“Credibility determinations are for a jury and not an appellate court.”
How later courts described this case
- “Credibility determinations are for a jury and not an appellate court.”
Written by the judges who cited it.
The opinion
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2021 Term FILED
November 19, 2021
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
No. 20-0169
KEVIN GOODMAN, JR.,
Petitioner Below, Petitioner
v.
SHELBY SEARLS, SUPERINTENDENT,
HUTTONSVILLE CORRECTIONAL CENTER,
Respondent Below, Respondent
Appeal from the Circuit Court of Fayette County
The Honorable Paul M. Blake, Jr.
Case No. 17-C-342
AFFIRMED
Submitted: October 26, 2021
Filed: November 19, 2021
J. Timothy DiPiero, Esq. Patrick Morrisey, Esq.
Lonnie C. Simmons, Esq. Attorney General
Luca D. DiPiero, Esq. Mary Beth Niday, Esq.
DIPIERO SIMMONS MCGINLEY & BASTRESS, PLLC Assistant Attorney General
Charleston, West Virginia Gordon L. Mowen, II, Esq.
Attorneys for Petitioner Assistant Attorney General
Charleston, West Virginia
Attorneys for Respondent
JUSTICE WALKER delivered the Opinion of the Court.
JUSTICE WOOTON dissents and reserves the right to file a separate opinion.
SYLLABUS BY THE COURT
1. “In reviewing challenges to findings and conclusions of a 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. “‘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.’ Syl. Pt. 21, State v. Thomas,
i
157 W. Va. 640, 203 S.E.2d 445 (1974).” Syllabus Point 3, State v. Frye, 221 W. Va. 154,
650 S.E.2d 574 (2006).
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 v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).
5. “In order to obtain a new trial on a claim that the prosecutor presented
false testimony at trial, a defendant must demonstrate that (1) the prosecutor presented false
testimony, (2) the prosecutor knew or should have known the testimony was false, and (3)
the false testimony had a material effect on the jury verdict.” Syllabus Point 2, State ex
rel. Franklin v. McBride, 226 W. Va. 375, 701 S.E.2d 97 (2009).
ii
WALKER, Justice:
A jury convicted Kevin Goodman, Jr. of first-degree robbery, conspiracy,
and entry of a dwelling after he and several accomplices entered the home of an elderly
couple and held them and their grandchildren at gunpoint while members of the group stole
a safe and other items. We affirmed the conviction in 2017, and now Mr. Goodman appeals
the circuit court’s denial of his petition for writ of habeas corpus. 1
Mr. Goodman argues that his trial counsel provided ineffective assistance by
failing to introduce certain evidence and not requesting specific jury instructions. He also
claims that the prosecutor violated his constitutional rights by knowingly presenting false
testimony. But, in deeming his lawyer’s decision-making deficient, Mr. Goodman fails to
recognize that many reasonable lawyers would have strategically made the same decisions
under the circumstances. Mr. Goodman likewise mischaracterizes a witness’s
contradiction of prior statements as presentation of false evidence by the State. So, we find
Mr. Goodman failed to meet his burden of proof and affirm the circuit court’s denial of his
petition.
1
Shelby Searls replaced Tom Harlan as superintendent of the Huttonsville
Correctional Center after the petitioner filed this appeal. So, we substituted the parties
according to Rule 41(c) of the West Virginia Rules of Appellate Procedure.
1
I. FACTUAL AND PROCEDURAL BACKGROUND
Mr. Goodman’s brother, Kentrell Goodman (Kentrell), previously lived in
Oak Hill, West Virginia, and during his time there, spent significant time in the home of
Linda and Edward Knight because he was friends with their grandson, Andrew Gunn. At
some point shortly before January 9, 2015, Kentrell and his girlfriend, Linsey Hess, moved
from Oak Hill to the home of Benita Wicker (Aunt Benita) in Little Mountain, South
Carolina. Aunt Benita is the paternal aunt of Kentrell and Mr. Goodman, and Rashod
Wicker is Aunt Benita’s son and first cousin of Kentrell and Mr. Goodman. By the time
Kentrell moved in with Aunt Benita, Mr. Goodman split his time living there or at his
girlfriend, Courtney Curry’s, nearby apartment. Mr. Wicker, Tamika Bookman, and
Shakayla Wicker (Shakayla) also lived with Aunt Benita.
