Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Coleman v. J.T. Binion

Supreme Court of West Virginia

June 7, 2019

Mark T. Coleman, Petitioner Below, Petitioner
v.
J.T. Binion, Superintendent, Huttonsville Correctional Center, Respondent Below, Respondent

          Submitted: January 9, 2019

          Appeal from the Circuit Court of Kanawha County Honorable Charles E. King, Judge Civil Action No. 14-P-583

          Kevin D. Mills Shawn R. McDermott Mills McDermott, PLLC Martinsburg, West Virginia Attorneys for the Petitioner

          Patrick Morrisey, Attorney General Scott E. Johnson, Assistant Attorney General Charleston, West Virginia Attorneys for the Respondent

         SYLLABUS BY THE COURT

         1. "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).

         2. "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." Syllabus point 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

         3. "In deciding ineffective . . . assistance [of counsel] claims, a court need not address both prongs of the conjunctive standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995), but may dispose of such a claim based solely on a petitioner's failure to meet either prong of the test." Syllabus point 5, State ex rel. Daniel v. Legursky, 195 W.Va. 314, 465 S.E.2d 416 (1995).

         4. "In reviewing counsel's performance, courts must apply an objective standard and determine whether, in light of all the circumstances, the identified acts or omissions were outside the broad range of professionally competent assistance while at the same time refraining from engaging in hindsight or second-guessing of trial counsel's strategic decisions. Thus, a reviewing court asks whether a reasonable lawyer would have acted, under the circumstances, as defense counsel acted in the case at issue." Syllabus point 6, State ex rel. Daniel v. Legursky, 195 W.Va. 314, 465 S.E.2d 416 (1995).

         5. "A judgment of conviction will not be reversed because of improper remarks made by a prosecuting attorney to a jury which do not clearly prejudice the accused or result in manifest injustice." Syllabus point 5, State v. Ocheltree, 170 W.Va. 68, 289 S.E.2d 742 (1982).

         6. "Jury instructions are reviewed by determining whether the charge, reviewed as a whole, sufficiently instructed the jury so they understood the issues involved and were not misled by the law. A jury instruction cannot be dissected on appeal; instead, the entire instruction is looked at when determining its accuracy. The trial court, therefore, has broad discretion in formulating its charge to the jury, so long as it accurately reflects the law. Deference is given to the circuit court's discretion concerning the specific wording of the instruction, and the precise extent and character of any specific instruction will be reviewed for an abuse of discretion." Syllabus point 15, State v. Bradshaw, 193 W.Va. 519, 524, 457 S.E.2d 456, 461 (1995).

         7. "'"In a homicide trial, malice and intent may be inferred by the jury from the defendant's use of a deadly weapon, under circumstances which the jury does not believe afforded the defendant excuse, justification or provocation for his conduct. Whether premeditation and deliberation may likewise be inferred, depends upon the circumstances of the case." Point 2, Syllabus, State v. Bowles, 117 W.Va. 217[, 185 S.E. 205 (1936)].' Syllabus, State v. Johnson, 142 W.Va. 284, 95 S.E.2d 409 (1956)." Syllabus point 5, State v. Jenkins, 191 W.Va. 87, 443 S.E.2d 244 (1994).

         8. "Where a counsel's performance, attacked as ineffective, arises from occurrences involving strategy, tactics and arguable courses of action, his conduct will be deemed effectively assistive of his client's interests, unless no reasonably qualified defense attorney would have so acted in the defense of an accused." Syllabus point 21, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).

         9. "Where an offer of evidence is made under Rule 404(b) of the West Virginia Rules of Evidence, the trial court, pursuant to Rule 104(a) of the West Virginia Rules of Evidence, is to determine its admissibility. Before admitting the evidence, the trial court should conduct an in camera hearing as stated in State v. Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986). After hearing the evidence and arguments of counsel, the trial court must be satisfied by a preponderance of the evidence that the acts or conduct occurred and that the defendant committed the acts. If the trial court does not find by a preponderance of the evidence that the acts or conduct was committed or that the defendant was the actor, the evidence should be excluded under Rule 404(b). If a sufficient showing has been made, the trial court must then determine the relevancy of the evidence under Rules 401 and 402 of the West Virginia Rules of Evidence and conduct the balancing required under Rule 403 of the West Virginia Rules of Evidence. If the trial court is then satisfied that the Rule 404(b) evidence is admissible, it should instruct the jury on the limited purpose for which such evidence has been admitted. A limiting instruction should be given at the time the evidence is offered, and we recommend that it be repeated in the trial court's general charge to the jury at the conclusion of the evidence." Syllabus point 3, State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994).

