                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Marvin Plumley, Warden, Huttonsville
Correctional Center,                                                                FILED
Respondent Below, Respondent                                                  November 20, 2015
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
vs) No. 15-0018 (Ohio County 10-C-139)                                           OF WEST VIRGINIA


William Laval Mayfield,
Petitioner Below, Respondent



                              MEMORANDUM DECISION
        Petitioner and respondent below Marvin Plumley, Warden, Huttonsville Correctional
Center (“the State”), by counsel David Stackpole, appeals the December 9, 2014, order of the
Circuit Court of Ohio County that granted the amended petition for writ of habeas corpus
subjiciendum filed by respondent and petitioner below William Laval Mayfield, who had been
convicted of one count of battery on a police officer, second offense. Respondent, by counsel
Robert G. McCoid, filed a response. The State 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 affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        On March 4, 2008, Wheeling Police Department Patrolmen Scott Barger and Brian Hails
responded to a call at an apartment complex in the North Park area of Ohio County, where they
observed two females, Ebony Gray and Santesha Nightengale, fighting on the floor. The officers
also observed respondent, who was Ms. Nightengale’s boyfriend, bending over the women,
yelling, and trying to break up the scuffle. Officer Barger testified that as he attempted to pull
Ms. Gray off of Ms. Nightengale, respondent, who was standing to the left of the doorway, “put
his hands on my chest and shoved me away and told me: We don’t need you here; I have this
under control.” Officer Barger told respondent repeatedly to “get out of our way, allow us to do
what we needed to do.” As Officer Hails pulled Ms. Gray off of Ms. Nightengale and began to
escort her down the hallway, away from the scene, petitioner ran after them, put his arm between
the officer and Ms. Gray, and shoved Officer Hails against the wall, away from Ms. Gray. Ms.
Gray then ran back down the hallway and attacked Ms. Nightengale again. Officer Hails arrested
respondent while Officer Barger broke up the second fight between the women and arrested Ms.
Gray. It is undisputed that neither officer was injured.


                                                1

        The officers arrested respondent and charged him with the misdemeanor offense of
obstructing an officer. That charge was thereafter dismissed in magistrate court upon motion by
the prosecuting attorney. Nineteen days later, respondent was charged with two felony counts of
battery on a police officer, second offense.1

       Trial began on July 14, 2008. On the morning thereof, the State made an oral motion in
limine to preclude respondent from introducing evidence of the fact that he was originally
charged with the misdemeanor offense of obstructing an officer. Respondent vigorously
objected; however, the court overruled respondent’s objection and granted the State’s motion.2

        The jury found respondent guilty on one of the two counts of battery upon a police
officer. An identity trial was subsequently held for the purposes of the State’s recidivist pleading,
wherein a second jury determined respondent to be the same person previously convicted of the
felony offenses of wanton endangerment involving a firearm and possession with intent to
deliver a Schedule I controlled substance. Respondent was sentenced to life in prison.

      Respondent’s direct appeal of his conviction was refused by this Court by order entered
September 9, 2009.

        On July 18, 2014, respondent filed an amended petition for writ of habeas corpus
subjiciendum. Respondent’s petition was granted by order entered December 9, 2014, in which
the habeas court held that the trial court (1) denied respondent the right to meaningfully confront
his accusers by prohibiting him from impeaching the officers with evidence that they had

       1
        The habeas court found that, following respondent’s indictment, counsel for the State
approached respondent’s counsel and advised him that

       if [respondent] agreed to plead guilty to attempted murder in an unrelated matter,
       the State would desist in prosecuting [respondent] for battery on a police officer.
       [The Wheeling Police Department] suspected that [respondent] was involved in
       an unrelated shooting, but it lacked the evidence to pursue the charge, and, to
       date, no one has been charged in connection with that shooting. [Respondent]
       declined the State’s offer.
       2
           Additionally, prior to trial, respondent moved to bifurcate the issue of proof of the
instant offense from the proof of the status offense. Respondent’s motion was granted.
Thereafter, the State filed a notice of intent to introduce evidence of respondent’s “prior bad
acts,” pursuant to West Virginia Rule of Evidence 404(b). At a subsequent hearing, the State
advised the trial court that it intended to introduce evidence that respondent battered a Wheeling
police officer on October 15, 2006, to which respondent objected. The trial court deferred its
ruling and, following the officers’ trial testimony, the trial court granted the State’s request to
present 404(b) evidence. After evidence of respondent’s prior battery upon a police officer was
presented, and again at the close of all the evidence, the trial court gave a limiting instruction.
Thereafter, while the jury was deliberating, respondent admitted (out of the presence of the jury)
that he was the person previously convicted of battery of a police officer, first offense, and so
testified.
                                                 2

