Steven W. Funt v. Donnie Ames, Superintendent, Mt. Olive Correctional Complex

FILED
April 20, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Steven W. Funt,
Plaintiff Below, Petitioner
vs.) No. 21-0157 (Morgan County CC-33-2018-P-17)
Donnie Ames, Superintendent,
Mt. Olive Correctional Complex,
Defendant Below, Respondent
MEMORANDUM DECISION
Petitioner Steven W. Funt, by counsel Ronald L. Walters Jr., appeals the Circuit Court of
Morgan County’s January 26, 2021, order denying his petition for a writ of habeas corpus.
Respondent Donnie Ames, Superintendent, Mt. Olive Correctional Complex, by counsel Patrick
Morrisey and Lara K. Bissett, filed a response in support of the circuit court’s order to which
petitioner submitted a reply.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,
a memorandum decision is appropriate under Rule 21 of the Rules of Appellate Procedure.
On January 5, 2016, the grand jury indicted petitioner of two felony counts of breaking and
entering; one count of misdemeanor petit larceny; one count of misdemeanor entering without
breaking of automobile; one misdemeanor count of destruction of property; one count of felony
grand larceny; and two counts of misdemeanor possession of a controlled substance.
Petitioner’s criminal trial began on August 3, 2016, and the jury found him guilty of one
count of felony offense breaking and entering and one count of petit larceny on August 4. Petitioner
was acquitted on the remaining charges. The State then filed a recidivist information, which
petitioner’s counsel moved to dismiss arguing that a life sentence would amount to cruel and
unusual punishment. Petitioner’s motion to dismiss was denied, and the recidivist action proceeded
to trial on October 6, 2016. At the conclusion of the recidivist trial, petitioner was found to be the
same person previously convicted of the felony offenses of unlawful assault/escape in Morgan
County Case No. 97-F-41; attempted possession of a controlled substance with intent to distribute
in Morgan County Case No. 03-F-44; and grand larceny as contained in Morgan County Case No.
1
06-F-35. Thereafter, petitioner’s counsel filed a renewed motion to dismiss the recidivist
information, which was denied by the circuit court. The court sentenced petitioner to life in prison
with eligibility for parole after fifteen years by order entered on November 15, 2016. Petitioner
appealed his conviction and sentence to this Court, and both were affirmed by memorandum
decision in State v. Funt, No. 16-1169, 2017 WL 4772889 (W. Va. Oct. 23, 2017)(memorandum
decision) (“Funt I”).
Petitioner filed a petition for a writ of habeas corpus before the circuit court, asserting
ineffective assistance of counsel, violations of his Sixth Amendment rights, improper comments
by the trial judge, improper comments by the prosecutor, and disproportionality of his sentence.
The court held an omnibus evidentiary hearing on November 24, 2020. In a lengthy, detailed order
denying petitioner’s petition for a writ of habeas corpus, the circuit court addressed each of these
allegations and found them to be without merit. With regard to his contention that trial counsel
failed to object to the admission of certain photographs, it found that petitioner failed to satisfy the
Strickland 1 standard, noting that the only enhancements made to the photographs were that they
were “lightened” and that, rather than attack the admissibility of photographs,
which would have eventually come in, counsel cross-examined Lt. Stapleton about
the individual in the photos. The jury had already heard testimony about the
enhancements, testimony which it presumably considered in evaluating the photos.
. . . The [c]ourt FINDS that counsel was attempting to show that the individual in
the photos could not be positively identified as [p]etitioner. . . . If it worked,
[p]etitioner would have no argument. Here, the [c]ourt FINDS that [p]etitioner
attempts to persuade this [c]ourt that said strategy was an unreasonable defense.
It went on to find that petitioner testified during the evidentiary hearing that he was aware of the
trial strategy and agreed with the same.
He also argued that his trial counsel was ineffective because counsel failed to object to Lt.
Stapleton’s lay opinion testimony regarding the photographs. The circuit court concluded that that
argument did not satisfy the Strickland standard. According to the court’s order, petitioner asserted
that his attorney should have objected to Lt. Stapleton’s testimony regarding the facial
characteristics of the person in the game camera photos, arguing that this was improper lay opinion
testimony that caused a litany of errors. The court found that “this argument ignores the context in
which this testimony was elicited; it was made to explain why Lt. Stapleton did not believe the
individual in the photos to be [C.W. 2]” The court went on to find that “this testimony was countered
by cross-examination. Finally, the [c]ourt FINDS the photographs were not the only evidence
1
Strickland v. Washington, 466 U.S. 668 (1984).
2
Consistent with our long-standing practice in cases with sensitive facts, we
use initials where necessary to protect the identities of those involved in this case. See In re K.H.,
235 W. Va. 254, 773 S.E.2d 20 (2015); In re Jeffrey R.L., 190 W. Va. 24, 435 S.E.2d 162(1993); State v. Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990). Because there was
an abuse and neglect proceeding against C.W. and his wife B.W. that is discussed herein, it is
necessary to use the initials of these witnesses in this memorandum decision.
