State v. Farris

• Decision Date: 21 November 2007
• Docket Number: No. 33314.,33314.
• Citation: 656 S.E.2d 121
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee v. David FARRIS, Defendant Below, Appellant.

656 S.E.2d 121

STATE of West Virginia, Plaintiff Below, Appellee v. David FARRIS, Defendant Below, Appellant.

No. 33314.

Supreme Court of Appeals of West Virginia.

Submitted October 24, 2007.

Decided November 21, 2007.

Dissenting Opinion of Justice Benjamin December 20, 2007.

SYLLABUS BY THE COURT

1. "This Court reviews the circuit court's final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo." Syllabus Point 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996).

2. "A police investigator's knowledge of evidence in a criminal case is imputed to the prosecutor. Therefore, a prosecutor's disclosure duty under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and State v. Hatfield, 169 W.Va. 191, 286 S.E.2d 402 (1982) includes disclosure of evidence that is known only to a police investigator and not to the prosecutor." Syllabus Point 1, State v. Youngblood, 221 W.Va. 20, 650 S.E.2d 119 (2007).

3. "There are three components of a constitutional due process violation under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and State v. Hatfield, 169 W.Va. 191, 286 S.E.2d 402 (1982):(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." Syllabus Point 2, State v. Youngblood, 221 W.Va. 20, 650 S.E.2d 119 (2007).

Darrell V. McGraw, Jr., Attorney General, R. Christopher Smith, Assistant Attorney General, Charleston, for Appellee.

M. Timothy Koontz, Esq., Williamson, for Appellant.

PER CURIAM:

The appellant, David Farris, was indicted by the grand jury of Mingo County at the September 2005 term of court on two counts of sexual abuse by a guardian under W. Va. Code, 61-8D-5(a) [2005], and two counts of first degree sexual assault under W. Va. Code, 61-8B-3 [2000]. On September 22, 2005, the appellant plead not guilty to all charges in the indictment. Before the trial commenced the appellant filed an Omnibus Motion for discovery which included a specific request for "Exculpatory Material under Brady v. Maryland."¹ On January 4, 2006, after completion of pretrial proceedings, the case came on for a jury trial. That trial ended in a mistrial.

On January 31, 2006, a second jury trial was commenced. The next day, February 1, 2006, the jury returned a verdict against the appellant of guilty on all four counts as contained in the indictment. On February 8, 2006, the trial court entered an order adjudging the appellant convicted of the four counts. After the trial was concluded, and before sentencing, the appellant filed a motion for a new trial, based primarily upon the failure of the State to disclose a forensic examination report prepared by a State's witness, Robin Brozowski, a Kentucky forensic psychologist, in connection with a forensic examination of Barbara R.,² an eleven year old cousin of the appellant. The trial court denied the appellant's motion. On May 30, 2006, the trial court sentenced the appellant. It is from the trial court's May 30, 2006 order that the appellant appeals.

For the reasons stated infra, we reverse.

I.

The charges against the appellant stem from allegations made by two minors, Autumn B. and Shannon B., that the appellant committed the sexual offenses against them in September of 2004, while the appellant and his wife were babysitting Autumn B. and Shannon B. in Mingo County, West Virginia. The two alleged victims are sisters and were ages ten and nine, respectively, at the time of trial in 2006. The alleged victims did not report the claims of abuse until November 1, 2004, when they related the allegations to their mother, Joyce Spradlin. By this date the mother and two daughters had moved from West Virginia to Kentucky; therefore, the mother reported the alleged abuse to the Kentucky State Police. It was reported on the same day the girls told their mother.

Later the same evening Joyce Spradlin learned that the Kentucky State Police could not handle the investigation because the incident allegedly occurred in West Virginia, not Kentucky. The next morning Mrs. Spradlin contacted Roby Pope, Jr., Chief of Police in Williamson, West Virginia. Chief Pope took charge of the investigation.

As a part of the investigation Chief Pope referred the case to the Department of Health and Human Resources ("DHHR") in Williamson, West Virginia. With the assistance of the DHHR, forensic interviews of the alleged victims were scheduled at the Big Sandy Child Advocacy Center in Pikeville, Kentucky.

