          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                 January 2013 Term
                                                                     FILED
                                                                   May 16, 2013
                                    No. 12-0075                    released at 3:00 p.m.
                                                                   RORY L. PERRY II, CLERK
                                                                 SUPREME COURT OF APPEALS
                                                                     OF WEST VIRGINIA

                            STATE OF WEST VIRGINIA,
                             Plaintiff Below, Respondent

                                         v.

                              JAMES R.L. MEADOWS
                             Defendant Below, Petitioner


                   Appeal from the Circuit Court of Monroe County

                          Honorable Robert A. Irons, Judge

                             Criminal Case No. 10-F-53


                                    AFFIRMED



                              Submitted: April 17, 2013
                                Filed: May 16, 2013


James M. Cagle, Esq.                          Patrick Morrisey
Charleston, West Virginia                     Attorney General
Counsel for Petitioner                        Scott E. Johnson, Esq.
                                              Senior Assistant Attorney General
                                              Charleston, West Virginia
                                              Counsel for the Respondent



The Opinion of the Court was delivered PER CURIAM.
                              SYLLABUS BY THE COURT




              1. “In reviewing challenges to the findings and conclusions of the circuit court,

we apply a two-prong deferential standard of review. We review the final order and the

ultimate disposition 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. 2, Walker v. West Virginia Ethics Commission, 201 W.Va.

108, 492 S.E.2d 167 (1997).



              2. “A trial court’s evidentiary rulings, as well as its application of the Rules

of Evidence, are subject to review under an abuse of discretion standard.” Syl. Pt. 4, State

v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998).



              3. “Polygraph test results are not admissible in evidence in a criminal trial in

this State.” Syl. Pt. 2, State v. Frazier, 162 W.Va. 602, 252 S.E.2d 39 (1979).



              4. “Rule 401 of the West Virginia Rules of Evidence requires the trial court

to determine the relevancy of the exhibit on the basis of whether the photograph is probative

as to a fact of consequence in the case. The trial court then must consider whether the

probative value of the exhibit is substantially outweighed by the counterfactors listed in Rule

                                               i
403 of the West Virginia Rules of Evidence. As to the balancing under Rule 403, the trial

court enjoys broad discretion. The Rule 403 balancing test is essentially a matter of trial

conduct, and the trial court’s discretion will not be overturned absent a showing of clear

abuse.” Syl. Pt. 10, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994).



              5. “In the West Virginia courts, claims of ineffective assistance of counsel are

to be governed by the two-pronged test established in Strickland v. Washington, 466 U.S.

668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1) Counsel’s performance was deficient under

an objective standard of reasonableness; and (2) there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceedings would have been different.”

Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).



              6. “In reviewing counsel’s performance, courts must apply an objective

standard and determine whether, in light of all the circumstances, the identified acts or

omissions were outside the broad range of professionally competent assistance while at the

same time refraining from engaging in hindsight or second-guessing of trial counsel’s

strategic decisions. Thus, a reviewing court asks whether a reasonable lawyer would have

acted, under the circumstances, as defense counsel acted in the case at issue.” Syl. Pt. 6,

State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).




                                               ii
Per Curiam:

              James R.L. Meadows, defendant below, appeals from the December 20, 2011,

sentencing order of the Circuit Court of Monroe County. He challenges his conviction for

one count of murder in the second degree, one count of death of a child by a guardian or

custodian, and one count of child abuse resulting in injury. Meadows contends that the trial

court committed error by (1) granting a change in venue without a showing of good cause;

(2) allowing testimony by a State’s witness concerning polygraph test results without

ordering a mistrial or providing a curative instruction; (3) allowing the introduction of

hearsay evidence in the form of the testimony of a child psychologist about play therapy

without adequate foundation; (4) deeming evidence of a child psychologist regarding the

character of the accused to be admissible; and (5) permitting the introduction of gruesome

photographs. Meadows complains that he was deprived of the right to a fair trial not only

on these grounds but also because he had ineffective assistance of counsel at trial. He seeks

reversal of his conviction and remand for retrial.



              After completing a careful and thorough study of the arguments of the parties

as presented in the written briefs and at oral argument, we affirm.




                                             1

                           I. Factual and Procedural Background

                This case involves the death in November 2010 of a seventeen-month-old girl

due to profound abuse. It is uncontested that the toddler, I.H.,1 died as the result of repeated

blows to her head and body on November 4, 2010. The issue at trial centered on whether

Meadows or the victim’s mother, Christen H., inflicted the injuries that caused the child’s

tragic death.



                Meadows was living with the toddler’s mother. Christen had purchased a

trailer that she moved into with Meadows, her three-year-old son,2 and the victim about a

week before the beating occurred. On the day at issue, it appears that the brother3 was not

at the trailer but was staying with maternal grandparents.



                Melissa Gill lived in a trailer across from Christen’s trailer. Ms. Gill testified

she went to Christen’s the evening before the toddler was fatally injured in order to recharge

her cell phone because the electricity in her trailer was out. The neighbor said that Christen,



                1
                 Pursuant to Rule 40 of the West Virginia Rules of Appellate Procedure, the
identities of juveniles are protected in Court documents. Initials or descriptive terms are used
instead of full names to promote confidentiality.
                2
              The toddler and her brother are the children of Christen and Dustin H. who
were not divorced.
                3
               Since the children share the same initials we will simply refer to the boy as
“brother” and the girl as “toddler” or “victim.”