2
which directly implicated [p]etitioner.” According to the circuit court, Lt. Stapleton had personal
knowledge and the ability to perceive the facial characteristics of C.W., petitioner, and the person
in the photos.
Stapleton’s opinion was that specific characteristics [of the] face of the person in
the photographs was similar to features on [petitioner’s] face. This was plainly and
rationally connected to particular facts about [petitioner’s] physical characteristics
which Stapleton did know. And this opinion helped the jury in understanding why
Lt. Stapleton had determined the person in the photos to be someone other than
B.W. and C.W. Petitioner cannot cite to any authority which required Lt. Stapleton
to have special training to make his rational observations. Thus, Lt. Stapleton’s
testimony about the person in the photographs was permissible lay opinion
testimony, which the trial court was unlikely to sustain objections against.
It, therefore, concluded that counsel did not err by declining to object to Lt. Stapleton’s testimony
and that petitioner failed to show a reasonable probability that the outcome would have been
different had counsel objected.
The court also addressed petitioner’s contention that counsel was deficient for not raising
objections to two statements made by the victim, Danny Omps, asserting that the testimony was
barred under Rule 404(b) of the West Virginia Rules of Evidence. 3 The circuit court, however,
determined that that evidence was not evidence of prior bad acts tied to petitioner in any way. Mr.
Omps testified that he had a number of lights around the exterior of his home and specifically
testified that he remembered a time his floodlights were not working because there were several
times the lights were loose. Petitioner argued below that that testimony was “clearly elicited by
the State in an effort to tie [petitioner] to the prior alleged break-ins by showing a common plan
or scheme.” In addressing that contention, the circuit court found that that line of questioning was
to establish the circumstances of break-ins that led Mr. Omps to install cameras in his garage,
“testimony which [p]etitioner admits the parties had agreed to. . . . [T]his testimony neither
triggered the need for an evidentiary objection nor prejudiced [p]etitioner.” Petitioner also argued
that his counsel should have objected to Mr. Omps’s testimony that the last break-in in his garage
was December 2, 2015, but the court found the question did not implicate petitioner or any other
individual as the actor. The court went on to find that even if counsel was deficient, petitioner had
again failed to demonstrate a reasonable probability of a different outcome.
In his final allegation of ineffective assistance of trial counsel, petitioner asserted that trial
counsel failed to object to comments made by the prosecutor during closing arguments: (1) that
petitioner’s and Mr. Omps’s houses were approximately two-tenths of a mile apart; and (2)
arguments related to the credibility of Elizabeth Hartley, petitioner’s alibi witness. The circuit
court found that neither comment was so extensive or misleading so as to constitute reversible
error. “Furthermore, the proof which established [p]etitioner’s guilt was strong. Therefore, the
[c]ourt FINDS that counsel was not deficient in not raising objections, and in any event [p]etitioner
3
Rule 404(b)(1) provides that “[e]vidence of a crime, wrong, or other act is not admissible
to prove a person’s character in order to show that on a particular occasion the person acted in
accordance with the character.”
3
was not prejudiced by these comments.”
Petitioner also alleged that his appellate counsel was deficient by failing to raise “a litany
of the constitutional and underlying evidentiary claims” petitioner asserts in the habeas action. The
circuit court specifically found that “since these issues were either not plain errors or otherwise
not valid claims, [p]etitioner’s claim on appellate counsel’s conduct fails.” It further determined
that “[p]etitioner was represented by competent and zealous counsel at trial, and the evidence
against [p]etitioner was properly admitted. Had appellate counsel raised these issues on appeal, the
Supreme Court of Appeals would not have found them to warrant reversal.” With regard to his
assertion that appellate counsel failed to raise a Sixth Amendment Confrontation Clause issue
related to witnesses B.W. and C.W., related to an active child abuse and neglect proceeding, the
court found that such questioning “would have flagrantly violated the strict confidentiality
warranted by child abuse and neglect, and clearly fell outside the ambit of Confrontation Clause
rights” so [a]ppellate counsel was not deficient by declining to bring this “outrageous claim.”
Within that portion of the order, the circuit court also addressed petitioner’s assertion that
the trial judge made improper comments. It concluded that the trial judge’s evidentiary rulings
during Ms. Hartley’s testimony
in no way indicated a factual opinion by a trial judge. In fact, the judge took pains
to explain the law plainly, completely, and accurately to the jury. Petitioner takes
the judge’s ruling out of context, and assuming appellate counsel made a complete
review of the trial transcript, the decision not to raise this issue was clearly
reasonable.
