| Darrell V. McGraw, Jr.
Esther T. Van Dall
Assistant Attorney General
Charleston, West Virginia
Attorneys for Appellee
| Gregory A. Elam, Esq.
Nancy C. Ulrich, Esq.
Ronald L. Reece, Esq.
Public Defender Corporation
Clarksburg, West Virginia
Attorneys for Appellant
The Opinion of the Court was delivered PER CURIAM.
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. Syllabus
Point 4, State v. Hatfield, 169 W. Va. 191, 286 S.E.2d 402 (1982).
This is an appeal by James
Howard Kearns from an order of the Circuit Court of Harrison County sentencing
him to from two to ten years in the State Penitentiary for the sexual assault
of his estranged spouse, and to an additional one year for the battery of
his spouse. On appeal, he claims that the State failed to provide him with
a prior inconsistent statement made by his estranged spouse, and that the
withholding of the statement deprived him of a fair trial.
On cross-examination, the
appellant's former spouse was questioned about whether the appellant had visited
her at the trailer on other occasions between the time of their separation
and the time of the assault_the clear implication of the questioning being that she had consented to his visiting her. She stated that, except for
visiting her at her invitation on the night of their separation, he had not
been to the trailer except to drop their son off. The testimony proceeded
Q. Well, excepting this one time [on the night of separation], to visit at your request, you're saying he never came and visited and you never had him hide, park the car behind the shed or in the woods so that nobody would know he was there?
A. He came out one time invited, sir.
At the conclusion of the
trial, the jury found the appellant guilty of sexual assault of his spouse
After the conclusion of
the trial involving his estranged wife, a hearing was conducted in another
case involving unrelated charges against the appellant. During that hearing,
the appellant's estranged spouse again testified. As a result of her testimony
at that hearing, it became apparent that she had told investigating officers
that the appellant had visited her trailer on March 23 or March 24, 1999,
approximately a week before the alleged assault upon her by the appellant_and
sometime after their separation. This testimony was, of course, contrary to
what she had said at the appellant's trial.
After learning of the prior
inconsistent statement, and after learning that the State had failed to produce
it prior to the appellant's trial, counsel for the appellant filed an amended
motion to set aside the verdict and to enter either a judgment of acquittal
for the appellant or to grant him a new trial on the ground that the statement
by his estranged wife was inconsistent with her testimony at trial and was exculpatory
and should have been disclosed by the prosecution. The trial court conducted
a hearing on the motion, and, in spite of the fact that the State admitted to
having the statement, and even to advising the appellant's estranged wife not
to mention it, the court denied the motion.
(See footnote 1)
In the present appeal, the
appellant contends that the trial court should have granted a new trial because
of the failure of the State to produce the inconsistent statement.
In Brady v. Maryland,
373 U.S. 83, 83 S. Ct. 1194, 10 L.Ed.2d 215 (1963), the United States
Supreme Court held that the prosecution's suppression of material evidence
favorable to an accused upon request violates due process of law. In the later
case of State v. Hatfield, 169 W. Va. 191, 286 S.E.2d 402 (1982),
this Court discussed, and followed, the principals set forth in Brady v.
Maryland, supra. In Syllabus Point 4 of State v. Hatfield, id.,
the Court specifically held that: 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.
In the subsequent case of
State v. Hall, 174 W. Va. 787, 329 S.E.2d 860 (1985), the Court
concluded that failure of the State to disclose a prior inconsistent statement
made by one of the prosecution's witnesses violated due process of law where
the statement was inconsistent with the witness's trial testimony, where the
witness's credibility was the most important issue in the case, and where a reasonable doubt might have
been created by impeachment of that witness.
In the case presently before
the Court, the principal charge against the appellant was that he had sexually
assaulted his estranged wife. A critical issue in the case was whether the
estranged wife had been forced to engage in sexual acts against her will.
The principal evidence adduced by the State to support the claim that the
estranged wife had been forced to engage in sexual acts against her will was
the testimony of the estranged wife herself. In this Court's view, the credibility
of the estranged wife's testimony potentially affected the jury's conclusion
as to whether she was or was not forced to act against her will. The credibility
of her testimony was obviously very material, and impeachment of her testimony
could potentially have affected the outcome of the case, particularly in view
of the fact that the thrust of the defense's questioning suggested that the
appellant might have been at his estranged wife's trailer at her invitation.
In view of the clear contradictory
nature of the non-disclosed statement and its potential impact of its revelation
to the jury might have had on the assessment of the credibility of the estranged
wife's testimony, this Court believes that the State's withholding of the
statement did violate the appellant's constitutional rights, and, as the Court
indicated in State v. Hall, id., the Court believes that in light of this,
the appellant should be granted a new trial.
The Court notes that in
addition to claiming that the trial court should have granted him a new trial
because of the State's failure to produce the inconsistent statement, the
appellant claims that the court should have stricken a member of the jury
panel because the juror had knowledge of another case pending against him.
Because the Court has already determined that the appellant is entitled to
a new trial, and because a new jury will have to be selected for the new trial,
the Court believes that it is unnecessary to discuss the juror issue.
For the reasons stated,
the judgment of the Circuit Court of Harrison County in the present case is
reversed, and the appellant is awarded a new trial.
(See footnote 2)
That information didn't become known to the State until very late in the preparation of the case. As a result of that I had instructed Ms. Kearns [the appellant's estranged wife] that since we were not able at that point --- we were basically on the eve of trial for all intents and purposes and I had instructed her at that time . . . that she was simply not to mention that and as a result of that she didn't mention that . . . .