                                                2

Meadows and the toddler were at the trailer when she dropped by on November 3, 2010, and

the toddler quietly sat in her lap during most of the visit until Ms. Gill left around 10 or 10:30

p.m. She said that while holding the child she observed a few minor bruises on her forehead

and lip.



               The record reflects that Christen got up early on November 4, 2010, because

she had a scheduled appointment at 8:00 a.m. with the county Department of Health and

Human Resources (“DHHR”). She said she left around 7:00 a.m. to go to her mother’s to

bathe since she did not have running water in her trailer. According to Christen, she called

her mother on her cell phone before leaving to tell her she would be arriving shortly. During

the call Meadows was awake and sitting on the couch, and the toddler was sitting on the

couch with her “sippy cup.” Christen’s mother confirmed that this call had been made,

adding that she heard the toddler talking and playing in the background of the conversation.

Christen said that when she left the toddler with Meadows in the trailer that morning she

gave her cell phone to Meadows “[j]ust in case anything would happen.”



               From her mother’s home, Christen took her son to the DHHR appointment.

She said that she had been at DHHR approximately twenty minutes before she received the

call from Meadows informing her that her daughter had been rushed to the hospital. Christen




                                                3

went to the hospital. She said that Meadows told her when he later arrived at the hospital

that the child had fallen.



              Ms. Gill testified she was awakened around 8:30 or 8:45 the morning of

November 4, 2010, by Meadows who was carrying the victim in his arms. Ms. Gill observed

that the toddler was “unconscious and not responsive” and her breathing was “raspy.”

Finding that Meadows had not called anyone for assistance, she immediately placed a call

to 911. Ms. Gill further related that she saw and heard Meadows using a cell phone to call

his mother during this time.



              According to one of the paramedics who arrived with the ambulance around

8:55 a.m., he found the toddler “totally unresponsive,” meaning there was “[n]o crying, no

movement, no spontaneous response. . . . She was just totally limp.” He further noted

“bruising patterns” on the child’s body which ranged from “a very old bruise . . . to very new

bruises. . . .” The paramedic said the basis for what he placed in his report as to the cause

of the toddler’s condition was the information Meadows gave him at the scene. He said

Meadows told him that he had been in the back of the trailer when he heard a thud. When

Meadows investigated the source of the noise, he discovered that the child had fallen onto

the floor and was unresponsive.4

              4
             Meadows gave a statement to West Virginia State Police Sgt. Christopher
Smith on November 4, 2010, and the recorded statement was played for the jury during the

                                              4

              Ms. Gill followed the ambulance to the local hospital; Meadows remained at

Christen’s trailer. The toddler was in the emergency room of the local hospital for about three

hours when the attending doctor concluded that her extensive injuries could not be managed

at the facility. The toddler was transported by ambulance to the more specialized care and

treatment available at a Charleston medical facility. During the transport, the child’s

condition became very unstable and remained that way for the duration of the trip despite

paramedic intervention. The toddler died in Charleston on November 6, 2010.



               Meadows was indicted on November 16, 2010, for one count of murder in the

first degree, one count of a guardian or custodian causing the death of a child, and one count

of child abuse resulting in bodily injury.5 Prior to trial, defense counsel filed motions to

prevent any reference by the State of polygraph testing of Meadows, and for a change in



trooper’s testimony at trial. The substance of that statement was not transcribed or otherwise
supplied as part of the record in this appeal.
              5
                 Other legal actions were also initiated. According to a plea agreement filed
in the circuit court on September 2, 2011, which was admitted into evidence at trial, Christen
was charged in a two count indictment with permitting the death of a child by a parent, and
child abuse resulting in injury. The plea agreement reflects that Christen pled guilty to the
lesser included offense of gross neglect of a child in exchange for her cooperation with the
State’s prosecution of the case. The plea agreement included the stipulation that Christen
“grossly neglected her child as defined by West Virginia Code § 61-8D-4(e) by permitting
that child to be in the temporary care, custody, and control of R.L. Meadows.”

               Additionally, there are repeated references during the trial to a child abuse and
neglect proceeding. Documentation of anything regarding that proceeding is not part of the
record in this appeal.

                                               5

venue; the State filed a notice of intent to introduce evidence pursuant to Rule 404(b) of the

West Virginia Rules of Evidence (hereinafter “Rule 404(b)”). The request regarding

polygraph testing was granted, and the motion to change venue was initially denied. With

regard to the denial, the trial court noted on the record that “if it becomes obvious we can’t

get a jury [in Summers County], typically what we do is have a jury over in Monroe County.”

No objection was made to the venue ruling.



              Immediately before trial began, defense counsel objected to the use or

admission of any photographs by the State, particularly those depicting the child’s injuries.

The State argued that the photographs were not being used to inflame the jury but to show

the condition of the child. The trial court found that the probative value of the depiction of

the child’s injuries outweighed the prejudicial effect under the circumstances and denied the

motion.



              A three day jury trial commenced in Monroe rather than Summers County on

September 14, 2011.6 Before beginning voir dire the trial court explained:

                     And the reason that the case was transferred to Monroe
              County was that we anticipated there would be some difficulty
              in selecting a jury in Summers County. And it was felt that it
              would be prudent to transfer the case to Monroe County for trial

              6
              There is nothing in the record itself which documents when the decision to
change venue was made, how the parties were notified of the change or any other
circumstances surrounding the transfer.

                                              6

              purposes so that we could have a panel of jurors to pick from
              who probably knew little or nothing about this case. This case
              had publicity in Summers County. And it was transferred here
              so that we have a pool of people who really don’t – hopefully
              don’t know anything about this case.