initially charged him with the relatively minor misdemeanor offense of obstructing an officer,
and (2) improperly allowed the 404(b) evidence. See n.2, supra.3 The habeas court thus vacated
respondent’s conviction for battery on a police officer, second offense, and his subsequent
conviction as a lifetime habitual offender. Respondent was awarded a new trial. It is from this
order that the State now appeals.

        This Court reviews the habeas court’s order granting respondent’s request for habeas
relief under the following standard:

               In reviewing challenges to the findings and conclusions of the circuit court
       in a habeas corpus action, we apply a three-prong standard of review. We review
       the final order and the ultimate disposition under an abuse of discretion standard;
       the underlying factual findings under a clearly erroneous standard; and questions
       of law are subject to a de novo review.

Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

        The State argues that the habeas court erred in concluding that respondent’s constitutional
right to confront the witnesses against him was violated when he was foreclosed from cross-
examining the complaining officers as to their decision to charge him with the misdemeanor
offense of obstruction of an officer. As indicated above, the obstruction charge was dismissed
upon a motion by the prosecuting attorney and, nineteen days later, respondent was charged with
two felony counts of battery on a police officer, second offense. It is undisputed that no new
facts had come to light between the initial arrest for obstructing and the time respondent was
charged with battery. The habeas court concluded that the trial court “hamstrung [respondent]
from exploring on cross-examination why the officers apparently did not regard [the officers’]
conduct as being ‘insulting and provoking’ on the heels of their arrest of him for the offense of
obstructing a police officer but evidently concluded later that it was.”4 The habeas court further
found that the trial court barred “meaningful cross-examination on the issue comprising the very
heart of the State’s case,” that such cross-examination could have permitted the jury to “assess[]
the credibility of the arresting officers through their answers and demeanor when pointedly asked
by trial counsel why they elected not to charge [respondent] with battery on an officer, second
       3
          On appeal, the State argues that it was error for the habeas court to conclude that the
trial court improperly admitted the 404(b) evidence regarding respondent’s prior battery on a
police officer. Given that we affirm the habeas court’s order on the ground that the trial court
violated respondent’s constitutional rights under the Confrontation Clause, and the court’s
conclusion that “[v]acation of [respondent’s] conviction on this basis alone is required[,]” we
need not address the State’s 404(b) argument.
       4
          The indictment charged respondent with two counts of battery on a police officer,
second offense, alleging that, “by feloniously, knowingly, intentionally and unlawfully making
physical contact of an insulting or provoking nature with” Officers Barger and Hails “or
feloniously, knowingly, unlawfully and intentionally causing physical harm to” Officers Barger
and Hails while they were acting in their official capacities. (Emphasis added). The indictment
further alleges that respondent was previously convicted of such offense on January 5, 2007, in
the Magistrate Court of Ohio County. See W.Va. Code § 61-2-10b(c).
                                                3

offense, when it was within their discretion to do so[,]” and that this was “a serious error of
constitutional magnitude.”

        The State argues that the habeas court wrongfully assumed that the officers changed their
minds with regard to whether respondent’s conduct was “insulting or provoking” and that it was
the prosecuting attorney, acting within his discretion, who directed that the felony charges be
filed. The State further argues that cross-examination on the issue would not have been permitted
in any event because neither the obstructing charge nor the battery charge were covered on direct
examination. Finally, the State argues, any error in denying petitioner the right to cross-examine
the officers on the obstructing charge was harmless because it did not have any prejudicial
impact on the jury verdict. To the contrary, the State contends that it would have adversely
impacted the State’s case because such questioning would have encouraged the jury to second-
guess the prosecutor’s decision and infringe upon the same.

