                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS

                                                                                 FILED
Brandon Sherrod,                                                            February 22, 2019
Petitioner Below, Petitioner                                                 EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
vs) No. 17-0726 (Kanawha County 13-P-415)

Donnie Ames, Superintendent,
Mt. Olive Correctional Complex,
Respondent Below, Respondent


                               MEMORANDUM DECISION
       Petitioner Brandon Sherrod, pro se, appeals the July 31, 2017, order of the Circuit Court of
Kanawha County denying his petition for a writ of habeas corpus. Respondent Donnie Ames,
Superintendent, Mount Olive Correctional Complex1, by counsel Benjamin F. Yancey, III, filed a
response in support of the circuit court’s order. Petitioner filed a reply.

        The 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.

        This case arises out of the shooting death of James Williams, (“the victim”). The victim
was shot through his kitchen window. Trial testimony showed that petitioner and his co-defendant
were driven to the home where the victim was located, and the two then stood outside the kitchen
window. When the victim entered the kitchen, petitioner and his co-defendant shot through the
window. The co-defendant testified that he was only attempting to scare the victim, but that
petitioner was deliberately aiming at the victim. The driver of the vehicle testified that, after
petitioner and his co-defendant returned, petitioner noted that he had shot the victim and later

       1
        Since the filing of the appeal in this case, the superintendent at Mount Olive Correctional
Complex has changed and the superintendent is now Donnie Ames. The Court has made the
necessary substitution of parties pursuant to Rule 41(c) of the West Virginia Rules of Appellate
Procedure. Additionally, effective July 1, 2018, the positions formerly designated as “wardens”
are now designated “superintendents.” See W.Va. Code § 15A-5-3.

                                                1
laughed about it. The jury returned a verdict finding petitioner guilty of first-degree murder with a
recommendation of mercy. Accordingly, the circuit court sentenced petitioner to a life term of
incarceration with the possibility of parole.

         In State v. Sherrod (“Sherrod I”), No. 11-1121, 2012 WL 5857302, at *l-2 (W.Va.
November 19, 2012) (memorandum decision), petitioner appealed from his conviction, alleging
that insufficient evidence existed to establish the element of premeditation to commit murder and
that the circuit court erred in refusing to grant a mistrial following the improper testimony of a
witness.2 This Court rejected the assignments of error and affirmed petitioner’s conviction. Id. In
rejecting petitioner’s insufficiency of the evidence argument, the Court determined that a rational
trier of fact could have reasonably found that (1) petitioner’s friend put a “hit” on the victim; (2)
petitioner brought a gun to the scene; (3) petitioner later noted that he had shot the victim and
laughed about it; and, therefore, (4) petitioner planned the murder. Id.

        In 2013, petitioner filed two petitions for a writ of habeas corpus which the circuit court
dismissed by separate orders entered August 23, 2013, and February 5, 2014. In Sherrod v. Ballard
(“Sherrod II”), Nos. 13-1141 and 14-0232, 2014 WL 4662484, at *4 (W.Va. September 19, 2014)
(memorandum decision), this Court affirmed the dismissal of the first habeas petition, but reversed
the dismissal of the second petition. The Court remanded petitioner’s case to the circuit court for
appointment of counsel and a hearing on his claim of ineffective assistance of counsel. Id.
Accordingly, the circuit court appointed an attorney to represent petitioner, who filed an amended
habeas petition on petitioner’s behalf. At a May 18, 2017, evidentiary hearing, petitioner presented
the testimony of his trial attorney and an expert regarding ineffective assistance of counsel. On
July 31, 2017, the circuit court entered a comprehensive order denying petitioner’s amended
petition.

       Petitioner now appeals the circuit court’s July 31, 2017, order denying habeas relief. We
apply the following standard of review in habeas appeals:

               “In reviewing challenges to the findings and conclusions of the circuit court
       in a habeas corpus action, we apply a three-prong standard of review. We review
       the final order and the ultimate disposition under an abuse of discretion standard;
       the underlying factual findings under a clearly erroneous standard; and questions of
       law are subject to a de novo review.” Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417,
       633 S.E.2d 771 (2006).

Syl. Pt. 1, of Anstey v. Ballard, 237 W.Va. 411, 787 S.E.2d 864 (2016).



       2
        The witness was asked whether petitioner looked the same as he had at the time of the
shooting and answered that “petitioner actually looked healthier [since] his incarceration.” Id. at
*2.


                                                 2
        On appeal, petitioner asks this Court to address two claims “that were not raised in the
circuit court.”3 Respondent counters that we should decline to address those claims. We agree
with respondent. Though petitioner argues that this Court has original jurisdiction to hear habeas
claims, we note that this case arises under our appellate jurisdiction. Therefore, we decline to
address issues not raised below because “[t]his Court will not pass on a non[-]jurisdictional
question which has not been decided by the trial court in the first instance.” Watts v. Ballard, 238
W.Va. 730, 735 n.7, 798 S.E.2d 856, 861 n.7 (2017) (quoting Syl. Pt. 2, Sands v. Sec. Trust Co.,
143 W.Va. 522, 102 S.E.2d 733 (1958)).

        Having reviewed the July 31, 2017, “Findings of Fact, Conclusions of Law[,] and Final
Order,” we hereby adopt and incorporate the circuit court’s well-reasoned findings and
conclusions as to all of the remaining assignments of error raised in this appeal. Therefore, we
conclude that the circuit court did not abuse its discretion in denying petitioner’s habeas petition.
The Clerk is directed to attach a copy of the circuit court’s order to this memorandum decision.

       For the foregoing reasons, we affirm.

                                                                                            Affirmed.

ISSUED: February 22, 2019

CONCURRED IN BY:

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




       3
         The two claims not presented to the circuit court were that petitioner’s trial attorney failed
to object to testimony that petitioner was overheard threatening to kill a witness and that counsel
failed to raise the issue on appeal in Sherrod I.

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                                IN THE CIRCUIT COURT OF KANAWHA COUNTY,                   WEST·VIRGiNA' ~

              STATE OF -wEST VIRGINIA, ex reI.
              BRANDON SHERROD,

                          Petitioner,

             v.                                                         Judge Charles E. King
                                                                        Civil Action 13-P-415

             DAVID BALLARD, WARDEN,
             MOUNT OLIVE CORRECTIONAL CO:MPLEX,

                          Respondent.

                                FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL ORDER

                          Pending before this Court is the petitioner's amended petition for writ of habeas corpus.

             Following a review of the entire underlying criminal file in Felony Indictment No. 10-F-185; a

             review of the amended petition        ~d   supporting memorandum of law, and the response; a review

             of the testimony and argument from the omnibus evidentiary hearing, as well as an examjnation

             of the pertinent law, this Court makes the following findings of fact, conclusions of law and final

             order.

                                                                   I.

                                                        FINDINGS OF FACT

                          1. The petitioner, Brandon Sherrod, also known as "Young Gunna," was charged with:first

             degree murder. He, and Michael Serrano, also known as "White Mike" were accused of murdering

             James Williams, also known as "Baby Goon" by shooting him with a handgun on November 3,

             2009. (Trial Transcript at 24,45.)

                         2. Rosemary Lacy, the victim's girlfriend, testified that she had a child with the victim and

             that on November 3, 2009, she had accompanied the victim to court. The victim was involved in



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 a case in which he allegedly placed beer in a baby's bottle, and was charged with an offense. The

 girlfriend contended it was ajoke. (Id at 107-108.) She described for the jury the victim' s friends

including Kevin Blount, ''Fifty''; Jose :M1randez, ''Homicide''; Ivan Marindez, "Gatti"; and

Brandon Sherrod. (Id at 109.)

        3. The baby ip.volved in the 'Joke" was the child of Ebony WjJ]jarns and Jose Mirandez,

aka Homicide. (Id at 110.) James Williams, the victim, and Ebony were cousins. (Id) According

to Ms. Lacy, Ebony \¥i]Jjams became agitated during the preliminary hearing and made

threatening remarks. Those remarks included "'It's not fair" and "'I'm gomg to have somebody, you

know, do something to him, kill him." Homicide 'wasn't around; Ms. Lacy believed he was

incarcerated. (fd. at 111.)

