                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

Robert B. Joseph,                                                                   FILED
Petitioner Below, Petitioner                                                       June 7, 2013
                                                                              RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
vs) No. 12-0611 (Kanawha County 06-MISC-479)                                    OF WEST VIRGINIA



David Ballard, Warden, Mount Olive Correctional Center,
Respondent Below, Respondent


                               MEMORANDUM DECISION
        Petitioner Robert B. Joseph, by counsel Matthew A. Victor, appeals the order of the
Circuit Court of Kanawha County, entered April 17, 2012, denying his post-conviction habeas
corpus petition. Respondent Warden David Ballard,1 by counsel Laura Young, 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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

         On the night of March 28, 2001, petitioner grabbed his .22 caliber pistol and fired five
shots into Scott Light, killing him. A jury found petitioner guilty of first degree murder. In his
first trial, petitioner sought to assert the defense of diminished capacity resulting from a head
injury he sustained in a motorcycle accident in 1989.2 Following an in camera hearing, the trial
court found that petitioner’s experts failed to offer competent evidence to establish that petitioner
lacked the mental capacity to form specific intent. Therefore, the trial court excluded this
testimony.

        Petitioner appealed his first conviction to this Court. In State v. Joseph, 214 W.Va. 525,
590 S.E.2d 718 (2003), we held that the diminished capacity defense is available in West
Virginia to permit a defendant to introduce expert testimony regarding a mental disease or defect
that rendered the defendant incapable, at the time the crime was committed, of forming a mental
state that is an element of the crime. Id. at Syl. Pt. 3. We noted that this defense is asserted
ordinarily when there is a lesser included offense for the offense charged. The successful use of

       1
       Pursuant to Rule 41(c) of the Rules of Appellate Procedure, the name of the current
warden has been substituted as the respondent in this action.
       2
         Among the serious injuries petitioner sustained in the accident was a crush injury to his
left frontal skull.
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this defense may render the defendant not guilty of the particular crime charged, but does not
preclude a conviction for a lesser included offense. Id. This Court remanded the case for a new
trial.

        Upon retrial, the jury heard expert testimony regarding petitioner’s claim of diminished
mental capacity. Defense counsel called expert witnesses, Mark Hughes, M.D., a board certified
psychiatrist, Robert Solomon, Ph.D., a forensic psychologist, and Robert Granacher, M.D., a
board certified medical doctor and forensic neuro-psychiatrist. The State called Ralph Smith,
M.D., in rebuttal. Dr. Smith had performed a forensic psychiatric evaluation on the petitioner.
Following a three day trial in August of 2004, a jury convicted petitioner of first degree murder.
He was sentenced to life in prison with a recommendation of mercy. This Court denied
petitioner’s direct appeal following the second jury trial.

        In December 2006, petitioner, pro se, filed a petition for post-conviction habeas corpus
relief. The circuit court denied the petition. In March 2008, this Court reversed and remanded
with directions to conduct an omnibus hearing. Petitioner’s appointed counsel raised nine issues
in the amended petition for writ of habeas corpus: 1) the trial court erred by preventing petitioner
from being examined by his expert; 2) petitioner was denied the right to a fair trial by the trial
court allowing improper cross-examination; 3) the trial court erred by not curing the State’s
misleading cross-examination; 4) the trial court denied him the right to present his defense by
denying his motion to be examined by his expert; 5) insufficiency of the evidence to support a
first degree murder conviction; 6) ineffective assistance of counsel; 7) the trial court gave an
improper jury instruction which shifted the burden of proof to petitioner; 8) the trial court erred
by giving a jury instruction defining “a reasonable doubt,” by permitting the prosecuting
attorney’s self-introduction as a representative of “the citizens of Kanawha County,” and by
differentiating between direct and circumstantial evidence; and 9) cumulative error. The circuit
court conducted a hearing on July 20, 2011. The parties stipulated that they would submit the
matter on the respective briefs, in lieu of witness testimony. After reviewing this matter, the
circuit court denied the petition.

        On appeal, petitioner raises the same assignments of error as raised in the habeas corpus
petition below. We note that this Court reviews appeals of circuit court orders denying habeas
corpus 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.” 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).