              The full investigation surrounding the death of the child was handled by the

State Police Crimes Against Children Unit. Sgt. Melissa Clemons, a member of the unit,

testified that she began her investigation at the hospital in Summers County while the victim

was in the emergency room on November 4, 2010. Meadows was not at the hospital when

Sgt. Clemons arrived, but Christen, the brother, the maternal grandparents, and Ms. Gill were

there.



              Sgt. Clemons said that from the local hospital she went to the scene in order

to photograph the area in the trailer where Meadows said he found the child unconscious.

Meadows and Christen arrived at the trailer, and allowed Sgt. Clemons to measure and

photograph various angles of the couch to determine distances the child could have fallen

based upon Meadow’s story. Pictures were also taken of the bed in the trailer since Sgt.

Clemons had been told that some of the bruises on the victim’s face were due to her falling

off the bed twice sometime earlier in the week.



              A CPS worker testified that a November 4, 2010, abuse and neglect complaint

was the first one filed against this family. The worker went to the hospital that day as the

                                             7

“responding worker on a crisis call.” She spoke with Christen at the hospital and said

Christen had told her that two days before November 4, the victim had been jumping on the

bed when she fell off and hit her head. The toddler then got up and went into the living room

and started jumping on the couch until she fell off. On cross-examination, the CPS worker

said that during a second interview with Christen, the mother said Meadows had phoned her

on November 4th and said that the toddler had been jumping on the couch and a bed and fell

and struck her head twice. The worker also related that Christen had disclosed that when the

toddler had gone toward a road with traffic two days before November 4, Christen had jerked

her back by the arm and spanked her.7



              The Chief Medical Examiner of West Virginia, James A. Kaplan, M.D.,

testified that the injury to the victim’s brain was most likely the cause of her death. He

termed the injury an “abusive closed-head injury” resulting from “a violent

acceleration/deceleration force that was applied to the victim’s brain, almost certainly in the

setting of a repeated impact of her head to a surface. . . . [In these] type of assaults, the

child’s behavior becomes immediately abnormal. May not die right away, but it becomes

immediately abnormal.” He said that there was “almost certainly a separate impact” that

caused each of the eight bruises he pointed out to the jury in autopsy photographs of the




              7
                 The autopsy report relates that the victim had a non-displaced fracture of the
left distal radius with evidence of healing.

                                              8

surface of the victim’s brain tissue.8 He concluded, “[s]o this obviously takes it – this takes

this sort of injury out of the realm of an accidental occurrence, unless there was a bizarre

story.” He explained that a fall would not account for the number of separate bruises and the

tearing of the brain tissues he found. He also identified numerous internal injuries, including

a severe injury to the toddler’s colon, pancreas and liver, which he said were sustained as

“the result of powerful impacts to her tummy. Somebody either kicked or punched . . . [this

toddler] in the stomach very, very hard.” In response to the question about which of the

child’s injuries were considered the most serious, the medical examiner said:

                      Well, the injury to . . . [her] brain was the injury that
               probably, more than anything else, caused her death, although
               there were injuries to her pancreas and her liver and her gut
               which would have been very, very difficult to manage medically
               and may have caused her death eventually.


               The doctor also noted that some of the bruises on the victim’s body were old

bruises not related to the cause of death. Reading from his report which was admitted into

evidence, Dr. Kaplan recited his opinion that the victim “died as a result of a fatal assault

upon her person by a caretaker. The histologic appearance of injuries noted at autopsy is

consistent with the investigational findings indicating fatal assault occurred close to the time

of initial hospitalization.”




               8
               Although defense counsel did not renew his objection to the introduction of
the photographs taken at the trailer or at either of the hospitals, he did preserve his objection
to the introduction of the five autopsy photographs.

                                               9

              At the second day of trial, a hearing was held in camera regarding the Rule

404(b) evidence the State sought to admit. The evidence included the testimony of the

licensed psychologist to whom DHHR referred the brother for evaluation and treatment,9 and

the testimony of witnesses who had seen Meadows the previous month grab the toddler by

the arms to pick her up, speak harshly to her and then toss her onto a couch. After

conducting its analysis, the trial court ruled all of the testimony admissible subject to a

limiting instruction that the evidence may be considered only for the purposes of determining

whether the victim’s injuries were the result of an accident or mistake, and for determining

the identity of the individual who inflicted the injuries that caused the death.



              During the 404(b) hearing, defense counsel raised several concerns related to

the admissibility of the psychologist’s testimony in lieu of the brother being placed on the

stand. Defense counsel in essence objected to the testimony as being beyond any hearsay

exception permitted under Rule 803(4) of the West Virginia Rules of Evidence (hereinafter

“Rule 803(4)”), as a constitutional violation of the protections guaranteed under the

confrontation clause of the Sixth Amendment. The lower court ruled that any statements the

brother made were not done for testimonial purposes or preparation for trial and thus were

not an affront to the confrontation clause. The court further noted pursuant to State v. Payne,



              9
               According to the record, the psychologist said DHHR referred the brother to
him for evaluation and treatment related to dealing with his sister’s death and to his adjusting
to the change to the new home environment of living with his father.

                                              10

225 W.Va. 602, 694 S.E.2d 935 (2010), that “testimony of a treating medical provider as to

things that took place in the context of treatment, as opposed to interrogation or trial

preparation, is generally admissible.”