        4. After the hearing, Lacy and the victim returned home. They ordered Chinese food and

had dinner. The victim went mto the kitchen and Ms. Lacy heard gunshots. She grabbed her son,

who was in the kitchen with his father, and took the child upstairs. Ms. Lacy yelled back

downstairs, the victim did not respond. When she got back to the kitchen, she saw blood on the

back of his shirt. The victim was lying down, she flipped him over and after pulling up his shirt,

saw "the hole" (Id at 112.) Ms. Lacy tried to get the victim to the hospital, but the victim died.

(Id at 113.)

        5. Patrolman Kapeluck was among the first to arrive at the crime scene. The victim was

lying partially in and partially out of a car; he did not appear to be bFeatbing. An ambulance came

and took him to the hospital. (Id. at 121-122.) It appeared as if the victim had been shot m the

kitchen. The window was damaged by what appeared to be bullet holes. The kitchen light was

on. (Id at 122-123.)




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                 6. Michelle Bailey was dating Kevin Blount, ''Fifty'' at the time of the murder. (Id. at 136.)
    /




/        She knew Serrano, the petitioner, Homicide, and Gotti. as friends of Blount. She was told that while

         the victim was babysitting Ebony and Homicide's baby, the baby drank: some beer from his bottle

         and had to go to the hospital. (Id at 137.) Homicide' s group was '<Upset" about that. (Jd at 138.)

                 7. She received a call from Blount asking if she knew if anyone had a vehicle he could

        borrow. (Id at 149.) Ms. Bailey picked up Blount and "Tech" and took them to a friend's house.

        Tech and Blount borrowed the car and left. Ms. Bailey was driving            iZ   Malibu that belonged to a

        Chuck Harless. (Id. at 150.)

                8. After Tech and Blount left in the other car, Ms. Bailey went to the west side McDonald's

        in the Malibu. While there, she received a call in which Blount told her the borrowed car was

        overheating. (Id. at 155.) Blount decided to return that car, and asked Ms. Bailey to give him, the

        petitioner, and %ite:Mike a ride to go ''fight Jay." (Ia.) The witness understood that they wanted

        to fight Jay because he had put beer in the baby's bottle.   (Ia. at 256.)

                9'. Ms. Bailey drove the petitioner and White Mike to a church. They directed her to wait

        there. They left wallcing, and came back in five or ten minutes. The petitioner said "1 think 1 hit

        him". (Ia. at 156.) Ms. Bail-ey questiop.ed that because in a fight "._ .you either know you hit him

        or-you hit him or you didn't hit him." (Id at 156.) She kept asking questions, but got no answers.

        (Id) White Mike and the petitioner sat in the back seat of the car. CId at 157.)

                10. When she heard the victim had been killed, Ms. Bailey was mthe.apartment with Fifty,

        White Mike, the petitioner and Tech. She heard about it from the news, and she looked at them

        and said " ...like, how did you kill your friend?" The petitioner laughed and smiled in response

        to that question. CId. at 160-161.) The petition~r told Ms. Bailey that the victim was eating cookies,




                                                            3
 and walked into the kitchen. When the victim looked up, the petitioner shot him. The petitioner

stated to Ms. Bailey that he shot the victim, and laughed about it (lei at 161-162.)

        11. After the murder, the petitioner called Homicide and Ebony, and then took 'White Mike

to New York. Cld at 167.) The petitioner twice threatened to kill Ms. Bailey if she told the police

about his involvement in the murder. (Id. at 184.)

        12. 1\tfichael Serrano testified that he knew Kevin Blount "Fifty", Christopher Martinez

"Tech" and Jose Mirandez "Homicide" his entire life from growing up in New York..f}d at 190-

191.) On or about October 26, he took the bus from New York to Charleston with "Chris." CId.)

He met Ms. Bailey and the petitioner. CId. at 193.) He was at the petitioner's house on November

3,2009. He had ridden to the house in the:first borrowed car, which kept overheating. Cld at 194.)

        13. The petitioner asked Serrano if he would go with him (the petitioner) to "shoot up

somebody's apartment" (Id. at 196.) Serrano was armed with a 9 millimeter. The petitioner had

a 40 caliber gun. (ld at 196-197.) Serrano and the petitioner got to the apartment by riding with

Ms. Bailey. She    parke~    and Serrano and the petitioner walked into an alleyway. (Id. at 198.)

        14. Serrano did not know where he was head~ the petitioner knew where he was going.

(Id. at 200.) Serrano followed the petitioner into an alley. The petitioner had his gun straight up

towards the window, against the pane. The petitioner then started firing into the house. The

petitioner seemed to have a target in the house. (Id at 201.) The petitioner:fired 4 or 5 shots, and

Serrano :fired his gun once. (Id. at 202.) After the shooting, the two walked back to where Bailey

was parked.. (Id. at 203.)

        15. When they got to the car, they got in and the petitioner said that he thought he shot

someone because he saw the man fall. (Id at 204.) When they got to Ms. Bailey's house, the

petitioner told Fifty and Tech that he shot somebody, and that he thought he killed Baby Goon.



                                                 4
(fd at 205.) Sherrod said more than once that he      <c • • •   shot him., I feel it, I could feel it." (Id. at

206.)

        16: During this time, immediately after the murder, Serrano, the petitioner, Fifty, and Tech

had a conversation with Homicide, who was in jail. (Id) Serrano had listened to the jail phone

call and recognized all the voices on it. CId)

        17. The petitioner bragged he had shot "Baby Goon" and stated that ''1 shot him, I felt it,

I could feel it." (Id at 206-207) The petitioner repeated more than once that he saw ''Baby Goon"

walk back and forth past the window, and started firing. (These statements by the petitioner were

not made in the above-referenced phone call.) The petitioner knew he had killed the victim. (Id a:t

209.) After the information about the murder was broadcast on the news, the petitioner stated he

thought he would have to kill Ms. Bailey. (Id at 210.)

        18. Serrano returned to New York where he was arrested and charged with murder some

weeks later. (Id at 212.) Serrano explained he had pled g-uilty to wanton endangerment and

included in his plea was an agreement to testify. (Id. at 213.)

        19. The witness identified each of the voices on the jail phone call. On the call, the

petitioner told Homicide that "Some shit is going down, going to write you a letter." CId at 216.)

On the tape, the petitioner spoke only one time, which was about writing the letter. There were no

direct, or even indirect admissions or conversations about the murder by any of the participants,

only a vague allusion to watching the news and that Baby Goon was the word of the day. (fd at

221.) After getting off the phone, the petitioner stated ~'1 told you I killed him. I knew it. The

petitioner said that he saw the victim walk past the window, place cookies on a counter, and- that

he waited for the victim to come back past the window. The petitioner then began firing. (Id at

209).



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                                          20.         Cross-examination further clarified that Serrano, and the petitioner rode in the back

           ofthe car Bailey was driving, with Serrano seated on the driver's side. (Id at 227.) Serrano insisted

           the only conversation was about shooting the house, not shooting anyone, and the only person he

           talked to about it was the petitioner. (Id at 229.) On redirect, the witness was asked what he told

           the police in New York and stated that the petitioner took it in his own mind to shoot someone.

           Additionally, he told the police that he, Serrano, had fired once, and that the shots had gone through.

           the window. (Id at 230.)

                                          21.         Officer Taylor indicated that it would be consistent with the physical findings

           (including recovered bullets) that one shooter fired five times, and another fired an additional

           single shot. (Id at 246.) The trajectory of the bullets was level. The shots were not up in the air

           but aimed at the victim. (Id at 249, 258.)

                                          22. The gunshot residue expert had _b een performing such analysis since 2002 and had

           done perhaps thousands of such tests. (Id at 267.) The samples from the Malibu came from the

           rear driver side seat, the rearview mirror and the driver's door. (Id at 264.) The expert identified

           residue from those three locations in the MaliblL (Id at 270.)

                                          23. Dr. Mahmoud performed the autopsy. The victim died from a single gunshot wound

           to the chest which entered and exited from the left side of his chest. (Id at 276.) The shot

           penetrated the victim's heart and left lung. (Id at 281.)

