James R. Meadows v. R.S. Mutter, Deputy Superintendent, McDowell County Corrections

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2020 Term

FILED

April 6, 2020

No. 18-0418 released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA

JAMES R. MEADOWS,

Petitioner Below, Petitioner

V.

R.S. MUTTER, DEPUTY SUPERINTENDENT,

MCDOWELL COUNTY CORRECTIONS,

Respondent Below, Respondent

_________________________________________________________

Appeal from the Circuit Court of Monroe County

The Honorable Robert Irons, Judge

Civil Action No. 13-C-69

AFFIRMED

_________________________________________________________

Submitted: March 3, 2020

Filed: April 6, 2020

Joseph T. Harvey Patrick Morrisey

Harvey & Janutolo Attorney General

Blueflield, West Virginia Benjamin E. Fischer

Paul R. Cassell Assistant Attorney General

Cassell & Crewe, P.C. Holly M. Flanigan

Wytheville, Virginia Assistant Attorney General

Attorneys for the Petitioner Charleston, West Virginia

Attorneys for the Respondent

JUSTICE JENKINS delivered the Opinion of the Court.

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 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

i

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

4. “In deciding ineffective of assistance 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).

5. “The fulcrum for any ineffective assistance of counsel claim is the

adequacy of counsel’s investigation. Although there is a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance, and

judicial scrutiny of counsel’s performance must be highly deferential, counsel must at a

minimum conduct a reasonable investigation enabling him or her to make informed

decisions about how best to represent criminal clients. Thus, the presumption is simply

inappropriate if counsel’s strategic decisions are made after an inadequate investigation.”

Syllabus point 3, State ex. rel. Daniel v. Legursky, 195 W. Va. 314, 465 S.E.2d 416 (1995).

ii

6. “In determining whether counsel’s conduct falls within the broad

range of professionally acceptable conduct, this Court will not view counsel’s conduct

through the lens of hindsight. Courts are to avoid the use of hindsight to elevate a possible

mistake into a deficiency of constitutional proportion. Rather, under the rule of

contemporary assessment, an attorney’s actions must be examined according to what was

known and reasonable at the time the attorney made his or her choices.” Syllabus point

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

7. “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).

iii

Jenkins, Justice:

Petitioner James R. Meadows (“Mr. Meadows”) appeals the April 5, 2018

order of the Circuit Court of Monroe County, which denied his post-conviction petition for

writ of habeas corpus. 1 In November of 2010, Mr. Meadows was convicted of second-

degree murder, death of a child by a guardian or custodian, and child abuse resulting in

injury. Mr. Meadows then filed a direct appeal to this Court, and in State v. Meadows, 231

W. Va. 10, 743 S.E.2d 318 (2013), we affirmed his convictions. 2 Mr. Meadows now raises

1

The original petition named the respondent as David Ballard, in his official

capacity as Warden of the Mount Olive Correctional Complex. Then, when the appeal was

filed, the respondent was changed to Ralph Terry, who was, at that time, the Acting Warden

of the Mount Olive Correctional Complex. During the course of these appellate

proceedings, Mr. Meadows has been transferred, and is currently incarcerated at the

McDowell County Corrections/Stevens Correctional Center. Thus, R.S. Mutter, Deputy

Superintendent of the McDowell County Corrections/Stevens Correctional Center, has

been substituted as the respondent in this appeal pursuant to Rule 41 of the Rules of

Appellate Procedure.

2

On direct appeal, in addition to alleging multiple trial court errors, Mr.

Meadows also alleged that his trial counsel was constitutionally ineffective. This Court

found, “that the ineffective assistance of counsel claim [was] not adequately developed for

consideration on direct appeal. This decision, however, [was] made without prejudice

should Meadows desire to proceed with the development of a more complete record on the

issue in a petition for habeas corpus.” State v. Meadows, 231 W. Va. 10, 25, 743 S.E.2d

318, 333 (2013).

As stated in State ex. rel. Daniel v. Legursky, 195 W. Va. 314, 465 S.E.2d

416 (1995):

Traditionally, ineffective assistance of counsel claims are not

cognizable on direct appeal. We have urged counsel

repeatedly to think of the consequences of raising this issue on

direct appeal. Claims that an attorney was ineffective involve

inquiries into motivation behind an attorney’s trial strategies.

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

1

multiple assignments of error in his habeas corpus petition, which was denied by the circuit

court after an omnibus evidentiary hearing. Having considered the briefs submitted on

appeal, the appendix record, the parties’ oral arguments, and the applicable legal authority,

this Court affirms the Circuit Court of Monroe County’s denial of Mr. Meadows’ habeas

petition.

I.

FACTUAL AND PROCEDURAL HISTORY

The underlying facts of Mr. Meadows’ convictions are fully set forth in State

v. Meadows, 231 W. Va. 10, 743 S.E.2d 318 (2013). For purposes of this matter, a

summarized version will be presented.

Without such facts trial counsel’s alleged lapses or errors will

be presumed tactical moves, flawed only in hindsight. What is

more, in the event a defendant pursues his claim on direct

appeal and it is rejected, our decision will be binding on the

circuit court through the law of the case doctrine, “leaving

[defendant] with the unenviable task of convincing the [circuit

court] judge that he should disregard our previous ruling.”

U.S. v. South, 28 F.3d 619, 629 (7th Cir.1994). That is why in

Miller we suggested that a defendant who presents an

ineffective assistance claim on direct appeal has little to gain

and everything to lose. In this case, we refuse to consider on

this habeas appeal issues that we have already dealt with on

direct appeal.

Legursky at 316 n. 1, 465 S.E.2d at 431 n. 1.

2

In November of 2010, seventeen-month-old I.H. 3 died as a result of repeated

blows to her head and body. At trial, the case centered on whether Christen H., I.H.’s

mother, or Mr. Meadows, Christen H.’s live-in boyfriend, inflicted the injuries that caused

the child’s death. At the time of the child’s death, Mr. Meadows was living with Christen

H. in a trailer with I.H. and Christen H.’s three-year-old son. On November 4, 2010,

Christen H. and her son left the trailer to attend an appointment with the Department of

Health and Human Resources (“DHHR”). Christen H. left I.H. with Mr. Meadows at their

trailer, and gave her cell phone to Mr. Meadows “[j]ust in case anything would happen.”

Twenty minutes into her DHHR meeting, Christen H. received a call from Mr. Meadows

informing her that I.H. was rushed to the hospital. A neighbor, Melissa Gill, testified at

trial that she was awakened by Mr. Meadows who was carrying I.H. in his arms. Upon

learning that Mr. Meadows had not called 911, Ms. Gill immediately placed the call.

