Harold B. v. David Ballard, Warden ( 2016 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Harold B., FILED
Petitioner Below, Petitioner September 19, 2016
RORY L. PERRY II, CLERK
vs) No. 16-0029 (Harrison County 13-C-200-3) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
David Ballard, Warden,
Mt. Olive Correctional Complex,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner Harold B., by counsel Jason T. Gain, appeals the Circuit Court of Harrison
County’s December 14, 2015, order denying his petition for writ of habeas corpus.1 Respondent
David Ballard, Warden, by counsel Gordon L. Mowen II, filed a response. Petitioner filed a
reply. On appeal, petitioner alleges that the circuit court erred in denying his habeas petition on
the grounds of ineffective assistance of counsel and improper remarks by the prosecution.
This 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. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.
Petitioner was indicted during the May of 2010 term of court on the following five
counts: one count of first-degree sexual assault; two counts of first-degree sexual abuse; and two
counts of sexual abuse by a parent, guardian, or custodian. Upon petitioner’s motion, one count
of first-degree sexual abuse involving a different victim was severed. Following a jury trial,
petitioner was convicted in December of 2010 of one count of first-degree sexual assault and one
count of sexual abuse by a parent, guardian, or custodian. Petitioner was acquitted of the
remaining two charges.
In May of 2011, petitioner was sentenced to a term of incarceration of ten to twenty years
for his conviction of sexual abuse by a parent, guardian, or custodian, and a term of incarceration
1
Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183
W.Va. 641, 398 S.E.2d 123 (1990).
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of 25 to 100 years for his conviction of first-degree sexual assault. Thereafter, petitioner
appealed his conviction to this Court, and we affirmed the same by memorandum decision in
May of 2012. See State v. H.M.B., No. 11-0941, 2012 WL 3079154 (W.Va. May 29, 2012)
(memorandum decision).
Thereafter, petitioner filed a petition for writ of habeas corpus in the circuit court in May
of 2013. The circuit court appointed counsel to represent petitioner in the proceeding and then
held an omnibus hearing in February of 2015. At the hearing, the circuit court addressed all the
grounds petitioner raised, which included ineffective assistance of counsel; constitutional errors
in evidentiary rulings; allegedly prejudicial statements by the prosecution; sufficiency of the
evidence; and improper communications between the prosecution or witnesses and the jury.
After a review of petitioner’s claims, the circuit court denied the petition by order entered in
December of 2015. It is from this order that petitioner appeals.
This Court reviews appeals of circuit court orders denying habeas corpus relief under the
following standard:
“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.” Syllabus point 1, Mathena v.
Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).
Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009).
On appeal to this Court, petitioner alleges that he was entitled to habeas relief because his
prior habeas counsel was ineffective and because the prosecutor made allegedly prejudicial
remarks to the jury.2 The Court, however, does not agree.
2
Specifically, in his petition for writ of habeas corpus below, petitioner alleged that trial
counsel was ineffective for failing to effectively cross-examine the victim. On appeal to this
Court, however, petitioner abandons this argument in favor of alleging that he was denied his
constitutional right to cross-examine the witness because she was not competent. In support of
this argument, petitioner cites the habeas court’s finding that he was not denied effective
assistance of counsel in regard to the cross-examination of the victim because “it is more than
reasonable to believe that a harsh cross-examination of a five[-]year[-]old alleged sexual assault
victim would prove distasteful to a jury.” According to petitioner, this finding is “legally
correct,” although he argues that it only highlights the fact that he was denied a meaningful
opportunity to confront the victim. As such, he argues that “it is more appropriate for this Court
to treat this assignment of error as a denial of a right to effectively cross[-]examine under the
plain error doctrine.” The Court, however, does not agree. Petitioner admits that the circuit
court’s ruling on his claim of ineffective assistance of counsel does not constitute error.
Moreover, petitioner failed to raise the allegation that he was somehow denied the right to
effectively cross-examine the victim because the jury may have found the same “distasteful” in
(continued . . . )
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Upon our review and consideration of the circuit court’s order, the parties’ arguments,
and the record submitted on appeal, we find no error or abuse of discretion by the circuit court.
