Mark T. Coleman v. J.T. Binion ( 2019 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2019 Term
FILED
_____________ June 10, 2019
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
No. 17-0566 OF WEST VIRGINIA
_____________
Mark T. Coleman,
Petitioner Below, Petitioner
V.
J.T. Binion, Superintendent,
Huttonsville Correctional Center,
Respondent Below, Respondent
________________________________________________
Appeal from the Circuit Court of Kanawha County
Honorable Charles E. King, Judge
Civil Action No. 14-P-583
AFFIRMED
________________________________________________
Submitted: January 9, 2019
Corrected Opinion Filed: June 10, 2019
Kevin D. Mills Patrick Morrisey, Attorney General
Shawn R. McDermott Scott E. Johnson, Assistant Attorney
Mills McDermott, PLLC General
Martinsburg, West Virginia Charleston, West Virginia
Attorneys for the Petitioner Attorneys for the Respondent
JUSTICE JENKINS delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “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).
2. “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.” Syllabus point 5, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114
(1995).
3. “In deciding ineffective . . . assistance [of counsel] claims, a court
need not address both prongs of the conjunctive standard of Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and State v. Miller, 194 W. Va. 3, 459
S.E.2d 114 (1995), but may dispose of such a claim based solely on a petitioner’s failure
i
to meet either prong of the test.” Syllabus point 5, State ex rel. Daniel v. Legursky, 195
W. Va. 314, 465 S.E.2d 416 (1995).
4. “In reviewing counsel’s performance, courts must apply an objective
standard and determine whether, in light of all the circumstances, the identified acts or
omissions were outside the broad range of professionally competent assistance while at the
same time refraining from engaging in hindsight or second-guessing of trial counsel’s
strategic decisions. Thus, a reviewing court asks whether a reasonable lawyer would have
acted, under the circumstances, as defense counsel acted in the case at issue.” Syllabus
point 6, State ex rel. Daniel v. Legursky, 195 W. Va. 314, 465 S.E.2d 416 (1995).
5. “A judgment of conviction will not be reversed because of improper
remarks made by a prosecuting attorney to a jury which do not clearly prejudice the accused
or result in manifest injustice.” Syllabus point 5, State v. Ocheltree, 170 W. Va. 68, 289
S.E.2d 742 (1982).
6. “Jury instructions are reviewed by determining whether the charge,
reviewed as a whole, sufficiently instructed the jury so they understood the issues involved
and were not misled by the law. A jury instruction cannot be dissected on appeal; instead,
the entire instruction is looked at when determining its accuracy. The trial court, therefore,
has broad discretion in formulating its charge to the jury, so long as it accurately reflects
ii
the law. Deference is given to the circuit court’s discretion concerning the specific wording
of the instruction, and the precise extent and character of any specific instruction will be
reviewed for an abuse of discretion.” Syllabus point 15, State v. Bradshaw, 193 W. Va.
519, 524, 457 S.E.2d 456, 461 (1995).
7. “‘“In a homicide trial, malice and intent may be inferred by the jury
from the defendant’s use of a deadly weapon, under circumstances which the jury does not
believe afforded the defendant excuse, justification or provocation for his conduct.
Whether premeditation and deliberation may likewise be inferred, depends upon the
circumstances of the case.” Point 2, Syllabus, State v. Bowles, 117 W. Va. 217[, 185 S.E.
205 (1936)].’ Syllabus, State v. Johnson, 142 W. Va. 284, 95 S.E.2d 409 (1956).” Syllabus
point 5, State v. Jenkins, 191 W. Va. 87, 443 S.E.2d 244 (1994).
8. “Where a counsel’s performance, 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 an accused.” Syllabus point 21, State v.
Thomas, 157 W. Va. 640, 203 S.E.2d 445 (1974).
9. “Where an offer of evidence is made under Rule 404(b) of the West
Virginia Rules of Evidence, the trial court, pursuant to Rule 104(a) of the West Virginia
iii
Rules of Evidence, is to determine its admissibility. Before admitting the evidence, the
trial court should conduct an in camera hearing as stated in State v. Dolin, 176 W. Va. 688,
347 S.E.2d 208 (1986). After hearing the evidence and arguments of counsel, the trial
court must be satisfied by a preponderance of the evidence that the acts or conduct occurred
and that the defendant committed the acts. If the trial court does not find by a
preponderance of the evidence that the acts or conduct was committed or that the defendant
was the actor, the evidence should be excluded under Rule 404(b). If a sufficient showing
has been made, the trial court must then determine the relevancy of the evidence under
Rules 401 and 402 of the West Virginia Rules of Evidence and conduct the balancing
required under Rule 403 of the West Virginia Rules of Evidence. If the trial court is then
satisfied that the Rule 404(b) evidence is admissible, it should instruct the jury on the
limited purpose for which such evidence has been admitted. A limiting instruction should
be given at the time the evidence is offered, and we recommend that it be repeated in the
trial court’s general charge to the jury at the conclusion of the evidence.” Syllabus point
3, State v. McGinnis, 193 W. Va. 147, 455 S.E.2d 516 (1994).
10. “Before a trial court can determine that evidence of collateral crimes
is admissible under one of the exceptions, an in camera hearing is necessary to allow a trial
court to carefully consider the admissibility of collateral crime evidence and to properly
balance the probative value of such evidence against its prejudicial effect.” Syllabus point
iv
3, State v. Dolin, 176 W. Va. 688, 347 S.E.2d 208 (1986), overruled on other grounds by
State v. Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990).
11. “Errors involving deprivation of constitutional rights will be regarded
as harmless only if there is no reasonable possibility that the violation contributed to the
conviction.” Syllabus point 20, State v. Thomas, 157 W. Va. 640, 203 S.E.2d 445 (1974).
12. “In a criminal case, the burden is upon the beneficiary of a
constitutional error to prove beyond a reasonable doubt that the error complained of did
not contribute to the verdict obtained.” Syllabus point 3 State v. Frazier, 229 W. Va. 724,
725, 735 S.E.2d 727, 728 (2012).
v
Jenkins, Justice:
In this case, Mark T. Coleman (“Mr. Coleman”) appeals an order of the
Circuit Court of Kanawha County denying his petition for writ of habeas corpus, which
asserted numerous grounds to support his claims of ineffective assistance of both trial and
appellate counsel.1 After reviewing the parties’ briefs, the legal authority cited, and the
record submitted for our consideration; as well has hearing the oral arguments presented,
we affirm the circuit court’s denial of Mr. Colman’s habeas petition.
I.
FACTUAL AND PROCEDURAL HISTORY
In the case underlying the instant habeas corpus proceeding, Mr. Coleman
was tried by a jury and convicted of murder in the first degree for fatally shooting his wife,
Trina Coleman (“Mrs. Coleman”). He was sentenced to life with mercy.
1
The original petition named the respondent as Marvin C. Plumley, Warden
of the Huttonsville Correctional Center (“Warden Plumley”). We note that the title
“warden” has been replaced. Effective July 1, 2018, positions formerly designated as
“warden” became designated as “superintendent.” See W. Va. Code § 15A-5-3
(LexisNexis 2014 & Supp. 2018). Moreover, during the course of these proceedings,
Warden Plumley was replaced by John T. Murphy, who served as Acting Superintendent.
Thereafter, J.T. Binion was appointed as Superintendent of Huttonsville. Accordingly,
pursuant to Rule 41 of the Rules of Appellate Procedure, Mr. Binion has been substituted
as the Respondent in this appeal.
1
The evidence presented at trial established that, on March 2, 2006, in the
course of a dispute over Mrs. Coleman’s marital fidelity, Mr. Coleman shot his wife in the
face with a rifle. Mr. Coleman never disputed that he shot his wife; thus, the primary issue
of contention during the trial was Mr. Coleman’s intent. The State presented evidence to
establish that Mr. Coleman shot his wife with the specific intent to end her life because he
believed she was having an extramarital affair, and further believed that she was conspiring
with her alleged paramour, David, to harm or kill Mr. Coleman and other members of his
family. Mr. Coleman’s counsel2 presented a defense based upon the theory that the
shooting had been accidental in that Mr. Coleman did not believe the rifle was loaded. The
defense also contended that, at the time of the shooting, Mr. Coleman was suffering from
diminished capacity due to methamphetamine psychosis and was, therefore, unable to form
the intent to commit murder.
The evidence supporting the jury verdict with respect to Mr. Coleman’s
intent included numerous letters written by Mr. Coleman accusing Mrs. Coleman of
infidelity. Some of the letters contained threats against Mrs. Coleman. Also, on the coffee
table in the room where Mrs. Coleman was shot, was a date book belonging to Mrs.
2
Mr. Coleman retained James Cagel as his trial counsel.
2
Coleman. The date book contained several entries of the name “David,” and each entry
was accompanied by a drawing of a heart.
There also was evidence of prior physical violence involving Mr. and Mrs.
Coleman, including an incident that resulted in each of them obtaining a domestic violence
protective order against the other and caused Mrs. Coleman to move out of the marital
home. The Coleman’s daughter testified to another incident that occurred within two or
three months of her mother’s death. The daughter had overheard an argument between her
parents during which Mr. Coleman, while holding a rock in his hand, threatened to kill
Mrs. Coleman. There was additional testimony from the Coleman’s daughter that Mr.
Coleman was a hunter who was knowledgeable about firearms, thus refuting Mr.
Coleman’s claim that he was mistaken about whether the murder weapon was loaded. She
further stated that Mr. Coleman stored all of his rifles, including the murder weapon,
unloaded in a gun cabinet located in the couple’s bedroom. The State also presented
testimony from a firearm examiner, Phillip Cochran, who had tested the murder weapon.
Mr. Cochran testified that the rifle was equipped with a trigger safety device that prevented
it from discharging without the trigger being pulled. Testing confirmed that the trigger
safety device on the rifle was functioning as designed, so that the weapon would not fire
without the trigger being pulled.
3
Other testimony established that Mrs. Coleman was working at a local
convenience store on the evening of her death when she received a phone call from Mr.
