1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Robert B. Joseph, Petitioner Below, Petitioner

vs) No. 12-0611 (Kanawha County 06-MISC-479)

David Ballard, Warden, Mount Olive Correctional Center, Respondent Below, Respondent



### MEMORANDUM DECISION

Petitioner Robert B. Joseph, by counsel Matth ew A. Victor, appeals the order of the Circuit Court of Kanawha County, entered Ap ril 17, 2012, denying his pos t-conviction habeas corpus petition. Respondent Warden David Ballard, 1 by counsel Laura Young, filed a response.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate

Procedure.

On the night of March 28, 2001, petitioner grabbe d his .22 caliber pistol and fired five shots into Scott Light, killing him. A jury found petitioner guilty of firs t degree murder. In his first trial, petitioner sought to assert the defe nse of diminished capacity resulting from a head injury he sustained in a motorcycle accident in 1989. 2 Following an in camera hearing, the trial court found that petitioner’s expe rts failed to offer competent evid ence to establish that petitioner lacked the mental capacity to form specific in tent. Therefore, the tr ial court excluded this testimony.

Petitioner appealed his first conviction to this Court. In State v. Joseph , 214 W.Va. 525, 590 S.E.2d 718 (2003), we held that the diminish ed capacity defense is available in West Virginia to permit a defendant to introduce expert testimony regarding a mental disease or defect that rendered the defendant incapable, at the tim e the crime was committe d, of forming a mental

state that is an element of the crime. Id . at Syl. Pt. 3. We noted that this defense is asserted ordinarily when there is a lesse r included offense for the offense charged. The successful use of

1 Pursuant to Rule 41(c) of the Rules of A ppellate Procedure, the name of the current

warden has been substituted as the respondent in this action.

2 Among the serious injuries petitioner sustained in the accident was a crush injury to his

left frontal skull. 

### FILED

June 7, 2013
RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 this defense may render the defe ndant not guilty of the particular crime charged, but does not preclude a conviction for a lesser included offense. Id . This Court remanded the case for a new

trial.

Upon retrial, the jury heard expert testim ony regarding petitioner’s claim of diminished mental capacity. Defense counsel called expert witnesses, Mark Hughes, M.D., a board certified psychiatrist, Robert Solomon, Ph.D., a forensic psychologist, and Robert Granacher, M.D., a

board certified medical doctor and forensic neur o-psychiatrist. The State called Ralph Smith, M.D., in rebuttal. Dr. Smith had performed a fore nsic psychiatric evalua tion on the petitioner. Following a three day trial in A ugust of 2004, a jury convicted petitioner of first degree murder. He was sentenced to life in prison with a recommendation of mercy. This Court denied petitioner’s direct appeal follo wing the second jury trial.

In December 2006, petitioner, pro se, filed a petition for post-conviction habeas corpus

relief. The circuit court denied the petition. In March 2008, this Court reversed and remanded

with directions to conduct an om nibus hearing. Petitioner’s appoint ed counsel raised nine issues in the amended petition for writ of habeas corpus: 1) the trial court erred by preventing petitioner from being examined by his expert; 2) petitioner was denied the right to a fair trial by the trial court allowing improper cross-examination; 3) the trial court erred by not curing the State’s misleading cross-examination; 4) the trial court denied him the right to present his defense by denying his motion to be examined by his expert; 5) insufficiency of the evidence to support a first degree murder conviction; 6) ineffective assistance of counsel ; 7) the trial court gave an improper jury instruction which shifted the burden of proof to petitioner; 8) the trial court erred by giving a jury instruction defining “a reas onable doubt,” by permitting the prosecuting attorney’s self-introduction as a representative of “the citi zens of Kanawha County,” and by differentiating between direct and circumstantial evidence; and 9) cumulative error. The circuit court conducted a hearing on Ju ly 20, 2011. The parties stipulated that they would submit the matter on the respective briefs, in lieu of witness testimony. After reviewing this matter, the

circuit court denied the petition.

On appeal, petitioner raises the same assignments of error as raised in the habeas corpus petition below. We note that this Court reviews appeals of circuit court orders denying habeas corpus relief under th e following standard:

“In reviewing challenges to the findings and conclusions of the circuit court in a habeas corpus action, we apply a three-pr ong standard of revi ew. 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).

