                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Charlton A. Horton, Jr.,                                                         FILED
Petitioner Below, Petitioner
                                                                             October 20, 2017
vs) No. 16-1084 (Mineral County 06-C-75)                                       RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
David Ballard, Warden,

Mount Olive Correctional Complex,

Respondent Below, Respondent



                               MEMORANDUM DECISION
        Petitioner Charlton A. Horton, Jr., by counsel Nicholas T. James, appeals the November
1, 2016, order of the Circuit Court of Mineral County that denied his amended petition for writ
of habeas corpus subjiciendum following his conviction by a jury of first degree murder.
Petitioner was sentenced to life in prison without the possibility of parole. David Ballard,
Warden, Mount Olive Correctional Complex, by counsel Shannon Frederick Kiser, filed a
response in support of the circuit court’s order. Petitioner submitted a reply.

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

        On October 4, 1995, petitioner was convicted by a jury in the Circuit Court of Mineral
County of the first degree murder of Arthur Samuel Smith, Jr., who was beaten to death with a
blunt instrument in the early morning hours of January 8, 1994, in Keyser, West Virginia.1
Petitioner and his co-defendant were identified as the perpetrators by a witness who, from the
upstairs window of his apartment, saw two black men in dark bulky coats striking something on
the ground with a stick or club near a church. The witness called police who, when they arrived,
discovered the victim’s body. Petitioner and his co-defendant were spotted in the area near the
crime scene and were picked up by police because they matched the eyewitness’s description of
the suspects.

        Police tested articles of clothing that were worn by petitioner and his co-defendant that
night. Trooper H.B. Myers of the West Virginia State Police conducted serological testing on a

       1
         See State v. Horton, 203 W. Va. 9, 506 S.E.2d 46 (1998) (affirming the murder
convictions of petitioner and his co-defendant).


                                                1

piece of flesh that was found on the baseball cap that petitioner’s co-defendant was wearing and
it was found to have the same genotype as the victim. Serological testing by Myers on
petitioner’s jeans was inconclusive, but Brian Wraxall of the Serological Research Institute in
California identified Polymerase Chain Reaction (“PCR”) markers that were consistent with the
victim’s DNA from blood found on the jeans and that occur in approximately one in 6.25 million
persons in the Caucasion population.2

       Petitioner’s direct appeal was denied by this Court on June 22, 1998.3 See n.1. On August
29, 2005, petitioner filed a pro se petition for writ of habeas corpus. Though counsel was
appointed, no amended petition was filed. The circuit court denied petitioner’s pro se request for
habeas relief. This Court then refused petitioner’s appeal of the same.

        On July 19, 2006, petitioner filed a second petition for writ of habeas corpus alleging that
the DNA evidence presented at his murder trial proved that he did not kill the victim, and that
Trooper Myers falsified evidence and presented false testimony about the serology and DNA test
results. The circuit court entered an order appointing counsel to file an amended petition and
ordered that “the Court will only consider the sole issue of whether evidence was falsely
acquired or presented during the Petitioner’s trial.” See In re Renewed Investigation of State
Police Crime Laboratory, Serology Division (“Zain III”), 219 W. Va. 408, 633 S.E.2d 762
(2006).

       On November 30, 2006, petitioner, by counsel, filed an amended habeas petition on the
same grounds. On December 6, 2006, the State filed a response.4

        Meanwhile, petitioner, along with his co-defendant, filed a joint motion for DNA testing
of petitioner’s boots or pants and the co-defendant’s cap, pursuant to West Virginia Code § 15­
28-14. They argued that an independent DNA test had never been conducted in this case; that
there was possible contamination of the serological evidence when it was done in 1994; that
testing procedures may not have been appropriately followed when the testing was done; that
Trooper Myers is alleged to have provided false serology evidence in another, unrelated criminal
case; and that DNA testing is relevant to their claims that they are innocent of the crime for
which they were convicted. The State filed a response opposing the request for DNA testing.

       2
           The victim was white.
       3
          At trial, in addition to the serological and DNA evidence, the State introduced evidence
that, a few nights before the murder, petitioner’s co-defendant had asked another man if he could
borrow his baseball bat; that the man agreed; and that the bat went missing the next day. (The
murder weapon was never found). The evidence also revealed that, a few months before the
crime, petitioner’s co-defendant had threatened the victim because the victim had kissed the co­
defendant’s teenage sister on the cheek. See Horton, 203 W. Va. at 14, 506 S.E.2d at 51.
       4
         Petitioner’s habeas petition and that of his co-defendant were merged for purposes of an
evidentiary hearing.



