        IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                  January 2019 Term
                                                                         FILED
                                     _____________                    June 10, 2019
                                                                    EDYTHE NASH GAISER, CLERK
                                                                    SUPREME COURT OF APPEALS
                                      No. 17-0566                       OF WEST VIRGINIA

                                     _____________


                                    Mark T. Coleman,
                               Petitioner Below, Petitioner


                                           V.


                           J.T. Binion, Superintendent,
                         Huttonsville Correctional Center,
                          Respondent Below, Respondent

              ________________________________________________

                Appeal from the Circuit Court of Kanawha County
                        Honorable Charles E. King, Judge
                           Civil Action No. 14-P-583
                                  AFFIRMED
              ________________________________________________

                           Submitted: January 9, 2019
                      Corrected Opinion Filed: June 10, 2019

Kevin D. Mills                                  Patrick Morrisey, Attorney General
Shawn R. McDermott                              Scott E. Johnson, Assistant Attorney
Mills McDermott, PLLC                           General
Martinsburg, West Virginia                      Charleston, West Virginia
Attorneys for the Petitioner                    Attorneys for the Respondent

JUSTICE JENKINS delivered the Opinion of the Court.
                             SYLLABUS BY THE COURT



              1.     “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).



              2.     “In the West Virginia courts, claims of ineffective assistance of

counsel are to be governed by the two-pronged test established in Strickland v. Washington,

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

deficient under an objective standard of reasonableness; and (2) there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceedings would

have been different.” Syllabus point 5, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114

(1995).



              3.     “In deciding ineffective . . . assistance [of counsel] claims, a court

need not address both prongs of the conjunctive standard of Strickland v. Washington, 466

U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and State v. Miller, 194 W. Va. 3, 459

S.E.2d 114 (1995), but may dispose of such a claim based solely on a petitioner’s failure

                                              i
to meet either prong of the test.” Syllabus point 5, State ex rel. Daniel v. Legursky, 195

W. Va. 314, 465 S.E.2d 416 (1995).



              4.     “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.” Syllabus

point 6, State ex rel. Daniel v. Legursky, 195 W. Va. 314, 465 S.E.2d 416 (1995).



              5.     “A judgment of conviction will not be reversed because of improper

remarks made by a prosecuting attorney to a jury which do not clearly prejudice the accused

or result in manifest injustice.” Syllabus point 5, State v. Ocheltree, 170 W. Va. 68, 289

S.E.2d 742 (1982).



              6.     “Jury instructions are reviewed by determining whether the charge,

reviewed as a whole, sufficiently instructed the jury so they understood the issues involved

and were not misled by the law. A jury instruction cannot be dissected on appeal; instead,

the entire instruction is looked at when determining its accuracy. The trial court, therefore,

has broad discretion in formulating its charge to the jury, so long as it accurately reflects

                                              ii
the law. Deference is given to the circuit court’s discretion concerning the specific wording

of the instruction, and the precise extent and character of any specific instruction will be

reviewed for an abuse of discretion.” Syllabus point 15, State v. Bradshaw, 193 W. Va.

519, 524, 457 S.E.2d 456, 461 (1995).



              7.     “‘“In a homicide trial, malice and intent may be inferred by the jury

from the defendant’s use of a deadly weapon, under circumstances which the jury does not

believe afforded the defendant excuse, justification or provocation for his conduct.

Whether premeditation and deliberation may likewise be inferred, depends upon the

circumstances of the case.” Point 2, Syllabus, State v. Bowles, 117 W. Va. 217[, 185 S.E.

205 (1936)].’ Syllabus, State v. Johnson, 142 W. Va. 284, 95 S.E.2d 409 (1956).” Syllabus

point 5, State v. Jenkins, 191 W. Va. 87, 443 S.E.2d 244 (1994).



              8.     “Where a counsel’s performance, attacked as ineffective, arises from

occurrences involving strategy, tactics and arguable courses of action, his conduct will be

deemed effectively assistive of his client’s interests, unless no reasonably qualified defense

attorney would have so acted in the defense of an accused.” Syllabus point 21, State v.

Thomas, 157 W. Va. 640, 203 S.E.2d 445 (1974).



              9.     “Where an offer of evidence is made under Rule 404(b) of the West

Virginia Rules of Evidence, the trial court, pursuant to Rule 104(a) of the West Virginia

                                             iii
Rules of Evidence, is to determine its admissibility. Before admitting the evidence, the

trial court should conduct an in camera hearing as stated in State v. Dolin, 176 W. Va. 688,

347 S.E.2d 208 (1986). After hearing the evidence and arguments of counsel, the trial

court must be satisfied by a preponderance of the evidence that the acts or conduct occurred

and that the defendant committed the acts.         If the trial court does not find by a

preponderance of the evidence that the acts or conduct was committed or that the defendant

was the actor, the evidence should be excluded under Rule 404(b). If a sufficient showing

has been made, the trial court must then determine the relevancy of the evidence under

Rules 401 and 402 of the West Virginia Rules of Evidence and conduct the balancing

required under Rule 403 of the West Virginia Rules of Evidence. If the trial court is then

satisfied that the Rule 404(b) evidence is admissible, it should instruct the jury on the

limited purpose for which such evidence has been admitted. A limiting instruction should

be given at the time the evidence is offered, and we recommend that it be repeated in the

trial court’s general charge to the jury at the conclusion of the evidence.” Syllabus point

3, State v. McGinnis, 193 W. Va. 147, 455 S.E.2d 516 (1994).



              10.    “Before a trial court can determine that evidence of collateral crimes

is admissible under one of the exceptions, an in camera hearing is necessary to allow a trial

court to carefully consider the admissibility of collateral crime evidence and to properly

balance the probative value of such evidence against its prejudicial effect.” Syllabus point



                                             iv
3, State v. Dolin, 176 W. Va. 688, 347 S.E.2d 208 (1986), overruled on other grounds by

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



              11.    “Errors involving deprivation of constitutional rights will be regarded

as harmless only if there is no reasonable possibility that the violation contributed to the

conviction.” Syllabus point 20, State v. Thomas, 157 W. Va. 640, 203 S.E.2d 445 (1974).



              12.    “In a criminal case, the burden is upon the beneficiary of a

constitutional error to prove beyond a reasonable doubt that the error complained of did

not contribute to the verdict obtained.” Syllabus point 3 State v. Frazier, 229 W. Va. 724,

725, 735 S.E.2d 727, 728 (2012).




                                             v
Jenkins, Justice:

              In this case, Mark T. Coleman (“Mr. Coleman”) appeals an order of the

Circuit Court of Kanawha County denying his petition for writ of habeas corpus, which

asserted numerous grounds to support his claims of ineffective assistance of both trial and

appellate counsel.1 After reviewing the parties’ briefs, the legal authority cited, and the

record submitted for our consideration; as well has hearing the oral arguments presented,

we affirm the circuit court’s denial of Mr. Colman’s habeas petition.



                                              I.

                     FACTUAL AND PROCEDURAL HISTORY

              In the case underlying the instant habeas corpus proceeding, Mr. Coleman

was tried by a jury and convicted of murder in the first degree for fatally shooting his wife,

Trina Coleman (“Mrs. Coleman”). He was sentenced to life with mercy.




              1
               The original petition named the respondent as Marvin C. Plumley, Warden
of the Huttonsville Correctional Center (“Warden Plumley”). We note that the title
“warden” has been replaced. Effective July 1, 2018, positions formerly designated as
“warden” became designated as “superintendent.” See W. Va. Code § 15A-5-3
(LexisNexis 2014 & Supp. 2018). Moreover, during the course of these proceedings,
Warden Plumley was replaced by John T. Murphy, who served as Acting Superintendent.
Thereafter, J.T. Binion was appointed as Superintendent of Huttonsville. Accordingly,
pursuant to Rule 41 of the Rules of Appellate Procedure, Mr. Binion has been substituted
as the Respondent in this appeal.

                                              1
              The evidence presented at trial established that, on March 2, 2006, in the

course of a dispute over Mrs. Coleman’s marital fidelity, Mr. Coleman shot his wife in the

face with a rifle. Mr. Coleman never disputed that he shot his wife; thus, the primary issue

of contention during the trial was Mr. Coleman’s intent. The State presented evidence to

establish that Mr. Coleman shot his wife with the specific intent to end her life because he

believed she was having an extramarital affair, and further believed that she was conspiring

with her alleged paramour, David, to harm or kill Mr. Coleman and other members of his

family. Mr. Coleman’s counsel2 presented a defense based upon the theory that the

shooting had been accidental in that Mr. Coleman did not believe the rifle was loaded. The

defense also contended that, at the time of the shooting, Mr. Coleman was suffering from

diminished capacity due to methamphetamine psychosis and was, therefore, unable to form

the intent to commit murder.



              The evidence supporting the jury verdict with respect to Mr. Coleman’s

intent included numerous letters written by Mr. Coleman accusing Mrs. Coleman of

infidelity. Some of the letters contained threats against Mrs. Coleman. Also, on the coffee

table in the room where Mrs. Coleman was shot, was a date book belonging to Mrs.




              2
               Mr. Coleman retained James Cagel as his trial counsel.

                                             2
Coleman. The date book contained several entries of the name “David,” and each entry

was accompanied by a drawing of a heart.



              There also was evidence of prior physical violence involving Mr. and Mrs.

Coleman, including an incident that resulted in each of them obtaining a domestic violence

protective order against the other and caused Mrs. Coleman to move out of the marital

home. The Coleman’s daughter testified to another incident that occurred within two or

three months of her mother’s death. The daughter had overheard an argument between her

parents during which Mr. Coleman, while holding a rock in his hand, threatened to kill

Mrs. Coleman. There was additional testimony from the Coleman’s daughter that Mr.

Coleman was a hunter who was knowledgeable about firearms, thus refuting Mr.

Coleman’s claim that he was mistaken about whether the murder weapon was loaded. She

further stated that Mr. Coleman stored all of his rifles, including the murder weapon,

unloaded in a gun cabinet located in the couple’s bedroom. The State also presented

testimony from a firearm examiner, Phillip Cochran, who had tested the murder weapon.

Mr. Cochran testified that the rifle was equipped with a trigger safety device that prevented

it from discharging without the trigger being pulled. Testing confirmed that the trigger

safety device on the rifle was functioning as designed, so that the weapon would not fire

without the trigger being pulled.




                                             3
              Other testimony established that Mrs. Coleman was working at a local

convenience store on the evening of her death when she received a phone call from Mr.

