Jason C. Anderson, Petitioner Below, Petitioner
v.
Karen Pszczolkowski, Warden, Northern Correctional Center, Respondent Below, Respondent
(Marion County15-C-215)
MEMORANDUM DECISION
Petitioner
Jason C. Anderson, by counsel Jason Wingfield, appeals the
June 7, 2017, order of the Circuit Court of Marion County
that denied his petition for post-conviction habeas corpus
relief. Respondent Karen Pszczolkowski, Warden, Northern
Correctional Center, by counsel, Robert L. Hogan, filed a
response in support of the habeas court's order. On
appeal, petitioner argues that the habeas court abused its
discretion in failing to find (1) that certain evidence
entered at trial was evidence of "bad acts" under
Rule 404(b) of the West Virginia Rules of Evidence, and (2)
that the trial court denied petitioner's constitutional
rights by refusing to employ the requisite protections for
the admission of the Rule 404(b) evidence.
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 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 June
23, 2007, 9-1-1 dispatched emergency medical personnel to
petitioner and his girlfriend's residence for a medical
crisis involving the couple's twelve-week-old infant. On
arrival, the emergency personnel found a severely
malnourished infant, who appeared to be deceased, on a urine
soaked mattress. The infant had lesions on his body, a
rotting finger, severe diaper rash, and injuries indicating
he had been struck with a heavy object. The emergency
personnel took the infant to the hospital in an ambulance;
however, neither petitioner nor his girlfriend, Jennifer
Meacham, asked to ride with the infant, nor did they go to
the hospital. At the hospital, the infant was pronounced
dead.
In October 1, 2007, a grand jury indicted petitioner for
murder of a child by a parent, guardian, or custodian by
maliciously and intentionally and/or by knowingly allowing
another person to maliciously and intentionally cause the
death of a child under his or her care, custody or control by
failing or refusing to supply such child with necessary food,
clothing, shelter, or medical care . . . in violation of West
Virginia Code § 61-8D-2(a) and -2(b).
The
trial court appointed Harry Montoro and Katica Rible as
petitioner's counsel.[1]
Petitioner's
four-day trial commenced on April 7, 2010. Dr. Zia Sabel,
Deputy Chief Medical Examiner for the State of West Virginia,
testified that the cause of the infant's death was severe
caretaker maltreatment-negligence. The State also called Ms.
Meacham[2] who, according to the facts set forth in
petitioner's appeal of his underlying conviction,
testified that
[petitioner] was extremely controlling of her, that he had
been abusive towards her, that he would not let her go
anywhere unless he accompanied her, and that he became upset
when he learned that she was pregnant and accused her of
cheating on him. After their baby was born, the [petitioner]
disavowed being the baby's biological father and told her
that the baby was not his responsibility. [Petitioner] also
ordered his grandfather, Denzil Anderson, to take care of the
baby notwithstanding that Mr. Anderson was elderly, legally
blind and in poor health. Afterwards, [petitioner] placed the
baby's crib in Mr. Anderson's bedroom.
Ms. Meacham admitted that the baby's hygiene was not
properly maintained, and that the baby would sometimes be
left in the same diaper for days at a time. She related that
[petitioner] would not permit her to change the baby's
diaper, and when she did try to care for the baby,
[petitioner] would "grab [her] by [her] arm and throw
[her] back on the bed and tell [her], no, you're not
going." Ms. Meacham admitted that both she and
[petitioner] knew that the baby was covered with urine and
feces, and that the foam pad in his crib was soaked with
urine.
Ms. Meacham also admitted that she and [petitioner] did not
properly feed the baby and that there were occasions when
they did not feed him for two or three days at a time. Ms.
Meacham did offer, however, that occasionally [petitioner]
would prop a bottle on a blanket so the baby could feed
himself.
Ms. Meacham testified that she wanted to take the baby to a
doctor, but that [petitioner] refused and that she was afraid
to disobey him because of his abusive behavior. One example
of [petitioner's] abusive behavior was that when the baby
would cry, [petitioner] would become angry, that "[h]e
would shake the crib so hard that it would scare [the baby]
and make him scream louder. Or he would hit him." When
asked to describe how he hit the baby, Ms. Meacham stated
"[s]ometimes fist, sometimes open hand."
When asked about the [Child Protective Services'] visits,
Ms. Meacham testified that both she and [petitioner] tried to
either avoid the [Child Protective Services'] workers or
would wrap the baby in a blanket to prevent the [Child
Protective Services'] workers from seeing the condition
of his skin. None of the [Child Protective Services']
investigators who saw the baby ever requested that the
blanket be removed so they could examine him.
On the date of the baby's death, Ms. Meacham testified
that [petitioner's] adoptive father woke her and told her
that the baby felt cold to the touch. When she checked the
baby, Ms. Meacham believed that the baby was dead. When she
told [petitioner] and said they should call [9-1-1],
[petitioner] refused, saying that instead they first needed
to clean the house. As part of this house cleaning, Ms.
Meacham and [petitioner] put toys around the baby's crib
and, after cleaning the house for three or four hours, called
[9-1-1]. While waiting for emergency responders, [petitioner]
instructed ...