                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS

Wade Painter,
Petitioner Below, Petitioner                                                      FILED
                                                                               June 12, 2019
vs.) No. 17-1010 (Berkeley County 9-C-573)                                   EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
Donnie Ames, Superintendent,
Mt. Olive Correctional Complex,
Respondent Below, Respondent


                               MEMORANDUM DECISION
        Petitioner Wade Painter, by counsel Ben J. Crawley-Woods, appeals the Circuit Court of
Berkeley County’s October 16, 2017, order denying his petition for a writ of habeas corpus.1
Donnie Ames, Superintendent, Mt. Olive Correctional Complex, by counsel Scott E. Johnson,
filed a response in support of the circuit court’s order.2 On appeal, petitioner argues that the
circuit court erred in denying him habeas relief because he received ineffective assistance of
counsel.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

       Police began investigating the events that gave rise to petitioner’s underlying criminal
convictions in September of 2005 following the shooting deaths of Raymond White Jr. and his
son, Raymond White IV. Painter v. Ballard, No. 15-0540, 2016 WL 3349168, at *1 (W. Va.
June 15, 2016)(memorandum decision). Investigators determined that personal property had been

       1
         Additionally, by order entered on May 7, 2018, this Court granted petitioner’s “motion
for leave to file a pro se supplement.”
       2
        Effective July 1, 2018, the positions formerly designated as “wardens” are now
designated “superintendents.” See W. Va. Code § 15A-5-3. Further, petitioner originally listed
Ralph Terry as respondent in this matter. However, Donnie Ames has subsequently taken the
position of superintendent at Mt. Olive Correctional Complex, and the appropriate public officer
has been substituted in accordance with Rule 41 of the Rules of Appellate Procedure.




                                                1
stolen from the Whites’ home, in addition to two other homes in the area. Id. One of the items
missing from the Whites’ home was a Mazda MX-6, which police located on September 15,
2005, abandoned behind a garage. Id. That same day, an individual contacted law enforcement
“and informed them that he witnessed the tenant of one of his rental properties in possession of a
car matching the description of the stolen Mazda MX-6.” Id. The caller identified his tenant as
petitioner on appeal and indicated that petitioner lived with his girlfriend, Angela Conner. Id.
After receiving this information, law enforcement responded to petitioner’s residence to question
him about the vehicle. Id. Because petitioner refused the officers’ entry into the home, they
spoke outside the residence with petitioner ultimately agreeing to “accompan[y] the officers in
their unmarked vehicle to the police station to answer further questions.” Id.

         Following petitioner’s departure, Ms. Conner, through her father, communicated to law
enforcement that she would permit a search of the shared residence because “her home was full
of property she did not believe belonged to Mr. Painter.” Id. at *2. Law enforcement again
responded to the home, Ms. Conner granted permission to enter, and law enforcement gathered
and cataloged the property Ms. Conner identified. Id. “The entry of the residence was premised
on Ms. Conner’s permission; no search warrant was ever obtained to search the residence.” Id.
Upon entry, “the officers found a red duffle bag with items appearing to have blood on them and
a dog tag bearing the name of one of the Whites.” Id. As a result of the search, petitioner was
placed under arrest. Id.

         Thereafter, petitioner was indicted on one count of daytime burglary by entering without
breaking, one count of grand larceny, one count of daytime burglary by breaking and entering,
one count of petit larceny, two counts of first-degree murder, and one count of possession of a
stolen vehicle. Petitioner was convicted on all counts following a jury trial. Following the denial
of his post-trial motions, petitioner was sentenced to the following terms of incarceration: one to
ten years for daytime burglary by entering without breaking; one to ten years for grand larceny;
one to fifteen years for daytime burglary by breaking and entering; one year for petit larceny; one
to five years for possession of a stolen vehicle; and two life sentences, without mercy, for the
first-degree murder convictions. All sentences were ordered to be served consecutively.
Petitioner appealed his convictions to this Court, and we refused the appeal by order entered on
February 3, 2009.

