SER William David Belcher v. Adrian Hoke, Warden (Memorandum Decision)

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STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS FILED State ex rel. William David Belcher, Petitioner Below, Petitioner March 9, 2012 RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA vs) No. 11-0494 (Mercer County 09-C-286) Adrian Hoke, Warden, Respondent Below, Respondent MEMORANDUM DECISION Petitioner William David Belcher, by counsel, Derrick W. Lefler, appeals from the circuit court s order denying his petition for post-conviction habeas corpus relief. The State of West Virginia, by counsel, Thomas W. Rodd, has filed its response on behalf of respondent, Adrian Hoke, Warden. Petitioner seeks reversal of the circuit court s decision and habeas corpus relief. This Court has considered the parties briefs and the record on appeal. The facts and legal arguments are adequately presented in the parties written briefs and the record on appeal, 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 is appropriate under Rule 21 of the Revised Rules of Appellate Procedure. Petitioner was convicted by a jury of first degree murder with a recommendation of mercy on April 8, 2008. Petitioner s appeal from his criminal conviction was denied by the Court on March 12, 2009. On June 22, 2009, petitioner filed a pro se petition for a writ of habeas corpus. Thereafter, the circuit court appointed habeas counsel. Following an omnibus hearing, the circuit court entered its February 15, 2011, Order Denying the Petitioner s Petition for Writ of Habeas Corpus Ad Subjiciendum and Removing It from the Court s Active Docket. Petitioner now appeals the denial of his habeas corpus petition below and raises two issues: ineffective assistance of counsel and wrongful trial bifurcation. 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. Haines, 219 W. Va. 417, 633 S.E.2d 771 (2006). 1 The Court has carefully considered the merits of each of petitioner s arguments as set forth in his petition for appeal and has reviewed the record designated on appeal. Finding no error in the denial of habeas corpus relief, the Court affirms the decision of the circuit court and fully incorporates and adopts, herein, the lower court s detailed and well-reasoned Order Denying the Petitioner s Petition for Writ of Habeas Corpus Ad Subjiciendum and Removing It from the Court s Active Docket entered on February 15, 2011. The Clerk of Court is directed to attach a copy of the same hereto. For the foregoing reasons, we affirm. Affirmed. ISSUED: March 9, 2012 CONCURRED IN BY: Chief Justice Menis E. Ketchum Justice Robin Jean Davis Justice Brent D. Benjamin Justice Margaret L. Workman Justice Thomas E. McHugh 2 NOTED CIVIL DOCKET FEB f 5 2011 . IN THE CIRCUIT COURT OF l\1ERCER COUNTY, WEST VIR :;IN~'ULlE BAll . '. . CLERK CIRCUIT COURT STATE OF WEST VIRGINIA, ex rei. MERCER COUNTY William David Belcher V. PETmONER, Civil Action No. 09-C-286 Adrian.Hoke,! WARDEN RESPONDENT. HUTTONSVILLE CORRECTIONAL COMPLEX ORDER DENYING THE PETmONER'S PETITION FOR WRIT OF HABEAS . . CORPUS AD SUBJICIENDUM AND REMOVING IT FROM THE COURT'S ACTIVE DOCKET On May 10, 2010, this matter came' before the Court, the Honorable Judge Derek C. Swope presiding, for a hearing on the Petitioner's Petitions for Post Conviction Habeas Corpus Relief, brought pursuant to the provisions of Chapter 53, Article 4A of the West Virginia Code, as amended, which were filed by the Petitioner pro se and also by and through his courtappointed. counsel, Derrick W. Lefler, Esq. The Petitioner filed a pro se Petition for Writ of. Habeas Corpus on June 22, 2009. Counsel for Petitioner filed an Amended Petition for Writ of Habeas Corpus on January 20,2010. Thereafter, counsel for Petitioner filed a Second Amended Petition for Writ of Habeas Corpus on May 7,2010. The Petitioner and his counsel appeared" at the Omnibus hearing. Scott Ash, Esq., Assistant Prosecuting Attorney, appeared on behalf of the State ofWest Virginia IOn February 19, 2010, this Court amended the Petition to reflect the Warden as Adrian Hoke rather than Teresa Waid. 1 , The Petitioner is seeking post-conviction habeas corpus relief from his May 17, 2004 sentence of life with mercy for the offense of First Degree Murder. The Petitioner was ordered to be confined for the remainder of his natural life as provided by law for the offense of Murder . , in the First Degree, and due to the jury's recommendation of mercy, the defendant will be eligible for parole in fifteen (15) years from the date of his confinement, absent a showing that he is being unlawfully detained due to prejudicial constitutional errors in the underlying criminal proceedings. Whereupon the Court, having reviewed and considered the Petitions, the court files, the transcripts, the arguments of counsel and the pertinent legal authority, does hereby DENY the . Petitioner's Petitions for Habeas CQrpus relief. ' In support of the aforementioned ruling, the Court makes the following GENERAL FINDJNGS of FACT and CONCLUSIONS OF LAW: I. FACTUALJPROCEDURAL HISTORY Case No. 03-F-128 A. The Indictment By a True Bill returned on June 11, 2003, by'the Mercer County Grand Jury, the Petitioner, William David Belcher, was indicted for the' offense of Murder-First' Degree." - The victim was the Petitioner's girlfriend, Bernadette McCoy; The crime occUl1ed on February 27, 2003, at the victim's home on Pisgah Road in Mercer County, West Virginia. B. Pre-Trial Proceedings After the shooting but prior to the action of the' Grand Jury, the matter came on for arraignment pursuant to Mr. Belcher having been arrested upon the charge of murder in the First Degree on February 28, 2003. George Sitler, Esq. and Omar Aboulhosn, Esq} were appointed 2 Now the Honorable Omar Aboulhosn. 2 :. to represent Mr. Belcher, and Mr. Belcher was directed to advise the Court by March 7, 2003 if he intended to retain private counsel. Upon a ;motion by Mr. Belcher's counsel, the Court ordered that the defense be provided with a copy of Mr. Belcher's statement once it was transcribed. The Petitioner's trial counsel furthe1:' moved the Court to grant Mr. Belcher bond in the matter, to which the State objected. After due consideration; the Court denied the Petitioner's motion for bond, and the Petitioner was remanded to the Southern Regional Jail. On June 23, 2003, the Defense moved for discovery of any Statement of Mr. Belcher, Mr Belcher's prior record, documents and tangible objects, reports ofexaminations and tests and th~ State's witnesses. On July 29,2003, the Petitioner, by and through counsel George Sitler, Esq., and Omar Aboulhosn, Esq. requested a continuance ofthe trial, which was subsequently granted. Defense counsel retained the West Virginia Psychiatric Services of South Charleston and the West Virginia and Process Strategies of Charleston, West Virginia to. conduct forensic . examinations of the Petitioner for use in the preparation and p1:'esentation ofthe Petitioner's case, David A. Clayman, Ph.D., of Process Strategies opined on September 26, 2003, that the Petitioner "had the factual and rational capacity to understand the proceedings against him and to participate in his defense. The only limitations would arise· from his inability to read materials relevant to his case and to track highly complex concepts and actions within the courtroom. There is no indication that he should not be able to grasp these issues if they are explained to him in simplistic terms." He further found that "(t)here is no evidence that Mr. Belcher was suffering from a mental disease or defect at the time of the alleged crime such that he would have been unable to distinguish right from wrong or to conform his behavior ~o the law." (See report of Process Strategies; filed on March 30, 2004 as Defendant's Exhibit I at the hearing held on March 22, 2004.) 3 John D. Justice, M.D. of Psychiatric Services examined the Petitiqner on behalf of his first trial counsel on May 20,2003. He stated that "(i)n summary, it is my professional opinion, . with reasonable medical certainty, that the defendant is Competent to Proceed to Trial and is Criminally Responsible for his behavior." (See report ofPsychiatric Services; filed on March 30, 2004 as Defendant' s E~bit 2 at the hearing held on March 22, 2004). On July 31 st, 2003, the Petitioner retained private counsel, Wayne D. Inge, Esq., and asked that Mr. Inge be substituted as his counsel in place of Mr. Sitler and Mr. Aboulhosn, who were granted leave to withdraw as counsel for the Petitioner on August 1,2003. On November 19, 2003, the Petitioner, through counsel:Mr. Inge moved to continue the trial until the next term of co'!Jli, and· also moved the Court to allow the Petitioner to :undergo further psychological/psychiatric examinations. On November 21, 2003, the Court granted the continuance and set the trial for the February 2004 Term of Court. On December 18, 2003, Petitioner, by and through counsel :Mr. Inge filed a Rule I~ Request, a Motion for Exculpatory Evidence, a Motion for Disclosure ·of 404(b) Evidence, .a Motion for Early Disclosure of Rule . 26.2 Statements, a Rule I2.2(b) Notice and a Motion for Bifurcation. On February 27th, 2004, the Petitioner, by and through counsel Mr. Inge filed the following plearungs: A Motion in Limine Concerning Flight, a Motion in Limine- Concerning Collateral Acts; a Motion to -Suppress Custodial Statements; a Motion to Suppress Evidence Seized by a Warrantless Search; and a Motion in Limine Concerning the 911 Tape. On March 22, 2004, the Court ordered that the evidence that the Petitioner had a protective order against him was admissible 404(b) evidence; that the 911 aUdio-tape was admissible; that the firearm and shells seized during the warrantless search were in plain view and were admissible; that there is no evidence of flight in this matter; and that the Petitioner's statement to police was . 4 freely and voluntarily given. The Court deferred ruling upon the Petitioner's Motion for Bifurcation. On Apri12, 2004, the Court granted the P.etitioner's motion for bijUrcation with no objection by the State and ordered that the trial be bifurcated into a "guilt" phase and a "mercy" phase, and tried under the procedure set ferth in footnote one of State v. Rygh. 206 W.Va. 295, 524 SE2d 447, (1999). C. The Trial:. Verdict/Sentencing: Guilty of Murder in the First Degree . The trial of thi~ action began on Apri16, 2004 and continued through April 8, 2004: The jury instructions did not contain an instruction as to the defense of diminished capacity, nor did trial counsel assert that defense at trial. On April 8, Mr. Belcher was convicted of First Degree Mur~er. Thereafter, at the request of the Petitioner, the bifurcated portion of the trial was conducted on the issue of mercy. At the conclusion of this portion, the jury returned a recommendation ofmercy. D. Post-Verdict Motions and Post Trial Matters On April 29, 2004, trial counsel· for the Petitioner moved the Court for judgment notwithstanding the verdict, and the Petitioner also moved to set aside the verdict and grant the Petitioner a new trial. On May 3, 2004, the Petitioner filed a motion for a new trial. This motion was denied on May 17, 2004. Judge Derek Swope sentenced Mr. Belcher to life in the penitentiary, with the possibility ofparole in flfteen (15) years: . The Court: All right. Well once again, as I told everybody, I have no discretion in this matter. I mean, the jury recommended mercy, so even if I wanted to change that, I couldn't. I have to go with what they say. So, Mr. Belcher, I'm going to sentence you to the penitentiary for the rest of your natural life, .and you're eligible for parole at the end of 15 years, the jury having found that recommendation, or having 5 (See Transcript of Sentencing, held on May 17, 2004, atp. 14). -made that recommendation. E. Post-Trial Matters On June 7, 2004, this Court appointed Mr. Jnge to perfect a direct appeal to the West Virginia Supreme Court of Appeals. However. Petitioner moved the Court to Appoint New Counsel on June 28. 