                                      24. The defense closing challenged ihe credibility of the witnesses and assertea that the

           only thing of which the jury could be sure that \Vhite Mike was in the alley. (Id at 351.) Counsel

           also asserted. that White Mike may have pulled the trigger because he had a gun. with a laser sight,

           or someone else could have pulled the trigger, but it wasn't the petitioner. (Id. at 352.) Counsel

           pointed out that whoever drove the vehicle had to fire a gun because residue was found on the



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    mirror and driver's door, and that no testimony put the petitioner in the front seat of the car. (fd at

     353.)

              25. The petitioner was found guilty of murder in the first degree. The jury recommended

    mercy. (Id. at 375.) The petitioner was sentenced in accord with that verdict. (Sentencing

    Transcript at 6.) The petitioner agreed to have trial counsel reappointed as appellate counsel,

    stating that he was satisfied with the representation he had received. (Id. at 10.)

              26. The petitioner filed a direct appeal. By memorandum decision filed November 19,

    2012, in Case No. 11-1121, the West Virginia Supreme Court affirmed his conviction. The issues

    on appeal were the sufficiency of the evidence to convict the petitioner and the trial court's

    erroneous refusal to grant a mistrial when a witness vohmteered that the petitioner had been in j ail.

              27. The petitioner subsequently filed two pro se petitions for writ of habeas corpus. By

    memorandum decision entered September 19, 2.014, in cases 13-1141 and 14-0232, the West

    Virginia Supreme Court affirmed the summary dismissal of the petitioner's then filed pro se

    petitions, save for the claim of ineffective assistance of counseL Specifically, with regard to the

    cla.ims that the admission of the phone call constituted error of constitutional dimension the court

    noted that "Evidentiary errors do not normally rise to the constitutional level." Nothing in the

    petitioner's allegations indicated that the evidentiary rulings fell into the "exceptional" case where

    an evidentiary ruling would constitute error of constitutional dimension. Memorandum decision at

    *3 .

             28. The petitioner, with the assistance of counsel, has filed an amended petition, and a

    supplerp.ental petition with a supporting memorandum oflaw.

             29. The petitioner asserted several claims in his petitions, although the petitioner chose

/   not to proffer evidence on all of those claims. Those claims -will be specifically addressed in the



                                                                 7
conclusions of law section, but this Court will observe, generally, that the petitioner bears the

burden of proof as to all claims and that any claim upon which evidence was not presented will be

deemed abandoned and unproven.

          30. The petitioner asserts that the failure to give a "Caudill" instruction was error of

constitutional dimension. (State a/West Virginia v. Caudill, 170 W.Va 74, 289 S.E.2d 748, 1982)

The failure to give such instruction, absent a request, is not reversible error. Moreover, failure to

give such instruction was an issue that could have been, but was not, raised in the direct appeal.

Therefore, the issue is waived. It is not constitutionally required that a Caudill instruction be given,

even ifrequested. Failure to give such instruction is, at best, ordinary trial error, not cognizable in

habeas.     The petitioner acknowledged at the omnibus evidentiary hearing that there was no

independent duty on the Court to give such an instruction absent request, and thai no instruction

had been requested. Therefore, this portion of the "Caudill" claim is deemed waivecL abandoned

and unproven.

          31. The petitioner also asserts that trial counsel was ineffective for not requesting such

instruction.

          32. The petitioner asserts that the state withheld exculpatory evidence, a statement given

by the co-defendant to the New York police department The "statemenf' ofllie co-defendant was

not admitted into evidence. If, in fact, the co-defendant gave the police the same statement that he

testified to at trial, the statement is inculpatory of, and not exculpatory of, the petitioner. F-ailme

of the state to provide a copy of that statement would not be a discovery violation of constitutional

dimension because the state is required to provide the defendant with information that is material

and exculpatory. It was not ineffective assistance of counsel to fail to obtain such statement for

impeacbment purposes as there is nothing to indicate that there was impeachment material in that



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                  statement. The prosecution's use of such statement would not violate Rule 404(b) because there

                  is no evidence that there was introduction of prior bad acts through such statement. No evidence

                  was proffered during the omnibus hearing as to whether the state had such a statement, whether it

                  was provided to trial counsel, and whether or not it was exculpatory. Therefore, this claim is

                  deemed abandoned and waived. However, the Court will note that a very brief statement from the

                  co-defendant to the New York police appears in the underlying criminal file and that it was

                  inculpatory of the petitioner and consistent with the co-defendant's trial testimony. Moreover,

                  there is nothing to indicate that the state did not provide such statement in discovery.

                                 33. The petitioner asserts that trial counsel was ineffective in dealing with the issue of

                  gunshot residue. The testimony was that gunshot residue was found in the front seat of the vehicle

                 that the petitioner was in before and after he murdered the victim. The expert testimony regarding

                 the residue did not tie the residue to the -petitioner, but to the car. Petitioner cannot show· that

                 another expert would have disagreed with the state's expert. Moreover, nothing in the expert's

                 testimony tied the residue directly to the petitioner. Choosing not to- cross-examine a witness from

                 whom testimony has been elicited which is not particularly damning is a reasonable strategic

                 decision, not ineffective assistance. Additionally, again, it cannot be demonstrated that the result

                 of the trial would have differed had there been more cross-examination.

                                 34. The telephone call was not testimonial in nature--that is, it ·was not procured by any

                 state agency for use in lieu of trial testimony. The petitioner was a participant in the telephone

                 conversation. Anyone familiar with the voices could identify the participants and authenticate the

                 call. The petitioner is not claiming the call was not made nor claiming the petitioner did not

                 participate in the calL Further authentication than what was proffered at mal was not necessary.

                 As to any portions in Spanish, the petitioner fails to articulate any prejudice from the failure to



                                                                                                   9
have those portions translated. Therefore, the petitioner cannot demonstrate that a reasonably

objective lawyer would have required any more authentication before the phone calls were played

for the jmy, and cannot demonstrate that but for the failure of trial counsel to challenge

authentication or require translation, the result of the trial would have differed.. The Court will

also note that the testimony of petitioner's legal expert, who generally eschewed any opinion as to

the "prejudice" prong of the Strickland/Miller standard opined that the petitioner had not

demonstrated prejudice resulting from the phone call, and its lack of translation, because there is

only speculation as to what the Spanish portions of the call contained and no evidence any juror

spoke Spanish.

        35. An omnibus evidentiary hearing was held. At the hearing, Ed Bullm~ trial counsel

and Martin Sheeh~ denoted an expert witness on ineffective assistance of counsel testified.

        36. At the evidentiary hearing the petitioner acknowledged that he had filled -out a Lash

list and that he understood all issues not raised were waived for the purpose of seeking relief in the

future; (Omnibus Hearing Transcript, May 18,2017 at 5.)

        37. Counsel proffered that the issues being litigated were the failure of the Court to give a

Caudill instruction, ineffective assistance of counsel regarding the gunshot residue testing and

testimony, ineffective assistance of counsel regarding the jail phone call as regards identification,

verification and translation, ineffective assistance of counsel for failing to request the Caudill

instruction, ineffective assistance of appellate counsel for failing to raise the Caudill instruction

issue on direct appeal, and cumulative error. (ld. at 5-8.)

        38. The petitioner acknowledged that he understood that by raising the issue of ineffective

assistance of counsel he was waiving the privilege of confidential communications. (ld. at 9.)




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         39. The petitioner called Martin. Sheehan as an expert witness. Counsel for the respondent

 noted that it accepted Mr. Sheehan's qualifications as an "expert" although noting the oddity of an

 expert witness to assist the Court, as trier of fact, when the Court had been a practicing lawyer

 and judge longer than the expert. (Id. at 10.)

         40. Mr. She~han stated he had not reviewed the transcript of the criminal trial in this matter.

(Id. at 12.)

         41. Mi". Sheehan stated that he believed he could testify only as the standard of care

~quired   of a practitioner and could not opine as to any prejudice resulting from a deviation from

the standard of care. CId. at 15.)