               “The Confrontation Clause contained in the Sixth Amendment to the
       United States Constitution provides: ‘In all criminal prosecutions, the accused
       shall . . . be confronted with the witnesses against him.’ This clause was made
       applicable to the states through the Fourteenth Amendment to the United States
       Constitution.” Syl. Pt. 1, State v. James Edward S., 184 W.Va. 408, 400 S.E.2d
       843 (1990), overruled on other grounds by, State v. Mechling, 219 W.Va. 366,
       633 S.E.2d 311 (2006).

Syl. Pt. 2, State v. Kaufman, 227 W.Va. 537, 711 S.E.2d 607 (2011). Furthermore, “[a]n
essential purpose of the Confrontation Clause is to ensure an opportunity for cross-examination.
In exercising this right, an accused may cross-examine a witness to reveal possible biases,
prejudices, or motives.” Syl. Pt 1, in part, State v. Mason, 194 W.Va. 221, 460 S.E.2d 36 (1995),
overruled on other grounds by State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006).

        We find no error in the habeas court’s conclusion that respondent’s constitutional right to
confront his accusers was violated. The officers were not only the key witnesses against
respondent, they were also the victims of the alleged battery. As such, the credibility of their
testimony was critical to the State’s case. At trial, the officers conceded that they were not
injured as a result of respondent’s actions and that respondent was trying to help and protect Ms.
Nightengale, who was pregnant with his child. At the time of the incident at issue, the officers, in
their discretion, determined that respondent had committed the relatively minor offense of
obstructing an officer.5 It is undisputed that no new facts were discovered between the time the
obstructing charge was dismissed and the time respondent was charged with battery on an
officer, second offense. Given this fact, respondent was entitled to impeach the officers with

       5
          West Virginia Code § 61-5-17(a), in pertinent part, which defines the offense of
obstructing an officer, provides that “[a] person who by threats, menaces, acts or otherwise,
forcibly or illegally hinders or obstructs, or attempts to hinder or obstruct, a law enforcement
officer, probation officer or parole officer acting in his or her official capacity is guilty of a
misdemeanor” and subject to a fine of not less than $50 nor more than $500, or one year in jail,
or both.


                                                 4

evidence of their decision, at the time of the altercation, to charge respondent with a much lesser
offense. This line of questioning would have been particularly significant given that the battery
charge was determined by the sentencing court to be a violent crime that carried capital
sentencing implications for respondent; as a result of respondent’s conviction, he received a life
sentence under the recidivist statutes.

        “‘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.’ Syl. Pt. 20,
State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).” Syl. Pt. 5, State v. Lambert, 232
W.Va. 104, 750 S.E.2d 657 (2013). For the reasons previously stated, the importance of the
officers’ testimony to respondent’s case cannot be understated. Thus, the trial court’s error in
disallowing cross-examination on their decision to charge respondent with a misdemeanor was
not harmless. Furthermore, although the State avers that its case would have been unfairly
prejudiced by the admission of such evidence, we disagree. Rather, allowing the jury to consider
the officers’ testimony in this regard would have afforded the jury the opportunity to fully assess
the credibility of the officers, within whose discretion the initial charging decision was made,
and would not have infringed upon the prosecuting attorney’s decision to charge respondent with
battery.

        Finally, the State argues that cross-examination of the officers with regard to the
obstructing charge would not have been permitted because no information regarding this charge
was elicited on direct examination. This argument is without merit. This Court has stated that
“‘cross-examination to impeach is not, in general, limited to matters brought out on the direct
examination.’” State v. Foster, 171 W.Va. 479, 482-83, 300 S.E.2d 291, 295 (1983) (quoting
McCormick on Evidence § 37, at 49 (E. Cleary 3d ed. 1984)). Indeed, “[t]he right to an effective
cross-examination is an integral part of the confrontation clause of the Sixth Amendment to the
United States Constitution, Snyder v. Coiner, 510 F.2d 224 (4th Cir.1975), and this right does not
yield to a Rhadamanthine application of court rules governing order of proof.” Foster, 171
W.Va. at 483, 300 S.E.2d at 295.