Ms. Gill followed the ambulance to the local hospital;

Meadows remained at Christen’s trailer. The toddler was in

the emergency room of the local hospital for about three hours

when the attending doctor concluded that her extensive injuries

could not be managed at the facility. The toddler was

transported by ambulance to the more specialized care and

treatment available at a Charleston medical facility. During the

transport, the child’s condition became very unstable and

remained that way for the duration of the trip despite paramedic

intervention. The toddler died in Charleston on November 6,

2010.

3

It is this Court’s customary practice in cases involving sensitive facts to

refer to parties by their initials rather than by their given names. See In re Jeffrey R.L., 190

W. Va. 24, 26 n. 1, 435 S.E.2d 162, 164 n. 1 (1993).

3

Meadows, 231 W. Va. at 15, 743 S.E.2d at 323. A few weeks later, Mr. Meadows was

indicted “for one count of murder in the first degree, one count of a guardian or custodian

causing the death of a child, and one count of child abuse resulting in bodily injury.” 4 Id.

In September of 2011, following a three-day jury trial in Monroe County,

Mr. Meadows was convicted of one count of second-degree murder, one count of death of

a child by a guardian or custodian, and one count of child abuse resulting in bodily injury.

As a result, he was sentenced to concurrent terms of incarceration of forty years for his

conviction of second-degree murder, forty years for his conviction of death of a child by a

guardian or custodian, and one to five years for his conviction of child abuse resulting in

bodily injury. Mr. Meadows then brought a direct appeal of his convictions and sentence

4

According to this Court’s opinion issued in the direct appeal,

[o]ther legal actions were also initiated. According to a plea

agreement filed in the circuit court on September 2, 2011,

which was admitted into evidence at trial, Christen was

charged in a two count indictment with permitting the death of

a child by a parent, and child abuse resulting in injury. The

plea agreement reflects that Christen pled guilty to the lesser

included offense of gross neglect of a child in exchange for her

cooperation with the State’s prosecution of the case. The plea

agreement included the stipulation that Christen “grossly

neglected her child as defined by West Virginia Code § 61-8D-

4(e) by permitting that child to be in the temporary care,

custody, and control of R.L. Meadows.” Additionally, there

are repeated references during the trial to a child abuse and

neglect proceeding. Documentation of anything regarding that

proceeding is not part of the record in this appeal.

Meadows, 231 W. Va. at 25 n.5, 743 S.E.2d at 333 n.5.

4

to this Court. In his direct appeal, Mr. Meadows contended that the circuit court erred by:

(1) granting a change in venue without a showing of good cause; (2) allowing testimony

by a State’s witness concerning polygraph test results without ordering a mistrial or

providing a curative instruction; (3) allowing the introduction of hearsay evidence in the

form of the testimony of a child psychologist about play therapy with I.H.’s brother without

an adequate foundation; (4) deeming evidence of a child psychologist regarding the

character of the accused to be admissible; and (5) permitting the introduction of gruesome

photographs. Mr. Meadows argued that he was deprived of the right to a fair trial not only

on these grounds but also because he had ineffective assistance of counsel at trial. After a

careful review of the record and the arguments presented, this Court affirmed his

conviction and sentences in May of 2013. See State v. Meadows, supra.

In October of 2013, Mr. Meadows filed a self-represented petition for writ of

habeas corpus. After the circuit court appointed counsel, an amended petition was filed in

May of 2014. On January 7, 2016, the circuit court held an omnibus evidentiary hearing,

after which Mr. Meadows filed a supplemental memorandum in support of his petition.

Ultimately, the circuit court denied Mr. Meadows’ habeas corpus petition by order entered

April 5, 2018. This appeal followed. Additional facts specifically related to the

assignments of error raised by Mr. Meadows will be set out in our discussion of the

particular issues to which they pertain.

5

II.

STANDARD OF REVIEW

Here, Mr. Meadows challenges the circuit court’s order denying his habeas

corpus petition. We review the circuit court’s order under the following standard:

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, “[o]n

an appeal to this Court the appellant bears the burden of showing that there was error in

the proceedings below resulting in the judgment of which he complains, all presumptions

being in favor of the correctness of the proceedings and judgment in and of the trial court.”

Syl. pt. 2, Perdue v. Coiner, 156 W. Va. 467, 194 S.E.2d 657 (1973). With these standards

in mind, we now address the arguments presented.

III.

DISCUSSION

In the case sub judice, Mr. Meadows has set out two assignments of error:

(1) ineffective assistance of counsel and (2) cumulative error. We will review each

assignment of error in turn.

6

A. Ineffective Assistance of Counsel

Mr. Meadows’ primary contention is that he is entitled to habeas corpus relief

because his trial counsel provided him with ineffective assistance. This Court has

consistently held that

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). When examining counsel’s

performance under the Strickland/Miller two-prong standard, we have held as follows:

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.

Syl. pt. 6, Miller, 194 W. Va. 3, 459 S.E.2d 114. Put another way, “we always should

presume strongly that counsel’s performance was reasonable and adequate.” Id. at 16, 459

S.E.2d at 127. The standard is demanding, and defendants have “a difficult burden because

constitutionally acceptable performance is not defined narrowly and encompasses a ‘wide

range.’ The 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.” Id.

7

This Court “is not interested in grading lawyers’ performances; we are interested in

whether the adversarial process at the time, in fact, worked adequately.” Id.

When a defendant makes a claim of ineffective assistance of counsel, to

satisfy the first Strickland/Miller prong, he or she must identify the specific “act or

omissions” of counsel believed to be “outside the broad range of professionally competent

assistance.” Id. at 17, 459 S.E.2d at 128. See also State ex rel. Myers v. Painter, 213

W. Va. 32, 35, 576 S.E.2d 277, 290 (2002) (“The first prong of [the Strickland/Miller] test

requires that a petitioner identify the acts or omissions of counsel that are alleged not to

have been the result of reasonable professional judgment.”) (internal quotation marks

omitted). The reviewing court is tasked with determining whether, “in light of all the

circumstances,” but without “engaging in hindsight,” that conduct was so objectively

unreasonable as to be constitutionally inadequate. Miller, 194 W. Va. at 17, 459 S.E.2d at

128. In particular, strategic choices and tactical decisions, with very limited exception, fall

outside the scope of this inquiry and cannot form the basis of an ineffective assistance

claim. See State ex. rel. Daniel v. Legursky, 195 W. Va. 314, 328, 465 S.E.2d 416, 430

(1995).