        In June of 2009, petitioner filed a petition for writ of habeas corpus and was appointed
counsel the following month. After multiple extensions, motions to withdraw as counsel, and
appointments of new attorneys, petitioner ultimately filed an amended habeas petition on May
23, 2014. In December of 2014, the circuit court summarily dismissed all but one of the claims
raised in petitioner’s habeas petition. In May of 2015, after ordering respondent to file a response
to petitioner’s remaining claim of ineffective assistance of counsel, the circuit court entered a
second order summarily denying the petition. Both orders denying petitioner’s claims were
entered without an evidentiary hearing. Petitioner then appealed the orders denying his habeas
petition to this Court. In a decision issued on June 15, 2016, the Court affirmed, in part, and
reversed, in part, the circuit court’s rulings. The matter was ultimately remanded for the circuit
court to hold an omnibus evidentiary hearing addressing petitioner’s ineffective assistance claim.
Id at *5.



                                                 2
         Upon remand, the circuit court held an omnibus hearing in August of 2017. Prior to the
hearing, petitioner moved to retain an expert witness regarding whether his counsel’s
performance fell below an objective standard of reasonableness. The circuit court denied this
motion. Petitioner’s trial and appellate counsel, B. Craig Manford and S. Andrew Arnold,
testified during the hearing, as did petitioner. According to the circuit court, “[b]ecause the
events underlying the amended [p]etition occurred approximately ten years ago, all witnesses
had difficulty recalling the events at issue.” Following the hearing, the circuit court again denied
the petition. This appeal followed.

       Our review of the circuit court’s order denying petitioner’s petition for a writ of habeas
corpus is governed by 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). Further,

               “[i]n 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).

Syl. Pt. 2, Raines v. Ballard, 236 W. Va. 588, 782 S.E.2d 775 (2016). Importantly, hindsight is
not to be applied to the objective standard:

               “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).

Raines, 236 W. Va. at 589, 782 S.E.2d at 776, syl. pt. 3.




                                                 3
        In his first assignment of error, petitioner alleges that his trial attorneys’ performances
were objectively deficient because they failed to undertake an investigation into the charges
against petitioner, especially in light of the fact that “discovery . . . indicated that there were
third[]parties who may have been responsible for the crimes.”3 According to petitioner, “the
presumption [that counsel’s conduct falls within the wide range of reasonable professional
assistance] is simply inappropriate if counsel’s strategic decisions are made after an inadequate
investigation.” Syl. Pt. 3, in part, State ex rel. Daniel v. Legursky, 195 W. Va. 314, 465 S.E.2d
416 (1995). Upon our review, however, we find that petitioner is entitled to no relief in this
regard.

        In support of this assignment of error, petitioner relies heavily on the facts of Ballard v.
Ferguson, 232 W. Va. 196, 751 S.E.2d 716 (2013), to argue that trial counsel failed to
investigate the charges against him. We note, however, that the facts of Ferguson differ
substantially from those presented in the matter on appeal. Importantly, the evidence in Ferguson
established that an individual confessed to at least two other people that he, not the defendant,
murdered the victim in that case, and that one of the individuals to whom the confession was
made relayed that information to the police prior to trial. Id. at 199, 751 S.E.2d at 719. Moreover,
although counsel in that case learned of the witness’s statement through discovery, “[t]here was
also evidence that trial counsel failed to do an independent investigation” into the statement. Id.
In affirming the circuit court’s award of habeas relief upon counsel’s failure to investigate the
matter, this Court found that the “compelling testimony” of two of the people to whom the third
party’s confession was made “was unjustifiably kept from the jury because of [counsel’s]
ineffectiveness.” Id. at 208, 751 S.E.2d at 728. We further found that these facts “conclusively
demonstrate[] that the adversarial process . . . was undermined [because t]he best evidence
[defendant] had to defend his claim of innocence at trial was suppressed through [counsel’s]
constitutionally deficient performance.” Id. Such a factual scenario is simply not present in the
matter on appeal.