The court also found that trial counsel was not ineffective for failing to object to the
admission of certain photographs, as petitioner clearly consented to the taking of those
photographs. It found that petitioner did not dispute that on December 10, 2015, petitioner
consented to a search of an outbuilding on his property, after being asked for consent by Lt.
Stapleton, and he did not allege that he revoked that consent. Petitioner, instead, argued that he
provided limited consent to search that outbuilding, which did not include taking photographs. The
circuit court found, however, that petitioner gave Lt. Stapleton oral consent to search the
outbuilding, which “also gave implied consent for him to take pictures.” Therefore, there was no
basis for trial counsel to object.
The circuit court went on to find that petitioner had no Confrontation Clause right to
question witnesses about an active child abuse and neglect case in open court. In so doing, the
court found that “[n]ot only was [B.W. and C.W.’s] abuse and neglect case totally irrelevant to
[p]etitioner’s case, but [p]etitioner would have the trial court take the unprecedented step of finding
the Sixth Amendment to require the disclosure of this strictly confidential information in open
court through cross-examination.” It determined that the trial court followed and applied the law
in ruling that petitioner had no right to question B.W. and C.W. regarding their abuse and neglect
proceeding and the prosecutor’s involvement in both cases was irrelevant.
In addressing the proportionality of petitioner’s recidivist sentence, the circuit court found
that that issue had already been litigated and held not violative of his constitutional rights. As the
4
circuit court found, petitioner’s sentence was imposed pursuant to West Virginia Code § 61-11-
18(c), which has been previously addressed by this Court and found to be proportional. Further, to
the extent the issue needed to be litigated here, petitioner’s sentence is plainly not disproportionate.
It noted that petitioner had four convictions that involved the actual or potential use of violence:
unlawful wounding, two counts of grand larceny, and breaking and entering. It, therefore, found
that petitioner had demonstrated a continuous course of illegal activities that carry the inherent risk
of violent confrontation. Further, as this Court has found, petitioner’s triggering and underlying
convictions are serious crimes that carried the very real risk of danger and physical violence to
petitioner’s victims.
Finally, the circuit court found that trial counsel presented proper argument challenging the
disproportionality of the imposition of a life sentence on petitioner. Counsel argued that a life
sentence was disproportionate to petitioner’s underlying conviction. However, this Court has
found that petitioner’s life sentence under the recidivist statute was not disproportionate. Petitioner
appeals from that January 26, 2021, order. 4
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).
On appeal, petitioner first argues that the 2020 amendment to West Virginia Code § 61-
11-18 makes clear that breaking and entering an unattached structure is not a violent felony. He
asserts that the former version of West Virginia Code § 61-11-18(c) provides that a person who
has twice before been convicted of a crime punishable by confinement in a penitentiary shall be
sentenced to life; this was the version under which petitioner was sentenced. However, the 2020
version of West Virginia Code § 61-11-18(d), which is the newly cast version of § 61-11-18(c),
provides that a person who was twice before convicted of a crime punishable by confinement in a
penitentiary which has the same elements as a qualifying offense, shall be imprisonment for life.
Petitioner argues that the 2020 amendments to the recidivist statute are procedural in nature and,
therefore, should be given retroactive effect. See Syl. Pt. 3, Martinez v. Asplundh Tree Expert Co.,
239 W. Va. 612, 803 S.E.2d 582 (2017) (“Statutory changes that are purely procedural in nature
will be applied retroactively.”).
This Court, however, agrees with respondent that the amendments to West Virginia § 61-
11-18 are inapplicable to petitioner, and the circuit court did not abuse its discretion or otherwise
4
Because petitioner’s statement of the case lacks any citation to the record, we remind
petitioner’s counsel of the requirements of Rule 10(c)(4) of the West Virginia Rules of Appellate
Procedure, which provides as follows: “Supported by appropriate and specific references to the
appendix or designated record, the statement of the case must contain a concise account of the
procedural history of the case and a statement of the facts of the case that are relevant to the
assignments of error.”
5
err in finding that petitioner’s proportionality challenge to his recidivist life sentence has been
previously, fully, and finally adjudicated so it cannot be relitigated now. While petitioner is correct
that the crime for which he was convicted, breaking and entering, as defined by West Virginia
Code § 61-3-12, is not included in the list of qualifying crimes in the amended recidivist statute,
there is no support for petitioner’s contention that it should be retroactively applied. See Martinez,
239 W. Va. at 613, 803 S.E.2d at 583, Syl. Pt. 2 (citations omitted) (“The presumption is that a
statute is intended to operate prospectively, and not retrospectively, unless it appears, by clear,
strong and imperative words or by necessary implication, that the Legislature intended to give the
statute retroactive force and effect.”). Respondent asserts that the amendment to the recidivist
statute contains no such language. Further, this Court has recognized the inapplicability of the
amendments to the recidivist statute in recent proportionality challenges where the sentences pre-
dated the amendments. See State v. Plante, 19-0109, 2020 WL 6806375, at *1 n.1 (W. Va. Nov.