         10. "Before a trial court can determine that evidence of collateral crimes is admissible under one of the exceptions, an in camera hearing is necessary to allow a trial court to carefully consider the admissibility of collateral crime evidence and to properly balance the probative value of such evidence against its prejudicial effect." Syllabus point 3, State v. Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986), overruled on other grounds by State v. Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990).

         11. "Errors involving deprivation of constitutional rights will be regarded as harmless only if there is no reasonable possibility that the violation contributed to the conviction." Syllabus point 20, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).

         12. "In a criminal case, the burden is upon the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Syllabus point 3 State v. Frazier, 229 W.Va. 724, 725, 735 S.E.2d 727, 728 (2012).

          JENKINS, JUSTICE:

         In this case, Mark T. Coleman ("Mr. Coleman") appeals an order of the Circuit Court of Kanawha County denying his petition for writ of habeas corpus, which asserted numerous grounds to support his claims of ineffective assistance of both trial and appellate counsel.[1] After reviewing the parties' briefs, the legal authority cited, and the record submitted for our consideration; as well has hearing the oral arguments presented, we affirm the circuit court's denial of Mr. Colman's habeas petition.

         I.

         FACTUAL AND PROCEDURAL HISTORY

         In the case underlying the instant habeas corpus proceeding, Mr. Coleman was tried by a jury and convicted of murder in the first degree for fatally shooting his wife, Trina Coleman ("Mrs. Coleman"). He was sentenced to life with mercy.

         The evidence presented at trial established that, on March 2, 2006, in the course of a dispute over Mrs. Coleman's marital fidelity, Mr. Coleman shot his wife in the face with a rifle. Mr. Coleman never disputed that he shot his wife; thus, the primary issue of contention during the trial was Mr. Coleman's intent. The State presented evidence to establish that Mr. Coleman shot his wife with the specific intent to end her life because he believed she was having an extramarital affair, and further believed that she was conspiring with her alleged paramour, David, to harm or kill Mr. Coleman and other members of his family. Mr. Coleman's counsel[2] presented a defense based upon the theory that the shooting had been accidental in that Mr. Coleman did not believe the rifle was loaded. The defense also contended that, at the time of the shooting, Mr. Coleman was suffering from diminished capacity due to methamphetamine psychosis and was, therefore, unable to form the intent to commit murder.

         The evidence supporting the jury verdict with respect to Mr. Coleman's intent included numerous letters written by Mr. Coleman accusing Mrs. Coleman of infidelity. Some of the letters contained threats against Mrs. Coleman. Also, on the coffee table in the room where Mrs. Coleman was shot, was a date book belonging to Mrs. Coleman. The date book contained several entries of the name "David," and each entry was accompanied by a drawing of a heart.

         There also was evidence of prior physical violence involving Mr. and Mrs. Coleman, including an incident that resulted in each of them obtaining a domestic violence protective order against the other and caused Mrs. Coleman to move out of the marital home. The Coleman's daughter testified to another incident that occurred within two or three months of her mother's death. The daughter had overheard an argument between her parents during which Mr. Coleman, while holding a rock in his hand, threatened to kill Mrs. Coleman. There was additional testimony from the Coleman's daughter that Mr. Coleman was a hunter who was knowledgeable about firearms, thus refuting Mr. Coleman's claim that he was mistaken about whether the murder weapon was loaded. She further stated that Mr. Coleman stored all of his rifles, including the murder weapon, unloaded in a gun cabinet located in the couple's bedroom. The State also presented testimony from a firearm examiner, Phillip Cochran, who had tested the murder weapon. Mr. Cochran testified that the rifle was equipped with a trigger safety device that prevented it from discharging without the trigger being pulled. Testing confirmed that the trigger safety device on the rifle was functioning as designed, so that the weapon would not fire without the trigger being pulled.