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        A hearing was conducted on August 22, 2016, approximately ten years after petitioner
filed his second request for habeas relief. Trooper Myers was the only witness. By order entered
October 31, 2016, the circuit court denied petitioner’s request for habeas relief and for DNA
testing. This appeal followed.

       Our review of the circuit court’s order denying petitioner’s petition for a writ of habeas
corpus is governed by the following standard:

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

Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W. Va. 375, 701 S.E.2d 97 (2009).

         In his first assignment of error, petitioner argues that the circuit court erred in failing to
grant him habeas relief. He contends that he demonstrated that Trooper Myers presented false
serology evidence at trial and that he was entitled to a new trial. In syllabus point four of Zain
III, this Court held as follows:

               A prisoner against whom a West Virginia State Police Crime Laboratory
       serologist, other than Fred Zain, offered evidence and who challenges his or her
       conviction based on the serology evidence is to be granted a full habeas corpus
       hearing on the issue of the serology evidence. The prisoner is to be represented by
       counsel unless he or she knowingly and intelligently waives that right. The circuit
       court is to review the serology evidence presented by the prisoner with searching
       and painstaking scrutiny. At the close of the evidence, the circuit court is to draft
       a comprehensive order which includes detailed findings as to the truth or falsity of
       the serology evidence and if the evidence is found to be false, whether the
       prisoner has shown the necessity of a new trial based on the five factors set forth
       in the syllabus of State v. Frazier, 162 W.Va. 935, 253 S.E.2d 534 (1979).

219 W. Va. at 409, 633 S.E.2d at 763.5


       5
         In 1993, an investigation revealed that Fred Zain, a serologist in the State Police Crime
Lab, had “intentionally and systematically [given] inaccurate, invalid, or false testimony or
reports” in criminal prosecutions. Zain III, 219 W. Va. at 410, 633 S.E.2d at 764 (citing In
Matter of West Virginia State Police Crime Laboratory (“Zain I”), 190 W.Va. 321, 438 S.E.2d
501 (1993)). As a result of this investigation, this Court concluded that, as a matter of law, any
evidence offered by Zain in any criminal prosecution was presumptively

       “invalid, unreliable, and inadmissible in determining whether to award a new trial
       in any subsequent habeas corpus proceeding. The only issue in any habeas corpus
(continued . . .)
                                                  3

       Petitioner argues that he satisfied the five factors set forth in Frazier such that his habeas
request should have been granted and a new trial ordered. In the syllabus of Frazier, this Court
held:

       “A new trial will not be granted on the ground of newly-discovered evidence
       unless the case comes within the following rules: (1) The evidence must appear to
       have been discovered since the trial, and, from the affidavit of the new witness,
       what such evidence will be, or its absence satisfactorily explained. (2) It must
       appear from facts stated in his affidavit that plaintiff was diligent in ascertaining
       and securing his evidence, and that the new evidence is such that due diligence
       would not have secured it before the verdict. (3) Such evidence must be new and
       material, and not merely cumulative; and cumulative evidence is additional
       evidence of the same kind to the same point. (4) The evidence must be such as
       ought to produce an opposite result at a second trial on the merits. (5) And the
       new trial will generally be refused when the sole object of the new evidence is to
       discredit or impeach a witness on the opposite side.” Syllabus Point 1, Halstead v.
       Horton, 38 W.Va. 727, 18 S.E. 953 (1894).

162 W.Va. at 935-36, 253 S.E.2d at 534-35. Importantly, this Court has declared that “all five
elements must be satisfied.” Id. at 941, 253 S.E.2d at 537.

        First, petitioner argues that Trooper Myers falsified serology evidence and that this
evidence was discovered after the trial, satisfying the first factor in Frazier. In support of this
claim, petitioner argues that, at the habeas hearing, Trooper Myers failed to definitively state that
he did not provide false evidence at petitioner’s trial; that, according to a report cited in Zain III,
Trooper Myers, an assistant to Zain, was one of the serologists who reported and testified to
“nonexistent serology testing;” and that Myers’s denial at petitioner’s habeas hearing that he has
read any of the Zain opinions issued by this Court is simply not believable and is, instead,

       proceeding would be whether the evidence presented at or prior to trial or prior to
       the entry of a guilty plea, independent of the forensic evidence presented by Zain,
       would have been sufficient to support the verdict or plea.”