19, 2020)(memorandum decision); State v. Ingram, No. 19-0016, 2020 WL 6798906 at *1, n.2
(W. Va. Nov. 19, 2020)(memorandum decision). Therefore, we find that petitioner is not entitled
to relief on this ground.
Petitioner next argues that his life sentence violates the Eighth Amendment requirement of
proportionality. According to petitioner, he had three prior felony convictions, the most serious
being his convictions for unlawful wounding and felony escape in 1997 when petitioner was just
nineteen years old. He was subsequently convicted of attempted possession of a controlled
substance with intent to distribute in 2004 and two counts of grand larceny in 2006. The instant
conviction was for breaking and entering. Petitioner contends that the “only truly violent felony
on [his] record is the unlawful wounding.” He asserts that the breaking and entering convictions
did not involve actual or threatened violence. According to petitioner, this is not the kind of offense
that warrants the application of a life sentence, and petitioner’s recidivist life enhancement
represents an arbitrary and disproportionate application of the statute.
As this Court set forth in Funt I,
Contrary to petitioner’s argument, the record on appeal indicates that the circuit
court explicitly considered the proportionality of petitioner’s lifetime recidivist
sentence after petitioner filed his recidivist pretrial motions. The court heard the
parties’ arguments on the issue, requested additional briefing, and ultimately denied
petitioner’s pre-trial motion. The circuit court noted on the record that this Court
“upheld the imposition of the life recidivism after three felonies on property
crimes.” Following petitioner’s current recidivist conviction, he renewed his
previous motion at a posttrial hearing and the circuit court again denied petitioner’s
motion on the record and by order entered on November 22, 2016. . . . This Court
has articulated a test for application of the life recidivist statute:
The appropriateness of a life recidivist sentence under our
constitutional proportionality provision found in Article III, Section
5, will be analyzed as follows: We give initial emphasis to the nature
of the final offense which triggers the recidivist life sentence,
although consideration is also given to the other underlying
convictions. The primary analysis of these offenses is to determine
6
if they involve actual or threatened violence to the person since
crimes of this nature have traditionally carried the more serious
penalties and therefore justify application of the recidivist statute.”
Syl. Pt. 7, State v. Beck, 167 W.Va. 830, 286 S.E.2d 234 (1981). Petitioner’s most
recent offense, and the one triggering the recidivist life sentence, was breaking and
entering. He was previously convicted twice for grand larceny. Both of these crimes
are crimes that justify the application of the recidivist statute. Further, as to the
underlying offenses involved in this case, we have already upheld the imposition
of a life sentence under the recidivist statute in cases where the underlying felonies
were grand larceny and breaking and entering. See State v. Oxier, 179 W.Va. 431,
369 S.E.2d 866 (1988) (imposition of a life sentence upheld where defendant's most
recent conviction was for breaking and entering and the underlying felonies
consisted of two breaking and entering convictions and a grand larceny
conviction); see also [State v.] Vance, 164 W.Va. [216,] 223-225, 262 S.E.2d
[423,] 428 [1980]. Therefore, we find that petitioner’s most recent convictions for
breaking and entering and grand larceny were crimes that involved the threat of
harm or violence. Thus, the circuit court’s imposition of a recidivist life sentence
pursuant to West Virginia Code § 61-11-18 did not violate the proportionality
doctrine as prohibited by the West Virginia Constitution.
Funt I, at *3. We find no reason to disturb our earlier conclusion as to this issue, and the circuit
court did not err in denying petitioner relief on this ground.
Petitioner’s third assignment of error is that he received ineffective assistance of trial
counsel and appellate counsel on multiple grounds. With regard to trial counsel, petitioner asserts
that counsel failed to challenge the admissibility of evidence and failed to object to (1) improper
lay witness testimony proffered by Lt. Stapleton; (2) the admission of improper Rule 404(b)
evidence; (3) improper comments made by the prosecuting attorney during her closing argument;
and (4) the improper admission of photographs that the investigating officer took in the search of
petitioner’s outbuilding. In his reply, petitioner argues that, taken together, counsel’s introduction
of photographic evidence, failing to object to lay testimony regarding the photos, and failing to
object to the trial court’s statements and the prosecutor’s improper statements during closing were
objectively unreasonable; but for those acts and omissions, it is probable that the State could not
have met its burden to prove petitioner’s guilt beyond a reasonable doubt. Petitioner contends that
if defense counsel had not introduced the photographs, they would not have been admissible since
the State chose not to bring in the individual who altered them.
