                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS



Michael E. Brown,                                                                 FILED
Petitioner Below, Petitioner                                               November 21, 2014
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 14-0134 (Cabell County 98-F-40 and 02-C-357)                           OF WEST VIRGINIA


Michael V. Coleman, Acting Warden
Respondent Below, Respondent


                               MEMORANDUM DECISION
       Petitioner Michael E. Brown, by counsel James M. Cagle, appeals both the denial of his
motion for new trial and the dismissal of his petition for writ of habeas corpus. Respondent
Michael V. Coleman, Acting Warden, by counsel Christopher S. Dodrill, filed his response 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 affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

       On August 17, 1997, Ronald Davis and Gregory Black were found dead of gunshot
wounds in petitioner’s residence; the homicides were related to both drugs and robbery. On
March 4, 1999, petitioner was convicted of two counts of first degree murder, with a
recommendation of mercy, and received two consecutive life sentences.1 On July 6, 2001, after
considering the presentence report, the circuit court reimposed the original sentence of two
consecutive terms of life imprisonment, with mercy. Petitioner filed a petition for a writ of


       1
          Petitioner previously appeared before this Court in State v. Brown, 210 W.Va. 14, 552
S.E.2d 390 (2001), in which he appealed his convictions of two counts of first degree murder
with mercy and his sentence of two consecutive life terms in the penitentiary. This Court
affirmed petitioner’s convictions but reversed his sentence and remanded for a presentence report
and a new sentencing hearing. He next appeared before this Court in Coleman v. Brown, 229
W.Va. 227, 728 S.E.2d 111 (2012). In that matter, the acting warden appealed the circuit court’s
January 7, 2011, order granting Petitioner Brown habeas relief. The circuit court found that the
juror’s lack of candor deprived the circuit court and the parties of the ability to determine the
juror’s fitness to serve, which foreclosed Petitioner Brown’s constitutional right to a fair trial.
Therefore, the circuit court ordered a new trial. This Court reversed the circuit court order and
remanded the matter for further proceedings with regard to any unresolved habeas issues.
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habeas corpus on May 2, 2002, which was amended on July 25, 2005, and again on May 14,
2009.

         In 2009, co-defendant Matthew Fortner pled guilty to murder and was sentenced.2 On
December 30, 2011, the deposition of a confidential witness was taken. The witness testified
that, on multiple occasions, Mr. Fortner acknowledged shooting the victims. The witness also
testified that Mr. Fortner went to petitioner’s home where the shooting took place to kill the
victims because the victims owed Mr. Fortner money. The witness further testified that Mr.
Fortner was angry at petitioner for talking about what happened. Mr. Fortner believed he was not
in prison for killing two people but because petitioner talked.

        On September 24, 2012, petitioner filed a motion for new trial based upon newly
discovered evidence he contends undermines the trial evidence against him. On May 2, 2013, the
parties argued the motion for a new trial, with both sides agreeing that State v. Frazier, 162
W.Va. 935, 253 S.E.2d 534 (1979), controlled the issue. The circuit court found that this newly-
discovered evidence would not have produced a not guilty verdict in a new trial and that the sole
purpose of the evidence was to impeach Mr. Fortner. In its October 23, 2013, “Order Denying
Motion for New Trial,” the circuit court found that petitioner failed to meet his burden of proof
and denied petitioner’s motion. Thereafter, the circuit court entered its January 9, 2014, “Order
Denying Amended Petition for Post-Conviction Habeas Corpus Ad Subjuiciendum on Two
Remaining Issues.” In that order, the circuit court found the evidence regarding Mr. Fortner’s
mental health condition and treatment was not exculpatory or impeachment evidence that could
have been introduced at petitioner’s trial. It also found that the State did not fail to disclose Mr.
Fortner’s mental health records because at the time of trial the State did not have knowledge of
the same. The circuit court continued by stating that even assuming Mr. Fortner’s mental health
condition and treatment were exculpatory or impeachment evidence and the State did suppress
the introduction of the same, the introduction of the evidence would have gone to the witness’s
credibility and would have been something that the jury considered as part of the determination
of Mr. Fortner’s credibility. The circuit court would have permitted Mr. Fortner to testify and the
jury as the fact finders could consider whether his mental health had any impact on his
recollection and memory of the events the night in question. The court, therefore, denied
petitioner’s petition for habeas corpus on that ground.