        42. Mr. Sheehan believed that it was a violation of that standard of care for trial counsel

to fail to request the Caudill instruction at petitioner's trial. (Id. at 16.)

        43. Although he did not read the trial transcript, Mr. Sheehan opmed that trial counsel had

failed to make clear to the jury the temporary nature of gunshot residue. (Id. at 17.) As a factual

matter, and legal conclusio~ this Court disregards that opinion because Mr. Sheehan did not read

the trial transcript and does not know what evidence, cross-examjna:ti.on and argument thejury

actually heard in this matter regarding gunshot residue.

        44. Although the expert believed the failure to have the phone call translated "problematic"

he opined that the translation issue did not prejudice the petitioner. The petitioner could not prove

that translation, or the lack thereof had a substantive effect on the outcome because the contents

ofllie conversation are still unknown. "And so I somewhat reluctantly include in my report that I

don't think the defendant can show prejudice in that regard at all." (Id. at 19.)

        45. The expert believed that it was a "problem" that trial counsel had not requested the

Caudill instruction. CId. at 20.)



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        46. The expert did not render an opinion about whether appellate counsel was ineffective

for failing to raise the Caudill issue on appeal because generally one could not raise on appeal an

issue that was not perfected below. (Id. at 21.)

        47. Mr. Sheehan did not express an opinion as to whether or not the issues amounted to

prejudicial cumulative error. (Id.)

        48. Counsel fDr petitioner acknowledged that the issues opined about and litigated were

the ineffective assistance of trial counsel in failing to request a Caudill instruction and ineffective

assistance in handling the gunshot residue. The witness did not state that the handling of the phone

call amounted to ineffective assistance of counsel and habeas counsel acknowledged that as to the

phone call ineffective assistance on that issue was not proven. Further, the expert did not opme

that appellate counsel was ineffective. (Id. at 22-23.)

        49. :MI. Sheehan acknowledged that the burden of proof in this matter rested on the

petitioner. Further, the petitioner bore the burden of demonstrating that counsel by an act or

omission did or did not do something that was objectively deficient performance. Also, the

petitioner had to prove that the act or omission affected the outcome of the proceeding. (IeL at 24.)

        50. :Mr. Sheehan agreed that the respondent prevailed by demonstrating either that it was

not objectively deficient performance or, that, no matter how defective the perfolIDance it did not

affect the result of the proceeding. (Id. at 24-25.)

        51. :Mr. Sheehan acknowledged that strategic decisions with very, very limited exception

could not provide the basis for ineffective aSsistance of counsel. (Id. at 26.)

       52. The expert reiterated that as to the lack of translation of the phone call the claim was

"significantly" weak as to prejudice. (Id.)




                                                                        12
                                                       - - --- - -----_._.

        53. Mr. Sheehan acknowledged that he did not know what the jury actually heard regarding

gunshot residue. (Id. at 27.)

        54. 1:v.fr. Sheehan had no reason to doubt the accUracy of the gunshot residue testing or

testimony. CId. at 27-28.)

        55. The expert acknowledged that the primary locus of the gunshot residue was associated

with the driver of the vehicle. He also acknowledged that the fact that the jury heard that Michelle

Bailey drove the car, the co-defendant was in the rear seat behind the driver and the petitioner was

on the passenger rear seat, significantly limited any potential prejudicial impact on petitioner's

case from the gunshot residue evidence. CId. at 29.)

        56. Mr. Sheehan attempted to opine that the defense needed an expert simply because the

state had one (id. at 30) but acknowledged that he again, had no idea on what emphasis was or was

not placed. on the gunshot residue testimony. CId.)

        57. Mr. Sheehan stated he had not read the memorandum decision from the West Virginia

Supreme Court of Appeals affirming the petitioner's conviction. (Id. at 31.)

        58. :Mr. Sheehan opined that it was his reading of Caudill that the obligation was on

counsel to ask for the instruction and there was no duty on the judge to give the instruction sv..a

sponte. (Id. at 31-32.)

       59. Mr. Sheehan agreed that, in a general sense, there could be sound strategic reasons for

not requesting a limiting instruction. (Id. at 32.) However, he seemed to suggest that in the area

of a limiting instruction regarding a co-defendant's testimony that there never could be a sound

strategic reason for not requesting a limiting instruction. (Id.. at 34.) Counsel for the respondent

noted-and this Court agrees-that ~e West Virginia Supreme Court in its Flack decision stated




                                                13
                                                              . ....   -   -- .. --- ...   ---- - ..-. --. -.   --   -.-----



that " ... defendants may actually be better off waiving the limiting instruction than highlighting

something that hurts." (ld.)

        60. Mr. Sheehan. reiterated that he believed the failure to request the limiting instruction

and the handling of the gunshot residue testimony were deviations from the standard of care, but

that he would not express an opinion as to the prejudicial nature of that deviation. Mr. Sheehan

testified that the petitioner was unable to demonstrate that there was any prejudice from the failure

to have the phone call translated. He further expressed no opinion as to the prejudicial nature of

any cumulative error. (ld. at 36.)

        61. . On re-direct, J\.1r. Sheehan clarified that he would not necessarily have called an

independent expert regarding the gunshot residue but would have attempted to use the state's

expert to ensure that the jury understood the limitations of the gunshot residue evidence. (Id. at

37.)

        62. Mr. Sheehan acknowledged that the quotations contained in the pleadings regarding-

testimony at trial were not an adequate substitute for the trial transcript itself (ld. at 38.)

        63. He also agreed that his assumptions about what the jury heard about the gunshot

residue may be incorrect and that he did not know what the jury actually heard about ~e guIishot

residue. (ld. at 39.)

        64. Trial counsel testified. He stated that he had not reviewed the trial transcript but he

remembered the case, what he did and didn't do, and his theory of the case. CId. at 41.)

        65. As to the lack ofa Caudill instruction, trial counsel said it was an oversight on his part

not to request that instruction. (Id. a142)

        66. As to the gunshot residue testimony, counsel testified that his handling of the testimony

was a strategic decision because the gunshot residue evidence was consistent with the defense



                                                  14
                           - --   --   -   - _. --- - . .-. -   -- --   .. _-- --   -_ . ._---- -_.- -   ---.- - - ---- .---   -- -   -----   .   -- . -   . ..

 theory of the case which was that the petitioner was being blamed for the actions of the guys from

New York. (Id..)

         67. The theory was that not only did the New York guys get together to kill the victim but

 also to place the blame on the man from West Virginia (Id. at 43.)

         68. The testimony of the state's witness regarding the gunshot residue was consistent with

the defense theory and the defense argument. (Id. at 43.)

        69. The defense did not seek its independent expert because he could US~ the state's expert

to support the defense case. Trial counsel believed the gunshot residue testimony in totality

supported the defense position. (Id. at 44.)

        70. Trial counsel believed it was better to rely on the state's expert and that he would have

gained nothing by hiring another expert. (Id. at 44-46.)

        71. Trial counsel stated that he did not want to ask questions about why there was no

gunshot residue·where .his client was seated because his experience with such testimony in other

cases was that the expert would be able to explain away the absence of residue and it was better to

leave it alone. (Id. at 46.)

        72. As to the telephone call, trial counsel did not remember anything in the conversation

that was helpful or hurtful and that it supported his theory of the case ofNew York guys doing the

killing and blaming it on the West Virginia guy. (Id.. at 47.)

        73.   Although counsel believed he should have requested a limiting instruction, he

acknowledged that the driver of the car provided testimony that corroborated the co-defendant and

that was damaging, particularly regarding the admission the petitioner made about having killed

the victim. (Id. at 50.)




                                                           15
        74. Trial counsel did not know 'Whether the failure to have the limiting instruction affected

the jury's decision at all. (Id. at 51.) At closing, he believed that he observed members of the jury

nodding in agreement with his argument and believed that at least some of the jurors were leaning

his way: (ld.)

        75. Mr. Bullman believed that he cross-examined the co-defendant about the sweetheart

deal he got, and that he had to tell the prosecution what they wanted to hear or he wouldn't get the

benefit of that deaL (Id. at 52.)

                                                 II.

