                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

Walter Lee Swafford II,                                                             FILED
Petitioner Below, Petitioner                                                     May 15, 2015
                                                                              RORY L. PERRY II, CLERK
vs) No. 14-0650 (Fayette County 02-C-293)                                   SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA

David Ballard, Warden
Respondent Below, Respondent

                               MEMORANDUM DECISION
        Petitioner Walter Lee Swafford, by counsel Thomas A. Rist, appeals the June 4, 2014,
order of the Circuit Court of Kanawha County, which denied petitioner’s Second Amended
Petition for Writ of Habeas Corpus. Respondent, David Ballard, Warden, by counsel Derek A.
Knopp, filed a response.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        Petitioner was indicted in September of 1997 for the offenses of first degree murder,
attempted aggravated robbery, and conspiracy to commit a felony. Trial commenced in January
1998, but a mistrial was declared after it was discovered that one of the jurors was related to
petitioner. A second trial began on January 20, 1998. Petitioner was convicted of first degree
murder without a recommendation of mercy and conspiracy to commit a felony. Those
convictions were overturned by this Court in State v. Swafford, 206 W.Va. 390, 524 S.E.2d 906
(1999). At the pre-trial hearing before the third trial, two of petitioner’s co-defendants, Margaret
Telouzi and Tara Williams, who were witnesses for the State, informed the court that they would
not testify a trial. The trial court deemed the witnesses unavailable and allowed the State to read
the witnesses’ testimony from one of the prior trials1 into the record. On April 25, 2001,
petitioner’s third trial resulted in petitioner being convicted of first degree murder and conspiracy
to commit the offense of attempted aggravated robbery. Petitioner was sentenced to life with
mercy for the murder conviction and one to five years for the conspiracy conviction.

        On September 22, 2002, petitioner filed a habeas corpus petition in the Circuit Court of
Fayette County and received court appointed counsel on December 4, 2002. However, nothing
was filed on petitioner’s behalf and the circuit court dismissed the action on March 5, 2005.
Petitioner filed a Motion for Reconsideration and received appointment of new counsel.

       1
         Our review of the trial transcripts provided in the appendix does not reveal if the
testimony read into the record was from the first or second trial of petitioner.
                                                 1

Petitioner’s new counsel subsequently withdrew, and petitioner was appointed a new attorney.
After recusal by both Fayette County Circuit Court Judges, The Honorable Judge Louis H.
Bloom was assigned to preside over the case by this Court. On December 28, 2013, petitioner
completed a Losh2 checklist, and requested leave of the circuit court to file a second habeas
petition. Petitioner’s third counsel filed petitioner’s Second Amended Petition for Writ of Habeas
Corpus on January 6, 2014. A hearing was held on petitioner’s habeas petition on March 28,
2014. Petitioner appeals the June 4, 2014, order denying his claims for habeas relief.

        Petitioner asserts five assignments of error. Petitioner alleges that his constitutional rights
under the Confrontation Clause of the United States Constitution were violated when two of his
co-defendants were declared unavailable and their prior testimony was read into evidence; that
his constitutional rights under the Fifth Amendment of the United States Constitution were
violated when the prosecuting attorney made statements that petitioner asserts alluded to
petitioner’s decision not to testify at trial; that the trial court erred by not granting his Motion for
Judgment of Acquittal3; that petitioner was not present during a critical stage of trial; and that
petitioner suffered from ineffective assistance of counsel.

               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).

         First, petitioner asserts that a violation of the Confrontation Clause of the Sixth
Amendment of the United States Constitution occurred at trial, in that his co-defendants were
declared unavailable and their prior testimony was read into evidence. It is well established that
out of court statements by witnesses that are testimonial are barred under the Confrontation
Clause, unless witnesses are unavailable and defendants had prior opportunity to cross-examine
witnesses, regardless of whether such statements are deemed reliable by the court. See Crawford
v. Washington, 541 U.S. 36 (2004); Syl. Pt. 6, State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311
(2006). Petitioner, citing State ex rel. Humphries v. McBride, 220 W.Va. 362, 647 S.E.2d 798
(2007), asserts that the State must first have shown that the witnesses were truly unavailable to
testify. Petitioner concedes that the witnesses testified at a previous trial and were subject to
cross-examination. Petitioner argues that after a very brief colloquy, the witnesses were excused
from testifying.

       2
           See Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981).
       3
          Petitioner’s third assignment of error alleges insufficient evidence to sustain petitioner’s
conviction. We previously held, “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). See also State ex
rel. Edgell v. Painter, 206 W.Va. 168, 522 S.E.2d 636 (1999) (finding that denial of motion for
acquittal is not a proper ground to assert in a habeas proceeding).
                                                   2

        The State responds that prior to the trial, the State properly moved for the instant
witnesses to be declared unavailable pursuant to West Virginia Rule of Evidence Rule 804, after
making a good faith effort to produce the witnesses at trial. At a hearing regarding the motion,
both of the co-defendants/witnesses were ordered by the trial court to testify, and responded that
they did not wish to do so. The trial court informed Williams that “any repercussions for that
refusal to testify are certainly of your own doing.” We agree with the State and find that the
circuit court did not err in finding no Confrontation Clause violation.

