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656 S.E.2d 121
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2007 Term
STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee
Defendant Below, Appellant
Appeal from the Circuit Court of Mingo County
Hon. Michael Thornsbury, Judge
Indictment No. S05-F69
REVERSED AND REMANDED
Submitted: October 24, 2007
Filed: November 21, 2007
Darrell V. McGraw, Jr. M. Timothy Koontz, Esq.
Williamson, West Virginia
R. Christopher Smith Attorney for Appellant
Assistant Attorney General
Charleston, West Virginia
Attorneys for Appellee
The Opinion of the Court was delivered PER CURIAM.
JUSTICE MAYNARD dissents and reserves the right to file a dissenting opinion.
JUSTICE BENJAMIN dissents and reserves the right to file a dissenting opinion.
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, ____
W.Va. ____, 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, ____ W.Va. ____, 650 S.E.2d 119 (2007).
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) , and two counts of first degree sexual assault under W.Va.
, 61-8B-3 . 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.
. (See footnote 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., (See footnote 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.
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. (See footnote 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
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. (See footnote 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. (See footnote 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.
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 look to our recent decision in State v. Youngblood, ____ W.Va. ____, 650 S.E.2d 119 (2007) and cited authorities.
In Syllabus Point 1 and 2 respectively of Youngblood we held:
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.
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
The appellant, in part, urges that the investigation in this case was a joint
investigation between law enforcement authorities in West Virginia and Kentucky authorities
and that because it was a joint investigation, the Kentucky authorities became part of the
prosecution team. The appellant further argues that because the Kentucky authorities were
acting on the behalf of the West Virginia law enforcement authorities, the knowledge
obtained by the Kentucky authorities should be imputed to the prosecutor. We agree.
In criminal proceedings the State is obligated to turn over documents and other
matters in its possession, custody or control, if requested by a defendant pursuant to Rule 16
of the West Virginia Rules of Criminal Procedure. The record in this case discloses that the
appellant filed a motion under Rule 16 requesting that the State turn over to him
. . . any and all exculpatory material, and any and all evidence
material to the preparation and/or presentation of a defense
against the matters charged or which might lead to evidence
which might aid in the defense of the matters charged, and all
materials generally described as 'BRADY' materials. Brady,
[supra] . . ..
There is no dispute, notwithstanding the appellant's discovery request, that the State failed
to turn over the forensic report prepared by Robin Brozowski in connection with her
examination of Barbara R.
As we explained in Youngblood, supra:
It is not relevant under Brady and Hatfield that the police,
rather than a prosecutor, had knowledge of material evidence
that was favorable to a defendant. The United States Supreme
Court addressed this point in Kyles v. Whitley, 514 U.S. 419,
115 S.Ct. 1555, 131 L.Ed.2d 490 (1995): [T]he individual
prosecutor has a duty to learn of any favorable evidence known
to the others acting on the government's behalf in the case,
including the police. But whether the prosecutor succeeds or
fails in meeting this obligation, the prosecutor's responsibility
for failing to disclose known, favorable evidence rising to a
material level of importance is inescapable.
State v. Youngblood, ____ W.Va. at ____, 650 S.E.2d at 125.
Youngblood, supra, recognizes that [t]he decision in Kyles 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. United States v. Wilson, 237 F.3d 827,
832 (7th Cir. 2001).' Youngblood, ____ W.Va. at ____, 650 S.E.2d at 126.
As previously noted, Nettie Goan, child protective service worker with the
DHHR in Williamson, West Virginia, at the request of Williamson Chief of Police Pope,
scheduled Autumn B. and Shannon B. for forensic examinations to be conducted in Pikeville,
Kentucky. Subsequently, Robin Brozowski conducted a forensic examination of both of the
alleged victims and later testified at trial about her findings. Ms. Brozowski also conducted
a forensic examination of Barbara R. and testified at trial about the examination. Ms.
Brozowski conducted her examinations at the Big Sandy Area Child Advocacy Center
Kentucky at the request of the West Virginia prosecution team. As such, Ms. Brozowski
became part of the prosecutor's investigation team. Therefore, the knowledge which Ms.
Brozowski obtained with respect to her examination of Barbara R. would be imputed to the
West Virginia prosecuting authorities. See Syllabus Point 1 of Youngblood, supra.
However, simply finding that the evidence obtained by Ms. Brozowski related
to the instant case and that it is imputed to the prosecuting authorities does not end the
inquiry. We must next determine whether the three components of Brady, supra, as set forth
in Syllabus Point 2 of Youngblood, supra, were met.
