by him”); State v. Marple, 197 W. Va. 47, 51, 475 S.E.2d 47, 51 (1996) (quoting Meadows v.
Holland, 831 F.2d 493, 498 (4th Cir. 1987) (“West Virginia has always treated a failure to object
to trial errors as a default of any right to assert these errors on direct appeal or in habeas review.”);
State v. LaRock, 196 W. Va. 294, 315-17, 470 S.E.2d 613, 634-36 (1996) (discussing the “raise or
waive” rule and the discretionary and limited application of the plain error doctrine); State v.
Lively, 226 W. Va. 81, 92-93, 697 S.E.2d 117, 128-29 (2010) (applying the raise or waive rule to
the claim of a Confrontation Clause violation). In this case it is undisputed that petitioner’s trial
counsel did not object, on any basis, to the admission of the California medical report or Dr.
Weisse’s testimony. Petitioner’s first habeas counsel identified this issue as the reason she did not
assert a stand-alone Confrontation Clause claim in the first habeas petition. Under these
circumstances, it was objectively reasonable for petitioner’s first habeas counsel to raise the
Confrontation Clause violation, if any, through an ineffective assistance of trial counsel claim
based on the failure to object during trial only and to not raise a stand-alone Confrontation Clause
violation claim. As such, she was not deficient in her performance and petitioner’s claim fails. See
Syl. Pt. 5, State ex rel. Daniel v. Legursky, 195 W. Va. 314, 465 S.E.2d 416 (1995) (“In deciding
ineffective assistance claims, a court need not address both prongs of the conjunctive standard [set
forth above], but may dispose of such a claim based solely on a petitioner’s failure to meet either
prong of the test.”).
Nevertheless, we find that even if the performance of petitioner’s first habeas counsel was
deficient, as found by the circuit court, petitioner still has not established that there was a
reasonable probability that, but for counsel’s failure to raise a stand-alone Confrontation Clause
violation in the first habeas petition, the result of the first habeas proceeding would have been
different. As discussed above, no objection was made at trial to the evidence. Further, we agree
with the circuit court below that any violation of the Confrontation Clause in this case resulted in
3
only harmless error based, inter alia, on the testimony of the victim. 5 There was no error or abuse
of discretion in the circuit court’s finding that the evidence presented by the State was sufficient
to support a finding that petitioner was guilty beyond a reasonable doubt, even without the
evidence challenged after trial as violating the Confrontation Clause.
For the foregoing reasons, we affirm the circuit court’s April 22, 2021, order denying
petitioner’s second habeas corpus petition.
Affirmed.
ISSUED: January 23, 2023
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice C. Haley Bunn
DISSENTING:
Justice William R. Wooton
Wooton, Justice, dissenting:
I respectfully dissent from the Court’s opinion, which for the second time in this case
dances around a clear-cut violation of the Confrontation Clause by finding that petitioner’s first
habeas counsel was not ineffective in failing to raise constitutional error as a “stand-alone issue”
on appeal, 6 and then waves the magic wand that seemingly makes all constitutional violations
disappear: harmless error.
The Confrontation Clause Issue
The confrontation issue in this case is so clear that no reasonable argument to the contrary
5
As discussed in Edwin II, the credible testimony of the victim, even if uncorroborated, is
sufficient to obtain a conviction in this case and credibility is determined by the jury. See Edwin
W. II v. Ballard, No. 15-1063, 2016 WL 6835734, at *4 (W. Va. Nov. 21, 2016)(Memorandum
Decision) (citing and applying Syl. Pt. 5, State v. Beck, 167 W. Va. 830, 286 S.E.2d 234 (1981)).
6
The petitioner’s direct appeal from his conviction was denied on January 20, 2010.
Because it is well established that “[t]his Court's rejection of a petition for appeal is not a decision
on the merits precluding all future consideration of the issues raised therein,” Syllabus, in part,
Smith v. Hedrick, 181 W. Va. 394, 382 S.E.2d 588 (1989), the petitioner’s first habeas proceeding
was his initial forum for resolution of the confrontation clause issue.
4
can be made. The petitioner’s constitutional rights were violated when the trial court admitted the
medical report of one physician, “the California doctor” – nowhere in the record of this case is this
physician ever named – through the testimony of another, Dr. Martin Weisse. Dr. Weisse had in
no way relied on, or even been aware of, the California doctor’s examination findings at the time
he examined the victim, and therefore the report was not admissible pursuant to Rule 703 of the
West Virginia Rules of Evidence. Further, there is nothing in the record to support a finding that
the California doctor was unavailable within the meaning of Rule 804(a), or that admission of his
report fell within the exceptions enumerated in subsection (b) of that rule. In short, admission of
the report could not be sustained under any well-recognized and longstanding exception to the
hearsay rules. See text infra. Additionally, the petitioner’s counsel never had an opportunity to
cross examine the California doctor, despite the fact the California doctor’s report was critical to
the State’s case.