2005, citing a "complete breakdo\VJl in communication" between himself and Mr. Inge. The Petitioner subsequently filed a formal verified Complaint with the Office of Disciplinary Counsel against Mr. Inge on the matter of a lack of communication during the appeals process. Citing rules 1.4(a) and 1.4(b) of the Rilles of Professional Conduct, the Petitioner requested that the matter be --investigated by the Office of Disciplinary Counsel of West Virginia. On November 18, 2004, the Petitioner filed a Motion for Resentencing. On August 5, 2005, this Court se! a status hearing on September 19,2005. On September 7. 2005, Mr. Inge filed a Motion to Withdraw as counsel for Petitioner. The Petitioner moved for various forms of relief pro se on September 16, 2005. These included the "Defendant's Pro Se Motion for a New Tri~," and a ''Memorandum of Law. and- Affidavit in Support of Defendant's Pro Se Motion for a New Trial." The grounds for the Defendant's Pro Se Motion were: 1. The Defendant was denied his righ.t to a fair and impartial trial and due process when the investigating officer was permitted by the court to act as its bailiff. 2. . The Defendant was denied effective assistance oftrial counsel. a. Counsel was ineffective in his failure to put forth any defense in behalf of the Defendant at trial such as unconsciousness (automatism), ~shed capacity or voluntary intoxication. b. Defense counsel was ineffective by requesting to conduct the defendant's jury trial in a bifurcated setting which - . 6 deprived the accused 'of his constitutional right to set forth his defenses in ,the guilt phase to negate the degree of culpability. . c. 3. Counsel'-s failure to object to the State's key investigating officer acting as the' court bailiff denied the Defendant the right to a fair and impartial trial. The bifurcated trial proceedings were constitutionally dificient . . (sic) and denied the Defendant his statutory right to a unitary trial. The Court granted the Petitioner's Motion for Re-sentencing on September 21,200,5, for the purposes of allowing the Petitioner to perfect an appeal. The Court granted Mr. Inge's Motion to Withdraw and appointed the Public Defender's Office as appellate counsel. The Court did not rule on the Petitioner's pro se Motion for New Trial at that hearing; All other of the Petitioner's Motions were denied. The Court also directed the Prosecuting Attorney's Office to build a "Chinese Wall" around Assistant Prosecuting Attorney George Sitler, Esq. who was originally appointed to the case in 2003. The Court reaffirmed' all of its rulings from May 17, 2004. On November 15,2005, Gregory Ayers, Esq. with the Appellate Division ofthe ;K..an.awha : County Public Defender's Office, was appointed as new appellate counsel in the matter. On December 30, 2005, the Petitioner, by Wendy A. Campbell, Esq. with the Appellate Division of the Kanawha County Public Defender's Office, requested an extension of the deadline for filing the Petition for APPeal from January. 19, 2006, to March 19, 2006, pursuant to W.Va.. Code 58-5-4. This Motion was granted by the Court on January 3,2006. Ms. Campbell left the Kanawha County Public Defender's office on February 1,2006, for new employment. According to the Public Defender's Office, the office was unable to find an attorney to replace . . Ms. Campbell until around April 2006. A Motion to Re-sentence the Petitioner was filed April 10, 2006, by new counsel Paula Cunningham, Esq. with the Kanawha County Public Defender'S 7 office. This motion was granted on April 12, 2006, for the purpose of allowing the Petitioner the opportunity to file a Petition for, Appeal. On AuguSt 11, 2006, an additional extension was granted, giving the Petitioner additional time to file an appeal. Ms: Cunningham, due to health issues and a heavy caseload, was unable to complete the Petitioner's appeal. No further action was taken until August 25,2008, when the Petitioner filed a Motion for Ruling on Petitioner's Pro Se Motion for a New Trial and to Re-sentence Defendant for Purposes of Appeal, prepared and filed by Gregory Ayers, Esq., with the Public, Defender's office, who had apparently reassumed Mr. Belcher's case. At the hearing on the aforementioned Motion held on September 3, 2008, the Court denied Petitioner's Motion for a New Trial and resentenced the Petitioner for the purposes of appeal. F. Appeal to the West Virginia Supreme Court of Appeals On October 6, 2008, Mr. Belcher, through.Mr. Ayers, gave notice of intent to appeal his , conviction and'sentence to the West Virginia Supreme Court ofAppeals. . . . A Petition for Appeal raising the issue of ineffective assistance of counsel in regard to the lack of intoxication instruction was filed in late 2008, and was acknowledged by the Court on January 14, 2009. The issue raised on appeal was: . MR. BELCHER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS DEFENSE COUNSEL FAILED TO ARGUE HIS INTOXICATION NEGATED PRE1vffiDITATION AND REJECTED THE TRIAL COLlRT'S PROPOSED JURy INSTRUCTION ON INTOXICATION, RESULTING IN THE JURy NOT BEING INSTRUCTED UPON, AND THUS UNABLE TO CONSIDER, HIS Ol'aY VIABLE THEORY OF DEFENSE. The Petition was refused without opinion on March 12, 2009. 8 ll.· THE PETITIONER'S PETITION FOR WRIT OF HABEAS CORPUS AD SUBJICIENDUM UNDER W.VA. CODE 53-4A-IIPETITIONER'S AMENDED PErmONS FOR WRIT OF HABEAS CORPUSILOSH CHECKLISTIRESPONSES TO AMENDED PETITIONS FOR WRIT OF HABEAS CORPUS THE PETITION'S PETITION UNDER W.Va. Code 53-4A-l FOR POST CONVICTION HABEAS CORPUS On June 22, 2009, William David Belcher,pro se, filed his Petition for Writ ofHabeas Corpus Ad Subjiciendum in the Circuit Court ofMercer County.3 The following grounds were raised in . the Petition: 1.. TIm DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL WHEN: a. Counsel Failed to Put Forth Any Defense At Trial Such As Unconsciousness (Automatism), Diminished Capacity or Voluntary Intoxication. 'b. Counsel Failed to Utilize Investigative Information Gathered By Previously Appointed Counsel As Evidence And Testimony At Trial Which Would Have Established A Complete Defense To The Charges And Resulted In A Different Verdict By The Jury. c. Counsel Failed To Argue Intoxication Negated Premeditation And Rejected The Trial Court's Proposed Jury Instruction On Intoxication, Resulting In The Jury Not Being Instructed Upon, And Thus Una~le To Consider, His Only Viable Theory OfDefense. cL Counsel Requested a Bifurcated Trial Which Deprived The Petitioner His Constitutional Right To Set Forth His Only Defense During The Guilt Phase Of The Proceeding. e. Counsel Failed To Object To the State's Key Investigatfug Officer Acting As The Court Bailiff During Deliberations By The Jury, Thus Depriving Him A Fair And Impartial Trial. f. Counsel Failed To Challenge For Cause Certain Jurors Who Had Intimate Knowledge Of The Facts Of the Case And Who lived On Pisgah Road And were Otherwise Disqualified To Serve. g. Counsel Failed To Request a Change ofvenure [sic] or Venue Based On The Extensive Pre-Trial Publicity. h. Post Trial Counsel Failed To Develop The Factual Allegations Made in The Pro Se Motion For New Trial Prior To Filing The Direct Appeal To The West Virginia Supreme Court. 3The Habeas Corpus Petition repeated the assertions made in the Defendant's Pro Se Motion for aNew Trial. . 9 2. THE BIFURCATED TRIAL PROCEEDINGS WERE CONSTITUTIONALLY DIFICIENT [sic] AND DENIED TIlE DEFENDANT HIS STATIITORY RIGHT TO A UNITARY TRIAL. 3.. THE PRE-TRIAL PSYCHOLOGICAL EVALUATIONS' OF THE DEFENDANT'S :MENTAL STATE ARE INVALID BASED UPON THE LACK OF lNFORAMTION [sic] AVALIABLE· [sic] TO THE EXA111NERS ,REGARDING TIffi DEFENDANT'S NU1Y.IEROUS HEAD INJURIES AND CONSUlVLPTION OF l\.1IND ALTERING DRUGS AT TIlE TIME OF THE OFFENSE. Requested Relief The Petitioner requested an evidentiary hearing upon the factual issues raised within the PetitiOIi. The Respondenes Response The State did not respond to the initial Petition for Writ of Habeas Corpus. THE AMENDED PETITION The Court appointed Derrick W. Lefler, Esq., ~ counsel for Petitioner, to assist him in this proceeding. In his Amended Petition for Writ of Habeas Corpus filed January 20, 2010, by counsel Derrick W. Lefler, Esq. Mr. Belcher asserted the following grounds for relief: 1. Petitioner was denied effective assistance of counsel at trial in the following respects: a) Trial counsel .failed to assert available defenses supported by the evidence, of unconsciousness, "automatism," diminished capacity or involuntary intoxication. b) Counsel's request of a bifurcated trial deprived petitioner ofhis constitutional right to a unitary trial and deprived petitioner ofaccess to hi:? viable defense in the guilt phase ofthe bifurcated trial. i c) Counsel failed to object to the State's investigating officer acting as the court bailiff during deliberations. 10 I I d) Trial counsel failed to challenge for cause jurors who improperly served and should have been disqualified based upon their intimate knowledge of facts of the case and residence in proximity to the crime scene. 2. Post trial counsel failed to develop and present factual allegations before the circuit court in support of petitioner's pro se motion for new trial. 3. The bifurcated trial proceeding denied the defendant his right to a unitary trial. 