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Kevin C. v. Ballard

Supreme Court of West Virginia

November 22, 2017

Kevin C., Petitioner Below, Petitioner
v.
David Ballard, Warden, Mt. Olive Correctional Complex, Respondent Below, Respondent

         Fayette County 14-C-17

          MEMORANDUM DECISION

         Petitioner Kevin C., by counsel Scott E. Johnson, appeals the Circuit Court of Fayette County's March 9, 2016, order denying his petition for writ of habeas corpus. [1] Respondent David Ballard, Warden, by counsel Gordon L. Mowen II, filed a response. Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in finding that he received effective assistance of counsel.

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

         In May of 2010, petitioner was indicted on 126 counts of various felony sexual offenses involving his nine-year-old stepdaughter. Ultimately, all but twenty-four counts of first-degree sexual assault were dismissed. Petitioner's case proceeded to trial in April of 2011. At the conclusion of a two-day trial, a jury convicted petitioner of the remaining twenty-four counts of first-degree sexual assault. Petitioner was later effectively sentenced to not less than 150 years nor more than 600 years in the penitentiary and fined $5, 000 for each conviction. Petitioner subsequently appealed his convictions and sentences, which were affirmed by this Court. See State v. Kevin C., No. 11-1233, 2012 WL 5857311 (W.Va. Nov. 19, 2012)(memorandum decision).

         In January of 2014, petitioner filed a pro se petition for writ of habeas corpus in the circuit court. Following appointment of counsel, petitioner filed an amended petition, which raised the grounds of ineffective assistance of trial counsel and prosecutorial misconduct. The circuit court held an omnibus evidentiary hearing. Following this hearing, the court entered its "Order Denying and Dismissing Petition." It is from this 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).

         On appeal, petitioner contends that he received ineffective assistance of counsel. In support of this argument, petitioner alleges four distinct errors: first, trial counsel's failure to object to the State's rebuttal closing argument during which it referred to petitioner as a "coward" and referenced his "cowardice;" second, counsel's failure to object to the State's leading questions directed to the victim; third, counsel's failure to object to an expert's testimony containing hearsay; and fourth, counsel's failure to call an alibi witness. Petitioner also asserts cumulative error. Each assertion will be addressed in turn.

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).

         Petitioner argues that the State's four characterizations of petitioner as a "coward" and two references to petitioner's "cowardice" in its rebuttal closing argument were improper and outside the bounds of fair advocacy. Thus, trial counsel's failure to object to these references amounts to ineffective assistance of counsel. Petitioner asserts that the failure to object was "sufficiently egregious" that there is a reasonable probability that, had objections been made, the result of the trial would have been different. Petitioner argues that the prejudice is particularly likely given that the comments occurred during the State's rebuttal closing argument, leaving no opportunity for the petitioner to respond and leaving these comments as some of the last heard by the jury prior to their deliberations.

         At petitioner's omnibus hearing, petitioner's trial counsel explained that he did not object to these comments because he felt that the jury, "having reviewed that statement, knew that [petitioner] could not very well be a coward if he sat up here, took the stand in his own defense and was subjected to intense cross-examination[.]" Further, trial counsel's experience led him to conclude that "jumping up, - what they call a springbok attorney, ...


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