Coleman. After the call, Mrs. Coleman was visibly upset and informed the store manager
that she needed to go home. Shortly thereafter, while in a back room of their marital home,
Mr. Coleman shot Mrs. Coleman in the face from a close distance, estimated to be between
six and twelve inches. Mrs. Coleman sustained a massive head wound from the shot, and
also suffered a defensive wound that nearly severed one of her fingers.
With respect to Mrs. Coleman’s injuries, a State medical examiner, Dr.
Boiko, testified on behalf of the prosecution regarding his autopsy of the victim and his
resulting report. The medical examiner explained that an injury to Mrs. Coleman’s left
ring finger was a defensive wound and indicated that the bullet had first hit her finger
before entering her head through her mouth. Although the medical examiner’s report stated
that there was no gun powder residue on the victim’s left ring finger, upon viewing a picture
of the injured finger during his testimony, the medical examiner observed that there was,
in fact, gun powder soot on the finger. The presence of this soot indicated that Mrs.
Coleman’s hand had been in close proximity to the rifle’s muzzle at the time it discharged.
Thus, the medical examiner’s written report had been incorrect, but he corrected his
conclusion during his testimony. While Dr. Boiko opined that Mrs. Coleman’s finger was
in close proximity to the rifle when it was discharged, he stated that he could neither
conclude nor rule out the possibility that her finger had come into contact with the rifle.
4
Although Mr. Coleman exercised his right to not testify, during the course of
the trial, the jury nevertheless heard evidence from several sources that, following the
shooting, Mr. Coleman repeatedly claimed that the shooting was an accident. Mr. Coleman
contended that he had waived the rifle at Mrs. Coleman in an attempt to scare her and he
did not believe that it was loaded.3 During the defense case-in-chief, Mr. Coleman’s
ballistics expert opined that the presence of soot on Mrs. Coleman’s finger and the location
of bullet fragments found at the scene were consistent with a scenario where Mrs. Coleman
pushed or swatted the muzzle of the rifle causing it to discharge. The expert testified that,
if Mr. Coleman had the trigger squeezed and his thumb on the hammer, simultaneous
contact with the muzzle by Mrs. Coleman could have caused the rifle to discharge.
The jury ultimately found Mr. Coleman guilty of first-degree murder and
recommended mercy. Mr. Coleman filed post-trial motions, which were denied by the
circuit court. Mr. Coleman then appealed his conviction to this Court4 and was granted
oral presentation of the sole issue raised, i.e., the sufficiency of the evidence. This Court,
3
Mr. Coleman’s statements were admitted during the State’s case-in-chief
through the admission of an audio recording that was made at the scene and during Mr.
Colman’s transport to the sheriff’s headquarters, and a video recording of his statement
made to law enforcement after he arrived at the sheriff’s headquarters. During Mr.
Coleman’s case, testimony regarding his statements indicating the shooting was an
accident was provided by his father and his neighbor/landlord.
4
Appellate counsel was Troy Giatras.
5
by order entered on October 9, 2008, refused the petition for appeal.5 Thereafter, in
November 2014, Mr. Coleman filed a petition for writ of habeas corpus in the Circuit Court
of Kanawha County. Following an omnibus hearing, the circuit court denied the petition
by order entered on May 26, 2017. This appeal followed. Additional facts specifically
related to the assignments of error herein raised will be set out in our discussion of the
particular issues to which they pertain.
II.
STANDARD OF REVIEW
The instant appeal is before this Court from a circuit court’s denial of a
petition for a writ of habeas corpus. The proper standard for our review of such an appeal
has been set out as follows:
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). Moreover, each of
the grounds asserted by Mr. Coleman as entitling him to a writ of habeas corpus are asserted
5
The West Virginia Rules of Appellate Procedure in effect at the time of Mr.
Coleman’s appeal allowed this Court to refuse a petition for appeal. See W. Va. R. App.
Pro. 7 (as amended by order entered on June 14, 1995).
6
as a basis for his claim of ineffective assistance of counsel. In reviewing a circuit court’s
ruling as to a claim of ineffective assistance of counsel, we are mindful of the following
standard:
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). We also have clarified
that if either prong of the test is absent, ineffective assistance is not established:
In deciding ineffective . . . assistance [of counsel]
claims, a court need not address both prongs of the conjunctive
standard of Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984), and State v. Miller, 194 W. Va.
3, 459 S.E.2d 114 (1995), but may dispose of such a claim
based solely on a petitioner’s failure to meet either prong of the
test.
Syl. pt. 5, State ex rel. Daniel v. Legursky, 195 W. Va. 314, 465 S.E.2d 416 (1995).
Further,
[i]n reviewing counsel’s performance, courts must
apply an objective standard and determine whether, in light of
all the circumstances, the identified acts or omissions were
outside the broad range of professionally competent assistance
while at the same time refraining from engaging in hindsight
or second-guessing of trial counsel’s strategic decisions. Thus,
a reviewing court asks whether a reasonable lawyer would
7
have acted, under the circumstances, as defense counsel acted
in the case at issue.
Syl. pt. 6, id. Finally,
[t]he test of ineffectiveness has little or nothing to do with what
the best lawyers would have done. Nor is the test even what
most good lawyers would have done. We only ask whether a
reasonable lawyer would have acted, under the circumstances,
as defense counsel acted in the case at issue. We are not
interested in grading lawyers’ performances; we are interested
in whether the adversarial process at the time, in fact, worked
adequately.
Miller, 194 W. Va. at 16, 459 S.E.2d at 127.
We will apply the foregoing standards generally to our consideration of this
appeal. Additional standards for our review that are applicable to specific issues herein
raised will be addressed in connection with our consideration of those issues.
8
III.
DISCUSSION
Mr. Coleman raises eight separate instances of ineffective assistance of
counsel in this appeal.6 We address each one in turn.7
A. Failure to Object During Closing Arguments
Mr. Coleman first argues that his trial counsel was ineffective by failing to
object to remarks made during closing argument that Mr. Coleman characterizes as
improper comments on his right to remain silent. In addition, he claims that appellant
counsel was ineffective in failing to raise this issue in his direct appeal.
6
As a ninth assignment of error, Mr. Coleman claims that the cumulative
effect of the errors he has raised prejudiced his constitutional rights and rendered his trial
unfair. Because we find no prejudicial errors, we decline to address this issue. See State
v. Trail, 236 W. Va. 167, 188 n.31, 778 S.E.2d 616, 637 n.31 (2015) (“Because we have
found no errors, this assignment need not be addressed.”).
7
On March 11, 2019, Mr. Coleman filed a notice of additional authority
asking this court to consider the case of Garza v. Idaho, ___ U.S. ___, 139 S. Ct. 738, 203
L. Ed. 2d 77 (2019). Garza recognized, in the context of a guilty plea where the defendant
signed an appeal waiver, a presumption of prejudice where an attorney’s deficient
performance in failing to file a notice of appeal deprived the defendant of an appeal that
the defendant would otherwise have pursued. Id. Because this matter does not involve a
guilty plea or the failure of counsel to file a notice of appeal, Garza has no application.
9
During its closing, the State made the following argument with no objection
from Mr. Coleman’s trial counsel:
Now, the defense would have you believe that this was
an accident. First of all, just because the defendant has said it
was an accident, doesn’t mean that it was an accident. And
why is it not an accident? Because his explanation does not fit
the physical facts at the scene of the crime. His explanation
that he wasn’t aiming the gun, that he was standing there, that
he was merely pulling the hammer back, and that his thumb
slipped off the hammer, does not cause a discharge of the
firearm. It does not fit the physical facts of the case.
The medical examiner told you that she had her left
hand in front of her face. A defensive wound. And that she
was trying to defend herself by putting her hand in front of her
face. It is not an accident because he did not tell you that she
was attempting to defend herself. His explanation does not fit
the physical facts of this case.
(Emphasis added). Mr. Coleman’s trial counsel then presented his closing argument
wherein he referred to Exhibit 52, which was a video recording of a police interview with
Mr. Coleman. Trial counsel argued that, in the recording, Mr. Coleman waivered as to
whether he had the trigger of the riffle squeezed, ultimately conceding, according to
counsel, that he may “have had the trigger squeezed and pulled the hammer and it slipped.”
The State, during its rebuttal closing, responded to the argument posed by trial counsel as
follows:
Ladies and gentlemen, I would urge you if you’re going
to examine Exhibit 52 to watch the whole thing. It needs to be
played in its entire context. Because this defendant has made
a series of inconsistent statements, and that’s what those are,
inconsistent statements. And they are self-serving. They
10
aren’t admissions that he has done something wrong. They are
denials that he has done something wrong.
He has never stepped up during the statement to the
police and said that she had her hand up, as the medical
examiner said she must have had. He has not and did not tell
the entire story during his statement to the police
....
Every theory that they have put forward to their experts
of how the gun discharged requires you to go through an
exercise of coincidences, which, I submit to you, are unworthy
of your consideration. Because he has never described to a
single individual that he pulled that trigger. He says he may
have. “Maybe I did.” He also says, “I didn’t do it. I never
did it.” A series of inconsistent statements.
The medical examiner told you that the distance from
the muzzle of the gun to the hand was close proximity. He did
not say that it was contact. He said it was possible that it was
contact. And that is a big difference. And even if it was
contact, even if it was contact, it does not follow that the
victim, Trina Coleman, caused the gun to discharge. That is
something – that’s a leap and speculation and conjecture that
[trial counsel] wants you to do. And the Judge has told you not
to engage in conjecture and speculation.
This defendant did not tell the police that he was
attempting to render the gun safe by lowering the hammer and
squeezing the trigger. This defendant did not tell you that he
was attempting to render the gun safely when Trina Coleman
was attempting to push the gun away.
(Emphasis added).
At the omnibus hearing, Mr. Coleman’s trial counsel testified as follows regarding his
decision to not object to the foregoing comments:
11
Well, the question, when to object to that, is a delicate
one. Do you call it to the attention of the jury? Do you just go
with the instruction – and that’s – that’s the thought process I
engage in in any case, and I’m sure that was my thought
process then. And just like the other, the record says what it
says. That could be gleaned to be plain error under some, you
know, some of the authority. Other of the authority said you
read it in the context of what else was being done and instructed
and the circumstances of the case. So that can go either way.