              The psychologist, Steve Ferris, testified the approach he typically took with

these type of referrals was to allow the child to play and interact with toys while he observed

and asked occasional questions. The brother gave names to two figures: he named one toy

“Ro-Ro” and the other “Sissy.” The therapist knew that Meadows’s nickname was R.L., and

said that he took “Ro-Ro” to be the then 4-year-old’s attempted pronunciation of “R.L.” Mr.

Ferris understood the “Sissy” toy as the brother’s representation of the victim. Mr. Ferris

said that he had seen the brother for eleven sessions and admitted that some of the stories the

brother related during play therapy were fanciful imaginings of a child. Nevertheless, he said

he saw two themes emerge from the play therapy: (1) the brother’s grief over the loss of his

sister, and (2) his feelings regarding “Ro-Ro,” who was described by the brother as someone

living with his mother, being around his mother, and being somewhat violent in the home.

Ferris testified that the brother talked of Ro-Ro sometimes being mean to him by kicking

him in the back and hitting him in the face. When playing with the Sissy doll the child talked

in gentle whispers and interacted in a protective way. Mr. Ferris related that in one session

while the brother was playing with the Sissy doll he “spontaneously said, Ro-Ro knocked her

out. And made a quick hitting motion with his arm and used the word – very loud, he said



                                              11

pow. And then said, Sissy going to sleep.” Mr. Ferris said when he talked about the Ro-Ro

figure the brother wanted to place the Sissy figure “about as far away [from each other] in

the room as he could.” The therapist said that the brother talked about “Ro-Ro whipping

Sissy’s butt.” When asked about his opinion to a reasonable degree of psychological

certainty10 of whether the brother witnessed and maybe experienced violence at the hands of

Meadows in the child’s home, Mr. Ferris stated,

              I do believe with the consistency that he’s talked about it, that
              he’s witnessed some violence, maybe experienced violence. But
              that’s been – if there’s been a consistent theme in the sessions
              that’s been outside the grieving of his sister, that has been the
              second most consistent theme.


              During her testimony, Christen said that when she was allowed to see her

daughter at the hospital emergency room she saw new bruises all over the toddler’s body.

After questioning Christen during cross-examination about the incongruity of the statements

she made to Sgt. Clemons about the toddler’s injuries, defense counsel proceeded to ask:

                    Q. Is there any way for us to tell in your statement which
              – what is truthful and what wasn’t?

                     A. Is there any way?

                     Q. Yes, ma’am. You give a lot of different
                     versions of everything.

                     A. I’ve already took a polygraph to it, and I passed.



              10
              Mr. Ferris testified during cross-examination at the in camera hearing that his
testimony was based on “psychological certainty.”

                                             12

Thereafter, defense counsel referred to another statement Christen made to Sgt. Clemons in

which she changed what she initially told the officer about having grabbed the toddler by the

arm and hit her. Defense counsel then asked:

                    Q. Did she take a statement from you about that or when
              was that, you gave – she answered.


                     A. Actually, they took a second statement when I took my
       polygraph. I told them then.


Later, on re-cross examination defense counsel continued to question the truthfulness of

Christen’s statements as follows:

                      Q. [Y]ou say that, now you’re being truthful. I mean,
              how do we know that? Do we just – do you wave some kind of
              magical wand and, all the sudden, you tell the truth after you’ve
              admitted to lying numerous times? You lied to . . . [the CPS
              worker], according to her testimony. You say that you didn’t
              make these statements that the State Police have attributed to
              you. You looked at the statement, and you read it. It’s got your
              name beside it, saying that you said it. You say, no, I didn’t say
              – I lied when I said it or, in another instance, you said, no, I
              didn’t say that.


              Do you see my quandary? Do I suddenly now say that, okay,
              she’s telling the truth here today? She’d decided to finally to
              fully come through, she’s an honest person, and she’s going to
              tell the truth? How can I not look at you with some skepticism?


                     A. Because, actually, when I took my polygraph, they
              asked me if I had ever whipped my daughter. And I said no. I
              actually passed it. And had I done any bodily harm to my



                                             13

              daughter, and I said no. And I passed it. I mean, right there’s
              the truth.


              When Christen was excused, the defense attorney moved for a mistrial given

the pretrial ruling regarding polygraph evidence. The court denied the motion stating that

any error in admission of polygraph evidence was invited by defense counsel. No objection

was made to the ruling and no request for a curative instruction was made.



              The defense called several witnesses, including the victim’s father, Christen’s

brother and other friends and acquaintances, who primarily described the poor treatment the

toddler had received from her mother and the mother’s lack of genuine commitment to her.

These witnesses also described Christen as an untruthful and dishonest person. Some of

these witnesses also testified about how much marijuana Meadows smoked on a daily basis.



              The defense also called Dr. Norman Miller to testify on the effects of drugs on

a user’s brain and behavior. Dr. Norman was qualified as a psychiatrist and neurologist who

testified from Michigan State University via video. He offered his expert opinion that

Meadows’s statement to Sgt. Smith would be unreliable due to Meadow’s prolonged

marijuana use. He opined that this level of drug usage also could affect his ability to

formulate criminal intent, and that he believed that there was a low likelihood that Meadows

would be violent.