4. The court permitted the State's primary investigating officer to act as court bailiff during deliberations, placing said officer in charge of the jury thus depriving petition [sic] a fair and impartial trial. Requested Relief The Petitioner requested that the Court grant him an evidentiary hearing, and that the Court reverse the conviction and order a new trial. The Respondent's Response On May 19, 2010, the State filed the "State's Response to Amended Petition and Memorandum. in Support Thereof." The Lash checklist The Lash Checklist was filed on February 10, 2010. Waived Grounds: In his Losh checklist, the Petitioner waived the following grounds for relief: Trial court lacked jurisdiction Statute under which conviction obtained was unconstitutional Indictment shows on face no offense was committed - Prejudicial pretrial pUblicity ~ Denial ofright to speedy trial - Involuntary guilty plea Mental competency at time of trial cognizable even if not asserted at proper time or if resolution not adequate Incapacity to stand trial due to drug use Language barrier to understanding the proceedings - Denial ofcounsel 11 - Uninte~ligent waiver of counsel - Failure of counsel to take an appeal Consecutive sentences for same transaction Coerced confessions Suppression ofhelpful evidence by prosecutor State's knowing use of peIjured testimony - Falsification oftranscript by Prosecutor Unfulfilled plea bargains - Information in pre-sentence report erroneous Double jeopardy - Irregularities in arrest - Excessiveness or denial of bail - No preliminary hearing - megal detention prior to arraignment - Irregularities or errors in arraignment Challenges to the Composition ofthe Grand jury or its Procedures - Failure to provide copy ofindictment to defendant Defects in Indictment - Improper venue -. Pre-indictment delay Refusal of continuance - Refusal to subpoena witnesse~ - Prejudicial joinder ofdefend!;ID.ts - Lack offull public hearing - Non-disclosure ofgrand jury minutes Refusal to turn over witness notes after witness has teStified Claims concerning use ofinformers to convict Constitutional errors in evidentiary rulings Claims of prejudicial statements by prosecutor Sufficiency of evidence - Acquittal of co-defendant on same charge 12 - Defendant's absence from part of the proceedings - 'Questions ofActual Guilt upon an acceptable guilty plea Severer sentence than expected - Excessive sentence - 1vfistaken advice of counsel as to parole or probation eligibility - Amount of time served on sentence, credit for time served The Petitioner asserted the following Losh grounds: - Mental competency at time of trial - Ineffective assistance ofcounsel Claim of incompetence at time of offense, as opposed to time oftrial Improper communications between prosecutor or witness andjury4 The standard called for when bifurcating a trial was not met' . . THE SECOND AMENDED PETITION On May 7, 2010, the Petitioner, by:MI. Lefler, filed his Second Amended Petition for Writ of Habeas Corp-qs. The Petitioner also filed a memorandum in support of his Second 4Although this ground was asserted in the Losh Checklist, the Petitioner withdrew this ground as lacking the factual support necessary to' substantiate this claim at the May 2010 Omnibus Habeas hearing:, :MI. Lefler: Yes, sir. I think Number 48 speaks of improper communication between the jury and a witness and we had asserted that in our petitions. My subsequent investigation into that would indicate that, and I've spoke about this to Mr. Belcher that the evidence would not substantiate that-that ground and would ask to modify the Lash list with the waiver ofthat particular issue. The Court: All right. Again, so that I understand. That's where I think Mr. Thomas was the Bailiff? . MI. Lefler: Yes, sir. The Court: And'you left and your client made an allegation that :MI. Lefler: There was some concern that - - that one ofthe officers involved in the [sic] was - - ended up serving as bailiff. And in communication vvi,th the State they provided , information that's satisfactory to verify that that was not the case. 'The Court: All right. Mr. Belcher, is that correct? Do you give that up? The Petitioner: Yes, Your Honor. S Although this ground is not in the standard Losh list, the grounds outlined in Lash are not exhaustive, but are merely illustrative. Therefore, Petitioner was able to assert this ground at the Omnibus Habeas hearing held in May, 2010. 13 Amended Petition. The Second Amended Petition basically reasserted the grounds pled in the Amended Petition. THEO~USHABEASCORPUSHEARING On May 10,2010, the Court held the Oinnibus Habeas Corpus hearing. Scott A. Ash, Esq., Assistant Prosecuting Attomey, appeared on behalf of the State. Mr. Lefler, appeared on behalf of the Petitioner, who was also present in person. Lydia Belcher, Donald Sizemore, David C. Smith, Esq., and the Petitioner testified at the omnibus hearing. Ms. Belcher, the Petitioner's former and current wife, testified that she had been married to the Petitioner, then divorced before the crime occurred. She subsequently remarried the Petitioner after his conviction. She testified that she found liquor bottles at his residence on the day of the crime. She also testified that on the day of the crime the Petitioner called her and told her that he had shot someone. Donald Sizemore, a private investigator hired by Mr. Sitler and Mr. Aboulhosn, testified about obtaining possession of various liquor bottles from Ms. Belcher which she testified to finding at the Petitioner's residence on the date of the crime. He also testified about the efforts that were made to determine how much liquor was missing from those bottles. The Petitioner testified about his physical histOlY to include injuries, the pain medication he used, his alcohol use, and what he did on the day of the crime. He also testified about his discussions with Mr. Inge about his defense attrial. . . David C. Smith, Esq. testified as an expert witness on the issue of the viability of an intoxication defense, to include offering an instruction to the jury on this defens~. (See Transcript ofOmnibus Habeas corpus hearing, pp. 25-98). 14 ID. DISCUSSION Habeas Corpus Defined Habeas Corpus' is a "suit wherein probable cause therefore being shown, a writ is issued which challenges the right ofone to hold another in custody or restraint." Sy1. Pt. 1. State ex reI. Crupe v. Yardley. 213 W.Va. 335, 582 S.E.2d 782 (2003).6 The issue presented in a Habeas Corpus proceeding is ''whether he is restrained of his liberty by due process oflaw." Id at SyI. Pt. 2. "A Habeas Corpus petition is not a substitute for writ of error1 in that ordinary trial error not involving constitutional violations will not be reviewed." Id. at Sy1. Pt. 3. The Availability of Habeas Corpus Relief In State ex reI. McCabe v. Seifen, the West Virginia Supreme Court ofAppeals delineated the circumstances under which a post-conviction Habeas Corpus hearing is available, as follows: (1) Any person convicted ofa crime and (2) Incarcerated under sentence ofimprisonment therefore who contends (3) That there was such a denial or infringement ofhis rights as to render the conviction or sentence void under the Constitution of the United States or the Constitution of this State, or both, or . '" (4) That the court was without jurisdiction to impose the sentence, or (5) That the sentence exceeds the maximum authorized by law, or (6) That the'conviction or sentence is otherwise subject to collateral attack upon any ground ,of alleged error heretofore available under the common-law or any statutory provision of this State, may without paying a filing fee, file a petition for a writ of Habeas Corpus ad subjiciendum, and prosecute the same, seeking release from such illegal imprisonment, correction of the sentence, the setting aside of the plea, conviction and sentence, or other relief. 220 W.Va. 79, 640 S.E.2d 142 (2006); W.Va. Code 53-4A-l(a)(1967)(Repl. Vol. 2000). 6S ee also Sy. Pi 4, Click v. Click, 98 w. Va. 419, 127 S.E. 194 (1925). 1 A writ oferror is a writ issued by an appellate court to the court ofrecord where a case was tried, requiring that the record ofthe trial be sent to the appellate court for examination of alleged errors. 15 Our post conviction Habeas Corpus statute, W.Va. Code 53-4A-l et seq., "clearly contemplates that a person who has been convicted of a crime is ordinarily entitled, as a matter of right, to only one post-conviction Habeas Corpus proceeding during which he must raise all grounds for relief which are known to him or which he could, with reasonable diligence, discover." SyL Pt. 1, Gibson v. Dale, 173 W.Va. 68'1,319 S.E.2d 806 (1984). At subsequent Habeas Corpus hearings, any grounds raised at a prior Habeas Corpus hearing are considered . fully adjudicated and need not be addressed by the Court Lash v. McKenzie, 166 W.Va. 762, . 277 S.E.2d 606 (1981). Yet, some limited exceptions apply to this general rule: "(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 followin~ hearin~; grounds: (1) ineffective assistance of counsel at the omnibus Habeas Corpus (2) newly discovered evidence; (3) or, a change in the law, favorable to the applicant, which may be applied retroactively." SyL Pt. 4, Losh v. McKenzie, 166 W.Va. 762,277 S.E.2d 606 (1981).8 8 On June 16, 2006, the West Virginia Supreme Court ofAppeals held that a fourth ground for Habeas relief may exist in cases involving testimony regarding serology evidence. To summarize, the Court held as follows: Aprisoner-who was convicted betweelf 1979 and 1999 and against whom a West Virginia State Police Crime serologist, other than a serologist previously" found to have engaged in intentional misconduct, offered evidence may bring a petition for "Writ of Habeas Corpus based on the serology evidence even if the prisoner brought a prior Habeas Corpus challenge to the same serology 'evidence and the challenge was finally adjudicated. In re RenewedInvestigation olState Police Crime Laboratory, Serology Div, 633 S.E.2d 762, 219 W.Va. 408 (2006). ---,' 16 A Habeas Corpus proceeding is civil in nature. "The general standard of proof in civil cases is preponderance of the evidence." Sharon B.W. v. George B.W., 203 W.Va. 300, 303, 507 S.E.2d 401, 404 (1998). The West Virginia Supreme Court ofAppeals has articulated the way for a Circuit Court to review Habeas Corpus petitions: "Whether denying or granting a petition for a writ ofHabeas Corpus, the circuit court must make adequate findings offacts and conclusions of law relating to each contention advanced by the petitioner, and to state the grounds upon which the matter was determined." Coleman v. Painter, 215 W.ya. 592, 600 S.E.2d 304 (2004). FINAL LIST OF GROUNDS ASSERTED FORA wiUT OF HABEAS CORPUS, AND THE COURT'S RULINGS THEREON The Court has carefully reviewed all ofthe pleadings filed in this action, the'transcript of the Omnibus hearing, the Court file in the underlying criminal action, and the applicable case law. Before reviewing each factor, the Court finds that while the grounds offailure to challenge cerLainjurors for cause and failure to request a change ofvenue were raised in the pleadings they were not briefed or argued by the Petitioner or his counsel. Therefore, these grounds are forever waived. The Court believes that the key issues to resolve in this matter are: (1) Whether trial counsel was ineffective, to include whether a specific inquiry was made as to the Petitioner's mental status and potential defenses. (2) Whether post-trial counsel failed to develop and present factrial allegations before the circuit court in support ofpetitioner's pro se motion for a new trial; and (3) Whether the bifurcated trial proceeding denied the defendant his right to a unitary trial. This Court must. further determine whether the trial court made any other error in its rulings that unfairly prejudiced the Petitioner. 17 I· Accordingly. this Court now answers the following questions: PETITIONER'S CLAIM 1 (a-d): PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL IN THE FOLLOWING RESPECTS: 9 a) Trial counsel failed to assert available defenses ~upported by the evidence, of unconsciousness. "automatism," diminished capacity or involuntary intoxication. b) Counsel's request of a bifurcated trial deprived petitioner of his constitutional right to a unitru:y trial and deprived petitioner ofaccess to his viable defense in the guilt phase of the bifurcated trial. c) Counsel failed to object to the State's investigating officer acting as the court bailiff during deliberations. 