Further, petitioner asserts that Mr. Omps improperly provided testimony, pursuant to Rule
404(b) of the West Virginia Rules of Evidence, regarding prior break-ins at his property. In
support of that argument, petitioner quotes testimony from Mr. Omps wherein he testified that he
had floodlights and motion-activated lights but that he had to tighten the bulbs more than once.
The State also inquired as to the last time Mr. Omps’s garage was broken into. Petitioner asserts
that because Mr. Omps identified December 2 as the last time the garage was broken into, that
implied that petitioner was responsible for the alleged break-ins because police began investigating
petitioner shortly thereafter.
7
With regard to the alleged ineffective assistance of appellate counsel, petitioner argues that
his counsel was ineffective because he failed to raise numerous grounds on appeal, instead raising
only two issues: the admission of petitioner’s prior verdict during his recidivist trial and the
proportionality of petitioner’s recidivist life sentence. However, he failed to raise the violation of
petitioner’s Sixth Amendment right to confront and cross-examine the witnesses against him,
specifically to question B.W. and C.W. about their abuse and neglect proceeding. Petitioner further
argues that his appellate counsel also failed to raise two additional plain errors apparent from the
record: improper argument by the prosecutor during her closing argument and improper remarks
made by the trial judge. Finally, he asserts that appellate counsel was ineffective for failing to file
a petition for rehearing on petitioner’s direct appeal.
As we have found,
the cases in which a defendant may prevail on the ground of ineffective assistance
of counsel are few and far between one another. This result is no accident, but
instead flows from deliberate policy decisions this Court and the United States
Supreme Court have made mandating that “[j]udicial scrutiny of counsel’s
performance must be highly deferential” and prohibiting “[i]ntensive scrutiny of
counsel and rigid requirements for acceptable assistance[.]” Strickland [v.
Washington], 466 U.S. [668,] 689-90, 104 S.Ct. [2052,] 2065-66, 80 L.Ed.2d [674,]
694-95 [(1984)]. In other words, we always should presume strongly that counsel’s
performance was reasonable and adequate. A defendant seeking to rebut this strong
presumption of effectiveness bears a difficult burden because constitutionally
acceptable performance is not defined narrowly and encompasses a “wide range.”
The 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.
State v. Miller, 194 W. Va. 3, 16, 459 S.E.2d 114, 127 (1995).
“In the West Virginia courts, claims of ineffective assistance of counsel are
to be governed by the two-prong test established in Strickland . . . : (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[.]
Syl. Pt. 3, State ex rel. Vernatter v. Warden, W. Va. Penitentiary, 207 W. Va. 11, 528 S.E.2d 207(1999).
In reviewing [Strickland’s first prong,] counsel’s performance, courts must
apply an objective standard and determine whether, in light of all the circumstances,
8
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.
Miller, 194 W. Va. at 6-7, 459 S.E.2d at 117-18, Syl. Pt. 6. In reviewing the second prong,
prejudice, the court looks at whether “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceedings would have been different.” Vernatter, 207 W.
Va. at 13, 528 S.E.2d at 209, Syl. Pt. 3, in part (quoting Miller, 194 W. Va. at 6, 459 S.E.2d at 117,
Syl. Pt. 5, in part).
Respondent argues that petitioner did not receive ineffective assistance of counsel because,
as noted by the circuit court, petitioner’s claims of ineffective assistance of counsel either call into
question his trial counsel’s strategy or are wholly without merit. Even if they were not outside the
broad range of professionally competent assistance, there is not a substantial likelihood that the
outcome of the trial would have been different if trial counsel had chosen the strategy petitioner
now—with the benefit of hindsight—proposes. 5
Based upon our review of the record, we find that petitioner has failed to satisfy the
Strickland/Miller standard. With regard to the admission of the photograph depicting a person near
the time of the crimes, we find that counsel specifically addressed the issue during the habeas
hearing and explained that he believed the photograph did not show petitioner. Petitioner’s trial
counsel further testified that he showed the photograph to others who agreed with counsel that the
photograph did not show petitioner, as they believed another unspecified person was shown in the
photograph. It is apparent that counsel believed the photograph at issue would exonerate petitioner
so it is clear that the decision to admit it was a strategic decision. In fact, counsel was specifically
asked if it was a strategic decision to admit the photograph, and he confirmed that it was. With
regard to the photographs of the items found on petitioner’s property after the fact, trial counsel
testified that petitioner had given consent to search and told police it was
okay for them to come in and stood right there while [the officer] took the picture
after saying he’s okay with them searching and didn’t object to that. So that was
coming in in my view over my objection even if I did . . . so the reason I [admitted
5
Due to the brevity of respondent’s substantive argument on this issue, to which petitioner
devoted a substantial part of his brief and cited to the record more than twenty times, we remind
respondent of the following relevant portion of Rule 10(d) of the West Virginia Rules of Appellate
Procedure:
Unless otherwise provided by the Court, the argument section of the respondent’s
brief must specifically respond to each assignment of error, to the fullest extent
possible. If the respondent’s brief fails to respond to an assignment of error, the
Court will assume that the respondent agrees with the petitioner’s view of the issue.
