State ex. rel. Matthew Hubley vs. Karen Pszczolkowski (Memorandum Decision)
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STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS FILED December 7, 2020 State ex. rel. Matthew Hubley, Petitioner Below, Petitioner, EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA vs.) No. 19-0211 (Wood County 14-P-155) Karen Pszczolkowski, Superintendent, Northern Correctional Facility Respondent Below, Respondent MEMORANDUM DECISION Petitioner Matthew Hubley, by counsel Reggie R. Bailey, appeals the Circuit Court of Wood County’s February 7, 2019, order denying his amended petition for a writ of habeas corpus. Respondent Karen Pszczolkowski, Superintendent, Northern Correctional Center, by counsel Scott E. Johnson, filed a response in support of the circuit court’s order. This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure. In January of 2009, petitioner, a co-worker of N.P., was invited by N.P. to stay temporarily at N.P.’s home where N.P. lived with his girlfriend, E.S., and her two children, six year old, R.S., and two year old, B.S. (collectively “children”). 1 On the evening of his third night at N.P.’s home, petitioner was home alone with E.S. and her children, when R.S. reported to E.S. that, “[t]he guy in the living room won’t stop touching me[.]” R.S. indicated that when she was left alone with petitioner, petitioner touched her vagina and buttocks. Thereafter, E.S. took the children into her bedroom and called N.P. to return home. N.P. returned home and spoke to E.S. and R.S. Thereafter, N.P. asked petitioner to leave the home and petitioner left. Petitioner stayed at N.P.’s home for 1 Consistent with our long-standing practice in cases with sensitive facts, we use initials where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va. 254, 773 S.E.2d 20 (2015); In re Jeffrey R.L., 190 W. Va. 24, 435 S.E.2d 162 (1993); State v. Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990). 1 approximately two and one-half days. During the time petitioner resided at N.P.’s home, no other adult male (other than N.P.) stayed in the home. Over the course of his time at N.P.’s home, petitioner was left alone on multiple occasions for short periods of time with R.S. and B.S. Specifically, on the first evening petitioner was at N.P.’s home, he was left alone with the children in N.P.’s vehicle while E.S. and N.P. went into the home of N.P.’s brother. The following night, petitioner was again left alone in the vehicle with the children, so that E.S. and N.P. could speak to E.S.’s brother. Further, it was also reported that petitioner was left alone in the vehicle with the children while E.S. and N.P. went into the grocery store. Following R.S.’s report of abuse to E.S., E.S. called the police and R.S. was taken to the emergency room (“ER”) of a local hospital where she was found to have no physical injuries. After the initial examination was completed, R.S. was referred to the Child Advocacy Center at Charleston’s Women’s and Children’s Hospital for further examination. During the second examination, R.S. was interviewed by a social worker, Maureen Runyon (“Ms. Runyon”), who is “specially trained in forensic interviewing techniques” and worked in conjunction with the examining pediatrician, Dr. Joan Phillips (“Dr. Phillips”). Ms. Runyon disclosed the findings of her interview with R.S. to the investigating officer, Trooper Jason Kocher of the West Virginia State Police, which led to the arrest of petitioner. Ultimately, petitioner was charged in an eight-count indictment involving two different victims. However, at the request of petitioner, a motion to sever was granted and petitioner was tried first on the three counts of first-degree sexual abuse perpetrated against R.S. Petitioner’s jury trial began in October of 2010. R.S., E.S., Dr. Phillips, Trooper Kocher, Ms. Runyon, petitioner’s expert, and petitioner testified at trial. Outside of the presence of the jury, prior to the first trial witness being called by the State, the State requested that the victim’s advocate, Tiffany Kiger (“Ms. Kiger”), be allowed to sit in the courtroom, behind the State’s counsel, so that R.S. could see Ms. Kiger when she testified. Over petitioner’s objection, the circuit court granted the State’s request and stated: I guess I don’t see any prejudice to the defendant, because we want the victim to feel as comfortable in this courtroom as possible and to be as calm as possible, because a calm witness, regardless of whether it’s a victim or someone else, a calm witness is hopefully going to be better able to answer questions and be responsive to questions. E.S. was called as the first trial witness and testified that she never heard R.S. refer to petitioner by his proper name. Instead, R.S. called petitioner Tony. E.S. explained that a different person by the name of Tony Lewis had stayed in N.P.’s home for ten days in either June or July of 2008, but he was not in the home at the time of the 2009 incidents. E.S.’s testimony also established that when R.S. reported the abuse to her, the child pointed to the next room when E.S. asked who had done the touching. E.S. went on to explain that petitioner was in the next room, and no one other than petitioner, herself, and the two children were in the home at that time. 2 When called by the State to testify, R.S., who was only eight years old, provided minimal details of what had happened. The child testified that someone touched her private parts, which she demonstrated by pointing to an area on a drawing of a female child, but R.S. did not identify any individual as the person who touched her. R.S.’s testimony was that the touching occurred once and