Our review of the record supports the circuit court’s decision to deny petitioner post-conviction
habeas corpus relief based on these alleged errors, which were also argued below. Indeed, the
circuit court’s order includes well-reasoned findings and conclusions as to the assignments of
error raised on appeal. Given our conclusion that the circuit court’s order and the record before
us reflect no clear error or abuse of discretion, we hereby adopt and incorporate the circuit
court’s findings and conclusions as they relate to petitioner’s assignments of error raised herein
and direct the Clerk to attach a copy of the circuit court’s December 14, 2015, “Order Denying
Petition For Habeas Corpus Relief” to this memorandum decision.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: September 19, 2016
CONCURRED IN BY:
Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II
the proceedings below. We have routinely held that “[o]ur general rule is that nonjurisdictional
questions . . . raised for the first time on appeal, will not be considered.” Shaffer v. Acme
Limestone Co., Inc., 206 W.Va. 333, 349 n. 20, 524 S.E.2d 688, 704 n. 20 (1999). See also,
Whitlow v. Board of Education, 190 W.Va. 223, 226, 438 S.E.2d 15, 18 (1993) (“Our general
rule in this regard is that, when nonjurisdictional questions have not been decided at the trial
court level and are then first raised before this Court, they will not be considered on appeal.”);
Konchesky v. S.J. Groves & Sons Co., Inc., 148 W.Va. 411, 414, 135 S.E.2d 299, 302 (1964)
(“[I]t has always been necessary for a party to object or except in some manner to the ruling of a
trial court, in order to give said court an opportunity to rule on such objection before this Court
will consider such matter on appeal.”). As such, we decline to address petitioner’s allegation that
he was denied a constitutional right to confront the victim on cross-examination, to the extent
that this allegation was not raised below.
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CIRCUIT COURT OF HARRISON COUNTY, WEST \lRGINIA
HAROLD B
Petitioner,
v. Civil Case No. I3-C-200-3
Judge James A. Mati.h
DAVID BALLARD, Warden, .
MOlllI! Olive Correctional C()mplex,
Respondent.
QRDER l)ENYING PETITION FOR HABEAS COPUS REUEF
On February 10, 2015, came the Petitioner, Harold B. • via video conference
al1d by his counsel, Rocco Mazzei. Came also the Respolldent, David Ballard, Warden ofMoum
Olive Correctional Complex, not in person bnt by counsel, Andrea Roberts, Assistant Prosecuting
) Attorney for Hanison County, Wast Virginia. The parties were present pursuant to an Order ofthe
Court setting an Onulibus Hearing on the Petition for a Writ of Habeas Corpus previously filed
herein.
Upon eonsid(lration of the evidence presented by the parties and contained in the record in
the underlying criminal case in ,his matte,', namely, Felony Number I O-F-S3-3, in the Circuit Court
of Harrison County, West Virginia, the arguments of counsel. and pertinent legal authority, the
Court concludes that the Petilione£ is not entitled to a Writ of Habeas COJ1)US and his Petition is
therefore DENIED.
l, FlNDmGS OF I'ACT
1. The Petitioner was indicted in the May 20 10 illrm On a five count indictment for the
following crimes: 011e count of sexual assault in the first degree, two counts of sexual abuse
) in the first degree, and two counl:!; of sexual abuse by a parent. Upon Petitioner's 111otion,
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one count of sexual abuse in the first degree involved a different victim and it waS severed
from the other charges for purpose of a trial and a jury found Petitioner not guilty of this
single count arfas! degree sexual abuse.
Z.. The Citcuit Court appointed attorney Wiley Newbold to represent the Petitioner on the
remaining felony C!)unts that are relevant to the Petitioner's request for habeas reJief.