The first component of Brady, supra, requires that the evidence at issue must
be favorable to the defendant as exculpatory or impeachment evidence. From our
examination of the record, we believe the report prepared by Robin Brozowski in connection
with her examination of Barbara R. and the statements made to Ms. Brozowski by Barbara
R. could be favorable to the appellant in this case, either as exculpatory or as impeachment
evidence, or both. The report and statements made to Ms. Brozowski by Barbara R. tend to
contradict and impeach the testimony of the alleged victims. Furthermore, the report and
statements tend to support the appellant's testimony that he did nothing wrong and that the
mother of Autumn B. and Shannon B., Joyce Spradlin, told Autumn and Shannon to lie in
order for the mother to get back at the appellant for breaking off an affair. Finally, the
evidence provides an alternative explanation for the physical evidence and expert opinion
that one of the girls had been vaginally penetrated. For these reasons we find the first
component of Brady, supra, satisfied.
The second component of Brady, supra, requires that the evidence must have
been suppressed by the State, either willfully or inadvertently. We find nothing in the
record to suggest that the prosecutor acted willfully in suppressing the report prepared by Ms.
Brozowski. In fact, the contrary appears to be true as demonstrated by the prosecutor's
expression of surprise during the first trial when Ms. Brozowski's examination of Barbara
R. was being explored on cross examination. Willful suppression of evidence, however, is
not required to satisfy the second Brady component. Suppression of evidence may occur
through inadvertence by the prosecutor and still satisfy the second component of Brady, supra.
We believe that the prosecutor had enough information about the significance
of Barbara R. to appellant's defense prior to the first trial to invoke the Brady, supra,
disclosure principles. Barbara R. was mentioned by both Autumn B. and Shannon B. during
their forensic examinations by Ms. Brozowski, examinations that were witnessed by Chief
Pope, the West Virginia authority who took charge of the investigation in this case. Even if
the prosecutor was not aware of Ms. Brozowski's forensic examination of Barbara R. or her
written report before the first trial, the prosecutor was put on notice of the Barbara R.
examination when the matter came up during the first trial. Following, the declaration of a
mistrial (first trial) and before the commencement of the second trial, the prosecutor should
have pursued the matter so that the full extent of the forensic examination of Barbara R.
could be known and disclosed to the appellant. Even though defense counsel possessed the
same information as the prosecutor as a result of Ms. Brozowski's testimony at the first trial,
the prosecutor is not excused from the obligation to provide disclosure of Brady, supra,
material. We therefore find that the second component of Brady, supra, is satisfied.
The final component of Brady, supra, requires that the evidence must have
been material, i.e., it must have prejudiced the defense at trial. Here, it is helpful to examine
at our analysis in Youngblood, supra, where we stated that:
[t]his Court has recognized, along with the United States
Supreme Court, that '[t]he evidence is material only if there is
a reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been
different. A 'reasonable probability' is a probability sufficient
to undermine the confidence in the outcome.' State v. Fortner,
182 W.Va. 345, 353, 387 S.E.2d 812, 820 (1989) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375,
3383, 87 L.Ed.2d 481 (1985)). Additionally, it has been said
that a showing of materiality does not require demonstration by
a preponderance that disclosure of the suppressed evidence
would have resulted ultimately in the defendant's acquittal.
Kyles, 514 U.S. at 434, 115 S.Ct. at 1565. All that is required
is a showing that the favorable evidence could reasonably be
taken to put the whole case in such a different light as to
undermine confidence in the verdict. Id. at 435, 115 S.Ct. at
1566. Finally, the suppressed evidence must be evaluated in
the context of the entire record Agurs, 427 U.S. at 112, 96 S.Ct.
Youngblood, supra, ____ W.Va. at ____, 650 S.E.2d at 131.
We find the trial court's findings and conclusions regarding the importance of
the Browkowski report to the appellant's case as significant. The trial court made the
following observations in its order denying the appellant's motion for a new trial:
The Court agrees with the Defendant that the report is not
cumulative under Kennedy, Id. [State v. Kennedy, 205 W.Va.
224, 517 S.E.2d 457 (1999)] The report contains information
that could potentially be used for several purposes, including
impeachment of the victims, Autumn B. and Shannon B.,
providing an explanation or defense to the physical evidence,
and could attack the conclusions of the experts in this matter,
vis-a-vis the credibility of the minor victims.
. . .