Antwyn Gibbs and Radee Hill lived in separate homes close to Aunt Benita’s
house and spent some time there with Kentrell, Mr. Goodman, and Mr. Wicker. A few
days before January 9, 2015, Kentrell told Mr. Goodman about a significant stash of money
Mr. Gunn kept in a safe in his bedroom inside the Knights’ home, and Mr. Goodman told
Kentrell something to the effect of “[l]et’s go get money.” The Goodman brothers then
recruited the assistance of Mr. Wicker, Mr. Hill, and Mr. Gibbs, and at some time between
midnight and 1:00 a.m. on January 9, 2015, the group departed South Carolina with Mr.
Wicker driving Ms. Hess’s car towards Oak Hill, West Virginia.
2
The group arrived in Oak Hill at around 7:30 or 8:00 that morning, and Mr.
Wicker parked the car near a wooded area 50-60 feet from the Knights’ house. Mr. Wicker
has cerebral palsy which limits his mobility, so he stayed in the car while the others
retrieved several guns from the trunk and descended upon the Knights’ home. Ms. Knight
left a door to her home ajar that morning after letting her dogs out, and as she sat on the
couch in the living room preparing her daughter’s hair for school, she saw a long-gun ease
through the door and several men covering their faces and yelling follow closely behind.
Ms. Knight refused one of the intruder’s demand that she get on her knees and instead
remained seated on the couch where her eighteen-year-old, disabled grandson buried his
head in her lap and cried while her five-year-old granddaughter cowered behind her.
Two of the intruders proceeded to ransack Mr. Gunn’s room while at least
one other held the victims at gunpoint. Those in Mr. Gunn’s bedroom located the safe and
threw it, two pairs of Jordan athletic shoes, and a crossbow out the window. The group
then gathered the objects and fled back to the getaway car, which Mr. Wicker drove back
to South Carolina. When they arrived later that day, they went to Mr. Gibbs’s home to
blast open the safe with a shotgun and divided the contents of approximately $10,000
amongst themselves. Members of the group then transported the damaged safe to Aunt
Benita’s house and disposed of it behind a shed in her yard. Ms. Hess heard Mr. Goodman
and Kentrell discussing the robbery days before it happened and then saw Mr. Goodman,
Kentrell, and Mr. Wicker with the safe at Aunt Benita’s house.
3
Immediately after the robbery, officers from the Oak Hill police department
responded to the scene to investigate. Shortly into the investigation, Mr. Goodman’s
mother told investigators that she suspected Mr. Goodman’s involvement and directed the
officers to his whereabouts in South Carolina. And on January 14, 2015, officers from the
Oak Hill Police Department traveled to Newberry, South Carolina and, with the help of
local law enforcement, obtained and executed a search warrant on Aunt Benita’s home.
The police found, among other things, the opened safe behind the shed and Mr. Goodman’s
wallet in a bedroom with a shotgun, a rifle, and two handguns. Kentrell and Mr. Wicker
were present when the police executed the warrant, and the police arrested them. Each
gave statements admitting to the robbery and implicating Mr. Goodman, Mr. Gibbs, and
Mr. Hill. The same day, police executed a search warrant at Mr. Gibbs’s home and found
fragments of the safe and spent shotgun shells in the backyard. Phone records showed that
on the morning of the robbery, Mr. Gibbs’s phone pinged on cell towers in Max Meadow,
Virginia, Flat Top, West Virginia, and Oak Hill, West Virginia.