                                    CONCLUSIONS OF LAW

        1. Jurisdiction and venue are properly in Kanawha County pursuant to Rule 3 of the Post-

Conviction Rules regarding proceedings in habeas corpus.

        2. "Habeas corpus proceedings are civil proceedings. The post-conviction habeas corpus

procedure provided for by Chapter 85, Acts of the Legislature, Regular Session, 1967, is expressly

stated therein to be 'civil in character and shall under no circumstances be regarded as criminal

proceedings or a criminal case.'" State ex rel. Harrison v. Coiner, 154 W. Va. 467, 476, 176

S.E.2d677, 682 (1970). The burden is on the petitioner to prove his clalins ,by a preponderance of

the evidence.

       3. The petitioner proffered that one of the six grounds that he was pursuing was the failure

of the Court to give a Caudill instruction regarding the plea agreement of the co-defendant The

Court finds that there was no independent duty on its part to offer the limiting instruction without

request even prior to the modification of Flack. The petitioner's expert also opined there   was no
such duty. Therefore, the petitioner has failed in bis burden of proof regarding this assertion of

error. Moreover, in general, the giving or omitting of any instruction is reviewed as to the abuse



                                                16
of discretion standard, and the failure to give or omit any instruction, generally does not rise to the

level of a constitutional violation.. The defense requested no such instruction; the court had no duty

to give such instruction. 'This contention affords the petitioner no relief.

          4 . ..As noted above, the petitioner proffered several issues in his pleadings and chose not to

offer evidence as to some of them. The court finds that the petitioner presented no evidence as to

whether the state withheld a statement from the co-defendant to the New York police, whether the

introduction of that statement violated Rule 404(b) and whether counsel was ineffective for not

having the statement. No evidence was taken at all regarding that statement. The petitioner has

failed in his burden of proof to demonstrate that his counsel was ineffective in dealing with the

statement or that the state committed a constitutional violation by withholding exculpatory

information. As the petitioner has failed to prove this contention, it affords him no relief.

          5. Although the issue of whether counsel was ineffective for not having the phone call

translated was litigated, the petitioner presented no evidence on whether or not it was ineffective

assistance to stipulate to the authenticity of the phone calls and presented no evidence to suggest

thai the phone call was testimonial in nature. As there is no evidence of record to support the claim

that counsel should not have stipulated to the phone call and no evidence of record that suggests

the phone call was testimonial in nature, the Court deems that the petitioner has abandoned those

claims. The claim that counsel should not have stipulated to authenticity and that the calls were

testimonial in nature are not proven, not supported by the evidence and afford the petitioner 110

relief.

          6. The Court will now address those claims upon which evidence was taken. Those claims

deal in large measure with ineffective assistance of counsel. There are several general principles

regarding habeas proceedings in general and ineffective assistance of counsel in particular.



                                                   17
-   -   - - - _.- ._.. -   ._- .-   - - - - _.------- - ---" - - ' - - -   -   - - - - - - - -   -   _ _ _ _   -   _ _ _ _ _ ._._ _ _   0 _ _ _ -




                    7. West Virginia Code       §53~A-l   provides for post-conviction habeas relief for "[a]ny

            person convicted of a crime and incarcerated under sentence of imprisonment therefor who

            contends that there was such a denial or infringement of his rights as to render the conviction or

            sentence void under the Constitution of the United States or the Constitution of this State or both.

              "
                    8. 'The contentions and the grounds in fact or law must "have not been previously and

            finally adjudicated or waived in the proceedings which resulted in the conviction and sentence, or

            in a proceeding or proceedings in a prior petition or petitions under the provisions of this article,

            or in any other proceeding or proceedings which the petitioner has instituted to secure relief from

            such conviction or sentence." West Virginia Code §53-4A-1.

                    9. West Virginia's post-conviction habeas corpus statute "clearly contemplates that [aJ

            person who has been convicted of a crime is ordinarily entitled, as a matter of right, to only one

            post-conviction habeas corpus proceeding." Syl. Pt. 1, Markley v. Coleman, 215 W.Va. 729, 601

            S.E. 2d 49 (2004) (citations omitted). Such proceeding gives the Petitioner an opportunity to «raise

            any collateral issues which have not previously been fully and fairly litigated.." Coleman at 732,

            601 S.E.2d at 52. The initial habeas corpus hearing is res judicata as to all matters raised and to

            ail matters known or wbieh, with reasonable diligence, could have been known. Syl. Pt 2,

            Coleman, supra.

                   10. The habeas corpus statute "contemplates the exercise of discretion by the court."

           Perdue v. Coiner, 156 W. Va. 467, 194 S.E.2d 657 (1973).

                   11. The circuit court denying or granting relief in a habeas corpus proceeding must make

           specific findings of fact and conclusions of law relating to each contention raised by the petitioner.

           State ex rel. Watson v. Hill, 200 W. Va. 201, 488 S.E.2d 476 (1997).



                                                             18
·
----_._----------- ---------. - ------- - -- - - - - --                                      --------~.---    -- .


             12. "A habeas corpus proceeding is not a substitute for a writ of error in that ordinary trial

      error not involving constitutional violations will not be reviewed."       Sy1. Pt 4, Sta1e ex reI.

      McMannisv. Mohn, 163 W. Va 129,254 S.E.2d 805 (1979). Moreover, "[tJhe sale issue presented

      in a habeas corpus proceeding by a prisoner is whether he is restrained of his liberty by due process

      oflaw." Sy1. Pt 1, State ex reI. Tune -v. Thompson 151 W. Va. 282, 151 S.E.2d 732 (1966).

             13. A circuit court having jurisdiction over habeas corpus proceedings has broad discretion

      in dealing -with habeas corpus allegations. Markley, supra at 733, 601 S.E.2d at 53. It may deny

     the petition without a hearing and -without appointing counsel if the petition, exhibits, affidavits

     and other documentary evidence show to the circuit court's satisfaction that the Petitioner is not

     entitled to relief. Sy1. Pt 3, Markley, supra. A circuit court may also:find that the habeas corpus

     allegation has been previously waived or adjudicated and if so, the court "shall by order entered

     of record refuse to grant a writ and such refusal shall constitute a final judgment" ]yfarkley, supra,

     at 733,601 S.E. 2d at 53 (2004) (citations omitted). (citing W.Va. Code section 53-4A-3(a)).

             14. When determining whether to grant or deny relief, a circuit court is statutorily required

     to make specific findings of fact and conclusions of law relating to each contention advanced by

     the petitioner and to state the grounds upon which each matter was dete:rmm.ed. Sy1. Pt. 4, Markley,

     supra. See also W.Va Code §53-4A-3(a).

             15. The petitioner has laiowmgly, voluntarily, and understandingly raised certain issues as

     enumerated above, and knowingly, voluntarily, and understandingly waived all other issues.

             16. Claims of ineffective assistance begin and in large measure end with the standards set

     forth in Strickland/Miller_


             17. West Virginia evaluates an ineffective assistance of counsel claim under the two-prong

     standard set forth by the Supreme Court of the United States in Strickland v. Washington. SyI. Pt


                                                      19
--.--- --- ----.----   -----_._---_.--- _.- - _. - -.- - ----- - -              . ---   --- - -- ----------.--- ---_.----- _.-

            5, State v. Miller, 194 W. Va. 3, 459 S.E. 2d 114 (1995) (citing Strickland v. Washington, 466 U.S.

            668 (1984)). To succeed on such a claim, a petitioner must establish that: 1) his trial counsel's

            "performance was deficient under an objective standard of reasonableness; and 2) there is a

            reasonable probability tb.a:t, but for counsel's unprofessional errors, the result would have been

            different." (Id) "Failure to meet the burden of proof imposed by either part of the Strickland/Miller

            test is fatal to a habeas petitioner1s claim." State ex rez' Vernatter v. Warden,        w:   Virginia

            Penitentiary, 207 W. Va. 11,528 S.E. 2d 207 (1999).