         Other testimony established that Mrs. Coleman was working at a local convenience store on the evening of her death when she received a phone call from Mr. Coleman. After the call, Mrs. Coleman was visibly upset and informed the store manager that she needed to go home. Shortly thereafter, while in a back room of their marital home, Mr. Coleman shot Mrs. Coleman in the face from a close distance, estimated to be between six and twelve inches. Mrs. Coleman sustained a massive head wound from the shot, and also suffered a defensive wound that nearly severed one of her fingers.

         With respect to Mrs. Coleman's injuries, a State medical examiner, Dr. Boiko, testified on behalf of the prosecution regarding his autopsy of the victim and his resulting report. The medical examiner explained that an injury to Mrs. Coleman's left ring finger was a defensive wound and indicated that the bullet had first hit her finger before entering her head through her mouth. Although the medical examiner's report stated that there was no gun powder residue on the victim's left ring finger, upon viewing a picture of the injured finger during his testimony, the medical examiner observed that there was, in fact, gun powder soot on the finger. The presence of this soot indicated that Mrs. Coleman's hand had been in close proximity to the rifle's muzzle at the time it discharged. Thus, the medical examiner's written report had been incorrect, but he corrected his conclusion during his testimony. While Dr. Boiko opined that Mrs. Coleman's finger was in close proximity to the rifle when it was discharged, he stated that he could neither conclude nor rule out the possibility that her finger had come into contact with the rifle.

         Although Mr. Coleman exercised his right to not testify, during the course of the trial, the jury nevertheless heard evidence from several sources that, following the shooting, Mr. Coleman repeatedly claimed that the shooting was an accident. Mr. Coleman contended that he had waived the rifle at Mrs. Coleman in an attempt to scare her and he did not believe that it was loaded.[3] During the defense case-in-chief, Mr. Coleman's ballistics expert opined that the presence of soot on Mrs. Coleman's finger and the location of bullet fragments found at the scene were consistent with a scenario where Mrs. Coleman pushed or swatted the muzzle of the rifle causing it to discharge. The expert testified that, if Mr. Coleman had the trigger squeezed and his thumb on the hammer, simultaneous contact with the muzzle by Mrs. Coleman could have caused the rifle to discharge.

         The jury ultimately found Mr. Coleman guilty of first-degree murder and recommended mercy. Mr. Coleman filed post-trial motions, which were denied by the circuit court. Mr. Coleman then appealed his conviction to this Court[4] and was granted oral presentation of the sole issue raised, i.e., the sufficiency of the evidence. This Court, by order entered on October 9, 2008, refused the petition for appeal.[5] Thereafter, in November 2014, Mr. Coleman filed a petition for writ of habeas corpus in the Circuit Court of Kanawha County. Following an omnibus hearing, the circuit court denied the petition by order entered on May 26, 2017. This appeal followed. Additional facts specifically related to the assignments of error herein raised will be set out in our discussion of the particular issues to which they pertain.

         II.

         STANDARD OF REVIEW

         The instant appeal is before this Court from a circuit court's denial of a petition for a writ of habeas corpus. The proper standard for our review of such an appeal has been set out as follows:

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.

         Syl. pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006). Moreover, each of the grounds asserted by Mr. Coleman as entitling him to a writ of habeas corpus are asserted as a basis for his claim of ineffective assistance of counsel. In reviewing a circuit court's ruling as to a claim of ineffective assistance of counsel, we are mindful of the following standard:

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). We also have clarified that if either prong of the test is absent, ineffective assistance is not established:

In deciding ineffective . . . assistance [of counsel] claims, a court need not address both prongs of the conjunctive standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995), but may dispose of such a claim based solely on a petitioner's failure to meet either prong of the test.

         Syl. pt. 5, State ex rel. Daniel v. Legursky, 195 W.Va. 314, 465 S.E.2d 416 (1995).

         Further,

[i]n reviewing counsel's performance, courts must apply an objective standard and determine whether, in light of all the circumstances, the identified acts or omissions were outside the broad range of professionally competent assistance while at the same time refraining from engaging in hindsight or second-guessing of trial counsel's strategic decisions. Thus, a reviewing court asks whether a reasonable lawyer would have acted, under the circumstances, as defense counsel acted in the case at issue.