9
the photograph of the person] was because it allowed me to change the focus from
the substantial evidence to this picture that did not look like [petitioner].
Thus, it is clear that these were strategic decisions.
We agree with the circuit court’s finding that Mr. Omps’s testimony regarding his lights
and the break-ins at his home did not constitute evidence of prior bad acts tied to petitioner in any
way. Early in Mr. Omps’s testimony, there were questions regarding cameras on his property,
followed by questions regarding outdoor lighting. At the conclusion of an answer regarding the
lighting, Mr. Omps volunteered that the last time his lights were not working was on December 2,
which he first reported to police on December 3 after he noticed that items were missing. This was
a natural lead-in to his testimony regarding the missing items, which was both necessary and
relevant to the crimes at issue. While petitioner speculates that that testimony was designed to
imply that petitioner was the one who committed the crimes, this is nothing more than self-serving
conjecture. Therefore, we cannot find, under the Strickland/Miller test, that trial counsel was
ineffective in failing to object to that testimony.
As set forth above, petitioner claims his appellate counsel’s representation was ineffective
because he failed to raise numerous grounds on appeal, instead raising only two issues: the
admission of petitioner’s prior verdict during his recidivist trial and the proportionality of
petitioner’s recidivist life sentence. However, he failed to raise the violation of petitioner’s Sixth
Amendment right to confront and cross-examine the witnesses against him, specifically to question
B.W. and C.W. about an abuse and neglect proceeding. While the issue was properly raised by
trial counsel in a post-trial motion, appellate counsel did not raise the issue on appeal.
He further asserts that appellate counsel also failed to raise two additional plain errors
apparent from the record: improper argument by the prosecutor during her closing argument and
improper remarks made by the trial judge. The prosecutor’s comments with which petitioner takes
issue are that petitioner’s red beard hair would appear “whited out” on the photo from the game
camera; the comment regarding the distance between petitioner’s and the Omps’s residences; and
the comments regarding Ms. Hartley’s credibility. With regard to the trial judge, during Ms.
Hartley’s examination, trial counsel asked her opinion as to whether petitioner was the individual
in the game camera photo, and the prosecutor objected. Without citing the record or quoting from
the transcript, petitioner asserts that the judge discussed the admissibility of Ms. Hartley’s opinion
in order to bolster Lt. Stapleton’s opinion testimony.
Petitioner’s final ineffective assistance of appellate counsel assertion is that counsel was
ineffective for failing to file a petition for rehearing on petitioner’s direct appeal given the alleged
factual and legal errors in this Court’s decision and a subsequent favorable decision regarding
recidivist enhancements. Without citing to the record, petitioner asserts that his appellate counsel
prepared a motion for rehearing but failed to file it; that petition purportedly alleged that five prior
felonies were attributed to petitioner but he had only three because multiple felony convictions
were obtained on the same day. Thereafter, this Court issued its opinion in State v. Kilmer, 240 W.
Va. 185, 808 S.E.2d 867 (2017), wherein it overturned a recidivist life sentence under a
proportionality analysis. He, therefore, contends that failing to file the petition for rehearing was
unreasonable and prejudiced petitioner.
10
With regard to appellate counsel’s failure to raise petitioner’s Sixth Amendment right to
confront B.W. and C.W. regarding a pending abuse and neglect case, we find that, as fully
addressed in the following assignment of error, petitioner’s rights were not violated based upon
the necessarily confidential nature of abuse and neglect proceedings. Therefore, appellate counsel
could not have been ineffective in failing to raise the nonmeritorious issue.
Regarding the prosecutor’s comments, this Court has found that “[a] judgment of
conviction will not be set aside 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.
Sugg, 193 W. Va. 388, 456 S.E.2d 469 (1995). In Sugg, this Court held that the prosecutor’s
comments should be examined using four factors:
(1) the degree to which the prosecutor’s remarks have a tendency to mislead the
jury and to prejudice the accused; (2) whether the remarks were isolated or
extensive; (3) absent the remarks, the strength of competent proof introduced to
establish the guilt of the accused; and (4) whether the comments were deliberately
placed before the jury to divert attention to extraneous matters.
Id. at Syl. Pt. 6, in part. Although we have frequently analyzed prosecutorial comments pursuant
to the Sugg standard, petitioner fails to analyze or discuss this test with regard to the prosecutor’s
comments, instead simply setting forth that standard when addressing alleged ineffective
assistance of trial counsel. Here, the prosecutor’s comments did not have a tendency to mislead
the jury or prejudice the accused; they were not extensive; there was sufficient competent proof
aside from the prosecutor’s isolated remarks; and petitioner has failed to show that the comments
were deliberately placed before the jury to divert attention to extraneous matters. Thus, petitioner
has failed to satisfy the Strickland/Miller standard in order to establish that appellate counsel was
ineffective by failing to raise this issue on direct appeal.