                                             14

               Meadows was the last witness to take the stand at trial. He testified that he had

heavily used marijuana for five to six years. With regard to the victim’s injuries, Meadows

said that he had been away from the home at a friend’s and upon returning to the trailer he

noticed that the toddler had bruises “completely down the face.” He said that on the day the

toddler collapsed, Christen had hit the toddler fifteen to twenty times all over her body. He

also said that Christen had admitted to slapping the toddler when she slept with her the last

night of the child’s life, and that Christen further admitted to having hit the toddler’s head

on the headboard of the bed. He further said that when Christen left to go to DHHR on

November 4, she left the toddler sitting beside him on the couch. He said that he noticed

something was wrong with the toddler’s breathing and did not wait long before taking the

toddler to Ms. Gill’s trailer. He said that most of the initial statement he gave to the State

Police was false.



              Based upon this evidence, the jury returned a verdict of guilty of the lesser

included offense of second degree murder, death of a child by a parent or custodian, and

child abuse resulting in injury. A sentencing hearing was held on December 15, 2011, and

a sentencing order was issued on December 20, 2011. Meadows received the sentence of

a determinate period of forty years for murder in the second degree, forty years for death of

a child by a custodian, and one to five years for child abuse resulting in injury, to be served

concurrently. It is from the December 20, 2011, order that this appeal is taken.



                                              15

                                  II. Standard of Review

              There are six issues submitted for consideration in this case. As set forth in

syllabus point two of Walker v. West Virginia Ethics Commission, 201 W.Va. 108, 492

S.E.2d 167 (1997):

                      In reviewing challenges to the findings and conclusions
              of the circuit court, we apply a two-prong deferential standard
              of review. We review the final order and the ultimate disposition
              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.

As a majority of the errors raised regard evidentiary matters, we have said that “[a] trial

court’s evidentiary rulings, as well as its application of the Rules of Evidence, are subject to

review under an abuse of discretion standard.” Syl. Pt. 4, State v. Rodoussakis, 204 W.Va.

58, 511 S.E.2d 469 (1998). Further pertinent standards established by this Court for review

of other particular subjects raised in this appeal will be related under the discussion of the

relevant issue.




                                       III. Discussion

              We proceed in addressing each of the five areas in which trial court error is

alleged before considering the ineffective assistance of counsel claim.




                                              16

A. Change of Venue

                Meadows first claims that the court below erred by transferring his trial to

Monroe County without a showing of good cause. He maintains that this represents a

violation of his rights under the Constitution of West Virginia, the West Virginia Rules of

Criminal Procedure and the West Virginia Code. Meadows suggests that although this

Court typically reviews rulings on a motion for change of venue under an abuse of discretion

standard,11 a de novo review is required when a trial court commits plain error12 by not

making a good cause finding before moving a trial to a new location. He maintains that such

action by the trial court bears upon a substantial right as it amounts to a denial of his

constitutional right to a fair trial.



               Under the facts before us, we find no error. Defense counsel sought a change

in venue by pretrial motion. Although the circuit court initially denied that motion, in so

ruling the court made it quite clear on the record that should things change the trial would

be moved to Monroe County where the people were less likely to know the defendant or have

heard about the case. Subsequently, the trial court moved the trial to Monroe County.

Defense counsel made no objection, either to the change in venue or to the location of trial.


               11
                    See Syl. Pt. 2, State v. Wooldridge, 129 W.Va. 448, 40 S.E.2d 899 (1946).
               12
                 As we stated in syllabus point seven of State v. Miller, 194 W.Va. 3, 459
S.E.2d 114 (1995), to trigger such application “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.”

                                                17

              While Meadows now asserts that the trial judge transferred the case sua sponte,

it is not clear from the record before us when the trial court determined that a venue change

was in order or how the parties were or were not involved in the ultimate decision to transfer

the case. Meadows has not indicated what prejudice he suffered as a result of the transfer

and the record does not reflect that Meadows had any difficulty in obtaining evidence or

securing witnesses due to the change in trial location. These facts fall far short of

demonstrating that the trial court acted unilaterally or arbitrarily by moving the location of

the trial or that Meadows did not receive a fair trial as guaranteed by our State Constitution.

As such, the facts before us do not trigger the application of the plain error doctrine.



              The record also does not reveal an abuse of discretion. Defense counsel

introduced the concern that a fair trial could not be had in the county where the offense

occurred, and then raised no apparent objection either to the location selected for the trial or

the reason the trial court set forth on the record for changing venue. Moreover, there is no

indication in the record that the change in location caused any infirmity to the presentation

of Meadows’s case. Thus, any error now complained of is deemed invited. Hopkins v. DC

Chapman Ventures, Inc., 228 W.Va. 213, 219, 719 S.E.2d 381, 387 (2011) (recognizing the

well-established principle that a party inviting a court to commit error cannot complain error

was committed).




                                              18

B. Polygraph Evidence

               Meadows next asserts that the trial court erred by not declaring a mistrial or

offering a curative jury instruction after defense counsel elicited testimony on cross-

examination of a State witness regarding the results of her polygraph testing. Our review of

a circuit court’s decision to grant or deny a motion for a mistrial is reviewed under an abuse

of discretion standard. State v. Lowery, 222 W.Va. 284, 288, 664 S.E.2d 169, 173 (2008).

Meadows maintains that the trial court committed plain error when it allowed the unqualified

admission of the polygraph results to be considered by the jury, thereby denying him his

fundamental right to a fair trial.