         Importantly, no third party confessed to the crimes of which petitioner was convicted.
Instead, petitioner cites to testimony from Walter Johnson III, who testified at petitioner’s
criminal trial that, on September 14, 2005, he gave a ride to Mike Barrett. According to Mr.
Johnson, Mr. Barrett “had a lot of scratches and quite a knot on the head.” Per Mr. Johnson’s
testimony, Mr. Barrett told him that he had been “jumped by a couple gentlemen.” Mr. Johnson
testified that he “made the connection that . . . maybe there was something to look into this
fellow being hurt the night of” the victims’ murder, so he contacted law enforcement with this


       3
        In support of this assignment of error, petitioner also asserts, in passing, that counsel
only met with him “a couple times prior to trial” and, further, that they “did not consult with him
regarding grounds to present on direct appeal.” However, petitioner cites to no authority
requiring that counsel meet with a client for any specific duration prior to trial or an appeal and
provides no argument as to how the amount of time counsel met with him was deficient, or,
ultimately, any analysis concerning how these allegations constitute ineffective assistance of
counsel. Accordingly, these arguments will not be considered, in accordance with Rule 10(c)(7)
of the West Virginia Rules of Appellate Procedure.



                                                 4
information. Mr. Johnson testified that he had no other reason to connect Mr. Barrett to the
victims. This speculation about how Mr. Barrett may have received his injuries is far from the
“best evidence” that was available to the defendant in Ferguson. More importantly, in Ferguson,
the defendant was denied testimony from witnesses that supported his theory of defense. Here,
petitioner presented testimony from Mr. Johnson in furtherance of his theory that a third party
committed the crimes in question. As such, it is clear that trial counsel investigated the matter
thoroughly enough to secure Mr. Johnson’s testimony, thereby laying an evidentiary basis for the
theory that someone other than petitioner committed the crimes. As such, petitioner’s reliance on
Ferguson is misplaced and he is entitled to no relief in this regard.

       In regard to petitioner’s second assignment of error, he specifically alleges that his trial
attorneys were ineffective with respect to the following portion of the State’s closing:

               [The State:] There is no evidence that contradicts what was at Wade
       Painter’s house, what was on Wade Painter’s clothes, what was found at that
       crime scene . . . . It still comes back to Wade Painter and we ask you to find him
       guilty. Make him take responsibility for what he did and don’t believe the web
       that he tried to spin when he was talking to these officers because every time it
       comes back to it’s in your house, you had control, it’s their blood, it’s their things,
       ladies and gentlemen. That has not been refuted in front of you and that - -

              [Defense counsel]: Judge, I would like to offer an objection. There’s no
       burden on the defense.

              [The Court]: That’s correct. Ladies and gentlemen, the prosecutor’s
       evidence has not been refuted but there’s no burden upon the defendant to prove
       himself innocent. It is upon the State.

               [The State]: That’s absolutely true. I apologize. I misspoke in that regard.
       It hasn’t been refuted. It’s not there.

               [Defense counsel]: Same objection, Judge.

               [The Court]: Again, the same ruling of the Court. There’s no obligation of
       the defendant to present any evidence in a criminal case.

        On appeal, petitioner alleges that this exchange violated his constitutional rights because
(1) the prosecutor’s remarks placed an unlawful burden on him to prove himself innocent,
thereby shifting the burden of proof in the case; (2) the prosecutor’s remarks constitute an
impermissible comment on his failure to testify; and (3) the trial court’s remarks to the jury
constituted an opinion as to a matter that was in the jury’s exclusive province, to petitioner’s
prejudice. Upon our review, we find that petitioner’s arguments are without merit.

        First, it is important to note that petitioner acknowledges that counsel twice objected to
the State’s remarks on the basis that they implied petitioner, as the defendant, carried the burden
of proof. It is also uncontroverted that defense counsel obtained a favorable ruling and a curative

                                                 5
instruction in regard to the comments. While petitioner alleges that counsel was ineffective for
failing to raise this issue on appeal, it is clear that he cannot satisfy the standard in Strickland v.
Washington, 466 U.S. 668 (1984), in regard to this argument. Counsel objected on these grounds,
obtained a favorable ruling and a curative instruction, thereby obviating the need to raise the
issue on direct appeal.

        Second, it is clear that petitioner’s trial attorneys provided effective assistance in the
manner in which they objected to the State’s comments. Petitioner argues that counsel should
have made an additional objection on the basis that the comments impermissibly referenced his
decision to stand silent. Upon our review, however, we find no error in the lack of such objection
because the remarks did not violate the prohibition against commenting on an accused’s silence.
As this Court has long held,

       [t]he general rule formulated for ascertaining whether a prosecutor’s comment is
       an impermissible reference, direct or oblique, to the silence of the accused is
       whether the language used was manifestly intended to be, or was of such
       character that the jury would naturally and necessarily take it to be a reminder that
       the defendant did not testify.