On November 16, 2004, Autumn B. and Shannon B. were interviewed by Nettie Goan, child protective service worker with the Mingo County DHHR. Several months later on March 22, 2005, Autumn B. and Shannon B. were also interviewed by Robin Brozowski, forensic psychologist with the Child Advocacy Center in Pikeville, Kentucky. Chief Pope observed both the interviews conducted by Nettie Goan and the interviews conducted by Robin Brozowski from a remote location.

During interviews with both Nettie Goan and Robin Brozowski the alleged victims mentioned another child, Barbara R., a minor cousin of the appellant, as a possible victim of abuse by the appellant. The record in the second trial suggests that Barbara R. may have been present when the claimed abuse of Autumn B. and Shannon B. occurred.³

On December 22, 2004, prior to interviewing Autumn B. and Shannon B., Robin Brozowski conducted a forensic examination of Barbara R. Unknown to defense counsel at the time of either trial, a written report had been prepared by Ms. Brozowski in connection with her forensic examination of Barbara R. The report included the following:

Child [Barbara R.] reported, "It was said that David [Appellant] molested me . . . my cousin David . . . but he didn't." Child reported Joyce [mother of Autumn and Shannon] told her to "go along with the story" that David molested her or that she would make sure that she (child) was taken from her mother. Child reported she did not know "if she [mother of Autumn and Shannon] threatened her two girls or not." Child further described "the story" as "like he tongued me and stuff." She described "tongued" further as "he just licked me is what the story was suppose to mean." Child also reported touches did not happen to her but that "I don't know about Autumn and Shannon." Child reported Shannon "stuck a toothbrush up inside her (Shannon)." Refer to taped interview for additional information.

The report of the examination of Barbara R. by Ms. Brozowski also indicates that the: "Child appeared competent related to knowledge of truth and lie: Yes X No ___."

On cross-examination during the first trial, Ms. Brozowski stated that Barbara R. was mentioned by Autumn B. and Shannon B. as being present when the alleged abuse occurred. Ms. Brozowski agreed that she had interviewed Barbara R., but did not provide information during her testimony that she had prepared a written report of her interview.⁴

At no time after Ms. Brozowski testified for the State, and prior to the conclusion of the first trial, did the State make any effort to disclose to defense counsel the Barbara R. information referenced by Ms. Brozowski during her testimony with respect to her forensic examination of Barbara R. Nevertheless, during the first trial, defense counsel offered eleven year old Barbara R., as a witness. The trial court conducted a hearing in camera to determine whether Barbara R. was competent to testify, following which the trial court ruled that she was not competent to testify. Defense counsel did not have the benefit of material that is now known to have existed at the time he conducted his examination of Barbara R.___Ms. Brozowski's written report and tape of her interview with Barbara R.

During the second trial defense counsel did not offer Barbara R. as a witness, relying upon the court's finding during the first trial that she was not competent to testify. Ms. Brozowski's testimony during the second trial suggested that Barbara R. was another possible victim of sexual abuse by the appellant.⁵ Still, at no time during her testimony did Ms. Brozowski reveal the existence of her written report in connection with her examination of Barbara R. Furthermore, prior to the second trial the State did not disclose to defense counsel Ms. Brozowski's written report of her examination of Barbara R.

The record reveals that it was not until after February 14, 2006, after the conclusion of the second trial, that defense counsel obtained a copy of Ms. Brozowski's written report of her forensic examination of Barbara R. The Brozowski report of the examination of Barbara R. was ultimately obtained pursuant to a Pike County, Kentucky Circuit Court order.

On appeal, appellant contends that because of the after-trial discovery of the report, he should be awarded a new trial primarily based upon the theories of newly-discovered evidence and upon a violation of Brady, supra.

II.

In Syllabus Point 4 of Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996) this Court held:

This Court reviews the circuit court's final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo.

With these principles in mind we proceed to consider the appellant's appeal.

We begin with an examination of the appellant's claim that the failure of the State to disclose to the appellant the written report of Robin Brozowski made in connection with her forensic examination of Barbara R. was a violation of Brady, supra, and constitutes reversible error. In order to resolve this issue we need only...