              It is well-established that “[p]olygraph test results are not admissible in

evidence in a criminal trial in this State.” Syl. Pt. 2, State v. Frazier, 162 W.Va. 602, 252

S.E.2d 39 (1979). Therefore, error was committed when the witness, Christen, referred to

a polygraph test in response to defense counsel’s questioning. However, absolutely no effort

was made by defense counsel to have the initial polygraph reference withdrawn; rather,

defense counsel proceeded with the line of questioning which elicited two more references

to the witness’s polygraph test results, without objection or request that the jury be instructed

to disregard any of the testimony about a polygraph. It was not until after the witness was

excused that defense counsel moved for a mistrial. The circuit court ruled from the bench

as follows:



                                               19

                       You’re absolutely right . . . . I mean, we did have that
               pretrial ruling, that we couldn’t go into the polygraph
               examination, the fact that there was a polygraph examination.
               But, you know, she made that response not in response to a
               State’s question, but in response to your question. And I think
               that the manner in which you asked the question invited that
               response. And . . . [the prosecution] didn’t have any control
               over the witness at that point. I mean, it was your question that
               brought about that response, number one. And, number two,
               we’re talking about her polygraph examination as opposed to
               your client’s polygraph examination.

                      So to the extent that there’s any prejudicial error, it was
               invited by counsel for the defendant. So, your motion for a
               mistrial is denied.

Defense counsel did not then request a curative instruction nor did he offer an instruction

regarding polygraph test results for inclusion in the jury charge.



               This Court has indicated that a mistrial should be granted only where there is

a manifest necessity for discharging the jury prior to the time it has rendered its verdict. State

v. Williams, 172 W.Va. 295, 304, 305 S.E.2d 251, 261 (1983). We have also found that the

mention of a polygraph test does not automatically result in a mistrial. State v. Porter, 182

W.Va. 776, 392 S.E.2d 216 (1990). With regard to our review of such matters, we said in

State v. Acord, 175 W.Va. 611, 613-14 n.4, 336 S.E.2d 741, 744 n.4 (1985), that “our

analysis of whether the mention of a polygraph test is grounds for a mistrial is the same as

the analysis for any other error.”




                                               20

               A somewhat similar situation to the one before was considered in State v.

Porter. In that case, defense counsel also elicited the polygraph information from a State

witness. Thereafter a curative instruction was given by the trial court because defense

counsel objected to the testimony. We recognized such practice was in keeping with the

long-standing principle set forth in syllabus point eighteen of State v. Hamric, 151 W.Va. 1,

151 S.E.2d 252 (1966): “[W]here objections to questions or evidence by a party are sustained

by the trial court during the trial and the jury [is] instructed not to consider such matter, it

will not constitute reversible error.” However, this Court has not established a hard and fast

rule that a curative instruction is always required regardless if objection is raised, or that such

instruction would always serve to cure the erroneous introduction of polygraph evidence.

As such, trial courts are not under a “duty” as Meadows suggests to provide such an

instruction sua sponte.



               In view of the fact that the polygraph references in the case before us related

to a witness rather than the defendant himself, we find no manifest necessity requiring the

discharge of a jury by grant of a mistrial. Furthermore, while error was committed when

polygraph evidence was introduced, it was not reversible error because the evidence was not

elicited from or about the defendant, and defense counsel rather than the State was

responsible for its introduction. Additionally, the record reflects that Meadows was not

impeded from raising a challenge to Christen’s veracity through the testimony of several



                                                21

defense witnesses. Under these facts, we find that the trial court properly exercised its

discretion by treating the admission of the polygraph testimony as invited error.



C. Child Psychologist Testimony under Rule 803(4) of the West Virginia Rules of Evidence



              The next evidentiary challenge raised by Meadows regards the admission of

the psychologist’s testimony about what occurred during the brother’s play therapy sessions

as an exception to hearsay pursuant to Rule 803(4). He maintains on appeal that Mr. Ferris’s

testimony represents conclusions based on “mere speculation and conjecture” as there were

“no real statements” made by the brother. He claims that the psychologist’s testimony

consisted solely of his interpretations of the brother’s activities. The State points out that

these grounds were not asserted below, noting that defense counsel’s objection primarily

focused on the brother not being available as a witness for confrontation clause purposes, and

the reliability of the brother’s statements including the competency of the brother as a

witness.

              We find merit in the State’s contention. Our review of the in camera hearing

and trial court’s ruling13 regarding the use of this testimony pursuant to Rule 803(4) purposes



              13
               According to the record, the trial court relied on State v. Payne, 225 W.Va.
602, 694 S.E.2d 935 (2010), when ruling the testimony admissible under Rule 803(4). The
ruling included the findings that any of the statements made by the brother during play
therapy were not testimonial and were not made in the context of interrogation or trial
preparation, but instead were “things that took place in the context of treatment.”

                                              22

verifies that these concerns were not asserted below. Trial counsel did not argue that the

testimony was not based on statements the brother made to the psychologist, that the

brother’s statements were inconsistent with the purpose of providing treatment, or that the

statements were not relied upon by the psychologist for the purposes of treatment or

diagnosis. See Syl. Pt. 4, State v. Payne, 225 W.Va. 602, 694 S.E.2d 935 (2010) (quoting

Syl. Pt. 5, State v. Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990)) (providing

test for determining admissibility of evidence pursuant to Rule 803(4)). Thus, Meadows’s

claim of error regarding the admissibility of the opinions presented by Mr. Ferris during his

testimony on play therapy with the brother is precluded from appellate review due to the

failure to raise these matters before the trial court. See W.Va. R. Evid. R.103(a)(1). As this

Court recognized in State v. DeGraw, 196 W.Va. 261, 272, 470 S.E.2d 215, 226 (1996),

                     It is well established that where the objection to the
              admission of testimony is based upon some specified ground,
              the objection is then limited to that precise ground and error
              cannot be predicated upon the overruling of the objection, and
              the admission of the testimony on some other ground, since
              specifying a certain ground of objection is considered a waiver
              of other grounds not specified.