State v. Clark, 170 W. Va. 224, 227, 292 S.E.2d 643, 646 (1982) (citations omitted). The limited
and isolated comments referenced above simply do not rise to this level, especially when
considering that

       the prosecution is free to stress the strength of the government’s case and to argue
       the evidence and reasonable inferences therefrom, and the prosecutor is not
       constitutionally forbidden from telling the jury the fact that the evidence on any
       given point in the case stands uncontradicted. A prosecutor’s statement that the
       evidence is uncontradicted does not “naturally and necessarily” mean the jury will
       take it as a comment on the defendant’s failure to testify. In many instances
       someone other than the defendant could have contradicted the government’s
       evidence.

Id. at 227, 292 S.E.2d at 647 (citations omitted).

        Immediately prior to the comments at issue, the prosecutor summarized the evidence in
the case for the jury, which included not only references to petitioner and the evidence found in
his residence, but also the evidence from the crime scene and other locations. The prosecutor’s
summarization of the evidence also addressed petitioner’s prior statements to law enforcement,
which, according to petitioner, ensured that the jury would believe the comments referenced his
silence. We do not agree. Instead, it is clear that the prosecutor simply asked the jury to find
petitioner guilty based upon the overwhelming physical evidence linking him to the crime scene
and in spite of his refusal to acknowledge the same during his statements to police. As such, it is
clear that the comments in question did not warrant reversal, and this is especially true given that
the cases upon which petitioner relies for support are easily distinguishable from the facts in
petitioner’s case. See, e.g., State v. Keesecker 222 W. Va. 139, 147, 663 S.E.2d 593, 601 (2008)
(concluding that reversal was warranted because the prosecutor’s multiple remarks concerning

                                                  6
the lack of contradictory testimony “were emphatic enough to produce a pronounced effect upon
the jury”); State v. Oxier, 175 W. Va. 760, 761, 338 S.E.2d 360, 361 (1985) (finding that reversal
was warranted because, in closing, the prosecutor “dwelled at some length on the defendant’s”
pretrial silence) (emphasis added). For these reasons, petitioner is entitled to no relief.

        Next, petitioner argues that the circuit court’s curative instruction “was more harmful
than helpful.” According to petitioner, the circuit court’s statement that “the prosecutor’s
evidence has not been refuted” constituted an impermissible comment on the weight of the
evidence. We do not agree. Petitioner is correct that, because the jury is the trier of fact, “the
court should be extremely cautious not to intimate in any manner, by word, tone or demeanor,
his opinion upon any fact in issue.” Syl. Pt. 3, in part, State v. Rogers, 215 W. Va. 499, 600
S.E.2d 211 (2004) (quoting syl. pt. 7, State v. Austin, 93 W. Va. 704, 117 S.E. 607 (1923)).
However, petitioner is simply incorrect that the court’s comment in this matter rises to the level
of intimating its opinion on the facts. Petitioner does not dispute that the evidence was, in fact,
unrefuted. Instead, he argues that the prosecutor’s statements “implied [he] had some duty to
present such evidence.” As such, the circuit court was not giving an opinion when it confirmed
that the evidence was unrefuted. Instead, the court laid a basis for its ruling, which stemmed
directly from the fact that no evidence was presented to refute the State’s evidence. This was the
crux of petitioner’s objection at trial; because he did not have a duty to satisfy any burden of
proof, he was not required to present any evidence to refute the State’s evidence. Far from being
“more harmful than helpful,” the circuit court’s two instructions to the jury made explicitly clear
that “[t]here’s no obligation of the defendant to present any evidence in a criminal case.”
Accordingly, we find that petitioner is entitled to no relief.

        Petitioner’s third assignment of error concerns allegations that his trial counsel failed to
challenge, either at trial or on direct appeal, the introduction of certain evidence that he believes
was inadmissible under Rule 404(b) of the West Virginia Rules of Evidence. 4 Specifically,
petitioner challenges the admission of testimony that he “spent his paycheck on and consumed
Xanax pills and his brother was in prison” and that he “attempt[ed] to sell [a witness] items of
personal property[] and firearms.” Upon our review, we find no error.

