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Brian W. v. Martin

Supreme Court of West Virginia

January 8, 2018

Brian W., Petitioner Below, Petitioner
Michael Martin, Acting Warden, Huttonsville Correctional Center, Respondent Below, Respondent

         Randolph County 14-C-105


         Petitioner Brian W., by counsel Jeremy B. Cooper, appeals the Circuit Court of Randolph County's February 14, 2017, order denying his petition for writ of habeas corpus. Respondent Michael Martin, Acting Warden, by counsel Gordon L. Mowen II, filed a response.[1] Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in denying his petition, which was based on the grounds of the State's failure to disclose material information, the State's misconduct in using slurs during the trial, ineffective assistance of counsel, and cumulative error.

         This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         In October of 2010, petitioner was indicted on one count of sexual abuse by a parent, guardian, or custodian and one count of first-degree sexual assault. The victim was the minor daughter of petitioner's girlfriend.

         Before trial, petitioner's trial counsel sought to exclude the testimony of a Child Protective Services ("CPS") worker, Allyson Scott. The parties ultimately stipulated that Ms. Scott would not offer any testimony at trial other than to lay a sufficient foundation to introduce a videotaped interview of the minor victim. This interview, a competency evaluation, was performed as a courtesy arranged by the Department of Health and Human Resources ("DHHR"), and was not performed by the psychologist the circuit court had ordered to perform the evaluation. Before trial commenced, petitioner was given the opportunity to continue the matter in order to obtain an additional competency evaluation. When asked how he wished to proceed, petitioner responded "I'd like to get it over with." As such, the matter proceeded to a jury trial in which petitioner was convicted of both counts and sentenced to the maximum term, an effective sentence of twenty-five to fifty-five years of incarceration. Petitioner appealed his sentence to this Court, and the appeal was denied in State v. Ward, No. 12-0300, 2013 WL 3185079 (W.Va. June 24, 2013) (memorandum decision).

         Subsequently, petitioner filed the instant habeas corpus matter, raising seven grounds for relief. These issues were considered at an omnibus hearing held in July of 2016. By order dated February 14, 2017, the circuit court denied petitioner's petition for writ of habeas corpus. It is from this order that petitioner appeals.

         This Court reviews appeals of circuit court orders denying habeas corpus relief 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." Syllabus point 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009).

         On appeal, petitioner first argues that the circuit court erred in not finding that the State failed to disclose documentation relevant to his defense. Specifically, petitioner alleges that subsequent to the trial, trial counsel became aware that Ms. Scott, the CPS worker in the case, had been disciplined in 2007 for poor job performance in a matter unrelated to petitioner's criminal proceedings. Petitioner argues that the State was required to disclose documentation related to Ms. Scott's disciplinary action as it falls under "impeachment evidence" as described in State v. Youngblood, 221 W.Va. 20, 650 S.E.2d 119 (2007).[2] We disagree. In order to obtain relief, petitioner must establish that the prosecution was aware of, but withheld exculpatory evidence. See Syl. Pt. 4, State v. Hatfield, 169 W.Va. 191, 286, S.E.2d 402 (1982); Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963). In Youngblood, this Court recognized that a "police investigator's knowledge of evidence in a criminal case is imputed to the prosecutor . . . ." 221 W.Va. at 22, 650 S.E.2d at 121, Syl. Pt. 1.

         As the circuit court noted, Ms. Scott is not a police investigator. However, petitioner attempts to navigate around this fact by arguing that Ms. Scott falls under the penumbra of the term as a member of the investigation team, noting that this Court stated in its opinion in Youngblood that "[t]he decision in Kyles [v. Whitely, 514 U.S. 419 (1995)] stands for the proposition that 'it is proper to impute to the prosecutor's office facts that are known to the police and other members of the investigation team.'" 221 W.Va. at 27, 650 S.E.2d at 126. Petitioner argues that Ms. Scott is a member of the investigation team, especially in light of the fact that the prosecutor relied heavily on the investigation performed by CPS in order to prove the charges brought against petitioner. We disagree. Ms. Scott was a CPS worker and no evidence in the record suggests that she was acting as a police investigator at any time during the underlying proceedings. Moreover, the record indicates that petitioner admitted that he had no "factual basis to assert that the [p]rosecuting [a]ttorney [ ] had any actual knowledge of Allyson Scott's disciplinary record . . . ." Thus, petitioner failed to establish that the prosecutor had knowledge of impeachment evidence, imputed or otherwise, that necessitated disclosure to petitioner.

         Even assuming, arguendo, that Ms. Scott is a member the investigation team within the meaning of Kyles, the failure to disclose the documentation regarding her disciplinary history does not constitute a violation of petitioner's constitutional due process rights under Brady. While petitioner argues that the State had a duty to disclose this impeachment evidence prior to trial, we do not agree. We have previously held that

[t]here are three components of a constitutional due process violation under Brady v. Maryland, [ ] (1) the evidence at issue must be favorable to the defendant as exculpatory or impeachment evidence; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) the evidence must have been material, i.e., it must have prejudiced the defense at trial.

Youngblood, 221 W.Va. at 22, 650 S.E.2d at 121, Syl. Pt. 2. As mentioned, the parties stipulated that Ms. Scott would only testify in order to lay the foundation for a video of an interview of the victim. During the omnibus hearing, trial counsel testified that limiting Ms. Scott's testimony was part of his defense strategy, as he believed she had a tendency to be over-zealous and would supply more information than necessary while testifying. Trial counsel was successful in this endeavor as Ms. Scott only testified to foundational matters. She did not offer any substantive testimony at trial and thus, there was no need to impeach or attack her credibility. Further, this document does not appear to be material as it regards actions taken by Ms. Scott three years before petitioner's trial and was in no ...

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