        In its order, the circuit court also addressed the second unresolved habeas issue: whether
the circuit court should have disqualified one of the jurors and whether that failure prevented
petitioner from having a fair trial. The circuit court found that Juror Wickline was not under
indictment at the time of petitioner’s trial, though her adult son had been indicted. It found that,
pursuant to West Virginia Code § 56-6-14, Juror Wickline did not have a matter to be tried
during the term of court wherein she was a juror in petitioner’s trial, so she should not have been
disqualified. Thus, the circuit court denied petitioner’s habeas petition on these two remaining
issues. Petitioner appeals from both the October 23, 2013, order and the January 9, 2014, order.



       2
         Mr. Fortner filed a petition for habeas relief alleging only ineffective assistance of
counsel and was granted relief. He ultimately entered a plea to a lesser charge. He was
incarcerated but had been released at the time of his alleged exculpatory statements.
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       After careful consideration, this Court finds that the circuit court did not err in denying
habeas corpus relief to petitioner or in denying his motion for new trial based upon newly
discovered evidence.

               In reviewing challenges to findings and rulings made by a circuit court, we
       apply a two-pronged deferential standard of review. We review the rulings of the
       circuit court concerning a new trial and its conclusion as to the existence of
       reversible error under an abuse of discretion standard, and we review the circuit
       court's underlying factual findings under a clearly erroneous standard. Questions
       of law are subject to a de novo review.

Syl. Pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000). We apply the following
standard of review in habeas cases:

               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). Further, “‘[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.’ Syllabus Point 4 of State ex rel. McMannis v.
Mohn, 163 W.Va. 129, 254 S.E.2d 805 (1979) Cert. Denied, 464 U.S. 831, 104 S.Ct. 110, 78
L.Ed.2d 112 (1983).” Syl. Pt. 3, Hatcher v. McBride, 221 W.Va. 5, 650 S.E.2d 104 (2006).

        On appeal, petitioner sets forth three assignments of error. First, he contends that the
circuit court erred in denying petitioner’s motion for a new trial, arguing that the motion was
supported by sworn deposition testimony of a person who informed the State that Mr. Fortner
had stated on multiple occasions that he fired the shots that killed the victims. Petitioner claims
that the deposition testimony wherein Mr. Fortner admitted killing the victims constitutes new
evidence which entitled petitioner to a new trial and that this new evidence would produce a
different result at trial. Petitioner is critical of the circuit court’s finding that this new evidence
was merely for impeachment, as he claims it is substantive evidence.

         As set forth above, we apply a two-prong standard of review related to a motion for new
trial. Syl. Pt. 3, Vance, 207 W.Va. at 641, 535 S.E.2d at 485. We have also found that the basis
of awarding a new trial for newly discovered evidence will not be granted unless the case comes
within the following rules:

               (1) The evidence must appear to have been discovered since the trial, and,
       from the affidavit of the new witness, what such evidence will be, or its absence
       satisfactorily explained. (2) It must appear from facts stated in his affidavit that
       plaintiff was diligent in ascertaining and securing his evidence, and that the new
       evidence is such that due diligence would not have secured it before the verdict.

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       (3) Such evidence must be new and material, and not merely cumulative, and
       cumulative evidence is additional evidence of the same kind to the same point. (4)
       The evidence must be such as ought to produce an opposite result at a second trial
       on the merits. (5) And the new trial will generally be refused when the sole object
       of the new evidence is to discredit or impeach a witness on the opposite side.
       Syllabus Point 1, State v. Frazier, 162 W.Va. 935, 253 S.E.2d 534 (1979).

Syl. Pt. 1, in part, State v. William M., 225 W.Va. 256, 692 S.E.2d 299 (2010). In its order, the
circuit court found that petitioner did not satisfy the third, fourth, and fifth prongs of the Frazier
test. During the deposition, the confidential witness testified that the witness was unable to
determine whether Mr. Fortner was telling the truth when he claimed he shot the victims. In
addition, the witness testified that Mr. Fortner acknowledged petitioner’s participation in the
robbery, including the witness stating that Mr. Fortner said that petitioner had a gun at the time
of the robbery. During the trial, witness Mike Mount testified that petitioner told him that Mr.
Fortner fired the shots, so that information was before the jury in the trial. Thus, the circuit court
did not err in concluding that the deposition testimony by the witness did not satisfy the third and
fourth prongs of the Frazier test. Because petitioner failed to satisfy two of the prongs of this
test, we decline to address the remaining prongs.