This Court further clarified that

[i]n deciding ineffective of assistance 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

8

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, Legursky, 195 W. Va. 314, 465 S.E.2d 416. As such, even if counsel’s conduct

is deemed to have met the first Strickland/Miller prong, such conduct does not constitute

ineffective assistance of counsel unless it can also be demonstrated that the conduct was so

impactful that there is a “reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceedings would have been different.” Syl. pt. 5, Miller. Finally,

“[f]ailure to meet the burden of proof imposed by either part of the Strickland/Miller test

is fatal to a habeas petitioner’s claim.” State ex rel. Vernatter v. Warden, W. Va.

Penitentiary, 207 W. Va. 11, 17, 528 S.E.2d 207, 213 (1999).

Thus, because Mr. Meadows challenges the effectiveness of trial counsel, it

is necessary for us to review Mr. Meadows’ claims under the two-prong Strickland/Miller

standard. We now proceed to address each of the six bases in which error is alleged under

the claim of ineffective assistance of counsel.

1. Inadequate investigation. Mr. Meadows first contends that his trial

counsel (hereinafter referred to as “trial counsel” and “counsel”) was ineffective for failing

to properly conduct an independent and adequate investigation into his case. During the

omnibus evidentiary hearing on his habeas petition, Mr. Meadows testified that his trial

counsel met with him only for limited periods of time before and after hearings and never

at the jail where he remained incarcerated. Further, he stated that counsel never spoke

9

with him over the phone or communicated with him by written correspondence. Due to

this alleged lack of communication, Mr. Meadows claims that he was never given trial

tips, was never counseled on the benefits and risks of testifying, and was never prepared

for cross-examination.

The Respondent R.S. Mutter, Deputy Superintendent of the McDowell

County Corrections/Stevens Correctional Center (hereinafter referred to as “the State”)

disagrees and emphasizes the record of the omnibus evidentiary hearing. Specifically,

during the hearing, counsel testified that although he could not give an exact number of

face-to-face meetings with Mr. Meadows, he estimated approximately twenty meetings,

including telephone conversations and in-person discussions prior to and after hearings.

Counsel also testified that, in addition to the phone calls and in-person discussions, he also

represented Mr. Meadows in the corresponding abuse and neglect proceedings where he

spoke with Mr. Meadows’ family and friends “pretty close to a daily basis.” Moreover,

to supplement his communication with Mr. Meadows, counsel hired a private investigator

to assist him in speaking to witnesses and in meeting with Mr. Meadows. Specifically,

the visitation logs presented at the omnibus evidentiary hearing confirm that the private

investigator met with Mr. Meadows at the jail on numerous occasions.

It has long been recognized in this State that

[t]he fulcrum for any ineffective assistance of counsel

claim is the adequacy of counsel’s investigation. Although

there is a strong presumption that counsel’s conduct falls

10

within the wide range of reasonable professional assistance,

and judicial scrutiny of counsel’s performance must be highly

deferential, counsel must at a minimum conduct a reasonable

investigation enabling him or her to make informed decisions

about how best to represent criminal clients. Thus, the

presumption is simply inappropriate if counsel’s strategic

decisions are made after an inadequate investigation.

Syl. pt. 3, Legursky, 195 W. Va. 314, 465 S.E.2d 416. Further,

[i]n determining whether counsel’s conduct falls within

the broad range of professionally acceptable conduct, this

Court will not view counsel’s conduct through the lens of

hindsight. Courts are to avoid the use of hindsight to elevate a

possible mistake into a deficiency of constitutional proportion.

Rather, under the rule of contemporary assessment, an

attorney’s actions must be examined according to what was

known and reasonable at the time the attorney made his or her

choices.

Syl. pt. 4, id.

In this case, we find no error in the circuit court’s conclusion that the

conduct of Mr. Meadows’ trial counsel fell within the range of effective representation

with regard to the investigation and preparation of his case. While Mr. Meadows offers

conclusory assertions that his trial counsel was ineffective for failing to properly

investigate his case and for failing to prepare him for trial, Mr. Meadows does not offer

specific instances which would suggest that any such alleged failures constituted

ineffective assistance of counsel. From our review of the record, we find trial counsel’s

testimony at the omnibus evidentiary hearing to be compelling. 5 Although Mr. Meadows

“[T]he primary purpose of an omnibus hearing is grounded in providing

5

the Court with evidence from ‘the most significant witness, the trial attorney,’ in order to

11

attempts to paint a picture of neglectful counsel because of a lack of face-to-face meetings

at the jail, we find nothing in the law that requires an attorney to conduct in-person

jailhouse interviews. Rather, as evidenced by the omnibus hearing testimony, trial counsel

was an experienced trial lawyer with twenty-five years of criminal law knowledge and

extensive trial experience. Throughout the life of the litigation, counsel remained in

contact with Mr. Meadows through face-to-face meetings, telephone conversations, and

communication with the private investigator counsel hired.

With regard to preparedness, this Court finds Mr. Meadows’ argument to be

unpersuasive. Mr. Meadows claims that due to a lack of communication, his counsel

failed to prepare him for trial. More specifically, Mr. Meadows claims that he had no

discussions with his counsel about witnesses, trial strategy, or the State’s evidence.

Despite these contentions, trial counsel testified at the omnibus evidentiary hearing that

give that individual ‘the opportunity to explain the motive and reason behind his or her trial

behavior.’ State v. Miller, 194 W. Va. 3, 15, 459 S.E.2d 114, 126 (1995).” Tex S. v.

Pszczolkowski, 236 W. Va. 245, 253-54, 778 S.E.2d 694, 702-03 (2015). In other words,

[t]he focus of any habeas evidentiary hearing as it relates to

ineffective assistance of counsel is affording a petitioner’s trial

counsel an opportunity to explain his actions during the

underlying trial. See id. [State v. Miller, 194 W. Va. 3, 459

S.E.2d 114 (1995)] at 17, 459 S.E.2d at 128 (stating “we

intelligently cannot determine the merits of ... ineffective

assistance claim[s] without an adequate record giving trial

counsel the courtesy of being able to explain his trial actions.”).

Tex S. at 254, 778 S.E.2d at 703.

12

he did prepare Mr. Meadows to testify at trial. In fact, counsel testified that it was Mr.

Meadows’ high-quality testimony that convinced the jury to return a verdict of second-

degree murder instead of a first-degree murder conviction with a sentence of life without

mercy:

Q: Did you prepare him for his testimony?

A: Yes, sir.

Q: Did you speak to him about the likely subjects of cross-

examination?

A: Oh, yes, sir, at length.

Q: When did you do that?

A: Throughout the whole course of these - starting back from

the very first day or so that I talked to him leading up to right

before he testified, we spoke in that room there that you’re

seated in today. And then he and his grandfather and I spoke -

his grandfather and I spoke to him in the room at length

because I was worried he would get on the witness stand and

lose his temper. And he did not. He did a very good job.

....

