State v. D.S., 16-0693

• Decision Date: 17 November 2017
• Docket Number: No. 16-0693,16-0693
• Court: Supreme Court of West Virginia
• Parties: State of West Virginia, Plaintiff Below, Respondent v. D.S., Defendant Below, Petitioner

State of West Virginia, Plaintiff Below, Respondent
v.
D.S., Defendant Below, Petitioner

No. 16-0693

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

November 17, 2017

(Randolph County 13-F-35)

MEMORANDUM DECISION

Petitioner D.S., by counsel Jeremy B. Cooper and John W. Cooper, appeals his convictions in the Circuit Court of Randolph County of twenty-seven counts of sexual assault in the first degree, twenty-seven counts of sexual abuse by a parent, guardian, or custodian, and twenty-seven counts of incest. Respondent, the State of West Virginia, by counsel Gordon L. Mowen, II and Michael Parker, filed a response, to which petitioner filed a reply.

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 order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.

In February of 2013, petitioner was indicted on fifty counts each of sexual assault in the first degree; sexual abuse by a parent guardian or custodian, and incest for the repeated sexual assault of his daughter ("the victim"). Petitioner's trial was originally scheduled for September of 2013. However, after the jury was empaneled, two jurors were struck for cause, and the court declared a mistrial. In October of 2013, the parties filed ethical complaints against the trial judge. Based upon these filings, the judge inquired of the parties if they wished to have her recused, but the parties declined.

The matter was rescheduled for trial on January 6, 2014, but was continued due to inclement weather. On the day of trial, the State sought to introduce the victim's initial statements regarding the abuse, asserting that the statement was intrinsic to the pending charges. The circuit court granted this motion after a hearing. Prior to the start of trial on February 18, 2014, the victim provided an additional statement, in which she stated that petitioner's assaults were not as frequent as she originally claimed. The State informed petitioner of the statement and provided the statement in discovery. As a result, the State moved to dismiss sixty-nine counts of the indictment.

At trial, the victim testified that she was in third grade when her father first forced her to

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perform oral sex on him. The victim testified that this occurred multiple times a month for one year. The victim told her mother, in a written note about the abuse. Although her mother confronted petitioner, the abuse continued. The abuse stopped when the victim told a friend at school, whose father contacted police. In addition to the testimony of the victim, the jury heard testimony from petitioner's ex-wife, E.K., who corroborated the victim's testimony. E.K. testified that she confronted petitioner and he denied the abuse, but afterward she would stay up with him at night in an attempt to make sure he did not go into the victim's room. Following E.K.'s confrontation, the victim disclosed to E.K. that petitioner continued to assault her, at which time, E.K. stated that she confronted petitioner again. E.K. testified that petitioner did not deny the abuse, but stated, "I'm sorry. Daddy's a sick man and I'll never do it again."

The State also introduced the testimony of Allyson Scott. At the time of the trial, Ms. Scott was a licensed social worker for Child Protective Services and a trained forensic interviewer with thirteen years of experience interviewing children using the "Finding Words" method. "Finding Words" is a protocol used in interviews in order to create a "clear exchange of information" between an interviewer and the child, and to limit suggestibility in the interview process. The State sought to have Ms. Scott qualified as an expert in forensic interviewing. Petitioner objected, stating that he believed that she was an expert in the "Finding Words" protocol, but that the State had not qualified Ms. Scott as an expert in forensic interviewing. The circuit court thereafter declared Ms. Scott to be an expert in the "Finding Words" protocol. Ms. Scott testified that she interviewed the victim, and that the victim disclosed that petitioner abused her. Ms. Scott testified that the victim was uncomfortable during the interview; and, over petitioner's objection, also testified that discomfort is not unusual in cases of child abuse, nor is it unusual for a child to have trouble remembering the frequency of abuse.

