                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


State ex. rel. Monica Boggs
Petitioner Below, Petitioner                                                         FILED
                                                                                  June 18, 2020
vs.) No. 18-1105 (Berkeley County 13-C-321)                                      EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA
J.D. Sallaz, Superintendent,
Lakin Correctional Center
Respondent Below, Respondent



                               MEMORANDUM DECISION


        Petitioner Monica Boggs, by counsel Kevin D. Mills and Shawn R. McDermott, appeals
the Circuit Court of Berkeley County’s November 19, 2018, order denying her petition for writ of
habeas corpus. Respondent State of West Virginia by counsel Elizabeth Grant, filed a response in
support of the circuit court’s order and a supplemental appendix. Petitioner filed 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 order of the circuit court is appropriate under Rule 21 of
the Rules of Appellate Procedure.

        On the night of August 19, 2008, petitioner called 911 to report the presumed death of her
seven-month old child (“the child”). The child was subsequently transported to a nearby hospital
where he was pronounced dead. The following day, Medical Examiner Dr. Matrina Schmidt
conducted an autopsy of the child and determined that the child had sustained brain hemorrhaging
and a fracture “completely through the skull.” The cause of the child’s death was determined to be
blunt force trauma to the skull and was ruled a homicide.

        On August 20, 2008, after receiving the results of the child’s autopsy, Sgts. Kevin Pansch
and David Boober of the West Virginia State Police interviewed petitioner. Petitioner came
voluntarily to the police station for the interview, at the request of Sgt. Boober. At the time of her
interview, petitioner was not handcuffed or physically restrained, was advised that she was not
under arrest, and was free to leave at any time. Petitioner was advised of her Miranda1 rights and

       1
           See Miranda v. Arizona, 384 U.S. 436 (1966).
                                                  1
signed a waiver of those rights. Over the course of a series of successive interviews, petitioner’s
statements evolved. Ultimately, petitioner “dropped her head and . . . advised that she had killed
her baby.” Specifically, petitioner told the officers that she had thrown the child into his crib, where
the child struck his head on a toy piano that petitioner did not know was in the crib. Petitioner did
not report this incident to anyone and stated that thereafter, the child seemed fine and drank a
bottle. Petitioner repeatedly advised officers that she did not mean to hurt the child. Additionally,
petitioner told officers that on August 14, 2008, prior to the incident at issue, she had thrown a
bottle into the child’s crib, striking him in the eye.

        Petitioner was indicted in the Circuit Court of Berkeley County on three felony counts
related to the death of her child: death of a child by a parent, for throwing the child into the crib;
child abuse causing bodily injury, for throwing the bottle at the child; and gross child neglect
creating a substantial risk of bodily injury, for failing to obtain medical treatment for the child.

        During the course of trial preparation, petitioner’s retained counsel, B. Craig Manford,
investigated the voluntariness of petitioner’s statements to Sgts. Pansch and Boober and hired Dr.
Bernard Lewis, a clinical and forensic psychology expert, to complete an evaluation of petitioner.
Dr. Lewis opined that, while petitioner was under a great deal of stress and distress, her statements
to Sgts. Pansch and Boober “were, in fact, voluntary.”

        Following a three-day trial in September of 2009, petitioner was found guilty on all counts.
Ultimately, the circuit court sentenced petitioner to a determinate term of 40 years of incarceration
for her conviction of death of a child by a parent; the statutory term of one to five years for child
abuse causing bodily injury; and the statutory term of one to five years for gross child neglect
causing substantial risk of serious bodily injury. Petitioner’s sentences were ordered to run
consecutively.

         Petitioner filed a direct appeal of her convictions, which were affirmed by this Court. See
State v. Monica Boggs, No. 11-0001, (W. Va. May 27, 2011) (memorandum decision). On April
26, 2013, petitioner filed a petition for writ of habeas corpus and a Losh2 list. Petitioner thereafter
requested an omnibus evidentiary hearing on the issue of ineffective assistance of trial counsel and
sought to continue all proceedings so that she could consult with expert witnesses. In her habeas
petition, petitioner alleged numerous instances in which her trial counsel was ineffective,
including: (1) failing to move to suppress petitioner’s statements to Sgts. Pansch and Boober as
involuntary, failing to adequately investigate the circumstances of the statements; and failing to
request a jury instruction on the voluntariness of the statements; (2) failing to adequately
investigate the State’s medical evidence and the opinion of the State’s medical expert regarding
the child’s injuries; (3) failing to adequately conduct voir dire; (4) failing to object to the State’s
use of a gruesome autopsy photo in closing; (5) conceding the intent element of the offense; and
(6) failing to request a continuance of trial.

        The State objected to the holding of an omnibus evidentiary hearing and argued that there
was sufficient evidence in the record to address all of petitioner’s habeas claims. By order entered



       2
           See Losh v. McKenzie, 166 W. Va. 762, 277 S.E.2d 606 (1981).
                                                   2
on September 21, 2015, the circuit court concluded that petitioner failed to allege any set of facts
upon which habeas relief could be granted and that no evidentiary hearing was required. Petitioner
appealed the circuit court’s denial of her habeas petition to this Court. By decision dated November
7, 2016, this Court reversed the circuit court’s denial of petitioner’s habeas petition and remanded
the matter to the circuit court for an evidentiary hearing. See Monica Boggs v. Lori Nohe, No. 15-
1001, 2016 WL 6576891 (W. Va. Nov. 7, 2016) (memorandum decision).