Coleman. After the call, Mrs. Coleman was visibly upset and informed the store manager

that she needed to go home. Shortly thereafter, while in a back room of their marital home,

Mr. Coleman shot Mrs. Coleman in the face from a close distance, estimated to be between

six and twelve inches. Mrs. Coleman sustained a massive head wound from the shot, and

also suffered a defensive wound that nearly severed one of her fingers.



              With respect to Mrs. Coleman’s injuries, a State medical examiner, Dr.

Boiko, testified on behalf of the prosecution regarding his autopsy of the victim and his

resulting report. The medical examiner explained that an injury to Mrs. Coleman’s left

ring finger was a defensive wound and indicated that the bullet had first hit her finger

before entering her head through her mouth. Although the medical examiner’s report stated

that there was no gun powder residue on the victim’s left ring finger, upon viewing a picture

of the injured finger during his testimony, the medical examiner observed that there was,

in fact, gun powder soot on the finger. The presence of this soot indicated that Mrs.

Coleman’s hand had been in close proximity to the rifle’s muzzle at the time it discharged.

Thus, the medical examiner’s written report had been incorrect, but he corrected his

conclusion during his testimony. While Dr. Boiko opined that Mrs. Coleman’s finger was

in close proximity to the rifle when it was discharged, he stated that he could neither

conclude nor rule out the possibility that her finger had come into contact with the rifle.

                                              4
              Although Mr. Coleman exercised his right to not testify, during the course of

the trial, the jury nevertheless heard evidence from several sources that, following the

shooting, Mr. Coleman repeatedly claimed that the shooting was an accident. Mr. Coleman

contended that he had waived the rifle at Mrs. Coleman in an attempt to scare her and he

did not believe that it was loaded.3 During the defense case-in-chief, Mr. Coleman’s

ballistics expert opined that the presence of soot on Mrs. Coleman’s finger and the location

of bullet fragments found at the scene were consistent with a scenario where Mrs. Coleman

pushed or swatted the muzzle of the rifle causing it to discharge. The expert testified that,

if Mr. Coleman had the trigger squeezed and his thumb on the hammer, simultaneous

contact with the muzzle by Mrs. Coleman could have caused the rifle to discharge.



              The jury ultimately found Mr. Coleman guilty of first-degree murder and

recommended mercy. Mr. Coleman filed post-trial motions, which were denied by the

circuit court. Mr. Coleman then appealed his conviction to this Court4 and was granted

oral presentation of the sole issue raised, i.e., the sufficiency of the evidence. This Court,




              3
              Mr. Coleman’s statements were admitted during the State’s case-in-chief
through the admission of an audio recording that was made at the scene and during Mr.
Colman’s transport to the sheriff’s headquarters, and a video recording of his statement
made to law enforcement after he arrived at the sheriff’s headquarters. During Mr.
Coleman’s case, testimony regarding his statements indicating the shooting was an
accident was provided by his father and his neighbor/landlord.
              4
               Appellate counsel was Troy Giatras.

                                              5
by order entered on October 9, 2008, refused the petition for appeal.5 Thereafter, in

November 2014, Mr. Coleman filed a petition for writ of habeas corpus in the Circuit Court

of Kanawha County. Following an omnibus hearing, the circuit court denied the petition

by order entered on May 26, 2017. This appeal followed. Additional facts specifically

related to the assignments of error herein raised will be set out in our discussion of the

particular issues to which they pertain.



                                             II.

                               STANDARD OF REVIEW

              The instant appeal is before this Court from a circuit court’s denial of a

petition for a writ of habeas corpus. The proper standard for our review of such an appeal

has been set out as follows:

                      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). Moreover, each of

the grounds asserted by Mr. Coleman as entitling him to a writ of habeas corpus are asserted




              5
              The West Virginia Rules of Appellate Procedure in effect at the time of Mr.
Coleman’s appeal allowed this Court to refuse a petition for appeal. See W. Va. R. App.
Pro. 7 (as amended by order entered on June 14, 1995).
                                           6
as a basis for his claim of ineffective assistance of counsel. In reviewing a circuit court’s

ruling as to a claim of ineffective assistance of counsel, we are mindful of the following

standard:

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


Syl. pt. 5, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995). We also have clarified

that if either prong of the test is absent, ineffective assistance is not established:

                     In deciding ineffective . . . assistance [of counsel]
              claims, a court need not address both prongs of the conjunctive
              standard of Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
              2052, 80 L. Ed. 2d 674 (1984), and State v. Miller, 194 W. Va.
              3, 459 S.E.2d 114 (1995), but may dispose of such a claim
              based solely on a petitioner’s failure to meet either prong of the
              test.


Syl. pt. 5, State ex rel. Daniel v. Legursky, 195 W. Va. 314, 465 S.E.2d 416 (1995).

Further,

                     [i]n 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


                                               7
               have acted, under the circumstances, as defense counsel acted
               in the case at issue.

Syl. pt. 6, id. Finally,

               [t]he test of ineffectiveness has little or nothing to do with what
               the best lawyers would have done. Nor is the test even what
               most good lawyers would have done. We only ask whether a
               reasonable lawyer would have acted, under the circumstances,
               as defense counsel acted in the case at issue. We are not
               interested in grading lawyers’ performances; we are interested
               in whether the adversarial process at the time, in fact, worked
               adequately.

Miller, 194 W. Va. at 16, 459 S.E.2d at 127.


               We will apply the foregoing standards generally to our consideration of this

appeal. Additional standards for our review that are applicable to specific issues herein

raised will be addressed in connection with our consideration of those issues.




                                               8
                                              III.

                                       DISCUSSION

              Mr. Coleman raises eight separate instances of ineffective assistance of

counsel in this appeal.6 We address each one in turn.7



                     A. Failure to Object During Closing Arguments

              Mr. Coleman first argues that his trial counsel was ineffective by failing to

object to remarks made during closing argument that Mr. Coleman characterizes as

improper comments on his right to remain silent. In addition, he claims that appellant

counsel was ineffective in failing to raise this issue in his direct appeal.




              6
                 As a ninth assignment of error, Mr. Coleman claims that the cumulative
effect of the errors he has raised prejudiced his constitutional rights and rendered his trial
unfair. Because we find no prejudicial errors, we decline to address this issue. See State
v. Trail, 236 W. Va. 167, 188 n.31, 778 S.E.2d 616, 637 n.31 (2015) (“Because we have
found no errors, this assignment need not be addressed.”).
              7
                 On March 11, 2019, Mr. Coleman filed a notice of additional authority
asking this court to consider the case of Garza v. Idaho, ___ U.S. ___, 139 S. Ct. 738, 203
L. Ed. 2d 77 (2019). Garza recognized, in the context of a guilty plea where the defendant
signed an appeal waiver, a presumption of prejudice where an attorney’s deficient
performance in failing to file a notice of appeal deprived the defendant of an appeal that
the defendant would otherwise have pursued. Id. Because this matter does not involve a
guilty plea or the failure of counsel to file a notice of appeal, Garza has no application.

                                               9
              During its closing, the State made the following argument with no objection

from Mr. Coleman’s trial counsel:

                    Now, the defense would have you believe that this was
             an accident. First of all, just because the defendant has said it
             was an accident, doesn’t mean that it was an accident. And
             why is it not an accident? Because his explanation does not fit
             the physical facts at the scene of the crime. His explanation
             that he wasn’t aiming the gun, that he was standing there, that
             he was merely pulling the hammer back, and that his thumb
             slipped off the hammer, does not cause a discharge of the
             firearm. It does not fit the physical facts of the case.

                    The medical examiner told you that she had her left
             hand in front of her face. A defensive wound. And that she
             was trying to defend herself by putting her hand in front of her
             face. It is not an accident because he did not tell you that she
             was attempting to defend herself. His explanation does not fit
             the physical facts of this case.


(Emphasis added). Mr. Coleman’s trial counsel then presented his closing argument

wherein he referred to Exhibit 52, which was a video recording of a police interview with

Mr. Coleman. Trial counsel argued that, in the recording, Mr. Coleman waivered as to

whether he had the trigger of the riffle squeezed, ultimately conceding, according to

counsel, that he may “have had the trigger squeezed and pulled the hammer and it slipped.”

The State, during its rebuttal closing, responded to the argument posed by trial counsel as

follows:

                     Ladies and gentlemen, I would urge you if you’re going
              to examine Exhibit 52 to watch the whole thing. It needs to be
              played in its entire context. Because this defendant has made
              a series of inconsistent statements, and that’s what those are,
              inconsistent statements. And they are self-serving. They

                                            10
             aren’t admissions that he has done something wrong. They are
             denials that he has done something wrong.

                    He has never stepped up during the statement to the
             police and said that she had her hand up, as the medical
             examiner said she must have had. He has not and did not tell
             the entire story during his statement to the police

                    ....

                     Every theory that they have put forward to their experts
             of how the gun discharged requires you to go through an
             exercise of coincidences, which, I submit to you, are unworthy
             of your consideration. Because he has never described to a
             single individual that he pulled that trigger. He says he may
             have. “Maybe I did.” He also says, “I didn’t do it. I never
             did it.” A series of inconsistent statements.

                     The medical examiner told you that the distance from
             the muzzle of the gun to the hand was close proximity. He did
             not say that it was contact. He said it was possible that it was
             contact. And that is a big difference. And even if it was
             contact, even if it was contact, it does not follow that the
             victim, Trina Coleman, caused the gun to discharge. That is
             something – that’s a leap and speculation and conjecture that
             [trial counsel] wants you to do. And the Judge has told you not
             to engage in conjecture and speculation.

                    This defendant did not tell the police that he was
             attempting to render the gun safe by lowering the hammer and
             squeezing the trigger. This defendant did not tell you that he
             was attempting to render the gun safely when Trina Coleman
             was attempting to push the gun away.

(Emphasis added).


At the omnibus hearing, Mr. Coleman’s trial counsel testified as follows regarding his

decision to not object to the foregoing comments:


                                           11
                     Well, the question, when to object to that, is a delicate
             one. Do you call it to the attention of the jury? Do you just go
             with the instruction – and that’s – that’s the thought process I
             engage in in any case, and I’m sure that was my thought
             process then. And just like the other, the record says what it
             says. That could be gleaned to be plain error under some, you
             know, some of the authority. Other of the authority said you
             read it in the context of what else was being done and instructed
             and the circumstances of the case. So that can go either way.


