                            STATE OF WEST VIRGINIA 

                          SUPREME COURT OF APPEALS


State of West Virginia ex rel. Joey K. Jeffery,
Petitioner Below, Petitioner                                                    FILED
                                                                            October 15, 2018
vs) No. 17-0216 ( Kanawha County 15-P-338)                                   EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
Ralph Terry, Superintendent,
Mt. Olive Correctional Complex,
Respondent Below, Respondent


                             MEMORANDUM DECISION

       Petitioner Joey K. Jeffery, by counsel Matthew A. Victor, appeals the February 13, 2017,
order of the Circuit Court of Kanawha County denying his petition for writ of habeas corpus.
Respondent Ralph Terry, Superintendent, Mt. Olive Correctional Complex, by counsel Benjamin
F. Yancey, III, filed a response in support of the circuit court’s order.1

       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 order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.

        In February of 2014, petitioner was convicted of the kidnapping, second-degree robbery,
malicious wounding, and assault of Leanne Quinn. In the early morning hours of December 8,
2012, petitioner and his girlfriend, Cindy Creathers, saw Ms. Quinn in a passing vehicle and
reportedly observed a number of petitioner’s personal items in Ms. Quinn’s possession. Later
that morning, petitioner confronted Ms. Quinn regarding the items and struck her in the face and
stomach. Petitioner then forced Ms. Quinn into a vehicle and drove her to his home, where she
was beaten with a bat and otherwise assaulted by petitioner and Ms. Creathers. Ultimately,
petitioner drove Ms. Quinn to an isolated area where she was kicked, punched, forced to her
knees, and a handgun was discharged near her head. Petitioner took Ms. Quinn’s shoes and coat,


       1
        Effective July 1, 2018, the positions formerly designated as “wardens” are now
“superintendents.” See W.Va. Code § 15A-5-3. At the time of the filing of this appeal, David
Ballard was then warden at Mt. Olive Correctional Complex and, as such, was originally listed as
the respondent below. However, the acting warden, now superintendent, is Ralph Terry.
Accordingly, the Court has made the necessary substitution of parties pursuant to Rule 41(c) of
the West Virginia Rules of Appellate Procedure.


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and threatened to kill her children if she reported the incident and did not return his personal
items

        Upon her release from captivity, Ms. Quinn reported her kidnapping and assault to law
enforcement. On March 28, 2013, a Kanawha County Grand Jury returned a multi-count
indictment against petitioner and Ms. Creathers, for the felony offenses of kidnapping, malicious
wounding, first-degree robbery, and assault during the commission of a felony. Before trial,
pursuant to a plea agreement, Ms. Creathers pled guilty to conspiracy to commit robbery in the
first-degree and agreed to testify against petitioner at trial. Prior to trial, petitioner’s trial counsel
moved the court to have petitioner evaluated for competency. A subsequent competency
evaluation was completed and petitioner was determined to be competent to stand trial.
Petitioner’s trial began on February 10, 2014, and continued for three days.

        On the first day of trial, the victim testified. Through her testimony, Ms. Quinn related
the story of her kidnapping and assault at the hands of petitioner and Ms. Creathers. Following
the direct testimony of Ms. Quinn, a juror approached the bench and had a short off-the-record
discussion with the court, out of the hearing of the jury and without counsel or petitioner present,
wherein a juror inquired as to the maiden surname of Ms. Creathers. The juror returned to his
seat and the court called counsel to the bench, advised what inquiry had been made by the juror,
and advised petitioner’s counsel that he could “fully voir dire” the juror at a later point. After this
conference, Ms. Quinn was cross-examined. Following the cross-examination, the jury was
excused with the exception of the juror at issue. With the rest of the jury excused, petitioner’s
counsel, with petitioner present, questioned the juror who advised that he “did not have an
extensive acquaintance with [Ms.] Creathers and that he would judge Ms. Creathers’ credibility
as with any other witness.” Counsel and the court conferred following the voir dire and the juror
was excused from further service. An alternate juror who had been previously impaneled
continued to hear the case in the stead of the excused juror. No objections were made by either
counsel.

        On the second day of trial, the State continued the presentation of its case, which
included the testimony of law enforcement representatives. As its final witness, the State called
Ms. Creathers who testified regarding the occurrence of the underlying criminal incident. At
some point in her testimony, it was brought to the trial court’s attention that Ms. Creathers had
not been sworn prior to testifying. Thereafter, Ms. Creathers was immediately sworn and was
directly asked by the court if the testimony she had provided prior to being sworn was honest and
truthful, to which she replied, yes. Ms. Creathers was given the opportunity by the court to
change any of her testimony given prior to being sworn, but she noted there was no testimony
she would change. No objection was made by either counsel.

        Under cross-examination, Ms. Creathers advised that she struck Ms. Quinn once with a
bat and threatened her with a knife. Ms. Creathers corroborated Ms. Quinn’s testimony and,
when asked about her motive for testifying against petitioner, Ms. Creathers stated she was
testifying because it was the right thing to do.

       At the beginning of the third and final day of trial, the court had an off-the-record
discussion, outside of the presence of the jury and counsel, with Juror Hogan. Juror Hogan

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advised the court that she had discovered a “confusing, distant familiarity with Ms. Quinn.”
Thereafter, without petitioner being present, a bench conference between the parties’ counsel, the
court, and Juror Hogan was held. During this conference, petitioner’s counsel asked the juror if
there was anything “that would cause you to not be able to fairly consider the evidence that’s in
front of you?” to which the juror replied, “No, there is not.” Juror Hogan advised that she had not
made any statements to her fellow jurors regarding her concerns. No objection was made by
counsel.