3. On December 7,2010, the Petitioner was found guilty of one count of sexual abuse by a
paront, guardian, custodian, or person in a position of tlust and one count of sexnal assault in
the first degree. The court entered judgment of aequittal on the remaining one count of
sexual abuse by a parent, guardian, custodian, or person in a position of trust and one couut
ofsexual abuse in the first degree.
4. On l\fuy 18,2011, the Petitioner was sentenced to a period of no I less thun ten years not
more than twenty years in the penitentiary with credit fur time served and a tine 0[$500 plus
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court cosll; for the crime of sexual abuse by a parent, guardian, custodian, or person in a .
position of trust; he was also sentenced to a period of110t less than twenty-five years not
more than one hundred years with a fine of $5000 for the crime of sexllal assault in the first
degree, ordered to run concUlTently ",11h the first sentence.
S. The Petitioner filed an appeal to the West Virginia Supreme CO\ll1 of Appeals, which
affirmed the actions of the Circuit Court and was denied on May 29,2012.
6. The Petitioner tIled a Writ ofHabeas Corpus on May 10,2013. The Court appoInted Jason
Glass to represent the Petitioner on October 24,2013; Mr. Glass subsequently withdrew as
counsel and the Rocco Mazzei was appointed in hIs place on November 20, 2013.
7. An Omnibus hearing was held on Petitionee's petition for a Writ of Habeas Corpus on
February 10, 2015.
8. A review ofthe "Checklist of GrOlUlds tor Post-Conviction Habeas Corpus Relief" filed by
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the Petitioner pursuant to Losh 1< ,tfcKenzie, 166 W.Va. 762,277 S.E.2d 606 (1981), as
confmned by the Petitioner and ills counsel upon the record in this matter at the time of the
Omnibus Hearing, the Court notes that the Petitioner, Harold B , "dises onl y .
the following Losh grounds:
a. ineffective assistaJ1ce of counsel (Lash Checklist No. 21);
b. COIlstitutional errors in evidentiary rulings (Losh Checklist No. 41 );
c. claims ofprejudidal statements by prosecutor (Losh Checklist No. 44);
d. sufficiel1cy of evidence (Losh Checklist No. 45); and
e. improper commu.nications between prosecutor or witnesses and jury (Losh Checklist
No. 48).
The COut1: will address each ground separately.
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It CONCLUSlONS OF LAW
L Ineffective Assi,"tance ofCo\lnseU'Losh CheckllstNo. 21}
The Petitioner alleges that his trial. counsel (1) tuiled to object to what he considers leading
questions by the prosecutor, (2) failed to effectively cross examine the victim, and (3) failed to have
an exculpatory photo enhanced to prove his innocence, and therefore his trial counsel did not
provide reasonable assistance.
In order to find that an attomey's assistance is ineffective, the Strickland test must be
applied, which states that (1) counsel's perfOnllanCe was deficient under an objective standard of
reasonableness and (2) there is a reasonable probability that, but for counsel's unprofessional errors,
the result of the proc(''ediugs would have been different. Strickland v. Washington,466 U.S. 668
(1984). State ex rei. Kitchen v. Painter clarifies this test by holding that when an attack on counsel's
pe1TOrmance as ineffective "arises from occurrel1Ces involving strategy, tactics and arguable courses
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of actio"" his conduct will be deemed effectively assislive of his client imerests, unless no
reasonably qualified defense attorney would have so acted in the defense of an accused." 226 W.Va.
278,700 S.E.2d 489 (2010). Failure to meet the burden of proof imposed by either palt of the
SlricklandfMiIler test is fatal to a habeas petitioner's claim. State ex reI. Daniel v, Legursky. 195
W,Va. 314, 465 S.E.2d 416 (l995), In addition, a "decision regardil1g trial tactics cannot be the
basis for a claim of ineffective assistance of counsel unless counsel's tactics aTe shown (0 be so ill
chosen that it permeates the, entire trial with obvious unfairness," Id The same case also states that
"[i]n making the requisite silowlng of prejudice, a petitioner may demonstrate that the cumulative
effect of counsel's individual acts or omissions was substantial enough to meet StrickJand's test."