Based upon the explanation provided by Mr. Coleman’s trial counsel, the circuit court

reasoned and concluded as follows:

                    75.     The prosecuting attorney in closing and rebuttal
             made brief and fleeing reference to what [Mr. Coleman] had
             not told “you.” The court finds that argument to be regrettable,
             and does not approve of those statements. However, the issue
             before the court is whether or not trial counsel was ineffective
             for not objecting to those remarks, and whether appellate
             counsel was ineffective in failing to include those remarks as
             plain error in his petition for appeal.

                    76.     Although [Mr. Coleman’s] expert [on the
             adequacy of trial counsel] opined that he couldn’t see a
             strategic reason for not interposing an objection to those
             portions of the argument, trial counsel did proffer a strategic
             reason, and a sound one. As noted, the issue of objecting is a
             delicate one. [Mr. Coleman’s] expert agreed that it was often
             a sound choice to leave well enough alone. Trial counsel stated
             he did not want to object because, in essence, an objection ran
             the risk of emphasizing to the jury something that might
             damage his client. Even had counsel objected, and asked to
             approach the bench to discuss the objection in a side bar, the
             remedy would have been essentially for the court to tell the jury
             to disregard any remark that the prosecutor made about what
             the petitioner (did) or didn’t say.

                    77.    The court determines that it was not objectively
             deficient performance for counsel to make a strategic decision

                                            12
             not to object to those remarks. Further, the court believes
             that[,] had counsel objected, and the jury been instructed to
             disregard—even if the prosecutor had been admonished—the
             jury would still have convicted the petitioner of murder in the
             first degree. Therefore, neither prong of Strickland/Miller is
             satisfied.



             This Court has recognized that, “[r]emarks made by the State’s attorney in

closing argument which make specific reference to the defendant’s failure to testify,

constitute reversible error and defendant is entitled to a new trial.” Syl. pt. 5, State v.

Green, 163 W. Va. 681, 260 S.E.2d 257 (1979). In other words,

                    “[i]t is prejudicial error in a criminal case for the
             prosecutor to make statements in final argument amounting to
             a comment on the failure of the defendant to testify.” Syllabus
             Point 3, State v. Noe, 160 W. Va. 10, 230 S.E.2d 826 (1976),
             overruled on other grounds by State v. Guthrie, 194 W. Va.
             657, 461 S.E.2d 163 (1995).

Syl. pt. 4, State v. Murray, 220 W. Va. 735, 736, 649 S.E.2d 509, 510 (2007). Nevertheless,

“[a] judgment of conviction will not be reversed because of improper remarks made by a

prosecuting attorney to a jury which do not clearly prejudice the accused or result in

manifest injustice.” Syl. pt. 5, State v. Ocheltree, 170 W. Va. 68, 289 S.E.2d 742 (1982)

(emphasis added). Accord Syl. pt. 1, State v. Adkins, 209 W. Va. 212, 544 S.E.2d 914

(2001).



             The comments at issue did not clearly prejudice Mr. Coleman or result in

manifest injustice. When taken in context, the prosecuting attorney’s comments regarding

                                            13
what the defendant told or failed to tell the jury clearly were references to what Mr. Colman

had said in his recorded statements, statements that had been presented to the jury. This is

particularly true of the prosecutor’s statements made in response to Mr. Coleman’s trial

counsel’s argument encouraging the jury to consider exhibit 52, the recorded interview

with Mr. Coleman. The portion of the State’s rebuttal closing addressing exhibit 52 merely

urged the jury to consider the exhibit in full and pointed out that the recording depicted a

series of inconsistent comments made by Mr. Coleman. The State’s closing arguments

simply were not a comment on Mr. Coleman’s failure to testify.



              Moreover, the jury was properly instructed that

                     [t]he defendant Mark Thomas Coleman, has no duty to
              take the stand as a witness in his own behalf. And if he does
              not do so, this is not evidence, and you should draw no
              inference therefrom as to his guilt or innocence. You should
              entirely disregard and not discuss it.


The jury also was instructed that,

                      [n]othing said or done by the attorneys who have tried
              this case is to be considered by you as evidence of any fact.
              The opening statements that you heard last week, and the final
              arguments that you’re going to hear here in a few moments, are
              intended to help you in understanding the evidence and
              applying the law to the evidence but they are not themselves
              evidence. And accordingly, if any arguments, statements or
              remark of any of the lawyers is not based upon the evidence or
              the law as stated in my instructions, then you should disregard
              that statement, argument or remark.



                                             14
              Assuming arguendo that the jury might have misunderstood the arguments,

such a misunderstanding would have been cured by the instructions given, which plainly

directed the jury that no inference should be drawn from Mr. Coleman’s decision to not

testify and, further, that any comments made by counsel were not evidence, and any such

comments that were not based upon the evidence presented should be disregarded.



              This Court has observed that “[e]rrors involving deprivation of constitutional

rights will be regarded as harmless only if there is no reasonable possibility that the

violation contributed to the conviction.” Syl. Pt. 20, State v. Thomas, 157 W. Va. 640, 643,

203 S.E.2d 445, 449 (1974). As set out in the facts above, there was overwhelming

evidence of Mr. Coleman’s guilt. Thus, even if error had occurred, “there was no

reasonable possibility that the violation contributed to [Mr. Coleman’s] conviction.” Id.

Accordingly, we conclude that the circuit court correctly denied habeas relief on the basis

of ineffective assistance of trial counsel arising from trial counsel’s failure to object to the

State’s comments during closing arguments. Likewise, because we find there was no error

made at trial, we conclude that the circuit court also was correct in denying habeas relief

on the ground of ineffective assistance of appellate counsel based upon appellate counsel’s

failure to raise this issue on appeal.




                                              15
                                  B. Permissible Inference

              The jury sitting for Mr. Coleman’s criminal trial was instructed that “[i]ntent,

willfulness, deliberation, and malice may be inferred from the intentional use of a deadly

weapon under circumstances where the defendant does not have excuse, justification, or

provocation for his conduct.” (Emphasis added). In addition, during closing arguments,

the prosecuting attorney commented as follows:

              Ladies and gentlemen—and I submit to you that you do not
              even cock the hammer of a gun, especially one that contains
              hollow-point bullets, unless you intend to fire it. And the judge
              has told you that use of the firearm can be construed as
              evidence he intended to fire the gun.


              Mr. Coleman argues that this instruction allowing an inference on the

element of intent8 from his use of a firearm, along with the comment made by the

prosecutor referring to the inference during closing argument, improperly shifted the

burden of proof to Mr. Coleman on the issue of whether the shooting was accidental or

intentional. He claims that his trial counsel’s failure to address these issues was ineffective,




              8
                In State v. Jenkins, this Court explained, as follows, that the term “malice”
is often used as a substitute for “specific intent”:

                       We discussed the concept of malice in State v. Hatfield,
              169 W. Va. 191, 198, 286 S.E.2d 402, 407 (1982), and stated
              that it “is often used as a substitute for ‘specific intent [to] kill’
              or ‘an intentional killing.’” Citing State v. Starkey, 161 W. Va.
              517, 523, 244 S.E.2d 219, 223 (1978), and other cases.

Jenkins, 191 W. Va. 87, 92, 443 S.E.2d 244, 249 (1994) (footnote omitted).
                                          16
and his appellate counsel’s failure to raise this issue on appeal likewise was ineffective.

The State contends that the instruction was not infirm and the instructions, when read as a

whole, were proper. Therefore, trial counsel was not ineffective in failing to object, and

appellate counsel was not ineffective in failing to raise this issue on appeal. The State

additionally refers again to the trial court’s instruction stating that any comments made by

the attorneys were not evidence, and any such comments that were not based upon the

evidence presented should be disregarded.9



              In addressing the instruction in the habeas proceeding, the circuit court

concluded that it was a correct statement of the law. In reaching this conclusion, the circuit

court reasoned as follows:

                      62.     The instruction in question in this matter did not
              shift any burden of proof or persuasion to the petitioner, and
              did, in fact, inform the jury that it could infer malice from the
              use of the deadly weapon if, and only if, they found that the
              circumstances did not afford the defendant justification, excuse


              9
                  The referenced instruction read as follows:

                      [n]othing said or done by the attorneys who have tried
              this case is to be considered by you as evidence of any fact.
              The opening statements that you heard last week, and the final
              arguments that you’re going to hear here in a few moments, are
              intended to help you in understanding the evidence and
              applying the law to the evidence but they are not themselves
              evidence. And accordingly, if any arguments, statements or
              remark of any of the lawyers is not based upon the evidence or
              the law as stated in my instructions, then you should disregard
              that statement, argument or remark.
                                             17
              or provocation. Therefore, trial counsel was not ineffective in
              failing to object to a correct jury instruction, and it would have
              been futile to include this issue on appeal.



              Turning to our analysis of the instruction, we note that, pursuant to this

Court’s precedent,

                      [j]ury instructions are reviewed by determining whether
              the charge, reviewed as a whole, sufficiently instructed the jury
              so they understood the issues involved and were not misled by
              the law. A jury instruction cannot be dissected on appeal;
              instead, the entire instruction is looked at when determining its
              accuracy. The trial court, therefore, has broad discretion in
              formulating its charge to the jury, so long as it accurately
              reflects the law. Deference is given to the circuit court’s
              discretion concerning the specific wording of the instruction,
              and the precise extent and character of any specific instruction
              will be reviewed for an abuse of discretion.

Syl. pt. 15, State v. Bradshaw, 193 W. Va. 519, 524, 457 S.E.2d 456, 461 (1995). See also

Syl. pt. 4, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995) (“A trial court’s

instructions to the jury must be a correct statement of the law and supported by the

evidence. Jury instructions are reviewed by determining whether the charge, reviewed as

a whole, sufficiently instructed the jury so they understood the issues involved and were

not mislead by the law. A jury instruction cannot be dissected on appeal; instead, the entire

instruction is looked at when determining its accuracy. A trial court, therefore, has broad

discretion in formulating its charge to the jury, so long as the charge accurately reflects the

law. Deference is given to a trial court’s discretion concerning the specific wording of the



                                              18
instruction, and the precise extent and character of any specific instruction will be reviewed

only for an abuse of discretion.”).



