                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

Barry W.,

Petitioner Below, Petitioner                                                       FILED

                                                                                  June 24, 2013
                                                                             RORY L. PERRY II, CLERK
vs) No. 12-0795 (Mercer County 10-C-294)                                   SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA

David Ballard, Warden,
Respondent Below, Respondent


                               MEMORANDUM DECISION
       Petitioner Barry W.,1 by counsel Thomas J. Gillooly, appeals the circuit court’s order
denying his petition for writ of habeas corpus. Respondent Warden Ballard, by counsel Thomas
W. Rodd, filed his response to which petitioner replied.

       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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        Petitioner was tried in a four-day trial, beginning December 7, 2001, and the jury found
him guilty of thirty-one counts of first degree sexual assault and seventy-three counts of sexual
abuse by a custodian. At trial, petitioner was represented by court-appointed counsel, Susan E.F.
Henderson and Thomas L. Fuda. Petitioner’s wife, Jennifer W., the mother of the alleged abused
children, was charged but was not tried with petitioner.2 The matters were handled as
consolidated cases until trial. The children, D.H., St.H., Sh.H., and M.H., were ages ten, eight,
six and four, respectively, at the time of the August 1, 2001, pre-trial hearing, approximately two
years after the alleged criminal conduct.

       Prior to trial, the children spoke with Phyllis Hasty, a therapist. The defense filed a
motion to suppress Ms. Hasty’s testimony, but that motion was denied by the circuit court
approximately one month prior to trial. Petitioner claimed that the indictment failed to describe
conduct with sufficient specificity to give him notice of the charges, but the trial court overruled
those objections.

       1
        Because the victims in the underlying case were minors, we follow our traditional
practice in cases involving sensitive facts and use only petitioner’s last initial. See State v.
Edward Charles L., 183 W.Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990).
       2
        Jennifer W. was represented by the Office of the Public Defender and pled guilty to four
counts of child neglect resulting in injury.
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       During trial, Ms. Hasty was called as the State’s expert therapist. She testified about the
alleged victims, although none of the victims testified. Petitioner claims that the State failed to
produce and “apparently destroyed” letters written by petitioner, but the circuit court allowed
testimony by prison informants regarding the letters’ contents, which included references to the
alleged crimes. Petitioner states that the defense did not question or challenge the assistant
prosecutor’s representations about what the State did with the letters themselves. Petitioner also
claims that the children had been sexually abused by their natural father before petitioner met
them.

        After his conviction, petitioner was sentenced to imprisonment for indeterminate terms of
fifteen to thirty-five years on each of the thirty-one counts of first degree sexual assault and
indeterminate terms of ten to twenty years on each of the seventy-three counts of sexual abuse by
a custodian. Four of the fifteen to thirty-five year counts and four of the ten to twenty year counts
were ordered to run consecutively.

        Petitioner’s trial counsel, Susan E.F. Henderson, appealed his conviction to this Court in
State v. Barry W., Appeal No. 022194, which was refused by this Court. A petition for writ of
habeas corpus was filed on November 30, 2005, setting forth seven grounds: 1) ineffective
assistance of counsel relative to the testimony of Phyllis Hasty and Dr. George Wallace, who
examined at least two of the children; 2) violation of the right of confrontation relative to the
testimony of Ms. Hasty and Dr. Wallace; 3) ineffective assistance of counsel related to a portion
of Ms. Hasty’s testimony; 4) ineffective assistance of counsel related to defense counsel eliciting
testimony regarding petitioner’s prior conviction for manslaughter without a cautionary or
limiting instruction; 5) ineffective assistance of counsel related to defense counsel eliciting
testimony regarding Jennifer W.’s conduct with the children, the termination of her parental
rights, and failing to request a cautionary instruction; 6) due process related to the use of
jailhouse inmates; and 7) ineffective assistance of counsel based on the failure to properly
investigate or conduct discovery. That habeas petition included a Losh checklist with a number
of additional grounds checked. The circuit court denied the petition on January 20, 2006, without
holding a hearing. Petitioner’s counsel, David C. Smith, appealed the circuit court’s denial of
habeas relief to this Court. This Court denied that appeal by order entered September 7, 2006. On
July 17, 2006, David Smith filed another appeal of the denial of the writ of habeas corpus at
Barry W. v. McBride, Appeal No. 061992. That petition was refused by this Court on September
7, 2006.