A grand jury indicted Mr. Goodman, Kentrell, Mr. Gibbs, Mr. Wicker, and
Mr. Hill jointly on charges of first-degree robbery, entry of a dwelling, grand larceny, and
conspiracy. Before trial, Kentrell and Mr. Wicker pled guilty to first degree robbery, and
the State dropped the other charges in exchange. Kentrell and Mr. Wicker testified against
Mr. Goodman, Mr. Gibbs, and Mr. Hill at their joint trial, and after the State presented its
case, Mr. Goodman offered his girlfriend, Courtney Curry, as an alibi witness and testified
in his own defense. Ms. Curry claimed she picked Mr. Goodman up from Aunt Benita’s
4
at around 8:30 a.m. on January 9, 2015. But, Ms. Curry sent Ms. Hess a text message at
around 1:00 a.m. that day asking if she knew Mr. Goodman’s whereabouts, and Ms. Hess
responded that he traveled to West Virginia with Kentrell. Mr. Goodman claimed he
passed out drunk and slept the whole night on Aunt Benita’s couch before Ms. Curry picked
him up and that Ms. Hess either mistakenly said he was in West Virginia or lied. He also
claimed that Aunt Benita, Shakayla, and Ms. Bookman were all home when he woke up
on the 9th, but the prosecutor pointed out on cross-examination that Mr. Goodman
presented none of them as alibi witnesses.
The jury found Mr. Goodman, Mr. Gibbs, and Mr. Hill guilty of first-degree
robbery, entry of a dwelling, and conspiracy. The trial court sentenced Mr. Goodman to
52-65 years in prison. In 2017, this Court affirmed the convictions and Mr. Goodman’s
sentence. 2
Mr. Goodman filed a petition for writ of habeas corpus in the Circuit Court
of Fayette County on February 11, 2019. Mr. Goodman alleged, among other things,
ineffective assistance of counsel and that the State violated his constitutional rights by
presenting false testimony. Mr. Goodman claimed that trial counsel provided ineffective
assistance by failing to introduce allegedly exculpatory tollbooth images and failing to
request certain jury instructions. Mr. Goodman’s trial counsel testified at an omnibus
2
State v. Gibbs, 238 W. Va. 646, 797 S.E.2d 623 (2017).
5
hearing about the circumstances surrounding the ineffective assistance claims. He stated
that he reviewed the tollbooth videos before trial and “believe[ed] they had no value” and
that he told Mr. Goodman
hey, they had some tollbooth video, but it really only shows the
car going through. And—when I looked at that, you know, the
windows were kind of glazed you couldn’t see into the vehicle.
So to me and how I believe I explained it to [Mr. Goodman],
although I don’t recall the exact words, was the only thing the
videos do is confirm the times in which the vehicle did go
through the tollbooth which did nothing but corroborate the co-
defendant story.
Mr. Goodman’s habeas counsel showed trial counsel a still frame photo from one of the
tollbooth videos and trial counsel claimed that he had never seen the still frame image and
that he would have introduced it to the jury had he seen it before trial.
Trial counsel also testified that, at the time of Mr. Goodman’s trial, he knew
about the availability of jury instructions limiting the jury’s consideration of accomplices’
guilty pleas only to assess the accomplices’ credibility and advising the jury to consider
uncorroborated accomplice testimony with caution. He claimed he did not request the
instructions but that the “[trial court’s] general charge ha[d] some warnings concerning that
in it . . . .” And trial counsel responded, “no,” when Mr. Goodman’s habeas counsel asked
“[w]as there any conceivable strategic reason for not asking for any of these cautionary
instructions to the [c]ourt?”
6
The circuit court denied the habeas petition after finding that trial counsel
provided effective assistance and that the State did not present false testimony. Mr.
Goodman now appeals the order.
II. STANDARD OF REVIEW
We review habeas corpus proceedings under a multipronged
standard:
In reviewing challenges to findings and conclusions of
a 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.[3]
III. ANALYSIS
On appeal, Mr. Goodman raises two assignments of error. First, he claims
that the circuit court should have found ineffective assistance of counsel based on trial
counsel’s failure to introduce the allegedly exculpatory photo and video evidence from the
West Virginia tollbooths and to request jury instructions related to the jury’s consideration
of co-defendants’ testimony about their guilty pleas and other testimony. Second, Mr.
Goodman claims that the trial court erred by finding his rights “were not violated when the
State presented false testimony from a witness, who lied at trial and identified [Mr.