10 d) Trial counsel faile~ to challenge for cause jurors who improperly served and should have been disqualified based upon their intimate knowledge of facts of the case and residence in proximity to the crime scene. (Not presented by the Petitioner, and thus abandoned.). THE PETITIONER'S ARGUMENT (a) Trial counsel failed to fully investigate and assert available defenses supported by the available .evidence, of unconsciousness; "automatism", diminished capacity, or voluntary intoxication: A~ the ~e of the offense conduct William David Belcher was prescribed Oxycontin 40 mg, 3 times per day. For several weeks prior to February 27, 2003, following a fallon ice, Mr. Belcher had been taking Oxycontin in excess of the prescribed amount. In addition, on the date of the offense 1Y.r.r. Belcher had been drinlcing liquor. Two. liquor bott1~s of Crown Royal, an· empty ''fifth'' and a pin~ bottle with approximately 113 of its cons~tute were missing, were found in his home after he shot 9The Court has merged the pro se assertions ofPetitioner into The Amended and Second Amended Petitions flIed by counsel. lOSee footnote 3, above. 18 Ms. McCoy. Mr. Belcher also has a prior history of significant head injury with loss of consciousness. and post concussion syndrome. Trial" testimony from Mr. Belcher indicated bis recollection of the events of February 27, 2003 were significantly impaired due to his consumption of Oxycontin and alcohol. Sgt. Beasley, the lead investigator in this case, testified that although Mr. Belcher did not appear to him to be under the influence when he talked to him several hours after the shooting, he did note the odor of alcohol on and about Mr. Belcher's person. Mr. Belcher's original appointed counsel, George Sitler and Omar Ab,oulhosn undertook to explore the impact of Mr. Belcher's Oxycontin and alcohol consumption on bis culpability and any potential defenses. Mr. Belcher's subsequently retained trial counsel, Wayne Inge did not significantly explore these options further. In addition, at trial, the Court was- prepared to offer an instruction relating to the defense of voluntary intoxication. Such would have instructed the jury that if it found Mr. Belcher's intoxication to be such that he was unable to form the requisite intent to commit first-degree murder, it could find him guilty of second-degree murder. However, trial counsel declined the court's instruction and specifically eschewed the d~fe~e of voluntary intoxication. Trial counsel's failure to fully explore defenses arising from Mr. Belcher's consumption or" Oxycontin and alcohol, such as unconsciousness, automatism, or diminished capacity denied him effective assistance of counsel as guaranteed in the ~ and 14th Amendments to the United States Constitution, and Article ill of the West -19 Virginia Constitution. See Stric~and v. Washington 466 U.S. 688 (1984); Syllabus Pt. 5, State v. Miller, 459 S.E. 2d 114 (W.Va. 1995). Trial counsel's failure to assert the defense of voluntary intoxication, and the refusal of the courts instruction as to voluntary intoxication denied Mr. Belcher effective assistance of counsel, as guaranteed in the ()fh and 14th Amendments to the United States Constitution, and Article III of the West Virginia Constitution. See Strickland v. Washington 466 U.S. 688 (1984); Syllabus Pt. 5:~tate v. Miller, 459 S.E. 2d 114 (W.Va~ 1995). (b) Counsel's request for a bifurcated trial deprived Petitioner of his constitutional right to a unitary trial and deprived petitioner access to his viable defenses in the guilty phase ofthe bifurcated trial: Prior to trial, trial counsel moved the court to bifurcate Mr. Belcher's trial between the issues of ~:mlpability and penalty. Trial counsel's assertion in seeking bifurcation was that there was mitigating ~vidence relevant to the penalty phase, should Mr. Belcher be convicted,· that would be inadmissible in a unitary trial. Trial counsel described such evidence as evidence of Mr. Belcher's mental-health, physical health, social/family history, employment history, evidence of lack of criminal history, evidence of his behavior while confined, and evidence of his reputation in the community. The court granted trial counsel's motion and a bifurcated trial was conducted. In the guilt phase of the case, where trial counsel did not proffer the full range of available evidence as to Mr. Belcher's consumption of Oxycontin and alcohol, and did not assert a defense of intoxication, and refused the court's instructions as to the same trial, counsel did utilize the evidence of mental health, physical health, social/family 20 history, employment history, lack of criminal history, evidence of his behavior while confined as well as bis reputation in the community. The penalty phase of the bifurcated trial presented little, if any, new or additional evidence frqm that prosecuted in the guilty phase ofthe trial. Trial coupsel's assertion that bifurcation was necessary, or even desirabI~, was erroneous. Bifurcation presented no benefit to" the defendant. In practical effect bifurcation did nothing more than deny defendant the opportunity for presenting all available defenses. A defendant is constitutionally entitled to a unitary trial. The forfeiture of that right for no benefit, calls in to question the legitimacy of trial counsel's trial strategy. See State ex reI Daniel y. Legursky, 465 S.E.2d416, 403 (W.Va. 1995) (c) Counsel failed to object to the state's investigating officer acting as the court bailiff. On the 2nd day of trial the court's bailiffwas forced to leave to care for his wife who had potentially suffered a heart "attack. The court announced the baili.:ff's departure and the need to replace the" bailiff With a sheriffs deputy, Sgt.. Beasley, th~ lead investigating officer, as temporary bailiff. Counsel for defendant did not object. The service of a key witness for the. state in a criminal trial as bailiff is a violation of a defendant's constitutional rights to due process and trial by a fat:: and impartial jmy under the f)Ib and 14th Amendments of the United States Constitution, and Article ill of the West Virginia Constitution. Syllabus Pt. 3, State v. Kelly; 451 S.E.2d 425 (W.Va. 1994). 21 (d) Trial counsel failed to challenge for cause jurors who improperly served and should have been disqualified based upon their intimate knowledge of facts of the case and residence in proximity to the crime scene. THE RESPONDENT'S ANSWER The State contends thai any defense of diminished capacity and/or voluntary intoxication would have been futile. The State points to the findings ofpsychologist Dr. David Clayman and psychiatrist Dr. John Justice to show that the possible defenses that trial counsel, Mr. Inge, had available to him would have been unhelpful to the Defendant, citing Dr. Clayman's statement of "contraindications of 'the supposed influence of Oxycontin and alcohol' at page 16 of his report and Dr. Justice notes test scores 'highly suggestive of malingering' at page 12 of his report." The State contends that "even if a greater emphasis would have been made ofthe diminished capacity defense, any new and more accommodating expert wouid have been subject·to impeachment from the reports in the State's and the Court's files. The State points out the fact that trial counsel, Mr. Inge, did speak with the Petitioner and did interview witnesses. The issue of intoxication was discussed and testimony of drinking and prescription drug 'use was elicited from the Petitioner at trial. This, the State contends, shows that ''trial counsel had not failed to investigate the defense." The State argues that the decision not to pursue the defense was not an omission or failure to consider, instead it was a tactical or strategic decision. Thus, the State argues, trial counsel was not unreasonable in attempting a strategy that did not include voluntary intoxication ~ a defense. 22 Trial counsel was faced with an almost impossible task: early psychological and psychiatric examination gave lie to a diminished capacity or voluntary intoxication defense. The police who interviewed Petitioner shortly after the shooting described him as "not intoxicated." Even if the evidence of intoxication were more convincing, juries are assumed not to like it. Even Petitioner's expert wiiness David Smith, Esq., readily conceded that requesting the intoxication instruction would not equate to a reason probability of different outcome. Petitioner must show that reasonable probability before he would be entitled to any relief. Strickland v. Washington, 466 U.S.668, 104 L.Ed2d 674 (1984); State v. Miller, supra. A review of Petitioner's testimony at trial does not establish intoxication. His memory is very good (two cars in the driveway; wooden door open but screen door closed; rang the door bell 4 or' 5 times;' specific questions ask by the victim; specific curse words the victim directed at him) except when inconvenient,questions are ask (sic). Petitioner wanted to use"mitigating ~'facts" about the shooting to advance his defense and there "was nobody" else" who "CoUld testify as to them. Severe intoxication would have impeach;d Petitioner's own testimony and there would be no Wiiness who could support a claim of "sudden provocation'" and left no reason for the jury to consider voluntary manslaughter. Eschewing an intoxication defense to further a claim for voluntary inanslaugb.t~r may, in hindsight, be a "bridge too far", but it was a strategic decision and not out of the realm of what might be chosen by a reasonably qualified defense attorney faced with the same dismal set offacts. 23 ! CLAIM 1: FINDINGS OF FACT AND CONCLUSIONS OF LAW: The Court now IIJ.Bkes the following specific findings of fact and conclusions of law regarding 91aim 1: I) The Court finds that the Petitioner's trial strategy was to further a claim of voluntary manslaughter by having the Petitioner testify that he was provoked by the victim. 2) The Court finds that trial counsel was faced with a serious dilemma, namely, how to address the following issues: (a) The fact that the Petitioner had a domestic violence order .against him concerning the victim that was still in place at the time of the shooting (See Trial Transcript ofApril 7, 2004 at pp. 4-9),' (b) The fact that the Petitoner drove from his home in McDowell County to the victim's home in Princeton on the day of the shooting (See Trial Transcript ofApril 7, 2004 c:tp. 242),' (c) The fact that he made an incriininating statement to Sergeant Paul Hill of the Princeton Police Department while being transported to the Princeton City Jail after he .turned himself in on the day of the crime (See Trial Transcript ofApril 6, 2004 at p. 74); (d) The fact that the Petitioner puShed the victim to the ground, which caused her to strike her head and become dazed (See Trial Transcript ofApril 7, 2004 at p. 43); (e) 'The fact that the Petitioner admitted pushing the victim to the floor, and shooting her at least twice while she was on 24 the ground (See State's Exhibit 20, Statement ofPetitioner, introduced at Trial on'April6, 2004); (f) The fact that the Petitioner did not appear to be under any influence of alcohol or other controlled substance to Detective Beasley after the shooting (See Trial Transcript ofApril 6, 2004 atp. 128); (g) The fact that the victim's daughter testified that the Petitioner proclaimed "1 come' up to kill you" at the victim's home on the day of the murder '(See Trial TransCript ofApril 7, 2004 at p. 41); (h) The fact that the Petitioner checked the victim's phone on the day of the shooting to see if she had spol<:en with her ex-husband (See Trial Transcript ofApril 7, 2004 at p. 42); (i) The fact that the Petitioner told the victim's daughter that he would kill her first and make the victim watch (See Trial Transcript ofApril 7, 2004 at p. 42); G) The fact that the Petitioner remembered at least some details of the incident, which would tend to negate that he was so severely intoxicated or mcapacitated at the time of the offense as to be able to form the requisite intent (See , Trial Transcript ofApril 7, 2004 atpp. 204-210); (k) The fact that the Petitioner admitted that he shot the victim (See Trial Transcript ofApril 7, 2004 atpp. i58-9),' 0) The fact that the Petitioner called his ex-wife just after the crime and admitted shooting someone (See Trial Transcript ofApril 7, 2004 atp. 123). 