The proffered evidence contains two items that could be used to
bolster Mr. Farris's [appellant's] defense, specifically, the child
reported Joyce told her to 'go along with the story' that David
[appellant] molested her or that she would make sure that she
(child) was taken from her mother, and Child reported Shannon
stuck a toothbrush inside her (Shannon). Report of Dr. [sic]
We agree with these findings of the trial court, but would go further. It is not
necessary for us to find that the Brozowski report would be such that its use at a new trial
ought to produce an opposite result as was determined by the trial court; the trial court was
considering the appellant's motion based upon the ground of newly-discovered evidence, and
not Brady, supra, violations. We conclude that the trial court's findings with which we agree
constitute a sufficient basis for this Court to hold that this evidence is sufficient to qualify
as favorable evidence which could reasonably be taken to put the whole case in such a
different light as to undermine the confidence of the verdict as required by Brady and Youngblood, supra. Accordingly, we find that the third component of Brady, supra, has been
met. Inasmuch as our findings relating to the appellant's assignment of error for Brady, supra, violations form a basis for reversal, we find it unnecessary to consider any of
the appellant's other assignments of error.
Based upon the foregoing, we reverse and remand the case for a new trial.
Brady v. Maryland
, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 215 (1963).
Due to the sensitive nature of the facts involved in this case, we will adhere to our
usual practice in such matters and refer to the parties by their first names and last initials
only. See In re Clifford K.
, 217 W. Va. 625, 619 S.E.2d 138, (2005).
The testimony in the second trial by Nettie Goan, child protective service worker,
states, in part, as follows:
Q. [Defense counsel] Are you aware based upon what the girls
stated in their interview if there were any other people in the
home that evening?
A. [Nettie Goan] A cousin, I think; David's [Appellant's]
cousin, Barbara R[.]
The following exchange occurred during cross examination in the first trial:
Q. [Defense counsel] Do you recall that both Autumn and
Shannon [B.] identified another little girl who was present, a
A. [Brozowski] In one of the notes one of the standard questions
would be other kids there and the other kids that would have
been and they did give Barbara R[.] and then I added
parenthesis, a cousin, so Autumn identified Barbara R[.] as a
cousin and they identified that Tina Farris was also there.
Q. [Defense counsel] Do you recall during your forensic
interview a Barbara R[.]?
A. [Brozowski] Yes.
Q. [Defense counsel] Did you find her to be credible?
MS. Maynard: Objection, Your Honor. I wasn't aware there
was a forensic interview of Barbara R[.]. I've not been provided
with copies of transcripts.
THE COURT: Approach.
MS. MAYNARD: Your Honor, I would object to this line of
MS. VAN ZANT: Your Honor, I believe this witness will testify
as to the credibility of Barbara R[.].
MS. MAYNARD: I don't think she'll say that.
THE COURT: Let's get away from that. It wasn't provided.
(Bench conference concluded)
Q. (Ms. Van Zant continuing) Did you make any findings
whether or not Barbara R[.] had been assaulted?
A. (Witness continuing) I don't have that information with me,
in front of me. I would have to have it in front of me in order to
On redirect examination, the prosecutor questioned Robin Brozowski as follows:
Q. [Prosecutor] Now, I want to talk to you a little bit about
Barbara R[.]. Do you know when you did an interview with
A. [Brozowski] Like I said, no; I do remember Barbara's name
because it's on the tape and the kids indicated that she was three
[sic]; however, any details - I know they specifically mentioned
each other. Shannon and Autumn mentioned her and she
mentioned them. That's about the extent to what I have without
having something to refer to and without listening to the tape
Q. [Prosecutor] Do you remember specifically any red flags or
concerns you had as you interviewed Barbara R[.] or do you
have any recollection?
A. [Brozowski] I would need that here in order to be correct and
answer correctly. I would rather listen to the tape first before I
answer any question regarding Barbara. It has been a while. I
don't remember the date I interviewed her, but it has been a
while - I believe it was in March.
Q. [Prosecutor] My last question; Were you able to determine
based upon your interviews whether Barbara R[.] was actually
at the house at the time that this abuse occurred to Autumn and
Shannon [B.] or whether she was there on another occasion?
A. [Brozowski] No. In each of Autumn and Shannon's tapes
they mentioned Barbara and that Barbara was there, but then at
other times it would have been just David and Tina, so I don't
get a clear indication of the time period or whether or not
Barbara was there or if it was on different days.
Following is an excerpt from the trial transcript of the second trial, January 31, 2006:
Q. [Defense counsel.] Did the girls identify any other children
or adults who may have been present during these alleged acts?
A. [Brozowski] I have their information on the checklist Others
present when abuse occurred, Shannon reported Autumn and
Tina were there. Autumn, her sister, and Tina Farris. Names
of other possible victims as given by child, she named, again,
her sister, Autumn [B.], and she named another person named
Barbara R[.], who she also - they referred to as Boo, as well.
Q. [Defense counsel] Did the other girl, who did she reveal was
A. [Brozowski] Okay; Autumn revealed that Shannon, her sister,
was there, and Tina Farris was there. Names of other possible
victims as given by child, Shannon, her sister, and Barbara