Southern v. Pszczolkowski

• Decision Date: 08 October 2015
• Docket Number: No. 14–0920.,14–0920.
• Citation: 236 W.Va. 245,778 S.E.2d 694
• Court: West Virginia Supreme Court
• Parties: TEX S., Petitioner Below, Petitioner v. Karen PSZCZOLKOWSKI, Warden, Northern Correction Facility, Respondent Below, Respondent.

236 W.Va. 245

778 S.E.2d 694

TEX S., Petitioner Below, Petitioner

v.Karen PSZCZOLKOWSKI, Warden, Northern Correction Facility, Respondent Below, Respondent.

No. 14–0920.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 16, 2015.

Decided Oct. 8, 2015.

Kevin D. Mills, Esq., Shawn R. McDermott, Esq., MillsMcDermott, PLLC, Martinsburg, WV, for Petitioner.

Patrick Morrisey, Esq., Attorney General, Shannon Frederick Kiser, Esq., Assistant Attorney General, Charleston, WV, for Respondent.

Opinion

WORKMAN, Chief Justice:

This case is before the Court upon the appeal of Tex S.¹(“the Petitioner”) from the August 22, 2014, order entered by the Circuit Court of Morgan County, West Virginia, denying the Petitioner's motion for reconsideration of the circuit court's order denying his petition for habeas corpus relief that was entered on June 6, 2014. The Petitioner argues that the circuit court erred: 1) in failing to grant an evidentiary hearing on the habeas petition; 2) in failing to find ineffective assistance of counsel; 3) in determining that the Petitioner was not wrongfully convicted by the introduction of scientifically invalid expert testimony that the victim was sexually abused; and 4) in failing to grant leave for discovery regarding the forensic testing performed by the State.²Based upon a review of the record, the parties' briefs and arguments, and all other matters submitted before the Court, we affirm the circuit court's decision.

I. Factual and Procedural History

A. Underlying Trial

This matter arises from the January 2, 2007, indictment of the Petitioner on one count of sexual assault in the first degree and one count of sexual abuse by a parent or guardian. As a backdrop to the majority of the Petitioner's habeas claims, it is important to explain at the outset that as result of the indictment, the Petitioner retained attorney Paul Lane to represent him. Prior to trial, Mr. Lane was involved in a motorcycle accident and he suffered a head injury

. The West Virginia State Bar suspended his license to practice law and appointed other local attorneys to represent his clients.³Christopher Prezioso was appointed to represent the Petitioner. Three months after the accident, upon a showing that he had recovered from his injuries, Mr. Lane's law license was reinstated,⁴and he was retained by the Petitioner to continue with his representation of the Petitioner at the Petitioner's request.⁵

The Petitioner's trial began on November 18, 2008, and lasted two days. The evidence at trial showed that between the hours of 10:00 p.m. on April 6, 2006, and 5:00 a.m. on April 7, 2006, the Petitioner was taking care of his three step-children while their mother was working. The Petitioner's then four-year-old stepdaughter, who is the victim, was asleep on a couch in the living room of her home awaiting her mother's return from work. The two older stepsons were asleep in a bedroom that they shared, which was located in the basement of the home. After the two older children left for school on the morning of April 7, 2006, the victim told her mother that during the night “Tex put his pee pee in my mouth and peed and kept it there until I swallowed.”⁶

The mother, who previously sustained a traumatic brain injury

in a car accident, did not immediately take the child to the hospital that day. During the day, she testified that she struggled with what her daughter had told her. She stated that she called the pastor at their church during the afternoon and spoke with him about it. As a result of that conversation, later that afternoon the mother took her child to Winchester Medical Center where the child was examined by Cynthia Leahy, a nurse who works in the hospital's forensic nurse program.

Ms. Leahy testified that the child told her:

I was asleep on the couch. Something came out of it and went down my throat. It had a yucky taste. I was still asleep while he was doing that. I remember it. I still have a yucky taste from it. I cried this morning because I still had that taste.

Ms. Leahy also stated that she collected samples from the child's mouth using lip swabs, oral rinse, and floss.