25 3) The Court finds that ~e West Virginia Suprem~ Court of Appeals has stated that the test to be applied in. determining whether counsel was effective is found in State v. Miller, specifically: [i]n the West Virginia'courts, claims of ineffective assistance of counsel are to be governed by the two pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984): (1) counsel's performance was deficient under an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's unprofessional errors; the results of the proceeding would have been different. State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995), SyI. Pt. 5. 4) The West Virginia Supreme Court ofAppeals has further held that: [w]here a counsel's perf0rn;t.ance, attacked as ineffective arises from occurrences involving strategy, tactics, and arguable courses of action, his conduct will be deemed effectively assistive of his client's. interests, unless no reasonably qualified defense attorney would have so acted in the defense of the accused. State ex. reI. Humphries v. McBride..220 W.Va.362, ,645 S.E.2d 798 (2007)' SyI. Pt. 5, in accord, SyI. Pt. 21, State v. Thomas, 157 W.Va. 640,203 S.E.2d 445 (1974). 5) Additionally, the West Virginia Supreme Court ofAppeals has held that: [i]n reviewing counsel's performance, courts must applY,.an opjective standard and determine whether, in light of all the circumstances, th~ identified acts or omissions were outside the broad range of professioD.any competent assistance while at the same tin.le refraining from engaging in hindsight or second-guessing of trial counsel's strategic decisions. Thus a reviewing court asks whether a reasOllabh;; laWyer would have acted, under the circumstances, as defense counsel acted in the case at issue. State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995) Syl. Pt.6. 26 6) On the issue of ?ompetency to stand trial, the West Virginia Supreme Court of Appeals held in State v. Milam, 159 W.Va. 691, 226 S.E.2d 433 (1976), that: No person may be subjected to trial on'a c~inal charge when, by virtue of mental incapacity, the person is unable to consult with his attorney and to assist in the preparation of his defense with a reasonable degree of rational understanding of the nature and object of the proceedings against him. Syl. Pt. 1 7) The West Virginia Supreme Court of Appeals has also held that: It is a fundamental guarantee of due process that a defendant cannot be tried or convicted for a crime while he or she is mentally incompetent. State v. Hatfield, 186 W. Va. 507, 413 S.E.2d 162 (1991), SyI. Pt. 6, Jollowing State v. Cheshire. 170 W. Va. 217, 292 S.E.2d 628 (1982). SyI. Pt. 1. 8) The West Virginia Supreme Court of Appeals has also found that: when a trial judge is made aware ,of a possible problem with defendant's competency, it is abuse of discretion to deny a motion for a psYchiatric evaluation. State v. Hatfield, supra at SyI. Pt. 2, citing SyI. Pt. 4, in part, State v. Demastus, 165 W. Va, 572, 270 S.E.2d 649 (1980). 9) As the West Virginia Supreme Court of Appeals has held in State v. Sanders, 209 W.Va. 367, 549 S.E.2d 40 (2001): ImPOltantly, since the right not to be tried while mentally incompetent is subject to neither waiver nor forfeiture, a trial court is not relieved of its objection to provide procedures sufficient to protect 27 against the trial of an incompetent defendant merely because no formal request for such has been put forward by the parties . .. In other words, a trial court has an affrrmative duty to employ adequate procedures for determining compete:Q,cy once the issue has come to the attention of the Court, whether through formal motion by. one of the parties or as· a result of information that becomes available in the cause' of criminal proceedings. In the Sanders decision, the Court confirmed its process for detennining whether a broad inquiry into a defendant's mental competency is constitUtionally required: Evidence of irrational behavior, a history of mentaJ.· i1lp.ess or·behavioral abnormalities, previous confinement for mental disturbance,. demeanor before the trial judge, psychiatric and lay testimony bearing on the issue ·of competency, and documented proof of mental disturbance are all factors which a trial judge may consider in the proper exercise of his (or her) discretion (to order an inquiry into the mental competence of a criminal defendant.) Sanders, SyI. Pt. 6, following SyI. Pt. 5, State v. Arnold, 159 W. Va. 158,219 S.E.2d 922 (1975). 10) In State v. Myers, 159 W.Va 353, 222 S.E.2d 300 (1976), the·WestVirginia Supreme Court of Appeals held that: "When a .defendant in a criminal case raises the issue of insanity, the test ofhis responsibility for his act is whether, at the time of the commission of the act, it was the result of a mental disease or defect causing the accused to lack the capacity either to appreciate the wrongfulness of Pis act or to conform his act to the requirements ofthe law, and it is error for the trial court to give an instruction on the issue of insanity which imposes a different test or which is not governed by the evidence presented in the case." 28 11) As to the burden of proof when a criminal defendant claims lack of criminal resp~msibility, the West Virginia Supreme Court ofAppeals has held that: "There exists in the trial of an accused a However, should the presumption of sanity. accused offer evidence that" he was insane; the presumption of sanity disappears and the burden of proof is one the prosecution to prove beyond reasonable doubt that the defendant was sane at the time of the offense." Sy1. Pt. 2. State v. Milam, 163 W.Va. 752,260 S.E.2d295 (1979). a 12) The Court finds that the West Virginia Supreme Court of Appeals stated on the defense of automatism in State v. HinIcle, 200 W. Va. 280, 489 S.E.2d 257 (1996) that: Unconsciousness .(or automatism) is not part of the insanity defense, but is a separate cIaim which may eliminate the voluntariness of a criminal act. The burden of proof on this issue, once raised by the defense. remains on the State to pJ;ove that the act was volUntary beyond a reasonable doubt. (syl. p. 2) An "instruction on the defense 6f unconsciousness is required when ·there is reasonable evidence that the defendant was unconscious at the time of the commission ofthe crime. (syl p. 3) __." .... 13) The Court fuicJg that the West Virginia Supreme Court of Appeals 'held on the issue of diminished capacity in State v. Joseph, 214 W. Va 525, 590 S.E.2d 718.(2003) that: The diminished capacity defense is available in West Virginia to permit a defendant to introduce eXpert testimony regarding a mental disease or defect that rendered the defendant incapable, at the time the crime was committed, of forming a mental state that is an element of the crime charged. This defense is asserted ordinarily w~en the offense 29 charged is a crime for which there is a lesser included qffense. This is so because the successful use of this defense renders the defendant not guilty of the particular crime charged, but does not preclude a conviction for a lesser included offense. (syl. p. 3) 14) The Court finds that the West Virginia Supreme Court has addressed the issue of intoxication in State v. Keeton. 166 W. Va. 77,272 S.E2d 817 (1980): VollIDtary drunkenness is generally never an excuse for a crime, but where a defendant is charged with murder, and it appears that the defendant was too drunk to be capable of deliberating and premeditating, in that instance intoxication may reduce murder in the first degree to murder in the. second degree, as long as the specific intent did not antedate the intoxication. (syI. p. 2) Intoxication to reduce an unlawful homicide from murder in the first degree, must be such as to render the accused incapable offorming an intent to kill, or of acting with malice, premeditation or deliberation. syl. pt. 3, citing SyI. Pt. 4, State v. Burdette, 135 W. Va. 312,63 S.E.2d 69 (1950). Where there is evidence in a murder case to support the defendant's theory that his intoxication at the time of the c~e was such that he was Unable to formulate the requisite intent to kill, it error for the trial court to refuse to give a proper instruction presenting such a theory when requested to so. (sy!. pt 4) is 15) The Court finds that Mr. Aboulhosn and Mr. Sitler sent the Petitioner for an evaluation on the issue of his competency to stand trial and on the issue of criminal responsibility by John Justice, M.D. 16) The Court finds that the State of West Virginia had the Petitioner evaluated by David Clayman, Ph.D. on the same ISsues. 30 17) The Court finds that Dr. Clayman made the . following findings in his report: (a) That he thoroughly reviewed numerous accounts of the Petitioner's medical history. (See Process Strategies Report, "Documents Reviewed"at pp 1-2) (b) That he was aware of Mr. Belcher's claim of excessive use of oxycontiIi. (See Report·at p. 5; and that it played a part in "the instant offense." See Report at p. 7) (c) That the Petitioner claimed that he ha:cl "no recall of the events leading up to the shooting.. 'Don't even' remember leaving n;ty hour or driving my truck. Most of the memories are of the next moming when a big black man tried to get me a cigarette...that's when I came to the realization.' He went on to claim, 'What I know is what guys in jail told me...that I hurt somebody...told me it was Bernadette. '" (See Report at p. 8) (d) That the Petitioner claimed to have been drinking and had no memory of the events. (See Report at p. 9) (e) That "in spite of his claims of intellectual deficits and memory problems, Mr. Belcher was able to give a cogent recounting of his background history in great d~tail." (S~~... Report at p. 14) . {f) That the Petitioner contended that has no recollection of the events and blames his actions on the combined use of oxycontin and alcohol. (See Report at p. 14) (g) That Dr. Clayman was very aware of the Petitioner's claims of chronic pain from injuries sustairied on the job. (See Report at p.14) (h) That "after· leaving the residence, Mr. Belcher apparently made a call to 911 stating that he had shot someone. 'After the 31 defendant was read his rights, the defendant admitted to shooting Bernadette McCoy.' Such behavi!lr clearly indicates his understanding that he had committed a crime. This is further contradiction of the supposed influence of oxycontin and alcohol." .