A: As I said earlier, I thought he was - he was very good. And

perhaps in part the reason that he was only convicted of

second-degree murder was because of his testimony. Frankly,

he surprised me. He did a very good job. It’s just - I’ve always

found it to be a very difficult thing for defendants to testify.

And like I say, I thought he did a very good job.

This Court has held that “[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

13

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). Based on the

foregoing, the record is clear that counsel’s communication with Mr. Meadows and his

preparation of Mr. Meadows for testifying at trial were reasoned and strategic decisions

made pursuant to trial counsel’s extensive experience. Moreover, counsel’s

communications and preparation of Mr. Meadows ultimately resulted in a lesser sentence.

As this Court stated in State ex rel. Daniel v. Legursky, 195 W. Va. at 329, 465 S.E.2d. at

430, “‘[a] decision regarding trial tactics cannot be the basis for a claim of ineffective

assistance of counsel unless counsel’s tactics are shown to be “so ill chosen that it

permeates the entire trial with obvious unfairness.”’ Teague v. Scott, 60 F.3d 1167, 1172

(5th Cir. 1995), quoting Garland v. Maggio, 717 F.2d 199, 206 (5th Cir. 1983).”

In light of these findings, we conclude that counsel’s performance in terms of his

investigation and preparation of Mr. Meadows’ case were not deficient under an objective

standard of reasonableness.

2. Evidence of actual innocence. Next, Mr. Meadows argues that he

received ineffective assistance because his trial counsel failed to offer “explosive

testimony” at trial from witnesses who possessed evidence of his actual innocence.

During the omnibus evidentiary hearing, Mr. Meadows presented the testimony of Gary

Wheeler, the former Sheriff of Summers County and an investigator for the prosecution

during the underlying criminal trial. According to Mr. Wheeler, he located and

interviewed two individuals with what he believed was crucial information for the defense,

14

Stephanie Witham and Indie Riley. Mr. Wheeler obtained a statement from Ms. Witham

in which she claimed that Christen H., upon seeing the child’s autopsy report, stated that

she “didn’t realize her [I.H.’s] arm was broke two days prior to her dying” and that she

“just went too far” after the victim cried the night before her death, stating that she “just

could not get [I.H.] to shut up.” During all of these interactions, Christen H. and Ms.

Witham were housed in the same jail pod.

Ms. Witham was available to testify at trial, but during trial counsel’s cross-

examination, Christen H. denied knowing Ms. Witham. Mr. Meadows contends that

counsel then attempted to have Ms. Witham’s statement admitted into evidence, but was

precluded from doing so because counsel failed to lay an adequate foundation for

impeachment, and Christen H. already had been released as a witness.

Mr. Meadows then assigns ineffective assistance to trial counsel’s failure to

have another witness, Indie Riley, testify at trial. Ms. Riley testified at the omnibus

evidentiary hearing that, during her time as Christen H.’s cellmate in jail and, later, her

roommate after their release, she had concerns about Christen H.’s behavior. According

to Ms. Riley, Christen H. admitted that she “[couldn’t] believe [she] did this,” which Ms.

Riley took to mean that “she killed the baby.” Although trial counsel claimed that he

spoke with Ms. Riley prior to trial, Ms. Riley denied speaking with anyone from counsel’s

office. Mr. Meadows further alleges that counsel never mentioned Ms. Riley to him.

According to Mr. Meadows, the testimony of Stephanie Witham and Indie Riley directly

15

contradicted the evidence against him and, more importantly, was “highly exculpatory and

consistent” with defense’s theory that Christen H. killed the child, not Mr. Meadows. He

argues that trial counsel’s failure to present the testimony of Stephanie Witham and Indie

Riley was constitutionally deficient.

The State maintains that the decision in choosing to forego the testimony of

these two witnesses was made for strategic purposes. Counsel knew of these statements;

however, after speaking with Ms. Riley, he decided not to call her as a witness. During

the omnibus hearing, trial counsel testified as follows:

Q: And that was a witness named Indie Riley. She would have

also been in the pod with [Christen H.] and then later had

resided with [Christen H.]. Do you remember Miss Riley?

A: I spoke to Miss Riley. I do remember the name Indie, yes.

Q: And did you attempt to secure her appearance at trial?

A: It depends on what you term as secure her appearance. I

spoke to her before the trial. And she wasn’t going to say what

we had hoped that she would say. And so at that point, I did

not - did not attempt to bring her to the trial.

Likewise, counsel made a strategic decision to forego presenting the

testimony of Ms. Witham. The State emphasizes that Mr. Meadows “grossly

mischaracterizes Ms. Witham’s statements” as Christen H.’s admissions of guilt. Rather,

when put in context, Christen H.’s comments to Ms. Witham pertained to the child’s

broken arm. Ms. Witham admits that Christen H. never explicitly admitted to killing the

child. While counsel could have laid a foundation for Mr. Witham’s testimony by

16

questioning Christen H., he made a thorough and strategic reason for not doing so. During

the omnibus evidentiary hearing, trial counsel testified:

A: When Cristen H. was on the stand, I remember she was a

very sympathetic - in my mind, she was perhaps the best

witness, I thought - one of the best witnesses, if not the best

witness, for the [S]tate. She, how should I say, evoked great

sympathy, I felt like. It was just crushing to our side, frankly.

And I didn’t want her back on the stand. I also knew -- there

was some strategy involved in that. I knew what she was going

to say. If she had the opportunity to read the statement, she

was going to say that what she meant by the statement was she

made a big mistake in giving - leaving the child with Mr.

Meadows. And I didn’t want her really to clarify that, frankly.

And I didn’t want her back on the stand.

Q: And the only way that Witham would’ve been able to testify

would’ve been if you had recalled Cristen H.; is that correct?

A: I thought Ms. Witham did testify a little bit.

Q: Well, she did a little bit. But I think the Court did not allow

her –

A: There was maybe an objection to her testifying about the

actual statement because [Christen H.] didn’t read the

statement?

Q: Correct.

A: Yes.

In conducting our review of this case, we must clarify that, in addressing the

issue of whether a reasonable attorney would have investigated the witnesses statements,

we are not concerned with the truth or falsity of the statement, or whether the statement

itself might have led to adverse consequences for Mr. Meadows at trial. Rather, the sole

17

issue presented now is whether trial counsel acted as a reasonable criminal defense attorney

in choosing to forego this testimony.

Having presented substantial evidence, counsel [is] not

required to develop every conceivable defense that was

available. Nor [is] counsel required to offer a defense or

instruction on every conceivable defense. What defense to

carry to the jury, what witnesses to call, and what method of

presentation to use is the epitome of a strategic decision, and it

is one that we will seldom, if ever, second guess. Obviously,

lawyers always can disagree as to what defense is worthy of

pursuing “such is the stuff out of which trials are made.”