Goodman] as one of the perpetrators, told the jury that it could believe the perjured
3
Syl. Pt. 1, Mathena v. Haines, 219 W. Va. 417, 633 S.E.2d 771 (2006).
7
testimony, and the State failed to take appropriate action to correct the admission of this
perjured testimony.”
A. Mr. Goodman Failed to Prove Ineffective Assistance of Counsel
To begin our analysis of Mr. Goodman’s claims of ineffective assistance of
counsel, we recognize the overarching standard that “[o]ur law is clear in recognizing that
the Sixth Amendment of the federal [C]onstitution and Article III, § 14 of the state
[C]onstitution guarantee not only the assistance of counsel in a criminal proceeding but
that a defendant has ‘the right to effective assistance of counsel.’” 4 And it is well
established that a two-part test applies:
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.[5]
When reviewing whether counsel’s performance was deficient under the first
prong, this Court gives strong deference to the actions of defense counsel, and “[w]hen
assessing whether counsel’s performance was deficient, we ‘must indulge a strong
4
Ballard v. Ferguson, 232 W. Va. 196, 200, 751 S.E.2d 716, 720 (2013) (citing
Cole v. White, 180 W. Va. 393, 395, 376 S.E.2d 599, 601 (1988)).
5
Syl. Pt. 5, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).
8
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance[.]’” 6 In other words, “[j]udicial scrutiny of counsel’s performance must be
highly deferential[,]” 7 and “the defendant must overcome the presumption that, under the
circumstances, the challenged action ‘might be considered sound trial strategy.’” 8 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).” 9 And, as to the second prong, “[t]o demonstrate
prejudice, a defendant must prove there is a ‘reasonable probability’ that, absent the errors,
the jury would have reached a different result.” 10 We may resolve some ineffective
assistance claims on only one prong of the test because “[i]n deciding ineffective of
assistance claims [sic], a court need not address both prongs of the conjunctive standard . .
6
Miller, 194 W. Va. at 15, 459 S.E.2d at 126 (quoting Strickland v. Washington,
466 U.S. 668, 689 (1984)).
7
Strickland, 466 U.S. at 689.
8
Id. (citing Michel v. Louisiana, 350 U.S. 91 (1955)).
9
Syl. Pt. 3, State v. Frye, 221 W. Va. 154, 650 S.E.2d 574 (2006).
10
Miller, 194 W. Va. at 15, 459 S.E.2d at 126 (quoting Strickland, 466 U.S. at 694).
9
. but may dispose of such a claim based solely on a petitioner’s failure to meet either prong
of the test.” 11
Initially, we note that Mr. Goodman emphasizes that his trial constituted trial
counsel’s first jury trial. But, trial counsel’s experience does not affect our objective
analysis of his conduct, because “[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 . . . . [W]e are interested in whether the adversarial process at the time,
in fact, worked adequately.” 12 Mindful of these standards, we turn to Mr. Goodman’s
specific allegations of ineffective assistance of counsel.
1. The Tollbooth Images
Mr. Goodman first claims that trial counsel’s representation fell outside of
the broad range of professionally competent assistance because of his failure to “introduce
into evidence the exculpatory video showing that [Mr. Goodman] was not in the vehicle
used in the crime . . .” and “[trial counsel] evidently performed only a cursory review of
the footage as he later acknowledged that he would have introduced the video had he
investigated in further detail.”
Syl. Pt. 5, in part, State ex rel. Daniel v. Legursky, 195 W. Va. 314, 465 S.E.2d
11
416 (1995).
12
Miller, 194 W. Va. at 16, 459 S.E.2d at 127.
10
As to trial counsel’s decision not to introduce the tollbooth footage, Mr.
Goodman focuses on one still frame photo taken from one of the toll booth videos that he
believes most clearly depicts that “as [Ms. Hess’s] car passes under the roof of the toll
booth, the glare on the slanted back windshield disappears, showing there is no person
seated in this car directly behind the driver.” But the circuit court “thoroughly reviewed
the turnpike toll booth videos” and found “[Mr. Goodman] places far more weight and
exculpatory value on the video tape than it actually warrants.” The circuit court explained
that it “meticulously reviewed each and every segment of the collected video tapes . . . [,
and] at best, the videos are inconclusive as to the occupancy of the subject vehicle and are
of no significant exculpatory value.”