(See Report at p. 16) 18) The Court finds tha:t Dr. Justice made the following findings in his report: (a) That Dr. Justice reviewed numerous records of the Petitioner. including those of Dr. Faheem ( his psychiatrist for 6 years), medical records of Southern Regional Jail, approximately 8 inches of medical .records regarding the Petitioner's worker's compensation injury, . Wythe Associates Medical Records, Records of Raleigh General Hospital, Records of Adnan Silk, M.D., and Prescription records of the defendant from 7/8/~9 through 2/4/03,u (See Psychiatric Services Report at pp. 2-14) (b) That Dr. Justice was specifically aware of the Petitioner's claim of overuse of oxycontin at the time of the crime. (See Report at p. 7/ (c) J:hat the Petitioner called the crime "an accident." (See Report at p. 8) (d) That the Petitioner told Dr. Justice the ... '.-- following: ~ " 'I never went for it, the accident happened before I could, they are still up there.' Regarding the defendant's account of the alleged crime, he stated, 'I don't know, I was at home in my house cooking, I don't remember leaving my house nothing about this I remember, the llDr. Justice could not obtain the records ofWelch Emergency Hospital. The Court has reviewed the records introduced by the Petitioner ofthe Omnibus hear:4:tg and makes findings concerning them below. 32 only thing that I can tell you is the following morning a colored man offered me a cigarette - I though it was a dream, a bad dream. The only thing I ca.:o. tell you is what people told me, Lydia told me I was rmming around looking for a' cop, I told her I was looking for one as I think I had done something wrong - she told me to call 911 - that's what she told me - she said that I called her at work.' He stated, 'Yes, I was drinking but I don't get drun.k, I had went to the store and bought cigarettes - I thinl<: I went home, drank some whiskey, that's alI I know, I only remember taking a drink.' ~' (See Report at pp. 8-9) (e) That the Petitioner also told Dr. Justice that "I took extra oxy'connn for a couple of days -maybe a total offive."ySee Reportatp. 9) (f) That the Petitioner's M~FAST test was "hlghly suggestive ofan attempt to malinger psychopathology. On this test, he endorsed extreme symptoms, rare combinations, of symptoms, and reported difficulties that were inconsistent with. his observed behavior. ,The relevance of the defendant's results on. this test indicates, that hls subj ective presentation cannot simply be taken at face value. He is likely to endorse symptoms above and beyopd that which he is experiepcing (noting thai he is suffering from .clinical depression and generalized anxiety) for secondary gain purposes." (See Report at p. 12) (g) That Dr. Justice found that: It is my professional opinion, with reasonable medical certainty, that the defendant was not legally insane at the time of the alleged crime. The defendant did not suffer from a mental disease or defect to extent that he lacked substantial capacity to 33 appreciate the criminality (wrongfulness of his conduct) or to conform his conduct to the requirements of the law. Specifically, Mr. Belcher was not receiving nor on psychiatric medication on or around the time of the allege(i crime. During initial evaluation at the Southern Regional Jail he did not believe that he required psychiatric medication nor express thoughts, feelings or behaviors reflective of acute psychiatric impairment. It is well understood that voluntary ingestion of alcohol or excessive narcotic medication abuse or intoxication does not preclude criminal nor . express responsibility. There is no evidence within the sources of information of thoughts, feelings, or behaviors indicative of a psychiatric illness, disease, or defect ·that would have precluded his understanding of VVIOngfulness or his ability- to control his behavior to the requirements. of the law at the time of alleged crime. In :tact, witness statements of the victim's daughter indicate progressive behavior, actions, and threats that are inconsistent with an irresistible impulse and that indicate probable jealousy and the presence of rage or anger. This may be relevant with regard to accompanying a "heat of passion" mental health consideration particularly with regard to disinhibition by voluntary alcohol and narcotic intoxication and lack of reported violence history; however, this favors lack of insanity and rather criminal responsibility for the defendant's behavior. Mr. Belcher .further demonstrated knowledge of wrongfulness as .. I i evidenced by the phone call to IDS ex-wife and subsequently calling 911 to report the alleged crime. The statements of Lydia Belcher indicate that the defendant initially recalled his behavior on or around the time of the alleged crime. There is further indication as discussed by the defendant that :Mr. Belcher believed that the petition or restraining order obtained by the Victim may have been for the P1ll1'ose of controlling his financial resources. (See Report at pp. 14-15) (1) That Dr. Justice also opined that: Infonnation that may assist the Trier of fact includes the potential that voluntary intoxication of alcohol and/or narcotics may have disinhibited Mr. Belcher, reflected in hostility, rage, and poor judgment on or around the time of the alleged crime. It is unlikely, in my professional opinion, that he was in a state of amnesia at the time of the alleged crime, and his allegations of selective memory loss (on or around the time of the alleged crime) are inconsistent with a known medical or psychiatric condition to explain such phenomenon. (See Report at p.16) 19) The Court finds that the Welch Emergency Hospital records introduced by the Petitioner at the Omnibus hearing showthat on September 23, 2002, the 'Petitioner went to the emergency room, stating that he had taken two (2) oxycontin pills in the morning and several on the previous night, that he denied suicidal ideation, and that he was discharged as .stable. (See Welch Emergency Hospital records, admitted as Petitioner's Exhibit 2 at Omnibus Habeas Corpus hearing ofMay 10, ·2010). 20) The Court finds that these records also reflect that he was overheard telling a visitor he tried this morning and got caught, but that upon specific inquiry by Dr. Leo hff 35 denied wanting 2). to :harm himself. (See Petitioner's Exhibit 21) The Court finds that each examiner found the Petitioner to be competent to stand trial and criminally respo:qsible, and that the defenses suggested by the Petitioner did not have merit. 22) Therefore, the Court fmds and concludes that Petitioner's Claim 1 (a-d) is wi~~out merit. PETmONER'S CLAIM 2: POST TRIAL COUNSEL FAILED TO DEVELOP AND PRESENT FACTUAL ALLEGATIONS BEFORE THE CIRCUIT COURT IN SUPPORT OF PETITIONER'S PRO SE MOTION FOR ANEW TRIAL THE PETmONER'S ARGUMENT Following the trial or'this matter, and trial counsel's post-trial motions, William David Belcher filed an expanded pro se monon for a new trial along with an extensive memorandum in support of such motion. Following the filing of the pro se Motion for New Trial, appellate counsel was appointed. In. addition, the court scheduled a hearing on Mr. Belcher~s pro se motion. Such hearing was aD. opportunity for new counsel to present eVidence in order to develop the record as to, the substance of those matters asserted 'in the pro se motion for a new trial, and subsequently assert such issUes' on appeal, ~specially those relating to ineffective assi~tance of counsel and the utilization of defense witnesses as the-court bailiff would have been appropriate appeal issues with sufficient factual development.' However, subsequent counsel failed to undertake such factual development. THE RESPONDENT'S RESPONSE The State did not specifically address this ground in its response. 36 CLAIM 2: FINDINGS OF FACT AND CONCLUSION OF LAW The Court now makes the following findings of fact and conclusions of law regarding Claim 2: 1) The Court finds that the Petitioner's pro se motion for a new trial is basically a '!eassertion of the matters raised in this habeas corpus proce,eding. 2) The Court finds that the Petitioner has abandoned his assertions ,concerning the primary investigating officer serving as the bailiff for a portion ofthis trial. (See Claim 4, below). 3) The Court finds that the other grounds in such motion are addressed in the discussion of Claims 1 and 3, above and below. 4) The Court finds that there are no additional facts which would give rise to granting the Petitioner a new trial based on these grounds. 5) The Court finds and concludes that the matters raised in Claim 2 are without merit. PETITIONER'S CLAIM 3: THE BIFURCAlED TRIA.L PROCEEDING DENIED THE DEFENDANT IDS RIGHT TO A UNITARY TRIAL THE PETITIONER'S ARGUMENT Bifurcated Trial Denied Defendant a Unitmy Trial A criminal defendant has a constitutional right to the unitary trial provided under West Virginia'Code §2-3-15. The court's bifurcation of Petitioner's trial denied that right. As stated previously. Petitioner avers trial counsel's reqgest for bifurcation constituted ineffective assistance of counsel. However, when presented with the issue, the trial court, applying the appropriate authority, should have denied trial counsel's request. 37 The West Virginia Supreme Court of Appeals set forth the appropriate test to determine the propriety of bifurcation in State v. LaRock, 470 S.E.2d 613) 634 (W.Va. 1996). LaRock set forth a six part test for determining the propriety of bifurcation. In making the determinations to bifurcation the court did not apply the test called for by LaRock, and as a result failed to recognize that defense counsel's motion, did not begin to satisfy the requirements for bifurcation. Most prominently trial counsel failed to explain or exhibit the manner in which Mr. Belcher would have been prejudiced by a unitary trial. Under any circumstances, the significant of shifting of the trial process must require strict compliance with the law allowing such a shift. Additionally, Petitioner asserts a more fundamental and significant challenge to the bifurcation of his trial. The recent West Virginia Supreme Court decision in State v. McLaughlin, 2010 WL 2346249 (W.Va. June 8, 2010) notwithstanding, Petitioner asserts that he is entitled to a unitary trial and that the bifurcated proceeding permitted by the court was inherently prejudicial to petitioner and denied him his right to a fair trial as guaranteed by the West Virginia and United States constitutions. This issue was pointedly: addressed by Justice Ketchum in his dissent in McLaughlin, in which he noted that With a b~furcated proceeding a defendant such as :Mr. Belcher is denied the protections of a unitary trial envisioned under W.Va. Code §6~-3-15. My practical experience taught me that one Juror could shift the verdict from a lifetime-in-prison murder verdict, to a verdict of 38 murder with mercy where the defendant had a shot at release in the future "Under a bifurcated system, where separate juries are adjudicating guilt and the penalty, that leverage by the defendant is largely lost. The second, penalty-phase jury begins knows the defendant is guilty of murder, and the only question they must unahlmously resolve is whether the defendant is entitled to mercy. The defendant begins this second phase essentially judicially .stripped of his or her constitutional "benefit of the doubt" , which is exactly the opposite of what is supposed to occur under W.Va. Codes §62-3-15 McLaughlin, 