                       18. The Strickland standard is not easily satisfied. See Miller, 194 W. Va. at 16 ("[1]he

            cases in which a defendant may prev-ruJ. on the ground of ineffective assistance of counsel are few

            and far between."), State ex rez' Daniel v. Legursky, 195 W. Va. 314, 319, 465 S.B. 2d 416,421

           (1995)(ineffective assistance claims are "rarely" granted and only when a claim has "substantial

           merif'), see also, Whiting v. Burt, 395 F.3d 602, 617 (6th Cir. 2005)(''Petitioners 'claiming

           ineffective assistance of counsel under Strickland have a heavy burden of proof. ").


                       19. In Miller, the court outlined the challenge faced by a petitioner claiming ineffective

           assistance, noting that judicial review of a defense counsel's performance "must be highly

           deferential" and explaining that there is a strong presumption that "counsel's perfonnance was

           reasonable and adequate." Miller, 194 W.Va. at 16,459 S.E.2d at 127. Moreover, the Miller court

           held that there is a "wide range" of perlormance which qualifies as constitutionally-adequate

           assis'"t.8D.ce of counsel, stating:

                  A defendant seeking to rebut tb.[e] strong presumption of effectiveness bears a difficult
                  burden because constitutionally acceptable performance is not defined narrowly and
                  encompasses a 'wide range.' The 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



                                                              20
~ ----.- - --~--------- - ------------   ---- .-   __
                                                   ..   -- -_._------- - - --------. ---------             - - - - - - - - ------


          Jd, see also Vematter, 207 W. Va. at 17, 528 S.E.2d at 213 ("[I]here is a 'strong presumption that

          counsel's conduct fails within the wide range of reasonable professional assistance ... ''') (quoting

          Strickland, 466 U.S. at 689).

                   20.   A petitioner claiming ineffective assistance must identify the specific "acts or

          omissions" of his counsel believed to be "outside the broad range of professionally competent

          assistance." See Miller, 194 W. Va at 17, 459 S.E.2d at 128, State ex rel. Myers v. Painter, 213

          W. Va 32,35,576 S.E.2d 277, 280 (2002)("The first prong of [the Stricklandj test re~es that a

          petitioner identify the acts or omissions of counsel that are alleged not to have been the result of

          reasonable professional judgment)(internal quotation marks omitted).

                  21. The reviewing cotrrt is then tasked with determining, "in light of all the circumstances"

          but without "engaging in hindsight," if that conduct was so objectively unreasonable as to be

          constitutionally inadequate. Miller, 194 W. Va at 17, 459 S.E.2d at 128. "As we explained in

          Miller, 'with [the] luxury of time and the opportunity to focus resources on specific facts of a made

          record, [habeas counsel] inevitably will identify shortcomings in the performance of prior

          counsel.' Id at 17, 459 S.E.2d at 128. '[p]erfection is not the standard for ineffective assistance of

          counsel.' Jd Only if an identified error is 'so serious that counsel was not functioning as the

          'counsel' guaranteed the defendant by the Sixth Amendment' is the first prong of the Strickland

          test satisfied.. Strickland, 466 U.S. at 687." Flackv. Ballard, 2017 W. Va LElaS 447, *22

                  22. Strategic choices and tactical decisions, with very limited. exceptio~ fall outside the

          scope of this inquiry and cannot be the basis of an ineffective assistance claim. Legursky, 195 W.

         Va at 328, 465 S.E.2d at 430 ("A decision regarding trial tactics cannot be the basis for a claim of

         ineffective assistance of counsel unless counsel's tactics are shown to be so ill chosen that it

         permeates the entire trial with obvious unfairness. ")(mternal quotation marks omitted), Miller, 194



                                                             21
--_._-- _._ ---_.- - --_._--- - _.._-----------_._--- ------_._ ---- -- ._ -- --._--------                      -



        W. Va at 16, 459 S.E.2d at 127 ("What defense to carry to the jury, what witnesses to call, and

        what method of presentation to use is the epitome of a strategic decision, and it is one that we will

        seldom, if ever, second guess.").

               23. Identifying a mere mistake by defense counsel is not enough. See Edwards v. United

        States, 256 F.2d 707, 708 (D.C. Cir. 1958) ("Mere improvident strategy, bad tactics, mistake,

       carelessness or inexperience do not . . . amount to ineffective assistance of counsel, unless taken

       as a whole the trial was a 'mockery of justice."'). AB the Miller court noted, ''with [the] luxury of

       time and the opportunity to focus resources on specific facts of a made record, [habeas counsel]

       inevitably will identify shortcomings in the performance of prior counsel;" however, the court

       continued, "perfection is not the standard for ineffective assistance of counseL" Miller, 194 W.

       Va at 17, 459 S.E.2d at 128.

               24. Even if defense counsel's conduct is deemed objectively unreasonable, and therefore

       satisfies the :first Strickland prong, that conduct does not constitute ineffective assistance unless

       the petitioner can also establish that the deficient conduct had such a significant impact that there

       is a ''reasonable probability that, but for counsel's unprofessional errors, the result of the

       proceedings would have been different" SyI. Pt 5, Miller, supra. AB the Supreme Court explained

       in Strickland, "[a]n error by counsel, even if professionally unreasonable, does not warrant setting

       aside the judgment of a criminal proceecling if the error had no effect on the judgment" Strickland,

       466 U.S. at 691. Thus, satiBfying Strickland's ''prejudice prong" requires a showing that counsel's

       deficient performance was serious and impactful enough to '''deprive the defendant of a fair trial,

       a trial whose result is reliable.'" State ex reI. Strogen v. Trent, 196 W. Va 148 atn. 4, 469 S.K2d

       7, 12 (1996) (quoting Strickland, 466 U.S. at 687), see also Myers, 213 W. Va at 36,576 S.K2d




                                                        22
,
--   - - - - - - - - - - - - - - - - - --.---------.- - - ----   -- - _ .- .-- ----_._----- -            --   - -- - - -   _._- -



           at 281 (2002) ("The second or "prejudice" requirement of the Strickland I Miller test looks to

           whether counsel's deficient performance adversely affected the outcome in a given case.").

                  25. There is no precise formula, applicable in all cases, that can be applied to determine jf

           the constitutionally-inadequate conduct in question so significantly degraded the reliability of the

           trial such that the prejudice prong is satisfied. See Legursky, 195 W. Va at 325, 465 S.E.2d at 427

           ("Assessments of prejudice are necessarily fact-intensive determinations peculiar to the

           circumstances of each case."). But there is no question that the burden of demonstrating prejudice

           lies 'With the petitioner. Strickland, 466 U.S. at 693, Legursky, 195 W. Va at 319,465 S.E.2d at

           421.

                  26. This Court will quickly dispense with the claim that cumulative errors at petitioner's

          trial or by his counsel resulted in an unfair proceeding entitling him to relief As will be more fully

           discussed below, this Court finds that counsel may have been objectively deficient in not

          requesting the Caudill instruction. However, this Court also finds that omission did not affect the

          result of petitioner's trial. Therefore, there was no error, much less cumulative errol' in these

          proceedings.

                  27. The court finds tha~ the petitioner has failed to satisfy his burden of demonstrating that

          any error occurred. Therefore, the doctrine of cumulative error is completely inapplicable. That

          standard applies both to the asserted errors committed by counsel and also to the asserted stand-

          alone errors at trial. Where the record a criminal trial shows that the cumulative effect of numerous

          errors committed during the trial prevented the defendant from receiving a fair trial, his conviction

          should be -set aside, even though anyone of such errors standing alone would be harmless error.

          8y1. Pt. 14, State v. Foster, 221 W.Va. 629,656 S.B. 2d 74 (2007). The cumulative error doctrine

          is not applicable without legal and/or factual basis which support the individual assignments of



                                                            23
                                                                                                            - - - - - -__ .0 _ -
_ . _   _ _   - - - - -0 _ _ -   0_   0   _ _ _0 ____   _   ___ _   0   _   _




               error. See State v. GZaspeZZ, 2013 WL 3184918 (W.Va. June 24, 2013). The cumulative error

               analysis should evaluate only the effect of matters determined to be error, not the cumulative effect

               of non-errors. State v. Knuckles, 196 W.Va 416, 426, 473 S.E.2d 131, 141 (1996). Because

              Petitioner fails to meet his burden of establishing counsel's errors in defending his case, or the

              court's error at trial, the doctrine of cumulative errors does not apply. Moreover, "As respondent

              notes, this Court has not expressly extended the cumulative error doctrine to evidentiary decisions

              or rulings in post-conviction habeas proceedings. We decline to do so here." DeGasperin v.