Zain III, 219 W. Va. at 410, 633 S.E.2d at 765 (quoting Zain I, 190 W.Va. at 340, 438 S.E.2d at
520.).

         Subsequently, this Court issued In Matter of West Virginia State Police Crime Lab(“Zain
II”), 191 W. Va. 224, 445 S.E.2d 165 (1994), regarding whether serologists other than Fred Zain
falsified evidence in criminal prosecutions as Zain had done. We concluded that, although there
were occasional minor errors made, they “did not significantly compromise the criminal
prosecutions in which the serologists offered evidence.” Zain III, 219 W. Va. at 411, 633 S.E.2d
at 765. This Court thus concluded that serology reports prepared by Crime Lab employees other
than Zain “‘are not subject to the invalidation and other strictures contained in” Zain I. Zain III,
219 W.Va. at 411, 633 S.E.2d at 765 (quoting Zain II, 191 W.Va. at 225, 445 S.E.2d at 166, at
syl. pt. 3, in part.) Zain III resulted from yet another investigation into allegations of nonexistent
serology test results and trial testimony by serologists other than Fred Zain. See discussion, infra.


                                                  4

illustrative of Myers’s lack of credibility in the present case. Additionally, petitioner argues that
Trooper Myers admitted that there was “insufficient documentation” and that he should have
taken more notes during the course of testing in this case; that he intentionally failed to take
proper notes in order to conceal fabricated test results; and that, in essence, the California lab
was able to achieve positive test results only after Myers “obtained a second vial of the victim’s
post[]mortem blood from the Medical Examiner’s offices and had in his possession the
Petitioner’s jeans for seven (7) months. Petitioner submits that Trooper Myers contaminated the
evidence and covered it up by not making copious notes and records.” Finally, petitioner
references, as he did below, a federal magistrate judge’s findings in an unrelated habeas case that
Myers gave false testimony in the underlying trial in that matter and that this is evidence that
petitioner gave false testimony in petitioner’s criminal trial. See Thomas v. Trent, Warden, Civil
Action No. 2:98-0912 (S.D.W.Va., April 28, 1999).6

         Notwithstanding petitioner’s argument to the contrary, we conclude that petitioner failed
to satisfy the first factor of Frazier—that is, that falsified serological evidence was discovered
after trial. First, petitioner failed to show that the evidence was fabricated or contaminated or
even that the procedures used in the original testing were invalid or unreliable. Petitioner’s
arguments are highly speculative and tenuous and not based in fact. See State ex rel. Burdette v.
Zakaib, 224 W. Va. 325, 332, 685 S.E.2d 903, 910 (2009) (stating that “[a] defendant simply
cannot make unsupported and blanket allegations and expect a circuit court to grant him a new
trial.”). Also speculative is petitioner’s claim that Trooper Myers’s testimony was not credible.
The circuit court expressly found that Myers’s testimony was both credible and believable. The
determination of Trooper Myers’s credibility as a witness in petitioner’s habeas proceeding was
properly made by the circuit court, which “had the opportunity to observe, first hand, the
demeanor of the witness.” Miller v. Chenoweth, 229 W. Va. 114, 121, 727 S.E.2d 658, 665
(2012). See also State v. Cox, 171 W. Va. 50, 53, 297 S.E.2d 825, 828 (1982) (declaring that “[i]t
is fundamental that the credibility of witnesses is a matter for the trier of fact to determine.”).

        Not only did petitioner fail to show that the serological evidence was false, but he also
failed to prove that the evidence was discovered after trial. Petitioner does not dispute that
Trooper Myers’s report and findings were the subject of cross-examination at the criminal trial,
which occurred following the investigation into the misconduct by Zain and resulting opinions
by this Court. See Zain I and Zain II. Nor does he dispute that, at trial, Myers testified regarding
the potential for contamination and cross-contamination of the evidence, as did Mr. Wraxall,
who separately tested the evidence while being observed by a third, independent expert.
Therefore, the serological evidence that is the subject of this appeal was not discovered after trial
and, thus, fails to satisfy the first of the five factors set forth in Frazier.