         According to West Virginia Rules of Evidence 804(a)(2), a declarant is considered to be
unavailable as a witness if the declarant “refuses to testify about the subject matter despite a
court order to do so.” Further, petitioner was not deprived of the right to cross-examine the
witnesses. Petitioner was present at the previous trial where both witnesses testified; and at that
trial petitioner’s counsel was afforded ample opportunity to cross-examine the witnesses. This
testimony, which was read into evidence in petitioner’s final criminal trial, was properly
admitted, considering the witnesses’ refusal to testify. Further, pursuant to Rule 804(b)(1)(A),
former testimony is not excluded by the rule against hearsay if a declarant is unavailable4.
Accordingly, petitioner’s right to confront his accusers under the Confrontation Clause of the
United States Constitution was not violated, and the circuit court did not err by allowing the prior
trial testimony of the unavailable witnesses to be read into the record at petitioner’s trial.

        Petitioner next asserts that the prosecuting attorney made two statements that violated
petitioner’s Fifth Amendment rights by improperly commenting on the fact that petitioner did
not testify. In the first instance, during rebuttal closing argument, petitioner asserts that the
prosecuting attorney stated, “[n]ow, as attorneys, we like to have witnesses testify from the
stand.5” In the second instance, petitioner asserts that the prosecuting attorney “stealthily

       4
           West Virginia Rules of Evidence 804(b)(1)(A) defines former testimony as,

       (t)estimony that:

       (A) was given as a witness at a trial, hearing, or lawful deposition, whether given
       during the current proceeding or a different one; and

       (B) is now offered against a party who had - or, in a civil case, whose predecessor
       in interest had - an opportunity and similar motive to develop it by direct, cross-,
       or redirect examination.
       5
           The complete statement of the prosecuting attorney, in context, is as follows:

       Now, as attorneys, we like to have witnesses testify from the stand, like Heather
       Johnson and other witnesses in this case. And the Court instructed you at the time
       that you heard the testimony that you’re to consider that the same as if those
       women took the stand personally in this courtroom. You’re to consider it just like
       all the other testimony.


                                                  3

emphasized” petitioner’s failure to testify6. Arguing that “[i]t is prejudicial error in a criminal
case for the prosecutor to make statements in the final argument amounting to a comment on the
failure of the defendant to testify.” Syl. Pt. 4, State v. Bennett, 172 W.Va. 131, 304 S.E.2d 35
(1983); petitioner asserts that both statements improperly commented upon his decision not to
testify, in violation of his Fifth Amendment rights under the United States Constitution.

         Under the Fifth Amendment of the United States Constitution, no person in any criminal
case shall be compelled to be a witness against himself, and an accused’s decision to refrain from
testifying creates no presumption against him and shall not be the subject of any comment before
the court or jury. U.S. Const. amend. V. “The general rule formulated for ascertaining whether a
prosecutor's comment is an impermissible reference, direct or oblique, to the silence of the
accused is whether the language used was manifestly intended to be, or was of such character
that the jury would naturally and necessarily take it to be a reminder that the defendant did not
testify.” State v. Clark, 170 W.Va. 224, 227, 292 S.E.2d 643, 646-47 (1982) (citations omitted).

        The circuit court found that petitioner’s Fifth Amendment rights under the United States
Constitution and West Virginia Constitution were not violated by the prosecutor’s statement,
“we like to have witnesses testify from the stand.” We agree. A review of the context in which
the statement was made reveals that the prosecuting attorney was not referring to petitioner, but
to the witnesses who did not testify at trial because they were deemed unavailable.




       6
           The argument in question by the prosecuting attorney is as follows:

       Let’s look at – in deciding the issue of mercy, let’s look at the reason for this
       killing. Let’s look at the reason the gun was taken.

       Was this a killing that was done for Mr. Swafford to feed his family, for some
       crisis that he had? Was it a killing that the reason for the killing was that they
       went in there and Joe Hundley grabbed a knife or gun and was coming at them
       and they had to shoot him other than maybe lose their life? That wasn’t the
       circumstances, was it?

       The reason for this killing was greed. It appears, greed. But it could also be, based
       on the evidence, sort of a macho thing with these two boys, Wally Swafford and
       Mark Yoney. They wanted to show these girls just how tough they were. “We’ll
       go to protect you and if you don’t get the money by trick, we’ll beat it out of him.
       We’ll beat him with a cinderblock and our fists and anything else.”

       What about remorse? Mr. Skeens touched on that a little bit, the anger that they
       had. And they weren’t angry because they – they weren’t sorry that they’d killed a
       man or hurt a man. They don’t know whether he was dead or alive. They hoped
       he was dead. “If he’s not dead, we’ll have to go back and kill him.” Does that
       show remorse?