With regard to the circuit court’s allegedly improper comments, due to petitioner’s failure
to quote from the transcript or cite to the record in support of this contention, we decline to address
this portion of his argument. 6 Similarly, regarding his final allegation of ineffective assistance of
appellate counsel, the failure to file a petition for rehearing, petitioner fails to cite to the record to
show that he addressed this issue with the circuit court, continuing to violate Rule 10(c)(7) of the
6
Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure provides:
The brief must contain an argument exhibiting clearly the points of fact and law
presented, the standard of review applicable, and citing the authorities relied on,
under headings that correspond with the assignments of error. The argument must
contain appropriate and specific citations to the record on appeal, including
citations that pinpoint when and how the issues in the assignments of error were
presented to the lower tribunal. The Court may disregard errors that are not
adequately supported by specific references to the record on appeal.
11
West Virginia Rules of Appellate Procedure. 7
Petitioner next argues that the circuit court denied him his Sixth Amendment right to
confront witnesses by prohibiting counsel from questioning B.W. and C.W. about their pending
abuse and neglect case. He asserts that two of the State’s key witnesses were subjects of an abuse
and neglect proceeding, and the prosecutor on petitioner’s case was counsel for the Department of
Health and Human Resources (“DHHR”) at the same time she was prosecuting petitioner’s case.
However, the trial court prohibited defense counsel from cross-examining B.W. and C.W. about
the abuse and neglect proceeding because it concluded that such proceedings were confidential;
petitioner contends that in reaching that conclusion, the trial court “failed to recognize the
influence the prosecutor actually held in the abuse and neglect proceedings.” 8
By statute, with few exceptions, “all records and information concerning a child or juvenile
which are maintained by the Division of Juvenile Services, the [DHHR], a child agency or facility,
court or law-enforcement agency are confidential and shall not be released or disclosed to anyone,
including any federal or state agency.” W. Va. Code § 49-5-101(a). Petitioner’s request to impeach
the credibility of the State’s witnesses on their open abuse and neglect case does not fit into any
of the enumerated exceptions to that rule. See W. Va. Code § 49-5-101(b), (c). In addition, as this
7
In support of his contention that he was entitled to a rehearing due to the disproportionality
of his sentence, petitioner cites to State v. Kilmer, 240 W. Va. 185, 808 S.E.2d 867 (2017), which
we find unpersuasive as to petitioner’s argument. In that case, we found as follows:
We hold that the felony offense of driving while license revoked for DUI under
West Virginia Code § 17B-4-3(c) is not an offense that involves actual or threatened
violence to the person for purposes of invoking the recidivist statute, West Virginia
Code § 61-11-18(c). The recidivist life sentence imposed on Mr. Kilmer based upon
the predicate felony conviction for unlawful assault, together with two prior non-
violent felony convictions, violates the proportionality principle in Article III,
Section 5, of the West Virginia Constitution.
Because petitioner’s case does not involve the same crime and petitioner’s scant analysis does not
establish why his sentence should have been revoked on this basis, he has failed to satisfy the
Strickland/Miller test.
8
Petitioner further argues that his Sixth Amendment right to confront was again violated
when he was not permitted to cross-examine West Virginia State Police Captain Widmeyer, who
reportedly became involved with the photographs at the request of Mr. Omps, and Bob Carson,
the photo lab technician, of the State Police. However, due to his failure to cite to the record to
support his contention that he was not permitted to cross-examine these witnesses, the Court
declines to address this portion of petitioner’s argument. See West Virginia Rule of Appellate
Procedure 10(c)(7). Further, as we previously have stated, “[a] skeletal ‘argument,’ really nothing
more than an assertion, does not preserve a claim. . . . Judges are not like pigs, hunting
for truffles buried in briefs.” State, Dep’t of Health and Human Res., Child Advocate Office on
Behalf of Robert Michael B. v. Robert Morris N., 195 W. Va. 759, 765, 466 S.E.2d 827, 833
(1995) (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)).
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Court has held, “[t]his state recognizes a compelling public policy of protecting the confidentiality
of juvenile information in all court proceedings.” Syl. Pt. 7, State ex rel. Garden State Newspapers,
Inc. v. Hoke, 205 W. Va. 611, 520 S.E.2d 186 (1999). Respondent asserts that in the end, petitioner
had the opportunity to cross-examine the witnesses; the examination was just limited in scope. We
agree, as it is uncontested that petitioner was able to question B.W. and C.W. about issues relevant
to the crime and the charges against petitioner. We find that the circuit court did not err in limiting
the scope of the cross-examination of B.W. and C.W. to prohibit irrelevant questions regarding the
pending abuse and neglect case.
