“An appellate court may not decide the credibility of witnesses or weigh evidence as that is the exclusive function and task of the trier of fact.”
How later courts described this case
- “An appellate court may not decide the credibility of witnesses or weigh evidence as that is the exclusive function and task of the trier of fact.”
Written by the judges who cited it.
The opinion
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Yasser Abdelhaq,
Petitioner Below, Petitioner, FILED
November 21, 2018
vs.) No. 17-0078 (Ohio County 06-C-93) EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Ralph Terry, Superintendent,
Mt. Olive Correctional Complex,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner Yasser Abdelhaq, by counsel Kevin L. Neiswonger, appeals the Circuit Court
of Ohio County’s December 29, 2016, order denying his petition for writ of habeas corpus.
Respondent Ralph Terry1, Superintendent, Mt. Olive Correctional Complex, by counsel Gordon
L. Mowen II, filed a response in support of the circuit court’s order. On appeal, petitioner argues
that the circuit court erred in denying habeas relief because he received ineffective 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 January of 2000, petitioner was indicted on one count of first-degree murder for the
stabbing death of Dana Tozar (“the victim”). Following an August of 2000 jury trial, petitioner
was convicted of first-degree murder and sentenced to a term of incarceration of life, without
mercy. Petitioner appealed his conviction, and this Court thereafter vacated the conviction and
remanded the matter for a new trial. See State v. Abdelhaq, 214 W.Va. 269, 588 S.E.2d 647
(2003).
Thereafter, petitioner was indicted for a second time on one count of first-degree murder
and was represented by attorneys Robert G. McCoid and John J. Pizzuti. During his bifurcated
1
Effective July 1, 2018, the positions formerly designated as “wardens” are now
designated “superintendents.” See W.Va. Code § 15A-5-3. Moreover, petitioner originally listed
David Ballard as respondent in this action. Mr. Ballard is no longer the superintendent at Mt.
Olive Correctional Complex. Accordingly, the appropriate public officer has been substituted
pursuant to Rule 41 of the West Virginia Rules of Appellate Procedure.
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trial, petitioner’s defense was that he could not have deliberately and intentionally killed the
victim because he was in a psychotic state due to drug use. As such, petitioner sought a
conviction on the lesser-included offense of second-degree murder. At the conclusion of his
second jury trial, petitioner was again convicted of first-degree murder. Ultimately, the jury did
not recommend mercy, and petitioner was sentenced to a term of incarceration of life, without
mercy. Following this conviction, petitioner’s second appeal to this Court was refused by order
entered in May of 2005.
In 2006, petitioner initiated habeas corpus proceedings. Following a summary denial of
his petition for writ of habeas corpus, this Court granted petitioner relief and ordered the matter
remanded for the holding of an omnibus hearing on the limited issue of ineffective assistance of
trial counsel.
In August of 2016, the circuit court held an omnibus hearing. During the hearing, Mr.
McCoid testified extensively to the trial strategy and tactics employed, as well as to specific
instances wherein he opted not to object to certain statements from the prosecution that petitioner
alleged constituted prosecutorial misconduct. Mr. McCoid further testified unequivocally that
petitioner understood “the full ramifications” of the trial strategy to admit guilt and ask for a
conviction of second-degree murder and gave his consent. At several points during his
testimony, Mr. McCoid addressed discussions the attorneys had with petitioner concerning the
trial strategy, petitioner’s understanding of the risks and benefits of such a strategy, and his
consent to pursuing it. Having the benefit of seeing the State’s theory of the case during the first
trial, Mr. McCoid testified that they reevaluated the trial strategy since this “was not a case about
whether [petitioner] had taken [the victim’s] life,” but was rather “about what his mental status
was at the time that he did so.” Mr. McCoid cited to portions of his opening statement in the case
where he admitted that petitioner’s guilt was not in question but urged the jury to convict him of
second-degree murder due to the absence of premeditation. Based on the opening, Mr. McCoid
indicated that
[i]t is inconceivable that I would have given an opening statement in a first-degree
murder case asking the jury to convict my client of second-degree murder without
hav[ing] closely consulted with my client, discussed the minutia associated with
that decision and obtained the full consent of my client in . . . advancing that
defense.
Next, petitioner testified and admitted to killing the victim by stabbing her 235 times. He
further agreed that he would have been “thrilled” with a verdict of life, with mercy, or second-
degree murder. Petitioner testified that he did not agree with the strategy to ask for a conviction
of second-degree murder, however. And while he was willing to take responsibility for the
victim’s murder, petitioner indicated the he “did not premediate” the act. Ultimately, by order
entered on December 29, 2016, the circuit court denied petitioner habeas relief. It is from this
order that petitioner appeals.