                                                 4

        Likewise, the circuit court found that petitioner’s Fifth Amendment rights were not
violated by the prosecutor’s second statement. Petitioner argues that this remark by the
prosecuting attorney was similar to remarks made in State v. Starcher, 168 W.Va. 144, 145, 282
S.E.2d 877, 878 (1981), wherein a prosecutor recounted witness testimony during closing
argument and then stated: “but what was in the mind of this man [the defendant] at the time the
transfer was made? Only he [the defendant] knows.” In Starcher, this Court held, that “[b]y
directing attention to what was in the appellant’s mind, the prosecutor stealthily emphasized that
he had not testified and had not revealed his thoughts.” 168 W.Va. at 146, 282 S.E.2d at 878.

        In this matter, the circuit court held that the comments of the prosecuting attorney in his
closing argument did not allude to the fact that petitioner did not testify, nor did the comments
ask the jury to inquire into the mind of the petitioner. As the comments referred to a collective
“they”, the circuit court held that the comments suppose what may have motivated the actions of
petitioner and his co-defendant. The circuit court held further that the comments were properly
argued to discourage the jury from granting mercy for petitioner, recounting facts delineated
during the trial which the prosecuting attorney argued demonstrated that petitioner did not show
any remorse for his actions7.

        We agree with the circuit court, and find that the facts in this case are not similar to the
facts in Starcher. A review of the statements in question reveals that the prosecuting attorney
properly argued potential motive for the murder, and nothing in the prosecuting attorney’s
comments appears to serve as a reminder, implicit or otherwise, that petitioner did not testify in
his own defense. Accordingly, we find this assignment of error to be without merit.

        Next, petitioner argues that he was not present during a critical stage in the trial, in
violation of Article III, Section 14 of the West Virginia Constitution and West Virginia Code §
62-3-2. Petitioner asserts that he was not present when the State and his trial counsel determined
which portions of the prior trial transcripts were to be read into the record. We previously held
that a criminal defendant “has a right under [a]rticle III, [s]ection 14 of the West Virginia
Constitution to be present at all critical stages in the criminal proceeding; and when he is not, the
State is required to prove beyond a reasonable doubt that what transpired in his absence was
harmless.” Syl. Pt. 6, in part, State v. Boyd, 160 W.Va. 234, 233 S.E.2d 710 (1977).

        In response, the State argues that “[t]he right to be present is not a right to be present at
every moment, but a right to be present at all ‘critical stages’ in a criminal proceeding.” State v.
Shabazz, 206 W.Va. 555, 557, 526 S.E.2d 521, 523 (1999). The State asserts that the discussion
which took place between petitioner’s trial counsel and the prosecuting attorney did not take
place during trial, and was not a “critical stage” in the proceeding which required petitioner’s
presence. The circuit court found that the purpose of this discussion, which took place outside of
the trial, was for the attorneys to discuss how to excise certain portions of the transcript
testimony deemed inadmissible by way of sustained objections; and held that the discussion was
not a critical stage in the proceeding. We agree with the circuit court.

       7
        These facts include testimony that petitioner and his co-defendants did not call 911 and
drove away to a friend’s house where they laughed about Mr. Hundley’s death and played card
games.
                                                 5

        “A critical stage of a criminal proceeding is where the defendant’s right to a fair trial will
be affected.” Syl. Pt. 2, State v. Tiller, 168 W.Va. 522, 285 S.E.2d 371 (1981). Rule 43(c)(3) of
the West Virginia Rules of Criminal Procedure provides that a defendant need not be present
“[a]t a conference or argument upon a technical question of law not depending upon facts within
the personal knowledge of the defendant.” It is clear that this discussion between petitioner’s
counsel and the prosecuting attorney, which took place outside of the presence of the judge, jury,
and defendant, primarily concerned the technical question of omitting inadmissible portions of
the prior transcripts. Thus, this was not a critical stage in the proceeding and the circuit court did
not err in denying petitioner’s assignment of error.

         Finally, petitioner asserts that his trial counsel provided ineffective assistance of counsel,
and gives the following six reasons for his claim: (1) trial counsel told petitioner he “had better
things to do than represent you again”; (2) trial counsel refused to subpoena witnesses declared
to be unavailable at trial; (3) trial counsel failed to object to the co-defendant’s refusal to testify;
(4) trial counsel was having severe health issues during trial; (5) trial counsel failed to object to
the State’s showing photos to witnesses off the record; and (6) trial counsel refused to interview
witnesses petitioner identified at the time of trial.

        Petitioner cites the two-pronged test established in Strickland v. Washington, 466 U.S.
668 (1984), but fails to develop any argument in support of his claim. Petitioner simply lists each
“reason” without discussion or analysis of the applicable text. Rule 10(c)(7) of the West Virginia
Rules of Appellate Procedure, requires that petitioner’s brief contain an argument exhibiting
clearly the points of fact and law presented. This Court previously found “[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 v. Kaufman, 227 W.Va. 537, 555 n.39, 711
S.E.2d 607, 625 n.39 (2011) (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.
1991)). For that reason, we decline to address petitioner’s final assignment of error, as petitioner
did not set forth sufficient argument to preserve a claim.

        For the foregoing reasons, we affirm.
                                                                                             Affirmed.

ISSUED: May 15, 2015

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Allen H. Loughry II

DISSENTED IN BY:
Justice Brent D. Benjamin
Justice Menis E. Ketchum




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