Solomon v. Kemp, 735 F.2d 395, 404 (11th Cir.1984), cert.

denied, 469 U.S. 1181, 105 S.Ct. 940, 83 L.Ed.2d 952 (1985).

State v. Miller, 194 W. Va. 3, 16, 459 S.E.2d 114, 127 (1995). Accord State ex rel. Adkins

v. Dingus, 232 W. Va. 677, 753 S.E.2d 634 (2013).

In the instant proceeding, trial counsel testified that he had strategic reasons

for not presenting the statements of Ms. Witham and Ms. Riley. It was his belief that the

statements lacked explicit admissions of guilt, and that presenting the ambiguous

statements would do more harm than good to Mr. Meadows’ defense if he tried to lay a

foundation through Christen H., who was a very sympathetic witness for the prosecution.

We agree.

At first glance, the statements of Ms. Witham and Ms. Riley appear to be

exculpatory statements that are favorable to Mr. Meadows’ defense. However, upon a

closer examination, we find that Mr. Meadows has overstated the potential exculpatory

18

value of these statements. We find that under the circumstances presented to us regarding

the performance of trial counsel, a reasonable lawyer could have certainly made the

strategic decision not to present these witness statements at trial. As evidenced here, trial

counsel had a strong belief that (1) the statements were not outright admissions; (2) the

statements could be misconstrued; and (3) the potential probative value of the statements

would have been destroyed during the laying of the foundation for their admissibility

because Christen H. was a strong witness for the prosecution. As this Court has stated in

the past, “[t]here is much wisdom for trial lawyers in the adage about leaving well enough

alone.” Miller, 194 W. Va. at 17, 459 S.E.2d at 128.

In its order denying Mr. Meadows’ petition for habeas corpus relief, the

circuit court stated that

[r]ather than providing first-hand evidence of the guilt of

[Christen H.], a review of the transcript of Investigator

Wheeler’s [prosecution’s investigator] interview with Witham

clearly show that no statement was made by [Christen H.]

indicating that she had murdered the victim; rather, Witham’s

conclusion of [Christen H.’s] guilt in the matter was merely

speculative, and failing to elicit the testimony was not

unreasonable. Even assuming arguendo, that the failure to

introduce the evidentiary testimony was a constitutionally

deficient on the part of Petitioner’s trial counsel, Petitioner

fails to demonstrate that the admission of the speculative

statement would have a reasonable probability of changing the

outcome of the trial. Thus, Petitioner’s second claim under a

theory of ineffective assistance of counsel cannot fulfill the

second prong of the Strickland/Miller test.

19

We agree with the circuit court’s reasoning. Accordingly, we find that trial

counsel’s performance in terms of his decision to forego presenting the witness statements

of Ms. Witham and Ms. Riley was a strategic decision; it was not deficient under an

objective standard of reasonableness, and therefore, Mr. Meadows fails to meet the first

prong of Strickland/Miller on this point.

3. Eliciting evidence of polygraph testing. Mr. Meadows next

contends that his trial counsel was constitutionally deficient for eliciting evidence of

polygraph testing. According to Mr. Meadows, in response to a line of questioning during

his trial counsel’s cross-examination of Christen H., she repeatedly referenced the fact that

she had passed a polygraph test wherein she denied injuring the child. He argues that this

evidence was clearly inadmissible; no effort was made by his counsel to have the reference

to the polygraph results withdrawn; and no request was ever made for a curative

instruction to attempt to resolve the improper testimony.

In Mr. Meadows’ direct appeal, this Court found that while error was

committed when the polygraph testimony was introduced, “it was not reversible error

because the evidence was not elicited from or about the defendant, and defense counsel

rather than the State was responsible for its introduction.” Meadows, 231 W. Va. at 21,

743 S.E.2d at 329. In other words, the admission of the polygraph evidence was invited

error and, therefore, not reversible. Id. Now, in the current habeas appeal, Mr. Meadows

avers that because the inadmissibility of polygraph evidence is “well-established” in this

20

State, by failing to object to this inadmissible testimony, counsel provided deficient

representation under an objective standard of reasonableness.

The State rebuts Mr. Meadows’ assertions with regard to the polygraph

evidence, and refers to the decision of this Court in Mr. Meadows’ direct appeal. See

generally Meadows, 231 W. Va. 10, 743 S.E.2d 318. During his direct appeal, Mr.

Meadows challenged the polygraph evidence arguing plain error in the trial court’s denial

of his motion for a mistrial and in its failure to offer a curative instruction. Id. at 20, 743

S.E.2d at 328. Despite finding that error did occur when the polygraph evidence was

introduced, this Court concluded that no grounds for a mistrial existed because the

polygraph references related to a witness, not the defendant, himself. Id. at 20-21, 743

S.E.2d at 328-329. This Court further articulated that “it was not reversible error because

the evidence was not elicited from or about the defendant” and the defendant was able to

challenge the witness’ credibility through several defense witnesses. Id. As such, the

State concludes that even if counsel’s references were objectively unreasonable, Mr.

Meadows fails to show prejudice under the second prong of the Strickland/Miller test.

With regard to this issue, we have no difficulty in finding that trial counsel’s

performance regarding the polygraph references was constitutionally deficient. Counsel

should not have elicited testimony from the witness regarding her polygraph test—which

is well-known to be inadmissible evidence. It is well-established that “[p]olygraph test

results are not admissible in evidence in a criminal trial in this State.” Syl. pt. 2, State v.

21

Frazier, 162 W.Va. 602, 252 S.E.2d 39 (1979). At trial, Mr. Meadows’ attorney moved

for a mistrial, but he did not request a curative instruction regarding the polygraph

evidence. However, as this Court stated in Mr. Meadows’ direct appeal, “this Court has

not established a hard and fast rule that a curative instruction is always required regardless

if objection is raised, or that such instruction would always serve to cure the erroneous

introduction of polygraph evidence.” State v. Meadows, 231 W. Va. 10, 21, 743 S.E.2d

318, 329 (2013). This Court concluded in the direct appeal that

[i]n view of the fact that the polygraph references in the case

before us related to a witness rather than the defendant himself,

we find no manifest necessity requiring the discharge of a jury

by grant of a mistrial. . . . Additionally, the record reflects that

Meadows was not impeded from raising a challenge to

Christen [H.]’s veracity through the testimony of several

defense witnesses.

Id. Before us, Mr. Meadows cites no authority requiring trial counsel to ask for a curative

instruction to avoid a claim of ineffective assistance of counsel.