Based upon the explanation provided by Mr. Coleman’s trial counsel, the circuit court
reasoned and concluded as follows:
75. The prosecuting attorney in closing and rebuttal
made brief and fleeing reference to what [Mr. Coleman] had
not told “you.” The court finds that argument to be regrettable,
and does not approve of those statements. However, the issue
before the court is whether or not trial counsel was ineffective
for not objecting to those remarks, and whether appellate
counsel was ineffective in failing to include those remarks as
plain error in his petition for appeal.
76. Although [Mr. Coleman’s] expert [on the
adequacy of trial counsel] opined that he couldn’t see a
strategic reason for not interposing an objection to those
portions of the argument, trial counsel did proffer a strategic
reason, and a sound one. As noted, the issue of objecting is a
delicate one. [Mr. Coleman’s] expert agreed that it was often
a sound choice to leave well enough alone. Trial counsel stated
he did not want to object because, in essence, an objection ran
the risk of emphasizing to the jury something that might
damage his client. Even had counsel objected, and asked to
approach the bench to discuss the objection in a side bar, the
remedy would have been essentially for the court to tell the jury
to disregard any remark that the prosecutor made about what
the petitioner (did) or didn’t say.
77. The court determines that it was not objectively
deficient performance for counsel to make a strategic decision
12
not to object to those remarks. Further, the court believes
that[,] had counsel objected, and the jury been instructed to
disregard—even if the prosecutor had been admonished—the
jury would still have convicted the petitioner of murder in the
first degree. Therefore, neither prong of Strickland/Miller is
satisfied.
This Court has recognized that, “[r]emarks made by the State’s attorney in
closing argument which make specific reference to the defendant’s failure to testify,
constitute reversible error and defendant is entitled to a new trial.” Syl. pt. 5, State v.
Green, 163 W. Va. 681, 260 S.E.2d 257 (1979). In other words,
“[i]t is prejudicial error in a criminal case for the
prosecutor to make statements in final argument amounting to
a comment on the failure of the defendant to testify.” Syllabus
Point 3, State v. Noe, 160 W. Va. 10, 230 S.E.2d 826 (1976),
overruled on other grounds by State v. Guthrie, 194 W. Va.
657, 461 S.E.2d 163 (1995).
Syl. pt. 4, State v. Murray, 220 W. Va. 735, 736, 649 S.E.2d 509, 510 (2007). Nevertheless,
“[a] judgment of conviction will not be reversed because of improper remarks made by a
prosecuting attorney to a jury which do not clearly prejudice the accused or result in
manifest injustice.” Syl. pt. 5, State v. Ocheltree, 170 W. Va. 68, 289 S.E.2d 742 (1982)
(emphasis added). Accord Syl. pt. 1, State v. Adkins, 209 W. Va. 212, 544 S.E.2d 914
(2001).
The comments at issue did not clearly prejudice Mr. Coleman or result in
manifest injustice. When taken in context, the prosecuting attorney’s comments regarding
13
what the defendant told or failed to tell the jury clearly were references to what Mr. Colman
had said in his recorded statements, statements that had been presented to the jury. This is
particularly true of the prosecutor’s statements made in response to Mr. Coleman’s trial
counsel’s argument encouraging the jury to consider exhibit 52, the recorded interview
with Mr. Coleman. The portion of the State’s rebuttal closing addressing exhibit 52 merely
urged the jury to consider the exhibit in full and pointed out that the recording depicted a
series of inconsistent comments made by Mr. Coleman. The State’s closing arguments
simply were not a comment on Mr. Coleman’s failure to testify.
Moreover, the jury was properly instructed that
[t]he defendant Mark Thomas Coleman, has no duty to
take the stand as a witness in his own behalf. And if he does
not do so, this is not evidence, and you should draw no
inference therefrom as to his guilt or innocence. You should
entirely disregard and not discuss it.
The jury also was instructed that,
[n]othing said or done by the attorneys who have tried
this case is to be considered by you as evidence of any fact.
The opening statements that you heard last week, and the final
arguments that you’re going to hear here in a few moments, are
intended to help you in understanding the evidence and
applying the law to the evidence but they are not themselves
evidence. And accordingly, if any arguments, statements or
remark of any of the lawyers is not based upon the evidence or
the law as stated in my instructions, then you should disregard
that statement, argument or remark.
14
Assuming arguendo that the jury might have misunderstood the arguments,
such a misunderstanding would have been cured by the instructions given, which plainly
directed the jury that no inference should be drawn from Mr. Coleman’s decision to not
testify and, further, that any comments made by counsel were not evidence, and any such
comments that were not based upon the evidence presented should be disregarded.
This Court has observed that “[e]rrors involving deprivation of constitutional
rights will be regarded as harmless only if there is no reasonable possibility that the
violation contributed to the conviction.” Syl. Pt. 20, State v. Thomas, 157 W. Va. 640, 643,
203 S.E.2d 445, 449 (1974). As set out in the facts above, there was overwhelming
evidence of Mr. Coleman’s guilt. Thus, even if error had occurred, “there was no
reasonable possibility that the violation contributed to [Mr. Coleman’s] conviction.” Id.
Accordingly, we conclude that the circuit court correctly denied habeas relief on the basis
of ineffective assistance of trial counsel arising from trial counsel’s failure to object to the
State’s comments during closing arguments. Likewise, because we find there was no error
made at trial, we conclude that the circuit court also was correct in denying habeas relief
on the ground of ineffective assistance of appellate counsel based upon appellate counsel’s
failure to raise this issue on appeal.
15
B. Permissible Inference
The jury sitting for Mr. Coleman’s criminal trial was instructed that “[i]ntent,
willfulness, deliberation, and malice may be inferred from the intentional use of a deadly
weapon under circumstances where the defendant does not have excuse, justification, or
provocation for his conduct.” (Emphasis added). In addition, during closing arguments,
the prosecuting attorney commented as follows:
Ladies and gentlemen—and I submit to you that you do not
even cock the hammer of a gun, especially one that contains
hollow-point bullets, unless you intend to fire it. And the judge
has told you that use of the firearm can be construed as
evidence he intended to fire the gun.
Mr. Coleman argues that this instruction allowing an inference on the
element of intent8 from his use of a firearm, along with the comment made by the
prosecutor referring to the inference during closing argument, improperly shifted the
burden of proof to Mr. Coleman on the issue of whether the shooting was accidental or
intentional. He claims that his trial counsel’s failure to address these issues was ineffective,
8
In State v. Jenkins, this Court explained, as follows, that the term “malice”
is often used as a substitute for “specific intent”:
We discussed the concept of malice in State v. Hatfield,
169 W. Va. 191, 198, 286 S.E.2d 402, 407 (1982), and stated
that it “is often used as a substitute for ‘specific intent [to] kill’
or ‘an intentional killing.’” Citing State v. Starkey, 161 W. Va.
517, 523, 244 S.E.2d 219, 223 (1978), and other cases.
Jenkins, 191 W. Va. 87, 92, 443 S.E.2d 244, 249 (1994) (footnote omitted).
16
and his appellate counsel’s failure to raise this issue on appeal likewise was ineffective.
The State contends that the instruction was not infirm and the instructions, when read as a
whole, were proper. Therefore, trial counsel was not ineffective in failing to object, and
appellate counsel was not ineffective in failing to raise this issue on appeal. The State
additionally refers again to the trial court’s instruction stating that any comments made by
the attorneys were not evidence, and any such comments that were not based upon the
evidence presented should be disregarded.9
In addressing the instruction in the habeas proceeding, the circuit court
concluded that it was a correct statement of the law. In reaching this conclusion, the circuit
court reasoned as follows:
62. The instruction in question in this matter did not
shift any burden of proof or persuasion to the petitioner, and
did, in fact, inform the jury that it could infer malice from the
use of the deadly weapon if, and only if, they found that the
circumstances did not afford the defendant justification, excuse
9
The referenced instruction read as follows:
[n]othing said or done by the attorneys who have tried
this case is to be considered by you as evidence of any fact.
The opening statements that you heard last week, and the final
arguments that you’re going to hear here in a few moments, are
intended to help you in understanding the evidence and
applying the law to the evidence but they are not themselves
evidence. And accordingly, if any arguments, statements or
remark of any of the lawyers is not based upon the evidence or
the law as stated in my instructions, then you should disregard
that statement, argument or remark.
17
or provocation. Therefore, trial counsel was not ineffective in
failing to object to a correct jury instruction, and it would have
been futile to include this issue on appeal.
Turning to our analysis of the instruction, we note that, pursuant to this
Court’s precedent,
[j]ury instructions are reviewed by determining whether
the charge, reviewed as a whole, sufficiently instructed the jury
so they understood the issues involved and were not misled by
the law. A jury instruction cannot be dissected on appeal;
instead, the entire instruction is looked at when determining its
accuracy. The trial court, therefore, has broad discretion in
formulating its charge to the jury, so long as it accurately
reflects the law. Deference is given to the circuit court’s
discretion concerning the specific wording of the instruction,
and the precise extent and character of any specific instruction
will be reviewed for an abuse of discretion.
Syl. pt. 15, State v. Bradshaw, 193 W. Va. 519, 524, 457 S.E.2d 456, 461 (1995). See also
Syl. pt. 4, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995) (“A trial court’s
instructions to the jury must be a correct statement of the law and supported by the
evidence. Jury instructions are reviewed by determining whether the charge, reviewed as
a whole, sufficiently instructed the jury so they understood the issues involved and were
not mislead by the law. A jury instruction cannot be dissected on appeal; instead, the entire
instruction is looked at when determining its accuracy. A trial court, therefore, has broad
discretion in formulating its charge to the jury, so long as the charge accurately reflects the
law. Deference is given to a trial court’s discretion concerning the specific wording of the
18
instruction, and the precise extent and character of any specific instruction will be reviewed
only for an abuse of discretion.”).