Our analysis of the subject videos and still frame in the appendix record
yields no reason to quarrel with the circuit court’s finding that the videos and photo are
indiscernible, do not reveal the backseat occupancy as Mr. Goodman argues, and offer little
exculpatory value. The photo shows only a silver Acura sedan matching the description of
Ms. Hess’s car driving through the toll booth at 9:17 a.m. on the morning of the robbery
and a collage of reflections and glare in the darkly tinted back windshield with a possible
silhouette of a person seated in the back right-hand side of the car, and all other portions
of the videos reveal even less. That said, there is nothing in the videos to support a finding
that the circuit court clearly erred in its findings.
11
Since the videos had little exculpatory value, trial counsel made a reasonable,
strategic decision not to introduce them into evidence. Just as trial counsel explained to
Mr. Goodman before the trial, the videos placed the vehicle in West Virginia, contained
time stamps matching the robbery timeline, and supported the state’s theory that the group
traveled back to South Carolina after executing the robbery. So, by not introducing the toll
booth videos which may have been more harmful than beneficial, trial counsel’s decision
can be attributed to sound trial strategy, and other reasonable lawyers presented with the
same circumstances might have made the same decision.
Regarding Mr. Goodman’s criticism that trial counsel failed to adequately
investigate the tollbooth videos, we note that trial counsel reviewed them, reasonably found
they contained little exculpatory value, discussed them with Mr. Goodman before trial, and
strategically decided not to admit them. We will not engage in the scrupulous hindsight of
trial counsel’s actions necessary to deem his investigation deficient. 13
For these reasons, Mr. Goodman fails to prove ineffective assistance of
counsel for trial counsel’s investigation of and decision not the introduce the toll booth
videos.
13
See Syl. Pt. 6, id., 194 W. Va. 3, 459 S.E.2d 114.
12
2. The Caudill and Humphreys Jury Instructions
Mr. Goodman next argues that trial counsel offered ineffective assistance by
not requesting a Caudill jury instruction or a Humphreys jury instruction. A circuit court
gives a Caudill instruction to inform the jury that it may consider an accomplice’s
testimony about their guilty plea only to assess the credibility of the accomplice’s
testimony and not to prove the guilt of the defendant. 14 In State v. Flack, we clarified that
the circuit court is only required to give the instruction upon motion by the defendant. 15
Likewise, a circuit court should give a Humphreys instruction when requested by the
defense. 16 A Humphreys instruction advises the jury that “uncorroborated testimony of an
accomplice . . . must be received with caution . . . .” 17
While Mr. Goodman claims trial counsel provided ineffective assistance by
not requesting either the Caudill or Humphreys instruction, Mr. Goodman conflates his
argument for both instructions by arguing that “[b]oth of these cautionary instructions,
which the trial court would have been required to give under the facts of this case, were
critical because the main evidence against [Mr. Goodman] was the testimony of two
alleged accomplices who had pleaded guilty to the crimes [Mr. Goodman] was facing[,]”
14
See Syl. Pt. 3, State v. Caudill, 170 W. Va. 74, 289 S.E.2d 748 (1982).
15
See Syl. Pt. 1, State v. Flack, 232 W. Va. 708, 753 S.E.2d 761 (2013).
16
See Syl. Pt. 1, State v. Humphreys, 128 W. Va. 370, 36 S.E.2d 469 (1945).
17
Id.
13
and “[w]ithout these two helpful and critical cautionary instructions, the jury was provided
no guidance on how it should evaluate the testimony of Mr. Wicker and Kentrell.” Despite
Mr. Goodman blending his argument, we separately address, in turn, trial counsel’s choices
not to request a Caudill or Humphreys instruction.