         Syl. pt. 6, id. Finally,

[t]he test of ineffectiveness has little or nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We only ask whether a reasonable lawyer would have acted, under the circumstances, as defense counsel acted in the case at issue. We are not interested in grading lawyers' performances; we are interested in whether the adversarial process at the time, in fact, worked adequately.

Miller, 194 W.Va. at 16, 459 S.E.2d at 127.

         We will apply the foregoing standards generally to our consideration of this appeal. Additional standards for our review that are applicable to specific issues herein raised will be addressed in connection with our consideration of those issues.

         III.

         DISCUSSION

         Mr. Coleman raises eight separate instances of ineffective assistance of counsel in this appeal.[6] We address each one in turn.[7]

         A. Failure to Object During Closing Arguments

         Mr. Coleman first argues that his trial counsel was ineffective by failing to object to remarks made during closing argument that Mr. Coleman characterizes as improper comments on his right to remain silent. In addition, he claims that appellate counsel was ineffective in failing to raise this issue in his direct appeal.

         During its closing, the State made the following argument with no objection from Mr. Coleman's trial counsel:

Now, the defense would have you believe that this was an accident. First of all, just because the defendant has said it was an accident, doesn't mean that it was an accident. And why is it not an accident? Because his explanation does not fit the physical facts at the scene of the crime. His explanation that he wasn't aiming the gun, that he was standing there, that he was merely pulling the hammer back, and that his thumb slipped off the hammer, does not cause a discharge of the firearm. It does not fit the physical facts of the case.
The medical examiner told you that she had her left hand in front of her face. A defensive wound. And that she was trying to defend herself by putting her hand in front of her face. It is not an accident because he did not tell you that she was attempting to defend herself. His explanation does not fit the physical facts of this case.

         (Emphasis added). Mr. Coleman's trial counsel then presented his closing argument wherein he referred to Exhibit 52, which was a video recording of a police interview with Mr. Coleman. Trial counsel argued that, in the recording, Mr. Coleman waivered as to whether he had the trigger of the riffle squeezed, ultimately conceding, according to counsel, that he may "have had the trigger squeezed and pulled the hammer and it slipped." The State, during its rebuttal closing, responded to the argument posed by trial counsel as follows:

Ladies and gentlemen, I would urge you if you're going to examine Exhibit 52 to watch the whole thing. It needs to be played in its entire context. Because this defendant has made a series of inconsistent statements, and that's what those are, inconsistent statements. And they are self-serving. They aren't admissions that he has done something wrong. They are denials that he has done something wrong.
He has never stepped up during the statement to the police and said that she had her hand up, as the medical examiner said she must have had. He has not and did not tell the entire story during his statement to the police
. . . .
Every theory that they have put forward to their experts of how the gun discharged requires you to go through an exercise of coincidences, which, I submit to you, are unworthy of your consideration. Because he has never described to a single individual that he pulled that trigger. He says he may have. "Maybe I did." He also says, "I didn't do it. I never did it." A series of inconsistent statements.
The medical examiner told you that the distance from the muzzle of the gun to the hand was close proximity. He did not say that it was contact. He said it was possible that it was contact. And that is a big difference. And even if it was contact, even if it was contact, it does not follow that the victim, Trina Coleman, caused the gun to discharge. That is something - that's a leap and speculation and conjecture that [trial counsel] wants you to do. And the Judge has told you not to engage in conjecture and speculation.
This defendant did not tell the police that he was attempting to render the gun safe by lowering the hammer and squeezing the trigger. This defendant did not tell you that he was attempting to render the gun safely when Trina Coleman was attempting to push the gun away.

         (Emphasis added).

         At the omnibus hearing, Mr. Coleman's trial counsel testified as follows regarding his decision to not object to the foregoing comments:

Well, the question, when to object to that, is a delicate one. Do you call it to the attention of the jury? Do you just go with the instruction - and that's - that's the thought process I engage in in any case, and I'm sure that was my thought process then. And just like the other, the record says what it says. That could be gleaned to be plain error under some, you know, some of the authority. Other of the authority said you read it in the context of what else was being done and instructed and the circumstances of the case. So that can go either way.