        Petitioner next argues that the circuit court erred when it concluded that Mr. Fortner’s
extensive mental health records do not constitute exculpatory or impeachment evidence which
the State had a duty to investigate and provide notice of the same to petitioner’s counsel.
Petitioner contends that Mr. Fortner had an extensive history of mental health problems but that
the circuit court concluded, as a matter of law, that this evidence was neither exculpatory nor
impeachment evidence. Petitioner is also critical of the circuit court’s finding that such evidence
would not have been admissible at trial. In support of his argument, petitioner points to Mr.
Fortner’s testimony at his own habeas proceeding wherein he admitted that he had been using
drugs since the age of twelve, had been abused by a relative, had participated in bestiality, and
had been hospitalized in a psychiatric unit more than a year prior to the murders at issue. On
November 9, 2007, petitioner asked the circuit court to examine Mr. Fortner’s mental health
records, but the request was denied. Petitioner contends that the records contain information
sufficient to call Mr. Fortner’s trial testimony into question.

                 There are three components of a constitutional due process violation . . .:
       (1) the evidence at issue must be favorable to the defendant as exculpatory or
       impeachment evidence; (2) the evidence must have been suppressed by the State,
       either willfully or inadvertently; and (3) the evidence must have been material,
       i.e., it must have prejudiced the defense at trial.

Syl. Pt. 2, in part, State v. Youngblood, 221 W.Va. 20, 650 S.E.2d 119 (2007). Black’s Law
Dictionary defines exculpatory evidence as “[e]vidence tending to establish a criminal
defendant’s innocence.” Black’s Law Dictionary 675 (10th ed. 2014). Further, impeachment
evidence is “[e]vidence used to undermine a witness’s credibility.” Id. at 676. In addition to Mr.
Fortner’s testimony about his criminal past, he testified that he had been off of drugs for some
time prior to petitioner’s trial, so the record is devoid of evidence that Mr. Fortner was under the
influence of drugs at the time he testified at trial. Petitioner fails to show how Mr. Fortner’s

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mental health records might tend to establish petitioner’s innocence. Therefore, we find no error
in the circuit court’s ruling that the evidence does not constitute exculpatory evidence. Further,
we find that petitioner has failed to satisfy the standards set forth in Youngblood, as petitioner
has not shown that the mental health records were suppressed by the State or that the evidence
was material, particularly in light of the fact that petitioner had the opportunity to examine Mr.
Fortner regarding his criminal and mental health history to the extent that the trial court may
have permitted such testimony. Therefore, we find that the circuit court did not err in denying
petitioner’s petition for habeas relief on this ground.

        Petitioner’s third and final assignment of error is that the circuit court erred by
concluding that a juror who was the mother of a person scheduled for trial in the same term of
court as petitioner and was liable for her son’s bond if he failed to appear is not a disqualified
juror under West Virginia Code § 56-6-14. Juror Wickline’s son was scheduled for trial in the
same court, before the same judge, the week after petitioner’s trial, and Juror Wickline was the
surety on her son’s bond. West Virginia Code § 56-6-14 states that “[n]o person shall serve as a
juror at any term of a court during which he has any matter of fact to be tried by a jury, which
shall have been, or is expected to be, tried during the same term.” Petitioner argues that the
statute is not clear about who is a “person” within the statute and that “person” should include
those involved in litigation or who have a particular interest in a case. He, therefore, asserts that
Juror Wickline should have been disqualified. While petitioner tries to make this a constitutional
issue, his categorization is incorrect. As set forth above, a habeas proceeding is not the proper
avenue for review of ordinary trial error. For this reason, we decline to address petitioner’s third
assignment of error.

       For the foregoing reasons, we affirm.

                                                                                          Affirmed.

ISSUED: November 21, 2014

CONCURRED IN BY:

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

DISQUALIFIED

Justice Allen H. Loughry II




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