First, with regard to that criticality, although on his examination of the victim Dr. Weisse
found no evidence of penetration, the California doctor on his examination found notching or scar
tissue on the victim’s hymen. Inasmuch as the victim had not alleged penetration in her earlier
statements to medical personnel and law enforcement officers, the California doctor’s report was
the only corroboration of the victim’s testimony at trial that penetration occurred. Further, the
California doctor’s report contained a highly prejudicial detail that, again, the victim had never
before mentioned: that the petitioner had brought a gun into the victim’s room and laid it on the
nightstand prior to raping her. The implied threat of that gun would be impossible for any juror to
miss. Indeed, it is fair to characterize it as the proverbial clanging bell that cannot be un-rung.
On appeal from the denial of his first petition for writ of habeas corpus, 7 the petitioner’s
counsel did not raise the confrontation issue as what this Court termed a “stand-alone issue,” but
rather as an evidentiary issue: whether his trial counsel was ineffective in failing to object when
the California doctor’s report was introduced through the testimony of Dr. Weisse. For this reason,
the Court declined to address the constitutional issue on the merits, finding that
[w]hile petitioner's first two assignments of error rely on his
assertion that a confrontation clause violation occurred, it is clear
from the record on appeal that petitioner did not raise a stand-alone
confrontation clause claim in his underlying habeas petition.
Instead, in his habeas petition, petitioner argued solely that his trial
counsel was constitutionally ineffective for failing to object to the
medical evidence that he claims was admitted in violation of the
confrontation clause. As such, the circuit court correctly limited its
review of petitioner's habeas petition to his stated ground: whether
his trial counsel was constitutionally ineffective. For that reason, we
find no merit to petitioner's first two assignments of error because
he failed to satisfy his burden to allege and establish those grounds
in this habeas proceeding.
7
See Edwin W. II v. Ballard, No. 15-1063, 2016 WL 6835734 (W. Va. Nov. 21, 2016)
(memorandum decision).
5
Edwin W. II, 2016 WL 6835734 at *3. One Justice concurred in the result but made clear that his
concurrence was based solely on counsel’s procedural waiver, noting that “[t]he defendant had the
absolute right to confront the doctors from California.” Id. at *5 (Ketchum, J., concurring)
(emphasis added).
In the instant case, an appeal from the circuit court’s denial of the petitioner’s second
petition for writ of habeas corpus, history repeats itself. Although the circuit court found that the
initial habeas counsel’s failure to raise a stand-alone confrontation issue on appeal met the first
prong of the Strickland 8 test, the majority disagrees, concluding – in the absence of any legal or
factual support – that because counsel believed the failure to object at trial to the admission of the
California doctor’s report precluded her from raising a stand-alone issue on appeal, “it was
objectively reasonable for petitioner’s first habeas counsel to raise that Confrontation Clause
violation, if any . . . based on failure to object during trial only[.]” I find this statement
unfathomable. First year law students are familiar with the concept of plain error review, and a
criminal defense attorney’s failure to seek plain error review of a clear-cut constitutional violation
should be deemed ineffective assistance as a matter of law. In this regard, although the majority
takes pains to reference a single precedent for the proposition that plain error review has
“discretionary and limited application[,]” State v. Lively, 226 W. Va. 81, 92-93, 697 S.E.2d 117,
128-29 (2010), it is well established in our law that “we may, sua sponte, in the interest of justice,
notice plain error[.]” State v. Hutchinson, 176 W.Va. 172, 177, 342 S.E.2d 138, 142 (1986) (some
emphasis added). See also State v. Deel, 237 W. Va. 600, 608, 788 S.E.2d 741, 749 (2016)
(“Initially, we note that the Petitioner failed to object before the circuit court to any error
concerning his constitutional rights under the ex post facto clause and failed to argue the issue on
appeal. These failures, however, do not mean that the Petitioner waived his constitutional rights
afforded to him by the ex post facto clause nor does it preclude us from examining an issue under
a plain error analysis.”); Cartwright v. McComas, 223 W.Va. 161, 164, 672 S.E.2d 297, 300 (2008)
(quoting Syl. Pt. 1, in part, State v. Myers, 204 W.Va. 449, 513 S.E.2d 676 (1998)) (“[I]t is within
the authority of this Court to ‘sua sponte, in the interest of justice, notice plain error.’”).