       For the foregoing reasons, we affirm.

                                                                                         Affirmed.

ISSUED: November 20, 2015

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum




                                                 5

DISSENTING AND WRITING SEPARATELY:

Justice Allen H. Loughry II

Loughry, Justice:

        I dissent to this memorandum decision because the circuit court granted the petition for
habeas corpus based on rulings of the trial court that were wholly discretionary evidentiary
rulings. Although I do not believe the trial court abused its discretion,6 even if the rulings had
been in error, they certainly would not constitute constitutional error warranting habeas corpus
relief.

        Fundamental to our system of jurisprudence is that post-conviction habeas corpus relief is
only granted for error violating a criminal defendant’s constitutional rights. “A habeas corpus
proceeding is not a substitute for a writ of error in that ordinary trial error not involving
constitutional violations will not be reviewed.” Syl. Pt. 4, State ex rel. McMannis v. Mohn, 163
W.Va. 129, 254 S.E.2d 805 (1979); accord Edwards v. Leverette, 163 W.Va. 571, 576, 258
S.E.2d 436, 439 (1979) (recognizing that only error of “constitutional dimensions” is proper
subject of habeas proceeding; trial error is not cognizable in habeas). “Absent ‘circumstances
impugning fundamental fairness or infringing specific constitutional protections,’ admissibility
of evidence does not present a state or federal constitutional question. Grundler v. North
Carolina, 283 F.2d 798, 802 (4th Cir.1960).” Hatcher v. McBride, 221 W.Va. 5, 11, 650 S.E.2d
104, 110 (2006).7

        In the case at bar, the circuit court granted habeas relief on two separate grounds: the
trial court’s in limine ruling excluding information about the initial criminal complaint against
the respondent, and the trial court’s admission of 404(b) evidence8 concerning the respondent’s
prior conviction for battery on a police officer. Although the majority of this Court has chosen to
address only the “initial complaint” issue in the memorandum decision, neither of these grounds
warrant the circuit court’s award of habeas relief to the respondent.



       6
        These same issues were raised in the respondent’s direct criminal appeal, which this
Court considered and unanimously refused six years ago. State v. Mayfield, No. 090897 (refusal
order entered Nov. 9, 2009).
       7
         Moreover, even when evidentiary rulings are raised in a direct criminal appeal, they are
subject to an abuse of discretion standard of review. See Syl. Pt. 4, State v. Rodoussakis, 204
W.Va. 58, 511 S.E.2d 469 (1998) (“A trial court’s evidentiary rulings, as well as its application
of the Rules of Evidence, are subject to review under an abuse of discretion standard.”); Syl. Pt.
4, State v. Carduff, 142 W.Va. 18, 93 S.E.2d 502 (1956) (“The extent of the cross-examination of
a witness is a matter within the sound discretion of the trial court; and in the exercise of such
discretion, in excluding or permitting questions on cross-examination, its action is not reviewable
except in case of manifest abuse or injustice.”).
       8
           See W.Va. R. Evid. 404(b).
                                                6

                                 The Initial Criminal Complaint

        The police officers initially charged the respondent in magistrate court with misdemeanor
obstruction of a police officer. See W.Va. Code § 62-1-1 (2014) (providing for filing of
complaint in magistrate court). However, the State explains that after reviewing what happened
in this matter,9 and upon considering the respondent’s prior conviction for battery on a police
officer, the prosecuting attorney directed that the charges be changed to two counts of felony
second offense battery on a police officer. More importantly, the grand jury thereafter indicted
the respondent for two counts of second offense battery on a police officer. Thus, the indictment
became the formal charging instrument against the respondent. See W.Va. Code § 62-2-1 (2014)
(felony trial shall be by indictment); W.Va. Const. art. III, § 4 (2013) (decision to indict rests
with grand jury).