Corporal Tony Link of the Morgan County Sheriff's Department investigated the crime. He testified that he was dispatched to Winchester Medical Center where he met Ms. Leahy. The officer took possession of the evidence obtained from the victim by Ms. Leahy so that forensic testing could be done. Corporal Link also contacted the Petitioner and asked him if he would come into the Sheriff's Department to speak to the officer about the alleged crime. According to Corporal Link, the Petitioner voluntarily came in to speak with the officer. The officer testified that he gave the Petitioner his Miranda⁷rights and that the Petitioner understood that he did not have to speak with the officer. The Petitioner also signed a waiver of rights form before voluntarily giving the officer a statement in which the Petitioner denied any wrongdoing. The officer testified that the Petitioner told him that

due to his wife's mental problems, he did not doubt if his wife had did [sic] something while he was sleeping.... [The Petitioner] ... stated that he woke up one morning. His wife was down there playing with it. Upon trying to clarify what he was getting at, I just more or less basically asked ... [the Petitioner]—I stated so you're telling me you woke up one morning and your wife was jacking you off, collected semen, kept it and gave it to her daughter to drink. And ... [the Petitioner] stated, yes, but I don't know what she did with it.

The record indicates that the samples that were collected at the hospital by Ms. Leahy were tested at the West Virginia State Police Laboratory. David Miller, an expert in forensic science, testified to receiving not only the samples obtained from the victim, but also a pillow that was taken from the victim's home that the victim was sleeping on the night of the incident. Mr. Miller stated that regarding the two lip swabs he examined,

We ... performed what's called a presumptive test for seminal fluid. A presumptive test for seminal fluid when positive indicates that seminal fluid may be present but is not an identification test. There are other items other than seminal fluid such as yeast and bacteria that can cause a positive reaction with this presumptive test.

In this case, the lip swabs were positive with the presumptive tests.... Having that result, we then proceeded to a confirmatory test for seminal fluid. That particular test involved testing for a protein that's produced in the prostate gland of males called P30. It's also known as PSA or prostate-specific antigen. It's the protein that's tested in prostate cancer

.... This test was also positive allowing me to say that seminal fluid was identified in the lip, lip area swabs.

Angela Gill, an expert in the field of forensic science with a specialty in DNA, testified that although the presence of seminal fluid was found on the swabs, she did not find any Y chromosomes present. Ms. Gill stated that because there were no Y chromosomes, she could not isolate the male DNA that would be located on that Y chromosome. The Y chromosome would have been found on sperm cells, but there were no sperm cells present in the seminal fluid, which carries the cells. There was testimony from Mr. Miller that there were a number of situations where sperm cells might not be found in seminal fluid including “vasectomized males, there can be males that are aspermic or do not produce sperm cells[,] ... [or] there could just be so few a number of cells that we do not identify them.” Without the DNA, Ms. Gill could not link the seminal fluid to a specific male. Ms. Gill did find male DNA, which was not associated with seminal fluid, on the pillow she examined; however, the Petitioner was excluded as the primary source of that DNA. Further, as revealed during the cross-examination of the State's forensic expert witnesses by the Petitioner's trial counsel, there was no DNA match that tied any evidence the State had obtained in the case to the Petitioner.

The State also called Chanin Kennedy, a psychologist, as an expert witness. Ms. Kennedy testified that in her opinion the child was sexually abused and that the child was not susceptible to suggestion.

The Petitioner did not testify. He called one witness, Dr. Fred Krieg, who was an expert in the areas of psychology and professional counseling. Contrary to the Petitioner's argument on appeal that “trial counsel failed to disclose his expert, Dr. Krieg, until the day of trial, ...” the record demonstrates that the State had received an expert witness disclosure, which identified Dr. Krieg and which provided Dr. Krieg's curriculum vitae prior to the day of trial. The State, however, was not provided with a written summary of Dr. Krieg's report or a copy of his report until the day before trial. The State only sought to challenge the testing or methodology that Dr. Krieg used in order to reach the opinion that the Petitioner did not fit the profile of a sex offender. The State did not object to the late disclosure of the expert's report or summary.

Due to the State's challenge, the trial court held a Daubert⁸hearing on the State's motion to exclude that portion of Dr. Krieg's report in which he opined that the Petitioner did not fit the profile of a sex offender. The State directed the trial court to that portion of Dr. Krieg's report in which the doctor stated that “there is no exact profile of a sex offender.”⁹The doctor also stated in the report that “[r]esearch has consistently shown that there is no such thing as a sex offender profile.” Despite the lack of any profile, Dr. Krieg opined that it was clear that the Petitioner was at “the low-end risk of being a sexual offender[.]”¹⁰The trial court determined that, based upon the expert's report,

[r]esearch has consistently shown there is no such thing as a sex offender profile. So I don't believe and I don't find that it

...