       First, it is important to note that trial counsel objected under Rule 4035 to the testimony
that petitioner’s brother was incarcerated and obtained a limiting instruction. During the
testimony of Angela Conner, the following exchange took place:


       4
        In support of this assignment of error, petitioner reiterates his argument that because his
attorneys “did not adequately investigate the case and consult with [him] . . . any ‘strategic’
decisions . . . cannot be presumed reasonable.” As outlined above, petitioner failed to establish
that counsel did not adequately investigate the matter or consult with him.
       5
        Rule 403 of the West Virginia Rules of Evidence states as follows: “The court may
exclude relevant evidence if its probative value is substantially outweighed by a danger of one or
more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.”



                                                 7
               Q.      Does [petitioner] have a brother?

               A.      Yes.

               Q.      Where does his brother live?

               A.      He’s in prison right now.

        Following the witness’s testimony, petitioner’s counsel requested a sidebar and requested
a curative instruction regarding this exchange. According to the record, counsel objected to the
fact that the testimony had “no probative value and [was] highly prejudicial.” The circuit court
agreed to give an instruction on the testimony and informed the jury that the testimony was to be
considered only insomuch as the State sought to establish the brother’s location and that the jury
could not “consider the fact that he’s in prison as any evidence of guilt or innocence in this
case.” As such, it is clear that petitioner cannot establish a violation of either prong of Strickland
in regard to this evidence.

        Second, we find that the remaining evidence of which petitioner complains was intrinsic
to the crimes charged because the State’s theory at trial was that petitioner killed the victims and
stole various items in order to obtain money. Thus, the evidence was properly admitted. During
Ms. Conner’s testimony, the following exchange occurred:

             Q.      Let’s go to Monday the 12th, do you remember something strange
       happening at your home that day?

               A.      No.

              Q.    Let me back you up just a second. Do you remember [petitioner]
       when he got paid from Brentwood Industries, do you remember when his check
       came in?

               A.      He always got them on a Friday.

               Q.      Was there a problem that occurred or something that came to your
       attention that Sunday or Monday that upset you concerning his paycheck?

               A.      The Friday before that.

               Q.      What happened?

               A.      That he had spent his paycheck on Xanax.

              Q.      So that was the 9th; is that right? If Monday was the 11th then we
       go back to the 9th.



                                                   8
               A.     Yes.

               Q.     He spent his paycheck on Xanax. How many Xanax pills did he
       get?

               A.     I know he bought 20 of them. I don’t know exactly how many the
       next of the two days.

               Q.     Did he go back and get more?

               A.     Yes.

               Q.     How did he pay for them? Is that still part of the same check?

               A.     Yeah.

               Q.     And you were upset over that?

               A.     Yes.

               Q.     Did you watch him consume these Xanax pills?

               A.     Yes.

               Q.     How many did he take?

               A.     I’m not exactly sure. I just know it was like a handful, probably at
       least ten or more.

               Q.     After he would take them what would he do?

               A.     Within an hour or two sometimes he passed out.

               Q.     Was he drinking at the same time?

               A.     Yes.

               Q.     What was he drinking?

               A.     Usually beer.

        While petitioner argues that this evidence should have been barred under Rule 404(b) and
counsel was ineffective for failing to raise the issue on appeal, we do not agree. “This Court has
consistently held that evidence which is ‘intrinsic’ to the indicted charge is not governed by Rule
404(b).” State v. Harris, 230 W. Va. 717, 722, 742 S.E.2d 133, 138 (2013) (citations omitted).
Further,

                                                9
       [o]ne of the accepted bases for the admissibility of evidence of other crimes arises
       when such evidence “furnishes part of the context of the crime” or is necessary to
       a “full presentation” of the case, or is so intimately connected with and
       explanatory of the crime charged against the defendant and is so much a part of
       the setting of the case and its “environment” that its proof is appropriate in order
       “to complete the story of the crime on trial by proving its immediate context or
       the ‘res gestae’” or the “uncharged offense is ‘so linked together in point of time
       and circumstances with the crime charged that one cannot be fully shown without
       proving the other . . .’ (and is thus) part of the res gestae of the crime charged.”
       And where evidence is admissible to provide this “full presentation” of the
       offense, “(t)here is no reason to fragmentize the event under inquiry” by
       suppressing parts of the “res gestae.” As the Court said in United States v.
       Roberts, 548 F.2d 665, 667 (6th Cir.1977), . . . “(t)he jury is entitled to know the
       ‘setting’ of a case. It cannot be expected to make its decision in a void without
       knowledge of the time, place and circumstances of the acts which form the basis
       of the charge.”