              The unconstitutionality of shifting the burden of proof to a defendant as to

an element of a crime has long been recognized:

              In Sandstrom[ v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61
              L. Ed. 2d 39 (1979)], the United States Supreme Court held
              that . . . burden-shifting by presumption violates the Due
              Process Clause of the United States Constitution. 442 U.S. at
              520-21, 99 S. Ct. at 2457, 61 L. Ed. 2d at 48-49. It is
              unconstitutional to shift the burden of proving an element of a
              crime to the defendant. It lifts from the State the burden it must
              bear and then it puts the burden upon the accused, who
              constitutionally should not suffer under it. “[T]he Fourteenth
              Amendment’s guarantees prohibit a State from shifting to the
              defendant the burden of disproving an element of the crime
              charged.” Sandstrom, 442 U.S. at 527, 99 S. Ct. at 2461, 61
              L. Ed. 2d at 53. (Rehnquist, J., concurring).

State v. Miller, 197 W. Va. 588, 608, 476 S.E.2d 535, 555 (1996) (emphasis added).

Notably however, the instruction at issue in the case sub judice merely allowed the jury to

make an inference, it did not direct the jury to make a presumption. The difference between

an inference and a presumption was discussed in State v. Greenlief, 168 W. Va. 567, 285

S.E.2d 395 (1981), wherein the Court explained that,

              the United States Supreme Court struck down a state
              conviction which had utilized an instruction [providing “[t]he
              law presumes that a person intends the ordinary consequences
              of his voluntary acts.” Sandstrom, 442 U.S. at 513, 99 S. Ct.
              at 2453, 61 L. Ed. 2d 39 (emphasis added).] In discussing the
              problem with the use of the word “presume” in jury
              instructions, the Supreme Court said “[the jurors] were not told

                                             19
              that they had a choice, or that they might infer that conclusion;
              they were told only that the law presumed it. It is clear that a
              reasonable juror could easily have viewed such an instruction
              as mandatory.” Id. at 515, 99 S. Ct. at 2454[, 61 L. Ed. 2d 39.]
              In the instant action, however, the jury was told that there was
              “a permissible inference of fact” which was not mandatory or
              binding at all.

                     Further, and perhaps the most compelling, support for
              this resolution is found in the dictionary definition of these
              terms. “Presume” is defined as “to suppose to be true without
              proof.” Webster’s New Collegiate Dictionary 904 (1981).
              “Inference”, on the other hand, is defined as “the act of passing
              from one proposition, statement, or judgment considered as
              true to another whose truth is believed to follow from that of
              the former.” Id. at 585. The distinction between the two terms
              is apparent, and the permissible inference instruction does not
              serve to shift any of the burden of proof to the defendant.

Greenlief, 168 W. Va. at 567, 285 S.E.2d at 395. The instruction of which Mr. Coleman

complains uses the discretionary term “may,” and gives the jury a permissive choice as to

whether to apply the inference. Because the instruction allows a permissible inference, and

does not impose a mandatory presumption upon the jury, it does not shift the burden of

proof to the defendant. See id. (observing that a “permissible inference instruction does

not serve to shift any of the burden of proof to the defendant.”); Syl. pt. 2, State v.

Browning, 199 W. Va. 417, 485 S.E.2d 1 (1997) (“In a murder case, an instruction that a

jury may infer malice and the intent to kill where the State proves beyond a reasonable

doubt that the defendant, without lawful justification, excuse or provocation, shot the

victim with a firearm, does not unconstitutionally shift the burden of proof.”).




                                             20
              Moreover, this Court has expressly held that malice, intent, premeditation,

and deliberation may be inferred from the use of a deadly weapon under the proper

circumstances:

                     “‘In a homicide trial, malice and intent may be inferred
              by the jury from the defendant’s use of a deadly weapon, under
              circumstances which the jury does not believe afforded the
              defendant excuse, justification or provocation for his conduct.
              Whether premeditation and deliberation may likewise be
              inferred, depends upon the circumstances of the case.’ Point
              2, Syllabus, State v. Bowles, 117 W. Va. 217[, 185 S.E. 205
              (1936)].” Syllabus, State v. Johnson, 142 W. Va. 284, 95
              S.E.2d 409 (1956).

Syl. pt. 5, State v. Jenkins, 191 W. Va. 87, 443 S.E.2d 244 (1994). We have emphasized,

however, that such an instruction is not proper where evidence has been presented that

indicates the defendant had a legal excuse for his or her actions:

                     It is erroneous in a first degree murder case to instruct
              the jury that if the defendant killed the deceased with the use
              of a deadly weapon, then intent, malice, willfulness,
              deliberation, and premeditation may be inferred from that fact,
              where there is evidence that the defendant’s actions were
              based on some legal excuse, justification, or provocation. To
              the extent that the instruction in State v. Louk, 171 W. Va. 639,
              643, 301 S.E.2d 596, 600 (1983), is contrary to these
              principles, it is disapproved.

Syl. pt. 6, Jenkins, 191 W. Va. 87, 443 S.E.2d 244. As noted in Syllabus point 6 of Jenkins,

the Court disapproved an instruction that the Court in State v. Louk had found to be




                                             21
permissible.10 The Jenkins Court rejected the Louk instruction because it failed to include

qualifying language that informed the jury that it may apply the inference only “if the

evidence does not show that the defendant had an excuse, justification, or provocation.”

Jenkins, 191 W. Va. at 94, 443 S.E.2d at 251. The Jenkins Court explained that “[i]t is any

of these elements [(excuse, justification, or provocation)] that, if believed by the jury, will

reduce the homicide to something less than murder.” Id. We find the instruction given at

Mr. Coleman’s trial is similar to the instruction that was expressly approved in the case of

State v. Miller, 197 W. Va. at 606, 476 S.E.2d at 553:

                     “The Court instructs the jury that in a prosecution for
              murder, if the State proves beyond a reasonable doubt that the
              defendant, without lawful justification, excuse or provocation,
              fired a deadly weapon in the direction where a person was
              located then from such circumstances it may be inferred that
              the defendant acted with malice and the intent to kill.”




              10
                The instruction given in State v. Louk, 171 W. Va. 639, 643, 301 S.E.2d
596, 600 (1983), which was rejected by this Court in State v. Jenkins, 191 W. Va. 87, 443
S.E.2d 244, stated:

                     “The Court instructs the jury that to convict one of
              murder, it is not necessary that malice should exist in the heart
              of the Defendant against the deceased. If the jury believe from
              the evidence that the Defendant was guilty of shooting with a
              deadly weapon, the deceased, and of killing him, the intent, the
              malice and the willfulness, deliberation and premeditation may
              be inferred from the act, and such malice may not be directed
              against any particular person, but such as shown a heart
              regardless of social duty and fatally bent on mischief.”

Louk, 171 W. Va. at 643, 301 S.E.2d at 600.

                                              22
Id. at 606, 476 S.E.2d at 553. Like the Miller instruction, the instruction at issue in the

instant case properly instructed the jury that the inference was permissible “under

circumstances where the defendant does not have excuse, justification, or provocation for

his conduct.”



                The instant case also is comparable to Miller insofar as the defense theories

asserted by Mr. Coleman are similar to those asserted by the defendant in Miller. In this

regard, the Miller Court explained that whether such defenses are credible is for the jury to

determine:

                       [t]he defendant’s theory of the case was that the killing
                was either accidental, i.e., “I did not know the gun was loaded,”
                or incapacity due to intoxication, i.e., “I do not recall what
                happened because of the drugs and alcohol,” or self-defense.
                We agree with the defendant that these defenses are
                incompatible with malice. For example, a “malicious
                accident” is an oxymoron. However, it was up to the jury to
                determine whether any of these defenses were credible. We do
                not believe that merely telling a jury it may infer malice “if the
                State proves beyond a reasonable doubt that the defendant,
                without lawful justification, excuse or provocation fired a
                deadly weapon” is error of a constitutional dimension.

197 W. Va. at 609, 476 S.E.2d at 556.



                Mr. Coleman further complains that the permissible inference instruction

given to the jury improperly allowed it to infer deliberation and premeditation when other

West Virginia cases merely approved inferences related to intent and malice. As noted


                                               23
above, in Syllabus point 5 of Jenkins, 191 W. Va. 87, 443 S.E.2d 244, this Court held, in

relevant part, that “[w]hether premeditation and deliberation may . . . be inferred[] depends

upon the circumstances of the case.” (Quotations and citations omitted). Thus, when the

circumstance are proper, an instruction allowing the jury to infer premeditation and

deliberation likewise is proper. Based upon this holding, in order to establish that the

giving of such an instruction was objectionable, it was incumbent upon Mr. Coleman to

demonstrate that the instruction was not supported by the evidence presented. He has failed

to make such an argument to this Court.



              With respect to the permissible inference instruction itself, Mr. Coleman

lastly complains that the instruction did not explicitly provide that the State was required

to prove the absence of excuse, justification, or provocation beyond a reasonable doubt.11

He notes that such a requirement was included in instructions that were approved by this

Court in Miller, 197 W. Va. 588, 476 S.E.2d 535,12 and in State v. Browning, 199 W. Va.




              11
                  Mr. Coleman’s trial counsel also argued to the jury that “[y]ou got an
impaired guy committing a dumb, grossly negligent act. And it is a case of intent. Specific
intent. That has to be demonstration to you beyond a reasonable doubt.” Mr. Colman
complains that his counsel’s comment was ineffective insofar as it failed to specifically
state that the burden was upon the state to establish intent. However, as discussed below,
the instructions presented to the jury properly set out the State’s burden of proof.
              12
                   The instruction given in Miller provided,

                    [t]he Court instructs the jury that in a prosecution for
              murder, if the State proves beyond a reasonable doubt that the
                                            24
at 418, 485 S.E.2d at 2.13 Although the permissible inference instruction given in the

instant case, standing alone, did not expressly address the State’s burden of proof, the jury

was, however, instructed that, “[t]he burden is always upon the prosecution to prove guilt

beyond a reasonable doubt, and this burden never shifts to the defendant in a criminal case,

nor does the defendant ever have the burden or duty of calling witnesses or producing any

evidence.” The jury was further instructed, with respect to the excuse or justification that

was raised by Mr. Coleman as a defense, i.e., voluntary intoxication, that,

                     [a]lthough voluntary intoxication will never provide a
              legal excuse for the commission of a crime, the fact that a
              person may have been grossly intoxicated at the time of the
              commission of a crime may negate the existence of the specific
              intent of premeditation and deliberation, which is an element
              of the offense of murder in the first degree. So, the evidence
              that a defendant acted while in a state of gross intoxication is
              to be considered in determining whether or not the defendant
              acted with the specific intent of premeditation and deliberation.




              defendant, without lawful justification, excuse or provocation,
              fired a deadly weapon in the direction where a person was
              located then from such circumstances it may be inferred that
              the defendant acted with malice and the intent to kill.”

