Barry W. v. David Ballard, Warden (Memorandum Decision)
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STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS Barry W., Petitioner Below, Petitioner FILED June 24, 2013 RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA vs) No. 12-0795 (Mercer County 10-C-294) David Ballard, Warden, Respondent Below, Respondent MEMORANDUM DECISION Petitioner Barry W.,1 by counsel Thomas J. Gillooly, appeals the circuit court s order denying his petition for writ of habeas corpus. Respondent Warden Ballard, by counsel Thomas W. Rodd, filed his response to which petitioner replied. This Court has considered the parties= briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate Procedure. Petitioner was tried in a four-day trial, beginning December 7, 2001, and the jury found him guilty of thirty-one counts of first degree sexual assault and seventy-three counts of sexual abuse by a custodian. At trial, petitioner was represented by court-appointed counsel, Susan E.F. Henderson and Thomas L. Fuda. Petitioner s wife, Jennifer W., the mother of the alleged abused children, was charged but was not tried with petitioner.2 The matters were handled as consolidated cases until trial. The children, D.H., St.H., Sh.H., and M.H., were ages ten, eight, six and four, respectively, at the time of the August 1, 2001, pre-trial hearing, approximately two years after the alleged criminal conduct. Prior to trial, the children spoke with Phyllis Hasty, a therapist. The defense filed a motion to suppress Ms. Hasty s testimony, but that motion was denied by the circuit court approximately one month prior to trial. Petitioner claimed that the indictment failed to describe conduct with sufficient specificity to give him notice of the charges, but the trial court overruled those objections. 1 Because the victims in the underlying case were minors, we follow our traditional practice in cases involving sensitive facts and use only petitioner s last initial. See State v. Edward Charles L., 183 W.Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990). 2 Jennifer W. was represented by the Office of the Public Defender and pled guilty to four counts of child neglect resulting in injury. 1 During trial, Ms. Hasty was called as the State s expert therapist. She testified about the alleged victims, although none of the victims testified. Petitioner claims that the State failed to produce and apparently destroyed letters written by petitioner, but the circuit court allowed testimony by prison informants regarding the letters contents, which included references to the alleged crimes. Petitioner states that the defense did not question or challenge the assistant prosecutor s representations about what the State did with the letters themselves. Petitioner also claims that the children had been sexually abused by their natural father before petitioner met them. After his conviction, petitioner was sentenced to imprisonment for indeterminate terms of fifteen to thirty-five years on each of the thirty-one counts of first degree sexual assault and indeterminate terms of ten to twenty years on each of the seventy-three counts of sexual abuse by a custodian. Four of the fifteen to thirty-five year counts and four of the ten to twenty year counts were ordered to run consecutively. Petitioner s trial counsel, Susan E.F. Henderson, appealed his conviction to this Court in State v. Barry W., Appeal No. 022194, which was refused by this Court. A petition for writ of habeas corpus was filed on November 30, 2005, setting forth seven grounds: 1) ineffective assistance of counsel relative to the testimony of Phyllis Hasty and Dr. George Wallace, who examined at least two of the children; 2) violation of the right of confrontation relative to the testimony of Ms. Hasty and Dr. Wallace; 3) ineffective assistance of counsel related to a portion of Ms. Hasty s testimony; 4) ineffective assistance of counsel related to defense counsel eliciting testimony regarding petitioner s prior conviction for manslaughter without a cautionary or limiting instruction; 5) ineffective assistance of counsel related to defense counsel eliciting testimony regarding Jennifer W. s conduct with the children, the termination of her parental rights, and failing to request a cautionary instruction; 6) due process related to the use of jailhouse inmates; and 7) ineffective assistance of counsel based on the failure to properly investigate or conduct discovery. That habeas petition included a Losh checklist with a number of additional grounds checked. The circuit court denied the petition on January 20, 2006, without holding a hearing. Petitioner s counsel, David C. Smith, appealed the circuit court s denial of habeas relief to this Court. This Court denied that appeal by order entered September 7, 2006. On July 17, 2006, David Smith filed another appeal of the denial of the writ of habeas corpus at Barry W. v. McBride, Appeal No. 061992. That petition was refused by this Court on September 7, 2006. On September 13, 2007, petitioner filed a federal habeas petition, No. 1:07-cv-00567 in the District Court for the Southern District of West Virginia. That action is still pending and is stayed pending the resolution of the instant action. Petitioner s current counsel, Mr. Gillooly, was appointed by Judge R. Clarke VanDervort in the federal habeas proceeding. Judge VanDervort stayed the federal habeas action to allow petitioner to exhaust all of his grounds for habeas relief. When petitioner filed his addendum to his petition for writ of habeas corpus in the circuit