Mr. Goodman claims that “[u]nder the objective test, a reasonable attorney
would have sought [a Caudill] instruction[] under these facts and there is a reasonable
probability that this deficiency, combined with the failure to present the exculpatory video,
would have resulted in a different outcome.” Mr. Goodman cites Syllabus Point 1 of
Flack 18 to support his argument. But, in its analysis of the deficiency prong of Strickland,
the circuit court found “it rather telling that two other veteran attorneys involved in the
joint trial also did not request the instruction[]” and that “as a tactical matter, trial counsel
might not want” a Caudill instruction given. But, the circuit court “assum[ed] deficiency
without deciding the issue” and resolved the claim on the prejudice prong. The circuit
court seemed hesitant to decide the deficiency prong because trial counsel “appear[ed] to
confess error under the deficiency prong of Strickland/Miller . . . .” But, as noted by many
courts applying Strickland, a defendant does not satisfy the deficiency prong with their trial
18
See Syl. Pt. 1, Flack, 232 W. Va. 708, 753 S.E.2d 761.
14
lawyer’s subjective belief that they may have erred in hindsight. 19 And, as stated by this
Court:
[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.[20]
So, “[e]ven though [Mr. Goodman’s] own counsel . . . testified at the
evidentiary hearing that he believed he made a mistake . . . the Court’s inquiry is an
objective one.” 21 And, trial counsel’s testimony that he knew of no strategic reason for
failing to request the Caudill instruction does not satisfy the deficiency prong, because a
petitioner satisfies the prong by showing that “no reasonably qualified defense attorney
would have so acted in the defense of an accused[,]” 22 and trial counsel’s subjective
knowledge of possible strategies has no bearing on what other lawyers may have done
See, e.g. United States v. Bordon, No. 98-0427-CR, 2007 WL 4180877, at *10
19
(S.D. Fla. Nov. 21, 2007).
20
Syl. Pt. 6, Miller, 194 W. Va. 3, 459 S.E.2d 114 (emphasis added).
Bordon, 2007 WL 4180877, at *10 (citing Chandler v. United States, 218 F.3d
21
1305, 1315 n. 16 (11th Cir. 2000) and Waters v. Thomas, 46 F.3d 1506, 1522 (11th Cir.
1995)).
22
Syl. Pt. 21, in part, Thomas, 157 W. Va. 640, 203 S.E.2d 445.
15
under the circumstances. We choose to resolve this claim under the deficiency prong,
because, under the objective standard, Flack proves the reasonableness of trial counsel’s
decision not to request a Caudill instruction. 23
The facts surrounding the botched theft in Flack possess eerie similarities to
the robbery for which the jury convicted Mr. Goodman. In January 2011, the Flack
defendant traveled with three accomplices from Pulaski, Virginia to a home in Bluefield,
West Virginia intending to burglarize the defendant’s uncle’s home. 24 Upon arrival at the
home, the group discovered the defendant’s seventeen-year-old second cousin, Matthew
Flack, and two other boys alone in the home. 25 The group then forced their way into the
home and one of the defendant’s accomplices, Jasman Montgomery, killed Matthew by
shooting him in the face. 26 Montgomery later pled guilty to first degree murder and
testified against the Flack defendant. 27 Montgomery testified about his guilty plea and the
Flack defendant later appealed his conviction arguing, among other things, that the circuit
23
In Flack v. Ballard, we found the deficiency prong satisfied “for purposes of
[that] proceeding” after the trial lawyer at issue in that case admitted to being unaware of
the existence of a Caudill instruction. 239 W. Va. 566, 579, 803 S.E.2d 536, 549 (2017).
But, as indicated, we limited the holding on the deficiency prong to that case and instead
resolved the claim on the prejudice prong.
24
Flack, 232 W. Va. at 710, 753 S.E.2d at 763.
25
Id.
26
Id.
27
Id. at 711, 753 S.E.2d at 764.