         Based upon the explanation provided by Mr. Coleman's trial counsel, the circuit court reasoned and concluded as follows:

75. The prosecuting attorney in closing and rebuttal made brief and fleeing reference to what [Mr. Coleman] had not told "you." The court finds that argument to be regrettable, and does not approve of those statements. However, the issue before the court is whether or not trial counsel was ineffective for not objecting to those remarks, and whether appellate counsel was ineffective in failing to include those remarks as plain error in his petition for appeal.
76. Although [Mr. Coleman's] expert [on the adequacy of trial counsel] opined that he couldn't see a strategic reason for not interposing an objection to those portions of the argument, trial counsel did proffer a strategic reason, and a sound one. As noted, the issue of objecting is a delicate one. [Mr. Coleman's] expert agreed that it was often a sound choice to leave well enough alone. Trial counsel stated he did not want to object because, in essence, an objection ran the risk of emphasizing to the jury something that might damage his client. Even had counsel objected, and asked to approach the bench to discuss the objection in a side bar, the remedy would have been essentially for the court to tell the jury to disregard any remark that the prosecutor made about what the petitioner (did) or didn't say.
77. The court determines that it was not objectively deficient performance for counsel to make a strategic decision not to object to those remarks. Further, the court believes that[, ] had counsel objected, and the jury been instructed to disregard-even if the prosecutor had been admonished-the jury would still have convicted the petitioner of murder in the first degree. Therefore, neither prong of Strickland/Miller is satisfied.

         This Court has recognized that, "[r]emarks made by the State's attorney in closing argument which make specific reference to the defendant's failure to testify, constitute reversible error and defendant is entitled to a new trial." Syl. pt. 5, State v. Green, 163 W.Va. 681, 260 S.E.2d 257 (1979). In other words,

"[i]t is prejudicial error in a criminal case for the prosecutor to make statements in final argument amounting to a comment on the failure of the defendant to testify." Syllabus Point 3, State v. Noe, 160 W.Va. 10, 230 S.E.2d 826 (1976), overruled on other grounds by State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

         Syl. pt. 4, State v. Murray, 220 W.Va. 735, 736, 649 S.E.2d 509, 510 (2007). Nevertheless, "[a] judgment of conviction will not be reversed because of improper remarks made by a prosecuting attorney to a jury which do not clearly prejudice the accused or result in manifest injustice." Syl. pt. 5, State v. Ocheltree, 170 W.Va. 68, 289 S.E.2d 742 (1982) (emphasis added). Accord Syl. pt. 1, State v. Adkins, 209 W.Va. 212, 544 S.E.2d 914 (2001).

         The comments at issue did not clearly prejudice Mr. Coleman or result in manifest injustice. When taken in context, the prosecuting attorney's comments regarding what the defendant told or failed to tell the jury clearly were references to what Mr. Colman had said in his recorded statements, statements that had been presented to the jury. This is particularly true of the prosecutor's statements made in response to Mr. Coleman's trial counsel's argument encouraging the jury to consider exhibit 52, the recorded interview with Mr. Coleman. The portion of the State's rebuttal closing addressing exhibit 52 merely urged the jury to consider the exhibit in full and pointed out that the recording depicted a series of inconsistent comments made by Mr. Coleman. The State's closing arguments simply were not a comment on Mr. Coleman's failure to testify.

         Moreover, the jury was properly instructed that

[t]he defendant Mark Thomas Coleman, has no duty to take the stand as a witness in his own behalf. And if he does not do so, this is not evidence, and you should draw no inference therefrom as to his guilt or innocence. You should entirely disregard and not discuss it.

         The jury also was instructed that,

[n]othing said or done by the attorneys who have tried this case is to be considered by you as evidence of any fact. The opening statements that you heard last week, and the final arguments that you're going to hear here in a few moments, are intended to help you in understanding the evidence and applying the law to the evidence but they are not themselves evidence. And accordingly, if any arguments, statements or remark of any of the lawyers is not based upon the evidence or the law as stated in my instructions, then you should disregard that statement, argument or remark.

         Assuming arguendo that the jury might have misunderstood the arguments, such a misunderstanding would have been cured by the instructions given, which plainly directed the jury that no inference should be drawn from Mr. Coleman's decision to not testify and, further, that any comments made by counsel were not ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.