The unconstitutionality of shifting the burden of proof to a defendant as to
an element of a crime has long been recognized:
In Sandstrom[ v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61
L. Ed. 2d 39 (1979)], the United States Supreme Court held
that . . . burden-shifting by presumption violates the Due
Process Clause of the United States Constitution. 442 U.S. at
520-21, 99 S. Ct. at 2457, 61 L. Ed. 2d at 48-49. It is
unconstitutional to shift the burden of proving an element of a
crime to the defendant. It lifts from the State the burden it must
bear and then it puts the burden upon the accused, who
constitutionally should not suffer under it. “[T]he Fourteenth
Amendment’s guarantees prohibit a State from shifting to the
defendant the burden of disproving an element of the crime
charged.” Sandstrom, 442 U.S. at 527, 99 S. Ct. at 2461, 61
L. Ed. 2d at 53. (Rehnquist, J., concurring).
State v. Miller, 197 W. Va. 588, 608, 476 S.E.2d 535, 555 (1996) (emphasis added).
Notably however, the instruction at issue in the case sub judice merely allowed the jury to
make an inference, it did not direct the jury to make a presumption. The difference between
an inference and a presumption was discussed in State v. Greenlief, 168 W. Va. 567, 285
S.E.2d 395 (1981), wherein the Court explained that,
the United States Supreme Court struck down a state
conviction which had utilized an instruction [providing “[t]he
law presumes that a person intends the ordinary consequences
of his voluntary acts.” Sandstrom, 442 U.S. at 513, 99 S. Ct.
at 2453, 61 L. Ed. 2d 39 (emphasis added).] In discussing the
problem with the use of the word “presume” in jury
instructions, the Supreme Court said “[the jurors] were not told
19
that they had a choice, or that they might infer that conclusion;
they were told only that the law presumed it. It is clear that a
reasonable juror could easily have viewed such an instruction
as mandatory.” Id. at 515, 99 S. Ct. at 2454[, 61 L. Ed. 2d 39.]
In the instant action, however, the jury was told that there was
“a permissible inference of fact” which was not mandatory or
binding at all.
Further, and perhaps the most compelling, support for
this resolution is found in the dictionary definition of these
terms. “Presume” is defined as “to suppose to be true without
proof.” Webster’s New Collegiate Dictionary 904 (1981).
“Inference”, on the other hand, is defined as “the act of passing
from one proposition, statement, or judgment considered as
true to another whose truth is believed to follow from that of
the former.” Id. at 585. The distinction between the two terms
is apparent, and the permissible inference instruction does not
serve to shift any of the burden of proof to the defendant.
Greenlief, 168 W. Va. at 567, 285 S.E.2d at 395. The instruction of which Mr. Coleman
complains uses the discretionary term “may,” and gives the jury a permissive choice as to
whether to apply the inference. Because the instruction allows a permissible inference, and
does not impose a mandatory presumption upon the jury, it does not shift the burden of
proof to the defendant. See id. (observing that a “permissible inference instruction does
not serve to shift any of the burden of proof to the defendant.”); Syl. pt. 2, State v.
Browning, 199 W. Va. 417, 485 S.E.2d 1 (1997) (“In a murder case, an instruction that a
jury may infer malice and the intent to kill where the State proves beyond a reasonable
doubt that the defendant, without lawful justification, excuse or provocation, shot the
victim with a firearm, does not unconstitutionally shift the burden of proof.”).
20
Moreover, this Court has expressly held that malice, intent, premeditation,
and deliberation may be inferred from the use of a deadly weapon under the proper
circumstances:
“‘In a homicide trial, malice and intent may be inferred
by the jury from the defendant’s use of a deadly weapon, under
circumstances which the jury does not believe afforded the
defendant excuse, justification or provocation for his conduct.
Whether premeditation and deliberation may likewise be
inferred, depends upon the circumstances of the case.’ Point
2, Syllabus, State v. Bowles, 117 W. Va. 217[, 185 S.E. 205
(1936)].” Syllabus, State v. Johnson, 142 W. Va. 284, 95
S.E.2d 409 (1956).
Syl. pt. 5, State v. Jenkins, 191 W. Va. 87, 443 S.E.2d 244 (1994). We have emphasized,
however, that such an instruction is not proper where evidence has been presented that
indicates the defendant had a legal excuse for his or her actions:
It is erroneous in a first degree murder case to instruct
the jury that if the defendant killed the deceased with the use
of a deadly weapon, then intent, malice, willfulness,
deliberation, and premeditation may be inferred from that fact,
where there is evidence that the defendant’s actions were
based on some legal excuse, justification, or provocation. To
the extent that the instruction in State v. Louk, 171 W. Va. 639,
643, 301 S.E.2d 596, 600 (1983), is contrary to these
principles, it is disapproved.
Syl. pt. 6, Jenkins, 191 W. Va. 87, 443 S.E.2d 244. As noted in Syllabus point 6 of Jenkins,
the Court disapproved an instruction that the Court in State v. Louk had found to be
21
permissible.10 The Jenkins Court rejected the Louk instruction because it failed to include
qualifying language that informed the jury that it may apply the inference only “if the
evidence does not show that the defendant had an excuse, justification, or provocation.”
Jenkins, 191 W. Va. at 94, 443 S.E.2d at 251. The Jenkins Court explained that “[i]t is any
of these elements [(excuse, justification, or provocation)] that, if believed by the jury, will
reduce the homicide to something less than murder.” Id. We find the instruction given at
Mr. Coleman’s trial is similar to the instruction that was expressly approved in the case of
State v. Miller, 197 W. Va. at 606, 476 S.E.2d at 553:
“The Court instructs the jury that in a prosecution for
murder, if the State proves beyond a reasonable doubt that the
defendant, without lawful justification, excuse or provocation,
fired a deadly weapon in the direction where a person was
located then from such circumstances it may be inferred that
the defendant acted with malice and the intent to kill.”
10
The instruction given in State v. Louk, 171 W. Va. 639, 643, 301 S.E.2d
596, 600 (1983), which was rejected by this Court in State v. Jenkins, 191 W. Va. 87, 443
S.E.2d 244, stated:
“The Court instructs the jury that to convict one of
murder, it is not necessary that malice should exist in the heart
of the Defendant against the deceased. If the jury believe from
the evidence that the Defendant was guilty of shooting with a
deadly weapon, the deceased, and of killing him, the intent, the
malice and the willfulness, deliberation and premeditation may
be inferred from the act, and such malice may not be directed
against any particular person, but such as shown a heart
regardless of social duty and fatally bent on mischief.”
Louk, 171 W. Va. at 643, 301 S.E.2d at 600.
22
Id. at 606, 476 S.E.2d at 553. Like the Miller instruction, the instruction at issue in the
instant case properly instructed the jury that the inference was permissible “under
circumstances where the defendant does not have excuse, justification, or provocation for
his conduct.”
The instant case also is comparable to Miller insofar as the defense theories
asserted by Mr. Coleman are similar to those asserted by the defendant in Miller. In this
regard, the Miller Court explained that whether such defenses are credible is for the jury to
determine:
[t]he defendant’s theory of the case was that the killing
was either accidental, i.e., “I did not know the gun was loaded,”
or incapacity due to intoxication, i.e., “I do not recall what
happened because of the drugs and alcohol,” or self-defense.
We agree with the defendant that these defenses are
incompatible with malice. For example, a “malicious
accident” is an oxymoron. However, it was up to the jury to
determine whether any of these defenses were credible. We do
not believe that merely telling a jury it may infer malice “if the
State proves beyond a reasonable doubt that the defendant,
without lawful justification, excuse or provocation fired a
deadly weapon” is error of a constitutional dimension.
197 W. Va. at 609, 476 S.E.2d at 556.
Mr. Coleman further complains that the permissible inference instruction
given to the jury improperly allowed it to infer deliberation and premeditation when other
West Virginia cases merely approved inferences related to intent and malice. As noted
23
above, in Syllabus point 5 of Jenkins, 191 W. Va. 87, 443 S.E.2d 244, this Court held, in
relevant part, that “[w]hether premeditation and deliberation may . . . be inferred[] depends
upon the circumstances of the case.” (Quotations and citations omitted). Thus, when the
circumstance are proper, an instruction allowing the jury to infer premeditation and
deliberation likewise is proper. Based upon this holding, in order to establish that the
giving of such an instruction was objectionable, it was incumbent upon Mr. Coleman to
demonstrate that the instruction was not supported by the evidence presented. He has failed
to make such an argument to this Court.
With respect to the permissible inference instruction itself, Mr. Coleman
lastly complains that the instruction did not explicitly provide that the State was required
to prove the absence of excuse, justification, or provocation beyond a reasonable doubt.11
He notes that such a requirement was included in instructions that were approved by this
Court in Miller, 197 W. Va. 588, 476 S.E.2d 535,12 and in State v. Browning, 199 W. Va.
11
Mr. Coleman’s trial counsel also argued to the jury that “[y]ou got an
impaired guy committing a dumb, grossly negligent act. And it is a case of intent. Specific
intent. That has to be demonstration to you beyond a reasonable doubt.” Mr. Colman
complains that his counsel’s comment was ineffective insofar as it failed to specifically
state that the burden was upon the state to establish intent. However, as discussed below,
the instructions presented to the jury properly set out the State’s burden of proof.
12
The instruction given in Miller provided,
[t]he Court instructs the jury that in a prosecution for
murder, if the State proves beyond a reasonable doubt that the
24
at 418, 485 S.E.2d at 2.13 Although the permissible inference instruction given in the
instant case, standing alone, did not expressly address the State’s burden of proof, the jury
was, however, instructed that, “[t]he burden is always upon the prosecution to prove guilt
beyond a reasonable doubt, and this burden never shifts to the defendant in a criminal case,
nor does the defendant ever have the burden or duty of calling witnesses or producing any
evidence.” The jury was further instructed, with respect to the excuse or justification that
was raised by Mr. Coleman as a defense, i.e., voluntary intoxication, that,
[a]lthough voluntary intoxication will never provide a
legal excuse for the commission of a crime, the fact that a
person may have been grossly intoxicated at the time of the
commission of a crime may negate the existence of the specific
intent of premeditation and deliberation, which is an element
of the offense of murder in the first degree. So, the evidence
that a defendant acted while in a state of gross intoxication is
to be considered in determining whether or not the defendant
acted with the specific intent of premeditation and deliberation.
defendant, without lawful justification, excuse or provocation,
fired a deadly weapon in the direction where a person was
located then from such circumstances it may be inferred that
the defendant acted with malice and the intent to kill.”