I challenge anyone to put forward a reason for counsel not to even attempt to have a winning
constitutional issue reviewed on appeal. What is there to lose? What could possibly be counsel’s
strategy here? 9 The majority offers no answers to these questions.
8
Strickland v. Washington, 466 U.S. 668, 691-92 (1984), requires a reviewing court to
determine whether counsel’s performance was deficient under an objective standard of
reasonableness, and if so, whether there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceedings would have been different.
9
One can only suppose that habeas counsel’s “strategy” was the same as that of trial
counsel in not objecting to the evidence in the first place:
There was some reason why—there was some value to that
[evidence of the second examination performed in California]
coming in. I can't remember what it is, too. So I was in the—I can't
remember exactly why. I remember having discussions with
6
It is telling that in its truncated discussion of the confrontation clause issue, the majority
omits any mention of the United States Supreme Court’s recent decision in Hemphill v. New York,
142 S. Ct. 681 (2022), wherein the Court reiterated that
“[i]n charting a different path, the Crawford [v. Washington,
541 U.S. 36 (2004)] Court examined the history of the confrontation
right at common law and concluded that ‘the principal evil at which
the Confrontation Clause was directed was the civil-law mode of
criminal procedure, and particularly its use of ex parte examinations
as evidence against the accused.’ Id., at 50, 124 S. Ct. 1354. The
Court continued, ‘the Framers would not have allowed admission of
testimonial statements of a witness who did not appear at trial unless
he was unavailable to testify, and the defendant had had a prior
opportunity for cross-examination.’ Id., at 53–54, 124 S.Ct.
1354.4 Because ‘[t]he text of the Sixth Amendment does not suggest
any open-ended exceptions from the confrontation requirement to
be developed by the courts,’ the requirement was ‘most naturally
read’ to admit ‘only those exceptions established at the time of the
founding.’ Id., at 54, 124 S. Ct. 1354; see also Giles v. California,
554 U.S. 353, 377, 128 S. Ct. 2678, 171 L.Ed.2d 488 (2008)
(‘declin[ing] to approve an exception to the Confrontation Clause
unheard of at the time of the founding or for 200 years thereafter’).”
Hemphill, 142 S. Ct. at 690–91. In the instant case, admission of the California doctor’s report
through the testimony of Dr. Weisse was a clear violation of the Confrontation Clause pursuant to
the instruction in Crawford and Hemphill, and I strongly object to the majority’s refusal to fully
and fairly engage that issue.
Harmless Error
Perhaps recognizing that its discussion of the confrontation issue is wholly unconvincing,
the majority steers quickly into the judicial safe harbor of harmless error. In this regard, the entirety
of the majority’s analysis consists of a citation to its equally cursory analysis in Edward W. II: that
“the testimony of the victim, even if uncorroborated, is sufficient to obtain a conviction . . . and
credibility is determined by the jury.” 2016 WL 6835734 at *4 (citation omitted).
[petitioner] about that California stuff, too. I think he wanted me to
do one thing[,] and I was thinking maybe to do the opposite would
be better, but I can't remember what it is, what we were talking
about, but we were having discussions about it.
Edwin W. II, 2016 WL 6835734 at *2. Pursuant to the majority’s analysis, ‘I’m sure I had a reason
but I don’t know what it might have been’ is now a sufficient statement of counsel’s trial or
appellate strategy.
7
It is readily apparent that under this logic – a logic entirely divorced from the realities of
criminal trial practice – any error in the admission or exclusion of evidence, constitutional or
otherwise, would be harmless in a case involving sexual assault or abuse so long as the victim
testifies to the elements of the crime. But let us look at what happened in this case, where the
victim’s earlier disclosures specifically disclaimed penetration, her initial physician’s examination
showed no evidence of penetration, and no gun was ever mentioned. These significant omissions
provided opportunities for impeachment when the petitioner testified at trial that there was
penetration and that the petitioner brought a gun to her room and put it on the nightstand (with all
that this action implies). Such impeachment lost any force, however, when the State, without
objection, introduced the medical report of a non-testifying physician which neatly filled in the
holes in the victim’s earlier story. Can it reasonably be contended that the evidence – clearly
unconstitutional evidence – didn’t affect the jury’s decision in any way? I think not.
In summary, the ugly facts of a case, which can present the temptation for an appellate
court to quickly affirm and move on, do not give us leeway here to skirt the fact that admission of
the California doctor’s medical report was a clear violation of the petitioner’s rights under the
Confrontation Clause. At the very least, I would put this case on the Court’s Rule 19 docket to
fully and fairly evaluate the harmless error issue in light of the entirety of the evidence. The
majority’s cursory analysis deprives the petitioner of his right to a full and fair review of his claims.
For the foregoing reasons, I respectfully dissent.
8