Smith v. Mirandy

DARRELL E. SMITH, Petitioner, v. PATRICK A. MIRANDY, Warden, St. Mary's Correctional Center, Respondent.

Case No. 2:14-cv-18928

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION

March 31, 2016

MEMORANDUM OPINION AND ORDER

Pending before the Court are Petitioner Darrell E. Smith's pro se Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, (ECF No. 1), Petitioner's Motion to Amend Original Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254, (ECF No. 43), and Respondent's Motion for Summary Judgment, (ECF No. 24). By Standing Order entered on May 7, 2014, and filed in this case on July 9, 2014, this action was referred to United States Magistrate Judge Cheryl A. Eifert for submission of proposed findings and recommendations for disposition. (ECF No. 4). On January 29, 2016, the Court entered an order vacating the referral of this action to Magistrate Judge Eifert and stating that the Court would preside over this case. (ECF No. 47).

I. Relevant Facts and Procedural History

A. Indictment, Trial, and Direct Appeal

In June 2007, Petitioner Darrell E. Smith ("Petitioner") was indicted by a Kanawha County, West Virginia grand jury on twelve sex offenses against three of his granddaughters: N.S., A.L.S., and B.S.¹ (ECF No. 24-1, Ex. 15 at 1-7). The first six counts concerned N.S., and those counts alleged: Petitioner committed first-degree sexual assault by digitally penetrating N.S. when she was younger than twelve years old (Count One); Petitioner sexually abused N.S. while acting as her parent, guardian, or custodian by digitally penetrating her (Count Two); Petitioner committed first-degree sexual abuse by touching N.S.'s breasts when she was younger than twelve years old (Count Three); Petitioner sexually abused N.S. while acting as her parent, guardian, or custodian when he touched her breasts (Count Four); Petitioner committed first-degree sexual abuse when he forced N.S. to touch his penis (Count Five); and Petitioner sexually abused N.S. while acting as her parent, guardian, or custodian when he forced N.S. to touch his penis (Count Six). (Id. at 2-5). Counts Seven and Eight related to A.L.S. and alleged that Petitioner had sexually abused A.L.S. by touching her breasts. (Id. at 5-6). The final four counts involved B.S., and the indictment alleged: Petitioner committed first-degree sexual abuse by forcing B.S. to touch his penis when she was less than twelve years old (Count Nine); Petitioner sexually abused B.S. while acting as her parent, guardian, or custodian when he forced B.S. to touch his penis (Count Ten); Petitioner committed first-degree sexual abuse by touching B.S.'s "female sex organ" when she was less than twelve years old (Count Eleven); and Petitioner sexually abused B.S. while acting as her parent, guardian, or custodian when he touched her "female sex organ" (Count Twelve). (Id. at 6-8). Prior to Petitioner's trial, the State offered to allow Petitioner to plead guilty to Counts Three, Seven, and Eleven in exchange for dismissal of the remaining counts. (ECF No. 42-1 at 2). However, no plea agreement was reached, and Petitioner proceeded to trial. Before trial commenced, Counts One, Three, Five, and both counts pertaining to A.L.S. were dismissed upon motion of the State. (ECF No. 24-1, Ex. 16 at 1).

Petitioner's trial began on July 22, 2008. He was represented by Gail Michelson and Diana Panucci from the Kanawha County Public Defender Office. (ECF No. 24-2, Ex. 17 at 3). During a break in jury selection, the trial judge expressed dissatisfaction with defense counsel when Petitioner exited the courtroom to use the public restroom. (Id. at 151-52). The trial judge was concerned that Petitioner was "mingling in the restroom with the jurors." (Id. at 152). Defense counsel pointed out that some potential jurors were still present in the courtroom when the court's admonishment occurred and requested that the trial judge instruct the jury on judicial impartiality. (Id. at 151-52). The trial judge agreed to defense counsel's request, and during initial instructions, she informed the jury that she did not favor either side and that the jury should not let any of her mannerisms, tone of voice, or rulings influence their decision making. (Id. at 165).