        During the criminal trial, the respondent’s counsel argued that he should be permitted to
cross-examine the police officers about the initial, but dismissed, criminal complaint because it
would show the officers’ “mindset.” However, because the question of whether the officers had
been battered was the ultimate issue to be determined at trial, and because the grand jury found
probable cause to indict the respondent for battery of the officers, the trial court refused to allow
this limited area of cross-examination. Nonetheless, the respondent’s counsel was permitted to
fully cross-examine the police officers regarding what happened during the events in question.

        The habeas circuit court, and now a majority of this Court, concluded that the trial court
violated the respondent’s constitutional right of confrontation by prohibiting cross-examination
of the police officers about the initial complaint. The majority reasons that this inquiry would
have shed light on the officers’ credibility, but this reasoning makes little sense. The police
officers did not decide to upgrade the charges, rather, the prosecutor made that decision—and the
grand jury indicted the respondent on these crimes. Importantly, there was nothing preventing
the respondent’s counsel from thoroughly cross-examining the officers about the events in
question and the officers’ perception of those events. The trial court only limited the respondent
from eliciting that he had previously been charged with a different crime. Whether the
respondent committed the crime charged in the indictment was for the jury to decide. The trial
court simply made an evidentiary ruling regarding the extent of cross-examination. Such
evidentiary rulings are not cognizable in habeas.


                              404(b) Evidence of Prior Conviction

       The habeas circuit court’s other basis for granting relief was the trial court’s admission,
pursuant to Rule 404(b) of the Rules of Evidence, of evidence regarding the respondent’s prior
conviction for battery on a police officer. Although the majority of this Court has declined to
even address this issue, my review convinces me that this also pertains to a discretionary
evidentiary ruling not cognizable in habeas.



       9
       According to the police officers, the respondent shoved Officer Barger and then ran
down a hallway and shoved Officer Hails against a wall.
                                                 7

         The respondent was indicted for second offense battery of a police officer. Complying
with the directive of State v. McCraine, 214 W.Va. 188, 588 S.E.2d 177 (2003), which set forth
the law in effect at the time, the trial court bifurcated the trial with regard to the jury’s decision
on whether the respondent was convicted of the first offense.10 Nonetheless, the trial court found
that the respondent’s conduct leading to that first conviction was admissible in the first phase of
this trial under Rule 404(b) to show intent, motive, and knowledge. The trial court also ruled
that the probative value of this evidence was not substantially outweighed by its potential for
unfair prejudice. See W.Va. R. Evid. 403. The jury received a limiting instruction regarding the
proper use of 404(b) evidence.

        The habeas circuit court reasoned that because McCraine mandated bifurcation of the
jury’s decision about the existence of the respondent’s prior conviction, it was significantly
prejudicial to admit evidence regarding that prior offense under Rule 404(b). The habeas circuit
court’s rationale was based entirely on the bifurcation directive in McCraine. However, two
weeks before the circuit court entered its habeas order, this Court overruled McCraine in
syllabus point six of State v. Herbert, 234 W.Va. 576, ___, 767 S.E.2d 471, 474 (2014). In
Herbert, we held that when a prior conviction merely enhances the penalty of the offense
currently charged, and the defendant does not stipulate to his prior conviction, the decision of
whether to bifurcate these issues rests within the trial court’s discretion. Id.11 In other words,
this Court does not believe that information about a prior conviction is so significantly
prejudicial as to mandate bifurcation in every case. If this type of evidence is not so prejudicial
as to require mandatory bifurcation, then I cannot conclude that it would be so fundamentally
unfair as to rise to the level of a constitutional violation cognizable in habeas.

       Because habeas corpus relief was not warranted in this matter, I respectfully dissent.




       10
          Due to the bifurcation, the trial court’s plan was that if the jury found the respondent
guilty of battery on an officer in the first phase of the trial, a second phase of the trial would then
be held where the jury would consider whether the respondent was previously convicted of this
same offense. However, while the jury was deliberating in the first phase, the respondent
stipulated to his prior conviction for battery on a police officer. Thus, the second phase became
unnecessary.
       11
        Although I dissented to a different portion of Justice Ketchum’s opinion in Herbert, I
supported the holding on the bifurcation issue.
                                                  8