Id. at 606, 476 S.E.2d at 553 (emphasis added).
              13
                 In Syl. pt. 2 of State v. Browning, 199 W. Va. 417, 418, 485 S.E.2d 1, 2
(1997), the Court held: “[i]n a murder case, an instruction that a jury may infer malice and
the intent to kill where the State proves beyond a reasonable doubt that the defendant,
without lawful justification, excuse or provocation, shot the victim with a firearm, does not
unconstitutionally shift the burden of proof.” (Emphasis added).


                                             25
                     If the evidence in the case leaves you with a reasonable
              doubt that the accused was capable of forming the specific
              intent to commit the crime charged because of gross
              intoxication, then you should acquit the defendant of the
              offense of Murder of the First Degree and deliberate on the
              lesser included offenses of Murder of the Second Degree,
              Voluntary Manslaughter, and Involuntary Manslaughter.



              Because the permissible inference instruction did not shift the burden of

proof, and because the instructions, as a whole, correctly reflected the law as it pertains to

permissible inferences, the circuit court correctly rejected the claim of ineffective

assistance of counsel based upon trial counsel’s failure to object to the same. Likewise,

because the instructions were correct, appellate counsel was not ineffective in failing to

raise this issue on appeal.



              Finally, Mr. Coleman complains that the above quoted comments made by

the State during its closing improperly shifted the burden of proof. In addressing this issue,

the trial court found the prosecutor’s statements regarding the inference that may be drawn

from the use of a firearm were not improper:

                      62. [sic]     Trial counsel was not ineffective for
              failing to object to the prosecutor’s argument regarding this
              jury instruction and malice. Petitioner’s expert witness
              testified that it would have been improper for the assistant
              prosecutor to reread the instruction to the jury. In reviewing
              her argument as a whole, and placing the argument regarding
              the deadly weapon inference into context, it is clear that the
              prosecuting attorney was not urging the jury to ignore the
              court’s instruction. Her argument was correct: the jury may

                                             26
              infer certain of the mental elements of first degree murder from
              the use of a deadly weapon. However, her argument went on
              to press the point that the petitioner did not have excuse,
              justification, or provocation for his crime and further went on
              to stress that other evidence demonstrated that the petitioner
              acted with malice, deliberation, premeditation and intention.
              Additionally, the court notes that the jury was repeatedly
              instructed that what the lawyers said was not evidence.



              We have reviewed the complained of closing remarks by the State and we

agree with the circuit court’s conclusion that there was no error. The first portion of the

statement was simple hyperbole.      The second portion, while incomplete, was not a

misstatement of the law and did not shift the burden of proof to Mr. Coleman. Furthermore,

as we already have observed, the jury was advised that comments by the attorneys were

not evidence, and the jury was properly instructed as to the permissible inference at issue.

Thus, trial counsel was not ineffective by failing to object to the comments, and appellate

counsel was not ineffective in failing to appeal on this ground.



                            C. State v. Jackson Requirements

                     Pursuant to State v. Jackson, 171 W. Va. 329, 298 S.E.2d 866 (1982),

                      Protection of a defendant’s constitutional privilege
              against self-incrimination and right to assistance of counsel at
              pre-trial court-ordered psychiatric examinations, requires that
              a tape-recording of the entire interview be given to his and the
              government’s lawyer, and an in camera suppression hearing be
              held to guarantee that the court-ordered psychiatrist’s
              testimony will not contain any incriminating statements.


                                            27
                      A defendant cannot waive his state and federal
               constitutional privileges against self-incrimination and rights
               to assistance of counsel at court-ordered pre-trial psychiatric
               examinations except upon advice of counsel.


Syl. pts. 2 & 3, id.



               Prior to trial, Mr. Coleman was examined by the State’s psychiatric expert

Dr. Ralph Smith. The examination was audio recorded and Dr. Smith prepared a written

report of the examination. Dr. Smith testified to the contents of his report and the full

unredacted report was admitted into evidence. It appears that the report was not published

to the jury. Mr. Coleman’s trial counsel objected to the admission of the report based upon

hearsay, but did not object to Mr. Coleman’s statements contained therein or refer to

Jackson. The court denied counsel’s request for a limiting instruction based upon hearsay

evidence.



               In the habeas hearing before the circuit court, trial counsel explained that he

did not object to Mr. Coleman’s statements contained in the report because he believed

them to be beneficial to Mr. Coleman’s case. In fact, it appears that Dr. Smith’s report was

similar to Mr. Coleman’s own expert’s report, with only the conclusions being drawn

therefrom being substantially different.




                                              28
              Mr. Coleman argues to this Court that his trial counsel was ineffective by

failing to invoke the protections established in Jackson. According to Mr. Coleman, the

report contained

              unredacted statements made by Mr. Coleman during the
              evaluation interview. . . . The report stated that Mr. Coleman
              admitted that he and his wife “had a fight” and that she got a
              restraining order placed on him. The report further stated that
              [Mr. Coleman] would stay “up all night with his rifle pointed
              at his father’s house so they wouldn’t kill him.” The report
              also contained a statement from Mr. Coleman about the
              shooting. “He picked up the rifle. He pulled the hammer back
              on the rifle and his finger slipped and the gun went off. He
              said, ‘I looked up and that was it. She was laid back on the
              couch and it tore the side of her face off.’” The report further
              included the statement, “I didn’t know the gun was loaded,
              guess I didn’t get the bullets all out when I unloaded
              it.” . . . The report also contained a statement that Mr.
              Coleman “feels that he deserves to be punished for wrongs he
              has committed.” The report further contained a six page
              summary of the State’s case against Mr. Coleman, including
              information that the trial court had previously ruled was
              inadmissible pursuant to Rule 404(b). The report was replete
              with these prejudicial statements and admissions made by Mr.
              Coleman during the course of his interview with the State’s
              expert.


              The State responds that trial counsel was not ineffective insofar as he

provided strategic grounds for not pursuing Jackson protections. The State notes that Mr.

Cagle made a strategic decision to not object to any statements contained in Dr. Smith’s

report based upon his conclusion that the statements bolstered Mr. Coleman’s defense. The

State contends that such a strategic decision is reasonable and does not establish ineffective

assistance of counsel.

                                             29
              The circuit court found no error, reasoning that

                      51.    Trial counsel made an objectively reasonable,
              strategic decision not to object to the petitioner’s statements to
              Ralph Smith. As petitioner would not testify, the more times
              the consistent story that the petitioner had not meant to shoot
              his wife, but mistakenly or accidentally shot her in an effort to
              confront her and make her admit the conspiracy that he and
              only he could hear on the tapes14 was heard by the jury, and the
              more often the jury heard his ostensibly sincere words of
              remorse the more benefit accrued to the petitioner. It was not
              an unreasonable strategic decision to permit the statement of
              the petitioner to Dr. Smith into evidence. Moreover, as the
              statement was entirely consistent with what petitioner said to
              others, including his own evaluator, the admission of those
              statements did not affect the rest of the proceeding. Petitioner
              satisfies neither prong of the Strickland/Miller analysis.


              We agree with the circuit court’s reasoning.          Moreover, most of the

complained of comments were admitted through other testimony and evidence, thus Mr.

Coleman is unable to establish that the outcome of his trial would have been different had

trial counsel requested the protections of Jackson. See Syl. pt. 5, in part, Miller, 194 W. Va.

3, 459 S.E.2d 114 (requiring “a reasonable probability that, but for counsel’s

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

trial counsel explained during the habeas proceeding that his decision to not object to the

evidence was tactical, and calculated to have favorable details, that aligned with evidence




              14
                 There were numerous audio tapes admitted into evidence. Mr. Coleman
had alleged to several individuals that the tapes contained threats by Mrs. Coleman to harm
Mr. Coleman and/or members of his family. No one who listened to the tapes heard any
threats on them.
                                              30
provided by Mr. Coleman’s own psychiatric expert repeated to the jury. “Where a

counsel’s performance, attacked as ineffective, arises from occurrences involving strategy,

tactics and arguable courses of action, his conduct will be deemed effectively assistive of

his client’s interests, unless no reasonably qualified defense attorney would have so acted

in the defense of an accused.” Syl. pt. 21, State v. Thomas, 157 W. Va. 640, 203 S.E.2d

445 (1974). Accordingly, we find trial counsel was not ineffective in failing to invoke the

protections established in Jackson. Likewise appellant counsel was not ineffective in

failing to raise this issue on appeal.15



                    D. Absence of Elected or Acting Prosecuting Attorney

               During the course of Mr. Coleman’s trial, the Kanawha County Prosecuting

Attorney abruptly resigned. As a result, the following relevant exchange occurred outside

of the presence of the jury:

                         THE COURT:       . . . [T]he Prosecutor, came in the
               office this morning, announced that he was resigning, and he
               left. . . .

                     So right now that office does not have a Prosecuting
               Attorney effectively.       Legally there is no boss, no
               prosecutor. . . . You all function through your boss, okay? It




               15
                Mr. Coleman also complains, in passing, that Dr. Smith’s report contained
404(b) evidence that the court had ruled was inadmissible. Mr. Coleman does not identify
the specific 404(b) evidence of which he complains, or explain precisely how he was
prejudiced by its admission. Accordingly, this evidence will not be addressed.

                                            31
runs him down, not you all up.          You all can’t sign
indictments. . . .

      ....

       My thought was, well, possibly there could be some
basis for an objection to continuation of this case by you,
because she has no – Her [assistant prosecuting attorney
Reagan Whitmyer’s] authority to act as a prosecutor in this
county is now nonexistent.

      MR. CAGLE:           Oh, I ain’t going to do that.

      THE COURT:           Well, I didn’t think you were.

      MR. CAGLE:           I wouldn’t do that.

      THE COURT:           I’m just looking after the record.

      MR. CAGLE:           I understand.

     THE COURT:            You have any thoughts on it,
Reagan?

       MS. WHITMYER:               No, I would have to look
at the Code and see if we can still – I’m still an assistant,
sworn, whether I can still carry on my functions. And I
assume – well, I don’t know. I would have to look at it,
research it, and see if there is any precedent for it. But if
they’re willing to waive any objections that they have –

     MR. CAGLE:            I don’t know what objection I
would have.