Id. at 721-22, 742 S.E.2d at 137-38 (quoting United States v. Masters, 622 F.2d 83, 86 (4th Cir.
1980)). Here, the State introduced evidence of petitioner’s purchase and use of Xanax shortly
before the crimes to establish his motivation for committing them. By establishing that petitioner
spent his entire paycheck on Xanax and used the pills he purchased, the State was able to
establish that petitioner was motivated to commit the crimes in question in order to obtain more
money to purchase more pills. As such, this evidence permitted the State to provide a full
presentation of the case, including the time, place, and circumstance of the acts upon which the
charges were based. Accordingly, we find that the evidence referenced above was not
inadmissible 404(b) evidence, as petitioner argues, and that his attorneys were not ineffective for
failing to raise such argument on direct appeal.

         Further, petitioner takes issue with certain testimony from Kenneth Weigle, who
indicated that, around the time of the crimes at issue, petitioner and another individual “came out
to [his] house in a van . . . [that] was packed full of stuff,” including clothes and several guns.
One of the guns was a .25 caliber automatic pistol, which is the same type of gun that was stolen
during the commission of the crimes with which petitioner was charged and was also the type of
weapon used to kill the victims. According to Mr. Weigle, petitioner showed up with these items
because “[h]e was trying to sell them” so he could “get money together for rent.” Again, this
evidence is directly related to the State’s full presentation of the case, as it spoke directly to
petitioner’s possession of a firearm of the same caliber as the murder weapon. This evidence also
related back to the evidence regarding petitioner’s motivation for the crimes in question as it
further established petitioner’s need to obtain money. Accordingly, we find that this evidence
was not inadmissible 404(b) evidence and that petitioner’s attorneys were not ineffective for
failing to raise such argument on direct appeal.

        Petitioner’s final argument related to his claims of ineffective assistance of counsel
concerns his allegation that his trial attorneys were ineffective for failing to seek suppression of
his statements to law enforcement and all physical evidence obtained from him on the basis that

                                                10
he was subject to an illegal de facto arrest and a violation of Edwards v. Arizona, 451 U.S. 477
(1981). At the outset, it is important to note that the suppression of this evidence was heavily
litigated prior to petitioner’s trial and was subject to extensive analysis by both the trial and
habeas courts. While it is true that counsel sought suppression on grounds other than those
specifically set forth in this appeal, the trial court nonetheless made several findings that are
dispositive of the issue and show that petitioner was not entitled to suppression on these grounds,
and, thus, that his trial attorneys provided him with effective representation.

        In addressing the issue of de facto arrest, we have noted that situations in which a
defendant was “not in custody while the interrogation took place” and, in fact, “was told by the
police that he was free to leave at any time he chose to do so” do not constitute de facto arrests.
State v. Farley, 192 W. Va. 247, 254-55 n.10, 452 S.E.2d 50, 57-58 n.10 (1994). Specifically,
this Court noted that “[t]elling a suspect that he/she is not under arrest and is free to leave usually
is sufficient to prevent a finding of custody and will circumvent a finding of de facto arrest.” Id.
(citing State v. Wyant, 174 W. Va. 567, 328 S.E.2d 174 (1985); State v. Stanley, 168 W. Va. 294,
284 S.E.2d 367 (1981)). Following counsel’s attempts to suppress this evidence prior to trial,
which included the taking of voluminous evidence, the trial court found that petitioner was not
entitled to relief because “he was not ‘in custody,’” “voluntarily went with the officers” to their
department for questioning, and rode with the officers “because he had no other transportation.”
Importantly, the trial court found that petitioner “was free to go at any time.” While petitioner
argues on appeal, as he did below, that “he was not free to leave because he did not have his own
car,” the habeas court specifically found that this did not amount to a seizure. We agree, and
further note that petitioner’s trial attorneys testified at the omnibus hearing that “they believed
that [p]etitioner had voluntarily accompanied the police” to the station. Moreover, one of
petitioner’s attorneys testified that he considered the issue of whether petitioner could seek
suppression on this basis, “but . . . did not believe he would have a viable argument.”
Accordingly, we find that petitioner cannot establish either that he was subject to an illegal arrest
or that counsel was ineffective for failing to seek suppression on this ground.