       The trial commenced and the defense called Tracy Campbell to testify. Mr. Campbell
described a conversation that he had with Ms. Quinn wherein Ms. Quinn advised that she had
thrown her shoes and coat at petitioner on the evening in question and cursed at him. Further,
Mr. Campbell testified that Ms. Quinn never told him that petitioner struck or beat her on the
evening in question. Thereafter the defense re-called Ms. Quinn to testify in an attempt to
discredit her testimony, at the conclusion of which the defense rested.

        During closing arguments, petitioner’s counsel highlighted the inconsistencies between
the testimony of Ms. Quinn and Ms. Creathers. After deliberations, the jury returned a verdict of
guilty on all charges, with a recommendation of mercy as to the kidnapping charge. On April 9,
2014, petitioner was sentenced to four consecutive sentences of imprisonment. Petitioner filed a
direct appeal of his conviction, which was affirmed by this Court in State v. Jeffery, No. 14-
0888, 2015 WL 1740281, (W.Va. Apr. 13, 2015) (memorandum decision). On April 13, 2015,
petitioner filed his initial petition for writ of habeas corpus. An amended petition was filed on
petitioner’s behalf on April 29, 2016.

        An omnibus hearing on petitioner’s amended petition for writ of habeas corpus began on
November 7, 2016, and continued on December 6, 2017. During this hearing, petitioner asserted
that his attorney had not communicated with him and had failed to review discovery or trial
strategy with him. Petitioner advised that he had given the names of specific witnesses who
would aid in his defense, but those witnesses were not called to testify at trial.

        By order dated February 13, 2017, the circuit court denied petitioner’s amended petition
for a writ of habeas corpus. The court found that petitioner failed to explain how his counsel’s
alleged deficiencies affected the result of trial and, accordingly, did not violate the provisions of
State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995). The court noted that petitioner’s trial
counsel and his retained investigator met with petitioner on numerous occasions, discussed, and
“investigated” the possibility of testimony from each of the witnesses suggested by petitioner,
who petitioner’s trial counsel alleged would have provided unfavorable or uncorroborated
testimony or the individuals simply could not be located by counsel or his investigator.

        The court found that none of the evidence cited by petitioner was erroneously admitted
and found no basis for petitioner’s petition for a writ of habeas corpus. It is from the circuit
court’s February 13, 2017, order that petitioner now appeals.

               “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

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       standard; the underlying factual findings under a clearly erroneous standard; and
       questions of law are subject to a de novo review.” Syllabus point 1, Mathena v.
       Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

Syl. Pt. 1, State ex. rel. Franklin v. McBride, 226 W. Va. 375, 701 S.E.2d 97 (2009).

        On appeal, petitioner asserts seven assignments of error. First, petitioner argues that he
received ineffective assistance of counsel. In his second and third assignments of error, petitioner
contends that under a plain error analysis he was deprived of his due process right to a fair trial
when the court engaged in communications with a juror; when he was absent for critical stages
of the proceedings; and when the court failed to swear in a witness prior to her testimony. In his
fourth, fifth, and sixth assignments of error, petitioner argues that under a plain error analysis the
trial court’s rulings regarding the admission of certain evidence at trial was improper. In his final
assignment of error, petitioner argues cumulative error. Our review of the record supports the
circuit court’s decision to deny petitioner’s petition for writ of habeas corpus as to each of
petitioner’s assignments of error. Petitioner’s arguments presented herein, with the exception of
the application of the plain error doctrine, were thoroughly addressed by the circuit court in its
order denying petitioner habeas relief.

        As to plain error, this Court has long held that the “‘plain error’ doctrine grants appellate
courts, in the interest of justice, the authority to notice error to which no objection has been
made.” Miller, 194 W. Va. at 18, 459 S.E.2d at 129. To trigger the application of the plain error
doctrine, there must be “(1) an error; (2) that is plain; (3) that affects substantial rights; and (4)
seriously affects the fairness, integrity, or public reputation of the judicial proceedings.” Id. at
syl. pt. 7, in part. We have further noted that the plain error rule should only be exercised to
avoid a miscarriage of justice and reserved for correction of those few errors that “seriously
affect the fairness, integrity or public reputation of judicial proceedings.” United States v. Young,
470 U.S. 1, 15, 105 S.Ct. 1038, 1046 (1985). Here, after review, we find that under the limited
facts and circumstances of this case the application of the plain error doctrine is not triggered.
None of the alleged errors argued by petitioner affected the fairness, integrity, or public
reputation of the judicial proceedings and did not result in a miscarriage of justice. Petitioner
presented substantial evidence on his behalf at trial and competently cross-examined witnesses
offered by the State. Further, the record reflects that petitioner was provided multiple
opportunities to conduct voir dire of jurors and was personally involved in the critical stages of
the proceedings. Accordingly, as there was no trigger of the plain error doctrine, the circuit court
did not err.

        The circuit court’s order includes well-reasoned findings and conclusions as to the
assignments of error now raised on appeal. Because we find no clear error or abuse of discretion
in the circuit court’s order or record before us, we hereby adopt and incorporate the circuit
court’s findings and conclusions as they relate to petitioner’s assignments of error raised on
appeal and direct the Clerk to attach a copy of the circuit court’s February 13, 2017, “Final Order
Denying Petition for Writ of Habeas Corpus” to this memorandum decision.

        For the foregoing reasons, we affirm the circuit court’s denial of petitioner’s amended
petition for habeas corpus.

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                                                                        Affirmed.

ISSUED: October 15, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Paul T. Farrell sitting by temporary assignment
Justice Tim Armstead
Justice Evan H. Jenkins

Justice Allen H. Loughry II suspended and therefore not participating




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