Id. Furthet·, when ruling on factors in a petition for habeas corpus, including whether actions of trial
counsel could be considered to be strategic or tactical, the reviewing court must construe the actions
in a light favorable to the prosecution. SyJ. pt 1, State v. Gulizrie. 194 W.va. 657,461 S.E.2d 163
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(l995). Petitioner's burden in proving ineffective assistance of counsel is heavy as there is strong
presumption that counsel's conduct fhlls within the wide range of reas~1fIble professional assistance.
U.S.C.A. Consl,Amend, 6; see at.w Srate ex ret. VeN/aller v, Warden, ~y: Virginia Peni1enticl1Y, 207
W. Va. 11,52& g,E.2d 207 (1999),
First, Petitioner alleges that his trilll coullsel failed to object to leading questions by the
prosecutor. When the prosecutor \\1113 conducting direct examination of the victim, J .R" oftentimes a
question was asked several limes until the pros.ecutor·s desired answer was given. A specific
example of this occurrence, the Petitioner argues, inclLlded the victim twice responding "no~ to
whether she had ever received a "bad touch" and, after the prosecutor asked whether she "'115 sure,
the victim eventually responded to the "had louch" question in the afi1l1native, As stated above.
gl'eat deference is given to the strategy and tactic choices of counsel and the actions must be
construed in the light most favorable to the pl'Osecution. It is a very common concern that obj~'Otions
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oflen highlight a point (hat the objector actually wishes to conceal, among mhcl' reasons; in
addition, special care is often taken in how an opposing attorney treats a young victim in front of a
jury. The victim iJ:l this case was five years old. While she 'W-as on the witness stand, the jury was
able to see any goading by the prosecutor in his direct examination nf the victim and presumably
weighed J.R. '8 testimony accordingly. Additionallr, regarding the missed opportunity to object, it is
important to note that Strickland does not guarantee perfect representation, only a reasonably
competent attorney. V.S.C.A. COllst.Amend. 6, Harrington v. Richter, 562 U.S. 86 (2011). Trial
counsel' 5 inaction in this instance did not cause any substantial effect on the Petitioner's trial, and
the Petitioner does not provide any argument to support the contention that, but-for the attomey's
inactions, the outcome ofthe tpal would have been diffcl'224 W. Va. 544. 364 S.E.2d 535 (2009). In
lhat case, lhe Court found that the conversation was lengthy and significant enough to necessitate
mistrial, as the conversation harllasted up to twenty minutes and the witness was an onicer who sat
at the prosecution's table throughout the trial. Id.
To compare the Petitioner's instant claim of improper communication, the severity reaches
nowhere close to situation illustrated by Rush; it is even difficult to even comp<1I'e the almost­
interaction of Mr. Stout and Mr. Walker to the conversation discussed in Holland. In this case, Mr.
Stout did exactly what he should have done to avoid any appearance of impropriety and removed
himselffrom any potential interaction wilh Mr, Walker. Run-illS with familiar faces occasionally
occur, and the actions of both Mr, Stout and Mr. Walker in this instance were perfectly appropriate,
In addition, the Petitioner provides no indication that Mr. Stout was swayed or biased by his brief
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encounter. Thcl'efore, this grotiud in not sufficient to support a claim of habeas corpus relief.
Finally, the Petitioner argues that the victim's mother's presence in the courtroom
throUgllOut the Irial is a violation oflhe Rules of Evidence and constitutes improper cornmunicati,)U.
At the onset oftrial, a motion to sequester pursuant to Rule 615 ofthe West Virginia Rules of
Evidence was granted, requiring all witnesses to remain outside the courtroom'until they were
called to testify. The Petitioner does not stale the effect, if any, the presence of the victim's mother
in courtroom had On the outcome of his trial. F1l11hennore, Petitioner's cOllI1Si:l did not object when
the victim's mother subsequently took the stand, so any violation oflhe Court's sequestration order
was waived by the Petitioner.