court on July 13, 2010, the circuit court appointed Mr. Gillooly to represent petitioner in this matter. A status hearing was held on July 21, 2010, and an omnibus hearing was set for May 4, 2011. Following the conclusion of discovery, the circuit court conducted an evidentiary hearing 2 during which both of petitioner s trial counsel testified. Due to discovery issues, the final omnibus hearing was rescheduled for August 22, 2011. The deposition testimony of former Assistant Prosecutor, Deborah Garton, who tried the case, and State Police Sargent Melissa Clemons, the principal investigator, were admitted into evidence. The video deposition of Dr. Bobby Miller, petitioner s expert, was also received into evidence. Petitioner argued that Dr. Miller s testimony further undermined the trial testimony of the State s expert play therapist, Ms. Hasty. Following the hearing, the circuit court entered a seventy-page order denying petitioner s requested habeas relief. It is from that order that petitioner appeals. This Court reviews appeals of circuit court orders denying habeas corpus relief under the following standard: In reviewing challenges to the findings and conclusions of the circuit court in a habeas corpus action, we apply a three-prong standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard; the underlying factual findings under a clearly erroneous standard; and questions of law are subject to a de novo review. Syllabus point 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006). Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009). In his petition for appeal, petitioner asserts three assignments of error. Petitioner first asserts that the circuit court wrongly concluded that the State was not obligated to produce letters in which petitioner allegedly confessed and wrongly concluded that trial counsel were not ineffective, despite their failure to demand production of the letters and their failure to move to prevent hearsay testimony by jailhouse witnesses. The circuit court thoroughly analyzed the legal standards set forth in State v. Osakalumi, 194 W.Va. 758, 461 S.E.2d 504 (1995), and determined that it does not apply in this matter. The circuit court detailed its reasons for this finding, including the fact that the evidence destroyed in this matter was not exculpatory evidence and the letters written by petitioner were found to be exceptions to the hearsay rule because they contained admissions to his crimes. Petitioner s second assignment of error is that the circuit court wrongly failed to conclude that petitioner s trial counsel were ineffective, despite their failure to object to the admission of Ms. Hasty s opinion that petitioner was guilty and that the alleged child victims were credible. Petitioner alleges that counsel also failed to challenge the lack of foundation for other prejudicial hearsay testimony presented in the guise of expert opinion. Petitioner claims that play therapist Ms. Hasty was permitted to offer opinion testimony regarding the truthfulness of the child victims out-of-court statements. In its order, the circuit court addresses both the foundation for Ms. Hasty s testimony and petitioner s contention that Ms. Hasty testified regarding the ultimate issue. As set forth by the circuit court, the trial record showed that the two older children were taken to Ms. Hasty for therapy purposes by the foster parents when the children were acting out in inappropriate ways. Arguments were presented by the defense in support of suppressing Ms. Hasty s testimony, but the trial court denied the same. The circuit court also determined that counsel were not surprised by Ms. Hasty s testimony and were amply prepared to cross-examine her. 3 Petitioner s final assignment of error is that counsels performance was constitutionally ineffective, requiring that petitioner s conviction be vacated. In support of this argument, petitioner contends that trial counsel s failure to raise the Osakalumi issue or to properly object to Ms. Hasty s testimony amounts to ineffective assistance of counsel. Osakalumi, supra. Petitioner also argues that permitting the State to present oral testimony from prison informants regarding letters allegedly written by petitioner was tantamount to a confession by petitioner. The following standard is applied to claims concerning ineffective assistance of counsel: In 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 result of the proceedings would have been different. Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). The circuit court noted the distinction between the Osakalumi matter involving exculpatory evidence and the present proceeding where petitioner s letters were clearly incriminating. The circuit court set forth additional reasons why the Osakalumi decision does not apply. Moreover, the subject of the letters was undoubtedly a statement against petitioner s interest. Petitioner has failed to meet his burden of establishing ineffective assistance of counsel under this standard. Having reviewed the circuit court s Order entered on April 26, 2012, we hereby adopt and incorporate the circuit court s well-reasoned findings and conclusions as to the assignments of error raised in this appeal. The Clerk is directed to attach a copy of the circuit court s order to this memorandum decision. For the foregoing reasons, we affirm. Affirmed. ISSUED: June 24, 2013 CONCURRED IN BY: Chief Justice Brent D. Benjamin Justice Robin Jean Davis Justice Margaret L. Workman Justice Menis E. Ketchum Justice Allen H. Loughry II 4
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