2010 WL 2346249 at page 12-13. The right to a fair trial, guaranteed to state criminal defendants by the Due Process Clause of the Fourteenth Amendment, imposes on States certain duties consistent with theirsover~ign obiigation to sec~e "that 'justice shall "be done'" in all criminal prosecutions. United States v. Agyrs, 421 U.S. 97, 111, 96 S.Ct. 2392,49 L.Ed2d 3~2 (1976) (quoting Berger v. UnitedS"ta;tes, 29SU.S. 78, 88,55 S.Ct. 629, 79 L.Ed2d 1314 (1935). " The denial of such a fundamental aspect of petitioner's right to a fair trial demands relief. '. THE RESPONDENT'S RESPONSE " It is clear that State Supreme Court of Appeals does not believe that criminal ciefendants have a right to a unitary trial. In the recent case of State ex reI. Dunlap v. McBride, Case No. 34808, decided march A, 20io, the High Court reviewed a matter in which the trial court had granted the State's motion for a bifurcated trial over the objection of the defense. The Court found no error. This novel question of the possible right to a unitary trial was not raised at trial or in the appeal and so should not be considered in this proceeding. Lash v. McKenzie, 277 S.E.2d 606 ('W.Va. 1981) CLAIM 3: FINDINGS OF FACT AND CONCLUSION OF LAW The Court now makes the following :fiJ;tdings of fact and conclusions. of law regarding Claim 3: , .. ' 39 1) The West· Virginia Supreme Court of Appeals first discussed bifurcation'in a criminal murder trial in State v. Bragg, 160 W.Va. 455,235 S.E.2d 466 (W.Va 1977) when it held that: (t)he right to a bifurcated trial lies within the sound discretion of the trial court. Bragg, syi. Pt. 3. '2) The West Virginia Supreme Court has also held in State v. LaRock, 196 W. Va. 294, 470 S.E.2d 613 (1996) that: Although it virtually is impossible to outline all factors that should be considered by the trial court, the court should consider when a motion for bifurcation is 'made: (a) whether limiting instructions to the jury would be effective; (b) whether a party desires to introduce evidence solely for sentencing purposes but not on the merits; (c) whether evidence would be admissible "-_ qn sentencing but would not be admissible on th~ merits or vice versa; - - (d) whether either party can demonstrate unfair prejudice or disadvantage by bifurcation; (e) whether a unitary trial would cause the parties to forego introducing relevant evidence for sentencing purpos~s; (f) whether bifurcation unreasonably would lengthen the trial. 3) In State v. Rygh, 206 W.Va. 295, 524 S.E.2d 447 (W.Va. 1999), the Supreme-Court stated that: FNl. If the jurY renders a verdict convicting a defendant of first degree murder, and recommends mercy, the _ defendant is sentenced to life imprisOIiment, but is eligible for parole consideration _ 15 years, in If mercy is not 40 recommended, the defendant is not eligible for parole. W.Va. Code, 62-3-15 (1965). In State v. LaRock, 196 W.Va 294, 470 S.E.2d 613 (1996), this Court authorized the discretionary bifurcation of a murder trial into a "guilt phase" and a "mercy phase," as a matter of trial management procedure. We also recognized that "[i]t may well be true that unitary trials are adequate and appropriate in most cases." We observe that there is nothing in LaRock that creates, merely by bifurcating a murder trial, a qualitative change in or a substantive expansion of the scope or type of evidence that the prosecution may put Olf against a defendant-as compared to that evidence that would be admissible in a unitary triaL Stated andther way, discretionary trial-management bifurcation does not itself alter or expand the scope of admissible prosecutorial evidence to include evidence that has been historically inadmissible in murder cases in this State. (Because bifurcation is a matter of trial court discretion, such an expansion could raise, inter alia, equal protection and due process issues, if one defendant were tried in a bifurcated proceeding with relaxed evidentiary limitations-as opposed to another defendant, who is . tried in a unitary proceeding. . We recognize, of course, that the evidentiary opportunities that a defendant may have in a mercy phase, as a result of bifurcation, may in turn affect . the evidentiary limitations of the prosecution in rebuttal or impeachment However, the opportunity ~or prosecution rebuttal or impeachment in a bifurcated mercy phase is not authorization for the prosecution to use unfairly prejudicial, extraneous, remote, or inflammatory evidence-even in rebuttal or impeachment See note 2 infra. We also observe that the availability of discretionary trial management bi:fuIcation in a West Virginia murder case does not mean that the body of case law that has developed in capital punishment jurisdictions around deatb.-penalty/sentencingwphase proceedings is now applicable to the trial of West Virginia murder cases. 41 We do not believe that conceptually there is any separate or distinctive "burden of proof or "burden of production" associated with the jury's mercy/no mercy determination in a bifurcated mercy phase of a murder trial, if the court in its discretion decides to bifurcate' the proceeding. In making its overall verdict, m a unitary trial or a bifurcated trial, the jury looks at all of the evidence that the defendant and the prosecution have put on-and if the jury concludes that an offense punishable by life imprisonment was committed, then the jury determines the mercy/no-mercy portion of its verdict, again based on all ofthe evidence presented to them at the time of their determination. We would anticipate that a defendant would orOinarily proceed first in any bifurcated mercy phase. We emphasize that the possibility of bifurcation of a mercy. phase is not an open door to the expansion of the ambit of evidence that the prosecution may put on against a defendant, in the absence of the defendant opening that door to pennit narrowly focused impeachment or rebuttal evidence from the prosecution. 4) The Court finds that in June 2010, the West Virginia Supreme Court of Appeals stc;ted in State v. M.cLaughlin, 226 W.Va. 229, 700 S.E.2d 289 (W.Va. 2010) that: .. . The type of evidence that is admissible in the m~rcy phase of a bifurcated first degree murder proceeding is much broader than the evidence admissible for purposes of determining a defendant's guilt or innocence. Admissible evidence necessarily encompasses evidence of the defendant's character, including evidence concerning the defendant's past, present and future, as well as evidence surrounding the nature of the crime comlnitted by the defendant that" warranted a jury finding the defendant guilty of first degree murder, so long as that evidenc<:( is found by the triai couit to be relevant under Rule 40 of the West Virginia Rules of .Evidence and not unduly prejudicial pursuant to Rule 403 of the . West Virginia Rules ofEvidence. (sy1. pt. 7) 42 5) The Court finds that the McLaughlin court also held that: In the mercy phase of a bifurcated first degree murder proceeding, the defendant will ordinarily proceed first; however, the trial court retains the inherent authority to conduct and control the " bifurcated mercy proceeding in a fair and orderly manner. (syl. pt. 8) ". 6) The" Court finqs that McLaughlin alSo. holds that: (t)he provisions of West Virginia Code §62-3-15 (2005) do not require that the jury tlia:t decides the guilt phase of a first degree murder case must also be the sam~ jury that decides the mercy phase of the case. (syl. pt. 6) 7) The Court finds that in the instant c~e, this cqurt allowed bifurcation at the request of the Petitioner, with no objection from the State. 8) The Court finds that at trial this Court advised the State that it was limited in the presentation of evidence to the restrictive bounds set by Rygh and not to the more open rule of McClaugh.J.ip.. 9) " " " The Court fujdS that.in the case at bar, the State callea the victim's daughter as its only witness during the mercy - no mercy phase. "She testified as follows; BY MR. SADLER: Q. Once again, would you please state your name. A. Courtney McCoy. Q. And Bernadette McCoy was your mother? A. Yes. Q. How old, again, was your mother when she passed " away? "'" A. Forty-s.ix. 43 I I· 1 I I Q. How old are you, Courtney? A. Nineteen. I Q. Do you have any brothers or sisters? A. Yes, one. Q. .And whaes bis name? I I A. Matthew McCoy. Q. And how old is Matthew? A. Twenty-eight. Q. And was he - - he is also Bernadette's son. Is that correct? A. Yes.. Q. Di~ your mother have any brothers. or sisters? A. One. Q. And who is that? A. Nick Harmon. Q. Did she - - so she had one brother? . . A. Yes. Q. Did ,she have ,any sisters? . A. No. Q. Is Y01.ll' mother's father living? A. No. Q. YQur mother's moth~ is, though. Is that correct? A. Yes. Q. What's her name? A. Mattie Mamo. Q. And how old - - you don't know how old yQur grandmother is? A. No.. 44 f I i j , I I I I Q. Okay. She lives here locally? A. Uh-huh, yes. Q. What type of relationship did your mother have with Mattie? I I A. A great Q. Okay. You testified previously that your mom and dad had been divorced. Is that correct? A. Yes. Q. After your mop:l and dad divorced, who raised you? A. My mom. Q. Okay. Did your dad live lQcal? A. For a little while, but then he moved to Tennessee. Q.. Okay. Now you live - - you and your mother lived together there by yourself. Is that correct? A. Yes. Q. Where do you live now? A. The same place, Pisgah Road. Q. Who do you live with? A. By myself. Q. Okay. You indicated before that your mother had worked at Welch Emergency Hospital? A. Yes. Q. She worked in the laboratory? A. Uh-huh. Q. How long had she done that? A. Fifteen, 20 years. A long time. Q. Did she go to school to learn how to do that? A. Uh.:huh. one. I mean, it was always good. always got along. 45 We I I I J\1R. SADLER: Okay. That's all of the questions I have, Your Honor. THE COURT: Any cross examination? J\1R. !NGE: No, sir. Your honor. THE COURT: Thank you. You can step down. (See Trial Transcript ofApril 8, 2004 atpp. 58-61). 10) The Petitioner testified during bifurcation as follows: BY MR. INGE: ' , Q. Could you state your name, please. A. William David Belcher. Q. Mr. Belcher, some of the things I'm going to ask your about we .touched on yesterday, and I don't . want to go into them today, because the jury can remember that. A couple ofthings I do want to go into a little bit more detail. You suffered an accident at work sometime in 1991? A. Yes, sir. Q. Anq by whom were you employed at that time? A. Charc1iff mining: Q. Speak up a little bit. ' A. ;CharcliffMiniilg. ' . Q. Okay. And prior to that, had you been employed in the coal industry? A. All my life, yeah. I started when I was 14 years old. I went to work at U. S. Steel when I was 18 years old. Q. Okay. But once from the time you started working in the c68J. industry did'you work on a regular basis except for stoppages from that point on? A. Yes, sir. Q. Okay. And at the tim~ you were injured, who much was youworldng? f " ¢ 46 " ;'.,. '., ," A. We was working seven days a week. Q. Okay. How did the a~cident happen? ' A. SHA had an endloader red tagged and the mechanics couldn't get to it and at quitting time the boss told me to bring it into the pit area. Q. Was this evening shift? A. Night shift. Q. Night s1!ift? A. Night shift. Q. Okay. A. And it had a valve bent in on it ~d I didn't know it. I was tramming the loader in and the bucket dropped all at once and drove me up 'into the top of it an4.through the winds¥eld: Q. Okay. And did you lose consciousness? A. Yes, I did. Q. Okay. And when you woke up was there anyone around? A. No, sir. Them guys had don't quit and left and didn't even know I was injured. Q. Okay. And so how did you get yourself home? A. Well I generally get from where I waS at, home within 25 minutes. I think I got home about 9 o'clock. I lost my left and stuftand it was hard for me to drive. Q. Yeah, but you got home safely? A. Yeah. Yes, I did. Q. Did you ever work again? A. No, sir. I did not Q. Okay. As far as the injuries that you suffered there, could you just briefly describe what injuries you suffered. 