Robert B. Joseph v. David Ballard ( 2013 )


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  •                              STATE OF WEST VIRGINIA
    SUPREME COURT OF APPEALS
    Robert B. Joseph,                                                                   FILED
    Petitioner Below, Petitioner                                                       June 7, 2013
    RORY L. PERRY II, CLERK
    SUPREME COURT OF APPEALS
    vs) No. 12-0611 (Kanawha County 06-MISC-479)                                    OF WEST VIRGINIA
    David Ballard, Warden, Mount Olive Correctional Center,
    Respondent Below, Respondent
    MEMORANDUM DECISION
    Petitioner Robert B. Joseph, by counsel Matthew A. Victor, appeals the order of the
    Circuit Court of Kanawha County, entered April 17, 2012, denying his post-conviction habeas
    corpus petition. Respondent Warden David Ballard,1 by counsel Laura Young, filed a response.
    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.
    On the night of March 28, 2001, petitioner grabbed his .22 caliber pistol and fired five
    shots into Scott Light, killing him. A jury found petitioner guilty of first degree murder. In his
    first trial, petitioner sought to assert the defense of diminished capacity resulting from a head
    injury he sustained in a motorcycle accident in 1989.2 Following an in camera hearing, the trial
    court found that petitioner’s experts failed to offer competent evidence to establish that petitioner
    lacked the mental capacity to form specific intent. Therefore, the trial court excluded this
    testimony.
    Petitioner appealed his first conviction to this Court. In State v. Joseph, 214 W.Va. 525,
    
    590 S.E.2d 718
    (2003), we held 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. 
    Id. at Syl. Pt.
    3. We noted that this defense is asserted
    ordinarily when there is a lesser included offense for the offense charged. The successful use of
    1
    Pursuant to Rule 41(c) of the Rules of Appellate Procedure, the name of the current
    warden has been substituted as the respondent in this action.
    2
    Among the serious injuries petitioner sustained in the accident was a crush injury to his
    left frontal skull.
    1
    this defense may render the defendant not guilty of the particular crime charged, but does not
    preclude a conviction for a lesser included offense. 
    Id. This Court remanded
    the case for a new
    trial.
    Upon retrial, the jury heard expert testimony regarding petitioner’s claim of diminished
    mental capacity. Defense counsel called expert witnesses, Mark Hughes, M.D., a board certified
    psychiatrist, Robert Solomon, Ph.D., a forensic psychologist, and Robert Granacher, M.D., a
    board certified medical doctor and forensic neuro-psychiatrist. The State called Ralph Smith,
    M.D., in rebuttal. Dr. Smith had performed a forensic psychiatric evaluation on the petitioner.
    Following a three day trial in August of 2004, a jury convicted petitioner of first degree murder.
    He was sentenced to life in prison with a recommendation of mercy. This Court denied
    petitioner’s direct appeal following the second jury trial.
    In December 2006, petitioner, pro se, filed a petition for post-conviction habeas corpus
    relief. The circuit court denied the petition. In March 2008, this Court reversed and remanded
    with directions to conduct an omnibus hearing. Petitioner’s appointed counsel raised nine issues
    in the amended petition for writ of habeas corpus: 1) the trial court erred by preventing petitioner
    from being examined by his expert; 2) petitioner was denied the right to a fair trial by the trial
    court allowing improper cross-examination; 3) the trial court erred by not curing the State’s
    misleading cross-examination; 4) the trial court denied him the right to present his defense by
    denying his motion to be examined by his expert; 5) insufficiency of the evidence to support a
    first degree murder conviction; 6) ineffective assistance of counsel; 7) the trial court gave an
    improper jury instruction which shifted the burden of proof to petitioner; 8) the trial court erred
    by giving a jury instruction defining “a reasonable doubt,” by permitting the prosecuting
    attorney’s self-introduction as a representative of “the citizens of Kanawha County,” and by
    differentiating between direct and circumstantial evidence; and 9) cumulative error. The circuit
    court conducted a hearing on July 20, 2011. The parties stipulated that they would submit the
    matter on the respective briefs, in lieu of witness testimony. After reviewing this matter, the
    circuit court denied the petition.
    On appeal, petitioner raises the same assignments of error as raised in the habeas corpus
    petition below. We note that 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).
    After careful consideration, this Court finds that the circuit court did not err in denying
    habeas corpus relief to petitioner. We will address the main issues raised by petitioner in this
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    appeal.3 Petitioner challenges the sufficiency of the evidence to support his conviction of first
    degree murder. Specifically, he contends that the record is replete with expert testimony refuting
    the State’s theory of premeditation. Petitioner maintains the evidence demonstrated that he
    lacked the mental capacity to form premeditation as a result of his previous head injury.
