Anderson v. Pszczolkowski

          (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 ...