                             32
The Court then instructed Mr. Cagle to speak with Mr. Coleman and Mr. Cagle asked

permission to discuss it with Mr. Coleman over the lunch hour. The trial court

granted permission. Later in the day, the following exchange took place:

                   THE COURT: Before I bring the jury out, Mr.
            Cagle, have you had a chance to discuss with Mr. Coleman
            the resignation of Mr. Charnock and the legal impact it
            may have on Mr. Holstein [Daniel Holstein, an assistant
            prosecuting attorney] and Ms. Whitmyer continuing with
            this case?

                  ....

                   MR. CAGLE:          The answer is: I really haven’t
            discussed it any further, I will tell you, because I don’t
            think it has any implication, and I’m not going to make
            any motion unless [Mr. Coleman] tells me to do that. And
            I think he will listen to me on that.

                   And I will tell you right here on the record, it ain’t
            got nothing to do with me, with this trial, Mr. Coleman, or
            any of that. I think that’s just political flap that I have no
            interest in, and it has no implication about this trial.

                  THE COURT:           Sounds like a pretty good
            waiver to me.

                   MR. CAGLE:       I intend for it. I’m not going to
            make that motion unless he just starts screaming at me to
            do it.

                 THE COURT:            What     do   you    think,    Mr.
            Coleman?

                  THE DEFENDANT:              I agree with Jim.


                                         33
The prosecutor resigned on a Friday. A new prosecuting attorney was sworn into office

the following Wednesday.



             In its habeas ruling, the circuit court concluded:

                    22.     The court finds that there was not error of
             constitutional dimension in continuing the trial after the elected
             prosecutor resigned. The court further finds that trial counsel
             was not ineffective in failing to move for a continuance or
             mistrial after the prosecutor resigned. Appellate counsel was
             not ineffective for failing to raise the resignation as an issue on
             appeal.

                     23.     The petitioner has failed to establish that there is,
             in fact, a constitutional right for a petitioner to be tried only
             when there is an elected or appointed prosecutor. While the
             office of prosecuting attorney is defined and circumscribed by
             statute, petitioner has provided no law, either from the State of
             West Virginia, or any other jurisdiction, pronouncing that a
             trial must cease when there is a mid-trial resignation (or death)
             of the prosecuting attorney.

                    24.    In the case at bar, there was a prosecuting
             attorney in and for Kanawha County when the petitioner was
             indicted, when the trial commenced, and when the jury verdict
             was returned.

                    25.     Moreover, defense counsel explained that
             strategically he was of the opinion that the trial was proceeding
             well. He was optimistic for a favorable verdict, and his client
             had been in jail for a year when the trial commenced.

                     26.    When asked about possible harm or benefit from
             moving for a mistrial—and having one granted—petitioner’s
             expert offered only vague speculation that having heard the
             state’s case the defense might have an advantage at retrial, or
             the change in prosecutor might have resulted in a plea offer.


                                              34
                     27.   There is no evidence that the absence of an
              elected prosecutor, or delaying the trial by continuance or
              mistrial—affected the result of these proceedings.

                     28.    As a stand-alone issue, the petitioner has failed
              in his burden of proof to demonstrate that continuing the trial
              during the two (at most) days between the resignation of one
              prosecutor and the appointment of another constituted a
              violation of any Constitutional right.

                      29.    As a sub-ground for the issue of ineffective
              assistance of trial counsel, petitioner has failed to satisfy the
              Strickland/Miller standard. It was a reasoned, strategic
              decision not to move for a mistrial or continuance. There is no
              indication the court would have granted such motion, if made.
              Although petitioner assails counsel for failing to research the
              issue before he waived it, the petitioner in the nine years since
              that mid-trial resignation has proffered no law in support of his
              position that the trial should have been interrupted by the
              resignation. Trial counsel was optimistic of a favorable verdict
              and his client had spent a year in jail. Without engaging in
              hindsight, and looking at the facts as they were at the time,
              counsel’s strategic decision was reasonable. Therefore, trial
              counsel’s performance was not objectively deficient.
              Moreover, there is nothing to suggest that a motion would have
              been granted. Finally, had trial counsel moved for either a
              continuance or mistrial, and had such motion been granted,
              there is nothing to suggest that petitioner would have received
              a more favorable outcome in a later trial. The evidence against
              the petitioner was substantial and overwhelming, and was not
              going to change.



              Mr. Coleman cites constitutional and statutory provisions establishing the

status of an elected county prosecuting attorney as a constitutional officer and setting out

the duties of the office. He then argues to this Court that the circuit court committed

structural constitutional error by allowing his trial to proceed when there was no Kanawha

                                             35
County elected or acting prosecuting attorney in office during the final five days of his nine

day trial. Mr. Coleman contends that the West Virginia Code allows for a duly elected

prosecuting attorney to hire assistant prosecuting attorneys and that assistant prosecuting

attorneys are not “public officers,” and any duties they perform remain subject to the

ultimate authority of the prosecutor. See Syl. pt. 3, State ex rel. Diva P. v. Kaufman, 200

W. Va. 555, 490 S.E.2d 642 (1997) (“‘The prosecuting attorney is a constitutional officer

who exercises the sovereign power of the State at the will of the people and he is at all

times answerable to them. W. Va. Const., art. 2, Sec. 2; art. 3, Sec. 2; art. 9, Sec. 1.’ Syl.

Pt. 2, State ex rel. Preissler v. Dostert, 163 W. Va. 719, 260 S.E.2d 279 (1979).”); State v.

Macri, 199 W. Va. 696, 704, 487 S.E.2d 891, 899 (1996) (“Although an assistant

prosecuting attorney ‘may perform the same duties as his [or her] principal,’ any authority

under this statute allowing an assistant to perform these duties remains subject to the

ultimate authority and control of the prosecutor.”), modified on other grounds by State v.

Zain, 207 W. Va. 54, 528 S.E.2d 748 (1999).16 Mr. Coleman argues that, because there

was no elected prosecuting attorney in Kanawha County during the final portion of his

trial, his case could not constitutionally go forward, and a mistrial should have been

declared or a continuance granted. He claims that his trial counsel’s failure to move for a




              16
                 Mr. Coleman notes that there is now a statute allowing for the appointment
of a temporary successor to fill the position for thirty days while a replacement is chosen
by the county commission. See W. Va. Code § 3-10-8 (LexisNexis 2018). There was no
such statute in effect at the time of Mr. Coleman’s trial.
                                              36
mistrial or adequately consult with him on this issue amounts to ineffective assistance. Mr.

Coleman contends that his counsel did not know the law regarding the effect of the absence

of an elected prosecuting attorney and did not seek to research the issue when given an

opportunity to do so.



               The State responds that the trial court did not commit structural constitutional

error by allowing Mr. Coleman’s trial to proceed in the absence of an elected or acting

prosecuting attorney, and trial counsel was not ineffective in failing to request a mistrial or

failing to consult with Mr. Coleman on this issue. The State notes that Mr. Coleman has

failed to provide any authority at any stage of this case over the last nine years that would

support his contention that a mid-trial resignation of an elected prosecutor should have

interrupted his trial.



               As the circuit court and the State have pointed out, Mr. Colman has failed to

provide any authority holding that a criminal trial in progress must not proceed further

upon the resignation of a county prosecuting attorney.17 Furthermore, at the habeas

hearing, trial counsel explained that his decision was tactical in that Mr. Coleman had

already spent a year in jail and counsel was optimistic about the verdict. Nevertheless, this




               17
                 The elected prosecutor was not personally prosecuting Mr. Coleman’s
case; therefore, his absence did not directly impact the proceedings.
                                              37
issue is resolved by Mr. Coleman’s affirmation, on the record, of his trial counsel’s decision

to not object to the trial going forward in the absence of an elected or appointed prosecuting

attorney currently holding office. As quoted above, the record demonstrates that the issue

was discussed in Mr. Coleman’s presence, and the circuit court asked Mr. Coleman for his

opinion on the matter. Mr. Coleman stated that he agreed with his trial counsel. Assuming

arguendo that trial counsel’s decision to proceed was erroneous, Mr. Colman’s ratification

of that decision on the record prevents him from now raising it as a ground for claiming

ineffective assistance of counsel.

              A party simply cannot acquiesce to, or be the source of, an error
              during proceedings before a tribunal and then complain of that
              error at a later date. See, e.g., State v. Crabtree, 198 W. Va.
              620, 627, 482 S.E.2d 605, 612 (1996) (“Having induced an
              error, a party in a normal case may not at a later stage of the
              trial use the error to set aside its immediate and adverse
              consequences.”); Smith v. Bechtold, 190 W. Va. 315, 319, 438
              S.E.2d 347, 351 (1993) (“[I]t is not appropriate for an appellate
              body to grant relief to a party who invites error in a lower
              tribunal.” (Citations omitted).).

Hanlon v. Logan Cty. Bd. of Educ., 201 W. Va. 305, 316, 496 S.E.2d 447, 458 (1997).

Accordingly, we find the circuit court did not err in concluding Mr. Coleman’s trial counsel

was not ineffective, and therefore denying his habeas petition, based upon on this ground.18




              18
                  Mr. Coleman did not argue to this Court that his appellate counsel was
ineffective in failing to raise this particular issue on appeal.
                                                 38
                                     E. 404(b) Evidence

              Mr. Coleman next argues that counsel was ineffective in failing to request an

omnibus pre-trial hearing, pursuant to State v. McGinnis, 193 W. Va. 147, 455 S.E.2d 516

(1994), to review 404(b) evidence the State intended to admit. The State responds that the

procedure utilized by the trial court satisfied the requirements for admitting 404(b)

evidence. We agree.



              Prior to voir dire, the State advised the trial court that it had given notice of

404(b) evidence. No 404(b) conference was requested by trial counsel; however, the trial

court subsequently instructed the State on how it should proceed with respect to the

voluminous 404(b) evidence:

                     [L]et’s do this. You may not even call some of these
              witnesses. . . . [A]s you’re calling these potential might-be
              404(b) witnesses, watch it, and when you’re going to get into
              – if you expect to get into a piece of might-be-404(b) material,
              would you please interrupt the examination of that witness and
              approach the bench, and I will make a determination then, right
              then and there as the witness is testifying, as to whether its
              admitted.