Our review of the circuit court’s order denying petitioner’s petition for a writ of habeas
corpus is governed by the following standard:
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“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 asserts three assignments of error, all of which involve allegations
of ineffective assistance of trial counsel. First, petitioner argues that counsel failed to object to
the following three instances of prosecutorial misconduct: (1) the prosecuting attorney’s
misstatement of the law concerning premeditation, wherein the prosecutor told the jury “don’t
forget the instructions. How long does it take to premeditate and deliberate? An instant”; (2) the
prosecutor’s personal opinion regarding the credibility of an expert witness; and (3) the
prosecutor’s inappropriate mention of mercy, including an instance wherein the prosecutor said
that “[petitioner’s] mercy is that he gets to live. People worked to save his life at that hospital. He
gets to live, and [the victim] is dead.” Second, petitioner argues that counsel was ineffective for
failing to object to what he alleges was an improper jury instruction on the inference of malice
and the intent to kill. Finally, petitioner alleges that counsel was ineffective for failing to obtain
his consent to pursue a defense strategy of admitting culpability but challenging the requisite
intent to support a first-degree murder conviction. However, our review of the record supports
the circuit court’s decision to deny petitioner’s petition for writ of habeas corpus as to each of
petitioner’s assignments of error. Petitioner’s arguments presented herein, with the exception of
his assertion that the circuit court failed to substantively address his third assignment of error,
were thoroughly addressed by the circuit court in its order denying petitioner habeas relief.
As to petitioner’s third assignment of error asserting that his counsel was ineffective for
pursuing a trial strategy to which he did not consent, we find no error. This Court has held that
[i]n 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 (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). 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.
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Id. at 6-7, 459 S.E.2d at 117-18, Syl. Pt. 6. Finally, “[w]here 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.” Syl. Pt. 21, State v.
Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).
Here, we find that petitioner is entitled to no relief in regard to his third assignment of
error, because he cannot show that no reasonably qualified defense attorney would have pursued
the strategy that trial counsel did herein. Further, petitioner’s argument in support of this
assignment of error lacks any basis in the record. Aside from his unsupported claims that he
never agreed to the strategy to admit culpability and seek a second-degree murder conviction, the
evidence obtained at the omnibus hearing overwhelmingly establishes that petitioner’s trial
counsel advanced this strategy with petitioner’s consent and support.
Specifically, Mr. McCoid testified that petitioner and trial counsel spoke about the trial
strategy at length, even going so far as to author a letter together in advance of trial seeking a
plea agreement to second-degree murder on the basis that petitioner admitted to killing the victim
but without the intent necessary to be guilty of first-degree murder. While the record shows that
counsel instructed petitioner to author this letter in the hope that it could be used to mitigate
against a sentence of life, without mercy, in the event of a first-degree murder conviction, the
fact remains that it is indicative of petitioner’s agreement to pursue an overall strategy to obtain a
conviction on a lesser-included offense or otherwise lessen the subsequent term of incarceration
imposed. Further, counsel testified at length about the discussions he had with petitioner
concerning the trial strategy, in addition to petitioner’s understanding of that strategy, its
attendant risks and benefits, and his ultimate consent to the strategy. As such, this issue was one
of credibility for the circuit court to make. See State v. Guthrie, 194 W.Va. 657, 669 n.9, 461
S.E.2d 163, 175 n.9 (1995) (“An appellate court may not decide the credibility of witnesses or
weigh evidence as that is the exclusive function and task of the trier of fact.”). Given that the
circuit court denied petitioner relief on this ground, it is clear that it did not find his testimony
that he did not agree to this trial strategy to be credible. This is especially true in light of
petitioner’s testimony at the omnibus hearing that he would have been “thrilled” with a
conviction of either second-degree murder or a sentence of life, with mercy. Given that petitioner
specifically acknowledged his desire to be sentenced to something less that life, without mercy, it
is clear that he supported trial counsel’s strategy to obtain such a result. Accordingly, we find no
error.
The circuit court’s order includes well-reasoned findings and conclusions as to the
assignments of error now raised on appeal. Because we find no clear error or abuse of discretion
in the circuit court’s order or record before us, we hereby adopt and incorporate the circuit
court’s findings and conclusions as they relate to petitioner’s assignments of error raised on
appeal and direct the Clerk to attach a copy of the circuit court’s December 29, 2016, “Order” to
this memorandum decision.
For the foregoing reasons, we affirm.
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Affirmed.
ISSUED: November 21, 2018
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice Paul T. Farrell sitting by temporary assignment
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