47 .. A. Q. Okay. And did you - - so did you suffer any injuries to your head we well? A. I was treated by Dr. Faheem. He said I had an injury. Q. Okay..As far as Dr. Faheem is concerned, who is he? A. He is a - - for anxiety, nerves. Q. He is a psychiatrist? A. r Well I had two discs in my back ruptured, and three in my neck was ruptured. Yes. Q. Okay. And how long were you under the care of Dr. Faheem? A. Ob, about six years. Q. Okay. Prior to this injury did you ever have a need to see a psychiatrist? A. Yes, but when I quit seeing him I thought I could just do it myself, you know. Q. Okay.. U1timately, how long did it take for you to have surgery, . your neck and back? on '" A. Dr. Bilk did my back surgery. Q. Dr. Silk in Becldey? A. Yes, sir. I had to wait a year before I could get my , neck surgery done. The back had to heal to keep from dropping and messing up the neck is what he said. So it was 12 months before I could get my neck fixed. Q. Okay. And as far as the neck surgery, do you have a scar there on the lower part ofyour right neck? A. Right there. I have a large scar on my hip where they took the bond to fuse my neck. Q. Were those surgeries successful? 48 A. The surgeries took away a lot of headaches and pain, but I always had pain, always had pain in my legs and back, neck, headaches in the base of the skull, back of the head. Q. Okay. And how did you deal with that pain? A. Well I started pain medication.' Q. Okay. Was this under doctor supervisi~m? A. Dr. Silk wrote me .pain medication when I was under his care, yes. Q. Okay. And you basically continued to take pain medication ever since? A. Yes. Q. Okay. Later on, I think around the year 2000, were you considering having surgery again on your neck? A. Yes, sir. I had another disc rupture in my neck, and I was seeing Dr. Kropac, and he done an MRI on it and told me it needed fixed. So I got the okay to have it done at Roanoke, but I had no way to get to Roanoke by myself or anything to have that surgery . done. So I started stronger medication. Q. And vy'hat.d.octor prescribed tb.at medication? A. Dr~ Q. Okay. And what was that medication? . A. Itwru) Oxy'/> 40,. Q. Oxycontin? A. 40 1s, yes. Q. Okay. And you began taklng that medication sometime in the year 20QO? A. Rodil.ey: Broch:rik... . Yes, I did, sir. Q. And was this medicine closely supervised? A. Yes, it was. . Q. Okay. You have to submit to drug testing from tiine to time? .. 49 A. Yes, I had to sign a contract before-I could even get medication that I wouldn't abuse it or distribute it, you know, sell it. Q. Okay. A. Yeah. Q. And you continued on that Oxycontin according to your doctor's orders all of the way up until February 27th, 2003? A. Yes. Q. Now ap. the week or so prior to Februaiy 27th, 2003, had you suffered any other physical injuries? A. Besides the ones that I had? Q. In addition to. Had you fallen? A. Yes, I did. We had the ice storm. I was going to the baSement to put - - take the ashes out and put some coal in on the fire, and had an ice storm that day, but_ the next morning is when I fell. It had rained that night and frozen, and I fell backwards across my walk: and caused me to have terrible pain in the back ofmy neck and head. Q. Okay. _iWd did you attempt to do anything there,to deal With,fu,atpain? ~' A. I stayed at hom~ about six days and took medication. ' Q. Okay. Did you take 'any more of your medication than you were supposed to? A. Yes,Tqid., " . '." . .... :'1. . Q. _ And how much more did you take? A. -r was taking two at. a time instead -of one at a time. Q. Okay. And how many days did you do that before Fepruary 27h? A. Two days. -Q. Okay. .Now I tbink in - - when we listened to the tape-recorded-s:tatement that Detective Beasley took 50 .,' ,,' from you later in the evening on February 27th, you were taIidng about what you were doing on the 27th ¢ You were eating - - or you were cooking but you weren't eating. What was that all about? A. I was just was in a stage there' that I couldn't rest and. I could not eat for pain. And every way I laid down it would hurt even worse, so I was more or less up doing a lot ,of smoking, doing a lot of smoking and t¢ng pills:, Q. Smoking cigarettes? ~: i A. . " Q. Okay.. No you . were arrested on;, you' know, probably 5:30 or6 o'Clock on~February 27tl:!" 2003~ W11ere have you been ever sinGe?:·:" .. .. ,.. A. Sir? '. Q. A ~ [:, ."':,;: Art~r: ;y~~ ··~e~~·. ~est~d. ¢... ',:'..~.: . . : \ " "'. . . . , .l : , w',:the. ';early "evening Februaly 27th, 2003, where' have since? 'you 'been ever A. I've. been in the Regional Jail. Q. Okay. During that entir~ period of time that you have been there, have you been Written up for any infractions? A. No, sir.. Q. You don't expect the quality of care that you have got in the jail and will get in the penitentiary to be as good as the quality of care you got when you were before February 27th 'now, dp you? A. Nb~ sir.. '., .. ., Q. . Okay. How soon after Y01J. got there did' you go see the medical staff at Southerri Regional Jail? A. As soon as I realized what I had to do. I hav~ never been there before. I didn't know what to do. You have to fill out a request to get stuff, and you have to fill out a medical paper b.efore you get it. And I didn't know, so I kept telling them I needed to see a , doctor. They sajd "well you have got.to - - got to ;fill a medical out," 'Y6ti klloW;"and t'had 'i{o idea 51 .. " . .. ', ' what they were talking about. It was about two weeks bef~re I g~t to see a doctor. . Q. But ultimately, you figured it out and submitted a request? A. Yes, I had a guy fill me out one. .Q. Okay. Did you re<?eive any medication? A. No, sir. I did not. Q. Okay. How long did that go? How long did you go without medication? A. I went without medication all of the way through. Q. Okay. At some point it stopped, or at some point you started getting medication? A. Yes, Advil and anxiety medication. Q. Okay. And so since that time you have been receiving treatment for your pain, and that's Advil? A. Just Advil, yes. . Q. And you have been receiving nerve medicine? . ,., A. ..; :: I":":>:'::"';' " '' Q. And basi~~ly, you see the doctor n<?w? A. ~bodi:~~~;Yikee months, I ihlnk. It cal~ 'fo~'like:a 90-day checkup. ! Q. $ .', ',. Yean. Butthe qillility of care you're receiving.now is better than it was? A. Better than nothing, yes. Q. Sure. Jail? A. Yes.· Q. You're ready to get on with the penitentiary? A. Yes. You're. ready to leave SQuthern Regional (See Trial Transcript ofApril 8, 2004 atpp. 62-71). :" ;.. i ~ > 52 11) The Court fmds that trial counsel moved to ,bifurcate the Petitioner's trial between the issi.les of culpability and penalty. Trial counsel asserted' as reason for this motion that certain mitigating evidence relevant to the penalty phase existed, and that this mitigating evidence would not be admissible at a unitary trial., The mitigating evidence, according to the trial counsel, was evidence of Mr. Belcher's mental h~alth, ph~ica1 health, social/family history, employ:Il.lent history, evidence of lack of criminal , history, evidence of his behavior while confined, and evidence of Mr. Belcher's reputatlonin the community. 12) The Court finds that the Petitioner' called three character witnesses, (See Transcript ofApril ~ 2004) testified as to his being under the influence of drugs and alcohol, (See Trial Transcript ofApril 7, 2004 at p. 235) of his behavior while confined, of his work history and injuries and of his use of oxycontin on the day ofthe crime (see above). 13) The Court finds-that trial counsel's decision to bifurcate the trial into a guilt ,ph?Se and a mercy phase was a tactical , decision, and not ,objectively unreason;:tble. 14) The Court finds that trial counsel's decision'to bifurcate the trial was not damagmg to the Petitioner, as the Petitioner , . received mercy by the jury. 15) The Court .:fi,nd~,~d concludes that in the instant'case, the . - " . Petitioner. benefited from the !uIings on evidenqe made by . " . the Court restricting the presentation of evidence by the State fri the mercy phase and accordingly it is without merit. 53 CLAIM 4: THE COURT PERMITTED THE STATE'S PRIMARY INVESTIGATING OFFICER TO ACT AS COURT BAILIFF;PLACING SAID OFFICER IN CHARGE OF THE JURy THUS DEPRIVING PETITIONER OF A FAIR AND IMPARTIAL TRIAL The Court makes the following findings of fact and conclusions of law regarding Claim 4: (1) The Court FINDS that the Petitioner waived this ground at the May 10,2010 hearing, :Mr. Lefler and the Petitioner did not assert this ground and in fact waived this ground: Yes, sir. I think Number 48 speaks of improper communication between the jury and a witness and we had asserted that in 0111" petitions. My subsequent investigation into that would indicate that,.and I'v~ spoke . about this to :Mr. BeI9her that the evidence woU1d not substantiate that-that ground and would ask to modify the Losh list with the waiver of that particular issue. The Court: All right. Again, so ,that I understand. l1mt's where I think:Mr. Thomas was the Mr. Lefler: Bailiff? Mr. Lefler: The Court: , Yes, sir.. And you l~ft and your client made an .allegation thatMr. Lefler: .'. There was some concern that - - that one of the officers involved in the [sic] was - ended up 'serving as b~liff. And in . cbmmuriication with the State they provided .information that's satisfactory to verify that that Was not the case. The Court:' All right: Mr. Belcher, is that correct? Do you give'that up? ' Yes, Your Honor Petitioner: (See Ornnibys H~aring transcript at pp 19-20). 2) Therefore, the Court finds that this ground is hereby . .. " . waived by the Petitioner and cannot be asserted at any time ,l. ¢ ¢ ...... ; . hereafter. .. ~', I IV. RULING Wherefore, for the reasons set forth in the foregoing opinion, the Court order and adjudges as follows; 1) That the Petition for Writ of Habeas Corpus sought by the Petitioner is hereby DENIED and REMOVED from the docket of this Court. 2) The Court appoints Derrick Lefler, Esq., to serve as counsel for the Petitioner should he choose to appeal this ruling. 3) The Circuit Clerk is directed to distribute a certifi~d'copy 'of'tins " Order to Derrick Lefler, Esq., at his address of 1345 Mercer Street, Princeton, West Virginia, 24740; to the Petitioner, William David Belcher at the Huttonsville Correctional Center, P~O. Box 1, Huttonsville, West Virginia, 26273; and to ScoitA. Ash, Esq., Prosecuting Attorney of Mercer County, West Virginia, at his address of 120 Scott Street, Princeton, West Virginia, 24740. Entered this the -;-R.. ICo day ofFebruary, 2011. 55

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