To obtain relief, a petitioner has the burden of showing not only unreasonable

representation, but also the existence of prejudice. See, e.g., Vernatter, 207 W. Va. at 17,

528 S.E.2d at 213 (“Failure to meet the burden of proof imposed by either part of the

Strickland/Miller test is fatal to a habeas petitioner’s claim. State ex rel. Daniel v.

Legursky, 195 W. Va. 314, 321, 465 S.E.2d 416, 423 (1995).”).

In order to obtain relief under Strickland/Miller, it is not

sufficient that a petitioner only point to his or her attorney’s

deficient performance. In addition, he or she must demonstrate

that the complained of deficiency resulted in prejudice or, as

22

discussed above, a “reasonable probability” that in the absence

of error the result of the proceedings would have been

different, Strickland, supra, and was fundamentally unfair or

unreliable. Lockhart [v. Fretwell, 506 U.S. 364, 113 S.Ct. 838,

122 L.Ed.2d 180 (1993).

Legursky, 195 W. Va. at 325, 465 S.E.2d at 427.

Under the facts presented in the case sub judice, we agree with the State that

Mr. Meadows has failed to demonstrate prejudice under the second prong of

Strickland/Miller. Mr. Meadows “strives to persuade us that we should do what is rarely

done—find that his rights under Section 14 of Article III of the West Virginia Constitution

were denied in that he was a victim of his counsel’s ineffective assistance at the trial level.”

Legursky, 195 W. Va. at 319, 465 S.E.2d at 421. However, “[u]nless claims of ineffective

assistance of counsel have substantial merit, this Court, historically, has taken a negative

view toward the assertion of frivolous claims.” Id.

Moreover, as we noted above, trial counsel did not ask for a curative

instruction regarding the improper polygraph testimony, and Mr. Meadows does not cite

any authority requiring trial counsel to request such an instruction. Even if we assume that

trial counsel should have asked for a curative instruction, Mr. Meadows fails to

demonstrate that such an instruction would have had a reasonable probability to change the

outcome of the proceedings as required by the second prong of the Strickland/Miller test.

To be clear, inviting this error fell outside the scope of Strickland/Miller’s delineated range

23

of effective assistance. However, a finding of unreasonable representation does not end an

inquiry into ineffective assistance of counsel. Pertaining to the second prong of the

Strickland/Miller test, Mr. Meadows offers only one sentence in his appellate brief to

demonstrate prejudice: “Counsel’s performance in addressing the initial mention of the

polygraph and then allowing her to reference it again on two more occasions was clearly

ineffective and prejudicial for all the reasons stated above.” Aside from this one sentence,

Mr. Meadows does not address or analyze, in any detail, why there exists a reasonable

probability that, but for counsel’s ineffective assistance, the result of his trial would have

been different. “The burden of persuasion placed on the petitioner is indeed a heavy one

and, under our jurisprudence, we are prevented from reversing convictions on this ground

unless two components are satisfied.” Legursky, 195 W. Va. at 319, 465 S.E.2d at 421.

Here, Mr. Meadows generally concludes that he was prejudiced by the

polygraph evidence, and that his counsel should have asked for a curative instruction.

However, he does not provide any support for the notion that there was a reasonable

probability that the verdict would have been any different with a curative instruction. From

our own review of the law, as well as the evidence presented to the jury upon which the

jury based it guilty verdict, we do not find that a curative instruction would have altered

the outcome of the trial. See State ex rel. Wimmer v. Trent, 199 W. Va. 644, 649, 487

S.E.2d 302, 307 (1997) (“Under the circumstances the court believes that even if the

instruction had been given, it is not reasonably probable that the jury would have found

differently given the overall evidence in the case.”).

24

Moreover, the polygraph references were not related to Mr. Meadows,

himself, and he was able to attack the polygraph witness’ credibility through other

witnesses who testified on his behalf. We therefore conclude that, with respect to the

second prong of Strickland/Miller, Mr. Meadows has failed to establish that but for his

counsel’s failure to obtain a curative instruction for the polygraph evidence, there was a

reasonable probability of a different outcome.

4. Display of victim’s photographs. The next challenge raised by Mr.

Meadows relates to photographs of the child that were displayed during Mr. Meadows’

cross-examination. Although he acknowledges that counsel objected to the admissibility

of the photos, themselves, he maintains that counsel was ineffective for failing to object

to the photographs being continually displayed during his testimony. Mr. Meadows

argues that the photographs were inflammatory and had a “tremendous effect” on his

ability to testify.

The State contends that Mr. Meadows fails to illustrate how his trial counsel

was ineffective with regard to the photographs. First, the State argues that the trial

transcript lacks any indication that the photos in question distracted petitioner or otherwise

hindered Mr. Meadows’ ability to effectively testify, as he alleges. In fact, as addressed

above, counsel believed petitioner’s testimony was “very good” and perhaps the reason

he was convicted only of second-degree murder rather than life without mercy. Similarly,

the State avers that the record is devoid of any evidence that the jury was distracted by the

25

photos or was unable to consider Mr. Meadows’ testimony because of their display.

Lastly, the State reiterates that Mr. Meadows’ trial counsel did object to the photographs,

themselves, and any decision not to offer further objections to their display was likely a

strategic decision.

We agree with the State that trial counsel was not deficient for failing to offer

continued objections to the photographs. Here, Mr. Meadows fails to put forth any

evidence to show that counsel’s decision was anything other than a strategic decision to

avoid drawing additional attention to the photos by repeatedly objecting. At the omnibus

evidentiary hearing, counsel specifically testified that he objected to the photos previously

and that repeated objections can “become . . . overkill” and that repeatedly being overruled

is “not a good tactic at trial.” While there is certainly a distinction between objecting to

the use of the photographs and objecting to the photographs’ continuous display, trial

counsel was in the best position to determine how to minimize the photos’ impact on the

jury. Further, it is unclear if an objection to their display would have been sustained, given

the trial court’s ruling on the photos’ admissibility generally. At trial, the court weighed

the probative value of the photographs against their prejudicial value, and ruled that

the State’s theory of the case, at least, is that the child was in

reasonably good health early that morning when the mother left

home and that the child suffered life-ending injuries while she

was in the custody of the defendant. And the Court feels that

there’s - if I understand correctly, there’s pictures of the child

before the day in question, in which the child appeared to be

fairly normal. Then, there’s pictures after the child was taken

to the hospital that showed extensive injuries.

26

And the Court feels that there would be a great deal of

probative value here because of that, because they would show

that the child was initially uninjured, and then later was

injured. So, there’s a great deal of probative value.

The State used the photographs to rebut Mr. Meadows’ testimony as to who inflicted the

child’s injuries, where they were inflicted on the child’s body, and what they looked like

when he came into contact with the child.