        Having failed to satisfy one of the Frazier factors, petitioner thus failed to establish that
he is entitled to a new trial. See Frazier, 162 W. Va. at 941, 253 S.E.2d at 537 (declaring that “all

       6
          Upon de novo review of the magistrate judge’s findings and recommendations, the
United States District Court for the Southern District of West Virginia refused to adopt the same
and, instead, denied habeas relief. See Thomas v. Trent, Warden, Civil Action No. 2:98-0912
(S.D.W.Va., August 17, 1999).


                                                 5

five elements must be satisfied.”). Nonetheless, we briefly note that petitioner also failed to
satisfy the Frazier factor requiring that “the evidence must be such as ought to produce an
opposite result at a second trial on the merits.” Id. at 935, 253 S.E.2d at 535, at syllabus, in part.
Even if the serological evidence were disregarded as false or tainted, an opposite result at a
subsequent trial would not be assured. An eyewitness placed two black men matching
descriptions of petitioner and his co-defendant at the place where the victim’s body was found by
police after being beaten to death with a blunt instrument. The men were seen repeatedly striking
something on the ground with a club or a stick. Although the murder weapon was never
recovered, a few nights before, petitioner’s co-defendant had asked another man if he could
borrow his baseball bat. The man agreed and the bat went missing the next day. The evidence
also showed that, a few months before the murder, petitioner’s co-defendant had threatened the
victim because the victim had kissed the co-defendant’s sister on the cheek. Further, serological
testing of a piece of flesh that was found on the baseball cap that petitioner’s co-defendant was
wearing was found to have the same genotype as the victim. Given this evidence, the Frazier
factor requiring that the evidence must produce an opposite result at a subsequent trial is also not
satisfied. Thus, for this additional reason, the circuit court did not err in denying petitioner’s
requests for habeas relief and a new trial.

        In a related assignment of error, petitioner argues that the circuit court erred in failing to
review the serology evidence with “searching and painstaking scrutiny” and in failing to draft a
comprehensive order with detailed findings and conclusions, all of which is required under
syllabus point four of Zain III. 219 W. Va. at 409, 633 S.E.2d at 763. Petitioner posits that the
circuit court simply “rubber stamped” the order prepared by the State, which he contends is
“general” and failed to address in detail how the serology evidence was not false. We find no
error.

         This Court has determined that a circuit court’s adoption of a party’s proposed order does
not constitute reversible error. State ex rel. Cooper v. Caperton, 196 W. Va. 208, 214, 470
S.E.2d 162, 168 (1996). “Rather, ‘even when the trial judge adopts proposed findings verbatim,
the findings are those of the court and may be reversed only if clearly erroneous.’ Anderson v.
City of Bessemer City, N.C., 470 U.S. 564, 572, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518, 527
(1985).” Cooper, 196 W. Va. at 214, 470 S.E.2d at 168. Indeed, the “clear message” is thus: “As
an appellate court, we concern ourselves not with who prepared the findings for the circuit court,
but with whether the findings adopted by the circuit court accurately reflect the existing law and
the trial record.” Id.

       In this case, the circuit court’s order denying petitioner the requested relief adequately
addressed and resolved the issues raised by petitioner, including his primary claim that Trooper
Myers was not a credible witness and that he fabricated evidence and presented false testimony
at the criminal trial. We, therefore, find petitioner’s assignment of error in this regard to be
without merit.
       We next address petitioner’s argument that the circuit court erred in denying his request
for additional DNA testing of his jeans and jacket under West Virginia Code § 15-2B-14.7
       7
         West Virginia Code § 15-2B-14 (a) provides that “[a] person convicted of a felony
currently serving a term of imprisonment may make a written motion before the trial court that
(continued . . .)
                                                  6

Petitioner contends that independent testing has never been conducted at his request and
reiterates that Trooper Myers falsified the evidence on petitioner’s jeans as “it was only after
Trooper Myers obtained the victim’s post[]mortem blood and had Petitioner’s jeans in his
possession for seven (7) months that Mr. Wraxall in California obtained conclusive results after
performing the same tests as Trooper Myers.”