Id. at 606, 476 S.E.2d at 553 (emphasis added).
13
In Syl. pt. 2 of State v. Browning, 199 W. Va. 417, 418, 485 S.E.2d 1, 2
(1997), the Court held: “[i]n a murder case, an instruction that a jury may infer malice and
the intent to kill where the State proves beyond a reasonable doubt that the defendant,
without lawful justification, excuse or provocation, shot the victim with a firearm, does not
unconstitutionally shift the burden of proof.” (Emphasis added).
25
If the evidence in the case leaves you with a reasonable
doubt that the accused was capable of forming the specific
intent to commit the crime charged because of gross
intoxication, then you should acquit the defendant of the
offense of Murder of the First Degree and deliberate on the
lesser included offenses of Murder of the Second Degree,
Voluntary Manslaughter, and Involuntary Manslaughter.
Because the permissible inference instruction did not shift the burden of
proof, and because the instructions, as a whole, correctly reflected the law as it pertains to
permissible inferences, the circuit court correctly rejected the claim of ineffective
assistance of counsel based upon trial counsel’s failure to object to the same. Likewise,
because the instructions were correct, appellate counsel was not ineffective in failing to
raise this issue on appeal.
Finally, Mr. Coleman complains that the above quoted comments made by
the State during its closing improperly shifted the burden of proof. In addressing this issue,
the trial court found the prosecutor’s statements regarding the inference that may be drawn
from the use of a firearm were not improper:
62. [sic] Trial counsel was not ineffective for
failing to object to the prosecutor’s argument regarding this
jury instruction and malice. Petitioner’s expert witness
testified that it would have been improper for the assistant
prosecutor to reread the instruction to the jury. In reviewing
her argument as a whole, and placing the argument regarding
the deadly weapon inference into context, it is clear that the
prosecuting attorney was not urging the jury to ignore the
court’s instruction. Her argument was correct: the jury may
26
infer certain of the mental elements of first degree murder from
the use of a deadly weapon. However, her argument went on
to press the point that the petitioner did not have excuse,
justification, or provocation for his crime and further went on
to stress that other evidence demonstrated that the petitioner
acted with malice, deliberation, premeditation and intention.
Additionally, the court notes that the jury was repeatedly
instructed that what the lawyers said was not evidence.
We have reviewed the complained of closing remarks by the State and we
agree with the circuit court’s conclusion that there was no error. The first portion of the
statement was simple hyperbole. The second portion, while incomplete, was not a
misstatement of the law and did not shift the burden of proof to Mr. Coleman. Furthermore,
as we already have observed, the jury was advised that comments by the attorneys were
not evidence, and the jury was properly instructed as to the permissible inference at issue.
Thus, trial counsel was not ineffective by failing to object to the comments, and appellate
counsel was not ineffective in failing to appeal on this ground.
C. State v. Jackson Requirements
Pursuant to State v. Jackson, 171 W. Va. 329, 298 S.E.2d 866 (1982),
Protection of a defendant’s constitutional privilege
against self-incrimination and right to assistance of counsel at
pre-trial court-ordered psychiatric examinations, requires that
a tape-recording of the entire interview be given to his and the
government’s lawyer, and an in camera suppression hearing be
held to guarantee that the court-ordered psychiatrist’s
testimony will not contain any incriminating statements.
27
A defendant cannot waive his state and federal
constitutional privileges against self-incrimination and rights
to assistance of counsel at court-ordered pre-trial psychiatric
examinations except upon advice of counsel.
Syl. pts. 2 & 3, id.
Prior to trial, Mr. Coleman was examined by the State’s psychiatric expert
Dr. Ralph Smith. The examination was audio recorded and Dr. Smith prepared a written
report of the examination. Dr. Smith testified to the contents of his report and the full
unredacted report was admitted into evidence. It appears that the report was not published
to the jury. Mr. Coleman’s trial counsel objected to the admission of the report based upon
hearsay, but did not object to Mr. Coleman’s statements contained therein or refer to
Jackson. The court denied counsel’s request for a limiting instruction based upon hearsay
evidence.
In the habeas hearing before the circuit court, trial counsel explained that he
did not object to Mr. Coleman’s statements contained in the report because he believed
them to be beneficial to Mr. Coleman’s case. In fact, it appears that Dr. Smith’s report was
similar to Mr. Coleman’s own expert’s report, with only the conclusions being drawn
therefrom being substantially different.
28
Mr. Coleman argues to this Court that his trial counsel was ineffective by
failing to invoke the protections established in Jackson. According to Mr. Coleman, the
report contained
unredacted statements made by Mr. Coleman during the
evaluation interview. . . . The report stated that Mr. Coleman
admitted that he and his wife “had a fight” and that she got a
restraining order placed on him. The report further stated that
[Mr. Coleman] would stay “up all night with his rifle pointed
at his father’s house so they wouldn’t kill him.” The report
also contained a statement from Mr. Coleman about the
shooting. “He picked up the rifle. He pulled the hammer back
on the rifle and his finger slipped and the gun went off. He
said, ‘I looked up and that was it. She was laid back on the
couch and it tore the side of her face off.’” The report further
included the statement, “I didn’t know the gun was loaded,
guess I didn’t get the bullets all out when I unloaded
it.” . . . The report also contained a statement that Mr.
Coleman “feels that he deserves to be punished for wrongs he
has committed.” The report further contained a six page
summary of the State’s case against Mr. Coleman, including
information that the trial court had previously ruled was
inadmissible pursuant to Rule 404(b). The report was replete
with these prejudicial statements and admissions made by Mr.
Coleman during the course of his interview with the State’s
expert.
The State responds that trial counsel was not ineffective insofar as he
provided strategic grounds for not pursuing Jackson protections. The State notes that Mr.
Cagle made a strategic decision to not object to any statements contained in Dr. Smith’s
report based upon his conclusion that the statements bolstered Mr. Coleman’s defense. The
State contends that such a strategic decision is reasonable and does not establish ineffective
assistance of counsel.
29
The circuit court found no error, reasoning that
51. Trial counsel made an objectively reasonable,
strategic decision not to object to the petitioner’s statements to
Ralph Smith. As petitioner would not testify, the more times
the consistent story that the petitioner had not meant to shoot
his wife, but mistakenly or accidentally shot her in an effort to
confront her and make her admit the conspiracy that he and
only he could hear on the tapes14 was heard by the jury, and the
more often the jury heard his ostensibly sincere words of
remorse the more benefit accrued to the petitioner. It was not
an unreasonable strategic decision to permit the statement of
the petitioner to Dr. Smith into evidence. Moreover, as the
statement was entirely consistent with what petitioner said to
others, including his own evaluator, the admission of those
statements did not affect the rest of the proceeding. Petitioner
satisfies neither prong of the Strickland/Miller analysis.
We agree with the circuit court’s reasoning. Moreover, most of the
complained of comments were admitted through other testimony and evidence, thus Mr.
Coleman is unable to establish that the outcome of his trial would have been different had
trial counsel requested the protections of Jackson. See Syl. pt. 5, in part, Miller, 194 W. Va.
3, 459 S.E.2d 114 (requiring “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceedings would have been different.”). Finally,
trial counsel explained during the habeas proceeding that his decision to not object to the
evidence was tactical, and calculated to have favorable details, that aligned with evidence
14
There were numerous audio tapes admitted into evidence. Mr. Coleman
had alleged to several individuals that the tapes contained threats by Mrs. Coleman to harm
Mr. Coleman and/or members of his family. No one who listened to the tapes heard any
threats on them.
30
provided by Mr. Coleman’s own psychiatric expert repeated to the jury. “Where a
counsel’s performance, 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 an accused.” Syl. pt. 21, State v. Thomas, 157 W. Va. 640, 203 S.E.2d
445 (1974). Accordingly, we find trial counsel was not ineffective in failing to invoke the
protections established in Jackson. Likewise appellant counsel was not ineffective in
failing to raise this issue on appeal.15
D. Absence of Elected or Acting Prosecuting Attorney
During the course of Mr. Coleman’s trial, the Kanawha County Prosecuting
Attorney abruptly resigned. As a result, the following relevant exchange occurred outside
of the presence of the jury:
THE COURT: . . . [T]he Prosecutor, came in the
office this morning, announced that he was resigning, and he
left. . . .
So right now that office does not have a Prosecuting
Attorney effectively. Legally there is no boss, no
prosecutor. . . . You all function through your boss, okay? It
15
Mr. Coleman also complains, in passing, that Dr. Smith’s report contained
404(b) evidence that the court had ruled was inadmissible. Mr. Coleman does not identify
the specific 404(b) evidence of which he complains, or explain precisely how he was
prejudiced by its admission. Accordingly, this evidence will not be addressed.
31
runs him down, not you all up. You all can’t sign
indictments. . . .
....
My thought was, well, possibly there could be some
basis for an objection to continuation of this case by you,
because she has no – Her [assistant prosecuting attorney
Reagan Whitmyer’s] authority to act as a prosecutor in this
county is now nonexistent.
MR. CAGLE: Oh, I ain’t going to do that.
THE COURT: Well, I didn’t think you were.
MR. CAGLE: I wouldn’t do that.
THE COURT: I’m just looking after the record.
MR. CAGLE: I understand.
THE COURT: You have any thoughts on it,
Reagan?
MS. WHITMYER: No, I would have to look
at the Code and see if we can still – I’m still an assistant,
sworn, whether I can still carry on my functions. And I
assume – well, I don’t know. I would have to look at it,
research it, and see if there is any precedent for it. But if
they’re willing to waive any objections that they have –
MR. CAGLE: I don’t know what objection I
would have.