        On September 13, 2007, petitioner filed a federal habeas petition, No. 1:07-cv-00567 in
the District Court for the Southern District of West Virginia. That action is still pending and is
stayed pending the resolution of the instant action. Petitioner’s current counsel, Mr. Gillooly,
was appointed by Judge R. Clarke VanDervort in the federal habeas proceeding. Judge
VanDervort stayed the federal habeas action to allow petitioner to exhaust all of his grounds for
habeas relief.
        When petitioner filed his addendum to his petition for writ of habeas corpus in the circuit
court on July 13, 2010, the circuit court appointed Mr. Gillooly to represent petitioner in this
matter. A status hearing was held on July 21, 2010, and an omnibus hearing was set for May 4,
2011. Following the conclusion of discovery, the circuit court conducted an evidentiary hearing

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during which both of petitioner’s trial counsel testified. Due to discovery issues, the final
omnibus hearing was rescheduled for August 22, 2011. The deposition testimony of former
Assistant Prosecutor, Deborah Garton, who tried the case, and State Police Sargent Melissa
Clemons, the principal investigator, were admitted into evidence. The video deposition of Dr.
Bobby Miller, petitioner’s expert, was also received into evidence. Petitioner argued that Dr.
Miller’s testimony further undermined the trial testimony of the State’s expert play therapist, Ms.
Hasty. Following the hearing, the circuit court entered a seventy-page order denying petitioner’s
requested habeas relief. It is from that order that petitioner appeals.

       This Court reviews appeals of circuit court orders denying habeas corpus relief under 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 petition for appeal, petitioner asserts three assignments of error. Petitioner first
asserts that the circuit court wrongly concluded that the State was not obligated to produce letters
in which petitioner allegedly confessed and wrongly concluded that trial counsel were not
ineffective, despite their failure to demand production of the letters and their failure to move to
prevent hearsay testimony by jailhouse witnesses. The circuit court thoroughly analyzed the legal
standards set forth in State v. Osakalumi, 194 W.Va. 758, 461 S.E.2d 504 (1995), and
determined that it does not apply in this matter. The circuit court detailed its reasons for this
finding, including the fact that the evidence destroyed in this matter was not exculpatory
evidence and the letters written by petitioner were found to be exceptions to the hearsay rule
because they contained admissions to his crimes.

        Petitioner’s second assignment of error is that the circuit court wrongly failed to conclude
that petitioner’s trial counsel were ineffective, despite their failure to object to the admission of
Ms. Hasty’s opinion that petitioner was guilty and that the alleged child victims were credible.
Petitioner alleges that counsel also failed to challenge the lack of foundation for other prejudicial
hearsay testimony presented in the guise of expert opinion. Petitioner claims that “play therapist”
Ms. Hasty was permitted to offer opinion testimony regarding the truthfulness of the child
victims’ out-of-court statements. In its order, the circuit court addresses both the foundation for
Ms. Hasty’s testimony and petitioner’s contention that Ms. Hasty testified regarding the
“ultimate issue.” As set forth by the circuit court, the trial record showed that the two older
children were taken to Ms. Hasty for therapy purposes by the foster parents when the children
were acting out in inappropriate ways. Arguments were presented by the defense in support of
suppressing Ms. Hasty’s testimony, but the trial court denied the same. The circuit court also
determined that counsel were not surprised by Ms. Hasty’s testimony and were amply prepared
to cross-examine her.

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        Petitioner’s final assignment of error is that counsels’ performance was constitutionally
ineffective, requiring that petitioner’s conviction be vacated. In support of this argument,
petitioner contends that trial counsel’s failure to raise the Osakalumi issue or to properly object
to Ms. Hasty’s testimony amounts to ineffective assistance of counsel. Osakalumi, supra.
Petitioner also argues that permitting the State to present oral testimony from prison informants
regarding letters allegedly written by petitioner was tantamount to a confession by petitioner.
The following standard is applied to claims concerning ineffective assistance of counsel:

       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). The circuit court noted the
distinction between the Osakalumi matter involving exculpatory evidence and the present
proceeding where petitioner’s letters were clearly incriminating. The circuit court set forth
additional reasons why the Osakalumi decision does not apply. Moreover, the subject of the
letters was undoubtedly a statement against petitioner’s interest. Petitioner has failed to meet his
burden of establishing ineffective assistance of counsel under this standard.

        Having reviewed the circuit court’s “Order” entered on April 26, 2012, we hereby adopt
and incorporate the circuit court’s well-reasoned findings and conclusions as to the assignments
of error raised in this appeal. The Clerk is directed to attach a copy of the circuit court’s order to
this memorandum decision.

       For the foregoing reasons, we affirm.

                                                                                           Affirmed.

ISSUED: June 24, 2013

CONCURRED IN BY:

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




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