       This Court has made clear that its ruling in Zain III

       does not afford every petitioner with alleged serology issues the right to additional
       DNA testing. In order to have the right to additional DNA testing, the evidence
       sought to be tested must likely produce an opposite result if a new trial were to
       occur, and the evidence cannot be such that its purpose is merely to impeach or
       discredit a State’s witness.

Burdette, 224 W. Va. at 327, 685 S.E.2d at 905, at syl. pt. 6, in part. Furthermore,




entered the judgment of conviction for performance (DNA) testing.” Furthermore,

       (f) The court shall grant the motion for DNA testing if it determines all of the
       following have been established:
       (1) The evidence to be tested is available and in a condition that would permit the
       DNA testing requested in the motion;
       (2) The evidence to be tested has been subject to a chain of custody sufficient to
       establish it has not been substituted, tampered with, replaced or altered in any
       material aspect;
       (3) The identity of the perpetrator of the crime was, or should have been, a
       significant issue in the case;
       (4) The convicted person has made a prima facie showing that the evidence
       sought for testing is material to the issue of the convicted person’s identity as the
       perpetrator of or accomplice to, the crime, special circumstance, or enhancement
       allegation resulting in the conviction or sentence;
       (5) The requested DNA testing results would raise a reasonable probability that,
       in light of all the evidence, the convicted person’s verdict or sentence would have
       been more favorable if DNA testing results had been available at the time of
       conviction. The court in its discretion may consider any evidence regardless of
       whether it was introduced at trial;
       (6) The evidence sought for testing meets either of the following conditions:
       (A) The evidence was not previously tested;
       (B) The evidence was tested previously, but the requested DNA test would
       provide results that are reasonably more discriminating and probative of the
       identity of the perpetrator or accomplice or have a reasonable probability of
       contradicting prior test results[.]



                                                 7

       [i]n accordance with West Virginia Code § 15-2B-14 (2004), the West Virginia
       Legislature provides a defendant the absolute right to ask for DNA testing;
       however, it does not provide a defendant the absolute right to have DNA testing
       conducted.

Burdette., 224 W.Va. at 327, 685 S.E.2d at 905, at syl. pt. 7.

        Petitioner failed to demonstrate that the evidence sought to be tested would likely
produce an opposite result if a new trial were conducted. As previously established, petitioner’s
theory that Trooper Myers fabricated or otherwise contaminated serology evidence is highly
speculative as it is largely derived from reports and findings in cases unrelated to his own. He
further failed to show that the testing conducted by Myers and presented at trial were falsified or
otherwise unreliable or invalid. Accordingly, we find no error in the circuit court’s conclusion
that petitioner was not entitled to additional DNA testing.

       Finally, we address petitioner’s argument that the circuit court failed to timely hear his
habeas petition challenging the serology evidence. This Court has held that

       [a] circuit court that receives a petition for a writ of habeas corpus from a prisoner
       against whom a West Virginia State Police Crime Laboratory serologist, other
       than Fred Zain, offered evidence, and whose request for relief is grounded on the
       serology evidence, is to hear the prisoner’s challenge in as timely a manner as is
       reasonably possible.

Zain III, 219 W. Va. at 410, 633 S.E.2d at 764, at syl. pt. 5. Petitioner filed his amended petition
for habeas relief on November 30, 2006. However, a hearing was not conducted until August 22,
2016. Petitioner argues that his constitutional right to due process was violated by this
unreasonable delay.

        On its face, petitioner’s habeas request was not heard in a timely manner. However,
petitioner fails to point to any facts suggesting that either the State or the circuit court caused the
delay or that he was somehow prejudiced as a proximate result thereof. Cf. State ex rel. Daniel v.
Legursky, 195 W. Va. 314, 325, 465 S.E.2d 416, 427 (1995) (finding that “petitioner eventually
got his day in court and we are not told of any prejudice suffered by petitioner that was
proximately caused by the delay” where habeas hearing was held six years after trial counsel
learned of jury tampering in underlying criminal trial). Given the circuit court’s conclusion that
petitioner’s habeas grounds were without merit, we find that any error caused by the delay in the
proceedings, if any error occurred, was harmless.

       For the foregoing reasons, we affirm.

                                                                                            Affirmed.


ISSUED: October 20, 2017



                                                  8

CONCURRED IN BY:

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




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