    Respondent Warden replies that substantial evidence supports petitioner’s conviction, including
    the testimony of the State’s expert witness, Dr. Smith, as well as the statements and behavior of
    petitioner at the time of the murder. We have held that,
    “[a] criminal defendant challenging the sufficiency of the evidence to support a
    conviction takes on a heavy burden. An appellate court must review all the
    evidence, whether direct or circumstantial, in the light most favorable to the
    prosecution and must credit all inferences and credibility assessments that the jury
    might have drawn in favor of the prosecution. The evidence need not be
    inconsistent with every conclusion save that of guilt so long as the jury can find
    guilt beyond a reasonable doubt. Credibility determinations are for a jury and not
    an appellate court. Finally, a jury verdict should be set aside only when the record
    contains no evidence, regardless of how it is weighed, from which the jury could
    find guilt beyond a reasonable doubt. To the extent that our prior cases are
    inconsistent, they are expressly overruled.” Syl. Pt. 3, State v. Guthrie, 194 W.Va.
    657, 
    461 S.E.2d 163
    (1995).
    Syl. Pt. 5, State v. Broughton, 196 W.Va. 281, 
    470 S.E.2d 413
    (1996).
    Upon our review, this Court finds that the evidence was sufficient to support the first
    degree murder conviction, keeping in mind that for the purpose of this analysis, all the evidence
    must be viewed in the light most favorable to the prosecution. 
    Id. At trial, witnesses
    to the
    murder testified that petitioner said “F**k you” to the victim just before he pulled the trigger five
    times. Petitioner backed his vehicle over the victim while leaving the premises. Petitioner drove
    to his parents’ home and called 911. The jury heard petitioner’s 911 call, where he advised the
    911 operator that, “I just shot Scott Light at the mouth of Eight Mile Hollow. Somebody better
    3
    We find no merit in petitioner’s contention that the trial court erred in preventing
    petitioner to be examined by his own expert, Dr. Granacher, while incarcerated. The first attempt
    at such visit occurred when Dr. Granacher appeared without notice at the South Central Regional
    Jail on the eve of the second trial, or about August 6, 2004. Jail personnel declined to permit the
    examination without a court order. On August 9, 2004, defense counsel requested that Dr.
    Granacher be permitted access to petitioner at the jail. Upon inquiry, trial counsel stated that the
    visit would change neither Dr. Granacher’s opinion nor his testimony and no additional report
    would be generated. The trial court denied such request based upon the previous ruling that
    expert opinions and the bases therefore be disclosed in advance of trial. We find that the trial
    court did not abuse its discretion in this regard. Furthermore, a habeas corpus proceeding is not a
    substitute for a writ of error. Trial error, not involving error of constitutional dimension, is not
    reviewed. See Syl. Pt. 4, State ex rel. McMannis v. Mohn, 163 W.Va. 129, 
    254 S.E.2d 805
    (1979).
    3
    get there before he dies. I just shot the son of a b*tch.” Furthermore, on the issue of mental
    capacity, Dr. Smith opined that petitioner had the mental capacity to premeditate, deliberate, and
    act intentionally. Considering this evidence, we see no compelling reason to disturb the jury’s
    finding on appeal.
    Petitioner also raises an ineffective assistance of counsel claim in this appeal. He asserts
    that counsel erred by not having petitioner personally examined by his retained expert, Dr.
    Granacher. When addressing this matter, the circuit court noted that both trial counsel and Dr.
    Granacher stated that any personal examination would do nothing to change the opinion that
    petitioner suffered from diminished capacity due to frontal lobe brain damage. Dr. Granacher
    testified regarding the clinical significance of frontal lobe brain damage and how it impairs
    planning functions. He reviewed petitioner’s medical history, including psychiatric evaluations,
    and specifically referred to petitioner’s CT brain scan which revealed frontal lobe brain damage.
    Accordingly, we find that the failure to arrange for a personal examination with Dr. Granacher
    does not rise to the level of ineffective assistance. His opinion and testimony would have been
    the same, and consequently, the result of the trial would have been the same. See Syl. Pt. 5, State
    v. Miller, 194 W.Va. 3, 
    459 S.E.2d 114
    (1995)
    For the foregoing reasons, we affirm. The circuit court’s order reflects its thorough
    analysis of the grounds raised in the petition for habeas corpus. Having reviewed the opinion
    order entered on April 17, 2012, we hereby adopt and incorporate the circuit court’s well-
    reasoned findings and conclusions as to all 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.
    Affirmed.
    ISSUED: June 7, 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
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