Therefore, the habeas court found Mr. Meadows’ argument regarding the

photographs to be meritless because of the relevancy of the photos and the limited scope

of their use by the State in rebutting Mr. Meadows’ trial testimony. We agree.

Additionally, this issue already was litigated during Mr. Meadows’ direct appeal. When

determining that no error resulted from their admission and subsequent display, this Court

found that

[w]hile the photographs depicting the toddler from the time

closest to the infliction of the fatal blows through autopsy are

unquestionably disturbing, they were admissible as evidence

relevant to material elements of the prosecution’s burden of

proof and the probative value clearly outweighed any

prejudicial impact. The autopsy photos were used to explain

the force of the blows causing the child’s ultimate death by

showing how deeply the brain tissue itself had been damaged,

negating that the child’s injuries were the result of an accident

or fall. The autopsy pictures of the child’s lip and chin were

used to dispel any misconception that the injuries were caused

by anything other than forceful blows to the child’s head. The

photographs taken prior to death document the number and

location of bruises on the child’s entire body, and provided the

fact-finder with information as to the extent of the blows which

had more recently been inflicted on the child. Accordingly, we

27

find no error in the trial court’s admission of the photographs.

Meadows, 231 W. Va. at 23-24, 743 S.E.2d at 331-32. Insofar as this Court found no error

on direct appeal with regard to the admission of these photographs, we extend that

conclusion, for similar reasons and trial strategy, to the additional allegation raised here

regarding the continued display of the photographs. Mr. Meadows’ counsel cannot

logically be deemed ineffective for failing to offer continued objections to the photographs

in question. Because the trial court, the habeas court, and this Court have all found that

there was no error in admitting these photographs at trial, it would be difficult to conclude

that trial counsel was ineffective for failing to object to their continued display. Thus, we

do not find counsel’s failure to offer continued objections constituted deficient

performance.

5. Decision to change venue. Mr. Meadows next argues that his trial

counsel’s performance was deficient because counsel failed to consult with Mr. Meadows

concerning a change of venue from Summers County to Monroe County. Additionally,

Mr. Meadows contends that his trial counsel had a duty to keep him reasonably informed

about the status of his case and to explain the matter so that he could make informed

decisions. See W. Va. R. Prof. Cond. 1.4. He further avers that, on appeal, he was unable

to challenge the change of venue because “there was nothing in the record which

documents when the decision to change venue was made, how the parties were notified of

the change or any other circumstances surrounding the transfer.” Meadows, 231 W. Va.

at 15, 743 S.E.2d at 323. Because counsel made no objection at trial, and because there

28

was an inadequate record as to the decision, no appellate review was possible. As such,

Mr. Meadows maintains that counsel’s ineffective representation precluded him from

exercising his constitutional right to appellate review.

The State refutes Mr. Meadows’ argument and states that his claim of

ignorance regarding the change of venue is disingenuous. In furtherance of its argument,

the State notes that the record reflects that it was Mr. Meadows’ trial counsel who initially

made the motion for a change of venue at a hearing where Mr. Meadows was, in fact,

present. The record further shows that Mr. Meadows and his family were the driving force

behind the motion for the change of venue. During the omnibus evidentiary hearing, trial

counsel provided the following testimony:

A: We did make a motion. In fact, we hired an organization

from Charleston to do a survey to support our motion to change

the venue. The family - Mr. Meadows and his family felt very

strongly that he couldn’t get a fair trial in Summers County,

that it needed to be somewhere else because of all the pretrial

publicity and because of the nature of the case.

Q: So I think early on, you made that motion?

A: I think so, yes, ma’am, near the beginning.

Q: And at that time, did the judge grant the motion?

A: I don’t remember the exact mechanics of that. I thought the

judge maybe took it under advisement. I just don’t remember

the exact mechanics of how all of that happened. At some

point, he agreed, I guess. I don’t know if he agreed or just - if

he agreed it should be moved because of the possible pretrial

prejudicial stuff that had happened or if he just felt like it was

more comfortable to do the trial in Monroe County. I don’t

remember the exact mechanics and timing of all of that. But in

29

any event, I know that it was moved to Monroe County at some

point.

Q: When you found out that it was going to be moved to

Monroe County, did you feel that that in any way would

prejudice your client?

A: No. I mean, that was - like say, that was what we wanted

actually. I think we filed the motion to have it moved.

The trial court changed the venue in an attempt to provide a fair trial to Mr.

Meadows, explaining that there was less publicity in Monroe County, and they were more

likely to find jurors who did not know details of the case. As with multiple other

assignments of error in this case, the transfer of venue was challenged by Mr. Meadows in

his direct appeal, and it was addressed on its merits by this Court. In that opinion, this

Court found that

Meadows has not indicated what prejudice he suffered as a

result of the transfer and the record does not reflect that

Meadows had any difficulty in obtaining evidence or securing

witnesses due to the change in trial location. These facts fall

far short of demonstrating that the trial court acted unilaterally

or arbitrarily by moving the location of the trial or that

Meadows did not receive a fair trial as guaranteed by our State

Constitution. As such, the facts before us do not trigger the

application of the plain error doctrine.

Meadows, 231 W. Va. at 20, 743 S.E.2d at 328. We agree. As stated earlier, because the

trial court, the habeas court, and this Court have all found that there was no error in

changing venue, it would be difficult to conclude that trial counsel was ineffective in this

regard. Moreover, Mr. Meadows fails to show that he received an unfair trial in Summers

County. Therefore, we find that Mr. Meadows has failed to satisfy his obligation under the

30

first prong of Strickland/Miller, which requires him to show that his counsel’s performance

with regard to venue was deficient under an objective standard of reasonableness. Because

we conclude that Mr. Meadows has failed to meet his obligation under the first prong of

Strickland/Miller, we need not address the second prong.

6. Addressing play therapy. Mr. Meadows’ last ineffective assistance

of counsel contention involves the admissibility of play therapist Steve Ferris’ testimony

at trial. Mr. Meadows argues that, during trial, Steve Ferris was allowed to testify about

observations he made from engaging with the victim’s brother during play therapy sessions

conducted to allow the child to deal with his sister’s death. On direct appeal, appellate

counsel attempted to assert that this testimony represented conclusions based on mere

speculation and conjecture, as there were no real statements made by the brother, and that

the testimony consisted solely of Mr. Ferris’ interpretations of the brother’s actions.

