Frances Hughes, Esquire
Kanawha County Public Defender Corporation
Charleston, West Virginia
Attorney for the Appellant
Mario J. Palumbo, Attorney General
Janet E. James, Assistant Attorney General
Charleston, West Virginia
Attorneys for the Appellee
JUSTICE NEELY delivered the Opinion of the Court.
1. "A prosecution that withholds evidence which if made
available would tend to exculpate an accused by creating a
reasonable doubt as to his guilt violates due process of law under
Article III, Section 14 of the West Virginia Constitution." Syl.
Pt. 4, State v. Hatfield, ___W. Va.___, 286 S.E.2d 402 (1982).
2. The prosecution must disclose any and all inducements
given to its witnesses in exchange for their testimony at the
3. "A pretrial identification by photograph will be set
aside if the photographic identification procedure was so
impermissibly suggestive as to give rise to a very substantial
likelihood of irreparable misidentification." Syl. Pt. 4, State v.
Harless, ___ W. Va. ___, 285 S.E.2d 461 (1981).
A jury convicted Larry Eldon James of kidnapping, first-degree sexual abuse, and first-degree sexual assault. Mr. Smith
now appeals, alleging that the State failed to disclose exculpatory
information and that the State used evidence that was the fruit of
a tainted photographic identification of Mr. James. We affirm.
On 24 May 1989, Pamela R.See footnote 1 was abducted by two men
outside her home. The two men drove her to a secluded area and
raped her. Afterwards, the two men discussed killing Ms. R., but
one of the men convinced the other that they should take her home
instead. After an investigation, the State charged Larry James and
Joel Dustin with kidnapping, sexual abuse and sexual assault. Mr.
Dustin arranged a plea bargain with the State under which he agreed
to testify against Mr. James in exchange for no recommendation of
sentence by the prosecutor in his case.
Mr. Dustin testified that he and Mr. James were the men who kidnapped and raped Ms. R. He further testified that he had convinced Mr. James not to kill Ms. R. and instead to take her home. Ms. R. corroborated this testimony. During the course of
his examination in the appellant's trial, Mr. Dustin also testified
about his record as a member of the United States Navy, but did not
mention that he was AWOLSee footnote 2 at the time of the kidnapping and rape.
Mr. Dustin testified that the State did not promise him probation
in exchange for his testimony.
Ms. R. testified about the details of her kidnapping and
rape, and she identified Mr. James in court as one of her
assailants. Previously Ms. R. had testified at a suppression
hearing that she first picked Mr. James' picture from a group of
six or seven shown to her by police detectives.
Mr. James claims that the State did not disclose
exculpatory information as required under Brady v. Maryland, 373
U.S. 83 (1963) and State v. Hatfield, ___W. Va.___, 286 S.E.2d 402
(1982). Specifically, Mr. James claims that the State did not
disclose to him an explicit agreement between the State and Mr.
Dustin under which Mr. Dustin would receive probation in exchange
for his testimony. Mr. James also claims that the State should
have informed him that Mr. Dustin was AWOL and that Mr. Dustin lied
to the probation department about his military status.
The Fourteenth Amendment to the Constitution of the
United States, as articulated in Brady, supra, and Article III,
Section 14 of the Constitution of the State of West Virginia as
articulated in Hatfield, supra, require the State to disclose all
exculpatory information to the defendant upon request. We
disagree, however, with Mr. James' contention that the State was
required to provide appellant with any information that might have
been useful to impeach Mr. Dustin. As the U. S. Supreme Court
stated in United States v. Agurs, 420 U.S. 97, 112-13 (1976):
It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt. (Footnotes omitted.)
We stated in Syllabus Point 4 of Hatfield, supra:
A prosecution that withholds evidence which if made available would tend to exculpate an accused by creating a reasonable doubt as to his guilt violates due process of law under Article III, Section 14 of the West Virginia Constitution.
Although the evidence of Mr. Dustin's AWOL status and of his lies to the probation department could have been used to impeach Mr. Dustin's character, that evidence, in this case, does not tend to exculpate Mr. James given the identification by the victim. As the U. S. Supreme Court held in United States v. Bagley, 473 U.S. 667
at 676 (1985), impeachment evidence that might be used to show
"bias or interest" also falls within the Brady rule, but being AWOL
from the military or making false statements to probation officers
does not demonstrate bias or interest.
Mr. James' other Brady claim is more problematic. The
prosecution must disclose any and all inducements given to its
witnesses in exchange for their testimony. Such deals are crucial
as impeachment evidence; in some cases the jury may decide that the
deal has created an incentive for the witness to lie. Mr. James
claims that the State made such a deal with Mr. Dustin and did not
disclose it to him. Lacking direct evidence, Mr. James cites the
unusual circumstances under which Mr. Dustin obtained his
probation. First, the judge in Mr. Dustin's case sentenced Mr.
Dustin to 10 to 20 years. Approximately three weeks later, the
judge, on his own motion, ordered Mr. Dustin to the Huttonsville
Correction Center for "examination, diagnosis and classification."
Then, after Mr. Dustin testified against Mr. James, the judge
suspended Mr. Dustin's sentence.
Mr. James' counsel is correct that this course of conduct appears unusual and suggests the possibility of a deal between the State and Mr. Dustin. However, this Court will not overturn the ruling of a lower court on the basis of innuendo and possibilities. We suggest that Mr. James may want to file a petition for habeas corpus in order to develop the factual record for this claim.
Clear evidence of a deal directly linking leniency for Mr. Dustin
with testimony tending to convict Mr. James that was not disclosed
would be grounds for a new trial.