              Ballard" 2017 WL 663577 (W. Va. Supreme Court of Appeals Memoran~umDecision, Feb. 17,

              2017).

                          28. This Court will now address those claims upon which evidence was proffered. 'Those

              claims, specifically, are ineffective assistance of counsel in the handling of the issue of gunshot

              residue at trial, the failure to have the phone call translated, and the failure to request a limiting

              instruction regarding the co-defendant's testimony.

                         29. The issue of ineffective assistance of counsel implicates both state and federal

              constitutional rights and the issue is being decided on both state and federal constitutional grounds.

                         30. As to the phone call, trial counsel testified that he was unaware of anything exculpatory

              or inculpatory on that phone call. He did not seek translation because the conversation in Spanish,

              excluding his client, supported the defense theory of the case_ This Court will not engage in

              speculation that there was something harmful to the petitioner on that phone call and that counsel

              should have had it translated. The Court must point out that habeas counsel did not have the

              conversation translated and has not proffere9- that there was any information germane to petitioner

              or his defense on that phone call. The burden is on the petitioner to demonstrate both prongs of

              the Strickland/Miller standard. That~, petitioner bears the burden of proving that his counsel



                                                                                24
-- --- --.- --------.._ - - - - - - - ---     ------------._--- ..-    - -- - -                   ---------- -

        engaged in objectively deficient performance AND that the error or omission affected the result of

        the proceeding to petitioner's prejudice.        Even petitioner's expert, who abstained from

        commenting on the prejudice prong in other respects stated that petitioner could not prove

        prejudice in relation to the phone call. Such failure is fatal to petitioner's clailll. Moreover, the

        Court does not find that failure to have the call translated was objectively deficient performance.

        The Court is aware that for strategic reasons it is sometimes better not to know, particularly if the

        contents of the phone call were harmful to the petitioner.

                31. Moreover, the petitioner's participation in the phone call was very limited., and the

        statement made by him non-inculpatory. The petitioner stated only that he was going to write

        Homicide a letter. The whole conversation' did not contain any admissions or accusations about

        the death of James WiJ]jams.     The phone conversation further bolstered the defense contention

        that it was the gang from New York who murdered James Williams, and not his friend from

        Charleston, W. Va.     Moreover, the fact that part of the conversation was in Spanish also

        bolstered that theory. Trial·counsel noted that there was no real idea what "they" were saying on

        the tape but the only people who mew were the brothers or White Mike and "...he is just not

        telling us what they were telling each other" and that White Iv.fik:e was the one who was laughing

        during the phone call about a murder, someone being taken out, recalling the good times with his

        buddy. (Trial Transcript at 354.) The fact that some of the phone call was in Spanish, apparently

        excluding the petitioner from participation in the conversation only served to reinforce the defense

        contention that Sherrod was the outsider set up to take the fall for the gang from New York.

               32. That choice of strategy was objectively reasonable. The phone call was sufficiently

       authenticated, and therefore it was not ineffective assistance of counsel to challenge the

       authenticity of a phone call which was clearly authenticated by one of the participants in the



                                                        25
                                                                  --._-- - -------_ ._ - - - -- - _.. _-   -


 conversation. There is no evidence that any of the conversation in Spanish was any more germane

to the case at bar than the English parts of the conversation_ One could speculate about what the

 Spanish speakers were saying, but there is no evidence that portion of the conversation was

 exculpatory of the petitioner either in terms of impeachment or otherwise. The conversation could

also have been completely inculpatory of the petitioner, with the conversation consisting of

repetition of admissions that the petitioner had made. The Court takes note that know the contents

of the call remain unlmown and untranslated, so the petitioner cannot pn~ve the failure to have it

translated was prejudicial.

        33. It was not objectively deficient for trial counsel to fail to clarify the garbled contents

of the jail phone call, including the portion ir:i. Spanish. The jail phone call was not incriminatory

of the petitioner, and the circumstances of the phone call, including the -group from New York

telling Homicide to watch the news, and that Baby Goon was the word of the day, as well as

speaking in Spanish, served to reinforce the defense theory that the petitioner was the fall guy, not

part of the group.

        34. Moreover, there is nothing to demonstrate that had the phone call been translated that

there was anything beneficial to the petitioner on that phone call, or that even if there "Was some

cryptic reference that was beneficial to the petitioner the result of the trial would have differed.

        35. The Court finds that it was not objectively deficient performance to fail to have the

tape translated and played for the jury in English. Additionally, the Court finds that the petitioner

has failed to demonstrate prejudice. The petitioner has satisfied neither prong of Strickland/Miller

in regards to this particular claim of ineffective assistance of counsel, and this assertion affords

him no relief.




                                                  26
- ------ ------ -------- --- ------.-- -_._---- -- -- - - --- --

          36. The petitioner challenges the performance of trial counsel with regard to the gunshot

   residue testimony by asserting that trial counsel should have illred an expert to challenge the state's

   expert, and further should have cross-examined the I¥.itness more vigorously regarding the gunshot

   residue. "While counsel's general duty to prepare necessitates an investigation of the facts, there

   is no constitutional demand that an investigator be hired or for experts to be retamed in every

   case." F1.ackv. Ballard, 2017 W. Va LEXIS 447, *25-26

          37. Again, as noted above, how to cross-examine a I¥.itness, what questiqns to a£k is the

   essence of a strategic decision which will rarely, if ever, constitute ineffective assistance of

   counsel. Defense counsel developed a coherent strategy which was to acknowledge that the victim

  had been murdered in his own kitchen, but to point out that the petitioner lacked motive. In

  opening, trial counsel pointed out that the victim was alleged to have caused b:a.rm, or attempted
                          i

  harm against the child of Ebony Williams and Homicide. Homicide was in jail. Shortly before

  the murder, Homicide's buddies from New York came south including White :Mike, Tech and

  Fifty. Fifty, Homicide, Tech, and White Mike are all from the same project in New York and have

  come south to "show some love for their friend who is injail." (Trial Transcript at 88.) "All ofthe

  people with a motive, all of the people connected to Homicide are from N ew York." "There is no

  motive at all, no reason, for Brandon Sherrod to have any ill- will against this guy. They bad

  actually been friends." (Id at 89.) All of the individuals who actually made threats against the

  victim, all of whom have motive, all of the ones from New York were the ones testifying against

  Sherrod. Sherrod was the one taking the fall for the guys from New York, those who fled the staie

  after the shooting. (Id at 90-91)

          38. The gunshot residue testimony elicited at trial actually supported the defense theory.

  That is, the evidence demonstrated that gunshot residue was found on the rear view mirror, the



                                                    27
                                               - - - - - -- - - - - - _ ._-- -- - - -- - ------ - ...

driver's door, and the passenger door on the driver's side. Counsel developed thatMichelle Bailey

was the driver:-not the petitioner, and that Serrano sat behind the driver-not the petitioner.

Therefore, even if the jury chose to believe that the petitioner was in the car, the evidence was that

the gunshot residue was not associated with him. The evidence tended to demonstrate that the

person (or persons) who shot guns were on the driver's side, not on the passenger's side where the

evidence placed the petitioner. Trial counsel highlighted this for the jury by asking who drove the

vehicle, noting that it was someone who fired a gun, which did not match the testimony of either

Serrano or Bailey. No one put the shooters in the front seat driving, adjusting the mirror. Certainly

no one put the petitioner in the front seat.