16
court committed plain error by not giving the jury a Caudill instruction on its own
initiative. 28 This Court held that circuit courts have no duty to give a Caudill instruction
unless the defense requests the instruction. 29 We adopted the State’s reasoning that
“defense counsel, faced with the difficult task of dealing with damaging testimony of an
accomplice, may not want to have a Caudill instruction because such an instruction could
emphasize the damaging testimony[, and] [i]n such cases the trial court could be interfering
with a defendant’s right to develop his own trial strategy.” 30 The Court also reasoned that
“[d]efense counsel may have ample reason to get beyond an accomplice’s damaging
testimony as quickly as possible[, and] [w]hether the trial court should instruct the jury
how the accomplice’s damaging testimony could, or could not, be considered is a matter
left to the discretion of defense counsel.” 31
In this instance, we would directly contradict our reasoning in Flack if we
found every reasonable lawyer would request a Caudill instruction under the
circumstances. Instead, we follow the sound reasoning to avoid interfering with defense
lawyers’ ability to develop their trial strategy. We reiterate that defense lawyers often face
difficult decisions about whether to request a Caudill instruction, and we leave the
28
Id. at 713, 753 S.E.2d at 766.
29
See, Syl. Pt. 1., id.
30
Id. at 713, 753 S.E.2d at 766.
31
Id. at 714, 753 S.E.2d at 767.
17
decisions in their discretion. At Mr. Goodman’s trial, a reasonable lawyer in trial counsel’s
position would have to make the decision between drawing more attention to damaging
accomplice testimony or getting the possible benefit of a Caudill instruction and may have
decided to move past the damaging testimony as quickly as possible.
Since trial counsel made a calculated decision by a reasonable lawyer
standard, he acted within the broad range of acceptable professional conduct. Mr.
Goodman’s claim surely does not rebut the presumption that one might objectively
consider the challenged action sound trial strategy, and he fails to prove that no reasonable
lawyer would fail to request instruction under the circumstances.
Turning to Mr. Goodman’s other jury instruction argument, he claims that
trial counsel performed deficiently by failing to request a Humphreys instruction informing
the jury that uncorroborated witness testimony must be received with caution. But, the
circuit court found “the circumstances did not warrant giving the jury an accomplice
testimony cautionary instruction[]” since other evidence corroborated the accomplice
testimony. So, the circuit court also found “[Mr. Goodman’s] claim against his trial
counsel is . . . without merit[,]” because Mr. Goodman cannot “establish that his counsel
was constitutionally ineffective under either prong of Strickland/Miller for failing to
request an instruction that was not warranted.”
18
We agree with the circuit court that the evidence corroborated Kentrell and
Mr. Wicker’s testimony and that trial counsel, therefore, acted reasonably by choosing not
to request an unwarranted instruction. Kentrell and Mr. Wicker both testified that Mr.
Goodman traveled with them, Mr. Gibbs, and Mr. Hill to West Virginia and participated
in the robbery. Each corroborated the other’s testimony. Ms. Hess also corroborated their
testimonies by testifying that she heard Mr. Goodman planning the robbery with Kentrell
and then saw Mr. Goodman and Kentrell with the safe after the robbery. The jury also
considered, among other things, the following corroborating evidence: 1) the text message
Ms. Hess sent Ms. Curry stating that Mr. Goodman traveled to West Virginia with Kentrell,
2) Mr. Goodman’s wallet in Aunt Benita’s home in a room with several guns and the
opened safe in the backyard, 3) fragments of the safe in Mr. Gibb’s backyard with phone
records that showed Mr. Gibbs’s travel to West Virginia on the morning of the robbery, 4)
the investigator’s testimony that the Oak Hill Police Department pinned Mr. Goodman as
a suspect after his mother reported her suspicion that Mr. Goodman participated in the
robbery, and 5) Mr. Goodman’s own discredited testimony that he passed out drunk and
slept on Aunt Benita’s couch during the robbery.
But, what’s more, trial counsel and the lawyers for Mr. Goodman’s jointly
tried co-defendants requested, and the circuit court gave, a jury instruction telling the jury
it must individually consider the credibility of witnesses. So, we are confident the
adversarial process worked adequately. Indeed, a “decision regarding trial tactics cannot
be the basis for a claim of ineffective assistance of counsel unless counsel’s tactics are
19
shown to be ‘so ill chosen that it permeates the entire trial with obvious unfairness.’” 32 In
no way did trial counsel’s decision not to request the arguably inapplicable and duplicative
jury instruction permeate the entire trial with unfairness. For these reasons, Mr. Goodman
fails to rebut the presumption that trial counsel made what might have been a sound
strategic decision not to request a Humphreys instruction.