D. Child Psychologist Testimony under Rule 404(b) of the West Virginia Rules of Evidence

              Meadows next challenges the admission of the psychologist’s testimony under

Rule 404(b). He maintains that no meaningful evidence was offered by the State during the

in camera hearing sufficiently showing the psychologist’s testimony would relate some



                                             23

specific act or crime or wrong having a temporal connection to the crimes for which

Meadows was standing trial.



              Before admitting evidence under Rule 404(b), a trial court must hold an in

camera hearing and: (1) be satisfied that the proponent has shown by a preponderance of the

evidence the acts or conduct occurred and the defendant committed them; (2) find the

evidence relevant under evidentiary Rules 401 and 402; (3) find the probative value of the

evidence is not substantially outweighed by its prejudicial effect; and (4) issue a limiting

instruction when the evidence is offered, and advisably in the court’s jury charge. Syl. Pt.

2, State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994). The standard we apply to

review of a trial court’s admission of evidence pursuant to Rule 404(b) involves a three-step

analysis. First, we review for clear error the trial court’s factual determination that there is

sufficient evidence to show the other acts occurred. Second, we review de novo whether the

trial court correctly found the evidence was admissible for a legitimate purpose. Third, we

consider whether the trial court’s conclusion that the evidence of the collateral acts is more

probative than prejudicial under evidentiary Rule 403 reflects an abuse of discretion. State

v. LaRock, 196 W.Va. 294, 310–11, 470 S.E.2d 613, 629–30 (1996).



              In this case, we find no error in the trial court’s factual determination. The

State had shown by a preponderance of the evidence that Meadows directed acts of physical



                                              24

abuse toward both the victim and the brother. It was established that Mr. Ferris had eleven

therapy sessions over the course of several months with the brother. His testimony included

various examples of what the brother stated or demonstrated during the therapy, including

that the brother said that Ro-Ro would “kick his butt,”and Ro-Ro would get mad when Sissy

would cry. The testimony also revealed the brother demonstrated physical, violent acts

between the dolls, and was protective of the Sissy doll by consistently keeping the doll as far

away from the Ro-Ro figure as he could. Mr. Ferris stated “to a reasonable degree of

psychological certainty” during the in camera hearing that the brother “witnessed some

violence, maybe even experienced violence.” Although Meadows contends that a specific

act, wrong or crime was not established, we find that the evidence does demonstrate a pattern

of physical abuse.



               We also find that the evidence was admitted for the legitimate purposes of

showing lack of mistake or accident and to identify the likely perpetrator of the injuries

underlying the crimes charged. These fall within the acceptable purposes stated in the text

of Rule 404(b). They are obviously appropriate reasons under circumstances where

Meadows had maintained that the victim’s injuries were the result of an accidental fall and

the identity of the person inflicting the injuries on the toddler had not been conclusively

established.   Further, the trial court’s conclusion that the probative value of the

psychologist’s play therapy testimony involving the collateral acts outweighed its prejudicial



                                              25

effect was well-reasoned. The record also reflects that the lower court gave the appropriate

limiting instruction to the jury.



              Accordingly we conclude that the trial court did not abuse its discretion in

finding the psychologist’s testimony admissible under Rule 404(b).



E. Photographs

                Meadows argues that the admission of twenty-seven photographs of the

victim, twenty-two taken during the time she was unconscious in the hospitals and five

autopsy photographs, represents an abuse of discretion. He maintains that the gruesomeness

of the photos overwhelmed the jury.



              Our review of the admissibility of photographs claimed to be gruesome

proceeds with an examination of the evidence pursuant to Rules 401 through 403 of the West

Virginia Rules of Evidence to ascertain whether the trial court abused its discretion. This

analysis is outlined in syllabus point ten of State v. Derr, 192 W.Va. 165, 451 S.E.2d 731

(1994):

                      Rule 401 of the West Virginia Rules of Evidence requires
              the trial court to determine the relevancy of the exhibit on the
              basis of whether the photograph is probative as to a fact of
              consequence in the case. The trial court then must consider
              whether the probative value of the exhibit is substantially
              outweighed by the counterfactors listed in Rule 403 of the West


                                            26

              Virginia Rules of Evidence. As to the balancing under Rule
              403, the trial court enjoys broad discretion. The Rule 403
              balancing test is essentially a matter of trial conduct, and the
              trial court’s discretion will not be overturned absent a showing
              of clear abuse.


Our examination of relevance pursuant to Rule 403 follows the principles outlined as follows

in syllabus point nine of Derr:

                     Although Rules 401 and 402 of the West Virginia Rules
              of Evidence strongly encourage the admission of as much
              evidence as possible, Rule 403 of the West Virginia Rules of
              Evidence restricts this liberal policy by requiring a balancing of
              interests to determine whether logically relevant is legally
              relevant evidence. Specifically, Rule 403 provides that although
              relevant, evidence may nevertheless be excluded when the
              danger of unfair prejudice, confusion, or undue delay is
              disproportionate to the value of the evidence.