       Further, petitioner cannot establish any violation of Edwards, which held as follows:

       when an accused has invoked his right to have counsel present during custodial
       interrogation, a valid waiver of that right cannot be established by showing only
       that he responded to further police-initiated custodial interrogation even if he has
       been advised of his rights. We further hold that an accused . . . having expressed
       his desire to deal with the police only through counsel, is not subject to further
       interrogation by the authorities until counsel has been made available to him,
       unless the accused himself initiates further communication, exchanges, or
       conversations with the police.

451 U.S. at 484-85. Specifically, petitioner alleges that, after he invoked his right to counsel,
Captain Dennis Streets “reinitiated conversations” with him in violation of Edwards. We find no
error. According to the record, Captain Streets, who had a personal relationship with petitioner,
“want[ed] to check on” petitioner to “make sure [he] was doing okay.” At trial, Captain Streets
testified that he asked “if [petitioner] needed anything,” such as “to go to the restroom . . . [or] a
drink.” According to Captain Streets, petitioner “made the statement basically can you believe

                                                  11
what they said I did.” At that point, Captain Streets “told [petitioner] that [he] couldn’t talk to
[petitioner] about the investigation because [petitioner] had asked for an attorney.” According to
Captain Streets’s testimony, “at some point [petitioner] request[ed] to speak” with him. At that
point, Captain Streets again advised petitioner of his Miranda6 warnings and obtained a written
waiver from petitioner before taking an additional statement from him.

        Based on a review of the evidence, it is clear that it was petitioner, not Captain Streets,
who initiated the renewed conversations with police concerning his involvement in the crimes at
issue. Petitioner’s assertion that Captain Streets’s limited inquiry into petitioner’s well-being and
whether he needed a drink or access to a restroom is insufficient to establish that law
enforcement initiated the substantive conversation regarding the crimes. As the United States
Supreme Court has noted,

       there are undoubtedly situations where a bare inquiry by either a defendant or by a
       police officer should not be held to “initiate” any conversation or dialogue. There
       are some inquiries, such as a request for a drink of water or a request to use a
       telephone, that are so routine that they cannot be fairly said to represent a desire
       on the part of an accused to open up a more generalized discussion relating
       directly or indirectly to the investigation. Such inquiries or statements, by either
       an accused or a police officer, relating to routine incidents of the custodial
       relationship, will not generally “initiate” a conversation in the sense in which that
       word was used in Edwards.

Oregon v. Bradshaw, 462 U.S. 1039, 1045 (1983). Accordingly, it is clear that petitioner cannot
establish an Edwards violation and, thus, counsel was not ineffective for failing to pursue such a
claim.

        Finally, petitioner argues that the habeas court erred in denying his motion to retain an
expert. The sole authority upon which petitioner relies to support this argument, however, is
inapplicable. According to petitioner, “[e]xpert testimony is admissible in legal malpractice
actions.” Syl. Pt. 6, Sheetz, Inc. v. Bowles Rice McDavid Graff & Love, PLLC, 209 W. Va. 318,
547 S.E.2d 256 (2001). This authority is simply not controlling, as it deals with legal malpractice
actions, not post-conviction habeas corpus proceedings, and speaks only to the admissibility of
such testimony, not a requirement that indigent parties be permitted to retain such experts.
Accordingly, we find no error in the circuit court’s denial of petitioner’s request to obtain an
expert witness.

       For the foregoing reasons, we affirm.

                                                                                          Affirmed.

ISSUED: June 12, 2019


       6
           Miranda v. Arizona, 384 U.S. 436 (1966).



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CONCURRED IN BY:

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




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