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. 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.
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.
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.
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).
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
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).
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). 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.
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.
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