B. Mr. Gunn’s Inconsistent Trial Testimony.
In his second assignment of error, Mr. Goodman challenges the circuit
court’s finding that the prosecutor did not offer false testimony in violation of Mr.
Goodman’s constitutional rights. We explained in Syllabus Point 2 of State ex rel. Franklin
v. McBride 33 what a petitioner must prove when claiming a prosecutor presented false
testimony:
In order to obtain a new trial on a claim that the
prosecutor presented false testimony at trial, a defendant must
demonstrate that (1) the prosecutor presented false testimony,
(2) the prosecutor knew or should have known the testimony
was false, and (3) the false testimony had a material effect on
the jury verdict.[34]
Mr. Goodman claims the prosecutor presented false testimony through Mr.
Gunn who identified Mr. Goodman as one of the robbers. Before identifying Mr. Goodman
32
Meadows v. Mutter, 243 W. Va. 211, 222, 842 S.E.2d 764, 775 (2020) (quoting
Teague v. Scott, 60 F.3d 1167, 1172 (5th Cir. 1995)).
33
226 W. Va. 375, 701 S.E.2d 97 (2009).
34
Id.
20
at trial, Mr. Gunn initially told investigators that he did not know the intruders and that one
looked like “Robert Lee” and it may have been a guy named Drake that played on his
basketball team. He then identified Mr. Goodman’s father, Kevin Goodman, Sr., in a photo
line-up conducted by police a few days after the robbery. But, at trial, the prosecution
called Mr. Gunn as a witness, and he testified that he recognized Mr. Goodman as one of
the robbers. Trial counsel then cross-examined him about the inconsistent statement and
used all of Mr. Gunn’s prior identifications to impeach him:
Q. So three days after the crime and the day of the crime, you
were not under arrest, you were not facing charges for
anything, you were the victim of a crime, and the police came
to your aid, and you completely lied to the police? Is that your
testimony today?
A. I guess. I don’t even want to be—want to be here.
...
Q. Are you being honest with the Court today?
A. Yes.
And, the prosecutor’s redirect of Mr. Gunn likewise questioned the inconsistency:
Q. . . . Explain to me in your own words why it is today that
you feel certain that Kevin Goodman, Jr., was in your house.
A. Well, I kind of knew it was him, but I didn’t want to—I
didn’t want to believe it. You know what I mean? So I
finally—I said (unintelligible).
21
Mr. Gunn’s inconsistent statements required the jury to make a credibility
determination, 35
but “[i]nconsistencies between a witness’s trial testimony and their
previous statements, or between the testimonies of multiple witnesses, do not necessarily
demonstrate falsity.” 36 Mr. Gunn’s exchanges with trial counsel and the prosecutor show
that Mr. Gunn may have been uncooperative during the investigation but later had a change
of heart at trial. We agree with the circuit court’s finding that “it is unclear whether Mr.
Gunn was being untruthful during the investigation, during his trial testimony, or both” and
that Mr. Goodman “did not present any evidence to support this claim at the habeas
hearing” because he offered only the inconsistent statements. So, Mr. Goodman correctly
recognizes that “[a]t the trial, Mr. Gunn surprised everyone by testifying that he identified
[Mr. Goodman] as being involved. The only thing [Mr. Goodman’s] counsel could do at
that point in the trial was to confront Mr. Gunn with his previous inconsistent statements.”
Because these inconsistent statements are insufficient to prove that the
prosecutor presented false testimony under McBride, Mr. Goodman’s second assignment
of error lacks merit.
35
State v. Guthrie, 194 W. Va. 657, 669, 461 S.E.2d 163, 175 (1995) (“Credibility
determinations are for a jury and not an appellate court.”).
36
Ballard, 239 W. Va. at 581, 803 S.E.2d at 551.
22
IV. CONCLUSION
For the reasons set out above, we affirm the circuit court’s February 13, 2020,
order denying Mr. Goodman’s petition for writ of habeas corpus.
Affirmed.
23