32
The Court then instructed Mr. Cagle to speak with Mr. Coleman and Mr. Cagle asked
permission to discuss it with Mr. Coleman over the lunch hour. The trial court
granted permission. Later in the day, the following exchange took place:
THE COURT: Before I bring the jury out, Mr.
Cagle, have you had a chance to discuss with Mr. Coleman
the resignation of Mr. Charnock and the legal impact it
may have on Mr. Holstein [Daniel Holstein, an assistant
prosecuting attorney] and Ms. Whitmyer continuing with
this case?
....
MR. CAGLE: The answer is: I really haven’t
discussed it any further, I will tell you, because I don’t
think it has any implication, and I’m not going to make
any motion unless [Mr. Coleman] tells me to do that. And
I think he will listen to me on that.
And I will tell you right here on the record, it ain’t
got nothing to do with me, with this trial, Mr. Coleman, or
any of that. I think that’s just political flap that I have no
interest in, and it has no implication about this trial.
THE COURT: Sounds like a pretty good
waiver to me.
MR. CAGLE: I intend for it. I’m not going to
make that motion unless he just starts screaming at me to
do it.
THE COURT: What do you think, Mr.
Coleman?
THE DEFENDANT: I agree with Jim.
33
The prosecutor resigned on a Friday. A new prosecuting attorney was sworn into office
the following Wednesday.
In its habeas ruling, the circuit court concluded:
22. The court finds that there was not error of
constitutional dimension in continuing the trial after the elected
prosecutor resigned. The court further finds that trial counsel
was not ineffective in failing to move for a continuance or
mistrial after the prosecutor resigned. Appellate counsel was
not ineffective for failing to raise the resignation as an issue on
appeal.
23. The petitioner has failed to establish that there is,
in fact, a constitutional right for a petitioner to be tried only
when there is an elected or appointed prosecutor. While the
office of prosecuting attorney is defined and circumscribed by
statute, petitioner has provided no law, either from the State of
West Virginia, or any other jurisdiction, pronouncing that a
trial must cease when there is a mid-trial resignation (or death)
of the prosecuting attorney.
24. In the case at bar, there was a prosecuting
attorney in and for Kanawha County when the petitioner was
indicted, when the trial commenced, and when the jury verdict
was returned.
25. Moreover, defense counsel explained that
strategically he was of the opinion that the trial was proceeding
well. He was optimistic for a favorable verdict, and his client
had been in jail for a year when the trial commenced.
26. When asked about possible harm or benefit from
moving for a mistrial—and having one granted—petitioner’s
expert offered only vague speculation that having heard the
state’s case the defense might have an advantage at retrial, or
the change in prosecutor might have resulted in a plea offer.
34
27. There is no evidence that the absence of an
elected prosecutor, or delaying the trial by continuance or
mistrial—affected the result of these proceedings.
28. As a stand-alone issue, the petitioner has failed
in his burden of proof to demonstrate that continuing the trial
during the two (at most) days between the resignation of one
prosecutor and the appointment of another constituted a
violation of any Constitutional right.
29. As a sub-ground for the issue of ineffective
assistance of trial counsel, petitioner has failed to satisfy the
Strickland/Miller standard. It was a reasoned, strategic
decision not to move for a mistrial or continuance. There is no
indication the court would have granted such motion, if made.
Although petitioner assails counsel for failing to research the
issue before he waived it, the petitioner in the nine years since
that mid-trial resignation has proffered no law in support of his
position that the trial should have been interrupted by the
resignation. Trial counsel was optimistic of a favorable verdict
and his client had spent a year in jail. Without engaging in
hindsight, and looking at the facts as they were at the time,
counsel’s strategic decision was reasonable. Therefore, trial
counsel’s performance was not objectively deficient.
Moreover, there is nothing to suggest that a motion would have
been granted. Finally, had trial counsel moved for either a
continuance or mistrial, and had such motion been granted,
there is nothing to suggest that petitioner would have received
a more favorable outcome in a later trial. The evidence against
the petitioner was substantial and overwhelming, and was not
going to change.
Mr. Coleman cites constitutional and statutory provisions establishing the
status of an elected county prosecuting attorney as a constitutional officer and setting out
the duties of the office. He then argues to this Court that the circuit court committed
structural constitutional error by allowing his trial to proceed when there was no Kanawha
35
County elected or acting prosecuting attorney in office during the final five days of his nine
day trial. Mr. Coleman contends that the West Virginia Code allows for a duly elected
prosecuting attorney to hire assistant prosecuting attorneys and that assistant prosecuting
attorneys are not “public officers,” and any duties they perform remain subject to the
ultimate authority of the prosecutor. See Syl. pt. 3, State ex rel. Diva P. v. Kaufman, 200
W. Va. 555, 490 S.E.2d 642 (1997) (“‘The prosecuting attorney is a constitutional officer
who exercises the sovereign power of the State at the will of the people and he is at all
times answerable to them. W. Va. Const., art. 2, Sec. 2; art. 3, Sec. 2; art. 9, Sec. 1.’ Syl.
Pt. 2, State ex rel. Preissler v. Dostert, 163 W. Va. 719, 260 S.E.2d 279 (1979).”); State v.
Macri, 199 W. Va. 696, 704, 487 S.E.2d 891, 899 (1996) (“Although an assistant
prosecuting attorney ‘may perform the same duties as his [or her] principal,’ any authority
under this statute allowing an assistant to perform these duties remains subject to the
ultimate authority and control of the prosecutor.”), modified on other grounds by State v.
Zain, 207 W. Va. 54, 528 S.E.2d 748 (1999).16 Mr. Coleman argues that, because there
was no elected prosecuting attorney in Kanawha County during the final portion of his
trial, his case could not constitutionally go forward, and a mistrial should have been
declared or a continuance granted. He claims that his trial counsel’s failure to move for a
16
Mr. Coleman notes that there is now a statute allowing for the appointment
of a temporary successor to fill the position for thirty days while a replacement is chosen
by the county commission. See W. Va. Code § 3-10-8 (LexisNexis 2018). There was no
such statute in effect at the time of Mr. Coleman’s trial.
36
mistrial or adequately consult with him on this issue amounts to ineffective assistance. Mr.
Coleman contends that his counsel did not know the law regarding the effect of the absence
of an elected prosecuting attorney and did not seek to research the issue when given an
opportunity to do so.
The State responds that the trial court did not commit structural constitutional
error by allowing Mr. Coleman’s trial to proceed in the absence of an elected or acting
prosecuting attorney, and trial counsel was not ineffective in failing to request a mistrial or
failing to consult with Mr. Coleman on this issue. The State notes that Mr. Coleman has
failed to provide any authority at any stage of this case over the last nine years that would
support his contention that a mid-trial resignation of an elected prosecutor should have
interrupted his trial.
As the circuit court and the State have pointed out, Mr. Colman has failed to
provide any authority holding that a criminal trial in progress must not proceed further
upon the resignation of a county prosecuting attorney.17 Furthermore, at the habeas
hearing, trial counsel explained that his decision was tactical in that Mr. Coleman had
already spent a year in jail and counsel was optimistic about the verdict. Nevertheless, this
17
The elected prosecutor was not personally prosecuting Mr. Coleman’s
case; therefore, his absence did not directly impact the proceedings.
37
issue is resolved by Mr. Coleman’s affirmation, on the record, of his trial counsel’s decision
to not object to the trial going forward in the absence of an elected or appointed prosecuting
attorney currently holding office. As quoted above, the record demonstrates that the issue
was discussed in Mr. Coleman’s presence, and the circuit court asked Mr. Coleman for his
opinion on the matter. Mr. Coleman stated that he agreed with his trial counsel. Assuming
arguendo that trial counsel’s decision to proceed was erroneous, Mr. Colman’s ratification
of that decision on the record prevents him from now raising it as a ground for claiming
ineffective assistance of counsel.
A party simply cannot acquiesce to, or be the source of, an error
during proceedings before a tribunal and then complain of that
error at a later date. See, e.g., State v. Crabtree, 198 W. Va.
620, 627, 482 S.E.2d 605, 612 (1996) (“Having induced an
error, a party in a normal case may not at a later stage of the
trial use the error to set aside its immediate and adverse
consequences.”); Smith v. Bechtold, 190 W. Va. 315, 319, 438
S.E.2d 347, 351 (1993) (“[I]t is not appropriate for an appellate
body to grant relief to a party who invites error in a lower
tribunal.” (Citations omitted).).
Hanlon v. Logan Cty. Bd. of Educ., 201 W. Va. 305, 316, 496 S.E.2d 447, 458 (1997).
Accordingly, we find the circuit court did not err in concluding Mr. Coleman’s trial counsel
was not ineffective, and therefore denying his habeas petition, based upon on this ground.18
18
Mr. Coleman did not argue to this Court that his appellate counsel was
ineffective in failing to raise this particular issue on appeal.
38
E. 404(b) Evidence
Mr. Coleman next argues that counsel was ineffective in failing to request an
omnibus pre-trial hearing, pursuant to State v. McGinnis, 193 W. Va. 147, 455 S.E.2d 516
(1994), to review 404(b) evidence the State intended to admit. The State responds that the
procedure utilized by the trial court satisfied the requirements for admitting 404(b)
evidence. We agree.
Prior to voir dire, the State advised the trial court that it had given notice of
404(b) evidence. No 404(b) conference was requested by trial counsel; however, the trial
court subsequently instructed the State on how it should proceed with respect to the
voluminous 404(b) evidence:
[L]et’s do this. You may not even call some of these
witnesses. . . . [A]s you’re calling these potential might-be
404(b) witnesses, watch it, and when you’re going to get into
– if you expect to get into a piece of might-be-404(b) material,
would you please interrupt the examination of that witness and
approach the bench, and I will make a determination then, right
then and there as the witness is testifying, as to whether its
admitted.