that a male had done it. The child’s most frequent answer to the questions posed by the State was that she could not remember. Petitioner’s trial counsel did not cross-examine the child and affirmatively indicated that he had no questions for her. Ms. Runyon was called as the State’s next witness and began by explaining her responsibilities at the Child Advocacy Center. She stated that she interviewed the child victims to determine what happened and “to get as much information and detail about that so that we can make sure that the child gets into whatever services or counseling or therapy, any kind of medical care that they need.” Ms. Runyon recalled that during her interview with R.S., the child disclosed that “[t]his guy one time we were in the car and my mommy told him to sit with us, and he touched me right there[,]” and pointed to her vagina and said, “[r]ight there and right there,” and she put her hand behind her and pointed to her bottom. R.S. further recalled, and related to Ms. Runyon, that as R.S. was sitting in the backseat of the car between petitioner and B.S., petitioner moved his hand “as if to insert it down inside her pants.” R.S. stated that “the touching didn’t feel good and that ‘[i]t kind of tickled[,]’” but that she did not laugh. When Ms. Runyon asked R.S. the name of the man who touched her, R.S. replied, “I call him Tony, but his real name isn’t Tony.” R.S. indicated that she knew the man who touched her was N.P.’s co-worker. The State next called R.S.’s treating pediatrician at Women’s and Children’s Hospital, Dr. Phillips, to testify at trial. Dr. Phillips established that there were no physical findings of abuse upon her examination of R.S., but went on to state that her diagnosis of R.S.’s sexual abuse was made by “look[ing] at the child in total. [W]e look at the child’s statements, we look at the child’s medical exam and evaluation, and then ... make a diagnosis.” The investigating officer, Trooper Kocher, was next called as a witness for the State and testified that he “mirandized” petitioner. 2 Specifically, Trooper Kocher testified that “I had already located [petitioner] and I had previously [m]irandized him anyway, and then I confronted him with some of the information that [R.S.] had alleged to both me and her mother.” Petitioner’s counsel did not object. Immediately following this statement, the circuit court stopped the proceeding and excused the jury. The court advised the State “[y]ou now have before the jury that the [petitioner] was mirandized” and recalled that this was the “third trial where such a ‘screw-up’ had occurred.” The State then advised the Court that it was attempting to elicit from Trooper Kocher why petitioner was not arrested the night he was interviewed. The court responded, “[w]ell, why don’t you use some leading questions to see if [petitioner’s trial counsel] objects.” Petitioner’s counsel did not request a mistrial or a curative instruction. The jury then returned to the courtroom, and the examination of Trooper Kocher continued. Trooper Kocher testified that he was not able to locate a person by the name of Tony who worked with petitioner, as had been described by R.S. He further testified as to information he 2 See Miranda v. Arizona, 384 U. S. 436 (1966). 3 received from his interviews with R.S. and E.S. and explained that petitioner was not arrested until Trooper Kocher received “the information R.S. related to Ms. Runyon.” Petitioner took the stand in his own defense and denied the allegations against him. After petitioner’s cross-examination, the jury left the courtroom and the judge asked petitioner if “he had presented all the evidence that he wished to present.” Petitioner responded, “I guess” and sought permission to speak with his trial counsel, which the court allowed. After the conference with his counsel, petitioner “indicated that he was not satisfied with his direct examination” and the court permitted petitioner to “retake the stand.” During his second cross-examination, after answering a direct question, petitioner pontificated that “[a]nd something that has not been explained …”, which drew an immediate objection from the State’s counsel as there was no question posed to the witness. The following exchange ensued: THE COURT: Sustained. You need to answer the question that’s asked. THE WITNESS: You asked me why I think – THE COURT: Sir! Any other questions? THE WITNESS: He asked me a question. He asked me a question. He’s saying I – THE COURT: Any other questions, Mr. [State’s attorney] STATE’S ATTORNEY: No, your honor. Ultimately, the jury found petitioner guilty of one count of first-degree sexual abuse for which he was sentenced to five to twenty-five years in prison with credit for time served. Petitioner filed a motion for a new trial arguing, in part, that the State was dilatory in failing to disclose exculpatory evidence, i.e., the existence of Tony Lewis, who had previously stayed in the home with the child. In his motion for a new trial, petitioner’s counsel advised that he chose not to object to the State’s “mirandizing” references at trial because he did not wish to bring attention to them. A hearing was held on the motion for new trial on April 7, 2011, and was subsequently denied by the court. Specifically, the court found that petitioner “had not presented any evidence as to Tony Lewis in the motion for a new trial that would otherwise contradict the trial testimony of [ E.S. and] that any claim was simply speculation.” Petitioner then filed a direct appeal before this Court and, by memorandum decision filed November 8, 2012, this Court affirmed his conviction and sentence. See State v. Matthew Jacob Hubley, No. 11-0258, 2012 WL 