The trial proceeded in this manner. In denying Mr. Coleman’s habeas petition in relation

to this ground, the circuit court stated:

                     Before any witness testified as to prior difficulties or
              collateral bad acts, a hearing was held out of the presence of
              the jury. The court determined that the state sought to
              introduce the evidence to show that the shooting was not an
              accident, or mistaken, and that the petitioner had motive to kill

                                             39
             his wife. A limiting instruction was given at the time the
             witness testified and in the final charge. The court determined
             that the petitioner committed the act, and that the act was more
             probative than prejudicial. There was no error in the admission
             of 404(b) evidence from the witnesses.


             We find no grounds for reversing the circuit court’s denial of Mr. Coleman’s

petition for a writ of habeas corpus in connection with this issue. With respect to

conducting an in camera hearing to consider the admissibility of 404(b) evidence, this

Court in McGinnis held that,

                     Where an offer of evidence is made under Rule 404(b)
             of the West Virginia Rules of Evidence, the trial court,
             pursuant to Rule 104(a) of the West Virginia Rules of
             Evidence, is to determine its admissibility. Before admitting
             the evidence, the trial court should conduct an in camera
             hearing as stated in State v. Dolin, 176 W. Va. 688, 347 S.E.2d
             208 (1986). After hearing the evidence and arguments of
             counsel, the trial court must be satisfied by a preponderance of
             the evidence that the acts or conduct occurred and that the
             defendant committed the acts. If the trial court does not find
             by a preponderance of the evidence that the acts or conduct was
             committed or that the defendant was the actor, the evidence
             should be excluded under Rule 404(b). If a sufficient showing
             has been made, the trial court must then determine the
             relevancy of the evidence under Rules 401 and 402 of the West
             Virginia Rules of Evidence and conduct the balancing required
             under Rule 403 of the West Virginia Rules of Evidence. If the
             trial court is then satisfied that the Rule 404(b) evidence is
             admissible, it should instruct the jury on the limited purpose
             for which such evidence has been admitted. A limiting
             instruction should be given at the time the evidence is offered,
             and we recommend that it be repeated in the trial court’s
             general charge to the jury at the conclusion of the evidence.




                                           40
Syl. pt. 2, McGinnis, 193 W. Va. 147, 455 S.E.2d 516. This holding merely required the

circuit court to conduct an in camera hearing “[b]efore admitting the evidence.” Id.

McGinnis additionally references State v. Dolin, 176 W. Va. 688, 347 S.E.2d 208 (1986),

overruled on other grounds by State v. Edward Charles L., 183 W. Va. 641, 398 S.E.2d

123 (1990), in which this court held that

                      Before a trial court can determine that evidence of
              collateral crimes is admissible under one of the exceptions, an
              in camera hearing is necessary to allow a trial court to carefully
              consider the admissibility of collateral crime evidence and to
              properly balance the probative value of such evidence against
              its prejudicial effect.

Syl. pt. 3, Dolin, 176 W. Va. 688, 347 S.E.2d 208.19 Although the 404(b) hearing that was

held in McGinnis happened to be held pre-trial, there is nothing in the holdings of either

McGinnis or Dolin that requires such a hearing to always be held prior to trial. Because of

the voluminous amount of purported 404(b) evidence at issue, and the number of witnesses

from whom bits of such evidence might be presented, the circuit court utilized a method of

holding a separate in camera hearing prior to the admission of each portion of 404(b)

evidence.20 Mr. Coleman has not shown how he was prejudiced by this approach used by

the trial court. Accordingly, we find trial counsel was not ineffective in failing to request




              19
                The trial in State v. Dolin, 176 W. Va. 688, 347 S.E.2d 208 (1986),
preceded the adoption of Rule 404(b) in West Virginia.
              20
                Rule 404(b) was amended in 2014. Under the current version of the rule,
reasonable notice of crimes, wrongs, or other acts may be provided “during trial if the court,
for good cause, excuses lack of pretrial notice.” Rule 404(b)(2)(A) & (B).
                                             41
a pre-trial 404(b) hearing. Likewise, because we find no error, appellate counsel was not

ineffective in failing to raise this issue on appeal. Thus, the circuit court did not err in

denying Mr. Coleman’s habeas petition based on this issue.



                            F. Failure to Investigate Evidence

                Mr. Coleman contends that his trial counsel was ineffective in failing to

reasonably investigate and uncover evidence contained in the State’s discovery. He

identifies the evidence, which he characterizes as exculpatory evidence, 21 as the soot and

stippling on the victim’s finger. Mr. Coleman suggests that, if his counsel had hired an

expert to review the State’s photographs, or provided the photographs to his firearm expert,

the soot and stippling on the victim’s finger would have been apparent. Mr. Coleman avers

that, if his trial counsel had conducted a reasonable investigation and discovered the soot,

he would have been able to formulate a more complete theory of the defense based upon

this evidence. Moreover, he contends that, if the defense firearm expert, Mr. Roane, had

known of the soot and stippling, he could have incorporated into the tests he performed,

and the video he prepared, a scenario where the victim’s hand made contact with the barrel

of the rifle.




                21
                 Counsel for Mr. Coleman refers to the evidence as exculpatory. To the
extent that exculpatory evidence is generally used in the context of evidence to which the
State has a burden of disclosing, that term is not being used in the present context.
                                              42
              The State responds by noting that, during the habeas hearing, defense trial

counsel testified that he had sufficient time to make effective use of the soot and stippling

evidence when the same was discovered during trial. There were five days between the

discovery of the soot in the photograph and Mr. Roane’s testimony. At the habeas hearing,

trial counsel explained that he had time, including an entire weekend, to discuss the

evidence with Mr. Roane. Mr. Roane then addressed the soot in his testimony and opined

that its presence was consistent with a scenario where Mrs. Coleman pushed or swatted the

muzzle of the rifle causing it to discharge.



              The circuit court found the following:

                      84. As to the issue of the medical examiner’s belated
              discovery of a typographical error in his report saying there was
              no soot or stippling, when in fact there was, the court notes that
              trial counsel had five days between the testimony and the
              testimony of his expert. Trial counsel effectively cross-
              examined the medical examiner about his mistake. Trial
              counsel testified at the omnibus evidentiary hearing that he had
              ample time to consult with his expert, and that the expert had
              ample time to consider that information. In fact, trial counsel
              testified that his expert’s theory had been that something came
              into contact with the gun-such as the victim’s hand-and that the
              gun discharged. The belated revelation confirmed that theory.

                     85. The only harm proffered by habeas counsel is that
              the expert didn’t redo his video. However, trial counse1
              explained that the video couldn’t be redone to conform with the
              medical examiner’s testimony, because, essentially, no one was
              going to swat the gun away with live ammunition, it was simply
              too dangerous.



                                               43
                      86. The court finds that petitioner’s trial counsel made a
              strategic decision not to seek a continuance or a mistrial.
              Counsel believed the case was going as well as could be
              expected, his client was in jail, and Counsel had five days
              (including two full weekend days) to consult with and prepare
              his expert. He testified at the omnibus hearing that he did not
              need more time to address that issue. Therefore, the court finds
              it was not objectively deficient performance to fail to ask for a
              continuance or mistrial. Moreover, the court finds there is
              nothing to indicate that a continuance or mistrial would have
              been granted, as the remedy would have been to give counsel
              time to prepare: which counsel had. The petitioner fails to
              satisfy the Strickland/Miller Standard for ineffective assistance
              of counsel.


              We find the circuit court’s reasoning is sound. Moreover, it is worth noting

that, while Mr. Coleman complains that Mr. Roane did not prepare a video demonstration

of a scenario with a victim batting the rifle muzzle, he does not direct the Court’s attention

to any portion of the record wherein the expert stated that no such video was prepared due

to time constraints, or that any reason at all was given for the absence of such a video

demonstration. During the habeas proceeding, trial counsel testified that he had sufficient

time to discuss this evidence with Mr. Roane, and the evidence actually provided additional

support for the theory of how the gun discharged that Mr. Roane had already developed.

In light of these facts, we find trial counsel’s performance was not “deficient under an

objective standard of reasonableness.” Syl. pt. 5, in part, State v. Miller, 194 W. Va. 3, 459




                                             44
S.E.2d 114. Thus, the circuit court did not err in denying Mr. Colman’s habeas petition in

relation to this ground.22



                             G. Toxicology Testing and Results

              Mr. Coleman next contends that his trial counsel was ineffective in failing to

object, on Confrontation Clause grounds, to the results of a toxicology report being

admitted by someone other than the technician who performed the analysis. See Syl. pt. 6,

State v. Mechling, 219 W. Va. 366, 633 S.E.2d 311 (2006) (“Pursuant to Crawford v.

Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the Confrontation

Clause contained within the Sixth Amendment to the United States Constitution and

Section 14 of Article III of the West Virginia Constitution bars the admission of a

testimonial statement by a witness who does not appear at trial, unless the witness is

unavailable to testify and the accused had a prior opportunity to cross-examine the

witness.”). Specifically, Mr. Coleman complains about testimony by the State’s medical

examiner, Dr. Boiko, regarding toxicology testing and results of the victim’s blood, when

Dr. Boiko did not perform the toxicology testing. Mr. Coleman asserts that, because Dr.




              22
                In connection with this issue, Mr. Coleman makes no challenge regarding
appellate counsel.

                                            45
Boiko did not perform the toxicology testing, his counsel was unable to effectively cross

examine the expert.23




              23
                At trial, the State inquired of the State’s medical examiner, Dr. Boiko, in
relevant part as follows:

                    Q.    Did your office personnel perform tests to
              determine whether there were any controlled substances in
              Mrs. Coleman’s system at the time that she was shot?

                     A.     Yes. We performed toxicological study. It was
              negative. It means no alcohol, no drugs in the body.

                   Q.    Okay.        No    alcohol,    no    marijuana,    no
              methamphetamine?

                     A.     No.

                     Q.     Nothing like that. No controlled substances of
              any kind?

                     A.     No.

On cross-examination, trial counsel queried:

                     Q.     Did you do the toxicology?

                     A.     No.

                    Q.      That’s not something you as the pathologist
              would do, is it?

                     A.     No. But I received the report from toxicology
              lab.

                     Q.     So that the jury distinguishes that, the toxicology
              is done by others?

                                             46
              The State responds by arguing that the medical examiners testimony

regarding the toxicology report was neither exculpatory nor incriminatory and, even if the

Confrontation Clause was violated, such error was harmless beyond a reasonable doubt.