The trial proceeded in this manner. In denying Mr. Coleman’s habeas petition in relation
to this ground, the circuit court stated:
Before any witness testified as to prior difficulties or
collateral bad acts, a hearing was held out of the presence of
the jury. The court determined that the state sought to
introduce the evidence to show that the shooting was not an
accident, or mistaken, and that the petitioner had motive to kill
39
his wife. A limiting instruction was given at the time the
witness testified and in the final charge. The court determined
that the petitioner committed the act, and that the act was more
probative than prejudicial. There was no error in the admission
of 404(b) evidence from the witnesses.
We find no grounds for reversing the circuit court’s denial of Mr. Coleman’s
petition for a writ of habeas corpus in connection with this issue. With respect to
conducting an in camera hearing to consider the admissibility of 404(b) evidence, this
Court in McGinnis held that,
Where an offer of evidence is made under Rule 404(b)
of the West Virginia Rules of Evidence, the trial court,
pursuant to Rule 104(a) of the West Virginia Rules of
Evidence, is to determine its admissibility. Before admitting
the evidence, the trial court should conduct an in camera
hearing as stated in State v. Dolin, 176 W. Va. 688, 347 S.E.2d
208 (1986). After hearing the evidence and arguments of
counsel, the trial court must be satisfied by a preponderance of
the evidence that the acts or conduct occurred and that the
defendant committed the acts. If the trial court does not find
by a preponderance of the evidence that the acts or conduct was
committed or that the defendant was the actor, the evidence
should be excluded under Rule 404(b). If a sufficient showing
has been made, the trial court must then determine the
relevancy of the evidence under Rules 401 and 402 of the West
Virginia Rules of Evidence and conduct the balancing required
under Rule 403 of the West Virginia Rules of Evidence. If the
trial court is then satisfied that the Rule 404(b) evidence is
admissible, it should instruct the jury on the limited purpose
for which such evidence has been admitted. A limiting
instruction should be given at the time the evidence is offered,
and we recommend that it be repeated in the trial court’s
general charge to the jury at the conclusion of the evidence.
40
Syl. pt. 2, McGinnis, 193 W. Va. 147, 455 S.E.2d 516. This holding merely required the
circuit court to conduct an in camera hearing “[b]efore admitting the evidence.” Id.
McGinnis additionally references State v. Dolin, 176 W. Va. 688, 347 S.E.2d 208 (1986),
overruled on other grounds by State v. Edward Charles L., 183 W. Va. 641, 398 S.E.2d
123 (1990), in which this court held that
Before a trial court can determine that evidence of
collateral crimes is admissible under one of the exceptions, an
in camera hearing is necessary to allow a trial court to carefully
consider the admissibility of collateral crime evidence and to
properly balance the probative value of such evidence against
its prejudicial effect.
Syl. pt. 3, Dolin, 176 W. Va. 688, 347 S.E.2d 208.19 Although the 404(b) hearing that was
held in McGinnis happened to be held pre-trial, there is nothing in the holdings of either
McGinnis or Dolin that requires such a hearing to always be held prior to trial. Because of
the voluminous amount of purported 404(b) evidence at issue, and the number of witnesses
from whom bits of such evidence might be presented, the circuit court utilized a method of
holding a separate in camera hearing prior to the admission of each portion of 404(b)
evidence.20 Mr. Coleman has not shown how he was prejudiced by this approach used by
the trial court. Accordingly, we find trial counsel was not ineffective in failing to request
19
The trial in State v. Dolin, 176 W. Va. 688, 347 S.E.2d 208 (1986),
preceded the adoption of Rule 404(b) in West Virginia.
20
Rule 404(b) was amended in 2014. Under the current version of the rule,
reasonable notice of crimes, wrongs, or other acts may be provided “during trial if the court,
for good cause, excuses lack of pretrial notice.” Rule 404(b)(2)(A) & (B).
41
a pre-trial 404(b) hearing. Likewise, because we find no error, appellate counsel was not
ineffective in failing to raise this issue on appeal. Thus, the circuit court did not err in
denying Mr. Coleman’s habeas petition based on this issue.
F. Failure to Investigate Evidence
Mr. Coleman contends that his trial counsel was ineffective in failing to
reasonably investigate and uncover evidence contained in the State’s discovery. He
identifies the evidence, which he characterizes as exculpatory evidence, 21 as the soot and
stippling on the victim’s finger. Mr. Coleman suggests that, if his counsel had hired an
expert to review the State’s photographs, or provided the photographs to his firearm expert,
the soot and stippling on the victim’s finger would have been apparent. Mr. Coleman avers
that, if his trial counsel had conducted a reasonable investigation and discovered the soot,
he would have been able to formulate a more complete theory of the defense based upon
this evidence. Moreover, he contends that, if the defense firearm expert, Mr. Roane, had
known of the soot and stippling, he could have incorporated into the tests he performed,
and the video he prepared, a scenario where the victim’s hand made contact with the barrel
of the rifle.
21
Counsel for Mr. Coleman refers to the evidence as exculpatory. To the
extent that exculpatory evidence is generally used in the context of evidence to which the
State has a burden of disclosing, that term is not being used in the present context.
42
The State responds by noting that, during the habeas hearing, defense trial
counsel testified that he had sufficient time to make effective use of the soot and stippling
evidence when the same was discovered during trial. There were five days between the
discovery of the soot in the photograph and Mr. Roane’s testimony. At the habeas hearing,
trial counsel explained that he had time, including an entire weekend, to discuss the
evidence with Mr. Roane. Mr. Roane then addressed the soot in his testimony and opined
that its presence was consistent with a scenario where Mrs. Coleman pushed or swatted the
muzzle of the rifle causing it to discharge.
The circuit court found the following:
84. As to the issue of the medical examiner’s belated
discovery of a typographical error in his report saying there was
no soot or stippling, when in fact there was, the court notes that
trial counsel had five days between the testimony and the
testimony of his expert. Trial counsel effectively cross-
examined the medical examiner about his mistake. Trial
counsel testified at the omnibus evidentiary hearing that he had
ample time to consult with his expert, and that the expert had
ample time to consider that information. In fact, trial counsel
testified that his expert’s theory had been that something came
into contact with the gun-such as the victim’s hand-and that the
gun discharged. The belated revelation confirmed that theory.
85. The only harm proffered by habeas counsel is that
the expert didn’t redo his video. However, trial counse1
explained that the video couldn’t be redone to conform with the
medical examiner’s testimony, because, essentially, no one was
going to swat the gun away with live ammunition, it was simply
too dangerous.
43
86. The court finds that petitioner’s trial counsel made a
strategic decision not to seek a continuance or a mistrial.
Counsel believed the case was going as well as could be
expected, his client was in jail, and Counsel had five days
(including two full weekend days) to consult with and prepare
his expert. He testified at the omnibus hearing that he did not
need more time to address that issue. Therefore, the court finds
it was not objectively deficient performance to fail to ask for a
continuance or mistrial. Moreover, the court finds there is
nothing to indicate that a continuance or mistrial would have
been granted, as the remedy would have been to give counsel
time to prepare: which counsel had. The petitioner fails to
satisfy the Strickland/Miller Standard for ineffective assistance
of counsel.
We find the circuit court’s reasoning is sound. Moreover, it is worth noting
that, while Mr. Coleman complains that Mr. Roane did not prepare a video demonstration
of a scenario with a victim batting the rifle muzzle, he does not direct the Court’s attention
to any portion of the record wherein the expert stated that no such video was prepared due
to time constraints, or that any reason at all was given for the absence of such a video
demonstration. During the habeas proceeding, trial counsel testified that he had sufficient
time to discuss this evidence with Mr. Roane, and the evidence actually provided additional
support for the theory of how the gun discharged that Mr. Roane had already developed.
In light of these facts, we find trial counsel’s performance was not “deficient under an
objective standard of reasonableness.” Syl. pt. 5, in part, State v. Miller, 194 W. Va. 3, 459
44
S.E.2d 114. Thus, the circuit court did not err in denying Mr. Colman’s habeas petition in
relation to this ground.22
G. Toxicology Testing and Results
Mr. Coleman next contends that his trial counsel was ineffective in failing to
object, on Confrontation Clause grounds, to the results of a toxicology report being
admitted by someone other than the technician who performed the analysis. See Syl. pt. 6,
State v. Mechling, 219 W. Va. 366, 633 S.E.2d 311 (2006) (“Pursuant to Crawford v.
Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the Confrontation
Clause contained within the Sixth Amendment to the United States Constitution and
Section 14 of Article III of the West Virginia Constitution bars the admission of a
testimonial statement by a witness who does not appear at trial, unless the witness is
unavailable to testify and the accused had a prior opportunity to cross-examine the
witness.”). Specifically, Mr. Coleman complains about testimony by the State’s medical
examiner, Dr. Boiko, regarding toxicology testing and results of the victim’s blood, when
Dr. Boiko did not perform the toxicology testing. Mr. Coleman asserts that, because Dr.
22
In connection with this issue, Mr. Coleman makes no challenge regarding
appellate counsel.
45
Boiko did not perform the toxicology testing, his counsel was unable to effectively cross
examine the expert.23
23
At trial, the State inquired of the State’s medical examiner, Dr. Boiko, in
relevant part as follows:
Q. Did your office personnel perform tests to
determine whether there were any controlled substances in
Mrs. Coleman’s system at the time that she was shot?
A. Yes. We performed toxicological study. It was
negative. It means no alcohol, no drugs in the body.
Q. Okay. No alcohol, no marijuana, no
methamphetamine?
A. No.
Q. Nothing like that. No controlled substances of
any kind?
A. No.
On cross-examination, trial counsel queried:
Q. Did you do the toxicology?
A. No.
Q. That’s not something you as the pathologist
would do, is it?
A. No. But I received the report from toxicology
lab.
Q. So that the jury distinguishes that, the toxicology
is done by others?
46
The State responds by arguing that the medical examiners testimony
regarding the toxicology report was neither exculpatory nor incriminatory and, even if the
Confrontation Clause was violated, such error was harmless beyond a reasonable doubt.