Petitioner testified on his own behalf and denied sexually abusing the victim. Petitioner presented additional witnesses. Finally, petitioner expressed that he desired to re-call E.K. to the stand, but had not been able to do so because he did not subpoena her, and could not find her again in order to compel her to testify. The jury found petitioner guilty of the remaining eighty-one counts in the indictment, twenty-seven counts each of (1) sexual assault in the first degree; (2) sexual abuse by a parent, guardian or custodian; and (3) incest.

Petitioner filed a post-trial motion for acquittal or a new trial, claiming that one of the jurors should have been disqualified due to bias. That motion was granted and the State filed a writ of prohibition with this Court. This Court overturned the circuit court's order in State ex rel. Parker v. Keadle, 235 W. Va. 631, 776 S.E.2d 133 (2015). Following remand, the matter was returned to the circuit court, where petitioner filed an additional motion for a new trial, and two supplemental motions for a new trial. The circuit court denied petitioner's motions, by order entered November 30, 2015. In March of 2016, petitioner was sentenced to an indeterminate term of not less than twenty-five nor more than one hundred years for each count of first degree sexual assault; an indeterminate term of not less than ten nor more than twenty years for each count of sexual abuse by a parent, guardian, or custodian; and an indeterminate term of not less than five nor more than fifteen years for each count of incest. The circuit court further ordered that petitioner serve his sentences for four counts of first degree sexual assault consecutively to one another, and that the remaining seventy-seven counts would run concurrently to those counts, for an effective sentence of not less than 100 nor more than 400 years. Petitioner now

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appeals the June 27, 2016, sentencing order.

Petitioner asserts fifteen assignments of error on appeal. We review petitioner's appeal under the following standard:

In reviewing challenges to findings and rulings made by a circuit court, we apply a two-pronged deferential standard of review. We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.

Syl. Pt. 3, State v. Vance, 207 W. Va. 640, 535 S.E.2d 484 (2000).

First, petitioner complains that the circuit court erred in denying his motion for a new trial because (1) he was unable to serve his wife with a subpoena; (2) the trial judge did not disclose the full extent of her conflict of interest; and (3) the state failed to disclose exculpatory evidence. We have held that, "[a] trial judge's decision to award a new trial is not subject to appellate review unless the trial judge abuses his or her discretion." Syl. Pt. 2, id. (citations omitted).

Regarding the subpoena, petitioner argues that he was deprived of compulsory process pursuant to the Sixth Amendment of the U.S. Constitution, and article 3, section 14, of the West Virginia Constitution. We disagree, as any error regarding the service of the subpoena lies at the fault of petitioner. Petitioner admits that he did not serve his wife with a subpoena prior to the start of the February trial, and petitioner's counsel admitted to the trial court that although petitioner intended to call his wife during his case-in-chief, he forgot to serve her with a subpoena prior to the trial date. Petitioner does not claim that either the trial court or the State impeded his ability to subpoena the witness, or refused to enforce a duly served subpoena. "The most basic rights of criminal defendants are . . . subject to waiver." Peretz v. United States, 501 U.S. 923, 936 (1991), and in this matter, petitioner waived his right to call his wife as a witness when he failed to subpoena her for trial.

Petitioner also argues that he is entitled to a new trial on the basis of the appearance of impropriety due to the trial judge's failure to disclose the full extent of her conflict of interest. Petitioner points to the fact that after petitioner's trial, the judge was barred from presiding over all criminal matters due to her conflict. We have held that,

[a] criminal defendant is entitled to an impartial and neutral judge. In a criminal trial, when a judge's conduct in questioning witnesses or making comments evidences a lack of impartiality and neutrality, or when a judge otherwise discloses that the judge has abandoned his role of impartiality and neutrality as imposed by the Sixth Amendment of the United States Constitution, we will reverse and remand the case for a new trial.

Syl. Pt. 7, State v. Thompson, 220 W. Va. 398, 647 S.E.2d 834 (2007). Petitioner fails to identify anywhere in the record any conduct that evidences a lack of impartiality by the trial judge in his

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particular case. Further, petitioner fails to articulate how or why the judge was biased against him or unable to be impartial, or how he suffered any prejudice as a result.

Regarding the State's alleged failure to...