              The circuit court’s order denying Mr. Coleman’s petition for a writ of habeas

corpus addresses this issue as follows:

                     87.    As to the issue of Dr. Boiko and his testimony
              regarding the toxicology reports from the victim’s blood, this
              Court does not find that trial counsel was ineffective for failing
              to object to such testimony. Moreover, the Court does not
              believe such testimony was a Crawford violation.

                      88.    Dr. Boiko’s testimony was not an unqualified
              success for the state with his revelation about his mistake as to
              stippling. Moreover, as to the toxicology reports and the
              absence of any methamphetamine (or other substance) in the
              blood, Dr. Boiko could not pinpoint precisely whether the tests
              were on transfused blood or admission blood, and admitted that
              the results could differ between the two sources. Therefore, the
              suggestion was before the jury that perhaps the victim had used
              some substance but it was not revealed because the testing was
              done on transfused blood.[24] It is noteworthy that [this] is the
              only suggestion that the victim may have used a substance on
              the evening of her death. The victim was at work, went to
              McDonald’s, stopped by another store and went home where
              she was shot in less than a half hour after her stop at
              McDonald’s. . . . No one testified that she was impaired, and



                    A.      That’s correct.
              24
                 However, it should be noted that, during his testimony, Dr. Boiko
ultimately found a notation on the report expressly stating that the blood tested was
“admission blood,” i.e., blood that was extracted upon the victim’s admission and prior to
any transfusions.

                                             47
             the petitioner did not state to the police, his father, his neighbor,
             the 911 operator, or either psychiatrist that the victim had
             ingested drugs or that the victim had grabbed or swatted the
             gun. The testimony about the blood was neither exculpatory
             of nor incriminatory of the petitioner. It was not objectionable,
             and even if it were, the testimony was harmless beyond all
             doubt. . . .25 In this case, Boiko’s testimony about the victim’s
             blood did not inculpate the petitioner and did not result in a
             violation of any constitutional right.

                    89.     It is rampant speculation to believe that calling a
             toxicologist would have revealed anything other than the fact
             the victim did not have any substances in her blood. And the
             testimony about the blood results did not violate any of the
             petitioner’s constifutiona1 rights.

(Footnotes added).



             Assuming, for the sake of argument, that trial counsel should have objected

on Confrontation Clause grounds to Dr. Boiko’s testimony regarding the results of a

toxicology analysis that he did not, himself, perform, we find any resulting error arising

therefrom to be harmless beyond a reasonable doubt.




             25
               The circuit court’s order contained the following quotation from State v
Flack, 232 W. Va. 708, 715-16, 753 S.E. 2d 761, 768-69 (2013):

             Of critical import is that nothing in Dr. Kaplan’s testimony
             implicated the defendant in the homicide, linked him to the
             crimes charged, or made it more likely or less likely that the
             defendant      committed      the    murder       of     Matthew
             Flack. . . . Accordingly, we find the error raised to be harmless
             beyond a reasonable doubt.

             (Citations omitted).
                                              48
              This Court has recognized that “[e]rrors involving deprivation of

constitutional rights will be regarded as harmless only if there is no reasonable possibility

that the violation contributed to the conviction.” Syl. pt. 20, State v. Thomas, 157 W. Va.

640, 203 S.E.2d 445 (1974). Furthermore, “In a criminal case, the burden is upon the

beneficiary of a constitutional error to prove beyond a reasonable doubt that the error

complained of did not contribute to the verdict obtained.” Syl. pt. 3 State v. Frazier, 229

W. Va. 724, 735 S.E.2d 727 (2012).



              We find any error that may have resulted from trial counsel’s failure to object

to Dr. Boiko’s testimony regarding the toxicology report is harmless beyond a reasonable

doubt because the issue of whether or not Mrs. Coleman, the victim of the crime, had

controlled substances in her system was not relevant under the facts of this case. See, e.g.,

People v. Rutterschmidt, 55 Cal. 4th 650, 661, 147 Cal. Rptr. 3d 518, 526, 286 P.3d 435,

441-42 (2012) (holding that any Confrontation Clause violation in admitting toxicology

analysis of victim’s blood constituted harmless error); Commonwealth v. Montrond, 477

Mass. 127, 138, 75 N.E.3d 9, ___ (2017) (“Assuming without deciding that it was error to

admit the testimony [pertaining to the toxicology report], we agree that any such error was

harmless beyond a reasonable doubt.”); State v. Ortega, 327 P.3d 1076, 1084-85 (N.M.

2014) (“[W]e hold that it was harmless error to admit the testimonial statements included

in the toxicology report.”).

                                             49
                 Furthermore, while Mr. Coleman asserts to this Court that the toxicology of

the victim was a critical issue and would have supported the accident theory of the defense,

he provides no specific explanation of how the evidence supported his theory that the

shooting was an accident or, in the alternative, that Mrs. Coleman batted at the rifle causing

it to discharge. Furthermore, as the State has pointed out, there was no other evidence

presented at trial that would have substantiated that the victim was using controlled

substances or alcohol on the night she was killed. Finally, we note that the evidence

presented in this case overwhelmingly supported the jury’s verdict of guilt. Therefore we

find no error in the circuit court’s denial of Mr. Coleman’s petition for habeas corpus as to

this ground.26



                      H. References to Mr. Coleman’s Pretrial Incarceration

                 Mr. Coleman next argues that his counsel was ineffective in failing to object

to testimony and evidence referring to Mr. Coleman’s pre-trial incarceration. In support

of his argument, Mr. Coleman complains of two specific portions of the testimony. First,

Dr. Thomas Martin, the defense psychiatrist, stated, during his direct examination by trial

counsel, that he “got involved with Mr. Coleman’s case through a consult through a local




                 26
                  Mr. Coleman has not asserted that his appellate counsel was ineffective in
failing to raise this particular issue on appeal.
                                               50
physician . . . who had assessed him, I believe in the jail once he had been arrested, last

March 2006.” Next, the lead investigating officer, Detective Snuffer, who was called by

the State, testified during his direct examination regarding how he obtained Mr. Coleman’s

handwriting samples. He testified that he “met with Mr. Cagle and Mr. Coleman and his

investigator at the jail,” and “[w]hile we were at the jail, I dictated three letters to Mr.

Coleman, and Mr. Coleman - - each word that I dictated, he wrote onto a piece of paper.”

Mr. Coleman additionally complains that the report of the State’s psychiatric expert

contained references to Mr. Coleman being “shackled” during an interview. Mr. Coleman

contends that his counsel’s failure to object meets the Strickland/Miller test for ineffective

assistance because his counsel has given no strategic reason for not objecting and because

the jury could have inferred that the court had found his theory of an accidental shooting

unpersuasive or that the court believed he was too dangerous to release. Mr. Coleman

relies on United States v. Fakih, 424 F. App’x 202 (4th Cir. 2011), and asserts that the

Fourth Circuit has found remarks about a defendant’s pre-trial custody to be clearly

improper; however, Fakih stands for a slightly different proposition. The Fourth Circuit in

Fakih commented that it had “previously held that a prosecutor’s questions about a

defendant’s pre-trial custody are “clearly improper[.]” Id., 424 F. App’x at 205. In this

case, there is no allegation that the prosecutor asked questions about Mr. Coleman’s pre-

trial custody. Rather, the information was spontaneously disclosed by witnesses during

their answers to proper questions, or was contained in a report.



                                             51
              In response to Mr. Coleman’s argument, the State merely quotes the circuit

court’s order and asserts that the order should be affirmed. The circuit court concluded:

                      65. This court disagrees with the petitioner’s claim that
              such references to pre-trial incarceration were “numerous.”
              There were a mere handful of such references (fewer than five,
              as the court counts) in the record of a trial which spans nearly
              one thousand pages. Moreover, although the court does not
              approve of any reference to such pre-trial incarceration, the
              court must note that those references do not unambiguously
              refer to the petitioner being in jail, but rather refer to meetings
              with petitioner and his lawyer “at” the jail, or taking
              handwriting exemplars “at” the jail. The court believes that it
              is likely the jury believed that at least at the time of any specific
              event the petitioner was incarcerated. However, this court does
              not find that those references to the petitioner’s pre-trial
              incarceration rise to the level of a constitutional violation,
              reversible error, or ineffective assistance of counsel.

                     66. The references were not numerous. The court
              believes that it would come as no surprise to jurors that an
              individual who shot his wife in the face would be arrested and
              jailed. The court further finds that the evidence in this case
              against petitioner, while hotly disputed as to the mental
              elements, was ample and the references to pre-trial
              incarceration did not affect the verdict. That is, the jury would
              have convicted the petitioner of murder in the first degree even
              absent such references.

                       67.    While perhaps it was objectively deficient
              performance for counsel to fail to object to such references at
              trial, the court finds that petitioner fails to satisfy the “but for”
              prong of the Strickland/Miller analysis. As noted above,
              merely identifying a mistake by counsel does not equate to
              ineffective assistance. The mistake must have affected
              substantial rights of the petitioner. Had petitioner’s counsel
              objected to those references and the jury heard no reference to
              pre-trial incarceration, the petitioner would still have been
              convicted of murder in the first degree. Therefore, petitioner


                                               52
              fails in his burden and this contention affords the petitioner no
              relief in habeas corpus.


              The circuit court found that trial counsel’s failure to object was harmless

beyond reasonable doubt. We agree. As demonstrated in the statement of facts above, see

supra Section I, there was significant evidence of Mr. Coleman’s guilt. This evidence

established that Mr. Coleman did not dispute that he shot and killed his wife. Rather he

claimed that the shooting was an accident. However, the State presented ample evidence

to show that the shooting was not accidental, including evidence that Mr. Coleman was

knowledgeable about firearms, that Mr. and Mrs. Coleman’s relationship had been violent

at times, and that Mr. Coleman was angry with Mrs. Coleman and had threatened to kill

her. Based upon this evidence, we find no “reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceedings would have been different.” Syl. pt. 5,

in part, Miller, 194 W. Va. 3, 459 S.E.2d 114. Accordingly, we find the circuit court did

not err in refusing to grant Mr. Coleman’s petition for a writ of habeas corpus based upon

this issue.



                                             IV

                                     CONCLUSION

              After reviewing each of the issues raised by Mr. Coleman, we have found no

grounds upon which to find his trial counsel was ineffective. Thus, we similarly find no



                                             53
error in the May 26, 2017 order of the Circuit Court of Kanawha County denying Mr.

Coleman’s petition seeking a writ of habeas corpus. Accordingly, we affirm that order.



                                                                              Affirmed.




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