5471404 (W. Va. Nov. 8, 2012)(memorandum decision). Thereafter, petitioner filed a petition for a writ of habeas corpus, which was later amended with the assistance of counsel. In his petition, petitioner alleged this his trial counsel was ineffective in seven respects: 1) referencing the petitioner being mirandized in his opening statement; 2) failing to move for a mistrial when Trooper Kocher testified that petitioner had been 4 mirandized; 3) failing to cross-examine the victim, R.S.; 4) failing to call N.P.’s brother, B.P., as a trial witness; 5) failing to request a continuance upon learning of Tony Lewis; 6) failing to investigate Tony Lewis; and 7) failing to re-examine petitioner on direct testimony at trial to allow petitioner to clarify his responses. Petitioner further alleged that his appellate counsel were ineffective in failing to include a hearing transcript in the appendix for petitioner’s direct appeal and by failing to raise, as an issue on appeal, the victim’s advocate being allowed to sit in the courtroom during R.S.’s trial testimony. Additionally, petitioner argued that he was not afforded a fair trial as the trial judge was biased against him, with such bias being displayed during voir dire, during the testimony of Trooper Kocher, and during petitioner’s re-cross-examination. Petitioner also averred that his conviction was against the weight of the evidence and asserted cumulative error. An omnibus hearing was held on July 31, 2017. Petitioner and his trial counsel testified at the omnibus hearing. By order entered February 7, 2019, the circuit court denied petitioner’s amended petition for a writ of habeas corpus. In denying the petition, the court addressed, in detail, the numerous grounds on which petitioner alleged that his trial and appellate counsel were ineffective and found that none of the grounds raised by petitioner established that his counsel fell below an objective standard of professional competence or that an error, if such did occur, was sufficient to have legally prejudiced petitioner. It is from the circuit court’s February 7, 2019, order denying petitioner’s petition for a writ of habeas corpus that petitioner now appeals. “In reviewing challenges to the findings and conclusions of the circuit court in a habeas corpus action, we apply a three-prong standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard; the underlying factual findings under a clearly erroneous standard; and questions of law are subject to a de novo review.” Syllabus point 1, Mathena v. Haines, 219 W. Va. 417, 633 S.E.2d 771 (2006). Syl. Pt. 1, State ex. rel. Franklin v. McBride, 226 W. Va. 375, 701 S.E.2d 97 (2009). On appeal, petitioner asserts six assignments of error arguing that the circuit court erred in finding that petitioner’s trial and appellate counsel were not ineffective. Further, petitioner argues that his habeas counsel was ineffective in failing to call and question appellate counsel regarding their preparation and argument before this Court and in failing to produce the audio recording at trial to demonstrate the trial judge’s tone and attitude in “cutting” petitioner’s testimony at trial. Our review of the record supports the circuit court’s decision to deny petitioner’s amended petition for a writ of habeas corpus. Five of the six arguments advanced by petitioner were thoroughly addressed by the circuit court in its order denying petitioner habeas relief. The only assignment of error that was not addressed by the circuit court was petitioner’s argument that his habeas counsel was ineffective, which this Court declines to address. It is the general rule of this Court “that nonjurisdictional questions . . . raised for the first time on appeal, will not be considered.’ Shaffer v. Acme Limestone Co., Inc., 206 W. Va. 333, 349 n.20, 524 S.E.2d 688, 704 n.20 (1999).” Noble v. W. Va. Dep’t of Motor Vehicles, 223 W. Va. 818, 821, 679 S.E.2d 650, 653 (2009). Further, as we noted in Watts v. Ballard, 238 W. Va. 730. 735 n.7, 798 S.E.2d 856, 861 5 n.7 (2017)(quoting McNemar v. Ballard, No. 11-0606, 2012 WL 5990127, at *5 (W. Va. Nov. 30, 2012)(memorandum decision), “the preferred way of raising ineffective assistance of habeas counsel is to file a subsequent petition for a writ of habeas corpus raising the issue in the court below.” As petitioner did not address the alleged ineffectiveness of his habeas counsel below, the issue is not properly before us. As the circuit court’s order includes detailed and well-reasoned findings and conclusions as to the remaining specific assignments of error raised by petitioner on appeal and because we find no clear error or abuse of discretion in the circuit court’s order or the record before us, we hereby adopt and incorporate the circuit court’s findings and conclusions as they relate to petitioner’s assignments of error raised on appeal and direct the Clerk to attach a copy of the circuit court’s February 7, 2019, “Final Order” to this memorandum decision. 3 For the foregoing reasons, we affirm the circuit court’s February 7, 2019, denial of petitioner’s petition for writ of habeas corpus. Affirmed. ISSUED: December 7, 2020 Chief Justice Tim Armstead Justice Elizabeth D. Walker Justice Evan H. Jenkins Justice John A. Hutchison NOT PARTICIPATING: Justice Margaret L. Workman 3 Given the sensitive facts of the instant case, the February 7, 2019, order has been redacted to remove references to the identities of those involved in the case. See In re K.H., 235 W. Va. 254, 773 S.E.2d 20 (2015); In re Jeffrey R.L., 190 W. Va. 24, 435 S.E.2d 162 (1993); State v. Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990). 6
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