       After careful consideration, this Court finds that the circuit court did not err in denying
habeas corpus relief to petitioner. We will address the main issues raised by petitioner in this



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appeal.3 Petitioner challenges the sufficiency of the evidence to support his conviction of first
degree murder. Specifically, he contends that the record is replete with expert testimony refuting
the State’s theory of premeditation. Petitioner maintains the evidence demonstrated that he
lacked the mental capacity to form premeditation as a result of his previous head injury.
Respondent Warden replies that substantial evidence supports petitioner’s conviction, including
the testimony of the State’s expert witness, Dr. Smith, as well as the statements and behavior of
petitioner at the time of the murder. We have held that,

       “[a] criminal defendant challenging the sufficiency of the evidence to support a
       conviction takes on a heavy burden. An appellate court must review all the
       evidence, whether direct or circumstantial, in the light most favorable to the
       prosecution and must credit all inferences and credibility assessments that the jury
       might have drawn in favor of the prosecution. The evidence need not be
       inconsistent with every conclusion save that of guilt so long as the jury can find
       guilt beyond a reasonable doubt. Credibility determinations are for a jury and not
       an appellate court. Finally, a jury verdict should be set aside only when the record
       contains no evidence, regardless of how it is weighed, from which the jury could
       find guilt beyond a reasonable doubt. To the extent that our prior cases are
       inconsistent, they are expressly overruled.” Syl. Pt. 3, State v. Guthrie, 194 W.Va.
       657, 461 S.E.2d 163 (1995).

Syl. Pt. 5, State v. Broughton, 196 W.Va. 281, 470 S.E.2d 413 (1996).

        Upon our review, this Court finds that the evidence was sufficient to support the first
degree murder conviction, keeping in mind that for the purpose of this analysis, all the evidence
must be viewed in the light most favorable to the prosecution. Id. At trial, witnesses to the
murder testified that petitioner said “F**k you” to the victim just before he pulled the trigger five
times. Petitioner backed his vehicle over the victim while leaving the premises. Petitioner drove
to his parents’ home and called 911. The jury heard petitioner’s 911 call, where he advised the
911 operator that, “I just shot Scott Light at the mouth of Eight Mile Hollow. Somebody better

       3
         We find no merit in petitioner’s contention that the trial court erred in preventing
petitioner to be examined by his own expert, Dr. Granacher, while incarcerated. The first attempt
at such visit occurred when Dr. Granacher appeared without notice at the South Central Regional
Jail on the eve of the second trial, or about August 6, 2004. Jail personnel declined to permit the
examination without a court order. On August 9, 2004, defense counsel requested that Dr.
Granacher be permitted access to petitioner at the jail. Upon inquiry, trial counsel stated that the
visit would change neither Dr. Granacher’s opinion nor his testimony and no additional report
would be generated. The trial court denied such request based upon the previous ruling that
expert opinions and the bases therefore be disclosed in advance of trial. We find that the trial
court did not abuse its discretion in this regard. Furthermore, a habeas corpus proceeding is not a
substitute for a writ of error. Trial error, not involving error of constitutional dimension, is not
reviewed. See Syl. Pt. 4, State ex rel. McMannis v. Mohn, 163 W.Va. 129, 254 S.E.2d 805
(1979).



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get there before he dies. I just shot the son of a b*tch.” Furthermore, on the issue of mental
capacity, Dr. Smith opined that petitioner had the mental capacity to premeditate, deliberate, and
act intentionally. Considering this evidence, we see no compelling reason to disturb the jury’s
finding on appeal.

         Petitioner also raises an ineffective assistance of counsel claim in this appeal. He asserts
that counsel erred by not having petitioner personally examined by his retained expert, Dr.
Granacher. When addressing this matter, the circuit court noted that both trial counsel and Dr.
Granacher stated that any personal examination would do nothing to change the opinion that
petitioner suffered from diminished capacity due to frontal lobe brain damage. Dr. Granacher
testified regarding the clinical significance of frontal lobe brain damage and how it impairs
planning functions. He reviewed petitioner’s medical history, including psychiatric evaluations,
and specifically referred to petitioner’s CT brain scan which revealed frontal lobe brain damage.
Accordingly, we find that the failure to arrange for a personal examination with Dr. Granacher
does not rise to the level of ineffective assistance. His opinion and testimony would have been
the same, and consequently, the result of the trial would have been the same. See Syl. Pt. 5, State
v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995)

        For the foregoing reasons, we affirm. The circuit court’s order reflects its thorough
analysis of the grounds raised in the petition for habeas corpus. Having reviewed the opinion
order entered on April 17, 2012, we hereby adopt and incorporate the circuit court’s well-
reasoned findings and conclusions as to all the assignments of error raised in this appeal. The
Clerk is directed to attach a copy of the circuit court’s order to this memorandum decision.


                                                                                          Affirmed.

ISSUED: June 7, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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