After careful consideration, this Court finds that the circuit court did not err in denying habeas corpus relief to petitioner. We will address the main issu es raised by petitioner in this3 appeal. 3 Petitioner challenges the sufficiency of th e evidence to support his conviction of first degree murder. Specifically, he contends that the record is replete with expert testimony refuting the State’s theory of premeditation. Petitioner maintains the evidence demonstrated that he lacked the mental capacity to form premeditati on as a result of his previous head injury. Respondent Warden replies that substantial evidence supports peti tioner’s convicti on, including the testimony of the State’s expert witness, Dr. Smith, as well as the statements and behavior of petitioner at the time of the murder. We have held that,

“[a] criminal defendant challenging the sufficiency of the evidence to support a conviction takes on a heavy burden. An appellate court must review all the evidence, whether direct or circumstanti al, in the light most favorable to the prosecution and must credit all inferences an d credibility assessments that the jury might have drawn in favor of the prosecution. The evidence need not be inconsistent with every conclusion save th at of guilt so long as the jury can find guilt beyond a reasonable doubt. Credibility determinations are for a jury and not an appellate court. Finally, a jury verdic t should be set aside only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt. To th e extent that our prior cases are inconsistent, they are expre ssly overruled.” Syl. Pt. 3, State v. Guthrie , 194 W.Va. 657, 461 S.E.2d 163 (1995).

Syl. Pt. 5, State v. Broughton , 196 W.Va. 281, 470 S.E.2d 413 (1996).

Upon our review, this Court finds that th e evidence was sufficient to support the first degree murder conviction, keeping in mind that for the purpose of this analysis, all the evidence must be viewed in the light most favorable to the prosecution. Id . At trial, witnesses to the murder testified that petitioner sa id “F**k you” to the victim just be fore he pulled the trigger five

times. Petitioner backed his vehicle over the vict im while leaving the premises. Petitioner drove to his parents’ home and called 911. The jury h eard petitioner’s 911 call, where he advised the 911 operator that, “I just shot Scott Light at the mouth of Ei ght Mile Hollow. Somebody better

3 We find no merit in petitione r’s contention that the tria l court erred in preventing petitioner to be examined by his own expert, Dr . Granacher, while incarcerated. The first attempt at such visit occurred when Dr. Granacher appe ared without notice at th e South Central Regional

Jail on the eve of the second tria l, or about August 6, 2004. Jail pe rsonnel declined to permit the examination without a court order. On Augus t 9, 2004, defense counsel requested that Dr. Granacher be permitted access to petit ioner at the jail. Upon inquiry, trial counsel stated that the visit would change neither Dr . Granacher’s opinion nor his testimony and no additional report would be generated. The trial court denied su ch request based upon the previous ruling that expert opinions and the bases therefore be disclose d in advance of trial. We find that the trial

court did not abuse its discretion in this regard. Furthermore, a ha beas corpus proceeding is not a

substitute for a writ of error. Trial error, not involving error of constitutional dimension, is not

reviewed. See Syl. Pt. 4, State ex rel. McMannis v. Mohn , 163 W.Va. 129, 254 S.E.2d 805 (1979).4 get there before he dies. I just shot the son of a b*tch.” Furthermore, on the issue of mental capacity, Dr. Smith opined that pe titioner had the mental capacity to premeditate, deliberate, and act intentionally. Considering this evidence, we see no compelling reason to disturb the jury’s finding on appeal.

Petitioner also raises an ineffective assistan ce of counsel claim in this appeal. He asserts that counsel erred by not having petitioner pers onally examined by his retained expert, Dr. Granacher. When addressing this matter, the circu it court noted that both trial counsel and Dr. Granacher stated that any personal examinati on would do nothing to change the opinion that petitioner suffered from diminish ed capacity due to frontal lobe brain damage. Dr. Granacher testified regarding the clinical significance of frontal lobe brain damage and how it impairs planning functions. He reviewed petitioner’s medical history, incl uding psychiatric evaluations, and specifically referred to petitioner’s CT brain scan which revealed front al lobe brain damage. Accordingly, we find that the failure to arrange for a personal examination with Dr. Granacher

does not rise to the level of ineffective assi stance. His opinion and testimony would have been the same, and consequently, the result of the trial would ha ve been the same. See Syl. Pt. 5, State

v. Miller , 194 W.Va. 3, 459 S.E.2d 114 (1995)

For the foregoing reasons, we affirm. The ci rcuit court’s order reflects its thorough analysis of the grounds raised in the petition for habeas cor pus. Having reviewed the opinion order entered on April 17, 2012, we hereby adopt and incorporat e the circuit court’s wellreasoned findings and conclusions as to all the a ssignments of error raised in this appeal. The Clerk is directed to attach a copy of the circu it court’s order to this memorandum decision.

Affirmed.

ISSUED: June 7, 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