Meadows, 231 W. Va. at 21, 743 S.E.2d at 329. This Court, however, found that trial

counsel’s objections to Steve Ferris’ testimony on appeal were based on different grounds,

and not based on hearsay as were his trial objections to such testimony. Therefore, even

though such considerations were articulable under the test identified by this Court,

appellate review was precluded due to counsel’s failure to raise these specific objections

before the trial court. See, e.g., State v. DeGraw, 196 W. Va. 261, 272, 470 S.E.2d 215,

226 (1996) (“It is well established that where the objection to the admission of testimony

is based upon some specified ground, the objection is then limited to that precise ground

and error cannot be predicated upon the overruling of the objection, and the admission of

31

the testimony on some other ground, since specifying a certain ground of objection is

considered a waiver of other grounds not specified.”).

The State disagrees with Mr. Meadows’ characterization of trial counsel’s

actions with regard to the play therapy evidence. First, the State represents that trial

counsel did object to Mr. Ferris’ testimony. In fact, counsel termed the testimony

objectionable “on every level” and “completely improper,” and he objected to it as being

beyond any hearsay exception permitted under Rule 803(4) of the West Virginia Rules of

Evidence, 6 and as a violation of the confrontation clause. However, as this Court pointed

out on direct appeal, counsel did not raise specific objections, and

[t]rial counsel did not argue that the testimony was not based

on statements the brother made to the psychologist, that the

brother’s statements were inconsistent with the purpose of

providing treatment, or that the statements were not relied upon

by the psychologist for the purposes of treatment or diagnosis.

See Syl. Pt. 4, State v. Payne, 225 W.Va. 602, 694 S.E.2d 935

(2010) (quoting Syl. Pt. 5, State v. Edward Charles L., 183

W. Va. 641, 398 S.E.2d 123 (1990)) (providing test for

determining admissibility of evidence pursuant to Rule

803(4)).

Meadows, 231 W. Va. at 21, 743 S.E.2d at 329. The State contends that, now, Mr.

Meadows gives only cursory treatment to the issue by concluding, without any support,

6

Rule 804(4) of the West Virginia Rules of Evidence states: “The following

are not excluded by the rule against hearsay, regardless of whether the declarant is available

as a witness: A statement that: (A) is made for – and is reasonably pertinent to – medical

diagnosis or treatment; and (B) describes medical history; past or present symptoms or

sensations; their inception; or their general cause.”

32

that Mr. Ferris’ use of certain phrases transformed his testimony into something

unacceptable under Rule 803(4). Because this contention is mentioned only in passing, the

State argues that it should not be addressed by this Court in the present appeal.

We find that Mr. Meadows’ claim of ineffective assistance of counsel

concerning trial counsel’s failure to object to the play therapist’s testimony fails under the

first prong of Strickland/Miller. Not only did Mr. Meadows’ trial counsel make multiple

objections to this testimony at trial, but this Court also found—on direct appeal—that the

play therapy testimony was appropriately found to be admissible for many legitimate

purposes. See Meadows, 231 W. Va. at 22, 743 S.E.2d at 330.

Here, Mr. Meadows fails to show how his trial counsel was deficient. From

the record, it appears that counsel appropriately objected to the testimony and provided

effective representation to Mr. Meadows. As explained in State v. Miller,

[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.

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

33

Further, assuming arguendo that the first prong of Strickland/Miller was

satisfied, we find no evidence to support the second prong. In this assignment of error,

Mr. Meadows provided only a skeletal argument that fails to show any prejudice from the

lack of specific objections set forth above. Because he cannot show that a specific

objection would have rendered the testimony inadmissible, or changed the outcome of his

trial, he is not entitled to habeas relief on this ground.

B. Cumulative Error

Lastly, Mr. Meadows alleges that the circuit court erred in failing to grant

relief based upon cumulative error. In support of this argument, he merely quotes Syllabus

point 5 of State v. Smith, 156 W. Va. 385, 193 S.E.2d 550 (1972), and states that there

were multiple errors cited that warrant relief. Syllabus point 5 of Smith holds that “[w]here

the record of a criminal trial shows that the cumulative effect of numerous errors

committed during the trial prevented the defendant from receiving a fair trial, his

conviction should be set aside, even though any one of such errors standing alone would

be harmless error.” Id.

The State responds and characterizes Mr. Meadows’ argument as “skeletal,

consisting of a single statement of law and no legal analysis whatsoever, thereby

implicating this Court’s ‘truffle doctrine.’” See State, Dep’t of Health & Human Res.,

Child Advocate Office v. Robert Morris N., 195 W. Va. 759, 765, 466 S. E.2d 827, 833

34

(1995) (“Judges are not like pigs, hunting for truffles buried in briefs.”) (citations and

quotations omitted). As such, the State contends that the argument on this issue is not

reviewable.

This Court previously has held that “[w]here the record of a criminal trial

shows that the cumulative effect of numerous errors committed during the trial prevented

the defendant from receiving a fair trial, his conviction should be set aside, even though

any one of such errors standing alone would be harmless error.” Syl. pt. 7, State v. Tyler

G., 236 W. Va. 152, 778 S.E.2d 601 (2015) (citation omitted). It was further noted that

this doctrine is “applicable only when ‘numerous’ errors have been found.” Id. at 165, 778

S.E.2d at 614 (citation omitted). “Two errors do not constitute ‘numerous’ for purposes of

the cumulative error doctrine.” Id. Even where the errors are numerous, if they are

“insignificant or inconsequential, the case should not be reversed under the doctrine.” Id.

(citation omitted).

We need not engage in an extended analysis of Mr. Meadows’ cumulative

error argument. Though raised as an assignment of error, Mr. Meadows fails to argue or

adequately brief the issue. “In the absence of supporting authority, we decline further to

review this alleged error because it has not been adequately briefed.” State v. Allen, 208

W. Va. 144, 162, 539 S.E.2d 87, 105 (1999). See also State v. LaRock, 196 W. Va. 294,

302, 470 S.E.2d 613, 621 (1996) (“Although we liberally construe briefs in determining

35

issues presented for review, issues which are not raised, and those mentioned only in

passing but [which] are not supported with pertinent authority, are not considered on

appeal.”); Robert Morris N., 195 W. Va. at 765, 466 S.E.2d at 833 (1995) (“[A] skeletal

‘argument,’ really nothing more than an assertion, does not preserve a claim[.]” (internal

quotations and citations omitted)); Syl. pt. 6, Addair v. Bryant, 168 W. Va. 306, 284 S.E.2d

374 (1981) (“Assignments of error that are not argued in the brief on appeal may be deemed

by this Court to be waived.”). Moreover, we have found no errors in the trial court’s

proceedings that would warrant application of this doctrine to the facts of this case.

IV.

CONCLUSION

For the reasons set forth above, we affirm the denial of habeas corpus relief.

Accordingly, the April 5, 2018 order of the Circuit Court of Monroe County denying Mr.

Meadows’ petition for writ of habeas corpus is affirmed.

Affirmed.

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