Mr. James also claims that the trial judge should not
have allowed Ms. R. to identify him in court. The trial judge held
a suppression hearing and determined that Ms. R.'s identification
of Mr. James was valid. At the suppression hearing, Ms. R.
testified that she identified Mr. James from a group of six or
seven photographs. Mr. James claims that before being shown this
group of six or seven photographs, Ms. R. had been shown a single
picture -- one of Mr. James alone. Mr. James contends that this is
the only reason Ms. R. was able to identify him. Mr. James' claim
is based on the following colloquy with Ms. R. at a preliminary
Q. Were you able to identify, through that photo lineup, one or both of the individuals?
A. Just the white man.
Q. And were you positive that was him?
Q. And what made you positive?
A. Well, I remembered him from the
photo. I remembered him.
Ms. R. removed any confusion about her identification of Mr. James when she testified at trial. She testified that she got
a good look at Mr. James during the ride in the car as well as
during the prolonged assault. She provided an accurate description
of Mr. James later that day and she positively identified him from
the group of photographs four days later. Furthermore, Ms. R.
denied at trial that she had ever been shown a single picture of
Mr. James.See footnote 3
We have previously held that:
A pretrial identification by photograph will be set aside if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.
Syllabus Point 4, State v. Harless, ___ W. Va. ___, 285 S.E.2d 461
Clearly an "array" of one photograph is impermissibly suggestive. However, Mr. James again provides no direct evidence that Ms. R. ever saw a lone photograph. In fact, Ms. R. denied that this occurred. Single photograph identifications raise grave concern about the reliability of the witness's identification, and this Court will not accept them. However, there is no evidence in this case on which to base a reversal of the trial court's decision.
For the foregoing reasons, the decision of the Circuit
Court of Kanawha County is affirmed.
Footnote: 1In keeping with our practice in cases involving sensitive matters, we use initials rather than complete names.
Footnote: 2Absent Without Leave.
Footnote: 3 The following is a detailed excerpt from part of the trial.
Q. Mrs. [R.], did detectives Westfall and Lanham hand
you any photographs for you to look at?
A. Yes, they did.
Q. Do you recall how many they handed you?
A. I don't recall exactly how many. I would say six or
Q. Anything that you remember specifically about the
photographs as a group?
A. I remember the third one I saw I identified and they
said, are you sure, and I said, yes. They asked me
to continue looking and I did, but I said there isn't
any reason to because this is he.
Q. And when you say you identified him and this is he,
who are you referring to?
A. The defendant.
Q. In terms of the driver that you told us was a short,
dark complected individual and the person in the back
seat of the car with you that you've described, I
believe, as six-two, muscular, blondish hair, which
of those two gentlemen are you meaning when you said
you picked him out of the photo?
A. Blondish, six-two, blondish hair.
Q. Was there any doubt in your mind when you saw those
photographs that Number 3 was the assailant?
A. No doubt.
Q. When detectives Lanham and Westfall gave you the
photographs to look at, did they make any suggestions
to you which led you to believe that one or more of
the assailants were, in fact, contained within those
A. No, they didn't.
Q. Mrs. [R.], I would like to ask you if you recognize
one of the assailants today in the courtroom? Do you
see any one of the assailants in the courtroom today?
A. Yes, I do.
Q. Will you tell Judge Casey where the assailant is
THE COURT: Yes, Ma'am.
A. Right here (indicating).
THE COURT: I'm going to let the record indicate that
the witness pointed her finger towards the accused in
this indictment who is now standing trial. Go ahead.
Q. Now, Mrs. [R.], the individual that you have pointed
out for us, is this particular person, the person
that you described, was he in the back of the car or
was he the driver?
A. He was in the back of the car.
. . .
Q. Here's the question, Ma'am: (Reading from
transcript:) "They came over to General Seafood and
showed you six or seven pictures?" And "yes," was
your answer. "Not down at the police station?"
Answer: "No." "Okay. Was it six or was it seven?
And your answer was: "I don't know. I only looked
at two, because he was the second one."
As it indicates here, you only looked at two pictures? Are you able to clarify that statement at this time?
A. I remember he was the third one that I saw. The
third picture that I saw.
Q. Do you recall what you said at the time --
THE COURT: Or Mr. Atkins suggests that you looked at two pictures back when you were talking about -- and assuming Mr. Atkins has a correct transcript. I would kind of vouch for you that Mr. Atkins wouldn't just go forge a transcript. Assuming that the answer was correctly taken down as Mr. Atkins read it, is there any explanation that you may help Mr. Atkins with to clarify what he now tells you that you said? If you can clarify it in any way. You can search your mind.
THE WITNESS: Well, in my mind, I would say it was
the third. It could have been the second. I don't
know. I don't recall. I just recall that the one --
when I saw him, I said, that's him. And I handed
them that photograph and said, that's him. And they
said, you know --
THE COURT: Well, but go ahead. Did they suggest --
THE WITNESS: They suggested that I look and I said,
this is him.
THE COURT: Well, but you've been over that. You
mean they suggested that you continue to look?
THE WITNESS: Yes, sir.
THE COURT: I see. Well, be specific about that
because I wasn't there and neither was Mr. Atkins,
and we can only know what you tell us about it. Go
ahead, Paul Atkins.
Q. Ma'am, then you were required to look at additional
A. Yes, I mean, I didn't really look at them because I
didn't need to. They suggested that I look at them,
but I didn't need to look at them.
Q. Do you recall at the time if that was a very good
likeness to the defendant in this case, your
Q. Do you recall exactly what it was in your own mind
that made you certain that it was Larry James here?
A. Well, I know it was him because I looked at him. I know it was him. Someone assaulting you for that long, you know what they look like.