              The hospital photographs in question depicted the toddler in an unconscious

state, with the various tubes inserted into her body to stabilize her condition. The pictures

showed bruises over the victim’s entire body. The pictures were taken when the toddler was

first taken to the emergency room, and every twelve hours thereafter per the instruction of

the medical examiner. During his testimony, the medical examiner explained that the

purpose of the series of photographs while the toddler was hospitalized was to identify the

more recently inflicted blows since the bruising would continue to intensify in those areas.

He also noted that the changes in bruising could have changed dramatically had the toddler

lived any length of time, so the pictures served to document the child’s condition closer to



                                             27

the time of the beating. The hospital photos were the only pictures which depicted the

bruising over the victim’s full body. The five autopsy photos were head shots, focusing on

the injuries inflicted on the face and brain. Three of the five autopsy photos were views of

the child’s exposed brain (her face was not visible) which allowed the jury to see the depth

of the bruises the toddler sustained to her head, and to understand why the medical examiner

determined that those blows were most likely the cause of the child’s death. One of the

pictures focused on the underside of the toddler’s upper lip, which the medical examiner

noted exhibited a tear in the tissue which could only be caused by a striking blow. The

remaining autopsy photo showed bruising on the victim’s chin, used by the medical examiner

to explain that such an array of contusions were indicative of assault rather than a medical

procedure such as intubation.



              While the photographs depicting the toddler from the time closest to the

infliction of the fatal blows through autopsy are unquestionably disturbing, they were

admissible as evidence relevant to material elements of the prosecution’s burden of proof and

the probative value clearly outweighed any prejudicial impact. The autopsy photos were used

to explain the force of the blows causing the child’s ultimate death by showing how deeply

the brain tissue itself had been damaged, negating that the child’s injuries were the result of

an accident or fall. The autopsy pictures of the child’s lip and chin were used to dispel any

misconception that the injuries were caused by anything other than forceful blows to the



                                              28

child’s head. The photographs taken prior to death document the number and location of

bruises on the child’s entire body, and provided the fact-finder with information as to the

extent of the blows which had more recently been inflicted on the child. Accordingly, we

find no error in the trial court’s admission of the photographs.



F. Ineffective Assistance of Counsel

               Ineffective assistance of counsel is the basis of Meadows’s final argument in

this appeal. He maintains his trial counsel was ineffective by: (1) failing to object when the

trial venue was changed; (2) repeatedly eliciting polygraph testimony from Christen, and then

raising no objection or seeking any curative jury instruction; (3) allowing witnesses to

provide otherwise impermissible hearsay testimony; (4) failing to lay a proper foundation for

the admission of an alleged prior inconsistent statement of Christen; and (5) failing to consult

with his client.



               We summarized our approach to ineffective assistance of counsel claims in the

context of a direct appeal in syllabus points five and six of State v. Miller, 194 W.Va. 3, 459

S.E.2d 114 (1995), and concluded:

               5. In the West Virginia courts, claims of ineffective assistance
               of counsel are to be governed by the two-pronged test
               established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
               2052, 80 L.Ed.2d 674 (1984): (1) Counsel’s performance was
               deficient under an objective standard of reasonableness; and (2)
               there is a reasonable probability that, but for counsel’s


                                              29

               unprofessional errors, the result of the proceedings would have
               been different.

               6. In reviewing counsel’s performance, courts must apply an
               objective standard and determine whether, in light of all the
               circumstances, the identified acts or omissions were outside the
               broad range of professionally competent assistance while at the
               same time refraining from engaging in hindsight or
               second-guessing of trial counsel’s strategic decisions. Thus, a
               reviewing court asks whether a reasonable lawyer would have
               acted, under the circumstances, as defense counsel acted in the
               case at issue.



               In evaluating ineffective assistance claims, we are mindful that “[w]here a

counsel’s performance . . . arises from occurrences involving strategy, tactics and arguable

courses of action, his conduct will be deemed effectively assistive of his client’s interests,

unless no reasonably qualified defense attorney would have so acted in the defense of an

accused.” Syl. Pt. 21, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974). As further

explained in the Miller case, “[t]he test of ineffectiveness has little or nothing to do with what

the best lawyers would have done. Nor is the test even what most good lawyers would have

done. We only ask whether a reasonable lawyer would have acted, under the circumstances,

as defense counsel acted in the case at issue. We are not interested in grading lawyers’

performances; we are interested in whether the adversarial process at the time, in fact,

worked adequately.” 194 W.Va. at 16, 459 S.E.2d at 127. We additionally recognize that

Meadows has the burden of proving ineffective assistance of counsel allegations by a




                                               30

preponderance of the evidence. Syl. Pt. 22, State v. Thomas, 157 W.Va. at 643, 203 S.E.2d

at 449.



              Meadows has asserted numerous claims that his trial counsel was

constitutionally ineffective. However, those claims have not been adequately developed. We

are not able to conclude that the performance of Meadows’s trial counsel caused the

adversarial process to work inadequately. For instance, the record sheds no light on

Meadows’s allegation that trial counsel did not consult with him. Other of the claims may

represent acceptable tactics or strategic decisions. For example, trial counsel may have

elected not to request a curative instruction regarding the polygraph testimony in an effort

to minimize its effect on the jury. These factors lead us to conclude that the ineffective

assistance of counsel claim is not adequately developed for consideration on direct appeal.

This decision, however, is made without prejudice should Meadows desire to proceed with

the development of a more complete record on the issue in a petition for habeas corpus.



                                     IV. Conclusion

              Based upon the foregoing, the December 20, 2011, order of the Circuit Court

of Monroe County is affirmed.

                                                                                 Affirmed.




                                            31