As its first witness, the State called B.S., who was fourteen years old at the time of trial. (ECF No. 24-2, Ex. 17 at 185). During questioning by the prosecuting attorney, B.S. testified that she was no longer close to Petitioner because he had hurt her and her two sisters. (Id. at 189). When asked how Petitioner had hurt her, B.S. responded that he "molested [her] and [her] two sisters, [N.S.] and [A.L.S.]." (Id. at 189). Defense counsel immediately asked to approach the bench, where they objected to B.S.'s mention of A.L.S. (Id. at 190). Defense counsel argued that the jury should not have been told of A.L.S.'s alleged abuse and moved for a mistrial. (Id.) The prosecuting attorney suggested in the alternative that the court instruct the jury to disregard B.S.'s testimony about A.L.S.; however, defense counsel rejected that proposal, fearing that any further mention of A.L.S. would only compound the error. (Id.) Ultimately, the court denied defense counsel's motion for a mistrial, concluding that any prejudice could be cured by having the prosecuting attorney confirm with B.S. that her knowledge was limited to her own contacts with Petitioner. (ECF No. 24-2 at 192-93). In addition, the court offered to provide a cautionaryinstruction. When questioning resumed, B.S. admitted that she only possessed personal knowledge of Petitioner abusing her. (Id. at 193-94). B.S. reiterated that Petitioner had molested her by touching her in inappropriate ways and forcing her to touch him. (Id. at 195). She explained that the abuse occurred in Petitioner's bedroom at the home where Petitioner and B.S.'s grandmother lived in Dunbar, West Virginia. (Id. at 194). B.S. further testified that the abuse took place while she was in Petitioner's bed and her grandmother was in another room. (Id. at 195-96). She recounted telling a friend, J.L., about the abuse during a sleepover and subsequently informing her middle school counselor about it in November 2005, after J.L threatened to tell an adult if B.S. did not do so. (Id. at 198-99, 207). B.S. stated that the abuse began "a couple of years" before she told her friend about it and that it repeatedly happened over that period. She indicated that she did not tell anyone because she was afraid of what Petitioner might do if she told someone. (ECF No. 24-2, Ex. 17 at 198-99). When asked about the last time Petitioner had inappropriately touched her, B.S. testified that Petitioner touched her approximately one or two weeks before she spoke with her counselor, when she was eleven years old. (Id. at 203). B.S. also indicated that the last time Petitioner forced her to touch him was also when she was eleven years old. (Id. at 204). On cross-examination, B.S. admitted that she told police during a January 2006 interview that the last time Petitioner touched her was in July 2005. (Id. at 207). B.S. further admitted that she first volunteered information about being abused after J.L. disclosed that she had been molested by her father. (Id. at 207-08).

The State next called N.S., who was seventeen years old at the time of trial.² (ECF No. 24-2, Ex. 17 at 214-15). In November 2005, N.S. learned that her younger sister, B.S., had reported that Petitioner was abusing her. (Id. at 218). When N.S. heard about B.S.'s allegations, she feltguilty because she also had been abused by Petitioner but had never told anyone. (Id.) N.S. testified that Petitioner touched her breasts and vaginal area when she would spend the night at his home. (Id. at 218-19). Petitioner would also have N.S. touch his penis with her hands and her mouth. (Id. at 220). She recalled seeing Petitioner ejaculate. (Id.) She first reported this abuse to her mother on the same day that B.S. came forward. (ECF No. 24-2, Ex. 17 at 221). N.S. testified that Petitioner last touched her breasts and vagina in the summer of 2005 and that she last touched Petitioner's penis a few months before then. (Id.) N.S. also recalled that Petitioner digitally penetrated her between the ages of twelve and fourteen. (Id. at 222). On cross-examination, N.S. conceded that she had told police in January 2006 that she never had oral sex with Petitioner; however, she explained that she did not want to tell the police about the oral sex because her mother was in the room with her during the interview. (Id. at 225). N.S. also testified on cross-examination as to other locations where Petitioner accosted her. Specifically, N.S. recalled that Petitioner attempted to have sexual intercourse with her at Campbell's Creek when she was thirteen or fourteen years old and at attorney Walt Wagner's office when she was thirteen years old. (Id. at 227-28). With respect to the instances that occurred at Petitioner's home, N.S. revealed that she had been abused almost every time she visited Petitioner's home since she was five or six years old. (Id.)

The State's third witness was Bob Love, who was acquainted with Petitioner through church, but did not know him well. (ECF No. 24-2, Ex. 17 at 236, 230). Mr. Love recalled having a conversation with Petitioner at church; however, he could not recall when the conversation took place. (Id. at 237). During that conversation, Mr. Love asked how Petitioner was doing, and Petitioner replied that he was broke because he had to hire a lawyer. (Id.). Petitioner added: "They told me they forgave me. And if they forgave me, why am I going through this?" (Id.) Mr.Love also testified that Petitioner questioned why his case was not closed if they forgave him. (Id. at 238).

The State's final witness was A.S., who is the mother of B.S. and N.S., and also Petitioner's daughter-in-law. (ECF No. 24-2, Ex. 17 at 242). A.S....