Finally, petitioner argues that the trial judge’s comments insinuating petitioner’s identity
in pictures in front of the jury violated petitioner’s right to a fair trial. Petitioner asserts that the
court seemed to cross-examine Ms. Hartley for the State by stating, “The question was that you
wanted to blame that on somebody else, right, so answer it.” Petitioner contends that that improper
interjection “clearly intimated to the jury that the trial court believed Ms. Hartley was being evasive
and unresponsive.” When B.W. was under oath, petitioner’s defense counsel asked if she recalled
speaking to his investigator, which she denied, so defense counsel offered to provide a transcript
of the recorded conversation to refresh her recollection. The court interjected, “Maybe it wasn’t
her.” Petitioner asserts that that comment suggested to the jury that B.W., a prosecution witness,
was credible while defense counsel was mistaken, undermining petitioner’s claims.
During Ms. Hartley’s examination, petitioner inquired about characteristics of the faces in
photos, similar to the questions posed to Lt. Stapleton. In response to an objection from the
prosecutor, the court stated,
Well, what I said was he talked about characteristics, not whether or not it was the
defendant. You kind of just asked whether or not it looked like [petitioner]. The
officer didn’t testify it looked like [petitioner]. He testified to the facial hair, the
crease, those matters, but he never came out and said I think it’s [petitioner]. In my
opinion that is the defendant. You’re now asking her that. So the objection was to
that and that’s what I had sustained but you already got your question.
Then, after an exchange between the attorneys and the court, the court continued, “I guess, ladies
and gentlemen, the ultimate conclusion is yours to decide, not the witness to decide as to whether
or not that’s the same individual who is charged here as [petitioner] in those photographs or not.
That’s up for you to do.” Petitioner contends that the court unnecessarily extrapolated the State’s
objection and extended its explanation in the presence of the jury and improperly implied to the
jury that Ms. Hartley’s testimony was less reliable than that of the investigating officer.
With regard to the first identified comment by the court, the witness was asked whether
she was at her daughter’s house and went into her bedroom and discovered pills but “wanted to
blame that on someone else, too.” The witness responded, “Marquez.” The court then clarified,
“The question was that you wanted to blame that on someone else, right, so answer it.” Respondent
asserts that the court was clearly not commenting on or opining about the witness’s credibility and
was, instead, merely directing her to answer the question. Regarding the second instance,
respondent asserts that petitioner mischaracterizes the interaction as the court disrupting defense
counsel by commenting, “Maybe it wasn’t her.” When B.W. was being questioned, she denied
13
speaking to defense counsel’s investigator and counsel offered to let her see the transcript of the
call to refresh her recollection. The court then interjected, “Ask her who she was speaking with.
She may not know this person was an investigator from your office.” As the exchange continued,
B.W. denied speaking to anyone, but the court allowed defense counsel to present the transcript to
her. The prosecutor then said, “But if she doesn’t [recall after looking at the transcript] then I think
we’re done at that point.” The court then responded, “Maybe it wasn’t her.” Respondent contends
that this comment in no way reflects the trial court’s opinion on the credibility of either the witness
or defense counsel, as petitioner suggests. He further asserts that it is “merely the off-handed
comment of a judge trying to keep his trial on track.”
The final instance identified by petitioner involved petitioner’s defense counsel asking Ms.
Hartley about facial features shown in the enlarged photo, to which the prosecutor objected,
asserting that counsel was leading the witness. When counsel asked what the difference was in the
face, the court responded as set forth above. Petitioner’s defense counsel then apologized, and the
following exchange occurred:
Court: They can rebut. If they want to put the officer back on and see if that’s his opinion
also, but just go to characteristics, not as to the defendant.
Petitioner’s counsel: So don’t compare the two.
Court: No, you can compare – do you think that chin line is the same chin line; do you
think that nose [is] the same nose. Just no –
Prosecutor: The ultimate conclusion.
Court: Yes, the ultimate conclusion if that’s the defendant.
***
Court: I guess, ladies and gentlemen, the ultimate question is yours to decide, not the
witness to decide as to whether or not that’s the same individual who is charged here as the
defendant is in those photographs or not. That’s up for you to do.
Respondent asserts that that exchange does not “expose the trial court’s opinion as to the credibility
of this witness compared to other witnesses; nor did the court improperly ‘extrapolate’ the State’s
objection.” We agree with respondent’s arguments as to this assignment of error. None of the
circuit court’s clarifications or comments rise to the level of expressing an opinion as to petitioner’s
guilt or the evidence. We further find that these comments did not violate petitioner’s rights. For
these reasons, we affirm the circuit court’s denial of petitioner’s petition for a writ of habeas
corpus.
Affirmed.
ISSUED: April 20, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice Alan D. Moats sitting by temporary assignment
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