The circuit court’s order denying Mr. Coleman’s petition for a writ of habeas
corpus addresses this issue as follows:
87. As to the issue of Dr. Boiko and his testimony
regarding the toxicology reports from the victim’s blood, this
Court does not find that trial counsel was ineffective for failing
to object to such testimony. Moreover, the Court does not
believe such testimony was a Crawford violation.
88. Dr. Boiko’s testimony was not an unqualified
success for the state with his revelation about his mistake as to
stippling. Moreover, as to the toxicology reports and the
absence of any methamphetamine (or other substance) in the
blood, Dr. Boiko could not pinpoint precisely whether the tests
were on transfused blood or admission blood, and admitted that
the results could differ between the two sources. Therefore, the
suggestion was before the jury that perhaps the victim had used
some substance but it was not revealed because the testing was
done on transfused blood.[24] It is noteworthy that [this] is the
only suggestion that the victim may have used a substance on
the evening of her death. The victim was at work, went to
McDonald’s, stopped by another store and went home where
she was shot in less than a half hour after her stop at
McDonald’s. . . . No one testified that she was impaired, and
A. That’s correct.
24
However, it should be noted that, during his testimony, Dr. Boiko
ultimately found a notation on the report expressly stating that the blood tested was
“admission blood,” i.e., blood that was extracted upon the victim’s admission and prior to
any transfusions.
47
the petitioner did not state to the police, his father, his neighbor,
the 911 operator, or either psychiatrist that the victim had
ingested drugs or that the victim had grabbed or swatted the
gun. The testimony about the blood was neither exculpatory
of nor incriminatory of the petitioner. It was not objectionable,
and even if it were, the testimony was harmless beyond all
doubt. . . .25 In this case, Boiko’s testimony about the victim’s
blood did not inculpate the petitioner and did not result in a
violation of any constitutional right.
89. It is rampant speculation to believe that calling a
toxicologist would have revealed anything other than the fact
the victim did not have any substances in her blood. And the
testimony about the blood results did not violate any of the
petitioner’s constifutiona1 rights.
(Footnotes added).
Assuming, for the sake of argument, that trial counsel should have objected
on Confrontation Clause grounds to Dr. Boiko’s testimony regarding the results of a
toxicology analysis that he did not, himself, perform, we find any resulting error arising
therefrom to be harmless beyond a reasonable doubt.
25
The circuit court’s order contained the following quotation from State v
Flack, 232 W. Va. 708, 715-16, 753 S.E.2d 761, 768-69 (2013):
Of critical import is that nothing in Dr. Kaplan’s testimony
implicated the defendant in the homicide, linked him to the
crimes charged, or made it more likely or less likely that the
defendant committed the murder of Matthew
Flack. . . . Accordingly, we find the error raised to be harmless
beyond a reasonable doubt.
(Citations omitted).
48
This Court has recognized that “[e]rrors involving deprivation of
constitutional rights will be regarded as harmless only if there is no reasonable possibility
that the violation contributed to the conviction.” Syl. pt. 20, State v. Thomas, 157 W. Va.
640, 203 S.E.2d 445 (1974). Furthermore, “In a criminal case, the burden is upon the
beneficiary of a constitutional error to prove beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.” Syl. pt. 3 State v. Frazier, 229
W. Va. 724, 735 S.E.2d 727 (2012).
We find any error that may have resulted from trial counsel’s failure to object
to Dr. Boiko’s testimony regarding the toxicology report is harmless beyond a reasonable
doubt because the issue of whether or not Mrs. Coleman, the victim of the crime, had
controlled substances in her system was not relevant under the facts of this case. See, e.g.,
People v. Rutterschmidt, 55 Cal. 4th 650, 661, 147 Cal. Rptr. 3d 518, 526, 286 P.3d 435,
441-42 (2012) (holding that any Confrontation Clause violation in admitting toxicology
analysis of victim’s blood constituted harmless error); Commonwealth v. Montrond, 477
Mass. 127, 138, 75 N.E.3d 9, ___ (2017) (“Assuming without deciding that it was error to
admit the testimony [pertaining to the toxicology report], we agree that any such error was
harmless beyond a reasonable doubt.”); State v. Ortega, 327 P.3d 1076, 1084-85 (N.M.
2014) (“[W]e hold that it was harmless error to admit the testimonial statements included
in the toxicology report.”).
49
Furthermore, while Mr. Coleman asserts to this Court that the toxicology of
the victim was a critical issue and would have supported the accident theory of the defense,
he provides no specific explanation of how the evidence supported his theory that the
shooting was an accident or, in the alternative, that Mrs. Coleman batted at the rifle causing
it to discharge. Furthermore, as the State has pointed out, there was no other evidence
presented at trial that would have substantiated that the victim was using controlled
substances or alcohol on the night she was killed. Finally, we note that the evidence
presented in this case overwhelmingly supported the jury’s verdict of guilt. Therefore we
find no error in the circuit court’s denial of Mr. Coleman’s petition for habeas corpus as to
this ground.26
H. References to Mr. Coleman’s Pretrial Incarceration
Mr. Coleman next argues that his counsel was ineffective in failing to object
to testimony and evidence referring to Mr. Coleman’s pre-trial incarceration. In support
of his argument, Mr. Coleman complains of two specific portions of the testimony. First,
Dr. Thomas Martin, the defense psychiatrist, stated, during his direct examination by trial
counsel, that he “got involved with Mr. Coleman’s case through a consult through a local
26
Mr. Coleman has not asserted that his appellate counsel was ineffective in
failing to raise this particular issue on appeal.
50
physician . . . who had assessed him, I believe in the jail once he had been arrested, last
March 2006.” Next, the lead investigating officer, Detective Snuffer, who was called by
the State, testified during his direct examination regarding how he obtained Mr. Coleman’s
handwriting samples. He testified that he “met with Mr. Cagle and Mr. Coleman and his
investigator at the jail,” and “[w]hile we were at the jail, I dictated three letters to Mr.
Coleman, and Mr. Coleman - - each word that I dictated, he wrote onto a piece of paper.”
Mr. Coleman additionally complains that the report of the State’s psychiatric expert
contained references to Mr. Coleman being “shackled” during an interview. Mr. Coleman
contends that his counsel’s failure to object meets the Strickland/Miller test for ineffective
assistance because his counsel has given no strategic reason for not objecting and because
the jury could have inferred that the court had found his theory of an accidental shooting
unpersuasive or that the court believed he was too dangerous to release. Mr. Coleman
relies on United States v. Fakih, 424 F. App’x 202 (4th Cir. 2011), and asserts that the
Fourth Circuit has found remarks about a defendant’s pre-trial custody to be clearly
improper; however, Fakih stands for a slightly different proposition. The Fourth Circuit in
Fakih commented that it had “previously held that a prosecutor’s questions about a
defendant’s pre-trial custody are “clearly improper[.]” Id., 424 F. App’x at 205. In this
case, there is no allegation that the prosecutor asked questions about Mr. Coleman’s pre-
trial custody. Rather, the information was spontaneously disclosed by witnesses during
their answers to proper questions, or was contained in a report.
51
In response to Mr. Coleman’s argument, the State merely quotes the circuit
court’s order and asserts that the order should be affirmed. The circuit court concluded:
65. This court disagrees with the petitioner’s claim that
such references to pre-trial incarceration were “numerous.”
There were a mere handful of such references (fewer than five,
as the court counts) in the record of a trial which spans nearly
one thousand pages. Moreover, although the court does not
approve of any reference to such pre-trial incarceration, the
court must note that those references do not unambiguously
refer to the petitioner being in jail, but rather refer to meetings
with petitioner and his lawyer “at” the jail, or taking
handwriting exemplars “at” the jail. The court believes that it
is likely the jury believed that at least at the time of any specific
event the petitioner was incarcerated. However, this court does
not find that those references to the petitioner’s pre-trial
incarceration rise to the level of a constitutional violation,
reversible error, or ineffective assistance of counsel.
66. The references were not numerous. The court
believes that it would come as no surprise to jurors that an
individual who shot his wife in the face would be arrested and
jailed. The court further finds that the evidence in this case
against petitioner, while hotly disputed as to the mental
elements, was ample and the references to pre-trial
incarceration did not affect the verdict. That is, the jury would
have convicted the petitioner of murder in the first degree even
absent such references.
67. While perhaps it was objectively deficient
performance for counsel to fail to object to such references at
trial, the court finds that petitioner fails to satisfy the “but for”
prong of the Strickland/Miller analysis. As noted above,
merely identifying a mistake by counsel does not equate to
ineffective assistance. The mistake must have affected
substantial rights of the petitioner. Had petitioner’s counsel
objected to those references and the jury heard no reference to
pre-trial incarceration, the petitioner would still have been
convicted of murder in the first degree. Therefore, petitioner
52
fails in his burden and this contention affords the petitioner no
relief in habeas corpus.
The circuit court found that trial counsel’s failure to object was harmless
beyond reasonable doubt. We agree. As demonstrated in the statement of facts above, see
supra Section I, there was significant evidence of Mr. Coleman’s guilt. This evidence
established that Mr. Coleman did not dispute that he shot and killed his wife. Rather he
claimed that the shooting was an accident. However, the State presented ample evidence
to show that the shooting was not accidental, including evidence that Mr. Coleman was
knowledgeable about firearms, that Mr. and Mrs. Coleman’s relationship had been violent
at times, and that Mr. Coleman was angry with Mrs. Coleman and had threatened to kill
her. Based upon this evidence, we find no “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceedings would have been different.” Syl. pt. 5,
in part, Miller, 194 W. Va. 3, 459 S.E.2d 114. Accordingly, we find the circuit court did
not err in refusing to grant Mr. Coleman’s petition for a writ of habeas corpus based upon
this issue.
IV
CONCLUSION
After reviewing each of the issues raised by Mr. Coleman, we have found no
grounds upon which to find his trial counsel was ineffective. Thus, we similarly find no
53
error in the May 26, 2017 order of the Circuit Court of Kanawha County denying Mr.
Coleman’s petition seeking a writ of habeas corpus. Accordingly, we affirm that order.
Affirmed.
54