        39. Therefore, since the gunshot residue evidence supported the defense theory that the

petitioner was not involved, not in the car, or at worst in the car but not associated with the area of

the car where the gunshot residue was found, it was objectively reasonable performance for

counsel to limit his cross-examination to those answers which supported the defense. Moreover,

the result of the trial would not have differed had counsel hired an independent expert nor asked

more questions on cross-examination. The petitioner's expert opined that counsel was objectively

deficient, yet did not lmow what evidence the jury actually heard regarding gunshot residue. The

Court rejects the defense contention that counsel was objectively deficient in his handling of the

gunshot residue issue, and further finds that hiring an expert or asking different questions would

not have affected the result of the proceeding. The petitioner cannot satisfy either prong of

Strickland/Miller and this claim affords no relief.

       40. The Court accepts trial counsel's statement that the reason a Caudill instruction was

not requested was because of oversight, not because of any strategic reason. The Court therefore

will :find that the faihrre to request such instruction was objectively deficient performance. That



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 does not end the mquiry, because the failure to request such limiting instruction must have

adversely affected the trial.

        41. This Court is of the opinion that the failure to request such limiting instruction had no

effect on the jury verdict

        42. The Court will note that in fact, asking for and receivillg a limiting instruction can have

the effect of highlighting harmful evidence and make a juror give such evidence more weight than

it deserves.

        43. The petitioner was not convicted because of the lack of a Caudill instruction but was

convicted because the jury believed the testimony of Serrano and Bailey as to facts which each

observed, includillg witnessmg the murder and hearing the petitioner boast about the crime.

        44. When a criminal defendant's accomplice - who has pled guilty to the charge upon

which the defendant is bemg tried - testifies as a witness for the State, it is permissible for the State

to elicit testimony about the accomplice's guilty plea See State v_ Caudill, 170 W. Va 74, 78, 289

S.E.2d 748, 752 (1982).

        45. It is impermissible for the state to elicit testimony which would tend to lead a jury to

believe that a co-defendant's guilty plea is substantive evidence of guilt for the defendant on trial.

However, the West VirgIDia Supreme Court reasoned m Caudill that Itwhere the testimony

regarding the plea is but a small part of an accomplice's testimony" and the accomplice's testimony

is otherwise-"general and extensive in nature, It the prejudice caused by such testimony is limited.

See Caudill, 170 W. Va at 81, 289 S.E.2d at 755. Caudill mandated the issuance of a limiting

instruction to ensure that a jury did not "misinterpret the purpose for which testimony [concerning

a guilty plea] is offered. It Id. Flack recognized that a limiting instruction might only draw attention

to an otherwise innocuous mention and that it is better for defense counsel to determine when



                                                  29
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       testimony concerning a plea is of the character that it might be misconstrued by the jury (and thus

       warrant a limiting instruction). See Flack, 232 W. Va. at 713, 753 S.E.2d at 766.

               46. This Court is aware thai counsel simply did not ask for the instruction, rather than

       making a choice. However, this Court believes thai requesting the limiting instruction would have

       highlighted damaging testimony and been prejudicial to petitioner's case, and that the absence of

       such request did not prejudice petitioner.

               47. A review of the trial transcript in this case demonstrates that Serrano's testimony

       concerning his plea did not fall into the category of testimony for which a limiting instruction is

       absolutely necessary. Serrano's transcript covers some 40 pages of the trial transcript. "When

       questioned by the state, he simply stated the parameters ofms plea agreement His credibility was

       assailed on cross-examination because of the benefits of the plea. However, the state did not elicit

       le~y testimony regarding the plea and no suggestion was        ever made to the jury that the petitioner

       was guilty simply because Serrano had entered a plea. Serrano was extensively cross-examined

       about bis favorable plea, a strategic decision designed to demonstrate a motive for lying about

       petitioner's participation in the murder. A case cited in Caudill is illustrative. In State v_ Cole, 252

       Or. 146,448 P 2d 523 (1968), the Supreme Court of Oregon explained that where the "purpose of

      the [accomplice's] testimony was to give the facts and circumstances of the crime" and that any

      testimony concerning a plea agreement was primarily intended to explain "the circumstances under

      which 1the accomplice was] testifying" that testimony was highly relevant to "their credibility as

      ~ljtnesses   for the state. 1I Cole, 252 Or. at 153-54,448 P.2d at 527 (quoted in Caudill, 170 W. Va.

      ai 81, 289 S.E.2d at 755). Elaborating on this point, the Caudill court explained that eliciting

      testimony about a plea agreement is permissible because If!the jury [is] entitled to the information

      for its bearing on the value of the witness' testimony, and the prosecution might indeed on occasion



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                                                    ._-------- - - - - - --- ----------                      ---------------
.,}         lJ

-.
 --------~---                 -~------------                                                             -


                 -suffer unfairly in the estimation of the jury for attempting to conceal the criminal record if it did

                 not come forward with it'" Caudill, 170 W. Va at 81, 289 S.E.2d at 755 (quoting Commonwealth

                 v. Cadwell,374 Mass. 308, 312, 372 N.E.2d 246,249 (1978)). AB the Caudill court noted, "[t]he

                 question of ... credibility .. , is clearly a proper purpose" for which such testimony could be

                 admitted. Caudill, 170 W. Va at 81,289 S.E.2d at 755. Thus, testimony elicited primarily to aid

                 the jury's credibility determination should be deemed admissible, even in the absence of a limiting

                 instruction. The fact that Serrano had pled guilty was not revisited or harped on, and Serrano

                 proceeded to provide wide-ranging testimony concernirig his personal knowledge oftb.e incident

                 in question. Thus, it is clear that tb.e State did not elicit testimony about Serrano's guilty plea with

                 the intent of relying on that testimony as substantive evidence. Therefore, trial counsels' decision

             not to request a limiting instruction was not ineffective assistance. The West Virginia Supreme

                 Court very recently addressed the issue of prejudice regarding the failure to request a Caudill

             instruction. "'Accordingly, it is clear from the record that the State did not elicit testimony about

             Mr. Montgomery's guilty plea with the intent of relying on tb.at testimony as substantive evidence.

             Therefore, because Petitioner has failed to demonstrate that defense counsel's decision not to

            request a limiting instruction was so prejudicial as to change the outcome of the trial, we affirm

            the habeas court's ruling on this issue." Flack v. Ballard, 2017 W. Va LEXI-S 447, *32. The

            factual situation is almost identical in the case at bar.

                        48. Ineffective assistance requires proefthat the act or omission resulted in prejudice to

            the petitioner. In this case, Serrano's detailed testimony about the crime and his participation in

            it, corroborated by the physical evidence and by Bailey's testimony, coupled with Bailey)s

            testimony about petitioner) s damaging admissions about killing the victim convicted the petitioner,

            not the brief reference to the plea agreement, which the jury needed to hear in order to determine



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                        credibility. The failure to request the instructiDn was not prejudicial and this contention affords

                        the petitioner no relief.

                                49. As to the issue of ineffective assistance oftrial counsel, the Court notes that petitioner's

                        expert testified that appellate counsel was not ineffective because he was bound by the record in

                    the trial. Therefore, the petitioner has failed in his burden of proof on this issue. This Court also

                    does not believe that the Supreme Court would have reversed this petitioner's conviction had the

                    issue of the Caudill instruction been proffered on appeal because the Supreme Court was presented

                    with precisely that issue in Flack and declined to reverse Flack's conviction.

                                50. This p~titioner received a fair trial with the effective assistance of counsel. The

                    petitioner has failed to prove any ofms contentions, and relief in habeas corpus is not warranted.


                                                                         ill.

                                                                     CONCLUSION

                               THEREFORE, based upon a thorough and complete review of llie complete contents of

                    the criminal case :file in this matter, including the trial transcripts; in consideration of the testimony

                    at the omnibus evidentiary hearing, and considering the arguments of counsel for the petitioner

                    and the warden bolli at the hearing and in written submissions, it is ORDERED that the petition

                    seeking a writ of habeas corpus be and the same is hereby DENIED. It is further ORDERED that

                   said civil action be and the same is hereby DIS:MISSED. The court notes the exceptions and

                   objections of the petitioner. It is further ORDERED that the Clerk of the Circuit Court send copies

                   oftbis order to counsel of record.



                   ENTERED:
                                                                       JUDGE CHARLES E. :raNG, JR.
                                                                       Judge of the Thirteenth Judicial Circuit
                                                                                                                                   !

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