        Upon remand to the circuit court, an omnibus evidentiary hearing was held over the course
of three dates: March 7, 2017, June 2, 2017, and September 20, 2017. Petitioner’s trial counsel;
Sgts. Boober and Pansch; Petitioner; Petitioner’s retained expert Harry A. Smith, III; and one of
petitioner’s childhood friends testified at the hearing. Thereafter, by order entered November 19,
2018, the circuit court, in a fifty-seven page order, denied petitioner’s petition for writ of habeas
corpus.

        In denying petitioner’s petition for writ of habeas corpus, the court found that petitioner’s
statements to Sgts. Boober and Pansch were voluntary in nature and that her trial counsel was not
ineffective in failing to move to suppress these statements prior to trial.

         During his testimony at the omnibus hearing, petitioner’s trial counsel testified that he
talked to petitioner regarding her statements to police officers multiple times prior to trial and that
petitioner never advised him that her statements were coerced or false. Further, trial counsel
advised that there was no indication in the record that Sgts. Pansch or Boober threatened petitioner
during her interviews. Trial counsel testified that had petitioner told him she felt coerced in
providing a statements to police, that he would have filed a suppression motion. As the court noted
in its order denying petitioner habeas corpus relief,

       [a]t pre-trial, the defense informed the trial court that the [p]etitioner’s recorded
       statement was transcribed, the petitioner executed a written [Miranda] waiver
       (which execution is reflected in the recorded statement), and the [p]etitioner was
       evaluated by a psychologist secured by the defense who reported the [p]etitioner
       had the mental and psychological ability at the time of the giving of her statement
       to give the same freely and knowingly. The defense conceded that it had no legal
       grounds for a challenge to the admissibility of the statement.

        Further the court found that petitioner’s trial counsel was not ineffective in failing to
investigate the medical evidence presented by the State or the opinions of the State’s medical
expert, Dr. Schmidt. Rather, the court noted that trial counsel was particularly effective in
obtaining admissions from Dr. Schmidt that the child’s injuries were consistent with petitioner’s
explanation of said injuries and that the symptoms exhibited by an infant with a subdural
hemorrhage were similar to ordinary symptoms exhibited by an infant who had a cold and/or an
infant who was teething.

        As to the allegation that petitioner’s trial counsel failed to adequately conduct voir dire so
as to discover a presumptively biased juror, the circuit court found no ineffective assistance of
counsel. The record reflects that on the second day of trial, a juror took the court bailiff aside and
reported that she recognized a photograph of the child’s biological father, contained within a

                                                  3
scrapbook kept by petitioner and shown to the jury, as someone she knew growing up.3 The juror
reported to the bailiff that having knowledge of the child’s biological father would not affect her
ability to be an impartial juror. The circuit court promptly addressed the juror’s disclosure to the
bailiff with counsel at a time when petitioner was present. The parties advised the court that they
were in agreement that the juror’s knowledge of the child’s biological father would not affect the
outcome of the trial and that further voir dire was not necessary. The court also noted that the
brother of the alleged presumptively biased juror had been convicted of manslaughter and, as such,
petitioner and trial counsel believed that the juror may be more sympathetic to petitioner and, thus,
did not move to strike the juror from the panel.

        Additionally, the court found no merit to petitioner’s allegation that her trial counsel was
ineffective in failing to object to the State’s use of a gruesome photo of the deceased child in its
closing argument because the photo was “wholly germane [in] establishing the elevated element
of ‘gross’ neglect of the child” and was admitted as evidence “to demonstrate the necessary
elements of the charged offenses.” With regard to petitioner’s allegation that her trial counsel was
ineffective in conceding the “intent element of the offense,” the circuit court also found no error.
The court determined that petitioner failed to show that her trial counsel’s performance fell below
a standard of objective unreasonableness. In fact, the court noted that petitioner’s trial counsel
“zealously argued and briefed” the court on issues presented and the jury simply decided against
those arguments based upon the facts of the case.

         Finally the court found no merit to petitioner’s assertion that her trial counsel was
ineffective in failing to move for a continuance of petitioner’s trial to allow additional time to
prepare for the trial. Specifically, the court found that petitioner offered no factual basis for her
allegation that counsel was ineffective for failing to request a continuance based upon his busy
trial schedule, aside from the simple fact that trial counsel had completed another trial immediately
prior to petitioner’s trial. There is no factual basis to indicate that petitioner’s trial counsel was
unprepared for trial.

       It is from the circuit court’s November 19, 2018, order denying petitioner’s writ of habeas
corpus 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 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 a single assignment of error arguing that the circuit court erred
in finding that petitioner’s trial counsel was not ineffective in the six instances referenced by


       3
         The record further reflects that the child’s biological father had no contact with the child
or the petitioner and was not involved in the child’s life.
                                                  4
petitioner in her underlying habeas petition and noted above. Our review of the record supports
the circuit court's decision to deny petitioner's petition for writ of habeas corpus. Petitioner's
arguments herein were thoroughly addressed by the circuit court in its order denying petitioner
habeas relief.

        The circuit court’s fifty-seven page order includes detailed and well-reasoned findings and
conclusions as to the assignment of error now raised by petitioner on appeal. Because we find no
clear error or abuse of discretion in the circuit court’s order or the 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
November 19 2018, “Final Order Denying Petition for Writ of Habeas Corpus Ad Subjiciendum
under W.Va. Code ⸹ 53-4A-1” to this memorandum decision.

        For the foregoing reasons, we affirm the circuit court’s November 19, 2018, denial of
petitioner’s petition for writ of habeas corpus.


                                                                                        Affirmed.


ISSUED: June 18, 2020

Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison




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