The presence ofth" Petitioner's mother does nOlrequire a mistrial, as the Petitioner argues,
The West Virginia Supreme Court held in State v. Wilson that "[wjhere a·sequestered witness does
not wilhdraw when ordered, or afterwards returns into the courtroom and is present during the
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examination of other ",'itnesses, it is discretionary witb the judge whether or not he will allow this
witness to be examined." Syllabus Point 7, State lI. Wilson, 157 W.Va. 1036,207 S.E2d 174
(1974); see also Stare v. Steele, 178 W. Va. 330, 359 S.E.2d 558 (1987). In additioJl, a violation of a
sequestration order doeS not in itself render the violating witness incompetent to testify. Stale v.
Steele at 3341562 (illlemai citations omitted). As the Petitioner has not alleged any certain way in
which the testimony of the victim's mother was swayed by testimony she heard from other
witnesses ortbe victim herself, this Court is ullconvinced that effect of the violff1;ion rendered a
verdict that in any way violated the Petitioner's constitutional rights. TIlerefore, this ground is not
sufficient to snpport a claim for habeas corpus relief
m. RULING
Based upon the foregoing conclusions, it is ORDERED that the Petitioner's Petition for a
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Writ of Habeas Corpus should be and the same is hereby m':NIED.
It is ftlrther ORDERED that the writ is hereby discharged and the Petitioner is remanded to
tbe custody of the Respondellt to serve the sentence imposed hy the valid judgment ofimprisonmcnt
ordered in FeloflY Case No. I (J-F-83·3.
It is fUl'ther ORDERED that purSllant to W.Va. Code § 53-4A-4(b), all costs and expenses.
including the attorney fees of Petitioner! s counsel, shall be assessed by the Clerk of this Court
against the Petitioner and the State of West Virginia shall have ajudgment against him in said
amount.
This is a final order from which any party may appeal by flUng a notice of appeal and
attachments with the Office of the Clerk oHhe Supreme Court of Appeals of West Virginia within
thirty days of the entry of this on:\er and by serving a copy on all parties who have appeared in this
action, the Clerk of the Circuit Court of Harrison County, and the court reporter. In addition, within
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fou, month, of the entry oftbi" judgment, any person wishing to appeal mtL<;t tlle a p<:tition for
appeal with the Clerk ofthe Supreme Court of Appeals of West Virginia, and by serving a copy on
all parties who have appeared in this action, the Clerk ohlle Circuit Court of Harrison County, and
the court reporter.
This is a final Order. The Clerk shall remove this case from the COUlt's docket.
It is further ORDERED that the Clerk of this COUlt place a certified copy oflhis Order in
Felony Case No. IO-F-83-3 and deliver a certified copy of the within Order, by first class mail or
other means, unto the following:
Andrea Roberts Rocco Mazzei, Esq.
Assistant Prosecuting Attorney 427 W. Pike Street
30l W, Main Street Clarksburg, WV 26301
Clarksburg, WV 2630 I
David Ballard, Warden Harold B . , Inmate
) Mount Olive Correctional Complex Mount Olive Con'ectioua! Complex
I Mountainside Way 1 Mountainside Way
Mt. Olive, VIV 25Ul5 Mt. Olive, WV 25) 85
Rory Perry, Clerk
Supreme Court of Appeals of West Virginia
State Capito I Room E-317
Charleston, WV 25305
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STATE OF WEST VLRGINIA
COUNTY OF HARRISON, TO-WIT
I, Donald L. Kopp,Il, Clerk ofthe Fifteenth Judicial Circuit and the 18 th Family
Court Circuit of Harrison County, West Virginia, hereby certify the foregoing
to be a true copy of the ORDER entered in the above styled action on the
If/d day of ft~) ,20---'.L.
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IN TESTIMONY WHEREOF, I hereunto set: my hand and affix the Seal of the
Court this /.51/, day of itU4?J?~__.2{)~.
lJrmnllll /fapf4 [
Fifteenth Judicial Circuit & 18 th
Family Court Circuit Clel'k
Harrison County, West Virginia
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